Substitute decision makers

Doctors have a legal obligation to understand who to turn to when there is a need to provide care for a patient who has limited or no capacity to make decisions for themselves. The law varies between Australian states and territories, so we have prepared information specific to where you practise to help guide you.

Key concepts

Emergencies

You should assess if the decision needs to be made urgently. Where the patient is unable to give consent, treatment should be provided if it is required to save a person’s life or prevent serious injury to the patient’s health, subject to any guidance in an advance health directive that is in place.

Supported decision-making

Although you may have determined that the patient’s capacity is limited, they may be capable of making their own decisions with appropriate support. There is increasing recognition of the concept of ‘supported decision-making’. Rather than substituting another person into the role of ‘decision-maker’, the person receives assistance from a supporter with understanding options, working out what their preference is, and communicating the decision. If a person has capacity to make a decision with support, then the person’s decision is final even if it conflicts with their support person’s judgement. This allows the person with disabilities to exercise their autonomy in decision-making to the greatest extent possible.

The concept and terminology related to supported decision-making are interpreted slightly differently depending on the organisation or state where you provide care. You should check your organisation’s policies for specific information to help determine your obligations to your patient and their appointed support person.

Advance directives

An advance directive is a formal record of a person’s preferences for future care if they lose capacity and therefore cannot provide consent to medical treatment. These directives are called different things in different states and territories. Patients can also include various directions, depending on the state or territory in which they are created. Please refer to the specific information below.

You must refer to an advance directive if there is one. Generally, they outline what sorts of treatments that the patient would accept and/or refuse. It includes medical or surgical treatment, including palliative care and life-sustaining treatment. In some states/territories, patients can appoint a substitute decision maker in their advance directives.

Determining the legally-appropriate substitute decision-maker

There is a hierarchy for identifying the patient’s substitute decision-maker for a discussion about treatment options. This hierarchy is important to consider if that patient loses capacity and there is not a valid advance directive in place. Each state and territory have different legislation that outlines who is the correct substitute decision-maker for these health care decisions. As illustrated in the specific state/territory PDF below, which includes a flowchart, it is not automatically a patient’s next of kin.

The welfare and interests of the patient should be the paramount considerations of the substitute decision-maker when they are deciding to consent to treatment. The goal is to give the patient the best opportunity of having their health promoted and maintained in a way that they would have wanted. Substitute decision-makers should be guided by what they believe the patient would have wanted, not what the decision-maker themselves might want in the same situation.

Dealing with conflict

There may be times where conflict arises about the decisions of the substitute decision-maker, from other family members or people close to the patient. There may be differences of opinion or you or someone else may suspect that the patient is or was subjected to undue influence. People have different views on autonomy and how it should be respected. In these situations of conflict, we recommend that you call Avant or seek legal advice.

Download the factsheet for your state or territory

Additional resources

• For more information, forms and resources for each state and territory, please visit QUT End of Life Law for Clinicians and Advance Care Planning Australia.
• For more information on assessing capacity, please see the Avant factsheet: Capacity: the essentials or you can watch the 10 minute video below from an Avant Senior Medical Adviser on how to assess for capacity.

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