Guardianship and Administration (Amendment) Act 2002

i Guardianship and Administration (Amendment) Act 2002 Act No. 41/2002 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 PART 2—AMENDMENT OF THE GUARDIANSHIP AND ADMINISTRATION ACT 1986 3 3. Definitions 3 4. Powers and duties of the Public Advocate 3 5. Power to enforce guardianship order 4 6. Appointment of alternative guardian 5 7. Appointment of enduring guardian 5 8. Authority of enduring guardian 6 9. Revocation of appointment by appointor 6 10. Revocation of appointment by Tribunal 7 11. Persons to whom Part applies 7 12. Person responsible 7 13. Best interests 8 14. Persons who may consent to medical or other treatment 8 15. Effect of consent 8 16. Refusal of medical treatment under the Medical Treatment Act 1988 9 17. Substitution of section 42E 9 42E. Consent of Tribunal to special procedure 9 18. Consent of person responsible 9 19. New section 42HA inserted 10 42HA. Consent if patient is likely to recover within a reasonable time 10 20. Persons eligible as administrators 12 21. New section 50A inserted 12 50A. Power to make gifts 12 22. Administrator may seek advice 13 23. Accounts 13 -- 1 of 28 -- Section Page ii 24. New sections 58AA and 58AB inserted 13 58AA. Guardianship and Administration Fund 13 58AB. Notice of death of represented person 14 25. Ancillary powers of administrator 15 26. Who is entitled to notice of a reassessment? 15 27. Registration of interstate orders 16 28. Schedule 4 16 PART 3—AMENDMENT OF THE MENTAL HEALTH ACT 1986 18 29. Definitions 18 3A. Meaning of consent of a person 18 30. Criteria for admission and detention as an involuntary patient 19 31. Admission and detention of involuntary patients 19 32. Community treatment orders 20 33. Transfer of mentally ill prisoners 20 34. Status of forensic patients 20 35. Requirements for obtaining informed consent 20 36. Consent required 20 37. Informed consent required 20 38. Definitions 21 39. Informed consent or consent of guardian or authorized psychiatrist required 21 40. Consent to non-psychiatric treatment by guardian or authorized psychiatrist 22 41. Repeal of section 86 24 42. New section 148 inserted 24 148. Transitional provision—Guardianship and Administration (Amendment) Act 2002 24 PART 4—AMENDMENT OF THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 25 43. Schedule 1 25 ═══════════════ ENDNOTES 26 -- 2 of 28 -- 1 Guardianship and Administration (Amendment) Act 2002 † [Assented to 17 September 2002] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The purposes of this Act are— (a) to make miscellaneous amendments to the Guardianship and Administration Act 1986 concerning matters such as— Victoria No. 41 of 2002 -- 3 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 2 (i) consent to medical or dental treatment on behalf of persons incapable of giving consent; and (ii) the appointment of alternative enduring guardians; and (iii) gifts by administrators; and (iv) the powers and duties of the Public Advocate; and (v) the Guardianship and Administration Fund; and (b) to amend the Mental Health Act 1986 concerning consent to non-psychiatric and psychiatric treatment; and (c) to amend the Victorian Civil and Administrative Tribunal Act 1998 concerning the constitution of the Tribunal for certain proceedings. 2. Commencement (1) This Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 January 2003, it comes into operation on that day. __________________ s. 2 -- 4 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 3 PART 2—AMENDMENT OF THE GUARDIANSHIP AND ADMINISTRATION ACT 1986 3. Definitions (1) In section 3(1) of the Guardianship and Administration Act 1986, in the definition of "registered practitioner", for "Dentists Act 1972" substitute "Dental Practice Act 1999". (2) For section 3(2) of the Guardianship and Administration Act 1986 substitute— '(2) A reference in the definition of "nearest relative" in sub-section (1) to a person's brother or sister— (a) is a reference to a brother or sister whether of the full or half blood; and (b) includes a reference to a person who was adopted by one or both of the first-mentioned person's parents.'. 4. Powers and duties of the Public Advocate (1) For section 16(1)(ha) of the Guardianship and Administration Act 1986 substitute— "(ha) for the purposes of— (i) an investigation under paragraph (h); or (ii) the provision of a report under clause 35, 42 or 48 of Schedule 1 s. 3 See: Act No. 58/1986. Reprint No. 5 as at 1 January 2000 and amending Act Nos 78/2000, 11/2001, 27/2001 and 51/2001. LawToday: www.dms. dpc.vic. gov.au -- 5 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 4 to the Victorian Civil and Administrative Tribunal Act 1998— require (subject to sub-section (1A)) a person, government department, public authority, service provider, institution or welfare organisation to provide information; and". (2) After section 16(1) of the Guardianship and Administration Act 1986 insert— "(1A) It is a reasonable excuse for a person to refuse or fail to provide information that the person would otherwise be required under sub-section (1)(ha) to provide if providing the information would tend to incriminate the person.". 