Last updated 5 August 2016
Decision-making capacity is defined in Queensland in three parts within the Guardianship and Administration Act 2000 (Qld) (Guardianship Act):
- understanding the nature and effect of the decision
- deciding freely and voluntarily
- communicating the decision in some way.
If a person is unable to satisfy all three parts, they are said to have impaired decision-making capacity. The impairment may be a result of a congenital intellectual disability, acquired brain injury, dementia, mental illness or some other cause.
The law recognises that a person’s decision-making capacity may be variable and fluctuating depending upon the type of decision to be made, the time the decision needs to be made, the adult’s physical health and the stresses they are experiencing.
Principles for dealing with people with impaired decision-making capacity
The Guardianship Act sets out a number of general principles that must be applied by any person or entity acting on behalf of someone with impaired decision-making capacity (s 11, sch 1 Guardianship Act):
- An adult is presumed to have capacity to make their own decisions unless incapacity for that particular decision is established.
- Each individual has the same basic rights including the protection of individual liberty and access to services.
- Each person should be valued as an individual, and their human worth and dignity should be respected.
- An adult has a right to be valued as a member of society.
- A decision maker must acknowledge the importance of encouraging the adult to take part in general community activities and to be as autonomous and self-reliant as possible.
- A decision maker must apply the least restrictive option that is consistent with the adult’s proper care and protection.
- The adult has the right to participate, to the greatest practicable extent, in the decisions affecting their own life.
- If it is possible to determine the adult’s views or wishes from their previous actions, then the decision maker must take these into account in any decision.
- A decision maker must recognise the importance of maintaining the adult’s existing supportive relationships.
- A decision maker must recognise the importance of maintaining the adult’s cultural and linguistic environment, including religious beliefs and lifestyle choices.
- Assistance given to an adult must meet their current needs and be adapted to their individual characteristics.
- A decision maker must recognise the adult’s right to confidentiality in relation to personal information.
Any person or entity making a decision about the adult’s health care must also exercise their authority in accordance with the health care principle (also contained in sch 1 of the Guardianship Act), which includes:
- electing the option that is least restrictive of the adult’s rights, is necessary and appropriate and is in the adult’s best interests, while taking into account the adult’s views
- maintaining or promoting the adult’s wellbeing, which must take into account the information given by the adult’s health provider.