Informed Consent Legislation NSW

Informed Consent Legislation NSW

Informed Consent Legislation NSW

In NSW, before undergoing a medical procedure, your doctor is legally required to obtain your informed consent. Healthcare professionals must explain the medical procedure, possible risks and treatment options.

Find out more about consent to medical procedures, valid consent, capacity and the associated legal implications.

Let’s take a closer look.

What Is Informed Consent?

Consent means that a person gives permission for something to happen and agrees to proceed. Under common law, competent adults can consent to and refuse medical treatment. 

To comply with current legislation and requirements, medical practitioners must obtain consent for medical procedures. Informed consent must be properly obtained, and comply with legal, ethical and professional guidelines. As part of their duty of care and best practice methods, medical practitioners must ensure their patients understand their proposed medical procedure, treatment plans, potential risks and associated costs. If informed consent is not established, it may result in legal action.

How Can Consent Be Given?

A person can give consent verbally, in writing or by implied behaviour. For example, implied consent may be inferred from a person’s actions. Express consent means the consent is clear and unmistakably communicated.

Health professionals may record consent in an oral statement, voice signature, signed hardcopy or a digital document.

How Is Valid Consent Obtained?

Medical practitioners must ensure that consent is valid, or treatment is not permitted. Four legal requirements must be satisfied before treatment can begin. 

  1. The patient must have the capacity to provide consent for the medical procedure.
  2. Consent must be given freely, not coerced or pressured.
  3. Consent must be specific to the medical procedure.
  4. The patient must be explained the procedures risks and details, and be sufficiently informed before the treatment.

Capacity To Provide Consent

The Guardianship Act states that a person must be able to do the following before they can consent to medical treatment;

  • Weigh up the consequences of the medical procedure and understand the nature and effect of the decision
  • Effectively communicate their understanding to the doctor
  • Understand the choices

In certain circumstances, a person may not be capable of giving consent. Some examples where they cannot consent may include:

  • Impairment to decision-making ability
  • Incapacity to understand the effects of the medical treatment
  • Incapable of advising that they wish to proceed

There are several reasons why this may occur, for example, a person suffering from mental illnesses, dementia, brain injuries, intellectual disabilities, or someone who is under the influence of drugs or alcohol or is under fourteen years old. Language barriers can also be considered a valid consent obstacle.

Consent Given Freely

Consent is only valid if given voluntarily. A voluntary decision should be free from manipulation, coercion, undue pressure or deception. 

A person must have sufficient time to understand the request and time to obtain advice if required. When a person needs assistance before giving consent for a medical procedure, a family member, friend or doctor can assist, only if they do not influence against the persons’ wishes.

Consent Specific To The Medical Procedure

Consent must be sufficiently specific to the medical treatment, which means that a person can consent to a single procedure instead of an entire course of treatment. A person can decide what medical procedure or treatment they want. Treatment beyond the scope of what has been consented to is an infringement on personal rights and may be considered a form of assault or battery to their body. 

Given Risks And Sufficiently Informed

Before undergoing a medical treatment or plan, patients must be properly informed about any material risks. Doctors must discuss the diagnosis, recommended range of treatments, significant risks associated with the treatment or surgery, and significant personal risks relating to health, age and associated medical conditions.

They must help their patients understand the medical procedures through discussion and ensure they are advised of all the relevant facts before providing consent. 

Who Can Be A Substitute Decision Maker?

When a person does not have the capacity to consent, legislation states who is to be appointed to make medical treatment decisions on their behalf.

Guardianship legislation outlines the criteria to follow when appointing a substitute decision-maker. Medical practitioners must consult the first person on the list, and the hierarchy, as follows, must be followed as per the legislation;

  • Appointed guardian
  • Spouse
  • Unpaid carer
  • Family member or close friend

A parent or legal guardian can provide consent for children who cannot do so themselves.

What Happens If You Do Not Provide Consent?

If a medical practitioner or doctor performs a procedure without obtaining consent, a person may be entitled to pursue a civil liability claim, which may result in financial compensation. A person can receive further information from the New South Wales Government Health Care Complaints Commission or a legal professional if consent is not obtained.

If the procedure was necessary, life-saving or due to an emergency, the law protects healthcare professionals, as they are not liable under these circumstances.

Summary

To comply with current legislation and requirements, healthcare professionals must obtain consent for medical procedures. Informed consent must be obtained properly, complying with legal, ethical and professional guidelines. Healthcare professionals must ensure patients understand their proposed medical procedure and potential outcomes.

A doctor can obtain legal consent when four legal requirements are satisfied before treatment. The patient must have the capacity to provide their consent and understand the procedure. Consent must be given freely, be specific and properly informed.

When a person does not have the capacity to consent, the legislation outlines the procedure that the medical practitioner must follow when appointing a substitute decision-maker who can make medical treatment decisions on their behalf.

If informed consent is not established, it may result in legal consequences. If the procedure was necessary, life-saving or due to an emergency, the law protects healthcare professionals, as they are not liable under these circumstances.

FAQs

1. What Are The Legal And Ethical Considerations For Informed Consent?

To comply with current legislation, lawful requirements and best practice, healthcare professionals must obtain consent for medical procedures and warn patients of the material risks before treatment. Failure to obtain informed consent may result in a civil liability claim.

If a medical practitioner or doctor performs a procedure without consent, a person can obtain information from the New South Wales Government Health Care Complaints Commission or a legal professional.

A doctor should obtain consent properly and comply with legal, ethical and professional guidelines. The Guardianship Act states four legal requirements that must be satisfied before treatment. A capacity to understand the information provided. Consent should be voluntary and specific to the medical procedure discussed.  

2. What Is The Legislation Of Informed Consent In Australia?

As part of their duty of care, healthcare professionals must ensure their patients understand their proposed medical procedure, treatment plans, significant risks and likely costs.

A medical practitioner must comply with current legislation by obtaining consent for medical procedures and warning patients of the potential risks before treatment.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Informed Consent Legislation or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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