The people behind the policies... - Australian Medical Association ...

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medico-legalGuardianship Tribunal proceedings – the role of the medicalpractitioner by Melanie SheaThe Guardianship Tribunal (Tribunal) exercises protective jurisdictionfor people over the age of 16 living with a decision making disability.The Tribunal determines applications for the appointment ofguardians and financial managers and can provide substitutedconsent to medical or dental treatments. Further, the Tribunaloversees procedures for appointing enduring guardians.In most cases medical practitioners maybecome involved in Tribunal proceedingswhere:n They have a patient who is the subjectof an application in the Tribunal andthe doctor has been asked to reporton the decision making ability of thepatient; orn They have been asked, either by afamily member or by the subject of aTribunal order, to conduct a medicaltreatment and there are concernsabout consent to the treatment; orn They have concerns about the abilityof a patient to manage their ownaffairs.Applications in the TribunalIn applications for guardianship theTribunal may decide to appoint a privateguardian (a family member or willingfriend) or the Public Guardian. Guardiansare appointed for adults who areincapable of making their own decisionsabout their lifestyle. Medical treatmentdecisions are included in applications forguardianship.In applications for a financial manager,the Tribunal may decide to appoint aprivate financial manager (family orwilling friend) or the NSW Trustee wherethey decide a person is incapable ofmaking their own decisions about theirfinances.Pursuant to either of theseapplications, the Tribunal may contacta doctor requesting a report attestingto the decision making ability of apatient. While this is not a subpoena,4 I THE NSW DOCTOR I MARCH 2011the report should be completed in areasonable time and certainly before thecommencement of the hearing. Doctorsmay not be able to charge for preparinga report so be mindful of the amountof time spent. In the first instance thedoctor should contact their patientand advise that they have been askedto make a report. While consent is notnecessary for the report to be provided,and may be difficult to get if there arecapacity concerns, it is prudent to have adocumented discussion with the patientabout the report. The Tribunal requiresthat the person making the applicationserve a copy of the application on thesubject person and the subject of therequested report must be aware of theapplication.In circumstances where doctors treatseveral members of the same familythey may have concerns where anotherfamily member is making an applicationfor guardianship. Doctors must make aclinical judgment as to the contents ofthe report and not become embroiled infamily disputes. Any conflict of interestmust be clearly outlined in the reportto the Tribunal. Importantly, regardlessof which family members are patients,the doctor must ensure to maintainconfidentiality of the subject of the reportand must communicate directly withthe Tribunal rather than other familymembers.The Tribunal may also hearapplications for enduring guardianship.Enduring guardianship will becomeactive for decision making once a personloses capacity and the treating medicalpractitioner may be asked to report onthe ability of a patient to manage living athome independently when that occurs.Medical practitioners are not entitled towitness the signature and execution ofan enduring guardianship however theyare allowed to approach the Tribunal toseek a review if they have concerns aboutwhether their patient had capacity toconsent to the enduring guardianship.Consent to medical treatmentMedical practitioners will be awarethey have a legal duty to obtain consentto treatment before treating anypatient. It is the medical practitioner’sresponsibility to determine whethera patient is capable of understandingthe general nature and effect of thetreatment and whether they are ableto give a valid consent. If a practitionerbelieves that a patient is not capableof informed consent they must seekconsent from an appropriate substitutedecision maker including the ‘personresponsible’ or the Tribunal. TheGuardianship Act 1987 (the Act) statesthat a person responsible may be alegally appointed guardian of the person,or the spouse or de facto spouse, orrelative with a close relationship, or anunpaid carer. The Tribunal can makeorders for substituted consent, wherethere is no person responsible or wherethe person responsibly will not consentto the proposed treatment.Cont. page 18
From the CEOLooking forward – looking backFiona DaviesCEO, AMA (NSW)Elections (particularly in NSW when they onlyhappen every four years) are a good time forreflection. This election is resulting in lotsof interest in the past 16 years of the LaborGovernment and particularly why doctorsworking in the NSW public hospital system areso concerned about what has happened to theirhospitals.The issues in NSW hospitals are very similar tothe issues in other states and, in fact, hospitalsaround the world. The demand for healthcarecontinues to grow, as do the costs of providingthat care, and money to spend on hospitals isfinite. However there is a clear depth of feelingamong doctors about our hospitals. For evidenceof this you don’t have to look much further thanDr Andrew Pesce who left a quiet life as anobstetrician at Westmead Hospital two years agoto stand for the Presidency of the AMA based onthe depth of his concern.I date the difficulties in our hospitals to theevent surrounding Campbelltown and CamdenHospital in 2003-2004. I particularly recall beingat Governor Macquarie Tower in December 2003,looking over the views of the Harbour to see thenHealth Minister, Morris Iemma announce hewas going to go after the individual doctors andnurses he felt were to blame for the events atCampbelltown and Camden Hospital.As we have written over and again in The NSWDoctor, subsequent reviews cleared the doctorsand nurses of Campbelltown Hospital. Thanks tothe advocacy of the AMA and passionate doctors,Campbelltown and Camden is now “shorthand”for what happens when doctors are forced towork in a compromised, under resourced system,rather than any implications of poor medicalpractice.Despite this most doctors talk about feelinga significant loss of trust in a Government thatwas so willing to seek individuals out to makethem personally responsible for a poor system.Campbelltown and Camden was also importantbecause of the extent to which good clinicianbasedadvice was ignored for political expediency.The Greater Metropolitan Clinical Taskforce hadadvised that Camden maternity service shouldnot be opened because it was unsafe and wouldcompromise care. Despite this a political decisionwas taken to open the service and doctors had tolive with the consequences.The AMA’s advocacy in this state election hasalso been informed by the lessons learnt duringCampbelltown/Camden. We are pushing fora long-term vision for health not short-termpolitical fixes and promises. We want a planto ensure well trained doctors working wheretheir community needs them. We want generalpractice to be genuinely engaged in our hospitals,not through large bureaucracies but by beingseen as intrinsic to the care of the patients. Wewant to build on the work already achieved withhealth reform in returning doctors and nurses tofrontline decision making in our hospitals.Stop Press... AMA (NSW) Health ForumNSW HEALTH MINISTER, CARMEL TEBBUTTAND SHADOW HEALTH MINISTER, JILLIAN SKINNERWestmead Hospital Education CentreThursday, 10 March 201112.00 noon – 2.00 pmAllAMAmemberswelcomeLight refreshments available from 12.00 noon, program begins at 12.30pmRSVP to Janene Wardrop at AMA (NSW)via email at Janene@amansw.com.auor phone 02 9439 8822 www.amansw.com.au I 5
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