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Consent

A person who is 16 years of age or older and who is of sound mind has a right to make decisions which affect his or her life and welfare, and to decide what risks he or she is willing to take in receiving medical treatment.

Before a person can properly exercise this right and decide to either consent to or refuse particular medical treatment, he or she needs to have a reasonable understanding of what that treatment involves. As that information can only come from the treating health professional, it is part of their duty to provide a proper explanation of the medical treatment and the risks involved.

Section 15 of the Consent to Medical Treatment and Palliative Care Act 1995 (SA) states that doctors have a duty to explain to patients, so far as may be practicable and reasonable in the circumstances:

  • the nature, consequences and risks of proposed medical treatment
  • the likely consequences of not undertaking the treatment
  • any alternative treatment or courses of action that might reasonably be considered in the circumstances of the case.

The High Court of Australia in Rogers v Whittaker (1992) 175 CLR 479; [1992] HCA 58 has said that a health professional has a duty to warn a patient of a material risk inherent in proposed treatment. A risk is material if in 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
  • 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 the risk.

The High Court also agreed with the reasons expressed in an earlier South Australian case F v R (1983) 33 SASR 189, that the amount of information to be provided to the patient depends on the circumstances.

Some circumstances affecting the amount of information to be provided include:

  • the nature of the medical treatment
  • what will happen if the treatment fails or goes wrong
  • how likely it is that a failure or particular risk may occur
  • the seriousness of the effect on the patient's health or life if a particular risk occurs
  • whether the patient appears to want a full explanation of what is involved, or on the other hand, prefers to leave the decisions to the doctors rather than discuss unpleasant or worrying details
  • the nature and availability of alternative treatment
  • the general health of the patient
  • the personality or temperament of the patient
  • whether the treatment is needed because of an emergency (such as a car accident).

The law recognises that a health professional is justified in withholding information if there are reasonable grounds for believing that the physical or mental health of the patient might be seriously harmed by knowing particular information, or that the patient's temperament or emotional state is such that the patient would be unable to make a rational decision based on that information. It is also recognised that some people simply wish to leave decisions about their medical treatment in the hands of their health professional and that it would be an unnecessary and additional burden on such patients to force health professionals to discuss all details of treatment with them.

Insufficient or wrong information does not amount to negligence unless it can be shown, among other things, that sufficient or correct information would have resulted in a different decision about undergoing the treatment.

Children under 16 years

Under the Consent to Medical Treatment and Palliative Care Act 1995 (SA) [s 12(a)] a parent or guardian of a child under 16 years of age may consent to medical treatment for the child.

However, if the consent of a parent or guardian is not available or is withheld, under s 12(b) the doctor can still proceed if:

  • the child consents, and
  • the doctor is of the opinion that the child is capable of understanding, and
  • treatment is in the child's best interests, and
  • a written opinion of another doctor who has personally examined the child supports the treatment.

The Supreme Court has parens patriae jurisdiction in non-emergency cases where:

  • the parents and the child do not agree about medical treatment, or
  • a doctor is concerned about the treatment decision made by the parents when the child is not capable of understanding
  • a doctor is concerned about the decision made by the parents and the child
  • a doctor is concerned about the decision of the child

This is is an inherent jurisdiction of the Court to protect the person and property of those in the state of South Australia who are unable to look after themselves. The Court may override the medical treatment decisions of both the parents and the child. This power has been used to authorise blood transfusions to a child against the wishes of the child's parents and of the child themselves [see Children, Youth & Women’s Health Services Inc v YJL, MHL and TL (by his next friend) (2010) 107 SASR 343; [2010] SASC 175; Women's and Children's Health Network Inc v JC, JC, and KC (by her litigation guardian) [2012] SASC 104]. Any decision the Court makes must put the interests of the child first.

