The New South Wales Attorney-General has asked the NSW Law Reform Commission to review and report on the desirability of making changes to the Guardianship Act 1987 (NSW) (Act). On 28 February 2017 Question Papers 4, 5 and 6 were released for comment. Submissions close on 12 May 2017.

The Questions Papers relate to:

• Question Paper 4 – Safeguards and procedures
• Question Paper 5 – Medical and dental treatment and restrictive practices
• Question Paper 6 – Remaining Issues.

Some of the questions discussed in Question Paper 5 include the capacity to consent to medical and dental treatment, consent to medical and dental treatment, clinical trials, advance care directives and restrictive practices.

Health and aged care

Under Part 5 of the Act, a person responsible can consent to major and minor treatment for a person who lacks decision-making capacity.

If the patient is under the age of 18, the person responsible is someone who has parental responsibility for them. In most other cases, the person responsible is whoever sits at the top of the hierarchy set out in the legislation. That hierarchy is, in descending order:

(a) the patient’s guardian (if any), who has been appointed with the power to give consent for medical and dental treatments;

(b) the patient’s spouse (if their relationship is close and continuing and the spouse is not under guardianship);

(c) a person who has care of the patient, and

(d) a close friend or relative of the patient.23

Relevant questions set out in Question Paper 5 for the health and aged care sector include:

Question: 4.6:

• Is the person responsible hierarchy appropriate and clear? If not, what changes should be made?
• Does the hierarchy operate effectively? If not, how could its operation be improved?

Pharmaceutical, medical device and life sciences

The paper also considers the question of who can authorise a patient’s participation in a clinical trial and in what circumstances?

Relevant questions for the pharmaceutical, medical device and life science sectors include:

Question 5.3: Who can consent to clinical trial participation?

(1) Who should be able to approve a clinical trial?

(2) Who should be able to consent to a patient’s participation in a clinical trial if the patient lacks decision-making capacity?

(3) How can the law promote the patient’s autonomy in the decision-making process?

 23 Guardianship Act 1987 (NSW), section 33A(4)