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.
It is important to understand that the common law test for effective consent to medical or dental treatment involves a two step process:
The Consent to Medical Treatment and Palliative Care Act 1995 (SA) only gives a person 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.
Before a person can properly exercise this right and decide to either consent to or refuse particular medical treatment, they need 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 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:
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 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.
Restrictive practices
A person in aged care, or their substitute decision maker, is required to provide consent (or refusal of consent) to the use of restrictive practices in aged care (Quality of Care Principles 2014 s 15FA).
There is no requirement for a participant in the National Disability Insurance Scheme NDIS, or the participant’s parents, carer or guardian, to provide consent to the use of restrictive practices. Participants and their parents, carers and guardians must be consulted during the preparation of the participant’s behaviour support plan and be given an opportunity to comment on any proposed restrictive practices (see Restrictive practices by registered NDIS providers and Behaviour support plans).
Parent/Guardian Consent
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:
Disputes regarding the administration of treatment to a child under 16 years of age, including both the consent or withholding of consent for treatment, can be addressed through mediation with the Public Advocate or review by the South Australian Civil and Administrative Tribunal (‘SACAT’) [Part 3A]. Applications can be brought by a parent or guardian, a medical practitioner providing, or who is to provide, medical treatment, or another person who can satisfy SACAT as to their proper interest [s 18A]. A child cannot bring or participate in SACAT proceedings but is entitled to appear by the Public Advocate [s 18K].
Court-ordered treatment
The Federal Circuit and 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 Court will override the Consent to Medical Treatment and Palliative Care Act 1995 (SA), including a determination that the consent of the parents falls within parental responsibility held by a particular person or persons. For example P. v P. (1994) 181 CLR 583; [1994] HCA 20 where the High Court held that where a child's parents have been married, the Family Court has the power to make an order approving sterilisation, notwithstanding a decision contrary by the Tribunal.
The Federal Circuit and 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 also theRe Kelvin case [Re: Kelvin (2017) FamCAFC 258] which allowed a child to undertake stage two medical procedures and treatment in relation gender dysphoria without approval of the Court, in circumstances where the parents of the child and relevant medical practitioners agreed with the treatment proposed.
The Youth Court of South Australia may make orders for the assessment and treatment of children for drug dependency, see Children and Young People, Assessment, treatment and detention orders for drug dependency.
The Supreme Court has an inherent jurisdiction to make decisions in limited cases, however consideration should be given to an application to SACAT in the first instance and legal advice should be sought. The Supreme Court parens patriae jurisdiction may be available in non-emergency cases where:
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.
Orders may also be made under the Mental Health Act 2009 (SA), see How is mental health treated?
Blood and tissue donations
A child cannot give blood without parental consent, but only for treatment purposes under the following circumstances:
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).
Early childhood services and immunisation requirements
From 7 August 2020, children will not be able to enrol in, or attend early childhood services unless all immunisation requirements are met [Part 12A South Australian Public Health Act 2011 (SA)]. For further information on immunisation requirements please visit the SA Health website (link opens new window). See also PARENTAL RIGHTS AND DUTIES.
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:
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:
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.
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:
[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.
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