DGD12-044
Standard Operating Procedure
Consent and Treatment: Capacity and Substitute Decision
Maker
Purpose
This Standard Operating Procedure (SOP) outlines the processes to assist Health Directorate
staff to seek consent from a substitute decision maker for consumers when they are
assessed as not having the capacity to provide consent for themselves.
Scope
This SOP applies to all Health Directorate staff who are involved in obtaining consent from
consumers and provides information relating to:
 Decision-making capacity for consent
 Assessment of a consumer’s capacity to make consent decisions
 Obtaining valid informed consent from a substitute decision maker, and
 Meeting requirements of the Guardianship and Management of Property Act
1991.
This SOP should be read in conjunction with the Health Directorate Consent and Treatment
policy and associated SOPs:
 Consent and Treatment SOP
 Consent and Treatment: Children or Young People SOP.
The term capacity is used in this document to mean a person is capable of:
 Understanding the nature and effect of decisions about consent and has
demonstrated that they have this understanding
 Freely and voluntarily making decisions about consent
 Communicating the decisions verbally or non-verbally, and
 Retaining the information, their decision and their consent.
Procedure
An adult consumer is presumed to have the capacity to make decisions about their health
care except where it is shown by a clinical assessment that they do not. Refer to Attachment
1: Determination of who can provide consent as a Substitute Decision Maker Flowchart.
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Even when a consumer makes a decision that a health professional disagrees with it does
not mean the consumer lacks capacity to consent. Consumers with capacity to consent have
the right to make decisions even if the decision they make is likely to result in harm to
themselves and even their death.
1. Capacity to consent
A consumer’s capacity to give valid informed consent can be demonstrated by five
specific functional abilities to:
 Express a choice
 Understand information relevant to health care decision-making and
demonstrate their understanding
 Appreciate the significance of that information for their own situation, especially
concerning their illness and the probable consequences of their health care
options
 Use relevant information to come to a decision, and
 Ability to retain the information, their decision and their consent.
Consumers need to demonstrate all five abilities to give informed consent.
1.1 Factors that may impact on capacity to consent
Factors that may impact on the capacity of a consumer to consent include:
 Being under the influence of alcohol or other drugs, including prescribed and
non-prescribed medication and prohibited substances
 Dementia
 Delirium
 Progressive neurological disease
 Intellectual disability
 Communication disability
 Brain injury
 Mental illness or mental dysfunction including psychosis, depression, hypomania
and some anxiety states
 Pain
 Emotional shock
 Fatigue
 Panic and fear, and
 Illness itself.
The capacity of a person with mental illness will often fluctuate with episodes of illness
and even when they are unwell their capacity may not be impaired. The presence or
history of mental illness should not automatically lead to a conclusion that the person
does not have capacity to consent to health care.
1.2 When is assessment to determine capacity to consent necessary
All consumers are considered to have the capacity to consent until it is demonstrated
that they do not. If during the general care of the consumer, or discussions with them,
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there is an indication the consumer may not have the capacity to consent, a specific
clinical assessment should be undertaken.
Consumer compliance is not to be considered the same as giving informed consent.
The senior treating medical officer is ultimately responsible for assessment of a
consumer’s capacity to make a valid informed consent decision. They may seek advice
from other medical officers, nursing and allied health staff to assist them in their
decision.
The type of assessment required to determine someone’s capacity will vary depending
on the type of decision being made.
After completing an assessment of capacity to consent, the questions, answers and the
senior treating medical officer’s decision must be documented in the consumer’s clinical
record.
2. Other ways consumers can outline their wishes regarding medical treatment
Other ways consumers who have the capacity to make decisions can outline their wishes
regarding medical treatment for when they no longer have the capacity to make
decisions for themselves are:
2.1 Health Directive
A Health Directive contains instructions that consent to or refuse specified medical
treatment or treatment which may occur in the future. Health Directives become
effective in situations where the consumer doesn’t have the capacity to make health
care decisions for themselves.
A Health Directive is legally binding and must be followed. It doesn’t apply where the
consumer has or regains capacity to consent.
Note: If a consumer makes a Health Directive and then appoints an attorney, under an
Enduring Power of Attorney, who is authorised to make health care decisions; the Health
Directive is revoked (Medical Treatment (Health Directions) Act 2006, Section 19).
2.2 Advance care planning
Advance care planning is a process enabling a consumer to express and document their
wishes about future health care in consultation with their health care providers, family
and other important people in their lives.
