If the medical treatment decision maker refuses medical treatment for the young person, and the health practitioner is concerned about this decision, then there are three options for the health practitioner to consider.
1. Children’s Court – Application for Protection Order
If a child is deemed to be in need of protection, an application may be made under the Children Youth & Families Act.
Section 162(1)(f) provides that a child is in need of protection when:
“the child’s physical development or health has been, or is likely to be, significantly harmed and the child’s parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.”
There may be other reasons for a notification to Child Protection in the context of the medical treatment decision maker’s refusal to consent to recommended treatment.
2. Supreme Court
The Supreme Court has the power to make orders that are in the best interests of individuals, such as children and adults who lack capacity, who are unable to safeguard their own welfare.
The Medical Treatment Planning and Decisions Act has not removed this option, as was confirmed in the decision of Mercy Hospitals Victoria v D1 & Anor  VSC 519.
The Supreme Court can make a decision even if the young person has decision-making capacity.
3. VCAT – Medical Treatment Planning and Decisions Act
If the medical treatment decision maker refuses significant medical treatment then the health practitioner can make an application to OPA under s.62 of the Medical Treatment Planning and Decisions Act if the health practitioner reasonably believes that the preferences and values of the person are:
- not known or
- are unable to be known or inferred by that medical treatment decision maker.
If OPA is of the opinion that the decision to refuse the medical treatment is unreasonable in the circumstances, then OPA can apply to VCAT under s.67 of the Medical Treatment Planning and Decisions Act.
VCAT may then make an order affirming, varying, setting aside or substituting the decision of the medical treatment decision maker to refuse the medical treatment.
VCAT’s jurisdiction is only invoked if the child lacks decision-making capacity for the particular medical treatment decision.
Sections 62 and 67 are limited to significant medical treatment. If it is not significant, or it is not medical treatment (as defined), then there is no jurisdiction.
VCAT can only deal with the specific decision, not appoint someone else to make future medical treatment decisions.
OPA recommends that a health practitioner consider options 1 and 2 before completing an application under s.62 Medical Treatment Planning and Decisions Act.