Medical consent

Generally, doctors can’t treat a patient without their consent or without the consent of someone who can make decisions for them.

When you need legal advice

Get legal advice if you need to apply to the:

  • Family or Federal Court for a decision about special medicalprocedures on a childʼs behalf
  • Queensland Civil and Administrative Tribunal for a decision about a special health care matter for another

How to get legal advice

 Medical consent for adults

Deciding who can consent to medical treatment—for themselves or someone else—depends on the patient’s legal capacity.

An adult (a person over 18) can give their consent to or refuse medical treatment if they:

  • understand the doctor's information about the treatment
  • can make reasonable choices based on this 

Consenting for someone who doesn’t have capacity

If an adult doesnʼt have capacity, someone else must make these decisions on their behalf. A person can consent to medical treatment on another adultʼs behalf if they are nominated as one of the following:

  • an enduring power of attorney
  • an advanced health directive
  • statutory health attorney. 

Enduring power of attorney

This enables a named person to make medical decisions for an adult if the patient becomes unable to make a decision for themselves. 

Find out more about powers of attorney.

Advance health directive

In an advance health directive you can record (sometimes called a ʻliving willʼ), is a document containing instructions about your future health care. It comes into effect when you become unable (don't have capacity) to make the decisions yourself.

An advance health directive:

  • outlines what type of treatment you wish to have (or not have) and any specific instructions about your medical treatment
  • includes information for health professionals, such as health conditions, allergies, religious, spiritual or cultural beliefs that could affect your health care
  • may also appoint someone else (an ‘attorney’) to make health and decisions for you.

Find out more about Advance Health Directives.

Statutory health attorney

If you haven’t made an advance health directive or appointed someone as an enduring power of attorney and you’re unable to make your own decisions, then the law allows certain people to legally make decisions about your health on your behalf. They are called a ʻstatutory health attorneyʼ.

A statutory health attorney can be:

  • your spouse
  • your carer, including someone receiving a carerʼs pension
  • a close adult friend or relative
  • the Public Guardian, when there is no one else one else. A paid carer can’t be a statutory health attorney.

Special health care matters

Some health decisions can only be made if someone has an enduring power, attorney or advance health directive—a statutory health attorney cannot make them. These are known as ʻspecial health care mattersʼ and include:

  • donating tissue for a transplant—a person cannot consent to organ transplants for someone else while the adult is alive
  • sterilisation—such as a vasectomy, tubal ligation or hysterectomy
  • abortion
  • special medical research or experimental health

If there is no advance an enduring health directive or power of attorney, and the patient cannot make their own decisions, then the Queensland Civil andAdministrative Tribunal (QCAT) must consent the procedures.

You can apply to QCAT about a special health care matter on behalf of an adult if you’re an interested person. You should get legal advice.

QCAT can then decide whether you’re appropriate to be an interested person.

Children and young people under 18

Most of the time, a parent or guardian can agree to treatment for a child or young person under 18. Children can make decisions about their own medical treatment if they are capable of understanding why the treatment is important.

Going to the doctor by yourself

If you are younger than 18 and want to go to the doctor on your own, youʼll need to think about how you will pay for the doctor. Some doctors bulk bill under the government health system called Medicare. This means you wonʼt have to pay. In other cases, you will have to pay, but you can get some of the money refunded from Medicare.

Youʼll need to show your Medicare card or your parentʼs Medicare card when you go to the doctor.

If youʼre over 15, you can apply for your own Medicare card. If youʼre under 15, youʼll need to use your parentʼs card. If youʼre aged 14 and older, Medicare wonʼt give information about your treatment to your parents, but if you use your parentʼs Medicare card, they may find out that youʼve seen a doctor.

Consenting to your own medical treatment 

Except for immediate, life-threatening emergencies, a doctor must get your consent for any medical treatment. Some doctors or hospitals may require your parentsʼ agreement if youʼre under 18.

You can consent to or refuse:

  • minor medical treatment, such as treatment for colds or acne
  • more complicated medical treatments, such as contraceptives, if the doctor is satisfied that
    • you understand what the treatment is and what it involves, and
    • you understand any consequences and related risks—such as effects on your health, potential complications and side effects and
    • the treatment is in your best.

To consent to medical treatment, you must be able to make a decision on what is proposed and explain why you made that decision. Your parents can only agree or refuse medical treatment on your behalf if you arenʼt mature enough to make your own decisions. In this case, the decision must be made in your best interests.

The doctor will consider:

  • your maturity and intelligence
  • whether you understand what the recommended medical treatment is
  • why the medical treatment is needed
  • what the medical treatment involves
  • any risks related to it, such as effects on your health, potential complications and side effects.

If you're 16 or over, doctors will generally assume that you have the capacity to consent to medical treatment.

If you're under 16 years old, you will have to prove your capacity to consent.

Sometimes, you may not be able to refuse a treatment, even if you understand the treatment and its consequences. For example, you cannot refuse a blood transfusion on religious grounds or refuse treatment for an eating disorder.

If you, your parents and your doctor disagree about treatment, a court may need to decide what will happen—and must consider what is in your best interests.

Except for immediate, life-threatening emergencies, a doctor must get your consent for any medical treatment. Some doctors or hospitals may require your parents’ agreement if you’re under 18.

Special medical procedures

Certain special medical procedures can only be done if a court or QCAT permits them. You must get the permission of a court or Tribunal for special medical procedures—even if you have your parent’s consent. These are known as special procedures:

  • ʻnon-therapeuticʼ treatments (such as sterilisation or gender reassignment operations)
  • organ donation when a child cannot give informed consent
  • life-saving treatment that the parents or guardian will not agree to (e.g. a recommendation that a child be put on life support)
  • significant treatment/s that the parents or guardian disagree about—including sensitive or ethically controversial issues (such as gender decisions for a child born with both genitalia)
  • treatment in a life-threatening situation that a child

You can apply to a court or tribunal about a special medical procedure for a child if you are:

Get legal advice if you are considering requesting a court or QCAT for a special medical procedure order. 

How to get legal advice

We cannot give advice about statutory health authorities, advance health directives or preparing powers of attorney.

We may give legal advice on matters relating to medical consent. 

If you're making a medical negligence claim, you may be eligible for help through the Civil Law Legal Aid Scheme.

Contact us

Other places to get legal advice:

Who else can help?

Related information

Disclaimer: This content is for general purposes only and not legal advice. If you have a legal problem, please contact us or speak to a lawyer. View our full disclaimer.

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