Who can make emergency medical decisions for you when you can’t?
Most adults are presumed to have the mental capacity to give consent themselves. But what happens when you can’t make decisions for yourself?
The person next in line to make decisions for you is referred to as the person responsible and it might not be your next of kin.
Read in this article
If you're in NSW following this hierarchy list of people is a requirement of the Guardianship Act 1987 (NSW). But did you know Australia has eight different Guardianships Acts in place, each with a slightly different interpretation?
Medical Consent
As a general rule, no operation, procedure or treatment may be undertaken without prior consent from the patient or, if the patient lacks capacity, from the patient’s substituted decision maker.
The only exceptions are:
- in an emergency when the patient lacks capacity and the patient’s express wishes are unknown; or
- where the law otherwise allows or requires treatment to be given without consent.
In NSW written consent must be obtained for significant treatment and procedures where a Person Responsible is consenting to treatment on behalf of a patient.
Who is the person responsible?
It depends on where they are on the hierarchy list of people. You might be surprised (and maybe a little shocked) who actually has the power to make decisions on your behalf.
A person responsible is not necessarily a persons next of kin or carer.
In NSW Section 33A(4) of the Guardianship Act 1987 sets the hierarchy of people who can be the person responsible.
A person responsible is one of the following people in order of priority.
- Guardian – an appointed guardian (including enduring guardian) who has been given the right to consent to medical and dental treatment. If this person is not available then –
- Spouse or partner – if there is no guardian, a spouse, de-facto spouse or partner where there is a close continuing relationship. If this person is not available then-
- Carer – if there is no spouse or partner, an unpaid carer who provides or arranges for domestic support on a regular basis. If this person is not available then –
- Relative or friend – if there is no carer, a friend or a relative who has a close personal relationship, frequent personal contact and a personal interest in the person's welfare, on an unpaid basis.
Caution for de-facto and LGBTQIA+ couples
The problemThis set hierarchy list of people can create problems for de-facto couples and LGBTQI+ people who may be together but living apart (TLA) when biological family members who either, do not recognise the relationship, or even know of its existence. Additionally, some families may seek to exclude the partner of their LGBTQI+ child or sibling from all medical decisions about their loved one.
The solution
The solution is for non-married LGBTQIA+ or de-facto partners is to each make a legal document formally granting the power of the responsible person, to someone of their own choosing, rather than leaving it to medical staff and estranged family members to try and sort out under the stress of a medical emergency.
The special rights of a person responsible
If you are the nominated person responsible for someone who cannot make decisions for themselves, you have a right and a responsibility to know and understand:
- what the proposed treatment is
- what the risks and alternatives are, and
- you can say “yes” or “no” to the proposed treatment and you can seek a second opinion
Are there things a person responsible cannot do?
A person responsible cannot consent to:
- Special medical treatments like sterilisation operations, pregnancy terminations and experimental treatments.
- Treatment if the patient objects to the treatment.
If you’re in this situation you can get more information from ncat.nsw.gov.au or the relevant government department in your own Australian state.
Call us today on 1300 137 403 or email us here for a no-obligation private chat about your situation.
Drew Browne is a specialty Financial Risk Advisor working with Small Business Owners & their Families, Dual Income Professional Couples, and diverse families. He's an award-winning writer, speaker, financial adviser and business strategy mentor. His business Sapience Financial Group is committed to using business solutions for good in the community. In 2015 he was certified as a B Corp., and in 2017 was recognised in the inaugural Australian National Businesses of Tomorrow Awards. Today he advises Small Business Owners and their families, on how to protect themselves, from their businesses. He writes for successful Small Business Owners and Industry publications. You can read his Modern Small Business Leadership Blog here. You can connect with him on LinkedIn. Any information provided is general advice only and we have not considered your personal circumstances. Before making any decision on the basis of this advice you should consider if the advice is appropriate for you based on your particular circumstance.
