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What happens after the Victorian Civil and Administrative Tribunal (VCAT) has appointed the Public Advocate as guardian for the patient?	After VCAT has appointed the Public Advocate as guardian for a patient, the formal guardianship order, the notice of appointment and accompanying material is sent to OPA electronically. OPA cannot start the process of appointing a guardian until it has received these materials. This, however, can take several days or, in some circumstances, weeks. If there are any urgent issues or decisions required, and OPA has not received the materials from VCAT, you may be directed to contact VCAT in the first instance requesting this be prioritised. If you have not heard from the Intake Team after two to three weeks since the order was made, you can contact it on 1300 309 337.
Why can’t OPA make decisions for the patient on the day the order is made?	It is not unusual for the hospital to receive a copy of its patient’s guardianship order from VCAT on the day of the VCAT hearing, however, to meet its legal obligations, OPA needs to receive the order, notice of appointment and accompanying material, such as the application, to be provided tit directly from VCAT. OPA is not able to sign any documents, such as Aged Care Assessments (ACAS) or Transitional Care Program (TCP) consent forms, otherwise.
What happens when OPA receives the necessary guardianship materials from VCAT?	The Intake Team will create an electronic record for the represented person (patient) on OPA’s client management system which will record the order details and any information provided in the VCAT Member’s referring notes. The Intake Team will contact the applicant for information to assist with the triage process.
How long will it take for a guardian to be allocated?	The VCAT Member’s notes may provide information to OPA regarding whether they consider the matter to be urgent. While this information is important, OPA will triage the matter and determine priority and risk rating in accordance with its risk matrix and other guardianship matters awaiting allocation. If there are changes to the circumstances or issues making the matter more urgent, the applicant or other parties are encouraged to contact the Intake Team so that it can update its records accordingly and consider prioritising allocation where needed. OPA cannot provide any specific timeframes for assigning a guardian, as OPA needs to consider the matter among all its guardianship matters. At any one time, OPA is guardian to 1,000 Victorians.
What decisions can the Intake Team consider?	The Intake Team can make interim decisions while the matter is awaiting allocation of a guardian, such as consent for ACAS, TCP referrals and NDIS (National Disability Insurance Scheme) access requests, subject to the represented person’s will and preferences. There are some circumstances where respite or short-term accommodation decisions may be considered, however, any ongoing or permanent accommodation decision must be made by the allocated guardian.
What information does the Intake Team need to consider making a decision for the represented person, while they are awaiting a guardian?	The Guardianship and Administration Act 2019 sets out the relevant duties and decision-making principles, which includes considering the person’s will and preferences prior to making a decision. If you are requesting a decision by an Intake guardian, you will need to provide the relevant information including the person’s will and preferences in relation to the decision and the outcome of discussions about those (such as whether the person is agreeable to the proposed plan). The Intake Team may request further information to consider the decision, such as recent reports and other options that have been explored. If the person is opposed to the proposed decision, the Intake Team generally cannot make a decision against the person’s will and preferences and this will need to be considered by the guardian when allocated. OPA understands that the treating team will have developed a discharge plan with recommendations for the guardian to consider and that this will have been a complex process in considering all less-restrictive alternatives, where possible. The guardian will consider the treating team’s recommendations, as well as the person’s will and preferences, in line with the relevant laws prior to making a decision.
What can I do to assist the delegated guardian to make their decision(s)?	The information used by VCAT to determine the need for guardianship, in terms of the impact of the person’s disability on their decision-making, is usually different than the information used by a guardian to determine personal or lifestyle decisions such as accommodation, access to services and medical treatment. In some cases, it may have been many months since the application was made to VCAT with the relevant medical report, and so the person’s circumstances may have changed. The guardian will require up-to-date information regarding the person’s functional capacity and recommendations from the treating team. They will liaise with the treating team and, in most cases, will rely on the hospital social worker to collect and provide information to the guardian to assist with decision-making. The social worker should speak to the person regularly regarding their will and preferences in relation to a proposed decision(s). By regularly checking in with the person and recording this information, the guardian will have information to assist them in determining whether the person is able to consistently express their will and preferences. If the person is unable to consistently express their will and preferences, the guardian is required to determine if they can gather enough information to form a belief as to what the person’s will and preferences would be if they were able to express them. The information collected will help to understand the person better. You can also gather information that may assist the guardian by speaking to the people involved who are important to them, such as friends and family. If the guardian is not able to determine the represented person’s will and preferences or form a belief as to them, they will act in a manner which promotes the represented person’s personal and social wellbeing. (section 9c of the GAA 2019).
If the treating team is recommending the person needs to enter residential aged care, what other information may be needed?	If the treating team have made a recommendation for the person to enter residential aged care, the social worker should seek information from the administrator (if appointed) to determine if the person is likely to be able to pay a Refundable Accommodation Deposit, (RAD) and how much this may be. VCAT may have appointed an administrator who is family member or friend, or a professional service like State Trustees or Australian Unity. Similarly, if the treating team is looking at proposing an interim option, such as respite care in a residential aged care facility, they may need to liaise with the person’s administrator, where applicable.
Suggested information which may assist the guardian	Below is a table that suggests which information you can provide if requesting a decision by the Intake Team or delegated guardian. Decision Examples of different circumstances Relevant information that will assist OPA Accommodation The person wants to return home The person is agreeable to supported accommodation The treating team is supportive of a return home with supports The treating team is recommending supported accommodation (residential aged care or disability accommodation) The treating team or family member have identified a suitable accommodation option, or several options, to present to OPA Information about home arrangements eg. Are they renting or own their home? Do they live with others or alone? Do they have family or other support available/nearby? Information which provides details about the level of support the person would require to return home safely, and whether (and how) this could be met. Information about any interim options and the person’s will and preferences Occupational Therapy assessment report eg. How many hours of support a day would the person require? What tasks can they do independently or need assistance with? Can the person be left unsupervised? Can the person manage their own medication? Physiotherapy assessment report eg. Does the person require mobility aids?  ACAS assessment (if person is over 65 years of age) eg. Has this been completed? Does the person have an existing home care package? NDIS eg. Is the person an NDIS participant? If not, are they eligible and has an access request form submitted? Do they have a support coordinator involved? Is there funding for accommodation? Is a change of circumstances required? Have you provided reports to the NDIS? Services The person has existing services that are not meeting their needs (ie. not enough funding) The person has a history of refusing services they are funded for or need The treating team has recommended the person will need services in the community to return home safely Information about the person’s current funding and services, including any barriers to receiving services (eg. refusal and reasons for this) or any concerns regarding services not meeting the needs of the person. Information about the person’s will and preferences regarding service decisions: Does the person currently receive a home care package (aged care) or NDIS funding? Is there a provider who had been providing services prior to admission? Is there an option to increase services? Is there a case manager or support coordinator for the person? If no services currently, is the person agreeable to receiving services and have any referrals been made? (eg. ACAS or NDIS access request form) Medical treatment Where there is a medical treatment decision for which the person has an OPA guardian (refer to guardianship order) Information about the proposed medical treatment The health practitioner must provide the relevant information if requesting the OPA guardian make a medical treatment decision, in line with the Medical Treatment Decisions and Planning Act 2016.   This will include information about the health practitioner’s clinical assessment that the person lacks capacity for the specific medical treatment decision. Has the health practitioner discussed the proposed treatment with the person and determined they lack capacity for the decision (as per definition in the Act)? The guardian will ask the health practitioner other relevant information to comply with their duties as the person’s medical treatment decision-maker.
Contact	Victorian Civil and Administrative Tribunal (VCAT) Phone: 1300 018 228 Email: [email protected] Office of the Public Advocate (OPA) Phone: 1300 309 337 (if a guardianship order has been made by VCAT, ask for the Intake duty worker) Email: [email protected]

