Medical Law

Competency Assessment / Legal Consent

Valid legal consent requires that the patient:
1. Has the capacity to consent
2. Is adequately informed / understands – understand the nature and intended effect of
the procedure
3. Gives consent voluntarily – without fear, pressure or coercion

Situations not Requiring Legal Consent

a) Emergency situations: Assumed consent is given
b) Principle of Necessity: There must be a necessity to act when it is not practicable to
communicate with the patient, and the action must be what a reasonable patient
would undertake as it is in the best interests of the patient.

Consent with Minors

 Doctors do not require parental consent if after a Competency assessment the minor is
deemed a ‘mature minor’
 For a minor to be deemed ‘mature / competent’, they must understand the nature,
intended effect and consequences of the Rx.
 If the doctor is unsure about the competency of the minor, a second professional
opinion and / or parental consent should be obtained.
 Greater depth of understanding is required by a minor if the case is complex or
invasive (eg. OCP vs. Sex change re: Alex 2004).
 Competency assessment must be undertaken for each particular medical Rx

Intellectual Disability ± Minors

The degree of the intellectual disability is the determinant for capacity. The court
recognises that if the patient still has capacity to understand, then the pt may give valid
legal consent. This also applies if the pt is a minor.
Parents may consent on behalf of the disabled so long as it is seen to be in the pt’s best
interests (with exception to ‘Special Procedures’ outlined below).

Blood Removal & Transfusions

Parental consent is required even if the child gives consent to removal or transfusions.
However, parental or child consent will be over-ruled by the courts if the transfusion is in
the best interests of the child (ie. they will be likely to die).

Organ / Tissue Donation

It is prohibited to remove non-regenerative tissues from a minor for transplantations
purposes.
Regenerative tissue may be removed for transplantation into a parent or sibling with
parental and child consent. In the situation where the sibling would be likely to die
without the transplant, transplantation still requires the child’s consent except if they are
too young to consent.

Refusal of Rx
If a minor refuses Rx, parental consent is usually obtained. In the case where a minor’s
condition is life-threatening, Rx can be administered without consent (eg. anorexic
teenager) In a legally complex situation, a court order is applied for where the best
interests of the child, the child’s wishes, and the risk of harm are considered.
Non-essential Rx may be refused by a child if the child is competent to make a valid
decision.
Negligence
4 criteria must be proven for a doctor to be judged negligent:
1. Duty: Doctor had a duty of care to the patient
2. Breach: Doctor breached the expected duty of care
3. Cause: breach of that duty of care was itself the cause of sustained injury
4. Injury: Injury must have occurred (no injury, no action can be taken)

Duty to Disclose
Doctors must disclose any material (significant) risk to their patients about any procedure or
treatment option. What exactly needs to be disclosed is decided by courts with a 2-limb test:
1. Reasonable patient test (objective): what a reasonable patient would want to know
2. Particular patient test (subjective): any risk that this particular patient would want to
know
One exception to the Duty to Disclose is the ‘Therapeutic Privilege’ where benefits far
outweigh risks but the relevant information would cause the patient significant mental
distress. This usually only applies to the unusually nervous, volatile or disturbed.

Confidentiality
Disclosure Required By Statute:
Child Abuse Reporting
Abuse can be emotional, physical or sexual. Clinicians must notify the Department of
Human Services (DHS) or Police, and have statutory immunity even if the suspicion turns
out to be unfounded.
Child neglect may also be reported with immunity but is not mandatory.

Death Reporting
The following deaths must be reported to a coroner. Failure to do so is a statutory
offence.
1. If the doctor does not view the body
2. Cause of death cannot be determined
3. No doctor attended the deceased within 14 days before the death and the cause
cannot be determined from the immediate medical hx
4. All ‘reportable’ deaths:
 Unexpected, unnatural, violent or accidental deaths
 Resulting from an anaesthetic
 If the person was held in care immediately before death
 When identity is unknown
5. All ‘reviewable’ deaths: Where there is ≥ 2 deaths of minors of the same parents,
regardless of the circumstances of death.

