Victoria

Does Victoria have both common law Advance Care Directives and statutory Advance Care Directives?

Yes. A person may create both a common law Advance Care Directive that refuses treatment and/or a statutory Advance Care Directive, and both types of Directives are recognised by the law in Victoria.

The information below applies only to statutory Advance Care Directives. For more information visit Common Law Advance Care Directives.

When will an Advance Care Directive apply?

An Advance Care Directive comes into force as soon as it is signed by the person making it, and is properly witnessed. A direction about medical treatment in that Directive will only apply when the person loses capacity and cannot make a decision about that medical treatment.

Learn about Victoria's laws on capacity at Capacity and consent to medical treatment.

What can an Advance Care Directive cover?

An Advance Care Directive can contain either or both an Instructional Directive (which is binding) or a Values Directive (which is non-binding).

1. Instructional Directive

This is a statement about the person’s medical treatment decision. In that statement, the person may consent to, or refuse the commencement or continuation of particular medical treatment.Any medical treatment can be refused, including life-sustaining treatment.

An Instructional Directive is binding, and applies as though the person themselves has consented to or refused treatment. An example of an Instructional Directive given in the Act is ‘a statement that the person refuses cardiopulmonary resuscitation’.

An Instructional Directive must be clearly identified in the document, for example, using the heading ‘Instructional Directive’.

If an Advance Care Directive does not contain a relevant Instructional Directive, the medical treatment decision must be made by the person's substitute decision-maker ('the medical treatment decision-maker').

2.  Values Directive

This can include any statement:

• about the person’s preferences and values about treatment or care, and the basis on which they would like any medical treatment decisions made about them, if they lose capacity. A person can also make a statement about the treatment outcomes they regard as acceptable;
• about palliative care;
• that is not expressly identified in the document as an Instructional Directive; and
• made in an advance directive made in another State or Territory, which is recognised under the Act.

A Values Directive is non-binding, though it should be complied with if possible. A Values Directive must be considered by a health professional in offering and administering medical treatment, and a health professional must obtain consent from a substitute decision-maker to provide treatment.

An example of a Values Directive given in the Act is ‘If I am unable to recognise my family and friends, and cannot communicate, I do not want any medical treatment to prolong my life'.

An Instructional Directive, or a Values Directive can be given about:

• medical treatment provided in a particular instance, or over a period of time; and
• one or more particular forms of medical treatment, or generally about all types of treatment or procedures.

The Directives may be made so they apply only in specific circumstances, all circumstances, or all circumstances except in specific circumstances.

While an Advance Care Directive can contain a statement about palliative care, such a statement will be regarded as a Values Directive rather than an Instructional Directive. Palliative care includes medical treatment provided for the relief of pain, suffering and discomfort, and the reasonable provision of food and water. However, it does not include artificial nutrition and hydration.

What are the formal requirements to make an Advance Care Directive?

To make an Advance Care Directive a person (including a child under 18) must have capacity in relation to each statement in the Directive, and must understand the nature and effect of each statement.

The Advance Care Directive must:

• Be in writing in English. There is no requirement for the Directive to be in a particular form, however a suggested form is available from the Victorian Department of Health and Human Services.
• Include the full name, date of birth and address of the person.
• Be signed by the person, or an adult (who is not a witness) who is directed by the person to sign it.
• Be witnessed by two adult witnesses. At least one witness must be a registered medical practitioner. If the person making the Directive is a child, one witness must be a registered medical practitioner or psychologist with specialised training and experience. The witnesses must certify that the person had decision-making capacity, that the person understands the nature and effect of each statement they are making, and that the person signed the Directive freely and voluntarily. For further information about who can be a witness and other witnessing requirements visit the Office of the Public Advocate Victoria.

Can a child make an Advance Care Directive?

In Victoria, a child under 18 with decision-making capacity may make an Advance Care Directive.

To make a Directive, the child must have decision-making capacity and understand the nature and effect of the Directive. Similar to adults, the Directive can include:

• an instructional directive (consenting to or refusing particular medical treatment), and/or
• a values directive (expressing values, preferences or wishes about future care and treatment).