The Family Court can also withhold or grant consent to medical treatment for a child; family law proceedings concerning the child would have to be commenced, see CHILDREN AND YOUNG PEOPLE. Any determination of the Family Court will override the Consent to Medical Treatment and Palliative Care Act 1995 (SA). The Family Court's powers are very important in cases where the parents and the child do not agree about medical treatment or a doctor is concerned about the decision made by the parents and/or the child concerning treatment, as, for example, in Marion's case (1992) 175 CLR 218; [1992] HCA 15. See, however theRe Kelvin case [Re: Kelvin (2017) FamCAFC 258] which allows a child to undertake stage two medical procedures and treatment in relation gender dysphoria without approval of the Family Court, if the parents of the child and relevant medical practitioners agree with the treatment proposed.

It is important to understand that the common law test for effective consent to medical or dental treatment involves a two step process:

  • did the patient have the capacity to consent, that is, was the patient mature enough to understand the general nature of the proposed treatment, the risks involved and the possible effects the treatment may have on his or her life and relationships with other people?
  • if the patient did have legal capacity, did, in all the circumstances, he or she validly consent? This depends on whether the patient has received enough information to have a reasonable understanding of what the proposed treatment involved, what risks (other than very rare or insignificant risks) could occur if the treatment failed, and whether there have been any threats or undue pressure.

The Consent to Medical Treatment and Palliative Care Act 1995 (SA) only gives a child, or his or her parents or guardian, the legal capacity to consent to treatment. Except in emergencies when consent is not required, whether the second step has occurred is a question of fact for a court to decide.

Blood and tissue donations

A child cannot give blood without parental consent, but only for treatment purposes under the following circumstances:

  • where a medical practitioner advises that the taking of blood will not be harmful to the health of the child; and
  • the child agrees to the taking of blood.

See Transplantation and Anatomy Act 1963 (SA) s 19.

In limited circumstances, a child can donate body tissue (e.g. bone marrow). Consent of the child and their parents is required and this consent must be approved by a Committee made up of a lawyer, a doctor and a social worker or psychologist. Approval from each member of the Committee is required (Transplantation and Anatomy Act 1963 (SA) s 13).

Consent can be withdrawn at any time - whether by the parent or child (Transplantation and Anatomy Act 1963 (SA) s 14).

When someone 16 or over can't consent

People aged 16 years and over can consent to their own medical treatment [Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 6].

An exception to this is when a person's decision-making capacity is impaired. A person will be taken to have impaired decision-making capacity in respect of a particular decision if they are not capable of understanding, retaining or using information relevant to the decision or communicating their decision (including by reason of being comatose or otherwise unconscious) [s 4(2)].

A person will not be taken to be incapable of:

  • understanding information merely because they are not able to understand matters or a technical or trivial nature
  • retaining information merely because they can only retain it for a limited amount of time
  • making a decision merely because the decision they make does or may result in an adverse outcome, and

a person may fluctuate between having impaired decision-making capacity and full decision making capacity [s 4(3)].

The other exception is in emergency situations, to which separate rules apply, see Emergency medical or dental treatment.

Who may consent and in what order?

Where a person has impaired decision making capacity and is unable to consent to treatment, health practitioners may be guided by an advance care directive made and/or substitute decision maker appointed under the Advance Directives Act 2013 (SA), see Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 14A and Advance Care Directives.

If the person has not made an advance care directive and/or appointed a substitute decision maker, a "person responsible" for the person can give consent [s14B]. A "person responsible" for the person includes a "guardian" (see below), a "prescribed relative" (see below), an "adult friend" (see below) or an "adult who is charged with overseeing the ongoing day-to-day supervision, care and well-being" of the person (see below)

If you are not actually a person responsible for the person according to the definitions set out below, then it is an offence to represent to a medical practitioner that you are or give consent [s 14D]. The maximum penalty is 2 years imprisonment.

If a guardian has been appointed by the Guardianship Board (prior to 30 March 2015) or SACAT (on or after 30 March 2015), the guardian is the person responsible for the patient and can consent. See GUARDIANSHIP AND ADMINISTRATION.

