Before treating a competent victim of illness or accident, a rescuer must obtain their consent, otherwise the treatment potentially constitutes ‘medical trespass’ (assault) and the victim could recover damages without requirement of proof of injury, causation or negligence. If the victim has impaired decision-making capacity the consent of a substitute decision-maker should be obtained whenever possible.
Every competent adult and the parents or guardians of minors have the over-whelming right of autonomy and self-determination. A person has impaired decision-making capacity (incompetent) if they are not capable of understanding, retaining, using, or communicating any information relevant to making a healthcare decision. If the person has an advanced care directive, they are deemed to lack decision-making capacity when they satisfy any requirement in the directive that specifies when that incapacity exists.
Adults are assumed to be competent unless they have impaired decision-making capacity. Children are regarded as having impaired decision-making capacity until the age of 18. However, most states permit younger persons to make decisions if they can understand the issues involved. In the case of infants and other children who are not capable of understanding the issues, refusal to receive treatment can be difficult to interpret. In general, it is the parent/guardian who should decide whether the advantages outweigh the burden of any distress caused by treatment. In the absence of a parent/guardian rescuers should regard children as having impaired decision-making capacity.
Treatment without Consent
Although treatment normally requires consent, an injured or ill person should not be deprived of treatment merely because they lack decision-making capacity. The key legal factors which determine whether treatment can be given without consent are whether the victim has or has not decision-making capacity; whether an advance care directive exists; the degree of urgency of the situation and whether a substitute decision-maker is present, willing, and able to consent.
If the victim is unable to give consent and no substitute decision maker is present, the legal requirement to obtain consent before assistance or treatment is waived under Common Law and Statute law in several circumstances.
Any information provided to you or obtained in the treatment of a casualty is required to be kept confidential and only provided to authorised persons. Authorised persons can vary between States or Territories but may include Doctors, Paramedics, or the Police.