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Consent » Competence and Substitute Decision Making

Guidelines and Policies

Consent guidance: patients and doctors making decisions together UK
General Medical Council
This guidance sets out the principles on which good clinical decisions should be based. It provides a framework for good practice that covers the various situations that doctors may face in the course of their work. The guidance concentrates on decision-making in the context of investigations or treatment; but the principles apply more widely, including decisions on taking part in research, and decisions at the end of life.

Substitute Consent: What the Law Says [PDF]   NSW
Office of the Public Guardian
Guidelines on the law of consent and substitute consent in NSW. Also provides guidelines on how to obtain consent from the tribunal or public guardian.

Substitute Decision Making Guidelines [PDF]  NSW
NSW Guardianship Tribunal
Guidelines on what substitute consent is and when, under the Guardianship Act, it is required.

Legislation

Guardianship Act 1987 NSW
NSW Parliament
The Act provides guidance on who can make medical decisions for a person deemed to lack capacity and the duties of the decision maker. Also provides the Tribunal and Courts to consent to certain types of treatment. S33 provides guidance on when a person should be considered incapable of providing consent.

Guardianship Regulation 2005 NSW
NSW Government
Provides regulations regarding consent under the Guardianship Act for certain types of medical treatment and the keeping of records.

Toolkits and Protocols

Capacity Assessment
A quick guide for healthcare consumers & healthcare providers
Providence Healthcare, St. Joseph’s Health Centre, & St. Michael’s Hospital.

Capacity Toolkit NSW
Attorney General
Provides an overview and checklist for assessing a person’s competence to make an advanced care directive or decisions about medical or dental treatment.

Clinical Ethical Decision-Making Framework
Ontario Shores Centre for Mental Health Sciences (Ontario Shores)

Competence and Capacity
Ethics & Health Law News

Consent
Ethics & Health Law News

Consent
Nuffield Council on Bioethics

Consent and capacity
British Medical Association

Consent form from the BMA and Law Society – for England and Wales
British Medical Association

Consent form from the BMA and Law Society – for Scotland
British Medical Association

Consent Guidance: patients and doctors making decisions together UK
General Medical Council
This guidance sets out the principles on which good clinical decisions should be based. It provides a framework for good practice that covers the various situations that doctors may face in the course of their work. The guidance concentrates on decision-making in the context of investigations or treatment; but the principles apply more widely, including decisions on taking part in research, and decisions at the end of life.

Consent to Medical Treatment – Patient Information
NSW Department of Health

Consent: patients and doctors making decisions together PDF
General Medical Council

Consent Tool Kit 5th Edition UK
British Medical Association
The tool kit consists of a series of cards relating to specific areas of consent such as providing treatment to children; consent and research; and obtaining consent for teaching purposes. Separate cards have been produced identifying factors to be considered when assessing competence and determining “best interests”.

Consent to Treatment: Procedure
ACT Health

Consent: UK Clinical Ethics Network UK
UK Clinical Ethics Network
Summary of the legal and ethical considerations concerning consent in health care in the UK, including issues that might present to a Clinical Ethics Committee.

Determining whether to consent to contraception, menstrual regulation or menstrual suppression [PDF]  NSW
Office of the Public Guardian
Outlines when the Public Guardian will or will not consent to contraception, menstrual regulation or menstrual suppression.

Determining whether to consent to proposed medical or dental treatment
[PDF]   NSW
Office of the Public Guardian
Outlines what the Public Guardian will take into consideration and the information it needs to make a decision regarding a person’s medical or dental treatment.

Determining whether to consent to the testing for and treatment of HIV or AIDS [PDF]  NSW
Office of the Public Guardian
Position statement of the public guardian as to what they will consider and take into account when deciding whether to consent to testing and HIV treatment for a person who is incapable of providing consent.

Determining whether to consent to treatment proposed for a person with an eating disorder [PDF]  NSW
Office of the Public Guardian
Outlines when the public Guardian will or will not consent to restrictive procedures for the treatment of a person with an eating disorder.

End of Life Care Decisions and People Under Guardianship [PDF]  NSW
Office of the Public Guardian
The position statement of the public guardian regarding all end of life, palliative care and ‘no CPR’ decision making.

