Working with Us
Information for:
People under Guardianship
Why do some people with a disability need a guardian?
Sometimes there are big decisions to be made, for example, where you live, what doctor you see, or giving the doctor or dentist permission to give you medicine or have an operation.
You may not be able to make these decisions for yourself and your family, friends and carers may not be able to make these decisions either. It is the Public Guardian’s job to help you make some decisions about where you live, what help you need or decisions about your health. We do not make decisions about your money.
We want to make the best possible decisions for you and with you.
If you want to speak to your guardian, or about a decision or to get more information you can call 02 8688 2650 or toll free (for NSW callers outside Sydney/Gosford metropolitan areas) on 1800 451 510.
Does everyone need a guardian?
People who might need a guardian are over the age of 16 years, and have a disability.
You do not need a guardian if family or friends can help you make decisions. If family and friends do not agree you may need a guardian.
Here is an example:
John is 25 years old and lives at home with his family. He had a car accident last year and the doctors have said that part of his brain was injured.
Some of his family say that John should stay at home with his parents and the others say he should live with people his own age in a group home. They start arguing about it - but where should John live?
Due to John’s brain injury he is not able to make this decision himself. Someone needs to make the decision for John.
How do you get a guardian appointed?
A guardian may be appointed if someone writes to the Guardianship Tribunal about their concerns for the person with a disability.
Anyone can ask the Guardianship Tribunal to appoint a guardian for a person with a disability who needs one. The Guardianship Tribunal gathers all the information and listens to what everyone has to say. Then they make a decision about who the person’s guardian will be.
A guardian is a person over 18 years. He or she could be a family member or friend, who knows the person with a disability and who will make decisions for them. The Guardianship Act says that as far as possible the Tribunal should always consider appointing a relative, friend or unpaid carer of the person.
A guardian is someone whose job is to help you make some decisions about where you live, what help you need or about your health.
If the Guardianship Tribunal thinks that you may not be able to make these decisions for yourself and your family, or friends and carers might not be able to make these decisions either, they will appoint the Public Guardian.
Who is the Public Guardian?
The Public Guardian makes personal decisions for people who have a disability. The Public Guardian is part of the Department of Justice and Attorney General.
The Public Guardian employs other people to help with this job. These people are called guardians.
How long can a guardian be appointed to be your guardian?
The Guardianship Tribunal appoints a guardian for a set period of time. Who the guardian is and how long they will be your guardian is written on your guardianship order. The Guardianship Tribunal will send the guardianship order to you. Your guardian can also give you this information.
When the period of time ends, the Guardianship Tribunal will usually meet again to decide if you still need a guardian to help you make decisions.
Will your guardian come and see you?
The guardian will visit you to talk to about what is happening in your life, how you feel about guardianship and what you think about decisions which might need to be made. If you are worried about what is happening or think there is something the guardian should know you can talk to the guardian or phone or ask the guardian to come and see you again.
How does the Public Guardian make a decision?
To make a decision the Public Guardian needs information about what is happening in your life, what decisions are needed, what choices there are for you and whether the decisions will benefit you.
We will ask you about how you feel and what you want, like or need.
We will also ask people who care for and help you to give us information and to give us their opinion on what would be a good decision for you.
It might take a bit of time to get all the information from you and the people who care for you.
When we have the information and have thought about all the choices, we will work with you to make a decision.
What if you don’t like the decision the Public Guardian has made?
If you don’t like the decision the Public Guardian has made you can speak to the guardian about it. You can also tell the Regional Manager or the Complaints Support Officer that you are unhappy with the decision and want it changed. We call this a review of a decision.
If you are still unhappy you can ask the Administrative Decisions Tribunal to look at the decision and to decide if it is the best decision for you. You can ask a friend to help you do this.
How to contact us!
To contact this office go to the Contact Us page on this website
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Service Providers
Where did Guardianship come from?
Guardianship grew out of the disability rights movements of the 1960s, where there was a recognition of the need to reform institutions and a growing recognition of the rights of people with disabilities to have access to the same quality of services and opportunities as other people in the community.
Guardianship is an important safeguard for people with disabilities in our community. If a person has a disability and has lost capacity to understand and appreciate health and welfare decisions that might need to be made, the person may be vulnerable to having decisions made for him or her that are not in his or her best interests.
What is a Guardian?
