Guide to Informed
Decision-making
in Health Care
Interim update
Version 2.4
2
Disclaimer
The Guide to Informed health practitioner Decision-making in Health Care is currently under review. This interim
version, 2.4, includes information regarding the Human Rights Act 2019 (Qld) and updates to the maternity care
and the termination of pregnancy sections. The changes are outlined in Table 1, Version history.
The information within the Guide to Informed Decision-making in Health Care is intended as a guide to good
clinical practice. The law and service delivery environment is constantly evolving, so while every attempt has
been made to ensure the content is accurate, it cannot be guaranteed. The information within this document
should not be relied upon as a substitute for other professional or legal advice and check relevant legislations.
ISBN 9781921707391
© State of Queensland (Queensland Health) 2024
This work is licensed under a Creative Commons Attribution Non-Commercial 2.5 Australian license. To view
a copy of this license, visit http://creativecommons.org/licenses/by-nc/2.5/au/
In essence, you are free to copy, communicate and adapt the work for non-commercial purposes, as long as
you attribute the Patient Safety and Quality, Queensland Health and abide by the license terms.
For further information, contact:
Patient Safety and Quality
Clinical Excellence Queensland
PO Box 2368
Fortitude Valley BC Queensland 4006
Phone:
Email:
Website:
(+61) (07) 3328 9430
InformedConsen[email protected]
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Phone: +61 7 3234 1479
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3
Foreword
Patient-centred care is widely recognised as a core dimension of a quality modern health service. Fundamental
to informed decision-making is a two-way dialogue between patients and their health practitioners about the
benefits, risks and alternatives of treatment, taking into account the patient’s personal circumstances, beliefs
and priorities. A well informed patient can actively participate in the decision-making process about their care,
and better understand the likely or potential outcomes of their treatment. Informed decision-making also
provides an additional layer of vigilance and protection against errors which may result in adverse events.
Performed well, the informed decision-making process builds trust, prevents harm and reduces surprise and
distress if complications or adverse events do occur.
The provision of informed consent by a patient reflects the end point of a process of engagement between the
patient and at least one health practitioner who has provided information to the patient to assist making an
informed decision in relation to their health care. While consent forms are often necessary for risk management,
completing the form is the final step in documenting a patient’s decision about consent; completing a consent
form does not constitute the entire informed decision-making process.
This Guide to Informed Decision-making in Health Care (Guide) documents the broadening approach to
informed patient decision-making in Queensland Health and is intended to be contemporaneous with and
reflect the national and international ethical, medico-legal and service delivery environment as it evolves and
relates to Queensland. It guides good clinical practice within the prevailing legal framework in how to implement
the principles of informed decision-making in clinical practice. It is not, and cannot be, exhaustive.
Reflected within this Guide is the often complex ethical, legal, policy and practical framework of contemporary
health care in which public sector health services are delivered. Such health care is delivered in a
multidisciplinary team environment in which medical practitioners, dentists, nurses and other allied health
practitioners, who each have differing roles and responsibilities in the provision of health care, provide care to
patients. It also acknowledges that the environment, in which health practitioners provide health services,
continues to evolve in light of changes in modern practice, community expectations and legislation.
In addition to this Guide, Patient Safety and Quality, Clinical Excellence Queensland continues to support and
assist health practitioners with the process of informed decision-making by providing web-based procedure
specific consent forms and corresponding patient information sheets for frequently performed procedures
within Queensland Health.
This second edition of the Guide contains updates following the introduction of the Hospital and Health Boards
Act 2011 and the establishment of independent Hospital and Health Services. Your Hospital and Health Service
Clinical Governance team can provide further and specific advice around local process issues with respect to
informed consent.
I would like to personally thank the staff of Patient Safety and Quality, Clinical Excellence Queensland, key
clinical groups, consumers, legal advisors and other stakeholders for their contribution to the development and
revision of this innovative Guide.
Kirstine Sketcher-Baker
Executive Director
Patient Safety and Quality
Clinical Excellence Queensland
August 2024
4
Contents
Introduction ....................................................................................................................................................... 6
Background ................................................................................................................................................... 6
Purpose ..................................................................................................................................................... 6
Division of the Guide .................................................................................................................................. 6
Part 1 The general informed decision-making process ................................................................................. 8
1.1 What is health care? ........................................................................................................................ 8
1.2 What is meant by informed decision-making and informed consent? ............................................... 8
1.3 Why is it necessary to obtain consent? ............................................................................................ 9
1.4 What health care requires consent? .............................................................................................. 10
1.5 When should consent be obtained in writing? ................................................................................ 10
1.6 What process of informed decision-making needs to be followed? ................................................ 11
1.7 Is this adult patient able to make a decision about health care themselves? .................................. 18
1.8 What if there is doubt about a patient’s capacity to give consent or their capacity appears
borderline or fluctuates? ............................................................................................................... 20
1.9 Can a patient or decision-maker decline or withdraw consent to health care? ................................ 21
1.10 Can information be withheld from a patient? .................................................................................. 22
1.11 What is the lifespan of a written consent? ...................................................................................... 23
1.12 Who is responsible for obtaining patient consent in an environment of shared care and
multidisciplinary teams?................................................................................................................ 24
1.13 What are the organisational responsibilities of the health care facility? .......................................... 28
Part 2 Informed decision-making and consent for adults who lack or have impaired capacity to make
decisions ...................................................................................................................................... 30
2.1 When consent isn’t required for an adult who has impaired capacity to consent ............................ 30
2.2 Who can consent for adult patients who lack or have impaired capacity?: Substitute decision
makers. ........................................................................................................................................ 32
2.3 The withholding and withdrawing of life-sustaining measures in an acute emergency from adult
patients who lack capacity to consent ............................................................................................. 41
2.4 Is there health care which is prohibited completely or prohibited unless certain requirements are
met? ............................................................................................................................................... 42
Part 3 Informed decision-making and consent for children and young persons .......................................... 44
3.2 Informed decision-making for urgent and life-saving health care to children and young persons ... 50
3.3 Examination of a child or young person without the consent of parents under the Child Protection
Act 1999 ....................................................................................................................................... 52
3.4 When is consent from a parent, guardian or child/young person not enough? ............................... 52
Part 4 Informed decision-making and consent in specific health care situations ...................................... 53
4.1 Do patients need to give informed consent to intimate examinations? ........................................... 53
4.2 Considerations for persons receiving treatment and care under the Mental Health Act 2016 ......... 54
4.3 Blood and blood products transfusion ............................................................................................ 54
4.4 Maternity care ............................................................................................................................... 56
4.5 Voluntary Assisted Dying ............................................................................................................... 59
4.6 Open access services ................................................................................................................... 60
4.7 Health care administered in a clinical trial, medical research or experimental health care ............. 61
4.8 Childhood and school-based programs (including oral health and immunisation programs) .......... 61
4.9 Public health orders ....................................................................................................................... 62
4.10 What are the informed decision-making issues for off-label use of medications? ........................... 62
4.11 What are the informed decision-making issues when using medicines via the Special Access
Scheme (SAS) ............................................................................................................................. 63
4.12 What are the informed decision-making issues with obtaining organs for transplantation? ............ 63
4.13 Where can I get more advice about consent in relation to a particular patient? ............................. 63
Part 5 Communication and cultural issues in informed decision- making in clinical health care ............... 65
5.1 What about patients who have additional communication needs? .................................................. 65
5.2 Use of interpreters ......................................................................................................................... 65
5
5.3 What about patients who have cultural and religious needs? ......................................................... 66
5.4 Consent considerations for patients who are Aboriginal and/ or Torres Strait Islander? ................. 69
Glossary ...................................................................................................................................................... 72
Interpretation ............................................................................................................................................ 82
Table 1 Version history ................................................................................................................................ 83
Appendix 1 .................................................................................................................................................. 85
Useful contact details ............................................................................................................................... 85
6
Introduction
Background
Consistent with good clinical practice, the Queensland Health suite of informed consent documents support
the rights of patients and their substitute decision-makers to:
• receive and understand information about their health care
• make informed decisions, including declining treatment or withdrawing consent at any time
• have their decisions respected.
Purpose
The Guide has been developed as a reference tool to support practitioners in understanding the complex ethical
and legal requirements surrounding informed decision-making about health care. Where specific policies are
referenced within the body of the Guide, the reader should confirm whether there are any Hospital and Health
Service (HHS) local policies that apply.
The information contained in this document is intended to guide good clinical practice while recognising a need
for flexibility for health professionals. This Guide does not take precedence over legal advice or other health
professional advice.
The law is dynamic and while every attempt is made to ensure the content is accurate, complete and up-to-
date, it cannot be guaranteed. If you have a legal query, you should seek legal advice from either your HHS
legal team or Legal Branch.
This Guide recognises that health care workers and patients have mutual rights and responsibilities concerning
informed decision-making with health care. The patient’s rights and responsibilities outlined in The Joint
Commission’s documents Speak Up series, including Speak Up For Your Rights
1
and Speak Up About Your
Care
2
, are supported within the framework of this document.
Various issues are beyond the scope of this Guide, such as the availability of health care and financial issues,
including Medicare ineligible patients or overseas students without insurance or funds to pay for health care.
Division of the Guide
This Guide is divided into five sections:
Part 1 provides general guidance on the process of assisting patients or other people who are legally able to
make decisions for the patient to make informed decisions.
Part 2 informed decision-making and consent for adults who may lack the capacity to make their own decisions.
Part 3 informed decision-making and consent for children and young persons.
Part 4 some health care services and areas of practice that raise specific issues around consent:
• intimate examinations
• mental health patients
• blood and blood product transfusions
• maternity care and termination of pregnancy
1
https://www.jointcommission.org/resources/for-consumers/speak-up-campaigns/for-your-rights/
2
https://www.jointcommission.org/resources/for-consumers/speak-up-campaigns/about-your-care/
7
• open access services
• childhood and school-based programs
• public health orders
• off-label use of medications
• access to unapproved therapeutic drugs through the special access scheme
• organs for transplantation
• sources of additional advice and contact details for other agencies.
Part 5 relates to communication and cultural issues in informed decision-making:
• patients who have communication or cultural needs
• patients with an Aboriginal and Torres Strait Islander background.
8
Part 1 The general informed decision-making process
1.1 What is health care?
In the Guide the words health care and treatment are interpreted broadly. These words encompass a range of
activities related to the care and/or treatment of a patient and refer generally to the provision of a public sector
health service including diagnosing, maintaining, or treating the patient’s physical or mental condition, carried
out by, or under the direction or supervision of, a health provider.
3
The following examples are considered
health care within this document:
• administering a drug or other substance, including chemotherapy
• a physical examination of a patient
• dental or oral health examinations and treatment
• psychological assessment
• treatment of mental illness
• interventions such as blood and blood product transfusions
• invasive procedures, including surgical operations, and oral health interventions
• pathological and radiological investigations or procedures, for example, taking a blood sample or
biopsy for analysis
• manipulation or joint immobilisation
• screening undertaken for pathological conditions, for example, breast or bowel cancer
• services provided by the allied health disciplines such as the application of splints or heat packs
• the transfer of a patient to another facility
• clinical trials or medical research.
1.2 What is meant by informed decision-making and informed consent?
Informed decision-making is the two-way communication process between a patient and one or more health
practitioners that is central to patient-centred health care. It reflects the ethical principle that a patient has the
right to decide what health care is appropriate for them, taking into account their personal circumstances,
beliefs and priorities. This includes the right to accept or to decline the offer of certain health care and to change
that decision. In order for a patient to exercise this right to decide, they require the information that is relevant
to them.
For the purposes of this Guide, consent means a person’s agreement to the provision of public sector health
services. Informed consent means that a patient has received the relevant information in a way they can
understand, to enable them to make an informed decision and they have voluntarily given permission for the
health care service to be provided. In an ethical sense, the agreement by a patient to receive public sector
health services reflects the end point of a process of engagement in which one or more health practitioners
have supported the patient to come to an informed decision to agree to the health care offered.
For the patient’s informed consent to health care to be valid, certain principles must be fulfilled
4
:
• the patient has the capacity (ability) to make a decision about the specific issue at the specific time,
and is not affected by therapeutic or other drugs, or alcohol
• the consent is voluntarily given, and free from manipulation by, or undue influence from, family, medical
staff or other social coercive influences
• the discussion between the patient and the health practitioner is transparent, well balanced, and
involves two-way communication which is sensitive to the situation
• the patient is able to clearly understand the information because it is provided in a language or by other
means the patient can understand
3
Guardianship and Administration Act 2000 (Qld), schedule 4 definition of ‘health care’.
4
Kerridge, I, Lowe, I and McPhee, J, Ethics and law for the health professions, (2005), 2
nd
edition, The Federation Press, Sydney pp 215 to 236.
9
• as far as possible, the patient is advised in simple terms of:
- the diagnosis and possible or likely nature of the illness or disease
- recommended health care, including the expected benefits, common adverse effects and
alternative health care options
- the material risks including complications associated with:
- the recommended health care
- alternative health care options
- a decision not to receive the health care offered
- any significant long term physical, emotional, mental, social, sexual or other expected outcomes
- the degree of certainty of any diagnosis
- the degree of certainty about the therapeutic outcome
- whether the health care is conventional or experimental
- the anticipated recovery implications
• the patient has sufficient time to consider and clarify information in order to make an informed decision,
taking into account the context of the clinical situation
• the information provided and the consent given relate to the specific health care provided.
In addition, for the patient’s consent to be valid, the health care itself must be lawful. The fact that a patient
consents to the health care does not allow a health practitioner to carry out an unlawful act.
The consideration of human rights is also important. The Human Rights Act 2019 (Qld)
5
works to respect,
protect and promote human rights in Queensland. Under this Act, there are 23 protected human rights, many
of which are relevant to the provision of public sector health care. The Human Rights Act 2019 requires public
entities -such as Queensland Health and Hospital and Health Services (including their individual public service
employees and staff members or executives) – to act or make decisions compatible with human rights and to
give proper consideration to the human rights when making decisions. The human rights recognised in the Act
are not absolute; it will be permissible to limit a human right if it is reasonable and demonstrably justifiable to
do so by reference to specified criteria described in section 13 of the Human Rights Act 2019 (Qld).
Health practitioners should therefore ensure that proper consideration is given to relevant human rights when,
for example, assessing a patient’s capacity and when considering the use of force and restrictive practices,
ensuring that any limitation of a person’s human rights are reasonable and demonstrably justifiable.
See Section 1.6: What process of informed decision-making needs to be followed?
1.3 Why is it necessary to obtain consent?
Consistent with ethical and legal principles, it is a patient’s right generally to decide what health care they wish
to receive. Obtaining informed consent for health care is important to the delivery of safe and high-quality care.
As a matter of policy, no health care (examination, investigation, procedure, intervention or treatment) is
provided without the informed agreement of an adult patient who has capacity to make decisions.
In Queensland, all persons 18 years and over (adults) are presumed to have capacity to make a decision
whether they wish to undergo health care or not, except when it can be shown – following an appropriate
clinical assessment, the individual does not have the capacity to make a decision. This is discussed further in
Section 1.7: Is this adult patient able to make a decision about health care themselves?
For young persons under the age of 18 years please refer to Section 3: Informed decision-making for children
and young persons for comprehensive information.
Failure to obtain a patient’s consent to health care may result in a criminal charge of assault or civil action for
battery. In addition, to inform a patient exposes health practitioners to risks of legal claims for negligence.
6
In
5
Human Rights Act 2019 (Qld) https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-2019-005
6
Consent sent to Treatment Policy – 2023, Department of Health Western Australia. https://www.health.wa.gov.au/~/media/Corp/Policy-
Frameworks/Clinical-Governance-Safety-and-Quality/Consent-to-Treatment-Policy/Consent-to-Treatment-Policy.pdf
10
either case, disciplinary action by Queensland Health may be pursued.
1.4 What health care requires consent?
All health practitioners must obtain consent from an appropriate decision-maker before touching (examining)
or providing health care to adult and child patients
7
except in a limited number of circumstances where that is
not possible.
The extent of the discussions and information to be provided to patients or decision-makers is described in
more detail in the rest of Part 1 of this Guide. The remaining sections of this Guide give more details of the
exceptions or other specific circumstances related to informed decision-making.
What types of consent exist?
1.4.1 Implied consent
The patient indicates their agreement through their actions or by complying with the health practitioner’s
instructions.
In the case of health care without significant risk to the patient, it is usually sufficient to rely on a demonstration
of the patient’s implied consent by their actions. For example, when providing a routine blood sample for testing,
a patient may give implied consent by extending their arm for the insertion of the needle. However, this may
not be sufficient where there may be a significant consequence in light of the test result such as for a HIV
status test.
Particular care is taken when relying on implied consent as there is the possibility of a misunderstanding leading
to an adverse outcome for patient, staff member and Queensland Health.
1.4.2 Explicit/express consent
Express or explicit consent is where the patient clearly states their agreement to health care, for example, an
examination. This may be verbal or in writing.
Verbal consent
Verbal consent is a form of express consent where a patient says they agree to health care.
Written consent
Written consent is where the patient or decision-maker provides written evidence of their agreement to health
care. For example, by signing a consent form.
A signature on a consent form is not considered to be enough to show the consent is valid and informed. In
the event of a dispute about whether a patient had given valid informed consent, a signed consent form needs
to be supported by appropriately specific and detailed information, written either on the form or documented in
the patient’s clinical record, to provide the best evidence of the communication process followed to obtain the
patient’s consent.
1.5 When should consent be obtained in writing?
Generally, the law does not require consent to be in writing and in many cases it can be verbal or simply
implied.
Verbal consent may be appropriate for health care that carries no significant risks to the patient. For example,
7
This includes persons who are offenders (persons incarcerated in prison).
11
the insertion of an intravenous cannula into a peripheral vein, or a dental filling under local anaesthetic.
Written consent is advisable for:
• any health care which carries significant risks to the patient
• where doubt exists about the patient’s capacity to consent
• where the health care is controversial.
It is important to recognise that some discussions need to be sensitively managed. For example, the available
end of life treatments and the plan agreed with the patient. In these situations, it is preferable for the health
practitioner to have comprehensive documentation in the patient’s clinical record that provides supporting
evidence of the discussions held and the decision reached.
Queensland Health highly recommends that written consent be obtained for:
• all health care where there are known significant risks or complications, such as:
- treatments or procedures requiring general, intravenous or regional anaesthesia, or intravenous
sedation (including surgical, medical, radiology, oncology and endoscopy)
- procedures or treatment where there are known significant risks or complications associated
with the procedure
- where the patient’s individual factors significantly alter the risk profile of the procedure or
treatment
• unapproved therapeutic goods accessed via the Special Access Scheme.
• oral health procedures and immunisations on children and young persons under the age of 18 years.
• administration of a blood or blood products transfusion
• male and female sterilisation
• termination of a pregnancy
• participation in medical research or clinical trials.
8
Where practice standards require written consent (for example, the Diagnostic Imaging Accreditation Scheme
(DIAS) Practice Accreditation Standards January 2016 – Transvaginal Ultrasound); it should be noted that
Queensland Health is supportive of such standards and recommends as best practice that written consent be
obtained. Visit: https://www.safetyandquality.gov.au/standards/diagnostic-imaging/diagnostic-imaging-
accreditation-scheme-standards
1.6 What process of informed decision-making needs to be followed?
Informed consent is not simply about getting a patient’s signature on the consent form. It is about the entire
interactive communication process for ensuring a patient fully understands the proposed health care and has,
where appropriate, supporting information to make an informed decision whether to agree or not.
Regardless of whether express or implied consent is to be provided by the patient, the following processes are
recommended.
1.6.1 Assessing the information a patient might require
Providing information and education improves patient, family and carer capacity for involvement,
understanding, participation and partnership in an individual’s care. It can also build an individual’s engagement
with health practitioners.
9
Care should be taken to avoid assumptions being made about:
• the information the patient or decision-maker might want or need
• the clinical or other factors a patient might find significant
8
Adapted from Consent to Treatment Policy– 2023, Department of Health Western Australia. https://www.health.wa.gov.au/~/media/Corp/Policy-
Frameworks/Clinical-Governance-Safety-and-Quality/Consent-to-Treatment-Policy/Consent-to-Treatment-Policy.pdf
9
Patient-centred care: Improving quality and safety through partnerships with patients and consumers (2011), Australian Commission on Safety and
Quality in Health Care p21.
12
• the level of knowledge or understanding of what is proposed.
10
It is recommended that health practitioners carry out an appropriate assessment of the patient (including a
review of the patient’s clinical record and discussion with the patient or substitute decision-maker). This will
enable them to provide information relevant to the specific circumstances of that patient.
This assessment includes finding out about the patient’s:
• needs, wishes and priorities
• medical history
• familial, social and occupational circumstances
• level of knowledge about, and understanding of, their condition, prognosis and the health care options.
11
During this interaction, if there is any evidence to suggest the patient might not have capacity to provide consent
to the particular health care concerned, the treating medical practitioner (treating health practitioner in the case
of community and primary care settings) is recommended to undertake a thorough assessment of the patient’s
ability to make a decision as described below in Section 1.7: Is this adult patient able to make a decision about
health care themselves?
1.6.2 Providing sufficient information so the patient or decision-maker can make an
informed decision
The National Health and Medical Research Council (NHMRC) have published detailed guidance to medical
practitioners on communicating with patients, and the minimum level of information provided to patients.
12
Queensland Health endorses this guidance and encourages all health practitioners to be familiar with it.
The discussions between the patient and health practitioner should:
• be frank and honest
• be well balanced
• be considerate when giving potentially distressing information
• encourage two-way communication.
Other than in exceptional circumstances, all patients or decision-makers should receive and be able to
understand the information likely to influence their decision about whether to agree to the relevant public sector
health service or not. Consistent with good clinical practice, it is recommended that health practitioners provide
– in simple, non-medical jargon terms – the information a reasonable patient (or decision-maker) requires, so
they can make a reasonably informed decision about the health service and/or health care advice. This
discussion should also include the information the health practitioner knows, or should reasonably know, the
patient wants to be given before making a decision.
13
,
14
Following the discussions, the patient should demonstrate they understand, in simple, non-medical jargon
terms
15
(by means of audio, verbal, visual, written or multimedia):
• the possible or likely nature of the illness or disease (diagnosis and prognosis)
• the degree of uncertainty about the diagnosis and prognosis, and whether other investigations may
reduce this
• the options for investigating, managing or treating the condition, and for each option:
- what the proposed health care involves including its purpose, nature and complexity
10
Adapted from Guidance on professional standards and ethics for doctors Decision making and consent, 2020, General Medical Council
https://www.gmc-uk.org/-/media/documents/gmc-guidance-for-doctors---decision-making-and-consent-english_pdf-84191055.pdf
11
Adapted from Guidance on professional standards and ethics for doctors Decision making and consent, 2020, General Medical Council
https://www.gmc-uk.org/-/media/documents/gmc-guidance-for-doctors---decision-making-and-consent-english_pdf-84191055.pdf
12
Guidelines for Medical Practitioners on Providing Information to Patients (2004); and Communicating with Patients: Advice for Medical Practitioners
(2004), National Health and Medical Research Council (NHMRC).
13
Adapted from Rogers v. Whittaker (1992) 175 CLR 479 and Civil Liability Act 2003 (Qld) - Section 21.
14
Refer to Background to this suite of documents.
15
Guidelines for Medical Practitioners on Providing Information to Patients (2004), National Health and Medical Research Council (NHMRC).
13
- the potential benefits and likelihood of success
- the potential complications, risks, long and short-term side effects, including when a potential
adverse outcome is:
- common even though the harm is slight
- significant even though its occurrence is rare
- other consequences, such as any significant long term physical, emotional, mental, social,
sexual, or other outcome which may be associated with a proposed intervention
- the degree of uncertainty about the therapeutic outcome, including whether the intervention is
unconventional, experimental or part of a research program
- the time involved in the health care, the recovery period and likely time the patient’s function will
be restricted
- the need for follow up
• the likely consequences of not choosing the proposed intervention or health care
• the people who will be mainly responsible for and involved in their care and what their roles are
• the extent that trainee/student health practitioners may be involved in their health care, and that they
have a right to decline to take part in teaching or research
• their right to seek a second opinion
• any conflicts of interests for the practitioner or the organisation
• any bills or known out-of-pocket expenses they will have to pay.
1.6.3 How much detail does a patient or decision-maker need to be given?
It is recommended the health practitioner satisfy themselves that the information given is that which:
• a reasonable patient in the circumstances would require, to enable the patient to make a reasonably
informed decision to undergo the treatment or follow the advice, and
• the information the health practitioner knows, or ought reasonably to know, that patient wants to be
given before making a decision.
16
,
17
The health practitioner will need to obtain a sufficiently detailed history about the patient so the information
provided to the patient can be tailored to their individual circumstances.
The extent of the discussions may vary with
18
:
• the patient’s personal circumstances
• the seriousness of the patient’s condition and the degree of clinical urgency
• how complex or straightforward the health care is
• the likelihood and degree of potential harm
• the patient’s level of understanding
• the questions asked or additional information sought by the patient
• the patient’s cultural and ethnic background.
For a patient, consumer or a resident who has a substitute decision maker, an enduring Power of Attorney or a
Statutory Health Attorney, the decision maker is to be given the same information as would be expected to be
given to the person if they were providing consent for themselves. Details of the consenting individual and any
legal instruments should be documented in the appropriate section of the consent form.
For health care without significant risk to the patient the discussions may not be as extensive (see Section 1.6.7:
Documenting the consenting process). For complex health care interventions, those with greater risks or more
uncertainty, and non-therapeutic or research interventions, the discussions may be more wide- ranging.
