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:
Medical and dental treatment can only be provided to an adult with that person’s consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More unless it is an emergency. If treatment is provided in the absence of consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More, it constitutes an assault and is a criminal offence.
The legal test for capacityCapacity refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have a medical procedure. A person may lack capacity in some areas, but still be able to make other decisions. More to consent to medical or dental treatment requires that you are able to understand and communicate the general nature and effect of the proposed treatment, and you can indicate whether you consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More to it. This includes understanding and retaining treatment information and being able to weigh that information as part of your decision-making process.
Legal capacity to consent to medical or dental treatment does not test whether you are making the ‘right’ decision: only with your ability to make your own decision. Provided you have legal capacityCapacity refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have a medical procedure. A person may lack capacity in some areas, but still be able to make other decisions. More to give consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More 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 consent to treatment, the law requires that another person, or body, who is able to give 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 efficacy. In NSW, for ‘minor’ and ‘major’ medical and dental treatment this person is called the ‘person responsible’ or if there is no person responsibleA person responsible refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves. This person can be guardian; spouse or partner; or a person who provides unpaid care such as a friend or relative. More, the Guardianship Division of NSW Civil and Administrative Tribunal (NCAT).
For ‘special medical treatment’, only the Guardianship Division of NCAT can give consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More. The Guardianship Division of NCAT must also approve of participation in clinical trials for an adult with a decision-making disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More.
‘Minor medical and dental treatment’ refers to typical, day-to-day health and dental care (for example, having an X-ray or a tooth filled).
‘Major medical treatment’ refers to any treatment:
There are exceptions to some of these categories and they are found in the GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Regulations 2016 (NSW).
‘Major dental treatment’ refers to any treatment:
The person responsibleA person responsible refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves. This person can be guardian; spouse or partner; or a person who provides unpaid care such as a friend or relative. More for your health and dental care decision-making is determined by working down a hierarchy of potential people outlined in the GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Act 1987 (NSW) as follows:
1. If there is a GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More or Enduring GuardianThe Guardianship Act 1987 (NSW) makes it possible for a person with legal capacity to appoint an Enduring Guardian. An Enduring Guardian can make decisions for you in areas such as accommodation, health and services, if you lose the capacity to make your own decisions at some time in the future. An Enduring Guardian cannot make decisions about your money or assets. More appointed with specific powers to consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More to dental or medical treatment, then they are the person responsibleA person responsible refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves. This person can be guardian; spouse or partner; or a person who provides unpaid care such as a friend or relative. More.
2. If not, the person responsibleA person responsible refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves. This person can be guardian; spouse or partner; or a person who provides unpaid care such as a friend or relative. More is your spouse or de facto partner if your relationship with them is ‘close and continuing’. If you have had more than one spouse or de facto partner, it is the most current partner.
3. 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 responsibleA person responsible refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves. This person can be guardian; spouse or partner; or a person who provides unpaid care such as a friend or relative. More. This could include a person who receives a Carer Payment for caring for you at home. However, this does not include people who provide you with care on a paid basis (such as residential or mental health support workers).
4. If there is no one looking after you, then a close friend or relative is the person responsibleA person responsible refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves. This person can be guardian; spouse or partner; or a person who provides unpaid care such as a friend or relative. More.
5. If there is no person responsibleA person responsible refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves. This person can be guardian; spouse or partner; or a person who provides unpaid care such as a friend or relative. More available, then the Guardianship Division of NCAT is likely to be asked to appoint a Guardian to make medical decisions on your behalf.
The Guardianship Division may also be required to make medical and dental treatment decisions for you until the GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More is appointed.
Health practitioners who propose medical and dental treatment for you, if you are a person with decision-making disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More, must provide your person responsibleA person responsible refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves. This person can be guardian; spouse or partner; or a person who provides unpaid care such as a friend or relative. More with the information they need to make an informed decision. This includes identifying the condition that requires treatment, explaining 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 only override your objection to minor and major medical or dental treatment if 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 clearly 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 responsibleA person responsible refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves. This person can be guardian; spouse or partner; or a person who provides unpaid care such as a friend or relative. More.
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 responsibleA person responsible refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves. This person can be guardian; spouse or partner; or a person who provides unpaid care such as a friend or relative. More or the Guardianship Division of NCAT can consent to minor or major treatment. However, only the Guardianship Division of NCAT can consent to special medical treatment. ‘Special medical treatment’ refers to any treatment that:
The Tribunal will hold a hearing to decide whether consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More 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 consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More 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 GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Division of NCAT.
If an involuntary 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). No other consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More authority is required.
Generally speaking, the Guardianship Act 1987 (NSW) applies to all treatment not related to mental health issues that may be required by an involuntary 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 who are unable to consent to surgical treatment or who refuse that consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More.
These rules do not apply to voluntary patients. They also would not apply to an ‘assessable person’ – a person detained in a public 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 GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Act 1987 (NSW) applies.
For information about consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More to surgical procedures for voluntary patients of public mental health facilities, follow this link.
