Consent to Medical and Dental Treatment Act 1985 (SA)

(Reprint Yo. 1)

SOUTH AUSTRALIA

CONSENT TO MEDICAL AND DENTAL PROCEDURES ACT, 1985

This Act is reprinted pursuant to the Acts Republication Act. 1967, and incorporares

all amendments in force as at 1 July 1991.

It should be noted that the Act was not revised ifor obsolete references, etc.) by rhe

Commissioner of Statute Revision prior to the publication of this reprint.

I I Consent to Medical and Dental Procedures Act, 1985

SUMMARY OF PROVISIONS

Section

I

Short title

2.

Commencement

3.

Repeal of Emergency Ltedicai Treatment of Children Act. 1960

4.

interpretation

5.

Appl~carion and effect of Act

Consent in relation to procedures carried out on minors

Emergency medical procedures carried our on persons unable to consent

8.

Protection from criminal or civil liability in respect to procedures carried out wtrh consent

CONSENT TO MEDICAL AND DENTAL PROCEDURES ACT, 1985

being

Consent to \.iedical and Dental Procedures Act. 1985. Yo. I4 of 1985 [Assented to I 4 March IVXSJ'

3s amended by

Statutes Amendment (Consent to Lledicai and Dental Procedures and Mental Health) Act. 1988. No, 47 of 1988

[Assented to 5 May 19881

.An Act to provide for consent to medical and dental procedures; to repeal the Emergency

Medical Treatment of Children Act, 1960; and for other purposes.

BE IT ENACTED by the Governor of the State of South Australia, with the advice and

consent of the Parliament thereof, as follows:

Short title

1. This Act may be cited as the Consent to iMedical and Dental Procedllres Act. 1985.

Commencement

2. (1) This Act shall come into operation on a day to be fixed by proclamation.

(2) The Governor may, in a proclamation fixing a day for this Act to come into operation, suspend the operation of any specified provisions of this Act until a subsequent day fixed in the proclamation or a day to be fixed by subsequent proclamation.

Repeal of Emergency Medical Treatment of Children Act, 1960

3. The Emergency Medical Treatment of Children Act, 1960, is repealed.

Interpretation

4.  In this Act, unless the contrary intention appears -

"consent", in relation to the carrying out of a medical procedure or a dental procedure, means an informed consent given after proper and sufficient explanation of the nature and likely consequences of the procedure:

"dental procedure" means any procedure carried out by, or pursuant to directions

given by, a dentist in the course of practice as a dentist:

"dentist" means a person who is registered on the general register or specialist

register under the Dentists Act, 1984:

'came into operation I May 19gl: Gaz. 30 April 1987, p. 1115.

7

b Consent to Medical and Dental Procedures Act. 1985

"medical practitioner" means a person who is registered on the general register

under the .Me:iical Practitioners Act. 1983:

"medical procedure" means any procedure carried out by, or pursuant to directions given by. a medical practitioner in the course of practice as a medical practitioner:

"rn~nor" means a person who 1s less than e~ghteen years of age: r

"parent", in relation to a minor. includes a guardian of the minor or a person \

acting in loco pnrentis in relation to the minor.

.Application and effect of Act

5. (1) This Act, other than section 8. does not apply in relation to a person who is by

reason of mental illness or mental handicap incapable of giving an effective consent.

(2) This Act does not affect the operation of-

i n ) the Transplantation and Anatomy Act, 1983:	(:
( b ) the Natural Death Act. 1983:
or
l c ) any other enactment that relates to the giving, refusal or absence of consent in

relation to the carrying out of a medical procedure or dental procedure.

Consent in relation to procedures carried out on minors

6. (1) The consent or the refusal or absence of consent of a minor who is of or above the age of sixteen years in respect of a medical procedure or dental procedure to be carried out on the minor or any other person has the same effect for all purposes as if the minor were of full age.

