consent issues

1. Work legally and ethically
CHCLEG001
Consent issues
1
David Smith

2. Learning outcomes:
By the end of this session, you should:
Have a good understanding of the concept of
consent
Have an understanding of how this is
important to us as welfare workers
04:23 2

3. Legal, ethical, organisational
Consent
Ethical
(industry code
of ethics)
Organisational
(Agency policies, code of
ethics) 3
Legal
(legislation,
common law)
Like so many issues,
‘informed consent’ has
legal, ethical and
organisational policy
dimensions

4. Consent:
We’ll start with
the legal aspects-
but keep this
nearby, so we
can remember
that we’re just
looking at legal
aspects for now
4
So.. What does ‘consent’
actually mean?

5. Consent
1) n. a voluntary agreement to another's
proposition.
2) v. to voluntarily agree to an act or proposal of
another, which may range from contracts to
sexual relations.
A simple dictionary
definition is:

6. Basic consent concepts
https://www.youtube.com/watch?v=oQbei5JGiT8
You might be familiar with this video, comparing consent to
sex with consent to sharing a cup of tea- check it out now if
you like, it’s a useful discussion starter with our clients.

7. Basic consent concepts
https://www.youtube.com/watch?v=oQbei5JGiT8
Their point is that agreeing to something, voluntarily,
shouldn’t be a hard concept to grasp

8. Basic consent concepts
https://www.youtube.com/watch?v=oQbei5JGiT8
.. And the concepts can be applied to consent in general

9. Consent
1) n. a voluntary agreement to another's
proposition.
2) v. to voluntarily agree to an act or proposal of
another, which may range from contracts to
sexual relations.
Ok, so returning to our definition, and thinking more
broadly than sex and tea: can you think of times when
‘consent’ would be an important area for us to know
about in the welfare industry?

10. Consent
1) n. a voluntary agreement to another's
proposition.
2) v. to voluntarily agree to an act or proposal of
another, which may range from contracts to
sexual relations.
There are times when there is a question as to whether
someone has given consent… Perhaps:
•Consent to sexual activity
•Consent to medical treatment
•Consent to whether people agreed our services in the
first place

11. Consent
People can consent to things a number of ways.
For example, consent can be
1.Written
– People often think of this when consent is
discussed, and with good reason- having a written
record of somebody’s permission is a useful thing
eg signing to give consent for an operation

12. Consent
People can consent to things a number of ways.
For example, consent can be
1.Written
2.Verbal
– Verbal consent is just as valid, but might be harder
to prove- but you don’t always need to prove
things, and typically, the client isn’t likely to deny
that they gave permission for something to
happen.
eg you ask a question, and the client says ‘yes.’

13. Consent
People can consent to things a number of ways.
For example, consent can be
1.Written
2.Verbal
3.Implied
– Implied consent can also be valid, and we probably
do it more often than we are aware of. Body
language, hand gestures etc do, after all form a
large part of our day to day communication
eg client opens mouth for a temperature to be taken

14. Consent
From a legal perspective, Section 10(2) of the ACT
Human Rights Act specifically protects individuals
from being subjected to medical treatment without
their “free consent”.

15. Consent
From a legal perspective, Section 10(2) of the ACT
Human Rights Act specifically protects individuals
from being subjected to medical treatment without
their “free consent”.
(it also protects us
from being
experimented on
and tortured, which
is nice)

16. Consent
But even without that protection, there are legal
systems in place to ensure that people give their
consent to anything that happens to them.
Normally, a husband can’t decide what medical
treatment his wife has
A shopkeeper can’t just decide that somebody
must buy his products

17. Consent
The tricky bit is when we can’t be sure if somebody
was able to give consent. For example:

18. Consent
The tricky bit is when we can’t be sure if somebody
was able to give consent. For example:
Can a severely intoxicated, mentally ill or elderly
person refuse to give consent to life saving medical
treatment?

