Consent

Contributed by Robin Gibson and current at 16 December 2021.

Consent

When you go to a doctor such as a general practitioner or another health professional, that person must obtain your consent before any treatment or procedure, such as an operation, is started. As the Charter says, a patient has a right to be included in discussions about choices available for treatment and in making decisions. The Charter also requires health care practitioners to communicate in a clear and open way about treatment options, available services and costs. Therefore the patient must be given all necessary information before consenting to treatment or refusing to consent.

Requirement for Consent

Before a health practitioner undertakes any procedure on treatment, that health practitioner must obtain the consent of the patient. There is no exemption for health practitioners including doctors. Refusal of consent must be respected even if, in the doctor’s professional opinion, the proposed treatment or procedure would be in the patient’s best interests, or that the refusal of consent is not reasonable. The requirement for consent to be obtained is a recognition of the dignity and autonomy of the patient - another matter required by the Australian Charter of Healthcare Rights. The right to give or refuse consent to medical treatment or experimentation is a human right recognised in Article 7 of the International Covenant on Civil and Political Rights and in Section 10(2) of the Human Rights Act 2004 (ACT). Treating a patient without having valid consent may lead to an action for trespass to the person otherwise known as assault.

What Information must the patient be given

In order for a patient’s consent to be valid, the patient must be given sufficient information so that an informed consent may be given. The information required includes:

• accurate, up-to-date details about the patient's medical condition and prognosis (what the doctor predicts will be the effect of the medical condition);
• the available options for investigation or treatment and their advantages and disadvantages, including what is likely to happen if nothing is done;
• the recommendation of the doctor;
• the availability of more skilled or experienced doctors.

Court cases dealing with what information must be provided for an informed decision to be made has been primarily concerned with the type and amount of information in the circumstances of potential risks. In the landmark case of Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, the High Court determined that each patient must be warned of material risks in the procedure or treatment to be undertaken. The court spelled out the test of what is material as follows:

[A] risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

This means that the patient should be warned of risks that are reasonably likely or are of particular concern to the patient in the circumstances.

The circumstances include:

• the nature of the patient’s condition
• the nature of the proposed treatment
• the seriousness or likelihood of the risk - the more serious the possible risk (eg death, paralysis), even if remote, the greater requirement to warn the patient - also minor risks that occur frequently (eg bruising caused by associated procedures such as inserting a tube into a vein)
• concerns of the patient raised by questions or comments to the doctor
• the surrounding circumstances of the case (eg emergency procedures).

If a risk should have been mentioned and injury has occurred, the patient may take action against the relevant health professional and allege negligence in having failed to adequately inform the patient.

When is it permitted to give less information?

There are some situations where it is permissible for the health practitioner to provide less information. The main situations are:

• an emergency;
• the patient has waived the right to information;
• where ‘therapeutic privilege’ applies;
• where other arrangements have been made by the patient or the patient is subject to orders made by a court or tribunal.

The first situation is in an emergency where treatment may be given without consent provided it is in the best interests of the patient. For example, if the patient is unconscious and the treatment is necessary to save the life or health of the patient, the health practitioner does not have to obtain consent.

Secondly, the patient may waive the right to be given information, but must still be given sufficient information to show that the consent given is reasonable despite the lack of information. The health practitioner must feel certain that the patient has understood what is proposed.

Thirdly, there is a limited exception known as ‘therapeutic privilege’. This exception applies where, in the professional opinion of the doctor, the patient would be harmed by the information (eg the patient may be mentally ill or suicidal). Just because the patient is anxious is not a sufficient reason to deny the patient full information. The doctor is not permitted to withhold information and then claim ‘therapeutic privilege’. The doctor must be prepared to document the evidence that harm to the patient would occur if the information were provided.

