Australia: Unravelling the complex issue of consent to medical treatment

Last Updated: 17 August 2016
Article by Briohny Coglin

Australian law recognises that a person's consent is generally required before treatment can be provided. People are not required to give their consent and may choose, for whatever reason, not to consent to treatment. A valid decision to refuse treatment must be respected, even if it means that the person refusing treatment will die. However the issue of consent is complicated when the patient does not have the capacity to provide consent and when people who are providing consent on their behalf refuse to consent to lifesaving treatment. These complexities are highlighted in recent case law.

Medical teams should be encouraged to communicate clearly with patients and their families in the early stages of treatment to identify issues regarding consent or capacity that could arise in the future, and take thorough notes regarding the patient's wishes. Because health care providers cannot always foresee the various consent issues that may arise it is a good idea to plan ahead. In situations where there are questions around whether lawful consent to treatment has been provided or whether a refusal to provide consent is at odds with a patient's best interests, health care providers are urged to seek legal advice and, if required, guidance from the courts.

Overriding a guardian's refusal to treat a minor

Refusal based on religious beliefs

The Hospital v T and Anor [2015] QSC 185 concerned a seven year old boy (J), who suffered from severe liver disease. The medical evidence indicated that J's death would be inevitable if he did not receive a liver transplant within two to three years and, further, that a liver transplant would likely cure the disease and reverse the significant symptoms.

Blood transfusions are necessary in the vast majority of liver transplant operations, however, J's parents were Jehovah Witnesses and, although they consented to the liver transplant, they objected to J receiving a blood transfusion.

Legislation provided authority for a blood transfusion to be performed if it was considered "necessary" to preserve J's life, yet this would only become apparent during the procedure at which time it would be difficult to seek a court order.

The Hospital wished to have confidence in advance that it had authority to perform the blood transfusion (that was likely to be necessary) during the transplant. They made an application to the Supreme Court of Queensland for a declaration that the hospital be authorised to administer blood if required during or after the procedure.

The Court held that the sanctity of J's life outweighed the respect that must be given to the religious beliefs held by J and his parents. It authorised the Hospital and its medical practitioners to administer blood to J if, in their medical judgment, it was desirable or necessary according to good medical practice.

Refusal based on preference for alternative therapies

In the case of Director Clinical Services, Child & Adolescent Health Services and Kiszko & Anor [2016] FCWA 19, the patient, Oshin, was diagnosed with a malignant brain tumour in November 2015, which had spread to his spine. The tumour was removed in December and doctors at the hospital where Oshin was being treated recommended further treatment consisting of chemotherapy and radiotherapy.

Oshin's parents, however, refused consent to the treatment, preferring to trial alternative therapies focused on nutrition. They had concerns about potential side effects and rejected the Hospital's recommendation for conventional therapies on the basis that it was not in Oshin's best interests.

The Child and Adolescent Health Service applied to the Family Court of Western Australia seeking orders permitting them to provide Oshin with radiotherapy and chemotherapy.

The Court found that it was "beyond all doubt" that Oshin would die within months if measures were not taken to prevent his death, whereas there was around a 50% chance of Oshin being alive in five years' time if he received the recommended treatment, meaning that there was "a good prospect of a long-term cure".

The Court awarded the orders sought by the Child and Adolescent Health Service and the Hospital was permitted to proceed with the recommended treatment plan. While the Court acknowledged the importance of the parent's wishes, it adopted the comments made by the Supreme Court of Western Australia in an earlier decision:

"The question is not whether to respect the parents' wishes. The role of the Court is to exercise an independent and objective judgment and balance the advantage or disadvantage of the medical step under consideration. While the parents' wishes may be relevant, they are not determinative."1

Consent where an adult patient doesn't have capacity

Consent regarding a person with a disability

The United Kingdom decision of St George's Healthcare v Anor [2015] EWCOP 42, concerned a man (P), a devout Sunni Muslim with a dysplastic kidney, who became unwell in 2007 and required treatment for kidney failure. In 2014, he suffered a major cardiac arrest. It took 25 minutes for spontaneous circulation to be restored, resulting in serious hypoxic brain damage.

Following this incident, P became wholly dependent on the Intensive Care Unit at the National Health Service's (NHS) St George's Hospital for all aspects of his care, including renal replacement therapy (RRT).

The NHS applied to the court for declarations:

  • that P lacked capacity
  • that it was not in P's best interests to receive cardio-pulmonary resuscitation in the event of a further cardiac arrest, and
  • whether it was lawful to continue to provide RRT or if they could discontinue life-sustaining treatment with the consequence that P would die.

