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Ian Freckelton QC

In Australia, medical treatment cannot be provided without consent except in a number of narrow circumstances. However, Australian law has wrestled since the 1980s with what communications must take place to enable a patient’s consent to be sufficiently assisted by information; what conditions sufficiently impair capacity; and what the consequences should be when inadequate or misleading information is given to a patient. While Australia’s common law does not have a doctrine of ‘informed consent’, substantively and in popular legal parlance, the concept is alive and well. Consideration is given to the departure from the ‘Bolam test’ taken by the Australian appellate courts since the 1980s, and the likely direction of Australian jurisprudence and clinical practice. Scrutiny is also given to the definitions of ‘informed consent’ and ‘material risk’, and the status of informed consent is reviewed in mental health legislation, guardianship law and end-of-life decision making. While the direction of travel since the early 1990s has been a move away from health practitioner paternalism towards better-informed collaborative decision making by patients with assistance from their health practitioners, concerns remain that informed consent processes are too often formalistic, with patients being routinely ‘consented’. In Australia, as elsewhere, the challenge remains to operationalize the formal legal obligations in relation to the provision of information likely to be important to patients so that they are authentically at the centre of decision making about their own health.