It is also possible to treat without the concurrent consent of the patient where the patient has completed an advance directive under the Medical Treatment (Health Directions) Act 2006 (ACT), where a guardian has been appointed by the ACT Civil and Administrative Tribunal (ACAT) under the Guardianship and Management of Property Act 1991 (ACT) or the patient is subject to a community care order or is an involuntary patient under the Mental Health (Treatment and Care) Act 1994 (ACT). The patient may have prepared an enduing power of attorney and appointed one or more other persons to make medical treatment decisions when the patient cannot do so. The Supreme Court also has an overriding power to give or deny consent to a proposed treatment where the patient is otherwise unable to consent and no other arrangements are in place. Advance directives are discussed in this chapter. (See Advance Directives or ‘Living Wills’, this chapter). Enduring powers of attorney are discussed in both Chapter 15 and Chapter 39. (See Enduring Powers of Attorney, DISABILITY - also see Putting Your House in Order - Practical Steps, Wills, Estates and Funerals). Further information about guardianship orders or community care orders can be found in Chapter 15. (See Guardianship and Management of Property, Disability).

Evidence of Consent

Consent may be express or implied and need not be in writing. Consent is express when it is in writing or put into words by the patient. An example of implied consent is where the patient offers a forearm for an injection to be given. Most hospitals will require consent to be in writing to provide evidence of that consent. However, signing a consent form is not conclusive evidence and courts may examine the circumstances under which a consent form has been signed including what information has been given to the patient and whether the consent has been freely given. No health professional or other person like a family member may put any pressure on a patient to either give or refuse consent.

Capacity to consent

In order for a valid consent or refusal of consent to be given, the patient must be an adult and mentally competent. Mental competence may be difficult to determine. However, courts have suggested several tests including the following:

• could the patient understand and retain the necessary information;
• was the patient able to believe it; and
• was the patient able to weigh up the information, balancing the benefits and risks, so as to arrive at a choice.

Children

As mentioned above, a valid consent can only be given by an adult who has mental competence. Therefore, generally speaking, a person under 18 years of age cannot give consent. A parent or guardian may generally consent to or refuse a procedure on behalf of the child but the parent or guardian must have been given similar information as would be required if that parent or guardian was about to undertake the procedure proposed.

However, in some circumstances, older children may consent provided they are sufficiently mature to understand the nature and risks of the treatment proposed. Where a proposed treatment is risky or contentious, the child will have to show greater maturity and understanding (Gillick v West Norfolk Area Health Authority [1985] UKHL 7; [1986] 1 AC 112). The right of a mature minor to refuse consent is not so clear. Some jurisdictions have passed laws which permit older, mature children to both consent or refuse consent, but there is no specific legislation in ACT. Therefore, the common law (the law laid down through court decisions) is the law which applies.

Intellectually impaired patients or those with mental illness

Depending on the degree of impairment, the patient may still be able to consent and efforts should be made to assist the patient to make a self-sufficient decision. Where the patient is over 18 and is unable to give consent because of the impairment, consent may be given by a guardian appointed by the ACT Civil and Administrative Appeals Tribunal (‘ACAT’). However, ACAT itself must give consent where the proposed procedure is an abortion, reproductive sterilisation, hysterectomy, medical procedures which include sterilisation or removal of non-regenerative tissue for transplant to another living person. Any consent given is made under strict conditions. ACAT may not consent to electroconvulsive therapy or psychiatric surgery. (Section 69 and Section 70 of the Guardianship and Management of Property Act 1991 (ACT)). Further information about ACAT and its powers is provided in Chapter 6. (See Challenging Administrative Decisions,Challenging or Complaining about Government Decisions).

Making Medical Treatment Decisions when a patient unable to give consent

There may be occasions where it is not possible to obtain patient consent, but the patient may have anticipated and made arrangements for what the patient would wish if this situation were to happen. The patient may have become mentally incompetent or may be suffering from a disease like Alzheimer’s Disease. The patient may have given directions in advance about what treatment would be permitted or refused in the circumstances which have arisen. As mentioned above (When is it permitted to give less information), the patient may have previously made an enduring power of attorney appointing one or more persons to make the decisions or given advance directions under the Medical Treatment (Health Directions) Act 2006 (ACT). Appointments made under powers of attorney or enduring powers of attorney are discussed Chapter 39. (See Putting Your House in Order - Practical Steps, Wills, Estates and Funerals).

