Guardianship (Amendment) Bill
GUARDIANSHIP (AMENDMENT) BILL
The Hon. VIRGINIA CHADWICK (Minister for Education and Youth Affairs, and Minister for Employment and Training) [2.57]: I move:
I seek leave to have the second reading speech incorporated in Hansard.
That this bill be now read a second time.
I am pleased to introduce this legislation, which represents a further positive enhancement for the well-being of people with disabilities, their families and carers. The Disability Services and Guardianship Act was passed in 1987 with the support of all major parties and with wide community support. The Act was proclaimed and came into effect in August 1989. It was seen then, and still is seen, as progressive, innovative legislation to protect the rights of people with disabilities. Among other things, the Act established an adult guardianship system for people with disabilities in New South Wales, and introduced a scheme for consents to medical and dental treatment on behalf of adults who are incapable of consenting for themselves. It is this scheme that is the subject of the present bill.
The scheme has now been in place for some three and a half years and is considered to have been highly successful. I am told that it is being held up as a model for other jurisdictions in Australia and has attracted great interest overseas. As with all new legislation, however, particularly legislation dealing with complex human issues and vulnerable people, opportunities have become apparent for improvement and fine-tuning on the basis of practical experience and implementation. The Guardianship Board, charged with the oversight of this scheme, has proposed a package of changes, contained in this bill, designed to make the legislation work more smoothly and effectively for people with disabilities and those who care for them. These amendments are introduced following extensive community consultations.
In November 1991 the Guardianship Board issued a consultative paper on its proposals for amendments to the medical and dental consent provisions, to more than 150 organisations and individuals. These include representative medical bodies, hospitals, government departments and officials, members of the judiciary and the legal profession, disability workers and community representatives. More than 60 written submissions were received at the board and, in addition, community consultation meetings were held. The responses received were overwhelmingly supportive of the board's proposals, with some making suggestions for further improvement or clarification. The bill is the result of that process. The amendments put forward by the Government do not change the underlying philosophy or approach of the medical consents scheme. They will make the processes for gaining consent simpler and less bureaucratic, while retaining and enhancing the safeguards for patients.
Consent will be easier to obtain for uncontroversial treatments whereas controversial treatments will require greater justification and the consent of the Guardianship Board. The amended system will allow greater involvement by family members and close friends in consenting to uncontroversial treatments for their relatives or friends who cannot consent for themselves. This system should significantly reduce the number of applications for medical consent being made to the Public Guardian, and to the board. The amount of paperwork required in obtaining consents will be reduced, with resultant benefits to medical practitioners and other health professionals. At the same time, patients will continue to receive the protections that the current system provides. In fact, with the higher levels of compliance that can be expected with the improved system, protection of patients will be significantly enhanced.
I should like to outline the proposals in more detail. First, I should briefly explain the current scheme. Part 5 of the Disability Services and Guardianship Act 1987 deals with consents to medical and dental treatment for people who lack the capacity to consent to their own treatment, that is, those who cannot understand the nature and effect of the treatment proposed for them, because of a disability or some other reason. It also reflects a number of principles. The first principle is that people should not be deprived of necessary treatment merely because they lack the capacity to consent to that treatment.
patient's guardian, if there is one; or spouse or de facto spouse, if there is one; or direct unpaid carer, if there is one. If there is no person responsible, then either the Guardianship Board or the Public Guardian is the substitute decision-maker.
The second principle is that medical or dental treatment administered to such people should be administered only for the purpose of promoting and maintaining their health and well-being. Part 5 also provides protection to medical and dental practitioners who deliver medical and dental treatment in accordance with the Act, provided they are not negligent when administering that treatment. The Act establishes a hierarchy of substitute decision-makers, called persons responsible, who can give valid substitute consents for people who are unable to give their own consents. The hierarchy of persons responsible is: the
Part 5 also provides for five categories of treatment. The first is treatment that is urgently necessary to save a person's life or to prevent serious damage to their health. In these circumstances a doctor or a dentist may administer the treatment without first obtaining consent from a substitute decision-maker. The second is special medical treatment, to which only the Guardianship Board can consent. The third is major medical treatment. Persons responsible and the Guardianship Board are the substitute decision-makers for that treatment. The fourth and fifth categories are minor medical treatment and dental treatment. Persons responsible and the Public Guardian are the substitute decision-makers for these treatments. If a patient objects to non-urgent treatment, then only the Guardianship Board may consent to the treatment.
The two most significant amendments to part 5 are, first, to the definition of person responsible and, second, to the consent provisions concerning minor medical treatment. Another category, close friend or relative, is added to the categories of persons responsible. This will allow family members and significant others to be substitute decision-makers without having to apply to the Guardianship Board to be appointed guardians. At present, family members must be spouses or direct carers before they can take on this role automatically. This amendment would, for instance, allow the parent of a previously healthy young man who has sustained a severe brain injury to be the person responsible without the need for an application to the board to be appointed guardian for medical purposes. Similarly, the amendment would enable an adult son or daughter to act as person responsible for a parent who has previously managed independently but who has now become incapacitated as the result of a stroke.
It is very apparent that the amendment is a strong acknowledgment of the role played by family members, including parents, siblings and other involved persons. Further, the redefinition of carer to include people who provide or arrange services and support for persons with disabilities, other than on a paid basis, will also further acknowledge the role of carers. Again, it will have the important effect of minimising bureaucracy and ensuring that family members and others who are well positioned to be involved in decision-making for people who cannot consent for themselves have every opportunity to do so. I add for the benefit of those who may express concerns regarding the authority vested in these substitute decision-makers that the Guardianship Board is able to review the actions of a guardian or person responsible if they are called into question. As well, there are certain circumstances, as previously outlined, where only the Guardianship Board can consent to treatment.
