Health – Rights and Consent

Consent to Healthcare

An adult (aged 18 or older) can give their consent to accept or refuse medical treatment if they have capacity.

‘Capacity’ is a person’s ability to:

• understand the nature and effect of decisions
• freely and voluntarily make decisions
• communicate those decisions in some way.

If a person lacks this capacity, someone else (not the health professionals) must make these decisions on their behalf.

Consent

Before a person can consent to or refuse particular medical treatment, they need to have a reasonable understanding of what that treatment involves. The treating health practitioner is required to provide a proper explanation of the medical treatment and the risks involved.

A health professional has a duty to warn a patient of a material risk inherent in proposed treatment (see the High Court of Australia decision in Rogers v Whittaker (1992) 175 CLR 479; [1992] HCA 58). A risk is evident if in the particular case:

• a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it
• the health practitioner is, or should reasonably be, aware that the particular patient, if warned of the risk, would be likely to attach significance to the risk.

Other factors relevant in deciding what information to provide and the recognition that this often depends on the circumstances are:

• the condition of the patient and their general health
• the nature of the medical treatment
• what will happen if the treatment fails or goes wrong
• how likely it is that a failure or particular risk may occur
• the seriousness of the effect on the patient’s health or life if a particular risk occurs
• whether the patient appears to want a full explanation of what is involved, the nature and the availability of alternative treatment
• the personality or temperament of the patient
• whether the treatment is needed because of an emergency (e.g. a car accident).

The law recognises that a health professional is justified in withholding information in certain circumstances. These include:

• reasonable grounds for believing that the physical or mental health of the patient might be seriously harmed by knowing particular information
• a patient does not wish to know all the information associated with their medical treatment. However, this does not mean the medical practitioner is not required to provide any information. In order for consent to be informed and valid, the patient must still be provided with enough information to enable them to properly consent
• the patient is unable to provide consent (e.g. the patient is unconscious). Treatment in this situation can only be provided if it is reasonably necessary in the best interests of the patient. When a person is unable to provide consent, consent can be provided by a person’s statutory health attorney.

Types of consent

Where consent is provided to medical treatment by a person it must be freely given. The consent provided can either be:

• express—for example a person signs a form consenting to a particular surgical procedure or
• implied—for example, by the actions of the individual attending at a pathology centre, handing over the collection request form and presenting an arm for the blood test.

Reference: Qld Law Handbook

Privacy and Rights to information

Any personal information collected about a patient during contact with the health practitioner must be treated in accordance with the relevant privacy laws and must not be used or disclosed in a way that is inconsistent with those laws.

If the patient experiences complications during or after the surgery, they may wish to access their medical records if the explanation provided by the health practitioner or the hospital of admission is not satisfactory.

The patient may wish to complain about the treatment they received or the conduct of the health practitioner or bring other legal action against the practitioner.

Reference: Qld Law Handbook – Medical Law and Qld Law Handbook – Freedom of Information

Legal Advice

Legal Aid may give legal advice on matters relating to medical consent.

Legal Aid may assist with a medical negligence claim through the Civil Law Legal Aid Scheme.

Legal Aid cannot give advice about

• statutory health attorneys – (see our page Health – Statutory Attorneys)
• advance health directives – (see our page Health Directives)
• or, preparing powers of attorney – (see our page EPOA – How to Make One and Supported Decision Making)

The following services may also be able to give legal advice:

• Aged and Disability Advocacy Australia (ADA) have information and advocacy services relating to guardianship and administration matters. They can help adults with capacity issues with Queensland Civil and Administrative Tribunal (QCAT)processes, and help recipients of aged care or community care services to resolve service related matters.
• Lawright (QCAT) gives legal advice and help to people at the Queensland Civil and Administrative Tribunal for matters including guardianship, powers of attorney and child protection. They can also give advice about other options to resolve the dispute. They may help with drafting documents and correspondence relating to a legal matter with QCAT. They do not provide representation.
• Qld Law Society – Find a Solicitor lists specialist private lawyers for advice or representation.

Reference: Legal Aid

More Information and Reading

Qld Law Handbook – Disability and the law