Who’s Responsible for my Medical Care?

Medical practitioners can administer urgent treatment, including treatment to save a person’s life or prevent serious damage to health, in the absence of consent. However, major medical or dental treatments that are not urgent require consent, and if the patient cannot provide consent themselves, the Guardianship Act 1987 (NSW) specifies the Person Responsible, who is able to provide consent on behalf of the patient.

Who is the Person Responsible

Section 33A of the Guardianship Act sets out that the Person Responsible for a child is the person with parental responsibility, and for anyone in the care of the Secretary of the Department of Family and Community Services, it is the Secretary. For any other person, th Act sets out the following hierarchy:

1. The Guardian of the patient, either appointed under the Guardianship Act or other Act, and including a person appointed as an Enduring Guardian further to the patient previously preparing an Appointment of Enduring Guardian document.

2. The spouse of the patient provided that the relationship is close and continuing

3. The carer for the patient.

4. A close friend or relative of the patient.

Consent requirements for Different Treatments

Major Treatment

The Person Responsible can provide consent to Major Treatment such as most treatments involving general anaesthetic or sedation, medications affecting the central nervous system or drugs of addiction, and for any treatment involving substantial risk to the patient. If there is no Person Responsible, consent is required to be obtained from the Guardianship Tribunal.

Minor Treatment

The Person Responsible can consent to Minor treatments and procedures, being treatments that are not Major Treatments or Special Treatments. These can include anaesthetic or sedation for managing fractures, or medication affecting the central nervous system for certain purposes such as analgesic or anticonvulsant purposes. If there is no Person Responsible, the Doctor may treat the patient if it is noted that the treatment is necessary to promote the patient’s health and wellbeing, and that there is no objection from the patient.

Special Treatment

Special Treatments for a patient are not able to be consented to by the Person Responsible, and require consent from the Guardianship Tribunal. Special Treatments include medication outside acceptable norms, treatments likely to result in infertility, or new treatments which are yet to gain widespread support from specialist practitioners.

The Importance of an Appointment of Enduring Guardian

The best way to ensure that you have control over who is the Person Responsible if needed in future in various circumstances, as well as outlining the terms and condition of such appointment is to prepare an Appointment of Enduring Guardian. If you have any further queries, contact Baker Love Lawyers

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