End of Life Law in Australia

Victoria

Important information about changes to Victorian law regarding end of life

On 29 November 2016 the Victorian Parliament passed the Medical Treatment Planning and Decisions Act 2016 (Vic) (‘the Medical Treatment Act 2016’). The new Act, which commenced operation on 12 March 2018, introduced major reforms to Victoria’s laws on medical treatment decisions, advance care planning, and decision-making at the end of life. The more significant reforms are the repeal of the Medical Treatment Act 1988 (Vic) ('the previous Act'), the introduction of a new Advance Care Directive regime, and the introduction of a supported decision-making regime.

The information on this webpage has been updated to reflect the laws under the new Act. However, some legal documents and substitute decision-making arrangements made under the previous Act will continue to apply – where this is the case there is no need for a person to remake existing documents, or arrangements.


Key legislation and terminology

Victoria’s laws relating to withholding and withdrawing life-sustaining treatment and guardianship are contained in three statutes: the Guardianship and Administration Act 1986 (Vic) ('the Guardianship Act'), the Medical Treatment Planning and Decisions Act 2016 (Vic) (‘the Medical Treatment Act 2016’); and the Powers of Attorney Act 2014 (Vic) ('the Powers of Attorney Act').

The Guardianship Act deals with substitute decision-making for people with impaired capacity.

The Medical Treatment Act 2016 regulates medical treatment decision-making, including consent to or refusal of the commencement or continuation of medical treatment. Medical treatment refers to the following treatments given by a health professional to diagnose a physical or mental condition, prevent disease, restore or replace bodily function resulting from disease or injury, or improve comfort and quality of life:

  • treatment with physical or surgical therapy;
  • treatment for mental illness;
  • treatment with prescription pharmaceuticals, or approved Medicinal cannabis (under the access to Medicinal Cannabis Act 2016);
  • dental treatment; and
  • palliative care.

It does not include a medical research procedure.

The Medical Treatment Act 2016 also regulates supported decision-making by enabling a ‘support person’ to be appointed to support the person to make medical treatment decisions, and represent the person's interests regarding treatment. Supported decision-making is discussed further below.

The Powers of Attorney Act governs powers of attorney and enduring powers of attorney and, following the commencement of the Medical Treatment Act 2016, it will not relate to medical treatment decisions. However, an Enduring Power of Attorney made under previous legislation immediately before 12 March 2018 will continue to apply.

Substitute decision-making in Victoria at the end of life

When will a substitute decision-maker be needed to make medical treatment decisions for another person at the end of life?

A person is presumed to have capacity to make medical treatment decisions. A person will have capacity if they can:

  • understand the information relevant to the decision and the effect of the decision;
  • retain that information to the extent necessary to make the decision;
  • use or weigh up that information as part of the decision-making process; and
  • communicate that decision and their views and needs about the decision.

For more information about capacity and consent to medical treatment in Victoria click here.

If a person is able to able to make a decision with appropriate support then that person will also have decision-making capacity. For example, a person may be able to make a decision if they receive support to communicate their decision, or if they are supported through receiving additional time to make a decision.

If a person lacks decision-making capacity, a substitute decision maker (known in Victoria as a 'medical treatment decision-maker') will need to make the medical treatment decision on the person’s behalf. This situation may arise when a person nears the end of their life.

Consent for medical treatment must be obtained from a medical treatment decision-maker 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.

Who can be a medical treatment decision-maker for medical treatment decisions at the end of life?

In Victoria, if the person with impaired capacity completed an Advance Care Directive containing an Instructional Directive that is applicable to the medical treatment situation, that decision must be followed. If the person does not have an Advance Care Directive containing an Instructional Directive, a medical treatment decision-maker is able to make the medical treatment decision.

Before a health professional gives medical treatment to a person without capacity, she or he must make reasonable efforts to find out if the person has either an Advance Care Directive, or a medical treatment decision-maker (or both). Failure to do so is unprofessional conduct. Examples of reasonable efforts include checking the patient’s clinical record, asking the person’s friends or family, or contacting the person’s GP or a health facility they attended, or (in the case of attempting to locate an Advance Care Directive) contacting a medical treatment decision-maker.

