Health practitioners seeking a decision by OPA
The Medical Treatment Planning and Decision Act 2016 sets out the steps for health practitioners in Victoria when a patient is unable to consent.
Under section 63 of the Act, the Public Advocate has authority to consent to, or refuse, significant treatment where:
- a patient does not have decision-making capacity to make the medical treatment decision and
- there is no relevant instructional directive in an advance care directive of the patient, or medical treatment decision maker for the patient.
In making a significant treatment decision, the delegate of the Public Advocate:
- must follow the process set out in section 61 of the Act
- may not be able to make a significant treatment decision within a short time frame (because of this requirement).
The consent of the Public Advocate is not needed for emergency treatment (see 'emergency treatment' tab below).
Click on the definitions below for more information about significant, routine and emergency treatment.
Note: It is the responsibility of the treating health practitioner to determine whether the patient has decision-making capacity to consent to or refuse treatment, and whether the proposed treatment is emergency treatment or significant treatment.
OPA staff cannot make these clinical decisios.
If two or more treating health practitioners have differing views, it should be resolved via your internal processes
Significant, routine, and emergency treatment
The Department of Health and Human Services' Significant treatment clinical guidelines for the Medical Treatment Planning and Decisions Act 2016 (scroll to the bottom of the page) include examples and more information about what constitutes significant treatment in relation to:
- surgical treatments
- physical (including allied health) treatment
- pharmaceutical treatment, dental treatment
- investigative and diagnostic procedures
- mental health treatment.
If the treatment is not significant treatment as defined by the Act, it is ‘routine treatment’.
Consent is not required for routine treatment where the patient:
- does not have decision-making capcity for the medical treatment decision and
- does not have a medical treatment decision maker.
There are record keeping requirements for health practitioners if they administer routine treatment without consent.
The health practitioner must set out in the patient’s clinical records the details of:
- their attempts to locate an advance care directive and a medical treatment decision maker
- the exact nature of the routine treatment and the reason for the decision to administer it.
The health practitioner also needs to record on the patient’s clinical records the reasons they were satisfied the patient did not have decision-making capacity.
The consent of the Public Advocate is not required if the medical treatment is necessary as a matter of urgency to:
- save the person’s life or
- prevent serious damage to the person’s health or
- prevent the person from suffering or continuing to suffer significant pain or distress.
Read more about emergency treatment or download the fact sheet below.
Under the Act, a health practitioner must notify the Public Advocate if:
- the medical treatment decision maker of a patient refuses significant treatment and
- the health practitioner reasonably believes that the preferences and values of the patient are not known,or are unable to be known or inferred.
Please note: the submission of a s.62 notification does not empower the Public Advocate to make medical treatment decisions.
The Act requires the Public Advocate to undertake a process to form an opinion on the decision made by the medical treatment decision maker and if applicable, within 14 days, make an application to VCAT for their review and determination of the medical treatment decision.
To make this notification, complete the OPA section 62 form online >