If an involuntary patient requires emergency surgery, and the patient is unable or refuses to consent to the surgery, then an Authorised Medical OfficerAn Authorised Medical Officer is either the medical superintendent of a declared mental health facility, or a doctor who has been nominated by the medical superintendent to fulfil certain responsibilities and make certain decisions under the Mental Health Act 2007 (NSW). These responsibilities can include assessment of patients, care and treatment of people who are mentally ill or mentally disordered and decisions about discharge. More or the Secretary of the NSW Ministry of Health can consent to the surgery. Before giving such consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More, the Authorised Medical OfficerAn Authorised Medical Officer is either the medical superintendent of a declared mental health facility, or a doctor who has been nominated by the medical superintendent to fulfil certain responsibilities and make certain decisions under the Mental Health Act 2007 (NSW). These responsibilities can include assessment of patients, care and treatment of people who are mentally ill or mentally disordered and decisions about discharge. More or Secretary must be satisfied that it is necessary for the surgery to be performed urgently to save the patient’s life, prevent serious damage to the patient’s health or to prevent the patient from suffering significant pain or distress.
The Authorised Medical OfficerAn Authorised Medical Officer is either the medical superintendent of a declared mental health facility, or a doctor who has been nominated by the medical superintendent to fulfil certain responsibilities and make certain decisions under the Mental Health Act 2007 (NSW). These responsibilities can include assessment of patients, care and treatment of people who are mentally ill or mentally disordered and decisions about discharge. More of the public mental health facility must inform the Designated Carer(s), Principal Care ProviderPrincipal care provider (who may also be a designated carer) is the person primarily responsible for providing support or care to a consumer (though not on a commercial basis).The principal care provider is entitled to the same information as a designated carer (unless excluded from being given information by the consumer).They are persons entitled to be informed of a range of matters about the person for whom they provide care, including about their admission, aspects of treatment and discharge. More and the Tribunal of the intended operation as soon as practicable. The decision to undertake emergency surgery should be clearly documented in the patient’s hospital records, as well as reasons for the decision.
If you are an involuntary patient and you require a non-emergency surgical procedure, but are incapable of consenting to that procedure, or if you have refused that consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More, consent to the surgery may be obtained from the Secretary of the NSW Ministry of Health if your Designated CarerA designated carer is someone who is entitled to certain information about a consumer’s care and treatment and to be notified of certain events. A designated carer may also be a principal care provider (see below). A designated carer is nominated by the consumer but in many instances identified by treating clinicians as the person or persons who should be consulted about the person’s care and treatment planning and be informed about any related matters such as hearings, medication, discharge and recovery progress. Consumers can now nominate up to two designated carers. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The ‘relative’ of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person’s culture. More agrees. The Authorised Medical OfficerAn Authorised Medical Officer is either the medical superintendent of a declared mental health facility, or a doctor who has been nominated by the medical superintendent to fulfil certain responsibilities and make certain decisions under the Mental Health Act 2007 (NSW). These responsibilities can include assessment of patients, care and treatment of people who are mentally ill or mentally disordered and decisions about discharge. More will write to your Designated CarerA designated carer is someone who is entitled to certain information about a consumer’s care and treatment and to be notified of certain events. A designated carer may also be a principal care provider (see below). A designated carer is nominated by the consumer but in many instances identified by treating clinicians as the person or persons who should be consulted about the person’s care and treatment planning and be informed about any related matters such as hearings, medication, discharge and recovery progress. Consumers can now nominate up to two designated carers. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The ‘relative’ of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person’s culture. More and they will have fourteen (14) days to respond in writing. If your Designated Carer agrees the surgery should be performed, the Secretary can consent to the surgery.
If you do not have a Designated CarerA designated carer is someone who is entitled to certain information about a consumer’s care and treatment and to be notified of certain events. A designated carer may also be a principal care provider (see below). A designated carer is nominated by the consumer but in many instances identified by treating clinicians as the person or persons who should be consulted about the person’s care and treatment planning and be informed about any related matters such as hearings, medication, discharge and recovery progress. Consumers can now nominate up to two designated carers. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The ‘relative’ of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person’s culture. More, or they do not agree with the proposed surgery, only the Mental Health Review TribunalThe Mental Health Review Tribunal is a specialist quasi-judicial body constituted under the NSW Mental Health Act 2007. It has a wide range of powers that enable it to conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness. The Tribunal has a wide jurisdiction, and conducts both civil and forensic hearings. can consent to the surgery.
In either case, the Secretary or Mental Health Review TribunalThe Mental Health Review Tribunal is a specialist quasi-judicial body constituted under the NSW Mental Health Act 2007. It has a wide range of powers that enable it to conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness. The Tribunal has a wide jurisdiction, and conducts both civil and forensic hearings. will only consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More, if they are satisfied that you are not capable of giving consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More and it is in your best interests that the surgery is performed.
