Substitute Decision MakersIn 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 ArrangementsHealthcare 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).
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:
- a spouse or de facto partner, if the relationship is close and continuing
- 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]
- 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].
- 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-MakingQld 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
Legal Info – Queensland Civil and Administrative Tribunal (QCAT)
Guardianship for adultsA 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.
Financial Administration for adultsAn 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.
Guardian and Administration Act 2000
Principles of the ActThe 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: 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