Research

When a patient is unable to give consent

From time to time it’s necessary to provide treatment to a patient in circumstances whereby he or she is unable to give the usual consent to proceed with the planned operation.Of course, it is common knowledge that a patient’s consent is required prior to undertaking a treatment – in normal circumstances. However, have you considered the regulations that govern administration of such healthcare services in situations where the patient is unable to give consent?{{quote-A:R-W:450-Q: In the case of a child, it is the person with parental responsibility for the child. However, if the child is in the care of the State, it is the Director General }}Before considering options for proceeding without patient consent, it is wise to first understand exactly who can consent to treatment (guardian, ‘person responsible’ or ‘substitute’), the definition of each party, and their respective roles.This includes a number of scenarios under which the ‘person responsible’ may qualify and is defined in the Guardianship Tribunal Act 1987 (NSW). It is important to note the Guardianship Tribunal does not appoint the ‘person responsible’. In the case of a child, it is the person with parental responsibility for the child. However, if the child is in the care of the State, it is the Director General.A ‘person responsible’ must be taken from the following hierarchy: an appointed guardian (if one exists); the most recent spouse or de facto, should they have a close and continuing relationship with the person; an unpaid carer or the carer at the time the person entered residential care, or; a relative or friend who has a close personal relationship with the person.What are the rights of a ‘Person responsible’?

  • A person may decline to act as a ‘person responsible’ in writing, or alternatively, a medical practitioner, or other qualified person, may certify in writing that the person identified as the ‘person responsible’ is unable to consent on the patient’s behalf
  • A person acting as the ‘person responsible’ must be provided with all the same information as the patient would have been given if he/she was in a fit condition to give consent.

What if a guardian or ‘Person responsible’ cannot be found?

  • In this situation, ‘substitute’ consent must be obtained from the Guardianship Tribunal by application for a guardian to be appointed. The procedure involves preparation and submission of an application consent form for treatment, following which the tribunal will convene a hearing to either give or withhold permission. Their decision will be communicated to the medical practitioner with a copy of the order given to the patient and applying practitioner.

What if a patient who is unable to consent, objects to treatment?

  • The medical practitioner must seek permission to proceed from the Guardianship Tribunal to override the patient’s objection
  • However, there are certain conditions under which the guardian or ‘person responsible’ may disregard the patient’s objection to treatment:
  • The patient has minimal or no understanding of what the treatment may entail
  • The treatment will cause the patient no distress, or if some distress, the distress is likely to be reasonably tolerable and transitory in nature.

Who can give consent?

  • Minor treatment: A guardian or ‘person responsible’ is permitted to authorise consent on behalf of a patient when minor treatment is proposed
  • Major treatment: Where a major treatment is involved, consent may also be given by the guardian or ‘person responsible’
  • Absence of guardian or ‘person responsible’: In their absence, permission may be obtained from the Guardianship Tribunal as detailed above
  • Special Treatment: Where this form of treatment is required, only the Guardianship Tribunal is authorised to consent
  • Urgent Treatment: Where treatment is required to save a person’s life or prevent/alleviate serious damage/pain, no consent is required.

As a practice may encounter any of the above situations, it is advisable to be properly prepared, particularly in the event that an application is necessary to the Guardianship Tribunal, either for general guidance and advice, or provision of the relevant application forms where ‘substitute consent’ is required.

What if a patient, considered unable to consent, objects to treatment?In this circumstance, the medical practitioner must seek permission to proceed from the Guardianship Tribunal to override the patient’s objection. However, there are certain conditions under which the guardian or ‘person responsible’ may disregard the patient’s objection to treatment:

  • The patient has minimal or no understanding of what the treatment may entail, and;
  • The treatment will cause the patient no distress, or if some distress, the distress is likely to be reasonably tolerable and transitory in nature.