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Welcome to the Office of the Public Advocate.
My name’s Phil Grano
and I’m the principal legal officer at this office.
The talk that we’re going to have this afternoon
is about consenting to medical treatment.
Firstly, why do I need to consent to medical treatment?
Why can’t medical treatment just be given to me anyway?
What if I’m unable to consent to treatment?
Say I’ve been involved in a car accident,
I’ve had a blow to the head and I can’t consent,
does that mean I can’t get treatment because I can’t consent to it?
Or can someone consent on my behalf?
So, that’s the second thing we’ll look at.
What if there’s an emergency
and there’s no-one around to consent on my behalf?
Do I just miss out on the treatment and die
or can someone actually take action and treat me?
So we’ll look at that, as well.
There may be times that we decide...
..“I just don’t want medical treatment.
“I don’t want, perhaps, my life to go on any longer.
“I’m in too much pain.”
So when can I refuse treatment?
So, they’re the four things we’re going to talk about this afternoon.
So, the consent one.
A doctor cannot provide you with treatment unless you consent to it.
They need your approval or authorisation
to go ahead with treatment, same as a dentist.
Why?
Well, you are in control of your body.
It’s your body, it’s no-one else’s.
And if someone touches your body without your authorisation,
that’s an assault.
So if someone’s going to operate on you,
which is putting a knife into you,
they need your consent to do it or else they’ve assaulted you.
So, the law says you need to consent
to someone doing something this serious to your body.
In 2006, the Victorian Government passed
the Charter of Human Rights and Responsibilities Act,
and that act contained within it, also,
a statement of this principle.
The principle that you have to give
full, free and informed consent to medical treatment.
‘Free’ doesn’t mean you don’t have to pay for it,
‘free’ means that you’re doing it without pressure upon you.
So someone’s not pressuring you,
you’re giving your consent freely to doing it.
And ‘informed’ means you’re told about the reasons
why you need this treatment,
what are the consequences of the treatment.
If you don’t get the treatment, what could happen to you?
So you’re able to give an informed consent to that.
So if I’m consenting, perhaps, to have my tonsils removed
and they talk me through that operation, I can then consent to it.
But if, while I’m under the anaesthetic,
they say, “Oh, look, he could do with a bit of facial work...”
(LAUGHTER)
“..why don’t we change that nose,” you know?
Well, I’ve not consented to that, so, therefore,
that is something that they have no consent to do,
therefore, they can’t do it.
The other good aspect about this
is that it keeps the patient at the centre of what this is about.
Your agenda as the patient
rather than someone else’s agenda
as a doctor who finds your case interesting.
So that’s why consent is really important.
But you might not be able to consent.
As I mentioned before, you might have been in a car accident
and you could be in a coma.
It’s not an emergency,
so they can’t treat you because it’s an emergency...
..but you do need someone to consent to treatment.
So who’s going to consent?
Is there anyone who can do this?
That’s what we want to look at -
who’s the person responsible to consent to treatment for you?
And, you know, ‘person responsible’
is exactly what the law has named this person to be.
The person responsible.
What we have is a list
of people possibly in your life
who could consent to treatment when you’re not able to consent.
What I’d like each of you to do, as we work through this list,
is to work out for yourself who is the person responsible for you.
So, let’s go through the list, shall we?
First one’s an enduring power of attorney (medical treatment).
You’ve probably heard of a financial power of attorney.
Any of you heard of a financial power of attorney?
And an enduring financial power of attorney
endures through any period where a person loses capacity.
This is different
in the sense that this is a different power of attorney.
It’s a power of attorney just to do with medical treatment decisions.
So you need to appoint someone specially.
And the word ‘attorney’s an interesting word.
It comes from an old French word about ‘turning’.
It’s interesting.
To whom do I turn when I need help?
My attorney.
So if you’ve appointed someone
your enduring power of attorney (medical treatment),
they will be the person responsible for you.
Has anyone here appointed
an enduring power of attorney (medical treatment)?
Ah! We’ve got some people who’ve done that.
So you will be very clear on who is the person responsible for you.
But many of us haven’t. So let’s go down.
We haven’t got that one, we go down to number two.
A person appointed by VCAT. What’s VCAT?
VCAT’s the Victorian Civil and Administrative Tribunal.
It’s the people’s tribunal.
So VCAT can appoint someone
to be the person responsible for you.
So someone must have taken a case to VCAT,
and VCAT said, “Alright,
“let’s appoint a person responsible for you.”
So that’s how you could have a person responsible.
That probably hasn’t happened to anyone in this room.
