Action 2.05

Under Australian legislation, all adults are presumed to have the capacity to decide whether they wish to receive health care, except when it can be shown that they lack the capacity to do so.

A person has the capacity to make a decision about their care if they can:¹

• Understand and retain the information needed to make a decision
• Use the information to make a judgement about the decision
• Communicate the decision in some way, including by speech, gestures or other means.

Decision-making capacity can be decision- and situation-specific. This means that a person’s capacity can vary at different times, in different circumstances and between different types of decisions.

Review processes for determining patients’ capacity to make decisions

Ensure that effective processes are in place to identify:

• Patients who do not have the capacity to make decisions about their own health care
• Appropriate substitute decision makers who can make decisions on behalf of the patient.

If these systems are not in place, use the strategies below to develop them:

• Review the local legislation regarding the criteria for a patient to be considered capable of making decisions about their own care, and incorporate these criteria into any policies and procedures that the organisation develops; state and territory legislation may differ in its definition of patients who have the capacity to make healthcare decisions.^{1, 2} 
• Develop an organisational policy that outlines the requirements of clinicians to assess patients for their capacity to make health decisions.
• Work with clinicians and consumers to develop procedures to support the organisational policy, including guidance on:
  • assessing fluctuations in decision-making capacity
  • considerations for special populations, such as children
  • requirements for recording and documenting decisions.
• Educate the workforce about assessing a person’s capacity to make decisions about their care; consider training from a third party with expertise in this area, such as Capacity Australia.
• Develop or provide resources and tools to reinforce training and assist the workforce to assess a person’s capacity to make decisions. SA Health’s Impaired Decision-Making Factsheet is an example.

Review processes for identifying substitute decision-makers

If a patient does not have the capacity to make decisions about their own care, a substitute decision-maker may be appointed.¹ Consult local legislation and best-practice guidelines to identify who is authorised to provide substitute decision-making in the state or territory. Examples of substitute decision-makers are a nominated carer, a health attorney, or a person nominated under an enduring power of attorney or guardianship arrangement.

Incorporate a list of appropriate substitute decision-makers into the organisation’s informed consent policy. Educate the workforce about these appropriate substitute decision-makers during orientation and ongoing training sessions.

Include information about substitute decision-makers in any consumer communications about informed consent.

Develop an associated procedure for identifying and appointing a substitute decision-maker, such as a determination flowchart.

Periodically review the design and performance of these processes

Periodically review processes to evaluate whether they meet the needs of patients and reflect best practice. Strategies may include:

• Collecting informal feedback from patients during discussions in waiting rooms and during ward rounds to see whether they felt involved in their healthcare decision-making
• Collecting formal feedback from consumers through submissions and events (such as focus groups or community meetings) to see whether they felt involved in their healthcare decision-making
• Surveying patients to self-report on their experience and satisfaction with the level of engagement they had in their healthcare decision-making.

For guidance on undertaking consultations and surveys, see the Victorian Government’s Engagement Toolkit.

Under Australian legislation, all adults are presumed to have the capacity to decide whether they wish to receive health care, except when it can be shown that they lack the capacity to do so.

A person has the capacity to make a decision about their care if they can¹:

• Understand and retain the information needed to make a decision
• Use the information to make a judgement about the decision
• Communicate the decision in some way, including by speech, gestures or other means.

Decision-making capacity can be decision- and situation-specific. This means that a person’s capacity can vary at different times, in different circumstances and between different types of decisions.

Review processes for determining patients’ capacity to make decisions

If the day procedure service is part of a larger or networked group of day procedure service providers, see whether the wider group has any policies or procedures for identifying patients who do not have the capacity to make decisions about their own care. Ensure that the organisation has adopted any such existing policies or procedures.

If no such policies or procedures exist, the day procedure service should implement a system to identify:

• Patients who do not have the capacity to make decisions about their own health care
• Appropriate substitute decision-makers who can make decisions on behalf of the patient.

