Part 5 Medical and dental treatment
The objects of this Part are:(a) to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and(b) to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and well-being.
(1) In this Part:clinical trial means a trial of drugs or techniques that necessarily involves the carrying out of medical or dental treatment on the participants in the trial.
medical or dental treatment or treatment means:
(a) medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner, or(b) dental treatment (including any dental procedure, operation or examination) normally carried out by or under the supervision of a dentist, or(c) any other act declared by the regulations to be treatment for the purposes of this Part,(and, in the case of treatment in the course of a clinical trial, is taken to include the giving of placebos to some of the participants in the trial), but does not include:(d) any non-intrusive examination made for diagnostic purposes (including a visual examination of the mouth, throat, nasal cavity, eyes or ears), or(e) first-aid medical or dental treatment, or(f) the administration of a pharmaceutical drug for the purpose, and in accordance with the dosage level, recommended in the manufacturer’s instructions (being a drug for which a prescription is not required and which is normally self-administered), or(g) any other kind of treatment that is declared by the regulations not to be treatment for the purposes of this Part.major treatment means treatment (other than special treatment or treatment in the course of a clinical trial) that is declared by the regulations to be major treatment for the purposes of this Part.
minor treatment means treatment that is not special treatment, major treatment or treatment in the course of a clinical trial.
person responsible has the meaning given by section 33A.
special treatment means:
(a) any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out, or(b) any new treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in the area of practice concerned, or(c) any other kind of treatment declared by the regulations to be special treatment for the purposes of this Part,but does not include treatment in the course of a clinical trial.(2) For the purposes of this Part, a person is incapable of giving consent to the carrying out of medical or dental treatment if the person:(a) is incapable of understanding the general nature and effect of the proposed treatment, or(b) is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.(3) For the purposes of this Part, a person shall be taken to object to the carrying out of medical or dental treatment:(a) if the person indicates (by whatever means) that he or she does not want the treatment to be carried out, or(b) if the person:(i) has previously indicated, in similar circumstances, that he or she did not then want the treatment to be carried out, and(ii) has not subsequently indicated to the contrary.(4) (Repealed)
(1) Object
The object of this section is to specify the person who is the person responsible for another person for the purposes of this Part.(2) Person responsible for child
The person responsible for a child is the person having parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the child. However, the person responsible is the Minister if the child is in the care of the Minister or the Director-General if the child is in the care of the Director-General.(3) Person responsible for person in care of Director-General
The person responsible for a person in the care of the Director-General under section 13 is the Director-General.(4) Person responsible for another person
There is a hierarchy of persons from whom the person responsible for a person other than a child or a person in the care of the Director-General under section 13 is to be ascertained. That hierarchy is, in descending order:(a) the person’s guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,(b) the spouse of the person, if any, if:(i) the relationship between the person and the spouse is close and continuing, and(ii) the spouse is not a person under guardianship,(c) a person who has the care of the person,(d) a close friend or relative of the person.Note. Circumstances in which a person is to be regarded as having the care of another person are set out in section 3D. The meaning of close friend or relative is given in section 3E.(5) Operation of hierarchy
If:(a) a person who is, in accordance with the hierarchy referred to in subsection (4), the person responsible for a particular person declines in writing to exercise the functions under this Part of a person responsible, or(b) a medical practitioner or other person qualified to give an expert opinion on the first person’s condition certifies in writing that the person is not capable of carrying out those functions,the person next in the hierarchy is the person responsible for the particular person.
(1) This Part applies to a patient:(a) who is of or above the age of 16 years, and(b) who is incapable of giving consent to the carrying out of medical or dental treatment.(2) In the event of an inconsistency between the provisions of this Part and the provisions of the Mental Health Act 2007 or the Mental Health (Forensic Provisions) Act 1990, the provisions of the Mental Health Act 2007 or the Mental Health (Forensic Provisions) Act 1990 prevail.
