Definitions

  • Consent – in general terms consent is a voluntary agreement to another’s proposition, it requires an actual willingness that an act or an infringement of an interest shall occur.
  • Express consent – is directly communicated by the spoken or written word.
  • Implied consent – is indirect from signs, actions, or facts or by the inaction or silence.
  • Informed consent – is an agreement to do something or allow something to happen only after all the relevant facts (risks and consequences) are disclosed.

Informed consent is concerned with the adequacy of information made available to the client, in terms of known risks and consequences or consequences and risks that ought to have been known.

Failure to provide reasonable information may result in breach of duty of care.

The legal elements of consent, particularly informed consent, are not fixed in legislation; instead they have been established by courts as part of common law.

The important elements of the law about consent for the purposes of this document are as follows:

  • the person who is giving consent must have the intellectual capacity and maturity to understand the situation they are consenting to, the choices that are available and the actual or likely consequences of their decision (ie likely risks and benefits).
  • this applies to all people, regardless of age and whether or not they have a disability.
  • in order for a person to provide informed consent, a person must be given appropriate and accurate information about the matter or procedure, and that information must be presented in such a way that a person can fully understand it.
  • any consent must be freely given and must not be obtained by force, threat, deception or undue influence.
  • a person may be able to make decisions and give informed consent in some areas of their life but not in others depending on their skills and experience.

Medical or Dental Treatment

In the specific instance of medical or dental treatment, where a person with disability lacks the capacity to consent, a ‘person responsible’ can be assigned (under the Tasmanian Guardianship and Administration Act 1995) to consent to certain procedures and treatments.

To qualify as a ‘person responsible’ the individual must be a family member, close friend or unpaid carer of the person with disability and must maintain a close personal relationship through frequent personal contact.

The individual must have a personal interest in the welfare of the person with disability, (see Tasmanian Disability Services Act 2011 section 5).

A legally appointed guardian can also be the ‘person responsible’.

Under Tasmanian Guardianship and Administration Act 1995 section 3(1) the following definition of medical and dental treatment is provided:

a) medical treatment includes any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care, normally carried out by, or under the supervisions of, a medical practitioner.

b) dental treatment includes any dental procedure, operation or examination normally carried out by, or under the supervision of, a dentist.

The definitions do not include:

  • any non-intrusive examination made for diagnostic purposes, or
  • first aid medical or dental treatment
  • the administration of non-prescription drugs in accordance with recommended dosage levels or:
  • any treatment carried out by Allied Health Professionals.

For further information please contact the Disability Services Area Team.

Area North

Launceston Tasmania 7250
Telephone: 6777 1060
Email: disability.north@communities.tas.gov.au

Area North West

Burnie Tasmania 7320
Telephone: 6477 7609
Email: disability.northwest@communities.tas.gov.au

Area South East

New Town Tasmania 7009
Telephone: 6166 1127
Email: disability.south@dhhs.tas.gov.au

Area South West

New Town Tasmania 7009
Telephone: 6166 1127
Email: disability.south@communities.tas.gov.au