GAA – Purpose of Act and general principles

If you are unfamiliar with guardianship and administration law, you may want to first read the GAA – Guardianship and Administration toolkit.

It is important when applying the Guardianship and Administration Act 2000 (Qld) (GAA Act) to always keep in mind the purpose of the Act. It is also important to understand that anyone who purports to perform a function or exercise a power under the Act must apply the General Principles, and if appropriate, the Health Care Principle.

This fact sheet sets out the purpose of the GAA Act, the General Principles and the Health Care Principle.

Intent of the Guardianship and Administration Act 2000

Section 5 of the GAA Act acknowledges the following:

• an Adult’s right to make decisions is fundamental to the Adult’s inherent dignity;
• the right to make decisions includes the right to make decisions with which others may not agree;
• the capacity of an Adult with impaired capacity to make decisions may differ according to:

• the type of decision to be made, including, for example, the complexity of the decision to be made; and
• the support available from members of the Adult’s existing support network;

• the right of an Adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent;
• an Adult with impaired capacity has a right to adequate and appropriate support for decision making.

Section 6 provides that the GAA Act seeks to strike an appropriate balance between:

• the right of an Adult with impaired capacity to the greatest possible degree of autonomy in decision making; and
• the Adult’s right to adequate and appropriate support for decision making.

Application of general principles and health care principles

Section 11B provides that a person or other entity that performs a function or exercises a power under the GAA Act in relation to an adult with impaired capacity must apply the general principles. For example, if an Adult has impaired capacity for a matter, a guardian or administrator who may exercise power for the matter must apply the general principles. The Tribunal is also bound to apply the general principles when making a decision in relation to an Adult.

If the matter relates to a health matter or special health matter, then the person or other entity must apply both the general principles and the health care principles.

General principles – s 11B(3)

The general principles, which can be found in s 11B(3) of the GAA Act, are set out below.

1 Presumption of capacity

An Adult is presumed to have capacity for a matter.

2 Same human rights

1. An Adult’s inherent dignity and worth, and rights, must be recognised and taken into account.
2. The right of all adults to the same human rights and fundamental freedoms, regardless of a particular Adult’s capacity, must be recognised and taken into account.
3. There are principles on which an Adult’s human rights and fundamental freedoms are based, and these principles should inform the way those rights and freedoms are taken into account.

3 Empowering the Adult to exercise human rights and fundamental freedoms

1. An adult’s right to exercise their human rights and fundamental freedoms must be taken into account.
2. The importance of encouraging and supporting an adult to perform social roles valued in society, to live a life in the general community and to take part in activities enjoyed by the community and to achieve maximum potential and to become as self-reliant as practicable, must be taken into account.
3. An Adult’s right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity must be taken into account.

4 Maintenance of the Adult’s existing supportive relationships

1. The importance of maintaining an Adult’s existing supportive relationships must be taken into account.
2. The role of families, carers and other significant persons in the Adult’s life to support the Adult to make decisions should be acknowledged and respected.

5 Maintenance of the Adult’s cultural and linguistic environment and values

1. The importance of maintaining an Adult’s cultural and linguistic environment, and set of values (including any religious beliefs), must be taken into account.
2. For an Adult who is an Aboriginal or a Torres Strait Islander, the importance of maintaining the Adult’s Aboriginal or Torres Strait Islander cultural and linguistic environment, and set of values (including Aboriginal tradition or Island custom), must be taken into account.

Notes:

• Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships-see the Acts Interpretation Act 1954, Schedule 1.
• Island custom, known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships-see the Acts Interpretation Act 1954, section 36.

6 Respect for privacy

1. An Adult’s privacy must be taken into account and respected.
2. An Adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.

7 Liberty and security

1. An Adult’s right to liberty and security on an equal basis with others must be taken into account.
2. An Adult should not be deprived of the Adult’s liberty except in accordance with the law.

8 Maximising an Adult’s participation in decision making

1. An Adult’s right to participate, to the greatest extent practicable, in decisions affecting the Adult’s life must be recognised and taken into account.
2. An Adult must be given support and access to information necessary to enable the Adult to make or participate in decisions affecting the Adult’s life.
3. An Adult must be given the support necessary to enable the Adult to communicate the Adult’s decisions.
4. To the greatest extent practicable, a person or other entity, in exercising power for a matter for an Adult, must seek the Adult’s views, wishes and preferences.
5. An Adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.
6. An Adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the Adult with the support and access to information necessary to make and communicate a decision.

 

9 Performance of functions and exercise of powers

A person or other entity, in performing a function or exercising a power in relation to an Adult, or in making a decision for an Adult on an informal basis, must do so in a way that promotes and safeguards the Adult’s rights, interests and opportunities; and in the way that is least restrictive of the Adult’s rights, interests and opportunities.

10 Structured decision making

In applying general principle 9, a person or other entity, in performing a function or exercising a power in relation to an Adult, or in making a decision for an Adult on an informal basis, must:

1. Firstly, recognise and preserve, to the greatest extent practicable, the Adult’s right to make the adult’s own decision; and if possible, support the Adult to make a decision.
2. Secondly, recognise and take into account any views, wishes and preferences expressed or demonstrated by the Adult.
3. Thirdly, if the Adult’s views, wishes and preferences cannot be determined, use the principle of substituted judgment so that if, from the Adult’s views, wishes and preferences, expressed or demonstrated when the Adult had capacity, it is reasonably practicable to work out what the Adult’s views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult’s views, wishes and preferences would be.
4. Fourthly, once the person or other entity has recognised and taken into account the matters mentioned above, the person or other entity may perform the function, exercise the power or make the decision

 

Health Care Principles – s 11C

The health care principles can be found in s 11C of the GAA Act.

The health care principles must be applied by a person or other entity that performs a function or exercises a power for a health matter or a special health matter.

The health care principles must be applied to make a decision for an Adult about prescribed special health care.

 

Health care principles

1 Application of general principles

A person or other entity that performs a function or exercises a power for a health matter or a special health matter in relation to an Adult must also apply the general principles.

2 Same human rights and fundamental freedoms

The principle of non-discrimination requires that all Adults be offered appropriate health care, including preventative care, without regard to a particular Adult’s capacity; and any consent to or refusal of health care for an Adult must take into account the principles of respect for inherent dignity and worth, individual autonomy and independence of persons.

3 Performance of functions and exercise of powers

A person or other entity must take into account:

1. Information given by the Adult’s health provider; and
2. If the Adult has a medical condition, the nature of the medical condition and the Adult’s prognosis; and
3. Any alternative health care that is available; and
4. The nature and degree of any significant risks associated with the proposed health care; and
5. Whether the health care can be postponed because a better health care option may become available within a reasonable time or the Adult is likely to become capable of making the Adult’s own decision about the health care; and
6. The consequences for the Adult if the proposed health care is not carried out; and
7. Consideration of the benefits versus the burdens of the proposed health care; and
8. The effect of the proposed health care on the Adult’s dignity and autonomy.

4 Substituted judgement

The views and wishes of an Adult expressed when the Adult had capacity may also be expressed in an advanced health directive; or by a consent to, or refusal of, health care given at a time when the Adult had capacity to make decisions about the health care.

This resource is current as of 30 June 2023

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.