Medical Consent

A person over the age of 18 can consent to treatment or refuse medical treatment if they have capacity. Capacity is defined as the ability to reason things out; to understand, retain, believe, evaluate and weigh relevant information. A person may lose capacity to make decisions permanently or temporarily, due to accident or illness.

A person consenting to or refusing medical treatment, dental treatment, and/or participation in medical research, must be able to understand the information about the procedures involved and make reasonable choices based on this.

If a person cannot understand the information regarding the proposed treatment given to them by the medical practitioner, and it is determined they lack capacity, another person must make decisions on their behalf.

Who can make these decisions?

The ‘person responsible’ is the person who is available and willing to make medical and dental decisions on behalf of the patient.

This can be, in order of priority:

1. An agent appointed by the patient under an enduring power of attorney (medical treatment)
2. A person appointed by the Victorian Civil and Administrative Tribunal (VCAT) to make decisions about the proposed treatment
3. A guardian appointed by VCAT to make medical treatment decisions
4. An enduring guardian with appropriate powers appointed by the patient
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 in order listed:

• a. son or daughter (the eldest, regardless of gender)
• b. father or mother (the eldest, regardless of gender)
• c. brother or sister (including adopted persons and ‘step’ relationships) (the eldest, regardless of gender)
• d. grandfather or grandmother (the eldest, regardless of gender)
• e. grandson or granddaughter (the eldest, regardless of gender)
• f. uncle or aunt (the eldest, regardless of gender)
• g. nephew or niece (the eldest, regardless of gender).

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.

What if the person who needs treatment cannot give consent?

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

Medical consent and OPA

If there is no person responsible, the dentist or medical practitioner must submit a Section 42K Notice to the Office of the Public Advocate (OPA).

If the medical procedure is being carried out for the purposes of medical research, the practitioner must submit a Section 42T Certificate to OPA