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Published: 14 May 2021

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Medical treatment decision making and advance care planning for people living with dementia (Accessible HTML)

Contents About future planning Diagnosis of dementia as a trigger point Advance care planning options Advance care planning and human rights Advance care planning a creative process Can a person with dementia make a medical treatment decision? Can a person with dementia engage in advance care planning? Other future planning considerations for a person living with dementia Role of the medical treatment decision maker Role of family members OPA encourages future planning, including advance care planning for all adults The Office of the Public Advocate (OPA) encourages all adults to engage in future planning generally, including advance care planning. Future planning is about planning for the management of your affairs in the event of accident, illness or death. (For example, by making a power of attorney or a will, or organising insurance.) Advance care planning is about planning for medical treatment in the future should you lose decision-making capacity. Back to top Diagnosis of dementia is a trigger point for considering advance care planning The particular trigger points for discussion about advance care planning are at: times of diagnosis with significant illness or disease (including dementia) admission to residential aged care reaching a particular age (there is a Medicare item for detailed assessment of people aged 75 and over). However, it is important for all adults to consider advance care planning at different relevant life stages. It can be quite confronting for a person to be introduced to advance care planning close in time to diagnosis or associated with end of life decision-making. Hopefully, advance care planning will become a more mainstream idea in the general community and people will have engaged in advance care planning at earlier or less traumatic life stages. They will therefore be ready to continue to engage with advance care planning upon a dementia diagnosis. Back to top Advance care planning options Advance care planning may consist of electing one of the options set out in the Medical Treatment Planning and Decisions Act 2016. These are the: appointment of a medical treatment decision maker appointment of a support person completion of an advance care directive. The person needs decision-making capacity to execute any of these documents. However, advance care planning can also consist of informal methods. For example, discussing preferences and values with family members and health practitioners, and writing down these preferences and values. So long as a person is able to do so, they should be encouraged and supported to express their preferences and values. Back to top Advance care planning is an expression of autonomy and is about human rights Advance care planning is sourced in a person’s autonomy to make their own decisions about their own medical treatment. It is sourced in the human right not to have medical treatment without full free and informed consent. A person has a right to engage in advance care planning and, equally, they have the right to choose not to do so. No person should be coerced by well-meaning family members and/ or health systems to engage in any particular form of advance care planning. Advance care planning is not a systems issue, it is a human rights issue. Back to top Advance care planning is a creative process Advance care planning is a creative process and should reflect an individual’s unique needs, circumstances, relationships, views, preferences and values. Advance care planning is a process. Good documentation is an outcome of good planning and discussion. A person may choose to document their preferences and values, whether in an advance care directive or otherwise, but ideally this would be the outcome of discussion. Providing someone with a form to complete will not necessarily result in advance care planning which will effectively promote decision- making consistent with the person’s preferences and values. Back to top Can a person with dementia make a medical treatment decision? If the person has decision-making capacity to make the medical treatment decision, then it is their decision to make. If the person does not have decision-making capacity to make the medical treatment decision but previously made a relevant instructional directive in an advance care directive, then that will be the decision. If not, then the decision will be made by their medical treatment decision maker. A person has decision-making capacity to make a decision if it is possible for the person to make a decision with practicable and appropriate support. This may mean: allowing more time for appointments providing information in simple English or in a different community language permitting the person to have a support person present choosing the time of the day when the person is most cognitively alert creating a calm non-conflictual space. Back to top Can a person with dementia engage in advance care planning? Any person with decision-making capacity can engage in advance care planning. This includes people living with dementia. If a person with dementia chooses to appoint a medical treatment decision maker or support person, or complete an advance care directive, then two witnesses will need to be satisfied that the person has decision-making capacity to do so. (For an advance care directive, one witness must be a registered medical practitioner. For either of the appointments, one witness must be a registered medical practitioner or authorised to witness affidavits.) A person with dementia should be encouraged to consider likely future health conditions and treatments relevant to their condition, and be given adequate information so that if they wish to make an instructional directive they are properly informed. If the person with dementia does not have decision-making capacity to appoint a medical treatment decision maker or support person, or complete an advance care directive, it does not mean that they cannot express their preferences and values. They should be encouraged and supported to do so now, and at regular future points in time. A person with dementia may wish to consider common illnesses and treatments: antibiotics for pneumonia medication for managing mood and anxiety medication for managing behavioural and psychological symptoms of dementia (BPSD) falls, resulting in fractured neck of femur, and other injuries diagnostic tests (for example, a person may prefer not to have diagnostic tests if their preference is not to have curative treatment for the likely disease that the diagnostic tests are likely to disclose) transfer to hospital for medical treatment which can only be delivered in a hospital resuscitation for cardiac/respiratory arrest. Back to top Other future planning considerations for a person living with dementia All adults, including a person living with dementia should also be encouraged to consider other future planning, such as: appointment of an enduring power of attorney for financial and/or personal matters preferences for future accommodation wills and testamentary issues. Back to top What role is there for the medical treatment decision maker of a person living with dementia? A health practitioner will ask a medical treatment decision maker to make a decision only if the person: does not have decision-making capacity to make the decision him or herself, and did not, when they had decision-making capacity to do so, make an advance care directive with an instructional directive in which they have made a relevant medical treatment decision (to consent to, or refuse the medical treatment decision). Note: a health practitioner can provide medical treatment without consent in an emergency (unless there is a relevant instructional directive, refusing the treatment). Back to top What role is there for family members of a person living with dementia? Family members can support the person living with dementia to engage in advance care planning. If the person lacks decision-making capacity to complete an advance care directive, a family member may wish to complete the form ‘What I understand to be the person’s preferences and values’. See the OPA publication A medical treatment decision maker’s guide for more information. One of the principles in the Medical Treatment Planning and Decisions Act is “a partnership between a person and the person’s family and carers and health practitioners is important to achieve the best possible outcomes.” Back to top

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	https://www.nh.org.au/resources-for-people-who-lack-capacity-to-undertake-advance-care-planning/	Form - ‘What I understand to be the person’s preferences and values’

Any person with decision-making capacity can engage in advance care planning. This includes people living with dementia.