16
Adapted from Rogers v. Whittaker (1992) 175 CLR 479 and Civil Liability Act 2003 (Qld) s21.
17
Refer to the Background Section to this suite of documents.
18
Guidelines for Medical Practitioners on Providing Information to Patients (2004), National Health and Medical Research Council (NHMRC).
14
1.6.4 Presenting information
Patients feel engaged with their care when they make decisions based on information provided in a form and
manner that clearly identifies the issues and health care options available to them.
There are various ways in which this can be achieved, for example:
• using methods appropriate to the patient or decision maker’s circumstances, personality, expectations,
fears, beliefs, disabilities, values and cultural background
19
• using ways to present information appropriate to that individual’s needs, including diagrams, printed,
video or aural materials and media
• including a support person, for example a partner, family or significant other person
• engaging the services of an interpreter if English is not the patient or decision-maker’s first language
(see Section 5.1: What about patients who have additional communication needs?)
• for persons receiving treatment and care for mental illness, working with an Independent Patient Rights
Adviser and/or the person’s Nominated Support Person
• asking for the assistance of an Indigenous Hospital Liaison Officer if the patient is of Aboriginal and/or
Torres Strait Islander origin.
See Section 5.4: Consent considerations for patients who are Aboriginal and/ or Torres Strait Islander for
additional details.
It is recommended that the specific details regarding the use of additional resources (for example, type of
media, title, publisher, and version number) be recorded in the patient’s clinical records or on the consent form.
Taking the overall situation into account (for example, routine versus emergency, minor procedure with minimal
risks versus cosmetic with significant risks), before being asked to make a decision, patients need sufficient
time to:
• reflect on and clarify the information provided
• consult with those close to them
• be given answers to any questions they might have
• come back to another consultation or seek a second opinion if appropriate.
Despite the need to provide information to patients, conversations between the health practitioners and patients
should be sensitively handled, particularly when providing information of a difficult or distressing nature. For
example, in end of life situations, discussions with patients may be phrased in such a way as to emphasise a
move towards palliative care rather than continuing futile active treatment.
The information provided in the Queensland Health consent forms and patient information documents does not
take into account variable factors that may influence the outcome for an individual patient. These factors can
include a patient’s age, the severity or complexity of the disease or condition, the effects of medication, the
impact of distress or trauma and number of co-morbidities the patient may have. Therefore, the forms have
been designed to be used as a general guide when informing patients and decision-makers about the major
known risks and complications of the correlating procedure. The specific risks for a particular patient are
communicated to patients and decision-makers when distributing the information, and appropriate
amendments or annotations made to the document.
Where patients are given information in writing, or through other media, it is not sufficient to rely only on this
material. In the interests of best practice, health practitioners should still discuss the significant or material risks
with the patient and provide them with an opportunity to have any questions answered.
Further information about communicating with, and providing information to, patients can be obtained from the
National Health and Medical Research Council (NHMRC):
• Guidelines for Medical Practitioners on Providing Information to Patients (2004)
• Communicating with Patients: Advice for Medical Practitioners (2004).
19
Guidelines for Medical Practitioners on Providing Information to Patients (2004), National Health and Medical Research Council (NHMRC).
15
1.6.5 Confirming the patient has understood the information provided
Health care professionals can satisfy themselves that the patient or decision-maker understands the
information presented by:
• asking the patient or decision-maker to repeat what has been said using their own words, or asking
them questions about the information provided
• providing the patient or decision-maker with the opportunity to ask questions and ensure they are
answered in a manner that the specific patient or decision-maker can understand.
If a health care practitioner is concerned a patient or decision-maker does not understand the health care
options well enough to make an informed decision, the practitioner should take reasonable steps to ensure
they receive the necessary information before health care is provided. This may involve another verbal
discussion and/or distributing written or other visual or aural information.
Where patients have limited communication skills, an appropriate alternative method of communication is
required (see Section 5.1: What about patients who have additional communication needs?).
1.6.6 Obtaining express consent
Even in situations where written consent is not required, it is recommended the health practitioner ensures the
patient or decision-maker understands the situation by clearly stating they agree to a particular form of health
care (for example, examination, assessment, investigation, procedure or treatment).
1.6.7 Documenting the consenting process
Consent to health care without significant risks to the patient does not require a written consent form. However,
the nature of the health care still needs to be explained in sufficient detail and, where applicable, the patient’s
clinical record, clinical pathway or progress notes should include relevant documentation in relation to
consenting discussions. This might include:
• procedures such as insertion of IV cannula
• requesting blood tests
• abdominal ultrasound
• urethral catheterisation
• dressings
• child and/or adult health check
• information sharing.
Invasive treatments and health care with significant risks
Queensland Health highly recommends the documenting of informed consent using an approved Queensland
Health consent form for all private and public patients treated in Queensland Health facilities. This ensures
state-wide standardisation and minimises potential risks to patients.
A diverse range of patient information sheets and procedure specific consent forms are accessible through
Queensland Health Patient Safety and Quality, Clinical Excellence Queensland:
https://www.health.qld.gov.au/consent. Some of the more common patient information sheets are available in
different languages.
These procedure specific forms have been designed as an aid to assist the patient and health practitioner
engage in a collaborative process leading to informed decision-making. However, these pre-prepared forms
are not designed to be used as a substitute for appropriate communication tailored to the patient’s
circumstances and ascertaining whether the patient understands the health care and the risks involved in the
proposed health care.
In situations where a procedure specific consent form is not available, the generic consent form can be used.
16
Some types of health care do not have a state-wide document because they are low volume or are only
provided in a limited number of facilities. For example, certain physiotherapy treatment plans or specific foetal-
maternal procedures conducted only at the Royal Brisbane and Women’s Hospital. As an alternative to the
state-wide generic form, a Hospital and Health Services (HHS)-specific consent form may be used, providing
this form has passed through a governance process including an HHS forms approval committee and a
Queensland Health legal approval process.
In the absence of a Queensland Health consent form, the details of the conversation between the patient and
health practitioner is considered to be a part of the care given to the patient and as such should be recorded
in the patient’s clinical record. Some practitioners ask the patient or decision-maker to sign their agreement so
the entry in the clinical record accurately reflects the discussions that took place (although there is no legal
requirement for them to do so).
Whatever method of documenting the patient’s consent is used, it is not enough to simply state that the risks
were discussed with the patient.
20
The following information in relation to the patient should be documented
clearly:
• patient’s full name, date of birth and UR Number (if available)
• the condition
• substitute decision maker/s present
• the health care service to be performed, including the side and site of any treatment or procedure
• the material risks and benefits of the proposed health care and/ or withheld treatment discussed for
that individual patient
• date and time of discussion/s, any concerns raised, and decisions for/against
• date and time when the consent was recorded, noting substitute decision-maker/s when applicable
• any patient aids or diagrams provided (including a copy of the particular version of any printed
materials)
• documentation of consent to treatment/withholding of treatment by relevant decision-makers
• the full name, title and the signature of the health practitioner obtaining the consent.
In some situations, the circumstances of an individual patient (for example, the presence of co-morbidities)
result in the risks associated with a particular form of health care being increased or not included on the
Queensland Health consent document. Where specific information relevant to a patient is not present, or is
incorrect on a pre-prepared form, the usual practice is to document the correct or relevant information by:
• crossing out any information that does not apply
• adding any additional relevant information
• the health practitioner and patient initialling and dating any addition or amendment.
Many patients are admitted to Queensland public hospitals, either as public, intermediate or private patients
by health practitioners exercising their right to private practice including Visiting Medical Officers (VMOs). Such
health practitioners (including VMOs) may, at no cost, access the Queensland Health suite of consent forms
for use in their private practice.
All medical practitioners eligible to be indemnified by Queensland Health (including in respect of their private
patients) under prevailing relevant Queensland Health Policy
21
are required to use Queensland Health consent
documentation.
In circumstances where a consent form other than a Queensland Health form has been used, the appropriate
Queensland Health form should also be used to re-confirm the patient’s consent, and the specific information
provided to the patient documented appropriately. For example, when a patient is admitted after providing
written consent in a VMO’s private rooms, the patient’s consent should be re-confirmed on a Queensland
Health form. The latter may be annotated to refer to the risks explained as in VMO’s consent form, which is
attached to the Queensland Health form.
20
The Informed Consent Process p16, the former Medical Defence Association of Victoria Ltd (printed copy undated).
21
Indemnity for Queensland Health Medical Practitioners - Human Resources Policy I2 (QH-POL-153). (2020)
17
Additional supplementary documentation may be used by health practitioners to assist the consenting process.
For example, detailed agreements for plastic surgery, burns, oncology and other complex procedures or
treatments. These supplementary documents will then be filed in the patient’s medical record with the
Queensland Health consent documents and retained, as in Section 1.6.9: Retention of consent documentation.
Consent documentation and screening programs
Queensland Health has approved consent forms for screening programs. For example, breast and bowel
cancer. These should be used where available.
Consent documentation and clinical trials and research
The Research management- Department of Health Standard (QH-IMP-013-1:2022), Queensland Health
outlines the consent requirements to be obtained from participants.
Visit: https://www.health.qld.gov.au/system-governance/policies-standards/doh-policy/
The use of abbreviations
The use of abbreviations on consent documents is not acceptable due to the potential for misinterpretation or
misunderstanding. In particular:
• fingers are to be identified by name and not number, that is, thumb, index, middle, ring and little finger
• the health care (procedure) is to be written in full. For example Right instead of R or Rt.
1.6.8 Consent documentation and patient transfer
When transferring a patient to another facility, the original written consent document for the proposed health
care should, where possible, accompany the patient to the facility where the health care is to be provided. If
this is not possible in the circumstances, a faxed or scanned copy of the original consent form may be forwarded
to the treating facility.
A copy of the consent form should be retained in the patient’s clinical record at the referring facility.
In facilities where clinical electronic records are in use, appropriate practices that comply with relevant policies
and procedures regarding electronic records must be followed.
Importantly, however, the treating health practitioner remains responsible for ensuring appropriate informed
consent has been given before providing health care. If the health care plan or material risks change before
the health care is provided, a new consent process is commenced and documented.
1.6.9 Retention of consent documentation
To ensure compliance with the Public Records Act 2002, all signed consent forms and any supplementary
documents are to be filed in the patient’s clinical record at the facility where the healthcare is provided. All
original consent forms are to be retained as part of the patient’s clinical record in accordance with the
Queensland Government Health Sector (Clinical records) Retention and Disposal Schedule and the
Queensland Health Retention and Disposal of Clinical Records Implementation Standard
Visit:
• https://www.forgov.qld.gov.au/__data/assets/pdf_file/0019/203581/Health-Sector-Clinical-Records-
Retention-and-Disposal-Schedule.pdf
• https://www.health.qld.gov.au/__data/assets/pdf_file/0026/397223/qh-imp-280-1.pdf
• https://www.health.qld.gov.au/__data/assets/pdf_file/0032/395825/qh-pol-280.pdf
• https://www.forgov.qld.gov.au/__data/assets/pdf_file/0023/245615/Approved-FINAL-Guideline-on-
creating-and-keeping-records-for-the-proactive-protection-of-vulnerable-persons.PDF
18
Where relevant, the following records should also be documented, filed and retained in the patient’s clinical
record:
• a certified copy of any Advance Health Directive or Enduring Power of Attorney document
• details of the guardian, Enduring Power of Attorney or Statutory Health Attorney (their name,
relationship to the patient, contact details and, if relevant, any evidence used to identify them)
• details of any information aids used such as printed, aural, or video information resource material; as a
minimum this could include the title, source, date and/or version number, but in some limited
circumstances, it may be more appropriate to file a copy of the original material
• additional information or obligations required by specific legislation, such as that required by Section
63(4) of the Guardianship and Administration Act 2000 (Qld) when providing urgent health care, or
when administering a blood transfusion to a child without consent under Section 20 of the
Transplantation and Anatomy Act 1979 (Qld)
• additional information consistent with good practice, or professional standards or codes of professional
conduct.
Where, for example, an interpreter has been used, refer to Section 5.1: What about patients who have additional
communication needs?
1.7 Is this adult patient able to make a decision about health care themselves?
This section is based on the Queensland Health, Withholding and withdrawing life-sustaining measures Legal
considerations for adult patients
22
and the Care Plan for the Dying Person Health Professional Guideline.
23
All adults are presumed to have capacity to decide whether they wish to receive health care or not, except
when it can be shown they lack capacity.
Under Queensland legislation
24
capacity means a person is capable of:
• understanding the nature and effect of decisions about a matter and
• freely and voluntarily making decisions about a matter and
• communicating the decisions in some way.
Additionally, the Mental Health Act 2016 (Qld)
25
also defines capacity for the purposes of consent to treatment.
This is covered in Section 4.2 of this Guide.
To give valid informed consent, a patient needs to have the capacity to do so, which can be demonstrated by
the patient’s functional ability
26
to:
• express a choice
• understand information relevant to health care decision-making
• appreciate the significance of that information for their own situation, especially concerning their illness
and the probable consequences of their health care options
• use relevant information to reason so as to engage in a logical process of weighing up the health care
options.
It should not be assumed that a patient lacks capacity to make a decision solely because of their age, disability,
appearance, behaviour, medical condition (including mental illness), beliefs, apparent inability to communicate,
or the fact they make a decision with which the health practitioner disagrees. Health practitioners work on the
presumption that every adult patient has the capacity to decide whether to agree to or decline health care
22
Withholding and withdrawing life-sustaining measures: Legal considerations for adult patients. Queensland Health.
https://www.health.qld.gov.au/__data/assets/pdf_file/0038/688268/measures-legal.pdf
23
Care Plan for the Dying Person Health Professional Guideline 2019 Queensland Health
https://clinicalexcellence.qld.gov.au/sites/default/files/docs/clinical-pathways/care-plan-dying-person/care-plan-dying-person-health-professional.pdf
24
Schedule 3 of the Powers of Attorney Act 1998 (Qld) and Schedule 4 of the Guardianship and Administration Act 2000 (Qld)
25
Mental Health Act 2016 (Qld)
26
Grisso, T. & Aplebaum, P.S. (1998), Assessing Competence to Consent to Treatment: A guide for physicians and other health professionals, Oxford
University Press: NY. (pp. 31-33) in Queensland Health, End of Life Care: Decision-Making for Withholding and Withdrawing Life-Sustaining Measures
from Adult Patients, Part 1, p11. Implementation Guideline [Intranet Queensland Health staff only] .
19
(including an examination, investigation or any form of treatment) except when it can be shown by a clinical
assessment they do not have the capacity to make such a decision.
Consideration should be given as to whether the patient has capacity to consent to or decline health care on
all occasions. In the majority of cases, there is often little doubt and a detailed clinical assessment may not
be required. However, if during the general care of the patient, or discussions with them, there is a suspicion
the patient may not have the capacity to consent, a specific assessment can be undertaken and
appropriately documented in the patient’s clinical record.
Any question as to whether the patient lacks capacity to make a valid informed decision is resolved by the
medical practitioner responsible. If a medical practitioner is not engaged in the client’s care at the time of
informed decision-making (such as in some community, primary care or outpatient situations), a consultation
from a suitably qualified and experienced medical practitioner such as a geriatrician, psychiatrist or neurologist
is suggested.
Simply because a patient makes a decision with which a health practitioner disagrees, does not mean the
patient lacks capacity. Patients with capacity are free to make decisions that are likely to result in harm to
themselves and even their death.
The extent of the evidence required to support the clinical assessment of a patient’s decision-making ability
can vary depending on the specific health care and the specific time taking into account the patient’s
circumstances and the health care proposed.
Appendix 2: Assessing decision-making capacity of the Queensland Health Care Plan for the Dying Person
Health Professional Guidelines https://clinicalexcellence.qld.gov.au/sites/default/files/docs/clinical-
pathways/care-plan-dying-person/care-plan-dying-person-health-professional.pdf states:
Generally, a patient can be regarded as having decision-making capacity if they meet the following five criteria:
1) Does the patient understand the basic medical situation?
2) Does the patient understand the nature of the decision being asked of him or her? Understanding
includes the following:
• implications – benefits, risks, what the treatment entails
• alternatives and their implications, including the implication of no decision
• retaining the information (short-term memory function) sufficient to make a decision.
3) Can the patient use or weigh that information as part of the process of making the decision (for example,
asking questions)?
4) Can the patient communicate a decision (for example, by talking, using sign language or any other
means)?
5) Is the patient communicating the decision voluntarily (for example, is there an absence of coercion,
undue influence or intimidation by the patient’s family/ decision-maker/s)?
A multidimensional approach to the assessment may be necessary, and can include:
• discussions with those close to the patient, such as their family or carers, who may be aware of the
patient's usual ability to make decisions and their particular communication needs
• consultation with health professionals caring for the patient, such as nurses, speech and language
therapists
• communicating with the patient with the support of toolkits, including pictures or flash cards (these may
be available through social workers or community liaison officers).
People who have a mental illness (including those who may be subject to involuntary provisions of the Mental
Health Act 2016) may still have capacity to make decisions about certain aspects of their health care, and an
assessment of their capacity on a specific issue at a specific time should be made, as above (see also Section
4.2: Considerations for persons receiving treatment and care under the Mental Health Act 2016).
20
For further information, refer to the Queensland Health Care Plan for the Dying Person Health Professional
Guidelines https://clinicalexcellence.qld.gov.au/sites/default/files/docs/clinical-pathways/care-plan-dying-
person/care-plan-dying-person-health-professional.pdf and Withholding and withdrawing life-sustaining
measures: Legal considerations for adult patients
https://www.health.qld.gov.au/__data/assets/pdf_file/0038/688268/measures-legal.pdf
1.7.1 Supported decision-making
Supported decision-making can be simply defined as a model for supporting people with disabilities to make
significant decisions and to exercise their legal capacity.
Information regarding supported decision-making can be found in the 2016 report: Decision-making support
and Queensland’s guardianship system released by the Office of the Public Advocate
https://www.justice.qld.gov.au/__data/assets/pdf_file/0010/470458/OPA_DMS_Systemic-Advocacy-
Report_FINAL.pdf
This report highlights the opportunities that exist for Government to take the lead on the issue of supported
decision-making and support people with impaired decision-making capacity to be autonomous to the greatest
extent possible.
1.8 What if there is doubt about a patient’s capacity to give consent or their
capacity appears borderline or fluctuates?
It may be difficult to assess whether an individual patient can make valid decisions on very serious issues when
they have borderline or fluctuating capacity. For example, a patient may be capable of making decisions about
minor health care, such as the application of a dressing or simple analgesia for a headache but may not be
able to understand the implications of more complex or significant health care which involves greater risks or
complexity.
Most issues surrounding capacity can be resolved by the medical practitioner responsible for the patient’s care.
However, there may be times when doubt persists or consensus cannot be reached within the health care
team. In these circumstances the medical practitioner should consider obtaining a second opinion or psychiatric
evaluation from a suitably qualified and experienced medical practitioner such as a geriatrician, psychiatrist or
neurologist.
Where a patient’s condition fluctuates such that they are intermittently unable to make decisions for
themselves, the following should be considered
27
:
• if the clinical condition allows, deferring the health care until such time as the patient is able to make a
decision
• repeating the assessment on a number of occasions at times when the patient appears best able to
understand and retain the information
• involving those people whom the patient considers might help them reach a decision
• seeking the views of those who personally know the patient well, on the patient’s ability to decide, and
best ways of communicating with the patient
• using different communication methods
• recording any decisions made at times when the patient has capacity
• any previous views expressed directly to the clinical team or documented in the clinical records by the
patient when they had capacity, including through a valid Advance Health Directive
• seeking advice from suitably experienced specialist medical practitioners as above.
Where a patient has consented to treatment or a procedure and has subsequently lost capacity prior to the
treatment or procedure being carried out, the consent is invalid—see Section 2.2: Who can consent for adult
27
Modified from Guidance on professional standards and ethics for doctors Decision making and consent, 2020, General Medical Council
https://www.gmc-uk.org/-/media/documents/gmc-guidance-for-doctors---decision-making-and-consent-english_pdf-84191055.pdf
21
patients who have impaired capacity?:Substitute decision-makers.
1.9 Can a patient or decision-maker decline or withdraw consent to health care?
Any patient who has capacity to consent may also decline any or all health care at any time, even when this is
contrary to medical recommendations and in circumstances where such a decision to decline health care may
result in the death of the patient. Where a patient lacks the capacity to make health care decisions, their
decision to decline health care may be made known by a valid Advance Health Directive, made at a time when
they had capacity to make their wishes about future health care known (see Section 2.2.1: What are Advance
Health Directives and when do they apply?).
A patient may also change their mind or withdraw consent at any time. For example, they may want to delay
all or part of their treatment. Declining or withdrawing of consent can be done verbally or in writing. This
declining or withdrawal of consent may be on the grounds of religious, cultural or other personal beliefs, or any
other reason.
A patient’s decision to decline or withdraw consent is to be communicated to the medical practitioner or treating
health practitioner responsible for the patient.
Generally, a patient’s health care decision is to be respected. However, when a patient declines or withdraws
consent, the following should be considered:
• confirming the patient has capacity to make the decision
• checking the patient’s understanding and looking for any health literacy or communication issues
• exploring the reasons for the decision including:
- a refusal or an inability to sign the form
- any cultural or religious conflict that the patient may have
• exploring other health care options that might be acceptable to them.
Where necessary, provide further explanation of the health care and consequences, using different methods
and additional supporting material.
If a patient who has capacity to make decisions continues to decline or withdraw consent, the following can be
part of subsequent discussions:
• the consequences and risks of the decision, including how it affects their health care choices, prognosis
or outcomes
• that they are entitled to a second opinion and how the health practitioner can facilitate this
• their decision to decline or withdraw consent for a specific procedure/treatment does not affect the
provision of other appropriate health care and access to health services.
The health practitioner would then attempt to confirm their understanding of the information provided.
The patient’s decision to decline or withdraw consent to a specific form of health care, and any known reasons,
are to be clearly documented in the patient’s clinical record. The patient can be asked to sign the entry in the
clinical record to confirm it is factually correct, although there is no legal requirement for them to do so.
Substitute decision-makers may also decline or withdraw consent. Such a decision is to be explored and acted
on in the same manner as if a patient had made the decision. However, legal advice may be needed if there is
concern:
• the decision-maker seemed unwilling to listen to advice or recommendations from the health care team
• the decision was contrary to the general principles and/or health care principles under the Guardianship
and Administration Act 2000
28
and Powers of Attorney Act 1998
29
• the decision does not take into account the patient’s views and wishes
• there was a potential conflict of interest for the decision-maker. For example, a family member who
might benefit from the decision.
28
Guardianship and Administration Act 2000 (Qld) Chapter 2A
29
Powers of Attorney Act 1998 (Qld) Chapter1A
22
1.10 Can information be withheld from a patient?
1.10.1 The health practitioner wishes to withhold information
Best practice indicates that health practitioners provide appropriate information to patients as detailed in
Section 1.6.3: How much detail does a patient or decision-maker need to be given? If information deemed by
others to be appropriate, particularly about the material risks of health care, is not provided to patients, it may
form the basis of a claim in negligence.
Providing decision-making information to patients may cause some degree of anxiety and stress. However, in
the vast majority of situations, it will be necessary to provide this information and it will not seriously harm the
patient’s mental or physical health. It is not usual practice to withhold information from a patient who has
capacity to make decisions about their health care simply because they might decide to decline the health care,
or a relative, partner, friend or carer requests the patient not be told.
If a health practitioner considers a patient’s physical or mental health might be seriously harmed by the
provision of certain information, the treating medical practitioner is informed, and can review the patient. After
careful assessment, if the medical practitioner believes providing relevant information to a patient might result
in serious harm to the patient’s mental or physical health, to the extent that it might be justified to withhold it
during the consenting process, the medical practitioner should consider obtaining a second opinion from a
senior or more experienced medical practitioner.
The general ethical principle that medical practitioners can withhold information from patients if they judge, on
reasonable grounds, that the patient’s physical or mental health might be seriously harmed by the information
30
may not be sufficient to overcome the obligations to disclose information arising from the Civil Liability Act 2003
in Queensland (see Section 1.6.3: How much detail does a patient or decision-maker need to be given?). In
these rare circumstances, it is recommended that the medical practitioner seek legal advice.
All circumstances surrounding the withholding of information from patients must be documented in the patient’s
clinical record.
1.10.2 The patient does not wish to be given information
31
,
32
Patients sometimes say they do not want information about the health care or risks, and expressly direct a
health practitioner to make the decisions for them. In these circumstances, the health care practitioner should
explain to them it is important they understand what the health care will involve and the options open to them,
and try to find out why they do not wish to be given the information.
If they still do not wish to be given the information, the patient’s wishes are respected but the health practitioner
should still consider providing them with basic information about the illness and the proposed health care. This
is likely to include:
• what the health care aims to achieve
• what the intervention will involve. For example:
- whether the health care is invasive
- what level of pain or discomfort they might experience, and what can be done to minimise it
- anything they can do to prepare for the health care
- whether it involves any serious risks.
The health practitioner can also:
30
General Guidelines for Medical Practitioners on Providing Information to Patients (2004) p12, the National Health and Medical Research Council
(NHMRC)
31
Adapted from Guidance on professional standards and ethics for doctors Decision making and consent, 2020, General Medical Council
https://www.gmc-uk.org/-/media/documents/gmc-guidance-for-doctors---decision-making-and-consent-english_pdf-84191055.pdf
32
Communicating with Patients: Advice for Medical Practitioners (2004) p11, the National Health and Medical Research Council (NHMRC)
23
• consider whether the patient’s decision arises due to language or cognitive difficulties, cultural issues
or the impact of trauma and/or distress and whether an interpreter or specialist support person should
be used
• consider whether it may be appropriate to defer the health care so the patient has time to reflect and
consult with those close to them, or to arrange for them to have someone present to support them when
they are given the information
• explain the consequences of them not having the information
• make it clear to the patient that more information is available, which can be shared with them and they
have a right to receive this
• make it clear that the patient can change their mind and receive more information at any time
• consider offering another consultation when they might have further discussions with the patient.
