Can an Elderly Person be Forced into Care in Australia?

In Australia, a person cannot be forced into a nursing home against their will if they have the capacity to make their own decisions. This fundamental right to autonomy is a cornerstone of Australian law, but exceptions exist when an individual loses their decision-making capacity.

Quick Summary

This guide explains the legal and ethical framework for residential aged care placement in Australia, focusing on consent, cognitive capacity, and the role of substitute decision-makers like guardians and Enduring Powers of Attorney. It also covers the process for determining capacity and the alternatives available.

Key Points

• Consent is Mandatory: An elderly person with decision-making capacity cannot be forced into care in Australia against their will.

• Legal Capacity is Key: The right to refuse care depends on a person's legal capacity to understand, weigh, and communicate their decision, not just their age or medical condition.

• Substitute Decision-Makers: If an individual is deemed to lack capacity, an Enduring Guardian or tribunal-appointed guardian can legally make decisions about their accommodation and care.

• Guardianship Requires Tribunal Order: For an individual who has lost capacity without appointing a guardian, a state or territory tribunal must legally appoint a substitute decision-maker.

• Alternatives Should Be Explored: Before compulsory placement is considered, all less restrictive options, such as home care packages or supported decision-making, must be explored.

• Dignity of Risk is Respected: A person with capacity has the right to make decisions that others may consider risky, known as the 'dignity of risk'.

• Act in Best Interests: Any substitute decision-maker is legally required to act in the elderly person's best interests and consider their known will and preferences.

• Formal Process for Incapacity: A medical practitioner must formally assess and confirm a loss of decision-making capacity before a substitute decision-maker can act.

Understanding Legal Capacity and Consent in Australia

Under Australian law, every adult is presumed to have decision-making capacity unless proven otherwise. This means they have the legal right to decide where they live and what health care they receive, even if family or medical professionals believe those decisions are unwise. To provide valid consent, a person must understand and retain the relevant information, weigh the options and consequences, and communicate their decision freely and voluntarily. Forcing an elderly person into care without valid consent could constitute assault and result in civil or criminal liability.

The Legal Threshold: When Incapacity Changes Everything

If an elderly person is assessed as having lost their decision-making capacity due to a condition like dementia, severe mental illness, or a brain injury, the situation changes. In these circumstances, a substitute decision-maker can lawfully arrange residential aged care in the person's best interests, even if the person resists. However, a formal assessment of capacity is required by a qualified medical professional, often a geriatrician or psychiatrist. The assessment focuses on the person's ability to make the specific decision at that time, rather than their medical condition alone.

The Role of Substitute Decision-Makers

In Australia, there is a clear legal hierarchy for substitute decision-making when a person has lost capacity. These roles ensure that decisions are made with legal authority and in the person's best interests.

Enduring Power of Guardianship (EPG)

An Enduring Power of Guardianship is a legal document allowing a person with capacity to appoint a guardian to make health and lifestyle decisions on their behalf if they later lose capacity. This is a proactive planning tool that becomes legally binding upon loss of capacity. The appointed guardian must act in the person's best interests, considering their known preferences.

Tribunal-Appointed Guardians

If capacity is lost without an EPG, a state or territory tribunal (like NCAT or VCAT) can appoint a guardian. This often happens with family disputes or when no suitable person is available. A Public Guardian may be appointed as a 'guardian of last resort'. The tribunal defines the guardian's authority, which may include accommodation and medical decisions.

Alternatives to Residential Care

Exploring alternatives is vital before considering residential care, especially against someone's wishes. Australia offers various services to help older people stay home longer.

• Home Care Packages: Government-subsidised packages fund services like cleaning, meals, personal care, and transport to support home independence.
• Respite Care: Short stays in a facility can provide carer breaks and introduce the elderly person to residential care.
• Supported Decision-Making: Individuals with some impairment can often make decisions with support, such as simplified information or more time.

What to Do When a Loved One is Resisting Care

If an elderly person resists moving to care, focus on communication and mediation. Involving a trusted third party, like a doctor or an aged care advocate (e.g., from OPAN), can be helpful. Understanding their reasons, such as fear of losing independence or familiarity, is key to finding a respectful solution.

Comparison of Decision-Making Pathways

Feature	Full Capacity (Consent)	No Capacity (Substitute Decision)
Decision-Maker	The elderly person themselves.	Appointed Enduring Guardian or Tribunal-Appointed Guardian.
Legal Basis	Fundamental right to self-determination and bodily integrity.	Power derived from a legally recognised instrument (EPG) or a court/tribunal order.
Consent Required?	Yes, absolutely. Treatment or placement without consent can be illegal.	Consent is given by the legally authorised substitute decision-maker.
Override Refusal?	No. A person with capacity can refuse care, even if others deem it unwise.	Yes, the substitute decision-maker can override resistance if it is in the person's best interests.
Best Interests	The person's own view of their best interests takes precedence, including their "dignity of risk".	The substitute decision-maker must act in the person's best interests, considering their known wishes and values.
Relevant Documents	No special documents required, though an Advance Care Directive can outline future preferences.	Enduring Power of Guardianship or Tribunal Guardianship Order.

Conclusion

In Australia, an elderly person with decision-making capacity cannot be forced into care against their will. However, if capacity is lost, a legally appointed substitute decision-maker (Enduring Guardian or tribunal-appointed guardian) can make decisions about care in the person's best interests. This process requires a formal capacity assessment and should follow the exploration of alternatives. Planning ahead and seeking legal advice is recommended.

National Resources

For confidential advice and support, concerned individuals can contact the national 1800 ELDERHelp line at 1800 353 374.

Optional Outbound Link

Seniors Rights Victoria: A resource for legal and advocacy information for older Victorians, with links to services in other states.

Frequently Asked Questions

Can I force my elderly parent into a nursing home in Australia if they refuse?

No, you cannot force your elderly parent into a nursing home if they have the legal capacity to make their own decisions. A person with capacity has the right to refuse care, and attempting to force them would be illegal.

What is decision-making capacity in the context of aged care in Australia?

Decision-making capacity is the ability to understand and retain relevant information, weigh the consequences of different choices, and communicate a decision freely. A person is presumed to have capacity until proven otherwise, and it is assessed on a decision-specific basis.

What happens if an elderly person loses their capacity to make decisions?

If an elderly person loses capacity, decisions can be made by a legally appointed substitute decision-maker, such as an Enduring Guardian or a guardian appointed by a tribunal. This person will make decisions in the elderly person's best interests.

What is an Enduring Power of Guardianship (EPG)?

An EPG is a legal document where a person with capacity appoints someone they trust to make health and lifestyle decisions on their behalf if they later lose capacity. It must be created while the person still has full legal capacity.

When would a tribunal appoint a guardian for an elderly person?

A tribunal, like NCAT or VCAT, may appoint a guardian if an elderly person has lost capacity and either did not appoint an Enduring Guardian or there is an unresolved dispute among family members. This is typically considered a last resort.

Can a doctor or health professional make an elderly person go into care?

No, a doctor or health professional cannot unilaterally force an elderly person into residential care. While they can provide a medical assessment regarding capacity and recommend care, the ultimate decision rests with the individual if they have capacity, or their legal substitute decision-maker.

What are some alternatives to forcing an elderly person into a care facility?

Alternatives include exploring home care packages to support living at home, arranging short-term respite care to give family carers a break, and using supported decision-making methods to help the person make their own choices where possible.