2015
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Attorney-General)
Powers of Attorney Amendment Bill 2015

Contents
	Page
	1	Name of Act	2
	2	Commencement	2
	3	Legislation amended	2
	4	What is an enduring power of attorney?
Section 8, note	2
	5	Meaning of personal care matter
Section 11, definition of personal care matter	3
	6	Meaning of health care matter
Section 12, definition of health care matter	3
	7	New section 12A	3
	8	Appointment of attorneys
Section 13 (2)	4
	9	Section 13 (2), note	4
	10	Limit on s 13 power to appoint attorneys—enduring powers of attorney
Section 14 (2) and (3)	4
	11	Others acting for attorney
Section 33 (2)	5
	12	Special health care matters
Section 37 (1) (d)	5
	13	New part 4.3A	5
	14	Obligations on health care facilities in relation to powers of attorney
Section 49 (a)	13
	15	Meaning of interested person—ch 7
Section 74, definition of interested person, new paragraph (h)	13
	16	Section 85 heading	14
	17	Section 85 (1), new definitions	14
	18	Section 85 (2) (a)	14
	19	General principles for enduring powers of attorney
Schedule 1, section 1.11	14
	20	Dictionary, new definitions	15
Schedule 1	Other amendments	16
Part 1.1	Guardianship and Management of Property Act 1991	16
Part 1.2	Medical Treatment (Health Directions) Act 2006	30

2015
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Attorney-General)
Powers of Attorney Amendment Bill 2015

A Bill for
An Act to amend the Powers of Attorney Act 2006, and for other purposes

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1	Name of Act
This Act is the Powers of Attorney Amendment Act 2015.
2	Commencement
This Act commences on a day fixed by the Minister by written notice.
Note 1	The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
Note 2	A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).
Note 3	If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).
3	Legislation amended
This Act amends the Powers of Attorney Act 2006.
Note	This Act also amends the following legislation (see sch 1):
·	Guardianship and Management of Property Act 1991
·	Medical Treatment (Health Directions) Act 2006.
4	What is an enduring power of attorney?
Section 8, note
after
general power of attorney
insert
in relation to property matters
5	Meaning of personal care matter
Section 11, definition of personal care matter
omit
special personal matter or special health care matter 
substitute
special personal matter, special health care matter or medical research matter
6	Meaning of health care matter
Section 12, definition of health care matter
after
special health care matter
insert
or medical research matter
7	New section 12A
in chapter 2, insert
12A	Meaning of medical research matter
	(1)	In this Act:
medical research matter, for a principal, means a matter relating to the principal’s participation in—
	(a)	medical research; or
	(b)	low-risk research.
Note	The power given to an attorney under an enduring power of attorney in relation to medical research matters must be exercised in accordance with pt 4.3A (Medical research matters).
	(2)	In this section:
low-risk research, in relation to a person—see section 41A.
medical research, in relation to a person—see section 41A.
8	Appointment of attorneys
Section 13 (2)
omit
personal care matters or health care matters
substitute
personal care matters, health care matters or medical research matters
9	Section 13 (2), note
omit
10	Limit on s 13 power to appoint attorneys—enduring powers of attorney
Section 14 (2) and (3)
omit
personal care or health care matter 
substitute
personal care matter, health care matter or medical research matter
11	Others acting for attorney
Section 33 (2)
omit
decision-making ability
substitute
decision-making capacity
12	Special health care matters
Section 37 (1) (d)
omit
13	New part 4.3A
insert
Part 4.3A	Medical research matters
41A	Definitions—pt 4.3A
	(1)	In this part:
approved, for medical research or low-risk research, means medical research or low-risk research approved by a human research ethics committee constituted in accordance with, and acting in compliance with, the National Statement on Ethical Conduct in Human Research (2007), published by the NHMRC, as in force from time to time.
Note	The National Statement on Ethical Conduct in Human Research (2007) is accessible at www.nhmrc.gov.au.
low-risk research, in relation to a person—
	(a)	means research carried out for medical or health purposes that—
	(i)	poses no foreseeable risk of harm to the person, other than any harm usually associated with the person’s condition; and
	(ii)	does not change the treatment appropriate for the person’s condition; but
	(b)	does not include any activity that is part of a clinical trial.
