Adults Who Lack Capacity: Substitute Decision-Making

In White, Benjamin P., McDonald, Fiona, & Willmott, Lindy (Eds.) Health Law in Australia. Thomson Reuters Australia, Sydney, pp. 149-207, 2010

Posted: 19 Jul 2016

See all articles by Ben White

Ben White

Queensland University of Technology - Faculty of Law

Lindy Willmott

Queensland University of Technology - Faculty of Law

Shih-Ning Then

Queensland University of Technology - Faculty of Law

Multiple version iconThere are 3 versions of this paper

Date Written: 2010

Abstract

• Mechanisms to facilitate consent to healthcare for adults who lack capacity are necessary to ensure that these adults can lawfully receive appropriate medical treatment when needed.

• In Australia, the common law plays only a limited role in this context, through its recognition of advance directives and through the parens patriae jurisdiction of superior courts.

• Substitute decision-making for adults who lack capacity is facilitated primarily by guardianship and other related legislation. This legislation, which has been enacted in all Australian States and Territories, permits a range of decision-makers to make different types of healthcare decisions.

• Substitute decision-makers can be appointed by the adult or by a guardianship or other tribunal. Where there is no appointed decision-maker, legislation generally empowers those close to the adult to make the relevant decision. Most Australian jurisdictions have also provided for statutory advance directives.

• For the most serious of decisions, such as non-therapeutic sterilisations, consent can only be provided by a Tribunal. Other decisions can generally be made by a range of substitute decision-makers. Some treatment, such as very minor treatment or that which is needed in an emergency, can be provided without consent.

• Guardianship legislation generally establishes a set of principles and/or other criteria to guide healthcare decisions. Mechanisms to resolve disputes as to who is the appropriate decision-maker and how a decision should be made have also been established.

Keywords: Health law, Medical law, Adult guardianship, Substitute decision-making, Impaired decision-making capacity

Suggested Citation

White, Ben and Willmott, Lindy and Then, Shih-Ning, Adults Who Lack Capacity: Substitute Decision-Making (2010). In White, Benjamin P., McDonald, Fiona, & Willmott, Lindy (Eds.) Health Law in Australia. Thomson Reuters Australia, Sydney, pp. 149-207, 2010. Available at SSRN: https://ssrn.com/abstract=2808889

Ben White (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/whiteb/

Lindy Willmott

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/willmott/

Shih-Ning Then

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

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