With minor treatments it is proposed that, in circumstances where there is no person responsible - a less likely scenario now in view of the expanded definition of person responsible - or where the person responsible cannot be found or is unwilling to act, and the patient does not object to the proposed treatment, then the doctor or dentist may proceed to treat. The doctor or dentist must be satisfied that the patient is incapable of giving consent and that the treatment is both necessary and the most appropriate in the circumstances. As I have already said, this consent can be given only in relation to minor medical and dental treatments. At present the Public Guardian is empowered to give a consent in these circumstances. This has been found to be a time-consuming, excessively bureaucratic process that has been a cause of widespread non-compliance and generally of little patient benefit.
Again, I would point out that compliance under this legislation does not relieve medical practitioners from their duty of care or any other liability they may normally face. The amendment has also the very positive effect of placing the doctor, or dentist, under a statutory duty to certify in writing in the patient's clinical record that the treatment is necessary and is the form of treatment that will most successfully promote the patient's health and well-being. I am informed that this provision has the endorsement of both the Public Guardian and the medical profession and, because it is expected to increase compliance levels, of consumer groups also. There are a number of other amendments to part 5 designed to clarify and streamline the legislation and to minimise excessive bureaucracy in non-controversial areas.
The definition of medical treatment is recast to exclude non-intrusive examinations, as well as trivial and first-aid treatments and over-the-counter medications. Dental treatment is now divided into major and minor treatments. Previously all dental treatment had been dealt with in the same way as minor treatment. The amendment will ensure that the different types of dental treatment receive appropriate levels of response. In relation to urgent treatment, treatments which in the circumstances can be given without consent, the amendment makes it clear that this includes cases that are urgently necessary to prevent significant pain and distress.
The amendments also clarify that treatment carried out under the supervision of a medical practitioner, but not administered by that practitioner, is treatment within the scheme of the Act. A most common example is where nurses and carers administer medication prescribed by and under the direction of a treating doctor. The definition of special medical treatment is extended to cover any kind of medical or dental treatment, the use of which has not yet gained the support of a substantial number of doctors or dentists specialising in the area of practice concerned. This amendment has the effect of extending the board's scrutiny to all treatments of this kind and not, as is presently the case, only to those which are outside the guidelines of the National Health and Medical Research Council. The Guardianship Board will be able to give consent to such treatments only where the treatment is manifestly in the best interests of the patient and represents the most appropriate alternative form of treatment.
An amendment in relation to objections to treatment will clarify that objections do not include involuntary resistance, that is, a reflex response, or where the patient clearly has no comprehension of what is proposed and will not be unduly distressed if treatment proceeds. This does not obviate the need for consent, but means that such situations do not need to come before the board. The amendment also provides that the board, having scrutinised and approved treatment in the face of an incompetent patient's objection in a particular case, could authorise a guardian to consent to ongoing administration of the treatment for that patient, but only where the ongoing treatment was manifestly necessary in the patient's interests.
Finally, the amendments will allow the board when giving consent to special medical treatment of an ongoing nature to empower the guardian to consent to the continuation of the treatment or to the carrying out of treatment of a similar nature, but subject to any conditions or directions the board may impose. The final amendment is in relation to the powers of the Guardianship Board to deal with applications for financial management under the Protected Estates Act 1983. At present the Protected Estates Act empowers the Guardianship Board to consider the making of a financial management order only where the board is considering a guardianship application or has made a guardianship order in relation to that person. As I have already said, an effect of the foregoing amendments will be to remove the need for many guardianship applications.
An unintended consequence of this is that the board would have no power to make management orders in relation to these people, because of the jurisdictional barriers in the Protected Estates Act. The amendment to the Protected Estates Act will remove these barriers and permit the Guardianship Board to consider applications for financial management whether or not a guardianship order has been made or an application is being considered. This will not increase the board's powers, but will make the same powers exercisable in more cases.
accepts the referral. In conclusion, the essence of the amendments proposed in this bill is fine-tuning of the Guardianship Act and the Protected Estates Act arising from experience of the Guardianship Board, the Public Guardian and others operating under that legislation during the past three and a half years.
The financial management jurisdiction is one that the Guardianship Board has exercised since its inception, and it provides an efficient and economical resource to persons of limited funds. At the same time, the board will have a new power to refer any such proceedings to the Supreme Court, if the board considers it appropriate and the Supreme Court
I commend the bill to the House.
The Hon. R. D. DYER [2.57]: The Opposition supports the Guardianship (Amendment) Bill, which is an excellent piece of legislation. The Guardianship (Amendment) Bill will amend the principal Act, namely, the Disability Services and Guardianship Act 1987 which is now known simply as the Guardianship Act following the passage through this House a few short weeks ago of the Disability Services Act 1993. Obviously it would have been inconvenient to have two statutes with similar names so the piece of legislation now being amended is known simply as the Guardianship Act 1987. This piece of legislation is a proud achievement of the former Labor Government. The legislation was enacted in 1987 and, to be fair, was at that time supported by the then Opposition after substantial community consultation with the Government and, no doubt, by the Opposition.
