Adults with impaired decision-making capacity have the right to apply to QCAT to have their decision maker’s appointments reviewed or revoked. See Applying for Guardianship Factsheet
Adults who have a guardian or administrator still have the right to maintain their human rights and privacy, to the greatest extent possible.
The right to make decisions is fundamental to the person’s dignity and includes the right to make decisions with which others may not agree.
These rights are protected by the General Principles and the Health Care Principle which every attorney must apply when acting or making a decision for the person.
The General Principles provide a set of rules to guide attorneys in fulfilling their duties and obligations to the person.
QCAT Medical Professional Report
Form 11 Declaration of Capacity Application
Adults who have a guardian or administrator still have the right to maintain their human rights and privacy, to the greatest extent possible.
The Rights of the Person
An adult with impaired capacity has the same human rights as other adults.The right to make decisions is fundamental to the person’s dignity and includes the right to make decisions with which others may not agree.
These rights are protected by the General Principles and the Health Care Principle which every attorney must apply when acting or making a decision for the person.
The General Principles provide a set of rules to guide attorneys in fulfilling their duties and obligations to the person.
General Principles
When making a decision for an adult, the guardian and administrator must apply the General Principles, found in the Guardianship and Administration Act 2000.1. Presumption of capacity
An adult is presumed to have capacity for a matter.
2.Same human rights and fundamental freedoms
(1) An adult’s inherent dignity and worth, and equal and inalienable rights, must be recognised and taken into account.
(2) The rights of all adults to the same human rights and fundamental freedoms, regardless of a particular adult’s capacity, must be recognised and taken into account.
(3) The principles on which an adult’s human rights and fundamental freedoms are based, and that should inform the way those rights and freedoms are taken into account, include—
(2) The rights of all adults to the same human rights and fundamental freedoms, regardless of a particular adult’s capacity, must be recognised and taken into account.
(3) The principles on which an adult’s human rights and fundamental freedoms are based, and that should inform the way those rights and freedoms are taken into account, include—
(a) respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons; and
(b) non-discrimination; and
(c) full and effective participation and inclusion in society, including performing roles valued by society; and
(d) respect for difference and acceptance of persons with impaired capacity as part of human diversity and humanity;
(e) equality of opportunity; and
(f) accessibility; and
(g) equality between all persons regardless of gender.
(b) non-discrimination; and
(c) full and effective participation and inclusion in society, including performing roles valued by society; and
(d) respect for difference and acceptance of persons with impaired capacity as part of human diversity and humanity;
(e) equality of opportunity; and
(f) accessibility; and
(g) equality between all persons regardless of gender.
3. Empowering adult to exercise human rights and fundamental freedoms
The importance of the following matters must be taken into account—
(a) empowering an adult to exercise the adult’s human rights and fundamental freedoms;
(b) encouraging and supporting an adult—
(c) an adult’s right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity for a matter.
(a) empowering an adult to exercise the adult’s human rights and fundamental freedoms;
(b) encouraging and supporting an adult—
(i) to perform social roles valued in society; and
(ii) to live a life in the general community and to take part in activities enjoyed by the community; and
(iii) to achieve maximum physical, social, emotional and intellectual potential and to become as self-reliant as practicable;
(ii) to live a life in the general community and to take part in activities enjoyed by the community; and
(iii) to achieve maximum physical, social, emotional and intellectual potential and to become as self-reliant as practicable;
(c) an adult’s right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity for a matter.
4. Maintenance of adult’s existing supportive relationships
(1) The importance of maintaining an adult’s existing supportive relationships must be taken into account.
(2) Maintaining an adult’s existing supportive relationships may, for example, involve consultation with—
(3) The role of families, carers and other significant persons in an adult’s life to support the adult to make decisions should be acknowledged and respected.
(2) Maintaining an adult’s existing supportive relationships may, for example, involve consultation with—
(a) the adult, to find out who are the members of the adult’s support network; and
(b) any persons who have an existing supportive relationship with the adult; and
(c) any members of the adult’s support network who are making decisions for the adult on an informal basis.
(b) any persons who have an existing supportive relationship with the adult; and
(c) any members of the adult’s support network who are making decisions for the adult on an informal basis.
(3) The role of families, carers and other significant persons in an adult’s life to support the adult to make decisions should be acknowledged and respected.
5. Maintenance of adult’s cultural and linguistic environment and values
(1) The importance of maintaining an adult’s cultural and linguistic environment and set of values, including religious beliefs, must be taken into account.
(2) Without limiting subsection (1), for an adult who is an Aboriginal person or a Torres Strait Islander, the importance of maintaining the adult’s Aboriginal or Torres Strait Islander cultural and linguistic environment and set of values, including Aboriginal tradition or Island custom, must be taken into account.
(2) Without limiting subsection (1), for an adult who is an Aboriginal person or a Torres Strait Islander, the importance of maintaining the adult’s Aboriginal or Torres Strait Islander cultural and linguistic environment and set of values, including Aboriginal tradition or Island custom, must be taken into account.
6. Respect for privacy
(1) An adult’s privacy must be taken into account and respected.
(2) An adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.
(2) An adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.
7. Liberty and security
(1) An adult’s right to liberty and security on an equal basis with others must be taken into account.
(2) An adult should not be deprived of the adult’s liberty except in accordance with the law.
(2) An adult should not be deprived of the adult’s liberty except in accordance with the law.
8. Maximising an adult’s participation in decision-making
(1) An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account.
(2) An adult must be given the support and access to information necessary to enable the adult to make or participate in decisions affecting the adult’s life.
(3) An adult must be given the support necessary to enable the adult to communicate the adult’s decisions.
(4) To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult’s views, wishes and preferences.
