Advance Care Directives in Victoria: Instructional vs Values Directives

The Victorian framework

Advance care planning in Victoria is governed by the Medical Treatment Planning and Decisions Act 2016 (Vic), which commenced on 12 March 2018 and replaced the refusal-of-treatment scheme under the earlier legislation. The Act does three things that matter to families. It creates a statutory advance care directive. It creates the role of the medical treatment decision maker. And it sets out, in detail, how each of those interacts with the treating team when a person cannot decide for themselves.

The principles in section 7 frame everything that follows: a person has the right to make informed decisions about their own medical treatment, those decisions should be respected and given effect to, and a person may exercise autonomy by setting out preferences and values in advance, by appointing a medical treatment decision maker, and by appointing a support person. The Act is deliberately built so that a person’s own voice, recorded in advance, outranks a substitute decision made later.

Section 12(1) defines the instrument: an advance care directive is a document setting out a person’s binding instructions or preferences and values in relation to their medical treatment in the event that the person does not have decision-making capacity for that medical treatment. Capacity under section 4 is decision-specific — a person may have capacity for some decisions and not for others — so a directive is not a switch that flips once and for all.

What is an instructional directive?

Section 6(1) is short and consequential. An instructional directive:

• is an express statement in an advance care directive of a person’s medical treatment decision; and
• takes effect as if the person who gave it has consented to, or refused the commencement or continuation of, medical treatment.

That second limb is the whole point. An instructional directive is not evidence of what you would have wanted; in law it is your consent or your refusal, given in advance and operating at the moment you cannot speak. The examples given in the Act are a statement consenting to a heart bypass operation in specified circumstances, and a statement refusing cardiopulmonary resuscitation.

Section 6(3) allows an instructional directive to be drawn narrowly or broadly. It may relate to treatment in a particular instance or to a course of treatment over time; to one or more particular forms of medical treatment or medical research procedures, or generally to all of them; and it may be expressed to apply in all circumstances, only in specified circumstances, or in all circumstances except specified ones. That flexibility is useful, but it cuts both ways: the more conditional the drafting, the more room there is for argument later about whether the condition has been met.

What is a values directive?

Section 6(2) defines a values directive as a statement of a person’s preferences and values as the basis on which the person would like any medical treatment decisions to be made on their behalf — including, but not limited to, a statement of the medical treatment outcomes the person regards as acceptable.

The statutory examples are instructive because they are written in ordinary language: “If I am unable to recognise my family and friends, and cannot communicate, I do not want any medical treatment to prolong my life” and “If a time comes when I cannot make decisions about my medical treatment, I would like to receive any life prolonging medical treatments that are beneficial”. Neither statement names a treatment or a clinical threshold. Each tells a decision maker what the person is trying to achieve, and leaves the clinical translation to the people at the bedside.

A values directive is not merely aspirational. It is operative in two specific ways. Section 60(1)(c) requires a health practitioner, as far as reasonably practicable, to consider any values directive in offering and administering medical treatment. Section 61(2)(a) requires a medical treatment decision maker to first consider any valid and relevant values directive before anything else. It is the primary input into the substituted judgment exercise, not a footnote.

The difference that matters

The practical distinction can be put in one line: an instructional directive answers the question; a values directive tells someone else how to answer it.

• Legal effect. An instructional directive operates as consent or refusal (section 6(1)(b)). A values directive must be considered (sections 60(1)(c) and 61(2)(a)) but does not itself consent or refuse.
• Who acts on it. Where a relevant instructional directive exists, the health practitioner gives effect to it directly (section 60(1)(a)). Where there is no relevant instructional directive, the practitioner must refer the decision to the medical treatment decision maker (section 60(1)(b)), who then works through section 61.
• Tolerance for the unforeseen. An instructional directive is only as good as the scenario it anticipated. A values directive travels: it can be applied to a clinical situation nobody contemplated when the document was signed.
• Risk profile. An instructional directive risks being too rigid or, if imprecisely drafted, being read down as a values directive. A values directive risks being too general to resolve a genuinely contested decision.