5. Power to enforce guardianship order (1) For section 26(1) of the Guardianship and Administration Act 1986 substitute— "(1) If, having regard to the circumstances of the case, the Tribunal considers it appropriate to do so the Tribunal may— (a) when making a guardianship order under Division 2 or 4, specify in the order; or (b) at any time while a guardianship order under Division 2 or 4 is in force, make an order specifying— that the person named as plenary guardian or limited guardian or another specified person is empowered to take specified measures or actions to ensure that the represented person complies with the guardian's decisions in the exercise of the powers and duties conferred by the guardianship order.". s. 5 -- 6 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 5 (2) After section 26(2) of the Guardianship and Administration Act 1986 insert— "(3) Sub-section (1) does not limit section 24 or 25.". 6. Appointment of alternative guardian In section 34(1) of the Guardianship and Administration Act 1986, for "The Tribunal at the time of making or reassessing a guardianship order may by order appoint" substitute "When making or reassessing a guardianship order, or at any time when a guardianship order is in force, the Tribunal may make an order appointing". 7. Appointment of enduring guardian (1) After section 35A(1) of the Guardianship and Administration Act 1986 insert— "(1A) A person may, in the same instrument, also appoint a person to be an alternative enduring guardian. (1B) An alternative enduring guardian takes the place of, and has the same powers as, the original enduring guardian if that person is incapable of acting as the enduring guardian or is absent for a period.". (2) In section 35A(2) of the Guardianship and Administration Act 1986— (a) in paragraph (b), after "guardian" insert "and the person appointed as the alternative enduring guardian (if any)"; and (b) in paragraph (c)(ii), after "guardian" insert "or alternative enduring guardian (if any)". (3) In section 35A(3) of the Guardianship and Administration Act 1986, after "guardian" insert "or alternative enduring guardian". s. 6 -- 7 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 6 (4) In section 35A(4) of the Guardianship and Administration Act 1986, after "guardian" insert "or alternative enduring guardian". (5) For section 35A(5) of the Guardianship and Administration Act 1986 substitute— "(5) If a person who was validly appointed as an enduring guardian or alternative enduring guardian becomes ineligible to be appointed because of sub-section (4), that person's appointment lapses.". 8. Authority of enduring guardian In section 35B of the Guardianship and Administration Act 1986, in sub-sections (1) and (2), for "personal" substitute "person or". 9. Revocation of appointment by appointor (1) For section 35C(1) of the Guardianship and Administration Act 1986 substitute— "(1) If a person appoints an enduring guardian or alternative enduring guardian, any earlier appointment of an enduring guardian or alternative enduring guardian (as the case may be) is revoked.". (2) In section 35C(2) of the Guardianship and Administration Act 1986, after "enduring guardian" insert "or alternative enduring guardian". (3) In section 35C(3) of the Guardianship and Administration Act 1986— (a) after "enduring guardian" (where first occurring) insert "or alternative enduring guardian"; and (b) in paragraph (b)(ii), after "enduring guardian" insert "or alternative enduring guardian (as the case may be)". s. 8 -- 8 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 7 10. Revocation of appointment by Tribunal In section 35D of the Guardianship and Administration Act 1986, after "enduring guardian" (wherever occurring) insert "or alternative enduring guardian". 11. Persons to whom Part applies In section 36(1) of the Guardianship and Administration Act 1986 omit "which is a permanent or long term disability and". 12. Person responsible (1) In section 37(2) of the Guardianship and Administration Act 1986 for "otherwise than for remuneration (whether from the patient or any other source)" substitute "other than wholly or substantially on a commercial basis". (2) After section 37(5) of the Guardianship and Administration Act 1986 insert— '(6) For the purposes of sub-section (1)(h), if the patient— (a) is likely to be capable, within a reasonable time, of giving consent to the carrying out of a special procedure or medical or dental treatment; and (b) objects to a relative referred to in paragraphs (a) to (g) of the definition of "nearest relative" in section 3(1) being involved in decisions concerning a special procedure to be carried out on the patient or the patient's medical or dental treatment— that relative is taken not to be the nearest relative of the patient.'. s. 10 -- 9 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 8 13. Best interests At the end of section 38 of the Guardianship and Administration Act 1986 insert— '(2) For the purposes of sub-section (1)(b), if the patient— (a) is likely to be capable, within a reasonable time, of giving consent to the carrying out of a special procedure or medical or dental treatment; and (b) objects to— (i) a relative referred to in paragraphs (a) to (g) of the definition of "nearest relative" in section 3(1); or (ii) another family member (other than the patient's spouse or domestic partner)— being involved in decisions concerning a special procedure to be carried out on the patient or the patient's medical or dental treatment— that relative or family member is taken not to be the nearest relative or a family member of the patient.'