Division 2 Medical and dental treatment
(1) A person must not carry out medical or dental treatment on a patient to whom this Part applies unless:(a) consent for the treatment has been given in accordance with this Part, or(b) the carrying out of the treatment is authorised by this Part without any such consent, or(c) the treatment is carried out in accordance with an order made by the Supreme Court in the exercise of its jurisdiction with respect to the guardianship of persons.Maximum penalty:
• in the case of special treatment or treatment in the course of a clinical trial (on conviction on indictment)—imprisonment for 7 years, or• in the case of minor or major treatment (on summary conviction)—imprisonment for 1 year or 10 penalty units, or both.(1A) Subsection (1) (c) does not apply in the case of special treatment that is special treatment of the kind referred to in paragraph (a) of the definition of special treatment in section 33 (1) or special treatment prescribed by the regulations for the purposes of this subsection.(2) This section does not limit the operation of any other Act or law under which minor treatment may be carried out on a person without that person’s consent.
(1) Consent to the carrying out of medical or dental treatment on a patient to whom this Part applies may be given:(a) in the case of minor or major treatment—by the person responsible for the patient, or(b) in any case—by the Tribunal.(2) The guardian of a patient may also consent to the carrying out of continuing or further special treatment if the Tribunal has previously given consent to the carrying out of the treatment and has authorised the guardian to give consent to the continuation of that treatment or to further treatment of a similar nature.
37 When treatment may be carried out without any such consent
(1) Medical or dental treatment may be carried out on a patient to whom this Part applies without consent given in accordance with this Part if the medical practitioner or dentist carrying out or supervising the treatment considers the treatment is necessary, as a matter of urgency:(a) to save the patient’s life, or(b) to prevent serious damage to the patient’s health, or(c) except in the case of special treatment—to prevent the patient from suffering or continuing to suffer significant pain or distress.(2) Minor treatment may (subject to subsection (3)) also be carried out on a patient to whom this Part applies without any consent given in accordance with this Part if:(a) there is no person responsible for the patient, or(b) there is such a person but that person either cannot be contacted or is unable or unwilling to make a decision concerning a request for that person’s consent to the carrying out of the treatment.(3) The medical practitioner or dentist carrying out, or supervising the carrying out of, minor treatment in accordance with subsection (2) is required to certify in writing in the patient’s clinical record that:(a) the treatment is necessary and is the form of treatment that will most successfully promote the patient’s health and well-being, and(b) the patient does not object to the carrying out of the treatment.
Division 3 Consents given otherwise than by the Tribunal
40 Consents given by persons responsible for patients
(1) Any person may request a person responsible for a patient to whom this Part applies for that person’s consent to the carrying out of medical or dental treatment on the patient.(2) Such a request shall specify:(a) the grounds on which it is alleged that the patient is a patient to whom this Part applies,(b) the particular condition of the patient that requires treatment,(c) the alternative courses of treatment that are available in relation to that condition,(d) the general nature and effect of each of those courses of treatment,(e) the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and(f) the reasons for which it is proposed that any particular course of treatment should be carried out.(3) In considering such an application, the person responsible for the patient shall have regard to:(a) the views (if any) of the patient,(b) the matters referred to in subsection (2), and(c) the objects of this Part.(4) The regulations may make provision for the manner and form in which:(a) requests under this section shall be made, and(b) consents under this section shall be given.
Division 4 Consents given by the Tribunal
42 Applications to the Tribunal
(1) Any person may apply to the Tribunal for consent to the carrying out of medical or dental treatment on a patient to whom this Part applies.(2) Such an application shall specify:(a) the grounds on which it is alleged that the patient is a patient to whom this Part applies,(b) the particular condition of the patient that requires treatment,(c) the alternative courses of treatment that are available in relation to that condition,(d) the general nature and effect of each of those courses of treatment,(e) the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and(f) the reasons for which it is proposed that any particular course of treatment should be carried out.(3) Whenever such an application is made for consent to the carrying out of medical or dental treatment and the treatment cannot be carried out without that consent, the Tribunal may, by order:(a) direct the person who is to carry out the treatment not to start the treatment, or(b) if the treatment has already started—direct the person who is carrying out the treatment to discontinue it,until the Tribunal has determined the application.(4) A person who, without lawful excuse, fails to comply with such an order is guilty of an offence.Maximum penalty (subsection (4)): 5 penalty units.