19. Consent
The tricky bit is when we can’t be sure if somebody
was able to give consent. For example:
Can a severely intoxicated, mentally ill or elderly
person refuse to give consent to life saving medical
treatment?
If your answer was “no,” you’re taking away their
right to control their own destiny

20. Consent
The tricky bit is when we can’t be sure if somebody
was able to give consent. For example:
Can a severely intoxicated, mentally ill or elderly
person refuse to give consent to life saving medical
treatment?
If your answer was “It depends how ill they are,”
who decides this?
If your answer was “no,” you’re taking away their
right to control their own destiny

21. Consent
We could ask similar questions about other people:
Can a sixteen year old sign a rental contract?
Can a severely intellectually disabled person give
permission to sexual activity?
Can elderly parents let their children make financial
decisions on their behalf?

22. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?

23. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
Let’s look at these first few, one at a time

24. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
(We’ll get back to this one later)

25. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
“Informed” means that the client was provided with
enough information to form a reasonable understanding
of the nature and effect of the decision.

26. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
In practice, this will usually mean discussing in some
detail what will be done and what is likely to result if it is
done (as well as, if appropriate, what will result if nothing
is done).

27. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
“Voluntary” means the client agreed of their own free
will, without the undue influence of other people or
circumstances that could impair their independent
judgment.

28. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
A clear way of demonstrating that the client has been
provided with a genuine choice is using a standard form
to record consent- but this should be explained not just
handed over to be signed.
google search for consent form
sample parent consent form with tips and instructions

29. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
This may also require thinking about whether there are
any issues of significant duress or undue influence (eg a
history of abuse by someone who is affected by the
consent).

30. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
“Specific” means the consent is to a clearly defined
activity.
Again, use of a consent form will enable us to capture
this information in a clear manner.

31. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
“Current” means that the consent is not likely to be
outdated because of lapse of time, or change of relevant
circumstances.

32. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
If there is any doubt about whether the client’s recorded
consent is still current, they should be asked to reconfirm
their wishes.

33. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
So, for example:

34. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
Antione wants to take a group of young people roller
skating.

35. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
He checks that they understand the risks involved
(although he’ll do his best to eliminate any risks, they are
still present).

36. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
He makes sure that they know, even at the last minute,
that they can back out if they wish.

37. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
A few clients have already signed permission notes for
“all activities relating to the holiday program”, but he
gets specific permission for this activity anyway.

38. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
… and one of the clients has already shown he
understood the risks on a previous occasion, and has
never had a problem with it before.
He checks regardless, and checks everyone is ok with it
immediately before the event.

39. The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
What is valid consent?
.. Which brings us to the final requirement: the legal
capacity to consent.

40. To decide whether somebody has the legal capacity to
consent, a court would ask “the Gillick test”, named after
a court case where parents thought they should have
been asked permission for a teen’s medical advice.
More info: http://www.miga.com.au/riskresources/library/11RRFS08.pdf
http://www.legalaidact.org.au/pdf/publications_Youth_Law_Matters.pdf
Who has the ‘capacity to consent’?

41. To decide whether somebody has the legal capacity to
consent, a court would ask “the Gillick test”, named after
a previous court case where parents thought they should
have been asked permission for a teen’s medical advice.
More info: http://www.miga.com.au/riskresources/library/11RRFS08.pdf
http://www.legalaidact.org.au/pdf/publications_Youth_Law_Matters.pdf
Who has the ‘capacity to consent’?
The Gillick test asks:
“does this child/ adult have the intelligence and maturity
to understand the nature and effect of this proposed
decision?”

42. To decide whether somebody has the legal capacity to
consent, a court would ask “the Gillick test”, named after
a previous court case where parents thought they should
have been asked permission for a teen’s medical advice.
More info: http://www.miga.com.au/riskresources/library/11RRFS08.pdf
http://www.legalaidact.org.au/pdf/publications_Youth_Law_Matters.pdf
Who has the ‘capacity to consent’?
The Gillick test asks:
“does this child/ adult have the intelligence and maturity
to understand the nature and effect of this proposed
decision?”
This test of “mental capability” can also include adults
with lower mental abilities or under the influence of
drugs.

43. For example, the age that someone is considered old
enough to consent to sexual activity varies greatly
between nations, and at different times in history
http://en.wikipedia.org/wiki/Ages_of_consent_in_Oceania#Australian_Capital_Territory
Who has the ‘capacity to consent’?

