Concise advice: consent for treatment

 
Last updated 26 November 2020

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1. What needs to be discussed with a patient as part of their consent?

Likely nature of their condition

Purpose of proposed care and what they can expect

Who will be involved

Time involved

Possible costs

Risks and benefits

Degree of uncertainty

Details of other options

Consequence/s of doing nothing

Any:

• significant outcome that may result including physical, emotional, mental, social or sexual effects
• rare adverse outcome that has severe impact
• common adverse outcome even if it has minor impact
• material risk, which is one of the following
  • a risk that most people in the patient’s position would consider significant and want to be warned about
  • a risk that the treating medical practitioner is or should be aware that the patient would likely consider significant

Questions/topics that ensure their understanding of the above

 

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2. Who provides consent for treatment of a child?

• Depending on circumstances, consent may be provided by:
  • child’s parent or person responsible
  • child
  • court.
• Consent isn’t required in certain emergency situations where the child can’t consent and the child’s parent/guardian isn’t available.

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3. When can a young person consent to treatment?

• A person less than 18 years of age may consent to their own medical treatment in some circumstances:
  • If the treatment is in the best interests of the young person and they have enough understanding and intelligence to enable them to fully comprehend the nature, consequences, and risk of the treatment.
  • The maturity level required to provide consent varies with the nature and complexity of the medical treatment.
• It’s preferable to obtain consent from both the young person and the parent for medical treatment but in some circumstances, the best interests of the young person may be served without the parent’s consent.

 

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4. What do I do if a patient refuses treatment / withdraws consent?

Consider their capacity to make the decision.

If they have capacity:

• ensure they understand the risks and possible consequences
• document the decision and circumstances in their medical record
• help them obtain a second opinion if they want one.

 

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5. What are red flags that an adult may lack capacity to consent?

Assume every adult has the capacity to consent to their health care except when it can be shown otherwise by a clinical assessment.

• The person doesn’t seem to understand or retain information
  • Doesn’t ask relevant questions
  • Requests someone else to make the decision for them
• Can’t clearly communicate their decision
• Decisions:
  • that place a person at risk of harm
  • out of character for the person
• A mental/physical condition exists that impairs decision/making, e.g. delirium, intellectual impairment, acute psychosis, drug intoxication, known cognitive decline

 

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6. What do I do when a patient can't consent?

Consent isn't required in an emergency, i.e. to save someone's life or prevent serious harm.

 

In non-emergency situations, explore whether there’s a person responsible or next of kin. You’ll need to know the law for the jurisdiction you’re working in. Click on the relevant state or territory for relevant information.

ACT
Hierarchy of persons responsible for healthcare decisions for an adult who does not have capacity to consent:
If there’s no Attorney appointed by the person or guardian, priority is given to the person’s domestic partner, followed by unpaid carer, and then close relative or friend

Law: Guardianship and Management of Property Act 1991, Part 2A

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NSW
Hierarchy of persons responsible for healthcare decisions for an adult who does not have capacity to consent:
A legally appointed guardian is the first point of contact for consent, followed by a spouse, carer and then close friend or relative

Laws: 

• Guardianship Act 1987
• Guardianship Regulation 2016 Part 3

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NT
Hierarchy of persons responsible for healthcare decisions for an adult who does not have capacity to consent:
The Northern Territory is the only jurisdiction without legislation appointing spouses, relatives and carers the ability to consent to medical treatment on behalf of a person

Laws: 

• Guardianship of Adults Act 2016
• Emergency Medical Operations Act 1973

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QLD
Hierarchy of persons responsible for healthcare decisions for an adult who does not have capacity to consent:
The person’s spouse followed by adult carer and adult close friend or relative are to provide consent relating to health care

Law: Guardianship and Administration Act 2000, Chapter 5

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SA
Hierarchy of persons responsible for healthcare decisions for an adult who does not have capacity to consent:
An appointed guardian, relative, close friend, or someone charged with the day to day care and wellbeing of the person may consent to treatment on behalf of the individual

Laws:

• Guardianship and Administration Act 1993, Part 5
• Consent to Medical Treatment and Palliative Care Act 1995

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TAS
Hierarchy of persons responsible for healthcare decisions for an adult who does not have capacity to consent:
The patient’s guardian followed by spouse, then carer, followed by close friend or relative is responsible for providing consent

Laws:

• Guardianship and Administration Act 1995, Part 6
• Guardianship and Administration Regulations 2017

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7. Who's responsible for the consent process?

The doctor responsible for the treatment is responsible for obtaining informed consent for it but the task can be delegated. The person delegated the task has a responsibility to refuse if they lack sufficient knowledge or experience.

Examples

• Ear syringing in general practice – when a practice nurse performs the syringing, the GP is still accountable for ensuring the consent process is done competently and validly and is documented.
• When a treating senior doctor in a hospital delegates obtaining consent to a junior doctor team member, the senior doctor is held accountable for the consent process ensuring that the:

 

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