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.
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’.
Tom's story
Tom has an intellectual disability.
At a dentist’s visit for a toothache, Tom is advised that his tooth is decayed and needs to be removed.
With the support of the dentist and his father, Tom understands the proposed treatment and provides his own consent.
However, when Tom's dentist recommends a general anaesthetic, Tom is not able to understand the risks of the anaesthesia.
Tom's dentist assesses that Tom is not able to give consent for the treatment and talks to Tom's person responsible instead – in this case, the person responsible is Tom's father.
Definitions
- person responsible
A person who can help decide what medical and dental treatment you receive if you can’t make those decisions yourself.
- consent
Permission for something to happen or agreement to do something.
If the Public Guardian is the guardian
If the Public Guardian is the guardian
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.
How do I seek consent from the Public Guardian?
Medical and dental practitioners can apply for consent by completing the Public Guardian medical and dental consent form or by providing a written letter with the following information:
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what the proposed treatment is for
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the period of time consent is sought
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general nature, effects and risks of the proposed treatment
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general nature, effects and risks associated with alternative treatments or no treatment
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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.
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 well-being.
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).
Definitions
- Consent
Permission for something to happen or agreement to do something.
Frequently asked questions
Who can provide consent if my patient is unable to?
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:
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an appointed guardian (including an Enduring Guardian), with the appropriate medical and dental decision-making authority
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the most recent spouse or de facto spouse where there is a close and continuing relationship
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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)
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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 complete the NCAT medical and dental consent form and apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for consent to one-off treatment.
Can I administer urgent medical treatment without consent?
Consent is not required for urgent medical treatment to:
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save your patient’s life
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prevent serious damage to their health
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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:
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a valid Advance Care Directive
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an appropriately endorsed and valid NSW Ambulance Authorised Adult Palliative Care Plan.
What do I do if I wish to withdraw or limit treatment?
You may propose to withdraw medical treatment if you determine that it is no longer of benefit to your patient.
Your 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:
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a guardian with authority to make healthcare decisions can consent to a person’s treatment withdrawal
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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.
What happens if I believe my patient can provide their own consent?
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.