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Useful Contacts

NSW Ministry of Health

The Office of the Chief Health Officer provides assistance with matters concerning Advance Care Planning.

Postal address Locked Mail Bag 961
North Sydney NSW 2059
Telephone (02) 9391 9188
Fax (02) 9391 9300
Email ocho@doh.health.nsw.gov.au

The Legal & Regulatory Services Branch provides a comprehensive legal service to the NSW Ministry of Health.

IMPORTANT NOTE!
Only those health professionals who are employed within the NSW Ministry of Health will be supported by the Ministry’s Legal and Regulatory Services Branch (Legal Branch) if a matter proceeds to court. If other health professionals require legal advice or support if a matter proceeds to court, they may wish to make enquiries within their own organisation, medical defence organisation or professional association.

Postal address Locked Mail Bag 961
North Sydney NSW 2059
Telephone (02) 9391 9606
Fax (02) 9391 9604
Email legalmail@doh.health.nsw.gov.au

Guardianship Division of the NSW Civil and Administrative Tribunal (formerly known as the Guardianship Tribunal)

Provides assistance in the following areas:

  • Applying for Tribunal consent to medical treatment
  • Person Responsible
  • Enduring Guardianship
Postal address New South Wales Civil and Administrative Tribunal – Guardianship Division
Locked Mail Bag 9
Balmain NSW 2041
Telephone (02) 9556 7600
1300 006 228
Toll free 1800 463 928
TTY (02) 9556 7634
Fax (02) 9555 9049
Email gd@ncat.nsw.gov.au
Website http://www.ncat.nsw.gov.au/Pages/guardianship/guardianship.aspx

NSW Public Guardian

Information and Support Team
Private Guardian Support Unit

Provides assistance in the following areas:

  • Enduring Guardianship
  • Support service for guardians
Postal address Public Guardian
Locked Bag 5116
Parramatta NSW 2124
Telephone (02) 8688 6070
Fax (02) 8688 9797
Email informationsupport@opg.nsw.gov.au
Website www.lawlink.nsw.gov.au/opg

Department of Justice

Diversity Services Unit

Provides information about capacity.

Postal address Diversity Services
Department of Justice
Locked Bag 5111
Parramatta NSW 2124
Telephone (02) 8688 8460 or (02) 8688 7507
Fax (02) 8688 9626
Email diversity_services@agd.nsw.gov.au
Website www.lawlink.nsw.gov.au/diversityservices
Available Resources

Training resources

NSW Health Guidelines and Policies:

Other Guidelines and Frameworks

Sample advance care planning templates:

Resources about Capacity

Test your knowledge of the law
  1. A person appointed under a Power of Attorney in NSW can make health care decisions on behalf of a patient, if the patient has lost decision making capacity. True or False?
    1. FALSE
      A Power of Attorney cannot be used to make health or lifestyle decisions on behalf of a patient. A Power of Attorney is a formal appointment that relates only to money and financial affairs while that person is alive. An Enduring Guardian is the equivalent formal appointment that allows someone to make health and lifestyle decisions on another person’s behalf when they have lost capacity to do so for themselves. Read more here.
  1. Frank is 80 years old and lives at home alone. His wife died several years ago and his only son lives interstate. He sees his son once or twice a year. Frank made his son his attorney under an enduring power of attorney when his wife died. Frank looks after himself, but his granddaughter visits him regularly to check on him and help with the groceries. Frank is taken to hospital after a severe fall, and is unconscious. After stabilising Frank, the doctors want to make a decision about his treatment. Frank is still unconscious. They need to seek consent from his ‘Person Responsible’. Who would this person be?
    • His son
    • His granddaughter
      His granddaughter. Under the Guardianship Act (Part 5) hierarchy for Person Responsible, in the absence of an Enduring Guardian, or spouse, the doctors would refer to his ‘carer, or person that provides care regularly’. In Frank’s case, this would be his granddaughter. His son’s Power of Attorney does not qualify him to make health and lifestyle decisions for his father. A Power of Attorney is a formal appointment that relates only to money and financial affairs while that person is alive. Read more about Person Responsible more here.
  1. Vanessa, 25 years old, is in a car accident and is unconscious in intensive care. Rebecca, Vanessa’s partner of two years, and Vanessa’s parents are by her bedside. The doctors want to get consent to go ahead with surgery. Vanessa never appointed an Enduring Guardian nor had a Power of Attorney drawn up. Who can provide consent on behalf of Vanessa, who is her Person Responsible?
    • Her father
    • Her mother
    • Her partner, Rebecca.
      Rebecca, her partner. Under the Guardianship Act (Part 5) hierarchy for Person Responsible, in the absence of an Enduring Guardian, a patient’s spouse (including a same sex partner) is the next on the hierarchy. In this case, Rebecca can legally provide substitute consent on behalf of Vanessa. While her parents should be engaged in discussions about her care and may help establish what Vanessa would have wanted, they are not the ultimate substitute decision makers. Even if Vanessa had made a Power of Attorney, the person appointed as attorney would not be able to make health or lifestyle decisions on her behalf. A Power of Attorney is a formal appointment that relates only to money and financial affairs while that person is alive, it does not extend to health and lifestyle decisions. Read more about Person Responsible  here.
  1. Advance care directives that are made in other States or Territories are not applicable in NSW. True or False?
    1. FALSE
      If an advance care directive is determined valid (has been made voluntarily by a capable adult, is clear and unambiguous and extends to the circumstance at hand) it is enforceable in NSW despite the State or Territory in which it was written. Advance care directives are enforceable under common law in NSW. Read more
  1. If a case is urgent or life threatening, a doctor does not need to gain consent to treat. True or False?
    1. TRUE
      Under the Guardianship Act 1987 (section 37), consent is not needed when treatment is considered necessary, as a matter of urgency:
      (a) to save the patient’s life, or
      (b) to prevent serious damage to the patient’s health, or
      (c) to prevent the patient from suffering or continuing to suffer significant pain or distress except in the case of special treatment.
      Note:  If special medical treatment is considered necessary as a matter of urgency to save the patient’s life or prevent serious damage to their health, then it can be given without consent.  However, section 37(c) states that, if the special medical treatment is considered necessary as a matter of urgency to prevent the patient from suffering significant pain or distress or continuing to do so it cannot be provided urgently without consent.  In that situation, substitute consent must be obtained from the Guardianship Division of the NCAT before the special medical treatment can be given.

