Health Decision Dilemmas

1. Health Decision Dilemmas Rights vs Responsibility - Legal Framework Whose rights? Whose responsibilities? What laws? 16 March 2012

2. Overview • This session will examine the legislation governing decision making and implications for practitioners. It will consider how health professionals balance rights and legal responsibility and the role of Office of the Public Advocate when there is conflict in decision making.

3. Legislation • Guardianship and Administration Act 1986 • Medical Treatment Act 1988 • Mental Health Act 1986 • Disability Act 2006 • Charter of Human Rights and Responsibilities Act 2008 • Human Tissue Act 1982 • Severe Substance Dependence Treatment Act 2010 • Health Records Act 2001 • Equal Opportunity Act 2010 • Public Health and Wellbeing Act 2008

4. 1 Guardianship & Administration Act 1986 • Provides for the functions, powers and duties of the Public Advocate • Provides for the appointment of guardians and administrators • Defines when a patient is incapable of giving consent to ‘medical and dental treatment’ and provides for substitute consent to be provided by the ‘person responsible’ (and s.42K registration process) • Consent to ‘medical research procedures’ • Provides for VCAT to consent to ‘special procedures’ • Decision of MPB re Dr M Schulberg (reprimanded for carrying out termination of pregnancy on woman, with ID, on the basis of consent of the parents) • Makes no reference to next of kin

5. 1 Guardianship & Administration Act 1986 • Section 42O • Medical and dental practitioners will not be: • guilty of assault or battery • guilty of professional misconduct • liable in any civil proceeding for assault and battery • If act in compliance with the requirements of the Act

6. 2. Medical Treatment Act 1988 • Provides for a competent donor to appoint a medical agent under an Enduring Power of Attorney (Medical Treatment) • Provides for a competent person to complete a Refusal of Treatment Certificate: Competent Person • Provides for an agent or (VCAT appointed) guardian to complete a Refusal of Treatment Certificate Agent or Guardian of Incompetent Person • Makes no reference to next of kin

7. 2. Medical Treatment Act 1988 • It is possible to refuse ‘medical treatment’ but it is not possible to refuse ‘palliative care’ • The provision of reasonable medical procedures for the relief of pain, suffering and discomfort; or • The reasonable provision of food and water • artificial nutrition and hydration is ‘medical treatment’, not ‘food and water’

8. 3. Mental Health Act 1986 • Provides for the criteria for involuntary treatment – thus permitting detention of patient and compulsory psychiatric treatment • Defines when a person is ‘mentally ill’ • Consent requirements for psychosurgery and ECT • Provides for when restraint and seclusion can be used • Provides for who can consent to non-psychiatric treatment when the patient is incapable of giving consent • Different to the person responsible provisions in the GAA • Role of Mental Health Review Board • Makes no reference to next of kin

9. 4. Disability Act 2006 • Disability is defined to include sensory, physical or neurological impairment or acquired brain injury – and expressly excludes ageing • Provides for when restrictive interventions can be used against people with disabilities – “any intervention that is used to restrict the rights or freedom of movement of a person with a disability including chemical restraint, mechanical restraint, seclusion” • Provides for supervised treatment orders (form of civil detention) – only for persons with ID

10. 5. Charter of Human Rights & Responsibilities Act 2008 • Provides for a number of civil and political rights (but not socio-economic rights) • Right to life • Protection from torture and cruel, inhuman or degrading treatment • Freedom of movement • Right to liberty and security of person • Right to privacy • A human right can be reasonably limited – but only if demonstrably justified • A public authority must act compatibly with a person’s human rights

11. 6. Human Tissue Act 1982 • Donation of tissue by living persons • Donation of tissue after death • This Act does refer to (senior) next of kin

12. 7. Severe Substance Dependence Treatment Act 2010 • Provides for the detention and compulsory treatment of a person for their substance dependence at a prescribed treatment clinic (that is, De Paul House – SVH) who is subject to a detention and treatment order from the Magistrates Court

13. 8. Health Records Act 2001 • Provides for the protection of health information in the private and public health sectors • Provides for the right of access to health information • If consent required by the collection, use or disclosure of health information and the person not capable of giving consent – then it can be given by the authorised representative • guardian, financial attorney, medical agent, administrator, person responsible, parent (of child), otherwise empowered under law … • Health Privacy Principles (HPP)

14. 9. Equal Opportunity Act 2010 • Provides for protection against discrimination and sexual harassment – in a number of areas of public life, including the provision of goods and services • Is medical treatment not offered because the treatment is deemed futile and burdensome? or • Has a value judgement being made about the value of the person’s quality of life – rather than a clinical assessment of the treatment?

15. 10 Public Health & Wellbeing Act2008 • Part 8 relates to management and control of infectious diseases. • There are specific provisions which permit a patient to be examined and tested after incidents involving caregivers or custodians with the direction by the Chief Medical Officer. A blood test can be taken from a person with a disability at the direction of the Chief Medical Officer. • Therefore it is not necessary to seek the consent of the person responsible – and noting that the treatment (taking of blood) is not therapeutic for the patient.

