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Privacy and managing health information in general practice

Patient consent

Competence, capacity and maturity to provide consent

Last revised: 24 May 2023

Competence, capacity and maturity to provide consent

Some patients might not be competent to provide adequate consent.

Various states and territories have a framework for obtaining substitute consent on behalf of patients who are incompetent due to age, illness or disability. In these situations, GPs are advised to seek further advice. Age-related consent is dealt with at the state and territory level. As a rule, if a young person is mature enough 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 laws specifying the age of when a young person can provide valid consent:

SA the age is 16 years or over
NSW the age is 14 years or over
ACT requires a parent or guardian to consent for a young person under the age of 18 years, unless the health practitioner assesses the child to have sufficient maturity and adequate understanding
VIC consideration should be given to the Medical Treatment Planning and Decisions Act 2016 and specifically to the concept of decision-making capacity.

The Act does not stipulate age; its guidelines assume people over the age of 15 years have the ‘capacity’ to give informed consent.3 GPs must assess the capacity and maturity of each young person to understand and make informed decisions on a case-by-case basis.

In unclear cases, GPs can request corroborating consent from a parent or guardian.

 

  1. Australian Government, Office of the Australian Information Commissioner. Australian Privacy Principles quick reference. 2014 [Accessed 7 November 2022].
  2. National Health and Medical Research Council, Australian Research Council, Australian Vice-Chancellors’ Committee. National statement on ethical conduct in human research (2007) (updated 2018). 2018 [Accessed 16 January 2023].
  3. Commonwealth of Australia. Privacy Act 1988.1988 [Accessed 7 November 2022].
  4. Australian Government, Office of the Australian Information Commissioner. Australian Privacy Principles guidelines: Privacy Act 1988. 2015 [Accessed 16 January 2023].
  5. Australian Government, Attorney-General. Parliament approves Government’s privacy penalty bill. 2022 [Accessed 16 January 2023].
  6. Medical Board of Australia, AHPRA. Good medical practice: A code of conduct for doctors in Australia. 2020 [Accessed 16 January 2023].
  7. Australian Government, Office of the Australian Information Commissioner. Business resource. Chapter 9: Research. 2019 [Accessed 16 January 2023].
  8. Australian Government, Office of the Australian Information Commissioner. Chapter 5: APP 5 – Notification of the collection of personal information. 2019 [Accessed 8 November 2022].
  9. Australian Medical Association. Frequently asked questions – Fees. [date unknown] [Accessed 8 November 2022].
  10. Australian Government, Office of the Australian Information Commissioner. Privacy for organisations: Trading in personal information. [date unknown] [Accessed 16 January 2023].
  11. National Health and Medical Research Council. Use and disclosure of genetic information to a patient’s genetic relatives under Section 95AA of the Privacy Act 1988 (Cth) – Guidelines for health practitioners in the private sector. 2014 [Accessed 16 January 2023].

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