NUR1113 Lecture Notes - Lecture 4: Implied Consent, Victorian Civil And Administrative Tribunal, Nearest Relative
NUR1113 – Module 4
NUR1113 – Law, ethics and an introduction to leadership in nursing and midwifery
Module 4 – Consent, Trespass, and Guardianship
Learning Objective 1: Explain the legal concept of consent for competent, incompetent, and mentally ill patients
and children, within the context of healthcare
Informed consent → The patient has been adequately informed about the broad nature of
the procedure and materials risks and has the capacity to understand these.
Implied consent → When a patient, by their actions (not words) implies that they consent to
their procedure. E.g., a patient sticks out their arm to have their BP assessed.
Requirements for valid consent
1. Consent must be voluntary – not be subject to duress, coercion, drugs, or psychosis
2. Consent must cover the procedure proposed
3. Patients e gie adeuate ifoatio to allo a deisio i.e. ifoed oset,
The patiet ust hae legal apaity i.e. soud id & of legal age > 1 yeas age of atuity At 1 Vi
Exceptions:
• Emergencies → doctrine of necessity Marshall v Curry [1933]
• Legislative intervention →
o e.g. to transfuse children - Human Tissue Act 1982 (Vic) → Human tissue act – parent says no but two
dotos say yes the it ust e doe
o to appoint an agent to provide consent, this is substituted decision making
• Medical Treatment Act 1988 (Vic)
• Mental incapacity → consent can be provided by family, next of kin or guardian
• Language barrier → use qualified interpreter
• Child → parent can give consent on their behalf but it depends on the procedure. Eg: a child can give
consent for BP
Incompetent Patients
• The patiet is iopetet he he/she does ot hae legal apaity
• There are 2 components to this concept:
1. An inability to make decisions
2. The presence of cognitive impairment Eg. Lack of knowledge of the matter to which the decision relates, or
lack of knowledge of the choices, or lack of appreciation of the consequences.
• Recent changes to the Guardianship & Administration Act 1986 (s. 37) allow for a person responsible to give
consent
o This is for short term incompetence
o Long term incompetence requires appointment of a guardian
Person responsible - acts in the best interests of the incompetent person (Guardianship & Administration Act 1986)
1. Agent under the Medical Treatment Act
2. VCAT appointed guardian
3. Enduring guardian
4. Person appointed in writing by the patient
5. Spouse including defacto
6. Primary carer (not paid)
7. Nearest relative over 18 yrs. – son/daughter, father/mother, brother/sister, grandfather/mother,
uncle/aunt, nephew/niece – in that order.
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NUR1113 – Module 4
Mentally ill patients
Mentally ill patients retain all rights to consent or non-consent unless:
• They are under a compulsory treatment order
o Assessment order o Temporary
treatment order
o Treatment order
• Their nominated person can then consent
Children/minors
• Legal guardians, usually parents
• Gillik opoet UK 1
o A minor is competent to consent to treatment is he/she is capable of
understanding what is involved in a proposed treatment or procedure
o This does not correspond to the right to refuse life-saving treatment
• Maios ase Aus. 1990)
o A minor is capable of giving consent when he/she achieves a sufficient understanding and intelligence to
enable him/her to fully understand what is proposed
Learning Objective 2: Describe the intentions and purpose of mental health legislation and identify the criteria to
commence compulsory treatment/admission into hospital for a mentally ill person
Mental Health Act 2014 (VIC)
Intention: To esue the pesos ights ae alaed ith the eed to poide ae
Purpose:
(a) to provide a legislative scheme for the assessment of persons who appear to have mental illness and for the
treatment of persons with mental illness
(b) to provide for the appointment of the chief psychiatrist
(c) to establish the Mental Health Tribunal
(d) to establish the Mental Health Complaints Commissioner
(e) to continue the Victorian Institute of Forensic Mental Health
(f) to provide for the appointment and functions of community visitors
(g) to repeal the Mental Health Act 1986
(h) to amend the Sentencing Act 1991 and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
(i) to make consequential and statute law amendments to other Acts.
Mental illness: A diagosale illess that sigifiatly itefees ith a idiiduals ogitie, emotional or social
abilities. Chronic disruptions of the neural circuits of the brain
Compulsory treatment orders comprise:
▪ Assessment Orders (s.30)
▪ Temporary Treatment Orders (s.46)
▪ Treatment Orders (s.55)
Assessment order (s.30) → all four must be met
1. The person appears to have a mental illness
2. Due to the mental illness, the person requires medical treatment to prevent
a. Serious deterioration in the persons mental or physical health; or
b. Serious harm to the person or to another person
3. The person can be assessed
4. There is no less restrictive means available
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Document Summary
Nur1113 law, ethics and an introduction to leadership in nursing and midwifery. Learning objective 1: explain the legal concept of consent for competent, incompetent, and mentally ill patients and children, within the context of healthcare. Informed consent the patient has been adequately informed about the broad nature of the procedure and materials risks and has the capacity to understand these. Implied consent when a patient, by their actions (not words) implies that they consent to their procedure. E. g. , a patient sticks out their arm to have their bp assessed. Requirements for valid consent: consent must be voluntary not be subject to duress, coercion, drugs, or psychosis, consent must cover the procedure proposed, patients (cid:271)e gi(cid:448)e(cid:374) ade(cid:395)uate i(cid:374)fo(cid:396)(cid:373)atio(cid:374) to allo(cid:449) a de(cid:272)isio(cid:374) i. e. (cid:858)i(cid:374)fo(cid:396)(cid:373)ed (cid:272)o(cid:374)se(cid:374)t(cid:859), The patie(cid:374)t (cid:373)ust ha(cid:448)e legal (cid:272)apa(cid:272)ity i. e. (cid:858)sou(cid:374)d (cid:373)i(cid:374)d(cid:859) & of legal age > 1(cid:1012) yea(cid:396)s age of (cid:373)atu(cid:396)ity a(cid:272)t 1(cid:1013)(cid:1011)(cid:1011) (cid:894)vi(cid:272) Exceptions: emergencies doctrine of necessity marshall v curry [1933]