If a person with dementia chooses to appoint a medical treatment decision maker or support person, or complete an advance care directive, then two witnesses will need to be satisfied that the person has decision-making capacity to do so.

Family members can support the person living with dementia to engage in advance care planning. If the person lacks decision-making capacity to complete an advance care directive, a family member may wish to complete the form ‘What I understand to be the person’s preferences and values’.

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Guide to NDIS decision-making (Accessible HTML)

When a decision can be made by, with, or for an adult with significant cognitive disability About this guide About OPA Key principles Informal and formal decision-makers Informal arrangements Formal arrangements Plan nominee Guardian Administrator/financial manager Attorney  Participant pathway 1.    Access. Becoming a participant 2.    Participate. Plan development  3.    Receive. Plan implementation About this guide This guide addresses the question of when decision-making support, advocacy, or substitute decision-making is needed for potential and current National Disability Insurance Scheme (NDIS) participants who have significant cognitive disability. It does this in the context of each possible decision-making stage within the NDIS participant pathway. One of the purposes of the NDIS is to provide funding for reasonable and necessary supports to enable eligible individuals to: make decisions that will affect their lives, to the extent of their ability achieve their goals, objectives and aspirations maximise their independence increase their social and economic participation develop their capacity to actively take part in the community (National Disability Insurance Scheme Act 2013 (Cth) s 5). The flowchart at the end of this guide outlines a process to assist in determining what decision- making arrangement is appropriate for an adult NDIS participant with significant cognitive disability. The information provided in this guide is of a general nature. It should not be viewed as advice from the National Disability Insurance Agency. Return to top About OPA The Victorian Office of the Public Advocate (OPA) was established under the Guardianship and Administration Act 1986 (Vic) as an independent statutory office to protect and promote the rights, interests and dignity of people with disability. Under the Guardianship and Administration Act, OPA is required to arrange, coordinate and promote informed public awareness and understanding about substitute decision-making laws and any other legislation dealing with or affecting persons with disability. To access other systemic advocacy work published by OPA, or other OPA publications, including Supported Decision-Making in Victoria: A guide for families in Victoria, and Side by Side: A guide to appointing supportive attorneys, visit OPA’s website at www.publicadvocate.vic.gov.au OPA acknowledges Victoria’s Aboriginal communities and their rich culture. OPA pays respect to their Elders and communities who are the custodians of the land on which we work. © Office of the Public Advocate ISBN-13: 978-0-9875861-1-7 First edition: January 2018 Return to top Key principles “People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.” (NDIS Act (Cth) s 4(8)). “[P]eople with disability should be involved in decision-making processes that affect them, and where possible make decisions for themselves.” (NDIS Act (Cth) s 5(a)). The ability to make decisions usually involves four elements. The person needs to: understand relevant information retain or remember relevant information use or weigh up relevant information communicate the decision in words, gestures or by other means. Environmental factors, such as the quality of support relationships and the availability of someone willing to provide support, can shape a person’s ability to make a decision. People should wherever possible be provided with the support to make and implement their own decisions. (United Nations Convention on the Rights of Persons with Disabilities, article 12(3); NDIS Act (Cth) ss 4, 5). “The role of families, carers and other significant persons in the lives of people with disability should be acknowledged and respected.” (NDIS Act (Cth) s 4(12)). “The role of advocacy in representing the interests of people with disability should be acknowledged and respected.” (NDIS Act (Cth) s 4(13)). Substitute decision-making should only be used as a last resort, where no less restrictive alternative exists. Return to top Informal and formal decision-makers The National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) acknowledges that a potential or current participant may need access to a variety of decision-making arrangements to progress along the participant pathway. This may include elements of supported and substitute decision-making, and may operate through informal processes or via the formal appointment of others to make decisions on behalf of the participant (under the NDIS Act or under state or territory laws). Where possible, the participant should make their own decisions and put these into effect (with assistance, if necessary). Return to top Informal arrangements A family member, carer or other significant person (referred to as supporters) can assist the participant by making a decision where there is no conflict about it and where it does not jeopardise the wellbeing of the participant. This decision should be based on the participant’s wishes and preferences. An advocate can promote the wishes and preferences of the participant and seek to enable them to access services and support. Return to top Formal arrangements Plan nominee Under the NDIS Act, a plan nominee can be appointed at the request of the participant or on the initiative of the CEO (or their delegate, usually the planner) to perform acts on behalf of the participant in relation to: the preparation, review and replacement of the participant’s plan the management of funding for supports under the participant’s plan. A plan nominee can only do an act in relation to the above if the plan nominee considers that the participant is not capable of doing, or being supported to do, it. An appointment can be limited in scope and can be in place for an indefinite period. A plan nominee can be a decision-making supporter and/ or a substitute decision-maker. A plan nominee could be a family member or a supporter of the participant. Plan nominee arrangements only apply to participants over 18 years of age (different arrangements apply to children). The NDIS (Nominees) Rules deal with whether a plan nominee should be appointed, who should be appointed, duties of nominees, cancellation and suspension of an appointment. Return to top Guardian Under state and territory guardianship laws, a guardian may be appointed for a person with disability where an application is made to the appropriate tribunal. Different criteria for the appointment of guardians exist in the guardianship laws in force throughout Australia. As a general comment, tribunals must at least be satisfied that a person has impaired decision-making ability, and that there is a decision that needs to be made. The order of appointment sets out the authority of the guardian. A guardian can have powers in relation to personal and lifestyle matters, including access to services and accommodation (which enables the guardian to decide where and with whom a person can live). A guardian may be appointed where there are different views between family members about, for example, what is in the best interests of the person with disability which cannot be resolved, and where a decision needs to be made. A guardian will only be appointed where there is no less-restrictive option available. Where there is no other suitable person to be appointed, the Public Advocate or Public Guardian may be appointed as guardian. This is a last resort arrangement. Typically, relevant state and territory laws contain provisions to ensure that the authority of a guardian is limited to the specific area in which a decision is needed (such as accommodation, access to services, and medical treatment). Guardianship orders should be in place for the shortest time possible and are subject to regular review. Return to top Administrator/financial manager Under state and territory guardianship laws, an administrator/financial manager is generally appointed according to similar criteria that apply to the appointment of a guardian, however, they have the power to make decisions about legal or financial matters related to the person’s estate. In practice, the Public Trustee (State Trustees Limited in Victoria) performs the role of administrator/financial manager when no other suitable appointment can be made. A potential or current participant may have both a guardian and an administrator/financial manager appointed. A guardian or administrator/financial manager can be a plan nominee. Where the participant has a guardian or administrator/financial manager and their powers and responsibilities are comparable with those of a plan nominee, and the CEO (or their delegate) consider the appointment of a plan nominee necessary, there is a presumption that the guardian and/or administrator/financial manager should be appointed as the plan nominee (NDIS Act s 88(4)). The CEO (or their delegate) should limit a guardian’s and/or administrator’s/financial manager’s powers as plan nominee to the powers each has under the order of their appointment (for example, powers in relation to accommodation or powers in relation to financial decisions). Where a guardian or administrator/financial manager who is appointed as a plan nominee is making a decision for the participant, they must comply with the general principles guiding actions of people who act on behalf of others (NDIS Act s 5), the duties of nominees (NDIS (Nominees) Rules pt 5), as well as the relevant state or territory legislation under which they are appointed and the appointment terms. Return to top Attorney Other representatives (often called attorneys) can be appointed under enduring powers of attorney (and similar instruments) which are regulated by state and territory laws. These can empower representatives to make financial and personal decisions (depending on the terms of appointment). The decision of such representatives has the same legal force as if it had been made by the person who appointed them. A representative can only make an NDIS-related decision on behalf of a potential participant or participant where the decision falls within the scope of their legal authority (as contained in the instrument of their appointment). An attorney can be a plan nominee. The powers of attorney law in Victoria provides for the appointment of a supportive attorney. A supportive attorney can be appointed by a person to assist them to make decisions. However, the supportive attorney cannot make decisions for the person. A supportive attorney can be appointed with powers in relation to accessing information from organisations, communicating the person’s decisions to third parties, and giving effect to the person’s decisions. Return to top Participant pathway Three key decision-making stages 1.  