Consent to medical and dental treatment in New South Wales 

This article states the law of New South Wales. Where an adult cannot consent to medical or dental treatment, Part 5 of the Guardianship Act 1987 (NSW) supplies a substitute decision-maker by statutory hierarchy rather than by appointment¹. That is the structural point, and it is what most distinguishes New South Wales from jurisdictions where the substitute is named in an instrument the person made. The prior question is who the person responsible is, because the answer is determined by the Act and not by choice.

The person responsible hierarchy

Section 33A(4) states a hierarchy, in descending order, for a person other than a child or a person in the care of the Secretary:

1. the person's guardian, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to medical or dental treatment;
2. the person's spouse, if the relationship is close and continuing and the spouse is not themselves under guardianship;
3. a person who has the care of the person; and
4. a close friend or relative.

Two qualifications sit inside the first limb. A guardian is only the person responsible if their appointment actually confers the treatment-consent function, so an appointment silent on treatment does not put the guardian at the top of the list. And the Act separately defines when a person has the care of another and what counts as a close friend or relative.

Section 33A(5) governs movement down the list. Where the person who would be the person responsible declines in writing to exercise the functions, or where a medical practitioner or other person qualified to give an expert opinion certifies in writing that they are not capable of carrying out those functions, the next person in the hierarchy becomes the person responsible. Both routes require writing, and an answer that moves down the hierarchy on an informal refusal has skipped the section.

Treatment without consent

Section 37 states when treatment may proceed without any consent under the Part, and it has two distinct branches.

Under s 37(1), treatment may be carried out where the medical practitioner or dentist carrying out or supervising it considers it necessary, as a matter of urgency, to save the patient's life, to prevent serious damage to the patient's health, or — except in the case of special treatment — to prevent the patient from suffering or continuing to suffer significant pain or distress. The third ground is expressly unavailable for special treatment.

Under s 37(2), minor treatment may also proceed where there is no person responsible, or where there is one but that person cannot be contacted, or is unable or unwilling to make a decision on a request for consent.

That second branch carries a certification requirement that is easy to miss. Section 37(3) requires the practitioner to certify in writing in the patient's clinical record that the treatment is necessary and is the form of treatment that will most successfully promote the patient's health and well-being, and that the patient does not object to the treatment being carried out. A patient's objection therefore defeats the minor-treatment route even where no person responsible can be found.

Asking for consent

Section 40(1) allows any person to request the person responsible to consent. Section 40(2) then specifies what the request must contain, and the list is effectively a statutory statement of informed consent: the grounds on which it is alleged the patient is one to whom the Part applies; the particular condition requiring treatment; the alternative courses of treatment available; the general nature and effect of each; the nature and degree of the significant risks, if any, associated with each; and the reasons why the proposed course should be carried out.

Section 40(3) then directs the person responsible, in considering the request, to have regard to the views (if any) of the patient, the matters in s 40(2), and the objects of the Part. The patient's own views are the first matter listed, even though the decision is not theirs to make.

Overriding an objection

A patient's objection is not simply overcome by the consent of a person responsible. Section 46A allows the Tribunal to confer on a guardian authority to override the patient's objection to major or minor treatment, and hedges that authority three ways.

The Tribunal may confer it only at the guardian's request or with their consent, and only if satisfied that any objection will be made because of the patient's lack of understanding of the nature of, or reason for, the treatment (s 46A(2)). The Tribunal may impose conditions or give directions, and may revoke the authority at any time (s 46A(3)). And the guardian may exercise the authority "only if satisfied that the proposed treatment is manifestly in the best interests of the patient" (s 46A(4)).

The word "manifestly" is doing work. It is a higher threshold than a bare best-interests assessment, and an answer should apply it as such.

How this differs from South Australia

The comparison is structural rather than verbal. New South Wales supplies the substitute by statutory hierarchy, defaulting to relationships the Act ranks. South Australia's Advance Care Directives Act 2013 (SA) instead gives effect to a substitute decision-maker the person appointed while competent, and makes only refusals of health care binding.

A student should therefore not ask "who is the person responsible" in a South Australian problem, or look for a binding refusal in a New South Wales one. The mechanisms answer different questions.

Applying this in a problem question

1. Work down the s 33A(4) hierarchy in order, and check whether a guardian's appointment actually confers the treatment-consent function.
2. Move to the next person only on a written declinature or a written certificate under s 33A(5).
3. Before asking about consent, check whether s 37(1) urgency applies, and whether the ground relied on is available for the kind of treatment.
4. For the minor-treatment route in s 37(2), apply the s 37(3) certification, including the requirement that the patient does not object.
5. Test the request against each element of s 40(2), and address the patient's views under s 40(3)(a).
6. Where the patient objects, do not treat consent as sufficient; go to s 46A and apply the "manifestly in the best interests" threshold.

Self-check

• Have I checked that a guardian's appointment covers treatment consent before placing them first?
• Have I required writing before moving down the hierarchy?
• Have I applied the s 37(3) certification, including the no-objection element?
• Have I applied "manifestly" in s 46A(4) rather than a bare best-interests test?