Legal - Mythbusters Substitute decision-making

Mythbusters: Substitute Decision-Making

Myth 1:

If a person doesn’t have decision-making capacity, decisions about health care should be made by his or her ‘next of kin’

No. ‘Next of kin’ is an informal term commonly used to refer to a person’s immediate or close family members. The term is not recognised in the laws about decision-making for health care.The person who will make a health care decision for a person who lacks decision-making capacity will be the person’s ‘substitute decision-maker’. Who will be the substitute decision-maker for the person will depend on the legislation in your state or territory.

Myth 2:

My patient has lost capacity and has several close family members who visit regularly. I can ask any of them to make a treatment decision for my patient if a decision is needed while they are visiting

No. The guardianship and medical treatment legislation in each State and Territory sets out an ‘order of priority’ of people who can be a person’s substitute decision-maker. The first person in that order who is willing, available and able to make the decision is the substitute decision-maker.

Page updated 29 March 2018