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What defines informed medical consent?

By Karen Crouch
The concept of informed medical consent might seem straightforward, but particular situations can complicate matters. KAREN CROUCH details who is able to give consent prior to a procedure.

While it may be logical to assume that obtaining a patient’s consent for a medical treatment is straightforward and routine, there are circumstances in which it may deserve much deeper consideration before a health practitioner proceeds to administer healthcare other than very simple treatments.

Regardless, the basic principle of patient consent prior to treatment is a ‘must do’. Apart from emphasising the importance of consent, we will examine the basic reasons for such action and potential dangers of overlooking or ignoring it.

The accepted requirement of all health practitioners is that it is imperative, in fact a legal requirement, to obtain consent from a patient prior to providing medical treatment.

And, of course, acquiring such consent goes beyond just securing a patient’s signature on the relevant form. It is of greater importance that the consent provided is “informed consent”, implying that the patient is fully aware of the need for the recommended treatment and the possible consequences of rejecting it.

Sometimes, it may be convenient to consider that the practitioner may have been attending to the patient’s needs for a long time and would be intimately familiar with the impact of any further treatments, thereby overlooking the need to fully inform the patient.

"Simply, a patient must understand all the issues associated with the treatment before they can make a proper and informed decision"

Alternatively, a practitioner may incorrectly assume that the patient has become familiar with treatment types and trusts the practitioner’s expertise. Either assumption would be inappropriate – the patient must be informed of the planned treatment for reasons detailed below.

Informed and aware

Simply, a patient must understand all the issues associated with the treatment before they can make a proper and informed decision. Issues that should be discussed include the nature and consequence of treatment, risks involved, alternatives available and the consequence of no treatment. Failure to obtain an “informed consent” prior to treatment could lead to a claim of assault against the health practitioner, particularly if the treatment is not successful or fails to meet reasonable expectations of the uninformed patient.

There are instances where the patient is unable to consent, as some may lack the capability to thoroughly understand and appreciate details. Depending on the patient-practitioner relationship, it may be necessary to ‘dumb down’ explanation of the treatment.

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It is important to understand whether consent is necessary in the particular circumstance, and from whom it should be obtained.

Where immediate treatment is necessary to save a person’s life or to prevent serious injury and that person is incapable of giving consent, such as a patient being insufficiently lucid due to serious head injuries, the practitioner may proceed with medical treatment.

Conversely, the presence of an unequivocal written direction not to treat in the manner required may prevent the practitioner from proceeding. This is a complex area of the law and practitioners may need to obtain further advice in these circumstances.

Person responsible

In a non-life-threatening situation with time to find a person responsible for the patient, the following rules apply:

‘Person responsible’ for a minor is either a parent or guardian, or Family & Community Services where the minor is in the care of the state.

For a person over 16 years, in accordance with the Guardianship Act 1987 hierarchy:

  • guardian,

  • appointed guardian,

  • spouse or de facto,

  • carer,

  • close relative or friend.

When obtaining consent from the ‘person responsible’ it is important to provide them with the same information that would be provided to the patient, so that the person responsible can make an informed decision on behalf of the patient.

There is no obligation to accept the position of ‘person responsible’ and a person may decline in writing to take on this role. A practitioner is able to certify, in writing, that a particular person is incapable of assuming the role of ‘person responsible’ where they feel that that person is incapable of fulfilling the role.

In the case of minor treatment, and where the ‘person responsible’ cannot be found, a practitioner may make the decision to go ahead with treatment as long as it is necessary, appropriate, and there is no objection from the patient. Naturally, appropriate documentation of such circumstances is recommended.

It is important for practitioners to understand their rights and responsibilities in relation to patient consent for medical treatment.

This can be a very complex area and you should contact your MDO when encountering a situation you are unsure of.


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