Health care decisions for others

You may be asked to make health care decisions on behalf of an adult family member or close friend who cannot make their own health care decisions due to illness, injury or a medical condition.

You have the legal authority to make health care decisions on behalf of another adult who is unable to do so for themselves if:

• you are the adult’s guardian appointed by the Queensland Civil and Administrative Tribunal (QCAT) and have the power to make decisions about personal matters including health matters

or when there is no guardian

• you are the adult’s attorney for personal matters under an enduring power of attorney or an advance health directive

or when there is no guardian or attorney for personal matters

• you are the adult’s statutory health attorney.

For further information, contact the Adult Guardian, your legal adviser or health practitioner.

Assessing an adult’s decision-making capacity

Our laws assume every adult is able to make their own health care decisions unless information shows this is not the case. So, before someone acts as a statutory health attorney, a health professional must assess the patient’s decision-making capacity.

A person has the capacity to make health care decisions if they are capable of:

• understanding the nature and effect of the decisions (including the consequences of refusing treatment)
• freely and voluntarily making those decisions; and
• communicating the decisions in some way.

Assessing decision-making capacity

The health professional considers the type and complexity of the decision to be made. For instance, someone with an intellectual disability may be able to consent to a flu vaccination, but not to surgery.

Other relevant issues are also considered:

• a person with dementia may have fluctuating capacity, depending on the time of day
• a person who is depressed about their frailty or chronic illness may have trouble making major decisions
• someone may be under pressure by family members in conflict over a health care decision to be made, and may not be able to make a decision freely.

The person’s capacity should be checked before each health care decision is to be made, unless it is so severely impaired that it is obvious that they cannot make decisions.

Short term loss of decision-making capacity

There is only a short-term need for you to act as statutory health attorney. For instance, someone who is unconscious or delirious may recover some or all ability to make informed decisions about medical treatment. When this happens, your authority ends.

If a person with a mental illness is unable to consent to treatment of a physical condition unrelated to their mental illness, then the statutory health attorney can consent to health care if there is no guardian or attorney appointed.

Making an informed decision

As statutory health attorney or guardian, you have the right to all the information that the adult would have in order to make an informed decision.

Health care providers must obtain a patient’s informed consent before medical treatment begins because patients with capacity have the right to accept or refuse medical treatment, even treatment for very serious conditions.

Informed consent is given after the patient has:

• been told (in non-medical terms and in their own language) what the medical treatment involves and what effects it might have
• had time to think about the information and to ask any questions.

Where you have to give consent on behalf of the adult, ensure your decision is truly ‘informed’.

Ethical and legal principles used in making decisions

The principles to guide guardians, attorneys for personal matters and statutory health attorneys when making decisions about health care are contained in the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000

The laws contain the health care principle which provides that health care decisions should be made by an attorney in a way least restrictive of the adult’s rights and the health care decision must maintain or promote the adult’s health or wellbeing or be in their best interests.

As much as possible, you should seek the adult’s views and wishes, and together with the doctor’s opinion, take these into account when you make a decision. You may be able to work out, from the adult’s past actions or expressed opinions, what their wishes would be.

Sometimes, health care decisions made in the adult’s best interests may not reflect their views and wishes. You need to:

• act with care to protect the adult’s best interests
• recognise they have the right to participate as fully as they can in making health care decisions
• presume they have the capacity to make their own decisions unless there is clear evidence to the contrary
• discuss the matter with the person’s family and health practitioner respect and take into account their cultural, social and religious values
• respect their right to confidentiality.

Questions to consider before making a decision

You should ask the health care provider questions that help you understand what type of treatment it is, and what effect it will have:

• What is the medical condition?
• What does the treatment involve?
• What are the benefits of the treatment?
• What are the risks of the treatment?
• What are the consequences of not having the treatment?
• Is there alternative treatment available?

Second opinions

You have the right to ask for a second opinion in the same way that the adult could ask for a second opinion if they had the capacity to make decisions.

Difference between health care matters and personal matters

Guardians and attorneys appointed to make decisions about personal matters have the authority to decide about the adult’s care and welfare, such as where they live, education and legal matters. Admission to low-level care in an aged-care facility is considered a personal decision. Admission to a hospital, rehabilitation facility or high-level care in an aged-care facility with 24-hour care is considered a health care decision.

Statutory health attorneys can only make health care decisions.

If you are unsure whether or not you have the authority to make a decision, contact the Adult Guardian’s office for general (not legal) advice.

Uncertainty about decisions

If you are confused or worried because you have been asked to make a major decision and you are not sure what is in the best interests of the adult, ask for a second opinion from another doctor or talk to the nurses or your family. If you are still undecided or you do not wish to make a decision, you may contact the Adult Guardian for advice as a last resort.
If someone else is equally eligible to be the attorney or statutory health attorney and you disagree on the health care decision, the Adult Guardian can offer informal mediation to try to resolve disagreements. If unsuccessful, the Adult Guardian may make the health care decision acting as statutory health attorney of last resort.

The Adult Guardian has a 24 hour hotline that can assist – 1300 753 624

Consent

Consent before healthcare treatment

Usually an adult’s consent is required before treatment. Consent is required for such things as:

• a mammogram
• surgery
• dental work (such as filling or extracting teeth)
• participation in a clinical research trial approved by the QCAT
• withholding or withdrawing life sustaining measures.

Consent is not needed for the following:

• urgent health care (treatment needed to meet imminent risks to the adult’s life or health or treatment to prevent significant pain or distress, and it is impracticable to get consent)
• minor and uncontroversial health care, provided it is necessary for the adult’s health and well-being and they do not object to the treatment such as:
• • applying first aid
  • taking blood pressure
  • checking teeth
  • giving medications normally obtained without a prescription
  • giving antibiotics for a throat infection or asthma medication
  • administering cough mixture
  • a flu vaccination or eye drops
  • giving a tetanus or hepatitis injection.

If you don’t consent to the treatment, a health care provider may ask the Adult Guardian to intervene if they believe the adult needs the medical treatment and that you are acting against the health care principle.

Normally, the Adult Guardian asks you about your decision because you may have a very good reason. For instance, the adult may have told you at some time in the past that they would not want to undergo specific treatment.

The Adult Guardian then considers your explanation, information from the doctor and the principles contained in the law. If you are found to have acted contrary to the health care principle, then the Adult Guardian has authority to make the health care decision.
This may also be the outcome if you make a decision, but your decision is contrary to the health care principle.

Guardians cannot consent to some things

Guardians, attorneys for health matters and statutory health attorneys do not have the authority to consent to special health matters such as:

• donation of tissue
• sterilisation
• termination of pregnancy
• participation in special medical research or experimental health care.

Only QCAT can give consent for these matters.

Termination of authority

If you are a guardian or an attorney, your authority ends if your appointment is revoked by QCAT, whether or not the adult has regained their ability to make their own decisions.

If you are an attorney for personal matters, your authority ends if the adult regains their capacity to make personal decisions, or if the adult has the capacity to revoke the enduring power of attorney. The Adult Guardian may also investigate the actions of an attorney and suspend their powers if necessary. The QCAT can also suspend or revoke an attorney’s powers.

As a statutory health attorney, your authority ends if the adult regains the ability to make decisions. Unlike the roles of guardian and attorney for personal matters, your role is not necessarily ongoing. For example, next time a decision needs to be made, someone else may be more readily available (for instance, you might be out of town) to act as statutory health attorney.