61Decision by medical treatment decision maker

61 Decision by medical treatment decision maker

(1) A medical treatment decision maker who is making a medical treatment decision on behalf of a person who does not have decision-making capacity in respect of that medical treatment must make the medical treatment decision that the medical treatment decision maker reasonably believes is the decision that the person would have made if the person had decision-making capacity.

(2) To make a decision in accordance with subsection (1), the medical treatment decision maker must do the following—

(a) first consider any valid and relevant values directive;

(b) next consider any other relevant preferences that the person has expressed and the circumstances in which those preferences were expressed;

(c) if the medical treatment decision maker is unable to identify any relevant preferences under paragraph (a) or (b), give consideration to the person's values, whether—

(i) expressed other than by way of a values directive; or

(d) also consider the following—

(i) the likely effects and consequences of the medical treatment, including the likely effectiveness of the medical treatment, and whether these are consistent with the person's preferences or values;

(ii) whether there are any alternatives, including refusing medical treatment, that would be more consistent with the person's preferences or values;

(e) act in good faith and with due diligence.

(3) If the medical treatment decision maker is unable to apply the process required by subsection (2) because it is not possible to ascertain or apply the person's preferences or values, the medical treatment decision maker must—

(a) make a decision under subsection (1) that promotes the personal and social wellbeing of the person, having regard to the need to respect the person's individuality; and

(b) consider the following—

(i) the likely effects and consequences of the medical treatment, including the likely effectiveness of the medical treatment, and whether these promote the person's personal and social wellbeing, having regard to the need to respect the person's individuality;

(ii) whether there are any alternatives, including refusing medical treatment, that would better promote the person's personal and social wellbeing, having regard to the need to respect the person's individuality;

(c) act in good faith and with due diligence.

(4) In the case of either subsection (2) or (3), the medical treatment decision maker must also consult with any person who the medical treatment decision maker reasonably believes the person would want to be consulted in the circumstances.