Incompetent patients and substitute decision-making

CHAPTER 8 Incompetent patients and substitute decision-making



8.1 Substitute decision-making



[8.1.1] What if an incompetent patient needs treatment?


Once it has been determined that a patient is incompetent, the health professional must investigate various issues to decide whether treatment should be given. The following questions should be asked:


1. Does the patient have a valid advance directive that applies in the circumstances?
• If the answer is ‘yes’, follow the directive.

• If the answer is ‘no’, go to question 2.

2. Has a court or guardianship authority appointed a guardian or made orders relating to the patient’s treatment?
• If the answer is ‘yes’, seek consent from the guardian, or follow the orders of the court or guardianship authority.

• If the answer is ‘no’, go to question 3.

3. Has the patient created an enduring power of attorney over health matters?
• If the answer is ‘yes’, seek consent from the attorney, medical agent or enduring guardian.

• If the answer is ‘no’, go to question 4.

4. Is there a person responsible or statutory health attorney? (not available in the ACT or the Northern Territory)
• If the answer is ‘yes’, seek consent from person responsible or statutory health attorney.

• If the answer is ‘no’, go to question 5.

5. Is the treatment in the patient’s best interests and necessary to save their life or prevent injury or damage to their health? (see [6.4.1])
• If the answer is ‘yes’, provide the treatment, under the doctrine of necessity.

• If the answer is ‘no’, do not provide the treatment.


These questions, and the discussion that follows, do not apply to treatments for mental illnesses and disorders. These are discussed in chapter 13.


The first question relates to whether the patient has made an advance directive that applies in the circumstances. While advance directives are rare, they are the first thing to check because they may indicate the patient’s own decision about whether they consent to the treatment being proposed. The law regarding advance directives is discussed in chapter 10.


The law in each state and territory provides for various mechanisms of substitute decision-making where there is no advance directive. These include:


• guardianship or orders from a court or guardianship authority

• enduring powers of attorney over health matters

• persons responsible

• statutory health attorneys.

In the absence of a substitute decision-maker, a health professional may provide treatment without consent as long as the treatment is:


• an emergency medical treatment, or

• a minor treatment that is in the patient’s best interests or necessary to improve their health and wellbeing: see [6.4.1].

This book uses the term substitute decision-makers to refer to court- and tribunal-appointed guardianship, enduring powers of attorney, enduring guardianship, persons responsible and statutory health attorneys. The various kinds of substitute decision-maker are discussed below.



8.2 Guardianship



[8.2.1] What is guardianship?


A guardian is a person who is appointed, either by a court or a guardianship authority, to make decisions on behalf of an incompetent adult.


The courts’ power to appoint a guardian comes from its parens patriae jurisdiction. Literally translated, parens patriae means ‘father of the people’. This jurisdiction has existed for over a thousand years, and it gives the Crown the power to care for children, people with intellectual disability and people with mental illness. In modern times, the jurisdiction survives in the power of the Supreme Court in each state and territory to make orders for the care of incompetent adults (and of children: see chapter 9). The parens patriae jurisdiction also gives the courts power to appoint guardians to make decisions regarding medical treatment, and to review those decisions.


All Australian states and territories have passed legislation creating guardianship bodies with powers similar to those of the Supreme Courts in this area. These bodies are intended to operate informally, quickly and efficiently, without the need for specialist legal counsel. They have not taken over the role of the Supreme Courts; rather they operate as alternative avenues for the appointment of guardians and the review of guardianship decisions. Any decision of a guardianship authority can be reviewed by the Supreme Court of the relevant jurisdiction.


Applications for guardianship can be made by any person who has an interest in the patient’s care; for example, their family, their friends, and members of their treatment team. Courts and guardianship authorities determine whether a patient is in need of guardianship and, if they find this to be the case, appoint the best person to represent the patient’s interests. In the absence of a suitable candidate courts and guardianship authorities often appoint statutory guardians, such as the Public Guardian in New South Wales, the Northern Territory and Tasmania, the Adult Guardian in Queensland, and the Public Advocate in Victoria and Western Australia.


The guardianship authorities in the Australian states and territories are listed in table 8.2.1A.


