Health care consent and OPG
Presentation transcript
Hello, welcome.
This is the Office of the Public Guardian.
My name is Tony Wherritt, and I'm the Principal Health Care Liaison Officer.
This session is about the role of the Public Guardian and health care consent.
I’d like to pause to acknowledge our First Nations brothers and sisters, to pay our respects to Elders past, present, and emerging, and to acknowledge the Traditional Custodians of the lands upon which you are joining us today.
So first of all, who is the Public Guardian?
It’s an independent statutory officer, appointed by the Governor in Council, and reports to the Queensland Parliament.
Not reporting to a Minister — an independent agency.
The current Public Guardian is Shayna Smith.
The current culture from Shayna is as the quote there, the Public Guardian's role in relation to adults who have an impaired capacity for a matter is to protect their rights and interests.
The health care part of the Public Guardian’s role is set out in several pieces of legislation: the Powers of Attorney Act, the Guardianship and Administration Act, the Public Guardian Act, and the Human Rights Act.
And these pieces of legislation cover all aspects of the Public Guardian's role.
For health care matters, other pieces of legislation do often come into play as well.
And I've just mentioned a couple here being the Health, Drugs and Poisons Regulation, as well as the Mental Health Act.
But other pieces of legislation for health care can sometimes come into play that haven't been listed here.
The legislation tells us:
when an adult is unable to make a health care decision for themselves,
what decisions can be made for an adult,
who can make the substitute decision,
how those substitute decisions are made on behalf of an adult,
and the agencies involved in the guardianship system.
So, guardianship overarching, but again for this presentation - health care specific — is about rights protection and health care decision making.
It's important to note that it's not about service provision or health care case management.
It is unfortunately a little bit of a misconception that the role of the Public Guardian is a case manager or support coordinator.
We are the decision maker only.
The involvement of the guardianship system for health care decisions is of last resort.
Continuing, it tells us that the right to make your own decisions is fundamental to an adult’s dignity.
And this includes the person or an adult's right to make decisions that others don't agree with.
Capacity depends on the nature of an impairment, the type of decision to be made, and the level of informal supports available.
There is sometimes an overlap or a blurred edge between when someone is objecting or refusing or making a decision that others don't agree with, as opposed to lacking capacity to make a decision.
People do have the right to make decisions that others don't agree with if they have the capacity to do so.
It's important to note that it should be the least possible restriction and interference with decision making.
And of course, adults have the right to appropriate and adequate support for decision making as opposed to substitute decision making.
The legislative definition of capacity is that if you're 18 years or older, there is a presumption that you have capacity to make your own decision about a matter.
For clinicians, making a determination as to whether an adult does have capacity or not for a health care matter, the following definition applies:
Does the adults understand the nature and affect of the decision about a matter?
Can they freely and voluntarily make the decision about a matter?
And are they able to communicate that decision in some way?
And it is important to note that communication does include non-verbal means of communication.
Just because someone is not able to speak, does not mean that they do not have capacity.
Also important to note that capacity is decision-specific, domain-specific, and time-specific.
And what that means is that just because someone might be assessed as having a lack of capacity for a particular decision, does not necessarily mean that that applies to all decisions that that person might need to make.
Similarly, domain covers that as well.
So, for example, if someone was deemed to not have capacity to make a financial decision, that does not automatically translate to other domains in their lives such as health care, or for example, accommodation, or service provision or other domains.
Capacity must be assessed for each individual, specific decision and domain type.
In a health care space, it's also common for time specificity to come into play as well.
For example, it is not uncommon for an adult to become delirious, secondary to an infection and that may be the reason why someone is currently, temporarily lacking capacity which is obviously a time-specific issue.
They're presumable going to recover once they have had antibiotics and regain capacity.
So again, because someone may have had in the past a lack of capacity, does not necessarily translate to that person today, tomorrow or in the future lacking capacity for the same decisions.
A simpler way of discussing that would be that it's fluctuating.
Keeping with the definitions of the legislation, specifically for the definition of health care, it states that it is to diagnose, maintain or treat the adult's physical and mental condition, and it is carried out by or under the direction or supervision of a health provider.
