End of Life Law in Australia

How does a substitute decision-maker under an Advance Personal Plan make decisions?

How does a decision-maker make decisions?

When making decisions, the decision-maker must comply with the decision-making principles stated in the Act, and must act honestly and with care, skill and diligence. The decision-making principles require the decision-maker to:

  • make decisions in accordance with an advance care statement made by the person (subject to some exceptional circumstances), and give effect to the statement in the way he or she believes the person would have done in the circumstances.

  • where there is no advance care statement, make decisions in the way he or she believes the person would have done in the circumstances. This includes seeking the person’s current views and wishes (if possible), taking into account their previously stated views and wishes, and consulting other people who may have information to assist in deciding what the person would have done.

This process is known as exercising substituted judgment.

If the decision-maker cannot determine what the person would have done in the circumstances, he or she must act in a way that is in the person’s best interests, taking into account considerations such as:

  • providing appropriate care to the person, including taking appropriate health care action;
  • maintaining the person's right to be treated with dignity and respect;
  • protecting the person's freedom of decision and action; and
  • protecting the person from harm, neglect, abuse or exploitation.