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Guardianship and Administration (Further
Amendment) Bill
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill amends the Guardianship and Administration Act 1986 ("the
Principal Act") regarding consent to medical research procedures and other
minor and technical amendments to improve the operation of the Principal
Act. This Bill also makes consequential amendments to the Mental Health
Act 1986.
Clause Notes
PART 1--PRELIMINARY
Clause 1 states the purposes of the Bill.
Clause 2 provides for the commencement of the provisions of the Bill.
It will come into operation upon proclamation or 1 November
2006, whichever is the earlier date.
Clause 3 provides that the Guardianship and Administration Act 1986
is called the Principal Act in this Bill.
PART 2--MEDICAL RESEARCH PROCEDURES
This part contains a series of amendments designed to establish a
new regime to govern the carrying out of medical research
procedures on a person who is incapable of consenting to the
procedure. Clauses 4 to 7 generally make amendments
consequent upon this change, which principally arise as a result
of medical research procedures no longer being a form of
"special procedure" but being regulated separately under new
Division 6 of Part 4A.
1
551347 BILL LA INTRODUCTION 15/11/2005
Clause 9 inserts new Division 6 in Part 4A of the Principal Act
which will apply to medical research procedures, in conjunction
with other relevant provisions in Part 4A. Under the proposals, a
registered practitioner considering whether a medical research
procedure is authorised under the Principal Act would generally
need to consider the following--
· Has the relevant human research ethics committee
approved the relevant research project?
· If so, the next stage is to consider whether any one of
the following applies--
· Is the medical research procedure required as a
matter of urgency to save the patient's life or
prevent serious damage to the patient's health?
If so, the procedure may be performed under
section 42A.
· If section 42A does not apply, is the patient
likely to be capable of consenting within a
reasonable time? If so, the practitioner should
wait and seek the patient's consent (new
section 42R).
· If this is not the case, is there a "person
responsible" (ie: a medical treatment agent,
guardian, enduring guardian or next of kin)
available who can consider whether to consent
on behalf of the patient? If so, then consent can
be sought from the person responsible under the
new section 42S.
· If none of these apply, the procedure may be
authorised under new section 42T if the criteria
in that section are satisfied.
2
Clause 4 Sub-clause (1) inserts definitions into the Principal Act that are
relevant to the new provisions governing medical research
procedures.
Paragraph (a)--
· defines "human research ethics committee" to include a
human research ethics committee established in
accordance with the National Statement on Ethical
Conduct in Research Involving Humans, which in turn
is defined. The definition of "human research ethics
committee" also includes an ethics committee
established under the by-laws of a public hospital,
public health service, denominational hospital or multi-
purpose service;
· defines "medical research procedure" to include a
procedure carried out for the purposes of medical
research, including (as part of a clinical trial) the
administration of medication or the use of equipment or
a device. Specific non-intrusive examinations,
observations, surveys and the collection of information
including personal or health information are not
"medical research procedures" for the purposes of the
Principal Act so the requirements of Division 6 of
Part 4A will not apply to these activities;
· defines "relevant research project" as the research
project for the purposes of which the medical research
procedure is to be carried out;
· defines "relevant human research ethics committee" for
a medical research procedure as the research ethics
committee responsible for approving the relevant
research project;
· defines "working day" to exclude weekends and public
holidays. This affects the time within which a
certificate issued under new section 42T(3) must be
forwarded to the Public Advocate and the relevant
human research ethics committee under new
section 42T(5).
3
Paragraph (b) provides that "a medical research procedure" is not
"medical or dental treatment" and paragraph (c) repeals the
reference to "any procedure carried out for the purposes of
medical research" from the definition of "special procedure".
These amendments are required because procedures for the
purpose of medical research are no longer one type of special
procedure, but are regulated separately in new Division 6 of
Part 4A.
Sub-clause (2) repeals section 3(3) of the Principal Act because
new Division 6 of Part 4A will include requirements relating to
obtaining authorisation or approval for the carrying out of any
medical research.