Minors
Duty of confidentiality is owed to mature minors, but confidentiality must be breached if the
clinician becomes aware of:
1. Child abuse (emotional, physical or sexual)
− Sexual abuse must be reported in Victoria if minor is ≤ 16 yrs old
2. Self-harm / Suicide
3. Significant threat to others
Mental Health Legislation
Mental Illness: “…a medical condition that is characterised by a significant disturbance of
thought, perception, mood or memory.”

Informal Patients
Patients who have a mental illness and agree to medical Rx are termed ‘informal patients’.
These patients have the right to consent to or refuse medical Rx, as well as discharge
themselves from hospital.

Involuntary Treatment / Patients

Section 12 under the Victorian Mental Health Act (1986) has a provision to detain and treat
mentally ill patients under an Involuntary Treatment Order (ITO) if they pose a danger to
themselves or others. The legal effect of an ITO is deprivation of rights of freedom of
movement and choice.

Steps to detainment & involuntary treatment are:

i. Recommendation by a registered doctor
ii. An accompanying Request form by someone ≥ 18yrs old who is not the doctor
recommending the order
iii. Completion of an ITO, which may be done by the doctor recommending the order
iv. Patient review and examination by an authorised psychiatrist within 24hrs of the ITO
been made
v. Treatment Plan must be made and a copy given to the patient

i. Recommendation:
The patient is referred to a doctor (by self or others) and undergoes a medical examination.
All of the following statutory criteria for involuntary Rx must be met before a
recommendation can be made by that doctor:
1. Person appears to be mentally ill
2. Person’s mental illness requires immediate Rx and that Rx can be obtained by the
person being subject to an ITO
3. Rx of the mental illness is necessary for patient health, patient safety, or public safety
4. Person has refused or is unable to consent to the necessary Rx
5. The person cannot receive adequate Rx in a manner less restrictive of the patient’s
freedom of decision and action (ie. no alternative)

ii. Request:
The request form may be completed by any person >18yrs age but not by the same person
who made the recommendation. It authorises the person making the request or police /
ambulance to:
a) take the person to a mental health service for adm as an involuntary pt
b) arrange for a mental health practitioner to assess the person in the community

iii. Involuntary Treatment Order (ITO)

Once a Recommendation and Request form have been completed, an ITO must be made by
either:
 A registered doctor employed at an approved mental health service
 A community ‘mental health practitioner’
− Registered nurse
− Psychologist
− Social worker
− Occupational therapist
If the ITO is made in the community setting, the person concerned will be permitted to
remain in the community until examined by an authorised psychiatrist.

iv. Review & Examination

An authorised psychiatrist must examine the person within 24hrs of an ITO being made. The
psychiatrist must either confirm the ITO or discharge the person from the order. Confirmation
of an ITO requires the psychiatrist to certify that the patient either:
▪ Is unable to consent to medical Rx
▪ Has refused medical Rx
The authorised psychiatrist is then permitted to give written consent to medical Rx on the
patient’s behalf. They must notify any guardian of the patient that an ITO has been made.
An ITO can only be confirmed if the psychiatrist believes that the Rx cannot be provided
under a CTO.

Community Treatment Order (CTO)

A CTO is an order requiring a person to obtain Rx for mental illness while not detained in
an approved mental health service. A CTO is an alternative to detainment and admission of a
patient under an ITO, but requires an ITO to already be in place. CTO’s are used for patients
that “pose no significant ongoing risk to themselves or the public”.
For a CTO to be made, the person must meet all of the same statutory criteria as an
involuntary patient (above). Once an authorised psychiatrist signs a CTO, the person must be:
• Informed that the order has been made and on what grounds
• Given a copy of the order
A CTO must not exceed 12 months duration. A CTO may be revoked and the person
detained under an ITO if:
• The statutory criteria still apply but the required Rx cannot be obtained under the
CTO
• The patient has not complied with their Treatment Plan, and there is significant risk of
medical deterioration as a result

Treatment Plans
Treatment plans are a new initiative and must be made for each patient by the authorised
psychiatrist (ie. patients under both ITO’s and CTO’s). A copy must be given to each patient
and the content discussed.
For involuntary patients subject to a CTO, the treatment plan provides important information
about their obligations, as well as the proposed Rx.

