3rd year Law notes – by Freya

Tutorial 1

 Understand Victorian guardianship law with reference to

a. The legal powers and responsibilities of proxy decision makers
b. Consent provisions involving persons with disabilities in relation to emergency
treatment, special procedures and other medical treatment.

Assesment of decision making capacity

 All adults are presumed capable

 This presumption can be disproved with sufficient evidence.

Capacity is defined as the absence of incapability. This requires two elements:

Inability to make decisions AND Cognitive Impairment.

The following could constitute a lack of capacity:

 Lack of knowledge of the matters that they need to make a descision about.
 Lack of knowledge of the choices that are potentially available.
 Lack of appreciation of the reasonably foreseeable consequences of choices including the
choice of doing nothing.
 Decision making based on delusional constructs.
PROVIDED they occur in the setting of cognitive impairment.

6 Steps of assessing capacity:

1. Ensure a valid trigger is present.
2. Engage those being assessed.
3. Information gathering
4. Education
5. Capacity assessment
6. Act on the results of the assessment.

Possible proxy decision makers

 Guardian appointed by VCAT
 Guardian appointed by the patient prior to becoming incompetent (enduring guardian)
 A close friend or relative of the patient (Person responsible).
All must act in the best interests of the person whom they represent.

VCAT guardians
May be plenary or limited.
PLENARY – Same powers and duties as a parent possesses over a child.
LIMITED – specific powers or time limits. Supposed to protect the person from neglect, abuse and
exploitation and take the person’s wishes into account.

Enduring guardians
Plenary unless outlines as otherwise.
 May revoke their responsibility at any time
 Must be over 18
 At the time of the appointment must not provide professional care or services to the
appointer.
 Can be revoked if not acting in the appointers best interests/ incompetent/ negligent.
Person responsible
First person from:
 Agent
 VCAT guardian
 Person appointed by VCAT to act as a guardian
 Enduring guardian
 Person appointed in writing by the patient
 Patient’s spouse
 Primary carer excluding paid carers
 Nearest relative over 18
o Child
o Parent
o Brother/sister
o Grandparent
o Grandchild
o Uncle/aunt
o Nephew/Niece
Where there are two relatives in the same position the elder is presumed responsible.

What if there is no person responsible?

 Carry out the treatment if it is in the best interests of the pt.
 Give notice to the public advocate regarding the nature of the condition, the proposed
treatmentm why it is in their best interests and a statement explaining that a reasonable
attempt has been made to find a guardian.

What if the patient is only temporarily disabled?

Best interests
These must take into account:
 Whether the patient’s wishes can be determined
 The wishes of the nearest relatives
 Whether the proposed treatment involves any risks
 Whether there are any alternative treatments
 Is the treatment only to promote/maintain health and wellbeing.
 The likely consequence of not undertaking treatment
Essentially the list of things that you would want to know if you were undergoing
treatment.

Person responsible can only decide treatment if:

 The practitioner believes that further delay would result in significant deterioration of the
patient’s condition.
 Neither party has any reason to believe that the patient would object.

If the person responsible and the medical practitioner disagree both parties can apply to VCAT for
consent for treatment if the above criteria are met.

When don’t you need consent?

 Minor treatments and non-invasive examinations for diagnostic purposes.
 First aid
 Administering a prescribed drug
  Emergency treatments.

VCAT Special procedures

Special procedures require consent from VCAT.
These are procedures intended to or likely to cause the patient to become
permanently infertile, the termination of a pregnancy and removal of
tissue for transplant into another person

Protecting your arse

Its good to know that statutory immunity is given to doctors if they acted on consent from someone
who they believed was authorized as the person responsible but was infact not OR if they acted
according to legislation without consent in the belief on reasonable grounds that statutory
requirements had been complied with.
But still buy indemnity cover…

Tutorial 2
 1. Understand statutory provisions which enable competent/incompetent patients to refuse
medical treatment.
2. Understand when treatment can be withdrawn in persistant vegetative state.
3. Understand the nature and effect of NFR orders.

What is suicide?
 The person who intends to suicide must actually die.
 The person must deliberately intend to kill themselves
 The person must have caused their own death
 The first two elements must occur simultaneously!

Refusal of medical treatment is NOT suicide.

Victorian Medical Board views on euthanasia

The Victorian Medical Board is strongly opposed to euthanasia because it is against everything for
which the medical profession stands, depression frequently accompanies severe illness and is likely to
affect an indevidual’s capacity to make this request and there is no absolute certainty as to when a
disease is terminal.

Refusal of medical treatment (Medical treatment act)

Few people are aware of their rights and many people feel powerless when it comes to disagreeing
with doctors.

Common law – Right to refuse treatment inc. lifesaving treatment.

Brightwater care group vs. Rosster
 Nutrition and hydration able to be ceased in a quadriplegic who is
mentally competent and understands the consequences.
 In this case it was decided it was illegal to continue treatment Palliative Care
Reasonable medical
Statutory law – refusal of treatment certificates
May be used only for a cyrrent medical condition and ceases to be effective procedures for relief of pain,
once the condition changes. This covers operations, administering drugs and suffering and disconfort and
other medical procedures. the reasonable provision of
**Does not cover palliative care*** food and water.
Does not cover the insertion
Refusal by incompetent patients of PEG tubes which may be
An agent of VCAT, guardian or an existing power of attourney may refuse refused or asked to be
treatment if: discontinued when they are
 It would cause unreasonable distress to the patient OR aimed at deferring the
 If there are reasonable grounds for believing that if the patient were process of dying.
competent they would view the treatment as unwarranted.

