Consent – Incapacity (Adults)

Introduction

The principles discussed in the Health Law Central section on ‘consent’ are the starting point for any decision about proposed medical, dental and or health care procedures or treatments. That is, health care practitioners cannot treat a person without consent (and may be liable for trespass to person if they do).

Generally a person for whom medical, dental or health treatment is proposed will be able to consent to, or refuse, such treatment for themselves provided they have the legal capacity to do so.

When an adult is unable to consent to, or refuse, medical procedures or treatment, due to incapacity, there are laws that provide for who may make a decision on a patient’s behalf.

NOTE: it is rare that a person would be incapable of making any decisions for him or herself unless for example, he/she was unconscious or suffering some other extreme illness. That is, some people may have the capacity to make some decisions but not others (for example some people might be able to make simple treatment decisions, but need help to make more complex decisions). Some people will be incapable of making decisions at a certain time, but may be able to make them at a later time.

Capacity therefore is a state that may change and therefore is something that needs to be assessed at the time that a decision needs to be made or document executed.

The common law presumes that every adult person has capacity to consent to, or refuse, treatment unless it is proven otherwise.
Capacity means that a person is able to make decisions for themselves. This of course will be influenced by many things (eg. time, place, pressure), and depends upon the type of decision being made. It is rare that people cannot make any decisions for themselves (unless they are unconscious).

Although definitions of legal capacity vary, generally a person must be able to:

  • understand the nature and effect at the time that the medical or dental decision is required (not hours or days before or after it is made);
    • understanding the ‘nature’ of the treatment means they can understand broadly and in simple language:
      • what the medical or dental treatment is;
      • what the procedure involves;
      • why it is proposed;
      • that there are other options and what they are, what they involve, and the effect of each option, including risks and benefits; and
      • what it means if they don’t have the treatment.
    • understanding the ‘effect’ of the treatment, means they are aware, in simple terms, of the main benefits and risks of the treatment.
  • communicate whether they want the treatment– (this may be with assistance);
  • consent to, or refuse, treatment freely and voluntarily.
NOTE: The above extended explanation of what constitutes capacity is drawn from the NSW Government Attorney General’s Department, Capacity Toolkit (2008) available here. It most closely reflects provisions regarding capacity found in legislation in Queenlsand. 1 Similar legislation may be found in NSW, Victoria, Tasmania and the Northern Territory – although they do not include ‘freely and voluntarily’ in their definitions. 2 In other states the the focus differs and assessment of ‘capacity’ would be influenced by how ‘capacity’ is defined in the respective legislation. 3
What most people would decide to do in the situation is irrelevant. If a person has ‘capacity’, they may decide for themselves what they would or would not like to do. Capacity is an assessment of a person’s ability to make a decision, it is not an assessment of the decision itself. 4

What happens if a person is lacking capacity?

If a person lacks capacity to make decisions for themselves, they may have provided an ‘advanced care directive’. This will help determine what they would or would not consent to. There may also be a need to appoint a substitute decision maker. Read on to find out more!
Advance directives are directions made by people about what health and medical treatment they would like in the future, in case they cannot make decisions for themselves. They most often relate to health matters, although they can relate to finances and lifestyle choices too.

Advanced care directives may be made orally or in writing. It is usual however to put them in writing to ensure that there are no disputes over what treatment a person would or would not consent to. In addition, some states require them to be in writing for them to be valid.

Jurisdictions that have statutory provisions (legislation) allowing people to make advance directives include Victoria; 5 South Australia; 6 Western Australia; 7 the ACT; 8 the Northern Territory; 9 and Queensland. 10

In other states (NSW and Tasmania) the right to make an advance care directive is governed by common law rules. For example, see Hunter and New England Area Health Service v A [2009] NSWSC 761 a case in which an advance directive refusing dialysis was binding on the health service. In that case McDougall J said:

‘If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive…’ 11

Note, advanced care directives may be limited in certain circumstances. For example at common law they will not be followed if the treatment is necessary to save the life of a viable unborn child. There are also statutory limitations in some states that provide for when a health practitioner may not follow such directives. 12

For further information regarding advanced care directives (and planning) click on the relevant state below:

  • South Australia (Government of South Australia website specifically regarding advance care directives)
  • Tasmania (Tasmania Government website regarding advanced care planning)
  • Victoria (Department of Health, Advanced Care Planning information)

There is also much information provided at Advanced Care Planning Australia.