The medical treatment decision-maker is the first person from the following list who is available, willing and able to make the decision:

  1. decision-maker appointed by the adult. This includes:
    1. A medical treatment decision-maker appointed under the Medical Treatment Act 2016; and
    2. A decision-maker appointed under:
      1. a Medical enduring power of attorney,
      2. an Enduring power of attorney, or
      3. an Enduring power of guardianship

      who had power to make medical treatment decisions immediately before 12 March 2018.

  2. A guardian appointed by the Victorian Civil and Administrative Tribunal to make medical treatment decisions.
  3. A default decision-maker, who will be the first person from the following list who is in a close and continuing relationship with the person, and is available and willing to act:

  • A person’s spouse (the person to whom they are married) or domestic partner. A domestic partner is a person in a registered relationship with the person, or an adult with whom the person is living as part of a couple where one or both provides personal or financial commitments and domestic support to the other, irrespective of gender or whether they live under the same roof. It excludes a paid carer.
  • The person’s primary carer who is in a care relationship with the person and has principal responsibility for the person’s care. This does not include paid carers, carers doing voluntary work for a community organisation, or where the care is given as part of an education or training course.
  • The first of the following with a close and continuing relationship with the person:
    • The oldest adult child of the person.
    • The oldest parent of the person.
    • The oldest adult sibling of the person.

If the person is a mental health patient and does not have capacity, the Mental Health Act 2014 (Vic) sets out who can provide consent to medical treatment for that person.

If a child does not have an Advance Care Directive, then the appropriate medical treatment decision-maker will be the child’s parent, guardian or other person with parental responsibility for that child who is available, willing and able to make the decision.

How is a decision made if there is no medical treatment decision-maker?

If a medical treatment decision is required and a health professional cannot locate a medical treatment decision-maker (or an Advance Care Directive), the health professional:

  • must, if it is significant treatment, seek the consent of the Public Advocate to provide the treatment. The health professional cannot provide that treatment without consent. The Public Advocate may consent to or refuse the significant treatment; or
  • may, if it is routine treatment (i.e. treatment other than significant treatment), provide the treatment without consent (but must note this on the person’s clinical record).

‘Significant treatment’ is treatment which involves a significant degree of bodily intrusion, significant risk to the person, or significant side effects or distress to the person. Clinical guidelines for significant treatment are available from the Victorian Department of Health and Human Services.

Supported decision-making in Victoria

What is supported decision making?

The Medical Treatment Act 2016 recognises supported decision-making in Victoria by enabling a support person to:

  • provide support to a person with decision-making capacity (for example, a person with a cognitive disability) to make medical treatment decisions; and
  • represent the person's interests regarding treatment, including when the person does not have capacity for medical treatment decision-making.

How is a support person appointed?

Any person (including a child) with decision-making capacity may appoint another person (including a child) as the person's support person. The support person must be appointed in writing. The appointment must be signed by the person making it, and witnessed in accordance with formal witnessing requirements. Other formal appointment requirements must also be met.

Appointment forms (one for people who can sign the form themselves, and another for people who require someone to sign the form on their behalves) are available from the Victorian Department of Health and Human Services.

Further information about supported decision-making and appointing a support person is available from the Office of the Public Advocate.

What does a support person do?

The role of a support person is to:

  • support the person to make, communicate and give effect to the person’s medical treatment decisions, when the person has decision-making capacity; and
  • represent the person’s interests in relation to medical treatment, both when the person has decision-making capacity, or lacks capacity.

An example of representing the person’s interests is acting as an advocate for the person by communicating with health professionals about what treatment the represented person wants, or does not want.

Unlike a medical treatment decision-maker, a support person does not have the power to make a person’s medical treatment decisions, unless that person is also appointed as the person’s medical treatment decision-maker.

Substitute decision-making by Victoria’s guardianship bodies

What is the role of the Victorian Civil and Administrative Tribunal (VCAT) in relation to decision-making at the end of life?

VCAT’s powers relevant to the end of life include determining if a person has decision-making capacity; making orders about the validity and effect of Advance Care Directives; appointing or revoking the appointment of medical treatment decision-makers or support persons; setting aside a medical treatment decision-maker’s decision (for example, when they have made a decision that is not consistent with the person’s Advance Care Directive or preferences, values and personal and social wellbeing); and providing advice and directions to medical treatment decision-makers and health professionals on Advance Care Directives or the medical treatment of a person.