The Guardianship Act provides for the appointment of a guardian to make substitute decisionn on behalf of a person who is aged 16 years and over, who has a disability and who is unable to make decisions on their own or without support. Click here to find out more about substitute decisions.
These decisions relate to personal issues such as where to live, what services to engage, or to consent to medical and dental treatment. A decision made, or consent given, by the guardian has the same legal force as if the person themselves made the decision or gave the consent. A guardian is responsible for making decisions in line with the general principles of the NSW Guardianship Act 1987. Click here to link to the Guardianship Principles.
A guardian can be a private guardian (eg a family member or friend), an enduring guardian, or the Public Guardian. The Public Guardian is appointed as guardian of last resort in situations where there is conflict, significant ethical considerations or where there is no other person able to take on the responsibility. When a guardian is appointed by the NSW Guardianship Tribunal this appointment is for a limited period of time.
A guardian does not make financial decisions on behalf of the person unless they have also been appointed as the person’s financial manager or have been given an enduring power of attorney by the person before they lost capacity. The Public Guardian never makes financial decisions on behalf of the person under guardianship. Guardians are appointed to make health and welfare decisions on behalf of another adult who has a disability. They do not make financial decisions. Click here to find out more about lifestyle decisions.
Click on the links below for information about:
How will you know if a guardian has been appointed?
In most circumstances, family members, friends or other service providers involved in the support of a person with a disability will be aware of the appointment of a guardian if this has occurred. A legal order outlining the responsibilities of the guardian and the duration of the order will be held by the guardian. The guardian may make the order available if there is dispute or uncertainty about their authority.
In circumstances where it is unclear whether a person has a legally appointed guardian, it may be necessary to call the Guardianship Tribunal during office hours to determine if there is a private guardian and who that person is, or to call the Public Guardian at any time to determine if the Public Guardian is the guardian.
Why is guardianship important?
If a guardian is legally appointed, only he or she has the authority to make a decision or to provide consent in the areas stipulated in the guardianship order. These decision-making areas are called ‘functions’.
The most frequently used ‘functions’ (or decision-making areas) given to guardians by the Guardianship Tribunal are (in alphabetical order):
- Access – to decide who the person should see, visit, be visited by, or have other contact with (e.g. in writing or by telephone)
- Accommodation – to decide where a person should live
- Behaviour Management – to decide which strategies should be used to assist and support the person with regard to their ‘challenging behaviour’
- Health Care – to decide what general health care and health care services the person should receive (e.g., attending health care appointments, and non-invasive examinations)
- Consent to medical and dental treatment – to act as the person’s substitute consent provider for medical and dental treatment proposed by others (when the person cannot consent to the treatment her/himself) (Click here for more information about Substitute Medical and Dental Consent)
- Restraint – to consent to the use of physical restraint to minimise the risk of injury to, or self harm, by the person under guardianship
- Services – to authorise others to provide personal services to the person (e.g., home care, community options, day programs, employment services).
The appointment of the Public Guardian
The Public Guardian is appointed as the guardian of a person when there is no other person suitable or able to be the guardian. The Public Guardian is the guardian of last resort.
The Public Guardian can be appointed by the Guardianship Tribunal at a hearing at which the person with the disability and other interested parties attend. The Public Guardian can also be appointed by the Supreme Court, though these appointments are rare. Some circumstances where the Public Guardian may be appointed include:
- family members may disagree on what is in the best interests of the person
- the level of disagreement may result in significant disadvantages to the person
- there may be legal requirements such as the need for someone to provide a valid consent to medical treatment and the person has no family member or friend available to give consent, or
- a person may be at risk of abuse, neglect or exploitation either as a result of their lifestyle or by the actions of others involved in their life.
The Guardianship Tribunal appoints a guardian only after receiving an application and conducting an investigation and hearing. The Public Guardian is given limited decision-making authority ('Functions') in certain areas of the person’s life and for a specified period of time.
‘Medical and Dental Consent’ and ‘Health Care’ are the most common functions that the Public Guardian is appointed with in Guardianship orders. The ‘Services’ function, and ‘Accommodation’ function follow these as the most common decision-making areas given to the Public Guardian.
Who does the Public Guardian make decisions for?
The Public Guardian is the guardian for people who have a variety of disabilities. Nearly half of the people under the guardianship of the Public Guardian have an intellectual disability, this is followed by people who have a mental illness and a disability related to advanced age (e.g., Alzheimer’s or Dementia).
