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Consenting To A Medical Procedure (NT)

In the Northern Territory, every person has the right to refuse medical treatment. As such, a doctor must obtain consent before performing any medical procedures on a patient. This consent must be voluntary and informed. This article explains the process of consenting to a medical procedure in the Northern Territory.  

Informed Consent in the Northern Territory

There is significant common law precedent and specific legislation that governs medical procedure consent. Informed consent is an essential element of the Australian Charter of Healthcare Rights, the Professional Code of Conduct and the National Safety and Quality Health Service Standard.

A doctor in the Northern Territory has a duty of care that includes the responsibility to obtain informed consent from their patient. The doctor must properly inform the patient of the treatment plan and the potential risks. Failure to adequately warn a patient of the risks is a breach of a provider’s duty of care. A patient can only give informed consent if they understand the following:

  • The  diagnosis;
  • The available treatments and the doctor’s recommendation as to the appropriate choice of treatment;
  • The potential risks and likelihood of success associated with the treatment in percentage terms (for example, surgery is effective in 45% of cases). The risk of taking no action and the attendant costs and timeframes; and
  • The specific risks to the patient given their own age, fitness and relative health and medical condition.

The physician should tailor the information so that it is easily understandable for the patient, and allow them sufficient time to consider the issue, ask questions, raise concerns and consult with support people.

Obtaining Consent in the Northern Territory

The treating physician must establish that the patient gave informed consent before performing the procedure. Consent can be verbal, written or even implied. For example, if a patient presents their exposed arm ready to receive an injection, this can be seen as legally implied consent.

There are four requirements to satisfy legal consent:

  1. The patient has the mental and legal capacity to consent to the procedure;
  2. Their consent is voluntary;
  3. The patient’s consent was to the procedure in question; and
  4. The patient was properly informed before providing consent.

Capacity to consent to a medical procedure in the Northern Territory

A doctor must believe that a patient has sufficient capacity to understand the effect of giving consent. For instance, a language barrier can present an obstacle to a person giving consent. In such a case, a communication aid or interpreter may be needed to facilitate understanding. In the case of a person suffering from a condition such as intoxication, a brain injury, mental illness or intellectual disability, it is not always simple to determine whether they are capable of giving informed consent.

Age of consent

A person becomes an adult and capable of medical consent in Australia at the age of eighteen. Consent for a medical procedure performed on a minor is typically given by the child’s parent or guardian.  However, there are also circumstances when a minor can give consent for their own treatment in the Northern Territory. 

Substitute consent

When a patient lacks legal capacity, there is a regulatory framework that allows for obtaining substitute consent. In the Northern Territory, substitute consent is allowed by legislation such as the Advance Personal Planning Act 2013, the Guardianship of Adults Act 2016, and the Mental Health and Related Services Act 1998.

Coercion to consent

The patient’s consent must be voluntary, and free from manipulation, coercion, undue pressure or deception. A medical practitioner, family member or friend can help the patient make a decision on consenting to a medical procedure. Still, it is imperative that this assistance does not constitute undue pressure, as this would invalidate the consent. The doctor must be assured that the patient is consenting of their own free will.

Scope of consent

A doctor can only provide treatment for the procedures for which the patient gives consent. Thus, a patient might consent to one course of treatment without agreeing to the entire treatment program. A doctor who provides treatment beyond the scope of the consent might be accused of battery, trespass or assault on the body.

Emergency

There is an exception to the requirement for consent in an emergency. In urgent circumstances, when the patient cannot give consent because of practicalities or incapacity, the doctor can perform life-saving surgery without explicit consent under the Emergency Medical Operations Act 1973.

Otherwise, if a doctor performs a medical procedure without the patient’s consent, the patient may be entitled to monetary compensation for damages through a claim of battery or trespass. This does not apply when the medical practitioner is protected from liability because the treatment was necessary in an emergency or life-saving situation.

A patient must be aware of their rights and how they can protect themselves against medical professionals. If you are concerned that you were treated without valid consent, you can contact the Health and Community Services Complaints Commission. Please call our civil law team on 1300 636 846 or contact our offices to discuss your legal options.

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Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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