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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:

5E.1: Consent to minor and major medical treatment

Medical and dental treatment can only be provided to an adult with that person’s consent unless it is an emergency. If treatment is provided in the absence of consent, it constitutes an assault and is a criminal offence.

The legal test for capacity 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 consent 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 capacity to give 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 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 responsible, the Guardianship Division of NSW Civil and Administrative Tribunal (NCAT).

For ‘special medical treatment’, only the Guardianship Division of NCAT can give consent. The Guardianship Division of NCAT must also approve of participation in clinical trials for an adult with a decision-making disability.

‘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:

  • that involves the administration of a long-acting injectable hormonal substance for the purpose of contraception or menstrual regulation (e.g., Depo Provera)
  • used for the purpose of eliminating menstruation
  • that involves the administration of a drug of addiction
  • that involves that administration of a restricted substance for the purpose of affecting the central nervous system
  • that involves the administration of a general anaesthetic or other sedation
  • that involves a substantial risk to the patient (for example, death or brain damage); and
  • involving testing for the human immune-deficiency virus (HIV).

There are exceptions to some of these categories and they are found in the Guardianship Regulations 2016 (NSW).

‘Major dental treatment’ refers to any treatment:

  • that involves the administration of a general anaesthetic or simple sedation
  • intended, or likely, to result in removal of all teeth; or
  • likely to result in a person’s inability to chew their food for an indefinite or prolonged period.

The person responsible for your health and dental care decision-making is determined by working down a hierarchy of potential people outlined in the Guardianship Act 1987 (NSW) as follows:

1.    If there is a Guardian or Enduring Guardian appointed with specific powers to consent to dental or medical treatment, then they are the person responsible.

 2.    If not, the person responsible 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 responsible. 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 responsible.

5.    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.

The Guardianship Division may also be required to make medical and dental treatment decisions for you until the Guardian is appointed.

Health practitioners who propose medical and dental treatment for you, if you are 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, 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 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.

5E.2: Consent from the Guardianship Division of NCAT for special medical treatment

The person responsible 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:

  • is carried out to end a pregnancy;
  • involves in a vasectomy or tubal occlusion (the surgical blocking of the fallopian tubes); or
  • involves the use of an aversive stimulus (including mechanical, chemical, physical or other harsh stimulus).

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.

5E.3: Surgery or special medical treatment under the Mental Health Act 2007 (NSW)

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 consent 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 consent.

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 Guardianship Act 1987 (NSW) applies.

For information about consent 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 Officer or the Secretary of the NSW Ministry of Health can consent to the surgery. Before giving such consent, the Authorised Medical Officer 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 Officer of the public mental health facility must inform the Designated Carer(s), Principal Care Provider 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 consent, consent to the surgery may be obtained from the Secretary of the NSW Ministry of Health if your Designated Carer agrees. The Authorised Medical Officer will write to your Designated Carer 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 Carer, or they do not agree with the proposed surgery, only the Mental Health Review Tribunal can consent to the surgery.

In either case, the Secretary or Mental Health Review Tribunal will only consent, if they are satisfied that you are not capable of giving consent 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 Tribunal before a fourteen (14) day period has finished if the Authorised Medical Officer believes the circumstances are urgent or the Designated Carer 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 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 must be satisfied that the treatment is:

  • necessary to prevent serious damage to the health of the patient
  • the only or the most appropriate way of treating the patient
  • clearly in the best interests of the patient; and
  • consistent with any relevant guidelines by the National Health and Medical Research Council.

The Authorised Medical Officer must notify the person’s Designated Carer about the intention to seek consent for ‘special medical treatment’ and the Designated Care has fourteen (14) days to respond. An application can be made to the Mental Health Review Tribunal before the fourteen (14) day period has finished if the Authorised Medical Officer believes the circumstances are urgent or the Designated Carer 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 Tribunal 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.

5E.4: When consent to treatment is not required

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 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 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 your health and wellbeing, and that you do not object to the treatment being provided to you.

Updated April 3, 2020