Substitute decision makers may be needed to make decisions about health care and treatment when a person is incapacitated.

Each state and territory in Australia has its own specific regime that governs substitute decision making for health care, medical and dental treatment. The rules for each state/territory may be found in legislation regarding ‘guardianship’. 13

In some states, other legislation dealing with advanced care directives and end of life decision making is also relevant. 14

All states/territories however, generally recognise different types of treatment, which may help determine whether a health practitioner must seek ‘consent’, and who must give that consent in the circumstances if the patient can not.

Urgent/Emergency Treatment

If a practitioner considers treatment is urgent (that is it is necessary to save a person’s life, prevent serious harm to their health, or prevent significant pain and distress) they may treat a person without the person’s consent and without the consent of a person responsible, tribunal, panel, board or court. 15

All other types of non-urgent treatment

If the proposed treatment or intervention is not urgent, a practitioner must seek consent from either:

  • a guardian, appointed under an enduring guardianship or by the Guardianship Tribunal
  • a ‘person responsible ’
  • a person named in an advance care directive
  • the Guardianship Tribunal or the Mental Health Review Tribunal.

All of the above are known as ‘substitute decision makers’.  (Note that depending on the condition and treatment – the practitioner might also postpone treatment until the patient is has the capacity to consent.)

More information about each of the substitute decision makers may be found below.

Most jurisdictions have provisions that allow a person 18 years or over to appoint an enduring guardian 16 (Note, in the Northern Territory, enduring attorneys or guardians no longer exist, new legislation provides for ‘Advanced Personal Planning’ in which a substitute decision maker may be appointed. 17

The person chooses for themselves who that guardian is in advance of their not having legal capacity to make decisions.

An enduring guardian is given the power to make decisions on the person’s behalf should they not have legal capacity to make decisions about themselves, their health care and their lifestyle in the future.

The enduring guardian must not be associated with the person in a medical or treatment capacity – so for example, cannot be a person’s treating doctor or nurse.

The appointment of an enduring guardian must be in writing. The document appointing the guardian will include information about the functions and powers to be exercised by the enduring guardian. There are rules about the procedure and form that must be taken, so legal advice is usually necessary.

For an example of such a form, see the NSW government ‘Planning Ahead’ website, which (amongst other things) explains enduring guardianship forms and requirements.

A ‘person responsible’ is someone who has authority to consent to medical, health and dental treatment for an adult who is unable to give a valid consent to that treatment.

In jurisdictions that have ‘persons responsible’, there is a ‘hierarchy’ of who can be the person responsible. 18 Links to each state/territories specific laws can be found in the reference list at the bottom of the page – however, to provide an example, in New South Wales, it is as follows:

  • The person’s formally appointed guardian
  • The person’s most recent spouse or de facto with whom the person has a close and continuing relationship
  • An unpaid carer of the person
  • A relative or friend who has a close personal relationship. 19

Persons responsible can provide consent to minor treatments (for example, treatments involving general anaesthetic for fractures or endoscopes, and medications affecting the central nervous system) and major treatments (for example, any treatment involving serious risk, for example, heart surgery).

A tribunal, panel, board or court may make formal guardianship orders in relation to a person over 18 years old 20 Such orders are made in order to formally appoint someone, in certain circumstances, to control, manage and make substitute decisions for a person who does not have capacity to do so for themselves.