Somewhat counter-intuitively, it does not include the following matters.
And this is not to say that these aren't health care related, it's just to say that these aren't necessarily health care matters for the consent process under legislation.
They are: first aid treatment, non-intrusive examinations made for diagnostic purposes and administration of over-the-counter medications.
So, certainly that's not to say that you don't as a first aider need to seek consent from an adult you're about to provide that treatment to but it doesn't require a substitute consent decision from a substitute decision maker.
Similarly, for non-intrusive examinations.
So, think head to toe examinations, non-invasive examinations.
Things that don't carry risk.
And over the counter medications: if it doesn't require a script, it doesn't generally require consent.
So, obtaining consent, generally, and I say generally because it is in most cases health providers must obtain consent for health care.
But there are certainly situations where consent isn't required.
Patients and substitute decision makers need information on the risks, side effects, benefits, and alternatives to treatment, and they also need to know about the consequences if the treatment wasn't to be provided.
So who can provide consent?
So, when an adult is assessed by a health provider as lacking capacity for a particular health matter decision, the legislation states that the following is the order of priority as to how that decision is made on that adult's behalf.
If there is a direction under an Advance Health Directive, that is the priority decision.
That is when the adult has made previously, an instruction about this matter when they did have capacity.
An Advance Health Directive is a legally binding document.
The next priority would be if the adult has a guardian appointed by the Queensland Civil and Administrative Tribunal or QCAT.
That person is their substitute decision maker for the domains that they are appointed for.
So, if an adult has a guardian appointed for health care or all personal matters, they are their substitute decision maker for health care consent.
The next would be if the adult has an Enduring Power of Attorney (EPOA) and has appointed an attorney or attorneys under that document.
That attorney or attorneys are that person's substitute decision maker for the matters that the EPOA covers.
Which is often all personal matters inclusive of health care.
The last of the order of priority is the adult's statutory health attorney.
And in Queensland, the statutory health attorney regime is an informal appointment - sorry an informal role that does not require the appointment from the Queensland Civil Administrative Tribunal.
So who is an statutory health attorney?
The legislation gives us the definition that it is a person who is 18 years or older and they are readily available and culturally appropriate for the adult requiring the decision and they are listed in the following order of priority.
So it is the adults spouse or partner as long as that is a close and continuing relationship.
So for example, if they are separated, divorced or no longer maintaining a relationship, an intimate relationship, but if they are still keeping in contact, maybe for example, joint custody of children, maintaining a form of relationship, that partner may still be the first order priority as the statutory health attorney.
Certainly different if they are estranged or they are no longer maintaining that close and continuing relationship.
That partner or ex-partner in that instance is no longer that statutory health attorney.
The next order of priority is a carer of the adult who is not receiving payment - commercial payment.
It is acceptable for things like welfare payments - so Centrelink payments, carers pensions, those sort of things.
That's fine.
It's the commercially paid carers that are ineligible to be the statutory health attorney.
The next priority would be the adult's close friend or family member.
So it might be that an adult has only their neighbour, a friend and neighbour as their only person in their life who has the knowledge and background to be able to make some decisions on their behalf.
And then lastly, if there is no one in the person's life in the above list or those people are uncontactable, the Public Guardian can act as the statutory health attorney of last resort and can do so without a formal appointment.
So the legislation also tells how substitute decision makers should be making decisions on behalf of adults without capacity.
The health care principles specifically give the following instructions for substitute decision makers.
The decision should be made in a way that is the least restrictive on the adult's rights.
That is only exercised when it is necessary and appropriate to maintain and promote the adult's health and well-being.
Is in all circumstances in the adult's best interests.
When there is choice between two or more health care options, the least intrusive way should be adopted.
Seek and take into account the adult's views and wishes about the health care matter and of course taking information on board from the health provider.
So the public guardian will make health care consent decisions on behalf of adults with impaired capacity when we are appointed as that adult's Guardian by QCAT, when we have been appointed by the adult as their attorney under an Enduring Power of Attorney.
