For health practitioners
When a patient is unable to make a medical treatment decision
There are special processes in relation to:
- emergency treatment
- palliative care
- medical treatment where a patient is likely to recover decision-making capacity within a reasonable time
- compulsory patients under the Mental Health Act 2014
- medical research procedures.
The usual process
The Act sets out three steps for health practitioners if a patient does not have decision-making capacity to make the medical treatment decision. See also the OPA Can your adult patient consent? flowchart, and definitions of terms in the Act.
Steps for health practitioners under the Act
Click on the steps below for explanations.
Step 1— Is there an instructional directive or refusal of treatment certificate?
A health practitioner must make reasonable efforts in the circumstances to ascertain if the person has an advance care directive with an instructional directive.
Treatment must not proceed if:
- the patient has refused the relevant medical treatment in an instructional directive in an advance care directive (completed in accordance with the Medical Treatment Planning and Decisions Act)
- there is a valid refusal of medical treatment certificate made prior to 12 March 2018 in accordance with the Medical Treatment Act 1988.
Note: The patient may also have consented to the treatment in the instructional directive.
Read about interpreting an instructional directive and circumstances where a health practitioner can refuse to comply with an instructional directive.
If there is no relevant instructional directive or refusal of treatment certificate, proceed to step 2 above.
Step 2 — Is there a medical treatment decision maker?
Where a patient:
- does not have decision-making capacity for the medical treatment decision, and
- there is no relevant instructional directive or refusal of treatment certificate
the patient’s medical treatment decision maker makes the decision whether to consent to, or refuse, the treatment offered.
Medical treatment decision maker hierarchy
Under the Act, a patient’s medical treatment decision maker is the first of the following who is reasonably available, and willing and able to make the decision.
1. A medical treatment decision maker appointed by the patient
2. A guardian appointed by VCAT to make decisions about the patient's medical treatment
3. The first of the following people who is in a close and continuing relationship with the patient.
(Where there are two or more relatives who are first on this list, it is the eldest.)
- the patient’s spouse or domestic partner
- the patient’s primary carer (an adult who is in a care relationship with the person and has principal responsibility for the person’s care)
- an adult child of the patient
- a parent of the patient
- an adult sibling of the patient.
Legal appointments made prior to the commencement of the Act are recognised. See ‘appointed medical treatment decision maker’ in definitions from the Act.
If there is no medical treatment decision maker for the patient, proceed to step 3 above.
Step 3 — Is the proposed treatment significant?
Where a patient:
- does not have decision-making capacity to consent and
- there is no relevant instructional directive or medical treatment decision maker
under section 63 of the Act, the Public Advocate has authority to consent to significant treatment.
To seek the consent of a delegate of the Public Advocate, complete a request to the Public Advocate to make a medical treatment decision (section 63 form), or read more about this.
If the treatment is not significant treatment, it is ‘routine treatment’ under the Act. If the patient does not have a medical treatment decision maker, consent is not required for routine treatment.
VCAT advisory opinions and orders
Read about circumstances where a health practitioner can apply to the Victorian Civil and Administrative Tribunal for an advisory opinion or order.
Notifications to the Public Advocate when the medical treatment decision maker refuses treatment
Read about notifications to the Public Advocate when the medical treatment decision maker refuses treatment (section 62 notifications).