The ACT Legislative Assembly is currently considering the Guardianship and Management of Property Amendment Bill 2008 (the Bill), which, if enacted, will amend the Guardianship and Management of Property Act 1991 (ACT).
This amendment, if enacted, will enable health professionals (i.e. doctors and dentists) to accept the informed consent of another person (a Health Attorney) on the behalf of a patient. The health professional will be able to rely upon this proposed law where the patient is in the health professional’s care and, in the health professional’s opinion, is incapable of giving informed consent to medical treatment, and does not already have an enduring power of attorney or legally appointed guardian.
The proposed law will identify a class of people as “Health Attorneys” and sets out a process for the health professional to follow to prioritise the ready available Health Attorneys. Effectively, the proposed laws will guide the health professional in his/her deliberations on whom to appoint to make medical decisions or to give informed consent on behalf of the patient (the “protected person”).
The proposed amendment will not change the law in relation to when informed consent is required (i.e. not in emergencies) or the legal effect of consent being given by the patient’s enduring power of attorney or legally appointed guardian, or by the Public Advocate or a tribunal or court. Rather, it will establish an additional legal authority that may give consent: the Health Attorney.
Currently, family members and close friends can, quite understandably, become very distressed at being denied the opportunity to make medical treatment decisions on their son, daughter, parent or friend’s behalf without first having been duly appointed as an attorney pursuant to an enduring power of attorney or a guardian. It may, indeed, seem counterintuitive to not rely upon the judgments of those who best know the protected person to make decisions in line with what the person’s views and values.
Whether it was intended or not, a side effect of the proposed amendment will be to relieve the demands upon the Public Advocate to take responsibility for the giving of informed consent except where the health professional feels that there is no suitable Health Attorney available; there is disagreement among potential Health Attorneys; or the medical treatment is likely to extend beyond six months.
There are, I would suggest, a number of significant concerns with the Bill. These concerns fall loosely into three main categories: theoretical, practical and unintended consequences.
In the theoretical category, the recognition of the Health Attorney as an alternative decision maker circumnavigates the procedural safeguards inherent to the roles of the Public Advocate, the guardianship tribunal and the court.
Unlike the independence and the objectivity of the Public Advocate, a Health Attorney is likely to be very emotionally involved and this could work against the best interests of the protected person. Unlike the appointment of the patient’s enduring power of attorney or legally appointed guardian, the appointment of a Health Attorney is not made independently from the decision whether to or how to treat the protected person. This will result in a perceived conflict of interest as the health professional who is ethical and, perhaps, contractually bound to treat the protected person, is also responsible for deciding who to appoint as the Health Attorney.
Further, unlike the appointment the patient’s enduring power of attorney or legally appointed guardian, which can occur at a time prior to the need to make a decision about treatment, the Health Attorney, by contrast, is appointed independent of the protected person’s wishes.
The practical problems with the proposed Health Attorney concept include adding yet another responsibility on to the shoulders of already very busy health professionals. For instance, in considering who is best able to represent the views of the protected person, the health professional will be required (i.e. “must”) consider the potential Health Attorneys for the protected person in the priority order: first, the protected person’s domestic partner; second, a non-paid carer for the protected person; and third, a close relative or close friend of the protected person.
A second practical problem, but for the protected person, is that the health professional, in considering who to appoint as the Health Attorney, need not chase down a person who is not reasonably readily available. This could be a real concern where the protected person and his/her local family are not on speaking terms. It may also be a concern where the protected person’s marriage or domestic relationship is starting to breakdown.