Voluntariness and Consent

There is a preference under the Mental Health Act 2013 to provide assessment, treatment and care in the least restrictive setting consistent with clinical need and patient welfare, as well as to promote voluntary over involuntary assessment and treatment. The Act defines voluntary admission as being with the person’s consent, or with the consent of a parent or guardian if the person lacks the capacity to give informed consent. However, the Act is largely concerned with involuntary admission.

However, if the patient meets the criteria for involuntary hospitalisation and there is no less restrictive alternative, the patient may become an involuntary patient.

Consent to Treatment

Consent — the general position

The law presumes all adult persons to be fully capable of conducting their own affairs. As a general rule, no medical service should be provided unless the patient consents to the service. This applies even though medical treatment will benefit the patient and a failure to agree to the treatment may subsequently result in damage to the patient. It is not for the health provider to decide whether or not treatment should be commenced. It is for the individual patient to consent.

Improper, inappropriate or careless medical treatment which injures the patient can leave the treating health professional open to charges of negligence even if consent to the procedure is obtained.
Procedures or treatments administered without patient consent may lead to actions in trespass or assault. It is of no importance that the treatment was either expertly given or considered necessary by the treater. It is only in circumstances of a genuine medical emergency that it is permissible to give treatment without consent.

Consent to treatment for mental illness

The law, however, recognises that persons lacking mental capacity are an exception to the general rule. A person with a mental illness may be able to consent to treatment, or they may refuse, or they may be incapable of consenting to treatment.

In circumstances where an involuntary patient is unable to consent to treatment, the Mental Health Act permits treatment subject to the treatment being authorised by the Tribunal as a consequence of a treatment order, or where the treatment is urgent.

If a person is refusing or failing to have treatment for a mental illness or is likely to refuse or fail to have treatment for their mental illness, and their illness is amenable to treatment, and a medical practitioner has recommended the treatment, the Tribunal may hold a hearing on application and may make an order authorising the giving of medical treatment for a period specified in the order.

Informed consent

The requirements for informed consent are either set down in legislation, as they are under the Mental Health Act, or they come from the common law.

The common law requirements for informed consent are that:

• the patient be given information which they can understand about the particular treatment or procedure;
• the information should be specific and all the patient’s questions should be answered;
• the consent obtained should be given voluntarily and no pressure or duress should be applied to the patient to provide consent;
• the patient has the capacity to give informed consent.

Any treatment which is given without first meeting these four common law conditions means that the treatment is a medical assault.

Under the Mental Health Act informed consent is required before the administration of medical treatment. The standards laid down for informing a patient about these treatments provide a useful guide to determining whether consent is informed. The Act defines informed consent as requiring that each of the following be observed:

• the person must be given a clear explanation of the treatment which includes a candid description of the advantages and disadvantages of the treatment, including information about the common or associated side-effects;
• the person must be advised of alternative treatments, as well as their advantages and disadvantages;
• any questions asked by the person, including questions about techniques or procedures, must be answered candidly;
• any other relevant or important information deemed to be so by the treating medical practitioner, or the person, must be disclosed;
• the person must be given an opportunity to obtain independent medical or legal advice.

It is the duty of the treating team to make sure that each of these steps is followed.

Informed consent is not necessary in the event of an emergency or where the patient cannot give consent because of unconsciousness.

For more information on consent to medical treatment and the role of guardians, contact the Guardianship Stream of the Tasmanian Civil and Administrative Tribunal.