DEFINING A ‘CLOSE
FRIEND OR RELATIVE’
UNDERSTANDING THE
‘PERSON RESPONSIBLE’
Guidelines
Issued pursuant
to section 4(5) of
the Guardianship
and
Administration
Act 1995
Last Revised
10 October 2008
Guardianship and
Administration Board,
Tasmania
1
DEFINING A ‘CLOSE FRIEND OR RELATIVE’
UNDERSTANDING THE ‘PERSON RESPONSIBLE’
1. Why have a ‘person
responsible’ scheme?
2. The Legislation about
‘person responsible’
The ‘person responsible’ scheme in the Guardianship
and Administration Act 1995 creates a system whereby
a person whose disability impairs their ability to make
decisions for themselves regarding medical or dental
treatment may have that decision made on their behalf by
a person outside the treating team who will consider the
best interests of the person with a disability.
The role of a ‘person responsible’ was established by the
Guardianship and Administration Act 1995. The legal
authority of ‘persons responsible’ extends only to giving
consent to or refusing medical or dental treatment on
behalf of a person with a disability who is incapable of
giving consent to treatment.
In popular media and parlance, the role of the ‘person
responsible’ is usually referred to as ‘next-of-kin’. As
you will see below, actual kinship relationships may
be relevant but the category of possible ‘persons
responsible’ is much broader and places more reliance
upon closeness and continuity of contact than on family
relationships.
There are some circumstances where consent of a
‘person responsible’ is not needed, for example in
a medical emergency or where there is no ‘person
responsible’ for example where a person’s only human
contact is with paid carers.
The legislation is designed so that the person responsible
comes from a background of knowing the person’s
wishes and preferences about treatment where possible.
The person responsible essentially has to act like an
informed and articulate patient on the person’s behalf.
An informed and articulate patient will (i) ensure that
the diagnosis is correct and that all appropriate tests
and assessments have been carried out, (ii) assess the
full range of available treatments and the likelihood of
success of any suggested treatments, and (iii) look at
any side effects or risks associated with the proposed
treatment. Once these considerations are made, the
informed and articulate patient will sign a written consent
form or otherwise demonstrate consent.
A ‘person responsible’ has three extra duties because
they are acting on behalf of another: firstly to ensure that
the person’s wishes are communicated and adhered to
as much as possible and secondly to ensure that any
treatment is for the benefit of the person with a disability.
(Treatments that might not be for the benefit of the patient
might include participation in a clinical trial or being the
donor in a transplant operation.) Thirdly, the ‘person
responsible’ must sign their written consent so that there
is a proper record of the decisions made.
• A ‘person responsible’ is defined in section 4 of the
Act.
• The authority of a person responsible is set out in
section 39(1) of the Act.
• The responsibilities of a person responsible in
exercising that authority are set out in section 43 of
the Act.
3. Who decides who is the
‘person responsible’?
(i) A medical or dental practitioner giving
treatment
A medical or dental practitioner who is administering
treatment must satisfy him or herself that a person
who is giving consent on behalf of another is a ‘person
responsible.’
Except in cases of emergency, if a practitioner proceeds
to administer medical or dental treatment without proper
consent, he or she is, arguably, committing an assault.
Therefore making sure that consent is properly given
is first and foremost the responsibility of the treating
practitioner.
(ii) A person or organisation holding
medical records or information
Where a person with a disability lives in supported
accommodation (e.g. a group home, nursing home or
other supported accommodation facility) the organisation
usually holds certain medical and dental information
about their residents. Staff members and managers
of such facilities may be asked questions about their
resident’s medical or dental status by a third party.
Equally they may want to determine who to contact in
case of resident having a medical emergency or requiring
an important medical decision.
These guidelines
are issued pursuant
to section 4(5) of
the Guardianship
and Administration
Act 1995 (the Act).