44. In the ACT and NSW, the age that someone can give legal
consent to sex is 16.
Who has the ‘capacity to consent’?

45. In the ACT and NSW, the age that someone can give legal
consent to sex is 16.
Who has the ‘capacity to consent’?
IMPORTANT NOTE: Since the child cannot legally consent,
this means that the person having sex with them is
breaking the law, by having sex without consent.

46. In the ACT and NSW, the age that someone can give legal
consent to sex is 16.
Who has the ‘capacity to consent’?
IMPORTANT NOTE: Since the child cannot legally consent,
this means that the person having sex with them is
breaking the law, by having sex without consent.
The under age person is not breaking the law.

47. In the ACT and NSW, the age that someone can give legal
consent to sex is 16.
Who has the ‘capacity to consent’?
The law allows for young people close in age and power,
and prohibits people with more power (eg teachers,
guardians) having sex with them until they are 18 yo.
IMPORTANT NOTE: Since the child cannot legally consent,
this means that the person having sex with them is
breaking the law, by having sex without consent.
The under age person is not breaking the law.

48. That gives us the general principles to work with.
Who has the ‘capacity to consent’?
For consent to medical procedures, the Age of Majority
Act (ACT) 1974 technically requires a parent or legal
guardian’s consent for persons under the age of 18 years.

49. That gives us the general principles to work with.
Who has the ‘capacity to consent’?
However, the doctor can apply the “Gillick test” and
assess the child to have sufficient maturity and that the
child adequately understands the nature and
consequences of the treatment, and accept that child’s
consent.
For consent to medical procedures, the Age of Majority
Act (ACT) 1974 technically requires a parent or legal
guardian’s consent for persons under the age of 18 years.

50. That gives us the general principles to work with.
Who has the ‘capacity to consent’?
Generally, a non disabled child who is 14 years of age is
considered old enough to consent to medical treatment
on their own behalf.
However, the doctor can apply the “Gillick test” and
assess the child to have sufficient maturity and that the
child adequately understands the nature and
consequences of the treatment, and accept that child’s
consent.
For consent to medical procedures, the Age of Majority
Act (ACT) 1974 technically requires a parent or legal
guardian’s consent for persons under the age of 18 years.

51. In NSW, the law is clearer, with a child aged 14 or over
being able to consent (as can their parents, if the child is
under 16)
Who has the ‘capacity to consent’?

52. In NSW, the law is clearer, with a child aged 14 or over
being able to consent (as can their parents, if the child is
under 16)
Who has the ‘capacity to consent’?
For more details on what young people can do at their
age, go to the link below for information in your state.
http://www.youthlawact.org.au/youth_law_matters_2013.pdf (ACT specific)
http://www.lawstuff.org.au/ (all states of Australia)
http://youthlaw.asn.au/for-youth-workers/publications/working-for-young-people/ (Victoria)
www.theshopfront.org/24.html (NSW)

53. There are laws allowing for people to plan for occasions
where they lose their ability to consent.
Who has the ‘capacity to consent’?
www.communitylaw.org.au/mentalhealth/cb_pages/images/mhlcadvancedirective.pdf
www.actlawsociety.asn.au/public-information/enduring-power-of-attorney

54. There are laws allowing for people to plan for occasions
where they lose their ability to consent.
Who has the ‘capacity to consent’?
www.communitylaw.org.au/mentalhealth/cb_pages/images/mhlcadvancedirective.pdf
www.actlawsociety.asn.au/public-information/enduring-power-of-attorney
This may be through a mental or other health concern, or
other circumstances where you can’t make decisions,
such as when you are overseas or in hospital.

55. There are laws allowing for people to plan for occasions
where they lose their ability to consent.
Who has the ‘capacity to consent’?
www.communitylaw.org.au/mentalhealth/cb_pages/images/mhlcadvancedirective.pdf
www.actlawsociety.asn.au/public-information/enduring-power-of-attorney
This may be through a mental or other health concern, or
other circumstances where you can’t make decisions,
such as when you are overseas or in hospital.
For people with mental illnesses, this can be a way of
saying what treatment they do, or do not, want to have.
However, the people making the decisions could still
decide to give you something different from what you
wanted.

