Page 3714 - Week 10 - Tuesday, 26 August 2008
ability to make a decision becomes impaired. If there is no attorney under an enduring power of attorney or the enduring power of attorney does not give the particular required authority to the attorney, family members or others who have a personal interest in the welfare of the protected person may apply to the Guardianship and Management of Property Tribunal for the appointment of a guardian to consent to medical treatment.
If there is no attorney under an enduring power of attorney and no guardian, or even if the attorney under an enduring power of attorney refuses to give consent, a treating health professional in the ACT would be forced to bypass family members and relatives of the patient. Those people are not empowered by law currently to give consent unless they go through the legal process of applying to be appointed as a guardian. The health professional would instead contact the Public Advocate, and the Public Advocate would seek appointment as an emergency guardian to give consent.
Family members and relatives may accept the Public Advocate’s role in those circumstances because they would want to ensure by any means the wellbeing of their loved ones. However, while most other jurisdictions recognise the ability of a person close to a protected person to consent to medical treatment, the ACT has not done so until now. This bill remedies the current situation and brings the ACT into line with other jurisdictions. A domestic partner, carer, close relative or close friend in the ACT will be able to give consent to medical treatment for a protected person. The need to seek consent from a health attorney would only arise if there is no attorney under an enduring power of attorney and no guardian. The scheme provided for in this bill will sit alongside the currently available options. It is not a substitute for them; it is most likely, in fact, that a protected person with a long-term need for medical treatment will have a guardian to make decisions for them acting on their behalf.
I am pleased to note that this bill is the outcome of an extensive consultation process undertaken by my department. In late June last year, I released for public consultation a discussion paper entitled “Consenting to treatment: developing an ACT legislative framework for giving consent to providing, withholding or withdrawing medical treatment to an incompetent adult”. The discussion paper canvassed a number of issues, mainly about whether or not family members and relatives should have the ability to consent to providing, withholding or withdrawing medical treatment to a patient with impaired decision-making ability.
From the comments received, there emerged a number of draft legislative proposals on the issue of consent to medical treatment. With regard to consenting to withholding or withdrawing medical treatment, however, I note that the common law continues to apply. It became clear from discussions on the discussion paper that the government will need to undertake further consultation, in particular with the medical profession, if we are to change that position. Therefore, the government considers that that issue should be considered at some future time.
The consultation process acquired another layer when my department convened a reference group to consider and refine the draft legislative proposals. The reference group consisted of representatives from the Chief Minister’s Department, ACT Health, the Public Advocate, the Department of Disability, Housing and Community Services