Potentially incapable patients objecting to treatment: doctors' powers and duties

In reply: The answer to Dignam's apparently rhetorical question about using “one of the Acts . . . with all the inherent clumsiness that entails” is known and relatively straightforward.

The common law and the guardianship legislation of most states and territories allow a doctor to act in an urgent situation involving an incompetent patient to “save their lives, or to ensure improvement or prevent deterioration in their physical or mental health”.1 Under the common law, this power to provide needed treatment without consent is known as the principle of necessity, or the emergency principle, and is enunciated as acting in the “best interests” of the patient. There is nothing clumsy about using these powers, and if the circumstances demand their use, treatment may be given without any prior third-party approval or documentation. Having dealt with the emergency though, it is important to document what was done and why, including some documentation as to why consent could not be obtained in the normal way.