What is a 'person responsible'?
A medical or dental practitioner who treats a patient without authorisation acts unlawfully. Normally, the necessary authorisation is given by the patient who consents to the treatment.
If the patient is not capable of consenting to the proposed treatment because of a disability, the law provides for consent to be given by the patient's person responsible. If there is no person responsible, in most cases treatment may be given without consent.
Who is the person responsible?
The person responsible is not necessarily the patient's next of kin. It is a statutory concept defined in Section 4 of the Guardianship and Administration Act. A person responsible makes decisions for children and adults who have a disability and who are incapable of consenting to treatment.
If the patient is a child, the person responsible is the child's spouse or in all other cases the child's parent.
If the patient is an adult, the person responsible in priority order is either:
- a guardian (including an enduring guardian) who has the power to consent to health care, which includes the power to refuse or withdraw consent to treatment
- a spouse - including a de-facto spouse
- an unpaid carer who is now providing domestic services or support to the patient, or who provided these services and support before the patient entered a residential facility
- a relative or friend who has both a close personal relationship and a personal interest in the patient's welfare.
It is the responsibility of the medical practitioner recommending treatment to determine whether a person qualifies as the patient's person responsible. If the medical practitioner cannot decide between competing persons, the matter should be referred to the Board.
There can only be one person responsible for the patient.
What if there is no person responsible for the patient?
Despite the expanded definition of person responsible there will be situations where there is no relative or carer or friend available to make a decision about medical or dental treatment.
In such cases it is possible to carry out the medical or dental treatment without consent only if the following conditions are satisfied:
- there is no person responsible available to give consent;
- the doctor or dentist certifies in writing in the patient's clinical record that the treatment is necessary and will most successfully promote the patient's health and wellbeing;
- the patient does not object to the treatment; and
- the proposed treatment does not include one of the excluded treatments listed in Regulation 7
The purpose of this provision is to enable practitioners to administer treatment that is necessary and clearly in the patient's best interests without reference to the Board.
Practitioners may contact the Board for advice in relation to this provision.