NSW healthcare law and practice management | June 2025
Obtaining informed consent is a fundamental requirement of medical and dental treatment. However, healthcare practitioners will occasionally encounter circumstances where a patient is unable to provide valid consent due to illness, injury, cognitive impairment or another condition affecting their decision-making capacity.
These situations can present significant legal and ethical challenges, particularly where treatment is necessary but the patient cannot make or communicate an informed decision.
In New South Wales, the Guardianship Act 1987 (NSW) establishes a framework for obtaining substitute consent for patients aged 16 years and over who lack the capacity to consent to their own treatment.
Understanding these requirements is essential for medical practitioners, practice managers and administrative staff to ensure treatment is provided lawfully while protecting patients’ rights and wellbeing.
The following frequently asked questions outline the key considerations for healthcare practices.
1. How is a patient’s capacity to consent determined?
Before seeking consent from another person, the treating practitioner must determine whether the patient has the capacity to make the particular treatment decision.
A patient should generally be able to understand the nature and purpose of the proposed treatment, appreciate its likely consequences and communicate a decision.
Importantly, capacity is decision-specific and may fluctuate. A patient who cannot consent to a complex surgical procedure may still be capable of consenting to a simpler treatment.
Practitioners should also consider whether communication assistance, an interpreter or other appropriate support would enable the patient to make their own decision.
A diagnosis of dementia, intellectual disability or mental illness does not, by itself, establish that a patient lacks capacity.
2. Who can consent when a patient lacks capacity?
Where a patient aged 16 years or over cannot provide valid consent, the practitioner will generally need to obtain consent from the patient’s legally recognised person responsible.
Under NSW legislation, the following hierarchy applies, in order of priority:
- Appointed guardian or enduring guardian: A guardian who has the legal authority to make medical or dental treatment decisions.
- Spouse or partner: A spouse, de facto partner or other qualifying partner who has a close and continuing relationship with the patient.
- Unpaid carer: A person who regularly provides or arranges care and support for the patient, including a qualifying carer before the patient entered residential care.
- Close relative or friend: A relative or friend who maintains a close personal relationship with the patient and has a genuine interest in their welfare.
The person responsible is determined according to the statutory hierarchy and is not necessarily the patient’s nominated emergency contact or next of kin.
A person holding an enduring power of attorney does not automatically have authority to consent to medical treatment. Financial decision-making powers are distinct from medical treatment decision-making powers.
3. What are the responsibilities of a person responsible?
A person responsible must be provided with sufficient information to make an informed decision about the proposed treatment.
This includes an explanation of the patient’s condition, the recommended treatment, material risks, expected benefits and reasonable alternatives, including the consequences of declining treatment.
The person responsible may consent to or refuse treatment within the scope of their authority and may seek a second medical opinion.
A person responsible may also decline to undertake the role in writing. Where the person is unable to act, appropriate written certification may permit the practitioner to approach the next eligible person in the hierarchy.
Healthcare practices should document how the person responsible was identified, the information provided and the consent decision.
4. What happens if no person responsible can be located?
The appropriate course of action depends on the type and urgency of treatment required.
For major medical or dental treatment, where no person responsible exists or the person cannot be located or is unable or unwilling to provide consent, an application will generally need to be made to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT).
NCAT can consider an application for consent to the proposed treatment. Depending on the circumstances, an application for appointment of a guardian may also be appropriate.
However, an important distinction applies to minor treatment. Where the patient does not object, consent from a person responsible cannot be obtained and the treatment is necessary to promote the patient’s health and wellbeing, the practitioner may be permitted to proceed without substitute consent, provided the statutory requirements are satisfied and the reasons are recorded.
Practices should therefore avoid assuming that every situation involving an unavailable person responsible requires an NCAT application.
5. What if the patient objects to treatment?
A patient’s objection must not be disregarded simply because the patient has been assessed as lacking decision-making capacity.
Under the NSW framework, a person responsible generally cannot authorise treatment to which the patient objects.
Where treatment is proposed despite an objection, NCAT consent may be required unless an applicable statutory exception or an appropriately authorised guardian’s power permits the treatment.
Practitioners should carefully assess the nature of the objection, the patient’s understanding, the likely distress associated with treatment and any applicable legal authority before proceeding.