Examples—par (a) 
1	research using personal information or personal health information collected during routine health care 
2	a non-intrusive examination for research purposes
3	observing the person’s activities for research purposes
4	research comparing the effectiveness of paracetamol and ibuprofen during routine health care
5	collecting information through a survey for research purposes
Note	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
medical research, in relation to a person—
	(a)	means research in relation to the diagnosis, maintenance or treatment of a medical condition that the person has or has had or to which the person has a significant risk of being exposed; and
	(b)	includes—
	(i)	experimental health care; and
	(ii)	the administration of medication or the use of equipment or a device as part of a clinical trial; and
	(iii)	research prescribed by regulation as medical research; but
	(c)	does not include—
	(i)	low-risk research; or
	(ii)	research prescribed by regulation not to be medical research.
Example—par (b) (ii)
a clinical trial involving a drug usually used for a particular medical condition but trialled as a treatment for a different medical condition
medical research power of attorney, for a principal, means—
	(a)	an enduring power of attorney under which the principal authorises an attorney to exercise power in relation to a medical research matter; or
	(b)	an enduring power of attorney—
	(i)	under which the principal authorises an attorney to exercise power in relation to a health care matter; and
	(ii)	that was made before the commencement of the Powers of Attorney Amendment Act 2015.
	(2)	In this section:
experimental health care means research—
	(a)	into health care that—
	(i)	has not yet gained the support of a substantial number of practitioners in that field of health care; and
	(ii)	may, but need not, be medical in nature; and
	(b)	delivered as part of a test or trial.
Examples
1	trialling increased physical therapy for patients on ventilation apparatus
2	trialling a new absorbent material after bathing to treat dermatological conditions
NHMRC means the National Health and Medical Research Council established under the National Health and Medical Research Council Act 1992 (Cwlth), section 5B.
personal health information—see the Health Records (Privacy and Access) Act 1997, dictionary.
personal information—see the Information Privacy Act 2014, section 8.
41B	Attorney must follow decision-making principles
	(1)	This section applies in relation to a medical research power of attorney if the principal has impaired decision-making capacity.
	(2)	An attorney authorised under a medical research power of attorney for a principal who is asked to consent to the principal participating in medical research or low-risk research must exercise the power in accordance with the following principles (the decision‑making principles):
	(a)	the principal’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the principal’s interests;
	(b)	if giving effect to the principal’s wishes is likely to significantly adversely affect the principal’s interests—the attorney must give effect to the principal’s wishes as far as possible without significantly adversely affecting the principal’s interests;
	(c)	if the principal’s wishes cannot be given effect to at all—the principal’s interests must be promoted;
	(d)	the principal’s life (including the principal’s lifestyle) must be interfered with to the smallest extent necessary;
	(e)	the principal must be encouraged to look after themself as far as possible;
	(f)	the principal must be encouraged to live in the general community, and take part in community activities, as far as possible.
	(3)	If the principal was participating in medical research or low-risk research before the principal became a person with impaired decision-making capacity, it is presumed the principal’s wishes include to continue participating in the medical research or low-risk research.
	(4)	Before making a decision, the attorney must consult with each of the principal’s carers.
	(5)	However, the attorney must not consult with a carer if the consultation would, in the attorney’s opinion, adversely affect the principal’s interests.
	(6)	Subsection (5) does not limit the consultation that the attorney may carry out.
	(7)	In this section:
carer—see the Guardianship and Management of Property Act 1991, section 6.
41C	Attorney may consent to principal’s participation in low‑risk research
	(1)	This section applies in relation to a medical research power of attorney if the principal has impaired decision-making capacity.
	(2)	An attorney authorised under the medical research power of attorney may consent to the principal participating in low-risk research only if the research is approved.
Note	If a principal has made a health direction under the Medical Treatment (Health Directions) Act 2006, when making a decision under this section, the attorney must comply with—
	(a)	if the health direction is consistent with the power of attorney—the health direction; and
	(b)	if the health direction is inconsistent with the power of attorney—the document that was made most recently (see Medical Treatment (Health Directions) Act 2006, s 19).
