Consenting to Medical Procedures (NSW)
Under New South Wales law, adults who have capacity have the right to make informed decisions about what medical procedures and treatments they undergo. This article outlines the law surrounding consenting to medical procedures in NSW.
Consenting to medical procedures: what decisions can I make?
Adults in New South Wales can make decisions to:
- Undergo recommended medical procedures;
- Partially undergo recommended medical procedures; and
- Refuse or withdraw consent to treatment, even where this may cause their health to suffer or even lead to death.
Medical practitioners cannot undertake medical procedures without first obtaining valid consent from either the patient or someone who can legally provide informed consent on their behalf. This is apart from some limited situations for which the law provides. These limited situations include emergencies where the patient does not have the capacity, and their express wishes are unknown.
What is valid consent?
Several elements are necessary for obtaining valid consent. These elements are:
- That the person providing consent to the medical procedure has the capacity to do so;
- That the consent is freely given, i.e. the patient must not be pressured or coerced into giving consent;
- That the consent that is given is sufficiently specific to the medical procedure that is to be performed; and
- That the person giving consent is sufficiently informed about the details of and risks associated with the medical procedure.
A person who can do the following can consent to a medical procedure:
- Understand the facts and choices involved in deciding on the medical procedure;
- Weigh up the consequences; and
- Communicate their decision.
There is a presumption that adults have the capacity to make decisions about medical procedures unless there are indications that they do not. However, children under the age of fourteen, persons with illnesses such as dementia, mental illnesses or brain injuries, persons under the influence of alcohol or drugs or intellectual disabilities probably will not have the capacity to consent.
According to section 33(2) of the Guardianship Act 1987, a person lacks the capacity to consent when:
- They are incapable of understanding the effect of the proposed medical procedure and its general nature; or
- They are incapable of indicating whether or not they want to proceed with the treatment.
Whether a minor has the capacity to consent will depend on the individual and the severity of the medical procedure proposed to be performed. Generally, a parent or guardian will need to provide consent to medical procedures for children under fourteen. However, where a minor has sufficient maturity and understanding of the medical procedure, including possible consequences, the minor may have the capacity to consent.
What must be disclosed about a medical procedure to ensure consent is informed?
For the consent to be valid, the patient or person providing consent must be sufficiently informed about:
- The nature of the medical condition that is proposed to be treated;
- Details of what will be done during the medical procedure and the likely outcomes;
- Any significant risks of the proposed medical procedure, alternative treatments and evidence about what medical procedures or treatments are likely to provide the best outcomes.
How can consent be given?
The general rule is that consent does not have to be in writing. Consent can be given orally, in writing or implied by a person’s behaviour. For example, a patient may raise their arm, anticipating that a vaccine will be administered to them. However, written consent should be obtained where the medical procedure is significant or the person consenting to the treatment is not the patient, but someone consenting on their behalf.
Who can provide consent on behalf of another person?
In situations where a patient cannot provide consent, some laws set out who can legally consent. The Guardianship Act 1987 is the legislation that concerns this situation. There is a hierarchy of persons who may provide consent for a person who does not have the capacity and is over the age of sixteen. This hierarchy is the following:
- A guardian who has been appointed;
- A spouse or de facto partner;
- An unpaid carer who organises domestic services and cares for the person regularly or did so before they entered a care facility;
- A close friend or relative
Medical practitioners should first attempt to contact and consult with the first person in this hierarchy. If this/these persons cannot be contacted, do not have capacity themselves, or do not wish to make decisions on behalf of the patient, the next person on the hierarchy can be consulted.
In most situations, where a minor cannot give valid consent, their parents or legal guardians can provide consent on their behalf.
What if I went through a medical procedure without valid consent?
If you have been subjected to a medical procedure to which you did not consent, you may be able to lodge a claim against the medical practitioner who performed the treatment. The cause of action would be one of trespass or battery. However, suppose the medical procedure was performed during an emergency or another law allowed the medical procedure to be performed without consent. In that case, it is unlikely that such an action would succeed.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.