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Capacity / Substitute Decision Makers / Consent

This document is to help you in the ED when dealing with patients who have lost some or all of their decision making capacity, for example in advanced dementia. Who then becomes the substitute decision maker for these patients? Under what circumstanced do you actually need to obtain consent? These recommendations are specific for NSW, other states may have different laws.


  • Person Responsible – can consent for treatment on behalf of patient. See below for the hierarchy of the ‘person responsible’
  • Power of Attorney – can make financial decisions. Comes into play as soon as the form is signed
  • Enduring Guardian – can make lifestyle/medical decisions. Only comes into play when person themselves unable to consent
  • Next of Kin – closest living relative. No legal standing in NSW
  • Advanced Care Directive – legal document if written by the person while they were of sound mind (should be documented that this is the case)
  • Advanced Care Plan – not legal. Usually written by someone like a close relative on behalf of the person who has lost capacity


  • The ability to use and understand information to make a decision, and communicate any decision made
  • Cannot be extrapolated from one decision to another
  • Different complexities of problems require different levels of cognitive function
  • Decision making capacity can fluctuate

Person Responsible Hierarchy

If a patient cannot consent to their own treatment then the practitioner should seek consent from the patient’s ‘person responsible

  1. An appointed guardian
  2. Most recent spouse/de facto/same sex partner who person has close and continuing relationship with the patient
  3. Unpaid carer who is providing support to person
  4. Relative/friend/neighbour who has a close personal relationship with the person

When you don't need consent

Urgent treatment - treatment considered necessary to:

  • Save a patient’s life
  • Prevent serious damage to health eg sedation in agitated
  • Prevent or alleviate significant pain or distress eg hip fracture

Minor Treatment:

  • Treatment involving general/sedation for management of fractured/dislocated limbs, endoscopes inserted through an orifice not penetrating skin or mucous membrane
  • Medications that affect CNS used for analgesia, antiparkinsonian, anticonvulsant only used once or <3xmonth
  • You may treat without consent if patient not objecting and person responsible not available. Must document in notes treatment is necessary to promote patients health and well-being and patient not objecting

When you do need consent

Major Treatment

  • Medical or dental treatment involving general/sedation (except listed as minor)
  • Medications affecting CNS eg benzos, antipsychotics – first dose is OK but after that should get consent – actually criminal offence not to but rarely done
  • If no person responsible then need NSW Civil and Administrative Tribunal Consent

Special Treatment

  • Androgen-reducing medications for behaviour control
  • Termination pregnancy
  • Sterilisation
  • Only NSW Civil and Administrative Tribunal can consent

End of Life Decisions - NSW Health Policy

  • A medical practitioner does not need to obtain agreement from the patient or family to withhold interventions considered to be of negligible benefit
    • but it is still good clinical practice to discuss why these are not being offered in the context of broader end of life goals of care conversation
  • If consent it not sought, the reasons why should be documented in the patient record.

Further References and Resources

  1. Capacity Australia – supporting decision making
  2. NSW Civil and Administrative Tribunal (NCAT) – Guardianship division
  3. NSW Health - Guidelines for end of life care and decision making

Written by Dr Nadia Bowman, reviewed by Dr Guru Nagaraj, as part of the ACEM Geriatric Special Skills Term at Hornsby Hospital.

© Agency for Clinical Innovation 2023