The Guardianship Act and the board set up under it have been followed through by the present Government. I should like to pay tribute to the board for the work it has performed during its three and half years of existence. In particular, I should like to congratulate the president of the board, Mr Roger West, and the deputy president of the board, Mr Nick O'Neill, on their sterling efforts on behalf of people who need to access the services of the board. I should like to quote a small passage from the first page of the most recent annual report of the Guardianship Board. This passage, which indicates in a nutshell the functions and activities of the board, states:
The amendments, however, are important as they will make the legislation work better in the interests of people with disabilities and those responsible for their health care. The Minister for Community Services and Assistant Minister for Health shall be asking the Guardianship Board to monitor these changes and also, after community consultation, to report to me on any amendments to the legislation generally that could improve the way it works for the benefit of people with disabilities in this State. Following the passage of the bill, there will be a need to prepare regulations before proclamation, and the Government is anxious for this to happen as quickly as possible.
The Guardianship Board is a legal tribunal with the power to appoint guardians and financial managers for adults who are unable to make decisions for themselves because of a disability.
The Board also has powers for the provision of medical and dental consent for people who are incapable of giving consent for themselves.
In its most recent annual report the board indicated in a pie chart the types of applications considered by it in 1991-92, the third year of its operation. Leaving aside minor types of activity, so far as applications are concerned, the board's activities rested in four main areas: guardianship applications accounted for 35.7 per cent; financial management, 24.5 per cent; medical consent, 19.7 per cent; and review matters, 19.2 per cent. I suppose it follows that as the board becomes older, review matters will occupy a greater portion of its time and activity than would have been the case when it was first established. Leaving that aspect aside, in approximate terms it can be said that the substantial activities of the board are guardianship, financial management and the giving of medical consent.
Another interesting background indication is given by a further pie chart in the board's annual report showing the types of new clients the board dealt with during 1991-92. The largest category of clients were those suffering from dementia; they accounted for 46.4 per cent of all new clients. Honourable members know that the population of the State and, indeed, Australia, is ageing, so dementia will be a continuing major activity of the Guardianship Board. Other major profiles of new clients are accounted for by intellectual disability, 23.1 per cent; brain injury, 16.5 per cent; psychiatric disability, 9.3 per cent; physical disability, 3 per cent; psychological disability, 1.5 per cent; and the smallest category, human immunodeficiency virus dementia, 0.2 per cent. That represents the type of clientele that the board is required to deal with and does deal with very capably. I wish to quote a potted example of the type of difficult matter the board is required to deal with. The briefest case study set out in the annual report appears at page 34 under the heading "A Life Saved":
The aim of the Board is to support the right of adults with disabilities to make their own life decisions wherever possible.
Mrs C lives in a nursing home. She has mild dementia. For some years, she also had diabetes for which, eventually, she needed regular dialysis in hospital.
Mrs C's sister and a doctor decided that this treatment was "too traumatic" for Mrs C and she was discharged back to the nursing home with the clear expectation that she would die within the next week or so. No attempt was made to discuss this decision with her.
Staff at both the hospital and nursing home became distressed by this decision and an application for guardianship was made to the Board.
The House will appreciate from that short statement of facts that the problems dealt with by the Guardianship Board have a substantial human dimension and are not always easy matters to deal with - they can deal with very emotive circumstances. A heavy responsibility is cast on the board to act properly, in the interests not only of the applicant but of society in regard to the difficult matters brought before it. The bill substantially deals with proposed amendments to what might be termed the medical consent provisions of what is now the Guardianship Act 1987, hitherto the Disability Services and Guardianship Act 1987. However, the bill also contains some incidental amendments to the Protected Estates Act 1983, to which I shall refer briefly.
Medical and dental consent, the main thrust of this bill, are dealt with in considerable detail in part
5 of the principal Act. That part of the legislation applies when people over 16 years of age are unable to consent to their own medical or dental treatment because of some form of pre-existing disability or for some other reason. What then happens is that the legislation lays down a hierarchy, one might say, of substitute decision-makers who can give consent to medical or dental treatment on behalf of persons who are not able to give that consent. The 1991-92 annual report of the Guardianship Board notes that part 5 of the legislation is correct in principle and that in most situations it works well in practice. However, the view has been formed that many of the mechanisms can be improved and made to work more conveniently both for the patients themselves and for the medical practitioners and dentists who treat them.
The board issued in November 1991 a consultative paper identifying those provisions within part 5 that, in the board's view, could be improved, and new procedures were suggested and circulated for consideration and response by the community, in particular by relevant professional and other bodies. As part of that consultative process the Guardianship Board held meetings with bodies such as the Public Guardian, the Protective Commissioner, the Medical Services Committee and I believe also the Australian Medical Association and probably the Australian Dental Association. That consultative process was entirely proper. It resulted in the board receiving approximately 60 responses. Those responses supported the improvement suggested and in some cases put forward other suggestions for consideration and possible change to part 5 of the Act.
Following that consultation process, which continued for approximately 12 months, recommendations were made to the Minister, and those recommendations have matured into the legislation now before the House. Before proceeding further, I express my gratitude to the Minister for Community Services and Assistant Minister for Health, the Hon. Jim Longley, for the briefing I was able to have with Mr Nick O'Neill, the Deputy President of the Guardianship Board. It has assisted in my understanding this important legislation. Without unduly delaying the House, having regard to the importance of the legislation, I should like to identify some of its more important provisions.
I have stated already that part 5 establishes a hierarchy of substitute decision-makers who are termed in the legislation persons responsible and are able to give substitute consent for people who cannot give valid consent themselves for medical or dental treatment. At the moment that hierarchy comprises the patient's guardian, if there is one, a spouse or de facto spouse, if one exists, or a direct unpaid carer, if there is one. If no such person is available who falls within the statutory definitions of a person responsible, either the Guardianship Board or the Public Guardian becomes the substitute decision-maker.
