Guardianship and Administration (Amendment) Act 2002 (Vic)

No judgment structure available for this case.

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

i

Section Page

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

ii

Victoria

No. 41 of 2002

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 1986 concerning matters such as—

Guardianship and Administration (Amendment) Act 2002

s. 2	Act No. 41/2002

(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)
Administrative Tribunal Act 1998
to amend the Victorian Civil and 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.

__________________
Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 3

PART 2—AMENDMENT OF THE GUARDIANSHIP AND

ADMINISTRATION ACT 1986

3. Definitions

See:

(1) In section 3(1) of the Guardianship and Administration Act 1986, in the definition of

Act No.
58/1986.
Reprint No. 5

"registered practitioner", for "Dentists Act 1972" as at
substitute "Dental Practice Act 1999". 1 January 2000 and amending Act
Nos 78/2000,
11/2001,
27/2001 and
51/2001.
LawToday:
dpc.vic.
gov.au
(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

Guardianship and Administration (Amendment) Act 2002

s. 5	Act No. 41/2002

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.".

Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 6
(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".

Guardianship and Administration (Amendment) Act 2002

s. 8	Act No. 41/2002

(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 guardian"; and

(b)
in paragraph (b)(ii), after "enduring guardian (as the case may be)".

Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 10

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 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.'.

Guardianship and Administration (Amendment) Act 2002

s. 13

Act No. 41/2002

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 substitute "in accordance with this Part".

Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 16
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.".

Guardianship and Administration (Amendment) Act 2002

s. 19

Act No. 41/2002

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 the treatment.
carrying out of the treatment would be
against the patient's wishes, the practitioner
or person responsible may apply to the

Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 19
(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)
Tribunal considers has a special
interest in the patient's affairs,
including the registered
any other person whom the 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.".

Guardianship and Administration (Amendment) Act 2002

s. 20

Act No. 41/2002

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 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

Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 22
(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".

Guardianship and Administration (Amendment) Act 2002

s. 24

Act No. 41/2002

(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.'.

Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 25

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 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)
request a hearing within that time,
the Tribunal must give at least
any of the parties or persons each of the parties and persons; or

Guardianship and Administration (Amendment) Act 2002

s. 27

Act No. 41/2002

(ii)
request a hearing within that time,
the Tribunal is not required to
none of the parties or persons 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 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

Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 28
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 (date)"; and
alternative guardian)

(c)
for paragraphs (a) and (b) under 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.".

__________________
Guardianship and Administration (Amendment) Act 2002

s. 29

Act No. 41/2002

PART 3—AMENDMENT OF THE MENTAL HEALTH ACT

1986

29. Definitions

See:

Act No.	After section 3 of the Mental Health Act 1986
59/1986.	insert—
Reprint No. 6
as at	"3A. Meaning of consent of a person
1 June 2000
and	(1) In considering, for the purposes of a
amending Act
Nos 67/1998,	provision listed in sub-section (2), whether a
39/2000,
2/2001,	person in respect of whom—
11/2001,	(a) a guardian within the meaning of the
27/2001,
44/2001,	Guardianship and Administration
45/2001,
51/2001 and	Act 1986; or
7/2002.	(b) a person responsible within the
LawToday:
meaning given by section 37 of that Act
dpc.vic.
gov.au	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);

Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 30

(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.".

Guardianship and Administration (Amendment) Act 2002

s. 32

Act No. 41/2002

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.".

Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 38

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

Guardianship and Administration (Amendment) Act 2002

s. 40

Act No. 41/2002

(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)
Tribunal to make decisions
a person appointed by the treatment;

(iii)
guardianship order, within the
meaning of the Guardianship
and Administration Act 1986,
with power to make decisions
a person appointed under a treatment;

Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 40

(iv)
(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
a person appointed by the patient treatment;

(v) the authorized psychiatrist; or

(b)
in the case of a patient who is under 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 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)
of the Children and Young
Persons Act 1989, can consent to
a person who, under section 271 treatment on the patient;

(iv)
is no person with parental
responsibility, guardian or
custodian who is reasonably
available, willing and able to
the authorized psychiatrist if there proposed treatment.".

Guardianship and Administration (Amendment) Act 2002

s. 41

Act No. 41/2002

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.".
__________________

Guardianship and Administration (Amendment) Act 2002

Act No. 41/2002 s. 43

PART 4—AMENDMENT OF THE VICTORIAN CIVIL AND

ADMINISTRATIVE TRIBUNAL ACT 1998

43. Schedule 1

See:

In Schedule 1 to the Victorian Civil and Act No.
Administrative Tribunal Act 1998, in clause 53/1998.
Reprint No. 2
31(3)(a), after "senior member" insert "or as at
presidential member". 15 July 2001
and

amending Act Nos 98/2000,
2/2001,
68/2001 and
96/2001.

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Guardianship and Administration (Amendment) Act 2002

Endnotes

Act No. 41/2002

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."

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Guardianship and Administration (Amendment) Act 2002 (Vic)

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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

18.	Consent of person responsible	9
19.	New section 42HA inserted	10

20.	Persons eligible as administrators	12
21.	New section 50A inserted	12

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

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

(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)	Administrative Tribunal Act 1998

(1) In section 3(1) of the Guardianship and Administration Act 1986, in the definition of	Act No.
58/1986. Reprint No. 5
"registered practitioner", for "Dentists Act 1972"	as at
substitute "Dental Practice Act 1999".	1 January 2000 and amending Act
Nos 78/2000, 11/2001,
27/2001 and 51/2001.
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(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.'.

(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—

(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)".

(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—

(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

(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.".

(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.

Act No. 41/2002	s. 28
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	(date)"; and
alternative guardian)

(a)	section 8 (criteria for admission and detention as an involuntary patient);
(b)	section 12 (admission and detention of involuntary patients);

(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);

(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.

Act No. 41/2002	s. 40
(iv)	(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

(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.".

In Schedule 1 to the Victorian Civil and	Act No.
Administrative Tribunal Act 1998, in clause	53/1998. Reprint No. 2
31(3)(a), after "senior member" insert "or	as at
presidential member".	15 July 2001 and
amending Act Nos 98/2000,
2/2001,
68/2001 and
96/2001.
LawToday:
dpc.vic. gov.au