Anita Smith, President
Date: 10 October 2008
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DEFINING A ‘CLOSE FRIEND OR RELATIVE’
UNDERSTANDING THE ‘PERSON RESPONSIBLE’
Such a request is caught between two important principles. Firstly,
a ‘person responsible’ must have access to all necessary medical
information when giving consent, so it is important that they be furnished
with such information upon request and that they maintain up to date
knowledge of the person. Secondly, medical information is particularly
sensitive information and a resident has a right to a high level of
confidentiality around medical information. Therefore, a responsible
organisation will ensure that medical or dental information is only
provided to members of the treating team (e.g. pharmacists, persons
administering medication, nurses, etc) or to the ‘person responsible’.
A person under 18 who has capacity
to understand the nature and effect
of proposed medical treatment or
The spouse of a person
under 18 years of age or
Secretary of DHHS for person
under a Care and Protection Order or
(iii) The Guardianship and Administration Board or
the person with a disability
When a person is appointed as a guardian they have authority as a
person responsible. Guardians may be appointed for an adult in two
ways. Firstly, the Guardianship and Administration Board may appoint a
guardian following a hearing of an application. Secondly, a person may
appoint an enduring guardian. Both types of guardian automatically
become the ‘person responsible.’
Parent
Diagram 1: Possible persons responsible for person under 18
Where there is a dispute about who is the ‘person responsible’ for
another person, or where a purported ‘person responsible’ is not acting
in accordance with their responsibilities, this may be resolved by the
Guardianship and Administration Board in determining an application for
guardianship or medical consent.
Hierarchy of ‘persons responsible’ - Over 18 years of Age: Certain
persons have priority as the ‘person responsible for a person with a
disability who is incapable of giving consent to treatment. In order of
priority these are:
4. The Hierarchy of Persons
Responsible
(a) Guardian4 – if there has been a guardian appointed (either by
order of the Board or under an Instrument Appointing an Enduring
Guardian) for a person with a disability who is incapable of giving
consent to treatment, then the guardian is the person responsible
Under 18 years of Age: For a single person under 18 years of age, his
or her parent is the person responsible1. The spouse of a person under
18 years of age will be his or her person responsible in preference to
their parents2. The Secretary of the Department of Health and Human
Services is the person responsible for a child under a care and protection
order3.
Where a young person, rebelling against his or her parents,
moves out of home and briefly lives with a sexual partner
there would be reason to question whether that person
would qualify as a ‘spouse’ with the requisite ‘continuing
relationship’. Presumably short term casual relationships
will not give authority to make long term medical decisions
on behalf of another, especially a young and, perhaps,
vulnerable person.
1
2
3
Section 4(1)(b) GAA
Section 4(1)(a) GAA
Section 4(2) GAA
Where a guardian has limited powers which do not include
health care, they are still likely to be a person responsible
because section 3 defines a ‘guardian’ as a ‘person named’
as opposed to a ‘person appointed’ which is the language
used elsewhere in the Act.
(b) Spouse5 – Where a person with a disability who is incapable
of giving consent to treatment is married, or in a significant
relationship within the meaning of the Significant Relationships Act
2003, then their spouse will be the person responsible. The spouse
will not qualify as person responsible if the spouse is a person
under guardianship6. The spouse must have a close and continuing
relationship.7
4
5
6
7
Section 4(1)(c)(i) GAA
Section 4(1)(c)(ii) GAA
Section 4(5)(a) GAA
Section 4(5)(a) GAA
3
DEFINING A ‘CLOSE FRIEND OR RELATIVE’
UNDERSTANDING THE ‘PERSON RESPONSIBLE’
A spouse who has separated but not divorced may still
qualify under this provision if he or she can establish that
the relationship continued to be close after separation.
