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Consent » Requirement to Inform and Obtain Consent

Guidelines and Policies

Consent to Medical Treatment – Patient Information NSW
NSW Health
Requirements for the provision of information to patients and obtaining consent to medical treatment.

General Guidelines for Medical Practitioners on Providing Information to Patients Cth
NHMRC
Types of information doctors must discuss with patients when deciding on treatment –information patient’s should be given, informing patients of risks, and circumstances when it can be withheld. Reflects the doctor’s duty at common law.

Guidelines on Consent for Anaesthesia or Sedation Australia
Royal Australian and New Zealand College of Anaesthetists
Outlines the requirements for obtaining consent under the common law in Australia.

Informed Consent Policy Australasia
Royal Australasian College of Surgeons
Outlines the college’s position on informed consent.

Informed Financial Consent Australia
Australian Medical Association
AMA’s policy position on obtaining Informed Financial Consent as part of the doctor-patient relationship.

Reference Guide for Consent to Examination or Treatment, 2nd ed UK
Department of Health provides a guide to the legal framework that all health professionals need to take account of in obtaining valid consent for any examination, treatment or care that they propose to undertake.


Legislation

Civil Liability Act 2002 (NSW) s5P NSW
General test for Standard of Care under this act – accepted medical practice, does not apply when a doctor is alleged to have been negligent in failing to provide information to a patient.

Guardianship Act 1987 (NSW) s37 NSW
Outlines the statutory need for consent in cases where the patient is incapable of giving consent: who may give consent and when consent is not necessary.

Guardianship Regulations
2005 (NSW) NSW
Provides definitions of special and major medical and dental treatment and the requirements for consent to be in writing if practicable.

Mental Health Act 2007 (NSW) NSW
Provides for non-consensual treatment for patients considered mentally ill or mentally disordered. Must be for the person’s own protection from serious physical harm or protection of others from serious physical harm.

Toolkits and Protocols

A Doctor’s Duty to Warn (failure to Warn) [PDF]    Australia
Royal Australian and New Zealand College of Radiologists
Provides a concise overview of the duty to warn.

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.

Cases


Chappel v Hart (1998) 195 CLR 232
Cth
Doctors must provide information on risks even if the procedure is clinically necessary. Case of vocal chord nerve damage after necessary oesophageal surgery.

Dean v Phung [2012] NSWCA 223 NSW
The treatment in question was unnecessary, was therefore a battery and the consent had been vitiated by misrepresentation.

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. McHugh’s judgement provides an argument that the onus of proving consent or other justification is on the defendant. The plaintiff need only prove that the doctor applied direct force to the patient’s body.

Dewan v Medical Board of Australia (Occupational and Business Regulation) [2012] VCAT 1327 VIC
Failure to seek informed consent resulted in a surgeon being found guilty of unprofessional conduct for operating on a child and removing part of his bowel without making adequate investigations.

Hart v Herron (1984) Aust Torts Reports ¶80-201 NSW
Case of a man at Chelmsford Hospital who underwent Deep Sleep Treatment and Electro Convulsive Therapy. It was held that even though the patient had voluntarily admitted himself to the hospital, this did not imply consent to the treatment provided. The patient was further successful in suing for false imprisonment. Note the link is to a further appeal case in 1996.

Ljubic v Armellin [2009] ACTSC 21 ACT
Patient had consented to hysterectomy but her ovaries were also removed. The judge found that the removal of the ovaries without consent was an actionable trespass. Shows that a practitioner’s honest and reasonable belief that the patient has consented is not a defence to trespass.

Medical Board of Australia v Steinberg (Occupational and Business Regulation) [2012] VCAT 218 VIC
A doctor was guilty of unprofessional conduct for not having informed his pregnant patient, before labour, of material risks, benefits and modes of delivery, especially in relation to instrument-assisted vaginal delivery and a caesarean section.

Re T (adult: refusal of treatment) [1992] 4 All ER 649 UK
Case of a woman needing a blood transfusion, ex Jehovah’s witness, views on blood transfusion uncertain despite signed refusal of treatment form. Consent need not be in writing, can be implied from conduct.

Rogers v Whitaker (1992) 175 CLR 479 Cth
Outlines requirements for consent to treatment  and the need for patients to be informed in broad terms of the nature of the procedure intended, to avoid a claim in trespass. It also outlines doctor’s duty to provide information about material risks of a procedure to a patient. Failure to do so can result in a claim in negligence. Notes that a signed consent form is not conclusive evidence that the patient agreed to the procedure or was adequately informed of the risks.

Rosenberg v Percival (2001) 205 CLR 434 Cth
Comments on the outcomes of the Rogers v Whitaker case. McHugh J outlines matters relevant to whether a risk is material or not.

Reeves v R [2013] NSWCCA 34 NSW
All that was necessary for consent in criminal law was a basic understanding of the nature of the procedure. The jury had been misdirected by the trial judge on the nature of consent. Nevertheless, it was clear that the patient had not consented to the removal of her labia and clitoris. Bathurst CJ found that the doctor’s guilt was beyond a reasonable doubt.

Wallace v Kam [2013] HCA 19 (8 May 2013) Cth
The High Court found that the policy of informed consent is to protect a patient from injury, the risk of which is unacceptable to them. Where the injury actually sustained is not the result of such risk, there can be no liability. The patient’s claim was unable to satisfy the two limb causation test.

Papers, Reports and Books

Intentional Tort Claims in Medical Cases
Tina Cockburn and Bill Madden, (2006) JLM 311.

Legal disputes over duties to disclose treatment risks to patients: A review of negligence claims and complaints in Australia
M Bismark et al, (2012) 9 (8) PLOS Medicine e1001283.

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