The Hon. Dr B. P. V. Pezzutti: That was hopeless, was it not?
The Hon. R. D. DYER: It proved to be somewhat inflexible in practice because it could well be that an elderly person living alone might not have a spouse still living, a de facto spouse, or a direct unpaid carer. On the other hand, that person might have a next door neighbour.
The Hon. Dr B. P. V. Pezzutti: Or six sons or daughters.
The Hon. R. D. DYER: Yes, or six sons or daughters or other people with whom they come into daily or weekly contact who are able to have some relationship with them and could justifiably and sensibly be appointed for the purpose of giving such consent. To the extent that this amendment is being made to the legislation, much of the inconvenience can be avoided and the making of unnecessary applications to the Guardianship Board can also be obviated. Another important feature of the bill is that it deals with various aspects relating to medical and dental treatments. At the moment five categories of treatment are provided for under the legislation, the first being medical or dental treatment that is urgently necessary, for example, to save a person's life or to prevent serious damage to that person's health. In that case the doctor or dentist is entitled to administer the treatment without first obtaining consent from a substitute decision-maker. The second category is special medical treatment in which only the Guardianship Board is entitled to give consent. I understand that the main form of medical treatment in this category would be sterilisation, which clearly is no small matter.
The Hon. Dr B. P. V. Pezzutti: Which was the point of the bill in the first place.
The Hon. R. D. DYER: That may well be one of the motivating causes, although by no means the only one. The third category is major medical treatment, and I understand that that relates to operations where a general anaesthetic is administered or where medical treatment requiring the use of tranquillisers is involved. In this category persons responsible and the Guardianship Board are the substitute decision-makers. The fourth and fifth categories, being the remaining categories, relate to minor medical treatments and minor dental treatments. The person responsible or the Public Guardian are the substitute decision-makers for those treatments. The amendments permit treating doctors to administer minor medical treatment without consent when they believe the treatment to be necessary and there is either no person responsible or that person cannot be readily located. At present treatment in those circumstances must be delayed while consent is obtained from the Public Guardian. The Opposition believes that is an unduly cumbersome provision, and no doubt the Government agrees with that view.
Medical treatment has been redefined to exclude non-intrusive examinations, trivial matters or first-aid treatment and over-the-counter medications. I understand that examinations where a medical practitioner looks into the mouth, eyes or ears are
now excluded from the definition of medical treatment. However, a more serious and intrusive examination, such as a rectal examination, would still require consent. There is now to be a division into major and minor dental treatment to ensure that different types of medical treatment receive levels of response appropriate to that particular type of treatment. Apparently all dental treatment at the moment is dealt with as minor. However, some dental treatment is not minor. I was advised during my briefing that, for example, a full evacuation of the mouth is not unknown, particularly with people with developmental disabilities. Although I am a layman, I would not have thought that could be regarded as minor dental treatment.
The Hon. Dr B. P. V. Pezzutti: It almost certainly requires a general anaesthetic.
The Hon. R. D. DYER: That would be another matter that would add to the seriousness of the procedure. The bill contains also a redefinition of the term experimental treatment to ensure that such treatments, which might help people with disabilities, can be given a proper trial. That is clearly a fairly sensitive and important area and is not a matter that should be embarked upon lightly. Only the Guardianship Board could give appropriate approval for treatments of that type and character. The form of trial or experiment would no doubt need to be fully and comprehensively justified to the Guardianship Board. Just because a matter is experimental does not mean it ought to be excluded ipso facto, otherwise medical science may not progress properly and appropriately. Many medical discoveries and procedures have been developed, with appropriate safeguards, by experimental treatment. Subject to full justification to the Guardianship Board, there is nothing wrong with what the bill provides in regard to experimental treatment.
The bill contains also clarification of urgent treatments in order to ensure that urgent and necessary treatment can be given to prevent significant pain and distress. The existing form of words contained in the legislation in regard to urgent treatments requires that the treatment must be for the purpose of saving life or preventing serious damage to health. The Government and the Guardianship Board have formed the view that that is a somewhat rigid formulation and that someone could well be in considerable pain and distress and in need of urgent treatment in the ordinary sense of that expression without the actual condition or painful episode being life threatening. The Opposition also supports that provision.
The other matter to which I should like to refer briefly and to which I adverted to earlier in my remarks is that the legislation also enables the Guardianship Board to deal with applications for financial management orders without first having to deal with a guardianship application. In that regard the bill makes certain amendments to the Protected Estates Act 1983. The purpose of these amendments is to enable the Guardianship Board to deal with applications for financial management orders without having first to embark on a guardianship application. Under the provisions contained in the bill, I am sure it is quite apparent to honourable members that far fewer applications will be made to the Guardianship Board to appoint medical guardians. That flows from what I have been saying about the various categories of medical treatment and the sifting out of the more minor procedures not requiring consent from the more major procedures that do require consent.
A consequential problem flowing from the changes to the medical and dental consent procedures set out in the bill could be that many families who need financial management orders to manage the financial affairs of an elderly demented parent, for example, would not have the access to the board they have had until now. The Opposition supports the changes because it is in the interests of people who are suffering from dementia, to take one example, to have their representatives approach the Guardianship Board for the making of a financial management order to govern their financial and other affairs more effectively. The bill overcomes this consequential problem, though I note that the Guardianship Board will still be able to refer matters of some complexity to the Supreme Court. However, an appeal can be made to the Supreme Court about the making of a financial management order. Were it not for this amendment, families of elderly people or people with disabilities would have the difficulty and expense of having to approach the Supreme Court for the making of a financial management order.