So they have done so back in their life when they still had capacity to do so.
And of course, we can act as the Statutory Health Attorney of last resort.
The effect of consent from a substitute decision maker is the same as if the adult had provided consent themselves if they had capacity to do so.
And for Public Guardian provided consents, we advise health providers that those consents are valid for 12 months providing of course the clinical situation hasn't changed.
The onus is on the health provider to seek an update consent as and if required.
So health care also includes somewhat counterintuitively the withholding and withdrawal of life sustaining measures if the commencement or continuation of those measures is inconsistent with good medical practice.
So what is good medical practice?
The definition in the legislation states that it is recognised medical standards, practices and procedures of the profession and recognised ethical standards of that profession.
Again, keeping with the definitions, the legislation tells us that a life sustaining measure is health care that is intended to sustain or prolong life and that supplants or maintains the operation of vital bodily functions that are temporarily or permanently incapable of independent operation.
There are some key words in that definition, specifically the supplant and vital bodily functions incapable of independent operation.
So these of course include and are specifically listed in the legislation as including cardio pulmonary resuscitation or CPR.
Of course that is supplanting or replacing the independent cardiac function.
Assisted ventilation, mechanical inflation, deflation of the lungs of course replacing the independent function of the respiratory function and artificial nutrition and hydration of course replacing independent nutrition hydration functions.
Specifically excluded are blood transfusions.
They are not a life sustaining measure as they are not supplanting or replacing independent bodily functions.
When the Public Guardian is requested to make a decision about withholding or withdrawal of life sustaining measures, we apply the same criteria that also applies to when an Enduring Power of Attorney or an attorney I should say under an Enduring Power of Attorney is requested to make the same decision.
The thresholds that we use come from the Powers of Attorney Act.
For the Public Guardian to make a decision for WLSM or withhold life sustaining measures, one of the following four thresholds needs to apply.
The first being the principal or adult has a terminal illness or condition that is incurable or irreversible and as a result of which in the opinion of two doctors the principal or adult is reasonably expected to die within 12 months or one year.
The next threshold and in fact the next two thresholds are somewhat similar.
This one is that the principal adult is in a persistent vegetative state.
That is that they are in a condition involving severe and irreversible brain damage.
They may have some vital bodily functions continuing for example heartbeat or breathing but there's no expectation for recovery.
And similarly for the next one not just vegetative but this person is now permanently unconscious.
That is that the principal and adult has a condition involving brain damage so severe that there is no reasonable prospect that they will regain consciousness.
And the final threshold being the principal or adult has an illness or injury of such severity that there's no reasonable prospect that they will recover to the point where they can be sustained without the ongoing use of life sustaining measures.
So to paraphrase, first threshold being terminal, incurable with a reasonable expectation of dying within 12 months, vegetative state or comeomaosse and not expected to recover.
And fourthly, receiving current life sustaining measures and is not expected to recover to the point where they can be sustained without the ongoing use of life sustaining measures.
There are of course potentially other clinical thresholds that might be reasonable to apply withholding life sustaining measures and clinicians are most welcome to discuss these individual cases with the Public Guardian on an ad hoc basis.
So it's also important to note that health providers can do lots of different forms of health care without consent.
Some of these include urgent health care, withholding and withdrawal of life sustaining measures in an acute emergency which is also urgent health care and of course minor and uncontroversial health care.
So starting with urgent health care, the legislation provides information and jurisdiction for health providers.
If the health care is urgently required to meet the imminent risk of life or health of the adult or if the health care is urgently required to prevent significant pain or distress, it may not require consent and health providers can proceed keeping with emergency provisions in the legislation.
In an acute emergency, health providers may also make their own decisions at times for withholding or withdrawal of life sustaining measures.
If the following applies, of course, we're talking about adults with impaired capacity and if the life sustaining measures is inconsistent with good medical practice.
Health providers cannot make decisions in this scenario.
However, if they know that the adult is objecting to that treatment.
So, it only applies urgent care only applies without consent if there is no knowledge that the adult is objecting to that treatment.
If there is an objection, then the health provider must seek consent from a substitute decision maker.
