NSW Civil and Administrative Tribunal

Person Responsible fact sheet

This fact sheet explains who is a ‘person responsible’ and their role in consenting to medical or dental treatment when the patient cannot give consent. 

Consent to medical or dental treatment

Medical and dental practitioners must ask for permission before they can treat a patient. This is called giving consent. It means you understand what the treatment is, understand the risks and you agree to go ahead with the treatment.

The patient usually gives consent to their own treatment. If the patient is unable to do this, the patient’s ‘person responsible’ must give consent. This is required by the Guardianship Act 1987 (the Act).

The Act outlines the types of treatment and consent needed in different situations. 

Refer to the table below for a summary of the different types of treatment and the consent needed for each.

Who is the 'person responsible'?

A person responsible is a person who can give consent for treatment on behalf of the patient by law. This is not always the patient’s next of kin or carer.

The Act sets out the hierarchy of people who can be the person responsible in the following order.

  1. Guardian – An appointed guardian (or enduring guardian) with the right to consent to medical and dental treatment, or 
  2. Spouse or partner – If there is no guardian, a spouse, de-facto spouse or partner in a close continuing relationship, or 
  3. Carer – If there is no spouse or partner, an unpaid carer who provides or arranges in-home support, or
  4. Relative or friend – If there is no carer, a friend or relative with a close relationship and frequent contact. They must have a personal interest in the person’s welfare, on an unpaid basis.

The person next in the hierarchy may become the person responsible if:

  • A person responsible puts in writing they do not want to act in the role, or
  • A medical practitioner or qualified person certifies in writing that the personal responsible is unable to act in the role.

Rights and responsibilities of a ‘person responsible’

If you are the person responsible for someone, you must:

  • Understand what the proposed treatment is
  • Know what the risks and alternatives are
  • Decide whether to say ‘yes’ or ‘no’ to the treatment
  • Ask for a second opinion if needed

The practitioner must give you this information and seek your consent to the treatment before treating the patient.

Is there anything a ‘person responsible’ cannot do?

A person responsible cannot consent to:

  • Special medical treatments such as sterilisation operations, terminating a pregnancy, or experimental procedures
  • Any treatment the patient objects to.

Type

Treatment

Who can consent?

Urgent treatment

Treatment considered urgent and necessary to:

  • Save a patient’s life
  • Prevent serious damage to health
  • Prevent or alleviate significant pain or distress (not including special treatment)

No consent needed

Major treatment
  • Any treatment involving general anaesthetic or sedation (except as listed in minor below)
  • Medications affecting the central nervous system (except as listed in minor)
  • Drugs of addiction (except as listed in minor)
  • Long-acting injectable hormonal substances for contraception or menstrual regulation
  • Any treatment used for eliminating menstruation
  • Testing for HIV
  • Any treatment involving substantial risk to the patient
  • Any dental treatment resulting in the removal of all teeth or which significantly impairs chewing

Person responsible can consent.

Request and consent must be in writing or, if not practicable, later confirmed in writing.

Only NCAT can consent, if:

  • There is no person responsible, or
  • The person responsible cannot located, or
  • The person responsible will not or is unable to respond.

Minor treatment
  • All treatments (except those listed in major or special)
  • Treatment involving general aesthetic or sedation:
    •  for management of fractured or dislocated limbs
    • for endoscopes inserted through an orifice, not penetrating the skin or mucous membrane.
  • Medications affecting the central nervous system used:
    • for analgesic, antipyretic, antiparkinsonian, antihistaminic, antiemetic, antinauseant or anticonvulsant purposes
    • only once
    • for PRN (as required) not more than 3 times per month
    • for sedation in minor procedures (unless dental)

Person responsible can consent

The doctor or dentist may treat without consent, if:

  • there is no person responsible, or
  • the person responsible cannot, will not or is unable to consent.

The doctor or dentist must note on the patient’s record that the treatment is needed to promote their health and wellbeing and they are not objecting.

Special treatment
  • Use of medication affecting the central nervous system where dosage, duration or combination is outside accepted norms
  • Androgen-reducing medications for behavioural control
  • Termination of pregnancy
  • Treatments intended or likely to result in infertility
  • Vasectomy and tubal occlusion
  • Aversives: mechanical, chemical or physical
  • Any new treatment that has not yet gained the support of a substantial number of doctors or dentists specialising in the area

Only NCAT can consent

Objection to major or minor treatment

If the patient indicates, or has indicated in the past, that he or she does not want the treatment carried out.

Only NCAT can consent

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