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Operation of guardianship laws in the emergency ward

journal contribution
posted on 01.01.2011, 00:00 authored by Danuta MendelsonDanuta Mendelson, A Saunders
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.

History

Journal

Journal of law and medicine

Volume

19

Issue

1

Pagination

13 - 31

Publisher

Lawbook Co.

Location

North Ryde, NSW

ISSN

1320-159X

Language

eng

Publication classification

C1 Refereed article in a scholarly journal

Copyright notice

2011, Lawbook Co.

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