So we’ll go down to number three.
A guardian. What’s a guardian?
A guardian is, again, someone appointed by VCAT,
so the same tribunal.
Again, someone must have brought an application to the tribunal,
saying, “You need someone to make healthcare decisions for you,”
and VCAT has appointed a person called a guardian
to make that decision for you.
So, again, it’s unlikely that any of you here
would have, at this point, a guardian appointed for you.
So, we’ll go down to the next one.
An enduring guardian.
It’s different from a guardian
because this is another form of power of attorney.
You can actually appoint a power of attorney
who can make lifestyle decisions for you.
So, we’ve got three powers of attorney.
We’ve got the financial one, we’ve got the medical treatment one
and now we’ve got the enduring guardianship one.
Has anyone appointed an enduring guardian?
No. OK.
So, we haven’t scored anyone who’s made it
that the person responsible will be their enduring guardian.
Let’s go down to five.
A person appointed by the patient, in writing.
Now, you might think, “I’m going into hospital...
“..I can’t make a power of attorney,
“I haven’t got anyone here with me to make a power of attorney,
“I need that to be witnessed.
“I can’t appoint an enduring guardian,
“I haven’t got any witnesses.
“I’ll write a letter appointing my friend Mary
“to be the person responsible for me.
“I’ve talked to Mary about it. She’s OK about it.”
So I write a letter, I’ve appointed her in writing.
That would be sufficient to make Mary the person responsible for me.
Again, it’s unlikely any of you have done that.
So, we finally get to six,
which is often where most of you will find the person responsible.
It’s your spouse or domestic partner.
Now, ‘spouse’ here is the person you’re married to.
A domestic partner is the person you might be in a relationship with.
And it can include, with domestic partner,
a person in a same-sex relationship.
Say I’ve got a spouse but we’re separated
and I’m actually living with someone else who’s my domestic partner.
Which one will it be?
It’s going to be the one
I’m in a continuing relationship of care and support.
So it will be, in that case, the person I’m actually living with now
and not the person I was married to but separated from.
So have you found the person responsible for you yet?
Have you worked it out? No? We’ll go further down.
The patient’s primary carer.
Well, who’s the primary carer for you?
Most of us don’t have a primary carer
but sometimes there are older people, their spouse has died,
they’re living alone, don’t have any family.
Who is the person in their life
who may be occasionally checking on them,
coming round to visit them quite a bit,
just seeing that they’re alright?
Maybe it’s a person in the same street...
..maybe it’s a family member who calls around.
Just a person who’s able to give them continuing support.
Now, that person would be the person’s primary carer.
It’s not someone who’s doing it for money.
So if you’ve got, say, someone coming in to your home
as part of a council home care package, they’re being paid.
They’re not your primary carer.
If we haven’t got anyone to that point,
we go to eight, your nearest relative.
I hope we’re getting through, you’ve found someone by now.
(LAUGHTER)
OK. But, look, let’s go through them.
First of those would be your son or daughter, if you have one.
Well, you might have several, so which one?
It’s going to be the oldest of them.
So... Are you happy with that?
Anyway, that’s who it would be.
What about if you don’t have a son or daughter?
It would be your mother or father.
So, which one?
Again, it will be the older of those.
And the same with brother or sister.
If you don’t have the first two,
we go down to the third one, the brother or sister.
Again, it would be the older.
Grandfather, grandmother. Grandson, granddaughter. Uncle or aunt.
So, that’s as far as we go.
It doesn’t go as far as cousins, so they don’t get a guernsey.
What happens if you don’t have a person responsible
or they can’t be found?
It doesn’t mean you’ll miss out on treatment.
The law says that...
..a doctor who believes you need the treatment
can provide you the treatment if it’s in your best interests
and they provide the Public Advocate with a notice...
..and they make a record in your clinical notes
that this is what they’re doing,
then they can go ahead and provide you with that treatment.
So you’re putting your hands, in that case, totally in...
..your life, I suppose, and your health
in the hands of the physician.
So, what happens if the person responsible
and your doctor disagree about your treatment?
Let’s think of a situation.
Say I needed treatment for cancer
and the doctor thought this is what I should have, some chemotherapy.
But my person responsible said,
“No, Phil wouldn’t want that at this stage.
“He’d probably like to try alternative treatments.”
Now, the doctor might say, “Oh, no, no, no, no.
“I’m not going to entrust Phil to
“some sort of left-of-field treatments, therapies.”
But the person responsible’s saying,
“Well, I’m not consenting to your giving chemotherapy.”