If you would like to read more statistics about the Public Guardian go to our latest Annual Report on the Publications page.
The role of the Office of the Public Guardian
When appointed as someone’s guardian, the Public Guardian may make decisions on behalf of the person in the areas of decision-making (i.e., functions) identified in the guardianship order. The Public Guardian never makes financial decisions on behalf of the person under guardianship.
The main roles of the Public Guardian are to:
- make a particular personal decision on behalf of a person under the guardianship;
- provide or withhold consent to medical and dental treatment on behalf of a person under guardianship;
- advocate on behalf of the person under guardianship for services the person may need;
- be the guardian for time specified in the guardianship order;
- provide information and support to private and enduring guardians; and
- provide information on the role and function of guardians to the general community.
What can you expect from the Public Guardian?
The Public Guardian has been appointed to make a decision or provide consent on behalf of the person under guardianship for a specified period. This does not mean that the Public Guardian becomes the case manager or carer.
In making a decision the Public Guardian will need to gain information about the issue requiring a decision or consent. The Public Guardian will need to talk with people involved with the person under guardianship. The Public Guardian will listen to what the person under guardianship wants and then make an assessment of the risks and benefits of the decision, seeking professional opinion where necessary. Information can be provided in writing, by telephone or during a visit of the Public Guardian.
What the Public Guardian expects from service providers
- An expertise which will ensure that clients are not abused, exploited and neglected;
- Open communication;
- Transparency in service delivery;
- Understanding of the role of the guardian;
- Proposals in writing;
- Individualised service and planning;
- Creative approaches to problem solving.
What guides the Public Guardian when making decisions?
When the Public Guardian makes a decision on behalf of a person under guardianship, the Public Guardian and delegated officers consider the following:
The Order
When appointed as guardian, the Public Guardian always receives a guardianship order outlining the specific authority ('Function') to make decisions on behalf of the person. The order also outlines how long the Public Guardian will be the guardian before the order is reviewed. The Public Guardian can only make decisions in the areas set out in the guardianship order. If the Public Guardian finds that there is a need for other areas of decision-making (functions) to be included, a request will be made to the Guardianship Tribunal to review the order and grant an extension of powers if appropriate.
The Principles
The Public Guardian makes decisions by considering and weighing the principles of the Act in light of a person’s individual circumstances.
The principles of the NSW Guardianship Act 1987
- the welfare and interests of the person should be given paramount consideration
- the freedom of decision and the freedom of action of the person should be restricted as little as possible
- the person should be encouraged as far as possible to live a normal life in the community
- the views of the person should be taken into consideration
- It is important to preserve family relationships and the cultural and linguistic environment of the person should be recognised
- the person should be encouraged as far as possible to be self-reliant in matters relating to personal, domestic and financial affairs
- the person should be protected from abuse, neglect and exploitation
- the community should be encouraged to apply and promote these principles.
The person under guardianship
The Public Guardian tries wherever possible to make the decision that the person themself would make, and where that is not possible, to make a decision that is in the best interests of the person.
Staff from the Public Guardian will talk to the person under guardianship. His or her views, past and present, lifestyle choices, beliefs and values help direct the Public Guardian's decision-making on the person's behalf.
Views and opinions of others
Staff from the Public Guardian will talk to those people who know the person under guardianship well and who may also be affected by the decision. The Public Guardian is interested in their thoughts and opinions about what the person wants or what is considered best for them but is not bound by those views.
Staff will also ask service providers to give information about the support and services available and to give an opinion on the outcome of the potential decisions. A decision-making plan is then developed to guide the actions of staff as well as to provide a transparent and accessible process. When the Public Guardian has this information and has considered all the options available, a decision will be made.
Other factors that could influence the decision
There are always issues that arise that are specific to the situation and the relationships of the person under guardianship. The Public Guardian weighs these considerations individually.
Position Statements of the Public Guardian
The Public Guardian develops position statements to provide staff of the office and other people involved in the decision-making process, the general view of the Public Guardian in certain circumstances and the information required when making a decision or providing consent.
The position statements draw on the expertise of a range of professionals external to the office and often concern very contentious or ethical issues. To view the position statements of the Public Guardian click here. Alternatively you can contact the information & support branch on 02 8688 6070 or email informationsupport@opg.nsw.gov.au for information on our position statements.