	(3)	If an attorney makes an application, the ACAT must give an opinion or advice to assist the attorney to decide whether to give consent under subsection (2).
41D	Attorney may consent to principal’s participation in medical research
	(1)	This section applies in relation to a medical research power of attorney if the principal has impaired decision-making capacity.
	(2)	An attorney authorised under a medical research power of attorney for a principal may consent to the principal participating in medical research only if—
	(a)	the research is approved; and
	(b)	the principal is not likely to regain decision-making capacity before the latest time that the principal may meaningfully participate in the research; and
Note	An independent doctor must assess the likelihood of a principal regaining decision–making capacity within the time mentioned (see s 41F).
	(c)	the attorney is satisfied on reasonable grounds that—
	(i)	the research relates to the diagnosis, maintenance or treatment of a condition that the principal has or has had or to which the principal has a significant risk of being exposed; and
	(ii)	the research may result in benefit to the principal or others with the condition; and
	(iii)	the potential benefit to the principal, or others with the condition, of participating in the research outweighs any potential risk or inconvenience to the principal, or any potential adverse impact on the principal’s quality of life; and
	(iv)	participating in the research will not unduly interfere with the principal’s privacy.
Note	If a principal has made a health direction under the Medical Treatment (Health Directions) Act 2006, when making a decision under this section, the attorney must comply with—
	(a)	if the health direction is consistent with the power of attorney—the health direction; and
	(b)	if the health direction is inconsistent with the power of attorney—the document that was made most recently (see Medical Treatment (Health Directions) Act 2006, s 19).
	(3)	If an attorney makes an application, the ACAT must give an opinion or advice to assist the attorney to decide whether to give consent under subsection (2).
41E	Attorney must not benefit etc from attorney’s decision
	(1)	An attorney must not—
	(a)	accept a fee or other benefit for consenting, or refusing to consent, to a principal participating in low-risk research under section 41C or medical research under section 41D; and
	(b)	be involved in, or connected to, the research.
	(2)	To remove any doubt, subsection (1) (a) does not apply to any personal benefit to the attorney because of an improvement in the principal’s health as a result of participating in the research.
41F	Assessment of likelihood of principal regaining decision‑making capacity
	(1)	The likelihood of a principal regaining decision–making capacity within the period mentioned in section 41D (2) (b) must be assessed by an independent doctor, taking into account—
	(a)	the principal’s medical, mental and physical condition; and
	(b)	the severity of the principal’s condition and the prognosis for the principal; and
	(c)	the current stage of treatment and care required for the principal; and
	(d)	any other circumstances relevant to the principal; and
	(e)	the nature of the medical research, including the type of treatment or care provided by the research and the timeframe for the research.
	(2)	The independent doctor must state, in writing, the doctor’s belief whether the principal is likely to regain decision-making capacity within the period mentioned in subsection (1), and the reasons for the belief.
Note 1	An independent doctor must always give a statement under s (2), regardless of whether the ACAT has made a declaration about the decision‑making capacity of a principal for an enduring power of attorney under the Guardianship and Management of Property Act 1991, s 65. 
Note 2	In a proceeding, a certificate by an independent doctor under s (2) stating whether the principal is likely to regain decision-making capacity within the required period is evidence of that fact (see s 87).
	(3)	In this section:
independent doctor, in relation to medical research, means a doctor who is not involved in, nor connected to, the research, other than a professional interest in the area of the research.
41G	Interested person may apply to ACAT for review of attorney’s decision
	(1)	An interested person for a principal may apply to the ACAT for review of the decision of the attorney to consent, or refuse to consent, to the principal participating in low-risk research under section 41C or medical research under section 41D.
	(2)	In this section:
interested person, for a principal—see section 74.
14	Obligations on health care facilities in relation to powers of attorney
Section 49 (a)
omit
or health care matters
substitute
, health care matters or medical research matters
15	Meaning of interested person—ch 7
Section 74, definition of interested person, new paragraph (h)
insert
	(h)	a person prescribed by regulation.
16	Section 85 heading
substitute
85	Attorney’s health care, medical research or low-risk research decision not in principal’s interest
17	Section 85 (1), new definitions
insert
low-risk research, in relation to a person—see section 41A.
medical research, in relation to a person—see section 41A.