An advance care plan is designed to guide substitute decision makers when the
consumer loses the capacity to make health care decisions for themselves. Where the
consumer has outlined their wishes these must be taken into consideration in consent
situations, however an advance care plan is not legally binding.
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2.3 Advance agreement for Mental Health consumers
An advance agreement is written by the consumer when they are capable of providing
valid informed consent. It provides details of the consumer’s preferred clinical treatment
to be administered in the event of deterioration in their mental state such that they are
unable to provide valid informed consent. It is intended that Mental Health clinical
managers collaborate closely with consumers during the development of advance
agreements.
An advance agreement provides a guide to relevant medical staff and other health
professionals, health providers and the family and support people.
Where the consumer has outlined their wishes these must be taken into consideration in
consent situations, however an advance agreement is not legally binding.
3. Substitute Decision Makers:
Where it has been identified that an adult consumer does not have the decision-making
capacity to provide consent to treatment or procedures themselves the following
substitute decision makers can provide consent in specific situations:
 The Attorney under an Enduring Power of Attorney
 Guardian, when appointed
 Health Attorney
 Public Advocate of the ACT when appointed guardian, and the
 Chief Psychiatrist or Community Care Coordinator (where there are issues
relating to mental health or mental dysfunction and the consumer is under a
Mental Health Order).
To determine who can provide consent as a substitute decision maker refer to the
flowchart at Attachment 2.
For any substitute decision maker, evidence of their authority to consent needs to be
sighted and confirmation of having done this needs to be documented in the clinical
record.
3.1 Enduring Power of Attorney
A consumer who has decision-making capacity may appoint someone else as an attorney
under an Enduring Power of Attorney. This provides authority for the attorney to make
personal, financial or medical decisions as specified on the consumer’s behalf, in the
event the consumer no longer has decision-making capacity. An appointed attorney
under the Enduring Power of Attorney can provide consent on behalf of the consumer.
Note: If a consumer makes a Health Directive and then appoints an attorney, under an
Enduring Power of Attorney, who is authorised to make health care decisions; the Health
Directive is revoked (Medical Treatment (Health Directions) Act 2006, Section 19).
3.2 Legal guardians
A legally appointed guardian, as defined in the Guardianship and Management of
Property Act 1991, must make decisions in the consumer’s best interests. Additionally,
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the protected person’s wishes (as far as they can be determined) must be addressed –
unless a decision made in accordance with such wishes is likely to significantly adversely
affect the person’s protected interests.
A legal guardian can give consent for a medical procedure or other treatment if so
appointed, excepting ‘prescribed medical procedures’ as defined in legislation. Consent
cannot be given by a legal guardian in some situations including:
 Where consent would override a decision outlined in a valid Health Directive
 Consent to procedures defined as a ‘prescribed medical procedure’ such as:
o Abortion
o Reproductive sterilisation
o Hysterectomy
o A medical procedure concerned with contraception
o Removal of non‐regenerative tissue for transplantation to the body of
another living person
o Treatment for psychiatric illness, electroconvulsive therapy or psychiatric
surgery. Refer to Section 4 for further information, and
 Withdrawal or withholding of medical treatment.
3.3 Health Attorneys
A Health Attorney may provide consent to treatment when the consumer has:
 Impaired decision making ability and
 Has not appointed someone to have enduring power of attorney with regard to
medical treatment, and
 When a legal guardian has not been appointed for consent to medical treatment.
Listed in order of priority, a Health Attorney can be either a:
 Domestic Partner (i.e. spouse)
 Carer, not including carers employed to care for the consumer, and a
 Close relative or friend.
Staff can ask for consent from someone from the above list whom they believe is the
person best able to represent the views of the consumer and is readily available. In
accordance with the Guardianship and Management of Property Act 1991 staff are not
required to seek the views of more than one Health Attorney.
The Health Attorney must be formally appointed by a medical officer before they can
provide consent. The use of a Health Attorney must be documented in the clinical record
using the Health Attorney for Consent to Medical Treatment form available on the
Clinical Forms Register.
Consent provided by the Health Attorney is valid for six months only.
There are certain situations where staff must refer matters of consent to the Public
Advocate of the ACT. These are where the health professional believes treatment should
occur and:
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

The Health Attorney who has been asked to provide consent does not consent to
a recommended medical procedure and is believed to not be acting in the best
interests of the consumer, or
Before obtaining consent from the Health Attorney believed to be best able to
represent the views of the consumer, staff become aware that any of the other
possible Health Attorneys object to the giving of consent.
The Office of the Public Advocate contact is: 02 6207 0707.
