As a guardianship lawyer in Western Australia, I frequently come across questions related to treatment decisions for patients who are unable to make reasonable judgments in respect of their treatment.
In this blog post, I discuss the circumstances in which a “person responsible” may make treatment decisions under the Guardianship and Administration Act 1990 (WA) (GA Act). We will focus on sections 110ZD, 110ZE, 110ZJ, 110ZI, 110ZIA, and the definition of "nearest relative" as per section 3 of the GA Act.
1. Circumstances in which a person responsible may make treatment decisions (Section 110ZD)
According to Section 110ZD of the GA Act, if a patient is unable to make reasonable judgments regarding a proposed treatment, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.
The person responsible for the patient is the first in order of the persons listed in subsection (3) who:
(a) is of full legal capacity;
(b) is reasonably available; and
(c) is willing to make a treatment decision in respect of the treatment.
The persons listed in subsection (3) include:
(a) the patient’s spouse or de facto partner, subject to specific age and living arrangements;
(b) the patient’s nearest relative who maintains a close personal relationship with the patient;
(c) the primary provider of care and support (including emotional support) to the patient, who is not remunerated for providing that care and support; and
(d) any other person who maintains a close personal relationship with the patient, subject to certain age requirements.
Section 110ZD also provides guidance on determining the patient's nearest relative and what constitutes a close personal relationship.
2. Section 110ZD: Determining the Patient's Nearest Relative and Close Personal Relationship
Section 110ZD of the GA Act provides detailed guidance on determining the patient's nearest relative and the criteria for establishing a close personal relationship. This information is crucial for identifying the appropriate person responsible for making treatment decisions on behalf of the patient.
A. Nearest Relative
Subsection (4) of Section 110ZD outlines the order of priority for the patient's nearest relative:
1. The spouse or de facto partner;
2. A child;
3. A parent;
4. A sibling.
For the purpose of this determination, Section 3 of the GA Act provides an extended definition of "nearest relative," which includes additional relatives such as stepchildren, foster parents, grandparents, uncles, aunts, nephews, and nieces. Furthermore, the definition considers brothers and sisters of half-blood and adopted siblings as equal to full-blood siblings.
Under the GA Act, being the eldest child carries specific importance when determining the patient's nearest relative for making treatment decisions. According to the definition of "nearest relative" in Section 3 of the GA Act, if there are two or more relatives of the same degree of relationship (e.g., siblings), the elder or eldest of those relatives shall be preferred regardless of their sex.
B. Close Personal Relationship
Section 110ZD(5) defines a close personal relationship by the following criteria:
1. The person has frequent contact of a personal (as opposed to a business or professional) nature with the patient; and
2. The person takes a genuine interest in the patient's welfare.
By meeting these criteria, a person can be considered to maintain a close personal relationship with the patient, which is a requirement for certain categories of persons listed in subsection (3) (b) and (d)(ii) of Section 110ZD.
3. Priority of treatment decision of the person responsible (Section 110ZE)
The priority to be given to a treatment decision of a person responsible for a patient under Section 110ZD is determined in accordance with Section 110ZJ.
4. Order of priority of persons who may make treatment decisions in relation to a patient (Section 110ZJ)
Section 110ZJ outlines the order of priority for persons who may make treatment decisions in relation to a patient. The priority order is as follows:
(a) a treatment decision made by the patient through an advance health directive;
(b) a treatment decision made by an enduring guardian authorized to make the decision;
(c) a treatment decision made by a guardian authorized to make the decision;
(d) a treatment decision made by the person responsible for the patient under Section 110ZD.
5. Urgent treatment provisions (Sections 110ZI and 110ZIA)
In cases where a patient requires urgent treatment and is unable to make reasonable judgments, Sections 110ZI and 110ZIA provide guidance on when a health professional may provide treatment in the absence of a treatment decision or despite a treatment decision that is inconsistent with providing the treatment.