NFR Orders (DNR)

 Must be recorded as a formal order in the patient’s notes in a clear and unambiguous
manner.
 Should include a brief assessment of the patient’s competence/decision making capacity.
 Should inc a brief description of discussions with the patient, person responsible and family.
 If the treating team has decided not to involve the pt or a surrogate it needs to be
documented as to why.
 A statement of the medical condition that justifies and NFR.
 A statement regarding the scope of the order.
 Can be put to review and rescinded at any time.
A VCAT guardian is only able to make an NFR for a current medical condition.

Also, with the exception of an enduring power of attourney advance directives have no legal status
in Victoria (however they do give an idea as to the patient’s wishes).

Withdrawal of treatment in persistant vegetative state

 Same as refusal for incompetent patient. Persistant vegetative
 All possible treatment options and a full investigation of State:
awareness must have been explored before withdrawal of Diagnosis can only be
treatment
made after 1 year.
Patient is awake but not
aware of their
environment.

Tutorial 3
1. Understand the definition of death contained in the Victorian Tissue act.
2. Understand the statutory requirements governing organ and tissue removal from brain
dead and non-beating heart donors.
3. Understand statutory and common law regarding organ and tissue donation by competent
and incompetent donors.
4. Identigy legally permissible uses for removed organs and tissues.

Death (and how it relates to organ donation)

a) Irreversible cessation of ALL functions of a person’s brain
OR
b) Irreversible cessation of the circulation of blood.

Brain Death
Generally the practise of medicine is concerned with “brain-stem death” whereas the law is
concerned with whole brain death.
 This may not be beyond legal challenge.
 Permits removal of organs for transplant.
 Two independent medical officers of at least 5 years must agree that all brain function has
ceased.

Cardiac Death
Organs can only be taken after the heart has stopped beating and circulation has ceased.
 Requires invasive treatment before death
o Anticoagulants
o Cannulation of the femoral vessels for the purpose of rapid administration of
coolant.
There is no clear legal view regarding the disclosure of these ante-mortem interventions. Is there
implied consent for the medical team to take all reasonable steps to ensure the donation is
successful?

Consent for removal of tissues from the dead

 Any time in writing.
 Verbally in the presence of two witnesses during their last illness.
 If the senior next of kin agrees and the wishes of the deceased are unknown.
 No next of kin can be located and the medical officer has no reason to believe that the
patient would object and a reasonable enquiry must have been made to contact next of kin.
 Generally, even when the patient is a registered organ donor the next of kin must have their
views taken into account.

Consent for non-regenerative tissue

 Person must be at least 18 years.
 Consent must be in writing and time that consent was given must be stated.
 The specified tissue must not be removed until at least 24 hours have passed since consent
was given.
 A medical practitioner must assess the person for capacity and fill out a consent form

Consent for regenerative tissue

 Must be written consent
 A consent certificate must be filled out.
 Verbal consent sufficient for the removal of blood.

Rogers and Whittaker:

Must disclose reasonable risks:
Reasonable patient test and particular patient test.

Include possible physical and psychological reactions that the donor may experience following tissue
donation.

Revoking Consent
 Can be done any time, verbally or in writing.
 Information must be passed on to the treating team.
 Consent certificate must be returned to the donor.
 A record of the patient’s revocation must be retained for at least 3
years.

Consent from minors

Removal of non-regenerative tissue from minors for transplantation is prohibited unless:
 It is for a parent or sibling
 A doctor must verify that
o Consent was given in his/her presence
o The nature and effect of removal and transplantation was explained to the parent
and the child.
o They believed that the child understood and agreed.
If a child is uncapable of understanding, specified regenerative tissue may be removed for a sibling if
that sibling would otherwise die.

BLOOD – child able to donate if parent and child agree and a medical officer does not view it as
harmful to the child.

Consent from incompetent adult donors

Non regenerative tissue MAY NOT be removed without guardian and VCAT consent.

Autopsy and removal of tissue

A post-mortem exam may be made by the coroner or as part of a medico-legal forensic exam.
Hospital post mortems are only allowed if:
 The patient consented verbally in the presence of 2 witnesses or in writing.
 The senior next of kin consents.
 The senior next of kin cannot be ascertained and there is no reason to believe the deceased
would object.

Removal of tissue at autopsy

May be used for:
Therapeutic
Medical
OR scientific purposes.

There should be open communication with the family about all aspects of autopsy including the
retention of tissues. A code of conduct has been made regarding this but is not mandatory.

Tissues routinely removed:

 Heart. Aortic valves legally available for transplantation without discussion with the next
of kin.
 Cornea not routinely removed. Consent required.

Tissue removal for medical research

This is illegal if the purpose of the tissue being removed was not for the purpose of autopsy but for
the purposes of researchers.
 Small portions of organs able to be removed for histological classes.
 Demonstration to other pathologists and medical students would be within the law.

Tissue retention for diagnosis

 Due to insufficient time at autopsy.
 Some tissues may require fixation before proper dissection

The human tissue act does not cover what can be done with tissues removed in surgery. These are
frequently used in research in de-identified form.