3.4 Public advocate
Health professionals must contact the Public Advocate of the ACT to provide or withhold
consent in the following circumstances:
 If they have concerns that decisions made by a substitute decision‐maker are not
being made in the best interests of the consumer, and
 In the absence of a Health Directive, an appointed Health Attorney, Guardian, or
Enduring Power of Attorney.
Consent can be obtained by contacting the Office of the Public Advocate during business
hours. If consent is required outside of business hours, a procedure or treatment may
only proceed if it is an emergency, otherwise the procedure or treatment must not
proceed until the emergency guardianship order is in place.
The Office of the Public Advocate contact is: 02 6207 0707.
3.5 Telephone consent provided by substitute decision makers:
Wherever possible, consent to treatment should be obtained through face-to-face
conversation with the substitute decision maker. However, in certain circumstances
when consent is requested, the substitute decision maker may not be in the presence of
the consumer and can’t see the consumer’s physical condition or affected part or side of
the body for themselves.
Where there is no reasonable alternative at the time, a substitute decision maker may
provide consent over the telephone. For example:
 When a surgical procedure is urgently required to treat traumatic injury, and
 During an elective treatment or procedure previously consented for, an
additional treatment or procedure is deemed necessary at that time.
The consent and information about the process used to gain consent must be
documented in the clinical record. Refer to the Consent and Treatment SOP for further
information about minimum requirements for documenting consent.
4. When mental health issues affect capacity
4.1 A consumer with mental illness can have the decision-making capacity to consent to
medical or surgical treatment. The principles of valid informed consent apply to all
mental health consumers; they can participate in all aspects of their health care and
exercise their rights to consent to or decline health care.
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If a consumer is assessed as not having capacity to consent due to their mental illness,
the substitute consent provisions of the Guardianship and Management of Property Act
1991 and outlined in Procedure items: 1 – 4 apply for all:
 General medical or surgical conditions (except for psychiatric treatment or
psychiatric surgery).
4.2 Psychiatric treatment
If a consumer who is unable to provide informed consent appears to require psychiatric
treatment, application must be made to the ACT Civil and Administrative Tribunal (ACAT)
for a Psychiatric Treatment Order. Legal guardians or Attorneys cannot consent to
psychiatric treatment on behalf of a consumer.
An ACAT Order is required before psychiatric treatments can be provided to consumers
who are deemed unable to consent.
4.3 Electroconvulsive Therapy (ECT)
Consent to ECT may be voluntary or under an ECT order.
A consumer for whom ECT is recommended must have the nature and purpose of the
therapy explained by a medical officer who will not perform the therapy. Emergency
provision of ECT can only be authorised by the Chief Psychiatrist.
There is a specific consent form for ECT that must be used. The consumer’s signature on
the consent form must be witnessed by a person who has no financial interest in the
consumer’s affairs. A new consent form is required if the course of ECT goes beyond
nine treatments as specified within the Mental Health (Treatment and Care) Act 1994.
Involuntary ECT needs to be applied for through ACAT and needs to have a current
psychiatric order in place as well (or applied for concurrently).
Evaluation
Outcome Measures
 Consumers provide valid informed consent wherever it is required.
 All forms used to document written consent are endorsed for use by the Health
Directorate and comply with this policy and associated SOPs.
Method
 Documentation of consent audits overseen by the Governance Health Service
Standard Group.
Related Legislation and Policies
Legislation
Age of Majority Act 1974
Children and Young People Act 2008
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Civil Law (Wrongs) Act 2002
Guardianship and Management of Property Act 1991
Health Practitioner Regulation National Law (ACT) Act 2010
Health Records (Privacy and Access) Act 1997
Health Regulation (Maternal Health Information) Act 1998
Medical Treatment (Health Directions) Act 2006
Medicare Australia Act 2005
Mental Health (Treatment and Care) Act 1994
Powers of Attorney Act 2006
Public Advocate Act 2005
Road Transport (Alcohol and Drugs) Act 1977
Transplantation and Anatomy Act 1978 (2.2, 2.3, 2.5)
Policy
Clinical Record Management Policy
Clinical Record Documentation SOP
Release or Sharing of Clinical Records or Personal Health Information SOP
Consent and Treatment Policy
Consent and Treatment SOP
Consent and Treatment: Children or Young People SOP
Guidelines for Assessment of Decision Making Capacity by ACRS Psychologists SOP
Consumer and Carer Participation Framework
Consumer Feedback Standards: Listening and Learning
Elective Surgery Access Policy
Patient Identification: Correct Patient, Correct Site, Correct Procedure Policy
Patient Identification: Correct Patient, Correct Site, Correct Procedure Standard Operating
Procedure
General Practitioner – Hospital Access and sharing of Clinical Information within CHHS –
policy
General Practitioner – Hospital Access and sharing of Clinical Information within CHHS - SOP
Standards
ACHS EQuIP 5:
1.1 Consumers/patients are provided with high quality care throughout the care delivery
process.
