Literature Review on Provision of Appropriate and Accessible ...

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2008 provides for a scheme to provide legal representation where
required.)
• In the <strong>Literature</strong> context <strong>Review</strong> of informal on Provision decision-making of Appropriate and and the Accessible provision
Support to People with an Intellectual Disability who are
of protection from liability for those providing healthcare and
Experiencing Crisis Pregnancy
treatment, Donnelly (2008) proposes that there should be a
requirement to obtain the consent of the ‘person responsible’
for the person lacking capacity. The inclusion of such a special
provision requiring consent to medical treatment, even in relation
to ‘routine’ procedures, provides a better degree of protection
for people lacking capacity. She argues that while most medical
professionals undoubtedly include the family members or
carers of a person lacking capacity in treatment decisions,
the legislation should include a specific provision requiring
them to do so. Part 5 of the New South Wales Guardianship Act
1987 contains a requirement in relation to medical and dental
treatment, whereby the consent of the ’person responsible’ for
the person lacking capacity is required. [37]
• A requirement that the person lacking capacity should be
consulted regarding the choice of personal guardian should be
included in the legislation.
2.7 Legal capacity in other jurisdictions
Different jurisdictions have their own legal process for substitute
decision-making in situations where a person with an intellectual
disability lacks the capacity to consent.
2.7.1 Legal capacity in England and Wales
An adult client with capacity (over 18) has the right to refuse any
medical treatment, whatever the consequences, unless it is compulsory
treatment for a mental disorder (for someone sectioned under the
Mental Health Act). The Mental Capacity Act, 2005, provides a statutory
framework for substitute decision-making for those who lack capacity.
It states that a person lacks mental capacity if at the material time he
37 Part 4 of the Guardianship and Administration Act 1986 (Victoria) and part 5 of the
Adults with Incapacity (Scotland) Act, 2000.