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Statutory Function

The function of the Board is to determine whether psychosurgery should be performed on any person in the State of Victoria. It is an offence to perform psychosurgery without the consent of the Board. Medical practitioners who perform psychosurgery without the consent of the Board are also presumed to be guilty of professional misconduct unless they satisfy the Medical Practitioners Board of Victoria that there were valid reasons for not having obtained that consent.

Applications  

A psychiatrist who seeks to arrange for a neurosurgeon to perform psychosurgery on a person must apply to the Board for consent to the performance of the proposed psychosurgery using the Board’s application form. Click here for WORD format (41kb) or a PDF format (27kb).

An application must contain the following information:

(a)

the exact nature of the psychosurgery proposed to be performed and the name and qualifications of the person whom it is proposed will perform the psychosurgery; and

(b)

the clinical indications for the psychosurgery; and

(c)

the service, hospital or clinic in which it is proposed that the psychosurgery be performed; and

(d)

whether in the applicant's opinion the person on whom the psychosurgery is proposed to be performed is capable of giving informed consent to the performance on him or her of that psychosurgery; and

(e)

whether the applicant is of the opinion that the person on whom the psychosurgery is proposed to be performed has given informed consent to the performance on him or her of that psychosurgery, or that there is doubt as to whether informed consent has been given.

The Board has prepared Guidelines (here) to assist those persons who wish to apply for consent to the performance of psychosurgery.

Subject to the Board being satisfied that the application complies with the guidelines, within ten days of receiving an application to perform psychosurgery, the Chairperson of the Board must arrange a meeting of the Board to hear the application. This meeting must take place within a further 21 days. At least 10 days notice of the hearing must be given to the applicant, the patient, any advocate nominated by the patient and the primary carer of the patient. The patient is entitled to be represented by a lawyer or any other person nominated by the patient.

Powers

The Board’s powers are outlined in s64 of the Act, which states that if, after hearing the application and making any inquiries and examinations it considers appropriate, the Board:

1.

is satisfied as to the matters specified in s65, the Board must give its consent in accordance with s66; or

2.

is not satisfied as to the matters specified in s65, must refuse to give its consent.

Matters to which the Board must be satisfied

Section 65 on hearing an application, the Board is to be satisfied on the following:

(a)

the person in respect of whom the application is made has the capacity to give informed consent (as defined in s53B of the Act) to the performance of the proposed psychosurgery;

(b)

the person in respect of whom the application is made has in fact given informed consent to the performance of the proposed psychosurgery;

(c)

the proposed psychosurgery has clinical merit and is appropriate;

(d)

any person proposing to perform the psychosurgery is properly qualified;

(e)

the service, hospital or clinic in which it is proposed to perform the psychosurgery is an appropriate place;

(f)

all other reasonable treatments have already been adequately and skilfully administered without sufficient and lasting benefit;

(g)

notice of the hearing has been given in accordance with s59(2) of the Act.

 

 

 

 

 

 

 

For the purposes of Part 5 of the Act, s53B provides:

… [A] person is to be taken to have given informed consent to the performance on him or her of treatment only if the person gives written consent to that treatment after:

(a)

the person has been given a clear explanation containing sufficient information to enable him or her to make a balanced judgement; and

(b)

the person has been given an adequate description of benefits, discomforts and risks without exaggeration or concealment; and

(c)

the person has been advised of any beneficial alternative treatments; and

(d)

any relevant questions asked by the person have been answered and the answers have been understood by the person; and

(e)

a full disclosure has been made of any financial relationship between the person seeking informed consent or the registered medical practitioner who proposes to perform the treatment, or both, and the service, hospital or clinic in which it is proposed to perform the treatment.

  
Further, s53B(2) and s53B(3) must be complied with. These sub-sections require that the person be given an appropriate prescribed printed statement advising of the legal rights and other entitlements of the person, together with an oral explanation of the information contained in the statement in the language, mode of communication or terms which the person is most likely to understand.

Consent

Consent of a person to perform psychosurgery form. Click here for Word version (31kb) or for pdf version (18kb).

The Board must consent to the performance of the proposed psychosurgery if it is satisfied about the matters set out in s65 of the Act.

If the Board is not satisfied that all the matters set out in s65 have been met, it must refuse to give its consent. As noted above, psychosurgery cannot be performed on any person who does not give informed consent.

Orders

If the Board consents to the proposed psychosurgery, s66 requires that it must specify the following:

(a) the name of the registered medical practitioner(s) authorised to perform the
psychosurgery;

(b)   the nature of the psychosurgery to be performed;

(c)   the service, hospital or clinic in which the psychosurgery is to be performed;

(d)   the period of time within which the psychosurgery is to be performed.

Notice of the consent must be given to the applicant, the patient and the patient's representative. Similar provisions apply to providing notice of refusal of consent (s67).

Procedure

Section 60 of the Act provides that the Board:

.

must act according to equity and good conscience without regard to technicalities or legal forms

.

is bound by the rules of natural justice

.

is not required to conduct any proceedings in a formal manner

.

is not bound by the rules of evidence but may inform itself in such manner as it thinks fit

.

has the power to take evidence on oath

.

has the power to summon persons to attend a hearing and/or produce documents.

Generally, the Board is given a broad discretion to determine its procedures (Schedule 3, Clause 6(6)).

The rules of natural justice are complex. There are two principal rules pertinent to the Board's functions, namely that Board members should be impartial in their decision-making and, in the absence of a good reason to the contrary, the patient is entitled to hear and question all oral evidence given to the Board and to examine and challenge all written material placed before the Board.

The Board is to sit at such times as the Chairperson determines, constituted by a quorum of four members. Strict secrecy provisions apply to proceedings of the Board, which are generally closed to the public unless the Board orders otherwise. Unless the Board orders to the contrary, reports of its proceedings must not be published or broadcast. Reports of its proceedings permitted to be published or broadcast must not contain any particulars which may lead to the identification of any person concerned in the proceedings. It is an offence for a member of the Board or any person present at proceedings of the Board to record or to communicate to any person any information acquired as a result of Board membership or presence at a hearing, except to the extent necessary to perform official duties and exercise functions under the Act.

Reporting and Reviewing

Pursuant to s70 of the Act, the neurosurgeon who performs psychosurgery on a person must make a written report to the Board as to the performance of the operation within three months after the completion of surgery. Likewise, the psychiatrist who has arranged for the neurosurgeon to perform the psychosurgery on a person must make a written report within three months (s70(1A)(a))and again within 12 months after the completion of the psychosurgery (s70(1A)(b)).

In accordance with s71(1) of the Act, the Board is required to ensure that at regular intervals there is a review of the case of any person on whom psychosurgery has been preformed. For this purpose, the Board may observe the person or make arrangements for the gathering and recording of information that it considers appropriate. However, the Board cannot review the case of a person who has objected to being reviewed.

 

 

 
 

 

 

 

 

 

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