The Directive must also meet the formal requirements discussed above (e.g. be in writing, in English), as well as special witnessing requirements. At least one of the witnesses must be a registered medical practitioner or psychologist with the following training and experience:

• If the witness is a medical practitioner, s/he must be a current Fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and have either:
  1. a Certificate of Child and Adolescent Psychiatry awarded by the RANZCP; or
  2. a current Membership of the Faculty of Child and Adolescent Psychiatry of the RANZCP.
• If the witness is a psychologist, s/he must have:
  1. a current endorsement by the Psychology Board of Australia as a clinical neuropsychologist or as a clinical psychologist; and
  2. current employment as a psychologist providing specialist paediatric care:
     1. in a health service establishment; a multi-purpose service; a registered community health centre; a registered funded agency; or a women's health service (all within the meaning of the Health Services Act 1988 (Vic); or
     2. by any other person, body or organisation that provides, delivers or facilitates access to health services including disability or palliative care services.

A child’s instructional directive must be followed if it is valid and their circumstances have not changed (e.g. so that it is no longer consistent with their values or preferences). It cannot be overridden by the child’s parent or doctor. In some cases however, the Victorian Civil and Administrative Tribunal (VCAT) or the Supreme Court can override the Directive. This may occur if the Court considers it is in the child’s best interests to do, or if VCAT decides the child’s circumstances have changed and the Directive is not consistent with the child’s values and preferences.

Where a child’s Directive refuses an emergency blood transfusion that treatment may still be provided despite their refusal. This is discussed further at Children and end of life decision-making.

A child cannot appoint a medical treatment decision-maker in their Directive. The Medical Treatment Planning and Decisions Act 2016 (Vic) recognises the child’s parent, guardian or other person with parental responsibility as the child’s ‘default’ medical treatment decision-maker. This person will make medical treatment decisions if the child does not have an Advance Care Directive (or if their Directive is invalid).

For further information visit the Victorian Department of Health and Human Services and access these resources:

• Advance Care Directive for young people under 18 years of age form, and instructions for completing the form.
• Information for clinicians working with young people under 18 years of age factsheet.

Does a person have to receive information about the treatment he or she is requesting or refusing in an Advance Care Directive?

No, as long as the person meets the requirement of having capacity, there is no statutory requirement for him or her to receive any information about the treatment they are requesting or refusing in the Directive.

However, the Principles of the Act provide that a person:

• has the right to make informed decisions about their medical treatment; and
• should be given information about treatment options, including comfort and palliative care, to enable the person to make informed decisions.

Can someone be appointed in an Advance Care Directive to make substitute decisions for the person?

No. However, a person with decision-making capacity can appoint a medical treatment decision-maker to make decisions about medical treatment when they can no longer make decisions for themselves. This may be done at the same time as an Advance Care Directive is made or at any other time, using a separate appointment form. A suggested Appointment of medical treatment decision-maker form is available from the Victorian Department of Health and Human Services.

For information about medical treatment decision-makers visit Victoria Treatment Decisions.

Can an Advance Care Directive be revoked (cancelled)?

Yes. A person can revoke (cancel) or amend an Advance Care Directive while he or she still has capacity. The revocation or amendment must comply with the same requirements as for making a Directive.

Can a health professional decide not to follow an Advance Care Directive?

A health professional must make reasonable efforts to find out whether a person has an Advance Care Directive. Failing to do so will be unprofessional conduct.

Generally, a health professional must give effect to an Instructional Directive that:

• refuses medical treatment, or requests treatment be withheld or withdrawn; or
• consents to medical treatment, provided the health professional believes it is clinically appropriate to administer that treatment.

Medical treatment can be given in accordance with an Instructional Directive even if the person is likely to recover decision-making capacity within a reasonable time if delaying treatment would result in a significant deterioration of the person’s health.

Generally, a health professional who administers or does not administer medical treatment in reliance on an Instructional Directive, in good faith and without negligence, will be protected from criminal or civil liability, or disciplinary action.

Where there is no Instructional Directive in the Advance Care Directive, when offering and administering treatment, the health professional must:

• consider the person’s Values Directive; and
• obtain a decision from the person’s medical treatment decision-maker.

Failure by a health professional to follow these requirements is unprofessional conduct.

There are, however, some exceptions. A health professional may refuse to follow an Instructional Directive, and will not be liable for failing to comply with the Directive,  if s/he believes, on reasonable grounds, that:

• the circumstances have changed since the person gave the Directive so that the effect of the Instructional Directive is no longer consistent with the person's preferences and values; and
• the delay that would be caused by applying to the Victorian Civil and Administrative Tribunal for an order about whether a statement in the Advance Care Directive still applies in the changed circumstances would result in a significant deterioration of the person's condition.

In those circumstances, the health professional will need to refer the medical treatment decision to the person’s medical treatment decision-maker. For further information about medical treatment decision-makers visit Victoria Treatment Decisions.