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Knowing when a person has lost capacity to make a decision is not always clear. Some people may be able to make some decisions but not others. Making decisions for oneself is a basic human right and health and aged care professionals have a responsibility to include people in decision making and provide assistance to maximise capacity as far as possible.
If the person is unable to understand decisions and their consequences or communicate their preferences you may need to speak to the person’s substitute decision maker.
While the general principles underlying legal appointment of a substitute decision maker for health and personal care are similar across Australia, the terms used, regulations and witnesses required vary among the states and territories. For clarity the term 'substitute decision maker’ is used here.
In most states there is a hierarchy of who should make a decision if an individual cannot make it themselves.
For health and lifestyle or personal decisions, if there is a legally appointed substitute decision maker e.g. enduring guardian (enduring power of attorney - personal/health care ACT, QLD, Vic), or a guardian appointed by a tribunal, then this person is the one who should make the decision.
A person may also have nominated who they want to be their substitute decision maker in an advance care plan or advance care directive, and this person(s) would be the next to make the decision. If there has been no previous arrangements put in place, then each state/territory has an order of the person to make a decision and this is not necessarily next of kin.
Also consider any written or spoken wishes of the person. They may have written down or spoken about their wishes for lifestyle, social, financial and health care decisions. They may have an advance care plan or advance care directive outlining the care they do, or do not, want to receive. It is important that these wishes and documents be considered when relevant decisions are made on their behalf.
If you have to make a decision for another person, the best way to approach this is to try to make the decision they would have made if they had been able to. It means “standing in the shoes” of the person – seeing the choices to be made from their perspective. It means using your knowledge of the person and their wishes, as well as any planning documentation they have completed.
Provide information and support to care partners to assist them in their role as a substitute decision maker.