How long does it take to make a decision?
It can take time to collect all the information that is needed and to talk to the person under guardianship and other people who will be affected by the decision. At times a decision may not be possible until services or support provided by government departments and other agencies become available. You should talk to the guardian about the length of time it might take to make a particular decision.
It is important to remember that where medical or dental treatment is urgent a doctor or dentist can provide this treatment without consent.
Will the Public Guardian keep you informed?
Family members, friends and service providers who are closely involved with, or who will be affected by the decision will be informed as decision-making progresses. There may be some information that we might not provide if the person under guardianship does not want that information given out, or if it is personal information that other people do not need to know.
Can you ask for a reasons for decision?
If you are affected by a decision you can ask the guardian for reasons why a decision was made. You can also ask for these reasons to be given to you in writing. Follow this link for more information about obtaining a reasons for decision document.
Complaints
If you have a complaint to make about the actions or decisions of the Public Guardian, call or write to the Complaints Support Officer at the address below, or click on the following link: making a complaint.
Common myths about the Public Guardian
People with disabilities automatically need a guardian.
No. A guardian must be legally appointed. In NSW the Guardianship Tribunal or the Supreme Court can appoint a guardian following an application. The NSW Guardianship Tribunal is established to appoint guardians and is a free service. Additionally a person can appoint an enduring guardian under an enduring guardian form of appointment. Follow this link for more information about enduring guardianship.
The Public Guardian is a case manager.
No. The Public Guardian is a substitute decision-maker, not a substitute caregiver or case manager. A decision made by a legally appointed guardian should be treated as if it were a decision made by the person with the disability.
The Public Guardian is responsible for providing care for the person under guardianship.
No. The Public Guardian is not responsible for providing care, transport or day to day contact with the person with the disability. The Public Guardian will never be the carer of a person under guardianship. Some private or enduring guardians will be the carer of the person under guardianship, for example if a spouse is appointed as guardian and is caring for the person at home. Being a carer is a totally separate role to a guardian even though a person may have both roles at the same time.
The Public Guardian is a person’s friend.
No. If the guardian is the Public Guardian no prior relationship will have existed, unless the person has been under the guardianship of the Public Guardian previously. Due to the nature of the role of the Public Guardian friendship is not a goal.
The Public Guardian is the guardian forever
No. The Public Guardian is only the guardian for the length of the time authorised in the order. This maybe for a maximum of one year or less for a first order or a maximum of 5 years or less for a renewed order. An order may be renewed or discharged after the Guardianship Tribunal has reviewed the situation.
The Public Guardian makes decisions about a person’s money
No. The Public Guardian does not make decisions about a person’s money. The Guardianship Tribunal can appoint financial managers as substitute decision-makers for people aged 16 years and over who are incapable of managing their own financial affairs and need a legally appointed substitute decision-maker because no appropriate or safe informal arrangement is in place. The powers of a financial manager and the powers of a guardian are very different. Link to the NSW Tustee and Guardian.
People who have no family or friends should have the Public Guardian
No. An application for guardianship of a person with a disability may be necessary when:
- the nature of the decision means that there is a legal imperative to have a guardian appointed. For example when someone objects to medical treatment, or when restrictive practices are used.
- there is a concern for the welfare of the person with a disability.
- there is significant conflict and dispute.
- informal mechanisms of decision-making have not been successful.
If the guardian is not in the office, no one can assist you
No. Normally people under the guardianship of the Public Guardian will have a guardian who will be making decisions on their behalf. If this person is away or not available you can speak to the duty guardian. The duty guardian will make sure that all the information you provide is given to the guardian and can also help you if you do not know the name of the guardian. The duty guardian is available so that any urgent decisions can be made.
If you want to talk to a guardian you can call them on the After Hours Service.
No. The After Hours Service operates between 5 pm Friday and 9 am Monday. The service provides an officer to deal only with requests for urgent decisions that cannot wait until the next business day.
It is the obligation of the service provider to seek consent to medical and dental treatment that is proposed for a person under guardianship
No. Before medical or dental practitioners provide treatment, they have a professional and legal responsibility to seek and obtain consent to the proposed treatment from the patient. If a practitioner believes a person is not capable of giving a valid consent to treatment, the practitioner has a legal responsibility, in most circumstances, to seek and obtain consent from a substitute consent provider (e.g., a guardian with the medical and dental consent function). Click here for more information about substitute medical and dental consent.
