Consent to medical treatment

powered by CoolJargon
 

A person responsible for a person with disability may consent to the carrying out of any medical or dental treatment, but must act in the best interests of the patient. No medical research procedure, medical or dental treatment, including emergency treatment, can be carried out if there is a Refusal of Treatment Certificate in force.

Definitions and relevant provisions

“Person responsible”

If a person with a disability is incapable of giving consent to medical and dental treatment (including medical research procedures), it is not usually necessary to have a guardian appointed to consent to such treatment. Part 4A of the GAA sets up a scheme whereby a “person responsible” is able to consent to medical or dental treatment.

Incapable of giving consent

Refers to an adult patient with a disability who is either:

incapable of understanding the general nature and effect of the proposed procedure or treatment; or

incapable of indicating whether or not they consent to the treatment.

Medical or dental treatment

This refers to any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care normally carried out by or under the supervision of a registered doctor; or any dental procedure, operation or examination normally carried out by or under the supervision of a registered dentist (s 3(1)). The person responsible can consent to medical research procedures (as defined in the GAA).

Special procedures are excluded, and so are first-aid treatment, general examinations for diagnostic purposes, and the giving of drugs in the prescribed or recommended doses.

Special procedures

This refers to procedures that do, or are likely to, result in the patient being permanently infertile, for the termination of pregnancy, or for the removal of tissue for transplantation to another person (s 3(1)).

Person responsible for patient

This is the person highest on the list (set out in s 37 GAA) who is responsible for the patient, and is available, willing and able to make the decision in relation to the proposed treatment:

a an agent appointed by the patient under the MTA;

b a person responsible appointed by VCAT to make the decision;

c a guardian appointed by VCAT who has power to make the decision;

d an attorney appointed for personal matters by the patient with power to make the decision;

e a person appointed in writing by the patient to make such a decision;

f the patient’s spouse or domestic partner;

g the patient’s unpaid primary carer; or

h the patient’s nearest relative as defined in section 3.

The person responsible may consent to the carrying out of any medical or dental treatment, and in making the decision must act in the best interests of the patient (as defined in s 38), taking into account:

a the wishes of the patient, so far as they can be ascertained;

b the wishes of any nearest relative or any other family members of the patient;

c the consequences to the patient if the treatment is not carried out;

d any alternative treatment available;

e the nature and degree of any significant risks associated with the treatment or any alternative treatment; and

f whether the treatment to be carried out is only to promote and maintain the health and well-being of the patient.

Where the procedure is a medical research procedure, that person responsible must not act contrary to the best interests of the patient and must take into account:

a the wishes of the patient, so far as they can be ascertained;

b the wishes of any nearest relative or any other family members of the patient;

c the nature and degree of any benefits, discomforts and risks for the patient in having or not having the procedure; and

d any other consequences to the patient if the procedure is or is not carried out.

Consent to treatment

No medical research procedure, medical or dental treatment, including emergency treatment, can be carried out if there is a Refusal of Treatment Certificate in force with regard to that treatment (s 41). These certificates are covered by section 5 of the MTA, and are brought into force by the patient, the agent they have appointed, or a guardian appointed by VCAT (as described above; see alsoEnduring power of attorney (medical)” in Understanding powers of attorney).

In cases of emergency treatment, a registered practitioner may carry out a special procedure or medical or dental treatment on a patient without consent if the practitioner believes on reasonable grounds that the treatment is necessary, as a matter of urgency to save the patient’s life; to prevent serious damage to the patient’s health; or in the case of medical or dental treatment, to prevent the patient from suffering or continuing to suffer significant pain or distress (s 42A(1)).

In cases of a special procedure (unless it is emergency treatment), only VCAT may give consent (s 39) if it is satisfied that the patient is incapable of giving consent; and that the special procedure would be in the best interests of the patient (s 42E).

In cases of any medical or dental treatment and medical research procedures the “person responsible” for the patient may give consent (s 39). Medical and dental service providers should obtain information as to who is the person responsible when a patient is admitted to their care. Often hospitals will ask for the next-of-kin, but this may not be the person responsible as set out in the legislation. The naming of a non-family member as next-of-kin at a hospital is unlikely to meet, by itself, the criterion of a “person appointed in writing by the patient to make such a decision” and to make that person the “person responsible” for the patient.

In cases of first-aid treatment, general examinations for diagnostic purposes and the giving of drugs in the prescribed or recommended doses, no consent is required.

What if there is no “person responsible” or they can’t be found?

A registered practitioner may proceed with medical or dental treatment without the consent of the person responsible (except where there is a refusal of treatment certificate in effect) if they have first made reasonable efforts to ascertain whether there is a person responsible and, if so, to contact that person to obtain their consent to the proposed treatment; and if they believe on reasonable grounds that the proposed treatment is in the best interests of the patient (s 42K).

In these circumstances the registered practitioner must first notify OPA. The form of the notice can be obtained from OPA’s office or its website. OPA will confirm with the practitioner that the requirements of section 42K have been met, but does not provide consent to the treatment. It may, however, make an application to VCAT about any matter relating to medical or dental treatment.

If the procedure is a medical research procedure and the person responsible cannot be found, the procedure may proceed only where the medical practitioner complies with the process of procedural authorisation. The process involves the provision to OPA of a certificate that complies with section 42T. For information about procedural authorisation visit OPA’s website (at www.publicadvocate.vic.gov.au).

What if the “person responsible” withholds consent to medical/dental treatments?

If a practitioner consults the person responsible, and they do not consent, the practitioner may proceed with treatment (except where there is a refusal of treatment certificate) only if:

they believe on reasonable grounds that the treatment is in the best interests of the patient;

within three days after the person responsible withholds consent, the practitioner gives to that person and OPA a statement under section 42M; and

within seven days after receiving the statement, the person responsible does not apply to VCAT (s 42L(1)).

The section 42M statement referred to above must be in writing and must be dated and signed by the practitioner. It must state that:

the person responsible has been given information about the nature of the patient’s condition to an extent that would have enabled the patient to decide whether or not to consent to the treatment;

the person responsible has not consented; and

the practitioner believes on reasonable grounds that the treatment is in the best interests of the patient.

If the person responsible does apply to VCAT within seven days after receiving the statement, VCAT must hear and determine the application within seven days after receiving it, and the practitioner must comply with the determination of VCAT. If the person responsible appeals from an order of VCAT that the treatment is in the best interests of the patient, the practitioner must await the determination of the appeal (s 42L(2)(d)).