People over 16 years of age
Emergency medical or dental treatment can be given to a person over 16 years of age who has not given consent where:
- the patient is incapable of consenting (whether or not the person has impaired decision-making capacity)
- the medical practitioner who is to administer the treatment believes it is necessary to meet an immediate risk to the patient's life or health
- a second medical practitioner who has personally examined the patient gives a written opinion agreeing with the first medical practitioner unless it is not reasonably practicable to do so
- the patient (if of or over 16 years of age) has not, to the best of the medical practitioner's knowledge, refused to consent to the treatment, and
- the medical practitioner who is to administer the treatment has made reasonable inquiries to ascertain whether the patient (if of or over 18 years of age) has given an advance care directive, unless it is not reasonable practicable to do so
Can a medical pracitioner perform treatment despite a binding refusal in an advance care directive?
Yes, if the first three dot points above are satisfied AND the medical practitioner who is to administer the treatment "reasonably believes":
- that the provision of the advance care directive is not intended to apply to treatment of the kind proposed or in the circumstances in which it is to be performed and
- it is not reasonably practicable to have the matter dealth with under Part 7 of the Advance Care Directives Act 2013 (SA) [s 13(1a)], see Disputes about advance care directives.
However, if a substitute decision-maker, guardian or person responsible is "reasonably available" (in that order, see When someone 16 or over can't consent), then the medical practitioner should not administer the treatment without their consent [ss 13(3)-(4a)].
People under 16 years of age
For emergency treatment on a child under 16 years age where consent cannot be obtained from the child, parental consent must always be sought. If a parent or guardian is unavailable, treatment may proceed if it is essential to the child's health and well being and a second doctor who has examined the child before treatment gives written support. Treatment may also proceed despite a parent or guardian's refusal to consent, if treatment is in the best interests of the child's health and well-being.
The Consent to Medical Treatment and Palliative Care Act 1995 (SA) does not prevent a claim being made against a health professional who performs the emergency medical or dental treatment negligently [s 8(1)(b)(ii)]. The common law still requires the health professional to take reasonable care in performing emergency medical or dental treatment.
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