That is a brief summary of the more important provisions of the legislation. The Opposition believes, having had the benefit of the briefing to which I referred and having considered the legislation, that it is sensible and worth while and will facilitate the better working of the Guardianship Board. I reiterate my satisfaction with the work of the Guardianship Board, which is most pleasing to the Opposition. I wish the board every success in its future activities dealing with the undoubtedly difficult matters it is required to consider.
The Hon. J. F. RYAN [3.23]: In supporting this bill I acknowledge the generous remarks made by the shadow minister for community services. His speech did not contain a single criticism of the legislation, nor the operation of the Guardianship Board. It is rare that there is full agreement on both sides of the House on the operation of a Government instrumentality and on legislation. It is commendable. I congratulate the Opposition on its generous comments and join in commending the work of the Guardianship Board.
The New South Wales Guardianship Board was established in 1989. It carries out a number of very important functions on behalf of the people of New South Wales. It assists in decision-making about accommodation options, medical consents and financial arrangements for people in our community who lack the ability to make those decisions for themselves, usually because they have an intellectual
disability, a physical disability such as a psychiatric disability, a brain injury or dementia. The bill seeks to make changes to the way the Guardianship Board carries out its functions in relation to medical consents, dental treatment and financial arrangements. Last year the full-time staff of the board and its two full-time and 70 part-time members dealt with 4,317 applications for guardianship, representing a 28 per cent increase in its work over the previous year. There is little doubt that the board anticipates an increase in its activities in the future.
Included in its decisions were 851 medical consents and 1,059 applications for orders regarding financial management. Approximately two-thirds of clients monitored by the Guardianship Board have an inability to give consent on their own behalf about medical matters. The board's annual report reveals that in the past year the board conducted 6,000 hearings over 808 sitting days. The House should be aware that although there are only 365 days in a year, the board, on many occasions, had three panels sitting at once. Of the 6,000 hearings, one-quarter of the hearings were in regional or country areas. It may also interest the House to know that 4 per cent of those hearings were conducted after hours. The board has to be commended for the manner in which it makes itself available throughout the State and around the clock.
Not only did the board meet in its city-based premises, which were originally located in Glebe but are now located in Balmain, but it also met in a number of hospitals and institutions where its clients need to make these applications. Hearings were held at Newcastle, Wollongong, Gosford and Katoomba as well as in 22 other rural locations in New South Wales. Members of the Guardianship Board are available on a 24-hour basis and, as I understand it, some of its part-time members and the two full-time members, such as Mr Roger West and Mr Nicholas O'Neill, have access to paging systems and can be contacted almost any hour of the day, any day of the week.
Since the Guardianship Board began operations in 1989, it has been remarkably successful in gaining community support and the support of its clients. The staff, its president and deputy president are to be commended for the openness, accessibility and responsiveness of the service. It is fair to say that the board has demonstrated a great deal of ingenuity in devising various arrangements that have been made compassionately and properly on behalf of clients. The board has also been vigorous in educating people and professionals about its role and about some of the special issues relating to its clients. In that regard it has conducted a number of special issues seminars- - for example, dementia, the Mental Health Act and behaviour management of people with intellectual disabilities - and issued a number of useful publications to assist professionals.
The work of the board has been extremely comprehensive in advocating and making arrangements for these people, and educating the community about their needs. It is to be commended for the way it has taken the Act, which established the Guardianship Board, and attempted to respond completely to every aspect of it. The bill relates mainly to changes to part 5 of the Act which currently provides consent for five categories of medical treatment: first, treatment urgent and necessary to save a person's life or to prevent serious damage to a person's health, where a doctor or dentist may administer the treatment without first obtaining consent from a substitute decision-maker; second, special medical treatment to which only the Guardianship Board can consent; third, major medical treatment where persons responsible on the Guardianship Board are substitute decision-makers for that treatment; fourth and fifth, minor medical treatment and dental treatment where persons responsible and the Public Guardian are substitute decision-makers. If a person objects to non-urgent treatment, only the Guardianship Board may override that decision and give consent.
That has already been done but I would like to pursue it a little further to illustrate the ways in which the Guardianship Board carries out its task to assist the medical profession in performing a number of treatments and advocating upon the decision-making ability of clients - in many cases preventing the medical profession from riding roughshod over clients' express wishes. I will illustrate that point further by reading from a case history presented in the 1990 annual report of the Guardianship Board. The report refers to someone called Mr Z - a 25-year-old man suffering from schizophrenia. The report states:
As a result of the application, Mrs C was able to express her own view, which was to continue the dialysis. The Board was able to ensure that Mrs C's wish was carried out.
This is a fairly classic case in which the Guardianship Board is able to help. The report continues:
He generally recognised the benefits of his medication and consented to its administration. However from time to time, during a psychotic episode, he would refuse to take his medication.
If honourable members have regard to the role of the Guardianship Board they will realise that that is unsatisfactory. The Guardianship Board conducted hearings with Mr Z, at which Mr Z gave his views and consented to treatment on his behalf at an early stage. Despite Mr Z having previously objected to treatment and notwithstanding that he might subsequently resist it, at the time of the hearing, when he was in a better frame of mind, he expressed the desire to have treatment administered early to protect himself. The Guardianship Board is able to provide a number of benefits for a patient such as Mr Z. I draw to the attention of the House another case that illustrates how the Guardianship Board advocates upon the decision-making ability of clients under guardianship - sometimes over and above the requirements of the medical profession. The report to which I have mentioned refers also to a person known as Ms Y, and states:
Before the guardianship legislation came into force it was not possible to give Mr Z his medication until his condition deteriorated to a point where he became a serious physical danger to himself or to others. At that stage he could be _scheduled' involuntarily under the Mental Health Act and then medication could be administered by force.