Except for simple health care without significant risks, the health practitioner will need to inform the treating
medical practitioner responsible for the patient, so they discuss the situation with the patient before making a
decision whether to proceed.
Such decisions are documented, along with the patient’s consent to proceed without detailed information. The
patient’s decision should be reviewed over time to ensure that there has been no change of mind.
Legal advice should be sought if the patient’s decision is to decline information and their health care:
• has significant risks
• is non-therapeutic
• is for research
• is unconventional.
1.11 What is the lifespan of a written consent?
Patients may sign a consent form some time before the specific health care is provided for a number of reasons,
including during an outpatient consultation or pre-admission clinic. They might also have consented to a course
of multiple treatments or procedures over a period of time (for example, radiotherapy or chemotherapy).
Queensland Health accepts a signed consent document as valid for 12 months, providing that at the time of
receiving any health care:
• the patient still has capacity to make a decision
• the patient is able to recall the information previously provided and confirms their consent
• there has been no significant change in health status (including improvement or deterioration) and that
care is taken to ensure that changing circumstances do not threaten the validity of the consent that has
been given
• there has been no significant change in the nature of intended health care or outcome (for example, a
move to palliative care rather than curative treatment)
• the patient has not withdrawn their consent and does not question their decision
• new information has not become available: for example, new technology or new treatments, or revised
guidelines
• that such consent is limited to treatment for a single health care matter or a course of treatment to treat
a specific health care matter
The same applies where consent is limited to a single pregnancy during which multiple (invasive, transvaginal)
ultrasound scans will be performed to monitor maternal and/or foetal health.
The health practitioner (see Section 1.12: Who is responsible for obtaining patient consent in an environment
of shared care and multidisciplinary teams?) should take appropriate steps to confirm the above and, if the
criteria are not met, a fresh process of obtaining consent including the signing of a new document is carried
out.
As a general principle, a review of the patient’s consent to the specific health care is required whenever the
patient’s care plan is reviewed, changed or updated; and a new consenting process is required when there is
24
a change in the risks or benefits of health care or the options available. Evidence of the review is appropriately
documented in the patient’s clinical record (see Section 4.3: Blood and blood products transfusion).
1.12 Who is responsible for obtaining patient consent in an environment of
shared care and multidisciplinary teams?
1.12.1 General
Informed decision-making and informed consent in particular, is not simply about getting a patient’s signature
on the consent form. It involves the entire interactive communication process ensuring a patient has received
appropriate, supportive information and fully understands the proposed health care and potential
consequences, enabling them to make an informed decision. In many instances, this process starts with the
referring health practitioner and continues through the patient’s journey as a hospital out-patient and in- patient.
It is acknowledged that teamwork is a critical component of how health services are delivered by a
multidisciplinary team and that various health practitioners are involved in the patient’s decision-making
process over a number of interactions. They may be involved in preliminary discussions, education, screening
and/or preparation of the patient prior to the specific health care being provided.
As members of the team providing health care to a patient, each individual health practitioner is responsible
for their own actions in relation to assisting patients make informed decisions and ensuring they act within the
legislative requirements, defined scope of practice and professional codes of conduct.
It is beyond the scope of this Guide to define the extent of an individual health practitioner’s responsibility in
relation to informed decision-making on each occasion. This will be shaped by the specific circumstances at
hand, including the practice scope and model of care agreed locally. In some situations, a health practitioner
may be acting autonomously in the diagnosis and treatment of a patient, but on other occasions as a delegate
of more a senior health practitioner. For example, in some situations a nurse practitioner or midwife may act
as a delegate to provide information on behalf of another health practitioner. However, in a different situation,
they may act autonomously as the independent health practitioner responsible for assisting the patient make
informed decisions about health care they will provide themselves.
In many instances, there is a shared responsibility for providing information to patients. However, as a general
principle, the health practitioner who provides the health care will ultimately be responsible for ensuring:
• a patient or decision-maker has received sufficient, appropriate information to make an informed
decision, including information about the potential risks and benefits of the proposed or recommended
health care and any alternatives
• a patient or decision-maker has given valid informed consent prior to the health care being provided
• relevant evidence of the consent is appropriately documented.
For example, a surgeon may refer a patient to a stomal therapist to receive more information about a stoma
which would result as part of a proposed surgical procedure. The stomal therapist may meet with the patient
and their carer and provide detailed information which the patient would consider when making a decision. The
stomal therapist would be responsible for the information they provide. However, the surgeon is expected to
have a discussion with the patient afterwards to ensure they have received the information necessary for them
to make an informed decision, depending on their individual circumstances (refer to Section 1.6: What process
of informed decision making needs to be followed?). The surgeon should also ascertain whether the patient
has any questions and received answers to these before the procedure is carried out.
Where it is acceptable to rely on a patient’s implied consent to receiving health care, the health practitioner
recommending or providing the health care (for example, a registered nurse or radiographer) is usually the
person responsible for ensuring the patient understands the proposed health care and consents either verbally
or through their actions. The health practitioner is also responsible for ensuring that the consent is appropriately
documented (see Introduction).
It should be noted that low risk medical imaging examinations do not require written consent. However, they
25
do require that express verbal consent is given prior to the examination (that is: implied consent is not sufficient)
and that this is recorded on the request form or within the electronic medical record. The health practitioner
responsible for obtaining (or delegating) express verbal consent is the health practitioner who signs as team
leader for the purposes of completing the ‘Final Check’ (refer to HHS HR Unit for local procedures) and see
Section 1.4.2: Implied consent and Section 1.4.2: Explicit/express consent for further information.
For those specific forms of health care requiring written consent as listed in Section 1.5: When should consent
be obtained in writing?, the senior health practitioner on the treating team has the overall responsibility for
ensuring appropriately informed written consent has been provided within the delegation framework described
below.
1.12.2 Health practitioners and delegation
(Refer to the Glossary for the difference between health practitioner and medical practitioner).
Where a senior health practitioner delegates the task of obtaining consent to a junior health practitioner, the
senior health practitioner remains responsible for:
• the decision to delegate the task and the overall supervision of the delegate
• taking reasonable steps to ensure the delegate health practitioner obtaining consent:
- is skilled to undertake the task
- fully understands the health care to be provided and is sufficiently knowledgeable about the
health care to communicate with the patient
- discloses relevant information in accordance with the requirements for informed decision-
making
- obtains valid informed consent and documents it appropriately before the health care is provided
• respecting the decision of and supporting a delegate who indicates they do not have sufficient
knowledge, skills or experience to undertake the task.
A delegate health practitioner is responsible for:
• recognising and working within the limits of their professional competence and defined scope of practice
• carrying out the task in order to fulfil their legal and professional responsibilities to obtain valid, informed
consent
• ensuring any consent form is completed and the consent appropriately documented in the patient’s
clinical record
• documenting their name and position legibly on the consent form and in the clinical record
• declining the task or request support to undertake the consenting discussion if any of the following
apply:
- they feel they have insufficient skills, experience or knowledge to undertake the task
- the task is outside of their defined scope of practice
- they feel they do not fully understand the nature and risks of the health care to be provided
• notifying the appropriate senior health practitioner in a timely manner of any decision to decline a
consenting task, so that appropriate steps can be taken to obtain valid informed consent.
When a senior health practitioner delegates health care provision to another health practitioner, the delegate
applies the principles of informed consent prior to providing the health care. For example, where a senior
registered nurse asks a more junior registered nurse to catheterise a patient, the junior nurse is responsible
for ensuring the patient makes an informed decision.
Where a specific form of health care is to be provided or performed by a medical practitioner, the task of
informing a patient about the material risks of the health care, and of obtaining consent, cannot be delegated
to administrative staff or other health practitioner except where specified in this section.
1.12.3 Medical practitioners and delegation
(Refer to the Glossary for the difference between health practitioner and medical practitioner).
26
Senior medical practitioners carry overall responsibility for the patients under their care. In many instances,
they delegate tasks to other health practitioners. In these instances, the senior medical practitioner remains
responsible for their decision to delegate these tasks and for ensuring those working in their team are
appropriately supervised to perform the tasks to the required standard. An example might include where
specialists screen referral letters from general practitioners and allocate them to a pathway of care that will be
delivered by an allied health professional such as physiotherapist.
When the senior medical practitioner delegates health care provision to another health practitioner, the
delegate applies the principles of informed consent prior to providing the health care. For example, some
medical practitioners have ‘standing orders’ that can be actioned by junior medical practitioners or registered
nurses when set documented criteria are met. The delegate ensures the patient makes an informed decision
and consents before providing the health care described in the ‘standing orders’.
In situations where the medical practitioner undertaking the consent discussion process is not the medical
practitioner who will provide the health care, the senior medical practitioner remains responsible, as detailed
in Section 1.12.2: Health practitioners and delegation.
For example, where a consultant delegates a surgical procedure to the registrar, and the junior house officer
(JHO) carries out the consenting discussions. In such circumstances:
• the JHO is responsible for accepting and carrying out the consenting discussion
• the registrar is responsible for:
- the decision to delegate the consenting task to the JHO and the overall supervision of the JHO
- ensuring that the patient has given valid informed consent before undertaking the procedure
• the consultant or senior doctor is responsible for the decision to delegate the tasks (consent and
surgical procedure) and carries overall responsibility for supervising the juniors and ensuring they carry
out the tasks appropriately.
1.12.4 Midwives
Midwives are registered healthcare practitioners who have successfully completed an approved program of
studies in midwifery and meet the Nursing and Midwifery Board of Australia’s mandatory registration standards
to practice midwifery.
33
“The midwife is recognised as a responsible and accountable professional who works in partnership with
women to give the necessary support, care and advice during pregnancy, labour and the postpartum period,
to conduct births on the midwife’s own responsibility and to provide care for the newborn and the infant. This
care includes preventative measures, the promotion of normal birth, the detection of complications in mother
and child, the accessing of medical care or other appropriate assistance and the carrying out of emergency
measures”(Nursing and Midwifery Board of Australia—NMBA—2006).
https://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Professional-standards.aspx
Midwives work in a variety of metropolitan, rural or remote locations and practise in a number of different
settings including the home, community, hospitals, clinics or health units (International Confederation of
Midwives—ICM—2005).
Midwives are expected to meet the standards described in this Guide when assisting patients or decision-
makers to make informed decisions about health care provided to a woman or her baby. Depending on the
circumstances, a midwife may be the treating health practitioner responsible for informed decision-making, or
a delegate acting on behalf of a senior health practitioner.
Midwives obtain valid informed consent for all health care they provide, acting within the limits of their individual
competence, authorisation, specific defined scope of practice and relevant legislation.
Student midwives work within the requirements of Section 1.12.6: Trainee/student health practitioners with
respect to informed consent.
33
https://www.nursingmidwiferyboard.gov.au/Registration-Standards.aspx
27
1.12.5 Nurse practitioners
Nurse practitioners are registered nurses educated and authorised to function autonomously and
collaboratively in an advanced and extended clinical role. Nurse practitioners are endorsed in Australia
pursuant to Section 95 of the Health Practitioner Regulation National Law Act 2009 (Qld) and are authorised
to undertake extended practice activities.
Nurse practitioners work in a range of metropolitan, regional, rural and remote health services and clinical
settings across different models of care. Nurse practitioners are expected to meet the standards described in
this Guide when assisting patients to make informed decisions about their health care. Depending on the
circumstances, a nurse practitioner may be the treating health practitioner responsible for informed decision-
making, or a delegate acting on behalf of a senior health practitioner.
Nurse practitioners obtain valid informed consent for all health care they provide, acting within the limits of their
individual competence
and specific defined scope of practice determined by the context in which they are
authorised to practice.
34
1.12.6 Trainee/student health practitioners
The presence of a patient in a teaching environment does not imply they consent to being examined or
receiving health care from a trainee or student health practitioner.
A patient needs to have sufficient information to make an informed decision and give valid consent before
trainee/student health practitioners conduct an examination or provide health care. This means ensuring:
• consent given by the patient is free from undue influence and social coercive influences
• trainee/student health practitioners are introduced in a way that makes it clear they are
trainees/students and not registered health practitioners (misleading terms such as
‘doctor/physiotherapist in training’ are not to be used)
• patients know they have a right to decline to give consent to the trainee/student examining or providing
health care to them and that in declining the involvement of a trainee/student in their presence would
not be detrimental to the patients care
• trainee/student health practitioners work within the limits of their professional competence and are
appropriately supervised at all times.
While trainee/student health practitioners may assist in the process of obtaining consent, the responsibility for
ensuring patients give valid informed consent rests with the health practitioner as detailed above. Any
interaction about consent between the patient and trainee/student should take place in the presence of the
treating health practitioner, so they can become involved as necessary.
Further information is contained in the Queensland Health patient information brochure, Students at
Queensland public hospitals 2022
https://www.health.qld.gov.au/__data/assets/pdf_file/0025/1159423/Consent_Brochure.pdf
1.12.7 Visitors to the operating theatre
“Visitor” refers to all persons apart from duly authorised staff and patients and may include, but is not limited
to, students, visiting medical staff from private health facilities, media personnel, medical company and
commercial representatives and volunteers.
There are two separate aspects to consent in this context:
1. consent to the visitor receiving the patient’s confidential information; and
2. the fact that the visitor will be in attendance during the procedure may be considered a factor relevant
34
A nurse practitioner’s competence is assessed with the Nursing and Midwifery Board of Australia’s Registration Standards and the Nurse
practitioner standards for practice
https://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Professional-standards/nurse-practitioner-standards-of-practice.aspx
28
to the patient’s decision to provide their consent to the procedure.
There are a number of exceptions to the prohibition on disclosure of confidential information in the Hospital
and Health Boards Act 2011 (Qld) (HHB Act) that may permit a patient’s confidential information to be disclosed
to visitors in the operating theatre during a patient’s procedure. For further information refer to Part 7 of the
HHB Act (https://www.legislation.qld.gov.au/view/html/inforce/current/act-2011-032). However it is best
practice to obtain a patient’s consent to disclosure of their confidential information, wherever possible.
It is likely that the presence of a particular visitor in the operating theatre will be of greater importance to some
patients than others in the context of providing patient consent. A patient’s view on the presence of a visitor
may depend on a range of factors including their personal circumstances, temperament, attitude, and level of
understanding, cultural and ethnic background and the nature of the procedure. Consequently, it is not possible
to provide an all-encompassing answer as to whether a patient needs to provide consent to a visitor being
present as it will depend on the circumstances of each case. It would generally be best practice to seek a
patient’s consent to a visitor being present in the operating theatre in each instance. Such consent
may be obtained verbally and documented by the relevant health practitioner in the patient’s medical
record.
1.13 What are the organisational responsibilities of the health care facility?
The goal of Queensland Health is to have a standardised approach to the consenting process (particularly for
invasive procedures/treatments and other health care with significant risks). A comprehensive suite of
procedure specific consent forms is available on the Informed Consent website:
https://www.health.qld.gov.au/consent
Likewise, it is recognised that some flexibility is required at the operational level to accommodate the diversity
of patients and practices, whether they be from metropolitan, rural or remote areas.
For all invasive treatments and invasive medical imaging examinations, as outlined in Section 1.5: When should
consent be obtained in writing?, it is the responsibility of the health care facility to have policies and processes
in place to ensure the patient’s consent has been obtained and documented prior to:
• the patient’s admission to hospital (this is not always possible)
• pre-medication being administered and
• transfer to the operating theatre, diagnostic unit or medical imaging department.
35
This means that documented evidence of the consenting process will usually be required to be available for
checking before a patient is allowed to enter the operating theatre area, to ensure compliance with the
prevailing Queensland Health policies in respect of surgical safety and clinical risk management.
In accordance with the prevailing Queensland Health policies relating to indemnity
36
, health practitioners notify
the relevant Health Service Administrator of all incidents, as soon as practicable, where health care has been
provided without valid informed consent. This excludes limited circumstances such as emergency health care
to adult patients who do not have capacity (see Section 2.3: Situations where consent may not be needed to
provide health care to an adult who lacks capacity) and urgent and life-saving health care to children and young
persons (see Section 3.2: Informed decision-making for urgent and life-saving health care to children and young
persons). Consent breaches are to be lodged in Queensland Health Clinical Incident Management System and
the incident must be managed according to the Department of Health, Health Service Directive Guideline
https://www.health.qld.gov.au/system-governance/policies-standards/health-service-directives/patient-
safety/clinical-incident-management
35
Consent to Treatment Policy, 2016, Department of Health Western Australia
https://healthywa.wa.gov.au/~/media/Files/Corporate/Policy%20Frameworks/Clinical%20Governance%20Safety%20and%20Quality/Policy/WA%20Healt
h%20Consent%20to%20Treatment%20Policy/Supporting/WA-Health-Consent-to-Treatment-Policy.pdf
36
Indemnity for Queensland Health Medical Practitioners Human Resources Policy I2, 2020 and Queensland Government Indemnity Guideline, 2014
https://www.health.qld.gov.au/__data/assets/pdf_file/0023/164093/qh-pol-153.pdf and
https://www.forgov.qld.gov.au/__data/assets/pdf_file/0030/187185/legal-protection-indemnity-guideline.pdf
29
Also, as a component of the clinical risk management program, the health care facility should undertake, as a
minimum, an annual audit to measure compliance with the HHS specific informed decision-making process
and the implementation standard (Refer to your HHS Clinical Governance team for more information).
30
Part 2 Informed decision-making and consent for adults who lack or
have impaired capacity to make decisions
37
As a general principle, even where informed consent from a patient is not required or possible, it is still good
practice to explain and involve the patient as much as possible in decisions about their health care, using
language or other means appropriate to their needs and level of understanding.
Depending on the degree of clinical urgency and availability of substitute decision-makers, the health
practitioner should take reasonable steps to obtain consent if practicable, and document these steps in the
patient’s clinical record.
Refer to Section 1.7.1 Supported decision-making and to the 2016 report: Decision-making support and
Queensland’s guardianship system, released by the Office of the Public Advocate for further information.
http://www.justice.qld.gov.au/__data/assets/pdf_file/0010/470458/OPA_DMS_Systemic-Advocacy-
Report_FINAL.pdf
2.1 When consent isn’t required for an adult who has impaired capacity to
consent
A careful assessment of the adult’s capacity should be undertaken to confirm the patient does not have
capacity to consent to health care at a specific time as described in Section 1.7: Is this adult patient able to
make a decision about health care themselves? In most circumstances where patients lack capacity to make
a decision about health care themselves, it is necessary to obtain consent from a substitute decision-maker
before providing health care. However, for adults who have impaired capacity, consent may not be required to
administer health care (but not ‘special health care’) in specific circumstances pursuant to section 62 to section
64 of the Guardianship and Administration Act 2000.
‘Special health care’ for an adult means:
• removal of tissue from the adult while alive for donation to someone else
• sterilisation of the adult
• termination of a pregnancy of the adult
• participation by the adult in special medical research or experimental health care
• electroconvulsive therapy or a non-ablative neurosurgical procedure for the adult
• health care that has been prescribed under the Guardianship and Administration Act 2000 as special
health care of the adult.
There are additional considerations relevant to capacity to consent to treatment for a mental illness as outlined
in the Mental Health Act 2016 (Qld). See Section 4.2 Considerations for persons receiving treatment and care
under the Mental Health Act 2016.
2.1.1 Urgent health care for an adult
Refer to section 63 of the Guardianship and Administration Act 2000 (Qld).
Health care, other than special heath care of an adult, may be carried out without consent if the adult’s health
provider reasonably considers the adult has impaired capacity for the health matter concerned and either the:
• health care should be carried out urgently to meet imminent risk to the adult’s life or health; or
• the health care should be carried out urgently to prevent significant pain or distress to the adult and it
is not reasonably practicable to get consent from a person who may give it under the Guardianship and
Administration Act 2000 (Qld) or the Powers of Attorney Act 1998 (Qld).
It is important to note this includes providing life-sustaining measures.
A life-sustaining measure in this context is one that is intended to sustain or prolong life and which supplants
37
This section is based on the Guardianship and Administration Act 2000 (Qld) (effective as at 30 November 2020)
31
or maintains the operation of vital bodily functions that are temporarily or permanently incapable of independent
operation.
38
This includes:
• cardiopulmonary resuscitation
• assisted ventilation
• artificial nutrition and hydration.
A blood transfusion is not a life-sustaining measure.
However, health care provided to urgently meet imminent risk to the adult’s life or health may not be carried
out without consent if the health provider knows the adult objects to the health care in an Advance Health
Directive. Health care provided to prevent significant pain or distress to the adult may not be carried out without
consent if the health provider knows the adult objects to the health care, unless:
• the adult has minimal or no understanding of one or both of the following—
(i) what the health care involves;
(ii) why the health care is required; and
• the health care is likely to cause the adult—
(i) no distress; or
(ii) temporary distress is outweighed by the benefit to the adult, of the health care.
The health provider must certify in the adult’s clinical records as to the various things enabling the health care
to be carried out pursuant to section 63 of the Guardianship and Administration Act 2000.
For the purposes of urgent health care provided under section 63 of the Guardianship and Administration Act
2000, health care of an adult does not include withholding or withdrawal of a life-sustaining measure for the
adult.
2.1.2 Health care without significant risk for adult patients who lack capacity to consent
Where patients lack capacity to make their own health care decisions, health practitioners can (and may have
an obligation to) provide first aid and carry out a non-intrusive examination for diagnostic purposes (including
a visual examination of an adult’s mouth, throat, nasal cavity, eyes or ears)
39
without consent if it is otherwise
in the patient’s best interests.
2.1.3 Life sustaining measures in emergencies
Refer to section 63A of the Guardianship and Administration Act 2000.
A life-sustaining measure may be withheld or withdrawn for an adult without consent if the adult’s health
provider reasonably considers -
• the adult has impaired capacity for the health matter concerned; and
• the commencement or continuation of the measure for the adult would be inconsistent with good
medical practice; and
• consistent with good medical practice, the decision to withhold or withdraw the measure must be taken
immediately.
However, the measure may not be withheld or withdrawn without consent if the health provider knows the adult
objects to the withholding or withdrawal.
The health provider must certify in the adult’s clinical records as to the various things enabling the measure to
be withheld or withdrawn because of section 63A of the Guardianship and Administration Act 2000. For this
purpose, artificial nutrition and hydration is not a life-sustaining measure.
38
Guardianship and Administration Act 2000 (Qld) Schedule 2, s5A
39
Guardianship and Administration Act 2000, Schedule 2, s5 - explicitly defines these as not being health care.
32
2.1.4 Minor, uncontroversial health care
Refer to section 64 of the Guardianship and Administration Act 2000.
Health care, other than special health care, of an adult may be carried out without consent if the adult’s health
provider:
• reasonably considers the adult has impaired capacity for the health matter concerned;
• reasonably considers the health care is necessary to promote the adult’s health and wellbeing, is of the
type that will best promote the adult’s health and wellbeing and is minor and uncontroversial and
• and does not know, and cannot reasonably be expected to know, of:
o a decision about the health care made by a person who is able to make the decision under the
Guardianship and Administration Act 2000 or the Powers of Attorney Act 1998 or
o any dispute among persons the health provider reasonably considers have a sufficient and
continuing interest in the adult about the carrying out of the health care or the capacity of the
adult for the health matter.
Examples of minor and uncontroversial health care mentioned directly above include the administration of an
antibiotic requiring a prescription and the administration of a tetanus injection.
However, the minor and uncontroversial health care may not be carried out without consent if the health
provider knows, or could reasonably be expected to know, the adult objects to the health care.
The health provider must certify in the adult’s clinical records as to the various things enabling the health care
to be carried out because of section 64 of the Guardianship and Administration Act 2000.
2.1.5 Objection
Refer to the Guardianship and Administration Act 2000 for further information.
For the purposes of the sections on urgent health care, life sustaining measures in emergencies and minor,
uncontroversial health care, the term ‘object’ is defined in the Guardianship and Administration Act 2000. In
the context of an objection by an adult to health care, object means:
a) the adult indicates the adult does not wish to have the health care or
b) the adult previously indicated, in similar circumstances, the adult did not then wish to have the health
care and since then the adult has not indicated otherwise.
An indication may be given in an enduring power of attorney or Advance Health Directive or in another way,
for example, orally or by conduct.
2.2 Who can consent for adult patients who lack or have impaired capacity?:
Substitute decision makers.
If an adult patient lacks capacity to make a decision about health care, the first step is to ascertain if they have
previously made an Advance Health Directive about the specific circumstances that arose, at a time when they
had capacity to do so (see Section 2.2.1: What are Advance Health Directives and when do they apply?). If the
adult has made an Advance Health Directive giving a direction about the matter, the matter may only be dealt
with under the direction.
If there is no valid Advance Health Directive, a decision should be sought from a substitute decision-maker in
the following order of priority
40
• if the adult has not made an Advance Health Directive and the Queensland Civil and Administration
Tribunal has appointed one or more guardians for the matter or made an order about the matter, the
matter may only be dealt with by the guardian or guardians or under the order
• if there is no Advance Health Directive, no guardian, or order and the adult has made one or more
enduring documents (for example, an enduring power of attorney) appointing one or more attorneys for
the matter, the matter may only be dealt with by the attorney or attorneys for the matter appointed by the
most recent enduring document
• if none of the above applies, the matter may only be dealt with by the statutory health attorney.
