NRSG258: WEEK 1: Legal issues related to surgery and
documentation || QUESTIONS WITH COMPLETE
SOLUTIONS!!
Elements of a valid consent correct answers - Consent must be obtained when health
professionals touch patients & doctor performing procedure must obtain consent from patient
Essential elements of a valid consent:
- Voluntary
- Specific
- Informed
- Legal capacity
NB: All health professionals/secretaries may witness the signing of a consent form by a
patient BUT
nurses on the wards are discouraged from witnessing documents
In hospitals usually the registrar/surgeon obtains consent
Withdrawal of consent correct answers - Consent can be withdrawn at any time if the patient
has legal capacity
- Patient can refuse to continue with a procedure even if it means physical injury or death
- The law about consent involves understanding & comprehension
Legal capacity correct answers - An adult of sound mind is said to have capacity or to be
legally competent
- Adult is >18yrs of age
- Other people may be able to consent on the patient's behalf if the person is unable e.g.
doctor, next of kin, carer, enduring (medical) power of attorney
- The patient has an Advance Care Directive
- Legal document outlines the care they wish to receive if they no longer have the capacity to
make their own decisions
- Cannot be over-ruled by staff or relatives
- Contravening an ACD could result in criminal charges
Exceptions to legal capacity correct answers The person is:
- Unconscious; Common Law will deem a consent for the treatment given, if the treatment
was necessary, reasonable and given in good faith
- Has an intellectual disability (e.g. dementia, brain injury); Can consent if there is
understanding of the issue (x-ray etc.)
If the procedure is complex - may need a substitute decision maker
Common Law will deem a consent for the treatment given, if treatment was necessary,
reasonable, given in good faith
- Threshold Test of Capacity - understand the nature, effect & treatment, voluntarily given, of
own free will, and can communicate the decision to another.
- An emergency
- A child
Age of consent may differ between states and territories
Emergency treatment correct answers - In an emergency where the patient is unable to
consent the health professional may initiate treatment under the common law 'doctrine of
emergency' also known as 'doctrine of necessity'
, - Emergency is not defined in common law but is accepted to be 'treatment to save life' or
'prevent serious injury or death' & is the same for adults or children where parents cannot be
contacted
- 'Where a patient is unconscious or is incapable of consenting the common law will deem a
consent for the treatment given provided that it was necessary, reasonable and given in good
faith'. (Forrester & Griffiths 2015 p 158)
Age of consent (NSW) & non-emergency treatment correct answers - Minimum age for
consent for a medical treatment in NSW is 14
- They must understand and appreciate the nature and consequences of the
procedure/treatment.
- Good idea to gain parents' consent with consent of 14yr old person
- Under the age of 14 consent of a parent or guardian is necessary
- NB: Ages may differ between states so use your state's policies for rules about age and
consent
Age of consent (VIC) correct answers - Person generally considered to have full legal
capacity over the age of 18 years
- HOWEVER Common Law in Victoria incorporates:
Gillick Competency;
If a child is of an age & intelligence where they can understand & comprehend the
consequence of their decision -> they are legally competent to consent.
Non-emergency treatment (VIC) correct answers - Children under 18years can consent if it is
deemed they are competent to consent.
- The individual must understand and appreciate the nature and consequences of the
procedure/treatment.
-Good idea for practitioners to obtain consent from parent or guardian (unless the patient
objects).
-There have been cases where a minor's refusal of treatment has been overridden by the High
Court
Age of consent (QLD) correct answers - Anyone under the age of 18 is considered a 'minor'.
- When a child or young person under the age of 18 does not have capacity to consent,
consent is obtained from a parent or a person with parental responsibility, except in specific
circumstances.
- Children and young persons under the age of 18 are able to consent to healthcare where they
have sufficient capacity to do so.
- Presumed to not have capacity to give their own consent, unless there is sufficient evidence
they have such capacity (refer Gillick's competency).
- Generally a minor (less than 18 years) requires consent form a parent or guardian before
treatment (unless it is an emergency)
Consent issues correct answers - A consenting person (as per state policy) cannot make a
claim against the medical practitioner for assault or battery
- If parent or guardian consents for a minor, the minor cannot make a claim against the
medical practitioner
- Assault - to cause fear of injury in another person
e.g. threaten to medicate a patient if they do not cooperate
documentation || QUESTIONS WITH COMPLETE
SOLUTIONS!!
