Department of Health Library Services ePublications

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Department of Health Library Services ePublications - Historical Collection

Please Note: Aboriginal and Torres Strait Islander people should be aware that this publication may

contain images, voices or names of deceased persons in photographs, film, audio recordings or printed material.

Purpose

To apply preservation treatments, including digitisation, to a high value and vulnerable Historical collection of items held in the Darwin and Alice Springs libraries so that the items may be accessed without causing further damage to the original items and provide accessibility for stakeholders.

Reference and Research Disclaimer

Please note: this document is part of the Historical Collection and the information contained within may be out of date.

This copy is a reproduction of an original record. Please note that the quality of the original record may be poor and cannot be enhanced with the scanning process.

Northern Territory Department of Health Library Services Historical Collection

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DLLHIST

34ti7.018

GET

1989

GETTING INTO THE ACT Medical and Dental Consent

under the

Adult Guardianship Act 1988

Aged & Disability Services Program

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NT DEPARTMENT OF HEALTH . , AND COMMUNITY SERVICES

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- GETTING INTO THE ACT - Medical and Dental Consent

under the

Adult Guardianship Act 1988

0003'"3

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The Adult Guardianship Act, for the protection of the rights of certain adults with an intellectual disability, commenced in the Territory on 30 June 1989.

The Act has the dual objective of providing for a scheme of guardianship of a person with an intellectual disability and a scheme of administration of that person's economic affairs. It also has special provisions relating to medical and dental procedures and procedures relating to contraception or termination of pregnancy.

Intellectual Disability Defined

Intellectual disability is defined in the Act as -

•disability in an adult resulting from an illness, injury, congenital disorder, or organic deterioration or of unknown origin and by reasons of which the person appears to be unable to make reasonable judgements or informed decisions relevant to daily living•.

This definition can apply to a person who is born with an intellectual disability, (e.g. as the consequences of cerebral palsy or Down Syndrome); to a person who has an acquired intellectual disability (e.g. who has suffered brain damage through a road accident); or to a person who has dementia (e.g. as a result of the ageing process).

Why Guardianship?

Under common law, parents are guardians of their children. They have certain rights over their child and certain responsibilities toward their child - until the child turns 18 years of age. Then, the child becomes an adult in the eyes of the law and guardianship of parents (including the right to consent to medical treatment on his or her behalf) ceases.

Common law refuses to recognise that one adult may r.ontrol the life of another.

However difficult situations can arise where an adult with an intellectual disability is unable to make reasonable decisions or judgements about practical matters and issues affecting his or her quality of life.

The most commonly adopted practice in these circumstances is for parents or carers to continue to make decisions for the person. Whilst this may work in most cases, it is not necessarily legal, hence the introduction of this new Act.

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The Nature of Guardianship

Guardianship is about decision-making. It is a legal process whereby one person can make decisions on behalf of another.

How Does It Work?

The process to place an adult under guardianship is clearly defined in the Act.

Briefly -

Applications are lodged with the Clerk of the Local Court in any regional centre, and then referred to the Executive Officer of Adult Guardianship.

A special Guardianship Panel is convened to assess the application and to recommend to the Court on the appointment of a guardian and the type of decisions the guardian is to be responsible for making. This includes the guardian's responsibilities relating to health and dental care and any limits on the guardian's authority in exercising consent on behalf of a person who is the subject of the order (hereinafter referred to as a

"represented person").

Finally, the Panel's recommendations are considered at a special hearing of the Local Court, presided over by a Magistrate. A guardian is appointed pursuant to either sections 17, 18 or 19 of the Act, and an order made.

Guardianship Orders

The Magistrate will have the option of granting one of three different types of orders:-

a full order which gives a guardian the authority to make decisions for a represented person in all areas of life including decisions that relate to general health and dental care, general welfare, finances, living arrangements, employment, etc.;

a conditional order which limits the authority of a guardian to the areas specified in the order, e.g. decisions on for example health care or accommodation only;

a temporary order which is generally utilized in circumstances where there is an urgent need for the appointment of a guardian.

Role of a Guardian

Not all powers, duties and functions of guardianship can be expressed in legally enforceable rules. It involves both powers and obligations: powers to make relevant decisions affecting the interests of the person; obligations to act reasonably, caringly and independently in tending to those interests.

Obviously, a most important aspect of guardianship is the development of a relationship between a person appointed as guardian and a represented person, particularly where decisions of a major nature need to be made that are in the best interests of a represented person.

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Major Medical or Dental Procedures

Section 21 of the Act sets out the special provisions relating to major medical and dental procedures, and procedures relating to contraception or termination of pregnancy.

