With some exceptions, any intrusion on the body of another person is an assault (or trespass) unless that person has consented to the intrusion. If physical or emotional harm results from the assault, the victim may sue for damages, otherwise known as compensation. This is quite distinct from the right to sue for damages due to professional negligence, although in practice there may be some overlap.
Free and Informed Consent
In order to consent legally to something which is otherwise illegal, a person has to understand what they are consenting to. There are no hard and fast rules to cover every situation, and there is no specific legislation on the subject. The Civil Liability Act has set a disclosure standards for professionals, including medical professionals that requires the medical professional to disclose:
- information that a reasonable person in the patient’s position would require to make a reasonably informed decision as to whether to undergo the treatment; and
- information that the medical practitioner knows or ought reasonably to know the patient wants to be given before making the decision.
Although this definition goes to medical negligence, it also helps to define consent, in that a person cannot give consent without this type of knowledge. For example, knowing that a procedure that may cure a disease in the eye could also cause blindness – this is information that both a reasonable person would want to know, and that a medical practitioner would know the patient would want to know before making a decision.
A person who is given insufficient information about a particular procedure or the risks involved, or who is given that information in a way that they don’t fully understand, cannot consent to that procedure because there is no understanding of what is being consented to.
The patient does not need to be told about ordinary risks such as infection with surgery or the accepted risks of anaesthesia. Rightly or wrongly, the courts have held that a normal person would be aware of these. The courts are also sympathetic to the desire of doctors and hospital staff not to cause undue anxiety in the patient. A degree of professional judgment can be used about the extent to which risks are stressed. However, there would have to be a good medical reason for keeping a patient ignorant of a fact which may well have influenced their decision to consent.
The other element of a valid consent which should be stressed here is that it must be freely given. A patient who consents to some procedure because they believe that the hospital will otherwise refuse admission or that no other help will be made available is not freely consenting.
The hospital has to prove that consent was obtained. It will be necessary to show that consent was freely given and informed. A consent form is just one piece of relevant evidence. Unless it includes all the information about procedures, risks and alternatives, it does not prove that the patient was given all the facts. It also does not preclude the possibility that the patient withdrew consent after signing the form. When asking a patient to consent to a particular procedure, health professionals should stress that they do not want to force the patient to consent and that, if the patient refuses, they will still do what they can to help.
Who Can’t Consent?
An essential element of a valid consent is that the patient is capable of understanding the thing to which they are consenting and its consequences. This means that minors, unconscious patients, some disabled people, and certain psychiatric patients are incapable of giving their consent.
In the case of children, the consent of the parent or legal guardian must usually be obtained as most children are not in a position to legally consent to medical treatment. However, given that the notion of ‘a child’, at least in theory, encompasses young persons up until the age of 18, it is necessary to have regard to the position of the ‘maturing minor’. A child’s capacity to consent to medical treatment will depend on their level of maturity and understanding. Thus, rather than relying on an arbitrary fixed age at which a child can legally give consent, these cases hold that it is necessary to assess whether the child understands the nature and implications of treatment in order to decide whether the child can legally consent to that treatment.
In practice, there is little difficulty where the child and the parent (or legal guardian) are both in agreement for the treatment to proceed. However, the scope of a child’s authority to consent to treatment, in particular that of a maturing minor, is most likely to be tested in circumstances where the young person presents without the parent or guardian, seeking contraceptive advice or treatment, or possibly an abortion. In these circumstances it is necessary for the doctor providing the treatment to carefully assess the young person’s level of understanding. The more substantial and invasive the procedure is, the greater the level of capacity and maturity required of the young person. It may be prudent, in such cases, for doctors to explore with that young person whether they are willing for a parent to be involved.
In circumstances where the child is incapable of giving consent, Part 6 of the Guardianship and Administration Act 1995 (Tas) makes it clear that the parents or guardian of the child are the persons responsible for treatment decisions for the child. The only exception is in circumstances where the child is married, in which case it is the child’s spouse who has legal authority to make medical treatment decisions for the child.
It should be noted that there are some procedures in respect of which parents (or the child’s legal guardian) lack legal authority to provide a valid consent, such as non-therapeutic sterilisations and bone marrow transplants for the benefit of a relative. In these circumstances, application would need to be made to the Family Court for authorisation before such treatment can proceed. Authorisation will only be granted if the Family Court is satisfied that the proposed treatment promotes the child’s best interests.
