Consent to medical treatment
A person cannot receive medical treatment, except in special circumstances in the case of an emergency, without giving lawful consent.
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.
The provision of 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 about the nature, consequences and risks of the proposed treatment, the treatment is necessary for the child’s health and wellbeing and there is a second medical opinion supporting that treatment.
Do you need to apply to SACAT for an order about consent to medical treatment?
If a person is assessed as having impaired decision making capacity and cannot consent to the provision of particular medical treatment, consent can be provided by a substitute decision maker who can be:
• a substitute decision maker appointed under an advance care directive or
• a 'person responsible' as set out in the Consent to Medical Treatment and Palliative Care Act.
If consent is able to be given by one of those persons then you will not need to apply to SACAT for an order. See 'Do I need to apply?'
Also, a medical practitioner does not need the consent of a person or of SACAT to withdraw or withhold medical treatment (including life sustaining measures).
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 (See ‘Consent Act’ s 14B)
• 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) (See ‘Consent Act’ s 18E(a))
• 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)) Note: SACAT will usually only review or make a declaration about an issue arising about a consent to treatment decision 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 preferably 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.
SACAT is also able to:
• appoint a guardian in certain circumstances regarding health, accommodation and personal matters
• appoint an administrator in certain circumstances regarding financial decisions
• provide consent to prescribed medical treatment
• provide consent to prescribed psychiatric treatment
• make and review treatment orders for people with mental illness.
Find out more about bringing an application to SACAT:
- Apply to SACAT
- Steps in resolving an issue
- Preparing for a hearing or conciliation
- Fees and charges - there are no fees in the Community Stream of SACAT.
- South Australian Civil and Administrative Tribunal Act 2013
- Guardianship and Administration Act 1993
- Consent to Medical Treatment and Palliative Care Act 1995
- Advance Care Directives Act 2013
- Mental Health Act 2009