(1) The applicant for consent shall, as soon as practicable after the application has been made, cause a copy of the application to be served on:(a) the patient, and(b) the person who is proposing that medical or dental treatment be carried out on the patient, and(c) each person responsible for the patient who can reasonably be located.(d) (Repealed)(1A) Before conducting a hearing into the application, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will conduct the hearing to be served on each person on whom a copy of the application is required to be served under subsection (1).(2) Failure to serve a copy of an application, or a notice, in accordance with this section does not vitiate the decision of the Tribunal on the application.
(1) If, after conducting a hearing into an application for consent to the carrying out of medical or dental treatment on a patient to whom this Part applies, the Tribunal is satisfied that it is appropriate for the treatment to be carried out, it may consent to the carrying out of the treatment.(2) In considering such an application, the Tribunal shall have regard to:(a) the views (if any) of:(i) the patient,(ii) the person who is proposing that medical or dental treatment be carried out on the patient,(iii) any persons responsible for the patient, and(iv) (Repealed)(b) the matters referred to in section 42 (2), and(c) the objects of this Part.(3) Nothing in this section requires the Tribunal to consider an application relating to a patient if it is not satisfied that the applicant has a sufficient interest in the health and well-being of the patient.
45 Restrictions on Tribunal’s power to give consent
(1) The Tribunal must not give consent to the carrying out of medical or dental treatment on a patient to whom this Part applies unless the Tribunal is satisfied that the treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and well-being.(2) However, the Tribunal must not give consent to the carrying out of special treatment unless it is satisfied that the treatment is necessary:(a) to save the patient’s life, or(b) to prevent serious damage to the patient’s health,or unless the Tribunal is authorised to give that consent under subsection (3).(3) In the case of:(a) special treatment of a kind specified in paragraph (b) of the definition of that expression in section 33 (1), or(b) prescribed special treatment (other than special treatment of a kind specified in paragraph (a) of that definition),the Tribunal may give consent to the carrying out of the treatment if it is satisfied that:(c) the treatment is the only or most appropriate way of treating the patient and is manifestly in the best interests of the patient, and(d) in so far as the National Health and Medical Research Council has prescribed guidelines that are relevant to the carrying out of that treatment—those guidelines have been or will be complied with as regards the patient.
45A Consents to continuing or further special treatment by a patient’s guardian with authority of the Tribunal
(1) The Tribunal may, when giving consent to the carrying out of special treatment on a patient to whom this Part applies, confer on the guardian of the patient authority to consent:(a) to the continuation of the treatment, or(b) to the carrying out on the patient of further special treatment of a similar nature.(2) The Tribunal may only confer such an authority at the request or with the consent of the guardian.(3) The Tribunal may at any time:(a) impose conditions or give directions as to the exercise of such an authority, or(b) revoke such an authority.(4) If the guardian has an authority conferred under this section, any person may request the guardian for the guardian’s consent to the carrying out of the relevant treatment.(5) In considering a request, a guardian must have regard to:(a) the views (if any) of the patient, and(b) the objects of this Part.
