The purpose of this Bill is to amend the Guardianship and Administration Act 1990 to provide the authorisation and appropriate safeguards to enable enduring guardians, guardians and next of kin to consent to medical research for people under legal incapacity.
Essentially, this Bill will allow doctors to participate in trialling new and emerging treatments. Under existing legislation, an enduring guardian (or next of kin) is able to make a decision about medical treatment, but not medical research. The Bill has been tabled, quickly, in response to issues that have arisen in light of COVID-19.
In summary, the APS supports the purpose of the Bill which is to assist people who are critically ill to take part in research trials and potentially have access to life-saving treatment. However, there are concerns about the speed with which these amendments have been made which could potentially overlook some important considerations that may mean the best interests of the person are not at the forefront.
The Draft Amended Act presumes that the research candidate does not have decision-making capacity. This presumption is acceptable when the research candidate has a guardian or substitute decision-maker who can provide consent. However, this assumption is a concern when there is no guardian or substitute decision-maker involved in the process and urgent medical research occurs without consent. In this instance, the APS recommends putting in place appropriate measures to ensure that research, in the absence of consent, only proceeds if an independent medical practitioner has the appropriate skills to determine decision-making capacity (or if not, has access to an appropriately trained registered health professional).
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