A formal guardianship order may be necessary when

  • a person’s own decisions are placing them at risk and are not deemed to be in their own best interests;
  • a person does not have any family or friends willing and able to support the person and to maintain informal decision-making arrangements;
  • there is conflict about the person’s best interests;
  • informal decision making arrangements are proving not to be in the best interests of the person;
  • a person is being subjected to neglect, harm, abuse or exploitation; or
  • a child’s parents pass away.

When can a formal guardianship order be made?

The answer to this question depends upon the state/territory a person is in.

In New South Wales and Queensland, a tribunal, panel, board or court must be satisfied that:

  • person has an impaired decision-making capacity (because of a disability or, in some jurisdictions, because of other reasons);
  • that impaired capacity renders the person totally or partially incapable of managing his or her person, and
  • the person is in need of a guardian. 21

In South Australia the law requires that

  • a person has a ‘mental incapacity’;
  • the person does not have an enduring guardian, and
  • an order should be made in respect of the person. 22

In Western Australia, the State Administrative Tribunal only needs to be satisfied the person is 18 years of age and is:

  • incapable of looking after his own health and safety; or
  • unable to make reasonable judgements in respect of matters relating to his person; or
  • in need of oversight, care or control in the interests of his  own health and safety or for the protection of others, and in need of a guardian. 23

In the Northern Territory, the NT Supreme Court must be satisfied that:

  1. a person is ‘under an intellectual disability’, and
  2. ‘is in need of an adult guardian’. 24

In the ACT, the legislation lists things that alone do not indicate impaired decision-making capacity. These include that “the person (a) is eccentric; (b) makes unwise decisions; (c) does or does not express a particular political or religious opinion; (d) has a particular sexual orientation or expresses a particular sexual preference; (e) engages in or engaged in illegal or immoral conduct; or, (f) takes or has taken drugs, including alcohol. 25

In Tasmania a person have a disability, by reason of which they are unable to exercise ‘reasonableness of judgement’. 26

Examples of conditions for which formal guardianship orders can be made include:

  • intellectual disability;
  • psychiatric disabilities (like schizophrenia and depression);
  • neurological disabilities (like dementia and Alzheimer’s);
  • developmental disabilities (like autism and Asperger’s);
  • brain injury, and
  • physical disabilities (that render a person unable to communicate their intentions or wishes in any manner whatsoever).

Note: a formal guardianship is not always needed in the above cases; on the other hand, the list is not exhaustive. The need for a guardianship order will be determined by the circumstances of each case.

Not all of the above items are listed in every state. For example, physical disability rendering a person unable to communicate is only found in the legislation of South Australia, Tasmania and Victoria. In some jurisdictions there is no requirement that a person must have an identifiable, or diagnosed, decision making disability. 27

Who might be appointed?

Formal guardianship might be exercised by one, two or more persons (exercising functions jointly or separately), the public guardian, adult guardian or Public Advocate.

Do Guardianship orders cover all decision making? How long do they last?

Guardianship orders do not have to cover all decision making.

They may be limited in regard to the decision making powers the guardian has.

They may also only apply for a certain time, or may be ordered to be ‘continuing’. For example, in NSW the relevant law refers to ‘limited’ and ‘continuing’ orders. 28

A tribunal, panel, board or court may make formal guardianship orders in relation to a person over 18 years old 29 Such orders are made in order to formally appoint someone, in certain circumstances, to control, manage and make substitute decisions for a person who does not have capacity to do so for themselves.

A formal guardianship order may be necessary when

  • a person’s own decisions are placing them at risk and are not deemed to be in their own best interests;
  • a person does not have any family or friends willing and able to support the person and to maintain informal decision-making arrangements;
  • there is conflict about the person’s best interests;
  • informal decision making arrangements are proving not to be in the best interests of the person;
  • a person is being subjected to neglect, harm, abuse or exploitation; or
  • a child’s parents pass away.

When can a formal guardianship order be made?

The answer to this question depends upon the state/territory a person is in.