He made this application to determine whether he could carry out this treatment on Ms Y's behalf. So if some other family member objected to Ms Y's wishes, he could rely on the fact that he had previously negotiated with her to obtain her consent and that consent had been validated by the Guardianship Board. The role of the Guardianship Board is not necessarily to carry out medical treatment over and above the wishes of its clients; in many cases it establishes what its clients want and ensures that they receive treatment at the appropriate time, regardless of the wishes of other family members. This has been particularly useful in eugenic abortions as it has been possible to establish what a person wants and to ensure that that is able to be achieved. All honourable members would regard that as a reasonable and compassionate approach to a difficult problem.
The amendments to the Act have already been outlined by the Minister in his second reading speech, and by the Hon. R. D. Dyer. However, I would like to draw attention to a few amendments to establish how they will have a beneficial effect. I have already said that the Guardianship Board's workload has increased substantially over the past two years. Many of the decisions it is making are necessary. Other people can be delegated as trustees to act in accordance with the wishes and in the best interests of the clients of the Guardianship Board. The board has asked - this has been confirmed by extensive public consultation - for certain areas of the law to be relaxed to enable greater discretion by carers and substitute decision-makers.
In a few instances the Guardianship Board has asked for the scope of the law to be tightened so that there is more supervision in critical areas. As a result of this overall package it is hoped that some of the decisions in which the Guardianship Board becomes involved will be reduced, so that the board will be able to expand its services into other areas. One important area for which there is enormous demand is financial management. Under the bill, people who would like the board to assist with financial management - and there are many such people - need not apply to the board for a guardianship application or for an application for medical consent. That appears to be common sense, an excellent use of the limited resources available to the Guardianship Board.
In my view the Guardianship Board is to be commended for having suggested a number of areas from which it might rightly withdraw. In this day and age it is relatively rare for public servants to reduce the size of their empire, so the Guardianship Board is to be commended for exercising what I believe to be excellent discretion. It has said, "This is an area in which we have been operating. There is no longer a need for us to operate in this area. We want to draw back because there are other areas of greater concern to the community". Let me give a few examples of the areas from which the Guardianship Board wishes to withdraw. In some instances doctors have commenced treatment and it has been necessary to delegate that responsibility to some other care giver. Once these amendments have been agreed to, doctors will be able to delegate authority to nurses or other care givers to continue that treatment. That is good. Currently, doctors have to make many decisions about urgent treatment, and under the Act urgent treatment is limited to treatment that is life-saving or treatment that, if not carried out, might cause serious damage to health.
The Guardianship Board has asked for a slight relaxation of the strictures of the law to allow doctors to exercise this discretion in cases where it might be necessary to prevent a patient suffering or continuing to suffer significant pain or distress. The bill provides not only for relief of life-threatening conditions; it provides that it is reasonable for doctors to make decisions that, for example, relieve pain. That is good. It not only allows the Guardianship Board to focus on other areas, it provides for speedy decisions in the interests of clients. The quicker that patients can receive attention, the quicker they will get relief.
With a minor qualification the bill will allow for further expansion of the discretion of medical practitioners to enable them to carry out minor medical and dental treatment on a patient if no responsible person can be found, or if the responsible person is unwilling to act. Where members of the medical profession are able to indicate that minor, non-intrusive treatment should be carried out, they will be able to do that. One area in which the law could be described as having been tightened relates to the definition of special treatment. What areas are covered in the special treatment category? They include procedures such as hysterectomies, which are sometimes performed to relieve menstrual problems or severe bleeding, or other disabilities from which a person might be suffering.
Another category is dental treatment. Honourable members need to be aware that the management of people with intellectual or developmental disabilities may require a greater level of anaesthesia in the carrying out of these procedures - more than would normally be required for an ordinary person consulting a dentist. Because of the general anaesthetic requirement dental treatment fits into the category of "special treatment".
Serious and often difficult decisions have to be made by the Guardianship Board, but it has suggested a tightening up of the categories of special treatment to extend them to any new kind of treatment that has not yet gained the full support of medical practitioners or dentists specialising in the relevant area of practice. One example would be experimental treatment for people suffering from HIV infection. These people may suffer from dementia and may be unable to make decisions about the use of experimental drug therapy,
which their relatives may consider to be relevant and worth trying. Able-bodied people who are able to make their own decisions may be happy to be treated with drugs that have not been formally processed through the normal approval channels.
Families of, or people caring for, a person who is suffering from an HIV infection and is at the latter stages of treatment may wish to try experimental drug therapy. It is important that this therapy be included as special treatment because these are sensitive decisions; it is not simply a matter of intrusive surgery. It is important to extend the definition of special treatment to enable the Guardianship Board to permit experimental treatment that it considers to be in the best interests of the patients for whom it is responsible. The Guardianship Board seeks to amend the Act with regard to financial management, and some useful case studies of this matter have been carried out. The board has powers under the Act to appoint financial managers, provided two conditions are met. First, there must be evidence that the person is incapable of managing his or her affairs. Second, management must be needed because the person is at risk of financial disadvantage or exploitation by others, or of losing or dissipating money.
