Making Treatment Decisions

'Treatment' refers to any medical, surgical or dental treatment or other health care, including a life-sustaining measure or palliative care.

A treatment decision is a decision to consent or refuse consent to the commencement or continuation of any treatment.

When seeking a treatment decision for a person who lacks the capacity to make their own judgements, health professionals must follow a set order of decision-makers, as specified in Section 110ZJ and 110ZD of the Guardianship and Administration Act 1990 (the Act).

In the Act, for the purpose of Part 9B – Advance health directives and Part 9E – Medical research, the term ‘treatment’ includes medical research. Medical research is not included in the definition of treatment when it is applied to other parts of the Act. For more information refer to the Position Statement: Decisions about medical research.

Urgent treatment

Treatment is regarded as urgent if it is needed to save a person's life or prevent the person from suffering significant pain or distress.

Where a person requires urgent treatment and it is not practicable for the health professional to determine whether an Advance Health Directive has been made or to obtain a treatment decision from anybody in the hierarchy, the health professional may provide the necessary treatment.

Urgent treatment following attempted suicide

In cases where a person is in need of urgent treatment that the health professional believes is the result of attempted suicide, the health professional may administer the necessary treatment even:

Non-urgent treatment

If a person in need of non-urgent treatment has made an Advance Health Directive and the directive covers the treatment required, the health professional will need to proceed in accordance with the directive.

There are some circumstances where the Advance Health Directive may be considered invalid, in which case the health professional may not follow the directive.

If for some reason the Advance Health Directive is invalid, or if a person has not made an Advance Health Directive, the legislation sets out the order of people who the health professional will need to obtain a treatment decision from. This order is contained in sections 110ZJ and 110ZD of the Act and has been summarised for ease of understanding as 'the hierarchy of treatment decision-makers'.

When obtaining a treatment decision the health professional must go to the first person on the hierarchy, who is 18 years of age or older, has full legal capacity, is reasonably available and willing to make the decision.

If all of these conditions are not met, for example the first person in the hierarchy does not have capacity or is not available, the health professional can go to the next person in the hierarchy.

The hierarchy of treatment decision-makers is:

Figure 1 hierarchy of treatment decision-makers

A health professional must consult the nearest relative in the order above, before moving onto a primary unpaid carer. There is no distinction in relation to age, therefore all children of a person have equal priority, and a health professional does not have to seek a treatment decision from the eldest child.

A person is to be regarded as maintaining a close personal relationship with the person needing treatment if the relationship is maintained through frequent personal contact and a personal interest in the welfare of the person needing the treatment.

Validity of Advance Health Directive

If circumstances have changed since an Advance Health Directive was made that could not have been foreseen at the time of making the directive but that could have caused the maker to choose a different treatment decision, the Advance Health Directive could be judged to be invalid.

A range of factors would be considered when determining the validity of the directive. These include:

For more information on Advance Health Directives and their validity, go to the Department of Health's website.

Responsibility for ensuring capacity

Responsibility for ensuring that a person understands the nature and consequences of the treatment proposed - and for obtaining a treatment decision - lies with the health professional.

If a health professional has concerns about the capacity of a person who has not made an AHD and for whom nobody in the hierarchy of treatment decision-makers can be found, the professional might need to consider applying to the State Administrative Tribunal for the appointment of a guardian.

When to apply for a guardianship order

There are a number of treatment-related circumstances where, in the view of the Public Advocate, an application for a guardianship order should be made to the State Administrative Tribunal. These include:

An application must be made to the State Administrative Tribunal when an adult lacks the capacity to make a treatment decision regarding a sterilisation procedure.

Role of the Public Advocate

When no one else is willing, suitable and available to act as guardian, the Public Advocate may be appointed by the State Administrative Tribunal as guardian of last resort with authority for treatment and health care.

The Public Advocate as guardian must:

The Public Advocate may also:

The Public Advocate does not take the place of relatives, friends, carers or paid service providers in helping the person with a decision-making disability. It is important that the person continues to receive the services, support and care provided by service providers, family and friends.

The Public Advocate does not:

For more information download the position statement titled Decisions About Treatment, from the downloads section below.

Last updated: 14-Apr-2020

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