In NSW and Victoria it is unlawful for a medical practitioner to treat an adult without their express consent. Unless it is a case of emergency, common law supports the right of an adult to give their doctor consent if that adult is of sound mind a has the capacity to understand the nature and effect of their decision. This is essentially because of the notion that everyone has a right to determine what happens to their body.

Legal requirements for obtaining consent

Before a doctor treats you, they must establish that you have given your informed consent to the treatment. This can be established verbally, by writing, or through implied consent. The four legal requirements that must be met to give valid consent are:

• The patient must have the mental capacity to consent to the procedure;
• Consent must be given voluntarily;
• The consent given must be related to the procedure in question; and
• The patient must be given proper information about the procedure before giving consent.

As part of their duty of care, a doctor must explain to their patients the nature of the medical problem; their method of treatment; any foreseeable risks that may occur; and the cost of the procedure if applicable.

When a patient cannot consent to treatment

In Victoria, the laws concerning medical treatment have been supplemented by legislation allowing people to make arrangements for medical treatment decisions when they are unable to make their own decisions. Since 1986 the Guardianship and Administration Act has permitted a tribunal to appoint a guardian to make medical treatment decisions for a person with impaired decision-making capacity. A child under the age of 14, a person affected by a brain injury of mental disability, dementia suffers, or a person affected by drugs are not considered to have the capacity to give valid consent.

You should be aware of your rights and the laws of consent when undergoing a medical procedure. Next week, we will elaborate on the four abovementioned points that lead to valid consent.

By Kirollos Greiss, Solicitor at RSG Lawyers.

Footnotes available upon request.