State Administrative Tribunal – Guardianship and Administration
Resource Sheet
Treatment and Consent
As a general rule, all adults must give consent before any treatment can be carried out on them.
That consent must be 'informed consent'. This means that the person has received enough
information in a language and/or words that the person can understand, so that the person can
make an informed decision about whether to accept or refuse the treatment being proposed.
How much information is needed to give informed consent depends on many things and will be
different for every individual and each type of treatment. Sometimes obtaining consent to
treatment is done quite formally. For example, before any surgical procedure it will usually be
necessary to sign a consent form. Other times, for example when a person visits their GP
(General Practitioner), the process of obtaining consent might be quite informal.
One of the main exceptions to this general rule is that if an adult does not have the c apacity to
give informed consent to treatment, then someone else will usually need to give consent to, or
refuse, treatment on their behalf. Except in limited emergency situations, no treatment can be
given to an adult without consent from someone (either the person who it is proposed to give
the treatment to, or someone on their behalf).
A person may have the capacity to make some treatment decisions and not others or may not
be able to make any treatment decisions for themselves. For more information about what is
meant by 'capacity' please see the information below ‘What is meant by 'Capacity' and the
ability to make 'Reasonable Decisions'.
You might want to put in place arrangements in relation to treatment decisions that might need
to be made for you in the future for two reasons.
Firstly, if you were to be in an accident or for some other reason needed treatment but were
unconscious, you might want to ensure that you did, or did not, receive some types of treatment.
For example, in such a situation the doctors may need to consider giving you blood or blood
products, or putting you on a respirator (where a machine assists you to breathe). If for
religious, ethical or personal reasons you would not want to have one of those procedures, you
might want to do something to make sure, as far as possible, that the doctors were aware of
your views and respected your wishes.
Secondly, there are many reasons why a person might become incapable (either temporarily or
permanently) of making their own decision about whether or not to have treatment. If you
wanted to make sure that you have a say, in whether or not you received some types of
treatment, and/or in who is to make treatment decisions for you should it become necessary,
then this could be another reason to put arrangements in place.
If you have a close family member, or there is someone in your life who you are in a close
personal relationship with, you may just want to talk about your wishes with them and rely on
their ability as 'next of kin' to make treatment decisions on your behalf should you become
incapable (see ‘Next of Kin’ Decision Making fact sheet for further information). Or you might
want to have something in writing that directs what treatments you do or do not want to rec eive
or nominate a particular person you want to make these decisions for you.
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State Administrative Tribunal – Guardianship and Administration
What is meant by 'Capacity' and the ability to make 'Reasonable Decisions'
Having 'capacity' to make a decision is about whether a person has the legal ability to make
their own decisions. There is no single definition of capacity, and what is involved varies in
different areas of the law, but as a general concept it involves:
1. Being able to understand the relevant circumstances and information that are involved in
relation to the particular decision, including what the options are, and the risks and
benefits of each of those options,
2. To hold or retain that information long enough to weigh that information and make a
decision, and
3. Being able to communicate that decision.
This process is also described as the ability to make reasonable decisions. Capacity is not
about whether a person makes good decisions or bad decisions; it is about being able to carry
out the process of reasoning to make an independent decision.
Capacity is decision specific, and what is required to have the capacity to make a decision
changes depending on the decision concerned. A person may have capacity to make some
decisions but not others.
Under law, it is presumed that all adults have the capacity to make their own reasonable
decisions about their finances/estate and about personal matters. However, there are many
reasons why a person might not have capacity to make a particular decision or type of
decisions, or may lose capacity to make some, or all, of their own decisions.
Some conditions that may affect a person's capacity to make decisions include:
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Dementia (a disease of the brain)
Acquired brain injury (for example as a result of an accident or a stroke)
Substance related brain damage (a result of using drugs or excessive use of alcohol)
Mental illness (an illness of the brain like depression or schizophrenia)
Intellectual disability
Even if a person has one of the above, or some other condition, the presumption that all adults
have capacity stands unless there is some medical evidence that is capable of overriding the
presumption and establishing that the person does not have capacity.
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