Legislative Assembly for the ACT: 2008 Week 10 Hansard (Tuesday, 26 August 2008) . . Page.. 3713 ..
this with the Public Advocate. To quote Nick O’Neill’s submission to the HEREOC living wills discussion paper on behalf of the New South Wales Guardianship Tribunal:
Where a person does have insight into their illness, the benefits of enduring guardianship and advanced directives are many. Enduring guardianship is suited to an episodic illness in that the appointment comes into effect when the person loses capacity and is suspended when the person regains capacity. A person with insight into their illness may wish to execute an advance directive that contains their wish to receive treatment despite the fact that they may not take or express such a view when they become unwell. An agreed treatment plan may allow for an earlier and therefore less intrusive treatment in the event of an episode of mental illness. Involved persons may also be more willing to act if they know that it is with the agreement of the person as expressed when he or she was well.
I hope the Attorney-General’s Department is working with ACT Health to develop these types of agreement and any changes which may be required to the act. One of the last statements that the former Community Advocate, Heather McGregor, made was a very passionate call for a just provision such as this. I think at the time the issue was around an American woman who was young when she was involved in the accident that led to her being in a coma and who was kept alive on life support systems for many, many years thereafter. It is precisely those sorts of situations that this particular legislation might help in dealing with. I am very happy to support the legislation.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services) (11:23), in reply: I would like to thank members for their support of this important bill. The bill amends the Guardianship and Management of Property Act 1991 to allow people to consent to the provision of certain medical treatment for an adult who cannot give his or her own consent because of impaired decision-making ability. Under this new option, people who are close to a patient will be eligible to give the consent that a doctor or dentist needs before providing medical treatment to the patient.
We know that consent is an important part of giving medical treatment to a patient. Medical treatment could amount to assault at law if the patient has not consented to it, despite the treating health professional’s good intentions. The Human Rights Act 2004 recognises the right of a person not to be subjected to medical treatment without his or her free consent. An impaired ability to give consent may arise from a person’s physical, mental, psychological or intellectual condition or state. How can someone whose decision-making ability is impaired give his or her free consent?
I would like to briefly note the options currently available in the ACT for consenting to medical treatment for a person who has no ability to give his or her own consent. I will refer to a patient in this situation as a “protected person”, which is the term used in the Guardianship and Management of Property Act. A person may authorise an attorney to act for him or her, under an enduring power of attorney, to consent to medical treatment. The enduring power of attorney will operate when the person’s