Defining Person Responsible
A Person Responsible is a substitute decision maker for a person lacking capacity to make their own decisions about medical or dental treatment.
A Person Responsible is someone who is legally able to make medical and dental decisions on behalf of another person who lacks the capacity to give their own consent to treatment. The Guardianship Act 1987 (NSW) defines the hierarchy of person responsible (in descending order):
(a) the person’s guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,
(b) the spouse of the person, if any, if:
(i) the relationship between the person and the spouse is close and continuing, and
(ii) the spouse is not a person under guardianship,
(c) a person who has the care of the person,
(d) a close friend or relative of the person
The concept of person responsible is not well understood in the general community or in health and aged care settings. The term ‘next of kin’ is often used, even though this term does not have legal meaning in relation to substitute consent to medical and dental treatment.
Some common issues that arise when identifying the person responsible include:
The person responsible is not always a relative. In fact, a friend or neighbour who has provided regular care to the person lacking capacity will meet the criteria for person responsible before a relative who has not been providing care.
The person responsible cannot make other decisions in the life of the person lacking capacity. The person responsible can only provide or withhold consent to medical and dental treatment. The person responsible cannot make decisions about finances, accommodation or support for the person lacking capacity.
The person responsible cannot override the objections of the patient and there are some treatments that the person responsible cannot consent to, including sterilisation or experimental treatments. For more information about these treatments contact the Guardianship Tribunal or refer to their fact sheet.
A power of attorney does not authorise an attorney to make medical decisions. It may be that the person with the power of attorney also meets the criteria for person responsible; however medical decision-making has no relation to their role as attorney.
A guardian or enduring guardian is not always person responsible. It is important to check that the guardian has the medical and dental consent authority or function included in the guardianship appointment. If the guardian does not have this authority, the treating practitioner will need to refer back to the hierarchy within the Guardianship Act 1987 (NSW) to find the next eligible person responsible.