A guardian has the power to make the range of personal or lifestyle decisions which SACAT specifies in its order appointing the guardian.
A guardian can only be a natural person (not a corporation) over 18 years of age. There may be more than one guardian. A guardian may also be appointed as an administrator. Generally a guardian will be a family member or friend who is familiar with the person with a mental incapacity. Where there is no suitable relative or friend available SACAT can appoint the Public Advocate as a guardian, see Guardian of last resort. A person who cares for the person with a mental incapacity in a paid, professional capacity cannot be appointed as a guardian.
SACAT is required to limit the powers of a guardian to the minimum necessary in the circumstances. In their decision making, guardians must observe the same principles of substituted judgement as are required of SACAT and any administrator appointed by SACAT, see Principles of Substituted Judgement.
Where the guardian has authority to make medical or dental decisions, the guardian can consent to any necessary treatment, except for terminations of pregnancy and sterilisation under the Guardianship and Administration Act 1993 (SA), and electro-convulsive therapy (ECT) under the Mental Health Act 2009 (SA).
With the specific direction or authority of SACAT, a guardian may arrange for the person with a mental incapacity to reside in specified accommodation or to receive necessary medical or dental treatment and day-to-day care. With SACAT’s consent [s 32], the guardian or a member of the police can return a person with a mental incapacity to a place of treatment or care, and/or SACAT can authorise a guardian to legally detain the person with a mental incapacity in a specific place for treatment or care. However, a guardian cannot authorise the placement of the person in a correctional institution or a psychiatric facility, (known as an Approved Treatment Centre under the Mental Health Act 2009 (SA)). For information on the detention of a person with a mental illness, see MENTAL HEALTH.
A guardian must work co-operatively with any administrator appointed by SACAT. SACAT provides a copy of any orders made at a hearing, which dictate the powers and any conditions and terms, to all relevant persons. SACAT will also set a review date for its order.
A person appointed as a guardian must take reasonable steps to ascertain whether the protected person has given an advance care directive. If the protected person has given an advance care directive, the appointed guardian must, as far as may be reasonably practicable give effect to any provision in the advance care directive and seek to avoid any outcome or intervention that the protected person would wish to be avoided (whether such wish is expressed or implied in the advance care directive) [s 31A].
A person providing substitute consent on behalf of a person with reduced mental capacity should try to put themselves in the other person's shoes. What would the person do, or want, in this situation? Will the outcome of the treatment be of benefit to the person? Is there a less restrictive option? Will the benefit of the treatment outweigh any possible restriction on the person's quality of life? Have the risks been identified?
The role of the substitute consent provider is to make an informed decision about whether consent should be given. A second opinion can be sought if further clarification of the options to treatment is needed.
The following additional reasons may necessitate SACAT involvement:
- if a patient or the substitute consent provider is objecting to the treatment
- if there is dispute or conflict about the treatment
- if the treatment has a significant associated risk
- if the treatment may be ethically contentious
It may be that the people concerned in providing consent in these situations feel uneasy about making the final decision without some independent advice. Such people should be encouraged to seek advice from:
- the medical officer concerned or a member of the health team
- the Office of the Public Advocate
- the Legal Services Commission
- a solicitor
See also: Consent
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.