Staff from the Public Guardian will visit the person under guardianship every week
No. The guardian will visit the person within three months of the guardianship order being made, if that order will last for three months or more. Further visits and contact will occur, as necessary, to assist the Public Guardian in supporting and promoting the person’s welfare and interests through guardianship. If you believe it is important to have a face-to-face meeting at any time, you should talk to the guardian about this.
Do you need more information?
The Public Guardian has an Information and Support Branch which provides information to the community about the role and function of the NSW Public Guardian, the NSW Guardianship Act, medical and dental consent, guardianship standards, policies and procedures of the Public Guardian, and enduring guardianship. This is a state wide service. Click here for more details about having an Information Session at your service.
There are a variety of publications available from the Public Guardian. Go to Publications to view and download these resources.
How to contact us
To contact this office go to the Contact Us page on this website.
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Community Members
What is a guardian?
A guardian can be a family member or friend, an enduring guardian or the Public Guardian, appointed under the NSW Guardianship Act 1987.
What do they do?
A guardian is a person appointed to make a lifestyle decision for a person with a disability.
What is a lifestyle decision?
A lifestyle decision can be about where a person should live, what services they should receive or what medical and dental treatment the person might need. A guardian does not make decision about a person’s money.
What types of disabilities?
Disabilities that may cause decision-making incapacity, including intellectual disability, dementia, acquired brain injury, alcohol related brain damage, mental illness and eating disorders.
Who would need a guardian?
A person with a disability might need a guardian if he or she is having trouble making their own decisions and you are concerned about them.
How do you become a guardian?
Guardians are appointed by the NSW Guardianship Tribunal. You may need to attend a hearing or be available by telephone if you apply for guardianship for another person.
Enduring guardianship is another way that guardians can be appointed. Enduring guardianship allows you to legally appoint a substitute decision-maker of your choice to make those personal and health care decisions for your should you lose the capacity to make your own decisions at some time in the future. Click here to find out more about enduring guardianship.
How to apply to the Guardianship Trbunal to be appointed as a guardian
You need to fill in a form, which you can obtain from the NSW Guardianship Tribunal. You will need to obtain evidence from a doctor or health professional that the person has a disability and send it with the application to the Guardianship Tribunal.
Who can be appointed as a guardian?
The Guardianship Act requires that the Guardianship Tribunal should always consider appointing as a guardian, a relative, friend or unpaid carer of the person, who is willing to make decisions in the best interest of the person with a disability. These people are called guardians. To find out what information and support is available to guardians from the Public Guardian follow this link: Help for guardians.
The Public Guardian is only appointed as ‘the guardian of last resort’ when the Tribunal considers that no private guardian can be appointed. This usually happens when there is no one else available, or where there is conflict within the family about decisions in relation to the person under guardianship.
Click here for more information about the Public Guardian: About Us
What are the responsibilities of a guardian?
A guardian makes substitute decisions; they are not responsible for providing care, transport or day to day contact with the person with the disability, unless the person appointed as guardian has a close relationship to the person and chooses to care for him or her.
How much does it cost to submit an application to the Guardianship Tribunal?
Nothing
What are the restrictions on a guardian?
A guardian is appointed for a limited time and with limited areas of decision-making authority (functions). A guardian can only make decisions that could benefit the person.
What are the alternatives to having a guardian?
Informal mechanisms
Not everyone requires a guardian; sometimes informal decision-making can work. That is when the nature of the decision is not of a legal imperative. If a guardian is not required there are several agencies (see links below) available that can assist and give advice about the variety of issues that affect people with a disability.
The Intellectual Disability Rights Service (IDRS) http://www.idrs.org.au/
The Multicultural Disability Advocacy Association http://www.mdaa.org.au/
People with Disability Australia Incorporated http://www.pwd.org.au/index.html
The Aged Care Rights Service http://www.tars.com.au/
Person Responsible
When a person is unable to give valid consent to treatment, medical and dental practitioners have a responsibility to obtain consent from the patient’s ‘person responsible’.
