Concise advice: consent for treatment

 
Last updated 26 November 2020

Click on any question below to jump directly to the answer

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1. 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:
• patient has been properly informed, including that the consenting doctor knows the material risks
• doctor doing the consenting feels they have the appropriate skill and experience to take the patient through the consent process.

 

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2. 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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3. 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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4. 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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5. 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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6. 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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7. 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.

See below for state and territory overviews of the hierarchy of persons responsible for healthcare decisions for an adult who doesn’t have capacity to consent, and links to the relevant legislation.

Australian Capital Territory

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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New South Wales

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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Northern Territory

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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Queensland

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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South Australia

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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Tasmania

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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Victoria

Consent must be sought from the first person willing and able to make a decision from a list in order of precedence starting with a medical treatment decision maker appointed by the patient; then a person appointed by the Civil and Administrative Tribunal; followed by the patient’s spouse or domestic partner, primary carer, adult child, parent, and finally the patient’s adult sibling.

Law:

• Medical Treatment Planning and Decisions Act 2016

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Western Australia

The person who may consent on behalf of the patient is prioritised in order of the guardian, spouse, adult child, parent, sibling, primary unpaid caregiver, and finally any other person who maintains a close relationship with the person.

Law:

• Guardianship and Administration Act 1990

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Need more specific advice?

Call 1800 011 255 – available 24 hours a day in an emergency

Email peaceofmind@mdanational.com.au

Don’t hesitate to ask us your question, we’re here to support Members

The information on this page is a guide only. Members are encouraged to contact us directly for specific advice. If you are not an MDA National Member, contact your medical indemnity insurer for advice specific to your situation.