In a number of instances the Guardianship Board has been able to intervene and organise financial arrangements to ensure that a person's limited financial resources, which sometimes have been given for medical treatment, are not dissipated, particularly, as frequently happens, by family members who seek to exploit that person. The annual report of the Guardianship Board refers to the case of an old lady, Mrs T, and some bikies. The report states:
Ms Y was a young woman with a mild to moderate developmental disability who lived in a group home. She needed some routine and essential dental treatment. Her service providers explained the proposed treatment in simple terms and felt confident that Ms Y understood what it was and the effect it would have. However the dentist was concerned about Ms Y's capacity to consent and he made an application to the Board.
Mrs T was in her late-70s. She was brought to her local hospital by a group of bikies. The bikies said they were worried about the _old lady' because her son was taking all her pension and dragging her around with him to various flats.
Hospital staff arranged for her to stay in a local hostel, but her son continually turned up at the hostel and took his mother away. He also took her pension money. Mrs T was quite forgetful and she did not seem to understand that if she gave him all her money, she could not pay her board and she would end up back on the street. A social worker applied to the Board on her behalf for a guardian and a financial manager.
The Public Guardian was appointed and was able to stop the son taking his mother away from the hostel. Initial informal arrangements to protect her pension broke down, so the Board appointed the Protective Commissioner to look after her money.
That indicates how the board provides financial management, and how it is able to work for the benefit of its clients. The amendments to the Act are intended not to increase the power of the Guardianship Board but to increase the number of people to whom its services can be made available. The legislation is an extension of an Act that is providing compassion and producing forward thinking, and which has been a model upon which other States have developed similar arrangements. The bill outlines a number of realistic changes to the law which will be genuinely beneficial to people with disabilities, and I commend it.
The Hon. ELISABETH KIRKBY [3.45]: The Australian Democrats support the Guardianship (Amendment) Bill, which makes a number of amendments to the Guardianship Act 1987 in relation to the provision of medical and dental treatment to people with disabilities who are unable to make their own decisions about treatment. The amendments refer in the main to the definitions of persons responsible under the Act. The current law establishes a hierarchy of substitute decision-makers, called persons responsible, who can give substitute consent for people who are unable to do so themselves. This list currently includes such people as the guardian, spouse, de facto, or direct unpaid carer. However, the bill will make amendments to ensure that "spouse" cannot include an estranged spouse, and that "carers" include people who provide or arrange services and support on a non-contractual basis. It will also create the additional category of "other appropriate persons" - a person with a close personal relationship with the patient.
One of the important amendments is that persons responsible may consent to major medical treatment and minor medical and dental treatment. Yesterday I was informed about a neighbour whose wife is unfortunately suffering from Alzheimer's disease and is permanently in hospital. She was sick about a week ago and the husband was asked to consent to a tracheotomy being performed. He did not feel that he was able to give this consent, with his limited medical knowledge. He preferred that that consent be given by responsible medical people in charge of her treatment because of his admitted inadequate knowledge of what the treatment would entail. It is very important that persons responsible may only consent; that they are not given the full responsibility of making such a complicated decision.
The amendments basically acknowledge the role of families in caring for the disabled, and the Guardianship Board in future will be able to review the actions of a guardian or person responsible, but only if those actions are called into question. The second important amendment in the bill is that treating doctors will be allowed to administer minor medical treatment without the consent of the public guardian. As the Hon. J. F. Ryan recently explained to the House, this is also a very important provision, because there are many minor procedures, and obtaining the consent of the public guardian involves the person concerned in the treatment in a lengthy and possibly protracted bureaucratic process.
However, the ability of doctors to administer minor medical treatment without consent will occur only when there is no person responsible and when the patient does not object, and when the doctor will certify that the patient is incapable of giving consent and that the treatment is necessary and appropriate under the circumstances. I am convinced that these provisions will contribute to procedural efficiency. They are also supported by the Public Guardian. Obviously, normal standards regarding liability will
The third major amendment will allow the Guardianship Board to deal with applications for financial management orders without having first to deal with a guardianship application. At present under the Protected Estates Act 1983 the Guardianship Board may consider making a financial management order only where the board is considering a guardianship application or has made a guardianship order. The amendments contained in the bill are designed to reduce the need for guardianship applications. As a consequence the ability of the Guardianship Board to make management orders may be constrained. But I do not think that any honourable member would believe that to be a bad thing. The Act is to be amended to allow the board to consider applications for financial management even without a guardianship order being considered. Furthermore, the board will be able to refer complex matters such as this to the Supreme Court. In turn this will eliminate the need for families of elderly people or people with disabilities to go to the Supreme Court for financial management orders. Obviously that will result in a substantial cost saving to those carers.
Other amendments include the redefinition of experimental treatment, as was mentioned by the Hon. J. F. Ryan, to ensure that such treatments that may help people with disabilities can be given a trial. These terms would need to be approved by the Guardianship Board. The final amendment, and one of the most important - and one that is most likely to be used - refers to dental treatment. The division of dental treatments into major and minor categories will be put in place. At the moment treatment is described as minor and, especially when one is dealing with many dental treatments that might be received that were not previously available, this is an important matter. The amendments to the guardianship provisions will bring about improvements. It gives me pleasure to support the bill.
The Hon. HELEN SHAM-HO [3.53]: I support the bill. As the Hon. R. D. Dyer acknowledged, this is important legislation. The amendments in the Guardianship (Amendment) Bill 1993 appropriately address issues that have become evident since the implementation of the Disability Services and Guardianship Act 1987. The bill is an example of how the Government puts into action the mission statement from the Department of Community Services which promises "to assist in the empowerment of families, individuals and disadvantaged communities under stress who require assistance, guidance or protection to enable them to participate in the community".
