Do Health Practitioners Have an Obligation to Advise a Third Party if They Have Concerns About a Patient’s Capacity?

Often health practitioners are called upon to provide a formal assessment of a patient’s capacity. This might be to determine whether or not a person has the requisite decision-making capacity to enter into legal documents such as Wills and Powers of Attorney and will usually be done with the patient’s authority

Does the health practitioner have an obligation to report concerns about the patient’s capacity to another person (such as a family member and/or solicitor) if that disclosure has not been authorised by the patient?

Often the answer to this question will depend on the specific situation and will require specific legal advice.

However, generally:

  • if medical treatment is required; and
  • a health practitioner deems a patient to have lost capacity; and
  • the health practitioner considers capacity will not likely be regained within a reasonable time;


  • the health practitioner can contact the patient’s Medical Treatment Decision Maker (formerly known as a Medical Attorney); and
  • the health practitioner can disclose to the Medical Treatment Decision Maker information regarding the patient’s health and treatment;


  • provided always that the health information disclosed is relevant to the medical treatment decision to be made.

The Medical Treatment Planning and Decisions Act 2016 specifies that a person’s medical treatment decision maker is the first of the following who is reasonably available and willing to make the decision:

1. A Medical Treatment Decision Maker appointed by the patient;

2. A guardian appointed by VCAT to make decisions about the patient's medical treatment;

3. The first of the following people who is in a close and continuing relationship with the patient. (Where there are two or more relatives who are first on this list, it is the eldest);

a. the patient’s spouse or domestic partner;

b. the patient’s primary carer (an adult who is in a care relationship with the person and has principal responsibility for the person’s care);

c. an adult child of the patient; a parent of the patient;

d. an adult sibling of the patient.

It seems unlikely that concerns about capacity can be disclosed without the consent of the patient where there is no medical treatment decision to be made. Therefore “general” concerns about capacity should likely only be disclosed with the consent of the patient or, at a minimum, in the presence of the patient (e.g. if a child attends an appointment with their parent).

The whole picture changes once it is clear that a person has in fact lost capacity.

At Burke Lawyers our medical lawyers and healthcare lawyers have the expertise and experience to assist you.  Contact us today on +61 3 9822 8588 or email our team here.

I would like to receive Burke Lawyers Newsletters