Access. Becoming a participant Who can sign an Access Request Form (ARF) on behalf of a potential participant who is unable to sign the form due to their significant cognitive disability? The NDIA requires an ARF to be signed in order for it to be a valid access request. Ideally, the potential participant will sign their own ARF. Where a potential participant has a significant cognitive disability and is unable to sign the ARF, reasonable adjustments should be undertaken to obtain verification from the potential participant by other means, for example, using alternative communication methods. The NDIA cannot sign an ARF for a potential participant. The NDIA is prepared to accept an ARF signed on behalf of a potential participant by a supporter, or an advocate. Where appointed, a guardian, administrator/financial manager and attorney with relevant authority can sign an ARF on behalf of a potential participant. The NDIA is also prepared to accept an ARF signed by a service provider on behalf of a potential participant if there is no conflict of interest. At this stage of the participant pathway, it is not possible for the CEO (or their delegate) to appoint a plan nominee for a potential participant. Return to top 2. Participate. Plan development Who can promote the wishes and preferences of a person with significant cognitive disability in the planning process? The NDIA cannot represent the wishes and preferences of the participant during the planning process. Where the participant has limited ability to express, in whichever way, their own wishes and preferences, supporters are often best-placed to promote the wishes and preferences of the participant in the planning process. Where there is no supporter available, or where there is conflict in the family, involvement of an independent advocate should be considered. Referral to an advocate can be made by the NDIA or another interested person. There may be instances where the participant’s service provider can provide information about the wishes and preferences of the participant based on their knowledge of that person. Documentation kept by a service provider can be used as a basis for the development of the participant’s statement of goals and aspirations and their statement of supports. Reliance solely on these materials will be problematic where there is a complex decision to be made, and where there is a conflict of interest (where, for instance, the service provider may wish to be chosen to provide NDIS-funded services to the participant). The CEO’s delegate (usually the planner) can elect to appoint a plan nominee to assist, or to act on behalf of, the participant in relation to the preparation of the participant’s plan. The NDIS Act outlines a number of duties a plan nominee has to the participant, including: to support decision-making by the participant; and to have regard to, and give appropriate weight to, the views of the participant. Where there is a guardian with relevant authority, which includes the powers to make decisions about access to services and/or accommodation, the guardian can represent the wishes and preferences of the participant. Guardianship laws in each state and territory generally require a guardian, in making a decision, to act as an advocate for the person, and to act in consultation with the person, taking into account the wishes of the person. The NDIA may choose to appoint the guardian as the participant’s plan nominee. Where appointed, an administrator/financial manager can provide information about the person’s financial matters, taking into account, as far as possible, the person’s wishes. Powers of attorney laws typically require the attorney to act in a way that promotes the interests of the person, and to give all practicable and appropriate effect to the person’s wishes. Who approves the participant’s plan? The NDIA decides whether or not to approve the statement of participant supports (the participant’s plan). Who receives the participant’s plan? The participant, and, where appointed, a formal decision-maker, including a plan nominee, guardian, administrator/financial manager, attorney (with relevant powers), should receive a copy of the approved plan, prior to its implementation. Return to top 3. Receive. Plan implementation When should support coordination be included in the participant’s plan? A support coordinator can assist the participant to coordinate the other supports within their plan. A person with significant cognitive disability should usually have support coordination funded within their plan. The participant chooses their support coordinator. Where the participant has a significant cognitive disability, they may be unable to choose for themselves. A support coordinator can source services for the participant to give effect to the participant’s plan, however, they cannot choose the service providers nor can they sign service agreements on behalf of participants. Return to top Who can make a decision about choosing a support coordinator? The choice and control afforded to the participant under the NDIS Act encourages, in the first instance, the participant and, in instances where the participant has a significant cognitive disability, their supporter or an advocate, to promote their wishes and preferences. A supporter, or, if necessary, an advocate, can assist the participant to choose a support coordinator. Where a preferred support coordinator is identified in this way, that support coordinator can be engaged so long as the choice of support coordinator is uncontentious and no real or apparent conflict exists in relation to it. A service provider cannot choose a support coordinator on behalf of the participant. A plan nominee can choose a support coordinator on behalf of the participant. A guardian with powers in relation to access to services can choose a support coordinator on behalf of the participant. An administrator/financial manager would not choose a support coordinator, however, they would advise a support coordinator of any relevant financial information about the participant. In the event of the participant having both a plan nominee and a guardian (or attorney), and these roles are being performed by different people, and where they have power to make decisions in the same area, the plan nominee has authority to make an NDIS decision. The expectation is that such representatives would act collaboratively. Return to top Who can negotiate and sign a service agreement on behalf of the participant? The NDIA encourages participants and providers to enter into service agreements. People with significant cognitive disability should have the best possible opportunity to negotiate and agree to the terms of a service agreement. The NDIA and service providers have a responsibility to ensure accessible information is provided to the participant, which may include providing the participant with an opportunity to experience the options available. A supporter or an advocate can assist the participant to understand the nature and effect of a service agreement. A plan nominee, guardian, administrator/financial manager and an attorney can negotiate and sign a service agreement where the conditions are within the scope of their authority. The NDIA has advised that it is not a legislative or policy requirement that a service agreement be signed in order for a service provider to commence providing services. A signed service agreement is the best way to establish what services are agreed to be provided and the terms for their provision. Some service providers may require a signed service agreement. Sometimes a signed service agreement is the best protection for the participant. In these situations, only a legally authorised person can sign on behalf of the participant. This includes a plan nominee, guardian, administrator/financial manager or attorney within the limits of their legal authority. A guardian is unable to sign a service agreement where it: goes beyond the powers the guardian has in relation to the participant (for example, the agreement contains provisions that affect the participant’s finances) asks the guardian to take responsibility for matters that only the participant has control over (for example, the agreement requires the participant to treat the staff of the service provider with courtesy and respect). An administrator/financial manager can sign only those parts of a service agreement that have an impact on the participant’s financial affairs. An attorney can only sign a service agreement where they have relevant decision- making authority (they may have powers in relation to financial matters or personal matters, or both). The authority of a plan nominee is limited to the conditions set out by the CEO (or their delegate) in their appointment. It is unlikely a plan nominee’s authority will extend to agreeing to conditions that are personal to the participant and over which the participant has sole control. Others without formal authorisation to act on behalf of the participant, such as a supporter or an advocate, and the NDIA, are not authorised to enter into a service agreement on behalf of the participant. Where the participant is unable to sign a service agreement and there is no legally authorised person who can sign the agreement on their behalf, the NDIA may require the support coordinator to explore the possibility of the service being provided without the agreement being signed. Such an avenue should only be sought where the choice of service provider is uncontentious and where no real or apparent conflict of interest exists. Where there is conflict, or where the personal and social wellbeing of the participant may be at risk, appointment of a plan nominee or an application for guardianship should be considered. While provision of services can occur without a signed service agreement being in place, a statement identifying the services to be delivered and the service standards should be provided to the participant and any relevant supporter, advocate or appointed decision-maker. Return to top Who can assist the participant to request a plan review and/or take part in the regular plan review? The participant, or a supporter, advocate or appointed decision-maker (in consultation with the participant), can request a review of the participant’s plan at any time. A supporter or an advocate can promote the wishes and preferences of the participant in the preparation for, and during, a plan review meeting. It may be appropriate for a support coordinator to be included in the plan review meeting. Where appointed, a formal decision-maker, including a plan nominee, guardian and attorney (with relevant powers), should be involved in the preparation for, and during, a plan review meeting. An administrator/financial manager should advise on relevant financial matters. Return to top

