Chapter 5 Section E: Substitute consent to medical treatment
This section of the Manual is about what happens when an adult is considered, at law, to lack the capacity to make decisions about his or her medical and dental treatment. It has information on:
- Consent to minor and major medical treatment
- Power of the Guardianship Division of NCAT to consent to special medical treatment
- Consent to surgical treatment under the Mental Health Act 2007 (NSW) When consent to treatment is not required, including medical and dental treatment in emergency situations and first aid.
Except in emergency situations, medical and dental treatment can only be provided to an adult with that person’s informed consent. If treatment is provided in the absence of informed consent, it constitutes a criminal offence and an assault.
The legal test for informed consent requires that you are able to understand and communicate the general nature and effect of the proposed treatment, the benefits of this treatment and any potential risks or side-effects, as well as any alternative forms of treatment. It is not concerned with whether you are making the ‘right’ decision: only with your ability to make your own decision. Provided you are assumed, at law, to have capacity to give informed consent to treatment you can make any decision you think best for you, even if it is contrary to medical advice and most other people would make a different decision in these circumstances.
If you are an adult who is not considered, at law, to have the capacity to give informed consent to treatment, the law requires that another person, or body, who is able to give informed consent makes medical and dental care decisions on your behalf. Who this person or body is will depend upon the type of treatment you need and its effect. In NSW, for ‘minor’ and ‘major’ medical and dental treatment this person is called the ‘person responsible’ or if there is no ‘person responsible’, the Guardianship Division of NCAT.
For ‘special’ medical treatment it is only the Guardianship Division of NCAT that can give consent. The Guardianship Division of NCAT must also approve clinical trials in which an adult with a decision-making disability might participate.
‘Minor’ medical and dental treatment refers to typical, day-to-day health and dental care (for example, having an X-ray or a tooth filling).
‘Major’ medical treatment refers to:
- Any treatment that involves the administration of a long-acting injectable hormonal substance for the purpose of contraception or menstrual regulation (e.g., Depo Provera);
- Any treatment that involves the administration of a drug of addiction;
- Any treatment that involves the administration of a general anaesthetic or other sedation;
- Any treatment used for the purpose of eliminating menstruation
- Any treatment that involves that administration of a restricted substance for the purpose of affecting the central nervous system
- Any treatment that involves a substantial risk to the patient; and
- Any treatment involving testing for the human immune-deficiency virus (HIV).
(There are exceptions to some of these categories).
Who the ‘person responsible’ for your health and dental care decision-making is, is worked out by working down a hierarchy of potential person’s responsible which is included in the Guardianship Act 1987 (NSW). The person falling into the category that is highest in the hierarchy is the person responsible.
If there is a guardian appointed with specific powers to consent to dental or medical treatment, then they are the ‘person responsible’.
If not, the ‘person responsible’ is your spouse or de facto partner if you have one. If you have had more than one spouse or de facto partner it is the last person to qualify as your spouse or de facto partner (in other words your current rather than a previous partner).
If you don’t have a spouse or de facto partner, but do have a person who looks after you all the time, then they are the ‘person responsible’. This could include a person who receives a Carers Pension for caring for you at home. However, this does not include persons who provide you with care on a paid basis (such as residential support workers).
If there is no-one looking after you, then a close friend or relative is the ‘person responsible’.
If there is no ‘person responsible’ available, then the Guardianship Division of NCAT is likely to be asked to appoint a guardian to make medical decisions on your behalf. In the meantime, the Guardianship Division may be required to make medical and dental treatment decisions for you.
Health practitioners who propose medical and dental treatment for a person with decision-making disability must provide your person responsible with the information they need to make an informed decision. This includes identifying the condition that requires treatment, the alternative courses of treatment for that condition, the general nature and effect of each of those courses of treatment, the nature and degree of any significant risks associated with each alternative course of treatment, and the reasons why a particular course of treatment is recommended.