Embodied in the legislation is the principle that an intellectually disabled person must retain the right to exercise informed consent to major procedures where able, even where the Act requires that the matter be referred back to the Court for the final determination.

Consent to Medical or Dental Procedures

The concept of consent is not confined to medical treatment however it is central to all of the controversies concerning medical treatment of persons with an intellectual disability.

The presumption of common law is that a person may consent for her or himself and in order for this presumption to be abandoned it must be evident that the individual is not capable of doing so.

The legislation supports the civil rights of a represented person to exercise consent on his or her own behalf in any major life decisions, but also protects those who are unable to do so or unable to understand the effect of complex, life Affecting procedures such as sterilization or termination of pregnancy.

Who

can

Give Consent Under the Act?

is able to exercise but has no authority or other procedures

substitute or to consent to relating to Under the Adult Guardianship Act a guardian

third party consent in certain circumstances major medical or major dental procedures contraception or termination of pregnancy.

authority in these matters.

The Court is the determining

A full guardianship order will vest the necessary authority in a guardian to exercise substitute or third party consent to general health and dental care treatment. A conditional or temporary order may or may not incorporate similar conditions.

(i) The presence of specific health conditions and consent provisions incorporated within a full or conditional order indicates that a represented person has been assessed by the Guardianship Panel as incapable of making decisions concerning his or her dental or health care needs, and the authority to do so has been vested in a guardian by way of a condition of the order.

(ii) Based on the above, the presumption is therefore that the person will also be incompetent to understand the nature of either medically indicated or non therapeutic major medical or dental procedures, or to exercise informed consent in these matters.

The order does not vest this authority in the guardian. The Court is the determining body in major matters of this nature, which are decided at a special Court hearing.

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In the absence of specific health and dental care provisions in a guardianship order a practitioner may proceed to treat, advise or refer, providing the practitioner is satisfied that the nature, risks and benefits of the procedure are understood by the represented person and consent voluntarily given. If in doubt the practitioner will need to refer the person to either a clinical psychologist or a psychiatrist for a second opinion on the capacity of the person to give informed consent.

In either circumstance the role of a guardian is to advocate for the best interests of the person he or she is legally responsible for and to ensure that any procedures proposed are of the least restrictive nature as is possible under the circumstances.

Legal Obligations of the Practitioner

It is important to be aware at the outset that under e.21(3) a practitioner who carries out a major medical or dental procedure upon a represented person who is the subject of an order which contains health or dental care conditions, without the express permission of the Court, may be found guilty of professional misconduct.

The only time the consent of the Court will not be required is where emergency medical or dental treatment is required. An "emergency" situation is where there is imminent risk to a represented person's life, or health in the case of dental procedures, if the procedure is not performed.

There are three ways you can ascertain whether a person is under an order and whether the order contains any special conditions.

Where a person is placed under guardianship by the Court, an order is made which sets out the authority of a guardian and specifies the conditions and limitations of the order. It is signed by the Magistrate or the Court Registrar. The appointed guardian is always given a copy, and you are entitled to request to view this document.

The Disabled Persons Bureaux in Darwin and Alice Springe has access to the Guardianship Register for enquiries of this nature. You can, in writing, request this information, providing you state the reasons for the request.

If time is of the essence, you may seek telephone advice by contacting the Bureaux and establishing your bona fides.

The Executive Officer Disabled Persons Bureau PO Box 40596

CASUARINA NT 0801 Tel: (089) 203 213

The Coordinator

Disabled Persons Bureau PO Box 721

ALICE SPRINGS NT 0871 Tel: (089) 526 499

Where you have established that your client is under a guardianship order for health and dental care, there are certain parts of the law you will need understand and certain tasks you will need to perform before the matter can be dealt with by the Court.

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These are explained as follows:

Definition of a Major Procedure Emergency Procedures

Procedure to Establish Informed Consent Nature of Informed Consent

Practitioner's Report to the Court General Application Procedures Attendance at the Hearing Role of the Executive Officer Where to Go From Here?

Definition of Major Medical or Dental Procedure

Under S.21(4) a major medical or dental procedure is defined as:

•a medical or dental procedure that does not remove an immediate threat to the (represented) person's health and which is generally accepted by the medical profession or, as the case may be, dental profession, as being of a major nature•.

Specific treatment that is "major medical" is not defined in the Act aside from procedures relating to contraception or termination of pregnancy. "Major dental" is not defined.

In conjunction with the Royal Darwin Hospital, the Office of Adult Guardianship has developed a list of medical and dental procedures which could reasonably be considered major. It is by no means exhaustive, but provides useful examples if required. You can obtain a copy of this list by phoning the Disabled Persons Bureaux.

