Informed Consent in New South Wales
Reviewed by the Commoner Law Editorial Team. Sourced from Commonwealth Acts of Parliament, federal regulations, and official government guidance. State-level information reflects each state's own Acts and court decisions. Written in plain language for general understanding — this is educational content, not legal advice. Our editorial standards
What is this right?
Before any medical treatment, you have the right to receive enough information to make an informed decision. This principle comes from the landmark High Court case Rogers v Whitaker (1992), which established that a doctor must tell you about any material risk — that is, any risk that a reasonable person in your position would want to know about.
The Australian Charter of Healthcare Rights reinforces this by guaranteeing your right to:
- Clear information about your condition, treatment options, benefits, and risks
- Ask questions and receive answers you can understand
- Accept or refuse any treatment, test, or procedure
- Seek a second opinion from another doctor
- Withdraw consent at any time, even after you initially agreed
Consent must be voluntary — no one can force or pressure you into a medical decision. If you lack the capacity to consent, a legally authorised substitute decision-maker (such as someone with medical power of attorney) may consent on your behalf.
When does it apply?
- Before any medical treatment, procedure, or test — from a blood test to major surgery.
- When a doctor recommends a change in your treatment plan.
- In emergency situations, a doctor may proceed without consent if delay would endanger your life, but must inform you as soon as possible afterwards.
- For children under 18, a parent or guardian generally provides consent, though mature minors may consent for themselves (Gillick competence).
What to Do If You Were Not Given Informed Consent Before Medical Treatment in Australia
- Ask your doctor to explain your diagnosis, the proposed treatment, alternatives, and the risks of each option in plain language.
- Take your time — you are not required to decide on the spot unless it is a genuine emergency.
- Bring a support person to appointments if it helps you understand and remember the information.
- Request written information if verbal explanations are not enough.
- Ask about the consequences of doing nothing so you can weigh all options.
- Put your preferences in an advance care directive so your wishes are known if you lose capacity in the future.
What should you NOT do?
- Don't sign a consent form unless you fully understand what you are agreeing to.
- Don't feel pressured — you always have the right to refuse treatment or ask for more time.
- Don't assume silence is consent — your agreement must be clearly expressed, either verbally or in writing.
- Don't ignore your right to a second opinion — getting another view is a normal part of healthcare decision-making.
How New South Wales differs from federal law
Informed consent in NSW is governed by common law (as established by the High Court in Rogers v Whitaker (1992)) and reinforced by NSW Health policies and the Guardianship Act 1987 (NSW) for persons who lack capacity.
- Under NSW law, a health practitioner must disclose all material risks of a proposed treatment — a risk is material if a reasonable person in the patient's position would attach significance to it, or if the practitioner is or should be aware that the particular patient would attach significance to it.
- NSW Health Policy Directive PD2005_406 (Consent to Medical and Dental Treatment) sets out the consent requirements for all NSW public health facilities.
- For patients who lack capacity, the Guardianship Act 1987 (NSW) provides a hierarchy of substitute decision-makers: (1) a person appointed under an enduring guardianship order, (2) the person responsible as defined by the Act, (3) the NSW Civil and Administrative Tribunal (NCAT) Guardianship Division, or (4) the NSW Trustee and Guardian.
- For children, a parent or guardian provides consent. In NSW, mature minors may consent to their own medical treatment if they have sufficient understanding (Gillick competence, recognised in NSW common law).
- Emergency treatment can proceed without consent if the patient is unable to consent and the treatment is necessary to save life or prevent serious harm (common law doctrine of necessity).
Additional Steps in New South Wales
If you believe treatment was provided without proper consent, lodge a complaint with the Health Care Complaints Commission (HCCC) (hccc.nsw.gov.au or 1800 043 159). For guardianship matters, apply to NCAT Guardianship Division or contact the NSW Trustee and Guardian (tag.nsw.gov.au).
Relevant Law: Guardianship Act 1987 (NSW); NSW Health Policy Directive PD2005_406; Civil Liability Act 2002 (NSW), s 5O (professional standard for information disclosure)
Common Questions
When does informed consent apply?
Before any medical treatment, procedure, or test — from a blood test to major surgery.When a doctor recommends a change in your treatment plan.In emergency situations, a doctor may proceed without consent if delay would endanger your life, but must inform you as soon as possible afterwards.For children under 18, a parent or guardian generally provides consent, though mature minors may consent for themselves (Gillick competence).
What should I do if a doctor performed a procedure without properly explaining the risks to me in Australia?
Ask your doctor to explain your diagnosis, the proposed treatment, alternatives, and the risks of each option in plain language.Take your time — you are not required to decide on the spot unless it is a genuine emergency.Bring a support person to appointments if it helps you understand and remember the information.Request written information if verbal explanations are not enough.Ask about the consequences of doing nothing so you can weigh all options.Put your preferences in an advance care directive so your wishes are known if you lose capacity in the future.
What mistakes should I avoid with informed consent?
Don't sign a consent form unless you fully understand what you are agreeing to.Don't feel pressured — you always have the right to refuse treatment or ask for more time.Don't assume silence is consent — your agreement must be clearly expressed, either verbally or in writing.Don't ignore your right to a second opinion — getting another view is a normal part of healthcare decision-making.
Informed Consent in other states
Same topic, different jurisdiction. Pick the one that applies to you.