A ‘Person Responsible’ is not necessarily the person’s next of kin but is either:
· A guardian who has the function of consenting to medical, dental and health care treatments;
Or, if there is no guardian appointed with this authority:
· A spouse, de facto or same sex partner with whom the person has a close, continuing relationship
Or, if there is no guardian such spouse, defacto or same sex partner:
· An unpaid carer who is now providing support to the person or who provided this support before the person entered residential care.
· A relative or friend who has a close personal relationship with the person.
It is up to the medical or dental practitioner to determine who is the ‘person responsible’. A person who is considered to be the ‘person responsible’ can decline the responsibility in writing. The medical practitioner must then request consent from the next person down on the list of people who qualify to be ‘person responsible’ (see above list).
Enduring Guardianship
Enduring guardianship allows you to plan ahead.
Enduring guardianship allows you to legally appoint a substitute decision-maker of your choice to make lifestyle and health care decisions should you lose the capacity to make your own decisions at some time in the future.
Do you need further information?
The Public Guardian provides an information service to the general community and to legally appointed guardians. Anyone can call to speak to one of our information officers between 9 am and 5 pm, Monday to Friday, or go to the Contact Us page on this website.
Click here to find out about the Publications available from the Public Guardian.
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Medical Practitioners
Click on the following link to obtain a copy of an application form to obtain consent to carry out Medical or Dental Treatment for a person under Guardianship of the Public Guardian (Guardianship Act 1987 – Part 5). (To view this PDF document you will need a copy of Adobe Acrobat on your computer. If you do not have a copy of Adobe Acrobat, you can download a copy for free from the Adobe site at www.adobe.com).
For the word document of this application click here.
If you are a treating medical or dental practitioner seeking consent to carry out medical or dental treatment for a person under guardianship of the Public Guardian print off and complete the attached form (from the above link) and fax or post to the Public Guardian.
Alternatively, you can make an application for consent by letter, including in it the information necessary to enable the Public Guardian to provide an informed consent. This information includes:
what is the proposed treatment;
for what period of time is consent sought;
the general nature and effects of the proposed treatment;
the risks associated with the proposed treatment;
the general nature, effects and risks associated with alternative treatments or no treatment;
what are the views of the person under guardianship and whether he or she is objecting to the proposed treatment.
If a proposed treatment is a minor medical treatment, a verbal application may be made.
Should the patient be able to provide her/his own consent to medical treatment, you should inform the office of your assessment. In this event, given the Public Guardian’s responsibilities under the health care function, you are requested to provide information detailing your treatment plan.
If the proposed treatment needs to be carried out quickly a request can be made over the phone but must be confirmed in writing as soon as possible.
See below for further information about Substitute Medical and Dental Consent, and the Role of the Public Guardian.
Why guardianship?
Guardianship provides a link between recognising a person’s status as an adult and recognising that a person may not be able to assume the rights and responsibilities associated with that status. Guardianship enables personal, health and lifestyle decisions to be made on behalf of an adult with a decision-making disability.
Part 5 of the Guardianship Act 1987 NSW
Part 5 of the Guardianship Act 1987 concerns the provision of consent to medical and dental treatment for people who are unable to consent for themselves. It applies to all people in NSW who are 16 years and over. Part 5 provides some protection for practitioners by supplying avenues to obtain consent for adults unable to consent for themselves.
Part 5 of the Guardianship Act is there to ensure that people are not deprived of necessary medical and dental treatment merely because they lack the capacity to consent to the carrying out of such treatment.
Part 5 also ensures that any medical or dental treatment proposed for and performed on a person who is unable to provide her/his own consent is carried out for the purpose of promoting and maintaining the person’s health and well being.
Part 5 identifies who can lawfully provide substitute consent to medical and dental treatment on behalf of a person who cannot consent for her/himself.
Part 5 and its associated regulations detail the obligations on medical and dental practitioners when seeking consent for treatment, and the obligations on guardians and persons responsible in responding to these requests.
What is valid consent?
Before medical or dental practitioners provide treatment, they have a professional and legal responsibility to seek and obtain consent to the proposed treatment from the patient.
A person cannot give valid consent if the person is:
incapable of understanding the general nature and effect of the proposed treatment; or
is incapable of indicating whether or not she/he consents or does not consent to the treatment being carried out.
To obtain valid consent practitioners must tell patients:
the general nature and effects of the proposed treatment;
the risks associated with the proposed treatment;
the general nature, effects and risks associated with alternative treatments or no treatment.
