Substitute Decision Making – Overview

Substitute Decision Makers

In Queensland, a person aged 18 years or older is presumed to have capacity to consent to their own medical treatment, regardless of any disability or diagnosis they may have. However, the person may be unable to consent to medical treatment if they have impaired decision-making capacity about their healthcare at the time a decision is required.

A substitute decision-maker is a person permitted under the law to make decisions on behalf of someone who does not have capacity.

A person can have more than one substitute decision-maker. These may be formal or informal arrangements.

Types of Substitute Decision-Making Arrangements

Healthcare Hierarchy in Queensland – The decision-making framework for health decisions in Queensland for a person who currently lacks capacity to make their own healthcare decisions is demonstrated below. This hierarchy chart can also be downloaded from the Resource section on this page.

Formally Appointed Substitute Decision Makers – Formal substitute decision-maker(s) may be appointed through:

• an order of the  Qld Civil and Administrative Tribunal (QCAT) (as a guardian or financial administrator) or
• an enduring power of attorney (as a personal attorney and/or financial attorney); or
• an advance health directive (as a health attorney).

See also the Queensland Governments website: Substitute Decision Making in Qld

Statutory Health Attorney – If there is no formally appointed substitute decision-maker(s) and capacity is impaired, the law automatically grants power to somebody to make health decisions for you. This is called a statutory health attorney. No documentation is completed for this role. By law, a statutory health attorney is the first, in listed order, of the following people who is readily available and culturally appropriate to act:

1. a spouse or de facto partner, if the relationship is close and continuing
2. a person over the age of 18, who is responsible for your primary care (but not a paid carer) [can receive the Centrelink Carer Allowance]
3. a person over the age of 18, who is a close friend or relative (but not a paid carer) [can receive the Centrelink Carer Allowance].
4. If there is no one who meets the above categories, the law will recognise the Public Guardian as your statutory health attorney.

Other Information on Substitute Decision-Making

Qld Health – Consent to Healthcare Flowchart

QAI and ADA Australia – Definitions – Substitute Decision Making

Office of the Public Advocate – Autonomy and Decision-Making support in Qld: A targeted overview of guardianship legislation

QCAT – Decision Making for Adults

QCAT Video – https://www.youtube.com/watch?v=-QmOIA9PHLA&feature=youtu.be

Qld Law Handbook –

• Guardianship and Administration for People with Impaired Decision-Making Capacity
• Absence of Capacity to Consent to Medical Treatment

End of Life Directions for Aged Care (ELDAC) –  Substitute Decision-Making Factsheet

Legal Info – Queensland Civil and Administrative Tribunal (QCAT)

Guardianship for adults

A guardian is a person QCAT appoints to help an adult with impaired decision making capacity (Opens in new window). The guardian ensures the adult’s needs are met and interests are protected by making certain personal and health care decisions on their behalf.

Generally, guardians can be given the authority to make decisions for the adult such as:

• where they live
• what support services they receive
• with whom they have contact or visits
• general health care matters
• the approval of containment and seclusion in certain limited circumstances
• the approval of chemical, physical or mechanical restraint
• restricting access to objects
• other day-to-day issues.

Reference: https://www.qcat.qld.gov.au/matter-types/guardianship-for-adults-matters

Financial Administration for adults

An administrator is a person QCAT appoints who can make certain financial decisions on behalf of an adult with impaired decision-making capacity. This makes sure that the adult’s needs are met, and their financial interests are protected.

Generally, administrators are given the authority to make decisions such as:

• buying or selling property
• maintaining property
• paying bills
• making business decisions
• managing investments.

Reference: https://www.qcat.qld.gov.au/matter-types/administration-for-adults-matters

Guardian and Administration Act 2000

Principles of the Act

The Guardianship and Administration Act 2000 seeks to balance the rights of an adult with impaired decision-making capacity, so they are independent and receive appropriate support.

To achieve this balance, guardians are to apply a range of general principles. These include:

• Presumption of capacity: adults are presumed to have the capacity to make their own decisions unless it is established they cannot.
• Human rights: regardless of decision-making capacity, everyone has the same basic rights including the protection of individual liberty and access to services. Decision makers must recognise the importance of encouraging the adult to exercise their rights.
• Individual value: each person is valued as an individual and their human worth and dignity is respected.
• Valued social role: an adult’s right to be a valued member of society is recognised, as is the importance of encouraging and supporting them in the performance of such social roles as homeowner, bank customer, investor, shopper, worker and volunteer.
• Participation in community life: decision makers must acknowledge the importance of encouraging the adult to take part in general community activities and of providing the support needed for such participation to occur.
• Encouraging self-reliance: decision makers must recognise the importance of encouraging an adult to be as autonomous and self-reliant as possible – physically, socially, emotionally and intellectually.
• Least restrictive option: anyone performing a function or exercising a power under the Guardianship and Administration Act 2000 must apply the least restrictive option that is consistent with the adult’s proper care and protection. This also means:
  • Maximum participation in decision making – the adult has the right to participate, to the best of their ability, in the decisions affecting their life. This involves giving the adult any necessary support and access to information to enable them to participate in such decisions. It also includes seeking and taking into account the adult’s views and wishes, whether they are expressed orally, in writing or through interpreters or other ways of communicating.
  • Substituted judgment – if it is possible to work out from the adult’s previous actions what their views and wishes would be, then these must be taken into account in any decision made.
• Maintenance of environment and values: decision makers must recognise the importance of maintaining the adult’s cultural and linguistic environment including any religious beliefs and lifestyle choices.
• Appropriate assistance: the assistance given to the adult in a particular situation must meet their current needs and be adapted to their individual characteristics.
• Confidentiality: decision makers must recognise the adult’s right to confidentiality about personal information.

Guardians must also apply the health care principle by making sure that whenever they are called upon to make a decision about health care that:

• the health care is necessary and appropriate to maintain or promote the adult’s health or wellbeing, and
• is in the adult’s best interests and to greatest extent possible, reflects the adult’s views.

Queensland legislation related to guardianship matters includes:

• Disability Services Act 2006
• Guardianship and Administration Act 2000
• Mental Health Act 2000
• Powers of Attorney Act 1998
• Public Trustee Act 1978
• Queensland Civil and Administrative Tribunal Act 2009

Commonwealth legislation related to guardianship matters includes:

• Aged Care Act (Commonwealth) 1997
• Disability Discrimination Act (Commonwealth) 1992