The default rule in section 12(3)

Section 12(3) is the provision most often missed, and it protects against overreach in drafting. Each of the following is a values directive:

• any statement that is not expressly identified on the face of the document as an instructional directive;
• any instructional directive that is of unclear or uncertain application in relation to particular circumstances but that is still indicative of the person’s preferences or values in relation to those circumstances;
• any statement purporting to consent to a special medical procedure (see Part 6 of the Guardianship and Administration Act 2019 (Vic)), concerning palliative care, or made in a document of another State or Territory recognised under section 95.

Two consequences follow. First, if you intend a statement to bind, it must be expressly identified on the face of the document as an instructional directive — placing it in the correct part of the Department of Health form does exactly that work. Second, an instructional directive whose application to particular circumstances is unclear or uncertain does not simply fail: under section 12(3)(b) it is treated as a values directive where it is nevertheless indicative of the person’s preferences or values in relation to those circumstances, and it then continues to inform the decision. That is a sensible safety net, but it is not a substitute for precision.

Who can give a directive

Under section 13, any person — including a child — may give an advance care directive if they have decision-making capacity in relation to each statement in the directive, understand the nature and effect of each statement, and the requirements of Part 2 are complied with. Capacity is presumed for adults and is assessed decision by decision under section 4.

The Act protects the integrity of the instrument with serious offences. Section 14 makes it an offence to induce another person to give an advance care directive by dishonesty or undue influence, and a directive given in contravention is void and of no effect. Section 15 makes it an offence to knowingly make a false or misleading statement in relation to another person’s directive, or in relation to an attempt to give one. These provisions carry penalties of 600 penalty units or five years’ imprisonment (or both) for an individual, and 2,400 penalty units for a body corporate. Families dealing with pressure around a parent’s planning documents should read them alongside our guide to elder financial abuse in Victoria.

Formalities, witnessing and signing

Section 16 sets the formal requirements. The directive:

• must be in writing in English;
• must include the full name, date of birth and address of the person giving it;
• must be signed by the person giving it; and
• must be witnessed and certified in accordance with section 17.

Section 16(2) accommodates physical incapacity: another person may sign at the direction of the person giving the directive, provided that person is an adult and is not a witness to the signing. The Department of Health publishes a separate form for this situation.

Section 17(1) sets the witnessing requirements:

• two adult witnesses must witness the signing;
• each witness must sign and date the document in the presence of the person giving the directive and in the presence of each other;
• at least one witness must be a registered medical practitioner, who must write their qualification on the document;
• neither witness may be an appointed medical treatment decision maker of the person; and
• where a child gives the directive, at least one witness must be a registered medical practitioner or psychologist with the prescribed training and experience.

That prescribed training and experience is set by regulation 5 of the Medical Treatment Planning and Decisions Regulations 2018 (Vic): a medical practitioner witness needs a current Fellowship of the Royal Australian and New Zealand College of Psychiatrists plus either a Certificate of Child and Adolescent Psychiatry or current Membership of that College’s Faculty of Child and Adolescent Psychiatry, and a psychologist witness needs a current Psychology Board of Australia endorsement as a clinical neuropsychologist or clinical psychologist plus current employment providing specialist paediatric care in a prescribed setting.

Sections 17(2) and 17(3) then require each witness to certify on the document that, at the time of signing, the person appeared to have decision-making capacity in relation to each statement, appeared to sign freely and voluntarily, signed in the presence of both witnesses, and appeared to understand the nature and effect of each statement — and that the witness is not an appointed medical treatment decision maker of the person.

