Legislative Assembly for the ACT: 2008 Week 10 Hansard (Tuesday, 26 August 2008) . . Page.. 3712 ..
This legislation would bring us into line with other jurisdictions, including New South Wales. It does overcome problems that can arise when those close to a patient who has diminished capacity to make their own decisions can feel sidelined when it comes to making decisions about medical treatment for the patient. Having been in a situation like that about 25 years ago with an old friend, I know that this would have been very handy legislation then. It does relieve some of the pressure on the Public Advocate by not having to get involved unless disputes arise or if treatment extends for six months. Potentially it could place additional pressure on health professionals in terms of assessing whether a health attorney is best able to represent the views of the protected person. The opposition will be supporting this legislation.
DR FOSKEY (Molonglo) (11:18): The Greens will be supporting the bill as well. The treatment of protected persons in emergency situations is a delicate matter which requires consideration of the person’s wishes, human rights and the duty of health professionals to protect life. This bill enables those closest to a protected person the right in certain circumstances to make decisions on medical treatment on their behalf. As the Attorney-General noted, the majority of the community probably assumed that this was already the case, but, prior to this bill, decisions on the medical treatment of protected persons fell to appointed guardians, those with enduring power of attorney, or the ACT Public Advocate. This bill allows for non-appointed family members, close friends or carers to make treatment decisions on the protected person’s behalf.
While I imagine that many protected persons already have appointed guardians, this bill provides for those who do not, for those who could be in perfect health but, as a result of some unfortunate event, end up in a coma or are in some other way unable to make their own treatment decisions. There are safeguards in the bill to ensure that the wishes of the protected person are at the foremost as far as possible.
The ACT is in the process of harmonising much of our legislation with other Australian jurisdictions. On the surface, harmonisation makes sense, but we need to be wary that we are not reducing our laws to the lowest common denominator. I do not believe that this is the case here, but we have to make sure that it is good policy and not just shared policy.
Currently, as confirmed by the Attorney-General in his answer to my question on notice No 2082, close relatives or carers or people with enduring power of attorney cannot make decisions about mental health treatment, and that is not being changed by this bill. These decisions must go to the Mental Health Tribunal, where the wishes of the incapacitated person and those close to them may or may not be taken into account. Even if the person has a voluntary advance care agreement those wishes may be ignored. Mental Health ACT is currently investigating the possible implementation of advance care agreements as a legal mechanism. I do wonder what their impact on the Guardianship and Management of Property Act might be.
The Public Advocate has suggested that this restriction on the rights of those with enduring power of attorney to act on behalf of a mentally ill protected person could be changed specifically around involuntary treatment. It need not be so general about treatment for a mental illness, and I am wondering if the government has discussed