When someone can't consent

Emergency medical or dental treatment

People aged 16 years and over can consent to their own medical treatment [Consent to Medical Treatment and Palliative Care Act 1995 , s6].

An exception to this is when a person is legally incapacitated. Incapacity can be due to a wide range of reasons, including stroke or injuries from a car accident. (See also Mental Incapacity.)

Where a person has mental incapacity and is unable to consent to treatment, under the Guardianship and Administration Act 1993 an appointed medical agent may consent to treatment.

If there is no agent, or the agent is unavailable or unwilling to act, an appointed guardian can consent on the person's behalf. A guardian may be appointed by an enduring power of guardianship form, or by the Guardianship Board .

If no guardian has been appointed, a relative can consent. Under the Guardianship and Administration Act 1993, a relative is defined as a spouse; domestic partner (de facto partner, same-sex partner or companion); a parent; a person acting in loco parentis of a child aged under 18; for adults aged over 18, a person who is charged with overseeing their ongoing day-to-day supervision, care and wellbeing; and a sibling or child of 18 years or older. There is no order of priority among relatives.

If there is no relative available or willing to act, or if there is disagreement among relatives, the Guardianship Board can appoint a guardian, give consent for treatment itself, or authorise the Public Advocate to make decisions for the person (SEE GUARDIANSHIP AND ADMINISTRATION ).

Some types of treatment, such as termination of pregnancy, sterilisation and prescribed psychiatric treatment, can only be approved by the Guardianship Board.

While still mentally capable, a person over the age of 18 years may prepare for any future incapacity in several ways:

complete an 'anticipatory direction' form saying what type of treatment they do (or do not) want if in the terminal phase of an illness or in a persistent vegetative state s7. Forms are available from the Office of the Public Advocate and can also be found in Schedule 1 to the Consent to Medical Treatment and Palliative Care Regulations 2004 (SA). Guidelines to assist in determining a person's competence to make advance directives are available from the Office of the Public Advocate.
make a 'Medical Power of Attorney' appointing an agent to make decisions about medical treatment if they are incapable of making decisions on their own behalf s 8. Forms are available from the Office of the Public Advocate and can also be found in Schedule 1 to the Consent to Medical Treatment and Palliative Care Regulations 2004 (SA). If a person has previously completed an 'anticipatory direction' an agent must not act inconsistently with that direction.
appoint an Enduring Guardian to look after a person's interests if she or he becomes mentally incapacitated. A guardian can make decisions about the lifestyle a person leads and about medical treatment. Where both an enduring guardian and medical power of attorney have been appointed and cannot agree on treatment, the medical power of attorney may overrule the Enduring Guardian, see ENDURING POWER OF GUARDIANSHIP.

For guidance on completing Medical Powers of Attorney and Anticipatory Directions the South Australian Department of Health website contains helpful information at http://www.dh.sa.gov.au/consent/.