Elements of a valid consent correct answers - Consent must be obtained when health
professionals touch patients & doctor performing procedure must obtain consent from patient
Essential elements of a valid consent:
- Voluntary
- Specific
- Informed
- Legal capacity
NB: All health professionals/secretaries may witness the signing of a consent form by a
patient BUT
nurses on the wards are discouraged from witnessing documents
In hospitals usually the registrar/surgeon obtains consent
Withdrawal of consent correct answers - Consent can be withdrawn at any time if the patient
has legal capacity
- Patient can refuse to continue with a procedure even if it means physical injury or death
- The law about consent involves understanding & comprehension
Legal capacity correct answers - An adult of sound mind is said to have capacity or to be
legally competent
- Adult is >18yrs of age
- Other people may be able to consent on the patient's behalf if the person is unable e.g.
doctor, next of kin, carer, enduring (medical) power of attorney
- The patient has an Advance Care Directive
- Legal document outlines the care they wish to receive if they no longer have the capacity to
make their own decisions
- Cannot be over-ruled by staff or relatives
- Contravening an ACD could result in criminal charges
Exceptions to legal capacity correct answers The person is:
- Unconscious; Common Law will deem a consent for the treatment given, if the treatment
was necessary, reasonable and given in good faith
- Has an intellectual disability (e.g. dementia, brain injury); Can consent if there is
understanding of the issue (x-ray etc.)
If the procedure is complex - may need a substitute decision maker
Common Law will deem a consent for the treatment given, if treatment was necessary,
reasonable, given in good faith
- Threshold Test of Capacity - understand the nature, effect & treatment, voluntarily given, of
own free will, and can communicate the decision to another.
- An emergency
- A child
Age of consent may differ between states and territories
Emergency treatment correct answers - In an emergency where the patient is unable to
consent the health professional may initiate treatment under the common law 'doctrine of
emergency' also known as 'doctrine of necessity'
, - Emergency is not defined in common law but is accepted to be 'treatment to save life' or
'prevent serious injury or death' & is the same for adults or children where parents cannot be
contacted
- 'Where a patient is unconscious or is incapable of consenting the common law will deem a
consent for the treatment given provided that it was necessary, reasonable and given in good
faith'. (Forrester & Griffiths 2015 p 158)
Age of consent (NSW) & non-emergency treatment correct answers - Minimum age for
consent for a medical treatment in NSW is 14
- They must understand and appreciate the nature and consequences of the
procedure/treatment.
- Good idea to gain parents' consent with consent of 14yr old person
- Under the age of 14 consent of a parent or guardian is necessary
- NB: Ages may differ between states so use your state's policies for rules about age and
consent
Age of consent (VIC) correct answers - Person generally considered to have full legal
capacity over the age of 18 years
- HOWEVER Common Law in Victoria incorporates:
Gillick Competency;
If a child is of an age & intelligence where they can understand & comprehend the
consequence of their decision -> they are legally competent to consent.
Non-emergency treatment (VIC) correct answers - Children under 18years can consent if it is
deemed they are competent to consent.
- The individual must understand and appreciate the nature and consequences of the
procedure/treatment.
-Good idea for practitioners to obtain consent from parent or guardian (unless the patient
objects).
-There have been cases where a minor's refusal of treatment has been overridden by the High
Court
Age of consent (QLD) correct answers - Anyone under the age of 18 is considered a 'minor'.
- When a child or young person under the age of 18 does not have capacity to consent,
consent is obtained from a parent or a person with parental responsibility, except in specific
circumstances.
- Children and young persons under the age of 18 are able to consent to healthcare where they
have sufficient capacity to do so.
- Presumed to not have capacity to give their own consent, unless there is sufficient evidence
they have such capacity (refer Gillick's competency).
- Generally a minor (less than 18 years) requires consent form a parent or guardian before
treatment (unless it is an emergency)
Consent issues correct answers - A consenting person (as per state policy) cannot make a
claim against the medical practitioner for assault or battery
- If parent or guardian consents for a minor, the minor cannot make a claim against the
medical practitioner
- Assault - to cause fear of injury in another person
e.g. threaten to medicate a patient if they do not cooperate