45AA Tribunal may approve clinical trials
(1) The Tribunal may approve, in accordance with this section, a clinical trial as a trial in which patients to whom this Part applies may participate.(2) The Tribunal may give an approval under this section only if it is satisfied that:(a) the drugs or techniques being tested in the clinical trial are intended to cure or alleviate a particular condition from which the patients suffer, and(b) the trial will not involve any known substantial risk to the patients (or, if there are existing treatments for the condition concerned, will not involve material risks greater than the risks associated with those treatments), and(c) the development of the drugs or techniques has reached a stage at which safety and ethical considerations make it appropriate that the drugs or techniques be available to patients who suffer from that condition even if those patients are not able to consent to taking part in the trial, and(d) having regard to the potential benefits (as well as the potential risks) of participation in the trial, it is in the best interests of patients who suffer from that condition that they take part in the trial, and(e) the trial has been approved by a relevant ethics committee and complies with any relevant guidelines issued by the National Health and Medical Research Council.(3) The fact that a clinical trial will or may involve the giving of placebos to some of the participants in the trial does not prevent the Tribunal from being satisfied that it is in the best interests of patients that they take part in the trial.(4) The Tribunal’s approval of a clinical trial under this section does not operate as a consent to the participation in the trial of any particular patient to whom this Part applies. The appropriate consent must be obtained under Division 3 or 4 before any medical or dental treatment in the course of the trial is carried out on the patient.(5) In this section:ethics committee means:
(a) for so long as there is any relevant Institutional Ethics Committee registered by the Australian Health Ethics Committee established under the National Health and Medical Research Council Act 1992 of the Commonwealth—an Institutional Ethics Committee so registered, or(b) in the absence of such a committee, an ethics committee established by:(i) a local health district or a public hospital, or(ii) a university, being an ethics committee concerned, wholly or partly, with medical research, or(iii) the National Health and Medical Research Council.
45AB Consent for participation in clinical trials in individual cases
(1) If the Tribunal is satisfied as to the matters specified in section 45AA (2) in relation to a clinical trial, it may, by order, determine:(a) that the function of giving or withholding consent for the carrying out of medical or dental treatment on patients in the course of the trial is to be exercised by the persons responsible for the patients (in which case Division 3 applies), or(b) that the Tribunal is to exercise that function itself (in which case Division 4 applies).(2) Before making a determination referred to in subsection (1) (a), the Tribunal must be satisfied that the form for granting consent and the information available about the trial provide sufficient information to enable the persons responsible to decide whether or not it is appropriate that the patients should take part in the trial.
(1) Subject to subsections (2) and (3), a consent given under this Part in respect of the carrying out of medical or dental treatment on a patient to whom this Part applies has effect:(a) as if the patient had been capable of giving consent to the carrying out of the treatment, and(b) as if the treatment had been carried out with the patient’s consent.(2) A consent given by a person responsible for, or the guardian of, the patient has no effect:(a) if the person carrying out or supervising the proposed treatment is aware, or ought reasonably to be aware, that the patient objects to the carrying out of the treatment, or(b) if the proposed treatment is to be carried out for any purpose other than that of promoting or maintaining the health and well-being of the patient.(3) A consent given by the guardian of the patient has effect despite any objection made by a patient to the carrying out of the treatment if the guardian has consented to that treatment in accordance with the authority of the Tribunal under section 46A.(4) For the purposes of this section, an objection by a patient to the carrying out of proposed medical or dental treatment is to be disregarded if:(a) the patient has minimal or no understanding of what the treatment entails, and(b) the treatment will cause the patient no distress or, if it will cause the patient some distress, the distress is likely to be reasonably tolerable and only transitory.(5) Nothing in this Part precludes the Tribunal, a person responsible or a guardian from giving consent to the carrying out on a patient to whom this Part applies of medical or dental treatment specifically excluded from the definition of that expression in section 33 (1). This section applies to any such consent as if that treatment were not excluded from that definition.
46A Power of guardian to override patient’s objection to treatment when authorised by the Tribunal
(1) The Tribunal may confer on the guardian of a patient to whom this Part applies authority to override the patient’s objection to the carrying out on the patient of major or minor treatment.(2) The Tribunal may confer such an authority only at the request or with the consent of the guardian and only if it is satisfied that any such objection will be made because of the patient’s lack of understanding of the nature of, or reason for, the treatment.(3) The Tribunal may at any time:(a) impose conditions or give directions as to the exercise of such an authority, or(b) revoke such an authority.(4) The guardian may exercise such an authority only if satisfied that the proposed treatment is manifestly in the best interests of the patient.
Nothing in this Part relieves a person from liability in respect of the carrying out of medical or dental treatment on a patient to whom this Part applies, being a liability to which the person would have been subject:(a) had the patient been capable of giving consent to the carrying out of the treatment, and(b) had the treatment been carried out with the patient’s consent.
The regulations may make provision for or with respect to the keeping of records of medical or dental treatment carried out on a patient to whom this Part applies.