Consent to medical treatment
Medical and dental practitioners must gain consent from an authorised person before treating a person with a decision-making disability who is unable to provide informed consent to treatment. The only exception is where urgent treatment is required (see below).
Section 119 of the Guardianship and Administration Act 1990 specifies that consent must be given by the person first in order of priority in the following list:
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guardian of the person needing the treatment
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spouse or de facto partner of the person needing the treatment
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a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so
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a person who is the nearest relative (other than the spouse or de facto partner) who maintains a close personal relationship with the person needing the treatment, is over 18 and reasonably available, in order of priority in the following list:
Service providers such as allied health professionals have no authority under this section of the Act to provide consent for treatment.
More information is provided in the Office's position statement in the downloads section below.
Urgent treatment
Where the person concerned needs urgent treatment, the required consent may be waived if the medical practitioner or the dentist believes it is not practicable to obtain consent.
Urgent treatment is treatment needed to save the life of the person, to prevent serious damage to the person's health or to prevent the person suffering or continuing to suffer significant pain or distress.
Capacity to consent to medical and dental treatment
The responsibility for ensuring a person understands the nature and consequences of the treatment proposed and for obtaining consent to treatment, lies with the medical practitioner or dentist.
If they have concerns about a person's capacity to consent to treatment and cannot find a person in the above hierarchy to provide consent, then consideration should be given to applying for a guardian to be appointed.
When to apply for a guardianship order
There are a number of medical-related circumstances where, in the view of the Public Advocate, an application for a guardianship order should be made to the State Administrative Tribunal. These include:
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there is no one who comes within the description of persons listed in section 119 of the Act and treatment is required
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the person authorised to consent to treatment under section 119 is unwilling or unable to perform this role or cannot be contacted
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there is conflict about the adult's capacity to consent to the proposed treatment
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the person for whom the treatment is proposed objects to the treatment
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an adult lacks the capacity to consent to a sterilisation procedure.
Role of the Public Advocate
When there is no-one else suitable or willing to act as guardian, the Public Advocate may be appointed by the State Administrative Tribunal as guardian of last resort with authority for medical treatment and health care.
The Public Advocate as guardian must:
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advise medical practitioners in writing of their responsibilities to seek consent for medical treatment from the Public Advocate
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advise in writing, all allied health staff and carers providing treatment or administering medication of the Public Advocate’s treatment and health care authority
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gather all of the relevant information to help make decisions about the person’s treatment or health care and the cost of such treatment or care. This includes the expressed views of the person or such views as can be gained by their previous actions. This information may be gathered from the person affected, from family members, the treating practitioner, carers, service providers, the administrator or attorney of the person affected and other interested parties
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make decisions about the person's treatment or health care.
The Public Advocate may also:
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request and/or attend case conferences and review meetings to discuss health care matters
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attend a medical appointment between the represented person and their treating doctor to gain more information about complex treatment decisions and the views of both parties
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request written reports following medical (or other health) reviews and assessments
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consider a second medical opinion as part of the process for determining whether to provide consent
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request a treatment plan, when the represented person is admitted to a health care facility or when major health concerns have been raised or diagnosed
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make complaints to appropriate authorities, on the person's behalf, about health care matters
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seek directions from the Tribunal regarding a person's treatment and health care, where appropriate.
The Public Advocate does not take the place of relatives, friends, carers or paid service providers helping the person with a decision-making disability. It is important that the person continues to receive the services, support and care provided by service providers, family and friends.
The Public Advocate does not:
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provide or withhold consent to treatment without information from the treating medical practitioner
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make practical arrangements for medical appointments, such as transport arrangements
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attend routine medical appointments with the person
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provide or administer medications or treatments
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supervise the taking of medication or ensure medication/treatment compliance
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develop treatment or health care plans, or provide detailed referral information to new health care providers
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pay for medical reports or services or negotiate fees for health care interventions, where such fees apply.
For more information download the position statement titled Role of the Public Advocate as Guardian of Last Resort with Limited Authority for Medical Treatment & Health Care, from the downloads section below.
Last Updated:
11-Mar-2009
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