Informed consent

Informed Consent Process in Australia

Definition:

• Informed consent is a process by which a patient voluntarily agrees to a proposed medical treatment after being informed of the risks, benefits, and alternatives.

Key Elements:

• Voluntary: The patient’s decision must be made freely without coercion.
• Fully Informed: The patient must be provided with comprehensive information about the treatment.
• Capacity: The patient must have the legal and mental capacity to make the decision.

Steps in the Informed Consent Process:

1. Informing the Patient:
   • Explain the nature and purpose of the proposed treatment.
   • Detail the risks and benefits of the treatment.
   • Discuss alternative treatment options, including the option of no treatment.
   • Address the risks and benefits of refusing treatment.
2. Specific Issues When a Patient Refuses Treatment:
   • Explain the risks of refusing treatment.
   • Discuss the benefits of continuing with the treatment.
   • Outline the risks associated with continuing the treatment.
   • Highlight any potential benefits of refusing the treatment.
3. Discussion with Family and Patient:
   • If the patient has capacity and refuses treatment, their decision must be respected.
   • Engage with the family to understand their wishes and who consented to any previous treatments.
   • Document any advance directives, such as Not for Resuscitation (NFR) orders.
   • Respect the patient’s decision, considering their quality of life and end-of-life preferences.
   • If needed, consult the psychiatry team to ensure the patient understands the consequences and is not influenced by depression or impulsive emotionality.
4. Ethical Considerations:
   • Ensure the patient understands the risks, benefits, and consequences of declining treatment.
   • Identify any factors that might alter the patient’s capacity (e.g., disease, drugs, depression).
   • Recognize the role of religious beliefs and previously expressed intentions (advance directives) in obtaining consent.
5. Legal Aspects of Consent:
   • Right to Security of the Person: Legally, clinicians must obtain consent from the patient or their guardian.
   • Form of Consent: Consent must be voluntary, fully informed, and may be given orally or in writing.
   • Capacity to Consent: The consenting person must be legally capable, not a minor, and competent to understand the information and foreseeable consequences.
   • Incompetent Patients: If a patient is not competent, seek consent from a court, parent, or guardian.
   • Right to Refuse Treatment: Patients have the right to refuse treatment, and this decision must be respected, even if it may lead to their death.
   • Withdrawal of Consent: Patients can withdraw consent at any time, which must be respected and not affect the provision of care.
6. Exceptions to Consent Requirement:
   • Emergency situations where immediate treatment is necessary.
   • Mentally ill patients who pose a danger to themselves or others.
   • Legal provisions for compulsory treatment.
   • Treatment within the scope of previously given consent.

Australian Medical Association (AMA) Guidelines:

• The AMA emphasizes the importance of patients understanding the risks, benefits, and consequences of their treatment decisions.
• Consent must be free of coercion and reflect the patient’s legitimate intentions.
• Informed consent should include what a reasonable person would want to know in the given circumstances.

Key Exceptions to Consent Requirement

1. Emergency Treatment:
   • Legal Framework: Common law and state legislation.
   • Rationale: To save life or prevent serious harm when obtaining consent is not feasible.
   • Legislation Examples:
     • New South Wales: Under the Civil Liability Act 2002 (NSW), a healthcare provider can provide treatment without consent if it’s in the patient’s best interests and obtaining consent is impractical due to the urgency.
     • Victoria: The Medical Treatment Planning and Decisions Act 2016 (VIC) allows for urgent medical treatment without consent if the patient lacks decision-making capacity and the treatment is necessary to prevent significant deterioration in health.
2. Mentally Ill Patients:
   • Legal Framework: Mental health legislation in each state and territory.
   • Rationale: To ensure safety and appropriate care for those unable to consent due to mental illness.
   • Legislation Examples:
     • Queensland: The Mental Health Act 2016 (QLD) allows involuntary treatment for patients deemed to have a mental illness that poses a risk to themselves or others.
     • Western Australia: The Mental Health Act 2014 (WA) permits treatment without consent if the patient is unable to make a decision due to mental impairment and treatment is necessary for their health and safety or for the protection of others.
3. Compulsory Treatment Orders:
   • Legal Framework: Public health and court orders.
   • Rationale: To protect public health or enforce legal rulings.
   • Legislation Examples:
     • New South Wales: The Public Health Act 2010 (NSW) allows for compulsory treatment for infectious diseases if necessary to prevent the spread of the disease.
     • Victoria: The Public Health and Wellbeing Act 2008 (VIC) includes provisions for compulsory treatment to manage public health risks.
4. Treatment of Minors:
   • Legal Framework: Family law and child protection legislation.
   • Rationale: To ensure minors receive essential care when parental consent is unavailable or impractical.
   • Legislation Examples:
     • South Australia: The Consent to Medical Treatment and Palliative Care Act 1995 (SA) allows minors aged 16 years and over to consent to medical treatment. For those under 16, treatment can proceed without parental consent in emergencies.
     • Queensland: The Child Protection Act 1999 (QLD) allows for medical intervention without parental consent if the child is at immediate risk of harm.
5. Implied Consent:
   • Legal Framework: Common law principles.
   • Rationale: Recognizes practical aspects of routine care where explicit consent is not always feasible.
   • Legislation Examples:
     • Not typically codified in specific statutes but supported by common law precedents where patient actions imply consent.
6. Scope of Previous Consent:
   • Legal Framework: Common law and health service policies.
   • Rationale: Allows for continuation of treatment within the scope of previously obtained consent.
   • Legislation Examples:
     • Not specifically legislated but recognized under common law principles that respect the ongoing validity of initial consent for a course of treatment.

