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Chapter 3 Section B: Specific rights in relation to medical treatment

Everyone has rights about agreeing to or refusing medical treatment. For a person to properly agree to medical treatment, consent must be informed consent.

To exercise informed consent, sometimes the person might need to be properly informed by seeking a second opinion.

All adults with capacity have the right to refuse treatment.

It is also important to understand that there are restrictions to accessing prescription medication by ‘doctor shoppers‘.

3B.1: Informed consent

provider of health care must take reasonable steps to make sure that you, as a patient, understand the key aspects and effects of any treatment they suggest before asking you to agree to the treatment. You agreeing to the treatment is called ‘consent‘ to treatment.

To comply with this requirement, health care providers must also give you enough information to make an informed decision about the treatment. Your agreement, once you have been given (and understand) this information is called ‘informed consent‘ to treatment.

The information that you are given should include information about your condition, why it requires treatment, what the treatment options are, the recommended treatment and reasons why it is recommended, how the treatment will be given, possible outcomes of the treatment, and risks related to the treatment including possible side effects of medication. You should also be advised about any alternative courses of treatment.

Despite this legal obligation to give you this information, you should always ask about the possible side effects of the treatment or medications that are being suggested. Pharmacists are also able to answer questions about possible side effects of medication. Information about possible side effects of medication is often found in information sheets in the medication package or on the package. The Federal Government also runs a Medicines Line (Ph: 1300 MEDICINE (1300 633 424)*, Monday to Friday, 9.00 am–5.00 pm) which can provide information about prescription, over-the-counter and complementary medicines for the cost of a local call.You can also report a problem or side affect you experienced from a medicine to the Adverse Medicine Events Hotline (Ph: 13 11 26)* Monday to Friday, 9am to 5pm for the cost of a local call. Click here for more information

If you are unsure about whether to agree to an operation or procedure, or to take a particular medication, you can always seek a second opinion from another medical practitioner or health care professional.

Prescription medication should always be taken in accordance with the directions on the script and the label. If you take twice the recommended dose of a medication or in a dangerous combination with other drugs, legal or illegal, or alcohol, the prescribing doctor will not be responsible for any negative outcomes. The same could apply if you do not follow medical advice about pre-operation preparation and post-operation follow up, particularly if you do not tell the doctor the truth about what you have done or failed to do.

Doctors and other health care professionals do not have to warn patients about every possible side effect of medication or every possible negative outcome of an operation or treatment. What health care professionals must tell you also depends on what you tell them. So if you have special circumstances, for example, if you are pregnant or are taking other medication, informing the doctor will mean they are better able to advise you of the full possible negative effects that apply to you.

For emergencies with medicines or poisons or combinations of both, the NSW Poisons Information Centre has a 24-hour telephone hotline: 131 126*. Click here to go to the NSW Poisons Information Centre’s website

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) and to Local call numbers (numbers starting with 13 or 1300) are charged to the caller at the usual mobile rate.

3B.2: A second opinion

Asking for a second opinion is part of exercising your right to be properly informed before agreeing to treatment.

Under the Medicare system, there are no restrictions on how many doctors you may see for advice. (You may be accused of ‘doctor shopping‘ if you try to get the same medication, especially Schedule 8 medicines, from a number of different doctors.) If you want a second opinion from a medical specialist, you may have to go back to your GP to get a referral to the second specialist. Although your GP may be happy to do this, there is no legal obligation on your doctor to give you a second referral in these circumstances. Without a referral you cannot claim the payment under Medicare.

A doctor providing a second opinion may also insist on seeing all your previous medical notes before they see you, or before they give their opinion.

There are situations where getting a second opinion may be practically difficult. If you are a public patient in hospital, the hospital may not object to you getting a second opinion but is unlikely to pay for it if the second doctor is a private practitioner. If you are physically unable to leave the hospital, getting a doctor to agree to visit you in hospital, particularly a medical specialist, is likely to be hard.

You can ask for a second opinion from another doctor within the public health system, and the second doctor will have access to your full hospital medical record, including previous diagnoses and advice. Doctors are obliged, in this situation, to give their own assessment based on the information available to them.

People who are not able to leave their home without help, and aged and infirm people in aged-care facilities, may have serious difficulties getting medical treatment. A second opinion in these circumstances may be even harder to get. Doctors who make home visits are increasingly rare. Medical specialists, including psychiatrists, who agree to home visits are even rarer still.

In Australia, there are shortages of health care professionals, particularly medical specialists, in rural and remote areas, and even in some regional and urban areas. In these circumstances, getting a second opinion may not be possible without travelling to see the medical professional, usually at your own expense.

3B.3: Refusing medical treatment

It is considered unlawful to give someone medical treatment without their consent. This may be called battery or trespass to the person. This includes using physical force to make someone have treatment. An exception to this rule is emergency situations, where a life or lives are threatened, and it is not possible to get the patient’s consent.

It follows that an adult who has the mental capacity to make the decision has the right to refuse any treatment.

The situation is different for children under 16 for whom a parent or guardian can usually give consent, and for people who lack the capacity to make decisions about medical treatment , who can be treated if the ‘person responsible’ consents to the treatment and they do not object to it if a court or tribunal makes an order authorising or giving consent to the treatment. People in this second category can be treated if the ‘person responsible’ consents to the treatment. The person who may consent to medical treatment for a person who is considered legally unable to consent themselves will depend on the nature of the treatment. The Manual deals with this in detail in Chapter 5.

If someone has made an ‘advance directive‘, they can include in that directive what treatment they want and don’t want to receive in the future if they lose capacity to make decisions. With exceptions, the law in NSW recognises that the directions given in an advance directive are to be followed, including if the person has lost capacity to make a decision about treatment at the time of treatment.

Parliament can pass laws to override the general right to refuse medical treatment. The Mental Health Act 2007 (NSW) is an example of such a law, as it allows medical treatment of people who are either ‘mentally ill’ or ‘mentally disordered’ under the definitions in that Act without their consent.

3B.4: Restricting access of ‘doctor shoppers’ to prescriptions for medication

Under Medicare you may access any GP you choose, and under privacy principles, your GP can’t tell another doctor about your prescription history.

If a doctor suspects that his or her patient is getting medicine in excess of their medical needs, they can report this to Medicare’s Prescription Shopping Information Service. Once registered to this service, a doctor can be provided with all your recent prescribing history with all other doctors.
Click here for more information about the Prescription Shopping Program

If you are suspected of being a ‘doctor shopper’ and you want to continue to be prescribed Schedule 8 drugs or Schedule 4 medicines that are drugs of dependence, such benzodiazepines, then you can be required to sign an agreement to restrict the prescription and dispensing of those drugs to you to one GP and one pharmacist only. Such an agreement would also require your consent to the GP having access to your Pharmaceutical Benefits Scheme (PBS) prescription records for all doctors and all pharmacists.

Medicare Australia defines ‘doctor shoppers’ as people who have thirty or more Medicare consultations a year or who see more than fifteen different GPs to get more PBS prescriptions than appear to be clinically necessary.

If you are defined as a ‘doctor shopper’ and refuse to sign this sort of agreement, then the Pharmaceutical Services Branch of NSW Health will almost certainly cancel the authority for you to be prescribed a Schedule 8 medicine, or the doctor may simply refuse to prescribe medication for you. If you breach an agreement, you will be risking your authority being cancelled, or your doctor may simply refuse to prescribe you a medication such as a one containing benzodiazepine.

Updated October 29, 2019