The requirements for consent to treatment are contained in the Consent to Medical Treatment and Palliative Care Act 1995 (SA). The rights of people with a mental incapacity are governed by the Guardianship and Administration Act 1993 (SA), see GUARDIANSHIP AND ADMINISTRATION.
In addition to this legislation there is also the Australian Charter of Health Care Rights. Although not legally enforceable it generally reflects common law standards. A Charter of Health and Community Services Rights exists for South Australia under the Health and Community Services Complaints Act 2004 (SA). The private hospital sector has their own rights and responsibilities document.
The charters of rights under the Aged Care Act 1997 (Cth) must be complied with. The Charter of care recipients’ rights and responsibilities—residential care and the Charter of care recipients’ rights and responsibilities—home care apply to people in receipt of Australian Government funded packages under the Aged Care Act 1997 (Cth). The charters are schedules 1 and 2 of the User Rights Principles 2014, which is subordinate legislation made under the Aged Care Act 1997.
Generally speaking, a patient has three main rights:
- the right to decide whether or not to undergo medical treatment, after receiving a reasonable explanation of what the treatment involves and the risks associated with the treatment
- the right to be treated with reasonable care and skill by a health care provider
- the right to confidentiality of information about medical conditions and treatment.
Precisely what these rights mean will vary with the circumstances. If a patient considers his or her rights have been ignored or interfered with by a health professional, then the patient may complain to that provider's professional body, the Commissioner for Health and Community Services Complaints, as well as, or instead of, using other legal remedies, see Complaints against health and community services.
A common complaint is that a health professional has not provided full explanations, for example, of what a particular medical treatment involves, or why a patient is continuing to experience problems or make a slow recovery. If a patient is concerned about any aspect of their treatment, then he or she should make every attempt to discuss the problem with the health professional who has provided the treatment. If the patient still feels concerned after speaking to the health professional, or, after repeated attempts, has been unable to speak to the health professional, then the patient can complain to the relevant professional body. In some cases, problems may be resolved by seeing a new health professional who is prepared to provide a reasonable amount of information about the treatment received. In other situations, it may be necessary to obtain a health professional's case notes or hospital records. If any doubts remain, a patient should not be reluctant to seek legal advice - it is a right to receive a reasonable explanation of medical treatment.
Summary of rights and responsibilities
Patients' main rights
The consumer of health services has the right to:
- decide whether or not to undergo medical treatment after receiving a reasonable and timely explanation of what the treatment involves and the risks associated with the treatment
- be treated with reasonable care and skill by the health care provider
- have medical information and treatment kept confidential.
The consumer of health services also has the right to:
- access health services appropriate to their needs
- withdraw consent at any time
- refuse experimental or research treatment
- obtain a second opinion
- leave a hospital at any time (except in the cases of infectious diseases or certain psychiatric conditions) - if the patient leaves without the hospital's consent the patient may be responsible for any injury or illness caused or aggravated by this action.
- be treated with care, consideration and dignity, and without discrimination
- be fully informed of the costs of any medical procedure proposed, including any further costs associated with rehabilitation.
- request medical files from the doctor or hospital (public hospital records can be accessed under the Freedom of Information Act 1991 (SA), and some records held by private doctors or hospitals can be accessed under the Privacy Act 1988 (Cth), see Obtaining Medical Records
- obtain legal advice about any matter arising from the treatment (at the patient's own cost)
- contact friends, relatives, solicitors, members of the clergy and so on for support and to discuss problems
- exercise any of these rights on behalf of a child or ward if he or she is the parent or guardian
- ask to stay with a child at all times except where separation is necessary for medical reasons
- inform nursing staff if he or she does not want to see, or speak to, a visitor or caller
- complain about their treatment and have their complaint dealt with appropriately.
Consumers of health services have a responsibility to:
- know and disclose their own medical history including medications taken
- keep appointments or advise those concerned if they are unable to do so
- inform the doctor if they are receiving treatment from another health professional
- pay for any services and products received as a private patient (unless private health insurance covers them)
- conduct themselves in a manner which will not interfere with the well being or rights of other patients or staff.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.