1.1.3 Consumers/patients are informed of the consent process, and they understand and
provide consent for their health care.
1.6 The governing body is committed to consumer participation.
1.6.2 Consumers/patients are informed of their rights and responsibilities.
3.1.5 Documented corporate and clinical policies and procedures assist the organisation to
provide quality, safe health care.
National Safety and Quality Health Service (NSQHS) Standard:
Governance for Safety and Quality in Health Service Organisations
Partnering with Consumers
Patient Identification and Procedure Matching
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Definition of Terms
Capacity
The term capacity is used in this document to mean a person is capable of:
 Understanding the nature and effect of decisions about consent and
communicating the understanding verbally or non-verbally
 Freely and voluntarily making decisions about consent
 Communicating the decisions verbally or non-verbally, and
 Retaining the information, their decision and their consent.
The type of assessment required to determine someone’s capacity will vary depending on
the type of decision being made.
Carer
People who provide unpaid care and support to family members and friends who have a
disability, mental illness, chronic condition, terminal illness or general frailty. Carers include
parents and guardians caring for children.
Chief Psychiatrist
Is appointed by the Minister and has the following functions under the Mental Health
(Treatment and Care) Act 1994, Section 112:
 Provision of treatment, care, rehabilitation and protection for persons who have a
mental illness, and
 Reporting and making recommendations to the Minister with respect to matters
affecting the provision of treatment, care, control, accommodation, maintenance
and protection for persons who have a mental illness.
Clinical Activity
Clinical activities improve, maintain or assess the health of a person in a clinical situation and
may include invasive and non-invasive procedures (including those performed in settings
other than the operating room). Some examples are:
 Invasive - taking a specimen of blood
- giving medication via an intravenous, intramuscular or subcutaneous route
- inserting intravenous access, or
- performing a surgical procedure, including a procedure performed in
medical imaging.

Non-invasive - interventions such as evaluating, advising, planning
(E.g. dietary education, physiotherapy assessment, crisis intervention,
bereavement counselling, a procedure in medical imaging) and giving
medication.
Common law (Also known as case law)
Law developed by judges through decisions of courts/tribunals rather than through
legislation.
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Consumer
In this document the term ‘consumer’ refers to patients, consumers and clients under the
care of the Health Directorate.
Enduring Power of Attorney
An attorney, appointed under and Enduring Power of Attorney, who authority comes into
affect when the principal (authoriser) ceases to have capacity. In the ACT, an individual can
complete an Enduring Power of Attorney to appoint someone else (the attorney) to make
their personal or medical decisions in case they are unable to decide for themselves because
of an accident or an illness.
Guardian
A person who has the right and duty to protect another person, his/her property and rights.
Guardianship and management orders are made by the ACT Civil and Administrative
Tribunal. In emergency situations, the Public Advocate of the ACT is appointed guardian of
last resort to make decisions on the person’s behalf.
Health Directive
A Health Directive contains instructions that consent to, or refuse, specified medical
treatment or treatment which may occur in the future. Health Directives become effective in
situations where the consumer doesn’t have the capacity to make health care decisions for
themselves. An Health Directive is legally binding and must be followed. It doesn’t apply
where the consumer has or regains capacity to consent. (Medical Treatment (Health
Directions) Act 2006)
Health Professional
There are two Acts which define ‘health professionals’: the Medical Treatment (Health
Directions) Act 2006 (ACT) and the Health Practitioner Regulation National Law (ACT) Act
2010. For the purpose of this document a ‘health professional’ includes all doctors, dentists,
nurses and allied health professionals engaged the Health Directorate to care for consumers.
Informed consent
A person gives consent based upon an appreciation and understanding of the facts and
implications of an action. The person must be given the relevant information and have the
capacity to understand it.
Valid consent is based on the fundamental legal principle that the law protects the integrity
and autonomy of the person. Consent for a procedure or treatment is valid if:
 The consumer has the capacity to give consent
 Full information on risks, benefits and alternatives has been provided and
understood, with understanding demonstrated
 The consent is given freely, and
 The consent is specific to the procedure.