Summary of Legal Frameworks and Key Legislations

1. Emergency Treatment:
   • Common Law: Provides the basis for emergency intervention.
   • State Legislation:
     • Civil Liability Act 2002 (NSW)
     • Medical Treatment Planning and Decisions Act 2016 (VIC)
2. Mentally Ill Patients:
   • State Mental Health Acts:
     • Mental Health Act 2016 (QLD)
     • Mental Health Act 2014 (WA)
3. Compulsory Treatment Orders:
   • Public Health Acts:
     • Public Health Act 2010 (NSW)
     • Public Health and Wellbeing Act 2008 (VIC)
4. Treatment of Minors:
   • Family Law and Child Protection Legislation:
     • Consent to Medical Treatment and Palliative Care Act 1995 (SA)
     • Child Protection Act 1999 (QLD)
5. Implied Consent:
   • Common Law: Supported by precedents acknowledging patient actions as consent.
6. Scope of Previous Consent:
   • Common Law: Recognizes the validity of ongoing consent for a treatment course.

Ethical and Legal Considerations

• Voluntariness: Patients must make decisions free from coercion.
• Capacity: Consent must come from someone legally and mentally capable of making the decision.
• Informed Consent: Patients must understand the nature, risks, and benefits of the treatment and its alternatives.
• Right to Refuse Treatment: Patients can refuse treatment, and this decision must be respected, even if it leads to their death.

Age of Majority:

• In Australia, the age of majority is 18 years. This is the age at which citizens can exercise all civil rights available to Australians.

Consent by Minors:

• A child of 16 years of age or older may give consent for medical treatment.
• In certain situations, a child under 16 years of age may also give consent.

Presumption of Lack of Decision-Making Capacity:

• Children are generally presumed to lack decision-making capacity.
• A child is taken to have the capacity to make a decision about their own assessment or treatment only if a medical practitioner or body (such as the Mental Health Tribunal) considering that capacity under the legislation is satisfied that:
  • The child is sufficiently mature to make the decision.
  • The child, despite any impairment or disturbance in the functioning of their mind or brain, is able to:
    • Understand information relevant to the decision.
    • Retain information relevant to the decision.
    • Use or weigh information relevant to the decision.
    • Communicate the decision.

Gillick Competence Test:

• A minor is considered competent to consent to treatment when they achieve a sufficient understanding and intelligence to fully understand what is proposed.
• This is known as the Gillick competence test.

Criteria for Competence:

• The minor must have a maturity level that allows them to understand the nature, purpose, and possible consequences of the proposed treatment.
• Factors include the minor’s maturity, marital status, economic independence, and ability to understand the benefits and risks of the treatment.
• An emancipated minor, such as one who is married or living independently, is usually legally able to provide consent.

Consent Without Parental Knowledge:

• Under common law principles or local legislation, a minor can consent to medical treatment without parental knowledge or acceptance if deemed competent.
• Example: A GP can provide contraceptive advice and treatment to a minor under the following criteria:
  • The minor understands the advice.
  • The minor cannot be persuaded to inform their parents.
  • The minor is likely to continue having sexual intercourse with or without contraceptive treatment.
  • The minor’s physical or mental health is likely to suffer without contraceptive advice or treatment.
  • It is in the minor’s best interests to receive advice or treatment without parental consent.

Seeking Parental Consent:

• For major or complex treatments, it is appropriate to seek consent from a parent or guardian.
• The assumption is that the younger patient may not fully comprehend the circumstances and cannot give truly informed consent.
• Always try to persuade the minor to notify their parent or guardian.

Application of Gillick Competence:

• Example Scenario (OCP for a minor):
  • A GP can give advice and treatment if:
    • The girl, though under 16, understands the advice.
    • The GP cannot persuade her to inform her parents.
    • She is likely to continue having sexual intercourse.
    • Her physical or mental health would likely suffer without the advice or treatment.
    • Her best interests require the GP to give advice or treatment without parental consent.

Summary

• Age of Majority: 18 years in Australia.
• Independent Consent: Minors 16 years and older can consent; younger minors may consent in certain situations if deemed competent.
• Gillick Competence: Determines if a minor under 16 has the maturity and understanding to consent.
• Presumption: Children presumed to lack capacity unless demonstrated otherwise through maturity and understanding.
• Parental Involvement: Typically sought for significant treatments, but efforts should be made to persuade the minor to involve their parents.