What is medical consent?
Registered doctors cannot treat a patient without valid agreement (called consent) from the patient.
A person over 18 can consent to or refuse medical treatment if they can understand the practitioner's information about the proposed treatment and can make reasonable choices based on this information. This is called capacity. If a person lacks this capacity another person must make decisions on their behalf.
For children under 18, the law gives a parent or guardian the authority to agree to treatment in most cases. A child may make decisions about their own medical treatment if they are capable of understanding its significance.
When can somebody consent to medical treatment on my behalf?
- When there is an Enduring Power of Attorney authorising someone to make a medical decision on your behalf.
- When you have made an Advance Health Directive. An Advance Health Directive (sometimes called a "living will") is a document in which you give instructions about your future health care. It becomes effective only if you become incapable of making your own decisions sometime in the future. It must be in an approved form and clearly state what type of treatment you wish to have or not have or if you have any specific instructions about treatments, medical conditions, religious, spiritual or cultural beliefs. Forms can be downloaded for free from the Department of Justice website.
- When you have a Statutory Health Attorney. If you have not made an Advanced Health Directive or appointed someone under an Enduring Power of Attorney to look after your health matters and you become unable to make your own decisions, for example you are unconscious in hospital or suffer a brain injury, then the law allows certain people to make some decisions about your health for you. They are called a Statutory Health Attorney.
The sorts of people who can be a statutory health attorney are:
- a spouse
- your carer, but not a paid carer (although your carer may receive a carer’s pension)
- a close adult friend or relative who is not a paid carer
- the Public Guardian where there is no one else to act.
Is consent enough?
There are some health decisions a statutory health attorney may not make for you. If you do not have an Advanced Health Directive or an Enduring Power of Attorney in relation to these issues then the Queensland Civil and Administrative Tribunal (QCAT) has to consent to the procedures. These procedures are called special medical procedures and are:
- tissue donation (permission for organ transplants cannot be given while the adult is alive)
- sterilisation (vasectomy, tubal ligation or hysterectomy)
- termination of pregnancy, or
- special medical research or experimental health care.
You may need to get the court to agree to medical treatment that permanently affects the quality of life. These treatments are called special medical procedures and include:
- sterilising a child who has a significant intellectual disability
- organ donation when a child is unable to give informed consent
- medical practitioners recommending life saving treatment but parents or guardians refuse to agree to the treatment, eg parents refuse for child to be put on life support
- parents or guardians disagree about significant, recommended treatment
- sensitive or ethically controversial issues eg gender needs to be decided for a child born with both genitalia
- treatment refused in a life-threatening situation eg child suffers anorexia nervosa and refuses treatment.
Who can apply for a special medical procedure court order?
For children, courts consider requests from:
- a person authorised by a parenting order
- a child
- an independent children's lawyer
- anyone concerned with care, welfare and development of a child.
For adults, the Queensland Civil and Administrative Tribunal (QCAT):
- can consider requests from the adult themselves or another interested person
- can decide who is an appropriately interested person
This area of law is complex and before going to court you should get legal advice.