Advance Directives or ‘Living Wills’

Advance Medical Directions are designed to make clear to health professionals, particularly medical practitioners, what medical treatment is permissible when the person is unable to give consent to medical treatment in an emergency, such as unconsciousness, or is otherwise unable to give consent. These directions can make clear what is acceptable in particular circumstances e.g. whether a person who cannot make a decision wishes to be treated with an antibiotic or not. It is also possible for a patient to appoint some other person to make decisions when the patient is unable to do so. Appointments are made under powers of attorney or enduring powers of attorney and are discussed in Enduring Powers of Attorney.

Right to Refuse Treatment

Section 5 of the Medical Treatment (Health Directions) Act 2006 (ACT) gives patients the right to refuse unwanted medical treatment but also the right to receive pain relief to the maximum extent permissible in the circumstances.

Section 7(1) of the Medical Treatment (Health Directions) Act 2006 (ACT) states that an adult person may direct in advance that medical treatment is to be refused, or that medical treatment is to be withdrawn. The direction may detail particular medical treatment to be refused or withdrawn, but need not do so, as the direction can apply to medical treatment generally. However, Section 6(2) of the Medical Treatment (Health Directions) Act 2006 (ACT) states that this legislation does not apply to palliative care.

How Directions are Given

Section 7(2) of the Medical Treatment (Health Directions) Act 2006 (ACT) sets out that an Advance Medical Direction may be given orally, in writing or in any other way. Section 8 of the Medical Treatment (Health Directions) Act 2006 (ACT) lays down the requirements for written health direction. If the direction is made in writing it must be signed by the person or someone else in the person’s presence who is directed by that person to sign the direction. The direction must be witnessed by two other people. The two witnesses must also sign in the presence of the person making the direction and each other.

Section 9 of the Medical Treatment (Health Directions) Act 2006 (ACT) states that where the Advance Medical Direction is not in writing, it must be made by the person in front of two witnesses, both being health professionals, one of whom must be a doctor.

Section 10 of the Medical Treatment (Health Directions) Act 2006 (ACT) confirms that a person may decide to withdraw a health direction at any time by telling a health professional or someone else, both orally or in writing.

Mental Capacity

The person giving the health direction must have the mental capacity to make decisions (Section 11(1)(b) of the Medical Treatment (Health Directions) Act 2006 (ACT)) (see also Capacity to Consent, this chapter) and must also understand the information provided (Section 11(3)(a) of the Medical Treatment (Health Directions) Act 2006 (ACT)). The options provided by the health professional must be weighed and the medical treatment direction must be confirmed by the person giving the health direction. (Section 11(3) of the Medical Treatment (Health Directions) Act 2006 (ACT)). Section 13 of the Medical Treatment (Health Directions) Act 2006 (ACT) obliges a health professional or other person becoming aware of the making or revocation of a health direction, to tell the person in charge of the health care facility about the making or revocation of the health direction and the circumstances in which that making or revocation occurred.

Where a power of attorney or enduring power of attorney is also in existence, the Medical Treatment (Health Directions) Act 2006 (ACT) directs which document takes precedence and when. (Section 19 of the Medical Treatment (Health Directions) Act 2006 (ACT)). The Medical Treatment (Health Directions) Act 2006 (ACT) also provides for situations where a guardianship order has been made.

Obligations of Health Professional

Before complying with any health direction, Section 11(2) of the Medical Treatment (Health Directions) Act 2006 (ACT) states that a health professional must take reasonable steps to inform the person giving the direction of:

• the nature of the illness
• alternative treatment that may be available
• the consequences of those alternative treatments and
• the consequences of remaining without treatment.

A health professional must not withhold or withdraw medical treatment in accordance with a health direction unless the health professional believes, on reasonable grounds, that the direction complies with the Act and it has not been withdrawn by the person making it. (Section 12 of the Medical Treatment (Health Directions) Act 2006 (ACT)). However, the health professional is protected from civil or criminal liability if, believing that the direction is valid, the health professional withholds or withdraws medical treatment. (Section 16 of the Medical Treatment (Health Directions) Act 2006 (ACT)).