Queensland

When will a substitute decision-maker be needed to make health care decisions for another person at the end of life?

A person is presumed to have capacity to make health care decisions. The general test for capacity is whether a person can:

• understand the nature and effect of decisions about the health care;
• freely and voluntarily make decisions about the health care; and
• communicate the decision in some way.

If a person is able to able to make a decision with appropriate support then that person will also have decision-making capacity. For example, a person may be able to make a decision if they receive support to communicate their decision.

If a person no longer has capacity, a substitute decision-maker will need to make the health care decision on the person’s behalf. This situation may arise when a person nears the end of their life.

Different capacity tests apply when a person wants to make an Advance Health Directive or an Enduring Power of Attorney. Find out more about Queensland's laws on capacity at Capacity and consent to medical treatment.

Who can be a substitute decision-maker for health care decisions at the end of life?

If the person who has lost capacity had previously made an Advance Health Directive which gives a direction about their health care or medical treatment that direction must be followed.

If the person does not have an Advance Health Directive, the first person on the following list who is available, willing and able to act can be a substitute decision-maker, and make health care decisions or provide consent to health care for a person with impaired capacity (in order of priority):

1. A guardian or guardians appointed by the Queensland Civil and Administrative Tribunal (QCAT). Anyone over the age of 18 who is not a paid carer or health professional of the person can be appointed by QCAT as a guardian. If there is no person available or appropriate to act as a guardian, the Public Guardian can be appointed. For more information about becoming a guardian, visit the Office of the Public Guardian.


2. An attorney appointed by the person either under an Enduring Power of Attorney (appointed under the Powers of Attorney Act) or an Advance Health Directive.


3. A default decision-maker known as a Statutory Health Attorney. This will be the first person aged 18 years or over from the following list who is available and willing to make the decision (in order of priority):
   • The person's spouse or partner, so long as the relationship is close and continuing. In Queensland a spouse includes a de facto partner (one of two persons who live together as a couple on a genuine domestic basis but are not married or related), regardless of their gender.
   • An unpaid carer of the person (who is not the person's health provider or residential service provider).
   • A close friend or relation of the person who has a close personal relationship with the adult and a personal interest in the adult’s welfare. A relation is a person (other than a spouse or unpaid carer) who:
     • is related to the adult by blood, spousal relationship, adoption or a foster relationship, or
     • for an Aboriginal or Torres Strait Islander person, is a relative under Aboriginal tradition or Torres Strait Islander custom.

Find out more about substitute decision-makers and consent in this Queensland Health flowchart.

Often decisions about health care will need to be made urgently. If a Statutory Health Attorney is unavailable or unwilling to make the decision, or is not a culturally appropriate person to make the decision the Public Guardian will be the default decision-maker.

What is supported decision-making?

Supported decision-making is a process that involves providing support so that a person, such as an adult with a cognitive impairment, can make their own decisions with assistance and participate in decision-making.

In Queensland any person (including attorneys, guardians, Statutory Health Attorneys and informal decision-makers) or entity (e.g. the Supreme Court or the Queensland Civil and Administrative Tribunal) performing functions or exercising powers under the guardianship legislation e.g. decision-making about health care, must apply a structured (i.e. supported) decision-making approach. This involves recognising an adult’s right to make their own decision; supporting the adult to make the decision; and taking into account the adult’s views, wishes and preferences.

Structured decision-making is one of the General principles for decision-making under the guardianship legislation. These principles, including structured decision-making, are discussed in detail below.

What is the role of the Queensland Civil and Administrative Tribunal (QCAT) in relation to decision-making at the end of life?

QCAT has the power to make decisions on behalf of a person without capacity for health care decision-making, including consenting to the withholding or withdrawing of life-sustaining treatment.

QCAT may also appoint a guardian, provide advice or directions to guardians and make declarations about a person’s capacity.

For further information about QCAT’s role visit QCAT.

What is the role of the Public Guardian in relation to decision-making at the end of life?

The Public Guardian is an independent office created under the Public Guardian Act 2014 (Qld). It has a number of functions relating to substitute decision-making at the end of life. The Public Guardian can:

• Be appointed as a guardian or attorney or be the default decision-maker if no one else is available.

• Intervene and make the decision about end of life treatment if there is disagreement between guardians, attorneys or Statutory Health Attorneys, or if they refuse to make a decision or decide contrary to the General principles or Health care principles.

• Act as mediator to resolve such disputes.

The Office of the Public Guardian can provide information and advice to the community about end of life decision-making and the Queensland guardianship regime.

What health care decisions can a substitute decision-maker make?

A substitute decision-maker can make most decisions about medical treatment for a person at the end of life, including consenting or refusing consent to medical treatment, including life-sustaining treatment. However, some restrictions apply in relation to consenting to the withholding or withdrawing of life-sustaining treatment.

The decisions a guardian or attorney can make will depend on the powers granted to the guardian by QCAT, or the powers granted to the attorney in the person's Advance Health Directive or Enduring Power of Attorney. If there are no limitations on a guardian or attorney's powers, they will be able to do anything the person could have done if they had capacity, including making most medical treatment decisions.