Victorian Mental Health Review Board

The Board is comprised of a full-time president and 90 part-time lawyers, psychiatrists and
community members. The role of the Board is to:
1. Conducts hearings to determine whether patients should continue receiving Rx for a
mental illness as an involuntary patient (either under an ITO or CTO)
2. Review Treatment Plans
The Board determines whether involuntary status is appropriate depending on whether the
patient meets the 5 statutory criteria at the time of hearing.

All involuntary patients are entitled to:

∗ An initial review within 8 weeks of their ITO
∗ An annual review every 12 months thereafter
Involuntary patients have the right to appeal to the Board at any time throughout their
involuntary status. It also encourages patients to fully participate in hearings and be
accompanied by family or other supports. Board hearings are closed to the public.

Involuntary Patients: Consent to Psychiatric Rx

There are 2 treatments that are considered separately from conventional psychiatric Rx.
Psychosurgery
Psychosurgery cannot be undertaken without:
a) informed patient consent (ie. a surrogate cannot give consent)
b) a successful application to the Psychosurgery Review Board, who confirms that the
patient has the capacity and has given informed consent
Electroconvulsive Therapy (ECT)
Patient consent is required for ECT (whether patient is involuntary or informal). If the
patient is incapable of giving informed consent, the authorised psychiatrist may authorise
ECT if he/she is satisfied that:
− alternatives have been considered
− there is clinical merit to the Rx
− the patient is likely to deteriorate without it.
Informal patients must be fully informed about the procedure, the alternatives, and their
legal rights (ie. rights to medical & legal advice).

Involuntary Patients: Consent to Non-Psychiatric Rx

Whilst involuntary patients may lack capacity to consent to psychiatric Rx, they may still have
capacity to consent to non-psychiatric Rx. Non-psychiatric Rx is where the primary purpose of
which is not the Rx of the mental illness, but does not include a ‘special procedure’ within
the Act.

Major Non-psychiatric Rx
This includes:
• Surgery performed under general or regional block
• Any use of general or regional anaesthesia
• Chemo- and Radiotherapy
The legislation states that written consent must be given by the patient after being fully
informed & educated about the procedure.

Non-major Non-psychiatric Rx
An involuntary patient may give verbal consent after being fully informed about the
procedure.

Substitute consent may be given for both types of non-psychiatric Rx if the

involuntary patient lacks capacity to consent. There is a hierarchy of people
listed that can give consent (VCAT may be involved).

‘Special Procedures’
Guardians, parents or authorised psychiatrists cannot consent on the patient’s behalf for
‘special procedures’. Informed consent is required by a competent adult for these
procedures, as judged by a psychiatrist. If a person is incapable of giving informed consent
to a ‘special procedure’, only the Victorian Civil & Administrative Tribunal (VCAT) can
grant consent if the procedure deemed to be in the patient’s ‘best interests’.
‘Special procedures’ primarily include:
 Sterilisation
 Termination of pregnancy
  Any removal of tissues for transplantation
 Any procedure for the purposes of medical research (including psychiatric
research)

Informal Patients: Consent to Psychiatric & Non-Psychiatric Rx

Every rule applying to involuntary patients apply to informal patients regarding all types of
medical Rx (psychiatric & non-psychiatric). This includes the provisions for ‘special
procedures’.

Confidentiality / Information Disclosure

With the exception of the 2 situations below, no information can be disclosed to any person
unless otherwise instructed by the patient.
Disclosure to 3rd Parties
Disclosure to 3rd parties is acceptable so long as:
1. The information is reasonably required for the provision of ongoing care
AND
2. The person receiving the information will be involved in providing that ongoing care
Disclosure b/w Health Professionals
Legislation permits disclosure between health care providers (even if the patient does not
consent) so long as the information shared is necessary for continuing Rx of a patient’s
mental illness.