18	Section 85 (2) (a)
substitute
	(a)	an attorney makes a decision in relation to—
	(i)	the health care of the principal; or
	(ii)	the principal participating in medical research or low-risk research; and
19	General principles for enduring powers of attorney
Schedule 1, section 1.11
substitute
1.11	Health care and medical research
	(1)	An individual is entitled to have decisions about a health care matter or a medical research matter made by an attorney—
	(a)	in the way least restrictive of the individual’s rights and freedom of action; and
	(b)	only if the exercise of power—
	(i)	is, in the attorney’s opinion, necessary and appropriate to maintain or promote the individual’s health and wellbeing; or
	(ii)	is, in all the circumstances, in the individual’s best interests.
	(2)	An individual’s wishes in relation to a health care matter or a medical research matter, and any information provided by the individual’s health care provider, must be taken into account when an attorney decides what is appropriate in the exercise of power for a health care matter or a medical research matter.
20	Dictionary, new definitions
insert
approved, for medical research or low-risk research, for part 4.3A (Medical research matters)—see section 41A.
decision-making principles—see section 41B.
low-risk research, in relation to a person, for part 4.3A (Medical research matters)—see section 41A.
medical research, in relation to a person, for part 4.3A (Medical research matters)—see section 41A.
medical research matter, for a principal—see section 12A.
medical research power of attorney, for a principal, for part 4.3A (Medical research matters)—see section 41A.

Schedule 1	Other amendments
(see s 3)
Part 1.1	Guardianship and Management of Property Act 1991
[1.1]	Section 7 (3) (e)
omit
other than
substitute
including medical research or low-risk research but not including
[1.2]	Section 7 (3) (e), new note
insert
Note	For when a guardian may consent to a person participating in medical research or low-risk research, see pt 2B (Medical research and low-risk research).
[1.3]	Section 8B (1) (a)
after
health care matters
insert
or medical research matters
[1.4]	Section 8B (2)
after
medical treatment
insert
, medical research or low-risk research
[1.5]	New section 8B (3)
insert
	(3)	In this section:
health care matter, for a principal—see the Powers of Attorney Act 2006, section 12.
medical research matter, for a principal—see the Powers of Attorney Act 2006, section 12A.
[1.6]	Section 32A, definition of medical treatment, paragraph (b)
substitute
	(b)	does not include—
	(i)	a prescribed medical procedure; or
	(ii)	medical research; or
	(iii)	low-risk research.
[1.7]	Section 32D (1) (b)
substitute
	(b)	while the person is a protected person, the person—
	(i)	needs, or is likely to need, medical treatment; or
	(ii)	would, or is likely to, benefit from participating in low‑risk research.
[1.8]	Section 32D (2)
omit
needed, or likely to be needed, by the protected person
substitute
or low-risk research
[1.9]	Section 32D (2), note 2
substitute
Note 2	A health attorney’s power to consent to medical treatment for a protected person, or to the protected person participating in low-risk research, must be exercised in a way that is consistent with any existing health direction made by the protected person, unless it is not reasonable to do so (see Medical Treatment (Health Directions) Act 2006, s 18).
[1.10]	New section 32D (2A)
after the notes, insert
	(2A)	A health attorney may consent to the protected person participating in low-risk research only if the research is approved.
[1.11]	Section 32D (3)
after
medical treatment
insert
or low-risk research
[1.12]	Section 32E (2)
after
medical treatment
insert
or low-risk research
[1.13]	New section 32E (3)
insert
	(3)	If the protected person was participating in low-risk research before the protected person became a person with impaired decision‑making capacity, it is presumed the protected person’s wishes include to continue participating in the research.
Note	Under the decision-making principles, the protected person’s wishes, as far as they can be worked out, must be given effect to (see s 4 (2)).
[1.14]	Section 32F (2)
after
the protected person
insert
or to the protected person participating in low-risk research
[1.15]	Section 32G
after
medical treatment for a protected person,
insert
or to the protected person participating in low-risk research,
[1.16]	Section 32G (c) to (i)
substitute
	(c)	the medical treatment or low-risk research for which consent is sought;
	(d)	any alternative medical treatment or low-risk research that is available;
	(e)	the nature and likely effect of the medical treatment for which consent is sought and any alternative medical treatment;
	(f)	the nature and degree of any significant risks involved with the medical treatment or low-risk research for which consent is sought and any alternative medical treatment;
	(g)	the likely effect of not providing the medical treatment or low-risk research for which consent is sought;
	(h)	the decision-making principles;
	(i)	any other matter that the health professional believes on reasonable grounds is relevant to the provision of consent for the medical treatment or low-risk research.
