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Capacity and consent to medical treatment: Proposed changes to the law

Newsletter 11 August 2014

As the National Disability Insurance Scheme moves forward a broad sweeping review of the laws relating to decision-making and legal capacity has been undertaken. The Australian Law Reform Commission (ALRC), a federal agency tasked with evaluating the efficiency and fairness of Australian laws, released a Discussion Paper in May 2014; “Equity, Capacity and Disability in Commonwealth Laws”. Chapter 10 of the Discussion Paper addresses informed consent (namely consent to medical treatment and the requirement to warn of a material risk prior to treatment) as part of a review of state and territory legislation.

National Decision-Making Principles

In the Discussion Paper the ALRC has proposed a number of National Decision-Making Principles to guide any changes to the law. These Principles are based on the United Nations Convention of the Rights of Persons with Disabilities which was ratified by the Australian Government in 2008 and seek to promote the rights of people with a disability to make decisions for themselves.

The four Principles are:

  1. Every adult has the right to make decisions that affect their life and to have those decisions respected;
  2. Persons who may require support in decision-making must be provided with the support necessary for them to make, communicate and participate in decisions that affect their lives;
  3. The will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives; and
  4. Decisions, arrangements and interventions for persons who may require decision-making support must respect their human rights.

Commonwealth Decision-Making Model

The purpose of the National Decision-Making Principles is to develop ideas which can be applied to a “Commonwealth Decision-Making Model”. Subsequently this model will be the basis for future changes to Commonwealth, State and Territory laws.

A central concept in the Commonwealth Decision-Making Model is the introduction of the role of a ‘supporter’ (to assist people with a reduced capacity to make decisions for themselves), and a ‘representative’ (for people who may need or want decisions to be made on their behalf). These two roles would follow similar principles; however a ‘representative’ would have additional duties. The new model constitutes a shift from the notion of substituted decision-making currently found in a number of jurisdictions and legal frameworks to what is referred to as ‘supported decision-making’.

Proposal for changes to state and territory laws

The ALRC has acknowledged that in order for change to be successfully implemented many laws critical to decision-making need review, including those regarding consent to medical treatment, that are currently governed by States and Territories. Therefore the ALRC has proposed a review be undertaken of State and Territory laws which concern decision-making by people who may require support to make decisions to “...ensure they are consistent with the National Decision-Making Principles and the Commonwealth decision-making model”.

It is well established that before proceeding with medical treatment, unless a health practitioner gains a patient’s consent to the treatment, it may be a trespass to the person. Further, a failure to disclose the risks inherent in a medical procedure to a patient may give rise to an action in negligence.

Although exceptions do exist when a patient is not capable of giving informed consent, such as in the case of a diminished capacity to make decisions due to a disability, mental illness or an emergency, the ALRC found a lack of guidance or consistency in the law relating to supported decision-making for medical treatment.

Significantly for health practitioners, the ALRC noted the following:

a health practitioner’s legal liability, if a patient can give informed consent to medical treatment with the assistance of a supporter, would need to be “…carefully assessed”; and

“…Any new approach to informed consent • would need to be reflected in guidance such as the Australian Charter of Rights in Healthcare, the National Safety and Quality Health Service Standards, the National Framework for Advance Care Directives, publications on communication with patients and the national codes of conduct of health practitioners.”

Submissions in response to the Discussion Paper closed on 30 June 2014. The ALRC is to provide a Final Report to the Attorney-General by the end of August 2014.

For further information

If you have any questions on the proposed changes, please feel free to contact the Brisbane Health Team.

A full copy of the Discussion Paper is available on the ALRC website

Katharine Philp, Partner

Newsletter 11 August 2014
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