Health Law

Preparing to Consult a Health Professional

Before seeing a doctor or health professional you should do a web search for information about the procedure that is proposed. If you are unsure about the quality of a surgeon, for example, you can make a note to ask about their experience with the procedure, his or her own complication rates, including post-operative wound infections, and any certificates of additional training he or she has obtained. Technical competence of a proposed doctor is difficult for a patient to get reliable information about, but in public hospitals the registrars (senior trainees) work closely with many specialist surgeons and are in a good position to compare their work, provided the registrar is already treating you. Doctors have an ethical and possibly a legal obligation to permit you to obtain a second opinion. If you have a complicated medical history you should have your regular doctor prepare a summary. If you are undertaking a risky procedure, you should consider preparing an advance directive.

What Information Must a Patient be Given and Understand?

To avoid legal action for assault or battery (trespass to the person), doctors and other health professionals must obtain a patient's free consent as to the "nature" of what is proposed before they undertake any medical procedure or treatment (Chatterton v Gerson (1980)). This applies even where the proposed treatment would clearly benefit the person and a failure to treat them may result in harm that could have been avoided. The principle applies not only to treatment but also to diagnostic and investigative procedures. Convenience to either the patient or surgeon (for example not having to start the operation again another day after an unusual finding) is not an exception to this rule (Murray v McMurchy (1949)). Free consent to medical treatment and experimentation is also a human rights obligation (see Article 7 International Covenant on Civil and Political Rights and the ACT Human Rights Act (2004) s 10(2)).

Prior consent is based on the understanding that a competent adult patients inherent dignity gives them the right to make their own ("autonomous") medical decisions, even if it is apparently not in their "best interests". The law has also increasingly emphasized that adequate information must be given when making an informed decision with respect to a medical procedure. This adequate information includes accurate, up-to-date details about a patient's medical condition and prognosis; the available options for investigation or treatment and their advantages and disadvantages, including what is likely to happen if nothing is done; and the availability of more skilled or experienced doctors.

Case law dealing with the level of information necessary for an informed decision, has predominately concerned itself with the type and amount of information that needs to be given in relation to the potential risks of a procedure. The High Court in Rogers v Whitaker (1992) said that a doctor must inform a patient of the "material" risks, and that the risk is material if:

In the circumstances of the particular case, a reasonable [that is, an "ordinary"] 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 reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

Essentially, this means that a patient should be warned of risks that are:

• objectively reasonably likely; or
• of particular (subjective) concern to that person that has been communicated beforehand to the doctor.

Printed materials are the best way to give the objective risk information, further allowing adequate time for the patient to reflect upon it and discuss it with relatives and friends. A 'cosmetic' procedure requires more information than surgery that is required for the preservation of life or health and would have most likely proceeded regardless of the answer given. Serious risks, like death, stroke or paralysis should be mentioned even if they are remote. Relatively minor injuries like bruising after a doctor places a plastic cannula into a vein or damage to the front teeth on intubation by an anaesthetist may be material if they are more frequent. Unusually inquisitive patients however, may need to be given more information about the associated risks (Chappel v Hart (1998); Rosenberg v Percival (2001)).

Patients should ask for the risk information to be given to them in writing and to then be able to go home and consider it. When asked to sign a "consent form", the patient should ensure they have not been given a "pre-med" (sedative or sleeping-pill) or are in some other way not thinking clearly. If they have particular concerns they should be sure that the doctor or themselves note them on the form, as well as the doctor's answers. If language is a difficulty they should ask for an interpreter.

The doctor should mention whether he or she has any conflict of interest (for example, holding shares or a managerial position in a company marketing a product or device that will be used in the procedure). If the doctor wants to include you in a research project, that consent discussion should take place at a different time.

When May Less Information Be Given?

There are several situations in which less information may be justifiable.

The first is in an emergency. It is lawful for a doctor to treat a patient without any information or consent, if they believe that treatment is necessary to protect or sustain the patient's life or health. If, for instance, a patient is unconscious, a health professional may perform whatever procedures are reasonably necessary in the circumstances to preserve the patients life or health. It is not necessary to obtain the consent of the patient's next of kin, although that is generally done as a courtesy.

The second case in which less information may be required is when the patient waives the right to be given information. Ethically, a doctor should confirm that the reasons behind such a refusal do not involve a misunderstanding.

The third situation is a doctor's limited discretion (therapeutic privilege) not to disclose information where he or she has reasonable grounds to believe and is prepared to document that disclosure of the information may itself harm the patient (for example, if the patient is suicidal or mentally ill). Mere anxiety in the patient is not a sufficient reason under this ground for a doctor to withhold information.

Other situations where it may be possible for a doctor to treat a patient without consent is when a patient is unconscious, where the patient has previously completed a written, signed and witnessed (or non-written, witnessed) health direction under the Medical Treatment (Health Directions) Act 2006 (ACT), where a guardian has been appointed or the ACT Civil and Administrative Tribunal (ACAT) is involved under the Guardianship and Management of Property Act 1991 (ACT), or where a patient requires treatment as an involuntary patient or during a community care order under the Mental Health (Treatment and Care) Act 1994 (ACT).

Capacity to Consent

The principles that people may not be given medical treatment without their consent, and that they are entitled to adequate information to make an informed choice, apply to competent adults (that is, to people over 18 and who are able to understand their condition and the options for treatment). Different considerations apply for children and adults who have an intellectual disability or suffer from severe mental illness.

Children

If the person is a child (under 18), either parent or a guardian may generally consent to a medical procedure. The parent or guardian is also entitled to the same information as an adult patient. However, an older child may also be able to consent if they are sufficiently mature so as to understand the nature and risks of a procedure. This will depend on the child's age, level of maturity, as well as the particular procedure. Even relatively young children can consent to simple procedures for their own good, such as a vaccination. On the other hand, greater maturity and understanding will be required for procedures that are risky or contentious, such as contraception (Gillick's Case (1986) AC 112). A child between 14 and 16 years of age may visit a doctor without their parents or guardian knowing, but this must be made clear to the doctor. In the cases of abortion, reproductive sterilisation, or medical procedures concerned with contraception, and of a mentally handicapped minor, the parent or appointed guardian alone cannot consent, the ACAT must be involved and possibly a court (Guardianship and Management of Property Act 1991 (ACT) s 7(B) and Marion's Case (1992) 175 CLR 218).

Intellectually disabled adults

People who have an intellectual disability or mental illness may not be able to consent to medical treatment. Again, this will depend on the patient's level of understanding (which may fluctuate) and the nature of the procedure. If the impairment is slow to develop, persons may make an enduring power of attorney allowing a nominated person to give consent to lawful medical treatment on their behalf, donating a body part, blood or tissue and to the withholding or withdrawal of medical treatment (Powers of Attorney Act 2006 (ACT)).

If a person has impaired decision-making capacity due to a permanent or long-term disability, and is over 18, consent may be given by a person appointed as a guardian by the ACT Civil and Administrative Tribunal. However, the Tribunal itself is required to consent to the following "prescribed medical procedures" in persons with impaired decision making ability: abortion, reproductive sterilisation, hysterectomy, medical procedures concerned with sterilisation, removal of non-regenerative tissue (a transplantation to the body of another living person), treatment for psychiatric illness, and convulsive therapy (ss 69-70 Guardianship and Management of Property Act 1991 (ACT)).

In exercising the guardian's powers under an enduring power of attorney, a guardian must act, so far as possible, in the manner that the incapacitated person would have acted if they were not incapacitated.