. 14. Persons who may consent to medical or other treatment In section 39 of the Guardianship and Administration Act 1986, for "Consent" substitute "Subject to Divisions 4 and 5, consent". 15. Effect of consent In section 40 of the Guardianship and Administration Act 1986, for "under this Part" substitute "in accordance with this Part". s. 13 -- 10 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 9 16. Refusal of medical treatment under the Medical Treatment Act 1988 In section 41 of the Guardianship and Administration Act 1986, after "dental treatment" insert ", or special procedure,". 17. Substitution of section 42E For section 42E of the Guardianship and Administration Act 1986 substitute— "42E. Consent of Tribunal to special procedure On hearing an application under this Division, the Tribunal may only consent to the carrying out of a special procedure if it is satisfied that the patient is incapable of giving consent and— (a) if the patient is likely to be capable, within a reasonable time, of giving consent, the special procedure— (i) is a procedure to be carried out for the purposes of medical research; and (ii) would be in the patient's best interests; or (b) if the patient is not likely to be capable, within a reasonable time, of giving consent, the special procedure would be in the patient's best interests.". 18. Consent of person responsible At the foot of section 42H(1) of the Guardianship and Administration Act 1986 insert— "Note: However, section 42HA affects whether the person responsible may consent to the carrying out of medical or dental treatment in certain circumstances.". s. 16 -- 11 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 10 19. New section 42HA inserted After section 42H of the Guardianship and Administration Act 1986 insert— "42HA. Consent if patient is likely to recover within a reasonable time (1) This section applies despite anything else in this Part but does not apply to emergency treatment under section 42A. (2) If a patient is likely to be capable, within a reasonable time, of giving consent to the carrying out of medical or dental treatment, the person responsible for the patient can only consent to the carrying out of the treatment, and a registered practitioner can only carry out that treatment, if— (a) the registered practitioner reasonably believes, and states in writing in the patient's clinical records, that a further delay in carrying out the treatment would result in a significant deterioration of the patient's condition; and (b) neither the registered practitioner nor the person responsible has any reason to believe that the carrying out of the treatment would be against the patient's wishes. (3) If the registered practitioner or person responsible has reason to believe that the carrying out of the treatment would be against the patient's wishes, the practitioner or person responsible may apply to the Tribunal for its consent to the carrying out of the treatment. s. 19 -- 12 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 11 (4) The Tribunal must— (a) give notice of the application and of any order, directions or advisory opinion made or given concerning the application to— (i) the Public Advocate; and (ii) any other person whom the Tribunal considers has a special interest in the patient's affairs, including the registered practitioner and person responsible for the patient; and (b) start hearing the application within 14 days after the day on which the Tribunal received it. (5) The patient is a party to the proceeding on the application. (6) On hearing the application, the Tribunal may consent to the carrying out of the medical or dental treatment, and a registered practitioner may carry out that treatment, if the Tribunal is satisfied that— (a) the patient is incapable of giving consent; and (b) a further delay in carrying out the treatment would result in a significant deterioration of the patient's condition; and (c) the treatment would be in the patient's best interests, having regard to the evidence (if any) of the patient's views about such treatment.". s. 19 -- 13 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 12 20. Persons eligible as administrators For section 47(4) of the Guardianship and Administration Act 1986 substitute— "(4) If the Tribunal makes an order— (a) appointing State Trustees as administrator of the estate of a proposed represented person; and (b) specifying that the administrator is to have powers and duties which are more limited than those referred to in Division 3A— the Tribunal must give State Trustees a copy of the order as soon as practicable after it is made.". 