40
Guardianship and Administration Act 2000 (Qld) s66
33
The dot points above do not apply to a health matter relating to health care that may be carried out without
consent above at Section 2.1: When consent isn’t required for an adult who has impaired capacity to consent.
A statutory health attorney can make any decision about the health matter that the adult could lawfully make if
the adult had capacity for the matter. A statutory health attorney can only exercise their power during any or
every period the adult has impaired capacity for the matter.
For a health matter, an adult’s statutory health attorney is the first, in listed order, of the following people who
is readily available and culturally appropriate to exercise power for the matter:
• a person who is 18 years or more and who is a spouse of the adult, if the relationship between the adult
and the spouse is close and continuing;
• a person who is 18 years or more who has the care of the adult and is not a paid carer or a health
provider for the adult;
• a person who is 18 years or more who is a close friend or relation of the adult and is not a paid carer
or a health provider for the adult.
Without limiting who is a person who has the care of the adult, a person has the care of an adult if the person:
• provides domestic services and support to the adult; or
• arranges for the adult to be provided with domestic services and support.
If an adult resides in an institution (for example, a hospital, nursing home, group home, boarding-house or
hostel) at which the adult is cared for by another person, the adult is not, merely because of this fact, to be
regarded as being in the care of the other person; and remains in the care of the person in whose care the
adult was, immediately before residing in the institution.
If there is a disagreement about which of two or more eligible people should be the statutory health attorney or
how the power should be exercised, see the Guardianship and Administration Act 2000, section 42
(Disagreement about health matter).
If no-one above is readily available and culturally appropriate to exercise power for a matter, the Public
Guardian is the adult’s statutory health attorney for the matter.
2.2.1 What are Advance Health Directives and when do they apply?
For further detailed discussion about Advance Health Care Directives, the Queensland Health End of Life Care:
Decision Making for Withholding and Withdrawing Life-Sustaining Measures from Adult patients,
Implementation guidelines Part 1 and Part 2
https://www.health.qld.gov.au/__data/assets/pdf_file/0037/688618/acp-guidelines.pdf and
https://clinicalexcellence.qld.gov.au/sites/default/files/docs/clinical-pathways/care-plan-dying-person/care-
plan-dying-person-health-professional.pdf
A valid Advance Health Directive is a document written at a time when an adult patient has capacity to make
decisions, and which is intended to act as their substitute decision-maker at a later time when they no longer
have such capacity.
41
An Advance Health Directive can be used to provide consent to health care or the withholding of health care.
Where the decision in the Advance Health Directive relates to life-sustaining measures, certain conditions must
be met. These are detailed in Section 3.2 of the End-of-life care: Decision-making for withholding and
withdrawing life-sustaining measures from adult patients – Implementation Guidelines - Part 1.
A valid Advance Health Directive takes precedence over health care requests made by family members or
substitute decision-makers. However, an Advance Health Directive is not applicable where the patient has or
regains capacity and can make their own decisions.
Advance Health Directives do not expire but may be revoked at any time, as long as the patient has the capacity
to do so. It is recommended the document be reviewed by the principal every two years or if the principal’s
41
Powers of Attorney Act 1998 (Qld) s35 to s40
34
health changes significantly.
42
Further information can be obtained from the Office of the Public Guardian,
email: adult@publicguardian.qld.gov.au and https://www.publications.qld.gov.au/dataset/power-of-attorney-
and-advance-health-directive-forms
2.2.2 Consent under an Advance Health Directive
An Advance Health Directive is a legally recognised expression of the patient’s wishes in relation to future
health care decisions. An Advance Health Directive must be:
1. a written document (the standard document is Form 4, available at;
https://www.publications.qld.gov.au/ckan-publications-attachments-prod/resources/56b091a2-4c65-
48a0-99e1-01661c4d9e77/form-4-advance-health-directive-
queensland.pdf?ETag=2d1d93c9b87bdc6db996ddb5107cdc71; and
2. signed by the adult patient (or by an eligible signer
43
on the adult’s behalf); and
3. signed and dated by an eligible witness
44
and certified that the document was signed in the presence
of the eligible witness and the adult appeared to them to have capacity; and
4. signed and dated by a medical officer or nurse practitioner (not the witness)
45
, and certified that the
adult appeared to the medical officer or nurse practitioner to have capacity to make the Advance
Health Directive.
The health care team is entitled to sight the original or certified copy of the Advance Health Directive. The
Powers of Attorney Act 1998 provides certification must be by one of the following persons: the patient who
made the Advance Health Directive, a justice of the peace, a commissioner for declarations, a notary public, a
lawyer, a trustee company under the Trustee Companies Act 1968 or a stockbroker. It is the responsibility of
the person making an Advance Health Directive to make sure the decisions in their document will be drawn to
the attention of health care professionals when it is needed at a future time. Certified copies of the Advance
Health Directive may be held at the hospital where the patient is being treated, in the medical records of the
patient’s general practitioner, in the possession of a close relative, or at the person’s own residence. Some
people may also carry a card or wear a bracelet with information to this effect.
An Advance Health Directive is not applicable in the situation where the patient has or regains capacity. If a
patient regains capacity, if they wish, the patient/principal can revoke previous directions in the Advance Health
Directive or the whole document.
An Advance Health Directive should not be relied upon in any of the following circumstances:
• if the document is obviously defective (such as pages missing, not signed, dated or witnessed)
• if there is doubt about the directions themselves (for example, terminology or treatment pathology)
• if the directions are uncertain or inconsistent with good medical practice
• if the proposed treatment is not the treatment specified in the Advance Health Directive
• if the circumstances are different from those that have been set out in the advance decision
• if the person withdrew the decision while they still had capacity to do so
• if personal or medical circumstances have changed to the extent that the direction to withhold or
withdraw life-sustaining measures is no longer appropriate
• if the person has done something that clearly goes against the advance decision which suggests they
have changed their mind
• if the requested health care in the Advance Health Directive is unlawful.
It is also important to establish that the person making the Advance Health Directive was 18 or older when they
made their decision and that they had capacity to do so.
If the Advance Health Directive is deemed not to be valid, the statutory consent process must be followed, that
is, using the patient’s substitute decision-maker/s (see Section 2.2: Who can consent for adult patients who
have impaired capacity?:Substitute decision makers).
42
‘Changing or revoking an advance health directive’ https://www.publications.qld.gov.au/dataset/power-of-attorney-and-advance-health-directive-
forms/resource/e904421c-b1e7-4f43-a918-474ae8c496fa
43
For definition of ‘eligible signer’ see Powers of Attorney Act 1998 (Qld) s30.
44
For definition of ‘eligible witness’ see Powers of Attorney Act 1998 (Qld) s31.
45
There are other exclusions: see Powers of Attorney Act 1998 (Qld) s44(7).
35
If it is established that the Advance Health Directive is valid, the directions must be followed.
46
It is a legally
binding document.
The treating medical team must always start from the assumption that the person had the capacity to make the
advance decision, but even in emergency situations, as far as practicably possible, medical staff must ensure
that the Advance Health Directive is a valid document.
To be applicable, directions in an Advance Health Directive must apply to the situation in question and in the
current circumstances. However it should be noted that objections to certain forms of treatment, if made by the
principal after the date of the Advance Health Directive, must also be taken into consideration in the decision-
making process. Health care professionals must first determine if the person still has capacity to accept or
refuse treatment at the relevant time. If they have capacity, they can refuse treatment at this point, or they can
change their decision and accept treatment. In deciding whether an advance decision applies to the proposed
treatment, the health practitioner responsible for the patient’s care must consider:
• the date of the Advance Health Directive, the patient’s clinical circumstances and whether the advance
decisions relate to those circumstances, and
• whether there have been any changes in the patient’s personal life (for example, the person is pregnant
and this was not anticipated at the time of the advance decision) that might affect the validity of the
advance decision, and
• whether there have been any developments in medical treatment that the person did not foresee (for
example, new medications, treatment or therapies), and
• if any prior objections to health treatment have been made in any capacity these objections must be
taken into consideration in all decision-making about providing or not providing medical treatment, and
• whether a patient may have included in their Advance Health Directive that they consent to withholding
or withdrawal of life-sustaining measures despite the objection at the time this is occurring. This must
be respected.
To keep a record of the version of the Advance Health Directive as evidence that the document was sighted
and relied upon in a particular situation, clinical and administrative personnel may certify a photocopy or
facsimile of an original Advance Health Directive to keep on the patient’s records. This may also be useful
when transferring patients between facilities. However it should be recognised that this does carry an element
of risk. For example, the patient may revoke the copied Advance Health Directive and make a new one some
months later and neglect to inform the hospital when they are admitted. Despite this, it is acknowledged that
in many circumstances when immediate decisions are required, file copies of Advance Health Directives may
be the best indication of a patient’s wishes. Even if the Advance Health Directive later proves to be invalid, it
would still comply with common law evidentiary provisions.
2.2.3 Deciding not to follow an Advance Health Directive
If, after careful consideration, a medical officer chooses not to follow a patient’s Advance Health Directive
47
, a
second opinion must be sought from another senior medical officer or consultant. Meticulous and thorough
record-keeping will be required in these circumstances. Utmost care should be taken in this area because,
while the law does offer some protections for not following the directions in a valid Advance Health Directive
48
,
there are risks if medical officers choose not to do so.
Generally, medical officers are protected in circumstances where:
• they act in reliance on an Advance Health Directive without knowledge of its invalidity, or
• they act without knowledge of the existence of an Advance Health Directive, or
• a health provider has reasonable grounds to believe that a direction in an Advance Health Directive is
uncertain or inconsistent with good medical practice or that circumstances, including advances in
medical science, have changed to the extent that the terms of the direction are inappropriate.
46
Note that there are some exceptional situations where medical officers can choose not to follow the directions in an Advance Health Directive. Refer
to the Section 2.2.3 ‘Deciding not to follow an Advance Health Directive’ of the quoted text for more detail
47
This would include where the document is an original document, a photocopy or facsimile copy.
48
The Powers of Attorney Act 1998, at s103 offers statutory protection to health providers where they have not acted in accordance with an Advance
Health Directive in certain circumstances.
36
The health practitioner must consult with any attorney appointed under the Advance Health Directive, if the
health practitioner seeks to provide health care not in accordance with the directions in the Advance Health
Directive
49
because he or she believes the directive is uncertain.
However, the onus of proof of uncertainty would lie with the medical officer who may be required to defend the
decision not to follow the Advanced Health Directive in a court of law. Therefore, the need to clearly document
the reasoning behind the decision cannot be overstated.
If there is any doubt about whether an Advance Health Directive is valid, legal advice should be obtained.
However, in an emergency where health practitioners have taken all reasonable steps to assess the situation
and are unable to obtain appropriate legal advice within the context of the clinical urgency, they should preserve
life or limb function, keep meticulous clinical records and be prepared to justify their decision.
2.2.4 Advance Health Directives and children
The Powers of Attorney Act 1998 (Qld) specifies that to make an Advance Health Directive, the patient must
be a competent adult (that is, 18 years of age). This means a child or young person is not able to make an
Advance Health Directive under Queensland legislation. However, this appears inconsistent with the principle
that where a child or young person is mature enough to have sufficient capacity to understand all the issues,
they can consent on their own.
It would seem logical that if a child or young person had sufficient capacity to decide an issue, the Australian
Court would support that decision.
50
However, at present, the law in this area has not been adequately tested
in Australia, and so a health practitioner should obtain legal advice on a case-by-case basis as to the validity
of an Advance Health Directive made by a person under the age of 18 years.
The strength of the evidence of the child or young person’s capacity on a particular issue would depend on the
significance of the decision being made. A child or young person’s decision to decline or withdraw consent to
life-sustaining treatment would require a significant degree of maturity.
2.2.5 Advance Health Directives and the Mental Health Act 2016
The Mental Health Act 2016 (Qld)
51
requires clinicians to consider whether there is a less restrictive way
available to obtain consent for a person’s treatment, other than providing involuntary treatment under a
Treatment Authority. A less restrictive way includes consent provided in an Advance Health Directive (if made
by the person when they have capacity), or with the consent of an attorney or guardian, if the person’s treatment
needs can be met in that way. Section 225(1) of the Mental Health Act 2016 (Qld) requires that the Chief
Psychiatrist must establish and maintain a system for keeping electronic records of:
• advance health directives
• enduring powers of attorney for a personal matter; and
• appointments of nominated support persons.
Further information on Advance Health Directives and the Mental Health Act 2016 is available at
www.health.qld.gov.au/mental-health-act.
2.2.6 Use of restrictive practices when providing health care to adult patients who lack
or have impaired capacity and cannot provide consent
Queensland Health staff consulting this Guide must be mindful that there is no single overarching restrictive
practices legislation in Queensland. Your obligations and responsibilities in relation to restrictive practices may
vary depending on the setting or type of health care being provided. This section of the Guide is general in
nature and does not intend to cover all the restrictive practices legislative obligations. For example, there are
49
Powers of Attorney Act 1998 (Qld), s103.
50
Willmott, Lindy (2007), Advance directives to withhold life-sustaining medical treatment: eroding autonomy through statutory reform, Flinders Journal
of Law Reform, 10(2). pp. 287-314.] https://eprints.qut.edu.au/19152/
51
Mental Health Act 2016 (Qld)
37
varying definitions and specific requirements regarding the use of restrictive practices under the Mental Health
Act 2016, Aged Care Act 1997(Clth) and Disability Services Act 2006 (Clth) which apply in specific
circumstances.
The use of restrictive practices must always be authorised or justified by law.
Use of restrictive practices in Queensland Health Hospital and Health Services generally
Queensland Health is committed to minimising and, where possible, eliminating the use of restrictive practices
in Queensland Health Hospital and Health Services (HHSs). Restrictive practices are practices or interventions
that have the effect of restricting the rights or freedom of movement of a person and are primarily used with
the intention of protecting that person or others from harm.
There are situations in which the use of restrictive practices may be necessary to protect a patient or others
from harm. A restrictive practice should only be implemented:
• in a manner consistent with the relevant legislative obligations applying to the type of health care or setting
in which it is provided; and
• only after having obtained consent; or
• in exceptional circumstances where there is an imminent risk to the life or health of the patient or others
and there are no other less restrictive means available.
Broadly, Queensland Health expects HHSs and staff to meet their relevant legislative obligations, applicable
to the setting or type of health care being provided. This expectation also includes applying the following
general principles in relation to the use of restrictive practices:
• as a last resort to prevent harm to a patient or others and after having considered how the restrictive
practice may impact the patient
• after having considered other alternatives to minimise harm to the patient and others, or to optimise
patient outcomes, and these alternatives are either inappropriate or ineffective
• in the least restrictive form and for the shortest time needed
• when the potential benefits, whether to the patient or protection of others from harm, clearly outweigh any
distress (even temporary) that might be caused to the patient
• in accordance with the relevant legislative requirements (depending on the applicable setting), including
under the:
- Powers of Attorney Act 1998 (Qld)
- Guardianship and Administration Act 2000 (Qld)
- Criminal Code Act 1899 (Qld)
- Human Rights Act 2019 (Qld)
- Mental Health Act 2016 (Qld)
- Disability Services Act 2006 (Qld)
- Aged Care Act 1997 (Cth) and Quality of Care Principles 2014 (Cth)
- National Disability Insurance Scheme (NDIS) Act 2013 (Cth) and NDIS (Restrictive Practices and
Behaviour Support) Rules 2018 (Cth)
- any other relevant law
• in accordance with relevant local Hospital and Health Service, state and national standards, guidelines,
and policies.
Use of restrictive practices for patients 18 years of age and older
For patients aged 18 years and over who do not have capacity to consent or who decline to provide consent,
(and who are not receiving treatment and care for a mental illness under the Mental Health Act 2016), the use
of restrictive practices may be authorised under the Guardianship and Administration Act 2000 (Qld). Namely,
38
where:
• the relevant restrictive practice constitutes health care
52
, that is, where the practice is care or treatment,
has a therapeutic effect upon a patient’s physical or mental condition; and should be carried out urgently
to:
- meet imminent risk to the adult’s life or health
- prevent significant pain or distress to the adult and it is not reasonably practical to get consent from
a person who may give it under the Guardianship and Administration Act 2000 or the Powers of
Attorney Act 1998
• other requirements of the Guardianship and Administration Act 2000 relating to providing health care to
a person who lacks capacity, are satisfied. This effectively means that either the requirements of s.63 of
the Guardianship and Administration Act 2000 in relation to ‘urgent health care’ outlined in the point above
are met, or the consent of a relevant substitute decision-maker is obtained.
Restrictive practices under the Guardianship and Administration Act 2000
A health provider
53
and a person acting under the health provider’s direction or supervision may use the
minimum force necessary and reasonable to carry out health care authorised under the Guardianship and
Administration Act 2000.
54
Therefore, except in an acute emergency, before using a restrictive practice, the health practitioner must
ensure reasonable steps are taken to obtain consent from substitute decision-makers and to seek the views
of those the health practitioner reasonably considers to have a sufficient and continuing interest in the adult.
Where there is doubt or disagreement, it is recommended that legal advice be sought.
Health practitioners need to be aware that the use of restrictive practices on a patient may lead to civil, criminal,
disciplinary or professional conduct investigations against them, and their reasons may not be accepted as
being justified unless their actions clearly accord with relevant professional, policy and legal requirements. If
in doubt, it is recommended that health practitioners seek guidance from a senior health practitioner, and/or
obtain legal advice.
Chapter 5B of the Guardianship and Administration Act 2000 sets out additional rules which only apply to
adults with an intellectual or cognitive disability who receive disability services from a relevant service provider.
In particular, Chapter 5B contains rules concerning the requirements for giving consent for restrictive practice
matters. For further information, refer to the section on ‘Restrictive practices under the Disability Services Act
2006’ below.
Restrictive practices under the Mental Health Act 2016
For patients receiving treatment and care for a mental illness in an authorised mental health service, the use
of restrictive practices must only occur as a last resort to prevent imminent and serious risk of harm to patients
and staff, where less restrictive interventions have been unsuccessful or are not feasible. They must be used
in accordance with the requirements of the Mental Health Act 2016.
55
Under the Mental Health Act 2016
55
, a person must not administer medication to a patient unless the
medication is clinically necessary for the patient’s treatment and care for a medical condition. Treatment and
care of a medical condition includes preventing imminent serious harm to the patient or others.
For further information, refer to Section 4.2 Considerations for persons receiving treatment and care under the
Mental Health Act 2016 and https://www.health.qld.gov.au/clinical-practice/guidelines-procedures/clinical-
staff/mental-health/act/policies-guidelines
52
Guardianship and Administration Act 2000 (Qld), schedule 2, s5 - definition of health care: the care or treatment of, or a service or a procedure for, the
adult (a) to diagnose, maintain or treat the adult’s physical or mental condition and (b) carried out by, or under the direction or supervision of, a health
provider
53
Guardianship and Administration Act 2000 (Qld) schedule 4 - defines health provider as a person who provides health care, or special health care, in
the practice of a profession or the ordinary course of business
54
Guardianship and Administration Act 2000 (Qld) s75
55
Mental Health Act 2016 (Qld) s.272
39
Restrictive practices under the Disability Services Act 2006
The Disability Services Act 2006 sets out rules in relation to the use of restrictive practices for ‘service providers’
who provide disability services or supports to adults with an intellectual or cognitive disability. Relevantly, it sets
out rules in relation to:
• concepts for using restrictive practices (e.g., assessment of adults and the principles guiding the use of
restrictive practices for those with an intellectual or cognitive disability);
• the requirements for implementing relevant restrictive practices under the Disability Services Act 2006;
and
• obtaining consent for the use of restrictive practices.
Service providers who receive NDIS funding to deliver services to NDIS participants must also meet the
requirements and obligations for restrictive practices under the National Disability Insurance Scheme Act 2013
(NDIS Act) and NDIS (Restrictive Practices and Behaviour Support) Rules 2018 as outlined below.
For further information, refer to:
• Positive Behaviour Support and Restrictive Practices - Department of Child Safety, Seniors and
Disability Services
• Understanding behaviour support and restrictive practices- NDIS Quality and Safeguards Commission
• Department of Health Queensland, Disability Service Plan 2022-2024.
Restrictive practices under the Aged Care Act 1997 and Quality of Care Principles 2014
The Aged Care Act 1997 and Quality of Care Principles 2014 set out detailed requirements in relation to the
use of restrictive practices in residential aged care, including in relation to:
• the different types of restrictive practices in residential aged care and their use;
• emergency use of restrictive practices;
• documentation and reporting requirements;
• monitoring, review and assessment requirements; and
• obtaining informed consent for the use of a restrictive practice.
Under the Quality of Care Principles 2014 informed consent for the use of a restrictive practice must be
obtained from the consumer, unless the use of the restrictive practice is necessary in an emergency (i.e., a
serious or dangerous situation that is unanticipated or unforeseen and that requires immediate action). If the
consumer does not have the capacity to give that consent, it must be obtained from their restrictive practice
substitute decision-maker. The QH Consent arrangements for restrictive practices in aged care guideline
assists staff to comply with the current consent arrangements and requirements under the Quality of Care
Principles 2014 (Cth) and relevant Queensland legislative requirements.
QH residential aged care providers delivering services to NDIS participants in their facilities must meet the
requirements and obligations for restrictive practices under the National Disability Insurance Scheme Act 2013
(NDIS Act) and NDIS (Restrictive Practices and Behaviour Support) Rules 2018 as outlined below.
For further information, refer to
• Restrictive practices provider resources- Aged Care Quality and Safety Commission
• Restrictive practices in aged care; a last resort- Australian Government Department of Health and Aged
Care
• Consent arrangements for restrictive practices in aged care- Queensland Health
40
Restrictive practices under the National Disability Insurance Scheme Act 2013 (NDIS Act)
56
and NDIS
(Restrictive Practices and Behaviour Support) Rules 2018
57
The NDIS Act 2013 and NDIS (Restrictive Practices and Behaviour Support) Rules 2018 outline the
requirements and obligations for services receiving NDIS funding, including those relating to consent to use any
regulated restrictive practice with NDIS participants. The NDIS Act 2013 and the NDIS Rules 2018 also apply
to residential aged care providers who are registered NDIS providers delivering residential aged care services
to a resident who is a NDIS participant (note, this is applicable only for residents who are NDIS participant/s,
not for all residents).
Staff should consult their local policies in relation to the use of restrictive practices in the NDIS setting. This
guide is not intended to cover the relevant NDIS legislation and requirements in detail or be a substitute for
any local policies.
Additionally, for further information regarding the requirements for services in relation to restrictive practices in
the NDIS setting, refer to:
• https://www.ndiscommission.gov.au/providers/understanding-behaviour-support-and-restrictive-
practices-providers
• https://www.ndiscommission.gov.au/sites/default/files/2022-02/regulated-restrictive-practice-guide-rrp-
20200_0.pdf
• https://www.ndiscommission.gov.au/providers/registered-ndis-providers/provider-obligations-and-
requirements/ndis-practice-standards
• https://www.ndiscommission.gov.au/about/ndis-code-conduct.
Application of NDIS in residential aged care (RAC)
There are significant differences between the behaviour support requirements in aged care and in the NDIS.
RAC providers are required to meet the obligations and requirements of the NDIS Act 2013 and the NDIS
Rules 2018 for the use of any restrictive practice for residential aged care residents who are NDIS participants.
Note, the NDIS legislative requirements apply specifically to residents who are NDIS participant/s, they do not
apply to residents who are not NDIS participants.
Staff working in a residential aged care service must satisfy themselves on a case by case basis of the
requirements in relation to the use of restrictive practices prior to implementation, e.g. whether the Restrictive
Practices and Behaviour Support Rules 2018 apply to a particular resident who is also a NDIS participant.
For further information for RAC providers, refer to:
• https://www.ndiscommission.gov.au/providers/registered-ndis-providers/provider-obligations-and-
requirements/residential-aged-care#paragraph-id-2318
• https://www.ndiscommission.gov.au/providers/registered-ndis-providers/provider-obligations-and-
requirements/residential-aged-care-0
• https://www.ndiscommission.gov.au/providers/complaints-and-incidents/incident-management-
providers
2.2.7 ‘Special health care’ that requires the consent of a Tribunal or Court for adult
patients who have impaired capacity and cannot provide consent
There are certain types of ‘special health care’ that require the consent of the Tribunal or Court to be given on
behalf of an adult who lack the capacity to provide consent, being:
58
• removal of tissue from an adult while alive for donation to someone else
• sterilisation of an adult (although infertility as a consequence of treating an organic disease or
malfunction is not included)
56
https://www.legislation.gov.au/C2013A00020/latest/text
57
https://www.legislation.gov.au/Details/F2020C01087
58
Guardianship and Administration Act 2000 (Qld) s68 to s74; note Supreme Court’s inherent jurisdiction not affected s240
41
• termination of a pregnancy in an adult
• participation by an adult in special medical research or experimental health care
• special health care of an adult that may be restricted under future legislation.
2.3 The withholding and withdrawing of life-sustaining measures in an acute
emergency from adult patients who lack capacity to consent
It is paramount to recognise there is a difference between providing life-sustaining health care and withholding
or withdrawing of such measures.
In an acute emergency, such as when cardiopulmonary resuscitation (CPR) is required, consent is not required
to provide urgent life-sustaining health care to an adult patient who does not have capacity to make a decision,
as long as the health practitioner is not aware of any objections to the health care by the patient, for example
through an Advance Health Directive. See Section 2.2.1: What are Advance Health Directives and when do
they apply? and Section 2.2.2: Consent under an Advance Life Directive, for further information.