(2) The consent of a minor who is less than sixteen years of age in respect of a medical procedure or dental procedure to be carried out on the minor has the same effect for all purposes as if the minor were of full age where, in the opinion of a medical practitioner or a dentist supported by the written opinion of one other medical practitioner or dentist, as the case may be-

f a ) the minor is capable of understanding the nature and consequences of the

procedure;

and ( b ) the procedure is in the best interests of the health and well-being of the minor. ( /

(3) The requirement under subsection (2) that the opinion of the medical practi- tioner or dentist be supported by the opinion of another medical practitioner or dentist does not apply in any circumstances where it is not reasonably practicable to obtain such an opinion having regard to the imminence of risk to the minor's life or health.

(4) The consent of a parent of a minor who is less than sixteen years of age in respect of a medical procedure or dental procedure to be carried out on the minor shall be deemed to be a consent given by the minor and to have the same effect for all purposes as if the minor were of full age.

(5) Where a medical procedure or dental procedure is carried out in prescribed circumstances by a medical practitioner or a dentist on a minor who is less than sixteen years of age, the minor shall be deemed to have consented to the carrying out of the procedure and the consent shall be deemed to have the same effect for all purposes as if the minor were of full age. (

Consent to kfedical and Dental Procedures Act, 1985 3

(6) Prescribed circumstances exist for the purposes of subsection ( 5 ) i f -

( a ) the minor is incapable for any reason of giving an effective consent to the

carrying out of the medical procedure or dental procedure:

i b ) no parent of the minor is reasonably available in the circumstances, or, being

available, the parent, having been requested to consent to the carrying out

of the procedure. has failed or refused to do so:

( c ) the medical practitioner or dentist carrving out the procedure is of the opinion

that the procedure is necessary to meet imminent risk to the minor's life or

health;

and

( d l unless i t is not reasonably practicable to do so having regard to the imminence of the risk to the minor's life or health, the opinion of the medical practitioner or dentist referred to in paragraph ( c ) is supported by the written opinion of one other medical practitioner or dentist.

Emergency medical procedures carried out on persons unable to consent

7. (1) Where a medical procedure or dental procedure is carried out by a medical practitioner or a dentist on a person who is of or above the age of sixteen years without the consent of that person, the person shall, if prescribed circumstances exist, be deemed to have consented to the carrying out of the procedure.

(2) Prescribed circumstances exist for the purposes of subsection (1) i f -

fa ) the person is incapable for any reason of giving an effective consent to the

carrying out of the medical procedure or dental procedure:

lb) the medical practitioner or dentist carrying out the procedure-

(i) is of the opinion that the procedure is necessary to meet imminent

risk to the person's life or health:

and

(ii) has no knowledge of any refusal on the part of the person to consent to the procedure, being a refusal communicated by that person to him or some other medical practitioner or dentist:

and

(c) unless it is not reasonably practicable to d o so having regard to the imminence	of the risk to the person's life or health, the opinion of the medical	practitioner or dentist referred to in paragraph (b)(i) is supported by the
written opinion of one other medical practitioner or dentist.

Protection from criminal o r civil liability in respect to procedures carried out with consent

8. (1) Notwithstanding any rule of the common law, but subject to the provisions of any enactment-

(a) the consent of a person to the carrying out of a medical procedure or dental procedure on him is effective whatever the nature of the procedure provided that the procedure is reasonably appropriate in the circumstances having regard to prevailing medical or dental standards;

-1 Consent to Medical and Dental Procedures Act, 1985

ib) no criminal or civil liabilitv shall be incurred in respect of the carrying out of

a medical procedure or dental procedure on a person with his consent if-

( i ) the procedure is reasonably appropriate in the circumstances having

regard to prevailing medical or dental standards:

and

(ii) the procedure is carried out in good faith and without negligence.

(2) In subsection (1)-

"consent" oE a person means a consent as defined in section 4 given or deemed

under this Act or any other Act to be given by a person where-

la1 the person is of full age and is otherwise capable of giving an effective

consent:

f b ) the consent is deemed to have the same effect as if the person were of

full age or were capable of giving an effective consent.

Consent to Medical and Dental Procedures Act, 1985 5

APPENDIX

Legislative History

Section b(5i:	m e n d e d by 47. 1988, s. ?(a). (b)
Section bt6):	m e n d e d by 47. 1988, s. ?fc). (d)
Section '( i):	amended by 47. 1988.5. )(a). (b)
Section :(Z):	amended by 47, 1988,s. Xc). (d)