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When a decision can be made by, with, or for an adult with significant cognitive disability

This guide addresses the question of when decision-making support, advocacy, or substitute decision-making is needed for potential and current National Disability Insurance Scheme (NDIS) participants who have significant cognitive disability. It does this in the context of each possible decision-making stage within the NDIS participant pathway.

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Written by Margaret Bozik

Category: Accordion content

Published: 04 May 2021

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Terms of use

The material on this website is provided for general information only. The material does not constitute advice and has been prepared for distribution over the internet, without taking into account individuals particular needs or objectives. The use of the material or any site linked to this website is solely at the user’s own risk. The Office of the Public Advocate has taken reasonable care to ensure that the material is correct and current at the time of publication but makes no warranty, either express or implied, concerning the suitability, reliability, availability, timeliness or accuracy of the material or any linked site for any purpose. We recommend that you obtain your own independent advice before acting on any material. The internet is not a secure medium and communications to and from this website may be intercepted or altered in transit. To the extent permitted by law, the Office of the Public Advocate makes no representation or warranty, either express or implied, that this website or any linked site, will be free from anything which may damage any device used to access this website. The Office of the Public Advocate reserves the right to amend, delete, add to, or otherwise revise any information or materials contained on this website at any time. Visitors are advised that this website may contain images, or references to people who are deceased.

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The Office of the Public Advocate (State of Victoria) encourages the dissemination and re‑use of information provided on this website.

The Office of the Public Advocate owns the copyright in all material produced by this office.

All material provided on this website is provided under a Creative Commons Attribution 4.0 licence with the exception of:

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• content supplied by third parties.

 The licence conditions are available at https://creativecommons.org/licenses/by/4.0/

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Enquiries about copyright and use of the material on this website can be directed to:

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Written by Margaret Bozik

Category: Accordion content

Published: 08 April 2021

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What things should I consider before applying for a volunteer role with OPA?	Please read the Position Description for the role and only apply if you believe that you can meet the role requirements. As OPA receives a number of applications the more information that you can provide on your ability to meet the role requirements, the better.
How is the selection process made?	All applications are matched against our needs and the applicant’s ability to fulfil the role. We also consider availability. Applicants who have greater flexibility with availability are more likely to meet the time requirements of the role. If your application is short-listed you will be contacted for an interview.
If my application is not successful will I be notified?	All applicants are notified of the status of their application.
The OPA volunteer role would provide good practical experience as I am currently undertaking study/looking for employment in the sector. Is it okay for me to apply for a volunteer role with OPA on this basis?	While we appreciate that individuals’ like to undertake OPA volunteer roles to gain necessary experience, we ask you to bear in mind that our client group are vulnerable and often marginalised. All OPA volunteer roles are long-term in nature. If you are studying or looking for employment, we ask you to consider whether factors such as study/placements/exams and/or applying for jobs/attending interviews will allow you to also undertake long-term voluntary work.
I am required to organise a placement for a course that I am studying, can the volunteer experience with OPA be used as a placement?	No, the volunteering experience with OPA cannot be used as a placement.
Is training provided?	Training is provided for all OPA volunteer roles.
Is there a minimum time requirement?	A minimum two-year commitment is required. (Breaks/holidays/leave can be taken during this period.)
I have been told that there are no vacancies in my region however I am prepared to travel. Can I undertake my chosen voluntary role in another region?	The philosophy that underpins OPA’s volunteer programs is: “concerned community members protecting and advocating for other community members who may be at a disadvantage due to having a disability.” For this reason, we keep our volunteers local to their region. It is also more efficient and cost-effective for both the volunteer and OPA for a volunteer to provide their services in the region in which they reside. If there is no vacancy in your region, you can ask to be placed on a waiting list. If a vacancy becomes available and your application is short-listed you will be contacted regarding an interview.
I have been told that access to my own transport is required, why is this necessary?	Many of the accommodation facilities visited in the Community Visitor Program are not easily accessed by public transport so access to your own transport is required. With the Independent Third Person program access to your own transport makes arriving at a Police Station more efficient and does not delay the interview process
Will I need to undergo any background checks?	If you are deemed successful after being invited for an interview, OPA then undertakes two referee checks. All prospective volunteers are also required to consent to a National Police Check. OPA organises and pays for this. A Working with Children’s Check is required for the Independent Third Person role and certain streams of the Community Visitor Program.