21. New section 50A inserted After section 50 of the Guardianship and Administration Act 1986 insert— "50A. Power to make gifts (1) An administrator may make a gift of the represented person's property only if— (a) the gift's value is not more than what is reasonable in all the circumstances and, in particular, the represented person's financial circumstances; and (b) the gift is— (i) to a relative or close friend of the represented person and is of a seasonal nature or for a special event (including, for example, a birth or marriage); or s. 20 -- 14 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 13 (ii) a type of donation that the represented person made when he or she had the capacity to do so or might reasonably be expected to make. (2) The administrator or a charity with which the administrator has a connection is not precluded from receiving such a gift. (3) The administrator must notify (in writing) the Tribunal if the value of the gift, or total value of the gifts, of the represented person's property to the administrator, or a charity with which the administrator has a connection, is $100 or more.". 22. Administrator may seek advice After section 55(4) of the Guardianship and Administration Act 1986 insert— "(4A) The Tribunal may on its own initiative direct, or give an advisory opinion to, an administrator concerning any matter.". 23. Accounts In section 58 of the Guardianship and Administration Act 1986, sub-sections (7) and (9A) are repealed. 24. New sections 58AA and 58AB inserted After section 58 of the Guardianship and Administration Act 1986 insert— '58AA. Guardianship and Administration Fund (1) There is to be established in the Public Account as part of the Trust Fund an account to be known as "The Guardianship and Administration Fund". s. 22 -- 15 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 14 (2) There is to be paid into the Fund— (a) all fees prescribed under section 58A that are paid in respect of estates which are the subject of an administration order; and (b) interest received from the investment of money in the Fund. (3) There is also to be paid into the Fund all money standing to the credit of the Guardianship and Administration Fund established by section 58(7) immediately before that provision was repealed. (4) Money standing to the credit of the Guardianship and Administration Fund may be invested in any manner in which trust funds may be invested under the Trustee Act 1958. (5) The Guardianship and Administration Fund is to be used to meet the costs and expenses of the Tribunal in respect of proceedings under this Act. (6) After this section commences, a reference in another Act or a statutory rule (within the meaning of the Subordinate Legislation Act 1994) to the Guardianship and Administration Fund established by section 58(7) of this Act is taken to be a reference to the Fund established by this section. 58AB. Notice of death of represented person An administrator must notify the Tribunal in writing without delay if the represented person dies.'. s. 24 -- 16 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 15 25. Ancillary powers of administrator (1) In section 61(1) of the Guardianship and Administration Act 1986, for paragraph (b) substitute— "(b) in any case, at least once within each 3 year period after making the order unless the Tribunal orders otherwise.". (2) After section 61(4) of the Guardianship and Administration Act 1986 insert— "(5) The amendment to sub-section (1)(b) made by section 25 of the Guardianship and Administration (Amendment) Act 2002 applies to orders made before or after that amendment commences.". 26. Who is entitled to notice of a reassessment? (1) After section 62(2) of the Guardianship and Administration Act 1986 insert— "(2A) However, if the Tribunal conducts a reassessment on its own initiative and does not propose to amend, vary or replace the order— (a) instead of giving notice under sub-section (2), the Tribunal may give notice to the parties and the persons specified in sub-section (1) that the party or person has 14 days from the date of the notice to request, in writing, a hearing of the reassessment; and (b) if— (i) any of the parties or persons request a hearing within that time, the Tribunal must give at least 7 days' notice of the hearing to each of the parties and persons; or s. 25 -- 17 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 16 (ii) none of the parties or persons request a hearing within that time, the Tribunal is not required to hold a hearing of the reassessment.". (2) In section 62(3) of the Guardianship and Administration Act 1986, after "sub-section (2)" insert "or (2A)(b)(i)". (3) After section 62(3) of the Guardianship and Administration Act 1986 insert— "(4) The amendments to this section made by section 26 of the Guardianship and Administration (Amendment) Act 2002 only apply to applications for a reassessment made after the amendments commence.". 27. Registration of interstate orders For section 63E(1) of the Guardianship and Administration Act 1986 substitute— "(1) The Tribunal may register an interstate order on the application of— (a) a guardian or administrator of a represented person in a participating State; or (b) the Public Advocate.". 