[1.17]	Section 32H (1)
substitute
	(1)	This section applies if—
	(a)	a health professional has requested a health attorney for a protected person to give consent to medical treatment for the protected person or to the protected person participating in low-risk research; and
	(b)	the health professional believes the refusal is inconsistent with a health direction under the Medical Treatment (Health Directions) Act 2006.
[1.18]	Section 32I (1)
substitute
	(1)	This section applies if—
	(a)	before obtaining the consent to medical treatment for a protected person from the health attorney that the health professional believes is best able to represent the views of the protected person, the health professional becomes aware that 1 or more of the other health attorneys for the protected person objects to the giving of consent; and
	(b)	the health professional is not aware of any health direction under the Medical Treatment (Health Directions) Act 2006 that is relevant to the issue of whether consent to the medical treatment should be given or not. 
[1.19]	Section 32J
substitute
32J	Notice to public advocate—long‑term treatment
	(1)	This section applies if—
	(a)	consent to medical treatment for a protected person, or to the protected person participating in low-risk research, has been given under this part (other than medical treatment involving treatment, care or support under the Mental Health (Treatment and Care) Act 1994); and
	(b)	the protected person continues to be given medical treatment, or continues to participate in the research, in accordance with the consent 6 months after the consent was given.
	(2)	The health professional who is giving the medical treatment, or carrying out the research, must tell the public advocate of the matters mentioned in subsection (1).
[1.20]	New section 32JA
insert
32JA	Interested person may apply to ACAT for review of health attorney’s decision
	(1)	An interested person for a protected person may apply to the ACAT for review of the decision of the health attorney to consent, or refuse to consent, to the protected person participating in low-risk research under section 32D.
	(2)	In this section:
interested person—see the Powers of Attorney Act 2006, dictionary.
[1.21]	Section 32M
after
medical treatment
insert
, or the carrying out of low-risk research,
[1.22]	Section 32M (b)
after
treatment
insert
been provided or research
[1.23]	New sections 32O and 32P
in part 2A, insert
32O	Interested person may withdraw health attorney’s consent to low-risk research
	(1)	This section applies if a health attorney consents to a protected person participating in low-risk research under section 32D.
	(2)	An interested person for the protected person may withdraw the health attorney’s consent.
	(3)	If the interested person withdraws the consent, any data or bodily tissue collected from the protected person while the person was participating in the research must be removed from the research, unless the interested person agrees, in writing, that the data or bodily tissue may be kept.
	(4)	In this section:
interested person, for a protected person, means each of the following:
	(a)	if, despite section 32A, definition of protected person, paragraph (b), the protected person has appointed an attorney under an enduring power of attorney—the attorney;
	(b)	if, despite section 32A, definition of protected person, paragraph (c), the ACAT has appointed a guardian for the person—the guardian; 
	(c)	the protected person.
32P	Health attorney must not benefit from health attorney’s decision
	(1)	A health attorney must not—
	(a)	accept a fee or other benefit for consenting, or refusing to consent, to a protected person participating in low-risk research; or
	(b)	be involved in, or connected to, the research.
	(2)	To remove any doubt, subsection (1) does not apply to any personal benefit to the health attorney because of an improvement in the protected person’s health as a result of participating in the research.
[1.24]	New part 2B
insert
Part 2B	Medical research and low-risk research
33	Guardian may consent to protected person’s participation in low-risk research
	(1)	This section applies if—
	(a)	a guardian is appointed for a person (a protected person); and
	(b)	the guardian is given the power to give, for the protected person, a consent required for a medical procedure or other treatment under section 7 (3) (e); and
	(c)	the guardian is considering whether to consent to the protected person participating in low-risk research.
	(2)	A guardian may consent to the protected person participating in low-risk research only if the research is approved.