VCAT may, on the application of the Public Advocate, make an order about a decision of a medical treatment decision-maker to consent to or refuse significant medical treatment (following the Public Advocate determining that the decision to refuse the treatment was unreasonable).

Despite its broad powers VCAT cannot order that life-sustaining treatment be withheld or withdrawn from a person.

More information about the Tribunals powers is available from VCAT.

What is the role of the Public Advocate in relation to decision-making at the end of life?

The Public Advocate is an independent office created under the Guardianship Act. It has a number of functions relating to medical treatment decision-making at the end of life. The Public Advocate can:

  • Make a decision to consent to or refuse significant treatment for a person with impaired capacity where there is no other medical treatment decision-maker available;
  • When a medical treatment decision-maker refuses significant treatment, make a decision about whether or not the refusal is reasonable;
  • Apply to VCAT for a review of a decision by a medical treatment decision-maker to refuse significant medical treatment (where the Public Advocate considers the decision is unreasonable);
  • Be appointed as a guardian if no one else is available to make a decision about medical treatment for a person who has lost capacity; and
  • Apply to VCAT for the appointment of a guardian for a person.

Unlike other States and Territories, the Victorian Public Advocate does not have power to intervene and make a decision to resolve a disagreement within a family, or between family and treating health professionals about appropriate treatment, or where decisions are being made inappropriately.

The Office of the Public Advocate can provide information and advice to the community about end of life decision-making and the Victorian guardianship system.

Medical treatment decision-making by a substitute decision-maker

What medical treatment decisions can a substitute decision-maker make?

In Victoria, a medical treatment decision-maker may make a medical treatment decision for a person with impaired capacity.

'Medical treatment' is defined widely to include the following treatments given by a health professional to diagnose a physical or mental condition, prevent disease, restore or replace bodily function resulting from disease or injury, or improve comfort and quality of life:

  • treatment with physical or surgical therapy;
  • treatment for mental illness;
  • treatment with prescription pharmaceuticals, or approved Medicinal cannabis (under the access to Medicinal Cannabis Act 2016);
  • dental treatment; and
  • palliative care.

This definition is is broad enough to include life-sustaining treatment.

A ‘medical treatment decision’ is a decision to consent to or refuse the commencement or continuation of medical treatment.

A guardian appointed by VCAT can make a decision to consent to or refuse the commencement or continuation of life-sustaining treatment if VCAT appoints them as a plenary guardian or a limited guardian for medical treatment decisions.

How do medical treatment decision-makers make decisions?

In Victoria, medical treatment decision-makers are required to make the medical treatment decision that they believe the person without capacity would have made, rather than on the basis of the person’s ‘best interests’.

The legislation sets out two processes for decision-making by a medical treatment decision-maker. The process to be followed will depend on whether or not the person’s values and preferences about medical treatment are known, or can be applied.

Process 1: When a person’s values and preferences are known

When a person with impaired capacity’s values and preferences about treatment are known, the medical treatment decision-maker must make the decision they reasonably believe the person would have made if they had capacity. In doing so, the decision-maker must consider, in the following order:

  1. Any valid and relevant Values Directive;
  2. Other relevant preferences the person expressed, and the circumstances in which they expressed those preferences;
  3. Values of the person expressed other than in a Values Directive, or inferred from the person’s life; and
  4. The likely effects and consequences of medical treatment, including the likely effectiveness of the treatment and whether these are consistent with the person’s preferences or values, as well as whether there are any alternatives which would be more consistent with the person’s preference or values, such as refusing medical treatment.

The decision-maker must also act in good faith and with due diligence.

Process 2: When a person’s values and preferences are not known or cannot be applied

If the medical treatment decision-maker cannot apply the first process, for example, because it is not possible to ascertain or apply the person’s preferences or values, the decision-maker must:

  • Make the decision that promotes the person’s personal and social wellbeing and respects the person’s individuality; and
  • Consider the following:
    • the likely effects and consequences of the medical treatment, including its likely effectiveness, and whether these promote the person's personal and social wellbeing, and respect the person's individuality;
    • whether there are any alternatives, including refusing medical treatment, that would better promote the person's personal and social wellbeing, and respect the person's individuality; and
    • act in good faith and with due diligence.

