Articles and Case Studies

Concise advice: consent for treatment

02 Dec 2020

 
Last updated 26 November 2020

Click on any question below to jump directly to the answer


 

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.

 

e-Learning
Informed consent challenges

Back to top

 


 

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
  •  

    e-Learning
    Informed consent challenges

    Blog
    Taking the stress out of informed consent

    Articles
    A matter of informed consent
    Working together to make good healthcare choices

    Back to top

     


    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.

    e-Learning
    Informed consent challenges

    Article
    Consent to medical treatment for the mature minor

    Back to top

     


     

    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.

     

    e-Learning
    Informed consent challenges

    Article
    Consent to medical treatment for the mature minor

    Back to top

     


     

    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.

     

    e-Learning
    Informed consent challenges

    Articles
    Dealing with declined treatment
    Assessment of capacity

    Back to top

     


     

    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

     

    e-Learning
    Informed consent challenges

    Article
    Assessment of capacity

    Back to top

     


    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


    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: 


    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: 


    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


    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:


    Tasmania

    The patient’s guardian followed by spouse, then carer, followed by close friend or relative is responsible for providing consent.

    Laws:


    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:


    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:


    Back to top

     


    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.



     

    Library

    Career complications and contending with uncertainty

    Among the many challenges of the COVID-19 pandemic for junior doctors is how to respond to medical training impacts and career uncertainty. In this podcast, Dr Caroline Elton (a psychologist who specialises in helping doctors)and Dr Benjamin Veness (a Psychiatry registrar) share advice for coping with medical training and career delays, disruptions and unknowns.

    Podcasts

    10 Aug 2020