In circumstances where an adult person is incapable of giving consent, either because of permanent disability or due to the person being unconscious, the provisions of the Guardianship and Administration Act come into play. This Act makes provision for substitute consent to be given by another adult person defined in the Act as a ‘person responsible’. The ‘person responsible’ can legally consent to all forms of medical and dental treatment except those classified as ‘special treatment’ under the Act. Special treatment is defined under the Act as including:
- termination of pregnancy,
- removal of non-regenerative tissue for transplantation,
- drugs of addiction used for more than 10 days in 30 except when used to treat cancer or to provide palliative care of a terminally ill patient,
- aversives — mechanical, chemical or physical;
- psychosurgery and other neurological procedures ; and
- any other treatment classified as a special treatment.
In the case of ‘special treatment’ the Guardianship Stream of the Tasmanian Civil and Administrative Tribunal (TASCAT) can consent to treatment on behalf of the person.
The Guardianship and Administration Act defines ‘person responsible’ in relation to an adult patient as one of the following in priority order:
- a guardian — provided the guardian has been granted power to give consent to medical or dental treatment;
- a spouse or de facto spouse — where there is a close and continuing relationship;
- a carer — where the carer provides or arranges for domestic services and support on a regular basis and is unpaid;
- a close personal friend or close relative — where there is both a close personal relationship through frequent personal contact and personal interest in the person’s welfare, on an unpaid basis.
Any consent to medical or dental treatment given by a person responsible must be in their charge’s best interest. Matters which must be taken into account by the person responsible before giving consent to treatment are:
- the wishes of the person;
- the likely consequences if the treatment is not carried out;
- any alternative treatments that may be available;
- the nature and degree of any significant risks;
- that the treatment is carried out to promote or maintain the wellbeing of the person.
Consent to medical treatment by the person responsible usually must be in writing. If the situation is urgent, consent may be given orally, however written confirmation must be given as soon as possible.
Refusal to Consent
There is nothing much a hospital or doctor can do if a fully capable adult patient refuses treatment, however unreasonable such a refusal might be. The only course open is to find out why the patient will not consent and to deal with any reasons given.
With children, the parent or guardian’s refusal to consent can be overcome by taking power out of that person’s hands. The Secretary of the Department of Health can apply for a care and protection order which may contain specific orders relating to the care and protection of the child and the need for medical treatment.
Under the Human Tissue Act 1985 (Tas) a blood transfusion may be administered to a child without the consent of the parent if:
- two medical practitioners agree the child is in danger of dying; and
- the first medical practitioner is satisfied that the blood to be transfused is compatible with the blood of the child.
When Consent is Not Required
Consent is not required where treatment is authorised under a court order. No consent is required at common law if the treatment is of an urgent, lifesaving nature and consent cannot be obtained because the patient is unconscious, or the patient’s parent or legal guardian cannot be contacted. In such a case, the hospital would be able to use the defence of necessity if any legal action followed.
Consent is not required where treatment is authorised by legislation. This includes compulsory blood tests on traffic accident patients, persons charged with other than minor offences, and certain patients under the Mental Health Act 2013 (Tas).
The Guardianship and Administration Act 1995 also sets out certain circumstances where consent is not necessary. The legislation recognises that there are some situations where a substitute consent is not possible or is not needed. There are three categories:
Trivial or minor treatment: Some minor treatment is excluded from the definition of medical and dental treatment:
• non-intrusive examinations of ears, eyes, nose and throat for diagnostic purposes;
• first aid;
• the administration of non-prescription drugs.
Where there is no person responsible: Despite the expanded definition of person responsible, there will be situations where there is no relative or carer or friend available to make a decision about medical treatment (s41). In such cases it is possible to carry out the medical or dental treatment without consent if the doctor certifies in writing in the patient’s clinical record that:
• the treatment is necessary and will most successfully promote the patient’s health and well being;
• the patient does not object to the treatment; and
• the proposed treatment does not include one of the excluded treatments (i.e. special treatment).
Urgent medical or dental treatment: Substitute consent is not necessary where the treatment is urgent. In addition to treatment to save life or prevent serious injury to health, including mental health, treatment that prevents the person suffering or continuing to suffer significant pain or distress may also be given without consent. However the Guardianship Stream of the Tasmanian Civil and Administrative Tribunal (TASCAT) strongly recommends that caution be exercised before treatment is administered in these circumstances. If possible a consent to the proposed treatment should always be obtained from the person responsible or the Tribunal should be contacted and the matter investigated. It may be more appropriate to appoint the Public Guardian to consent to treatment.