The first two declarations were not contested. The NHS and P's family did not agree on the third issue. P's family maintained that he was in a minimally conscious state and that the discontinuance of treatment was not in his best interests. Further they argued that the discontinuing life-sustaining support was against his personal and religious views. The NHS considered P to be in a permanent vegetative state. If this were the case, then there was no prospect of recovery and it would not be in P's best interests to continue treatment.

The Court held that, when determining consent, it must be considered whether the proposed treatment would be futile "in the sense of being ineffective or being of no benefit to the patient". The idea of the treatment being beneficial is not limited to fixing the underlying disease or disability, rather, where a person's health is in an incurable state, a person's life may nevertheless "be very well worth living".2

Determining whether a person wishes to consent to medical procedures is not an objective process, it is based on "the best interests test from the patient's point of view".3 In determining whether consent is existent or whether treatment should be administered, a "primary consideration and lodestone is the principle of sanctity of life".

The Court set out the following factors to be considered in determining consent:

  • Is the treatment futile?
  • How burdensome is the treatment to the patient?
  • Are there prospects of recovery?
  • What are the wishes, feelings, values and beliefs of the patient?

The Court found that P was indeed in a minimally conscious state, that it was in P's best interests to continue the RRT and that it was lawful and necessary that the NHS continue treatment. It was held that:

  • P held the belief that life-preserving treatment should continue, whatever may befall him.
  • The treatment of P was not futile as it preserves his life and he gains pleasure and comfort from the love and affection that he receives from his family.
  • Treatment is not overly burdensome on the patient as he does not appear to be in pain or discomfort.
  • The treatment is not totally without a prospect of success as it had been indicated that there was a possibility that his level of consciousness could improve.
  • "There is almost nothing to rebut the very strong presumption that it is in P's best interests to stay alive".

The Court highlighted the need to undertake a proper assessment and diagnosis of the patient's condition before applying to a court, as well as the need for a court to take a cautious approach in these cases, particularly where the diagnosis is unclear and there are issues as to whether the patient is in a minimally conscious state with real or uncertain prospects of recovery.

Consent where a patient is unconscious

In the decision of Ping Yuan v Da Yong Chen [2015] NSWSC 932, Mr Chen was admitted to Sydney's Royal Prince Alfred Hospital with severe chest pain on 6 July 2015. He was diagnosed with a rupture of a major blood vessel and required emergency surgery.

Mr Chen's wife, Ms Yuan, gave evidence that he told her that he wanted to have another child with her just before Mr Chen lost consciousness under general anaesthetic. Mr Chen did not regain consciousness following the surgery and was expected to have only hours to live.

Ms Yuan requested that a specialist within the Hospital's fertility clinic extract sperm from her unconscious husband and to store it for insemination at a later date. The specialist was willing to perform the procedure provided that he had consented to do so. He correctly formed the view that Ms Yuan's assertion that Mr Chen expressed a desire to have another child with her in the moments before surgery did not constitute lawful consent. Accordingly, Ms Yuan made an urgent ex parte application for a declaration that she was able to consent to the extraction and storage of her dying husband's sperm on his behalf.

Under the Guardianship Act 1987 (NSW) a "person responsible" can provide consent for minor treatment on a patient's behalf where a patient is incapable of giving consent. The Court held that that the procedure fell within the meaning of "treatment" and Ms Yuan was the "person responsible". The Court authorised the medical practitioners to act upon the consent given by Ms Yuan. The extraction procedure was undertaken shortly after the declaration was communicated to the Hospital and Mr Chen died 45 minutes later.

The Hospital's fertility clinic was then faced with the difficult issue of Ms Yuan's request for insemination, following Mr Chen's death. Under the Assisted Reproductive Technology Act 2007 (NSW), the clinic is not permitted to use the sperm extracted from Mr Chen to inseminate Ms Yuan without his consent. The Court held that, as Mr Chen is now deceased, the clinic would have to be satisfied that he specifically consented to the use of his sperm after his death, before it could be used to inseminate Ms Yuan. The Court directed that the NSW Attorney-General and the Director-General of the Department of Health be provided with documents relating to the case and permitted that they be joined to the proceedings. Ms Yuan is restrained form using the sperm in the meantime. The matter is continuing.


1 Minister for Health v AS (2004) 29 WAR 517 per Pullin J.

2 St George's Healthcare NHS Trust v P and Anor [2015] EWCOP 42, [44].

3 Ibid, [45].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Briohny Coglin
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.