    Generally, in non-urgent/emergency situations health care practitioners must seek the patient’s consent before treatment. Read more here.

  1. An Enduring Guardian who has been given the function in their appointment to make health care decisions on behalf of a patient, cannot consent to life-sustaining treatment being withheld or withdrawn if it means it will result in the death of the patient. True or False?
    1. FALSE
      An enduring guardian can consent to treatment being withheld or withdrawn if they have been expressly given such a power in their appointment (FI v Public Guardian [2008] NSWADT 263). It is important to review the terms in which guardians are appointed before making a decision and seek legal advice if you are unsure.
  1. A hospital is under no obligation to provide treatment that is understood to be futile, regardless of family opinion. True or False?
    1. TRUE
      Health care practitioners or their institutions are under no obligation to provide treatments that are futile, that is, treatment that is unreasonable and offering negligible prospect of benefit to the patient. However, the senior treating clinician remains responsible for the process whereby a consensus about end of life decisions might be sought with the patient or his/her Person Responsible, clarifying prognosis and defining an appropriate course of action and treatment plan. Read more here for more information about treatments that are futile.
  1. In a case where a patient has lost decision making capacity, referring to their ‘next of kin’ as indicated in their hospital/clinic records is legally acceptable as a substitute decision maker? True or False?
    1. FALSE
      It is a common belief that someone’s next of kin can consent to treatment for a patient if they lose capacity, however this is not supported by the law. Under the Guardianship Act 1987, a health care practitioner must consult the Person Responsible. Health care practitioners should, through discussion with the patient or available family members/friends, determine who this person is. Read more here
Interstate Substitute Decision-making Terminology

TABLE 1: Appointed substitute decision maker terminology in different Australian States and Territories.

This applies to substitute decision makers appointed by an individual to make health / lifestyle decisions in the event they lose capacity.

State or Territory Substitute decision maker terminology Decisions that can be made by the substitute decision maker
ACT Attorney Health care and life-management
NSW Enduring Guardian Medical treatment, health care, other personal decisions as nominated including accommodation, services (excludes any financial decision-making)
NT No legislative scheme Not applicable
SA Medical Agent
(before 1/7/14)
Medical treatment
Enduring Guardian
(before 1/7/14)
Health care and life-management
Substitute Decision Maker
(after 1/7/14)
Medical treatment, health care and personal matters
TAS Enduring Guardian Health care and life-management
VIC Attorney Health (except if provided to medical agent) and life management
WA Enduring Guardian Personal, lifestyle and treatment
Glossary

Advance Care Directive – An advance care directive is a type of written advance care plan recognized by common law or authorised by legislation that is completed and signed by a competent adult. An advance care directive can record the person’s preferences for future care and appoint a substitute decision maker to make decisions about health care and personal life management.

Advance Care Plan – An advance care planning discussion will often result in an advance care plan. Advance care plans state preferences about health and personal care and preferred health outcomes. They may be made on the person’s behalf, and should be prepared from the person’s perspective to guide decisions about care.

Advance care planning – Advance care planning involves thinking, discussing and documenting. It generally involves ongoing conversations between patients, their families and their treating health professionals introduced gradually over a period of time. These conversations enable planning ahead for potential deterioration in future health when that person becomes unable to make decisions about their own treatment and care.