When my person responsible says, “I’m not consenting,”
that doctor has three days to give the person responsible a notice.
At the same time,
has to give a notice to the public advocate, as well.
That puts the onus, then,
or the burden of the person responsible to go to VCAT...
..to bring the matter before VCAT, to have VCAT determine the matter.
If the person responsible says,
“I give in, I’m not going to pursue this any further,”
then seven days later the doctor can go ahead
and provide me with that treatment.
So, VCAT becomes a sort of dispute resolution process.
Are there any principles that guide the person responsible
for making decisions?
The law actually sets out quite a few
that the person responsible must consider
when making decisions on your behalf.
Firstly, they’ve got to take into account your wishes.
You might think, “Well, I don’t have capacity at this point,
“what’s the point of that?”
But you still may be able to express wishes about what you want.
So they have to take that into account.
They have to take into account the wishes of my family.
There may be different wishes within that family.
But they have to consider them.
They have to listen to them, note them, take them into account.
They have to look at the consequences for me
if I’m not provided with this treatment.
So, if we go back to that cancer example before,
if I don’t have the chemotherapy that the doctor’s suggesting,
my person responsible has to consider
what are the consequences for that.
They’ve got to look at any significant risks.
Say I need an operation.
Well, that usually involves an anaesthetic,
and if it’s a general anaesthetic,
they always carry risks of some sort.
But they’ve got to consider that.
Say I’ve got a heart problem,
then the risk of the anaesthetic and its effect upon my heart
could be significant.
They’ve got to weigh that up.
Could I die on the operating table
rather than have the particular injury attended to
through the operation?
There’s a lot of weighing up that this person responsible has to do.
They’ve got to look at alternative treatment options
and associated risks.
So, yes, they can look at alternative treatments
but they should be also asking the doctor,
“What other alternatives are there to chemotherapy?”
Or, “Are there some forms of chemotherapy
“that are perhaps less painful, less likely to cause nausea?”
Those sorts of things, and explore those.
Ultimately, they have to decide
is this treatment going to promote my health and wellbeing?
If it’s not, then maybe they shouldn’t be consenting to it.
So, they are the guidelines that the law requires.
There may be other things
that the person responsible thinks is relevant.
They should be asking those things too.
So, let’s recap about this person responsible.
It’s going to be the first person on that list that you can identify.
Have you all identified someone now? Nearly everyone.
They can give consent...
..when the patient is unable to give that consent.
They have to act in my best interests.
They can’t use this as an opportunity to torture me
by preventing me from having medical treatment.
Leaving me in pain. No, they can’t do that.
They have to act in my best interests.
If they get it wrong, there is a check and balance here
in relation to a doctor being able to take steps to protect me.
And if the doctor and the person responsible don’t agree...
..then there is a dispute resolution mechanism at VCAT.
Now, if you thought this was complicated,
I’m going to make it a little bit more complicated.
Not all medical treatment is medical treatment.
That’s a silly thing to say, isn’t it?
But the law was trying to find a balance between
what’s medical treatment for the purposes of the person responsible
that they can consent to
and what might be something we can entrust doctors to do anyway,
or other people to do.
So, there might be some things
that are not going to intrude upon you anyway
and so we’re not going to ask the person responsible
to consent to that.
So, if I’m looking at you in order to diagnose...
..you know, whether you’ve actually got a broken jaw or not,
and I’m just looking at you,
then that is something that they don’t require any consent to do.
It’s a non-intrusive examination.
First aid, I don’t need anyone’s consent.
Second one’s an interesting one.
The administration of a pharmaceutical drug.
Now, you’d think, “Oh, well,
“if someone wants to give me a Panadol for my headache,”
and they do it in accordance with the manufacturer’s instructions,
then, sure, a person responsible
shouldn’t have to be around to consent to that.
So that’s not included.
But there are lots of other drugs that we take
that could be pretty significant.
For instance, I could take blood pressure tablets
or diuretic tablets.
Blood-thinning tablets.
Whole lots of antibiotics that we take.
So there are lots of things that a doctor can actually prescribe for us
that the person responsible doesn’t have to consent to.
And the doctor can still provide them to us.
I mentioned earlier about emergency treatment.
You don’t need a person responsible to be there
to consent to emergency treatment.
If it’s an emergency, treat it.
So, what’s an emergency?
An emergency is something...
..treatment that’s going to save your life.
It’s going to be, perhaps,
treatment that prevents serious damage to your health.
So it might not be quite lifesaving treatment,
but say you’ve had a car accident...
..you’re badly injured and they want to do something now
that could just make it easier to treat you later...
