Consent to Medical Treatment

Miles Crawley, Solicitor

The Law governing consent to medical treatment is contained in the Consent to Medical Treatment and Palliative Care Act 1995.

Pursuant to the provisions of that Act, the age of consent to medical treatment remains at 16 years.

Where a patient is under the age of 16 years, for medical treatment there must be:

Alternatively, the situation may arise where the parent or guardian has not consented and the child cannot consent. In those circumstances, the matter is dealt with in the same way as for an adult patient incapable of consenting. In those circumstances, medical treatment can be given if:

However a supporting opinion is not necessary if it is not practicable to obtain one.

The Act creates the concept of a medical agent, by a medical power of attorney. There are a number of formal requirements for an appointment of such an agent, being:

A patient may nominate alternative medical agents. It and only if the first medical agent nominated is not available, then the second may be consulted. If the first and second are not available, the third may be consulted and so on. It cannot be the case that persons are appointed joint medical agents.

In order to rely upon a medical power of attorney, it is necessary for the medical agent to produce a copy of same for inspection by the doctor responsible for medical treatment.

By way of a medical power of attorney, the medical agent can make any decision on behalf of the patient that the patient themselves could make except that a medical agent cannot:

A medical practitioner (amongst others) may apply to the Supreme Court for a review of a decision made by a medical agent, but not if the patient is close to death. The purpose of the review is solely to determine whether or not the decision taken is porperly in accordance with the patient's wishes.

A mentally incapacitated person may have an enduring guardian appointed under the Guardianship and Administration Act. However, such guardian may only consent to medical treatment if there is no medical agent who is available and willing to make the decision. If a patient has both an enduring guardian and a medical agent, the medical agent will make the necessary decisions about medical treatment.

Additionally, if a patient is given an anticipatory direction, the medical agent must act consistently with that direction.

A person of sound mind over the age of 18 years may give anticipatory directions as to their wishes if at some future time they are in a terminal phase of a terminal illness, or in a persistent vegetative state and are then incapable of making decisions about medical treatment. Such directions must be signed by the patient and witnessed by an authorised witness.

Provided a medical practitioner responsible for the treatment of the patient acts with the consent of the patient or the medical agent, in good faith and without negligence, in accordance with the proper professional standards of medical practice and in order to preserve or improve the quality of life, the medical practitioner incurs no civil or criminal liability for any act or omission.

Miles Crawley
Solicitor
Piper Alderman Solicitors

 

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Alison Hunter Memorial Foundation
PO Box 6132 North Sydney 2059 Australia
Phone/Fax +61 2 9958 6285

 

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