Health Care Decision Making Act 2023

This section governs the exercise of authority of a health care decision maker to make a health care decision in relation to an adult with impaired decision making authority.

Subject to sections 20(1) and 41(1)(e), the health care decision maker must give effect to any advance care statement, about the health care decision, made by the adult.

If no advance care statement was made about the health care decision, the health care decision maker must exercise authority under this Act in the way the health care decision maker believes on reasonable grounds the adult would in the circumstances.

In determining what the adult would do in the circumstances, the health care decision maker must take into account:

the adult's current and previously stated decisions, views, wishes and objections about the matter; and

the health care decision maker's personal knowledge of the adult.

Note for subsection (4)(a)

This would include the advance personal plan for a person with health care authority appointed under the Advance Personal Planning Act 2013.

If a health care decision maker forms a belief on reasonable grounds regarding what the adult would do in the circumstances, the health care decision maker must exercise authority in that way, even if doing so may not be in the adult's best interests.

Note for subsection (5)

Certain decisions, practices and health care are restricted or limited under sections 29 and 30.

Subsection (5) does not require giving the adult addictive substances, without therapeutic benefit, that the adult would use if the adult had legal capacity.

If a health care decision maker is unable to form a belief on reasonable grounds regarding what the adult would do in the circumstances, the health care decision maker must exercise authority in the way that the decision maker believes on reasonable grounds is in the best interests of the adult.

For subsection (7), in determining what is in the best interests of the adult, the health care decision maker must:

take into account all relevant considerations; and

assess those considerations by giving each of them the weight the health care decision maker believes on reasonable grounds is appropriate in the circumstances.

Without limiting subsection (8)(a), relevant considerations regarding the adult include the following:

protecting the adult from harm, neglect, abuse and exploitation;

providing the adult with appropriate care;

promoting the adult's happiness, enjoyment of life and wellbeing;

protecting the adult's freedom of decision and action;

enabling the adult to be as independent as practicable;

enabling the adult to achieve the adult's maximum physical, social, emotional and intellectual potential;

enabling the adult to live in the general community and take part in community activities;

maintaining the adult's right to be treated with dignity and respect;

enabling the adult to maintain the adult's preferred living environment and lifestyle;

maintaining or creating a positive support network for the adult;

protecting the adult's property and financial resources from loss, damage and misuse;

protecting the adult's right to keep the adult's information confidential.

In determining what is appropriate in the circumstances under subsection (8)(b), the health care decision maker must exercise authority in a way that:

is the least restrictive of the adult's freedom of decision and action as is practicable; and

provides the adult with as much support as is practicable to make the adult's own health care decisions.