(c) The person having the care of the other person8 – A carer
who provides domestic services and support for a person with
a disability, or who arranges for domestic services and support
qualifies next after a spouse as ‘person responsible.’ These
categories of care are not limited and may or may not be
remunerated positions.9 A care relationship is not interrupted only
because the person with a disability is admitted to a residential care
facility and the carer immediately prior to such residence being
taken up is still the person responsible.10
Although section 4(3) uses the words ‘otherwise than for
remuneration’ a person who receives remuneration for
providing domestic services and support is not excluded
from being a suitable ‘person responsible because the
subsection also uses the words ‘not limited to’ – meaning
that the role of person responsible is NOT limited in this
case to a carer who does not receive remuneration for the
care that they give.1
(d) A close friend or relative11 - The final category of persons from
which to select a ‘person responsible’ is the category of close
friends and relatives. ‘Closeness’ has two characteristics12: one is
the maintenance of a close personal relationship through frequent
personal contact. The other is having a personal interest in the
welfare of the person with a disability. A person is disqualified from
being a person responsible under this category if any services that
they provide for the person with a disability are remunerated.13
These guidelines set out how a person might evaluate
whether a person is a ‘close friend or relative’ of the person
with a disability. .2
8
9
10
11
12
13
Section 4(1)(c)(iii) GAA
Section 4(3) GAA
Section 4(4) GAA
Section 4(1)(c)(iv) GAA
Section 4(5)(b)
Section 4(5)(c)
1
2
3
4
5
A person over 18 who has capacity to
understand the nature and effect of
proposed medical treatment
Guardian
Spouse
Carer
Close Friend or relative
Diagram 2. Persons responsible for person over 18
5. A person is not a ‘close friend or
relative’ if:
• Any part of his or her relationship with the person with a disability is
remunerated (this does not include a person who receives a carer’s
pension)
• He or she is not in frequent personal contact with the person with a
disability
• He or she does not have a personal interest in the other person’s
welfare
• He or she is not capable of understanding the general nature and
effect of the proposed treatment
6. Examples of Close Friends or
Relatives:
• Maria is a 35 year old woman with an intellectual disability who has
lived in supported accommodation for 7 years. Her brother, Gilbert,
and his wife, Sally, accompany Maria on some shopping trips and
Sally attends all medical appointments with her. Gilbert and his
family always celebrate Maria’s birthday with her and she shares
Christmas with them most years. The Supported accommodation
facility have Gilbert recorded a ‘first contact’.
Gilbert or Sally may qualify as Maria’s ‘person responsible’ by
reason of their relationship as close friends or relatives.
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DEFINING A ‘CLOSE FRIEND OR RELATIVE’
UNDERSTANDING THE ‘PERSON RESPONSIBLE’
• Alexander is a 73 year old widower who has no children. His wife
had a daughter, Sandra, with whom Alexander has remained closed
since her mother’s death. She has noticed that Alexander has
recently experienced cognitive decline and she has been encouraging
him to take steps to appoint an enduring power of attorney and move
to a place where he will have support.
Sandra may qualify as Alexander’s ‘person responsible’ by reason
of her personal relationship with Alexander
• Keith and Robert have shared an enthusiasm for Tasmanian
herpetology (study of snakes) over many years. Together they have
run a small herpetology organisation in which they have held office
for decades. Keith is otherwise a loner and has no family. Keith has
lost consciousness after a snake bite.
Robert may establish that the frequency of their contact and
meetings over a long period of time and their consequent
personal friendship (as well as a lack of any closer friendships),
that he is person responsible. Robert would also be best placed
to understand the risks that Keith took in continuous handling
venomous snakes and his attitude to injuries sustained in that
activity.
• Eva is the elderly spinster aunt of Malcolm, Beatrice, and Bertram.
Due to their mother’s illness, she assisted in raising them. Beatrice
and Bertram visit her approximately once per year. Malcolm, who
lives closer, visits more frequently and when he does, he sometimes,
if allowed, undertakes practical tasks such as housecleaning and
rubbish removal. Eva refuses most help and any paid services to her
home and arranges her own appointments with doctors. Eva has
developed dementia.
Any of Malcolm, Beatrice, and Bertram might establish authority
as a ‘person responsible’ depending upon the circumstances.
However, if there was conflict between the 4, then the person who
visits most frequently and with whom Eva has the most contact
would have authority as the ‘person responsible’.
• Because of Eva’s (above) refusal to accept services, she eventually
needs to move to a nursing home. Malcolm arranges this. Eva
becomes paranoid and suspects Malcolm of moving her to a nursing
home “to get at her money”. She refuses to see him. Beatrice and
Bertram have retained the same visiting pattern as before, but Eva
believes they will soon save her from the nursing home. Malcolm
calls the nursing home every three days to check on Eva.
Malcolm still qualifies as the ‘person responsible’ in this scenario.
