Consent for health care

Health care decision making

Everyone has the right to make decisions about the health treatment they receive from a health care provider.

All adults are presumed to have capacity to consent to health care unless there is evidence of impaired decision-making capacity.

The Health Care Decision Making Act 2023 (The Act) addresses health care decision making for people who have lost some or all of their capacity to make their own health care decisions. It also governs the provision of urgent health care without consent to adults and children following the repeal of the Emergency Medical Operations Act 1973.

The Act establishes a hierarchy of possible health care decision makers including family and close friends, including formal recognition of First Nations kin who can lawfully provide consent on behalf of the person.

When a health care decision maker is needed

When a person's ability to make a health care decision is impaired, they may need someone to make a health care decision on their behalf.

This person is known as their health care decision maker. This role is specific for the health care decision needed at the time. A health care decision maker is not permanently appointed unless by a legal appointment such as a guardianship order, or under an Advanced Personal Plan.

A health care decision maker is needed when:

• a person has impaired capacity to make a decision about the health care needed
• the person has not made an Advanced Consent Decision in their Advanced Person Plan about the health care needed
• the health care is significant (implied consent cannot be accepted from the person)
• the person is not likely to regain capacity within a reasonable timeframe to enable the health care needed.

Refer to our Adult Health Care Consent PDF (3.9 MB) flowchart for more information.

Impaired decision-making capacity

An adult is presumed to have capacity to make a health care decision unless there is evidence to the contrary. An adult patient who merely appears to have impaired decision-making capacity is still presumed to have capacity to consent.

• An adult patient is still presumed to have capacity to consent, even if they have a disability, need support to communicate, understand information or to make decisions.
• Even if an adult has or is suspected to have impaired decision-making they can still give consent if their impairment does not affect the specific decision. (A person might struggle with some decisions but not others).

If their decision-making ability is expected to improve soon, it's better to wait and get their consent before proceeding with treatment.

Refer to our Adult Health Care Consent PDF (3.9 MB) flowchart for more information.

A person may have impaired decision-making capacity if they have difficulty:

• understanding and retaining information relevant to the health care decision
• weighing information relevant to the health care decision in order to make the health care decision
• communicating the health care decision in some way
• understanding the effect of the health care decision.

Our guideline Determining decision making capacity for a health care decision PDF (1.9 MB) provides more information on impaired decision-making capacity.

What health care is included

Health care is broadly defined as any kind of health care, including the following services or anything provided as part of the following services.

Any health service provided by a registered health professional:

• hospital services
• mental health services
• pharmaceutical services
• ambulance services
• community health services
• health education services
• welfare services necessary to implement health services
• pathology services
• allied health services
• assessment conducted by a health care provider (for example an aged care assessment).