It's also important to note that the legislation specifically excludes artificial nutrition and hydration in an acute emergency.
So health providers in an acute emergency are essentially left with making decisions around cardiopulmonary resuscitation or CPR and assisted ventilation and of course other matters that they deem to meet the definition of life sustaining measures.
So for example possibly defibrillators or dialysis as an example.
Objections to health care.
Substitute decision makers so attorneys or guardians can provide consent overriding the objection of an adult if the health provider can verify that the matter meets this threshold which is specifically section 67 of the act covering objections to health care.
If the health provider can articulate and verify to the substitute decision maker that the adult has no understanding of what the health care involves or why their health care is required.
So essentially we're establishing that they are lacking capacity and that the health care is likely to cause the adult no distress or only temporary distress that is outweighed by the benefit of treatment then the objection may be overridden.
This is at the discretion of the health provider not at the discretion of the substitute decision maker.
It's the health provider who must verify if this applies or not.
Which then sometimes takes us to the next aspect being use of force.
So it's important to note here that substitute decision makers, so attorneys or guardians are unable to provide a consent decision to use force on an adult to carry out healthcare.
However, the legislation, specifically section 75 of the Guardianship Administration Act, does provide jurisdiction for health providers to use the minimum force necessary and reasonable to carry out health care that is authorised under the act.
So for example, if the Public Guardian was approached to provide consent for a health care matter on behalf of an adult and that adult was objecting.
If the health provider has verified that it does meet the threshold for section 67 objection override and therefore the consent was provided.
The health provider now has the ability to apply section 75 use of force at their discretion.
It's important to note that attorneys or guardians including private attorneys or guardians do not have jurisdiction to provide a consent decision for the use of force.
It is always at the discretion of the health provider.
And at this point it's also I think important to note that in some instances the application or use of force may mean that the health care is no longer good medical practice and what I'm referring to there is that if there are situations where there is no practicable means of force or reasonable use of force or if the use of force is going to have such adverse outcomes or fracture the therapeutic relationship with that person, the health provider may deem that that's no longer appropriate and no longer pursue that health care.
That is of course always at the discretion of the health provider.
In cases of dispute, the Public Guardian does have a niche role in the guardianship administration act specifically under sections 42 and 43.
It is a rarely utilised aspect of our jurisdiction - the Public Guardian jurisdiction, however, it does exist.
The common avenue for addressing the issues, however, is via QCAT.
Section 42 applies when there is disagreement between guardians and attorneys.
So, private attorneys and guardians that cannot be mediated by health providers.
And section 43 covers scenarios where private guardians and attorneys are either refusing to make a decision or acting contrary to the health care principles under the act.
When health providers make requests of the public guardian to act under section 42 or 43, there is a requirement to submit a substantial amount of written evidence and material to support the application.
In many cases, an application to QCAT for guardianship is a much simpler process for the health provider and is often a better option and least restrictive option for the adult in question.
If the Public Guardian is to make a decision under section 42 or 43, it is a unilateral decision that is made outside of the review process of the tribunal.
So it is not viewed as being the least restrictive option available to the adult.
So whilst a health provider might make applications for the public guardian for section 42 or 43 disputes, I would also encourage that they in parallel make an application to QCAT in the event that the Public Guardian declines to utilise the jurisdiction under section 42/43 in which case there is no delay in making appropriate decision making appointments for the adult in question.
The following are some resources and information available for health providers and community.
Our website is a great resource and has a number of links and tabs for a number of different matters.
We also have some explanation videos on the guardianship and administration system, how we make decisions for our clients.
So not just health care decisions but general decision-making processes, forward planning which covers things like advanced care planning.
Also videos covering our investigations arm of our agency and of course fact sheets as well available for health providers and community providers service providers as well.
And finally contact, general contact there of course but we have our health care consent inquiry line.
So this is for health providers and they can call direct to the health care line to speak to our dedicated health care staff who will be able to assist them with inquiries around consent, decision-making and of course providing consent decisions at request when we are appointed or the statutory health attorney.
Thank you for your time today.
Appreciate it.