Patients have the ethical and legal right to make informed decisions about their health. Informed consent forms the basis for many Privacy Act exceptions, permitting collection, use and disclosure.
Obtaining a patient’s informed consent should be the key guiding principle for GPs. Many medico-legal proceedings result from a failure to obtain such consent.
The requirement to obtain informed consent also applies to research undertaken by a practice.1
To provide informed consent, patients must have sufficient information about their own healthcare, and the ability to then make appropriate decisions.
The information required is context dependent. In relation to health information, it may include details of the scope of use and disclosure (if any), any benefits and risks, or referral or treatment needs. Patients should also be informed if it is likely their information will be sent outside of Australia and if so, to where.
GPs should be cognisant of local competency when determining whether patients are capable of giving informed consent (refer to Section 1.3.4. Competence, capacity and maturity to provide consent).
Inferred or express consent
A verbal or written consent may be:
- express – when a patient signs or clearly articulates their agreement
- inferred (or ‘implied’) – where the circumstances are such to reasonably infer the patient has consented.
Express consent should be sought wherever practical and/or where significant clinical risk is likely, for example, for a procedure or surgery. A signed form is an example (and is easier to demonstrate), but an informative and welldocumented discussion with a patient may equally satisfy this requirement.
Inferred consent should be relied on only when express consent cannot be reasonably obtained. If so, care must be taken not to overestimate the scope of that consent.
For example, it is reasonable to infer that patients consent to their health records being collected and used during repeat consultations. However, this consent would not necessarily extend to the disclosure of that information to third parties, such as including health summaries within referral letters. GPs should be wary of taking silence or a lack of objection as an indicator of consent; if there is any doubt, GPs should obtain express consent.
It is recommended that consent conversations are thoroughly documented. Problems may arise if a patient does not understand the potential uses of their health information. In circumstances where GPs must establish implied consent, comprehensive and concurrent consultation notes are extremely valuable. Notes should refer to the information provided, the nature of the discussion and the patient’s response.
GPs should be careful when treating patients who refuse to provide certain health information or withhold consent for particular healthcare.
This is particularly problematic where the possibility of detrimental outcomes exists if certain information is not collected or used. This should be clearly explained to the patient.
In such circumstances, it is recommended GPs make detailed notes to document the discussion, the patient’s decision and the ultimate outcome. In certain circumstances this outcome may conflict with the GP’s underlying duty of care, and comprehensive consultation notes will be valuable.
Competence, capacity and maturity to provide consent
Some patients may not be competent to provide adequate consent.
Various state and territory guardianship legislation documents provide a framework for obtaining substitute consent on behalf of patients who are incompetent because of age, illness or disability. GPs are advised to seek appropriate advice if these situations arise.
Age-related consent is dealt with at the state and territory level. As a general rule, if a child is sufficiently mature to understand what will happen to their information they will have capacity to consent.
New South Wales, South Australia and the Australian Capital Territory have legislation stipulating the age at which a child can provide valid consent. In SA, the age is 16 years or over; in NSW, the age is 14 years or over. The ACT requires a parent or guardian to consent for a child under the age of 18 years, unless the health practitioner assesses the child to have sufficient maturity and adequate understanding.
In Victoria, consideration should be given to the Medical Treatment Planning and Decisions Act 2016 and specifically to the concept of decision-making capacity.
The Privacy Act does not stipulate age; its guidelines assume people over the age of 15 have the ‘capacity’ to give informed consent.2 GPs must therefore assess the capacity and maturity of each child to understand and make informed decisions on a case-by-case basis. In unclear cases, GPs are entitled to request the patient presents corroborating consent from their parent or guardian.