Major updates of our ‘Laws Relating to Individual Decision Making’ chapter in the Queensland Law Handbook focus on the need to protect the human rights of a person with impaired decision-making capacity.
All adults in Queensland are presumed to have capacity for decision making, and this presumption should not be affected by any personal characteristic such as disability, mental illness or age. However, older persons and persons with a disability are generally at greater risk of having their autonomy and right to make their own decisions curtailed.
The finding that a person has no or impaired capacity could diminish multiple rights protected under the Human Rights Act 2019 (Qld). For example the right to recognition and equality before the law could be severely impacted where a substitute decision maker has been appointed to make the decisions on their behalf. Similarly, the infringement of the right to protection from torture and cruel, inhuman or degrading treatment may subject a person to medical treatment without their consent, or an infringement of the right to liberty and security may mean the person is subjected to restrictive practices.
Capacity is not a black or white concept. It is graduated in accordance with the complexity of the specific decision required, the context in which the decision must be made, the timing of when the decision must be made and the support provided to make the decision.
Determining capacity for decision making is a legal and not a medical concept, but medical evidence may be informative.
Most people can be assisted or supported to make their own decisions in a way so that they can continue to have control over the things that are important to them. Substituted decision making should be a last-resort option.
Read more about the laws relating to individual decision making in our Queensland Law Handbook chapter.
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