In this information sheet we explain what informed consent is, withdrawing consent and how consent applies to children.
In a medico-legal context giving informed consent to medical treatment, including consent to a surgical procedure, requires that the person making the decision is fully informed of the risks and benefits associated with the treatment/procedure and having the right to agree or refuse to undergo the treatment/procedure.
A healthcare practitioner who proposes providing treatment or performing a procedure of any kind of must obtain informed consent. This means that before the treatment or procedure is performed the patient must agree with a reasonable understanding of what it involves, including the risks, time frames and likely outcomes. In principle, if a healthcare provider does not have informed consent, undertaking the treatment/procedure may be a trespass/assault on your person and unlawful.
This principle may even extend to treatment which is potentially lifesaving if the patient clearly refuses to consent, as was the case in Brightwater Care Group (Inc) v Rossiter  WASC 229.
No. Consent to a medical procedure does not necessarily need to be provided in writing. It is enough to consent (or not consent) to a treatment verbally depending on the context in which the need for treatment arises. However, many healthcare providers will require a written consent to be signed as evidence of the consent given (or refused).
Yes. Consent may be withdrawn at any time before your procedure, even if you have signed a consent form. Further, simply signing a consent form does not necessarily mean that you have provided informed consent – your healthcare provider must still make sure you are properly informed about your procedure, the reason for it and the associated risks.
Yes. However, it is important to know that some parts of a procedure may be necessary for your health and safety, and a doctor may not be able to perform your procedure at all witout them. If a procedure can be safely performed without certain aspects you are not comfortable with, you are able to consent only to part of the procedure.
Yes. Despite the strong general principle that procedures may not be performed unless the patient gives informed consent, there are some situations where this is not the case. Some examples are outlined below.
Sometimes it will be assumed that a person has given consent, even if in fact they have not. The obvious example is an emergency presentation where the patient is unconscious or unable to communicate. The same can be said where the patient is able to communicate but is suffering from a disease of the mind such that they are unable to properly understand their condition or the treatment required.
In general, a healthcare provider may not assume consent to treatment unless treatment is required urgently and to save a person’s life.
As a general rule, those under 18 years of age are not considered to have the ‘capacity to consent’ and therefore are unable to consent to their own medical treatment. When a child is considered not to have the capacity to consent to medical procedures, their parent or legal guardian is usually able to consent to procedures on their behalf.
The rights of minors to consent to medical treatment in Australia was considered in Marion’s Case (Department of Health and Community Services (NT) v B (1992) 175 CLR 218). In this case the High Court held that the age of the child is not the only consideration, and that minors can have capacity to consent to their own medical procedures if they show that they have ‘sufficient understanding and intelligence to understand fully what is proposed’.
No. There are some things that parents cannot consent to on behalf of their child, even if that child does not have capacity to consent for themselves. In Marion’s Case, the High Court held that parents cannot consent to “special medical procedures” on behalf of their child. ‘Special medical procedures’ include treatments such as sterilisation (as in Marion’s Case) and treatments for gender dysphoria (Re Mathew  FamCA 1616).
In these cases, the Court will provide an order consenting to the treatment.
No, having a mental health condition alone is not justification for a Doctor forcing you to have treatment.
However, under the Mental Health Act 2007 (NSW), treatment may be administered without the patient’s consent if it is considered necessary for their protection or the protection of others from serious harm. Unless the person has a recognised mental illness, and the harm being protected against exists because of that illness, consent must still be obtained before any treatment is administered.
Patients may have medical conditions or disabilities which mean that they are considered not to have capacity to consent, even if they are adults. A court may instead make a decision based on how much is known about the patient and their preferences if they did have capacity to consent. When there is more evidence about what the patient would want, the law tends towards the “substituted-decision-making” principle, which usually means the person’s legal guardian will have more say on what happens with their healthcare. When there is less evidence, the law tends towards the “best interests” test, which will often mean that the person’s healthcare provider will have more say.
In NSW a person can appoint an Enduring Guardian to act on their behalf in respect of minor medical or dental decisions. A person may also make an Advanced Care Directive. The directive will outline references for medical care, beliefs, values and goals, and appoint a substitute decision-maker in the event that life sustaining treatment becomes necessary in the event of terminal illness. The rules and processes around Advance Care Directives vary from State to State, and you can find out more here.
If you have concerns about informed consent, or if you have been adversely impacted by a failure to properly inform or obtain consent, one of our expert solicitors can provide you with advice in a free initial consultation. Please call our office on (02) 4050 0330 to book an appointment online.