Legal Issues: Operation of Guardianship Laws in the Emergency Ward

(2011) 19 JLM 13

19 Pages Posted: 14 Oct 2014

See all articles by Danuta Mendelson

Danuta Mendelson

Deakin University, Geelong, Australia - Deakin Law School

Date Written: October 14, 2014

Abstract

Enduring and workable legislative schemes typically include (a) a balanced approach to the rights and duties of all parties under their purview; and (b) consideration of all major consequences that may flow from the codification of underpinning doctrines. This column examines the 1999 amendments to the Guardianship and Administration Act 1986 (Vic) regulating patients' consent to medical treatment focusing on their application in modern emergency departments. The legislation needs to reconcile the human rights principle that humane and appropriate treatment is a fundamental right of all those who suffer from ill health and disease, with the principle that all patients (including those with impaired, but not totally absent, decisional capacity) have an absolute right to refuse life-saving treatment. Consent and refusal of treatment provisions should be based on the notion of reasonableness, including recognition that the mental and emotional states experienced by physically ill people may, in the short term, adversely affect their decision-making capacity. Unless the consent legislation factors in the realities of modern emergency practice and resources, statutory thresholds for decisional competence, instead of affording protection, may result in much worse outcomes for vulnerable patients.

Keywords: Guardianship, consent, life-saving treatment, capacity

JEL Classification: I12, I19, K13, K19

Suggested Citation

Mendelson, Danuta, Legal Issues: Operation of Guardianship Laws in the Emergency Ward (October 14, 2014). (2011) 19 JLM 13, Available at SSRN: https://ssrn.com/abstract=2509790 or http://dx.doi.org/10.2139/ssrn.2509790

Danuta Mendelson (Contact Author)

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia

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