Patients:
have a right to consent to the proposed treatment before the treatment can be administered OR withhold consent;
must indicate to the practitioner whether they consent to the proposed treatment before the treatment is administered.
If a practitioner believes a person is not capable of giving a valid consent to treatment, the practitioner has a legal responsibility, in most circumstances, to seek and obtain consent from a substitute consent provider.
Who can provide consent?
The Guardianship Act establishes:-
• who can give a valid consent to treatment on behalf of a patient who cannot give their own consent, that is:
-the Person Responsible;
-the NSW Guardianship Tribunal;
• when treatment can occur without consent.
Who is a person responsible?
When a person is unable to give valid consent to treatment, medical and dental practitioners have a responsibility to obtain consent from the patient’s ‘person responsible’.
A ‘Person Responsible’ is not necessarily the person’s next of kin but is either:
A guardian (i.e. the Public Guardian, or an enduring guardian, or a private guardian) who has the function of consenting to medical, dental and health care treatments;
Or, if there is no guardian appointed with this authority:
A spouse, de facto or same sex partner with whom the person has a close, continuing relationship;
Or, if there is no guardian such spouse, defacto or same sex partner:
An unpaid carer who is now providing support to the person or who provided this support before the person entered residential care;
Or if there is no carer:
A relative or friend who has a close personal relationship with the person.
It is up to the medical or dental practitioner to determine who the ‘person responsible’ is. A person who is considered to be the ‘person responsible’ can decline in writing, not to have the responsibility of consenting to a particular medical or dental treatment. The medical practitioner must then request consent from the next person down on the list of people who qualify to be ‘person responsible’ (see above list).
The role of the Public Guardian
The Public Guardian can be appointed as guardian by the NSW Guardianship Tribunal or the Supreme Court with the authority to give consent to medical and dental treatment on behalf of a person with a disability who lacks the capacity to give valid consent for her or himself. This appointment is made for a limited time to ensure that a person under guardianship receives treatment that is necessary but which otherwise could not be given.
When is it necessary to apply for consent from the Public Guardian?
In situations where a person is:
incapable of understanding the general nature and effect of the proposed treatment; or
incapable of indicating whether or not she/he consents or does not consent to the proposed treatment and she/he has the Public Guardian as guardian (with the authority to provide consent to treatment) then substitute consent from the Public Guardian must be obtained.
It may be necessary for practitioners to ascertain whether a guardianship order (with medical and dental consent authority) is in effect if there are any concerns regarding the person’s capacity.
What will the Public Guardian do following a request?
Upon receiving a request for consent to proposed treatment the Public Guardian will, on behalf of the person under guardianship:
ask questions of the treating practitioner in order to understand the condition of the person, courses of treatment available, why a particular treatment is proposed, the general nature and effect of courses of treatment as well as any risks involved;
discuss the treatment with the person under guardianship to gain their view;
seek a second medical opinion if necessary;
discuss the treatment with close relatives or friends if appropriate;
give consent or withhold consent to the proposed treatment.
Consent to treatment can only be given if the treatment promotes and maintains the person’s health and well being. In consenting to a proposed medical or dental treatment the Public Guardian may attach time limits or other conditions to the consent. The Public Guardian can consent to individual treatments, a course of treatment or treatment plans.
When is substitute consent from the Public Guardian necessary?
It is not necessary to request consent for:
treatment that is considered by the practitioner to be urgent and necessary to save the person’s life or alleviate significant pain or distress
the administration of over the counter medications or first aid treatments.
Are there circumstances where the Public Guardian cannot consent?
The Public Guardian cannot provide consent to:
treatment that is considered “special” under the regulations of the Guardianship Act (for example; experimental treatments, sterilisation and termination of pregnancy) unless specifically authorised to do so in an order from the NSW Guardianship Tribunal
treatment that will not promote the person’s health and well being
treatment where the person objects unless specifically authorised to do so in an order of the Guardianship Tribunal.
To see publications and position statements available from the Public Guardian go to Publications pages.
Contact Details
Click here for the Contact Us page on this website.
Contact details for the Guardianship Tribunal
Level 3
2A Rowntree Street
Balmain 2041
Locked Bag 9
Balmain 2041
Phone (02) 9556 7600
Toll free 1800 463 928
Fax (02) 9555 9049
www.gt.nsw.gov.au
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