Note	A guardian’s power to consent to a protected person participating in low-risk research must be exercised in a way that is consistent with any existing health direction made by the protected person (see Medical Treatment (Health Directions) Act 2006, s 18).
	(3)	If a guardian makes an application, the ACAT must give an opinion or advice to assist the guardian to decide whether to give consent under subsection (2).
34	Guardian may consent to protected person’s participation in medical research
	(1)	This section applies if—
	(a)	a guardian is appointed for a person (a protected person); and
	(b)	the guardian is given the power to give, for the protected person, a consent required for a medical procedure or other treatment under section 7 (3) (e); and
	(c)	the guardian is considering whether to consent to the protected person participating in medical research.
	(2)	The guardian may consent to the protected person participating in medical research only if—
	(a)	the research is approved; and
	(b)	the protected person is not likely to regain decision-making capacity before the latest time that the protected person may meaningfully participate in the research; and
Note	An independent doctor must assess the likelihood of the principal regaining decision-making capacity within the time mentioned (see s 36).
	(c)	the guardian is satisfied on reasonable grounds that—
	(i)	the research relates to the diagnosis, maintenance or treatment of a condition that the protected person has or has had or to which the protected person has a significant risk of being exposed; and
	(ii)	the research may result in benefit to the protected person or others with the condition; and
	(iii)	the potential benefit to the protected person, or others with the condition, of participating in the research outweighs any potential risk or inconvenience to the protected person, or any potential adverse impact on the protected person’s quality of life; and
	(iv)	participating in the research will not unduly interfere with the protected person’s privacy.
Note 1	A guardian’s power to consent to a protected person participating in medical research must be exercised in a way that is consistent with any existing health direction made by the protected person (see Medical Treatment (Health Directions) Act 2006, s 18).
Note 2	In considering whether to consent to a protected person participating in medical research, a guardian must follow the decision-making principles (see s 4).
	(3)	If the protected person was participating in medical research before the protected person became a person with impaired decision‑making capacity, it is presumed the protected person’s wishes include to continue participating in the research.
Note	Under the decision-making principles, the protected person’s wishes, as far as they can be worked out, must be given effect to (see s 4 (2)).
	(4)	If a guardian makes an application, the ACAT must give an opinion or advice to assist the guardian to decide whether to give consent under subsection (2).
35	Guardian must not benefit from guardian’s decision
	(1)	A guardian must not—
	(a)	accept a fee or other benefit for consenting, or refusing to consent, to a protected person participating in low-risk research under section 33 or medical research under section 34; or
	(b)	be involved in, or connected to, the research.
	(2)	To remove any doubt, subsection (1) does not apply to any personal benefit to the guardian because of an improvement in the protected person’s health as a result of participating in the research.
36	Assessment of likelihood of principal regaining decision‑making capacity 
	(1)	The likelihood of a principal regaining decision-making capacity within the period mentioned in section 34 (2) (b) must be assessed by an independent doctor, taking into account—
	(a)	the protected person’s medical, mental and physical condition; and
	(b)	the severity of the protected person’s condition and the prognosis for the protected person; and
	(c)	the current stage of treatment and care required for the protected person; and
	(d)	any other circumstances relevant to the protected person; and
	(e)	the nature of the medical research, including the type of treatment or care provided by the research and the timeframe for the research.
	(2)	The independent doctor must state, in writing, the doctor’s belief whether the protected person is likely to regain decision-making capacity within the period mentioned in subsection (1), and the reasons for the belief.
Note 1	An independent doctor must always give a statement under s (2), regardless of whether the ACAT has made a declaration about the decision‑making capacity of a principal for an enduring power of attorney under s 65. 
Note 2	In a proceeding, a certificate by an independent doctor under s (2) stating whether a protected person is likely to regain decision-making capacity within the required period is evidence of that fact (see s 72D).
	(3)	In this section:
independent doctor, in relation to medical research, means a doctor who is not involved in, nor connected to, the research, other than a professional interest in the area of the research.
37	Interested person may apply to ACAT for review of guardian’s decision
	(1)	An interested person for a protected person may apply to the ACAT for review of the decision of the guardian to consent, or refuse to consent, to the protected person participating in low-risk research under section 33 or medical research under section 34.