In an acute emergency, a life-sustaining measure may be withheld or withdrawn for an adult without consent if
the medical practitioner responsible for a patient reasonably considers:
• the adult has impaired capacity for the health matter concerned
• the commencement or continuation of the measure for the adult would be inconsistent with good
medical practice
• the decision to withhold or withdraw the measure is taken immediately, consistent with good medical
practice.
59
However, artificial nutrition and hydration may not be withheld or withdrawn in acute circumstances
60
such as
a stroke or myocardial infarction.
The medical practitioner must have the necessary skills, knowledge and experience to make an assessment
whether the decision is consistent with good medical practice. Health practitioners who are not medical
practitioners are not able to make the decision to withhold or withdraw life-sustaining measures in an acute
emergency from an adult patient who lacks capacity to consent.
The measure may not be withheld or withdrawn without consent if the medical practitioner knows the adult
objects to the withholding or withdrawal. An objection might be when the patient requests the medical
practitioner to do everything possible or communicates the message ‘don’t let me die’ before losing capacity.
Under these circumstances, consent from the patient’s substitute decision-maker/s would be required if the
clinical recommendation is not to provide health care.
By law
61
, the medical practitioner is required to certify (document fully) in the adult’s clinical records as to the
various considerations enabling the measure to be withheld or withdrawn. This includes documenting any
Advance Health Directive, or discussions with substitute decision-makers, other steps taken and the reasons
behind any decision. This might include:
• explanations or evidence as to why providing life-sustaining measures would be inconsistent with
good medical practice
• why the decision to withhold or withdraw is taken immediately, consistent with good medical practice.
In a situation where an Advance Health Directive exists which indicates a patient’s wishes to withhold or
withdraw a life-sustaining measure and the patient lacks capacity, the Advance Health Directive cannot operate
unless:
• one of the following applies:
o the patient has a terminal illness or condition that is incurable or irreversible and as a result of
which, in the opinion of a medical practitioner treating the patient and another medical
59
Guardianship and Administration Act 2000 (Qld) s63A
60
Guardianship and Administration Act 2000 (Qld) s63A(4)
61
Guardianship and Administration Act 2000 (Qld) s66B
42
practitioner (that is, two medical practitioners in total), the patient may reasonably be expected
to die within one year
o the patient is in a persistent vegetative state (that is, has a condition involving severe and
irreversible brain damage but some or all of the patient’s vital functions continue, including for
example, heartbeat or breathing)
o the patient is permanently unconscious or in a coma (that is, has a condition involving brain
damage so severe there is no reasonable prospect of them regaining consciousness)
o the patient has an illness or injury of such severity there is no reasonable prospect they will
recover to the extent that their life can be sustained without the continued application of life-
sustaining measures
• for a direction to withhold or withdraw artificial nutrition or artificial hydration – the commencement or
continuation of the measure would be inconsistent with good medical practice and
• the patient has no reasonable prospect of regaining capacity to make decisions about health care.
62
See Section 2.2.1: What are Advance Health Directives and when do they apply? and Section 2.2.2:
Consent under an Advance Life Directive for further information.
2.3.1 Artificial nutrition and/or hydration
Where a patient has capacity to decide, consent is required before the initiation, withholding or withdrawal of
artificial nutrition and/or hydration.
Where a patient lacks capacity to decide, artificial nutrition and/or hydration may be initiated without consent
when it is:
• necessary to meet imminent risk to the adult’s life or health; or
• required urgently to prevent significant pain or distress.
Artificial nutrition and/or hydration may not be withheld or withdrawn without consent, even as an urgent
decision and consent must be obtained to withhold or withdraw artificial hydration and/or nutrition.
In situations where a patient lacks capacity to decide for themselves, informed consent to withhold or withdraw
artificial nutrition and/or hydration is to be provided by the substitute decision-maker.
Where a patient has given an Advance Health Direction to withhold or withdraw artificial nutrition or artificial
hydration, the direction is only valid if certain criteria exist (See Section 2.2.1: What are Advance Health
Directives and when do they apply? and Section 2.2.2: Consent under an Advance Life Directive, for further
information).
For further detailed discussion about ‘End-of-life care: Decision-making for withholding and withdrawing life-
sustaining measures from adult patients’, refer to the Queensland Health End of Life Care: Decision Making
for Withholding and Withdrawing Life-Sustaining Measures from Adult patients, Implementation guideline Part
1: and Part 2.
2.4 Is there health care which is prohibited completely or prohibited unless
certain requirements are met?
There are some procedures which are prohibited by law, for example:
• female genital mutilation
63
• non-regenerative tissue removal from a living child for donation purposes.
64
There are also some forms of health care that may only be performed if specific legal requirements are met,
for example:
• voluntary assisted dying
65
• termination of pregnancy
66
62
Powers of Attorney Act 1998 (Qld) s36
63
Criminal Code Act 1899 (Qld) s323A
64
Transplantation and Anatomy Act 1979 (Qld) s18
65
Voluntary Assisted Dying Act 2021 (Qld) https://www.legislation.qld.gov.au/view/html/inforce/current/act-2021-017
66
Criminal Code Act 1899 (Qld) s224 to s226
43
• regenerative tissue removal from a living child for donation purposes
67
• removal of blood from a child for transfusion or therapeutic purpose
68
• sterilisation of a child with impairment.
69
These issues are not dealt with further in this Guide and the reader is referred to the legislation which has
been listed in the footnotes.
67
Transplantation and Anatomy Act 1979 (Qld) s12B
68
Transplantation and Anatomy Act 1979 s18
69
Guardianship and Administration Act 2000 (Qld) Chapter 5A - Impairment means a cognitive, intellectual, neurological, or psychiatric impairment.
44
Part 3 Informed decision-making and consent for children and young
persons
For consistency, within this Guide the words ‘children’ or ‘young person’ are used to describe patients from
birth until their 18th birthday.
References to children usually mean younger children who are likely to lack the maturity and understanding to
make important decisions for themselves. Older or more mature children who may or may not have capacity
to make decisions about health care are often referred to as ‘young persons'.
3.1.1 At what age can children and young persons consent for themselves?
When a child or young person under the age of 18 years does not have capacity to consent, consent is obtained
from a parent or other person with parental responsibility
70
except in specific situations. Persons with parental
responsibility have a responsibility to consent to health care that is in the best interests of the child or young
person.
Children and young persons under the age of 18 years are able to consent to health care where they have
sufficient capacity to do so. However, unlike adults, a child or young person is presumed not to have capacity
to give their own consent, unless there is sufficient evidence they have such capacity. This is often referred to
as Gillick competence after a legal case in the United Kingdom
71
(see Section 3.1.5: How to assess whether a
child or young person is Gillick competent and has capacity to consent to health care).
In Queensland, there is no fixed lower limit below 18 years of age at which children or young persons are
deemed to be able to consent to health care, and so, as they mature, the child’s capacity to consent generally
increases. On the other hand, the authority of parents to consent on behalf of a child or young person is not
absolute. Their parental responsibility decreases as the young person matures until it ceases to exist when the
child reaches 18 years of age. As a result of this there may be times when both someone with parental
responsibility, and the child or young person themselves, simultaneously can provide consent to health care.
If the child or young person has sufficient capacity to consent and does so, this is usually sufficient for giving
routine medical/dental treatment, including contraceptive advice, without the need for parental consent.
However, even though a child or young person may have capacity to consent on their own, it is good practice
to encourage them to consider seeking the involvement of a parent or other adult of their choosing before
reaching a decision. This may:
• provide the adult with appropriate information (including any necessary supervision arrangements and
possible adverse effects) so they might support the young person in their decision and during the health
care
• give the adult the opportunity to provide information that the young person may not be aware of (for
example, details of previous medical conditions and relevant family history) and to have questions
answered in advance
• allow the adult the opportunity to attend when the health care (for example, immunisation) is provided
with the agreement of the patient.
If a child or young person does not wish to involve a parent or other adult, the reasons for this are explored. If
the child or young person has sufficient capacity to decide not to involve an adult, their wishes usually need to
be respected, but may be overruled in some circumstances. For example, when there are potential child
protection concerns arising from a pregnancy or a sexually transmitted infection.
The law requires that child protection concerns are reported. A doctor or registered nurse must make a report
to the Department of Child Safety, Seniors and Disability Services if they form a reasonable suspicion that a
child has suffered, is suffering or is at unacceptable risk of suffering significant harm caused by physical or
sexual abuse and may not have a parent able and willing to protect that child from harm. They must also notify
the HHS Child Protection Liaison or Child Protection Advisor.
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Visit the Department of Child Safety, Seniors
70
Family Law Act 1975 (Cth), Part VII, Division 2, s61A to s61F
71
Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 (HL) House of Lords (England)
72
Child Protection Act 1999 (Qld), Section 13E
45
and Disability Services website for additional information:
https://www.dcssds.qld.gov.au/our-work/child-safety
3.1.2 Who can consent for a child or young person?
The child or young person
When the child or young person is sufficiently mature to have capacity to consent to the particular health care,
they are able to do so. The term ‘Gillick competent’ is sometimes used to describe this group of patients (see
Section 3.1.1: At what age can children and young persons consent for themselves?).
Parents
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Each parent has full parental responsibility for a child or young person unless this is altered by a court order.
Consent from one parent alone is sufficient, but where there is significant risk to the patient, it may be prudent
to seek consent from both parents. In cases where there is a strongly opposing view, or there is disagreement
from the other parent, legal advice may be required.
Separated or divorced parents still retain equal parental responsibility unless the court orders otherwise. When
the court has made such orders, consent is to be obtained in accordance with that order. Court orders should
be sighted by the health practitioner before separated or divorced parents need to consent to their child
receiving health care.
Adoptive or surrogacy
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parents have the same parental rights and responsibilities in relation to a child or young
person as if they were the child or young person’s natural relative.
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Step-parents and de facto partners do not
have legal authority to give consent unless they are an adoptive parent or legal guardian.
With respect to Aboriginal and Torres Strait Islander peoples who are in the traditional role of a parent refer to
section 61F of the Family Law Act 1975, which provides guidance on the meaning of parent for both Aboriginal
and Torres Strait Islander peoples.
Parents who are themselves under 18 years old
Queensland Health endorses the following approach:
• if the parent is deemed by the medical practitioner to have sufficient capacity, any consent given by the
parent on behalf of their child would be considered valid
• if the medical practitioner finds the parent not to have sufficient capacity to decide, the Department of
Child Safety, Seniors and Disability Services should be contacted to appoint a legal guardian to make
decisions on behalf of the child and ensure decisions are made in the child’s best interests
• if the suggested health care carries significant risk, and/or the parent objects to the health care
proposed, an application to the Supreme Court should be considered. Although applications can be
made outside of normal working hours and on short notice, the entire legal process may take some
time. Prior to completion of the process, and subject to legal advice, the health practitioner proceeds,
as in Section 3.2: Informed decision-making for urgent and life-saving health care to children and young
persons and can provide health care without consent where it is urgent or life-saving and in the best
interests of the child or young person.
A person granted guardianship of the child
A person granted guardianship of the child, for example under a child protection order made under the Child
Protection Act 1999
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or Adoption Act 2009
77
has the same rights and responsibilities as a parent in relation to
consent.
Grandparents, other relatives or care-givers
Grandparents, other relatives or care-givers apart from parents should produce evidence of a court order, or
demonstrate the existence of another legal relationship (for example, testamentary guardianship) to be able to
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Family Law Act 1975 (Clth) Part VII, Division2, s61A to s61F
74
Surrogacy Act 2010 (Qld) Chapter 1, Part 3, s7
75
Adoption Act 2009 (Qld) refer to the meaning of a parent in the relevant section of this Act
76
Child Protection Act 1999 (Qld) s13
77
Adoption Act 2009 (Qld) s13
46
consent to health care on behalf of a child or young person.
The Supreme Court of Queensland or the Family Court
(also refer to Section 3.4: When is consent from a parent, guardian or child/young person not enough?)
The Supreme Court of Queensland can exercise its role as the supreme parent of children.
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The Family Court
of Australia has a similar authority.
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An application to the court should be considered in situations, and with procedures, that are so serious that
neither young person, parent nor a guardian can give valid consent. This includes situations where:
• the procedure is very high risk (for example, separating conjoined twins)
• there may be life changing effects (for example, sterilisation of young persons with impaired capacity,
abortions, removal of life support, the removal of organs for transplants, gender re-assignment and
bone marrow harvest)
• there is a strong objection from a dissenting parent
• a child with capacity to make decisions is refusing health care and there is significant risk of harm in
them doing so
• the procedure involves invasive, irreversible or major surgery (excluding lifesaving emergency surgery).
The court would consider the best interests of the child as the paramount consideration.
If there is any doubt in relation to consent to provide health care to a child or young person, it is strongly
recommended that legal advice is obtained. If necessary, applications to the court can be made after business
hours and at short notice. The local Director or Medical Superintendent will have the contact details of the HHS
solicitor.
3.1.3 What about children who are placed in care?
Under the Child Protection Act 1999, a person granted ‘guardianship’ of a child under a protection order has
the equivalent right and responsibility of someone with parental responsibility to make decisions about the daily
care, long-term care, well-being and development of the child. This would include decisions about their health
care.
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.
Generally, long-term care decisions are those about issues likely to have a significant or long- term
impact on the child’s development.
An order granting guardianship may be made by the court in favour of the Chief Executive of the Department
responsible for administering the Child Protection Act 1999 or a suitable person, including a member of the
child’s extended family.
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Sometimes, parents retain guardianship of the child while the Chief Executive or
another suitable person is granted custody.
Custody is more limited than guardianship, and is restricted to the right to have the child’s daily care and the
right and responsibility to make decisions about the child’s daily care. Daily care might include managing
existing health care matters but may not include decisions about future long-term health care.
Children placed in out-of-home care may be in the care of formally approved foster carers or kinship carers.
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The nature of the care arrangements under which the child is placed usually determines what authority these
carers have to make health care decisions, however, these carers are generally only granted custody rights for
the child.
One of the key issues for health practitioners is to establish the authority of any person who is not the parent
presenting with a child for health care. It would be advisable to liaise with the Department of Child Safety,
Seniors and Disability Services regarding the legal status of children and the nature of care arrangements (that
is, who has responsibility for daily health care and long-term health care decisions) (see Section 3.1.4: What
evidence of the authority to consent to health care is required?).
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Parens patriae jurisdiction
79
Family Law Act 1975 (Cth) 1975 s67ZC (1)
80
Child Protection Act 1999 (Qld) s13Child
81
Family Law Act 1975 (Cth) s61F
82
Child Protection Act 1999 (Qld) s82
47
Even where parents do not have current custody of the child, it may still be good clinical practice to involve
them in communications about the child’s health care where it would be in the best interests of the child to do
so. Caution needs to be exercised by health professionals here as, in some circumstances, Department of
Child Safety, Seniors and Disability Services would need to authorise the release of such information about
children who have been placed in care.
In regard to clinical decision making, the Department of Child Safety, Seniors and Disability Services, has
published the Child Safety Practice Manual: https://cspm.csyw.qld.gov.au/ which provides guidance on
decision-making about health care for children in care.
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This includes situations where a child or young person
is in the custody of an approved kinship or foster carer, or under the guardianship of the Chief Executive.
Queensland Health encourages staff to use the manual as a general guide to help identify which health care
decisions relate to the child’s daily care, and which relate to the child’s long-term care, wellbeing and
development. However, sometimes it may be difficult to classify whether the health care would be viewed as
daily care or not, and, in such cases, staff are encouraged to obtain advice from the Department of Child Safety,
Seniors and Disability Services or seek legal assistance.
If the child or young person has the capacity to make a decision in respect of the proposed health care, then
they may be able to provide consent to the treatment in appropriate circumstances and consent from the person
having custody or guardianship may not be required (see Section 3.1.5: How to assess whether a child or
young person is Gillick competent and has capacity to consent to health care).
The Child Safety Practice Manual outlines the responsibilities a person with custody has in respect to a child’s
health care. These include the responsibility to seek health care and dental assistance, including administering
prescription medication for established conditions in accordance with an existing treatment regime,
administering non-prescription medication and seeking routine medical attention for common illnesses.
However, a person with custody may not have the authority to consent to a proposed a new treatment regime
or other health care or where it would be considered something other than a matter of daily care.
The Child Safety Practice Manual also outlines the responsibilities a person with guardianship has in respect
of the child’s health care, including matters such as medical examination or treatment (including routine medical
care), invasive medical examinations and surgical procedures: The manual states this encompasses:
• immunisation
• blood tests
• invasive medical and surgical procedures, examinations or considerations. For example, medical
treatment involving general anaesthetic, blood transfusion, surgery, the degree of care to be provided
to a critically ill child or decisions in relation to the termination of life support
• DNA testing
• contraception where one of the following applies:
- a child is under 12 years of age
- a child is not considered 'Gillick competent'
- the treatment is medium or long-term and/or may have health risks - for example, progesterone
implants or Depo-Provera injections
• acting on a second medical opinion
• the use of prescribed medications to manage behaviour or mental health conditions - for example,
dexamphetamines and anti-depressants
• end of life decisions
• management of smoking behaviour.
Consent from a person with guardianship of the child would be required before a more complex or intimate
examination, investigation, procedure or treatment, or one with greater risks or consequences, was performed.
Before relying on the consent of a person with rights of custody only (which will generally include an approved
foster carer or kinship carer) the health practitioner should be satisfied:
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Child Safety Practice Manual, Department of Child Safety, Seniors and Disability Services https://cspm.csyw.qld.gov.au/
48
• about the extent of that person’s authority to consent to health care
• that the health care would reasonably be considered a matter of routine daily care
• that the healthcare (including any examination, investigation or treatment) is non-obtrusive
• that there is no significant risk to the patient and no significant long-term consequences
• that the health care (examination or treatment) is necessary to promote the child or young person’s
health and wellbeing
• that the health care (examination or treatment) is of the type that will best promote the child or young
person’s health and wellbeing
• that there is no objection from a person who has guardianship in respect of the child or young person
• that where the child or young person has the capacity to consent to the proposed health care, they have
done so.
3.1.4 What evidence of the authority to consent to health care is required?
Other than in the case of an emergency, or where it has been determined that the consent of the child or young
person can be safely relied upon, reasonable attempts are undertaken to establish the identity of the person
accompanying the child or young person and what right/s they have to make health care decisions for the child.
This might include sighting a court order, certificate of approval as a foster carer or kinship carer
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or other legal
document/s which identify:
• the patient as the child or young person who has been placed in care
• the adult accompanying them as the person who has responsibility for the patient
• the extent of that responsibility in terms of whether they can make decisions about daily care or the
long-term care, wellbeing and development of the child.
Even where the person accompanying the child produces some evidence of their responsibilities for the child
as nominated above, it is advisable for health practitioners to liaise with the Department of Child Safety, Seniors
and Disability Services regarding the current legal status of the child and the nature of out-of-home care
arrangements, as these arrangements, particularly kinship and foster carer approvals, do change quite
regularly.
3.1.5 How to assess whether a child or young person is Gillick competent and has
capacity to consent to health care
To establish that a child or young person has capacity to consent to health care, the health practitioner can
carry out an assessment to show the patient has sufficient understanding, intelligence and maturity to
appreciate the nature, consequences and risks of the proposed health care, and the alternatives, including the
consequences of not receiving the health care.
When assessing a child or young person’s capacity, the following issues should be considered
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:
• the age, attitude and maturity of the child or young person, including their physical and emotional
development
• the child or young person’s level of intelligence and education
• the child or young person’s social circumstances and social history
• the nature of the child or young person’s condition
• the complexity of the proposed health care, including the need for follow up or supervision after the
health care
• the seriousness of the risks associated with the health care
• the consequences if the child or young person does not have the health care
• where the consequences of receiving or not receiving the health care, include death or permanent
disability, that the child or young person understands the permanence of death or disability and the
profound nature of the decision he or she is making.
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Child Protection Act 1999 (Qld) s82(1) and s131
85
Consent to Treatment of Children Circular from the Chief Health Officer Issue No 23 December 2006.
49
The more complex the health care or more serious the consequences, the stronger the evidence of the child
or young person’s capacity to consent to the specific health care will need to be. In these situations, it is
recommended that the assessment is carried out by a medical practitioner.
The health practitioner documents fully in the patient’s clinical record the assessment they have carried out,
including the details which influenced their decision as to whether the child has capacity.
Maturity and intellectual development varies from one individual to another and an assessment of a child or
young person’s capacity is performed for each new health care decision. However, as a practical rule of thumb:
• a young person aged between 16 and 18 years is most likely able to consent
• a young person aged between 14 and 16 years is reasonably likely to be able consent
• a child under the age of 14 years may not have the capacity to consent, except for health care that does
not carry significant risk.
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A child who has the capacity to consent for a low risk, simple procedure like receiving an x-ray or suturing of a
small wound, may well not have capacity to give consent to a major heart operation with greater risks and more
serious consequences.
A child who is intellectually disabled may still be capable of consenting to and possibly refusing specific health
care depending on the specific circumstances.
Where a child or young person does not have capacity to give consent, this does not reduce the significance
of their involvement in decision-making, and health practitioners would communicate with them and involve
them as much as possible in decisions about their care.
3.1.6 Can a child or young person with capacity to consent decline health care?
A child or young person who has capacity to consent to health care can also decline health care.
In this situation a medical practitioner may:
• explore carefully the reasons for the child or young person declining to give consent
• encourage the child or young person to involve a parent or other adult before reaching a decision
• explore the reasons why they do not wish to involve a parent or other adult (the health practitioner may
need to consider overruling a child or young person in some circumstances, for example, if there are
child protection concerns)
• consider whether alternative health care might be acceptable
• consider involving other members of the multidisciplinary team, an independent advocate or a named
or designated doctor for child protection, if their involvement would help with the decision-making
process
• consider obtaining a second opinion about the child’s capacity if there is any doubt
• document the details of the above discussions in the clinical record
• remember that to be valid, consent is voluntary and free from any pressure by health practitioners,
parents or others.
Remember, that where there is significant risk from a child or young person declining to consent to health care,
it is advisable to seek advice from a senior medical practitioner. Ultimately, however, a court may override a
child or young person’s decision and the first and paramount consideration will always be the welfare, wellbeing
and interest of the child or young person. Legal advice may also be required. If unsure, refer to the Executive
Director of Medical Services or their representative.
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Consent for Treatment and Confidentiality in Young People, September 2004, the former Medical Practitioners Board of Victoria pp1 to 6.
50
3.1.7 How to deal with disputes about capacity to consent or the proposed health care
Both parents and older children or young persons may hold concurrent ability to consent to the child or young
person’s health care. In most cases, this will not cause a problem, but disagreement sometimes arises between
the child or young person, and their parent or guardian about what health care is best for the child or young
person.
If the child or young person has sufficient capacity to consent to the specific healthcare, and the health
practitioner considers it is in their best interests, their wishes are usually honoured. However, particularly for
health care where there are significant risks, it will usually be appropriate to consider seeking a second opinion
from a senior, experienced, medical practitioner and obtaining legal advice.
In Queensland, it is still unclear whether someone with parental responsibility can overrule the declining of
consent expressed by a child or young person who has capacity to consent on a specific matter. Until this is
resolved, Queensland Health recommends legal advice be obtained regarding a possible application to the
court for a ruling if taking the above steps does not resolve the issue.
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Where a medical practitioner, health practitioner, parent or guardian disagree about the child or young person’s
capacity to make a decision, it is in the best interest of all parties concerned to consider seeking legal advice,
particularly where there are significant risks to the patient in receiving or not receiving the health care.
In some situations it may be appropriate to consider delaying the health care until such time as the child or
young person has matured sufficiently to have capacity to make the decision for themselves.
3.1.8 Do parents or guardians need to be present at the time of health care being
provided?
In situations where parents or guardians have given advance consent to a specific form of health care being
carried out, for example, oral health clinic and other outreach programs, it is good clinical practice to encourage
parents to attend with the child. The reasons for this include:
• confirming the child’s identity
• confirming the site and side of the procedure
• giving consent to additional health care or a changed health care plan
• reassuring and supporting the child
• providing supervision after the health care.
In circumstances where the parent or guardian does not attend with the child or young person, and the health
practitioner has concerns that consent given in advance may not be valid, the health care would be postponed
until the validity of the informed consent has been confirmed.
For more discussion see Section 4.8: Childhood and school-based programs (including oral health and
immunisation programs).
3.2 Informed decision-making for urgent and life-saving health care to children
and young persons
3.2.1 General approach to consent for urgent and life-saving health care to children
and young persons
In urgent and life-saving situations, health practitioners are expected to make reasonable attempts (considering
the circumstances and time permitting) to obtain consent from the child or young person (if they have capacity
to do so) or from someone with parental decision-making responsibility. However, if this is not possible, health
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White, Ben, McDonald, Fiona & Willmott, Linda (Eds) Health Law in Australia (3rd edition), Thomson Reuters (Lawbook Co 2018), Australia, Chapter 6
51
care is provided without unreasonable delay if the health practitioner believes on reasonable grounds it is
immediately necessary to save a child or young person’s life or to prevent serious injury to their health.
In such cases the health care must be:
• in the best interests of the child or young person
• the minimum necessary for the purpose of saving the child or young person’s life or to prevent serious
injury to their health
• where there is more than one option, the one that is consistent with good medical practice and leaves
most future choice open to the child or young person.
The health practitioner making the decision to provide health care in the absence of consent is responsible for
documenting clearly in the patient’s clinical records:
• that consent was not obtained
• the reasons for providing health care without consent including:
- the assessment of the child or young person’s capacity to consent
- any steps taken to contact someone with the authority to consent for the child or young person and
any resulting discussions
- the health care is immediately necessary to save a child or young person’s life or to prevent serious
injury to their health.
