77Consent of medical treatment decision maker

77 Consent of medical treatment decision maker

(1) A person's medical treatment decision maker may consent to the administration of a medical research procedure to the person if the medical treatment decision maker reasonably believes that the person would have consented to the procedure if the person had decision-making capacity.

(2) To make a decision in accordance with subsection (1), the medical treatment decision maker must do the following—

(a) first consider any valid and relevant values directive;

(b) next consider any other relevant preferences that the person has expressed and the circumstances in which those preferences were expressed;

(c) if the medical treatment decision maker is unable to identify any relevant preferences under paragraph (a) or (b), give consideration to the person's values, whether—

(i) expressed other than by way of a values directive; or

(d) also consider the following—

(i) the likely effects and consequences of the medical research procedure, including the likely effectiveness of the procedure, and whether these are consistent with the person's preferences or values;

(ii) whether there are any alternatives, including not administering the medical research procedure, that would be more consistent with the person's preferences or values;

(e) act in good faith and with due diligence.

(3) If the medical treatment decision maker is unable to apply the process required by subsection (2) because it is not possible to ascertain the person's preferences or values, the medical treatment decision maker must—

(a) make a decision under subsection (1) that promotes the personal and social wellbeing of the person, having regard to the need to respect the person's individuality; and

(b) consider the following—

(i) the likely effects and consequences of the medical research procedure, including the likely effectiveness of the procedure, and whether these promote the person's personal and social wellbeing, having regard to the need to protect the person's individuality;

(ii) whether there are any alternatives, including refusing the medical research procedure, that would better promote the person's personal and social wellbeing, having regard to the need to protect the person's individuality.

(4) In the case of either subsection (2) or (3), the medical treatment decision maker must also consult with any person who the medical treatment decision maker reasonably believes the person would want to be consulted in the circumstances.

(5) A failure to comply with subsection (1), (2),
(3) or (4) does not, of itself, result in any civil or criminal liability on the part of the medical treatment decision maker.