Substitute Consent

Why is Consent required?

Before medical or dental treatment is provided to a patient, the medical/dental practitioner has a professional and legal responsibility to obtain consent for the treatment.

The consent is only valid if the practitioner has told the patient about:

• the nature of the proposed treatment and its effects;
• the risks associated with the proposed treatment;
• alternative treatments (their nature, effects and risks) or the impact of undertaking no treatment.

The patient must be able to understand the treatment provided and agree to the proposed treatment before the treatment can be administered. The patient has a right to refuse or to withhold consent to the proposed treatment. If a patient is not able to comprehend the proposed treatment options or is unable to communicate their choice, the practitioner must seek lawful substitute consent.

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What is Substitute Consent?

In the context of the Guardianship Act 1987, 'substitute consent' refers to the situation where a patient is not capable of giving their own consent to the proposed medical or dental treatment. (See 'Why is Consent required?' above for an explanation of valid consent.)

Most patients are capable of understanding the information that medical and dental practitioners give them. Also, patients are usually able to indicate their consent to the proposed treatment or their refusal to consent to the proposed treatment.

If, however, a practitioner believes that a patient is not capable of giving a valid consent, then the practitioner has a legal responsibility to seek and obtain consent from a substitute decision maker.

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Provisions of Part 5 of the Guardianship Act

Part 5 of the Guardianship Act and the Guardianship Regulations relates to anyone 16 years and above who is incapable of consenting to their own treatment.

A person cannot give valid consent if they:

• cannot understand the nature and effects of the proposed treatment; or
• cannot communicate whether or not they consent to the treatment.

The Guardianship Act establishes:

• who can give valid substitute consent for treatment on behalf of a patient who is incapable of consenting (ie. who can be a substitute decision maker)
• when treatment can occur without consent
• the penalties for practitioners who fail to obtain a substitute consent when required.

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Who is a substitute decision maker?

A substitute decision maker is someone who has legal authority to make decisions on behalf of someone else.

A substitute decision maker can be:

• the person responsible (see 'Definitions' for a description of who classifies as a person responsible) or
• the Guardianship Tribunal.

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Obtaining medical consent

From a person responsible

Where a person responsible has been located, there may be a consent to medical/dental treatment form to be completed, in which they should indicate whether they consent or withhold their consent to the proposed treatment.

From the Guardianship Tribunal

1. Fill in a consent to medical and dental treatment application form (available from hospitals' administration or the Guardianship Tribunal).
2. Fax or mail the application to the Guardianship Tribunal.
3. The Guardianship Tribunal will convene a hearing and contact the treating practitioner. This is usually by phone, as soon as is required.
4. The Guardianship Tribunal will give or withhold consent at the hearing and will advise the applicant.
5. The applicant and patient will receive a written copy of the decision and the reasons for it.

From an appointed guardian

Where someone who is unable to give a valid consent already has a guardian legally appointed with the function of consenting to medical and dental treatments, that guardian can give a valid consent on behalf of the person. Sometimes, it is the Public Guardian who is the appointed guardian with this function. In these instances, the Office of the Public Guardian should be contacted (see contact details for the Office of the Public Guardian) to seek a valid consent.

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Definitions

Medical treatment:

any medical or surgical procedure, operation or examination and any other prophylactic, palliative or rehabilitative care normally carried out by, or under the supervision of, a medical practitioner.

Dental treatment:

any dental procedure, operation or examination normally carried out by, or under the supervision of, a dental practitioner.

Guardian:

is a legally appointed substitute decision maker appointed for a specified period of time and for specific functions.

Enduring guardian:

is appointed by a person to make lifestyle decisions on their behalf if and when the person becomes incapable of making their own decisions.

Person responsible:

has to be identified by the treating practitioner. A 'person responsible', in order of hierarchy, is:

1. a guardian (including an enduring guardian) who has the function of consenting to medical, dental and health care treatments or, if there is no guardian,
2. the most recent spouse or de facto spouse (including same sex partner) with whom the person has a close, continuing relationship or, if there is no spouse or de facto spouse,
3. an unpaid carer who is now providing care to the person or arranged/provided this support before the person entered residential care or, if there is no carer,
4. a relative or friend who has a close personal relationship with the person.

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Types of treatment and substitute consent required

...where a person is unable to give a valid consent

The Guardianship Act identifies four different categories of treatment - urgent treatment, major treatment, minor treatment and special treatment - and identifies who can provide substitute consent for each category of treatment.

Urgent Treatment

Urgent treatment refers to any medical or dental treatment which, in the opinion of the practitioner, is necessary as a matter of urgency to:

• save a person's life; or
• prevent serious damage to a person's health; or
• alleviate significant pain or distress.

Urgent treatment
Is substitute consent required?
NO

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Major Treatment

Major treatment proposed
Is substitute consent required?
YES
Who can give consent?