As he has the most contact, if there was conflict, he would be likely
to prevail as person responsible.
Conclusion
The role of the ‘person responsible’ was designed by Parliament
to assist medical service providers to obtain valid consent for
medical treatment when the person receiving the treatment has
a disability that impairs their ability to understand the nature and
effect of the treatment.
Being a ‘person responsible’ is an important task. However,
it is not always a simple matter of giving consent for simple
procedures or prescriptions. At times it can bring the ‘person
responsible’ into conflict with the person with a disability who
is receiving treatment. At times it can be conflicted when
the ‘person responsible’ decides a course of treatment that
other people find difficult to accept. In Tasmania, a ‘person
responsible’ has authority to refuse life-saving measures
and, obviously, decisions about end-of-life matters can be an
extremely difficult responsibility to bear on behalf of another
person. That is why it is important to be well-informed about
who is and is not a ‘person responsible’.
There may be circumstances where no ‘person responsible’
can be found. In those cases, a medical practitioner can either
proceed to treat by carefully observing the procedures set out in
section 41 of the Act (link) or by seeking direct consent from the
Guardianship and Administration Board. In some circumstances
it might be appropriate to apply to the Board for the appointment
of a guardian or an emergency guardian (link to guardianship
facts sheet).
If there is a serious dispute about who is the ‘person responsible’
or about the decisions that the ‘person responsible’ is making, it
is important to contact the Board’s Investigation and Liaison staff
to discuss whether an application to the Board is necessary. (link
to contact page)
Remember as far as possible to always consider (1) the wishes
of the person with a disability, (2) pursuing the alternative that
promotes his or her freedom of decision and action and (3)
pursuing the option that promotes his or her best interests.
View the legislation
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DEFINING A ‘CLOSE FRIEND OR RELATIVE’
UNDERSTANDING THE ‘PERSON RESPONSIBLE’
Part 6 Guardianship And Administration Act 1995
3. “medical or dental treatment” or “treatment” means –
(a) medical treatment (including any medical or surgical procedure,
operation or examination and any prophylactic, palliative or
rehabilitative care) normally carried out by, or under, the supervision
of a medical practitioner; or
(b) dental treatment (including any dental procedure, operation or
examination) normally carried out by or under the supervision of a
dentist; or
(c) any other act declared by the regulations to be medical or
dental treatment for the purposes of this Act –
but does not include –
(d) any non-intrusive examination made for diagnostic purposes
(including a visual examination of the mouth, throat, nasal cavity,
eyes or ears); or
(d) any other medical or dental treatment that is declared by the
regulations to be special treatment for the purposes of Part 6;
“tissue” includes an organ or part of a human body or substance
extracted from, or from a part of, the human body.
4. Meaning of “person responsible”
(1) In this Act, “person responsible” for another person means –
(a) where the other person is under the age of 18 years and has a
spouse, the spouse; or
(b) where the other person is under the age of 18 years and has no
spouse, his or her parent; or
(c) where the other person is of or over the age of 18 years, one of
the following persons, in order of priority:
(i) his or her guardian;
(ii) his or her spouse;
(iii) the person having the care of the other person;
(e) first-aid medical or dental treatment; or
(iv) a close friend or relative of the other person.
(f) the administration of a pharmaceutical drug for the purpose,
and in accordance with the dosage level, recommended in
the manufacturer’s instructions (if the drug is one for which
a prescription is not required and which is normally selfadministered); or
(2) If a person is under the guardianship of the Secretary of the department
administering the Children, Young Persons and Their Families Act 1997
pursuant to a care and protection order made under that Act, the Secretary
of that department is, notwithstanding subsection (1), taken to be the
person responsible for him or her.
(g) any other kind of treatment that is declared by the regulations
not to be medical or dental treatment for the purposes of this Act;
(3) The circumstances in which a person is to be regarded as having the
care of another person include, but are not limited to, the case where the
person, otherwise than for remuneration (whether from the other person
or any other source), regularly –
“non-regenerative tissue” means tissue that, after injury or removal,
is not replaced in the body of a living person by natural processes of
growth or repair;
“person responsible” has the meaning given by section 4;
“registered practitioner” means a person who is registered in
Tasmania either as a medical practitioner or a dental practitioner;
“special treatment” means –
(a) any treatment that is intended, or is reasonably likely, to have
the effect of rendering permanently infertile the person on whom it
is carried out; or
(b) termination of pregnancy; or
(c) any removal of non-regenerative tissue for the purposes of
transplantation; or
(a) provides domestic services and support to the other person; or
(b) arranges for the other person to be provided with domestic
services and support.
