After section 9 of the Principal Act , the following Part is inserted:

PART 2 - Decision-making ability

10.     Interpretation of Part

(1)  In this Part –

information , relevant to a decision, includes information on the consequences of –

(a) making the decision one way or the other; and

(b) deferring the making of the decision; and

(c) failing to make the decision.

11.     Decision-making ability

(1)  For the purposes of this Act, an adult is taken to have decision-making ability in respect of a decision unless a person or body responsible for assessing that decision-making ability under this Act is satisfied that the adult has impaired decision-making ability in respect of that decision.

(2)  For the purposes of this Act, an adult has impaired decision-making ability in respect of a decision if the adult is unable, even with the provision of access to practicable and appropriate support, to –

(a) understand information relevant to the decision; or

(b) retain information relevant to the decision for a sufficient time to make and consistently communicate the decision; or

(c) use or weigh information relevant to the decision; or

(d) communicate the decision (whether by speech, gesture or other means).

(3)  For the purposes of this Act, a child is taken to have impaired decision-making ability in respect of a decision unless a registered health practitioner is satisfied that the child has decision-making ability in respect of that decision.

(4)  For the purposes of this Act, a child has decision-making ability in respect of a decision if the child –

(a) is sufficiently mature to make the decision; and

(b) is able to –

(i) understand information relevant to the decision; and

(ii) retain information relevant to the decision for a sufficient time to make and consistently communicate the decision; and

(iii) use or weigh information relevant to the decision; and

(iv) communicate the decision (whether by speech, gesture or other means), including with the provision of support.

(5)  For the purposes of this Act –

(a) a person may be taken to understand information relevant to a decision if it reasonably appears, to the person assessing that person’s decision-making ability, that the person is able to understand an explanation, of the nature and consequences of the decision, given in a way that is appropriate to the person’s circumstances (whether by words, signs or other means); and

(b) a person may fluctuate between having impaired decision-making ability and decision-making ability in respect of a decision.

12.     Limits on finding of impaired decision-making ability

(1)  For the purposes of this Act, a person’s decision-making ability in respect of a decision is not to be assessed as impaired merely because –

(a) the person is not able to understand matters of a technical or trivial nature; or

(b) the person does not have a particular level of literacy or education; or

(c) the person can only retain information relevant to the decision for a limited time; or

(d) the person has decision-making ability to make some decisions and not others; or

(e) a decision made by the person results, or may result, in an adverse outcome for the person; or

(f) a decision made by the person is unwise in the opinion of other persons; or

(g) the person makes a decision because –

(i) of current or past cultural or religious practices or beliefs; or

(ii) of a failure or refusal to adhere to particular cultural or religious practices or beliefs; or

(h) subject to section 11(3), of the age of the person; or

(i) of the person’s appearance; or

(j) the person is perceived to be eccentric; or

(k) the person has engaged in illegal or immoral conduct; or

(l) of the person’s current or past expression of, or failure or refusal to express, a particular gender identity, gender expression or sexual orientation; or

(m) the person has a disability, illness or other medical condition (whether physical or mental).

(2)  A person is not to be assessed under this Act as having impaired decision-making ability in respect of a decision unless reasonable steps have been taken to provide that person with access to the practicable and appropriate support needed to make and communicate the decision.

13.     Formal assessment of decision-making ability

(1)  If a health practitioner or other person is responsible for conducting an assessment of a person’s decision-making ability for the purposes of a hearing or determination of the Tribunal, that person is to take reasonable steps to –

(a) inform the person whose decision-making ability is being assessed of the nature and purpose of the assessment; and

(b) provide information to the person or the person responsible for that person about the nature of any conclusions made during the assessment and the basis for those conclusions; and

(c) provide the person or the person responsible for that person with an opportunity to ask questions about the findings of the assessment; and

(d) comply with such other requirements in relation to the assessment, if any, as may be prescribed.

(2)  Where the assessment of a person’s decision-making ability is being undertaken for the purposes of an application to the Tribunal under this Act, the person making that application is to take reasonable steps to –

(a) inform the person and the person responsible for that person that an application is being considered; and

(b) identify the matter or matters in relation to which the application is being considered; and

(c) assist the person or the person responsible for that person to identify any less restrictive alternatives to making the application; and

(d) advise the person and the person responsible for that person of the right to seek legal representation or advocacy support; and

(e) provide information about access to legal representation and advocacy support; and

(f) comply with any other prescribed requirements.

(3)  A person must not intentionally or recklessly interfere with, or affect, the assessment of another person’s decision-making ability under this Act.

Penalty:  Fine not exceeding 20 penalty units.