Emergency Procedures

It is important to note that the consent of the Court will not be required if emergency medical or dental treatment is required. An "emergency" situation is where there is imminent risk to the represented person's life, or health in the case of dental procedures, if the procedure is not performed.

The Nature of Informed (Medical) consent

Common law has long recognised the principle that every person has the right to have his/her bodily integrity protected against invasion by others and, as a general rule, medical treatment should not proceed unless the doctor has first obtained the patient's consent.

The Courts have determined the following elements to be necessary for valid consent:

1. The health care provider has an obligation to ensure that sufficient information is provided to her or his patient about the nature and consequences of the intended procedure to allow the patient to come to a reasoned decision.

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2. The patient must be mentally competent, that is, able to understand the nature and consequences of the procedure.

3. The consent must be freely given.

4. The consent must not be obtained through misrepresentation or fraud.

5. A person cannot consent to the performance of an illegal procedure.

6. While consent may be tacit or implied, express instructions override any such implied consent.

7. The consent must be in relation to the procedure actually performed, unless the patient's life or health is immediately endangered and it is impracticable to obtain the patient's consent.

As you will now understand, person's ability to consent to nature and type of procedure.

the overriding issue is one of a represented medical treatment, as much as it is about the

The Court currently holds the view that a registered practitioner should generally be able to give a professional opinion on the represented person's ability to give informed consent if the above guidelines are followed. When in doubt, the practitioner may refer the patient to a medical practitioner, clinical psychologist or psychiatrist.

Some difficulty surrounds consent to procedures which could be considered non therapeutic, that is, not necessary for the preservation of life or the safeguarding of endangered health, e.g. contraceptive procedures such as sterilization or hysterectomy. In these situations it is the ethical

responsibility of the medical practitioner to ensure that less restrictive alternatives, such as sex education or reversible forms of contraception, have been tried and have failed, before other irreversible contraceptive measures are considered.

You are advised to contact the Disabled Persons Bureaux for further advice if the proposed procedures deal with the above.

Practitioner's Report to the Court

Appendix I is a suggested format of the practitioner's report to the Court, to be modified according to the type of procedure proposed (i.e. dental or medical).

GENERAL APPLICATION PROCEDURES

Any person with a legitimate interest in the represented person may lodge an application under S.21. However once this occurs, a range of tasks have to be completed by the applicant, in order to bring the matter before the Court.

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1. Applications

standard application forms (lemon coloured) are available from the locations listed on the back page of this booklet. You are required to lodge the application (without fee) with the Clerk of the Local Court. The Clerk will list the application for hearing within 14 days after the day on which the application is lodged or as soon as possible thereafter (subject to the Court timetable). It is quite possible that the Clerk will be able to give you the hearing date straight away.

NOTE that once an application has been lodged, it must be heard by the Court.

2. Information Required by the Court

The person lodging the application will be required to muster all reports and representations that the Court will require for the hearing. This could include other medical reports or psychological assessment reports

(depending on advice given by the practitioner).

They will also need to satisfy the Court that the procedure proposed has been discussed with the represented person and the guardian (if the applicant and the guardian are not one and the same person) and where possible his or her consent obtained and wishes ascertained. They will also need to satisfy the Court that they believe the proposed procedure is in the best interests of the represented person.

3. How to Know What is Required?

The variety of information required will depend largely on the type of procedure proposed. Of major importance will be the practitioner's report to the Court, if the procedure is relatively straightforward supporting evidence may not be required (e.g. psychological assessments or social work reports). The practitioner will be able to advise here. If the procedure is of a non therapeutic nature or of a legal or morally contentious nature (e.g. procedures relating to contraception or termination of pregnancy) further advice will need to be sought from the Disabled Persons Bureaux.

You will need to ensure that all information essential to the hearing is with the Clerk of Court at least one day before the scheduled date of the hearing.

The applicant is obliged to attend the proceedings to discuss the reason for the application with the Magistrate, as well as organising the appearance in Court of the represented person and any other person or party who has a genuine interest or concern in the matter. Note that this will also include any report or representation that is in opposition to the proposed procedure.

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4. Attendance at the Hearing

(a) The Court will require the applicant to attend the hearing, to speak to the application.

(b) The Executive Officer of Adult Guardianship is required under the Act to attend.

(c) The practitioner may attend the hearing in support of the application if the practitioner decides the appearance would be in the best interest of the represented person.

(d) The represented person must be legally represented in Court. This is arranged by the Executive Officer.

(e) The represented person may choose to attend, however i t is not a requirement of the legislation, unless directed by the Court.

During the course of the hearing, if the Court decides that i t has insufficient information on which to base its decisions, it may adjourn to a later date. Under

s.