Sub-clause (3) substitutes section 4(1)(f) of the Principal Act so
that an object of that Act will be to provide for consent to special
procedures and medical research procedures (in addition to
medical and dental treatment as currently appears in section
4(1)(f)) on behalf of persons incapable of giving consent to those
procedures or treatment.
Clause 5 includes among the powers and duties of the Public Advocate the
power to make recommendations to the Victorian Civil and
Administrative Tribunal with respect to guidelines proposed to be
issued about consent to a medical research procedure under
Part 4A.
Clause 6 inserts references to a "medical research procedure" where
relevant throughout Part 4A of the Principal Act so that certain
provisions that currently apply to procedures for the purpose of
medical research (as a form of special procedure) will continue to
apply to medical research procedures regulated by Division 6 of
that Part.
Sub-clause (1)(a) ensures that the definition of "patient" includes
an adult who is incapable of giving consent to a medical research
procedure.
Sub-clause (1)(b) clarifies that, for the purposes of a "proposed
medical research procedure", the relevant "person responsible" is
the first person listed in section 37 of the Principal Act who is
responsible for the patient and who, in the circumstances, is
reasonably available and willing and able to make a decision
under Part 4A. Section 37 provides that if a person is not
reasonably available or is not willing and able to make a decision
under Part 4A, that person is not a "person responsible" for the
purpose of Part 4A.
4
Sub-clause (2) inserts a new sub-section (7) into section 37 of the
Principal Act so that, if a patient is likely to be capable of giving
consent to the carrying out of a medical research procedure, but
not within a reasonable time as determined in accordance with
new section 42R(2), and objects to a relative being involved in
decisions about medical research procedures that may be
performed on the patient, that relative is excluded from the
definition of a "nearest relative" for the purposes of Division 6 of
Part 4A. A "nearest relative" is the last category in the hierarchy
of people eligible to be "persons responsible" pursuant to section
37(1) of the Principal Act. (Note that if a patient is likely to be
capable of giving consent within a reasonable time, then the
procedure is not authorised under Division 6 of Part 4A, so the
question of who is a person responsible does not arise in the
context of providing consent to a medical research procedure,
although it may continue to be relevant in the context of a special
procedure or medical or dental treatment, under section 37(6)).
Sub-clause (3) inserts a new section 39(2), which explains that
new Division 6 of Part 4A contains provisions for the giving of
consent in relation to the carrying out of a medical research
procedure on a patient. (Division 4 of that Part applies to consent
in relation to special procedures and Division 5 of that Part
applies to consent in relation to medical and dental treatment).
Sub-clause (4)(a) applies section 40 of the Principal Act to
medical research procedures so that consent to a medical research
procedure on a patient given in accordance with Part 4A has
effect as if it were given by a person who had capacity to
consent.
Sub-clause (4)(b) applies section 41 of the Principal Act to
medical research procedures so that a registered practitioner
must not carry out any medical research procedure which is
medical treatment within the meaning of the Medical Treatment
Act 1988, including any emergency treatment, if a refusal in
relation to that treatment is in force in accordance with that Act.
This is reiterated in new section 42P(5). This is consistent with
the current operation of section 41 of the Principal Act--a special
procedure cannot be performed when such a refusal is in force.
This new provision recognises that, whilst a procedure may be
regulated under the new Division 6 of Part 4A because it is
carried out for the purposes of medical research as part of a
research project, such a procedure may constitute a form of
treatment and a refusal of this treatment under the Medical
Treatment Act 1988 relating to such a procedure should be
respected.
5
Sub-clause (4)(c) applies section 42(a) of the Principal Act to
medical research procedures so that a person who is not
authorised to give consent must not purport to give consent to a
medical research procedure on behalf of a patient or represent
that he or she is authorised to give such consent, knowingly and
without reasonable grounds. The maximum penalty is 20 penalty
units.