From my years of experience as a social worker I know that the bill will foster better conditions for the individual with disabilities, especially by widening the range of persons responsible to give medical consent on their behalf. The category of persons responsible is narrowly confined to a selection of only three people. The Hon. Elisabeth Kirkby described this matter fairly fully. If there is an appointed guardian, he or she is the person responsible. If no guardian is appointed, the spouse or de facto spouse is the person responsible. If there is no spouse, a person who is a direct but unpaid carer is the person responsible. If no person fits one of those three specific descriptions, at present the Guardianship Board or the Public Guardian becomes the substitute decision-maker.
The Hon. R. D. Dyer mentioned that a large number of people will be affected by the legislation. More than 150,000 people in New South Wales have an intellectual disability. Some of them have suffered their disability from birth, and others have acquired the disability through illness or accident during their lives. I am sure that many honourable members will relate to the latter situation, for example, a person who has acquired a form of dementia and is no longer capable of making informed decisions, particularly about such things as medical consent to treatment. In situations of that type - and many others - a number of caring people may be involved who share the task of assisting the person affected with the disability.
Frequently these caring people cannot be described as a legal guardian, a spouse, or a direct unpaid carer. I ask: Should we add to their tasks by insisting that they arrange for Guardianship Board intervention just because they do not fit the narrow description of a person responsible, as provided for in the Act? I believe that people in our community who are willing to provide assistance and care for less able relatives or friends should be applauded. By widening the term person responsible to include other family members and a significant number of other people who take on some from of caring role, the legislation recognises their value and acknowledges it in a practical way. I commend the Minister for acknowledging the significant role of carers to those who have an intellectual disability.
Following the philosophy underlying the original legislation, the Guardianship Board and the Public Guardian should become involved only when it is absolutely necessary to protect the rights of people with disabilities. The proposed amendments guard against overintervention, and thereby will achieve gains for service users as well as service providers. First, they will benefit persons with disabilities and those who care for them, by creating a more direct system of medical consent provision. Second, the medical service providers and the Guardianship Board will be relieved of unnecessary paperwork, thereby promoting greater efficiency. The medical consent provisions of the bill will ensure smoother functioning and greater opportunity for patients to receive promptly the medical and dental treatment that they require. A doctor will now be allowed to proceed with minor treatments without the need to obtain formal consent when there is no person responsible, provided that the patient does not object. The doctor must also certify in the patient's records the incapacity to give informed consent and that the treatment is both necessary and the most appropriate in the circumstances.
I should like to highlight the importance of this amendment and how it will add support to some of the principles of the Government's recent legislation on disability services. The principles refer to the promotion of a quality of life for persons with disabilities that resembles as closely as possible that which the general community experiences and enjoys. A similar principle has been expressed by the New South Wales Council for Intellectual Disability which stated that people with an intellectual disability are, first and foremost, individuals who have exactly the same needs as all other community members. At those times when special additional care or services are required, they are best achieved when "based on the principle of normalisation". If minor medical and dental treatment can be arranged at a personal level - rather than through bureaucratic procedures - wherever possible the above principle is supported.
Additionally, the redefinition of dental treatment by dividing it into major and minor forms of treatment will allow for more appropriate levels of response. The term medical treatment has been clarified to exclude trivial or first-aid treatment as well as over-the-counter medications. The Minister's second reading speech noted that the paperwork for these bureaucratic procedures is not only time-consuming but has been identified as a cause of widespread non-compliance. I am sure all honourable members are concerned about protection of the individual, rather than neglect that may result from the obstacles posed by excessive paperwork. The individual with disabilities will remain protected as before in the circumstances which are described as special treatments. Those special treatments will require consent from the Guardianship Board.
The Hon. J. F. Ryan elaborated in his contribution on the aspect of special treatments. As before, the doctor or dentist may provide treatment without prior consent in situations where it is "urgently necessary to save a person's life or to prevent serious damage to their health". A welcome extension is the inclusion of treatments urgently needed to prevent significant pain and distress; also, such treatments are to be allowed without prior consent. The Government is to be commended for its thorough planning for this legislation by allowing wide consultation with the Guardianship Board and a variety of professional and community groups and individuals. The overwhelming support for the proposed amendments speaks for itself.
Schedule 2 to the bill will amend the Protected Estates Act 1983 to remove restrictions as to the circumstances in which the Guardianship Board can exercise its power to order the estate of a person to be subject to management under that Act. It will allow the Guardianship Board to deal with applications for financial management orders without having first to deal with a guardianship application. This will mean that fewer medical guardians will need to be appointed, and many families will no longer face the difficulties and expense of having to go to the Supreme Court for financial management orders. To conclude, I believe this amending bill will improve the efficiency and effectiveness of service delivery to elderly people and those with disabilities. The system will be more flexible and will meet the needs of the target group. I support the bill.
The Hon. Dr B. P. V. PEZZUTTI [3.59]: I register my pleasure at the changes made to the guardianship legislation. At the time the then Minister, the Hon. Virginia Chadwick, determined she was going to promulgate and implement this legislation it was obvious that there would be some problems. However, the judgment of the Minister of the new Government is that it is better to introduce this legislation than to waste considerably more time developing new legislation.
The PRESIDENT: Order! Pursuant to sessional orders, business is interrupted for the taking of questions.
This has worked very well. Mrs T and her son are now planning to live together, but the Protective Commissioner will ensure that she only contributes a fair portion of the rent and the son will not be able to take her money.