Competence – Competence is a legal term used to describe the mental ability required for an adult to perform a specific task.

Consent – Consent by a patient to undergo medical treatment who is informed in broad terms of the nature of the proposed procedure. This may include sufficient information about their condition, investigation options, treatment options, benefits, possible adverse effects or complications, and the likely result if treatment is not undertaken, in order to be able to make their own decision about undergoing an operation, procedure or treatment.

End of life conflict – End of life conflict is defined as disagreement which occurs about the goals of care or treatment decisions at the end of life and where such conflict is not resolved by the usual recourse to time and further discussion between the patient, the family and the treating clinicians, as appropriate (Conflict Resolution in End of Life Settings Report, NSW Health 2010 http://www0.health.nsw.gov.au/pubs/2010/conflict_resolution.html)

Enduring Guardian – An Enduring Guardian is someone appointed by a person to make personal (including medical) or lifestyle decisions on their behalf when they are not capable of doing so for themselves. Enduring Guardians and those guardians appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) may make end of life decisions on the person’s behalf. The appointment of an Enduring Guardian comes into effect when the appointing individual loses capacity to make personal or lifestyle decisions. People can choose which decisions (called functions) they want their Enduring Guardian to make. These functions are governed by the NSW Guardianship Act 1987.

Guardian – A guardian is a substitute decision maker with authority to make personal or lifestyle decisions about the person under guardianship. A Guardian as referred to in this context is appointed formally by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) usually for a specified period of time and is given specific functions (e.g. the power to decide where the person should live, what services they should receive and what medical treatment they should be given).

Guardianship Division of the NCAT – This was formerly known as the Guardianship Tribunal. As of 1 January 2014, the Guardianship Tribunal became a Division of the New South Wales Civil and Administrative Tribunal (NCAT). The Guardianship Division is a specialist disability division within NCAT. The Division conducts hearings to determine applications about adults with a decision making disability who are incapable of making their own decisions and who may require a legally appointed substitute decision maker.

Life-sustaining treatment – Life-sustaining treatment is any medical intervention, technology, procedure or medication that is administered to forestall the moment of death, whether or not the treatment is intended to affect life-limiting diseases or biological processes. These treatments may include, but are not limited to, mechanical ventilation, artificial hydration and nutrition, cardiopulmonary resuscitation or certain medications (including antibiotics).

Mental health orders – A mental health order is an instruction made by the Mental Health Review Tribunal in regards to the treatment and care of a patient. If a person is subject to a mental health order this will influence their ability to refuse some treatments, but not remove their right to be involved in decision making. If there is any uncertainty regarding consent in this situation, advice should be sought from a senior mental health clinician

Power of Attorney – A Power of Attorney is a legal document appointing a person or trustee organisation of an individual’s choice to manage their money and financial affairs while they are alive. A person appointed by a Power of Attorney cannot make health and lifestyle decisions.

Person Responsible – A Person Responsible is someone who is legally able to make medical and dental decisions on behalf of another person who lacks the capacity to give their own consent to treatment. The Guardianship Act 1987 (NSW) defines the hierarchy of person responsible (in descending order):

  1. An appointed guardian (including enduring guardian) with the function of consenting to medical and dental treatment. If there is no-one in this category:
  2. A spouse or de facto spouse who has a close and continuing relationship with the person. If there is no-one in this category:
  3. The carer or person who arranges care regularly or did so before the person went into residential care, and who is unpaid (note: the carer’s pension does not count as payment). If there is no-one in this category:
  4. A close friend or relative.

Currently in NSW a Person Responsible who has not been appointed as an Enduring Guardian or as a guardian by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) does not have the same decision making authority in end of life decisions (read more here). Note that terms used such as ‘next of kin’, ‘contact person’ or ‘family’ on patient records does not necessarily correspond with the legally defined ‘person responsible’ and health care practitioners should check by asking family members and following the hierarchy.

Resuscitation Plan – A Resuscitation Plan is a medically authorised order to use or withhold resuscitation measures and which documents other aspects of treatment relevant at end of life.

Senior treating clinician – The senior treating clinician is the one who assumes overall management responsibility for a patient’s treatment plan and clinical care. This may be a Visiting Medical Officer in private or hospital practice, a staff specialist, a general practitioner, or a senior Registrar in training.

Substitute decision maker – Substitute decision maker is a collective term for those appointed or identified by law to make substitute decisions on behalf of a person whose decision-making capacity is impaired. A substitute decision maker may be appointed by the person (e.g. one or more Enduring Guardians appointed by the person under statutory provisions), appointed for (on behalf of) the person (e.g. a guardian appointed by the Guardianship Division of the NCAT), or identified as the default decision maker by the NSW Guardianship Act 1987 (such as a spouse or carer) as the Person Responsible.