Healthcare rights and informed consent

Charter of rights

A healthcare service’s charter of rights describes the rights that consumers, or someone they care for, can expect when receiving health care. The healthcare service’s charter of rights should be consistent with the Australian Charter of Healthcare Rights (second edition), as illustrated in Figure 4.

In using a charter of rights, your healthcare service ensures that the seven healthcare rights described are upheld in the planning and delivery of health care. This includes informed consent, which is a person’s voluntary decision about their health care that is made with knowledge and understanding of the benefits and risks involved.

Figure 4: Australian Charter of Healthcare Rights (second edition)

Informed consent

Informed consent is a person’s decision, given voluntarily, to agree to a healthcare treatment, procedure or other intervention that is made: 

• Following the provision of accurate and relevant information about the healthcare intervention and alternative options available
• With adequate knowledge and understanding of the benefits and material risks of the proposed intervention relevant to the person who would be having the treatment, procedure or other intervention. 

For there to be valid informed consent, the person consenting must:

• Have the legal capacity to consent 
• Give their consent voluntarily 
• Give their consent to the specific treatment, procedure or other intervention being discussed 
• Have enough information about their condition and treatment options, the benefits and risks relevant to them, and alternative options for them to make an informed decision to consent. This includes the opportunity to ask questions and discuss concerns.

Links to Actions 2.03 Healthcare rights and informed consent

• Does your healthcare service use a charter of rights? Is it consistent with the Australian Charter of Healthcare Rights (second edition) in that it addresses access, safety, respect, partnership, information, privacy and feedback?
• How is this information about healthcare rights communicated to consumers?
• How do people who use your service know what their healthcare rights are?
• How does the workforce use the charter of rights in the delivery of health care?
• Does your informed consent policy comply with legislation and best practice?
• How does your healthcare service monitor compliance with informed consent processes?

Healthcare rights

• Adopt the Australian Charter of Healthcare Rights (second edition) (with or without amendments).
• Provide ready access to copies of the charter, in appropriate languages or formats, to all patients, and their carers and families. 
• Inform patients, carers, and families about the charter, and make sure that they can find it easily. 
• Support the workforce to apply the principles of the healthcare service’s charter in the planning and delivery of care. This includes 
• allocating responsibility for implementing and reviewing the charter to a manager with decision-making authority
• including information about the charter during orientation for new members of the workforce
• holding, or providing access to, regular education and training sessions for the workforce on their responsibilities for implementing the charter; this includes all members of the workforce, and, if relevant, volunteers
• building the charter into organisational processes, and staff codes of conduct
• documents that outline how the rights will be achieved.

Informed consent

Develop or adopt a process for informed consent by patients. This should include how the healthcare service:

• Informs patients (and, if applicable, their carers and substitute decision-makers) about the risks, benefits and alternatives of a treatment, including any fees and charges associated with treatment and referrals
• Determines patient preferences for treatment
• Documents patient consent to treatment
• Supports the healthcare providers workforce to meet legal and ethical requirements.

• The type and comprehensiveness of evidence used is dependent on each healthcare service context. The content and complexity of the policies and processes will likely depend on the size of the healthcare service, but could include:
• The healthcare service has adopted the Australian Charter of Healthcare Rights (second edition) in different languages and formats consistent with the community profile
• Charter of rights is displayed in areas that are accessible to the public
• Material showing that patients and carers received information about their healthcare rights
• Feedback from patients and consumers about awareness of the charter of rights
• Feedback from patients about the health care they receive that demonstrates the workforce is applying the charter of healthcare rights in the planning and delivery of care 
• Policy documents for informed consent that reference relevant legislation and best practice and consider issues, such as
  • circumstances where consent should be obtained and when it is not required 
  • circumstances in which verbal consent is acceptable and when written consent is required
  • requirements for consent to be valid
  • processes for when consent is not provided, or treatment is refused
  • obtaining consent from patients from culturally and linguistically diverse backgrounds
  • the age at which patients can provide consent and consent for minors
• Consent forms that are currently in use or documentation of the patient’s verbal consent where appropriate
• Audit results of patient healthcare records documenting informed consent
• Training documents on informed consent processes.