Sub-clause (4)(d) applies section 42A(1) of the Principal Act to
medical research procedures so that a registered practitioner may
carry out or supervise the carrying out of a medical research
procedure on a patient without consent under Part 4A or
authorisation under section 42T if the practitioner believes on
reasonable grounds that the procedure is necessary as a matter of
urgency to save the patient's life, prevent serious damage to the
patient's health or prevent the patient from suffering or
continuing to suffer significant pain or distress.
Sub-clause (4)(e) applies section 42A(2) of the Principal Act to
medical research procedures so that a registered practitioner who,
in good faith, carries out or supervises the carrying out of a
medical research procedure on a patient in the belief on
reasonable grounds that sections 42A(1) and 42Q have been
complied with, is not guilty of assault, battery, professional
misconduct, is not liable in any civil proceedings for assault or
battery and is not guilty of an offence against section 42G(1) or
new section 42Y(1). New section 42Y(1) prohibits the carrying
out or supervision of a medical research procedure on a patient
without the required consent or procedural authorisation or other
authorisation by law.
New section 42Q(2) and (3) provide that a medical research
procedure cannot be carried out on a patient if the relevant
research project has not been approved by the relevant human
research ethics committee and the procedure must be carried out
in accordance with the relevant approval for that procedure.
This requirement applies to research conducted under
section 42A.
New section 42P(3) provides that the requirements to seek
consent or authorisation (as set out in new sections 42R, 42S
and 42T) do not apply to the carrying out of a medical research
procedure under section 42A.
6
Clause 7 substitutes a new section 42E in the Principal Act to exclude
"procedures to be carried out for the purposes of medical
research" from the matters to which the Victorian Civil and
Administrative Tribunal may give consent, because consent to
medical research procedures is now covered by new Division 6
of Part 4A. Section 42E will continue to apply to special
procedures.
Clause 8 Sub-clause (1) increases the maximum penalty for the existing
offence of performing a special procedure without the required
consent from the Victorian Civil and Administrative Tribunal
or from a person responsible with authority to consent.
The maximum penalty will increase from the general penalty
(20 penalty units as provided in section 80 of the Principal Act)
to imprisonment for 2 years or 240 penalty units or both.
The defence in section 42G(2) of the Principal Act applies to
an offence committed under section 42G(1).
Sub-clause (2) inserts a new sub-section (7) into section 42N of
the Principal Act so that section 42N does not apply to medical
research procedures, because new sections 42V, 42W and 42X
provide for the Tribunal's jurisdiction in relation to medical
research procedures.
Clause 9 inserts new Division 6 into Part 4A of the Principal Act.
New section 42P introduces and outlines new Division 6.
Sub-section (1) explains that Division 6 contains provisions for
the carrying out of a medical research procedure on a patient, and
notes that "patient" is defined in section 36.
Sub-section (2) explains that Division 6 provides a 4 step process
for authorising the carrying out of a medical research procedure
on a patient and sets out the ways in which consent may be
sought or the procedure authorised.
Sub-section (3) provides that the requirements to seek consent or
authorisation (as set out in new sections 42R, 42S and 42T) do
not apply to the carrying out of a medical research procedure
under section 42A.
Sub-section (4) lists other features of new Division 6 including
the jurisdiction of the Victorian Civil and Administrative
Tribunal, offences for failure to comply with Division 6 and
protections for registered practitioners who comply with the
Division.
7
Sub-section (5) provides that new Division 6 is subject to
section 41 of the Principal Act, which prohibits the carrying out
of medical treatment if a refusal of that treatment is in force
under the Medical Treatment Act 1988.
New section 42Q sets out the requirement to obtain ethics
committee approval for a relevant research project.
Sub-section (1) clarifies that the first step is to determine whether
the project has been approved by the relevant human research
ethics committee.
Sub-section (2) prohibits the carrying out of a medical research
procedure on a patient if the project has not been approved by the
relevant human research ethics committee. Contravention is an
offence under new section 42Y(3).