Electronic signing and remote witnessing. The Victorian Department of Justice and Community Safety states that an advance care directive can be signed electronically but cannot be witnessed over an audio visual link — advance care directives are among the documents exempted from the remote-witnessing measures under the Electronic Transactions (Victoria) Act 2000 and the Electronic Transactions (Victoria) Regulations 2020. Everyone must be physically together for the signing. This is a different rule from the one that now applies to wills and to some other documents, so do not assume a process that worked for one instrument works here. Our guide to making a valid Will in Victoria deals with the separate execution rules for testamentary documents.

When a directive operates

Section 19(1) provides that an advance care directive comes into force at the time it is signed in accordance with Part 2. It remains in force until any expiry date specified in it or until it is revoked (section 19(2)).

Coming into force is not the same as being used. Because section 12(1) confines the instrument to the event that the person lacks decision-making capacity for the relevant treatment, a directive is dormant while you can decide for yourself. The Department of Health form makes the same point in plain terms: the directive is valid as soon as it is correctly signed and witnessed, but is only used when you do not have decision-making capacity to make the particular medical treatment decision.

An expiry date is optional. The Department of Health recommends reviewing a directive at least every two years or whenever your medical or personal situation changes, and notes the obvious risk of specifying an expiry date: the directive may expire at a time when you no longer have capacity to make a new one.

What health practitioners must do

Section 50(1) requires a health practitioner, before administering medical treatment to a person who lacks decision-making capacity for that decision, to make reasonable efforts in the circumstances to ascertain whether the person has an advance care directive, a medical treatment decision maker, or both. Contravention by a registered health practitioner is unprofessional conduct (section 50(2)).

Section 60(1) then sets the operative duty. As far as reasonably practicable, the practitioner must:

• subject to section 51, give effect to any relevant instructional directive — withholding or withdrawing refused treatment, and administering consented treatment where the practitioner considers it clinically appropriate;
• where there is no relevant instructional directive, refer the decision to the person’s medical treatment decision maker for a decision under section 61; and
• consider any values directive in offering and administering medical treatment.

Contravention of section 60(1) by a registered health practitioner is also unprofessional conduct.

The narrow escape hatch. Section 51 permits a practitioner to refuse to comply with an instructional directive only where the practitioner believes on reasonable grounds both that circumstances have changed since the directive was given so that its practical effect would no longer be consistent with the person’s preferences and values, and that the delay caused by a VCAT application under section 22 would result in a significant deterioration of the person’s condition. Both limbs must be satisfied.

Emergencies. Section 53 allows urgent treatment without consent where the practitioner believes on reasonable grounds it is necessary as a matter of urgency to save life, prevent serious damage to health, or prevent significant pain or distress. But section 53(2) prohibits this where the practitioner is aware the person has refused that particular treatment, whether by instructional directive or another legally valid and informed refusal. Section 53(3) does not require a practitioner to search for a directive that is not readily available in a genuine emergency — which is precisely why availability of the document matters so much.

Protection for practitioners. Section 52 protects a health practitioner who acts in good faith and without negligence in reliance on Part 4 or on an instructional directive, including where the practitioner is unaware that a directive has been revoked or is invalid.

How a directive guides your decision maker

If there is no relevant instructional directive, the decision is made by the person’s medical treatment decision maker, identified under section 55. In outline, section 55(1) looks first to an appointed medical treatment decision maker who is reasonably available and willing and able to make the decision; section 55(2) then recognises a VCAT-appointed guardian with relevant medical-treatment authority; and only if neither applies does the adult family and carer hierarchy in section 55(3) operate. Our companion guide to medical treatment decision makers in Victoria works through the appointment process and the hierarchy in detail; the point for present purposes is what the decision maker must do with your directive.