16. Common law • Legislation does not cover the field. For example: • Use of chemical and mechanical restraint (other than under the MHA, DA, SSDTA) – this occurs in other contexts which are not regulated by legislation (general hospital wards, aged care facilities) • If the treatment is not ‘medical and dental treatment’ as defined in the GAA then consent is not required from the ‘person responsible’ – the administration of a pharmaceutical drug is expressly excluded from the definition • Common law advance directives

17. Whose Rights? Whose Responsibility? • Rights of the patient • Not to be treated (without consent) – trespass against the person • Not to be detained for treatment – false imprisonment • Not to be restrained, secluded – trespass, false imprisonment • Rights of those associated with the patient • What rights? Where are they sourced? • What if their ‘rights’ are in conflict with the patient’s rights (eg privacy, respecting the patient’s wishes not to be visited) • Rights of the staff • OH&S • Rights of others – innocent bystanders • If a person asserts a ‘right’ is it a right?

18. Autonomy – Competent (Adult) Patients • “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” Justice Cardoza in Schloendroff v Society of New York Hospital, 211 NY 125, 130 (1914) • Right to refuse treatment, even if life threatening • Right to discharge from hospital contrary to medical advice • Refusal of brain surgery by patient due to high risk of death/disablement • Refusal of antibiotics to treat pneumonia by frail elderly (competent) person – who says she is ready to die • Refusal of blood transfusion by otherwise healthy young patient – because of religious beliefs

19. Principles informing substitute decision-making • The framework for decision-making by the ‘person responsible’ is ‘best interests’ – forming a view about a person’s best interests necessarily entails ascertaining their wishes as far as possible • The MTA provides and agent/guardian can refuse treatment on behalf of a patient if: • The medical treatment would cause unreasonable distress to the patient; or • There are reasonable grounds for believing that the patient, if competent, and after giving serious consideration to his or her health and well-being, would consider that the medical treatment is unwarranted.

20. What if the person responsible is not acting in the best interests of the patient – as required by the GAA? • The medical practitioner could complete a s.42M form • This is very rare • The medical practitioner could apply to VCAT for the appointment of a guardian

21. What if the medical practitioner disagrees with the decision of the agent/guardian to refuse treatment under the MTA? • VCAT can suspend an EPA if satisfied that the refusal of treatment is not in the best interests of the donor • VCAT can revoke an EPA if satisfied that not in the best interests of the donor for it to continue • If VCAT does suspend or revoke an EPA and the donor is currently a patient in a public hospital, denominational hospital, private hospital or nursing home – then VCAT must give written notice to the hospital or home

22. Emergency Treatment • Consent is not required in an emergency (in circumstances where the patient is incapable of providing consent) • However, if there is a valid Refusal of Treatment Certificate then the treatment identified in that Certificate which the patient (or their agent or guardian has refused) should not be provided • Section 6 of the MTA provides for the offence of medical trespass when a registered medical practitioner provides treatment knowing there is a Certificate

23. NFR, no CPR, DNR – whose decision is it? • A medical practitioner can make a clinical judgement not to provide treatment because it is futile and burdensome – this could include that CPR would be futile and burdensome for this particular patient, in which case the medical practitioner could make a no CPR order. This would require discussion with family to explain the decision but would not require anyone to approve the decision. Family members may challenge the decision and seek a second opinion. • If the treatment is to be offered – THEN it requires someone to provide consent. However, generally resuscitation will happen in the context of an emergency (ie no consent required). • Therefore if the patient has a guardian or agent who considers such treatment should not be provided (knowing it would generally be in the context of an emergency and they would not be consulted to make a decision) then they should complete a Refusal of Treatment Certificate.

24. Can a medical practitioner be compelled to provide treatment? • On rare occasions, distressed family members may issue proceedings at the Supreme Court in its parens patriae jurisdiction seeking orders that medical treatment be provided – most particularly the continuation of a life support • The Courts are reluctant to substitute a clinical judgement of medical practitioners • It is suggested the decision not to provide treatment should be supported by a second opinion

25. Role of OPA • Appointed by VCAT as guardian with powers and duties to make decisions concerning medical and dental treatment and other healthcare – and other types of decision (such as access to the represented person) • Powers as ‘person responsible’ under the GAA • Powers under the MTA • Authorised representative under the HRA • Act as advocate for a person with a disability • Provide advice as to the provisions of the GAA • Provide education

26. OPA …. and conflict, as guardian • The Public Advocate is appointed guardian by VCAT only as ‘last resort’ • In circumstances where there is no one else available and willing to be guardian • In circumstances where those wishing to be guardian are deemed not ‘suitable’ • Recent VCAT decision – MM (Guardianship) [2012] VCAT 122 – explored that siblings not suitable to make medical decisions because of their inability to consult each other.

27. OPA …. and conflict, as advocate • A treating team may seek the involvement of OPA in difficult situations due to the escalated tension between the treating team and the family of the patient – most particularly in end of life decision-making • A family member may seek the involvement of OPA due to their distrust of the treating team’s decisions, treatment, etc

28. OPA resources • Practice Guidelines • Advocacy and Decision-making in relation to medical and dental treatment and other healthcare • People with HIV • Jehovah’s Witnesses and Blood Transfusions • Special Procedures • Organ Donation • Mental Illness • Medical Research • Advocating for Restraint • Fact Sheets • Advice Service • Advice service (M-F, 9-5) and emergency out of hours service – call same number – 1300 309 337 • www.publicadvocate.vic.gov.au