Adults who lack capacity : substitute decision-making

White, Benjamin P., Willmott, Lindy, & Then, Shih-Ning (2014) Adults who lack capacity : substitute decision-making. In White, Benjamin P., McDonald, Fiona, & Willmott, Lindy (Eds.) Health Law in Australia [2nd ed.]. Thomson Reuters, Pymont, NSW, pp. 193-253.

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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 have also been established to resolve disputes as to who is the appropriate decision-maker and how a decision should be made.

Impact and interest:

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ID Code: 74698
Item Type: Book Chapter
Keywords: Substitute decision-making, Adult guardianship, Health law, Medical law
ISBN: 9780455231549
Subjects: Australian and New Zealand Standard Research Classification > MEDICAL AND HEALTH SCIENCES (110000) > PUBLIC HEALTH AND HEALTH SERVICES (111700) > Care for Disabled (111703)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Law and Society (180119)
Australian and New Zealand Standard Research Classification > PHILOSOPHY AND RELIGIOUS STUDIES (220000) > APPLIED ETHICS (220100) > Bioethics (human and animal) (220101)
Australian and New Zealand Standard Research Classification > PHILOSOPHY AND RELIGIOUS STUDIES (220000) > APPLIED ETHICS (220100) > Medical Ethics (220106)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Australian Centre for Health Law Research
Deposited On: 04 Aug 2014 22:26
Last Modified: 10 Oct 2015 14:15

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