Division 5(1) Subject to subsections (2) and (3), a consent given under this Part in respect of the carrying out of medical or dental treatment on a patient to whom this Part applies has effect:(a) as if the patient had been capable of giving consent to the carrying out of the treatment, and(b) as if the treatment had been carried out with the patient’s consent.(2) A consent given by a person responsible for, or the guardian of, the patient has no effect:(a) if the person carrying out or supervising the proposed treatment is aware, or ought reasonably to be aware, that the patient objects to the carrying out of the treatment, or(b) if the proposed treatment is to be carried out for any purpose other than that of promoting or maintaining the health and well-being of the patient.(3) A consent given by the guardian of the patient has effect despite any objection made by a patient to the carrying out of the treatment if the guardian has consented to that treatment in accordance with the authority of the Tribunal under section 46A.(4) For the purposes of this section, an objection by a patient to the carrying out of proposed medical or dental treatment is to be disregarded if:(a) the patient has minimal or no understanding of what the treatment entails, and(b) the treatment will cause the patient no distress or, if it will cause the patient some distress, the distress is likely to be reasonably tolerable and only transitory.(5) Nothing in this Part precludes the Tribunal, a person responsible or a guardian from giving consent to the carrying out on a patient to whom this Part applies of medical or dental treatment specifically excluded from the definition of that expression in section 33 (1). This section applies to any such consent as if that treatment were not excluded from that definition.
46A Power of guardian to override patient’s objection to treatment when authorised by the Tribunal
(1) The Tribunal may confer on the guardian of a patient to whom this Part applies authority to override the patient’s objection to the carrying out on the patient of major or minor treatment.(2) The Tribunal may confer such an authority only at the request or with the consent of the guardian and only if it is satisfied that any such objection will be made because of the patient’s lack of understanding of the nature of, or reason for, the treatment.(3) The Tribunal may at any time:(a) impose conditions or give directions as to the exercise of such an authority, or(b) revoke such an authority.(4) The guardian may exercise such an authority only if satisfied that the proposed treatment is manifestly in the best interests of the patient.
Nothing in this Part relieves a person from liability in respect of the carrying out of medical or dental treatment on a patient to whom this Part applies, being a liability to which the person would have been subject:(a) had the patient been capable of giving consent to the carrying out of the treatment, and(b) had the treatment been carried out with the patient’s consent.
The regulations may make provision for or with respect to the keeping of records of medical or dental treatment carried out on a patient to whom this Part applies.