Public Guardian Consent Role

The Hon. J. KALDIS: I ask a question without notice of the Attorney General. Could the Attorney outline to the House the role of the Public Guardian in exercising substitute consent to medical treatments on behalf of people under guardianship?

The Hon. J. W. SHAW: I thank the Hon. J. Kaldis for his question because the role of the Public Guardian is insufficiently understood and sometimes misunderstood by members of the public and commentators. The Public Guardian is currently the guardian for approximately 1,300 people in New South Wales who have a disability such as dementia, intellectual disability, mental illness or acquired brain injury. The most common legal authority given to the Public Guardian is to consent to medical and dental treatment on a person’s behalf, often with the
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added authority to make decisions regarding proposed health care.

The actions of the Public Guardian in relation to substitute consent are governed by part 5 of the Guardianship Act 1987 and the regulations. Essentially, the law requires that a request for consent to major medical treatment be provided by a practitioner in writing and that consent for such treatment provided by either an appointed guardian or person responsible be returned in writing. A guardian has a duty, before considering the provision of consent on behalf of another person, to obtain and consider information on the nature and effect of the proposed treatment, alternatives and side effects, for example, to ensure that the person’s individual needs are recognised and met wherever possible. Sometimes this may mean that the Public Guardian will seek expert or second opinions on the person’s behalf.

It is not practice or policy for the Public Guardian to change doctors where a relationship exists between the person under guardianship and the doctor, which results in the provision of medical treatment that is appropriate for the person and is supported by valid consent. Staff of the Office of the Public Guardian appreciate that there are significant pressures on many practitioners within the health system and that the requirements of the Guardianship Act may sometimes present as an extra burden.

The Public Guardian has tried to ensure that practitioners are assisted as much as possible in relation to seeking consent from the Public Guardian. A standard form is available which provides questions relating to the information needed for a valid consent to be considered. Practitioners may fax their proposal and follow up with discussion by telephone where necessary. The Public Guardian provides a 24-hour service and a duty system within the office to ensure that there is an appropriately delegated officer available to provide consent to treatment, where that is in the best interests of the person, at any time of the day.

To assist medical practitioners with their understanding of responsibilities under the Guardianship Act in relation to the provision of information on the nature and effect of proposed treatments for a patient under guardianship, the Public Guardian has provided information sessions in most of the large public hospitals and in a significant number of private hospitals. Notification of policies of the Public Guardian that affect health care proposals are also sent to all hospitals in New South Wales.

At any one time the Public Guardian can be involved in discussions regarding treatments and care with a large number of general practitioners and consulting specialists. The vast majority of medical practitioners provide the Public Guardian with appropriate information and open and effective relationships ensue between practitioners and the Office of the Public Guardian, to the benefit of the person under guardianship. The work that the officers of the Public Guardian perform is exacting and sensitive. I admire the way in which they carry out that work. Despite occasional public criticism, I believe this is a function that is performed very much in the public interest, and very professionally.