(4) A person who resides in a hospital, nursing home, group home,
boarding-house or hostel or any other similar facility at which he or she is
cared for by some other person is not, by reason only of that fact, taken
to be in the care of that other person and is taken to remain in the care
of the person in whose care he or she was immediately before residing
in the facility.
(5) For the purposes of this section –
(a) a reference to a spouse is to be read as a reference to a spouse
who is not under guardianship and with whom the relevant person
has a close and continuing relationship; and
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DEFINING A ‘CLOSE FRIEND OR RELATIVE’
UNDERSTANDING THE ‘PERSON RESPONSIBLE’
(b) a person is taken to be a close friend or relative of another person
if the person maintains both a close personal relationship with the
other person through frequent personal contact and a personal
interest in the other person’s welfare; and
(c) a person is taken not to be a close friend or relative if the person
is receiving remuneration (whether from the person or some other
source) for any services that he or she performs for the other person
in relation to the person’s care; and
(d) a reference to remuneration is to be read as not including a
reference to a carer’s pension; and
(e) the President may issue guidelines, not inconsistent with this
section, specifying the circumstances in which a person is to be
regarded as a close friend or relative of another person.
PART 6 - Consent to Medical and Dental Treatment
Division 1 - Preliminary
36. Application of Part 6
(1) This Part applies to a person with a disability who is incapable
of giving consent to the carrying out of medical or dental treatment,
whether or not the person is a represented person.
(2) For the purposes of subsection (1), a person is incapable of giving
consent to the carrying out of medical or dental treatment if the person –
(a) is incapable of understanding the general nature and effect of
the proposed treatment; or
(b) is incapable of indicating whether or not he or she consents or
does not consent to the carrying out of the treatment.
37. Part 6 to prevail over Criminal Code
(2) A person who contravenes subsection (1) by carrying out special
treatment is guilty of a crime and is liable to punishment on indictment
under the Criminal Code accordingly.
(3) A person who contravenes subsection (1) by carrying out any
treatment other than special treatment is guilty of an offence and is liable
on summary conviction to imprisonment for a period not exceeding one
year or to a fine not exceeding 10 penalty units, or both.
39. Persons authorized to consent to medical or dental treatment
(1) Consent to the carrying out of medical or dental treatment on a
person to whom this Part applies may be given by the Board or, if the
medical treatment or dental treatment is not special treatment, by the
person responsible for that person.
(2) The guardian of a person to whom this Part applies may also
consent to the carrying out of, or continuing, special treatment if the
Board has previously given consent to the carrying out of, or continuing,
that treatment and has authorized the guardian to give consent to the
continuation of that treatment or to further treatment of a similar nature.
(3) Where a consent to medical or dental treatment has been given by
a person who is not authorized to give that consent under this section,
the consent may be taken as valid if the person providing the medical
or dental treatment did not know that the person giving the consent was
not authorized to do so or reasonably believed that the person giving the
consent was authorized to do so.
40. Urgent medical or dental treatment
Medical or dental treatment may be carried out on a person to whom this
Part applies without consent given in accordance with this Division if the
medical practitioner or dentist carrying out or supervising the treatment
considers the treatment is necessary, as a matter of urgency –
This Part has effect notwithstanding section 51 of the Criminal Code.
(a) to save the person’s life; or
Division 2 - Medical and dental treatment
(b) to prevent serious damage to the person’s health; or
38. Unlawful medical or dental treatment
(1) A person must not carry out medical or dental treatment on a person
to whom this Part applies unless –
(a) consent for the treatment has been given in accordance with
this Part; or
(b) the carrying out of the treatment is authorized by this Part
without any such consent.
(c) except in the case of special treatment, to prevent the person
from suffering or continuing to suffer significant pain or distress.
