Last updated 25 July 2022
It is a fundamental human right that people are able to participate in their own decision-making and make choices about what they want and value. A finding that a person does not have capacity could impact multiple rights protected under the Human Rights Act 2019 (Qld) (Human Rights Act), including:
- recognition and equality before the law (s 15 Human Rights Act) – a finding of impaired capacity impacts on a person’s right to make decisions under the law in relation to that matter and may result in the appointment of a substitute decision-maker to make the decisions on their behalf
- protection from torture and cruel, inhuman or degrading treatment (s 17 Human Rights Act) – a finding of impaired capacity may mean a person is subject to medical treatment without their consent
- right to liberty and security (s 29 Human Rights Act) – a finding of impaired capacity may mean a person is subject to restrictive practices (e.g. restraint and seclusion)
- privacy and reputation (s 25 Human Rights Act) – a finding of impaired capacity may mean that decisions impacting a person’s family and home, physical and mental integrity and even the exercise of their sexuality and individual identity (e.g. their clothing), are made by someone else.
All adults in Queensland are presumed to have capacity for decision-making. They can make decisions to live their lives independently and decide what is best for them, taking or leaving the advice of others. They can make unwise or risky decisions. Some groups of adults are more at risk of having their right to make autonomous decisions scrutinised including older persons and persons who have a disability. The presumption of capacity for an adult is not affected by any personal characteristic such as disability, mental illness or age.