If no guardian has been appointed, then a prescribed relative of the patient who has a close and continuing relationship with the patient can consent.

A prescribed relative is defined as any of the following:

  • a person who is legally married to the patient (or married according to Aboriginal or Torres Strait Islander tradition) or a domestic partner of the patient (within the Family Relationships Act 1975 (SA))
  • an adult related to the patient by blood or marriage
  • an adult related to the patient by reason of adoption
  • an adult of Aboriginal and Torres Strait Islander descent who is related to the patient according to kinship rules

There is no order of priority among relatives. However note that in relation to organ and tissue donation, there is an order of priority among relatives, see Organ Donation.

If there is no prescribed relative available or willing to act, then an adult friend of the patient who has a close and continuing relationship with the patient can consent.

If there is no prescribed relative or adult friend available or willing to act, then an adult who is charged with overseeing the ongoing day-to-day supervision, care and well-being of the patient (for example, the Director of Nursing in aged care) can consent.

As a last resort, SACAT can consent. However, SACAT will not do so of its own initiative; it will only consider doing so on the application of a person with a proper interest in the matter, such as a medical practitioner.

Some types of treatment, such as termination of pregnancy, sterilisation and prescribed psychiatric treatment, can only be approved by SACAT [s 14A(3)].

How can I specify who may consent to what?

While still mentally competent, a person over the age of 18 years may prepare for the possibility that they may have impaired decision-making capacity in the future by making an advance care directive, see ADVANCE DIRECTIVES - Making an advance care directive.

A person responsible for providing consent on your behalf needs, as far as is reasonably practicable, to make a decision that reflects the decision that you would have made in the circumstances had your decision-making capacity not been impaired [s 14C]. If a person has given an advance care directive under which no substitute decision-maker has been appointed, but the patient's wishes or instructions in relation to treatment are recorded, it may be necessary to give effect to those wishes or instructions.

Emergency medical or dental treatment

People over 16 years of age

Emergency medical or dental treatment can be given to a person over 16 years of age who has not given consent where:

  • the patient is incapable of consenting (whether or not the person has impaired decision-making capacity)
  • the medical practitioner who is to administer the treatment believes it is necessary to meet an immediate risk to the patient's life or health
    • a second medical practitioner who has personally examined the patient gives a written opinion agreeing with the first medical practitioner unless it is not reasonably practicable to do so
  • the patient (if of or over 16 years of age) has not, to the best of the medical practitioner's knowledge, refused to consent to the treatment, and
  • the medical practitioner who is to administer the treatment has made reasonable inquiries to ascertain whether the patient (if of or over 18 years of age) has given an advance care directive, unless it is not reasonable practicable to do so

[Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13]

Can a medical pracitioner perform treatment despite a binding refusal in an advance care directive?

Yes, if the first three dot points above are satisfied AND the medical practitioner who is to administer the treatment "reasonably believes":

However, if a substitute decision-maker, guardian or person responsible is "reasonably available" (in that order, see When someone 16 or over can't consent), then the medical practitioner should not administer the treatment without their consent [ss 13(3)-(4a)].

People under 16 years of age

For emergency treatment on a child under 16 years age where consent cannot be obtained from the child, parental consent must always be sought. If a parent or guardian is unavailable, treatment may proceed if it is essential to the child's health and well being and a second doctor who has examined the child before treatment gives written support. Treatment may also proceed despite a parent or guardian's refusal to consent, if treatment is in the best interests of the child's health and well-being.

The Consent to Medical Treatment and Palliative Care Act 1995 (SA) does not prevent a claim being made against a health professional who performs the emergency medical or dental treatment negligently [s 8(1)(b)(ii)]. The common law still requires the health professional to take reasonable care in performing emergency medical or dental treatment.

    Consent  :  Last Revised: Fri Apr 12th 2013
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.