41. Medical or dental treatment without consent
(1) Where –
(a) it is proposed to carry out any medical or dental treatment
which is not special treatment on a person to whom this Part
applies; and
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DEFINING A ‘CLOSE FRIEND OR RELATIVE’
UNDERSTANDING THE ‘PERSON RESPONSIBLE’
(b) there is no person responsible for that person; and
(c) the treatment is necessary and is the form of treatment that will
most successfully promote that person’s health and well-being;
and
(d) that person does not object to the carrying out of the treatment
(b) the consequences to that person if the proposed treatment is
not carried out; and
(c) any alternative treatment available to that person; and
(d) the nature and degree of any significant risks associated with
the proposed treatment or any alternative treatment; and
it is lawful, subject to subsection (2), for the medical or dental treatment
to be carried out on that person without consent under this Division.
(e) that the treatment is to be carried out only to promote and
maintain the health and wellbeing of that person; and
(2) The regulations may provide that in such cases as are specified in
the regulations medical or dental treatment may not be carried out on a
person to whom this Part applies without consent under this Division.
(f) any other matters prescribed by the regulations.
44. Applications for consent of Board
(3) A medical practitioner or dentist who carries out or supervises any
medical or dental treatment under subsection (1) without the consent
of the relevant person must certify in the clinical records relating to the
treatment that –
(1) An application for the consent of the Board to the carrying out of any
medical or dental treatment on a person to whom this Part applies may
be made by any person who the Board is satisfied has a proper interest
in the matter.
(a) the treatment is necessary and is the form of treatment that will
most successfully promote that person’s health and wellbeing; and
(b) the person does not object to the carrying out of the treatment.
(2) The application –
(a) is to be in writing; and
42. Unlawful consent to medical or dental treatment
(b) is to be lodged with the registrar; and
A person who is not authorized to give consent to medical or dental
treatment for a person to whom this Part applies but purports to give
any such consent, or represents to a registered practitioner that he or
she has the power to consent, is guilty of an offence and is liable on
summary conviction to a fine not exceeding 20 penalty units.
(c) is to contain the prescribed information.
43. Consent by persons responsible
(1) A person responsible for a person to whom this Part applies may
consent to the carrying out of medical or dental treatment which is not
special treatment if he or she is satisfied that –
(a) the relevant person is incapable of giving consent; and
(b) the medical or dental treatment would be in the best interests
of that person.
(2) For the purposes of determining whether any medical or dental
treatment would be in the best interests of a person to whom this Part
applies, matters to be taken into account by the person responsible
include –
(a) the wishes of that person, so far as they can be ascertained;
and
(3) The Board may issue and make available to members of the public
guidelines specifying situations in which applications under subsection
(1) should be made to the Board for its consent to medical or dental
treatment.
(4) Where the application is made for consent to the carrying out of
medical or dental treatment and the treatment cannot be carried out
without that consent, the Board may, by order –
(a) direct the person who is to carry out the treatment not to start
the treatment; or
(b) if the treatment has already started, direct the person who is
carrying out the treatment to discontinue it –
until the Board has determined the application.
(5) A person who, without lawful excuse, fails to comply with an order
under subsection (4) is guilty of an offence and is liable on summary
conviction to a fine not exceeding 20 penalty units or to imprisonment for
a term not exceeding 1 year, or both.
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DEFINING A ‘CLOSE FRIEND OR RELATIVE’
UNDERSTANDING THE ‘PERSON RESPONSIBLE’
45. Consent of Board
(1) On hearing an application for its consent to the carrying out of
medical or dental treatment the Board may consent to the carrying out of
the medical or dental treatment if it is satisfied that –
46. Consent to continuing or further special treatment by guardian
with authority of Board
(1) The Board may, in giving consent to the carrying out of special
treatment on a person to whom this Part applies, confer on the guardian
of the person authority to consent –
(a) the medical or dental treatment is otherwise lawful; and
(a) to the continuation of the treatment; or
(b) that person is incapable of giving consent; and
(c) the medical or dental treatment would be in the best interests
of that person.
(2) For the purposes of determining whether any medical or dental
treatment would be in the best interests of a person to whom this Part
applies, matters to be taken into account by the Board include –
(b) to the carrying out on the person of further special treatment of
a similar nature.