Sub-section (3) provides that a medical research procedure must
be carried out in accordance with the relevant human research
ethics committee approval including any conditions of approval
that relate to the medical research procedure. The general
penalty in section 80 of the Principal Act (maximum 20 penalty
units) applies to contravention of this provision.
New section 42R ensures that the patient's autonomy is protected
wherever possible in the context of medical research procedures.
Sub-section (1) explains that after determining whether the
research project has approval from the relevant ethics committee,
the practitioner must determine whether the patient is likely to be
capable within a reasonable time, of giving consent to the
carrying out of a medical research procedure.
Sub-section (2) explains what a reasonable time is, by reference
to circumstances specific to the patient.
Sub-section (3) prohibits a registered practitioner from carrying
out or supervising the carrying out of a medical research
procedure relying upon consent provided by a person responsible
or procedural authorisation, if the patient is likely to be capable,
within a reasonable time, of giving consent to the carrying out of
a medical research procedure. Contravention of this section is an
offence under new section 42Y(1). If the patient is likely to be
capable, within a reasonable time, of consenting to a medical
research procedure, the patient's own consent must be sought
unless it is a medical emergency and section 42A applies.
8
Sub-section (4) provides authority to a registered practitioner to
carry out, or supervise the carrying out of, a medical research
procedure on a patient relying upon consent provided by a person
responsible or procedural authorisation, if the patient is not likely
to be capable, within a reasonable time, of giving consent to the
carrying out of a medical research procedure.
Sub-section (5) requires the registered practitioner to state in the
patient's clinical records his or her belief that at the time of the
procedure, the patient is or was not likely to be capable of giving
consent within a reasonable time and the reason for that belief
before (or as soon as practicable after) carrying out or
supervising a medical research procedure on the patient.
New section 42S relates to seeking consent from the person
responsible for the patient to the carrying out of a medical
research procedure, in cases where the patient is unlikely to be
capable of consenting within a reasonable time.
Sub-section (1) provides that, after ensuring the research project
has the approval of the relevant ethics committee and ensuring
compliance with new section 42R, the next step is to seek the
consent of the person responsible for the patient to the carrying
out of the medical research procedure on the patient.
New section 42R(3) provides that, if a patient is likely to be
capable, within a reasonable time, of giving consent to the
carrying out of a medical research procedure, the procedure
cannot be performed under the authority of new section 42S.
The procedure must wait until the patient's own consent can be
sought (unless it is a medical emergency and section 42A
applies).
Sub-section (2) authorises a person responsible to consent to
the carrying out of a medical research procedure on the patient.
The definition of "person responsible" is found in section 37 of
the Principal Act and has the effect that if a person (listed highest
in the hierarchy of people who may be a person responsible) is
not willing or able to make a decision under Part 4A of the
Principal Act, then the person is not a "person responsible".
Sub-section (3) provides that a person responsible may only
consent to the carrying out of the medical research procedure if
he or she believes that the carrying out of the procedure would
not be contrary to the best interests of the patient.
9
Sub-section (4) provides that any consent by a person responsible
must be in accordance with the consent requirements, if any,
specified in the ethics committee approval for the project or
conditions of that approval. This is to ensure that all the
information that the ethics committee considers necessary to
ensure voluntary and informed consent is provided to the person
responsible.
New section 42T provides a scheme under which procedural
authorisation to perform a medical research procedure on a
patient may be provided in certain circumstances.
Sub-section (1) provides that procedural authorisation only
applies if the person responsible for the patient cannot be
ascertained or contacted. In addition, new section 42R(3)
provides that, if a patient is likely to be capable, within a
reasonable time, of giving consent to the carrying out of a
medical research procedure, the procedure cannot be performed
under the authority of this section.
Sub-section (2) sets out the circumstances in which a medical
research procedure may be performed on a patient without the
consent of the person responsible (and if permitted under new
section 42R(3)). Procedural authorisation may only occur if
all the criteria set out in paragraphs (a) to (g) are satisfied.