Medical officer
A conditionally registered or unconditionally registered medical practitioner employed by, or
contracted to, the Health Directorate.
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Mental dysfunction
Means a disturbance or defect to a substantially disabling degree, of perceptual
interpretation, comprehension, reasoning, learning, judgement, memory, motivation or
emotion.
Mental illness
Means a condition that seriously impairs (either temporarily or permanently) the mental
functioning of a person and is characterised by the presence in the person of any of the
following symptoms:
a. Delusions
b. Hallucinations
c. Serious disorder of thought form
d. Severe disturbance of mood
e. Sustained or repeated irrational behaviour indicating the presence of the symptoms
referred to in a, b, c or d.
Prohibited substance
A substance to which the medicines and poisons standard, schedule 9 applies. Schedule 9
substances are generally illegal substances that are subject to misuse, for example, cannabis
or heroin.
Senior medical officer
A medical officer, salaried or contracted, who has clinical privileges and who is not required
to work under supervision, with the exception of doctors appointed to Area of Need
specialist positions who are required to have a supervisor.
Treatment
Medical or surgical management of a consumer (including any medical or surgical procedure,
operation, examination and any prophylactic, palliative or rehabilitative care) normally
carried out by, or under the supervision of a Health Professional.
Treating medical officer
Medical officer who is delegated responsibility for all or part of the care of a consumer. The
treating medical officer may be a junior medical officer or senior medical officer and may not
be the admitting senior medical officer.
Treating Team
The treating team includes all service providers (located within, or external to the ACT) who
provide a service for the ACT Government Health Directorate involved in diagnosis, care or
treatment for the purpose of improving or maintaining the consumer’s health for a
particular episode of care (Health Records (Privacy and Access) Act 1997).
Voluntary Mental Health Consumer
A person who has is receiving treatment but is not under an Emergency Detention or
Psychiatric Treatment order/Community Care order or any other order under the Mental
Health (Treatment and Care) Act 1994.
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Involuntary Mental Health Consumer
A person who is subject to an Emergency Action, or an Emergency Detention Order (ED3 or
ED7) or a Psychiatric Treatment Order, or a Community Care Order under the Mental Health
(Treatment and Care) Act 1994.
References
RACCS SOP Guidelines for Assessment of Decision Making Capacity by ACRS Pyschologists
Guidelines for Health Care Professionals Including Medical Practitioners and Dentists. (1999)
Office of the Public Advocate of the ACT Australian Capital Territory Government
Informed Consent for Health Care Treatment. (1999). Office of the Public Advocate of the
ACT. Australian Capital Territory Government
Guide to Informed Decision-making in Healthcare. (2011) Queensland Health. Queensland
Government
Guidelines for Medical Practitioners on Providing Information to Patients. (2004) National
Health and Medical Research Council (NHMRC) (www. nhmrc.gov.au)
Attachments
Attachment 1: Determination of who can provide consent as a Substitute Decision Maker
Flowchart
Associated SOPs
Consent and Treatment SOP
Consent and Treatment: Children or Young People SOP
Disclaimer: This document has been developed by Health Directorate, specifically for its own use. Use of this
document and any reliance on the information contained therein by any third party is at his or her own risk and
Health Directorate assumes no responsibility whatsoever.
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Attachment 1: Determination of who can provide consent as a Substitute Decision Maker Flowchart
Is this an emergency?
I.e. The procedure is both necessary to
prevent serious harm or death and
cannot be delayed
YES
Proceed without consent
YES
Proceed with verbal/written or other
indication of consent documented
YES
Proceed in accordance with the advice
of the appointed Enduring Power of
Attorney
YES
Proceed in accordance with the advice
of the guardian
YES
Proceed in accordance with the advice
of the Health Attorney
NO
Is the consumer able to give valid
informed consent?
NO
Have you sighted a current Enduring Power
of Attorney that authorises decisions for
health care? (Check with family/significant
other/GP)
NO
Have you sighted a current guardianship
order? (Check with family/significant other/
GP
NO
Is there a Health Attorney available?
NO
In business hours, telephone the Office of the Public Advocate on 6207 0707 to discuss the need for an
Emergency Guardianship Order OR visit www.publicadvocate.act.gov.au and download the application form
Note: A valid Health Directive overrides any Substitute Decision Maker unless a consumer makes a
Health Directive and then appoints an attorney, under an Enduring Power of Attorney, who is
authorised to make health care decisions; the Health Directive is revoked (Medical Treatment (Health
Directions) Act 2006, Section 19).
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