Capacity and consent to medical and dental treatment
Capacity defines a person’s ability to make their own decisions, including for medical and dental treatment. Learn more about decision-making capacity.
If your patient is aged 16 years and over and unable to understand the nature, effect and risks of your proposed treatment, this means they cannot provide consent – that is, give their permission for the treatment to be carried out.
In this case, you must seek consent from a person who is the ‘person responsible’.
Common questions about medical and dental treatment consent
The Public Guardian can be appointed as the guardian with authority to provide substitute consent for medical and dental treatment. To make a decision to provide or decline consent, we need information about the person’s condition and the proposed treatment.
The Public Guardian will only accept this information from a medical or dental practitioner.
Medical and dental practitioners can apply for consent by completing the Application for consent to medical or dental treatment form or by providing a written letter with the following information:
- what the proposed treatment is for
- the period of time consent is sought
- general nature, effects and risks of the proposed treatment
- general nature, effects and risks associated with alternative treatments or no treatment
- the views of your patient including if they object to the proposed treatment.
Medical and dental practitioners can also make a request over the phone for a minor medical treatment only. For information about substitute consent and categories of treatment, download Substitute Consent - what the law says (PDF 607.29KB).
The Public Guardian can only provide consent to medical or dental treatment if we have the authority to make this type of decision and the treatment promotes and maintains the person's health and wellbeing.
We can consent to individual treatments, a course of treatment or treatment plans, and may attach time limits or other conditions.
Before we provide our decision to provide or decline consent, we may ask questions to understand the person's condition and the proposed treatment, seek a second medical opinion if necessary and discuss the treatment with the patient and close relatives or friends (if appropriate).
In NSW, if your patient is 16 years and over it is your responsibility to seek consent for treatment from your patient’s ‘person responsible’ who could be one of the following people, in order of priority:
- an appointed guardian (including an Enduring Guardian), with the appropriate medical and dental decision-making authority
- the most recent spouse or de facto spouse where there is a close and continuing relationship
- an unpaid carer or the carer at the time the person entered residential care (recipients of a government carer benefit are not considered to be paid)
- a relative or friend who has a close personal relationship with the person.
If the person you ask declines, you can request consent from the next person in the hierarchy.
If you’re unable to gain consent, you can apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for consent to one-off treatment by completing their NCAT medical and dental consent form.
Consent is not required for urgent medical treatment to:
- save your patient’s life
- prevent serious damage to their health
- prevent or alleviate significant pain or distress (not including special treatment).
You cannot administer treatment if your patient has withheld consent to urgent or lifesaving treatment via:
- a valid Advance Care Directive
- an appropriately endorsed and valid NSW Ambulance Authorised Adult Palliative Care Plan.
You may propose to withdraw medical treatment if you determine that it is no longer of benefit to your patient.
You need to include your patient, their guardian and other important people in their life in these discussions as the patient’s values and wishes are important. It’s important to be aware that:
- a guardian with authority to make healthcare decisions can consent to a person’s treatment withdrawal
- a doctor does not have to offer non-clinically necessary treatment, however if the patient’s guardian disagrees with the proposed treatment plan, they can advocate for treatment or a second opinion.
If a person has the Public Guardian appointed as their guardian, and you think the person can provide their own consent for treatment you should discuss it with the Public Guardian. This can be done initially over the phone, however we will require you to submit your treatment plan in writing.
End of life planning
Planning ahead for managing end of life decisions is complex and can take time.
Your patient, their guardian and other important people in their life should be included in discussions about withdrawing treatment and care plans.
Appointment of the Public Guardian
The Public Guardian (part of NSW Trustee and Guardian) is appointed by the NSW Civil and Administrative authority (NCAT) either solely or jointly as the person’s guardian.
The Public Guardian must be appointed with the health care function to make end-of-life-decisions. We must also hold the medical/dental care function to make substitute decisions about end-of-life medication.
The role of a guardian in end of life planning
Guardians need detailed information to provide consent to any end of life medical treatment, including:
- whether the person has made an Advance Care Directive
- the person’s current or previous views
- the views of family, friends and carers
- clinical views from treating practitioners
- risks and benefits (including side effects) of any proposed treatment.
We can also help if information is required from medical professionals and involvement from significant others.
End of Life decisions will be made as soon as possible (including after-hours for urgent matters).
End of life care for someone under guardianship
As the patient’s healthcare provider, you should work with their guardian to ascertain consent to any end-of-life medical treatment. It is important to understand the following:
Doctors do not have to offer non-clinically necessary treatment – Doctors may propose treatment limitations or withdrawal, but the values and wishes of the patient should be central to health and end-of-life discussions and given as much consideration as possible.
The guardian can consent to treatment withdrawal but if they disagree with your proposed treatment plan, they can advocate for treatment reinstatement or a second opinion.
- Consent is not required for urgent medical treatment – This includes treatment to save a person’s life, prevent serious damage to health or prevent suffering. If the patient has already directed that they do not consent to urgent, (including lifesaving) treatment through a valid Advance Care Directive, or they have communicated their wishes in an appropriately endorsed and valid NSW Ambulance Authorised Adult Palliative Care Plan, the treatment cannot be given.
- The Public Guardian requires a Resuscitation Plan to consider use/withholding of resuscitation measures –A Resuscitation Plan is a medically authorised order to use or withhold resuscitation measures. It also outlines other aspects of end-of-life treatment. You should discuss the plan with your patient, the Public Guardian and family members.
- A Resuscitation Plan must be informed by any valid Advance Care Directive (ACD) or previously prepared plan –The Public Guardian will not consent to the withholding of resuscitation without a Resuscitation Plan. If cardio-respiratory arrest is not anticipated and there is no Resuscitation Plan in place, we expect that the doctor uses clinical judgement and follow any valid ACDs.
- Voluntary Assisted Dying –was introduced in NSW on 28 November 2023. A person under Guardianship is not eligible to access voluntary assisted dying, as a patient must have decision-making capacity throughout the entire process and meet all the steps set out in the legislation.
Advance Care Directives
An Advance Care Directive (ACD) outlines a person’s wishes for their future medical treatment in case they are unable to make or communicate their decisions. It includes their:
- medical history and current condition
- preferences, values and beliefs.
An ACD can only be made by the person themselves when they have decision-making capacity. A guardian or another person can't write, direct or consent to an ACD on the person's behalf.
You can find out more and make an Advanced Care Directive on the NSW Health website.
Resources
National Disability Services offers a free Supported Decision Making e-learning module.
Contact NSW Trustee and Guardian
For general enquiries, call:
- 1300 109 290 within Australia
- +61 2 9240 0702 from overseas
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