28. Schedule 4 (1) In Schedule 4 to the Guardianship and Administration Act 1986, in Form 1— (a) after "(State wishes to be taken into account)" insert— "4. (If applicable:) I appoint (insert name, address and occupation of proposed alternative guardian) to be my alternative guardian in place of, and with the same powers as, my guardian appointed under paragraph 1 if that person is s. 27 -- 18 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 17 incapable of acting as my guardian or is absent for a period."; and (b) before "CERTIFICATE OF WITNESSES" insert— "(If applicable:) I, (insert name, address and occupation of proposed alternative guardian) accept appointment as an alternative guardian under this instrument and undertake to exercise the powers conferred honestly and in accordance with the provisions of the Guardianship and Administration Act 1986. ...................................................... (Signature of proposed alternative guardian) ............... (date)"; and (c) for paragraphs (a) and (b) under "CERTIFICATE OF WITNESSES" substitute— "(a) that the appointor, the proposed guardian and the proposed alternative guardian (if any) have signed this instrument freely and voluntarily in our presence; and (b) that the appointor, the proposed guardian and the proposed alternative guardian (if any) appeared to understand the effect of this instrument.". (2) In Schedule 4 to the Guardianship and Administration Act 1986, in Form 2, for paragraphs 1 and 2 substitute— "1. I (insert name, address and occupation of appointor), revoke the appointment of (insert name, address and occupation of proposed guardian or alternative guardian) as my (insert guardian or alternative guardian, as applicable). 2. This revocation of appointment as an (insert enduring guardian or alternative enduring guardian, as applicable) is made under Division 5A of Part 4 of the Guardianship and Administration Act 1986.". __________________ s. 28 -- 19 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 18 PART 3—AMENDMENT OF THE MENTAL HEALTH ACT 1986 29. Definitions After section 3 of the Mental Health Act 1986 insert— "3A. Meaning of consent of a person (1) In considering, for the purposes of a provision listed in sub-section (2), whether a person in respect of whom— (a) a guardian within the meaning of the Guardianship and Administration Act 1986; or (b) a person responsible within the meaning given by section 37 of that Act may make decisions relating to treatment; or (c) an agent has been appointed under the Medical Treatment Act 1988— has refused or is unable to give consent (including informed consent) to treatment, or has given such consent, only that person's personal refusal or consent is relevant and not the refusal or consent of that person's guardian, the person responsible, the agent or the Tribunal. (2) Sub-section (1) applies for the purposes of each of these provisions— (a) section 8 (criteria for admission and detention as an involuntary patient); (b) section 12 (admission and detention of involuntary patients); s. 29 See: Act No. 59/1986. Reprint No. 6 as at 1 June 2000 and amending Act Nos 67/1998, 39/2000, 2/2001, 11/2001, 27/2001, 44/2001, 45/2001, 51/2001 and 7/2002. LawToday: www.dms. dpc.vic. gov.au -- 20 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 19 (c) section 14 (community treatment orders); (d) section 16 (transfer of mentally ill prisoners); (e) section 17A (status of forensic patients); (f) section 53B (requirements for obtaining informed consent); (g) section 57 (consent required); (h) section 73 (informed consent required); (i) section 83 (definitions concerning non-psychiatric treatment). (3) This section has effect despite anything in the Guardianship and Administration Act 1986, the Medical Treatment Act 1988 or any other law.". 30. Criteria for admission and detention as an involuntary patient In section 8 of the Mental Health Act 1986— (a) at the foot of sub-section (1) insert— "Note: In considering whether a person has refused or is unable to consent to treatment, see section 3A."; and (b) sub-section (4) is repealed. 31. Admission and detention of involuntary patients In section 12 of the Mental Health Act 1986, at the foot of sub-section (6) insert— "Note: In considering whether a person has refused or is unable to consent to treatment, see section 3A.". s. 30 -- 21 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 20 32. Community treatment orders In section 14 of the Mental Health Act 1986— (a) at the foot of sub-section (1A) insert— "Note: In considering whether a person has refused or is unable to consent to treatment, see section 3A."; and (b) sub-section (1B) is repealed. 33. Transfer of mentally ill prisoners In section 16 of the Mental Health Act 1986, at the foot of sub-section (6) insert— "Note: In considering whether a person has refused or is unable to consent to treatment, see section 3A.". 34. Status of forensic patients In section 17A of the Mental Health Act 1986, at the foot of sub-section (2) insert— "Note: In considering whether a person has refused or is unable to consent to treatment, see section 3A.". 35. Requirements for obtaining informed consent In section 53B of the Mental Health Act 1986, at the foot of sub-section (5) insert— "Note: In considering whether a person has given informed consent to treatment, see also section 3A.". 36. Consent required In section 57 of the Mental Health Act 1986, at the foot of sub-section (3) insert— "Note: In considering whether a person has given informed consent to treatment, see also section 3A.". 