Ethical Obligations about Informed Consent
The center for ethical practice

Ethics and the vulnerable patient
UK Clinical Ethics Network

Forms
Consent and Capacity Board

Guardianship Tribunal Information – Person Responsible [PDF]  NSW
NSW Guardianship Tribunal
Under the Guardianship legislation, if a person is unable to consent to treatment a person responsible can consent in their place. This fact sheet outlines who is the person responsible and their role and responsibilities.

Guardianship Tribunal Information – Special medical consent guidelines [PDF]   NSW
NSW Guardianship Tribunal
For a person who lacks the capacity to consent to medical treatment, only the tribunal can consent to special medical treatment. This includes: sterilisation, termination of pregnancy, use of psychotropic medication or androgen reducing medication.

Informed Consent
University of Illinois College of Medicine

Informed consent – guidelines for health care professionals
Public Advocate of the ACT

Making substitute health care decisions
The Office of the Public Guardian and Trustee – Ontario

Substitute Decision-Making
Ontario Partnership on Aging and Developmental Disabilities (OPADD)

Substitute decision making and older people
Australian Institute of Criminology

Substitute decision-making for people lacking capacity
Inquiry
Parliament of New South Wales

Cases

Application of Justice Health; re a Patient [2011] NSWSC 432 NSW
A prison inmate with end stage lung cancer had lost his competence. Brereton J found that the preservation of health did not require the provision of futile treatment and the authorities could discontinue life-sustaining treatment and make a not-for-resuscitation order. There was some concern that this might not be possible because the Crimes (Administration of Sentences) Act 1999, s 72A, states that medical treatment must be supplied to inmates to preserve their health.

BE (Review Guardianship) [2012] TASGAB 22 TAS
Limits on consent – the administration of drugs of addiction

Dean v Phung [2012] NSWCA 223 NSW
The general test for competence is that the patient should understand the broad nature and purpose of the proposed treatment.

Department of Health and Community Services (NT) v JWB (Marion’s Case) (1992) 175 CLR 218 Cth
Case of a 14 year old girl with a severe intellectual disability. Her parents wished her to be sterilised. The court held that this was not a procedure that parents could consent to. Discusses the role of parents in consenting and refusing treatment and the assessment of competence in a minor or person with an intellectual disability.

FM (Review Guardianship and Medical Consent) [2012] TASGAB 24 TAS
Limits on consent – administration of drugs to control behaviour.

MAW v Western Sydney Area Health Service[2000] NSWSC 358 NSW
Discusses the requirement of consent and the powers and limits of parens patriae – that is, the power of the court to provide consent in certain situations. In this case the wife of a man in a persistent vegetative state wished to have his sperm extracted in order to have a child.

Re C (adult, refusal of medical treatment) [1994] 1 All ER 819 UK
not publically available
A patient suffering from paranoid schizophrenia was found to be competent to refuse treatment. Lord Goff outlines three stages in deciding whether the patient can understand the nature, purpose and effects of the proposed treatment: 1. Can the patient comprehend and retain information. 2. Does the patient believe the information. 3. Can the patient weight the information, balance the risks and make a choice?

Re KH (A child) [2012] EWHC B18 (Fam) UK
Application by an NHS Trust for declarations in relation to the best interests of a severely disabled child and, in particular, as to his medical treatment in the event that his condition should deteriorate. A declaration was made to authorise an advanced care plan to withdraw CPR, ventilation and antibiotics from a child severe brain damaged by viral encephalitis.

Re T (adult: refusal of treatment) [1992] 4 All ER 649 UK
Looks at the scope of refusal of treatment and the need to ascertain whether a person has the capacity to refuse treatment.

TS & DS v Sydney Children’s Hospital Network (“Mohammed’s case”) [2012] NSWSC 1609 NSW
Garling J refused to force doctors to provide mechanical ventilation when parents sought an order requiring treatment for their child. Garling J was highly critical of quality of life assessments. His Honour found that the treatment would not cure Mohammed, not prevent his inevitable death but it would cause significant pain and discomfort.

Papers, Reports and Books

Decision-Making Capacity
Charland, Louis
The Stanford Encyclopedia of Philosophy (Summer 2011 Edition)

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