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 PersonAn 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 PrinciplesWhen 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
2.Same human rights and fundamental freedoms
(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—
(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
(a) empowering an adult to exercise the adult’s human rights and fundamental freedoms;
(b) encouraging and supporting an adult—
(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
(2) Maintaining an adult’s existing supportive relationships may, for example, involve consultation with—
(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
(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
(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
(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
(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) 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
(2) First, the person or other entity must—
(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
(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
2. Same human rights and fundamental freedoms
(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
(a) information given by the adult’s health provider; and
(b) if the adult has a medical condition—
(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
(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 FormsForm 10 Guardianship and Administration Application
QCAT Medical Professional Report
Form 11 Declaration of Capacity Application