What you need to know about the new “medical research” function for an Enduring Power of Attorney

On 1 September 2016 the Powers of Attorney Act 2006 (the Act) was amended to allow a person (the Principal) to authorise their nominated attorney to make decisions about medical research matters involving ethically approved research when the Principal becomes a person with impaired decision making capacity. This authority is in addition to the existing authorities in the Act, namely, for the attorney, if authorised, to make decisions relating to:

  • property
  • personal care
  • health care

Context

People with impaired decision making capacity cannot give consent to participate in medical research, so a substitute decision maker in the form of an enduring attorney, is required to give consent on their behalf. Previously, the Act did not allow for this. Before the changes to the Act, people with impaired decision making capacity were prevented from participating in medical research as they could not legally give consent to do so.

The changes to the Act means that people with impaired decision making capacity may now receive treatment from participating in medical research if they have given their enduring attorney the authority to make such decisions, where they previously could not. The amendment may indirectly assist health researchers in developing innovative treatments which may benefit a class of people with a particular health condition.

Safeguards to attorney’s power

The explanatory statement to the Powers of Attorney Amendment Bill 2015 describes the new function as striking an appropriate balance between removing barriers to participation in medical research and protecting a person’s right not to be involved in medical research.

This balance is achieved through the existing checks and balances on attorneys, which oblige attorneys to act only within the boundaries of their authority and only in the best interests of the Principal, and a two-tiered decision making process that attorneys must follow when making a decision about a Principal’s participation in medical research matters.

The type of medical research

A person may give their attorney the power to consent on their behalf to low risk research and medical research. This includes:

  • research projects involving minor uncontroversial treatment that has been approved by a human research ethics committee
  • experimental health care, which may or may not be medical in nature

What If I’ve already got an Enduring Power of Attorney (EPA)?

Where a person has an existing EPA that was made before the commencement of the changes to the Act, and in their EPA they authorised their attorney to make decisions in relation to their health care, their attorney can also consent to their participating in medical research.

This means that you do not need a new EPA simply to authorise your attorney to consent on your behalf to medical research when you become a person with impaired decision making capacity. If you do not want your attorney to have this power, and are unsure what your EPA authorises your attorney to do on your behalf, it may be appropriate to contact our estate planning team to assist.

If you would like to put in place an Enduring Power of Attorney, our estate planning team can assist. Please call us on (02) 6162 1613.

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