When a patient cannot consent to treatment
A person may be temporarily or permanently unable to consent to medical or dental treatment.
Under the Guardianship and Administration Act 1986, the first person in the order of the following list who is available, willing and able to make medical and dental treatment decisions on behalf of the patient is considered the ‘person responsible’ and can provide consent:
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 to make decisions about medical/dental treatment.
4. A person appointed by the patient on or after 1 September 2015 as an attorney for personal matters under an enduring power of attorney or a person appointed by the patient before 1 September 2015 as an enduring guardian with health care powers under an enduring power of guardianship.
5. A person appointed by the patient, in writing, to make decisions about medical/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 years, in the following order listed:
a. son or daughter
b. father or mother
c. brother or sister (including adopted and half siblings)
d. grandfather or grandmother
e. grandson or granddaughter
f. uncle or aunt
g. nephew or niece.
Where there are two relatives in the same position (for example, a brother and sister) the elder person is the person responsible regardless of gender.
If there is a disagreement about whether the proposed treatment is in the best interests of a patient who is unable to consent themselves, an application can be made to VCAT for the appointment of a guardian to make medical treatment decisions.
The person responsible must make decisions that are in the best interests of the patient.
This means considering:
- the wishes of the patient and their family
- the consequence to the patient if the treatment is not carried out
- any alternative treatment available
- the nature and degree of any significant risks associated with the treatment or any alternative treatment
- whether the treatment to be carried out is only to promote and maintain the health and well-being of the patient.
The person responsible can contact OPA’s Advice Service on 1300 309 337 and can apply to VCAT for advice about any proposed medical and dental treatment or the exercise of their powers.
Decisions the person responsible cannot make
If the patient’s inability to consent is likely to be temporary, the person responsible can only consent if the treatment is not against the patient’s wishes and if failure to treat would result in a significant deterioration of the patient’s condition.
The person responsible cannot consent to the following procedures, known as ‘special procedures’:
- the termination of pregnancy
- removal of tissue for transplant
- procedures that are reasonably likely to lead to the patient’s permanent infertility.
In these cases, an application for consent must be made to VCAT.
The person responsible cannot refuse treatment on the patient’s behalf. The Medical Treatment Act 1988 (see right menu) lists those who can refuse treatment on a patient’s behalf.
If a patient cannot consent to medical treatment and there is no person responsible available to provide consent, the treatment can proceed if the legislative requirements under Section 42 K of the Guardianship and Administration Act 1986 are met.
If the medical practitioner believes the treatment is in the best interests of the patient, they must submit a Section 42K Notice to OPA’s Advice Service.
The notice requires the medical practitioner to state:
- the proposed treatment
- why the practitioner proposes to undertake the treatment
- that the proposed treatment is in the person’s best interests
- the efforts made to locate the person responsible.
OPA’s Advice Service reviews the notice and advises the medical practitioner if the legislative requirements have been met. If the requirements have been met the treatment can proceed.
A medical practitioner cannot provide treatment if consent is withheld by the person responsible.
However if the medical practitioner believes that the treatment is in the best interests of the patient and wishes to proceed they can, give the person responsible and OPA a Section 42M Notice within three days of the withholding of consent (see right menu).
This 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 may provide the treatment to the patient after seven days have passed since giving the notice.
If the patient is a compulsory patient under the Mental Health Act 2014 and cannot consent to non-psychiatric medical treatment, there is a different list of people who can provide consent:
- A medical agent appointed by the patient under a enduring power of attorney (medical treatment).
- A person appointed by VCAT to make decisions about the proposed treatment.
- A guardian appointed by VCAT to make decisions about medical/dental treatment.
- An enduring guardian appointed by the patient to make decisions about medical/dental treatment.
- The authorised psychiatrist.