(5) An adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.
(6) An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision.
(2) An adult must be given the support and access to information necessary to enable the adult to make or participate in decisions affecting the adult’s life.
(3) An adult must be given the support necessary to enable the adult to communicate the adult’s decisions.
(4) To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult’s views, wishes and preferences.
(5) An adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.
(6) An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision.
9. Performance of functions and exercise of powers
A person or other entity, in performing a function or exercising a power under this Act in relation to an adult, or in making a decision for an adult on an informal basis, must do so—
(a) in a way that promotes and safeguards the adult’s rights, interests and opportunities; and
(b) in the way that is least restrictive of the adult’s rights, interests and opportunities.
(a) in a way that promotes and safeguards the adult’s rights, interests and opportunities; and
(b) in the way that is least restrictive of the adult’s rights, interests and opportunities.
10. Structured decision-making
(1) In applying general principle 9, a person or other entity in performing a function or exercising a power under this Act in relation to an adult, or in making a decision for an adult on an informal basis, must adopt the approach set out in subsections (2) to (5).
(2) First, the person or other entity must—
(4) Third, if the adult’s views, wishes and preferences can not be determined, the person or other entity must use the principle of substituted judgement so that if, from the adult’s views, wishes and preferences, expressed or demonstrated when the adult had capacity, it is reasonably practicable to work out what the adult’s views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult’s views, wishes and preferences would be.
(5) Fourth, once the person or other entity has recognised and taken into account the matters mentioned in subsections (2) to (4), the person or other entity may perform the function, exercise the power or make the decision.
(2) First, the person or other entity must—
(a) recognise and preserve, to the greatest extent practicable, the adult’s right to make the adult’s own decision; and
(b) if possible, support the adult to make a decision.
(3) Second, the person or other entity must recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult.
(b) if possible, support the adult to make a decision.
(4) Third, if the adult’s views, wishes and preferences can not be determined, the person or other entity must use the principle of substituted judgement so that if, from the adult’s views, wishes and preferences, expressed or demonstrated when the adult had capacity, it is reasonably practicable to work out what the adult’s views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult’s views, wishes and preferences would be.
(5) Fourth, once the person or other entity has recognised and taken into account the matters mentioned in subsections (2) to (4), the person or other entity may perform the function, exercise the power or make the decision.
11C. Health Care Principles
(1) The principles (the health care principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act for a health matter or a special health matter.
(2) Also, an entity authorised by an Act to make a decision for an adult about prescribed special health care must apply the health care principles.
(3) For subsection (2), the health care principles and the general principles apply as if a reference in the principles to performing a function or exercising a power under this Act were a reference to making a decision about prescribed special health care under the Act under which the decision is to be made.
(2) Also, an entity authorised by an Act to make a decision for an adult about prescribed special health care must apply the health care principles.
(3) For subsection (2), the health care principles and the general principles apply as if a reference in the principles to performing a function or exercising a power under this Act were a reference to making a decision about prescribed special health care under the Act under which the decision is to be made.
Health care principles
1. Application of general principles
A person or other entity that performs a function or exercises a power under this Act, for a health matter or a special health matter in relation to an adult, must also apply the general principles.
2. Same human rights and fundamental freedoms
In applying general principle 2 to a health matter or special health matter—
(a) the principle of non-discrimination requires that all adults be offered appropriate health care, including preventative care, without regard to a particular adult’s capacity; and
(b) any consent to, or refusal of, health care for an adult must take into account the principles of respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons.
(a) the principle of non-discrimination requires that all adults be offered appropriate health care, including preventative care, without regard to a particular adult’s capacity; and
(b) any consent to, or refusal of, health care for an adult must take into account the principles of respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons.
3. Performance of functions and exercise of powers
In applying general principles 9 and 10 to a health matter or special health matter, a person or other entity, in performing a function or exercising a power under this Act in relation to an adult, must take into account –
(a) information given by the adult’s health provider; and
(b) if the adult has a medical condition—
(d) the nature and degree of any significant risks associated with the proposed health care or any alternative health care; and
(e) whether the proposed health care can be postponed because a better health care option may become available within a reasonable time or the adult is likely to become capable of making the adult’s own decision about the health care; and
(f) the consequences for the adult if the proposed health care is not carried out; and
(g) a consideration of the benefits versus the burdens of the proposed health care; and
(h) the effect of the proposed health care on the adult’s dignity and autonomy.
(a) information given by the adult’s health provider; and
(b) if the adult has a medical condition—
(i) the nature of the adult’s medical condition; and
(ii) the adult’s prognosis; and
(c) if particular health care is proposed, any alternative health care that is available; and
(ii) the adult’s prognosis; and
(d) the nature and degree of any significant risks associated with the proposed health care or any alternative health care; and
(e) whether the proposed health care can be postponed because a better health care option may become available within a reasonable time or the adult is likely to become capable of making the adult’s own decision about the health care; and
(f) the consequences for the adult if the proposed health care is not carried out; and
(g) a consideration of the benefits versus the burdens of the proposed health care; and
(h) the effect of the proposed health care on the adult’s dignity and autonomy.
4. Substituted judgement
For applying general principle 10(4) to a health matter or special health matter, the views and wishes of an adult expressed when the adult had capacity may also be expressed—
(a) in an advance health directive; or
(b) by a consent to, or refusal of, health care given at a time when the adult had capacity to make decisions about the health care.
(a) in an advance health directive; or
(b) by a consent to, or refusal of, health care given at a time when the adult had capacity to make decisions about the health care.
QCAT Application Forms
Form 10 Guardianship and Administration ApplicationQCAT Medical Professional Report
Form 11 Declaration of Capacity Application
