Protective Division

Guardianship Stream
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Consent to medical and dental treatment

Why is consent to medical or dental treatment required?

Before a medical or dental practitioner provides treatment to a patient the practitioner must obtain consent for the treatment. The consent is valid if the practitioner has told the patient about:

  • the nature of the proposed treatment and its effects
  • the risks associated with the proposed treatment
  • alternative treatments (their nature, effects and risks)
  • the impact of not undertaking treatment.

The patient must be able to understand the treatment provided and agree to the proposed treatment before the treatment can be started. The patient has a right to refuse or withhold consent to the proposed treatment. If the patient cannot understand the practitioner's information about the proposed treatment or is unable to communicate whether or not they consent to the proposed treatment, the practitioner may need to seek substitute consent.

What is substitute consent?

Where a person or the Public Guardian other than the patient gives consent for medical or dental treatment, it is called 'substitute consent'. This can only occur in accordance with the legislation or an order of the Tribunal.

Who can give substitute consent for medical or dental treatment?

The following people can give substitute consent to treatment:

  • the Person Responsible
  • the Tribunal.

When is consent not needed?

There are some instances where consent or substitute consent to medical or dental treatment is not needed:
  • when there is a medical or dental emergency
    • This means the treatment is needed to save the patient's life, to prevent serious damage to the patient's health or to prevent the suffering of significant pain or distress.
  • when the treatment is minor
    • For example, a visual examination of the patient's mouth, eyes, ears or throat, providing first aid or the administration of a non-prescription drug (such as painkillers or an antihistamine) within recommended dosages.

When can the Tribunal give consent to medical or dental treatment?

After hearing an application for consent to medical or dental treatment the Tribunal may consent to the proposed treatment if it is satisfied:

  • that the treatment is lawful
  • that the patient does not have capacity to consent
  • that the treatment is in the patient's best interests.
The Tribunal can give consent to medical or dental treatment on behalf of a person who is incapable of giving consent in the following circumstances:
  • where a patient is objecting to treatment that is necessary to promote their health and well-being but there is no Person Responsible available or willing to make that decision for the patient
  • where there is a dispute or uncertainty between the practitioner, Person Responsible and/or the patient about whether or not to proceed with the treatment
  • where the treatment proposed is Special Treatment where the proposed treatment involves a significant risk.

Consent to Medical or Dental Treatment Fact Sheet (PDF, 98.5 KB)

Consent to Medical or Dental Treatment (Practitioners) Fact Sheet (PDF, 92.8 KB)