Australia: Patients without capacity: Court orders patient cannot refuse recommended treatment.

Last Updated: 9 November 2016
Article by Hamish Broadbent

For treatment providers, the question of capacity most often arises when a patient refuses a course of treatment that the treating practitioner considers is in the patient's best interest. Two recent cases (involving the same patient) heard by the New South Wales Civil and Administrative Tribunal (Guardianship Division) and the Supreme Court of New South Wales highlights the complexities that confront treating practitioners when a patient's capacity is in doubt.

Tribunal—Guardianship Division

In the case of DXI [2016] NSWCATGD 4 (24 June 2016), the Patient's treating practitioner Dr SDP brought an application before the Tribunal seeking consent to special medical treatment, the termination of the Patient's pregnancy (she was 21 weeks pregnant at the time of the hearing).

Dr SDP's application was sought because the Patient had developed severe pre-eclampsia, on a background of renal failure and with progressive hypertension. The Patient required haemodialysis six times each week and had been on dialysis since week 16 of her pregnancy, she had also been given medication for her blood pressure.

There was no further treatment which could be offered to the Patient or the foetus and Dr SDP warned that the Patient was at risk of eclamptic seizures, cerebral haemorrhage, or stroke if the pregnancy was not terminated, with the remote possibility of death. Dr SDP confirmed that for the foetus to survive, the pregnancy would need to reach a minimum of 24 weeks gestation, and the foetus to be appropriately developed. Dr SDP considered this made continuing treatment essentially "futile, with a risk to [the Patient] of serious permanent injury". The termination of the Patient's pregnancy would arrest the process of pre-eclampsia over days.

"Under Australian law, an adult is presumed to have capacity to consent to or refuse medical treatment unless that presumption can be rebutted by evidence..."

Specialist evidence was given supporting the Application, which included, that without the intensive treatment which was given to the Patient during her admission, the foetus would have died at an earlier stage in the pregnancy and the Patient would have experienced a miscarriage.

The Patient gave only limited evidence to the Tribunal, but was to the effect that she wanted to keep the baby despite that she had been told it would be dangerous to do so. Dr SDP's application essentially alleged that the Patient's intellectual disability prevented the Patient from fully understanding the implications of her medical illness and why her pregnancy should not continue.

There was no evidence before the Tribunal of any clinical assessments of the Patient's decision-making capacity. The only evidence concerning capacity came from the Patient's mother who gave evidence that her daughter was capable of making her own decision concerning the proposed termination of her pregnancy.

Under Australian law, an adult is presumed to have capacity to consent to or refuse medical treatment unless that presumption can be rebutted by evidence (Guardianship and Administration Act 2000 (Qld) Schedule 1.). A person is said to have capacity if they are able to understand the nature and effect of a decision; are able to make decisions freely and voluntarily, and they are able to communicate that decision.

As there was no evidence before the Tribunal that the Patient was incapable of understanding the general nature of the proposed treatment, and incapable of understanding the general effect of the proposed treatment, the Patient's presumption of capacity was not rebutted. Dr SDP's application was therefore dismissed.

Supreme Court

The next day, an urgent application was brought by the hospital in the New South Wales Supreme Court, where the Patient's capacity to refuse treatment was to be decided (Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624). Justice Sackar convened a hearing at the Patient's bedside where the Patient's lack of response, unwillingness or inability to say anything at all lead his honour to infer that the Patient did not understand the dilemma she faced.

The Patient's mother gave strong views that she vehemently opposed any form of intervention, except in what might be described as "dire circumstances" and purported to speak on behalf of the Patient. It was considered that the Patient's mother had little insight into the consequences if the Patient were to suffer a stroke causing her some disability and that her somewhat domineering, overly protective attitude had the potential to obstruct medical practitioners from attempting to make an objective assessment of the Patient's capacity to understand her dilemma.

"...the Supreme Court made the decision that allowed the intervention treatment."

Further evidence of the Patient's lack of capacity was her solicitor's inability to obtain any instructions and the Patient's inability to relay to her solicitor that she understood her situation.

Justice Sackar made an ex tempore decision that day, that on the evidence the Patient did not adequately understand, nor was she capable of balancing or making an informed decision, such as to permit her to refuse the treatment recommended.

On the evidence in its totality the Patient did not, in reality, appreciate the true significance of the dilemma she faced and had neither the strength nor ability to contest the will of her mother, who was well meaning, but frankly misguided. His honour was critical of the Tribunal's decision to rely on the mother's evidence and not further assess the Patient's capacity.

Accordingly the Supreme Court made the decision that allowed the intervention treatment.

While in this case the patient's lack of capacity was made obvious by her refusal to receive vital medical treatment, and inability to convey that she understood the risks of refusing treatment, treatment providers must always be cognisant of a patients capacity to consent to treatment, particularly when there are 'red flags' present.

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.

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.