Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.


 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate

Subscribe!
Subscribe





On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.
___________

Syndicate
RSS/XML


RSS 2.0

Life and death decisions

By David Heckendorf - posted Tuesday, 26 August 2008


A third problem, and again for the protected person, is that the health professional has discretion as to who he or she appoints as a Health Attorney. This is a concern because health professionals have moral and religious codes, which may not necessarily coincide with those of the protected person.

Indeed, included in the Bill is an example of a person who the legislative drafters consider to be an unsuitable Health Attorney. This is because hearsay has it that the potential Health Attorney (the protected person’s mother) is being subjected to the undue influence of a third person who is unrelated to the protected person and who is misguided on the dangers of infections caused by the used of blood products. The case study is cited to illustrate a situation in which the health professional may choose not to appoint a particular person as a Health Attorney. However, the case study also illustrates how some decisions regarding who to appoint as a Health Attorney can be highly complex and beyond the health professional’s training, expertise and resources to resolve in stressful situations.

A fourth concern for the protected person is that health professionals are protected from liability from their decision to appoint a Health Attorney and the Health Attorney is also protected from liability for giving informed consent on behalf of the protected person. While this protection only covers decisions made in good faith, we will need to wait to see how the courts interpret good faith in this context.

Advertisement

“Unintended consequences” is the third category of concern. This Bill is principally targeted to patients who may be unconscious for a relative short time, perhaps following a serious accident. If enacted, however, the Bill will capture people with a range of cognitive disabilities. I suggest that there are practical and theoretical concerns with the proposed amendment for people with disabilities.

It is understandable that a parent of an adult with an intellectual disability may be distressed at being told that he/she is unauthorised to make medical decisions on behalf of his/her son/daughter. While most parents are probably well-intentioned and would do the best for his/her adult son/daughter, it is generally good practice for the guardianship arrangements to be formalised. This protects the parent from allegations of inappropriate decision-making and ensures that a range of decisions can be made in a timely manner.

These decisions may be broader then medical decisions, e.g. financial and lifestyle. I suggest, however, that the proposed Health Attorney law will subtract from the seriousness of the decision to appoint a guardian because medical decisions will be able to be taken on an on-going basis by an ad hoc process of using Health Attorneys.

Further, without the continuity of having medical decisions made by one guardian, the protected person’s health care needs might not be addressed in a systematic and holistic manner.

I suggest too that a duly appointed guardian should work to understand the protected person’s likes and dislikes, views and opinions and empower the protected person through involving them as much as possible in the decision making process. This is less likely to happen if decisions are made ad hoc under the Health Attorney law.

From the perspective of a person with a disability, the Bill also poses a more worrying move for people with disability. There has been a long history of disability being understood as a medical problem. To illustrate this misunderstanding, few people would consider the need to wear eye-glasses as a medical problem even though such need could be explained in medical terms. Fewer people would say that optometrists should make a hold range of lifestyle decisions on behalf of people who wear glasses simply for that fact. Yet, such decisions for people with disabilities have largely centred around their disabilities and have been made by either the medical profession or the extension of the health care system. The Bill, if enacted, will invest yet again power into the medical profession. This will reinforce the stereotyping that disability is a health issue at a time when we should be emphasising that people with disabilities need to have their human rights protected by appropriate safeguards and proceedings.

Advertisement

The Bill’s Explanatory Statement states that the proposed amendments will be consistent with sections 10(2) and 28 of the Human Rights Act 2004 (ACT) and the United Nations’ Convention on the Rights of Persons with a Disability. This analysis of the Bill leads to a conclusion of that this consistency is superficial.

Supporters of the proposed law may suggest it will merely codify the current customary practices and will parallel the Victorian legislation that has been in operation to a number of years.

While I have the greatest respect for health professionals and the medical profession, I am unconvinced that the current practices necessarily always benefit the patient and ensures that medical decisions are made in accordance with what is likely to be his/her wishes.

I suggest that the proposed Health Attorney law has the potential to leave already vulnerable people even more vulnerable by establishing an alternative decision making process which circumnavigates the procedural safeguards of the pre-existing Public Advocate and Guardianship systems.

  1. Pages:
  2. 1
  3. Page 2
  4. All


Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

Share this:
reddit this reddit thisbookmark with del.icio.us Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

David Heckendorf has profound Cerebral Palsy, which affects his physical ability to care for himself. Notwithstanding these limitations he holds a Masters of Laws Degree from the Australian National University and has in excess of a decade employment experience within the Australian and ACT Public Service. The opinions he expresses are his own.

Other articles by this Author

All articles by David Heckendorf

Creative Commons LicenseThis work is licensed under a Creative Commons License.

Article Tools
Comment Comments
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy