Not every patient can give informed consent themselves. Children, patients with cognitive impairments, patients under anaesthesia for an emergency extension of a procedure, and patients with temporary incapacity all require a substitute decision-maker to consent on their behalf.
The legal and clinical requirements for substitute decision-maker consent are substantially more complex than standard patient consent. The documentation must capture not only the consent decision itself but the identity of the decision-maker, their legal authority, and the basis for the patient’s incapacity. Getting this wrong creates significant medico-legal exposure.
Who can be a substitute decision-maker?
Australian law recognises several categories of substitute decision-maker, and the applicable rules vary by state and territory. Generally, the hierarchy includes a person appointed under an advance care directive or enduring power of attorney, a court-appointed guardian, a statutory health attorney (typically the next of kin following a defined hierarchy), and in some cases, a public guardian or public advocate.
The legal authority of a substitute decision-maker depends on the nature of their appointment. An enduring power of attorney may be limited to financial decisions and not extend to healthcare. A guardian’s appointment may be limited to specific types of decisions. The consent record must document not just who the decision-maker is, but the basis for their authority.
What the consent record must capture
For substitute decision-maker consent, the minimum documentation requirements include the patient’s identity and the reason they cannot consent themselves, the substitute decision-maker’s identity and contact details, the relationship between the decision-maker and the patient, the legal basis for the decision-maker’s authority, any evidence of that authority (such as a guardianship order or power of attorney), and confirmation that the decision-maker has been informed and understands the procedure.
In practice, many of these elements are poorly documented. Paper forms often have a single line for a guardian’s signature with no structured fields for relationship, legal basis, or capacity assessment. This creates records that are difficult to defend if challenged.
How GetConsent handles substitute decision-maker consent
GetConsent includes a dedicated substitute decision-maker workflow that captures all required elements in a structured format. When a clinician creates a consent session, they can indicate that a substitute decision-maker will be consenting on the patient’s behalf.
The workflow then captures the decision-maker’s details, relationship to the patient, and legal basis for their authority through structured form fields rather than free text. If a guardianship order or power of attorney document is available, it can be attached to the consent record.
The decision-maker then completes the same consent process as any patient: reviewing content, answering comprehension questions, and providing a signature. The evidence pack documents their journey through the consent content with the same level of detail as a standard consent session.
Capacity assessment documentation
A critical element of substitute decision-maker consent is documenting why the patient cannot consent themselves. GetConsent provides structured fields for capacity assessment, including the nature of the incapacity, whether the incapacity is temporary or permanent, and the clinician’s assessment of the patient’s decision-making capacity.
This documentation is particularly important for patients with fluctuating capacity, such as patients with early-stage dementia or patients who may regain capacity after a procedure. The consent record must reflect the capacity assessment at the time of the consent decision, not a general assessment of the patient’s condition.
Getting this right matters
Substitute decision-maker consent represents a relatively small proportion of total consent sessions but a disproportionate share of medico-legal risk. The combination of a vulnerable patient, a complex legal framework, and documentation requirements that exceed standard consent makes this an area where incomplete records are particularly dangerous.
A structured, evidence-grade approach to substitute decision-maker consent does not just reduce risk. It ensures that the people making decisions on behalf of vulnerable patients are genuinely informed about what they are consenting to. That is the point of informed consent, regardless of who is giving it.
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