What is an investigation?

An investigation is a formal and comprehensive examination of the circumstances behind an application to VCAT. The aim of the investigation is to provide VCAT with the information it needs to make a decision. Early intervention by an investigator can reduce unnecessary guardianship orders by identifying less restrictive options.

Investigations are conducted by the Office of the Public Advocate when requested by VCAT. Investigations are guided by the provisions and principles contained in the Guardianship and Administration Act 1986 and the Victorian Civil and Administrative Tribunal Act 1988. An investigation must be completed within the legislated time frame; usually 30 days. The findings of the investigation are presented to VCAT in a detailed written report. Each year the Office of the Public Advocate completes more than 400 investigations.

When does VCAT request an investigation?

VCAT can request an investigation whenever it needs further information to:

• decide whether an application should proceed to a hearing or whether there is a less restrictive way to resolve the matter
• determine the best outcome in relation to a case being heard
• decide whether to make a temporary order in relation to an urgent matter or whether to fast-track an application.

The Office of the Public Advocate Duty Officer screens all applications to VCAT and can recommend that VCAT request an investigation or advocacy before proceeding to a hearing. At any stage after receiving an application VCAT can request an investigation. This means in some cases VCAT will adjourn a hearing to request an investigation.

What factors must the investigator consider?

The investigator will make a comprehensive assessment of the situation that distinguishes facts and opinions and provides VCAT with sufficient information to make a decision. The legislation requires the investigator to consider the least restrictive options and the expressed wishes and best interests of the person who is the subject of the application. Where there is an application for guardianship or administration VCAT may require further information to determine:

• whether the subject of the application has a disability
• whether there is a need for a guardian or administrator
• who should be appointed as a guardian or administrator.

What power does the investigator have?

Investigators have the legal authority to view and copy relevant documents including financial and legal papers, medical records and service provider files. The investigator has the legal power to visit the person with a disability and discuss the situation with all relevant professionals, family members and friends. The investigator can make recommendations to VCAT but it is not bound by these in making its decisions.

Investigation – a case example

Francisca is a 50-year-old woman who does not speak English. She was taken to hospital with an infection in her leg. The infection was a result of poorly controlled diabetes and neglect. The treating team recommended amputation.

Two months earlier Francisca had come to hospital with an infection that required amputation of some toes, but Francisca refused to consent. She was subsequently discharged without treatment.

If Francisca’s leg was not amputated, the infection would spread and she would eventually die. Francisca indicated that she wanted to die. The hospital applied to VCAT for a guardian to be appointed to consent to the medical procedure. The application did not include enough information about Francisca’s situation or the reason she refused to consent. VCAT referred the matter to the Office of the Public Advocate for investigation. If Francisca did not have a disability, then the hospital would be required to accept her refusal to consent.

The investigator worked with the hospital to clarify Francisca’s situation. Assessments were conducted to find out whether she had a disability that impacted on her capacity to make decisions. Francisca was assessed as having a psychiatric disability that affected her ability to make informed health care decisions. The investigator recommended that the Public Advocate be appointed as guardian to make medical treatment decisions.