Consent

When you go to a doctor such as a general practitioner or another health professional, that person must obtain your consent before any treatment or procedure, such as an operation, is started. As the Charter says, a patient has a right to be included in discussions about choices available for treatment and in making decisions. The Charter also requires health care practitioners to communicate in a clear and open way about treatment options, available services and costs. Therefore the patient must be given all necessary information before consenting to treatment or refusing to consent.

Requirement for Consent

Before a health practitioner undertakes any procedure on treatment, that health practitioner must obtain the consent of the patient. There is no exemption for health practitioners including doctors. Refusal of consent must be respected even if, in the doctor’s professional opinion, the proposed treatment or procedure would be in the patient’s best interests, or that the refusal of consent is not reasonable. The requirement for consent to be obtained is a recognition of the dignity and autonomy of the patient - another matter required by the Australian Charter of Healthcare Rights. The right to give or refuse consent to medical treatment or experimentation is a human right recognised in Article 7 of the International Covenant on Civil and Political Rights and in Section 10(2) of the Human Rights Act 2004 (ACT). Treating a patient without having valid consent may lead to an action for trespass to the person otherwise known as assault.

What Information Must the Patient be Given?

What Information must the Patient be Given

In order for a patient’s consent to be valid, the patient must be given sufficient information so that an informed consent may be given. The information required includes:

• accurate, up-to-date details about the patient's medical condition and prognosis (what the doctor predicts will be the effect of the medical condition);
• the available options for investigation or treatment and their advantages and disadvantages, including what is likely to happen if nothing is done;
• the recommendation of the doctor;
• the availability of more skilled or experienced doctors.

Court cases dealing with what information must be provided for an informed decision to be made has been primarily concerned with the type and amount of information in the circumstances of potential risks. In the landmark case of Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, the High Court determined that each patient must be warned of material risks in the procedure or treatment to be undertaken. The court spelled out the test of what is material as follows:

[A] risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

This means that the patient should be warned of risks that are reasonably likely or are of particular concern to the patient in the circumstances.

The circumstances include:

• the nature of the patient’s condition
• the nature of the proposed treatment
• the seriousness or likelihood of the risk - the more serious the possible risk (eg death, paralysis), even if remote, the greater requirement to warn the patient - also minor risks that occur frequently (eg bruising caused by associated procedures such as inserting a tube into a vein)
• concerns of the patient raised by questions or comments to the doctor
• the surrounding circumstances of the case (eg emergency procedures).

If a risk should have been mentioned and injury has occurred, the patient may take action against the relevant health professional and allege negligence in having failed to adequately inform the patient.

When May Less Information be Given?

Evidence of Consent

Capacity to Consent

Children

Patients with Intellectual Impairment or Mental Illness

Right to Refuse Treatment

Making Medical Treatment Decisions when the Patient is Unable to Give Consent

Advance Directives or 'Living Wills'

How Directions are Given

Obligations of Health Professionals

Mental Capacity