A person responsible can generally only consent to treatment that you do not object to. Even if you have a Guardian appointed with health and dental care functions, you can’t generally be forced to accept treatment that you do not want. Your Guardian’s consent has no legal effect in such a situation and any treatment you are forced to receive would constitute an assault.
A Guardian can override your objection to minor and major medical or dental treatment but they must first be given the authority to do so by the Guardianship Division of NCAT. Before it gives such authority the Guardianship Division must be satisfied that your objection is based on your lack of understanding of the nature of, or reason, for the treatment. The Guardian can only exercise the authority to override your objection to treatment if he or she is satisfied that the treatment is manifestly in your best interests.
If you believe that you are being forced to have treatment against your will, you should immediately get legal advice.
The Guardianship Division of NCAT can also authorise medical and dental treatment that you object to. Before it can do so the Tribunal must be satisfied that the treatment is the most appropriate form of treatment for promoting and maintaining your health and well-being. Before it arrives at its decision, the Tribunal must have regard to your views as well of those of your doctor or dentist, and any person responsible.
If you object to medical or dental treatment that others consider necessary for you, it is likely that the Guardianship Division of NCAT will decide if consent to this treatment ought to be given or refused. This will allow you to put your views and reasons for refusing treatment to the Tribunal or have a lawyer put these arguments to the Tribunal on your behalf.
There are different legal principles and processes if you are an involuntary patient under the Mental Health Act 2007 (NSW), click here for more information.
The 'person responsible' or the Guardianship Division of NCAT can consent to minor or major treatment, but only the Guardianship or the Guardianship Division of NCAT can consent to special medical treatment.
Special medical treatment refers to any treatment that:
- may result in the person becoming or being reasonably likely to become permanently infertile;
- is carried out to end a pregnancy;
- results in a vasectomy or tubal occlusion (the surgical blocking of the fallopian tubes);
- involves the use of an aversive stimulus (a harsh action that insults the senses);
- involves the use of drugs affecting the central nervous system, but only if the dosages or length of treatment are outside the accepted mode of treatment;
- involves the use of medication that reduces androgens (such as testosterone) in order to control behaviour;
- involves the administration of a drug of addiction (other than use for the treatment of cancer or palliative care for a terminally ill patient) for more than 10 out of 30 days;
- is a new medical or dental treatment that is till experimental and has not yet gained the support of a substantial number of medical and dental practitioners specialising in the field concerned; or
- is a declared special treatment under the Regulations.
In either situation, the Tribunal will hold a hearing to decide whether consent should be given for the particular treatment or whether treatment should be given to the person even if they are objecting to it. Before it can consent to special medical treatment, the Tribunal must generally be satisfied that the treatment is necessary to save the patient’s life or to prevent serious damage to the patient’s health.
Click here to find out more about hearings in the Guardianship Division of NCAT.
If an involuntary patient, correctional patient or forensic patient is capable of, and willing to, consent to surgical treatment they are able to do so despite their ‘involuntary’ status under the Mental Health Act 2007 (NSW) or Mental Health (Forensic Provisions) Act 1990 (NSW). No other consent authority is required.
Generally speaking, the Guardianship Act 1987 (NSW) applies to all non-mental health related treatment that may be required by an involuntary patient, correctional patient or forensic patient who is unable or unwilling to consent to that treatment.
However, there are special rules under the Mental Health Act 2007 (NSW) for consent to surgical treatment for physical conditions that apply to involuntary patients, correctional and forensic patients who are unable to consent to surgical treatment or who refuse that consent. Note that these rules do not apply in the case of an ‘assessable person’ – a person detained in a Mental Health Facility before a Mental Health Inquiry is conducted. If an assessable person cannot or will not consent to necessary surgical and other medical treatment (other than mental health treatment) the Guardianship Act 1987 (NSW) applies.
For information about consent to surgical procedures for voluntary patients of Mental Health Facilities follow this link.
