Consent

Question 1

What are the requirements for a valid consent? (there are 4)

Answer 1

1. Consent must be voluntary – not be subject to duress, coercion, drugs, or psychosis Beausoleil v Sisters of Charity (1966)
2. Consent must cover the procedure proposed Murray v McMurchy (1949)
3. Patients must have a minimal understanding of the procedure Chatterton v Gerson [1981]
   and more recently…… be given adequate
   information to allow a decision i.e. ‘informed
   consent’ Rogers v Whitaker (1992) - ‘material risks’
4. The patient must have legal capacity i.e. ‘sound mind’ & of legal age > 18 years Age of Majority Act 1977 (Vic)

Question 2

What are the exceptions to the general rule of consent?

Answer 2

1. Emergency situations - doctrine of necessity Marshall v Curry [1933]
2. Legislative intervention
   Doctors can override parents decision of they believe the child needs it.
3. Children – legal guardians, usually parents
   ‘Gillick competent’ (UK case 1986) – A minor is
   competent to consent to treatment if he/she is
   capable of understanding what is involved in a
   proposed treatment or procedure.
   Marion’s case (Aust case 1990) – A minor is
   capable of giving consent when he/she achieves a
   sufficient understanding & intelligence to enable
   him/her to fully understand what is proposed.
   This case brings ‘Gillick’ into the Australian legal system

Question 3

A patient is deemed ‘incompetent’ when they do not have legal capacity. There are 2 components to this concept. What are they?

Answer 3

1- An inability to make decisions
2- The presence of cognitive impairment ( this could be permanent like dementia or temporary like concussion or drunkenness)

Question 4

The Guardianship & Administration Act 1986 (section 37) allows for a ‘person responsible’ to provide consent for a person who is deemed incompetent. In priority order who are the persons responsible?

This occurs for short term incompetence, for long
term situations a guardian is appointed by
VCAT

Answer 4

1. Agent under the Medical Treatment Act
2. VCAT appointed guardian
3. Enduring guardian
4. Person appointed in writing by the patient
5. Spouse including defacto
6. Primary carer (not paid)
7. Nearest relative over 18 yrs – son/daughter,
   father/mother, brother/sister, grandfather/mother,
   uncle/aunt, nephew/niece – in that order .

(3. downward can provide consent but cannot withdraw consent)
The person responsible acts in the best interest of the incompetent person

Question 5

Out of the following possible person resposible which are aloud to both deny and approve consent?
- Spouse including defacto
- Person appointed in writing by the patient
- Agent under the Medical Treatment Act
- Primary carer (not paid)
- Nearest relative over 18 yrs – son/daughter,
father/mother, brother/sister, grandfather/mother,
uncle/aunt, nephew/niece – in that order .
- Enduring guardian
- VCAT appointed guardian

Answer 5

1. Agent under the Medical Treatment Act
2. VCAT appointed guardian ONLY
   The others can only grant consent.

Question 6

What are the methods of conveying consent?

Answer 6

• verbal
• written- (however this is just evidence of the verbal discussion)
• Implied (Hart V Herron)

Question 7

What is Gillick Competent?

Answer 7

‘Gillick competent’ (UK case 1986) – A minor is
competent to consent to treatment if he/she is
capable of understanding what is involved in a
proposed treatment or procedure.