Health practitioners warned against breaching informed consent laws

By Naomi Neilson|02 July 2019

The Law Institute of Victoria has warned state health practitioners in aged care facilities against administering prescription pharmaceuticals without consent.

According to LIV, Victorian health practitioners “ignore the law at their peril” when they administer aged care residents with prescription pharmaceuticals without informed consent.

The legal body warned against medicating residents without consent in light of evidence in the Royal Commission into Aged Care Quality and Safety. This is particularly relevant for the use of anti-psychotic medications, it said.

Chair of the LIV Law Section Bill O’Shea said Victorian aged care facilities must stop administering prescription medications “or face the consequences”.

“Too often, anti-psychotic drugs are used covertly to control behaviour and save on staff costs,” Mr O’Shea said.

“It doesn’t matter what the Commonwealth aged care minister has to say or what the Charter of Aged Care rights says or doesn’t say; the law is clear in Victoria.”

LIV Elder Law Section members reported that health practitioners are not aware of the requirements in the Medical Treatment Planning and Decisions Act 2016 (Vic), which became law in Victoria in March of 2018.

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“A health practitioner who treats a resident with prescription pharmaceuticals without first getting informed consent commits medical trespass and faces civil liability as well as a charge of professional misconduct at AHPRA,” Mr O’Shea said.

LIV president Stuart Webb said that whether the resident has the capacity to consent for themselves or not, health practitioners must seek appropriate permission first.

Consent can be given by the resident themselves if they are capable or by a medical treatment decision-maker. Failing this, health practitioners are encouraged to contact the Office of the Public Advocate to receive consent.

“Following evidence to the Royal Commission into Aged Care and Safety, there has been debate about whether residential aged care facilities and the health practitioners who treat residents should obtain consent before treating residents with prescription pharmaceuticals, and in particular, anti-psychotic medications,” Mr Webb said.

“Let there be no doubt about what the law requires in Victoria.”

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Health practitioners warned against breaching informed consent laws
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