Today’s question is a follow up to the question asked and answered in State of mind required for action under the Public Health Act 2005 (Qld) s 157B and EEAs (August 8, 2025). Today, the same correspondent is

… wondering about the level of capacity to refuse treatment.

Capacity is decision specific, and I am under the assumption that the capacity required from a patient decide to accept pain relief is much different to the capacity required to consent to major surgery for example.

Often times I have a patient with undifferentiated symptoms the consequences for which could range from benign self-limiting (cramp in chest wall muscles) to severe life limiting (heart attack).

I am wondering where consenting to, or refusing transport falls on that continuum for the undifferentiated patient.  My impression is that it would be on the lower end of the spectrum given that the concept that ambulances take people, to hospitals to see doctors and nurses that try to diagnose and treat them seems relatively simple.

Typically my spiel is something like:

“Pt was informed that prehospital assessment is brief and limited, that further testing and continued monitoring is required for definitive diagnosis or ruling out pathology and may involve blood tests, imaging, ongoing monitoring and assessment by a doctor/s.  The specific treatment pathway will be dependent on the diagnosis.  Benefits of ambulance transport include ongoing monitoring, intervention in case of acute deterioration.  Pt has been explained that potential risks include deterioration of condition, injury, disability or death. Alternatives include: self presenting to ED, attending GP practice/satellite hospital/virtual ED/another healthcare destination.  Risks of alternative treatment destinations/pathways include: … “

I try to be specific where I can be based on my confidence in the provisional diagnosis but this can be at time very vague.

Is there an argument to be made that patient is not fully informed until they have more diagnostic testing and a clearer diagnosis?

If a paramedic is not aware of the diagnostics required, the treatment pathway and the morbidity risk of a particular condition or symptom does that mean they themselves are not informed and thus cannot effectively inform the patient and cannot receive informed consent?

I feel in the case of getting consent for a major surgery there would be little argument the person obtaining the consent should be an expert in the field.

Are healthcare decisions treated equally? When I see a patient is under the public guardian for financial but not healthcare does that mean they would be assumed to be capable of becoming competent in the whole spectrum of health care decisions? And visa versa if they are under the public guardian for health does that mean they are assume to be unable to make even the simplest of health care decisions unless I can prove otherwise?

The problem we have here (here being Australia) is that we have a tendency to import ideas from America (and often American TV) that are not applicable.  As I understand American jurisprudence, the question of whether there is ‘informed consent’ goes to whether there is consent at all.  If a patient is not adequately informed then they did not give an effective consent and if there is a poor outcome they can seek a remedy for battery.  That is not the law in Australia.

In Rogers v Whitaker [1992] HCA 58 Mason CJ, Brennan, Dawson, Toohey and McHugh JJ, sitting in the High Court of Australia, said (at [15] references omitted).

In this context, nothing is to be gained by reiterating the expressions used in American authorities, such as “the patient’s right of self-determination” or even the oft-used and somewhat amorphous phrase “informed consent”. The right of self-determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure. Likewise, the phrase “informed consent” is apt to mislead as it suggests a test of the validity of a patient’s consent. Moreover, consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed…

So in Australia, the concept of ‘informed consent’ is relevant to an allegation of negligence. If the health practitioner fails to inform a patient of a risk inherent in the procedure, the risk arises, and the patient can show that if they had been informed they would not have consented to the procedure then they can sue for a remedy in negligence, not battery.

Consent is sufficient to avoid an allegation of battery is obtained when the patient has been ‘advised in broad terms of the nature of the procedure to be performed’ so that person consents to being given an injection, or having a bandage applied etc.  If they are not told of the risks, and the risks arise they would have to prove in an action for negligence that had they been informed of those risks they would not have consented.

With that background in mind, let us turn to a refusal of consent. First remember that ‘the patient is entitled to reject the advice for reasons which are rational, or irrational, or for no reason’. (Sidaway v Bethlem Royal Hospital [1985] AC 871; see also PBU & NJE v Mental Health Tribunal [2018] VSC 564, Malette v Shulman (1990) 67 DLR (4th) 321)).   Remember too that the test for competence is a functional test, it is whether the person has the capacity to understand what they are being told and apply that information to make a decision, not whether they have done so or have made a wise or sensible decision (PBU & NJE v Mental Health Tribunal [2018] VSC 564).

Where the patient refuses to let a paramedic touch them, it would be a battery if they did; and the paramedic cannot be under a legal duty to do that which he or she has no legal power to do eg in the absence of some other legal authority, administer treatment that the patient has refused (Stuart v Kirkland-Veenstra [2009] HCA 15). 