Table 8.2.1A Guardianship authorities



























ACT Guardianship and Management of Property Tribunal (www.courts.act.gov.au/magistrates/index.html)
NSW Guardianship Tribunal (www.gt.nsw.gov.au/)
NT Guardianship Panel, Local Court (www.nt.gov.au/justice/ntmc/index.shtml)
Qld Guardianship and Administration Tribunal (www.justice.qld.gov.au/guardian/gaat.htm)
SA Guardianship Board (www.opa.sa.gov.au/index.htm)
Tas Guardianship and Administration Board (www.guardianship.tas.gov.au/)
Vic Guardianship and Administration List, Victorian Civil and Administrative Tribunal (www.vcat.vic.gov.au/)
WA State Administrative Tribunal (www.sat.justice.wa.gov.au/)

Guardians effectively speak for incompetent patients, and their decisions are treated as if they were the decisions of the patients themselves. In some jurisdictions it is said that the guardian is given the same power to do things that the represented person would have enjoyed had they been competent. In others, the guardian has the equivalent of parental power over the represented person.


Guardians in all jurisdictions are given powers in relation to the represented person’s medical care. However, all jurisdictions place limits on the types of treatment that can be consented to by a guardian without additional approval from guardianship authorities or courts. This is discussed in [8.5.1].


Guardianship legislation in the Australian states and territories is listed in table 8.2.1B.


Table 8.2.1B Guardianship legislation



























ACT Guardianship & Management of Property Act 1991 s 14
NSW Guardianship Act 1987 s 4
NT Adult Guardianship Act 1988 s4
Qld Guardianship & Administration Act 2000 ss 35, 37
SA Guardianship & Administration Act 1993 s 5
Tas Guardianship & Administration Act 1995 s 6
Vic Guardianship & Administration Act 1986 s 4(2)
WA Guardianship & Administration Act 1990 s 51


[8.2.2] How do courts, guardianship authorities and guardians make decisions?


Under the parens patriae jurisdiction courts, and the guardians they appoint, are required to make decisions in the best interests of the patient. The best interests test at common law is very difficult to define, but it includes consideration of medical and social factors and how they affect the patient’s life. In the UK, the assessment of best interests was until recently left primarily to the doctors in charge of the treatment team. In Australia (and lately in the UK), there has been reluctance to leave such assessments entirely to doctors, because the best interests of the patient are not solely medical: see [9.5.1].


Most Australian decisions concerning best interests have occurred in the context of the treatment of children. Fortunately, these cases are relevant to the assessment of the best interests of adult patients, because the issues are the same. In Re Marion (No 2) (1992) 17 Fam LR 336, the court created a checklist of factors to consider in assessing best interests. See the Case example in [9.3.2] for the list of factors.


Some jurisdictions have now dealt with the assessment of the patient’s interests by guardianship authorities, and the guardians they appoint, in their guardianship legislation. There is a heavy emphasis in most of these schemes on substituted judgment, meaning that the decision-maker must take into account the patient’s own wishes and values.


The statutory factors that guardianship bodies and guardians must consider when making decisions about treatment are listed in table 8.2.2.


Table 8.2.2 Consent to treatment by guardianship authorities and guardians: legislation and factors to consider









































ACT Guardianship & Management of Property Act 1991

Section 4 states:
A person’s interests include the following:
(a) protection of the person from physical or mental harm;

(b) prevention of the physical or mental deterioration of the person;

(c) the ability of the person to
(i) look after himself or herself; and

(ii) live in the general community; and

(iii) take part in community activities; and

(iv) maintain the person’s preferred lifestyle (other than any part of the person’s preferred lifestyle that is harmful to the person);

(d) promotion of the person’s financial security;

(e) prevention of the wasting of the person’s financial resources or the person becoming destitute.

Section 5(2) states:
The decision-making principles to be followed by the decision-maker are the following:
(a) the protected person’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person’s interests;

(b) if giving effect to the protected person’s wishes is likely to significantly adversely affect the person’s interests – the decision-maker must give effect to the protected person’s wishes as far as possible without significantly adversely affecting the protected person’s interests;

(c) if the protected person’s wishes cannot be given effect to at all – the interests of the protected person must be promoted;

(d) the protected person’s life (including the person’s lifestyle) must be interfered with to the smallest extent necessary;

(e) the protected person must be encouraged to look after himself or herself as far as possible;

(f) the protected person must be encouraged to live in the general community, and take part in community activities, as far as possible.
NSW Guardianship Act 1987

Section 4 states:
It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.

Under s 32, any medical or dental treatment that is carried out on such people is carried out for the purpose of ‘promoting and maintaining their health and well-being’. Under s 44(2) the tribunal must consider the following when giving consent to treatment:
(a) the views (if any) of:
(i) the patient,

(ii) the person who is proposing that medical or dental treatment be carried out on the patient,

(iii) any persons responsible for the patient, and

(b) the matters referred to in section 42(2); and

(c) the objects of this Part [meaning the promotion and maintenance of health and wellbeing].