Section 61(1) imposes a substituted judgment standard: the decision maker must make the decision they reasonably believe the person would have made if they had capacity — not the decision the decision maker would prefer, and not simply what is clinically optimal. Section 61(2) prescribes the order of reasoning:

1. first, consider any valid and relevant values directive;
2. next, consider any other relevant preferences the person has expressed, and the circumstances in which they were expressed;
3. if no relevant preferences can be identified, give consideration to the person’s values, whether expressed other than by way of a values directive or inferred from the person’s life;
4. also consider the likely effects and consequences of the treatment, including its likely effectiveness and whether these are consistent with the person’s preferences or values, and whether any alternatives (including refusing treatment) would be more consistent with them; and
5. act in good faith and with due diligence.

Only where it is not possible to ascertain or apply the person’s preferences or values does section 61(3) allow the decision maker to fall back on promoting the person’s personal and social wellbeing, having regard to the need to respect their individuality. Section 61(4) requires consultation with anyone the decision maker reasonably believes the person would want consulted.

This is the strongest practical argument for writing a values directive. Without one, your decision maker starts at step 2 or step 3 and is left assembling your views from memory and inference, often under time pressure and sometimes against opposition from other relatives. Section 62 also requires a health practitioner to notify the Public Advocate where a decision maker refuses significant treatment and the practitioner reasonably believes the person’s preferences and values are not known and cannot be known or inferred.

Limits, exclusions and unlawful statements

Unlawful statements. Section 18(1) prohibits a directive from containing a statement that is unlawful or would require an unlawful act, a statement that would cause a health practitioner to contravene a professional standard or code of conduct, or a statement of a prescribed kind. If a statement contravenes section 18(1) it is void and severed (section 18(2)), and the rest of the directive continues to operate if it is capable of doing so without the severed statement.

Voluntary assisted dying. An advance care directive cannot be used to request voluntary assisted dying. VAD in Victoria has its own statutory scheme under the Voluntary Assisted Dying Act 2017 (Vic), which requires a person to have decision-making capacity throughout, and access cannot be arranged in advance through a directive. Arrangements in relation to voluntary assisted dying can be neither signed electronically nor witnessed over an audio visual link.

Mental health treatment. Section 48(1) provides that Part 4 does not apply to medical treatment that is treatment for mental illness at any time the person being treated is a mental health patient, or to neurosurgery for mental illness. Those matters are dealt with under Chapter 3 of the Mental Health and Wellbeing Act 2022 (Vic), which has its own advance statement of preferences and nominated support person mechanisms. A person may usefully have both instruments, and the two should be drafted so they do not contradict each other.

Palliative care. Section 54 allows a health practitioner to administer palliative care to a person without decision-making capacity for that care despite a contrary decision of the medical treatment decision maker, but the practitioner must have regard to the person’s preferences and values (whether expressed by a values directive or otherwise) and consult the decision maker. Consistently with that, section 12(3)(c)(ii) treats a statement concerning palliative care as a values directive.

Special medical procedures. A statement purporting to consent to a special medical procedure is also treated as a values directive under section 12(3)(c)(i); those procedures are dealt with under Part 6 of the Guardianship and Administration Act 2019 (Vic).

Older documents. Refusal of treatment certificates and enduring powers of attorney (medical treatment) made under the previous legislation were preserved by the transitional provisions in section 102, so some Victorian families still hold documents made before 12 March 2018. Those documents should be reviewed rather than assumed to say what a modern directive would say.

Disputes and VCAT

Section 22(1) allows an eligible applicant to apply to VCAT for an order about the validity of a directive (or of an amendment or revocation), its meaning and effect, whether a statement is still applicable because circumstances have changed since it was given so that its practical effect would no longer be consistent with the person’s preferences and values, and — with VCAT’s permission — any other matter.

VCAT’s powers under section 22(2) include revoking all or part of a directive, varying its effect, suspending it for a specified period, declaring it invalid for non-compliance, or declaring it valid despite non-compliance where the person’s intention is sufficiently clear. Before making any order, section 22(3) requires VCAT to be satisfied that the order is consistent with the person’s known preferences and values — whether expressed by a values directive or otherwise, or inferred from their life — and with promoting their personal and social wellbeing, having regard to the need to respect their individuality.