..could prevent the injury from being worse.
So they take that step.
That could be an emergency treatment.
Has to be preventing serious damage, not just minor damage.
And it could be about treatment that just goes to stop the pain.
Serious, significant pain.
So, again, if I go to the car accident side,
might be someone giving you a pretty serious painkiller.
And that can be done because you’re in a lot of pain
and they need to take steps to prevent that.
So emergency treatment is treatment
that the person responsible doesn’t have to consent to.
And a special procedure, they can’t consent to.
A special procedure is a procedure that you could have
that could result in, first of all, your becoming sterile.
“I have prostate cancer and I need surgery for that.”
That may, it may not but it may lead, for instance,
to my becoming sterile.
If that were the case, then the person responsible
wouldn’t be able to consent to that.
That would have to go to VCAT.
Similarly, if it were a hysterectomy involved,
that would have to go to VCAT.
A termination of pregnancy would have to go to VCAT.
And if there were a transplant.
So someone wanted... or you wanted...
..or someone thought that you were
the right person to transplant, perhaps, spinal fluid
to someone who was a match
and who needed it for their treatment,
then VCAT’s consent would be needed for that.
The person responsible could not consent to that.
I’ve been talking about consenting to treatment.
Always makes it look as though treatment’s a really good thing.
But there may be times in our lives where we just don’t want treatment.
We want it to stop.
Again, I’ll go back to a cancer example.
Maybe I’ve got cancer, I’ve received a fair bit of treatment for it.
I’ve got other things wrong with me too.
I’ve got a heart problem, I’ve got a lung problem,
I’ve got a fair bit going wrong.
Maybe I need dialysis.
And...I get pneumonia.
And...I think, you know, “Will they treat the pneumonia?”
I’m really...I’m bedbound.
I indicated when I WAS competent...
Or maybe I’m still competent.
I say, “Well, I just...I think it’s time for me to go.”
Can I refuse that treatment?
And if I’m not competent to refuse it myself,
can someone else refuse it on my behalf?
If there is someone, who is that person?
There are two people who could possibly...
..refuse treatment on your behalf
if you were unable to refuse it for yourself.
The first one is that agent that you’ve appointed
under the Medical Treatment Act.
That’s a particular power that they have.
And that, in fact, is one of the main reasons
why you might consider appointing an agent,
is precisely to make these sorts of decisions for you.
The other person is a guardian appointed by VCAT.
So that person, if VCAT gives them the powers,
could also make a decision to refuse treatment on your behalf.
Some of you may have appointed a financial attorney.
When you appoint a financial attorney,
you can appoint one, two,
three, four...ten attorneys.
But with the medical enduring power of attorney,
you can only appoint one person.
And if that person dies before...
..you know...you need them...
..you can appoint an alternate attorney
to step into their place to make decisions for you.
Or maybe your attorney is, in fact, overseas.
Well, the alternate attorney can step in and make the decision.
They only get this power
once you lose capacity to make decisions for yourself.
So, if you still have capacity,
they can’t make this decision, they can’t step in.
But it means you’ve got to make this power
and it has to be witnessed by two people.
One of those people must be able to witness a statutory declaration.
So you just can’t get two people off the street to do it.
So, it involves...
..quite a bit of decision making from you about whom do I appoint,
whom do I trust to make these decisions for me...
..and will they know what I want?
Because there’s not much point appointing someone
and not telling them what you want.
It’s got to be someone who knows me, who understands me,
who can make decisions on my behalf.
So, what powers do they have?
As the person responsible,
they can consent to
medical treatment on your behalf.
But what we’re talking about now is they can refuse medical treatment.
When can they refuse medical treatment?
There’s only two instances
where they can do it.
The first one is where
they think that the treatment
would cause you
unreasonable distress.
What’s unreasonable distress?
Well, it might be where it’s more burdensome to have the treatment
than any benefit you’re going to get out of it.
So, if I go back to that cancer example...
..say I’ve got cancer and they’re offering me more chemotherapy.
The chemotherapy is going to be painful and it makes me nauseous
and I’ve had quite a lot of it,
and I think, “I don’t know if I want any more.”
And my agent might say,
“Alright, the benefit is Phil might live...
“..another couple of months, but they might be agonising months.”
It might be time for the agent to say,
“No, I’m going to refuse the chemotherapy.
“I’m going to allow Phil to just have palliative care.”
And so my time is coming to an end and I receive palliative care.
The other good thing is they can’t refuse palliative care,
so you’re not going to be stuck with
their refusing things that are going to stop the pain.
