Why is consent important?

Registered doctors and dentists (practitioners) cannot treat a patient without valid agreement (called consent) from the patient to undertake the treatment.

A person over the age of 18 can consent to treatment if they can understand the practitioner's information about the proposed treatment and can make reasonable choices based on this information. This is called capacity. If a person lacks this capacity another person must make decisions on their behalf.

When is consent not needed?

The only time consent is not needed is where:

• There is a medical or dental emergency.
  This means treatment is needed to prevent death, serious damage to the patient's health, or suffering from significant pain or distress.
• The treatment is minor. For example a visual examination of the patient's mouth, providing first aid, or the administration of a prescribed drug within recommended dosages.

The person responsible

If a patient cannot consent to their own treatment, the practitioner can obtain consent from the 'person responsible'.

Who can be the person responsible?

This can be one of the following, in order of priority, who is available and willing to make medical and dental treatment decisions on behalf of the patient.

1. An agent - appointed by the patient under enduring power of attorney (medical treatment)
2. A person - appointed by VCAT to make decisions about the proposed treatment
3. A guardian - appointed by VCAT with health care powers
4. An enduring guardian - appointed by the patient with health care powers
5. A person - appointed by the patient in writing to make decisions about medical and dental treatment including the proposed treatment
6. The patient's spouse or domestic partner
7. The patient's primary carer, including carers in receipt of a Centrelink Carer's payment but excluding paid carers or service providers
8. The patient's nearest relative over the age of 18, which means (in order of preference):
1. son or daughter
2. father or mother
3. brother or sister (including adopted persons and 'step' relationships)
4. grandfather or grandmother
5. grandson or granddaughter
6. uncle or aunt
7. nephew or niece.

Note: Where there are two relatives in the same position (for example, a brother and sister) the elder will be the person responsible.

When can a person responsible make decisions?

A person responsible can give consent when the patient is unable to consent because the patient cannot understand the nature or effect of the proposed treatment, or cannot communicate their consent.

Decisions a person responsible cannot make

There are some restrictions on the power of the person responsible to give consent.

• If the patient is likely to be able to consent to treatment in a reasonable time, the person responsible can only consent to treatment -
• where the failure to treat would result in a significant deterioration of the patient's condition
• the treatment is not against the wishes of the patient
• where it is believed that the patient would not object to the person responsible making such decisions.
• The person responsible cannot consent to the following special procedures:
• those likely to lead to infertility
• termination of pregnancy
• removal of tissue for transplant.

Before any of these special procedures can be carried out, the person responsible must apply to VCAT for a decision.

The person responsible cannot refuse treatment on the patient's behalf.

Responsibilities of the person responsible

If you are the person responsible, you must make decisions that are in the best interests of the patient.
To do this you must attempt to find out:

• The patient's wishes
• The wishes of the patient's family.

These must be taken into account in making your decision.

You should find out from the practitioner:

• What is the proposed treatment?
• Why is it proposed?
• Are there any risks?
• Are there alternative treatments?
• What is the likely outcome of the treatment?
• What is the likely consequence of not undertaking the treatment?

Where the medical treatment involves the patient's participation in medical research, see fact sheet Medical research for patients who cannot consent - the person responsible.

Responsibilities of the practitioner

The person responsible can expect the practitioner to:

• provide sufficient information, using plain language that the person responsible can understand
• take sufficient time to ensure the person responsible is properly informed
• advise the person responsible of the wishes of the patient, if known.

Where can the person responsible get advice from?

The person responsible can contact the Office of the Public Advocate's advice service. They can also apply to VCAT to get advice about any proposed medical and dental treatment or the exercise of their powers.

What happens when the person responsible refuses consent?

The practitioner cannot provide treatment where the person responsible refuses consent.
However, if the practitioner believes that the treatment is in the best interests of the patient and wishes to proceed, they must, within three days of the refusal, give the person responsible and the Office of the Public Advocate a notice. The notice advises that the person responsible can apply to VCAT if they want to prevent the treatment from proceeding.

If the person responsible does nothing, the practitioner can provide the treatment. If the person responsible makes an application to VCAT, the Office of the Public Advocate will be notified and may investigate the case. If VCAT hears the matter the person responsible must explain their objection to the treatment. VCAT will then decide whether the treatment can proceed.

What happens if there is no person responsible?

If the practitioner believes the treatment is in the best interests of the patient, but there is no person responsible or they cannot be found, the practitioner can proceed to treat the patient. The practitioner must first submit a form under Section 42K of the Guardianship and Administration Act 1986 to the Office of the Public Advocate. The form sets out the proposed treatment

• why the practitioner proposes to undertake the treatment
• the efforts made to locate the person responsible.

If the legislative requirements are met the treatment can proceed. Contact the Office of the Public Advocate for Section 42K notice.

Who can provide consent when a person has a mental illness and is an involuntary patient under the Mental Health Act 1986?
Where -

• An adult is an involuntary patient under the Mental Health Act, and
• They are unable to consent themselves to the proposed treatment, and
• They need non-psychiatric medical or dental treatment,

the following person, in order of priority, can provide consent: -

1. An agent - appointed by the patient with enduring power of attorney (medical treatment)
2. A person appointed by VCAT to make decisions about the proposed treatment
3. A guardian - appointed by VCAT with health care powers
4. An enduring guardian - appointed by the patient with health care powers
5. The authorised psychiatrist.