Where the child or young person is unable to consent and there is no one else available with authority to consent
on their behalf, the Criminal Code Act 1899 (Qld)
88
removes criminal liability for a surgical operation or medical
treatment performed or provided in good faith, with reasonable care, and for the child’s benefit.
3.2.2 Blood and blood product transfusions in children and young persons
Usually consent is required before providing blood or blood products transfusion to children and young persons.
It is important the decision-maker understands what range of treatment options and alternatives to blood and
blood products transfusion are available, as some may be more acceptable than others (see Section 4.3: Blood
and blood products transfusion).
However, if a child requires a blood transfusion as a life-saving measure for a condition the child currently has,
the Transplantation and Anatomy Act 1979 (Qld)
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allows for a transfusion to be given without the parents'
consent (whether due to declining of consent or lack of time). Such a situation may arise in relation to the child
of Jehovah’s Witness parents. A medical practitioner can administer a blood transfusion as a treatment in the
absence of consent if certain conditions are met:
• the medical practitioner is of the opinion that the administration of a blood transfusion is necessary to
preserve the life of the child or young person
• before the administration of the blood transfusion, either:
- a second medical practitioner is required to examine the child in person and be of the opinion
that the administration of a blood transfusion is necessary to preserve the life of the child or
young person, or
- the medical superintendent of a base hospital (or equivalent) is satisfied that a second medical
practitioner is not available to examine the child and that a blood transfusion is necessary to
preserve the life of the child, and they consent to the transfusion.
The medical practitioner(s) document clearly in the patient’s clinical records:
• that consent was not obtained
• the current condition requiring the transfusion
• the reasons for providing treatment without consent including:
- the transfusion is necessary to preserve the life of a child or young person
- the assessment of the child or young person’s capacity to consent
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Criminal Code Act 1899 (Qld) s282
89
Transplantation and Anatomy Act 1979 (Qld) s20
52
- any steps taken to contact someone with the power to consent for the child or young person
- the details of the second opinion
- the details of any discussions with and consent from the medical superintendent.
Where a child or young person has sufficient maturity to have capacity in relation to receiving a blood
transfusion, they may consent for themselves. However, the Transplantation and Anatomy Act 1979 is silent
with regards to those situations where a child may be Gillick competent and may have capacity to make
decisions about his/her health care and is refusing a blood transfusion.
If there is no doubt the young person has the capacity to decide and they decline to consent, it is likely their
decision needs to be honoured. However, this situation has not been adequately tested in the Australian courts
and it is recommended legal advice be considered.
Additional difficulties may arise where a health practitioner believes a child or young person is being pressured
into refusing or accepting treatment with blood or blood products to the extent their capacity may be in doubt.
Where there is doubt about a child or young person’s capacity to decide, or they have capacity and are refusing
the administration of blood or blood products, medical practitioners can seek guidance (including a second
opinion if necessary) from a senior medical practitioner and/or obtain legal advice as required. In some cases,
it may be necessary to seek the court to intervene to authorise treatment.
Where those with parental responsibility object to the administration of a blood transfusion for religious or other
reasons, they are also able to seek the intervention of the court, which would decide the matter in the child’s
best interests.
3.3 Examination of a child or young person without the consent of parents under
the Child Protection Act 1999
A health practitioner may medically examine or treat a child or young person in relation to specific child
protection concerns under the Child Protection Act 1999 (Qld), where a police officer or authorised child safety
officer requests this, or there is an appropriate order.
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Consent by the child or young person to the examination should be sought where they have capacity to do so,
but parental consent is not required and does not need to be sought.
3.4 When is consent from a parent, guardian or child/young person not enough?
Consent is obtained from the appropriate court where treatments are considered to be extremely high risk,
ethically sensitive or have profound life-changing effects. Neither consent from the parent nor a child/young
person with capacity to make the decision is sufficient in such cases.
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Examples of treatments where only court authorisation of the health care is valid include:
• gender reassignment of a child
• sterilisation of a child.
This is not an exhaustive list and further information is available at these websites:
• Queensland Law Reform Commission www.qlrc.qld.gov.au/ and
• Queensland Family and Child Commission www.qfcc.qld.gov.au
It is recommended that legal advice be obtained in such cases or if doubt exists as to who has the authority to
make decisions about any health care of a child or young person.
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Child Protection Act 1999 (Qld) s97.
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Consent to Health Care of Young People - Volume One - The Law and Need for reform (1996) pp158 to164, Queensland Law Reform
Commission.
53
Part 4 Informed decision-making and consent in specific health care
situations
4.1 Do patients need to give informed consent to intimate examinations?
Informed consent is required before an intimate examination is carried out on a patient.
Intimate examinations include examination of the breasts, genitals and anus/rectum. However, an intimate
examination can only be defined by what an individual patient perceives as being intimate. For example, when
conducting a clinically necessary cardio-respiratory examination it may be necessary to expose, move or
otherwise touch the breasts. Some patients find this type of examination intimate or distressing even though
the primary purpose is not a breast examination.
Even when the health practitioner is the same gender as the patient, care is taken to ensure a patient’s decision
surrounding an intimate examination is fully informed.
In addition to obtaining informed consent prior to any examination, the patient might find intimate, the dignity
of the patient needs to be respected, including:
• offering privacy to undress
• only helping to undress a patient after they have clearly given consent to such assistance
• using curtains
• using drapes (sheet/blanket) to cover the patient
• only exposing the minimum necessary for the examination being conducted at that time (that is, if a
full examination is required, covering the areas that are not being assessed at that moment).
Best practice indicates that health practitioners offer a chaperone of the patient’s choice for any examination
the patient might find intimate. It is suggested that the chaperone offered be a clinical member of staff rather
than a family member or friend, and that if the patient requests, a support person also be provided.
Patients have a right to decline such examination as long as the decision is informed. Similarly, they may ask
for a particular chaperone to be present or a particular health practitioner (maybe gender-based) to undertake
the examination. Such requests are complied with where possible. However, where this is not the case, or if it
would mean deferring the examination to a different time, the patient is provided with appropriate information
about how this might change the risks/benefits/health care options so they can make an informed decision.
If a patient declines to have another health practitioner present during the examination, this should be
documented including the actions taken. Similarly if a patient consents to the examination but declines a
chaperone, this should also be documented. A staff member should remain within hearing outside the
door/screen of the examination area (as protection for the examining health practitioner).
Where practice standards require written consent (for example, the Diagnostic Imaging Accreditation Scheme
(DIAS) Practice Accreditation Standards January 2016 – Transvaginal Ultrasound it should be noted that
Queensland Health is supportive of such standards and recommends as best practice that written consent be
obtained. Visit: https://www.safetyandquality.gov.au/standards/diagnostic-imaging/diagnostic-imaging-
accreditation-scheme-standards Also refer to Section 1.5: When should consent be obtained in writing?
In other cases it is usually sufficient to rely on verbal consent and to document the discussions and the consent,
and include the name of the chaperone or support person in the patient’s clinical record. However, other
situations may require written consent, such as prior to an intimate examination on a child or young person, or
an intimate examination that will be conducted on an anaesthetised patient.
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4.2 Considerations for persons receiving treatment and care under the Mental
Health Act 2016
The Mental Health Act 2016 authorises the involuntary treatment and care of individuals with a mental illness
who do not have capacity to consent to be treated and where there is no other less restrictive way.
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Capacity for people with a mental illness
A person is presumed to have capacity to make decisions about their treatment and care and other matters
under the Mental Health Act 2016. The presumption that a person has capacity can be rebutted where it can
be shown that the person lacks capacity to consent to treatment at the time the treatment decision needs to be
made. Capacity under section 14 of the Mental Health Act 2016 is defined differently than under other statutory
regimes within Queensland. A person has capacity to consent to be treated for their mental illness if:
• The person is capable of understanding in general terms:
- That the person has a mental illness, or symptoms of an illness, that affects mental health and
wellbeing, and
- The nature and purpose of the treatment for the illness, and
- The benefits and risks of the treatment and alternatives, and
- The consequences of not receiving treatment, and
• Is capable of making a decision and communicating it in some way.
Accordingly, if it is demonstrated that a person does not meet one of the above factors, the presumption of
capacity will be rebutted (i.e., the person will not have capacity for the purposes of the Mental Health Act 2016).
Less Restrictive Way
The Mental Health Act 2016 requires clinicians to consider whether there is a less restrictive way for a person
to receive treatment, other than providing involuntary treatment under a Treatment Authority under the Mental
Health Act 2016. A less restrictive way for a person to receive treatment includes consent provided in an
Advance Health Directive (if made by the person when they have capacity), or consent of an attorney or
guardian, if the person’s treatment needs can be met in that way.
For more information refer to Treatment and care under the Mental Health Act 2016 | Queensland Health.
4.2.1 Can regulated mental health treatments be given without consent?
Electroconvulsive therapy and non-ablative neurosurgical procedures are regulated treatments under the
Mental Health Act 2016.
93
The Mental Health Act 2016 sets out requirements for the approval and performance
of these treatments to ensure appropriate safeguards are in place; these may only be performed by a doctor
at a health facility declared by the Chief Psychiatrist to be an authorised mental health service for that purpose.
For further information regarding the use regulated treatment, please refer to the Chief Psychiatrist’s policies
and resources (https://www.health.qld.gov.au/clinical-practice/guidelines-procedures/clinical-staff/mental-
health/act/topics/treatment-care).
4.3 Blood and blood products transfusion
4.3.1 What consent is needed and what documentation is to be used?
Currently, Queensland Health procedure specific consent forms include a statement covering the patient’s
consent for blood transfusions for that procedure, if required. A separate specific transfusion consent form is
not required unless the patient has a significant change in health status or where the nature of the intended
health care changes.
A Queensland Health Blood and Blood Products Transfusion Consent form and Blood and Blood Products
92
Mental Health Act 2016 (Qld)
93
Mental Health Act 2016 (Qld) (Ch 7, Part 10)
55
Transfusion - Patient Information is required for each blood and blood products treatment that involves the
administration of:
• fresh blood
• fresh blood products, for example:
− platelets
− fresh frozen plasma (FFP)
− cryoprecipitate.
Written consent is not required for fractionated blood products carrying lower risks than fresh products, for
example:
• immunoglobulin
• coagulation products
• albumin.
Some conditions, such as those requiring chemotherapy, or patients with blood dyscrasias, may require
multiple transfusions of blood and blood products. To meet this requirement, an additional section within the
procedure specific form, Blood and Blood Products Transfusion Consent is available. This consent document
is unique in that it includes the possibility of consenting to multiple blood and blood product treatments for a
medical condition for a definable period of time. Start, frequency and approximate end dates of the transfusions
must be documented on the consent form. Where a course of transfusion treatment needs to change due to a
patient’s condition, or a change in the treatment program (see Section 1.11: What is the lifespan of a written
consent?), a fresh consent to the new course of treatment needs to be obtained and documented with the
obligation to warn again of risks that may arise.
Separate blood and blood products patient information sheets are available on the informed consent website
and are given to patients who knowingly will require blood for a procedure. The information sheets include links
to the Clinical Excellence Commission
94
and the Australian Red Cross Blood Service
95
websites.
For children and young persons refer to Section 3.2.2: Blood and blood product transfusions in children and
young persons.
4.3.2 Declining of consent to a blood and blood products transfusion
Adult patients with capacity to decide on the issue can decline a blood or other blood products transfusion. A
health practitioner is obliged to respect such a decision and continue to provide other alternative forms of health
care acceptable to the patient.
In addition, to ensure their decision is appropriately informed, the patient will need to understand the details
about the range of health care options available, the risks, and the effectiveness in their clinical situation. This
might include:
• the extent they are derived from or contain blood cellular components, are purified or fractionated
from plasma, or are made artificially and not derived directly from blood
• the availability and appropriateness of other technologies such as autologous transfusion, or cell
savers.
As with other decisions about health care, depending on the clinical urgency, patients are given sufficient time
to reflect on the information, consult with those close to them or other advisers, and have their questions
answered before making decision.
Where a medical practitioner reasonably considers an adult patient has an impaired capacity to make a
decision about their health care, and a transfusion of blood/blood products is required urgently to meet an
imminent risk to the life or health of the patient, a transfusion may be administered without consent as long as
94
Clinical Excellence Commission, New South Wales https://www.cec.health.nsw.gov.au/keep-patients-safe/blood-watch/information-for-consumers
95
Australian Red Cross Blood Service https://www.lifeblood.com.au/patients/receiving-a-transfusion
56
the medical practitioner does not know of an objection by the patient in an Advance Health Directive
96
(see
Section 2.2.1: What are Advance Health Directives and when do they apply? and Section 2.2.2: Consent under
an Advance Life Directive for further information).
Patients of the Jehovah’s Witness faith may carry a card containing information about their views about such
health care, or have made an Enduring Power of Attorney in which they outline their wishes about receiving
blood/blood products in the event they lack capacity to make decisions about their health care. Where these
are valid, they are followed, and the decisions of an attorney respected. For more details refer to Section 2.2:
Who can consent for adult patients who have impaired capacity?: Substitute decision makers.
Where additional complexities arise, for example, when a family disputes whether or not blood is to be provided
to the patient or where the terms of the Advance Health Directive or Enduring Power of Attorney are unclear,
legal advice may be required.
For children and young persons refer to Section 3.2.2: Blood and blood product transfusions in children and
young persons.
4.4 Maternity care
Midwives, doctors, and other health practitioners can help support informed decision making prior to
pregnancy, during pregnancy, and following birth through evidence based discussions regarding the available
care options. Discussions should be undertaken in a collaborative environment, which supports the woman’s
goals, values and preferences.
“Clinicians work on the presumption that every adult woman has the capacity to decide whether to agree to or
decline healthcare ... except when it can be shown by a clinical assessment they do not have the capacity to
make such a decision”(p12).
97
The clinician discusses informed decision making with the consumer, providing
a general overview, including the roles of the clinician and the consumer. The clinician provides evidenced,
unbiased information in a non-judgemental way that is easily understood by the consumer. Information
provided by the clinician includes the healthcare options, recommended and alternative healthcare options;
the expected benefits, common side effects, potential risks and complications of the healthcare options; and
explains the woman’s right to accept or decline recommended maternity care, or withdraw consent at any
time.
97
The woman is given sufficient time to consider and clarify the information provided and to consult with others,
in order to make an informed decision. For consent to be valid, this includes that the woman’s decision and
consent must be “voluntarily given, and free from manipulation by, or undue influence from, a partner, family,
clinicians or other social coercive influences”(p12).
97
Whenever possible, informed decision making and
consent decisions occur early in the birthing process to minimise the possible impact that pain, tiredness and
medication may have as labour progresses. Clinicians should avoid seeking a decision or consent during a
contraction.
97
The state-wide Pregnancy Health Record may be used to document birth preferences and clinical history and
provides a framework for clinicians in providing timely and appropriate information.
98
Birth preferences,
including when recommended care is declined, should be respectfully discussed in accordance with best
practice.
97,98,
99
A history of trauma, including from a previous birth(s), may influence how consumers engage
with health care, their decision-making and birth preferences.
100
During labour a woman may change her
preferences and previously made decisions and/or plans; and clinicians should support informed decision
making, regardless of previously expressed preferences and/ or documented plans.
Where recommended maternity care is declined, holistic and culturally supportive care is offered within the
parameters of the consent provided. Further information is available on the Partnering with the woman who
96
Guardianship and Administration Act 2000 (Qld) s63.
97
Partnering with the woman who declines recommended maternity care, 2020, Queensland Health
https://www.health.qld.gov.au/__data/assets/pdf_file/0022/736213/maternity-decline-guide.pdf
98
Pregnancy Health Record, Queensland Health https://clinicalexcellence.qld.gov.au/sites/default/files/2017-11/pathways-womens-ieMR-ONLY-PHR-
form.pdf
99
Respectful maternity care: universal rights of childbearing women. 2011, The White Ribbon Alliance. https://whiteribbonalliance.org/wp-
content/uploads/2022/05/WRA_RMC_Charter_FINAL.pdf
100
Consultation Paper: Development of a whole-of-government Trauma Strategy for Queensland -Pregnancy and Early Parenting, 2024, Queensland
Mental Health Commission.
57
declines recommended maternity care website and in the Partnering with the woman who declines
recommended maternity care guideline.
97
Midwives are advised to also refer to the Australian College of
Midwives National Guidelines for Consultation and Referral: Care outside the Guidelines.
101
“In all situations where the woman has capacity, providing treatment without the consent of the woman may
result in a criminal charge of assault, civil action for battery and/or disciplinary action” (p13).
97
Note that Section
4.1: Do patients need to give informed consent to intimate examinations? applies during maternity care.
Consent forms are used in conjunction with a verbal discussion and must be documented appropriately,
ensuring the consumer understands what they are consenting to and that their informed decision is provided
voluntarily. Currently, a Queensland Health specific consent form is required for:
• induction of labour
• caesarean section
• epidural/ anaesthesia
• blood and blood products transfusion
• complementary feeds of infant formula for breastfeeding infants.
In future, other circumstances requiring state-wide written consent forms may be identified and the appropriate
consent forms and documentation in the patient’s clinical record will be required.
All birth plans and consent forms are to be filed in the consumer’s clinical record and retained in accordance
with the Queensland Government Health Sector (Clinical records) Retention and Disposal Schedule’ and the
Queensland Health Retention and Disposal of Clinical Records Implementation Standard. See Section 1.6.9
Retention of consent documentation for further information.
4.4.1 Termination of pregnancy
‘Termination’ of a pregnancy
is defined under the Termination of Pregnancy Act 2018 (Qld)
102
(the ToP Act) to
mean the intentional ending of a pregnancy in any way, including by administering a drug, or using an
instrument or other thing.
The purposes of the ToP Act
102
are to:
• enable reasonable and safe access to termination; and
• regulate the conduct of registered health practitioners in relation to terminations.
A pregnancy may be terminated using a medical or surgical approach. Surgical termination is not defined under
the ToP Act, however:
• a ‘medical termination’ is defined as ‘a termination caused by use of a termination drug’; and
• a registered health practitioner ‘performs a medical termination’ on a person, if the practitioner
- ‘prescribes a termination drug for use in the termination’; or
- ‘administers, or gives a treatment dose of, a termination drug for use in the termination
without a prescription’.
102
The ToP Act
102
provides that:
• a medical practitioner
− may perform a medical termination or a surgical termination of pregnancy
− may perform a medical termination of pregnancy because they are authorised under
Schedule 6 of the Medicines and Poisons (Medicines) Regulation 2021 (Qld) to prescribe,
administer, or give a treatment dose of a medicine, which may include a termination drug
• an endorsed midwife or a nurse practitioner from 1 September 2024
− may perform a medical termination of pregnancy, because they are authorised under
Schedule 7 of the Medicines and Poisons (Medicines) Regulation 2021 (Qld) to prescribe,
administer, or give a treatment dose of a medicine, which may include a termination drug
101
National Midwifery Guidelines for Consultation and Referral: Care outside of Guidelines, 4
th
edition, 2021, Australian College of Midwives
https://midwives.org.au/common/Uploaded%20files/_ADMIN-ACM/National-Midwifery-Guidelines-for-Consultation-and-Referral-4th-Edition-(2021).pdf
102
Termination of Pregnancy Act 2018 (Qld) https://www.legislation.qld.gov.au/view/whole/html/inforce/current/act-2018-023
58
• a midwife or registered nurse from 1 September 2024
− may perform a medical termination of pregnancy by administering or giving a treatment
dose of a termination drug only if they have a specific authority given under the Medicines
and Poisons Act 2019, for example:
• they are practising under their respective extended practice authority (EPA) made
under section 232 of the Medicines and Poisons Act 2019 which allows them to
perform a medical termination.
The performance of a medical termination of pregnancy cannot be delegated to another person.
A prescribed practitioner or prescribed student (defined in Schedule 1 of the ToP Act), may in limited, specified
circumstances under section 7 of the ToP Act
102
, assist:
• a medical practitioner to perform a medical or surgical termination, or
• from 1 September 2024, a registered health practitioner who is authorised under section 6A of the ToP
Act to perform a medical termination.
All registered health practitioners, including prescribed practitioners, and also prescribed students, should
comply with the requirements of the Medicines and Poisons Act 2019 and Medicines and Poisons (Medicines)
Regulation 2021 (Qld).
Further information, including responsibilities and obligations that must be met, are outlined in the ToP Act
102
,
Queensland Clinical Guideline: Termination of pregnancy
103
and relevant local policy documents.
Termination of pregnancy is considered a health matter and may be a ‘special health matter’ detailed under
the Powers of Attorney Act 1998 (Qld). Termination of pregnancy health care is provided in partnership and is
led by the consumer’s health needs, concerns and choices. For clinical care information, refer to the
Queensland Clinical Guideline: Termination of pregnancy.
103
It is paramount that the general principles of obtaining valid informed consent prior to termination of pregnancy
are adhered to (refer to Section1.2: What is meant by informed decision-making and informed consent? of the
Guide). Additional consent considerations include:
• for a young person deemed not to have capacity (i.e., not Gillick competent)
- the young person’s parents/guardian cannot provide consent to a termination
• the Supreme Court in its parens patriae jurisdiction
104
may authorise the termination for an adult who
lacks capacity, a termination of pregnancy is considered to be ‘special health care’
104,
105
- an attorney, legal guardian or substitute decision maker cannot give consent for another person
to undergo a termination
- The Queensland Civil and Administrative Tribunal may consent for an adult with impaired
capacity to undergo a termination “only if the Tribunal is satisfied that it may be performed by a
medical practitioner under the ToP Act”.
,104,105
In the situation of emergency care involving termination:
• as per section 6(3) of the ToP Act, in an emergency,
- a medical practitioner may perform a termination after 22 weeks gestation if they consider it
is necessary to save the woman’s life or the life of another unborn child.
102
• conscientious objection does not limit any duty owed by a registered health practitioner to provide a
service in an emergency at any gestation of pregnancy
• as for other health emergencies, the registered health practitioner is required to consider what
assistance they can provide based on their own safety, skills and what other options are available.
102
In all cases where a termination of pregnancy is considered, the clinical assessment, advice, consenting
discussions and the information provided by the medical or approved registered health practitioner is
documented in the clinical record. A Queensland Health procedure specific consent form should be used, see
Informed Consent - Obstetrics & Gynaecology | Queensland Health.
103
Queensland Clinical Guideline: Termination of pregnancy, Queensland Health (amended 2024)
104
Guardianship and Administration Act 2000 (Qld)
105
Powers of Attorney Act 1998 (Qld)
59
Conflict may arise when the practitioner is unable to provide a termination of pregnancy due to clinical
appropriateness, facility capability, or legal, religious/ethical reasons. In such circumstances, the practitioner
must complete a timely transfer of care to another service or registered health practitioner who they believe
can provide the service (refer to Queensland Clinical Guideline: Termination of pregnancy).
103
It is important to note that this section of the Guide is not intended to cover in full or supplement the
requirements set out in the ToP Act
102
or information provided in other dedicated Queensland Government
resources on termination of pregnancy, including the Queensland Clinical Guideline: Termination of
pregnancy.
103
Staff must ensure they consult these resources to ensure they meet their obligations under the
ToP Act. Additionally, staff must follow any local policies, procedures and guidelines which may exist in relation
to termination of pregnancy.
For further information, refer to:
• ToP Act
• Queensland Clinical Guidelines, ToP
• Queensland Health ToP consent forms
• Extended Practice Authority (EPA)- midwives and EPA - registered nurses
• Clinical Pathway https://clinicalexcellence.qld.gov.au/resources/clinical-pathways and
https://qheps.health.qld.gov.au/caru/clinical-pathways
Note, Section 4.4 Maternity care and Section 4.4 .1 Termination of Pregnancy have adopted the language used
in the Queensland Clinical Guidelines (QCG).
103
The QCG definition of ‘woman/ women’ states, ‘QCG recognise
that individuals have diverse gender identities. In QCG documents, although the terms woman and women are
used, these guidelines are inclusive of people who are pregnant or give birth and who do not identify as
female
106
,
107
’.
4.5 Voluntary Assisted Dying
Voluntary assisted dying has been available in Queensland from 1 January 2023. The Voluntary Assisted Dying
Act 2021 (Qld)
108
(VAD Act) and Voluntary Assisted Dying Regulation 2022 (Qld) (VAD Regulation) provide
the framework for the voluntary assisted dying scheme in Queensland, including who may access the scheme
and the process which must be observed.
The concept of ‘voluntary assisted dying’, as reflected by the provisions of the VAD Act, emphasises that:
• decisions to request, access and continue with the voluntary assisted dying process must be voluntary
and without coercion; and
• the process is assisted by authorised medical practitioners, nurse practitioners and registered nurses;
and
• to be eligible, the person must be suffering and dying and must meet all the eligibility criteria set out in
the VAD Act.
To access voluntary assisted dying, a person must make the decision themselves and have decision-making
capacity at certain points throughout the process. This means a request will not be valid if:
• a person requests voluntary assisted dying in advance care planning documents;
• a substitute decision-maker or other person requests voluntary assisted dying on behalf of another
person.
The VAD Act protects the rights of registered health practitioners to not participate in voluntary assisted dying.
Registered health practitioners and speech pathologists need to be aware of their rights, roles and
responsibilities as detailed in the VAD Act.
The voluntary assisted dying process
106
Australian College of Midwives. Aims and scope. Women and Birth. [Internet]. 2024 [cited 2024 March 3]. Available from:
https://www.womenandbirth.org
107
Australian Government Department of Health and Aged Care. First evaluation report: national stillbirth action and implementation plan. [Internet].
