Page 3011 - Week 08 - Thursday, 7 August 2008
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the guardianship legislation. Examples of prescribed medical procedures are an abortion, reproductive sterilisation, a hysterectomy, treatment for mental illness, electroconvulsive therapy and psychiatric surgery.
There will be an order of priority among health attorneys as follows: firstly, the protected person’s domestic partner who is in a close and continuing relationship with the person; secondly, the protected person’s carer who provides care and support to the person in the domestic context and does not receive remuneration or reward for the service or arranging the service; and, thirdly, a relative or close friend of the protected person where the relative or friend is in a close personal relationship with the person.
However, it is recognised that a patient’s partner or family may not always be the people best placed to represent the patient’s views—for example, where the family is estranged. For this reason, the overriding provision is that the person identified as the health attorney should be a person best placed to truly represent the wishes of the patient.
Before asking for a health attorney’s consent, a health professional must believe, on reasonable grounds, that the patient is a protected person and that the person needs medical treatment. The health professional should also believe that the health attorney is best able to represent the patient’s views.
In identifying the best person to make the decision, a health professional is obliged to consider the priority order for health attorneys and may also take into account how readily the attorney is available. A health attorney who is lower in the order may be readily available whereas one high up in the priority order may be difficult to contact in the necessary time frame. If the identified health attorney does not want to provide consent or if one or more of the other potential health attorneys object to the consent provided by the identified health attorney, the health professional must refer the matter to the Public Advocate. The Public Advocate may apply to the guardianship tribunal to appoint her as guardian for the protected person. The bill also provides for the Public Advocate to help health attorneys to reach agreement where they are in dispute.
To encourage a person’s loved ones to be involved in the process for consent to medical treatment, it is important to alleviate any fears they might have about legal liability for this simple but responsible and loving act. The bill provides for protection of health attorneys from civil or criminal liability where they act in good faith and in accordance with the decision-making principles in the legislation. Similar immunities apply to health professionals who rely in good faith upon consent obtained from an appropriate health attorney. However, this does not relieve a health professional of any liability that would otherwise exist had the protected person not had impaired decision making, and had the treatment been given with the person’s consent.
I am confident that the ACT community and health profession will welcome this scheme and will use it effectively. My department will monitor the operation of the new scheme to ensure that it does operate effectively and to make any improvements that might be identified once it comes into effect. I also propose a more comprehensive review of the scheme five years after it commences, to ensure that the
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