In addition to the two criteria referred to in sub-section (1), other
criteria include requiring the practitioner concerned to certify his
or her belief that carrying out the procedure would not be
contrary to the best interests of the patient, and that there is no
reason to believe the procedure would be against the patient's
wishes. The other criteria relate to the nature of the research and
ethical research.
Sub-section (3) requires the supervising practitioner or the
practitioner carrying out the medical research procedure to sign a
certificate as to each of the matters in sub-section (2) and that the
person responsible or patient will be informed as required in sub-
section (4).
Sub-section (4) requires a registered practitioner involved in the
research project to inform the person responsible or patient
(as soon as reasonably practicable) of the patient's inclusion in
the research project and the option to refuse consent for the
continuation of the medical research procedure and withdraw the
patient from future participation in the project without
compromising the patient's ability to receive available alternative
treatment or care.
10
Sub-section (5) requires the supervising registered practitioner or
the registered practitioner to forward a copy of the certificate
referred to in sub-section (3) to the Public Advocate and the
relevant human research ethics committee as soon as practicable
and no later than 2 working days after supervising or carrying out
the procedure. This certificate must be kept in the patient's
clinical records.
Sub-section (6) requires the same certification process to be
followed as in sub-sections (3) and (5) at intervals of not more
than 1 month for as long as the medical research procedure
continues if the procedure extends over a month and consent is
not able to be obtained from the person responsible, or from the
patient if he or she regains capacity.
Sub-section (7) requires the supervising registered practitioner or
practitioner to ensure the certificate under sub-section (6) is kept
in the patient's clinical records.
Sub-section (8) provides that, if procedural authorisation is relied
upon as authority to perform a medical research procedure on a
patient, steps that are reasonable in the circumstances must
continue to be taken to locate and contact a person responsible to
seek consent to the procedure.
New section 42U establishes the test that is applied to determine
whether a medical research procedure would be contrary to the
best interests of a patient.
Sub-section (1) lists the matters that must be taken into account
for the purposes of Division 6 to determine whether a medical
research procedure would or would not be contrary to the best
interests of the patient. It is relevant to whether a person
responsible may give consent under new section 42S and to
procedural authorisation under new section 42T. Note that
section 38 of the Principal Act continues to apply to decisions
about special procedures and any medical or dental treatment.
Sub-section (2) allows a patient to object to the wishes of certain
people being considered under sub-section (1) as one of the
matters that must be taken into account to determine whether a
medical research procedure would be contrary to the best
interests of the patient. Sub-section (2) provides that, if a patient
is likely to be capable of giving consent to the carrying out of a
medical research procedure, but not within a reasonable time, and
objects to a relative or a family member (other than a spouse or
domestic partner) being involved in that decision making, then
the wishes of that relative or family member are not to be taken
11
into account when deciding whether the medical research
procedure would or would not be contrary to the best interests of
the patient. Note that if a patient is likely to be capable of giving
consent within a reasonable time then the procedure cannot be
authorised under Division 6, so the question of whether to take
into account the wishes of relatives or family members does not
arise. The patient's objection under this sub-section only bears
upon application of the best interests test for the purpose of
Division 6.
New section 42V sets out the circumstances in which an
application may be made to the Victorian Civil and
Administrative Tribunal in relation to Division 6.
Sub-section (1) provides that an application may be made to the
Tribunal in relation to any matter, question or dispute under
Division 6 relating to the best interests of a patient.
Sub-section (2) sets out who may make an application.
Sub-section (3) prohibits a registered practitioner who is involved
in the relevant research project from applying to the Tribunal in
relation to a refusal of the person responsible to consent under
new section 42S to the carrying out of a medical research
procedure on a patient.
Sub-section (4) provides that a patient is a party to the proceeding
on an application.
Sub-section (5) requires the Tribunal to give notice of an
application, hearing and order made in respect of the application,
to the Public Advocate and any other person the Tribunal
considers has a special interest.