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Written by Margaret Bozik

Category: Accordion content

Published: 08 April 2021

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Video transcript:

Transcript

My name's Sonia. I'm from the Office of the Public Advocate. And thank you for joining us today.

Well, I'm just about to share my screen, so that I can bring up our PowerPoint presentation, which will hopefully take about half an hour.

So today we are talking about consent in relation to the COVID-19 vaccine.

And this information and the relevance around consent comes from Medical Treatment Planning and Decisions Act.

So, as you'll appreciate, the roll out is coming from the Federal Government, however, it is based on each states and territories' legislation as to the context of how and when consent is obtained.

So just to acknowledge the Traditional Owners of the land on which we are meeting. I am on the land of the Kulin Nation, and the Wurundjeri people. I pay my respects to Elder's past and present and extend that respect to any other Aboriginal people that may be present.

So today I'm hoping for us to go through decision-making capacity. That's going to the starting point for any of your clients/residents/patients around the COVID vaccine.

Briefly, looking at:

• what an advanced care directive is
• what a medical treatment decision maker is
• the difference between significant and routine medical treatment - it can be relevant considering the COVID vaccines — and what would happen if there's no medical treatment decision maker — so what that process would be.

So, decision making capacity is specific to each particular decision. So, in this case, we may be talking about a person's decision-making capacity to make the decision about the COVID-19 vaccine.

A patient, the person, may have capacity to make some decisions and not others. So, you may have residents or clients who are considered to have decision making capacity, about the vaccine, but potentially if they were proposed for chemotherapy or a major surgery it might be that they don't have decision-making capacity for that decision.

So, the legislation is asking that on each occasion of medical treatment - be that the vaccine, medication, surgery - on each occasion, a person's decision-making capacity is assessed.

The Act talks about considering that capacity can be temporary, may not be permanent.

And it shouldn't be assumed that because the patient makes a decision that's in the opinion of other people to be unwise that that means they let decision making capacity.

So, the assessment of someone's capacity is that process of how they're making the decision, not what the outcome of that decision is.

And our legislation in Victoria also talks about that with practicable and appropriate support the patient may be supported to have decision-making capacity to therefore make that decision themselves.

So, the Act is considering that, for some people who have that practical and appropriate support around them, that in fact they have the capacity to go on a make a particular medical decision.

And so, a patient is considered to have decision making capacity, if a health practitioner determines they're able to do the following:

• That they can understand the information that's relevant to that medical treatment decision, so that the resident understands information relevant the decision around the COVID vaccine.
• That the client can retain the information necessary to make the decision.
• That the client can show how they've used and weighed up information as part of that process, and they are able to communicate that decision and some way.

So, as you would probably know, some of your clients and residents may communicate verbally. Others may have forms of communication via assistive technology, through pictures through body language. So, the Act talks about communicating the decision in some way.

And you'll see that first sentence talks about if the health practitioner determines they are able to do the following.

Now the Act has a list of around 16 to 19 health practitioners. And that's any professionals registered with AHPRA at the time that the Act came into force.

Generally, in this context - talking about the vaccine - a health practitioner is probably going to be your client’s registered nurse or a GP. So, it's their role to assess the client's decision-making capacity.

Now, I'm mindful that, in the age care space, for example in residential care, the access to a registered nurse on staff (and therefore assessing capacity), or if GPs are regularly coming into the facility each week, makes that somewhat of a more straightforward, or easier, access and process. For those in the disability sector, where your staff may not be registered nurses, there is the need to start thinking about how your residents can have appointments and access with their GPs, who'll be considering, not only are they suitable for the vaccination, but can also consider your resident's decision-making capacity as well.

Now, considering a person's decision-making capacity, if your resident is assessed by a GP/ registered nurse, as lacking decision-making capacity to make the decision about the COVID vaccine… And of course anything I'm telling you today is also relevant to any medication decision, because prescribed medications are considered to be medical treatment under the Act - This is the same process as what you would go through if someone was recommended the surgery, or for chemotherapy.

However, if we think about for the COVID vaccine and your resident is considered to lack decision-making capacity, the first step is considering whether an advanced care directive has been made by the resident.

So, when I'm talking about an advance care directive here, it's in relation to the legal definition and those eligibility and witnessing requirements under the Medical Treatment Planning and Decisions Act, so I'm not talking about an advance care plan or treatment goals, end of life care. This is around: Is there an advanced directive? And that would have been something for your resident to make, would have had to have capacity to make themselves.

So, if your resident has an advanced care directive, within that: Does it have an instructional directive (which gives the binding instructions upon the health practitioner)? And it is the instructional directive that is essentially informing the doctor whether the COVID vaccine is consented to or refused.

How likely is it that people have made an advance care directive, specifically in relationship to COVID vaccine? I'm not sure. But for it to be relevant and for it to be binding upon the health practitioner, it would have to be in relation to the COVID vaccine.

It may be within that advanced care directive, there is a values directive, and that's more of a statement of what a person's preferences and values are around their health and medical treatment. So, it may not go specifically talking about that they would or would not consent to a vaccination in the future.

If there's a values directive, it may talk about what a person's preferences are, what their views are, on vaccinations in general. And what their health is in general. And there may be something within that that can be applied to the decision, for somebody else to be consenting or refusing that vaccination on the person's behalf.

However, if we assume that your residents haven't made an advanced care directive or it's not relevant to the COVID vaccine, it's about needing to know who is your resident/client/patient's medical treatment decision maker?

So, the Act gives a hierarchy. So, it gives you guidance on where you should start. And where you can go down the list.

So, if you have a resident who themselves has appointed a medical treatment decision maker, then they're number one.

Now the appointment of a medical treatment decision maker, since 2018, would be a form that's called 'appointment of a medical treatment decision maker'. Prior to 2018, it may be that someone appointed a medical enduring power of attorney, and that would still be valid today.

So, if your resident has appointed someone as their medical treatment decision maker, then that's who will be making the decision to consent to or refuse the COVID vaccine.