Instructional directives receive additional protection. Section 23 provides that VCAT must not revoke, vary or suspend an instructional directive unless satisfied that the person does not have decision-making capacity in relation to it and that either circumstances have changed so that its practical effect would no longer be consistent with the person’s preferences and values, or the person relied on incorrect information or made incorrect assumptions when giving it. Where a broader authority question is in play, an application for guardianship or administration may be the better vehicle — see our guide to guardianship and administration applications at VCAT.

Drafting: choosing the right instrument

There is no legal requirement to use the Department of Health form, but it is structured around the statutory requirements and using it materially reduces the risk of a defect. Whatever form is used, the drafting choices below do the real work.

Use an instructional directive where the answer is already settled. If you have decided, without qualification, that you refuse a specific intervention, say so as an instructional directive, expressly identified as such, naming the treatment and any circumstances in which the refusal applies. Avoid conditions that require a clinical judgment nobody can make quickly at 2am.

Use a values directive to cover everything you cannot foresee. Describe the outcomes that would and would not be acceptable to you, what a good quality of life means to you, and where your threshold lies between prolonging life and prioritising comfort. Speak in terms your decision maker can actually apply to an unexpected diagnosis.

Consider both, and appoint a decision maker. An advance care directive and an appointment of a medical treatment decision maker are separate documents doing complementary jobs. Without an appointment, section 55 may instead recognise a VCAT-appointed guardian with relevant authority or, failing that, the first eligible person in the statutory family and carer hierarchy. Without a values directive, an appointed decision maker may have less reliable guidance and must work through your other expressed or inferable preferences and values under section 61.

Check the document against the whole plan. A directive should be consistent with any enduring power of attorney (which deals with financial and personal matters, not medical treatment decisions), with any advance statement of preferences under mental health legislation, and with the practical reality of who is likely to be present in a hospital. Where residential aged care is being considered, our guide to powers of attorney for aged care decisions explains how the documents fit together before a placement.

Storage, review and revocation

A directive that cannot be located may not be acted upon when it is needed, particularly in an emergency. A valid directive remains in force whether or not anyone can find it, but section 53(3) provides that a health practitioner is not required to search for an advance care directive that is not readily available before administering urgent treatment under section 53. The Department of Health recommends keeping the original signed document in a safe place, giving a certified copy to your medical treatment decision maker, uploading a copy to My Health Record, and giving copies to your general practitioner, your hospital and any other treating practitioners who may need it.

Amendment. Section 20(1) requires an amendment to comply with the same requirements as giving a directive, with any necessary modification, and section 20(2) requires the amendment to be made on the face of the original document. An amendment therefore needs the same two-witness process, including the medical practitioner witness.

Revocation. A directive may be revoked in the same manner (section 20(1)), and section 20(3) provides that a directive is revoked by any later advance care directive given by the same person. The Department of Health also publishes a revocation form. Review after any significant change in health, relationships or living arrangements, and at least every couple of years.

If the formalities fail. Section 21(1) means a non-compliant document does not take effect as a directive unless VCAT declares otherwise, but section 21(2) preserves it as a statement of preferences and values that a decision maker, health practitioner or the Public Advocate may take into account. The binding quality is lost; the voice is not.

Frequently Asked Questions

Sources and further reading

• Medical Treatment Planning and Decisions Act 2016 (Vic) — current authorised version
• Medical Treatment Planning and Decisions Regulations 2018 (Vic)
• Victorian Department of Health — advance care planning forms and instructions
• Office of the Public Advocate — making an advance care directive
• Department of Justice and Community Safety — electronic signing and online witnessing of legal documents

This article is general legal information about Victorian law as at 4 August 2026. It is not legal, clinical or medical advice and does not take account of your circumstances. Legislation and official guidance change; check the current authorised version of the Act before relying on any provision.