Sub-section (6) sets out the powers of the Tribunal on an
application. These powers are consistent with the Tribunal's
powers in section 42N in relation to medical and dental treatment
and reflect the best interests test that applies to medical research
procedures as set out in new section 42U.
New section 42W provides that a person responsible may seek
advice from the Tribunal in relation to medical research
procedures, consistent with section 42I in relation to medical and
dental treatment.
Sub-section (1) provides that a person responsible for a patient
may apply for directions or an advisory opinion relating to the
scope or exercise of his or her authority to consent to a medical
research procedure on behalf of a patient.
12
Sub-section (2) sets out the parties to whom the Tribunal must
give notice of an application, its hearing and orders, directions or
opinions by the Tribunal.
Sub-section (3) sets out the Tribunal's powers in relation to an
application.
Sub-section (4) provides that the Tribunal may, of its own
motion, direct or give an advisory opinion to the person
responsible for a patient in respect of any matter.
Sub-section (5) provides protection for the person responsible
acting in accordance with any order, directions or advisory
opinion of the Tribunal (in the absence of fraud, wilful
concealment or misrepresentation).
New section 42X provides that the Tribunal may issue guidelines
to assist the person responsible for a patient to determine whether
or not to consent to medical research procedures in respect of a
patient. These guidelines are to be made in consultation with the
Public Advocate and the Secretary to the Department of Justice
and require the approval of the Governor in Council, consistent
with the requirements under section 42J in relation to medical
and dental treatment.
New section 42Y contains offences and penalties.
Sub-section (1) creates an offence for carrying out a medical
research procedure on a patient (other than in a section 42A
emergency situation) unless the procedure is authorised by law or
is allowed by new section 42R and the required consent has been
obtained under new section 42S or the procedure authorised
under new section 42T.
The maximum penalty for this offence is imprisonment for
2 years or 240 penalty units or both.
Sub-section (2) creates an offence of signing a certificate under
new section 42T(3) or (6) that the practitioner knows to be false.
The maximum penalty for this offence is 120 penalty units.
Sub-section (3) creates an offence of carrying out or supervising
the carrying out of a medical research procedure on a patient
without the project having received prior approval from the
relevant human research ethics committee. The maximum
penalty for this offence is 240 penalty units.
13
New section 42Z sets out the defences for a registered
practitioner who supervises or performs a medical research
procedure on a patient. The defences apply to assault, battery,
professional misconduct, liability in any civil proceedings for
assault or battery or an offence under new section 42Y(1)
(performing a medical research procedure without the required
consent or authorisation).
Sub-section (1) provides a defence if the registered practitioner
has acted in good faith and in the belief on reasonable grounds in
reliance upon consent or purported consent.
Sub-section (2) provides a defence if the registered practitioner
has acted in good faith and in the belief upon reasonable grounds
that the requirements of Division 6 were complied with.
Sub-section (3) provides that nothing in new section 42Z affects
any duty of care owed by a registered practitioner to a patient.
Clause 10 makes consequential amendments to the Principal Act.
Sub-clause (1) substitutes a new section 60A(6)(b) so that a
person cannot apply for a rehearing in relation to matters,
questions or disputes in relation to the best interests of a
patient in the context of medical research procedures, that is there
can be no rehearing of an application under new section 42V.
The exception is that a person may apply for a rehearing of an
application in respect of which an order is made under new
section 42V(6)(b) appointing a guardian generally.
This consequential amendment is required because procedures
for the purpose of medical research will now be addressed in
Division 6 of Part 4A, and is consistent with the current Act.
Sub-clause (2) provides that the general penalty in section 80 of
the Principal Act (maximum 20 penalty units) does not apply to a
contravention of section 42Q(2) which provides that a medical
research procedure must not be carried out on a patient if the
relevant research project has not received the required ethics
committee approval. New section 42Y(3) creates a separate
offence for breach of the requirement in section 42Q(2).