Where there is uncertainty, legal advice or guidance from NCAT should be sought before undertaking non-emergency treatment.
6. Does the type of treatment affect who can consent?
Yes. NSW legislation distinguishes between urgent, minor, major and special medical or dental treatment.
| Treatment category | Consent requirements |
| Minor treatment | The person responsible may consent. Limited exceptions permit treatment without consent where statutory conditions are met. |
| Major treatment | The person responsible may consent, generally in writing. NCAT consent is required where an appropriate substitute decision-maker is unavailable. |
| Special treatment | NCAT consent is required under the applicable statutory framework. |
| Urgent treatment | Treatment may proceed without consent where the statutory emergency criteria are satisfied. |
Major treatment may include procedures involving general anaesthesia or sedation, certain medications, HIV testing and treatment presenting substantial risks.
Special treatment includes particular procedures affecting fertility and certain experimental or otherwise specially regulated treatments.
It is the treating practitioner’s responsibility to identify the correct treatment category and obtain the necessary authority before proceeding.
7. Can treatment proceed without consent in an emergency?
Yes, in certain circumstances.
Under the Guardianship Act 1987 (NSW), urgent treatment may be provided without substitute consent where it is necessary to save the patient’s life, prevent serious damage to their health or prevent or alleviate significant pain or distress, subject to the applicable statutory restrictions.
This exception is particularly important where delaying treatment to obtain consent would expose the patient to serious harm.
However, urgency should not be used as a substitute for obtaining consent where there is sufficient time to follow the appropriate process.
The practitioner should clearly document the clinical circumstances, reasons treatment was considered urgent and the legal basis for proceeding.
8. What role do Advance Care Directives play?
An Advance Care Directive allows a person to record decisions about future healthcare treatment while they have decision-making capacity.
Where a patient subsequently loses capacity, a valid and applicable directive may determine whether particular treatment can proceed.
Healthcare practitioners should establish whether an Advance Care Directive exists and assess its validity and application to the proposed treatment.
A substitute decision-maker does not have unrestricted authority to override a patient’s valid and applicable treatment refusal recorded in an Advance Care Directive.
Practices should have procedures for identifying, recording and accessing these documents when treatment decisions arise.
9. What about children and young people?
Consent arrangements for patients under 16 differ from the adult substitute consent framework.
For younger children, consent is generally obtained from a parent or another person with appropriate parental responsibility.
However, a young person who demonstrates sufficient maturity and understanding may be capable of consenting to their own treatment, depending on the circumstances and the nature of the proposed procedure.
Practitioners must consider the young person’s capacity, applicable legislation and any relevant court orders.
Special treatment and situations involving disputes about consent may require additional legal consideration.
10. How can medical practices minimise the risks associated with consent?
Consent should be addressed not only as a clinical responsibility but also as an important component of practice governance and risk management.
Medical practices should ensure that their policies and procedures provide for:
- Assessing and documenting patient decision-making capacity.
- Identifying the legally authorised person responsible.
- Recording guardianship orders and relevant decision-making powers.
- Checking for Advance Care Directives.
- Obtaining and documenting informed consent.
- Managing situations where patients object to treatment.
- Escalating complex matters to the treating practitioner, NCAT or legal advisers.
- Maintaining appropriate records of decisions and communications.
- Providing staff with regular training on consent and substitute decision-making.
Reception and administrative staff may assist with identifying contacts and locating relevant documents, but clinical assessments of capacity and treatment decisions must remain with appropriately qualified practitioners.
Conclusion
Consent is more than a signature on a form. It is an essential safeguard that protects patient autonomy and supports lawful, ethical healthcare delivery.
Where a patient cannot consent, medical practitioners must understand who has the authority to make decisions, the circumstances in which substitute consent is required and the limited exceptions that permit treatment without consent.
For practice owners and managers, maintaining clear consent policies, accurate records and appropriate escalation procedures can significantly reduce legal and operational risks.
Being prepared before a complex consent situation arises is one of the most effective ways to protect both patients and the practice.
Karen Crouch is the Managing Director of Health Practice Creations Group Pty Ltd, an incorporated legal practice providing legal, operational, business management and consulting services to medical, dental and allied health practices across Australia.
This article provides general information about the law in New South Wales and does not constitute legal advice for individual circumstances. Different requirements may apply in other Australian jurisdictions.