In New South Wales and Queensland, a tribunal, panel, board or court must be satisfied that:

  • person has an impaired decision-making capacity (because of a disability or, in some jurisdictions, because of other reasons);
  • that impaired capacity renders the person totally or partially incapable of managing his or her person, and
  • the person is in need of a guardian. 30

In South Australia the law requires that

  • a person has a ‘mental incapacity’;
  • the person does not have an enduring guardian, and
  • an order should be made in respect of the person. 31

In Western Australia, the State Administrative Tribunal only needs to be satisfied the person is 18 years of age and is:

  • incapable of looking after his own health and safety; or
  • unable to make reasonable judgements in respect of matters relating to his person; or
  • in need of oversight, care or control in the interests of his  own health and safety or for the protection of others, and in need of a guardian. 32

In the Northern Territory, the NT Supreme Court must be satisfied that:

  1. a person is ‘under an intellectual disability’, and
  2. ‘is in need of an adult guardian’. 33

In the ACT, the legislation lists things that alone do not indicate impaired decision-making capacity. These include that “the person (a) is eccentric; (b) makes unwise decisions; (c) does or does not express a particular political or religious opinion; (d) has a particular sexual orientation or expresses a particular sexual preference; (e) engages in or engaged in illegal or immoral conduct; or, (f) takes or has taken drugs, including alcohol. 34

In Tasmania a person have a disability, by reason of which they are unable to exercise ‘reasonableness of judgement’. 35

Examples of conditions for which formal guardianship orders can be made include:

  • intellectual disability;
  • psychiatric disabilities (like schizophrenia and depression);
  • neurological disabilities (like dementia and Alzheimer’s);
  • developmental disabilities (like autism and Asperger’s);
  • brain injury, and
  • physical disabilities (that render a person unable to communicate their intentions or wishes in any manner whatsoever).

Note however, this does not mean that a formal guardianship is always needed in the above cases. The need for a person to be appointed will depend on the circumstances of each case.

In addition, the above list is not exhaustive. On the other hand, nor are all of the above items listed in every state. For example, physical disability rendering a person unable to communicate is only found in the South Australian, Tasmanian and Victorian legislation. In some jurisdictions there is no requirement that a person must have an identifiable, or diagnosed, decision making disability in order for a guardianship application to be made. 36

Who might be appointed?

The Tribunal/Court may appoint one, two or more persons (exercising functions jointly or separately), the Public Guardian, Adult guardian or Public Advocate.

Time and Scope

Guardianship orders do not have to cover all decision making. They may be limited in regard to the decision making powers the guardian has. They may also only apply for a certain time, or may be ordered to be ‘continuing’. For example, in NSW the relevant law refers to ‘limited’ and ‘continuing’ orders. 37

Find out more

Notes:

