EMERGENCY MEDICAL OPERATIONS ACT 1973 - SECT 3 Performance of operation without consent

EMERGENCY MEDICAL OPERATIONS ACT 1973 - SECT 3

    (1)     Subject to this section, a medical practitioner may perform an operation on a patient without the consent of the patient or of any other person having authority in law to give consent to the performance of the operation if that medical practitioner is, and, in the case of a patient who is an infant, that medical practitioner and at least one other medical practitioner are, of the opinion that:

        (a)     the patient is in danger of dying or of suffering a serious permanent disability; and

        (b)     the performance of an operation on the patient is desirable in order to prevent the death of the patient or the occurrence of the disability.

    (2)     A medical practitioner is not entitled to perform an operation, being a blood transfusion, in pursuance of subsection (1), unless he is satisfied that the blood to be transfused is compatible with the blood of the patient.

    (3)     If the patient is an adult who has impaired decision-making capacity, a medical practitioner is not entitled to perform an operation under subsection (1) unless the medical practitioner is of the opinion that it is not practicable to delay performing the operation until:

        (a)     it can be ascertained that the patient has made an advance consent decision about the operation; or

        (b)     a consent decision about the operation can be made, in accordance with Part 4 of the Advance Personal Planning Act 2013 :

            (i)     by a decision maker or guardian for the patient under section 42 of that Act; or

            (ii)     by NTCAT under section 44 of that Act; or

            (iii)     by another person who has a right under another law of the Territory to make a consent decision about the operation, as mentioned in section 44A of that Act.

    (3A)     Further, if the patient is an adult who has impaired decision-making capacity, a medical practitioner is not entitled to perform an operation under subsection (1) in circumstances in which section 53 of the Advance Personal Planning Act 2013 applies.

Note for subsection (3A)

In broad terms, section 53 of the Advance Personal Planning Act 2013 applies if the medical practitioner knows that the patient has made an advance consent decision refusing consent for the operation, or that a decision maker, adult guardian or NTCAT has refused consent for the operation.

    (4)     A medical practitioner is not entitled to perform an operation on a patient, being an infant, in pursuance of subsection (1):

        (a)     unless the medical practitioner is of the opinion that, in the circumstances, it is not practicable to delay the performance of the operation until the consent of a de facto partner or parent or guardian of the infant, if the infant is unmarried, or of his next of kin, if he is married, as the case may be, to the performance of the operation can be sought; or

        (b)     unless a de facto partner or parent or guardian of the infant, if the infant is unmarried, or of his next of kin, if he is married, as the case may be, upon being asked to give consent to the performance of the operation has failed to give that consent.

    (6)     Where an operation is performed in accordance with this section, the operation shall, for all purposes, be deemed to have been performed with the consent of the person having authority in law to consent to the performance of the operation.

    (7)     Terms used in subsections (3) and (3A) that are defined in the Advance Personal Planning Act 2013 have the same meanings in those subsections as they have in that Act.