56. Who has the ‘capacity to consent’?
www.communitylaw.org.au/mentalhealth/cb_pages/images/mhlcadvancedirective.pdf
www.actlawsociety.asn.au/public-information/enduring-power-of-attorney
(Read more by following these links)

57. The State or Public Trustees assist people with
their financial needs. They help clients appoint
enduring powers of attorney.
http://www.publictrustee.act.gov.au/
The Guardianship Board is a government body
that appoints a guardian for someone with
diminished capacity, who can no longer make
decisions regarding certain areas of their lives,
and when they have not made any prior power of
attorney arrangements
http://www.publicadvocate.act.gov.au/

58. Power of attorney (POA) is a legal document
that appoints someone to represent or act on
another's behalf in private affairs, business, or
some other legal matter, sometimes against the
wishes of the other's.
Public Advocate - The power to choose

59. • Enduring Power of Attorney
http://
www.publictrustee.act.gov.au/powers-of-attorney

60. Scenario
One of your co- workers has an old car for
sale. It is currently registered, and reliable
if driven gently and not overworked. He is
asking for $900 for the car, but knows that
it is probably worth a bit less (and
He’d accept this if offered).
65
So, let’s put what we know into practice:

61. What do you do?
Scenario
Marcus, one of your clients, has a part time job
and would like a car so he doesn't have to
catch the bus. You doubt he could afford to
maintain the car, or register it in a few months’
time. It is unlikely that he would drive safely. He
can scrape together the asking price of $900 if
he borrows a bit from his boss.
You don't think it is in Marcus' interests to buy
the car. You don't think it is in Marcus' interests
to pay the full price.
66

62. What is valid consent?
Are there any legal barriers to your co- worker selling the
car to Marcus?

63. What is valid consent?
Are there any legal barriers to your co- worker selling the
car to Marcus?
Remember:
The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.

64. What is valid consent?
Are there any legal barriers to your co- worker selling the
car to Marcus?
Remember:
The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
Marcus is aware of the car’s
problems. He’s allowed to make
dumb decisions.
(We can make sure he knows
what he’s getting into, of course)

65. What is valid consent?
Are there any legal barriers to your co- worker selling the
car to Marcus?
Remember:
The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
Nobody was forcing him to buy
it, it was a free choice.

66. What is valid consent?
Are there any legal barriers to your co- worker selling the
car to Marcus?
Remember:
The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific
•current,
AND
•The client has the legal capacity to consent.
He was buying that specific car,
not cars in general

67. What is valid consent?
Are there any legal barriers to your co- worker selling the
car to Marcus?
Remember:
The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
He has the chance to change his
mind, right up to the point
where he hands over the cash or
signs the contract

68. What is valid consent?
Are there any legal barriers to your co- worker selling the
car to Marcus?
Remember:
The law states that consent is only valid when it is:
•informed,
•voluntary,
•specific and
•current,
AND
•The client has the legal capacity to consent.
Assuming Marcus has no
intellectual, age or medical
barriers that would take away
his legal capacity, he’s good to
make the decision.

69. The full picture
Legally speaking (assuming Marcus has no intellectual,
age or medical barriers), this sale should go ahead.
74

70. The full picture
Legally speaking (assuming Marcus has no intellectual,
age or medical barriers), this sale should go ahead.
75
But the law is not our only concern.

71. The full picture
Legally speaking (assuming Marcus has no intellectual,
age or medical barriers), this sale should go ahead.
76
But the law is not our only concern.
Our code of ethics adds that we have to also balance:
•An attitude of respect for all people
•An emphasis on empowerment, dignity and client
participation

72. The full picture
Legally speaking (assuming Marcus has no intellectual,
age or medical barriers), this sale should go ahead.
77
But the law is not our only concern.
Our code of ethics adds that we have to also balance:
•An attitude of respect for all people
•An emphasis on empowerment, dignity and client
participation
These factors would also need to be taken into
account, for both you and your co- worker.

73. The full picture
Legally speaking (assuming Marcus has no intellectual,
age or medical barriers), this sale should go ahead.
78
But the law is not our only concern.
Our code of ethics adds that we have to also balance:
•An attitude of respect for all people
•An emphasis on empowerment, dignity and client
participation
These factors would also need to be taken into
account, for both you and your co- worker.
(and, of course, agency policies would need to be
followed if any applied in this situation)

74. Learning outcomes:
You should now:
Have a good understanding of the concept of
consent
Have an understanding of how this is
important to us as welfare workers
04:23 79