When the person’s values and preferences are not known and the medical treatment decision-maker refuses significant treatment, the health professional must notify the Public Advocate, who will review whether or not that decision is reasonable.

When making treatment decisions using either process, the medical treatment decision-maker must also consult with any person he or she reasonably believes the person would want to be consulted in the circumstances.

If a decision-maker contravenes these processes, that will not, on its own, result in any civil or criminal liability.

A medical treatment decision-maker  may apply to VCAT for directions or an advisory opinion about any matter or question relating to the medical treatment of the person.

Can a medical treatment decision-maker’s decision be overridden?

Generally a health professional must follow a medical treatment decision-maker’s treatment decision. However, a decision may be overridden when:

  • A medical treatment decision-maker refuses consent to significant medical treatment and the person's values and preferences are not known. In that situation, the Public Advocate may, upon being advised of the refusal by a health professional, review whether or not that decision is reasonable, and make a decision. The Public Advocate must do the following: 
    • If the Public Advocate believes the refusal is not unreasonable, notify the health professional as soon as possible that no application to VCAT will be made in relation to the decision.
    • If the Public Advocate believes the refusal is unreasonable, apply to VCAT for a review of that decision. On review, VCAT may make an order affirming, varying, setting aside or substituting the initial decision of the medical treatment decision-maker to consent to or refuse significant treatment.
  • A medical treatment decision-maker refuses palliative care. In that situation a health professional may provide palliative care, but must first consider the person’s preferences and values.
  • VCAT determines the medical treatment decision-maker has not made a decision consistent with the Act’s requirements and sets aside the decision (for example, on the grounds the decision-maker has not properly considered a valid Advance Care Directive, or the decision is not consistent with the person's preferences, values and personal and social wellbeing).
  • The requested treatment is non-beneficial or futile. This situation is discussed in the next question about when treatment can be withheld or withdrawn without the consent of a decision-maker.

Emergency medical treatment

Who makes decisions about life-sustaining treatment in an emergency situation?

In an emergency situation, a medical treatment decision-maker’s consent to treatment is not required. Instead, treatment can be provided if the person’s health professional believes, on reasonable grounds, the treatment is necessary as a matter of urgency, to save the person’s life, prevent serious damage to the person’s health, or prevent the person from suffering or continuing to suffer significant pain or distress.

In emergency circumstances there is no obligation on a practitioner to search for an Advance Care Directive that is not readily available. If however the health professional is aware that person has refused the medical treatment or procedure in an Instructional Directive or by way of some other legally valid informed refusal of treatment, s/he cannot give that medical treatment.

The Victorian legislation does not address the situation where a decision to withhold or withdraw treatment may need to be made on an urgent basis. If the health professional believes treatment would be futile, he or she does not have to provide such treatment, even in emergency situations, and the treatment can be lawfully withheld.

Complaints and dispute resolution

End of life decision-making can be a very challenging and emotional time for a person, their family and friends, medical treatment decision-makers and health professionals, and sometimes disputes arise about medical decision-making for the person.

If anyone (including a health professional) is concerned about a medical treatment decision-maker’s decision or disagrees with the decisions being made, or a decision cannot be reached about the person’s care and treatment, the person can apply to VCAT. The Tribunal may limit the medical treatment decision-maker's authority; declare that the person is not the medical treatment decision-maker; or give an advisory opinion or directions to a health professional or medical treatment decision-maker.

VCAT may also, on the application of the Public Advocate, review whether a medical treatment decision-maker's refusal of significant medical treatment was unreasonable, and may make an order affirming, varying, setting aside or substituting that medical treatment decision-maker's decision.

Further resources

For more information about the Victorian law at end of life contact the Victorian Office of the Public Advocate. Information about the Medical Treatment Act 2016, relevant forms and other useful information is detailed in the Office of the Public Advocate's publication Taking Control.

Other useful resources about medical decision-making in Victoria are available from the Victorian Department of Health and Human Services.

The following article also explores the Victorian law in relation to withholding and withdrawing life-sustaining treatment:

Willmott, Lindy, White, Ben., Parker, Malcolm, & Cartwright, Colleen (2011) The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: part 3 (Victoria). Journal of Law and Medicine, 18(4), pp. 773-797.