If the paramedics owe a duty of care to the patient (Kent v Griffiths [2001] QB 36) then the duty is to do what is reasonable and in the patient’s best interest.  It is not reasonable to touch a person who refuses to be touched but it may be reasonable to try and warn them of the risks of their decision – that is the issue of information goes to the question of negligence, not battery (Rogers v Whitaker; see also In Re T [1992] EWCA Civ 18, [35] (Donaldson MR)). It may be reasonable to try and inform the patient of the risks in refusing treatment particularly where those risks are, in the mind of the paramedic, real and not just a template ‘you can’t get a proper diagnosis except from a doctor’.  Specific advice based on the ‘provisional diagnosis’ is much more significant so it is much more important to warn a person if you really think, given their presentation, they are at immediate risk rather than just a truism that ‘a hospital can do more for you than I can’ particularly if you really think there is no much wrong with the person and they don’t really need to go to hospital (see No adverse comments regarding paramedics following death of a woman in Ballarat, Victoria (April 3, 2017) and Paramedics and recording honest advice (April 15, 2018).  But if the patient will not cooperate there is little you can do (see Assessing capacity when the patient won’t cooperate (August 24, 2018)).  The presumption is that everyone has capacity so if the patient wants to walk away and ignore you, they can.

The question of ‘informed refusal’ arises when the issue is whether a previous refusal continues to apply. In In Re T the patient had refused blood transfusions. At the time she had been advised that it was unlikely that they would be required and if there were issues, there were blood alternatives that could be used.  As the circumstances turned out the advice was wrong and she got to a point where she needed a blood transfusion or she would die.  The issue was whether she had intended her refusal to be a choice between blood or not blood, or between blood and death?  Staughton LJ said (at [58])

… an apparent consent or refusal of consent may not be a true consent or refusal is that it may not have been made with reference to the particular circumstances in which it turns out to be relevant. A patient who consents, even in the widest terms, to a dental operation under anaesthetic does not give a true consent to the amputation of a leg. Nor does a patient who refuses consent in some circumstances necessarily give a true refusal of consent to treatment in any quite different circumstances which may arise…

Donaldson MR said (at [51]) ‘If the patient has been misled or misinformed he may not have given a genuine consent or refusal. This is not to bring in the doctrine of informed consent which is not the law of this country’ but it may mean that what appeared to be a refusal no longer is. The patient who refuses to cooperate with paramedics and police, insisting that they are fine (see for example Ambulance Service v Neal (January 29, 2009)) cannot be taken to continue to refuse treatment if they then collapse.  Their belief that they were ‘fine’ was clearly misinformed and their choice between going to hospital or going home has become a choice between going to hospital and dying.  In the absence of any indication that the latter is their preferred option the original refusal can be ignored.

So where does that leave us?

  1. The presumption is that every adult has capacity to make decisions.  To come to a different conclusion imposes a burden on the person seeking to administer treatment in this case the paramedic.  In some cases, there will be an obvious incapacity, the patient is unconscious or so ‘off with fairies’ that no sensible conversation can take place.  Putting that aside, and I don’t think those scenarios are implied in the question, the starting point is that the person has capacity.
  2. The test for capacity is a functional test – can they listen and consider the information, not have they done so nor have they made a sensible decision.
  3. A patient does not have to be fully informed to either give or refuse consent.  The concept of ‘informed consent’ is not part of either English or Australian law.  The relevance of information goes to the question of negligence not battery.
  4. Given the question is whether the patient understands in broad terms what is being proposed, the test for capacity is quite low though it is correct that it differs with the complexity of the decision being made.
  5. If they have capacity they can refuse treatment for any reason, or for no reason at all.
  6. If they refuse treatment to touch them would be a battery. There is no common law duty to do that which a person is not permitted to do so there can be no common law duty to treat a person who refuses.
  7. If they refuse there may be a duty to warn them of the risks of their decision. This is more so if there are specific and genuine held concerns rather than some generic spiel.  What is reasonable depends on all the circumstances including the extent to which the person is willing to cooperate with the paramedics.
  8. If they refuse treatment and circumstances change then the absence of information may mean that the prior refusal no longer applies and treatment that is reasonably necessary and in the patient’s best interests can be given (In Re F [1990] 2 AC 1).

Turning to more specific questions, getting consent for surgery in particular non-urgent surgery is quite a different issue. There is much more time for doctor’s to discuss the issue and patient’s have choices.    A paramedic on the other hand can only be expected to give the advice and information that a reasonable paramedic has. It may be therefore that it is quite reasonable to say ‘you may be suffering from condition x but only a doctor at hospital can diagnose that and explain to you the risks of accepting or rejecting treatment for x’.  But that allows the patient to make the decision to accept or reject your offer of treatment and transport.

As for patients under guardianship orders, there capacity still needs to be assessed. Critically if the patient is subject to a guardianship order and the guardian is authorised to make health care decisions, then the consent of the guardian is sufficient to justify treatment even if the patient doesn’t want it and appears to be competent to make that decision (see Enforced transport by paramedics and the Guardianship Act 1987 (NSW) (January 11, 2025)).

Conclusion

I’m not sure I’ve answered the specific question of ‘where does the test for capacity to consent to or refuse transport fall ‘on that continuum for the undifferentiated patient’?’  I think it is true it is at the low end of the scale.  If they can understand what you are proposing and reject it then prima facie they have capacity and their wishes must be respected. But each case must be assessed individually. Remember the test is capacity, not wisdom.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.