If the resident/the person hasn't appointed anyone themselves, has VCAT (so the Victorian Civil and Administrative Tribunal)? Have they made a guardianship order, either to a private guardian or potentially to appoint our office (the Office to the Public Advocate), and does it include the authority to make medical treatment decisions?

So, you may have experienced, for example, guardians who have an order from VCAT saying they can make accommodations decisions (so about where a person can live). But if that order doesn't also include medical treatment, then the guardian can't make medical treatment decisions, they can only make those accommodation decisions.

So, if you have any residents that do have guardians, you can't automatically assume that they can be the medical treatment decision maker. You need to know on that order, whether it includes the authority to make medical treatment decisions.

So, if there is no guardianship order, or the guardianship order doesn't include medical treatment decisions, you come down to point number 3.

And that's essentially that it's someone who’s not appointed - be that by the person or by VCAT. But they still have the same legal authorities and responsibilities as if they'd been appointed, as long as that on that list. So, some of you may know of a much longer list prior to 2018 that included grandparents, aunts and uncles and nieces and nephews.

It's a shorter list now, so if you've reached number 3 for your resident/your client, it's looking at:

• Do they have a spouse or domestic partner?
• If not, do they have a primary carer? That’s not a paid primary carer. So that doesn't include any of you who work in disability accommodation and care for the resident. A primary carer would have been that unpaid role of someone maybe prior to coming into supported accommodation… or it may be, for people living in the community, that they have a primary carer.
• If not, does your resident client have an adult child?
• If not do they have a parent?
• And, if not, do they have an adult siblings?

So, if you find the first someone on that list, you then have to make sure that they meet these other four criteria.

So that they are:

• In a close and continuing relationship. Now the intention in the Act for that is so that it's not that you have to go searching for a long lost brother (because they are blood-related and are on that list as an adult sibling), because if they haven't been in a close and continuing relationship they may be haven't had contact with your client, or their contact has only been once a year… They wouldn't really know who your client is, or what's been important to them. Well if they're not in a close and continuing relationship (even if they're on that list) they wouldn't be relevant because they haven't met the close and continuing requirement.
• So, if you've got someone on that list that they are in a close in between your relationship, that reasonably available to be able to make that decision about the COVID vaccine.
• That they're willing to do it. So they have to, of course, want to be making a decision.
• And that they themselves are able. So, of course, your medical treatment decision makers for your clients have to themselves have decision making capacity as well.

So, if you think of your clients and residents who lack decision-making capacity, who have not made an advance care directive, you then go to this hierarchy to see if you can find anyone, if anyone is relevant, from this list that could be the medical treatment decision maker.

If you find one, one is relevant, then it is they who will make the decision about the COVID vaccine, or any other medical treatment.

And they have the authority to consent, or to refuse.

They must be making those decisions based on what the client’s preferences and values are, or what’s inferred to be their values from the life, or if that's not possible, then they are making a decision which promotes their personal and social wellbeing.

The medical treatment decision maker should be making the decision they reasonably believe to be the one that the client/the patient would have made if they had decision-making capacity.

Now, if you have a resident who doesn't have decision-making capacity, no advance care directive, and there is no one on that hierarchy (so there's no other person who can act as a medical treatment decision maker)… At this point, the health practitioner has to consider whether the medical treatment (so whether the COVID vaccine) would meet the definition in the Act to be routine treatment or significant treatment.

So, if there's a medical treatment decision maker, they don't have to worry about this. It is only in the absence of a medical treatment decision maker.

So, a doctor/registered nurse has to think about the COVID vaccine as to whether it's significant treatment. So, does it have a significant degree of bodily intrusion? Are there significant risks having the vaccine? Are there significant side effects to have the vaccine? Or is there significant distress by the patient/the client in having a vaccine, or maybe having a needle. Are they really distressed about that concept?

If the doctor believes that the vaccine does not make that definition of significant treatment, it means that it's considered routine treatment.

Now why this is important, is because if a doctor determines that the COVID vaccine is routine treatment, then doctor can proceed (or the vaccination team, depending on how the vaccines being administered). That vaccine can be administered without consent.

So, the doctor’s never consenting to it. The doctor, if they assess it to be routine treatment, will then write in the client/the patient's medical records to say they’ve considered the treatment to be routine in this patient circumstances. And then the Act says the vaccine could be administered without there being a formal consent.

If, however, the doctor has considered the COVID vaccine to be significant treatment for that patient, that distinction is because the significant medical treatment decisions will come to our office. And we are the ones that become the medical treatment decision maker, to make the decision. We don't make routine decisions. We only make the significant decisions.

So, this slide essentially summarises that.

So, obviously if any of your resident/clients have decision-making capacity, they make their own decision to consent or refuse.

If, however, they are assessed as lacking capacity, and there's no advance care directive, it’s their medical treatment decision maker that will make the decision to consent or refuse.

If there's no medical treatment decision maker, then the doctor has to determine if the COVID-19 vaccine for that patient would be significant or routine treatment.

If routine - the health practitioner has determined that - and they record the details in the person's medical records and the vaccine can be administered without a consent.

If it's significant treatment, that's when they health practitioner would be required to submit a section 63 form into our office.

Now it’s called section 63, because that's the relevant part of the Medical Treatment Planning and Decisions Act that gives the Public Advocate, and the office, the authority to step in, make this medical decision, and then step out again.

So that requires:

• going onto our website
• filling in a form - it's a specific form, section 63 for the COVID-19 vaccine - that’s submitted online.

It comes through to the team that I manage, and then we become involved to go through the process of making a decision to consent or refuse the vaccine.

So, it means you don't have to make an application to VCAT, you don't need a guardian to make this medical treatment decision.

For medical treatment only, for the episode, it comes directly to our team by submitting this form online.

So this is a similar slide, but is sometimes easier to see visually.

So you'll see:

• The doctor or the nurse has determined that the patient lacks decision-making capacity.
• It's not emergency treatment.
• If there was an advance care directive that's relevant to the COVID vaccine, they follow the advanced care directive. They don't have to go to anybody else to ask for decision.
• If there's no advanced directive, you find the medical treatments decision maker, and if there is one, they’re the one that makes the decision.
• If it's not, that's where the determination of whether it's routine or significant needs to be made. And if deemed significant treatment, the request comes to the Public Advocate and we're the ones that step in and act as the medical treatment decision maker for that particular decision.

So, if you find you're in a space that it does come to our office… And, of course, we’re doing this similarly for any of your clients or residents where they may not have decision-making capacity to make decisions about significant medications or significant surgeries… It's the same process of coming through to our office.