In either case, an application may be made to the Secretary or Mental Health Review TribunalThe Mental Health Review Tribunal is a specialist quasi-judicial body constituted under the NSW Mental Health Act 2007. It has a wide range of powers that enable it to conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness. The Tribunal has a wide jurisdiction, and conducts both civil and forensic hearings. before a fourteen (14) day period has finished if the Authorised Medical OfficerAn Authorised Medical Officer is either the medical superintendent of a declared mental health facility, or a doctor who has been nominated by the medical superintendent to fulfil certain responsibilities and make certain decisions under the Mental Health Act 2007 (NSW). These responsibilities can include assessment of patients, care and treatment of people who are mentally ill or mentally disordered and decisions about discharge. More believes the circumstances are urgent or the Designated CarerA designated carer is someone who is entitled to certain information about a consumer’s care and treatment and to be notified of certain events. A designated carer may also be a principal care provider (see below). A designated carer is nominated by the consumer but in many instances identified by treating clinicians as the person or persons who should be consulted about the person’s care and treatment planning and be informed about any related matters such as hearings, medication, discharge and recovery progress. Consumers can now nominate up to two designated carers. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The ‘relative’ of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person’s culture. More states they do not object to the surgery.
It is somewhat confusing but this section draws attention to the different meanings to the terminology in two different Acts. There are additional rules for consent to what is called ‘special medical treatment’ under the Mental Health Act 2007 (NSW) (note this is slightly different from ‘special medical treatment’ under the Guardianship Act 1987 (NSW)).
‘Special medical treatment’ under the Mental Health Act 2007 (NSW) has a very narrow definition. It is defined as any treatment, procedure, operation or examination that is intended, or is reasonably likely, to lead to permanent infertility.
If a child under 16 years old requires special medical treatment, this cannot be authorised under the Mental Health Act 2007 (NSW). Different requirements apply and the Children and Young Persons (Care and Protection) Act 1998 (NSW) is relevant. An application for approval of this treatment would have to be made to the Supreme Court.
If an involuntary patient requires special medical treatment under the Mental Health Act 2007 (NSW), only the Mental Health Review TribunalThe Mental Health Review Tribunal is a specialist quasi-judicial body constituted under the NSW Mental Health Act 2007. It has a wide range of powers that enable it to conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness. The Tribunal has a wide jurisdiction, and conducts both civil and forensic hearings. 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 TribunalThe Mental Health Review Tribunal is a specialist quasi-judicial body constituted under the NSW Mental Health Act 2007. It has a wide range of powers that enable it to conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness. The Tribunal has a wide jurisdiction, and conducts both civil and forensic hearings. must be satisfied that the treatment is:
The Authorised Medical OfficerAn Authorised Medical Officer is either the medical superintendent of a declared mental health facility, or a doctor who has been nominated by the medical superintendent to fulfil certain responsibilities and make certain decisions under the Mental Health Act 2007 (NSW). These responsibilities can include assessment of patients, care and treatment of people who are mentally ill or mentally disordered and decisions about discharge. More must notify the person’s Designated CarerA designated carer is someone who is entitled to certain information about a consumer’s care and treatment and to be notified of certain events. A designated carer may also be a principal care provider (see below). A designated carer is nominated by the consumer but in many instances identified by treating clinicians as the person or persons who should be consulted about the person’s care and treatment planning and be informed about any related matters such as hearings, medication, discharge and recovery progress. Consumers can now nominate up to two designated carers. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The ‘relative’ of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person’s culture. More about the intention to seek consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More for ‘special medical treatment’ and the Designated Care has fourteen (14) days to respond. An application can be made to the Mental Health Review TribunalThe Mental Health Review Tribunal is a specialist quasi-judicial body constituted under the NSW Mental Health Act 2007. It has a wide range of powers that enable it to conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness. The Tribunal has a wide jurisdiction, and conducts both civil and forensic hearings. before the fourteen (14) day period has finished if the Authorised Medical OfficerAn Authorised Medical Officer is either the medical superintendent of a declared mental health facility, or a doctor who has been nominated by the medical superintendent to fulfil certain responsibilities and make certain decisions under the Mental Health Act 2007 (NSW). These responsibilities can include assessment of patients, care and treatment of people who are mentally ill or mentally disordered and decisions about discharge. More believes the circumstances are urgent or the Designated CarerA designated carer is someone who is entitled to certain information about a consumer’s care and treatment and to be notified of certain events. A designated carer may also be a principal care provider (see below). A designated carer is nominated by the consumer but in many instances identified by treating clinicians as the person or persons who should be consulted about the person’s care and treatment planning and be informed about any related matters such as hearings, medication, discharge and recovery progress. Consumers can now nominate up to two designated carers. A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The ‘relative’ of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person’s culture. More states they do not object to the treatment.
If you want to refuse to have surgery, and you are an involuntary 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 TribunalThe Mental Health Review Tribunal is a specialist quasi-judicial body constituted under the NSW Mental Health Act 2007. It has a wide range of powers that enable it to conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness. The Tribunal has a wide jurisdiction, and conducts both civil and forensic hearings. in these circumstances, and you are likely to need some time to prepare 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.
There are limited circumstances in which a medical practitioner can provide medical treatment to you without your or anybody else’s consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More.
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 and others do not require consent to provide you with first aid treatments for a condition or injury.
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 responsibleA person responsible refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves. This person can be guardian; spouse or partner; or a person who provides unpaid care such as a friend or relative. More, 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 your health and wellbeing, and that you do not object to the treatment being provided to you.
Updated April 3, 2020
