Healthcare Rights and Informed Consent
Published: 10 August 2020
Published: 10 August 2020
An essential component of this is adequately informing clients about the care they are receiving and ensuring they provide informed consent for any treatments or procedures.
The Australian Charter of Healthcare Rights outlines the rights of all clients receiving care and applies to every facility that provides healthcare.
(Adapted from ACSQHC 2019)
In the Australian Charter of Healthcare Rights, informed consent falls under the heading of ‘information’.
Informed consent is the ability for a client to voluntarily agree or disagree to different aspects of their care, based on information about the potential benefits, risks and alternative options (RACGP 2018).
It is a key component of consumer-directed care based on the client’s right to autonomy (QLD DoH 2017).
Clients have a legal right to be informed about their condition and any proposed healthcare interventions. Using the information given to them, clients may accept or decline these interventions. They must also be free to change their decision if they wish to do so (Better Health Channel 2014; QLD DoH 2017).
Clients can only provide informed consent if they are given sufficient, clear information and fully understand the nature of what is being proposed. Without being properly informed, clients are unable to give valid consent. The provider may then be held legally liable for breaching the client’s bodily autonomy (Better Health Channel 2014; ALRC 2014).
Any form of healthcare requires some type of consent. This includes:
(QLD DoH 2014)
However, the consent required is proportionate to the risks of the specific care. In other words, simple procedures and examinations that are relatively low-risk do not require the level of consent that invasive or high-risk procedures do (QLD DoH 2014).
(QLD DoH 2014)
Written consent is generally only required if:
(QLD DoH 2014)
All of the following conditions must be met in order for a client to give valid informed consent:
(QLD DoH 2017; Better Health Channel 2014)
All adults (over the age of 18), regardless of age, are presumed to have the capacity to give informed consent unless proven otherwise (QLD DoH 2017).
Having capacity means meeting all four of the following criteria:
(VIC DoH 2014)
Note: Capacity can fluctuate. A client may have capacity one day, but may not have it the next day and vice versa. It is important to determine whether the client has capacity at the time of each decision (VIC DoH 2014).
Consent for children under the age of 18 is generally given by a parent or guardian and must be in line with the child’s best interests. However, there may be situations wherein children can give their own consent (Choahan 2018).
Unlike adults, children are presumed not to have capacity unless sufficiently proven otherwise. A child with proven capacity has what is known under common law as ‘Gillick competence’, named after the English court case Gillick v West Norfolk AHA in which it was established (Health Law Central 2019).
In New South Wales and South Australia, there is legislation that recognises the capacity of children under 18 in certain situations (Health Law Central 2019).
What happens if an adult client is assessed as not having capacity?
In this situation, the first step is to determine whether the client has a valid advance care directive in place. An advance care directive may explicitly set out instructions for the specific intervention being proposed, which are legally binding and must be followed. If there are no specific directions, the client’s values and preferences in their advance care directive must be taken into consideration (QLD DoH 2017; Office of the Public Advocate 2018).
If the specific intervention has not been addressed in the client’s advance care directive, or there is no advance care directive, a substitute decision-maker will need to give consent on their behalf. A substitute decision-maker may have been appointed in the client’s advance care directive if one exists; otherwise, a substitute decision-maker (generally a spouse, relative or close friend) will be appointed through legislation or court (QLD DoH 2017; ALRC 2014).
As a general rule, substitute decision-makers must always act in the best interest of the client and consider their values and preferences. Clients who are assessed as not having capacity should still be involved in decisions as much as possible (QLD DoH 2017).
There are certain procedures that health professionals are able to perform without consent, depending on the jurisdiction. These are generally either minor procedures and examinations or emergency treatments. An overview of the permitted interventions for each state and territory can be found on the Queensland University of Technology website.
A client who otherwise has capacity may have difficulty comprehending information or communicating their consent due to a language barrier, sensory impairment or another factor. It is essential that clients are provided information in a form that they can fully understand (QLD DoH 2017).
In some situations, you may need to engage an interpreter or support service to ensure the client can communicate and understand information effectively.
Question 1 of 3
Martha is 79-years-old and was brought to the hospital after becoming ill. For the duration of her stay, Martha has been chatty, aware of her surroundings and receptive to information. Today, when a doctor comes to seek Martha’s consent for a specific treatment, she appears confused and is unable to understand what he is saying. Which of the following statements best applies to Martha?
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