Hot Topics 64 - Health and the Law - Legal Information Access Centre

Objective risk information is best given with the
assistance of printed materials with adequate time for
the patient to reflect upon it and discuss it with friends
and relatives. More information about material risks is
required for a ‘cosmetic’ procedure than for surgery that
is clinically indicated for preservation the patient’s life
or immediate health and would have been proceeded
with regardless of the answer given. Serious risks, like
death, stroke or paralysis should be mentioned even
if they are remote. Relatively minor injuries – such as
bruising after a doctor has inserted a plastic cannula into
a vein, or damage to the front teeth on intubation by
an anaesthetist – may be material if they are frequent.
Unusually inquisitive patients may need to be given
more risk information: see Chappel v Hart.
9
Patients should ask for the risk information to be given
to them in writing so they are able to take time to
consider it at home. When asked to sign a ‘consent form’
the patient should ensure that they are able to think
clearly; that they have not been given a ‘pre-med’, for
example, or are unable to think clearly for some other
reason. If they have particular concerns, they should
be sure to note these on the form, or have the doctor
record them, as well as any answers given. If language
is a difficulty they should ask for a translator. Even if a
patient signs a consent form, this is not conclusive proof
that all the matters mentioned in the form have been
discussed with the patient or understood by them.
The doctor should mention whether he or she has any
conflict of interest (for example, holding shares or a
managerial position in a company marketing a product
or device that will be used in the procedure). If the
doctor also wants to include you in a research project,
that consent discussion should take place separately.
WHen maY less infOrmaTiOn Be
giVen?
There are several situations in which less information
may be justifiable.
The first is in an emergency. Treatment may be given
without any information or consent if it is necessary
to protect the patient’s life or health (Guardianship
Act 1987 (NSW), s 37(1)). If, for instance, a patient
is unconscious, a health professional may perform
whatever procedures are reasonably necessary in the
circumstances to preserve the patient’s life or health. It is
not necessary to obtain the consent of the patient’s next
of kin, although that is generally done as a courtesy.
The second case in which less information may be
required is when the patient waives the right to be
given information. Ethically, a doctor should confirm
that the reasons behind such a refusal do not involve a
misunderstanding.
The third situation is a doctor’s limited discretion
(therapeutic privilege) not to disclose information where
he or she has reasonable grounds to believe, and is
prepared to document, that disclosure of the information
may itself harm the patient (for example, if the patient
is suicidal or mentally ill). Mere anxiety in the patient is
not a sufficient reason under this ground for a doctor to
withhold information; see Rogers v Whitaker . 10
capaciTY TO cOnsenT
The principles that people may not be given medical
treatment without their consent, and that they are
entitled to adequate information to make an informed
choice, apply to competent adults (that is, to people over
18 who are able to understand their condition and the
options for treatment). The same applies to withholding
consent and refusing treatment.
If the person is a child (under 18), either parent or a
guardian may generally consent to a medical procedure
and the parent or guardian is entitled to the same
information as an adult patient. However, an older
child may also be able to consent if sufficiently mature
to understand the procedure. This will depend on
the child’s age and level of maturity and also on the
particular procedure. Even relatively young children
can consent to simple procedures for their own
good, such as a vaccination. On the other hand,
greater maturity and understanding will be required
for procedures that are risky or contentious, such as
contraception (Gillick’s case [1986] AC 112). In the
cases of abortion, reproductive sterilisation, or medical
procedures concerned with contraception of a mentally
handicapped minor, the parent or appointed guardian
alone cannot consent and the guardianship tribunal
must be involved and possibly a court (Guardianship Act
1987 (NSW) Part 5; Marion’s case 11 ).
People who have an intellectual disability or mental illness
may not be able to consent to medical treatment. Again,
this will depend on the patient’s level of understanding
(which may fluctuate) and the nature of the procedure.
If the impairment is slow to develop, persons may make
an enduring power of attorney allowing a nominated
person to give consent to lawful medical treatment
on their behalf and to its withholding or withdrawal
(Powers of Attorney Act 2003 (NSW) Part 4).
If a person has impaired decision-making capacity due
to permanent or long-term disability, and is over 18,
consent may be given by a person appointed under the
Guardianship Act 1987 (NSW).
9. Chappel v Hart [1998] HCA 55, per Kirby J at [99], available at www.austlii.edu.au/au/cases/cth/HCA/1998/55.htmll
10. Available online at http://www.austlii.edu.au/au/cases/cth/HCA/1992/58.html
11. Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) [1992] HCA 15;
available at www.austlii.edu.au/au/cases/cth/HCA/1992/15.html
Overview of Health Law in Australia 5