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
Date Written: 2010
• 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: Suggested Citation