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Adults who lack capacity : substitute decision-making

White, Benjamin P., Willmott, Lindy, & Then, Shih-Ning (2010) 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.

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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.

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ID Code: 33685
Item Type: Book Chapter
Additional URLs:
Keywords: Health law, Medical law, Adult guardianship, Substitute decision-making, Impaired decision-making capacity
ISBN: 9780455226798
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Law not elsewhere classified (180199)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Law and Justice Research Centre
Current > Schools > School of Law
Copyright Owner: Copyright 2010 Thomson Reuters Australia
Deposited On: 03 Aug 2010 21:42
Last Modified: 29 Feb 2012 14:21

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