Mythbusters: Substitute Decision-Making

Myth 1:

If a person doesn’t have decision-making capacity, decisions about health care or medical treatment 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 or medical treatment. The person who will make a health care or medical treatment decision for a person without decision-making capacity is known as 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:

A resident I care for doesn’t have capacity and has several close family members who visit regularly. I can ask any of them to make a treatment decision for the resident 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.