14
Sub-clause (3) makes a consequential amendment to section 82
of the Principal Act so that the Governor in Council may make
regulations for or with respect to--
· prescribing whether any procedure is or is not a medical
research procedure; and
· prescribing matters to be considered when determining
whether a medical research procedure is contrary to the
best interests of a patient.
Clause 11 inserts a transitional provision into the Principal Act as new
section 88.
New section 88 contains the transitional provisions that will
apply in relation to consent already provided or authority to
consent already conferred by the Tribunal to perform a special
procedure which is a procedure carried out for the purpose of
medical research.
Sub-section (1) provides that the current Principal Act continues
to apply in relation to any consent by the Tribunal or conferral of
authority to consent to a procedure carried out for the purpose of
medical research from the Tribunal to a person responsible,
which was in force immediately prior to the day on which this
transitional provision comes into operation. This will ensure that
valid consent provided by the Tribunal or by a person responsible
(under conferral of authority by the Tribunal) can continue to be
relied upon, and the Principal Act (as in force prior to
commencement of the transitional provision) will continue to
apply in relation to consents provided in that manner.
Sub-section (2) provides that a registered practitioner is taken to
have complied with the requirement in new section 42T(2)(e) if
he or she believes on reasonable grounds that the research project
has been given ethics committee approval before the
commencement of new section 88 in the knowledge that a patient
may participate in a project without the prior consent of the
patient. This recognises that the new section 42T(2)(e) could not
apply to require the ethics committee to be aware that the
procedure would be performed without the consent of a person
responsible, because the approval process under the current Act
requires Tribunal approval of special procedures (including
procedures for the purpose of medical research) rather than
consent of the person responsible.
Sub-section (3) defines "commencement day" for the purpose of
the new section 88.
15
Clause 12 makes consequential amendments to the Mental Health Act
1986.
Sub-clause (1) excludes medical research procedures from the
definition of "non-psychiatric treatment" in section 83 of the
Mental Health Act 1986. Procedures for the purpose of medical
research are currently excluded from this definition because they
are a type of "special procedure". This amendment inserts an
explicit reference to medical research procedures into section 83
of the Mental Health Act 1986, to recognise that this Bill
redefines "special procedure" and creates a new category for
medical research procedures. This means that the provisions
relating to performing non-psychiatric treatment on a patient
within the meaning given to "patient" in the Mental Health Act
1986 will continue not to apply to performing a special procedure
or medical research procedure on a "patient" under Part 4A of the
Principal Act.
Sub-clause (2) inserts a note at the foot of section 83(1) of the
Mental Health Act 1986 to clarify that Part 4A of the Principal
Act applies to the carrying out of a special procedure or medical
research procedure on a "patient" as defined in the Principal Act.
PART 3--MISCELLANEOUS AMENDMENTS
Clause 13 clarifies that the definition of "guardian" in section 3 of the
Principal Act does not apply to the word "guardian" in
section 58C(2) because the words are used in two different
contexts.
Clause 14 amends section 18 of the Principal Act so that the Public
Advocate may delegate any power, duty or function of the Public
Advocate (other than the power of delegation) to an officer or
employee of the Office of the Public Advocate without being
required to seek prior approval of that delegation from the
Tribunal. Delegation by the Public Advocate of his or her
powers, duties and functions is only required to be approved by
the Tribunal when the delegation is to a person or organisation
other than an officer or employee.
Clause 15 Sub-clause (1) amends section 22(2)(a) of the Principal Act to
clarify that, consistent with section 4(2)(c) of the Principal Act,
the wishes of the proposed represented person (where these can
be ascertained) are mandatory considerations when determining
whether or not a person is in need of a guardian.
16
Sub-clause (2) amends section 23(2)(a) of the Principal Act so
that, when determining whether a person is suitable to act as the
guardian of a represented person, the Tribunal must take into
account, among other things, the wishes of the proposed
represented person only in so far as those wishes may be
ascertained.
