Medical consent
Registered doctors generally can’t treat a patient without their consent.
A parent or guardian can give consent (in most cases) or a child can give their consent to medical treatment if they’re capable of understanding its significance.
Someone else may consent to medical treatment on behalf of an adult if there is:
Some decisions about special medical procedures must be made by a court or tribunal. You should get legal advice.
Consent for medical treatment
Registered doctors generally can’t treat a patient without their consent.
Adults
An adult (person over 18) can give their consent to or refuse medical treatment if they:
- understand the doctor's information about the treatment
- can make reasonable choices based on this information.
This is known as capacity. If a person lacks this capacity, someone else must make these decisions on their behalf.
Children and young people under 18
For children and young people under 18, a parent or guardian can agree to treatment on the child’s behalf (in most cases). However, there are some decisions about special medical procedures that can’t be decided by a parent or guardian and must be decided by the Federal Circuit and Family Court of Australia. You should get legal advice.
A child or young person under 18 may make decisions about their own medical treatment if they’re capable of understanding its significance.
Other people who can consent to medical treatment
Someone else may consent to medical treatment on your behalf if you have:
Enduring power of attorney
An enduring power of attorney can authorise someone to make medical decisions on you become unable (don’t have the capacity) to make a decision yourself.
Advance health directive
An advance health directive (sometimes called a ‘living will’) is a document containing instructions about your future health care. It comes into effect if you become unable (don't have capacity) to make the decisions yourself.
An advance health directive:
- outlines what type of treatment you wish to have or to not have and any specific instructions about your medical treatment
- includes information for health professionals such as health conditions, allergies, and religious, spiritual or cultural beliefs that could affect your health care
- can appoint someone else (an ‘attorney’) to make health and personal decisions for you.
The advance health directive must be prepared using the approved Advance Health Directive form.
Statutory health attorney
If you haven’t made an advance health directive or appointed someone as an enduring power of attorney and you’re unable to make your own decisions, then the law allows certain people to make decisions about your health on your behalf. They are called a statutory health attorney.
A statutory health attorney can be:
- a spouse
- your carer, but not a paid carer (although your carer may receive a carer’s pension)
- a close adult friend or relative who is not a paid carer, or
- the Public Guardian if there is no one else.
Children and young people under 18 going to the doctor
Children can make decisions about their own medical treatment if they’re capable of understanding its significance.
If you want to go to the doctor on your own you’ll need to think about how you will pay for the doctor. Some doctors bulk bill under the government health system called Medicare. This means you won’t have to pay. In other cases, you’ll have to pay, but you can get some of the money refunded from Medicare.
You’ll need to show your Medicare card or your parent’s Medicare card when you go to the doctor.
If you’re over 15, you can apply for your own Medicare card. If you’re under 15, you’ll need to use your parent’s card. If you’re 14 and older, Medicare won’t give information about your treatment to your parents, but if you use your parent’s Medicare card, they may find out that you’ve seen a doctor.
Consenting to medical treatment as a child or young person
To consent to medical treatment (have capacity) you must be capable of making your own decision on what is proposed (forming a sound and reasoned judgment), which shows you understand the nature, consequences and risks of the treatment, and it's in your best interests.
The doctor will consider:
- your maturity and intelligence
- whether you understand what the recommended medical treatment is
- why the medical treatment is needed
- what the medical treatment involves, and
- any risks related to it, such as effects on your health, potential complications and also side effects.
If you're 16 or over, it's generally assumed that you have the capacity to consent to medical treatment, but if you're under 16 years of age, you will have to prove that you have capacity to consent to the treatment.
Except for immediate, life-threatening emergencies, a doctor must get your consent for any medical treatment. Some doctors or hospitals may require your parents’ agreement if you’re under 18.
Whether you can consent to, or refuse medical treatment sometimes depends on the type of treatment you are getting.
For minor medical treatment (eg treatment for colds or acne), you have the right to agree (consent) or refuse if you’re mature enough to understand the recommended treatment, its consequences and related risks.