13(1) of the Act the Magistrate may demand any presence before the Court or any report it considers necessary to the hearing, in support of or in opposition to the application.

5. The Represented Person and the Court Hearing

The Act does not demand that the represented person attend Court, as there will be some instances where it may either be impractical or unnecessarily stressful, particularly in the case of profound disability. However, he or she is always legally represented.

Where the represented person wishes to attend Court they should be encouraged and given assistance to attend.

Moreover, the represented person may attend Court to exercise his right to give (or refuse) consent to treatment. The Court is always the determining body with applications lodged under s. 21, but will give effect to the represented person's wishes where they are deemed to be reasonable.

6. Role of the Office of Adult Guardianship

With consent applications the role of the Executive Officer is limited to:

Arranging legal repreE?entation at the proceedings person to ensure his/her civil rights are duly representation is not otherwise forthcoming;

for the upheld,

represented if private

arranging the service of verbal and written notice of the hearing upon the represented person;

attending the proceedings to assist with any enquiries that may be made in terms of the guardianship order previously made; and

ensuring the decisions of the Court are carried out in accordance with the order made.

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Where To Go From Here?

The Department of Health and Community Services has carriage of the Adult Guardianship Act in the Northern Territory. The Executive Officer of Adult Guardianship is the administrator of the Act, and has Territory-wide responsibilities. Although based in Darwin, the Executive Officer travels to the major regional centres on a regular basis.

If you need to know more about Adult Guardianship in the Northern Territory, information booklets are available from the services listed below. You are particularly advised to contact the Disabled Persons Bureaux in Darwin or Alice Springs where the application concerns procedures relating to contraception or termination of pregnancy. The Disabled Persons Bureaux will advise you on any aspects of the Act that require clarification or refer you to the Executive Officer of Adult Guardianship, if necessary.

Information booklets and application forms are available from the following locations:

Darwin Disabled Persons Bureau Tel: (089) 203 213

Local Courthouse 896 380

Katherine Community Information Centre 728 587

Palmerston Community Access Centre 323 944 Tennant Creek Community Health Centre 622 101

Alice Springs Disabled Persons Bureau 526 499 Community Health Centre 524 766

Nhulunbuy Community Health Centre 870 311

Groote Eylandt Community Health Centre 876 255

Hore specific advice can be obtained from the:- Disabled Persons Bureau

Shop 7

Casuarina Plaza Cnr Trower Road and

Vanderlin Drive CASUARINA NT 0811 Tel: (089) 203 213

Copies of the Act are available from:- Government Publications Centre

Smith Street Darwin NT 0811 Tel: (089) 897 152

Disabled Persons Bureau Helm House

Cnr G~egory Terrace and Bath Street

ALICE SPRINGS NT 0871

Tel: (089) 526 499

Alice Springs Access Centre Todd Mall

ALICE SPRINGS NT 0871 Tel: ( 089) 528 288

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Adult Guardianship Act

Practitioner's Report to the Court

APPENDIX I

(To be completed by the registered medical or dental practitioner who is proposing to perform the procedure. *Delete where applicable).

Name of (please pr int) . • . • • • . • • . . • • • • . . . • • . . . • . . • • . • . . . . • . • . represented person

Name of (please pr int) ...••••••••••••••••.••.•...••....•.•...••.

*medical/dental practitioner ••••••••.•.•••••..•..•..••..••••...••.••

Declare that I have examined the above-named represented person on

•• (date) •••• at ..•.. (place) ••• and consider that *she/he requires the following *medical/dental procedure(s).

Medically indicated reasons for the procedure(s):

The likely potential risks associated with the procedure(s) are:

Are further or consequential procedures envisaged? *Yes/No If yes, please specify: • • • • . • • . . . . • • . . . . • . . . • . • • . . • • . . • • . • . . . • • . •

The alternatives to performing the procedure(s) are:

In my opinion I consider the represented person is

*capable/incapable of giving informed consent to the procedure(s).

My reasons for this opinion are:

(a)

(b)

(c)

NOTE: If unable to express an opinion on the capacity of the represented person to give informed consent, a

separate opinion on that issue will need to be obtained from either another medical practitioner, or a clinical

psychologist or psychiatrist.

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DECLARATION

(1) I am not aware that the represented person has previously refused consent to any procedure referred to in this report.

(2) I believe that the represented person has had the risks and benefits of the outlined *medical/dental procedures explained to him/her, as well as any alternatives to the procedures proposed.

SIGNATURE: ••••••••••••••••••••••••••••

Professional Qualifications:

Address: •••••••••.••.•..••.••.•.•••.•.••