Clause 16 amends section 35A(2)(c) of the Principal Act and inserts a new
section 35A(2A) so that it is not necessary for the same persons
to witness the execution of an instrument appointing an enduring
guardian by the appointor, the proposed enduring guardian and
the proposed alternative enduring guardian. It is also not
necessary for the appointor, the proposed enduring guardian and
the proposed alternative enduring guardian to execute the
instrument at the same time or in the presence of each other.
Clause 17 Sub-clause (1) amends section 46(2) of the Principal Act to
clarify that, consistent with section 4(2)(c), the wishes of the
proposed represented person (where these can be ascertained) are
additional mandatory considerations when determining whether a
person is in need of an administrator of his or her estate.
Sub-clause (2) amends section 47(2)(a) of the Principal Act so
that, when determining whether a person is suitable to act as the
administrator of an estate of a proposed represented person, the
Tribunal must take into account, among other things, the wishes
of the proposed represented person only in so far as those wishes
may be ascertained.
Clause 18 inserts a new section 47B into the Principal Act to provide that in
appropriate cases a court or tribunal (which would include the
Victorian Civil and Administrative Tribunal) may approve
payment of reasonable costs out of the estate to an administrator
or former administrator. This includes payment from the estate
of any costs of a proceeding, all or part of the administrator's
costs of a proceeding and the costs incurred in administering an
estate (including the costs of any proceeding) incurred by an
administrator or former administrator.
Sub-section (4) of new section 47B permits an administrator or
former administrator to make an application under section 55 of
the Principal Act, or otherwise, to apply for the costs incurred in
administering an estate, including the costs of any proceeding.
17
Clause 19 inserts a new section 60A(3A) into the Principal Act to provide
that, if the Tribunal makes an order on a reassessment of a
guardianship order or an administration order under section 61 of
the Principal Act, where the reassessment was initiated by the
Tribunal, a party or person entitled to notice of the reassessment
may apply for a rehearing of the reassessment, if the Tribunal
gives leave for that rehearing.
Clause 20 substitutes a new section 60B into the Principal Act to make
consequential amendments following from the new
section 60A(3A) inserted by clause 19. New section 60B
provides who is a party to a rehearing and who is entitled to
notice of the making of an application for a rehearing.
Clause 21 inserts a new section 67 into the Principal Act to provide that,
unless otherwise ordered by the court or Tribunal, an order of a
court or Tribunal that sets aside (or has the effect of setting aside)
an administration order does not affect the validity of anything
done in accordance with the administration order from the date of
appointment until the date the administration order is set aside.
Clause 22 inserts a new section 86A into the Principal Act to protect the
validity of appointments of enduring guardians that were in force
immediately prior to the commencement of clauses 16 and 24
(which modify the arrangements for witnessing the appointment),
where the appointment instrument was not executed in
accordance with the new provisions or is not in the new form.
Clause 23 provides that, in the circumstances of the temporary absence of
the Public Advocate, a person previously sworn in as an Acting
Public Advocate may be appointed by notice in writing from the
Attorney-General to act as Public Advocate for a stated period,
without the need to take another oath or make another
affirmation. The Attorney-General can revoke this appointment
at any time. The appointment of the Acting Public Advocate
during any suspension of the Public Advocate will still require
the order of the Governor in Council.
Clause 24 amends the form for the appointment of an enduring guardian in
Schedule 4 to the Principal Act. The words "person or
circumstances" are substituted for "personal circumstances" to
remedy a technical oversight and to ensure consistency with
section 35B(2) of the Principal Act.
18
The clause gives effect to the amendments to section 35A(2)(c)
of the Principal Act (see clause 16) and modifies the form for
appointment of an enduring guardian so that it is clear that it is
not necessary for the same persons to witness the execution of the
instrument by the appointor, the proposed enduring guardian and
the proposed alternative enduring guardian. It is not necessary
for the appointor, the proposed enduring guardian and the
proposed alternative enduring guardian to execute the instrument
at the same time or in the presence of each other.
19