(2) The Board may confer the authority only at the request, or with the
consent, of the guardian.
(3) The Board may –
(a) the wishes of that person, so far as they can be ascertained;
and
(a) impose conditions or give directions as to the exercise of the
authority; or
(b) the consequences to that person if the proposed treatment is
not carried out; and
(b) revoke the authority.
(c) any alternative treatment available to that person; and
(d) whether the proposed treatment can be postponed on the
ground that better treatment may become available and whether
that person is likely to become capable of consenting to the
treatment; and
(e) in the case of transplantation of tissue, the relationship between
the 2 persons concerned; and
(f) any other matters prescribed by the regulations.
(3) Subject to subsection (4), a decision of the Board to give its consent
to medical or dental treatment has no effect until the period of appeal
under section 76 has expired or, if an appeal has been instituted, it is set
aside, withdrawn or dismissed.
(4) If –
(a) an application for the consent of the Board for the carrying out
of medical or dental treatment on a person has been made under
section 44; and
(b) the Board considers that the treatment is urgent –
the Board may give its consent for the treatment to be carried out
immediately.
(4) If the guardian has authority under this section, a person may request
his or her consent to the carrying out of the relevant treatment.
Division 2A - Power to make guardianship order or
administration order
46A. Power to make guardianship order or administration order
At the hearing of an application under this Part for the consent of the
Board to the carrying out of medical or dental treatment on a person, the
Board, in addition to giving or refusing that consent, may make under
section 65 a guardianship order or an administration order, or both, if
satisfied of the matters specified in section 20(1) or section 51, or both
those sections.
Division 3 - General
47. Effect of consent
A consent given under this Part in respect of the carrying out of medical
or dental treatment on a person to whom this Part applies has effect as
if –
(a) that person had been capable of giving consent to the carrying
out of the treatment; and
(b) the treatment had been carried out with that person’s consent.
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DEFINING A ‘CLOSE FRIEND OR RELATIVE’
UNDERSTANDING THE ‘PERSON RESPONSIBLE’
48. Preservation of liability
Nothing in this Part relieves a person from liability in respect of the
carrying out of medical or dental treatment on a person to whom this
Part applies, where that person would have been subject to that liability
if –
(a) that person had been capable of giving consent to the carrying
out of the treatment; and
(2) If, on an application under this section and after a hearing in
accordance with Part 10 of the Guardianship and Administration Act
1995, the Board is satisfied that –
(a) a person has a mental illness that is amenable to medical
treatment; and
(b) a medical practitioner has recommended medical treatment for
the illness but the person has refused or failed, or is likely to refuse
or fail, to undergo the treatment; and
(b) the treatment had been carried out with that person’s consent.
48A. Saving for rights under other laws
(c) the person should be given the treatment in his or her own
interests or for the protection of others –
Nothing in this Part is taken to affect any rights conferred by any other
law to consent to, or to refuse to consent to, medical or dental treatment.
the Board may make an order authorising the giving of medical
treatment for a period specified in the order.
Mental Health Act 1996
3. “Board” means the Guardianship and Administration Board
established under the Guardianship and Administration Act 1995;
31. Treatment of patients generally
Medical treatment may be administered to a patient –
(a) with the patient’s informed consent; or
(b) if the treatment is authorised by or under the Guardianship and
Administration Act 1995.
32. Medical treatment for patients who refuse treatment
(1) In this section –
“medical treatment” does not include –
(a) any treatment that is intended, or is reasonably likely, to have
the effect of rendering permanently infertile the person on whom it
is carried out; or
(b) termination of pregnancy; or
(c) any removal of non-regenerative tissue for the purposes of
transplantation; or
(d) any other medical or dental treatment that is declared by
regulations in force under the Guardianship and Administration Act
1995 to be special treatment for the purposes of Part 6 of that Act;
“non-regenerative tissue” means tissue that, after injury or removal,
is not replaced in the body of a living person by natural processes of
growth or repair.
(3) Medical treatment may be given pursuant to an order under this
section notwithstanding the absence or refusal of consent to the
treatment.