New South Wales Consolidated Acts

GUARDIANSHIP ACT 1987 - SECT 46

46 Effect of consent

(1) Subject to subsections (2) and (3), a consent given under this Part in respect of the carrying out of medical or dental treatment on a patient to whom this Part applies has effect:

(a) as if the patient had been capable of giving consent to the carrying out of the treatment, and

(b) as if the treatment had been carried out with the patient’s consent.

(2) A consent given by a person responsible for, or the guardian of, the patient has no effect:

(a) if the person carrying out or supervising the proposed treatment is aware, or ought reasonably to be aware, that the patient objects to the carrying out of the treatment, or

(b) if the proposed treatment is to be carried out for any purpose other than that of promoting or maintaining the health and well-being of the patient.

(3) A consent given by the guardian of the patient has effect despite any objection made by a patient to the carrying out of the treatment if the guardian has consented to that treatment in accordance with the authority of the Tribunal under section 46A.

(4) For the purposes of this section, an objection by a patient to the carrying out of proposed medical or dental treatment is to be disregarded if:

(a) the patient has minimal or no understanding of what the treatment entails, and

(b) the treatment will cause the patient no distress or, if it will cause the patient some distress, the distress is likely to be reasonably tolerable and only transitory.

(5) Nothing in this Part precludes the Tribunal, a person responsible or a guardian from giving consent to the carrying out on a patient to whom this Part applies of medical or dental treatment specifically excluded from the definition of that expression in section 33 (1). This section applies to any such consent as if that treatment were not excluded from that definition.