End of Life Law in Australia

How do substitute decision-makers make decisions?

How do substitute decision-makers make decisions?

All substitute decision-makers must follow the principles set out in the Act when deciding whether or not to consent to medical treatment for a person at the end of life. These principles include:

  • making decisions that are least restrictive of the freedom of decision and action of the person with impaired capacity;
  • promoting that person’s best interests; and
  • ensuring the wishes of the person are, if possible, carried out.

A guardian will be acting in the best interests of the person who lacks capacity when they act:

  • in consultation with the person and take into account his or her wishes;
  • as an advocate for that person; and
  • in a way that protects the person from neglect, abuse or exploitation.

All persons responsible, when determining whether medical treatment would be in the best interests of a person who lacks capacity, must also consider:

  • the wishes of that person, if possible;
  • the consequences to the person if the treatment is not provided;
  • any alternative treatment that is available;
  • the nature and degree of risks of any treatment; and
  • that treatment must only be carried out to promote and maintain the health and wellbeing of the person.

The Board, when considering an application for consent to carry out medical treatment, and determining whether that treatment is in the best interests of the person, may also consider whether the proposed treatment can be postponed on the grounds that:

  • better treatment may become available; and
  • whether that person is likely to become capable of consenting to the treatment.

If a substitute decision-maker has difficulty making a decision and needs assistance, he or she may apply to the Guardianship and Administration Board for advice or direction.