The Law Handbook 2024

Chapter 9.1: Health and the law 869 If a substitute medical treatment decision-maker or guardian makes a medical treatment decision, they must follow the process set out in the MTPD Act and make the decision they reasonably believe the represented person would have made. For further information, see Chapter 8.6: Guardianship and medical treatment. Children If the person is a child (under 18), either parent or a guardian may generally consent to a procedure, and the parent or guardian is entitled to the same information as an adult patient. However, a child may also be able to consent if they are sufficiently mature to understand the procedure. This depends on the child’s age and level of maturity, and the particular procedure. Mature minors can consent to simple procedures, such as a vaccination. On the other hand, greater maturity and understanding will be required for procedures that are risky or contentious, such as contraception or commencement of hormonal therapy for gender dysphoria. In the case of non-therapeutic procedures (such as sterilisation of a minor or donation of organs), court authority is required; the parent alone cannot consent. How is consent given? Consent may be expressed (in writing or orally) or implied. However, it must be given voluntarily (e.g. without duress) and cover the act proposed by a person who has capacity to make that decision. Prior to giving consent, the patient or their substitute decision-maker must be informed of the broad nature of the procedure performed under the law of trespass to the person prior to giving consent unless an exception to the requirement for consent applies. In many cases, consent is implied from a person’s actions, such as rolling up a sleeve to receive a flu vaccine. This type of consent is generally effective, though the law may be less ready to accept that consent was present if the procedure poses a substantial risk to the individual. Hospitals usually require patients undergoing surgery to sign a consent form that often states the person has been given information about the procedure and has consented to it. The fact that a person has signed such a form is evidence they were informed and consented to the surgery, but it is not conclusive evidence. A court may still examine the circumstances in which the form was signed to determine what the person was really told and understood. Patients may also give advance care directives consenting to, or refusing, particular treatment in the event that they lose capacity. For further information, see Chapter 8.6: Guardianship and medical treatment. Emergencies In an emergency, medical treatment may be administered without consent, provided that the treatment is necessary to address an urgent medical situation. It is not enough that the procedure is merely convenient. This principle applies under the common (judge-made) law and also under the MTPD Act (see s 53). Further, the person must not have refused the treatment by a valid advance care directive. For example, there have been a number of cases in which Jehovah’s Witnesses have refused blood transfusions in advance. It is not always necessary to obtain the consent of the patient’s medical decision-maker in an emergency, although where practicable, it is prudent to do so. What information must be given to a patient? The law has increasingly emphasised that a patient must be given adequate information to enable them to make a decision about whether to consent to a healthcare procedure. The law of trespass to the person requires only that the patient is informed in broad terms of the nature of the procedure. However, the law of negligence (see Chapter 10.1: Negligence and injury) requires a broader range of information to be provided by a health practitioner who seeks a patient’s consent. That information includes: • information about the patient’s condition; • the options for investigation or treatment and their advantages and disadvantages, including what is likely to happen if nothing is done; • the material risks of the treatment; and • what the doctor recommends. Most of the court cases relating to the provision of adequate information to the patient have concerned the type and amount of information that needs to be given about the potential risks of a proposed procedure.