The Law Handbook 2024

868 NOTE The law in this chapter is current as at 1 September 2023. Introduction The law regulates a vast number of health-related matters, such as in-vitro fertilisation and the framework governing the operation of hospitals and community health centres. However, the law also deals with less obvious things, as diverse as standards for the re-use of waste water and the licensing of pest-control operators. This chapter deals with the areas of health law relevant to treatment as a patient. These are: • consent and information; • access to medical records; • privacy and confidentiality (e.g. between health practitioners and their patients); • blood transfusions and organ transplants; and • making a complaint. Consent and information Introduction As a rule, health professionals must obtain a patient’s consent before undertaking any health procedures. This is so even when the proposed treatment would clearly benefit the patient, and when failure to treat the patient may result in harm that may have been avoided. The principle applies not only to treatment but also to diagnostic and investigative procedures. The rule of consent is based on the recognition that competent individuals are entitled to make their own healthcare decisions – even if their decisions may sometimes appear to the health professional as not being in their best interests. Where the patient lacks consent, the law supplies a substitute decision- making framework. If the consent of a patient or substitute decision- maker is not obtained, the health professional can be subject to an action in trespass to the person (commonly called assault or battery), unless an exception applies. A claim of this kind, unlike a claim in negligence, can be brought without needing to prove damage or loss. Further, a health professional who treats a patient without informing them adequately about the pro­ cedure can be subject to an action in negligence (see ‘What information must be given to a patient?’, below). Who may give consent? Consent to medical treatment may be given by the patient – if they have capacity. If they do not, consent may be provided by the patient’s parent/guardian or a substitute decision-maker. Adults Adults are presumed to have capacity to consent to medical treatment. An adult may lack capacity if they are unable to understand, retain and use or weigh information relevant to the decision or if they are unable to communicate their decision. For example, a person who is unconscious would lack capacity. A person’s medical condition or disability may also deprive them of capacity, though all adult people (including those with medical conditions or disabilities) are presumed to have capacity unless proven otherwise. If a person does not have capacity to make a medical treatment decision, the Medical Treatment Planning and Decisions Act 2016 (Vic) (‘ MTPD Act ’) specifies who has authority in Victoria to make such decisions. If there is no one: • The Victorian Civil and Administrative Tribunal (VCAT) may appoint a guardian to make medical treatment decisions under the Guardianship and Administration Act 2019 (Vic); or • Victoria’s Public Advocate can make significant treatment decisions without the need for a guardianship order. Health and the law 9.1 Contributor: Chris Chosich, Senior Associate, Health Legal