	(2)	In this section:
interested person—see the Powers of Attorney Act 2006, section 74.
[1.25]	Section 65 (2)
omit
personal care matter or health care matter
substitute
personal care matter, health care matter or medical research matter
[1.26]	New section 65 (3)
insert
	(3)	In this section:
health care matter, for a principal—see the Powers of Attorney Act 2006, section 12.
medical research matter, for a principal—see the Powers of Attorney Act 2006, section 12A.
personal care matter, for a principal—see the Powers of Attorney Act 2006, section 11.
property matter, for a principal—see the Powers of Attorney Act 2006, section 10.
[1.27]	Section 69 (1) (a)
after
other treatment
insert
under section 7 (3) (e)
[1.28]	New section 72D
insert
72D	Medical certificate about impaired decision-making capacity
	(1)	This section applies if, in a proceeding, a question arises about whether, on a particular day or during a particular period, a person had impaired decision-making capacity, whether generally or in relation to a particular matter.
	(2)	A certificate by a doctor stating that the person had, or did not have, impaired decision-making capacity either generally or in relation to a particular matter on the day or during the period is evidence of that fact.
[1.29]	Dictionary, new definitions
insert
approved, for medical research or low-risk research—see the Powers of Attorney Act 2006, section 41A.
low-risk research, in relation to a person—see the Powers of Attorney Act 2006, section 41A.
medical research, in relation to a person—see the Powers of Attorney Act 2006, section 41A.
Part 1.2	Medical Treatment (Health Directions) Act 2006
[1.30]	Sections 18 and 19
substitute
18	Effect of health directions on later guardian or health attorney
	(1)	This section applies if—
	(a)	a person has made a health direction; and
	(b)	a doctor declares that the person has become a person with impaired decision-making capacity; and
	(c)	after the direction was made—
	(i)	a guardian is appointed for the person under the Guardianship and Management of Property Act 1991; or
	(ii)	a health attorney is asked to give a consent under the Guardianship and Management of Property Act 1991, section 32D.
	(2)	Any power of the guardian or health attorney to consent to medical treatment for the person, or to the person participating in medical research or low-risk research, must be exercised in a way that is consistent with the health direction.
	(3)	However, a health attorney need not act consistently with a health direction if it is not reasonable to do so.
Examples
1	a health attorney is asked to make an urgent medical decision and the health attorney does not have time to look at the health direction
2	a health attorney is unaware, after making reasonable enquiries, that a health direction exists
Note 1	A health attorney is protected from civil and criminal actions and proceedings in relation to consent given, or not given, in good faith as a health attorney (see Guardianship and Management of Property Act 1991, s 32K).
Note 2	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
	(4)	In this section:
low-risk research, in relation to a person—see the Powers of Attorney Act 2006, section 41A.
medical research, in relation to a person—see the Powers of Attorney Act 2006, section 41A.
19	Relationship between health directions and enduring powers of attorney
	(1)	This section applies if—
	(a)	a person makes—
	(i)	a health direction; and
	(ii)	an enduring power of attorney under the Powers of Attorney Act 2006; and
	(b)	the enduring power of attorney deals with a health care matter or a medical research matter.
	(2)	If the health direction is consistent with the enduring power of attorney, an attorney authorised under the enduring power of attorney must comply with the health direction when making a decision about a health care matter or medical research matter.
	(3)	However, if the health direction is inconsistent with the enduring power of attorney, when making a decision about a health care matter or medical research matter, the attorney must comply with—
	(a)	if the health direction was made before the power of attorney—the power of attorney; or
	(b)	if the health direction was made after the power of attorney—the health direction.
	(4)	The ACAT may, on application by an attorney, declare that a health direction is consistent or inconsistent with an enduring power of attorney.
	(5)	In this section:
attorney—see the Powers of Attorney Act 2006, section 6.
health care matter, for a principal—see the Powers of Attorney Act 2006, section 12.
medical research matter, for a principal—see the Powers of Attorney Act 2006, section 12A.
principal—see the Powers of Attorney Act 2006, section 6.

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on 19 November 2015.
2	Notification
	Notified under the Legislation Act on	2015.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

© Australian Capital Territory 2015