AHMF: Consent to Medical Treatment

Miles Crawley, Solicitor

The Law governing consent to medical treatment is contained in the Consent to Medical Treatment and Palliative Care Act 1995.

Pursuant to the provisions of that Act, the age of consent to medical treatment remains at 16 years.

Where a patient is under the age of 16 years, for medical treatment there must be:

consent of the parent or guardian; or
consent of the child and the medical provider believes the child understands the nature of the consent and the medical treatment is in the child's best interests.

Alternatively, the situation may arise where the parent or guardian has not consented and the child cannot consent. In those circumstances, the matter is dealt with in the same way as for an adult patient incapable of consenting. In those circumstances, medical treatment can be given if:

emergency medical treatment is required;
the medical provider (supported in writing by one other medical provider who has personally examined the patient) believes the treatment is necessary to meet an imminent risk to the patient's health;
to the best of the medical practitioner's knowledge, the patient has not refused consent to medical treatment; and
to the medical practitioner's knowledge, there is no medical agent appointed and available from whom a consent can be obtained.

However a supporting opinion is not necessary if it is not practicable to obtain one.

The Act creates the concept of a medical agent, by a medical power of attorney. There are a number of formal requirements for an appointment of such an agent, being:

the appointor must have mental capacity at the time the appointment is made;
the medical power of attorney must be in the prescribed form;
the medical agent appointed must be over the age of 18 years and cannot be a person who is, in a professional or administrative capacity, directly or indirectly responsible for or involved in the medical care of treatment of the patient; and
the appointment must be signed by the patient, witnessed by the nominated medical agent and also by an authorised witness.

A patient may nominate alternative medical agents. It and only if the first medical agent nominated is not available, then the second may be consulted. If the first and second are not available, the third may be consulted and so on. It cannot be the case that persons are appointed joint medical agents.

In order to rely upon a medical power of attorney, it is necessary for the medical agent to produce a copy of same for inspection by the doctor responsible for medical treatment.

By way of a medical power of attorney, the medical agent can make any decision on behalf of the patient that the patient themselves could make except that a medical agent cannot:

refuse the provision of food or water to the patient;
refuse the administration of medication to relieve pain or distress; or
refuse treatment that would enable the patient to regain the capacity to make decisions for themselves.

A medical practitioner (amongst others) may apply to the Supreme Court for a review of a decision made by a medical agent, but not if the patient is close to death. The purpose of the review is solely to determine whether or not the decision taken is porperly in accordance with the patient's wishes.

A mentally incapacitated person may have an enduring guardian appointed under the Guardianship and Administration Act. However, such guardian may only consent to medical treatment if there is no medical agent who is available and willing to make the decision. If a patient has both an enduring guardian and a medical agent, the medical agent will make the necessary decisions about medical treatment.

Additionally, if a patient is given an anticipatory direction, the medical agent must act consistently with that direction.

A person of sound mind over the age of 18 years may give anticipatory directions as to their wishes if at some future time they are in a terminal phase of a terminal illness, or in a persistent vegetative state and are then incapable of making decisions about medical treatment. Such directions must be signed by the patient and witnessed by an authorised witness.

Provided a medical practitioner responsible for the treatment of the patient acts with the consent of the patient or the medical agent, in good faith and without negligence, in accordance with the proper professional standards of medical practice and in order to preserve or improve the quality of life, the medical practitioner incurs no civil or criminal liability for any act or omission.

Miles Crawley
Solicitor
Piper Alderman Solicitors