Now, the second one,
second situation,
is that they could refuse treatment
if they formed the view
that you thought the treatment would be unwarranted.
I think the particular provision says something like,
“Where the patient, after giving serious consideration
“to their health and wellbeing,
“would consider the treatment unwarranted.”
So your agent must know
when would you think the treatment would be unwarranted.
That’s why they’ve got to know your views.
I’ll give you a case of Mrs BWV.
Mrs BWV had dementia.
She had it for a long time
and it got so bad that, really,
she was considered to be in a state often called
a “persistent vegetative state”.
She was still able to breathe
but she was being fed by a tube that went into her stomach...
..and that’s how her life was sustained.
She couldn’t eat anything, she couldn’t communicate with anybody.
Her husband and her children
thought she wouldn’t want to live like this.
“We talked about this when she was alive and she didn’t want this.”
But she hadn’t appointed an agent,
so they went to VCAT and they asked to be appointed her guardian.
VCAT said, “Not sure we’ll appoint you.
“We’ll appoint the Public Advocate.”
So the public advocate got appointed
to consider whether Mrs BWV would consider the treatment unwarranted.
So we had to do a whole lot of investigative work.
And we formed the view
that she would have thought this treatment was unwarranted
and we would have stopped the food
going into her stomach through this tube.
Then there was a question,
is that stuff going into her stomach food or is it medical treatment?
If it’s food, we couldn’t at law refuse her
the reasonable provision of food and water.
But if it’s medical treatment, we can refuse it.
So we had to go to the Supreme Court
and ask the Supreme Court for a decision.
Is it medical treatment
or is it the reasonable provision of food and water?
The Supreme Court decided that it was medical treatment
and it could be refused.
So, at the end of that case, we refused medical treatment,
that being the feeding through the tube,
and about 14 days later Mrs BWV died.
So it’s really important
that people know what you would consider unwarranted.
Now, an agent or a guardian,
when they refuse medical treatment, they’ve got to sign a form
called the Refusal of Treatment Certificate.
And that is really the only way
they can refuse medical treatment on your behalf.
That’s what the act says they must do.
And you can only refuse medical treatment for a current condition,
so you’ve got to have something going wrong with you
before they can refuse that treatment.
Are there restrictions on the guardian’s or the attorney’s powers?
Yes.
Again, they can’t consent to special procedures.
Remember special procedures
was something that will result in sterilisation,
a termination of pregnancy or a transplantation.
And they can’t consent to psychiatric treatment
or withhold consent to psychiatric treatment,
because that’s treatment dealt with under another law,
called the Mental Health Act.
So, again, if I lost capacity...
..I had cancer of, say, the uterus
and I needed that operation but it would render me sterile,
who could consent?
That would have to go to VCAT.
So, VCAT is the body that you go to for resolution of these issues.
And it would only consent to the treatment
if they thought it was in your best interests.
And, you know, sometimes after operations
there are other things that need to be followed through on,
other sort of minor things that flow out of the operation,
they could authorise the person responsible
to consent and to make decisions in relation to that ongoing treatment.
Today I mentioned three powers of attorney.
The financial power of attorney, the medical power of attorney
and the enduring power of guardianship.
If you want to know more about these three powers...
..there’s a kit called ‘Take Control’.
And you can also look at our website
for the talk that’s given about enduring powers of attorney.
And I know you’ve had lots of questions
and, no doubt, as these things happen in your lives
you will have more questions to ask.
And the Office of the Public Advocate does have an Advice Service
and you can ring the advice service on 1300 309 337.
And if the questions are really complicated,
it might take us a bit of time to think them through,
but we’ll try and get back to you
and help you sort out the difficulties
associated with consenting or refusing medical treatment.
Now, we come to your questions.
If I ever fall out with my agent, what can I do about that?
Well, whilst you’re competent
you can actually revoke that power of attorney
and appoint someone else.
OK.
And if you’ve lost capacity,
then you probably have to find someone else
who is prepared to take the matter to VCAT
and ask VCAT to either suspend the power of attorney or to revoke it.
So, if I’m not happy with my eldest child
and yet that child is the first person on the list,
what can I do about that?
If you make it known to them
that you don’t want them to be the person responsible,
then they can’t act in that role for you,
because you’ve objected to them.
And then it would go to the next eldest.
So, if you weren’t happy with them you’d have to tell them too.
So I would suggest that if you got to the point
where you’re going through all your relatives
and not finding someone,
that you appoint an agent under the Medical Treatment Act.
And that way you get the person you want rather than rely on the list.
OK. That’s good.