Medical and dental treatment requires valid consent from the patient. If a patient lacks capacity, consent should be sought from their person responsible, except in situations where the treatment is urgent and necessary to save a person’s life or prevent serious damage to their health.
This fact sheet summarises what patients, carers and health service providers need to know about valid informed consent.
What is informed consent?
Patients have a right to information about their health care and to make informed decisions about the treatment they receive. Health care providers need to obtain valid consent before examining or treating a patient.
For consent to be valid, the provider needs to ensure that the patient has:
- the capacity to provide consent.
- a good understanding of the general effect, material risks, benefits and alternatives of the proposed procedure or treatment.
- been informed about fees and charges before starting treatment.
- given their consent voluntarily and without any pressure to do so.
A patient can also refuse consent to treatment they do not want.
Health care providers should give patients enough information about the proposed treatment to enable them to make an informed decision. Providers should encourage patients to ask questions to clarify anything they do not fully understand. This dialogue can assist providers to understand a patient’s comprehension of the information and whether they have capacity to provide informed consent. The health provider should not assume what the patient knows or understands.
While the provider needs to ensure the patient has all the relevant information, it is the responsibility of the patient to weigh the information and make an informed decision.
If it can be established that a provider has not provided the relevant information required for the consent to be considered valid, they could be charged with assault or risk legal liability for a complication or adverse outcome, even if it was not caused negligently.
What should be discussed with the patient?
- Common side effects and risks
- Whether the procedure is conventional or experimental
- Who will undertake the intervention
- Other options for diagnosis and treatment
- The degree of uncertainty of the diagnosis and any therapeutic outcome
- The likely outcome of not having the diagnostic procedure or treatment or of not having any procedure or treatment at all
- Any significant long term physical, emotional, mental, social, sexual or other outcome which may be associated with the proposed intervention
- The time and cost involved including any out of pocket expenses.
Capacity to consent
A person must have the capacity to understand and communicate what they are agreeing to for their consent to be valid. Some people, whether permanent or temporary, may lack capacity to consent. Where this is the case, a substitute decision maker can give consent on their behalf.
Substitute decision makers
A substitute decision maker can make a decision about treatment on behalf of a person who lacks capacity, in the person’s best interests. The substitute decision maker must consider all of the relevant information and must have the legal authority to act in this role.
Substitute consent is not required for:
- urgent treatment needed to save a person’s life
- to prevent serious damage to their health
- for minor treatment that is necessary and in the person’s best interests and which the person who lacks capacity does not object to
- if there is no person responsible or they cannot be contacted.
- treatment or testing provided under certain legislation or required by a Court.
Informed consent for children
Children under 14 years of age are considered to lack capacity to consent to their own treatment. Consent for treatment must be obtained from a child’s parent or legal guardian until the child turns 14. Consent can be obtained from one or both parents (regardless of marriage status), unless a Court Order has been made that gives one parent the sole responsibility.
For children in care, the person or agency with ‘parental responsibility’ can consent.
Informed consent for young people
From the age of 14, a minor may be mature enough to give their own consent. Health practitioners should assess whether the young person is capable of consenting and if not, should seek the consent of their parent or guardian. A young person’s valid consent cannot be overruled by their parents.
From 16 years of age, the consent of a young person is generally viewed as sufficient.
Informed consent for adults who lack capacity
Where a person is temporarily or permanently incapable of giving consent, a person responsible can consent to or refuse medical treatment on behalf of the person.
Health providers should determine who the person responsible is and obtain informed consent from them prior to treating the patient. This could be a legally appointed guardian, or their spouse, unpaid carer, family member or friend who has a close and continuing relationship with the person. The NSW Guardianship Tribunal can provide consent or appoint a guardian if a person responsible cannot be identified.
Contacting the Commission
If you are concerned that valid consent was not obtained prior to treatment or care being provided to a patient, you can contact the Health Care Complaints Commission. You can also find information on how to make a complaint on our website.
More information regarding consent can be found in the references listed below: