Page 3704 - Week 08 - Friday, 24 August 2012
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Reproductive sterilisation and a hysterectomy are defined as prescribed medical procedures under the GMP Act. Sterilisation is defined as a special health care matter under the Powers of Attorney Act 2006. Those Acts prohibit a guardian or an attorney from providing substitute consent to such a procedure for a protected person or principal who is not competent to consent to the procedure.
Sections 69 and 70 of the GMP Act deal with the ACAT’s power to consent to a prescribed medical procedure. Applications to the ACAT are public hearings, but may be closed at the discretion of the Tribunal. The ACAT is required to give notice of the hearing to the subject person, family members, any carer, any guardian and the public advocate.
The ACAT is required to appoint the person’s guardian, the Public Advocate or some other independent person, to represent the person in relation to the hearing. I am advised that the Public Advocate is most commonly appointed to represent the person.
The Tribunal is required to be satisfied that:
• the procedure is otherwise lawful;
• the person is not competent to give consent and is not likely to become competent in the foreseeable future;
• the procedure would be in the person’s best interests; and
• the person, the guardian and any other person whom the ACAT considers should have notice of the proposed procedure are aware of the application for consent.
The ACAT is required to take into account:
• the wishes of the person, so far as they can be ascertained;
• what would happen if the procedure were not carried out;
• what alternative treatments are available; and
• whether the procedure can be postponed because better treatments may become available.
The views and wishes of the person are obtained by the ACAT members speaking to the person if they are able and willing to participate in the hearing and, otherwise, by means of a report provided to the ACAT by the Public Advocate. Other information is obtained from health professionals.
The ACAT determines the capacity of person to consent to the procedure by considering medical and other relevant information in light of the applicable principles of law.
(c) There are no specific data collection processes undertaken by either the ACAT or the Health Directorate in relation to the sterilisation of women and girls with disabilities in the ACT.
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