2023 [cited 2024 March 4]. Available from: https://www.health.gov.au/
108
Voluntary Assisted Dying Act 2021 (Qld) https://www.legislation.qld.gov.au/view/html/inforce/current/act-2021-017
60
The VAD process involves three key phases, and each phase has a number of steps the person requesting to
access to voluntary assisted dying, and those supporting the process, including witnesses, the nominated
contact person, authorised practitioners and pharmacists must take. A person requesting VAD can stop this
process at any time.
The full process is detailed in the VAD Act the VAD Regulation and the Queensland VAD Handbook.
Informed consent and voluntary assisted dying
In addition to multi-staged assessment of the person’s decision-making capacity and to ensure a person elects
to access the scheme voluntarily, the VAD Act contains a number of mandatory steps – from the first request
through to final request and final review and administration of the voluntary assisted dying substance. For
example, the VAD Act explicitly requires that people who are considering voluntary assisted dying are provided
with all the necessary information about their condition, prognosis, preferences, and available treatment options
to make informed decisions.
Accordingly, at each stage in the process of the voluntary assisted dying scheme, there will be requirements
which need to be observed related to ensuring individuals accessing the scheme make informed decisions and
have the capacity to do so. Additional examples of information which must be given to people requesting to
access the voluntary assisted dying scheme include:
Initiating a discussion about voluntary assisted dying before a first request
• A medical practitioner or nurse practitioner may initiate a discussion with a patient about voluntary
assisted dying if, at the same time, the practitioner also informs the person about the:
- the treatment options available to the person and the likely outcomes of that treatment; and
- the palliative care and treatment options available to the person and the likely outcomes of that
care and treatment.
The first assessment and consulting assessment
• The coordinating and consulting practitioners must provide the person they had independently assessed
as eligible, person specific information (available in this checklist in Appendix F of the Queensland VAD
handbook):
- the person’s diagnosis and prognosis
- the treatment options available to the person and the likely outcomes of that treatment
- the palliative care and treatment options and likely outcomes of that care and treatment.
Critically, this guide is not intended to cover in full or supplement the requirements set out in the VAD Act, VAD
Regulations, Queensland Voluntary Assisted Dying Handbook or other dedicated resources prepared by the
Queensland Government relating to voluntary assisted dying. Staff must ensure they consult these resources
to ensure they meet their obligations under the VAD Act and VAD Regulations.
For further information, refer to:
• Voluntary Assisted Dying Act 2021 (Qld)
• Voluntary Assisted Dying Regulation 2022 (Qld)
• Queensland Voluntary Assisted Dying Handbook
• Queensland Health Voluntary Assisted Dying website.
4.6 Open access services
The open access system allows a medical practitioner, usually a general practitioner (GP) within the
community, the opportunity to directly schedule elective procedures for their patients without them having first
been examined by a specialist proceduralist. Consequently, the proceduralist will generally not have the
opportunity to discuss the health care options, risks, complications and outcomes with the patient until the day
of procedure.
Open access units are usually supported by nursing and other health care staff who provide extensive
information (such as explanatory leaflets) to patients regarding their prospective health care. Staff working in
open access pre-admission clinics have a responsibility to provide healthcare information − including that
related to anaesthesia − to patients prior to this procedure being conducted, preferably at the time of booking
61
to having the procedure performed. This gives the patient sufficient time to consider the information and make
an informed decision.
The referring practitioner has a duty to fulfil this initial obligation, outlining possible risks and complications of
both the procedure and any anaesthesia required. However, while the consenting process is a multi-
disciplinary team approach, the responsibility for ensuring the patient has received sufficient information to
make a valid informed decision rests with the practitioner performing the procedure. This includes confirming
the patient’s level of understanding of the information previously given and giving them the opportunity to
receive additional information and to have any questions answered in a way they can understand.
4.7 Health care administered in a clinical trial, medical research or experimental
health care
All medical research in Queensland requires ethics approval. The Department of Health Research
Management Policy clearly outlines the consent requirements to be obtained from participants. Visit:
https://www.health.qld.gov.au/system-governance/policies-standards/doh-policy/policy/qh-pol-013.pdf
4.8 Childhood and school-based programs (including oral health and
immunisation programs)
There is a tension between providing health care to large numbers of patients and the need to ensure valid
informed consent has been provided. Valid informed consent is required before examining or treating children
and young persons in such programs. In particular, the principles and processes described in Section 1.6:
What process of informed decision-making needs to be followed? and Section 3: Informed decision-making
and consent for children and young persons, will apply.
Where general consent is obtained to participate in a program involving multiple health care episodes over a
period of time, confirmation of ongoing consent is required on each occasion a patient attends for health care
(see Section 1.11: What is the lifespan of a written consent?).
It is usually sufficient to obtain verbal consent on the second and subsequent occasions where a signed
consent to a program of health care already exists, but any discussions and confirmation of the consent are to
be documented in the patient’s clinical records on each occasion. If there is any significant change in the
patient’s condition or health care options, a fresh consent process is required.
If consent to all or part of the program is declined (for example, not wanting to receive one component of a
multiple vaccination) or withdrawn, this decision and the reasons (if known) are documented in the patient’s
clinical record (see Section 1.9: Can a patient or decision-maker decline or withdraw consent to health care?).
In addition to facilitating the consent process, there are additional reasons for someone with parental
responsibility to be present whenever children and young persons attend for health care, as described in
Section 3.1.8: Do parents or guardians need to be present at the time of health care being provided?
4.8.1 Infants, pre-school children and young persons who lack capacity to give consent
It is extremely unlikely pre-school children have sufficient capacity to consent and so valid, informed consent
from somebody legally able to provide is required. Similarly, where older children and young persons lack
capacity to consent to a specific form of health care for themselves, a health practitioner will need to obtain
consent from an appropriate person who is legally able to provide it. In most cases, the appropriate person will
be a parent or legal guardian. Section 3.1.2: Who can consent for a child or young person? provides more
details about whether other people are able to consent or not.
If a child is brought for health care by a step-parent, grandparent, older sibling or other carer who is not a parent
or legal guardian, they are not legally able to provide valid consent or sign for the same. The health care cannot
be given without the valid consent from an appropriate person except in the circumstances referred to in Section
3.2: Informed decision-making for urgent and life-saving health care to children and young persons.
Approved foster carers and approved kinship carers are able to consent for examinations and minor low risk
health care that would be considered a matter of daily care (for example, dental examination and minor, low
62
risk dental treatments), and on subsequent visits to ongoing treatment (for example, where a signed consent
to a health care program has already been obtained from a parent or guardian). However, these carers are not
able to give consent to a new or changed course of health care with significant or long-term consequences or
greater risks that would not be considered a matter of daily care (see Section 3.1.3: What about children who
are placed in care?).
Where the specific health care provided will depend on the results of an initial examination, the initial consent
is limited to the examination and additional consent to provide specific health care is obtained once the findings
are known and appropriate information has been provided.
In circumstances where the parent or guardian does not attend with the child or young person, and the health
practitioner has concerns that consent given in advance may not be valid, the health care is to be postponed
until the validity of the informed consent has been confirmed.
4.8.2 Older children and young persons who have capacity to consent to health care
Older children and young persons who have capacity to give consent can do so themselves. However, even if
the patient has capacity, it may still be prudent to encourage them to involve an adult as described in Section
3.1.1: At what age can children and young persons consent for themselves?
4.9 Public health orders
Chapter 3 of the Public Health Act 2005 allows for the mandatory detention by order of the chief executive
109
,
or detention, medical examination and treatment by order of a magistrate
110
of persons with a controlled
notifiable condition
111
, for example, tuberculosis, HIV or avian influenza.
The medical practitioner is required to give the subject of the order an explanation of the examination or
treatment to be undertaken in a way likely to be readily understood by them, and allow them an opportunity to
submit to the examination or treatment voluntarily.
112
4.10 What are the informed decision-making issues for off-label use of
medications?
Medications are frequently used outside their marketing approval (known as ‘off-label’), that is, not in line with
the indications, dose or route of administration which has been approved by the Therapeutic Goods
Administration (TGA).
Where medications are used off-label, health practitioners:
• ensure appropriate consent is always obtained
• refer to the current Queensland Health List of Approved Medicines. Visit:
https://www.health.qld.gov.au/clinical-practice/guidelines-procedures/medicines/approved-list where
some off-label use of items is reflected in specific restrictions
• when the item is not on the LAM, local procedures (for example, protocols applicable to certain groups
of patients or approval by the local or District Medicines or Drug and Therapeutics Committee or medical
superintendent) are followed to obtain approval to prescribe to an individual patient.
When it is accepted practice for the use of an off-label medication, the normal process of consent to treatment
is followed and it would not always be necessary for written consent to be provided, as long as the consent
discussions are appropriately documented in the patient’s clinical records. A discussion with the patient or
decision-maker would include:
• an explanation that the medicine is usually used for a different purpose
• the potential benefits of treatment with the medicine
109
Public Health Act 2005 (Qld) s112 to s115
110
Public Health Act 2005 (Qld) s116 to s 142
111
Public Health Regulation 2005 (Qld) Schedule 1
112
Public Health Act 2005 (Qld) s133
63
• possible alternative treatments (including the option of no treatment)
• potential risks, including drug interactions and side effects
• additional information about any uncertainties associated with its use
• any additional information sought by the patient or decision-maker.
However, as with other treatments where there are known significant risks, the treating health practitioner
ensures written consent is provided.
113
In the absence of high-quality evidence supporting routine off-label use of a medicine, in exceptional
circumstances, its use may still be justified in a particular patient where the potential benefits are deemed to
outweigh the potential risks. The patient or decision-maker demonstrates they clearly understand the relevant
information and provide fully informed written consent. In these circumstances, approval is obtained for
individual ‘exceptional use’ by the local research ethics or drugs and therapeutics committee.
114
4.11 What are the informed decision-making issues when using medicines via
the Special Access Scheme (SAS)
The Therapeutic Goods Administration (TGA) website (www.tga.gov.au) provides the following information:
The SAS allows an approval to be given for individual patients to access unapproved therapeutic goods (that
is, medicines that do not have marketing approval in Australia) under a range of circumstances and according
to the health status of the individual. For example, a person who is terminally ill may need access to the SAS
for reasons quite different to those whose lives are not threatened. Thus, two classifications (Category A and
Category B) are defined in the legislation and guidelines. It is the responsibility of the prescriber to classify
each patient as either Category A or Category B.
The principles of obtaining informed consent before providing the medication applies as described in Section
1.6.2: Providing sufficient information so the patient or decision-maker can make an informed decision. This
includes the potential cost to the patient.
It will always be a condition of the approval to supply an unapproved therapeutic good that the patient or the
patient's legal guardian be in a position to make an informed decision regarding treatment. Informed consent
should be in writing unless there are good reasons to the contrary, and where required under the SAS, the
appropriate consent form shall be used.
Visit: www.tga.gov.au
4.12 What are the informed decision-making issues with obtaining organs for
transplantation?
The informed decision-making processes associated with the obtaining of organs for transplantation is covered
in the Transplantation and Anatomy Act 1979 and these should be followed. The Australian Organ Donor
Register, managed by the Commonwealth Department of Health and Aging, is also interrogated on each
donation episode to identify whether a written consent or objection to donation has been prepared by the
deceased during their lifetime.
4.13 Where can I get more advice about consent in relation to a particular
patient?
Sometimes a situation surrounding the decision-making and consent for a particular patient’s health care is
difficult and complex, with no clear direction, and does not appear to fall within the guidance outlined in this
Guide. If this occurs, expert advice and assistance is available from:
• Office of the Chief First Nations Health Officer
113
Off-Label Use of Registered Medicines and Use of Medicines under the Personal Importation Scheme in NSW Public Hospitals- A Discussion Paper
Prepared by a Working Group of NSW TAG Inc September 2003 https://www.nswtag.org.au/wp-content/uploads/2017/07/off-label-use-sept-2003.pdf
114
Gazarian M, Kelly M, McPhee J et al. Off-label use of medicines: consensus recommendations for evaluating appropriateness. Medical Journal of
Australia 2006;185(10)544-8.
64
• Queensland Family and Child Commission
• Office of the Public Guardian
• Department of Child Safety, Seniors and Disability Services
• Queensland Civil and Administrative Tribunal
• Interpreter Service
• Office of the Chief Psychiatrist
Professional defence organisations/insurers might be able to give an individual health practitioner advice on
general principles or the practitioner’s own position but would be unable to become involved in the management
of a Queensland Health Services patient.
Refer to the last page of this Guide to obtain useful contact details for the advice provided above.
65
Part 5 Communication and cultural issues in informed decision-
making in clinical health care
5.1 What about patients who have additional communication needs?
When a patient has limited health literacy, low or no English proficiency, has visual or hearing impairment, or
has an intellectual or cognitive disability, health practitioners use communication methods appropriate to the
situation and the patient’s level of communication. These might include simple language, free of medical jargon,
audio, diagrams and illustrations, and video or multimedia material.
It is suggested that allocating sufficient time for discussions with the patient, and ensuring they do not have to
wait, will assist in alleviating anxiety and reducing possible agitation.
Patients with an intellectual disability who are verbal may use masking strategies to hide what they don’t
understand. For example, by saying “aha”, or by saying “yes”, when this may not be the case. Consequently,
health practitioners may overestimate how much the person understands. Psychologists, social workers, liaison
officers, speech pathologists, teachers, carers or others who know the patient well may be able to offer advice,
or support the communication process most appropriate for an individual patient.
Documents supporting the consenting process are available in several languages on the Queensland Health
Informed Consent website. Visit: www.health.qld.gov.au/consent
A careful assessment of a patient’s capacity to make informed health care decisions will need to be made (see
Section 1.7: Is this adult patient able to make a decision about health care themselves?). Where possible,
health practitioners confirm understanding by asking the patient or decision-maker to explain in their own words
what they have understood about the nature of the proposed health care and the consequences of accepting
or declining the proposed health care options. However, low English proficiency does not in itself indicate low
literacy, education or intelligence.
It is important to ensure that the patient’s limited communication abilities and the methods used to provide
information are documented in the patient’s clinical record, along with sufficient detail to provide evidence the
patient understood the information.
5.2 Use of interpreters
Health practitioners are to comply with the prevailing Queensland Health policy regarding the use of
interpreters.
115
Refer to the current Queensland Language Services Policy and Language Services Guidelines visit:
https://www.des.qld.gov.au/multicultural-affairs/policy-governance/language-services-policy in relation to the
use of interpreters.
Patients who have difficulty communicating in English are offered an accredited or recognised interpreter during
the informed consent process. The ability to converse in English does not necessarily indicate that a person
comprehends the English spoken by health care professionals or that the person understands written English.
If there is any doubt as to a person’s ability to communicate in and comprehend English, an interpreter should
be engaged.
If an on-site interpreter is not available, a video remote (video conference) or telephone interpreter should be
engaged.
The current Queensland Language Services Policy “reflects the Queensland Government’s commitment to the
development of whole-of-government communication strategies that address language barriers”. This policy,
115
Refer to the current Queensland Language Services Policy https://www.des.qld.gov.au/multicultural-affairs/policy-governance/language-services-
policy
66
as well as the Guidelines that accompany it, outline that:
Queensland Government agencies:
• will work with qualified interpreters as much as possible and develop a plan to ensure that services
can still be delivered in circumstances where a qualified interpreter is not available
• ensure that interpreters who are not qualified should not be engaged unless the situation is an
emergency and a qualified interpreter is not available
• be aware that friends and family members should not be used as interpreters, and children and young
relatives are not appropriate interpreters in any context.
116
The health practitioner may be asked to justify any decision not to use an accredited interpreter in the specific
circumstances, and the circumstances including the reasons for using a non-accredited interpreter should be
clearly documented in the patient’s clinical records.
It is not acceptable to simply provide booklets and pamphlets for the patient and/or interpreter to read alone.
The interpreter should be asked to sight translate the content of the consent form and additional information,
for example, medications or post-operative care, to the patient. The information required to be sight translated
must be of a suitable length (approximately 200 to 300 words). Both the interpreter and health
practitioner/delegate are to be present at the time the information is translated and provided to the patient, so
that the health practitioner/delegate can clarify questions that may arise and valid informed consent is obtained
while the interpreter is present.
It is the responsibility of the health practitioner/delegate to ascertain that the patient has understood the content
of the consent form and other information, not the interpreter.
When the consent form has been signed by the patient, the interpreter usually countersigns the ‘interpreter’s
statement’ section of the consent form to indicate:
• they have given a ‘sight translation’ of the consent form and any verbal and written information given
by the health practitioner in the language that the patient understands and
• the language translated.
In the event that a video remote or telephone interpreter service is used, the interpreter's name and contact
details are documented on the consent form by the treating health practitioner/delegate in the ‘Interpreter's
statement’ section.
Where a patient declines to give consent, this is documented appropriately in the patient’s clinical record and
the interpreter asked to countersign the entry, or the interpreter’s name and contact details documented if a
remote interpreter service has been used.
If the patient declines use of the interpreter services, this is documented in the patient’s notes, including the
reasons as far as these are known.
Refer to useful contact details for ways to contact the Queensland Health Interpreter Service (QHIS) or for
multicultural resources not available on the Queensland Health Informed Consent website
(www.health.qld.gov.au/consent)
5.3 What about patients who have cultural and religious needs?
Norms around informed decision-making differ across cultures and some religions. For example, Queensland
norms are based around an individual’s right to make autonomous decisions. However, this may not always
be the case in other cultures. For example, a collective decision may be made (prioritising group needs over
individual ones) or the decision may be taken or influenced by a third party.
From a legal aspect, the principles and requirement for informed consent to health care are essentially the
same for all Queensland Health patients, regardless of their background, and individuals give their own consent
116
https://www.des.qld.gov.au/multicultural-affairs/policy-governance/language-services-policy
67
to health care where they have capacity to do so.
Stereotyping patients is to be avoided as there will always be variations between individuals from the same
background. However, health practitioners are expected to be aware that where patients are from a Culturally
and Linguistically Diverse (CALD) background and patients who identify as coming from an Aboriginal and
Torres Strait Islander background might affect the treating relationship and communication around health care
decisions to accommodate patients’ varied needs. This may mean patients require assistance, or more time
for appropriate family members, or other advisers including religious or cultural liaison officers, or workers to
assist them.
Health practitioners:
• require understanding of these cultural and religious variances
• require understanding of how cultural backgrounds (their own and the patient’s) might affect the
treating relationship, and take that into account in the informed decision-making process
• have capability to manage and respond to different cultural and religious norms as they play out in
relation to informed decision-making
• clarify the needs and expectations of each patient and provide them with the explanations they need
about the consenting requirements in Queensland
• are expected to negotiate with patients to accommodate patient’s cultural and religious needs where
possible
• are skilled at empowering patients from CALD backgrounds by providing information that enables
these patients to self-advocate or access advocacy support available in the community.
It is beyond the scope of this Guide to address all issues related to communicating with patients from a CALD
background. Further essential resources can be found in the information for health workers section of the
Queensland Health Multicultural Health website.
Visit: www.health.qld.gov.au/multicultural/health_workers/for_hlth_workers.asp
5.3.1 How much information does a patient want to receive?
Patients may not want to receive information about their condition or may prefer a third party to be informed on
their behalf. Health practitioners must clarify the needs, expectations and preferred modes of disclosure and
delivery of information with their patients. For example, before ordering an investigation, the practitioner should
check with patients how much detail they wish to be told about the result.
Where a patient requests a third party be given the information, the health practitioner obtains the patient’s
verbal consent before disclosing information to that third party. The patient’s consent and other relevant
information should be documented in the patient’s clinical records.
Where a health practitioner considers a patient’s wish not to receive information might impact on the validity
of their decision, it is recommended they seek advice from a senior health practitioner and/or obtain legal
advice.
5.3.2 Who will make the decision about health care?
For cultural or other reasons, patients may wish to consult or defer to a third party. As long as they have the
capacity to make such a choice, patients have the right to ask another person to advise them before making a
decision.
Health practitioners should be prepared to:
• accommodate wishes and make this process possible by collaborating with family and extended
community members in the clinical decision-making setting
• allow more time for patients to reflect and consult with family and community members, including,
community elders and/or religious leaders, before coming to an informed decision.
68
In situations where the patient indicates they want a third party to make a consenting decision, the health
practitioner would ensure:
• the patient understands they have the right to information and to make the decision themselves
• the patient’s decision is informed, and not made simply because the information provided has not been
understood or provided in a manner that is not appropriate to that patient’s needs
• the patient is free to consult and take advice, but they do need to give their own consent (even if this is
to follow the advice of the chosen advisor) and are required to sign any consent form themselves
• the patient understands they are not bound by the advice of that person and can change their mind at
any time
• the person advising the patient receives sufficient information to assist the patient in making a decision,
after the health practitioner has obtained permission from the patient to disclose their medical
information to third parties
• the patient’s decision to seek and follow any advice is made voluntarily and free from any pressure
• the discussions with the patient are meticulously documented on the consent form and in the patient’s
clinical record.
5.3.3 Imbalance of power
Health practitioners are in positions of power within any health care relationship. In many cultures, a health
practitioner is highly-trusted and esteemed, and the concept of ‘doctor knows best’ may act as an impediment
to patients making informed decisions.
Patients may smile or nod out of politeness or courtesy, to indicate they are listening or a desire to be a ‘good’
patient out of respect for a health practitioner’s authority and position. They may be reluctant to openly disagree
with someone in authority, or ask even basic questions, such as side effects, for fear of giving insult. Some
patients from CALD backgrounds may also feel ashamed or embarrassed that they do not understand which
may prevent them from communicating that they do not understand. This can also apply to Aboriginal and
Torres Strait Islander patients (refer to Section 5.4: Consent considerations for patients who are Aboriginal
and/ or Torres Strait Islander for further information).
Where a health practitioner has doubts about the validity of a health care decision, they would firstly go over
things with the patient again and, if this does not allay their concerns, then escalate their concerns and seek
advice from the senior health practitioner (in most cases this will be the treating medical practitioner). They
might then consider obtaining legal advice.
5.3.4 Refugees and other vulnerable patients
Individuals who have experienced traumatic human rights abuse (for example, those from a refugee
background) may be resistant and mistrustful of mainstream services, authority figures, and hospitals. This
may be expressed by them declining consent to health care or demonstrating a reluctance to sign a consent
form due to a lack of trust or understanding about how it will be used.
On the other hand, people of refugee background may have very different expectations of services, basing it
on their experiences of standards of health services in their country of origin or because they have unrealistic
expectations of what the health system in Queensland can deliver.
Health practitioners should:
• be open and transparent when communicating with these patients
• familiarise themselves with the broader context of patients from CALD backgrounds to identify potential
trust issues and barriers to help-seeking behaviours
• explain to patients their rights and obligations within Queensland Health, including their right to ask
questions of the health practitioner and the prescribed course of treatment
• identify patient expectations of services and encourage participation in clinical decisions and health
care
• carefully apply the principles expressed in Section 1.6: What process of informed decision-making
69
needs to be followed?
5.3.5 Culturally-based health beliefs
Patients vary in their acceptance of death, and some will have beliefs which result in a fatalistic attitude towards
health care. The objective is for the patient to make a valid, informed decision that is right for them, even though
this may not give the best clinical outcome.
Some patients may wish to consult with spiritual leaders or alternative cultural health providers, healers, and
belief systems before, or in addition to, embarking on a Western course of health care.
It is recommended health practitioners:
• seek to elicit alternative and culturally-based explanatory models of illness and treatment (An effective
tool for this may be the use of hypothetical questions and statements that make it safe for patients to
share their beliefs on the cause and cure of the condition. For example, many of my xx patients believe
this condition is caused by xx; what do you believe caused your illness? Many of my patients treat this
condition through xxx – is this something that you practice and is it something I need to take into account
in my treatment plan?)
• adopt culturally appropriate and collaborative ways of working to empower patients from CALD
backgrounds
• adopt culturally appropriate and collaborative ways of working with Aboriginal and Torres Strait Islander
patients
• communicate openness to supplementary practices
• obtain sufficient information on the use of supplementary practices to be able to assess and inform
patients about the potential risks of proposed health care, any potential adverse effects or interactions,
whilst negotiating the health care to be provided and ensuring informed decision- making.
5.3.6 Gender considerations
There may be strongly held wishes for a patient to be treated by a particular gender of health practitioner.
These wishes are respected and accommodated where possible. However, where such a preferred health
practitioner is not available and this will impact on the patient’s health care or will have an adverse effect on
the risks or consequences for the patient, these are fully explained and suitable alternatives considered. For
example, seeking the patient’s views on whether a chaperone is sufficient to allay their concerns. These
discussions should be documented in the patient’s clinical record (see also Section 1.9: Can a patient or
decision-maker decline or withdraw consent to health care?).
5.4 Consent considerations for patients who are Aboriginal and/ or Torres Strait
Islander
The following has been drafted with the assistance of the Aboriginal and Torres Strait Islander Health Division.
Visit https://qheps.health.qld.gov.au/first-nations-health-office.
The overall process of obtaining informed decisions detailed in this Guide is the same for Aboriginal and Torres
Strait Islander patients as with others. It is important to recognise that as with any group of people, there is a
wide range of individual variation and the needs of individuals will have to be assessed on a case- by-case
basis. Indigenous Health Workers in the community or Indigenous Hospital Liaison Officers are able to assist
health practitioners in the process of obtaining informed decisions from Aboriginal and Torres Strait Islander
patients.
This section is best read alongside Section 5.1: What about patients who have additional communication
needs?
Issues that are important when obtaining consent from Aboriginal and Torres Strait Islander patients include:
• clear communication is required, in a manner that is understood by the patient or those assisting them
• patients may wish to consult with family or others close to them before making a decision.
