Page 3009 - Week 08 - Thursday, 7 August 2008
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on her existing resources and is a difficult process for families caught up in this situation.
The scheme proposed in this bill will allow people who have a close relationship with the patient to consent to medical treatment for the patient. These people will be called “health attorneys”. They are not attorneys appointed under a power of attorney, but instead may be a domestic partner, carer, close relative or close friend of the patient—someone who is best positioned to speak for the patient’s own views and wishes. A health attorney can only consent to medical treatment if asked by a doctor or a dentist in relation to a particular treatment.
Members may be aware that, at common law, providing medical treatment for a person without that person’s consent may amount to assault unless the treatment is urgent. Further, the Human Rights Act 2004 provides that no-one may be subject to medical treatment without their freely given consent. This government considers that right to be paramount. A person who cannot provide consent because of mental, intellectual or physical impairment, irrespective of whether or not the person’s incapacity is temporary, is called a “protected person” under the Guardianship and Management of Property Act 1991.
A protected person, like any other person, has the right not to be subjected to medical treatment without their consent. However, a protected person lacks the capacity to give that consent. One must approach carefully, therefore, and with compassion, the question of how consent is to be obtained from a protected person for medical treatment.
As I have already observed, someone may consent to medical treatment for a protected person if they have been appointed as an attorney under an enduring power of attorney to give consent to medical treatment. And if a protected person has not appointed an attorney in this way then a guardian may be appointed under the guardianship legislation who could consent to medical treatment for the protected person. It is, in fact, likely that where a person has a long-term impairment affecting their decision-making ability then a guardian will have been appointed. But if a protected person has no attorney under an enduring power of attorney and no guardian, the health profession and the person need someone else to provide consent on the protected person’s behalf. Currently, in such cases, the Public Advocate may be appointed as an emergency guardian by the tribunal. If the Public Advocate is appointed as an emergency guardian for a person, she may consent to medical treatment for the person.
Territory law does not allow a person’s family members and close friends to consent to medical treatment for the person. This position may surprise, and often disappoint, the person’s nearest and dearest, who can feel sidelined when they find that they have no role in consenting to treatment. In particular, they may feel aggrieved that this situation exists in the ACT when that is not the case in most other jurisdictions. Laws in other jurisdictions, including our neighbour New South Wales, have addressed this situation and already recognise the ability of relatives, carers and close friends to provide consent on behalf of a protected person to medical treatment.
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