The legal right to refuse aged care placement
In Australia, all adults are presumed to have the legal capacity to make their own healthcare decisions. This fundamental principle of informed consent means that a hospital cannot compel a patient to move into residential aged care if they are of sound mind and capable of understanding the decision. A doctor or hospital can and often will recommend aged care if they believe it is the safest option for a patient who can no longer live independently. However, a recommendation is not a command, and the ultimate decision rests with the patient, provided they have capacity.
For a patient with capacity, leaving the hospital against medical advice (AMA) is an option, although hospital staff will ensure the patient understands the risks involved and will usually ask them to sign an AMA form. The hospital's duty of care requires a robust discharge plan, but it cannot override a competent adult's refusal of care.
What happens when a patient lacks capacity?
The situation changes significantly when a patient has impaired decision-making capacity, which may be caused by conditions like advanced dementia, severe mental illness, or a brain injury. In such cases, the decision-making authority falls to a substitute decision-maker. The process for determining a patient's capacity and appointing a decision-maker is handled by state and territory laws and tribunals.
Common substitute decision-makers include:
- Enduring Power of Attorney (Medical): This is a legal document where a person, while still capable, appoints a trusted individual to make health and accommodation decisions on their behalf if they lose capacity.
- Court or Tribunal-Appointed Guardian: If a person lacks capacity and has no Enduring Power of Attorney, a state or territory tribunal (such as the Guardianship Division of the NSW Civil and Administrative Tribunal) can appoint a private or public guardian.
- Public Guardian: In instances where a person has no family or friends to act as a guardian, a Public Guardian may be appointed as a 'guardian of last resort'.
The process for residential aged care placement
All aged care placements, whether voluntary or involving a substitute decision-maker, must be preceded by an assessment to determine eligibility for government-funded services. This is typically carried out by an Aged Care Assessment Team (ACAT). The ACAT determines the level of care a person needs, but the assessment itself does not legally mandate residential care.
Understanding the aged care legal framework
The Aged Care Act 1997 and its 2024 update provide the legal structure for aged care in Australia. The new legislation, which takes effect in November 2025, strengthens the rights-based framework, but the core principle of needing valid consent or a substitute decision-maker remains in place for residential aged care placements. It's important to distinguish aged care placement from involuntary treatment under state-based Mental Health Acts, which apply only to individuals meeting specific criteria for mental illness treatment.
Comparison: Consent vs. no capacity aged care placement
| Scenario | Decision-Maker | Patient's Role | Legal Basis | Outcome |
|---|---|---|---|---|
| Patient with capacity | The patient themselves | Gives or refuses consent | Patient autonomy and informed consent | Hospital cannot force placement, even if recommended |
| Patient lacks capacity | Appointed Enduring Guardian, Public Guardian, or tribunal-appointed guardian | Varies; expressed wishes should be considered if known | Guardianship legislation, best interests principle | Substitute decision-maker can consent to placement |
Navigating the aged care system and advocating for a patient
If you are a family member or advocate concerned about a hospital's recommendation for aged care, understanding the patient's rights and the legal pathways is crucial. If the patient has capacity and refuses, you should support their decision. If they lack capacity, you must be involved in the decision-making process, ensuring all options are considered and advocating for their best interests.
Advocacy services can be invaluable in these situations. The Older Persons Advocacy Network (OPAN) provides free and confidential support to help resolve disputes or navigate complex placement issues. For decisions involving a person with impaired capacity, state and territory tribunals, such as NCAT or QCAT, are responsible for appointing and overseeing guardians.
How to challenge a hospital's proposed discharge
If you disagree with a hospital's discharge plan, particularly a transfer to aged care, you can take the following steps:
- Open a dialogue with the hospital's social worker: These professionals can explain the discharge plan and discuss alternatives.
- Request a multidisciplinary team meeting: This involves the doctors, social workers, and other allied health professionals to discuss the case together with the family.
- Contact an advocacy service: OPAN or other aged care advocacy bodies can assist in mediating and ensuring your voice is heard.
- Seek legal advice: For complex cases, especially concerning capacity, a legal professional can provide guidance on rights and options.
Conclusion
Ultimately, a hospital cannot force a patient with decision-making capacity into a nursing home in Australia. The legal framework is designed to protect an individual's autonomy and right to choose. However, for those who lack capacity, the process becomes more complex, relying on legal representatives, guardians, or tribunals to make a decision based on the individual's best interests. It is vital for patients and their families to understand their rights, engage with advocacy services when necessary, and be involved throughout the discharge planning process to ensure the patient's wishes are respected. For more information on aged care options and navigating the system, the government's official My Aged Care website is an authoritative resource: My Aged Care.
