How do substitute decision-makers make decisions?

Before deciding for a person, substitute decision-makers (including guardians) must support the person to make their own decisions and participate in decision-making, express their will and preferences, and develop their decision-making ability.

When making decisions, substitute decision-makers must also apply the decision-making principles.

Decision-making principles

The principles include:

a person’s decision-making ability is to be respected and promoted
providing a person who needs decision-making support with necessary supports to enable the person to make and participate in decision, express their will and preferences, and develop their decision-making ability
the views, wishes and preferences of a person with impaired decision-making ability are to be respected and used to inform those decisions
the role of close family members, carers and other significant persons in the life of a person with impaired decision-making ability is to be recognised
the importance of preserving the cultural and linguistic environment of the person is to be recognised
the personal and social well-being of a person with impaired decision-making ability is to be promoted
the means which is the least restrictive of a person’s freedom of decision and action as possible in the circumstances is to be adopted.

A person’s personal and social wellbeing is promoted in ways including:

respecting the inherent dignity of the person and their individual autonomy, including the freedom to make their own choices and their right to independence
respecting and promoting the person’s own decision-making ability
preserving the dignity of risk of a person with impaired decision-making ability in respect of decisions is to be recognised and to inform those decisions
having regard to the person’s existing supportive relationships, religion, values, gender identity, gender expression, sexual orientation and cultural and linguistic environment
respecting the right of Aboriginal and Torres Strait Islander people to enjoy their culture, including with other people who share that culture
recognising the importance of, and facilitating access to, the provision of supports that enable the person to exercise the person’s autonomy.

Decision-making process

When determining whether to decide for the person, a substitute decision-maker must first consider whether the person:

has a relevant Advance Care Directive, and
is likely to regain decision-making ability and, if so, whether the decision can be postponed without the delay causing harm.

If a substitute decision-maker is satisfied there is a need to decide for the person, they must:

give effect, as far as practicable, to the views, wishes and preferences of the person with impaired decision-making ability, if known (including those in an Advance Care Directive), and
if they cannot determine these, give effect to what they reasonably believe those views, wishes and preferences are, based on all of the information available, and act in a manner that promotes the personal and social wellbeing of the person and is least restrictive of their human rights.

Information available includes information obtained by consulting with close family members, carers, and other significant people in the person’s life who they person would want to be consulted.

There are other considerations a person responsible must take into account when making a decision. These are discussed above under Who can be a substitute decision-maker for medical treatment decisions at the end of life?

The views, wishes and preferences of the person should only be overridden by a substitute decision-maker if:

it is necessary to prevent serious harm, or the risk of serious harm, to the person or another person; or
carrying out the decision would be unlawful, or inconsistent with decisions made by the Tribunal.

If the views, wishes and preferences of the person are overridden, the substitute decision-maker must provide the person with information about why, in a way appropriate to the person’s circumstances.