Adults Who Lack Capacity: Substitute Decision-Making
White, Ben, McDonald, Fiona, & Willmott, Lindy (Eds.) Health Law in Australia (Third Edition). Thomson Reuters, Pyrmont, New South Wales, pp. 207-270, Forthcoming
Posted: 27 Aug 2018
Date Written: August 3, 2018
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 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 and other relevant legislation generally establishes a set of principles and/ or other criteria to guide healthcare decisions. Mechanisms have also been established to resolve disputes as to who is the appropriate decision-maker and how a decision should be made.
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