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Mythbusters: Emergency Medical Treatment

Myth 1:

Emergency treatment cannot be provided to a person who lacks capacity unless a substitute decisionmaker consents.

No. If a person does not have capacity, and it is not possible to obtain consent from the person’s substitute decision-maker, the law allows emergency treatment to be given without consent if it is needed urgently to save a person’s life, prevent serious damage to health, or prevent significant pain and distress.

Myth 2:

A health professional can provide emergency treatment to a person with capacity without their consent.

No. If a person has capacity, a health professional or aged care worker must obtain consent from the person prior to providing that treatment, even in an emergency situation. It is only if consent is not possible (for example, the delay to obtain consent would threaten the person’s life) that treatment can be given without consent.

Myth 3:

If a person lacks capacity and requires emergency treatment in hospital to save their life, a health professional or aged care worker must arrange to transfer them to hospital for treatment

No. A person is able (when they have capacity) to refuse treatment, including life-sustaining treatment, even if it will result in their death. A person is also able to refuse to go to hospital if they do not want to receive treatment.

If a person lacks capacity, a decision about transfer will depend on:

  • whether the person’s preferences about hospital transfer or treatment are known (e.g. documented in an Advance Care Directive, or previously stated), or
  • if they have a substitute decision-maker, the decision of that person.

If the person who lacks capacity has previously decided they do not want to receive treatment, their decision should be respected.

If it is not possible to obtain consent to treatment from either a person or their substitute decisionmaker, the law allows emergency treatment to be given to save the person’s life, prevent serious damage to health, or prevent significant pain and distress. In this case a hospital transfer may occur if it is necessary to enable the person to receive treatment (so long as they haven’t previously refused being transferred to hospital).

Page updated 28 August 2018