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My mum, Amira, has been diagnosed with Bipolar Disorder. Sometimes when she has episodes of mania she does things I think are reckless, like going out and paying lots of money for furniture that I don't think she needs. I try to talk with her about it and get her to see that this pattern of purchasing furniture usually indicates that she needs support to see her doctor, Keith. But she doesn't generally listen at that point. Often I end up helping her to take the furniture back, but sometimes she decides to keep it. And really, it is mum's money and her decision. It annoys me, but it's not life threatening or harmful to anyone else.
On the other hand, sometimes mum gets so depressed that she refuses to eat or leave her bed. She refuses to see her doctor. When this happens, and her decisions are affecting her health and lifestyle, I know that she needs extra assistance. I know what to do because we talked about what she would like to happen when she gets this depressed. She said she wants support to contact her doctor, Keith. So, I help her do that.
Keith will come to the house and talk with her. Mostly mum will make her own decision about treatment options, but at times she seems overwhelmed by deciding and can't weigh up the pros and cons. When this happens, Keith will ask me to make a substitute decision about treatment on her behalf.
Under NSW law genuine attempts must have been made to support a person to make their own decision before a substitute decision-maker will be appointed or utilised. This is in keeping with Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
NSW law guarantees that people with disability are considered able to make their own decisions and exercise their legal capacity in most circumstances.
Additionally, under the law a person must be supported to make their own decisions and exercise their legal capacity, before any consideration is given to appointing a substitute decision-maker or using a substitute decision-maker such as a Person Responsible or a substitute decision-maker identified by the person in a planning ahead document (in a Power of Attorney, Enduring Guardianship or Advance Care Directive).
This stems from the requirement in NSW law to ensure both that:
Fatima and Amira's story provides an example of informal solutions, supported decision-making and substitute decision-making.
Select each accordian below to learn more.
In the case study, Fatima sometimes assists Amira to return unneeded furniture that she has purchased when she experiences an episode of mental illness. This is an informal resolution of the issue which does not impact on Amira's legal or mental capacity.
As we saw in Fatima and Amira's story, in NSW a person's ability to make a decision may be evaluated by assessing their decision-making with respect to the particular decision being made. But before this occurs, Keith must provide information about the treatment options in a way Amira can understand; for example, breaking down the concepts and taking the time needed to explain options by discussing or explaining possible benefits and consequences to decisions based on what has happened before, or by using visual prompts or written information to assist Amira. Keith might ask Fatima to assist in supporting Amira, as Fatima has a relationship of trust with Amira and knows her well.
Amira may then be able to make her own medical decision about the way forward. This is supported decision-making.
When a person's ability to make a significant legal, medical or financial decision is determined to be lacking, NSW law allows for a substitute decision-maker to be appointed to make that decision for the person. Before this happens, though, every effort must have been made to support the person to make the decision themselves, or to resolve the issue informally.
With regard to Amira's medical treatment decisions, Fatima is the substitute decision-maker for her mum. When her mum cannot make treatment decisions Fatima is Amira's "Person Responsible".
Fatima made the medical decision on behalf of her mum as a last resort only after she and Keith attempted to support her mother to make the decision herself. This is substitute decision-making.
If you need more information about the various tests for decision-making ability in different areas of life (personal, financial, health) go to Section 5 of the NSW Capacity Toolkit.
27 Nov 2024