Page 3010 - Week 08 - Thursday, 7 August 2008
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To some degree, the regulatory process of appointing a guardian and decision making by a guardian is somewhat detached from the feelings of people close to a patient. Normally, a person would expect someone close to him or her to make a decision, in this case to consent to medical treatment where the person’s decision-making ability has become impaired. The ACT has lagged behind other jurisdictions in addressing this human and medical issue. Who would best know the views and wishes of a person with impaired ability than those who are the person’s near and dear ones?
In June 2007, I released a discussion paper called “Consenting to treatment” on issues of consent for a protected person’s medical treatment. It covered the issue of consent to providing, withdrawing or withholding treatment. My department undertook an extensive consultative process on the issues. The bill is the outcome of this process, so far as it related to consenting to provide medical treatment for a protected person. Issues relating to consent to the withdrawal or withholding of treatment are somewhat more complicated and will not be pursued at this time. Instead, they will be considered at a later point.
In the context of a culture that respects human rights, requiring consent from someone other than a patient for medical treatment is a limitation on the patient’s right not to be subjected to medical treatment without the patient’s free consent. However, as I said before, normally patients would expect someone close to them to be involved in consenting to medical treatment if they were unable to speak for themselves. The bill has been framed so as to ensure that the right of a person to be treated without their consent is restricted as little as possible.
The health attorney scheme sits alongside the guardianship system. Both the attorney and health professional must follow the decision-making principles under the guardianship legislation. These principles require the decision maker to give effect to the wishes of a protected person so far as they do not significantly adversely affect the person’s interests. If those wishes cannot be given effect to, the focus should be on promoting the person’s interests. There is also scope for intervention by the Public Advocate. A health professional must provide relevant information to a health attorney. Where a medical treatment based on a health attorney’s consent continues for six months, the health professional must inform the Public Advocate. These safeguards are reasonable and impose the least possible restriction on a patient’s existing rights.
Apart from the benefits to the patient and to those near and dear to the patient, this legislation also provides certainty for health professionals that, if they act in good faith and in accordance with the decision-making principles in the legislation, they will be able to rely on consent provided by a health attorney in providing necessary medical treatment to a patient who lacks the capacity to consent to it in their own right. This will provide reassurance to our health professionals who want to provide the best possible care for their patients but have been unable to act without the patient’s free and informed consent.
Medical treatment to which health attorneys may consent includes a medical procedure or treatment, dental treatment and a series of procedures or a course of treatment. Health attorneys cannot consent to a prescribed medical procedure under
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