Substitute decision-makers for healthcare Queensland

Emergencies

You should assess whether urgent treatment is required.

Treatment (other than special health care or the withholding of life-sustaining treatment) may be provided without consent where the patient lacks capacity and the treatment is necessary to address an imminent risk to the patient’s life or health.

Urgent treatment may also be provided without consent to prevent significant pain or distress, where it is not reasonably practicable to obtain consent from a decision-maker.

In either case, treatment should not proceed if you are aware that the patient has refused the treatment in an Advance Health Directive (AHD).

Advance Heath Directives

An AHD is a formal record of a person’s decisions or preferences about future health care if they lose capacity.

If your patient does not have capacity, you should take reasonable steps to determine whether an AHD exists and whether it applies to the decision being considered.

An AHD must be in writing and must have been made when the person had capacity.

An AHD may include:

• specific directions about treatments a person would accept or refuse
• statements of preferences to guide decision-making
• directions about withholding or withdrawing life-sustaining measures in limited circumstances

A valid and applicable AHD must be followed.

Decision-makers

In Queensland, decisions may be made by:

• an attorney appointed under an Enduring Power of Attorney or Advance Health Directive
• a guardian appointed by the Queensland Civil and Administrative Tribunal
• a statutory health attorney, where no formal appointment exists

A statutory health attorney is identified according to a hierarchy, which may include:

• a spouse or partner with a close and continuing relationship
• an unpaid carer
• a close friend or relative who is not a paid carer

All decision-makers must apply the general principles and health care principle under Queensland law.

In practice, this means they should:

• support the patient to make their own decisions where possible
• take into account the patient’s views, wishes and preferences, or what they would likely have wanted
• act in a way that promotes the patient’s best interests

If you have concerns that a decision-maker is not acting in accordance with these principles, you should seek advice.

Minor and uncontroversial treatment

Health care may be provided without consent from a decision-maker where:

• the patient lacks capacity to make the decision
• the treatment is minor, uncontroversial and necessary to promote the patient’s health and wellbeing
• the practitioner is not aware that the patient objects to the treatment

Limits on decision making

In Queensland, a decision-maker can consent to most health care decisions.

However, they cannot consent to certain ‘special health care matters’, which include:

• sterilisation
• termination of pregnancy
• donation of tissue
• electroconvulsive therapy (ECT)
• non-ablative neurosurgical procedures
• experimental health care

If a valid and applicable Advance Health Directive contains a direction about a special health care matter, it must be followed. Otherwise, consent must be obtained from a court or the Queensland Civil and Administrative Tribunal.

Life-sustaining treatment

A decision-maker may consent to the withholding or withdrawal of life-sustaining treatment where the treating practitioner reasonably considers that starting or continuing the treatment would be inconsistent with good medical practice.

Consent must still be obtained from a decision-maker, even where treatment is considered futile. If consent cannot be obtained, an application may need to be made to the Office of the Public Guardian or QCAT, unless the situation is an emergency.

Additional resources

For more information on

• assessing capacity, see the Avant factsheet – Capacity: the essentials.
• Advance care planning in Queensland, including forms and resources, see Queensland Government forms
• making health care decisions for others in Queensland see the Office of the Public Guardian
• advance care planning in all states and territories, see QUT End of Life Law for Clinicians or Advance Care Planning Australia.