For more complicated medical treatments (eg contraceptives), you may still have the right to agree to (consent) ,or refuse treatment without your parents’ consent if the doctor is satisfied that you understand the treatment and its consequences and related risks . The doctor must also believe that the procedure is in your best interests.
For ‘non-therapeutic’ treatments (eg sterilisation or gender reassignment operations), you must get the permission of a court or Tribunal—even if you have your parents’ consent. These are known as special medical procedures.
In some situations, you may not have the right to refuse a treatment, even if you fully understand the treatment and its consequences (eg refusing a blood transfusion on religious grounds or refusing treatment of eating disorders).
Your parents can only agree to or refuse medical treatment on your behalf if you aren’t mature enough to make your own decisions. In this case, the decision must be made in your best interests.
If there is disagreement between you, your parents and your doctor about treatment, a court may need to decide what will happen. The court must consider what is in your best interests when making its decision.
Special health care matters for adults
There are some health decisions that a statutory health attorney can’t make. If someone doesn’t have an advanced health directive or an enduring power of attorney and is unable to make their own decisions, then the Queensland Civil and Administrative Tribunal (QCAT) must consent to the procedures.
These are known as special health care matters and include:
- donation of tissue for a transplant (permission for organ transplants can’t be given while the adult is alive)
- sterilisation (vasectomy, tubal ligation or hysterectomy)
- abortion
- special medical research or experimental health care.
You can apply to QCAT about a special health care matter on behalf of an adult if you’re an interested person. You should get legal advice.
QCAT can then decide whether you’re appropriate to be an interested person.
Special medical procedures
For children
There are some decisions about special medical procedures that can’t be decided by a parent or guardian or the child and must be decided by a court or Tribunal.
These treatments are called special medical procedures and include:
- sterilising a child who has a significant intellectual disability
- organ donation when a child is unable to give informed consent
- medical practitioners recommending life-saving treatment but parents or guardians refusing to agree to the treatment (eg parents refusing for a child to be put on life support)
- parents or guardians disagreeing about significant, recommended treatment/s
- sensitive or ethically controversial issues (eg gender decisions for a child born with both genitalia)
- Refusing treatment in a life-threatening situation (eg child suffers anorexia nervosa and refuses treatment).
You can apply to a court or Tribunal about a special medical procedure for a child if you are:
This is a complex area of law and you should get legal advice.
Do I need legal advice?
You may need legal advice if you are considering making a request to court or to QCAT for a special medical procedure court order.
How to get legal advice
We may give legal advice on matters relating to medical consent.
We can’t give advice about statutory health authorities, advance health directives or preparing powers of attorney.
If you're making a medical negligence claim, you may be eligible for help through the Civil Law Legal Aid Scheme.
The following services may be able to give legal advice.
Queensland Aged and Disability Advocacy have information and advocacy services relating to guardianship and administration matters. They can help adults with capacity issues with Queensland Civil and Administrative Tribunal (QCAT) processes, and help recipients of aged care or community care services to resolve service related matters.
LawRight Self Representation Service (QCAT) gives legal advice and help to people at the Queensland Civil and Administrative Tribunal for matters including guardianship, powers of attorney and child protection. They can also give advice about other options to resolve your dispute. They may help with drafting documents and correspondence relating to your legal matter with QCAT. They don’t provide representation.
Queensland Law Society can refer you to a specialist private lawyer for advice or representation.
Who else can help?
The following organisations may be able to help. They don’t give legal advice.
Office of the Public Guardian can make health care decisions for an adult if they’re appointed as their guardian.
Queensland Civil and Administrative Tribunal (QCAT) can appoint a guardian for adults with impaired mental capacity, and can make decisions on special health care matters beyond the powers of a guardian.
Queensland Community Support Scheme helps people aged under 65 years (and their unpaid carers) who have a moderate disability or a condition which restricts their ability to carry out activities of daily living. Help is available for community and social support as well as in the home.
Disclaimer: This content is for general purposes only and not legal advice. If you have a legal problem, please contact us or speak to a lawyer. View our full disclaimer.
Last updated 10 November 2022