Then when it comes to us:

• We will contact the health practitioner to review the information that was put into the form - we might need to know a little bit more.
• We’ll speak with the patient/client/resident, if possible, to see if we can find out what their preferences and values are about the vaccine and, more generally, their preferences and views about their health and medical treatment.
• We’ll speak with some of you who may be the carers of those patients, or an accommodation provider - another relevant party - to ask what you understand that patient’s preferences and values to be about the COVID vaccine and their health.

And then a decision will be made.

And we're making that decision to consent — if we reasonably believe that to be the decision they would have made if they had decision making capacity (that's why we need to know a bit more about the patient to try and know what's been important to them) — or it may be that we make a decision to refuse the vaccination, because it may be that there's something in finding out that information that tells us that the patient would not have consented to the vaccine if they’d had decision-making capacity.

So, we will then make that decision and communicate that to the health practitioner. And, if relevant, to the accommodation provider that's caring for the patient.

And then, if the doctor wants a consent form to be signed, that's given to us, and we'll sign that.

I know that a lot of places are using the COVID consent forms the Australian Government sent out. That's fine. If a GP or other health practitioner has their own type of consent form that's fine. Or some doctors we've come across, they would document themselves on the medical records how and where the consent’s been obtained, and that's what the documentation is of consent.

So, how and if there's a form to sign, is up to what will be given to us. (Similarly, as if we were the family, being the medical treatment decision maker.)

So, this is a lot of information to sometimes hear on one sitting. And while we're turning our minds to this being around the COVID vaccine, of course, it is applicable to any medical treatment.

But if you go onto our website on the front page, I think still, there's a bit of a guideline to the administration of the COVID vaccine in relation to these consent type issues…. which is about a two-page document essentially covering some of the things we've talked about today.

We also have a medical decisions tab and under there while you'll find lots of different headings, lots of different resources as well, you'll also see that's where you would go to complete the section 63 form. So, on our website under the medical decisions tab.

However, you might find that you want to talk about a client or a resident, more specifically, or collectively… You can contact our telephone advice service — so Monday to Friday nine to 4.45. And one of the advisors can talk things through with you again, or more specifically.

And just as an aside, we also have an ‘OPA Updates’ newsletter, and if you wanted to go onto our website you can join the mailing list so when other presentations come out, or other relevant information, that can be another way to find other sources of resources and support.

Accordion:

Accordion Title	Accordion body
Guideline	The administration of the COVID-19 vaccine is considered to be medical treatment under the Medical Treatment Planning and Decisions Act 2016 (MTPDA) as it will be: treatment by a ‘health practitioner’, expected to be a doctor or registered nurse for the purpose of preventing disease in the form of a prescription pharmaceutical. As such, how a decision is made to consent or refuse the vaccine is the same process as is for any other medical treatment decision. Note that: it is not mandatory to have the COVID-19 vaccine (and therefore it is not a public health decision) it is a legal right of the patient or the medical treatment decision maker to refuse the vaccine if it aligns with the patient’s preferences and values; or if they cannot be established, if this were to promote the patient’s personal and social wellbeing the vaccine is expected to be administered via an injection, in two doses where a guardianship order is in place, the order will only have effect if it has an authority for medical treatment. Guardians need to ensure they have the appropriate authority before providing consent.
Consent process	If the patient has decision-making capacity to make decisions then they can consent or refuse of their own volition. If the patient is assessed to lack decision-making capacity, then their medical treatment decision maker will make the decision to consent or refuse the vaccine (regardless of whether the vaccine is deemed to be significant or routine medical treatment) but, in doing so, must take note of any advance care directives in place and of the patient’s values and preferences (as per the MTPDA). If the patient lacks decision-making capacity and has no medical treatment decision maker then, at this point, the treating health practitioner must determine whether the vaccine is deemed to be significant treatment or routine treatment (as defined by the Act; further guidance for the health practitioner is available in the ‘Significant treatment clinical guidelines for the Medical Treatment Planning and Decisions Act 2016’, published by the Department of Health and Human Services: if the health practitioner deems the vaccine to be routine treatment, they can proceed without consent, but must document their actions in the patient’s medical records if the health practitioner deems the vaccine to be significant treatment, then they will need to submit a s.63 form to OPA. For the health practitioner to consider if it is significant treatment it must be because there is a significant degree of bodily intrusion, significant risks, significant side effects, or significant distress of the patient. If a medical treatment decision maker has refused significant treatment and the health practitioner reasonably believes the patient’s preferences and values are not known or unable to be known or inferred, the health practitioner may submit a s.62 notice to OPA. OPA must then consider whether an application to VCAT is necessary. Note that it may well be legitimate that the medical treatment decision maker refuses the treatment, given the criteria in s.61 of the MTPDA.
Other considerations	It is understood that the vaccine will be provided to aged care and disability facilities by a specialist care team who will also monitor for side effects. As such, the usual contact that the medical treatment decision maker has with GPs may not be relevant in the vaccine rollout. Hospitals are expected to use their own resources for the administration of the vaccine. Known risks/side effects of the vaccine: Common: fatigue, fever, headache, aching limbs/muscle weakness, which should subside over a few days Rare but documented: allergic reactions and anaphylaxis. If you are the medical treatment decision maker making a decision on behalf of the patient, be aware that if you have consented to the treatment but, on the day, the patient is unable to cooperate with the person administering the vaccine, the vaccine may not be administered. In making your decision consider: what are the patient’s values about COVID-19 what are the patient’s preferences and values about a COVID-19 vaccine what are the patient’s preferences and values about vaccinations in general what are the patient’s preferences and values about injections (for example, if the patient has a fear of needles, they may be about the form of administration of the vaccine, rather than its purpose and effect) has the patient consented or refused other vaccinations in the past; has the patient suffered any side effects to vaccinations in the past; if a previous vaccination has been administered as routine treatment (and, therefore, the patient’s consent was not required), was the patient accepting of this/opposed to this what are the patient’s preferences and values about their health and medical treatment in general and how this might inform their thoughts about the vaccine.

Further Information:

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	https://www.publicadvocate.vic.gov.au/the-public-advocate/in-the-news/our-news/253-consent-and-the-covid-19-vaccine-presentation	Consent and the COVID-19 vaccine video
	https://www2.health.vic.gov.au/about/publications/policiesandguidelines/significant-treatment-clinical-guidelines-for-mtpd-act-2016	Significant treatment clinical guidelines for the Medical Treatment Planning and Decisions Act 2016
	https://www.publicadvocate.vic.gov.au/medical-treatment/medical-forms/request-the-public-advocate-to-make-a-medical-treatment-decision-re-covid-19-vaccine-section-63-form	Section 63 form for COVID-19 vaccine