70
5.4.1 Clear communication and understanding
Health practitioners need to be aware that for some Aboriginal and Torres Strait Islander patients, English may
be their third or fourth language. Health information will need to be provided at the appropriate literacy level. In
these situations, visual or spoken information may be more easily understood than written.
The involvement of an Indigenous Hospital Liaison Officer is to be encouraged. However, in some instances
they may not speak the patient’s first language and an additional intermediary from the patient’s language
group may be required to help with communication. An accredited interpreter may not be available and the
pitfalls of using non-accredited interpreters need to be considered.
In many instances, Indigenous Health Workers play an important role in beginning the consenting discussions
and providing information to patients while they are in the community. As informed decision- making is an
evolving process, Indigenous Health Workers should document the information and resources provided to
patients in the clinical record and ensure this information accompanies patients if they are transferred.
5.4.2 Consultation and consent
Aboriginal and Torres Strait Islander patients may consider a decision to be a shared one involving the needs
of the community, relatives and financial implications. As a result, patients may wish to consult with others
before making a decision, and may not consent to a particular form of health care until a certain person is
present or they have discussed it with them. This might mean patients need longer to come to a decision and
may give the impression that they are declining consent.
Aboriginal and Torres Strait Islander patients may sometimes appear to wish to delegate a decision to another
person for example, by saying ‘My children need to be here before I can have the treatment’, or indicating that
another person will consent for them. The chosen person may differ depending on the particular health matter
being considered. Refer also to Section 5.3.2: Who will make the decision about health care?
These discussions may have an impact on the time scale required for decision-making, particularly if there is
a need for the patient or other party to travel. Careful consideration is given to the selection of any escort or
relative that accompanies a patient. Patients are encouraged to identify the most appropriate person for the
particular health matter they are receiving health care for (for example, gender identity), especially where
transport is to be arranged.
Even when the patient is accompanied by a relative or escort, the attendance of a third party in a consultation
is not necessarily an indication of consent to divulge confidential information to that person. When any patient
sees a health practitioner with a third party present, there is an obligation to identify what information the patient
wishes given to that third party.
Many patients have difficulty understanding risk. Some Aboriginal and Torres Strait Islander patients may
understand risk better by comparison to people they are familiar with. Health practitioners are required to
respect a third party’s confidentiality and may need permission to disclose relevant information.
In situations where the patient lacks capacity to make a decision, the guidelines in Section 2.1: When consent
isn’t required for an adult who has impaired capacity to consent, and Section 3: Informed decision- making and
consent for children and young persons, of this Guide are followed.
5.4.3 Declining consent/discharge against medical advice
Where an Aboriginal and Torres Strait Islander patient declines to consent to a specific form of health care, or
leaves the health facility, the general principles in Section 1.9: Can a patient or decision-maker decline or
withdraw consent to health care? apply.
The reasons for the patient’s decision are checked carefully, because:
• it might be influenced by knowledge of a family member who died in the hospital
71
• they may be doing so simply in order to work through the process of coming to a decision. For example,
consulting those important to them
• they may be willing to consent to health care but unwilling to sign the consent form because they are
fearful of how it might be used and who might see it (health practitioners should explain clearly the
purpose of the form and how it will be disclosed and retained).
72
Glossary
Term
Definition
Source
See also
Adult
A person who is 18 years of age or older.
Advance
Health
Directive
A document written by an individual over
the age of 18 years, who has capacity,
and which formalises their wishes about
future health matters.
It may also nominate one or more persons
as a health attorney to make decisions on
their behalf should the individual become
unable to do so.
It is only effective when the individual
lacks capacity.
A valid Advance Health Directive has the
same effect as if the patient gave the
directions when they had capacity.
Powers of Attorney Act
1998 (Qld) s35.
Guardianship and
Administration Act 2000
(Qld) definition of advance
health directive in
Schedule 4.
Capacity
Capacity is specific to a particular decision
and means the health practitioner has
assessed the person to have capacity to
consent, where the person has the ability
to:
a) understanding the nature and
effect of decisions about the
matter; and
b) freely and voluntarily making
decisions about the matter; and
c) communicating the decisions in
some way.’
It also includes the health practitioner’s
assessment of the patient’s ability to retain
the information and process it to reach a
decision.
Powers of Attorney Act
1998 (Qld) definition of
capacity in Schedule 3.
Guardianship and
Administration Act 2000
(Qld) definition of capacity
in Schedule 4.
Mental Health Act 2016
(Qld) the definition of
capacity in Schedule 3.
Gillick
competence
Child
A child is an individual under the age of 18
years.
A child may or may not have sufficient
maturity and understanding to have
capacity to make important decisions
about health care.
Child Protection Act 1999
(Qld) who is a child, s8.
Capacity
Gillick
competence
Young person
73
Term
Definition
Source
See also
Clinical
incident
Any event or circumstance which has
actually, or could potentially, lead to
unintended and/or unnecessary mental or
physical harm to a patient.
Clinical incidents include adverse events
(harm caused) and near hits/misses (no
harm caused).
Best Practice Guide to
Clinical Incident
Management (2023)
https://qheps.health.qld.go
v.au/__data/assets/pdf_file
/0038/637679/guide.pdf
Clinical
Incident
Management
System –
RiskMan
The Queensland Health electronic clinical
incident management information system
that records any event or circumstance
which has actually, or could potentially,
lead to unintended and/or unnecessary
mental or physical harm to a patient of a
Queensland Health service.
Clinician
A health practitioner, trained as a health
professional, providing direct clinical care.
Clinicians include registered and non-
registered practitioners, or a team of
health professionals.
National Safety and
Quality Health Service
Standards, May 2021
Competence
In publications about patient consent, the
terms ‘competence’ and ‘capacity’ are
often used interchangeably. However,
the following difference applies:
• A patient’s ‘competence’ to make
decisions is determined by a court.
• A patient’s ‘capacity’ to make
decisions is determined by a health
practitioner after a clinical
assessment (see capacity above).
Consumer
Refer to patient
Decision-
maker
The patient or other person with the
authority to make a decision whether to
consent to or decline health care.
For adults, substitute decision-makers are
defined in the Guardianship and
Administration Act 2000 (Qld).
For children and young people under 18
years who do not have capacity to
consent (not Gillick competent), the
decision-maker for most health care will
be a parent or guardian as defined in the
Family Law Act 1975 (Cth) or an individual
appointed under the Child Protection Act
1999 (Qld). Section 3.4 When is consent
from a parent, guardian or child/young
person not enough? outlines health care
that requires court authorisation.
Guardianship and
Administration Act 2000
(Qld), the appointment of a
guardian for a personal
matter at s12.
Family Law Act 1975
(Cth), the definition of
parent and guardian at s4.
Child Protection Act 1999
(Qld) types of child
protection orders at s61.
Substitute
decision-
maker in the
Guardianship
and
Administration
Act 2000 (Qld)
See also s9 for
the range of
substitute
decision-
makers.
74
Term
Definition
Source
See also
Delegate
Refer to health practitioner delegate.
Treating health
practitioner
Health
practitioner
delegate
Dental
practitioner
Dental practitioners include dentists,
dental specialists, dental therapists, oral
health therapists, dental hygienists and
dental prosthetists.
Dental
treatment
Refer to health care.
Health care
Doctor
Refer to medical practitioner.
Medical
practitioner
Enduring
Power of
Attorney
A document through which an adult patient
with capacity may authorise one or more
persons to make decisions on their behalf
at times when they do not have capacity to
do so for themselves in the future.
Powers of Attorney Act
1998 (Qld), the definition
of enduring power of
attorney at s32.
Examination
Refer to health care.
Health care
Gillick
competence
A child or young person under the age of
18 years who has been assessed to have
capacity to consent to the proposed
health care.
Although this term is taken from a court
case decision about ‘competence’, this
assessment is made by the clinician.
To be “Gillick competent” the child or
young person must have sufficient
understanding, intelligence and maturity
to appreciate the nature of the health
care, the benefits, consequences and
risks of the health care that is proposed
and the alternatives, including the
consequences of not receiving the health
care. This will vary according to the
significance of the decision, including the
seriousness of the risks and
consequences and other factors, such as
the maturity and understanding of the
child or young person.
Gillick v West Norfolk
and Wisbech Area
Health
Authority [1986] 1 AC
112 (HL).
Child
Capacity
Health
literacy
Degree to which individuals have the
capacity to obtain, process, and
understand basic health information and
services needed to make appropriate
health decisions.
75
Term
Definition
Source
See also
Health care
The term health care is care or treatment
of, or a service or a procedure for, the
adult to diagnose, maintain or treat the
adult’s physical or mental health
condition and carried out by, or under
the direction or supervision of, a health
provider. For example,
• administration of a drug or other like
substance including chemotherapy
• any physical examination of a patient
• dental or oral health examinations
and treatment
• psychological assessment
• interventions such as blood
transfusions
• invasive procedures as defined
below, including surgical operations;
oral health interventions
• pathological and radiological
investigations or procedures, for
example, taking a blood sample or
biopsy for analysis or radiotherapy
• screening undertaken for pathological
conditions, for example, breast or
bowel cancer
• services provided by the allied health
disciplines; community and primary
health services, such as assessment
and screening programs
• clinical trials or medical research.
Health care, of an adult, includes
withholding or withdrawal of a life-
sustaining measure for the adult, if the
commencement or continuation of the
measure for the adult would be
inconsistent with good medical practice.
Guardianship and
Administration Act 2000,
Schedule 2, s5(2).
Dental
treatment
Medical
treatment
Invasive
procedure
76
Term
Definition
Source
See also
Health
practitioner
All health professionals who have the
appropriate registration, accreditation,
authority and expertise to assist patients in
the process of informed decision-making.
Examples include but aren’t limited to
persons registered as medical
practitioners, dental practitioners,
paramedics, pharmacists, midwives,
midwife practitioners, nurses, nurse
practitioners, allied health professionals
such as physiotherapists and
radiotherapists, and dental or oral health
therapists. Currently, not all allied health
professionals are registered, for example,
social workers and dieticians. These types
of health professionals work in
relationship with and/or under the
supervision and direction of health
practitioners, but are required to adhere to
the policy within their own defined scope
of practice.
Some other health care professionals who
are unregistered and have authority and
expertise include Aboriginal and Torres
Strait Islander health workers and
linguistic interpreters.
Depending on the circumstances, the
health practitioner might be the treating
health practitioner with overall
responsibility for the care of a patient, but
on other occasions may be acting as the
health practitioner delegate.
Treating health
practitioner
Health
practitioner
delegate
Medical
practitioner
Australian
Health
Practitioner
Regulation
Agency
(www.ahpra.go
v.au)
Office of Health
Practitioner
Registration
Boards
(OHPRB)
http://www.arc
hivessearch.ql
d.gov.au/Searc
h/AgencyDetail
s.aspx?Agenc
yId=10447
Health
practitioner
delegate
Refers to the delegate of the treating
health practitioner, whom the treating
health practitioner has deemed capable of
assisting patients in the process of
informed decision-making on their behalf.
On a specific occasion, this might include
a junior medical practitioner, radiographer,
sonographer, physiotherapist, registered
nurse, nurse practitioner, oral health or
dental therapist.
Delegate
Impairment
Means a cognitive, intellectual,
neurological or psychiatric impairment.
Impaired
capacity
Means the person does not have capacity
for the matter.
Powers of Attorney Act
1998 (Qld), Schedule 3.
Guardianship and
Administration Act 2000
(Qld), Schedule 4.
Capacity
77
Term
Definition
Source
See also
Informed
consent
For consent to be informed, the patient or
decision-maker needs to be fully aware
and have an understanding of the
condition, the nature and purpose of the
available and proposed health care, and
the potential consequences of each
option. Furthermore, the patient should be
aware of what is likely to occur should they
choose not to receive the health care.
This results from a process of shared
decision-making and the provision of
information in a manner appropriate to the
needs of an individual patient or decision-
maker.
Capacity
Competence
Invasive
procedure
A procedure involving the insertion of an
instrument, appliance or other object into
human tissue, organs, body cavities or
body orifices. Some examples include
subcutaneous and intramuscular
injections, blood collections, dentistry,
suturing of superficial wounds and
examinations of the mouth.
It also includes investigations such as
endoscopy and transrectal or transvaginal
ultrasound.
Public Health Act 2005
(Qld), s147
Health care
Investigation
Refer to health care above.
Health care
Legal
guardian
A person appointed under the Family Law
Act 1975 (Cth) or appointed under the
Child Protection Act 1999 (Qld) who has
the legal authority to consent on behalf of
a child or young person.
Family Law Act 1975 (Cth)
Child Protection Act 1999
(Qld) s61
Child
Material
risk
Within this suite of documents, ‘material
risk’ refers to the information about the
risks of health care that:
• a reasonable person in the patient’s
position would, in the circumstances,
require to enable the person to make
a reasonably informed decision
about whether to receive the health
care or follow the advice; and
• the health practitioner knows or
ought reasonably to know the patient
wants to be given before making the
decision about whether to receive
the health care.
Adapted from the
following:
Rogers v Whittaker (1992)
175 CLR 479 (High Court
of Australia)
Civil Liability Act 2003
(Qld) s21
NB: the Act and the case
impose duties on doctors.
Maternity
care
Antenatal, intrapartum and postnatal
care for pregnant women and babies up
to six weeks after birth.
97
Partnering with the
woman who declines
recommended maternity
care.
97
78
Term
Definition
Source
See also
Medical
officer
Refer to medical practitioner
immediately below.
Medical
practitioner
A person registered as a medical
practitioner by the Medical Board of
Australia, and, within this Guide includes
other descriptions such as ‘doctor’ and
‘medical officer’.
Health
practitioner
See Section
1.12.
Medical
treatment
Refer to health care above.
Health care
Midwife
A person registered and licensed as a
midwife by the Nursing and Midwifery
Board of Australia.
See Section
1.12.
Health
practitioner
Nurse
Practitioner
A person registered and licensed as a
registered nurse and holding an additional
endorsement as a nurse practitioner from
the Nursing and Midwifery Board of
Australia.
See Section
1.12.
Health
practitioner
Nurse
A person registered and licensed as a
registered or enrolled nurse by the Nursing
and Midwifery Board of Australia.
Health
practitioner
Open access
The open access system allows a health
practitioner to directly schedule elective
procedures for patients without them
having first been examined by a specialist
proceduralist. Examples might include
endoscopy, colonoscopy and radiological
procedures.
Parent
Means a person with parental
responsibility for a child or young person,
such as a natural parent, adoptive parent,
guardian, or someone who is the subject
of a parenting order for the child under the
Family Law Act 1975 (Cth).
More than one person may have parental
responsibility.
With respect to Aboriginal and Torres
Strait Islander peoples who are in the
traditional role of a parent: refer to section
61F of the Family Law Act 1975 which
provides guidance on the meaning of
parent for both Aboriginal and Torres Strait
Islander peoples.
Family Law Act 1975 (Cth)
s4
Hospital and Health
Boards Act 2011 (Qld)
s140
Parent
79
Term
Definition
Source
See also
Patient
A person receiving health care or
treatment, including health care provides
as part of a clinical trial or medical
research.
Synonyms for ‘patient’ include client or
customer.
Decision-
maker
Patient-
centred
care
The delivery of health care that is
responsive to the needs and
preferences of patients. Patient-centred
care is a dimension of safety and
quality.
The dimensions of patient-centred care
are respect, information and
communication, education, emotional
support, physical comfort, continuity and
transition, care co-ordination,
involvement of family and carers, and
access to care.
National Safety and
Quality Health
Service Standards,
June 2011
Health
care
Procedure
A component of health care.
Health care
Restrictive
Practices
Restrictive practices in health care are
practices or interventions that have the
effect of restricting the rights or freedom
of movement of a person and are
primarily used for the intent of protecting
that person or others from harm.
Note, this excludes the application of
restraints or other uses of force by
Queensland Police Service and/ or
Queensland Corrective Services under
their legislative frameworks.
Minimising restrictive
practices, Department of
Health Policy
(awaiting publication)
Section 2.2.6 Use of
restrictive practices when
providing health care to
adult patients who lack or
have impaired capacity
and cannot provide
consent
Sight
translation
Rendering a verbal interpretation of a
written message (reading in one
language, relaying messages orally in
another language).
80
Term
Definition
Source
See also
Social
coercive
influences
In the context of a patient giving consent
for a trainee/student health practitioner to
provide health care to a patient under
appropriate supervision: it must be clear
that the consent given is voluntary and
free from influence. For example if the
patient is asked to consent in the
presence of a trainee/student, and
chooses to decline their involvement, the
patient must be reassured that the
decision to decline will not detrimentally
affect their health care.
There is no dictionary
definition per se
Special
Access
Scheme
(SAS)
This scheme allows medical practitioners
to prescribe medications which are not
approved for use in Australia on a case-
by-case, individual patient basis, where
certain conditions have been met.
Therapeutic Goods
Administration
www.tga.gov.au
Special
health care
matter
Health care of the following type:
• removal of tissue from a patient
while alive for donation to someone
else
• sterilisation
• termination of a pregnancy
• participation in special medical
research or experimental health
care
• electroconvulsive therapy
or a non-ablative
neurosurgical procedure
• care prescribed under the
Guardianship and Administration Act
2000 (Qld).
Guardianship and
Administration Act 2000
(Qld) Schedule 2, s7.
81
Term
Definition
Source
See also
Statutory
Health
Attorney
The first person from the following list (in
descending order or priority) who is
readily available and culturally
appropriate to make a decision on the
current matter:
• a spouse of the adult patient if the
relationship is close and
continuing
• a person who is 18 years or over
and who has the care of the adult
patient (but is not a paid carer for the
adult). This includes someone who
provides or arranges domestic
services and support to the adult.
Where a patient resides in an
institution the patient remains in the
care of the person in whose care
they were immediately before
residing in the institution
• a person who is 18 years or over
and who is a close friend or relation
of the adult patient and is not a paid
carer for the adult; or
• if no other substitute decision-maker
is readily available and culturally
appropriate to exercise power for a
matter, the public guardian.
Powers of Attorney Act
1998 (Qld) s62 to s63.
Substitute-
decision-
maker
Student
health
practitioner
Someone enrolled in an approved
program of study.
Trainee health
practitioner
See also
Social coercive
influences
Substitute
decision-
maker
The person who is legally entitled to give
consent to health care on behalf of a
patient who lacks capacity. This may be
a guardian, or attorney under an
Advance Health Directive or Enduring
Power of Attorney or Statutory Health
Attorney.
Decision-
maker
Termination
of a
pregnancy
‘Termination’ of a pregnancy is defined
under the Termination of Pregnancy Act
2018 (Qld) to mean the ‘intentional
ending of a pregnancy in any way,
including by administering a drug, or
using an instrument or other thing’.
Termination of
Pregnancy Act 2018
(Qld)
Trainee
health
practitioner
Someone enrolled in an approved
program of study.
Student health
practitioner
See also social
coercive
influences
82
Term
Definition
Source
See also
Treating
health
practitioner
The health practitioner with overall
responsibility for the care of a patient. In
many instances this will be the treating
medical practitioner but may be another
health practitioner with responsibility for
the patient, for example, a midwife working
within the Queensland midwifery models
of care.
Treating
medical
practitioner
See Section
1.12.
Treating
medical
practitioner
Refers to the specialist/consultant under
whose care the patient is admitted or the
specialist/consultant to whom the patient is
referred for health care.
Treating health
practitioner
See Section
1.12.
Treatment
A form of health care.
Health care
Young person
An individual under the age of 18 years
who may or may not have sufficient
maturity and understanding to have
capacity to make important decisions
about health care.
Child
Interpretation
The following rules apply in interpreting this Guide, unless the context otherwise requires:
(i) ‘such as’,
(ii) ‘including’
(iii) ‘for example’
are used in this Guide to illustrate a sample scenario and are not intended to be a full and exhaustive list of
possibilities.
83
Table 1 Version history
Version
Date
Changes
Version 2.4
30 August
2024
• Update Section 1.2
o add section on Human Rights Act 2019 (Qld)
• Update Section 2.2.6 Restrictive practices- Aged Care
o Add reference to guideline
• Update Section 4.4 Maternity care
o information on provided care when the recommended
maternity care is declined, as per Partnering with the woman
who declines recommended maternity care, 2020
• Update Section 4.4.1 Termination of pregnancy
o to align with legislative amendments in the Health and Other
Legislation Amendment Act 2024, effective from 1 September
2024.
• Update Section 5.4 heading to ‘Consent considerations for patients
who are Aboriginal and/ or Torres Strait Islander’
• Glossary: add definition for ‘termination of pregnancy’; remove
definition of, and references to a ‘minor’; add several cross references
in ‘see also’ column.
Version 2.3
29 April 2024
• Update Section 4.4.1 to align legislative changes with the introduction
of the Termination of Pregnancy Act 2018 (Qld), effective from 3
December 2018.
• Update Part 4 to include a new section on the Voluntary Assisted
Dying Act 2021, Section 4.5 Voluntary Assisted Dying (VAD);
subsequent sections in Part 4 have been renumbered accordingly.
Version 2.2
18 December
2023
• Update Sections 1.6.3 and 1.6.7 to include the recommendations from
a recent Coronial Inquest findings, specifically:
• Section 1.6.3 update paragraph:
For a patient, consumer or a resident who has a substitute
decision maker, an enduring Power of Attorney or a Statutory
Health Attorney, the decision maker is to be given the same
information as would be expected to be given to the person if
they were providing consent for themselves. Details of the
consenting individual and any legal instruments should be
documented in the appropriate section of the consent form.
• Section 1.6.7 update bullet points:
o substitute decision maker/s present
o the material risks and benefits of the proposed health care and/
or withheld treatment discussed for that individual patient
o date and time of discussion/s, any concerns raised, and
decisions for/against
o date and time when the consent was recorded, noting
substitute decision-maker/s when applicable
o documentation of consent to treatment/withholding of treatment
by relevant decision-makers
84
Version 2.1
interim
update
5 December
2023
• Update sections to align with the Mental Health Act (MHA) 2016 (Qld)
• Update Section 2.2.6 to align with the MHA 2016 and to include sub-
sections other key legislation: Disability Services Act 2006 (Qld),
Guardianship and Administration Act 2000, Aged Care Act 1997 (Cth)
and Quality of Care Principles 2014; National Disability Insurance
Scheme (NDIS) Act 2013 (Cth) and NDIS (Restrictive Practices and
Behaviour Support) Rules 2018 (Cth)
• Sections 1.6.4, 1.7, 2.1, 4.2 to include
o person’s Nominated Support Person’; MHA definition and
assessment of ‘capacity’ differs to other Queensland statutory
definitions; ‘non-ablative neurosurgical procedure’
• Section 2.2.5
o Update title to ‘Advance Health Directives and the Mental
Health Act 2016’
• Section 2.2.6 (previously 2.3.2)
o Update title to ‘Can the use of force and restrictive practices
(including physical restraint and sedation) be justified when
providing health care to adult patients who lack capacity to
make a decision’
o Previous title ‘Use of restrictive practices when providing health
care to adult patients who lack capacity to consent’
o Include ‘restrictive practices’ and remove reference to
‘chemical restraint’
• Section 2.2.7
o Update title to ‘ ‘Special health care’ that requires the consent
of a Tribunal or Court for adult patients who lack capacity’
• Sections 2.2.5, 2.2.6, 2.2.7, 4.2
o Update to reflect use of ‘less restrictive way’ to gain consent,
other than treatment provided without consent under the MHA
• Sections 2.2.7, 4.2
o Update content on electroconvulsive therapy (ECT) and a non-
ablative neurosurgical procedure as ‘regulated treatments’
under the MHA
• Section 4.12- update titles of Department of Child Safety, Seniors and
Disability Services, Office of the Chief First Nations Health Officer and
the Office of the Chief Psychiatrist
• Glossary- update MHA reference in ‘capacity’; add ‘restrictive
practices’
• Appendix 1- update contact details for Child Safety, QCAT, Mental
Health Act Liaison Service, Office of the Chief Psychiatrist
85
Appendix 1
Useful contact details
Aboriginal and Torres Strait Islander Health Division
Email: mailto:fnho_strategy@health.qld.gov.au
Department of Child Safety, Seniors and Disability Services (Child Safety)
Postal address: GPO Box 806
Brisbane QLD 4000
Free call: 1800 811 810 (Queensland only)
Phone: +61 7 3224 8045
Website: www.childsafety.qld.gov.au/
Email: info@childsafety.qld.gov.au
Queensland Civil and Administrative Tribunal (QCAT)
Postal address: GPO Box 1639
Brisbane 4001
Phone: 1300 753 228
+61 7 3328 4046
Website: www.qcat.qld.gov.au
Email: [email protected]v.au
Interpreter Service
The Queensland Health website has contacts for District Interpreter Coordinators and Area Health Service
Interpreter Quality Officers
Website: www.health.qld.gov.au/multicultural
Email: multicultural@health.qld.gov.au
Mental Health Act Liaison Service
Office of the Chief Psychiatrist
Department of Health
Business hours: Monday to Friday 8:30am – 4:30pm
Free call: 1800 989 451
Phone: +61 7 3328 9899
Website: www.health.qld.gov.au/mental-health-act
Email: MHA2016@health.qld.gov.au
Multicultural Health
Multicultural Affairs Queensland (MAQ),
Department of Environment and Science
Phone: +61 7 3097 7712
Email: Secretariat.MAQ@des.qld.gov.au
Website: https://www.des.qld.gov.au/multicultural-affairs
Office of the Public Guardian
Postal address: Department of Justice and Attorney General
PO Box: 13554 George Street Brisbane 4003.
Phone: 1300 753 624 (Health Care Decisions)
Phone: +61 7 3239 6298
Email: adult@publicguardian.qld.gov.au or child@publicguardian.qld.gov.au