  1. See the Guardianship and Administration Act 2000 (Qld) Schedule 4 (although adding in more detail).
  2. See Guardianship Act 1987 (NSW) s33(2); Guardianship and Administration Act 1986 (Vic) s 36(2); Guardianship and Administration Act 1995 (Tas) s36(2); Adult Guardianship Act (NT) s5(1).
  3. That is, in South Australia,  the statute focuses upon ‘mental incapacity’ which is defined as inability of a person to look after their own health due to damage, illness, disorder, imperfect/delayed development, impairment, deterioration…See Guardianship and Administration Act 1993  (SA) s3(1). In Western Australia the focus is upon an adult being unable to make reasonable judgments in the respect of any treatment proposed’: Guardianship and Administration Act 1990 (WA) ss110ZD(1), 110ZG, 110ZJ(1). In the ACT the focus is upon ‘impaired decision-making ability’ due to physical, mental, psychological or intellectual condition or state, whether or not the condition or state is a diagnosable illness’: Guardianship and Management of Property Act 1991 (ACT) s5.
  4. See for an example of a case that illustrates this view, Re T (An Adult)(Consent to Treatment) [1992] 4 All ER 649 at 653, in which it was said that a person may be competent, even if the reasons for his or her decision appear ‘irrational, unknown or even non-existent ‘.
  5. Medical Treatment Act 1988 (Vic).
  6. Consent to Medical Treatment and Palliative Care Act 1995 (SA).
  7. Guardianship and Administration Act 1990 (WA).
  8. Medical Treatment (Health Directions) Act 2006 (ACT).
  9. The Advance Personal Planning Act  (NT).
  10. Powers of Attorney Act 1998 (Qld).
  11. Hunter and New England Area Health Service v A [2009] NSWSC 761 at [40] – where McDougall J usefully summarises the law of consent.
  12. See Medical Treatment Act 1988 (Vic) s 5; Advance Care Directives Act 2013 (SA) s 32; Guardianship and Administration Act 1990 (WA) s110S(3); Advanced Personal Planning Act 2013 (NT) s 41(2) & (3); Powers of Attorney Act 1998 (Qld) s 103.
  13. Guardianship Act 1987 (NSW); Guardianship and Administration Act 1996 (Vic); Guardianship and Administration Act 1993 (SA); Guardianship and Administration Act 1990 (WA); Adult Guardianship Act (NT); Guardianship and Administration Act 2000 (Qld); Guardianship and Management of Property Act 1991 (ACT); Guardianship and Administration Act 1995 (Tas). (‘Guardianship Acts’)
  14. For example, see Medical Treatment Act 1988 (Vic); Consent to Medical Treatment and Palliative Care Act 1995 (SA), the Advance Personal Planning Act (NT); Medical Treatment (Health Directions) Act 2006 (ACT).
  15. See Guardianship Acts above note 13: (NSW), s37; (Vic), s42A; (WA), ss 110ZH and 110ZI; (Qld), s63; (Tas), s40; and (NT), s21(1). Also see Emergency Medical Operations Act (NT) s3Consent to Medical Treatment and Palliative Care Act 1995 (SA),  s13(1); Guardianship and Management of Property Act 1991 (ACT), s32N(which recognises common law ability to provide emergency treatment).
  16. See Guardianship Acts above note 13: (NSW) ss5-6O; (Victoria) ss35A-35E and Instruments Act 1958 (Vic); (SA) ss25-27; (WA) s104; (Tas) ss32-33; Powers of Attorney Act 1998 (Qld), s 44 – enduring power of attorney/advanced directives.
  17. The Advance Personal Planning Act (NT).
  18. See Guardianship Acts above note 13: (NSW) s33A; (Vic) s37; (Tas) s4(1)(c) (and s43); and (WA) s11OZD(3); and Consent to Medical Treatment and Palliative Care Act 1995 (SA), s14.
  19. Guardianship Act 1987 (NSW)  s33A.
  20. Note slight age differences apply in Qld.
  21. See Guardianship Act 1987 (NSW), s14 and Guardianship and Administration Act 2000 (Qld) s12(1).
  22. Guardianship and Administration Act 1993 (SA), s29.
  23. Guardianship and Administration Act 1990 (WA), s43(1).
  24. Adult Guardianship Act (NT) 15(1)
  25. Guardianship and Management of Property Act 1991 (ACT) s6A.
  26. Guardianship and Administration Act 1995 (Tas) s20(1).
  27. For example, Queensland and Western Australia.
  28. Section 16(1)(c).
  29. Note slight age differences apply in Qld.
  30. See Guardianship Act 1987 (NSW), s14 and Guardianship and Administration Act 2000 (Qld) s12(1).
  31. Guardianship and Administration Act 1993 (SA), s29.
  32. Guardianship and Administration Act 1990 (WA), s43(1).
  33. Adult Guardianship Act (NT) 15(1)
  34. Guardianship and Management of Property Act 1991 (ACT) s6A.
  35. Guardianship and Administration Act 1995 (Tas) s20(1).
  36. For example, Queensland and Western Australia.
  37. Section 16(1)(c).