A person cannot receive medical treatment without giving lawful consent, except in special circumstances in the case of an emergency.
To be lawful the consent must be given by a person who:
- is of or over the age of 16 years and
- has the decision-making capacity to provide consent.
Providing medical treatment to children under the age of 16 years may be provided with:
- the consent of a parent or guardian, or
- the consent of the child - if a medical practitioner considers the child is capable of understanding:
- the nature, consequences and risks of the proposed treatment
- the treatment is necessary for the child’s health and wellbeing
- there is a second medical opinion supporting that treatment.
A medical practitioner does not need the consent of a person or of SACAT to withdraw or withhold medical treatment (including life sustaining measures).
Applying to SACAT
SACAT deals with the following types of applications in this area:
- providing consent to medical treatment (not being prescribed medical or prescribed psychiatric treatment) for a person with impaired decision-making capacity as a last resort in certain circumstances
- reviewing a matter dealt with by the Public Advocate to resolve disputes arising about a decision relating to consent to medical treatment (not being prescribed medical treatment or some types of prescribed psychiatric treatment)
- making declarations and directions about issues and disputes that might arise about a decision relating to consent to medical treatment (not being prescribed medical or some types of prescribed psychiatric treatment) (See Consent Act S 18E (b)). SACAT will usually only review or make a declaration if the Public Advocate has previously tried to resolve the matter or mediate the issue. If the Public Advocate has not first dealt with the matter SACAT can refer the matter back to the Public Advocate for mediation.
- providing consent for prescribed medical treatment for a person with a mental incapacity who is incapable of giving effective consent (See Guardianship and Administration Act s 61)
- providing consent for prescribed psychiatric treatment for a person with mental illness incapable of making decisions on his/her own behalf and who cannot give written consent to the treatment (Mental Health Act s 42 and s 43).
SACAT does not:
- usually provide initial advice, dispute resolution or give initial directions or declarations about issues arising about ‘consent to medical treatment’ decisions. These are functions performed by the Office of the Public Advocate.
- make consent to treatment decisions or resolve disputes about the treatment of a person for mental illness under the Mental Health Act or about prescribed medical treatment or about a certain type of prescribed psychiatric treatment (being neurosurgery) in the case of mental illness
- make consent to treatment decisions or give a declaration or direction about an issue arising about the treatment of a person for mental illness under the Mental Health Act or about prescribed medical treatment or about a certain type of prescribed psychiatric treatment (being neurosurgery) in the case of mental illness.