By Emily Hart, Associate, Medical Law Department, Melbourne
Generally, doctors and health practitioners must obtain consent before they can provide medical treatment.
The exception to the need to obtain consent is in a situation where there is a medical or dental emergency - meaning the treatment is required to prevent death, serious damage to the patient's health, or significant pain or distress. In addition, if the proposed medical treatment is "minor" consent is not required. Minor treatment is not defined in the Victorian legislation, and must be assessed on a case-by-case basis.
The basis for a medical practitioner to provide medical treatment in an emergency, without consent, is set out in the Guardian and Administration Act 1986 (Vic), and in similar legislation around the country, which is based on a more general common law proposition that emergency treatment can be provided without consent.
Understandably, in situations where the provision of medical treatment is time sensitive, or where a patient is unconscious or unable to provide information as to their guardian or next of kin, it may be inappropriate or impossible to take the time to locate an appropriate person to provide consent.
However, the reality is that in emergency situations - particularly involving paramedics and emergency department staff - there is an incredible variation in presentation of patients, and the line in relation to informed consent can become quite blurred.
So what guidelines does the law provide in relation to the need for, or the decision not to obtain, informed consent in emergency situations?
Some general guidelines around patient consent are found in the leading English case Re C (Adult Refusal of Medical Treatment)  1 WLR 290 says that a person is considered to be able to consent if they can:
- comprehend and retain treatment information
- believe the information, and
- weigh it amongst other factors to reach a decision about their medical treatment.
Therefore in an emergency situation, a medical practitioner must balance these general considerations with any time pressure resulting from the emergency, before deciding to undertake the proposed treatment.
Ultimately however, if treatment is provided in good faith in an emergency situation, it is likely a medical practitioner would be entitled to rely on the defence of competent professional practice. Legally, the test would be whether a significant number of medical practitioners in the field, in the circumstances, would accept the treatment as competent medical practice.
Practically speaking this defence may be little comfort for an injured patient, who is questioning the medical treatment provided to them. Research from the United States has suggested that very few emergency department patients were fully aware that the need for consent could be waived in emergency situations, and that community education is key in ensuring more positive experiences for health consumers.