Commission resources

• Australian Charter of Healthcare Rights – Using the charter in your health service – outlines ways in which healthcare services can provide information about health rights and incorporate a charter in their systems. Resources to assist with the adoption of the Australian Charter of Healthcare Rights are available for download including versions translated to other languages.
• Australian Charter of Health Care Rights – LGBTQI+ – the LGBTQI+ version of the charter of rights can be used by health services to promote diversity and inclusion.
•  Informed consent – access fact sheets for healthcare providers and useful links. 

According to the legislation of every Australian jurisdiction, all adults are presumed to have the capacity to make decisions about their care. 

A policy on identifying substitute decision-makers is required for patients whose decision-making capacity is limited or fluctuates. Substitute decision-makers are involved in decisions about a patient’s care.

If a patient does not have the capacity to make decisions about their own care, a substitute decision-maker may be nominated. Examples of substitute decision-makers are a nominated carer, a health attorney or a person nominated under an enduring power of attorney or guardianship arrangement. 

A person has capacity to make a decision about their care if they can:

• Understand and retain the information needed to make a decision
• Use the information to make a judgement about the decision
• Communicate the decision in some way, including by speech, gestures or other means
• Decision-making capacity can be decision- and situation-specific.[i]

This means that a person’s capacity can vary at different times, in different circumstances and between different types of decisions. The healthcare service should identify patients who do not have the capacity to make decisions about their own care and should implement a system to identify: 

• Patients who do not have the capacity to make decisions about their own health care 
• Appropriate substitute decision-makers who can make decisions on behalf of the patient. 

• What processes are in place to support the workforce to identify a patient’s capacity to make decisions about their own care? 
• How are the workforce supported to identify and document a substitute decision-maker?

• Develop or adopt a policy or procedure for assessing the capacity of patients to make decisions about their own health care and identifying a substitute decision-maker where needed. It should
  • outline the identification process and requirements of the workforce assessing patients
  • outline the appointment process, where applicable 
  • comply with relevant state or territory legislation 
  • include a list of appropriate decision-makers that is consistent with relevant state and territory legislation and best-practice guidelines.
• The policy or procedure should be developed in consultation with the workforce responsible for assessing patient’s capacity to provide consent.
• The workforce must be trained in the healthcare service’s policies, procedures and protocols for assessing a person’s capacity to make decisions about their care and engaging substitute decision-makers.
• A periodic review of the policy/procedure should be scheduled, to consider the effectiveness and outcomes of the policy.

The type and comprehensiveness of evidence used is dependent on each healthcare service context, but could include: 

• Observation or documented examples of
  • identifying a patient’s capacity for making decisions about their care 
  • identifying a substitute decision-maker, if a patient does not have the capacity to make decisions about their care 
  • documenting substitute decision-makers such as next of kin, advocates, people with power of attorney and legal guardians
• Screening and assessment tools, or processes used to identify the patient’s capacity for decision-making 
• Audit results of patient healthcare records that identify the patient’s capacity to make decisions, and confirm the identity of the substitute decision-maker, if required 
• Audit results of patient healthcare records for compliance with policies, procedures or protocols for determining a patient’s capacity and determining a substitute decision-maker, if required 
• Information packages or links to resources about advocacy, power of attorney and legal guardianship that are available for consumers in different formats and languages, consistent with diversity of the patient population and local community.

Commission resources

The principles and strategies outlined in these resources are broadly applicable.

• NSQHS Standards User Guide for health service organisations providing care for patients with cognitive impairment or at risk of delirium – provides practical support for healthcare services where specific efforts or additional attention is required to meet the health needs of this patient population, based on the NSQHS Standards. 
• NSQHS Standards User Guide for health services providing care for people with mental health issues – provides practical support for healthcare services where specific efforts or additional attention is required to meet the health needs of this patient population, based on the NSQHS Standards. 

Other resource

• Capacity Australia: access to resources, tools and training for resources and tools available to assist the workforce assess and support a person’s capacity to make decisions.