Health Care Decision Making Act 2023

An adult has impaired decision making capacity in relation to a health care decision if the adult's capacity to make the health care decision is impaired.

An impairment in any of the following is relevant in determining whether an adult's capacity to make the health care decision is impaired:

understanding and retaining information relevant to the health care decision;

weighing information relevant to the health care decision in order to make the health care decision;

communicating the health care decision in some way;

understanding the effect of the health care decision.

For subsection (2)(a), an adult is taken to understand information relevant to a health care decision if the adult understands an explanation of the information given to the adult in a way that is appropriate to the adult's circumstances, whether by using modified language, visual aids or other means.

For subsection (2)(c), an adult is taken to communicate the health care decision if the adult communicates the decision in a way that is appropriate to the adult's circumstances, whether by using modified language, visual aids or other means.

An adult may have impaired decision making capacity in relation to some matters and not others.

The degree to which an adult has impaired decision making capacity may vary over time.

The cause of the impairment of the decision making capacity is immaterial.

An adult does not have impaired decision making capacity merely because the adult:

has a disability, illness or other medical condition, whether physical or mental; or

requires the use of practicable and appropriate support, including additional time for explanation, modified language, visual or technological aids or other means of communication; or

engages in unconventional behaviour or another form of personal expression; or

chooses a living environment or lifestyle with which other people do not agree; or

makes decisions with which other people do not agree; or

does not have a particular level of fluency in English; or

does not have a particular level of literacy or education; or

engages in particular cultural or religious practices; or

does or does not express a particular religious, political or moral opinion; or

is of a particular sexual orientation or gender identity or expresses particular sexual preferences; or

takes or took, or is or was dependent on, alcohol or drugs, unless the alcohol or drugs are causing actual impairment in relation to the health care decision; or

engages or engaged in illegal or immoral conduct.

Examples for subsection (8)(b)

1 Using information or formats tailored to the particular needs of the adult.

2 Communicating or assisting a person to communicate the adult's decision.

3 Giving a person additional time and discussing the matter with the adult.

4 Using technology that alleviates the effects of an adult's disability.