If an involuntary patient, or a mentally ill correctional or forensic patient requires emergency surgery, and the patient is unable or refuses to consent to the surgery, then an Authorised Medical Officer or the Director-General of NSW Health can consent to the surgery. Before giving such consent the Authorised Medical Officer or Director General must be satisfied that it is necessary for the surgery to be performed urgently to save the patient’s life or to prevent serious damage to the patient’s health or to prevent the patient from suffering significant pain or distress.
If the correctional or forensic patient is not mentally ill, the Authorised Medical Officer or Director-General can only consent to emergency surgery if the patient is incapable of giving consent to the surgery. The Authorised Medical Officer or Director General cannot consent to emergency surgery on a correctional or forensic patient who is not mentally ill who is capable of consenting to surgery and who has refused that consent.
If you are an involuntary patient, or a mentally ill correctional or forensic patient, and you require a non-emergency surgical procedure, but are incapable of consenting to that procedure, or if you have refused that consent, consent to the surgery may be obtained from the Director General of NSW Health or the Mental Health Review Tribunal. If your primary carer agrees the surgery should be performed, the Director General can consent to the surgery. If you do not have a primary carer, or your primary carer does not agree with the proposed surgery, only the Mental Health Review Tribunal can consent to the surgery.
In either case, before the Director General or Mental Health Review Tribunal can consent they must be satisfied that it is in your best interests that the surgery is performed.
If the correctional or forensic patient is not mentally ill, the Director-General and Mental Health Review Tribunal can only consent to non-emergency surgery if the patient is incapable of giving consent to the surgery. The Director General and Mental Health Review Tribunal cannot consent to non-emergency surgery on a correctional or forensic patient who is not mentally ill who is capable of consenting to surgery and who has refused that consent.
There are additional rules for consent to what is called ‘special medical treatment’ under the Mental Health Act 2007 (note this is different from ‘special treatment ‘under the Guardianship Act 1987 (NSW).
Special medical treatment is defined as ‘any treatment, procedure, operation or examination that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out’.
If a child under 16 years old requires special medical treatment this cannot be authorised under the Mental Health Act 2007 (NSW). An application for approval of this treatment would have to be made to the NSW Supreme Court.
If an involuntary, correctional or forensic patient requires special medical treatment, only the Mental Health Review Tribunal can consent to this treatment (even if the person is capable of consenting to other medical treatment themselves). Before it can authorise special medical treatment, the Mental Health Review Tribunal has to be satisfied:
- that the treatment is necessary to prevent serious damage to the health of the patient;
- that the treatment is the only or the most appropriate way of treating the patient; and
- that the treatment is obviously in the best interests of the patient.
If you want to refuse to have surgery, and you are an involuntary, correctional or forensic patient, it is strongly suggested that you get legal advice as early as possible. The Mental Health Act 2007 (NSW) allows for urgent hearings of the Mental Health Review Tribunal in these circumstances, and you are likely to need some time to get together evidence before the hearing. You are unlikely to be granted legal aid for this sort of Tribunal matter. To find out more about getting legal advice, click here.
5E.4: When consent to treatment is not required, including Medical and Dental Treatment in Emergency Situations and First Aid
There are limited circumstances in which a medical practitioner can provide medical treatment to you without your or anybody else’s consent.
It is not necessary for a medical practitioner to obtain your or anybody else’s consent to provide you with treatment that they consider to be urgent and necessary to save your life, prevent serious damage to your health or ease significant pain or distress.
Medical practitioners and others do not require consent to supply you with over-the-counter (non-prescribed) medications.
Medical practitioners may also carry out minor medical treatment on you if you are unable to consent to the treatment, you do not have a person responsible, or your person responsible cannot be contacted or is unwilling to act. If they do so they must certify in writing on your clinical record that the treatment is necessary and is the form of treatment that will most successfully promote the patient’s health and sell-being, and that you do not object to the treatment being provided to you.