37. Informed consent required In section 73 of the Mental Health Act 1986, at the foot of sub-section (4) insert— "Note: In considering whether a person has given informed consent to treatment, see also section 3A.". s. 32 -- 22 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 21 38. Definitions (1) In section 83(1) of the Mental Health Act 1986, after "effects of mental disorder" insert "but does not include a special procedure within the meaning of the Guardianship and Administration Act 1986". (2) In section 83 of the Mental Health Act 1986, at the foot of sub-section (2) insert— "Note: In considering whether a person has given informed consent to treatment, see section 3A.". 39. Informed consent or consent of guardian or authorized psychiatrist required (1) In section 84(1) of the Mental Health Act 1986, paragraph (e) is repealed. (2) For section 84(3) of the Mental Health Act 1986 substitute— "(3) This section does not apply to a person who performed non-psychiatric treatment, or caused or permitted such treatment to be performed, on a patient if the person believed on reasonable grounds when the treatment was performed that it was 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. (4) A person to whom this section does not apply because of sub-section (3) is not— (a) guilty of assault or battery; or s. 38 -- 23 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 22 (b) liable in any civil proceedings for assault or battery— in respect of the treatment. (5) Nothing in this section affects any duty of care owed by a registered medical practitioner to a patient.". 40. Consent to non-psychiatric treatment by guardian or authorized psychiatrist For section 85(1) of the Mental Health Act 1986 substitute— "(1) If a patient is incapable of giving informed consent as specified in section 84(1) to the performance of non-psychiatric treatment, the treatment may be performed with the consent of— (a) in the case of a patient who is 18 years of age or over, the first person listed below who, in the circumstances, is reasonably available, willing and able to make a decision concerning the proposed treatment— (i) a person appointed by the patient under section 5A of the Medical Treatment Act 1988; (ii) a person appointed by the Tribunal to make decisions concerning the proposed treatment; (iii) a person appointed under a guardianship order, within the meaning of the Guardianship and Administration Act 1986, with power to make decisions concerning the proposed treatment; s. 40 -- 24 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 23 (iv) a person appointed by the patient (before the patient became incapable of giving consent) as an enduring guardian, within the meaning of the Guardianship and Administration Act 1986, with power to make decisions concerning the proposed treatment; (v) the authorized psychiatrist; or (b) in the case of a patient who is under 18 years of age, any of the persons listed below who, in the circumstances, is reasonably available, willing and able to make a decision concerning the proposed treatment— (i) a person with parental responsibility (within the meaning of the Family Law Act 1975 of the Commonwealth) for the patient; (ii) a guardian of the patient appointed under a law of the Commonwealth or of a State or Territory; (iii) a person who, under section 271 of the Children and Young Persons Act 1989, can consent to the performance of the proposed treatment on the patient; (iv) the authorized psychiatrist if there is no person with parental responsibility, guardian or custodian who is reasonably available, willing and able to make decisions concerning the proposed treatment.". s. 40 -- 25 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 24 41. Repeal of section 86 Section 86 of the Mental Health Act 1986 is repealed. 42. New section 148 inserted After section 147 of the Mental Health Act 1986 insert— "148. Transitional provision—Guardianship and Administration (Amendment) Act 2002 Despite the repeal of section 84(1)(e) by section 39(1) of the Guardianship and Administration (Amendment) Act 2002, a person is taken not to perform, or cause or permit the performance of, non-psychiatric treatment on a patient contrary to section 84 of this Act if— (a) before that repeal, the person obtained the registered medical practitioner's consent under section 12(1) of this Act to the performance of the treatment on the patient; and (b) after that repeal, the person performs the treatment, or causes or permits the treatment to be performed, on the patient in accordance with that consent.". __________________ s. 41 -- 26 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 25 PART 4—AMENDMENT OF THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 43. Schedule 1 In Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, in clause 31(3)(a), after "senior member" insert "or presidential member". ═══════════════ s. 43 See: Act No. 53/1998. Reprint No. 2 as at 15 July 2001 and amending Act Nos 98/2000, 2/2001, 68/2001 and 96/2001. LawToday: www.dms. dpc.vic. gov.au -- 27 of 28 -- Act No. 41/2002 Guardianship and Administration (Amendment) Act 2002 26 ENDNOTES † Minister's second reading speech— Legislative Assembly: 18 April 2002 Legislative Council: 14 May 2002 The long title for the Bill for this Act was "to amend the Guardianship and Administration Act 1986, the Mental Health Act 1986 and the Victorian Civil and Administrative Tribunal Act 1998 and for other purposes." Endnotes -- 28 of 28 --