Informed consent can be a complex area of medicine, especially when the patient is incapable of doing so themselves. KAREN CROUCH says practitioners need to understand their rights and responsibilities.
It is imperative to obtain consent – or permission to proceed – from a patient prior to providing medical treatment.
It is of greater importance that the permission to proceed with the recommended treatment is an “informed consent”. A patient must understand all of the issues associated with the treatment before they can make a proper and informed decision to proceed.
Issues that should be discussed with a patient include the nature and consequence of treatment, risks involved, alternatives available and the possible impact of not receiving the treatment at all.
Failure to obtain an informed consent prior to treatment could lead to a claim of assault against the practitioner.
However, there are certain instances where the patient is unable to consent. In such situations, it is important to understand whether consent is necessary in the particular circumstance and from whom an alternative form of consent could or 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 (for example, a patient is rushed into the emergency ward with serious head injuries and is not sufficiently lucid as a result), the practitioner may proceed with medical treatment without consent.
This is assuming that the treatment administered is, in the opinion of the practitioner, the most appropriate to apply.
However, despite the dire situation described herein, 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 before proceeding in these circumstances.
When it is not a life-threatening situation and there is reasonable time to identify and contact the ‘person responsible’ for the patient, the following rules apply:
The following person/s or authority are responsible for:
A minor:
- Where the minor has a parent or guardian – the parent or guardian.
- Where the minor is in the care of the state – Department of Community Services.
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 him/her 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 also entitled to certify, in writing, that a particular person is incapable of assuming the role of ‘person responsible’ where they feel that person is unsuitable to perform the role. A supporting reason for the certification is recommended to address any subsequent challenge to the opinion.
In the case of minor treatment, and where the person responsible cannot be found, a medical practitioner may make the decision to go ahead with treatment as long as it is necessary, appropriate (for example they would clearly qualify as a ‘minor’ treatment), and there is no objection from the patient.
It is important for medical practitioners to understand their rights and responsibilities in relation to medical consent.
This can be a very complex area of medicine/law and you should contact your medical defence organisation, otherwise known as MDO, when encountering a situation you are unsure of.
ABOUT THE AUTHOR: Karen Crouch is Managing Director of Health Practice Creations Group, a company that assists with practice set ups, administrative, legal and financial management of practices. Contact her on 0433 233 478, kcrouch@hpcnsw.com.au or www. hpcgroup.com.au.
