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10 Apr 2020

HHG Legal Group’s Special Counsel, Janene Bon and Law Graduate, Maria Zappala provide readers with a clear synopsis on the new Act and how it may affect a person’s healthcare wishes.

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In response to some of the serious challenges COVID-19 has presented, the Federal and State Governments have raced to implement new laws and amend existing laws in Australia. This week, changes have been made in WA to the Guardianship and Administration Act 1990 (G&A Act) to allow guardians of incapacitated people to consent to medical trials and research on their behalf.

 

THE AMENDMENTS

Circumstances change over time. It’s important to recognise that these changes may have an impact on your overall estate planning and current Will.

The Guardianship and Administration Amendment (Medical Research) Bill 2020 (Bill) was introduced into the Western Australian State Parliament on 1 April 2020. It was passed by Parliament, received assent and took effect on 6 April 2020.

The amendments to the G&A Act broaden the power of enduring guardians, guardians and next of kin to make medical research decisions on behalf of incapacitated people.  Before the changes to the G&A Act, critically ill and incapacitated COVID-19 patients may have been denied access to the latest treatments being trialled throughout the world. Now, thanks to the changes to the G & A Act, guardians and next of kin can consent to medical trials and research for people who do not have the legal capacity to agree to this themselves.

The G&A Act defines medical research as:

  1. research conducted with or about individuals, or their data or tissue, in the field of medicine or health; and
  2. includes an activity undertaken for the purposes of that research.

The Act also provides examples of medical research including:

  1. the administration of pharmaceuticals or placebos;
  2. the use of equipment or a device;
  3. providing health care that has not yet gained the support of a substantial number of practitioners in that field of health care; and
  4. taking samples from an individual including blood, tissue or fluid.

In urgent situations, where it is not practicable to acquire consent from a person’s guardian or next of kin within a suitable timeframe, the amendments to the G & A Act allow for a researcher to conduct research as long as a number of stringent conditions are met such as:

  1. the research that has been approved by a Human Research Ethics Committee; and
  2. an independent medical practitioner determining that the person’s participation in the research is in their best interests or not adverse to their interests.

COMMENTARY AND SUPPORT

When the amendments to the G&A Act were first proposed, Health Minister Roger Cook stated that it was “essential” for Parliament to pass them and described their importance in relation to COVID-19:

We need treatments that will slow or kill the novel coronavirus. We need to know what treatments are most effective so we can reduce the time patients spend in hospital, particularly in intensive care. This knowledge can only be gained via medical research, such as through clinical trials.”

Australian Medical Associations President Dr Andrew Miller also supported the amendments stating:

“…..this will benefit all critically ill patients in WA, not just those with COVID-19.”

WHAT DO THESE AMENDMENTS MEAN?

The amendments to the G&A Act allow those with the authority to make medical and now research decisions on behalf of another person to consent to medical research or medical trials being conducted on that person that may assist that person fight the disease and contribute to the global fight against COVID-19.

This means that it has never been more important to consider who you want to make your medical and lifestyle decisions and now make medical research decisions on your behalf in the event that you are so ill or incapacitated that you cannot make these decisions for yourself.

HHG Legal Group can assist

If you don’t have an Enduring Power of Guardianship or Advance Health Directive or if you do, but have not reviewed these documents for a while, it is time to look at these now.

For over 100 years HHG Legal Group has been proudly serving Western Australian families, business and individuals. Never before has the State seen such a crippling time for many individuals and we are committed to supporting the communities in which we operate. If you require advice or representation in relation to your Will or estate we are offering unprecedented fees for initial consultations (video, phone or safely-spaced, face-to-face). You can send us an enquiry or call us on 1800 609 945 and we’ll call you back.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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