Elements
- Capacity to understand, retain, weigh and communicate a decision
- Voluntary, free of coercion
- Informed about the condition, options including no treatment, benefits and risks
- Specific to the procedure and the surgeon or team
- Consent is an ongoing discussion, and the signed form records it
- Include the surgeon’s own experience where relevant
Material Risk
- Rogers v Whitaker (High Court of Australia, 1992) requires disclosure of material risks
- A risk is material if a reasonable person in the patient’s position would attach significance to it
- Or if the doctor knows this particular patient would attach significance to it
- Rare but serious risks can be material
Special Situations
- Mature minors can consent if they understand the treatment (Gillick competence)
- Adults without capacity, consent from the substitute decision maker under state law
- Emergency treatment to save life or prevent serious harm can proceed without consent
- Use an accredited interpreter when language is a barrier
- Advance care directives must be respected
Documentation
- Record the discussion, risks raised, questions and decision as well as the signed form
- Consent is a process that can be withdrawn
- Tell patients who will perform the operation, including trainee involvement
- Record the discussion, material risks, alternatives and the patient’s questions
- Provide written information and allow time to decide
Reviewed by Professor Phong Tran, Head of Orthopaedic Surgery, Western Health. Last updated 10 October 2026.