The ‘matters referred to in section 42(2)’ are:
(a) the grounds on which it is alleged that the patient is an incompetent patient,

(b) the particular condition of the patient that requires treatment,

(c) the alternative courses of treatment that are available in relation to that condition,

(d) the general nature and effect of each of those courses of treatment,

(e) the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and

(f) the reasons for which it is proposed that any particular course of treatment should be carried out.
NT Adult Guardianship Act 1988

Section 4 states:
Every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that:
(a) those means which are the least restrictive of a represented person’s freedom of decision and action as is possible in the circumstances are adopted;

(b) the best interests of a represented person are promoted; and

(c) the wishes of a represented person are, wherever possible, given effect to
Qld Guardianship & Administration Act 2000

Section 12 of Sch 1 states:
(1) The ‘health care principle’ means power for a health matter, or special health matter, for an adult should be exercised by a guardian, the adult guardian, the tribunal, or for a matter relating to prescribed special health care, another entity:
(a) in the way least restrictive of the adult’s rights; and

(b) only if the exercise of power:
(i) is necessary and appropriate to maintain or promote the adult’s health or wellbeing; or

(ii) is, in all the circumstances, in the adult’s best interests.

(2) In deciding whether the exercise of a power is appropriate, the guardian, the adult guardian, tribunal or other entity must, to the greatest extent practicable:
(a) seek the adult’s views and wishes and take them into account; and

(b) take the information given by the adult’s health provider into account

(3) The adult’s views and wishes may be expressed:
(a) orally; or

(b) in writing, for example, in an advance health directive; or

(c) in another way, including, for example, by conduct.
SA Guardianship & Administration Act 1993

Section 5 states:
Where a guardian appointed under this Act, an administrator, the Public Advocate, the Board or any court or other person, body or authority makes any decision or order in relation to a person or a person’s estate pursuant to this Act or pursuant to powers conferred by or under this Act:
(a) consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and

(b) the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and

(c) consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and

(d) the decision or order made must be the one that is the least restrictive of the person’s rights and personal autonomy as is consistent with his or her proper care and protection.
Tas Guardianship & Administration Act 1995

Section 6 states:
A function or power conferred, or duty imposed, by this Act is to be performed so that:
(a) the means which is the least restrictive of a person’s freedom of decision and action as is possible in the circumstances is adopted; and

(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and

(c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.

Section 43(2) states:
For the purposes of determining whether any medical or dental treatment would be in the best interests of a person to whom this Part applies, matters to be taken into account by the person responsible include:
(a) the wishes of that person, so far as they can be ascertained; and

(b) the consequences to that person if the proposed treatment is not carried out; and

(c) any alternative treatment available to that person; and

(d) the nature and degree of any significant risks associated with the proposed treatment or any alternative treatment; and

(e) that the treatment is to be carried out only to promote and maintain the health and wellbeing of that person; and

(f) any other matters prescribed by the regulations.
NB: the definition of ‘person responsible’ includes a guardian appointed by the Guardianship Board: see [8.4.1]
Vic Guardianship & Administration Act 1986

Section 4(2) states:
It is the intention of Parliament that the provisions of this Act be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that:
(a) the means which is the least restrictive of a person’s freedom of decision and action as is possible in the circumstances is adopted; and

(b) the best interests of a person with a disability are promoted; and

(c) the wishes of a person with a disability are wherever possible given effect to.

Section 38(1) states:
In this Part, for the purposes of determining whether any special procedure or any medical or dental treatment would be in the best interests of the patient, the following matters must be taken into account:
(a) the wishes of the patient, so far as they can be ascertained; and

(b) the wishes of any nearest relative or any other family members of the patient; and

(c) the consequences to the patient if the treatment is not carried out; and

(d) any alternative treatment available; and

(e) the nature and degree of any significant risks associated with the treatment or any alternative treatment; and

(f) whether the treatment to be carried out is only to promote and maintain the health and well-being of the patient; and

(g) any other matters prescribed by the regulations.
WA Guardianship & Administration Act 1990

Section 4(2)(a) states:
The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.

Section 51 states:
(1) Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person.

(2) Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible—
(a) as an advocate for the represented person;

(b) in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;

(c) in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;

(d) in such a way as to protect the represented person from neglect, abuse or exploitation;

(e) in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person’s previous actions;

(f) in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;

Related posts:

  1. Consent
  2. Competence
  3. Incompetent patients and end-of-life decisions
  4. Mental health

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Mar 25, 2017 | Posted by in GENERAL SURGERY | Comments Off on Incompetent patients and substitute decision-making

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