Medical Treatment Decision Makers in Victoria: Appointments, Powers and Disputes

When authority begins

Authority arises only when the adult lacks decision-making capacity for the particular medical treatment decision at the time it needs to be made. Capacity is decision-specific and time-specific: it can exist for some decisions and not others, and it can fluctuate. The Act requires decision-making support to be considered before a person is treated as lacking capacity, and the person resumes decision-making for a decision as soon as they regain capacity for it.

Appointing a medical treatment decision maker

An adult with decision-making capacity may appoint one or more medical treatment decision makers using the current approved Victorian appointment form. The appointment must be signed and witnessed and the appointee must sign an acceptance, in accordance with the current Act and the current Department of Health form and instructions.

Under the current Department of Health form and instructions, the form may be completed on screen, but the signing and witnessing sections must be completed by hand after printing. The appointor signs in the presence of two adult witnesses. One witness must be a registered medical practitioner or a person authorised to witness affidavits, and neither witness may be an appointed medical treatment decision maker under that appointment. Each appointee must sign the statement of acceptance in front of an adult witness, either on the appointor's signing date or later. Where another person signs at the appointor's direction, use the separate current official form and procedure. Do not rely on old copies of the form or on informal variations of the acceptance, and do not transfer the execution rules that apply to advance care directives to an appointment of a medical treatment decision maker.

Multiple appointees and priority

More than one person may be appointed, and the appointment specifies an order of priority. Only one person acts as the medical treatment decision maker for a given decision: the first appointee in the specified order who is reasonably available, willing and able. The Act does not create a joint or unanimous decision by several appointees.

Statutory hierarchy under section 55

If no valid appointment applies to the decision, section 55 identifies the medical treatment decision maker as the first of the following who is reasonably available, willing and able to make the decision:

• an appointed medical treatment decision maker (if any);
• a guardian appointed by VCAT with authority for the relevant medical treatment decision; then
• the first adult in a close and continuing relationship with the person, taken in the order the Act sets out (spouse or domestic partner, primary carer, adult child, parent, sibling, and the further categories the section specifies), subject to the Act's tie-breaker rule where several people share the same priority.

"Next of kin" is a lay expression and is not the statutory test. The Act's own categories and tie rule govern identification of the decision maker.

Other roles and documents

• Support person — appointed under the Act to help an adult with capacity to make and communicate their own medical treatment decisions. A support person does not consent to or refuse treatment on the person's behalf.
• Enduring attorney — an enduring power of attorney under the Powers of Attorney Act 2014 (Vic) covers personal and financial matters and does not confer medical treatment authority.
• Guardian — a guardian's medical treatment authority (if any) depends on the terms of the VCAT order.
• Pre-2018 medical appointments and interstate instruments — recognition, scope and effect depend on the Act's transitional and recognition provisions and the terms of the instrument. Confirm the current position before relying on such a document in Victoria.

Advance care directives

An advance care directive is a separate instrument made by an adult with capacity. The Act recognises two components:

• an instructional directive — a specific instruction to consent to or refuse specified medical treatment in specified circumstances. If it is valid and its terms apply to the actual decision, the health practitioner is required under the Act to give effect to it as the person's own decision.
• a values directive — a statement of the person's values and preferences that guides the medical treatment decision maker's substituted judgment. It is not a specific consent or refusal.

Substitute decision-making under section 61

Where a substitute decision is required, the medical treatment decision maker must make the decision they reasonably believe the person would have made, informed by the person's values directive, other known preferences and values, the likely effects and consequences of the treatment, any alternatives, and consultation with other relevant people. The decision maker must act in good faith and with due diligence. Where the person's preferences and values cannot be identified, the decision must promote the person's personal and social wellbeing, having regard to the person's dignity. This is a substituted-judgment framework, not a generic "best interests" test.

Treatment categories

• Routine treatment — dealt with by the decision maker applying the section 61 framework.
• Significant treatment — a category defined by the current Act and regulations; refusal triggers specific process obligations, including notification of the Office of the Public Advocate under section 62. In some circumstances the Public Advocate makes the decision under section 63.
• Emergency treatment — the Act permits treatment in genuine emergencies where the person lacks capacity and it is not practicable to obtain a decision in time, subject to the current statutory conditions and any applicable directive.
• Palliative care — treated as a specific category by the Act, with its own rules.
• Compulsory mental-health treatment — is governed by the Mental Health and Wellbeing Act 2022 (Vic); it is not made by the medical treatment decision maker.
• Voluntary assisted dying — under the Voluntary Assisted Dying Act 2017 (Vic) requires the person themselves to have decision-making capacity throughout the process and to make the request personally; a substitute decision maker cannot request or consent for another person.

Disputes, OPA and VCAT

The Office of the Public Advocate has statutory roles under the Act, including in relation to refusal of significant treatment. VCAT has jurisdiction under the Act to determine disputes about capacity, the identity or authority of a medical treatment decision maker, the validity or interpretation of advance care directives and specified medical treatment decisions, and has an urgent application pathway. Whether a dispute is resolved informally, through health-service processes, by the OPA or by VCAT depends on the facts.

When urgent legal advice is required

Obtain prompt legal advice where refusal of significant treatment is disputed, where capacity, priority, appointment validity or directive interpretation is contested, where allegations of pressure or improper motive are raised, where an urgent VCAT application appears necessary, or where a treating team is proceeding contrary to what the decision maker considers is the person's valid instruction.

Frequently Asked Questions

How Parke Lawyers Can Help

Parke Lawyers advises Victorians on the appointment of medical treatment decision makers under the Medical Treatment Planning and Decisions Act 2016 (Vic), advance care directives and disputes about medical treatment decisions, through our Powers of Attorney & Elder Law team. Speak with our team early so a valid appointment and any advance care directive can be prepared while the person has decision-making capacity.