Health Care Decisions

Health Care Decisions, Stethescope

Introduction

Health care decisions need to be made at all stages of life, from pregnancy through to birth and infancy, throughout childhood, into adulthood, and at the end of life.

In this section you will find information on ‘consent’, a fundamental requirement in law (and ethics) that is central to health care decision making. There is information about general consent – given by competent adults; consent when an adult is incapable of consenting for him or herself; and consent when the health care involves a child or young person (a minor).

There are also pages with information about end of life decision making regarding the withholding or withdrawal of treatment (for adults and minors), and brief information on euthanasia.

In Brief:

Consent

Consent is fundamental to health care and medical practice, both from an ethical perspective and a legal one. It is all about a person making decisions about what he or she does, or does not want to happen regarding his or her health care and treatment.

Health practitioners (eg. nurses, doctors, physiotherapists, etc) have an ethical duty to respect a person’s autonomy to determine what shall be done with his or her body and whether he or she wishes to undergo medical treatment.

Health practitioners also have a legal duty not to touch or treat patients without their consent. If a health practitioner touches or treats a patient without the patient’s consent, or without the consent of someone who has lawful authority to consent (eg. a parent, next of kin, or guardian), or without other lawful justification (eg. in an emergency), a cause of action (right to sue) may possibly arise in the law of

In some rare circumstances, treatment without consent may also constitute a criminal offence.

Patients may be able to seek an injunction (an order of the Court) to prevent a health practitioner from giving them treatment the patient does not want.

Trespass

A health practitioner must take reasonable steps to make sure the patient understands the broad nature and effects of any proposed touching or treatment, and that the patient voluntarily consents to it. 1

Law of Negligence:

A health practitioner must make sure a patient is provided with sufficient information to make an informed decision about the proposed action – that is, a patient must be able to give ‘informed consent’. 2

End of Life

Couple - Consent
Health care decisions at the end of life include all of the consent issues discussed in this section.

People are free to make treatment decisions, including at the end of their life, about what kind of health care treatment they wish to have or not have. The details discussed in the consent section therefore also apply to end of life health care decision making.

People at the end of their lives can also plan for times when they may be unable to consent. They may provide instructions for what they wish to happen (advance care planning), or they may appoint somebody they wish to make decisions for them (for example a guardian). If they have not appointed somebody, a substitute decision maker may be recognised at law, or appointed by the Court. The Court may also intervene if it is in the best interests of the patient to do so. Many of these principles are covered in the section on consent during times of incapacity.

If the patient at the end of their life is a child, parents may make most treatment decisions, provided they are acting in the best interests of the child. Older children, that have decision making capacity (known as ‘Gillick competence’) may also make treatment decisions for themselves. When the issue of what is in the best interests of a child arises, or whether the child has sufficient competence, the Court may again play a role.  These issues are discussed in the section on consent for minors (children and young people).

However, there are also other treatment decisions, such as the withholding or withdrawal of life-sustaining measures, that may arise in relation to adults, and children, at the end of their life. The section on end of life provides an overview of legal issues surrounding such decisions, and in particular when and by whom they can be made.

NOTE: The topic of euthanasia, which is distinct from end of life decisions about the withholding and withdrawal of treatment, is not detailed in this section. Suffice to say that in Australia, in all states and territories, it is  a criminal offence to assist someone to end their life or commit suicide. 3

Note that within discussion of euthanasia, distinctions are made about instances in which the death of a patient results following a large dosage of sedative or pain killing drugs. Commonly referred to as the ‘doctrine of double effect’, such administration of drugs is regarded as non-criminal if the intention of the doctor is to relieve pain and not to cause death. 4

Find out more

Notes:

  1. Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58.
  2. Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58.
  3. Crimes Act 1900 (NSW) s 31C; Crimes Act 1958 (Vic) s 6B(2), Criminal Law Consolidation Act 1935 (SA) s 13A(5); Criminal Code Act 1913 (WA) s 288; Criminal Code (NT) s 162; Criminal Code (Qld) s 311; Criminal Code Act 1924 (Tas) s 163; Crimes Act 1900 (ACT) s 17.
  4. See for example, R v Adams [1957] Crim LR 365.