How do substitute decision-makers make decisions?

All substitute decision-makers must follow the General principles and Health care principles (set out in the guardianship laws) when deciding whether or not to consent to medical treatment or health care for a person at the end of life.

If a substitute decision-maker is having difficulty making a health care decision and requires assistance, he or she may apply to the Queensland Civil and Administrative Tribunal (QCAT) for advice or directions.

Where QCAT is making a health care decision about an adult (including consenting to the withholding or withdrawing of a life-sustaining measure for an adult with impaired capacity) it must, to the greatest extent practicable, seek and take into account the views, wishes and preferences expressed or demonstrated by the adult, as well as the views of any member of the adult’s support network (i.e. family or close friends).

Can a substitute decision-maker's decision be overridden?

Yes. If a substitute decision-maker decides that life-sustaining treatment should be withheld or withdrawn, the decision will only be followed by a health professional if he or she believes that commencing or continuing the treatment would not be good medical practice. This means that if the health professional believes the life-sustaining treatment should continue because it is good clinical practice, then the substitute decision-maker’s decision to withhold or withdraw the treatment will be overruled.

Can health professionals withhold or withdraw treatment without a substitute decision-maker's consent?

No. It is an offence for a health professional to carry out health care (including withholding and withdrawing life-sustaining treatment) on a person with impaired capacity unless:

• the substitute decision-maker consents; or
• there are laws allowing the health care to be given without consent; or
• the health care is authorised by the Supreme Court.

This results in an unusual legal position in Queensland in relation to futile treatment. Read more at Special provisions: Futile or non-beneficial treatment in Queensland.

In emergency situations life-sustaining treatment can be withheld or withdrawn without consent in some cases.

What happens if a person with impaired capacity objects to the withholding or withdrawing of treatment?

The guardianship legislation enables a person with impaired capacity to object to the provision of health care, as well as the  withholding and withdrawing of life-sustaining treatment. If a substitute-decision maker decides that treatment should be withheld or withdrawn, their decision will generally not operate if the person with impaired capacity objects to it.

Can treatment that is futile or non-beneficial be withheld or withdrawn without consent?

When a person has capacity a health professional may withhold or withdraw life-sustaining treatment they consider to be futile or non-beneficial without the person’s consent.

If, however, the person lacks capacity, consent must be obtained from the person’s substitute decision-maker before treatment can be withheld or withdrawn. This is the case even if the treatment is futile or non-beneficial and is needed to keep the person alive. A health professional who withholds or withdraws futile treatment from a person with impaired capacity without consent commits an offence.

If a substitute decision-maker does not consent, the Public Guardian or the Queensland Civil and Administrative Tribunal can authorise the withholding or withdrawal of futile treatment if they consider that treatment is not in the person’s best interests.

Find out more about Queensland’s laws on futility in clinical practice in Queensland Health’s End-of-life care: Guidelines for decision-making about withholding and withdrawing life-sustaining measures from adult patients: Guidance for health professionals.

Can a person demand treatment be given, even if a health professional believes that treatment will be futile or non-beneficial?

The law in Queensland requiring consent from a substitute decision-maker before futile treatment can be withheld or withdrawn from a person who does not have capacity creates an unusual legal position in relation to demanding treatment. Arguably, under the Queensland law a substitute decision-maker can insist that treatment be given to a person who does not have capacity even though the treating health professional may regard it as futile.

When can emergency treatment be provided, and is consent required?

Health care (other than special health care, or withholding or withdrawing life-sustaining treatment) may be given by a health professional to a person with impaired capacity without consent if it is needed urgently to either:

• meet imminent risk to the adult’s life or health; or
• prevent significant pain or distress to the adult, and it is not reasonably practicable to get consent from a substitute decision-maker.

Though not required by the law, where the treatment is needed 'to meet imminent risk to life or health' it is still good practice for health professionals to obtain a substitute decision-maker’s consent if possible.

If the health care is to meet  imminent risk to the adult's life or health and the health provider knows the adult objects to it in an Advance Health Directive, the health care cannot be given without consent. This is also the case if the adult objects to urgent health care needed to prevent significant pain and distress. However, in that situation, if the adult has minimal or no understanding of what the health care involves and/or why it is required; and it is likely to cause the adult no distress (or temporary distress that is outweighed by the benefit of receiving it) then the health care can still be provided.

Find out more about the law on emergency treatment at Capacity and consent to medical treatment.

Who makes decisions about withholding or withdrawing life-sustaining treatment in an emergency?

In an emergency situation life-sustaining treatment (except for artificial hydration and nutrition) can be withheld or withdrawn from a person without consent if the person’s health professional believes:

• the person has impaired capacity;
• starting or continuing the treatment would be inconsistent with good medical practice; and
• in accordance with good medical practice, the decision to withhold or withdraw treatment needs to occur immediately.

However, if a health professional knows the person objects to the withholding or withdrawal of treatment they cannot proceed without consent from the person’s substitute decision-maker.