In order of priority:

1. Guardian, including enduring guardian, with authority to consent to medical/dental treatment
2. If no guardian, person responsible
3. If no person responsible or person responsible cannot be located, the Guardianship Tribunal. Consent must be in writing or confirmed in writing later.

Major medical treatment refers to any treatment that:

• involves general anaesthetic or other treatment, but not involving:
  • sedation for fractured or dislocated limbs or
  • sedation for inserting an endoscope into a patient's body for diagnostic purposes;
• involves the use of prescription-only drugs affecting the central nervous system (with the exception of those listed under 'Minor Treatment');
• involves administering long-acting injectable hormonal substances for the purpose of contraception or menstrual control;
• aims to eliminate menstruation;
• involves the administration of a drug of addiction for no more than 10 days out of 30, OR for the treatment of cancer or palliative care for a terminally ill patient (for other uses of drugs of addiction see 'Special Treatment');
• involves a substantial risk to a patient (eg. resulting in death, or brain damage, or paralysis, or permanent loss of function of any organ or limb, or permanent and disfiguring scarring, or exacerbation of the condition being treated, or unusually prolonged period of recovery, or detrimental change of personality, or high level of pain or stress);
• involves testing for HIV.

Major dental treatment refers to any treatment that:

• involves administering a general anaesthetic or simple sedation;
• results (or is likely to result) in the removal of all teeth;
• is likely to result in the patient's ability to chew food being significantly impaired for an indefinite or prolonged period.

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Minor Treatment

Minor treatment proposed
Is substitute consent required?
YES
Who can give consent?

In order of priority:

• Guardian, including enduring guardian, with authority to consent to medical/dental treatment
• If no guardian, person responsible
• If no person responsible or person responsible cannot be located, then practitioner can treat (must note in patient's records that treatment will most successfully promote the patient's health and well-being and that patient is not objecting).

Minor treatment refers to any treatment that is neither major nor special and includes:

• treatment involving general anaesthetic or other sedation only for
  • management of fractured or dislocated limbs
  • endoscopes inserted through an orifice, not penetrating the skin;
• presciption-only drugs that affect the central nervous system when:
  • used for analgesic, antipyretic, antiparkinsonian, antihistaminic, antiemetic, antinauseant or anticonvulsant purposes
  • PRN (as and when required) not more than three times per month
  • used for sedation in minor procedures
  • such medications are used only once.

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Special Treatment

Special treatment proposed
Is substitute consent required?
YES
Who can give consent?
Guardianship Tribunal only.

Special medical treatment refers to any treatment that:

• may result in the person becoming or reasonably likely to become permanently infertile; or
• is carried out to terminate a pregnancy; or
• results in a vasectomy or tubal occlusion; or
• involves the use of an aversive stimulus; or
• involves the use of drugs affecting the central nervous system, but only if the dosages or duration are outside the accepted mode of treatment for such a patient; or
• involves the use of androgen reducing medication to control behaviour; or
• involves the administration of a drug of addiction (other than use for the treatment of cancer or palliative care for a terminally ill patient) for more than 10 out of 30 days; or
• is a new treatment which has not gained the support of a substantial number of medical and dental practitioners, specialising in the field concerned (experimental); or
• is a declared special treatment under the Regulations.

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What happens when a patient objects?

Sometimes, even when a patient cannot give a valid consent to their own treatment, they may be objecting or have indicated previously that they object to the treatment. If a medical or dental practitioner considers that the patient should receive the treatment, then the practitioner must seek consent from the Guardianship Tribunal to override the patient's objection to treatment.

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Major/minor treatment proposed

Is substitute consent required?
YES
Patient has objected or is objecting
Who can give consent?

Must seek consent from:

• Guardianship Tribunal or
• an appointed guardian authorised by the Guardianship Tribunal to override objections of the patient.

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Further information

Further information is available in the following publications, which may be obtained from the Guardianship Tribunal or the Office of the Public Guardian.

• What does the Guardianship Tribunal do?
• Person Responsible
• Substitute medical & dental consent: The role of the Public Guardian

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The Guardianship Tribunal

Address: 2a Rowntree Street, Balmain, NSW, 2041
Postal Address: Locked Mailbag 9, Balmain NSW 2041
Phone: (02) 9555 8500
Fax: (02) 9555 9049
Tollfree: 1800 463 928
Email: gt@gt.nsw.gov.au
Website: www.gt.nsw.gov.au

Office of the Public Guardian:

Level 15, Piccadilly Tower, 133 Castlereagh Street, Sydney NSW 2000
PO Box A231, Sydney South NSW 1235
Phone: (02) 9265 3184 tollfree on 1800 451 510
Fax: (02) 9283 2645
Website: http://www.lawlink.nsw.gov.au/opg.nsf/pages/index

Blacktown office
PO Box 168, Blacktown NSW 2148
Phone: (02) 9671 9800
Fax: (02) 9671 9804

Gosford office
PO Box 487, Gosford NSW 2250
Phone: (02) 4320 4888
Fax: (02) 4320 4818

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