If these systems are not in place, use the strategies below to develop them:

• Review the local legislation regarding the criteria for a patient to be considered capable of making decisions about their own care, and incorporate these criteria into any policies and procedures that the organisation develops; state and territory legislation may differ in its definition of patients who have the capacity to make healthcare decisions^{1, 2}
• Develop an organisational policy that outlines the requirements of clinicians to assess patients for their capacity to make healthcare decisions
• Work with clinicians and consumers to develop procedures to support the organisational policy, including guidance on
  • assessing decision-making capacity during pre-admission screening
  • assessing fluctuations in decision-making capacity
  • considerations for special populations, such as children
  • requirements for recording and documenting decisions
• Educate the workforce about assessing a person’s capacity to make decisions about their care; consider training from a third party with expertise in this area, such as Capacity Australia
• Develop or provide resources and tools to reinforce training and assist the workforce to assess a person’s capacity to make decisions; SA Health’s Impaired Decision Making Factsheet is an example.

Review processes for identifying substitute decision-makers

If a patient does not have the capacity to make decisions about their own care, a substitute decision-maker may be appointed.¹ Consult local legislation and best-practice guidelines to identify who is authorised to provide substitute decision-making in the state or territory. Examples of substitute decision-makers are a nominated carer, a health attorney, or a person nominated under an enduring power of attorney or guardianship arrangement.

Incorporate a list of appropriate substitute decision-makers into the organisation’s informed consent policy. Educate the workforce about these appropriate substitute decision-makers during orientation and ongoing training sessions.

Include information about substitute decision-makers in any consumer communications about informed consent.

Develop an associated procedure for identifying and appointing a substitute decision-maker, such as a determination flowchart.

Periodically review the design and performance of these processes

Periodically review processes to evaluate whether they meet the needs of patients and reflect best practice. Strategies may include:

• Collecting informal feedback from patients during discussions in waiting rooms and on discharge to see whether they felt involved in their healthcare decision-making
• Collecting formal feedback from consumers through submissions and events (such as focus groups or community meetings) to see whether they felt involved in their healthcare decision-making
• Surveying patients to self-report on their experience and satisfaction with the level of engagement they had in their healthcare decision-making.

For guidance on undertaking consultations and surveys, see the Victorian Government’s Engagement Toolkit.

Examples of evidence

Select only examples currently in use:

• Policy documents or processes for
  • identifying a patient’s capacity for making decisions about their care
  • identifying a substitute decision-maker, if a patient does not have the capacity to make decisions about their care
  • documenting substitute decision-makers such as next of kin, advocates, people with power of attorney and legal guardians
• Admission screening and assessment tools that identify the patient’s capacity for choice and decision-making
• Audit results of healthcare records that identify patients’ capacity to make decisions, and confirm the identity of the substitute decision-maker, if required
• Audit results of healthcare records for compliance with policies, procedures or protocols, and completeness of documentation relating to advocacy or guardianship
• Patient information packages or resources about advocacy, power of attorney and legal guardianship that are available for consumers in different formats and languages, consistent with the patient profile
• Examples of applications regarding guardianship or use of the Office of the Public Advocate.

A person has capacity to make a decision about their care if they can¹:

• Understand and retain the information needed to make a decision
• Use the information to make a judgement about the decision
• Communicate the decision in some way, including by speech, gestures or other means.

Decision-making capacity can be decision- and situation-specific. This means that a person’s capacity can vary at different times, in different circumstances and between different types of decisions.

MPSs or small hospitals that are part of a local health network or private hospital group should adopt or adapt and use the established processes for identifying patients who do not have capacity to make decisions about their own care.

Small hospitals that are not part of a local health network or private hospital group should develop or adapt policies or procedures to identify:

• Patients who do not have the capacity to make decisions about their own health care
• Appropriate substitute decision-makers who can make decisions on behalf of the patient.

Educate the workforce about assessing a person’s capacity to make decisions about their care and identifying an appropriate substitute decision-maker. Consider training from a third party with expertise in this area, such as Capacity Australia.

Develop or provide resources and tools to reinforce training and assist the workforce to assess a person’s capacity to make decisions. SA Health’s Impaired Decision-Making Factsheet is an example.

Develop an associated procedure for identifying and appointing a substitute decision-maker, such as a determination flowchart.

Periodically review processes to evaluate whether they meet the needs of patients and reflect best practice.