End of Life Law in Australia

Victoria

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 2019 (Vic) ('the Guardianship Act'), the Medical Treatment Planning and Decisions Act 2016 (Vic) (‘the Medical Treatment Act’); and the Powers of Attorney Act 2014 (Vic) ('the Powers of Attorney Act').

The Medical Treatment Act commenced operation on 12 March 2018, replacing the Medical Treatment Act 1988 (Vic). It regulates medical treatment decision-making, including consent to or refusal of the commencement or continuation of medical treatment. Some legal documents and substitute decision-making arrangements made under the previous Act continue to apply – where this is the case there is no need for a person to remake existing documents, or arrangements.

In the Medical Treatment Act, medical treatment refers to the following treatments given by a health practitioner 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 (Vic));
  • dental treatment; and
  • palliative care.

It does not include a medical research procedure.

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

The Powers of Attorney Act governs Enduring Powers of Attorney and Powers of Attorney. An Enduring Power of Attorney made under this Act immediately before 12 March 2018 (the date the current Medical Treatment Act commenced) continues to operate.

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 does not have 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.

A guide for medical treatment decision-makers and a clinician’s guide to medical decision-making are available from the Office of the Public Advocate Victoria.

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 Instructional Directive in an Advance Care Directive that is applicable to the medical treatment situation, that decision must be followed. If the person does not have an Instructional Directive, a medical treatment decision-maker is able to make the medical treatment decision.

Before a health practitioner 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 person’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 (in order of priority) who is available, willing and able to make the decision:

  • decision-maker appointed by the person. This includes:
    • A medical treatment decision-maker appointed under the Medical Treatment Act; and
    • A decision-maker appointed under:
      • a Medical Enduring Power of Attorney,
      • an Enduring Power of Attorney, or
      • an Enduring Power of Guardianship

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

  • A guardian appointed by the Victorian Civil and Administrative Tribunal to make medical treatment decisions for the person. A guardian can only be appointed for a person with a disability who does not have decision-making capacity. A 'person with a disability' means a person with an intellectual impairment, mental disorder, brain injury, physical disability or dementia.
  • 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 (in order of priority):
    • 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:
      • The person's oldest adult child
      • The person's oldest parent
      • The person's oldest adult sibling.

If the person is receiving treatment for a mental illness 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 practitioner cannot locate a medical treatment decision-maker (or an Advance Care Directive), the practitioner:

  • must, if it is significant treatment, seek the consent of the Public Advocate to provide the treatment. The health practitioner 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 significant 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?

A significant development in protecting the rights of persons with disabilities is the United Nations Convention on the Rights of Persons with Disabilities, ratified by Australia in July 2008. Article 12 of the Convention mentions the concept of support for legal capacity, usually referred to as ‘supported decision-making’. This process involves providing support so that a person, such as an adult with a cognitive impairment, can make their own decisions with assistance rather than a substitute decision-maker making the decision on the person’s behalf.

In Victoria a support person or supportive guardian may be appointed to provide support to a person around medical treatment decision-making. These roles are discussed below.

What are the roles of a support person and a supportive guardian?

The role of a support person is to:

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

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

A support person does not have the power to make medical treatment decisions for the person, unless the support person is also appointed as the person’s medical treatment decision-maker. Further information about support persons is available from the Office of the Public Advocate.

The role of a supportive guardian is to support a person with disability to make or give effect to their own decisions about personal matters (including medical treatment decisions) or financial matters. Depending on their appointment, they may have powers to access or obtain information to help the person, as well as power to communicate with others about the person (e.g. health practitioners, banks). Unlike a guardian, a supportive guardian does not have power to make medical treatment decisions for the person. Further information about supportive guardians is available from the Office of the Public Advocate.

How is a support person appointed?

Support person

Under the Medical Treatment Act, a 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. 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.

Supportive guardian

Under the Guardianship Act, any person can apply to VCAT for a supportive guardianship order. This order can only be made for people with a disability. The application must propose an individual for the role, who will need to agree to be appointed. The person to be supported must consent to the appointment. VCAT may only appoint a supportive guardian if it will promote the person's personal and social wellbeing.

When considering an application to appoint a guardian, VCAT may decide it is more appropriate to appoint a supportive guardian.

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, guardians, support persons and supportive guardians;
  • reviewing or 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 practitioners on Advance Care Directives or the medical treatment of a person.

VCAT does not, however, have a general power to order that life-sustaining treatment be withheld or withdrawn from a person.

An exception to this is where a medical treatment decision-maker refuses significant medical treatment, and the Public Advocate determines that the refusal was unreasonable. In this situation, VCAT may, on the application of the Public Advocate, make an order about the medical treatment decision maker’s refusal of treatment. This includes affirming, varying, setting aside or substituting that decision. This power would allow the Tribunal to refuse or withdraw consent to life-sustaining treatment.

More information about the Tribunal's 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); or
    • the appointment of a guardian or a supportive guardian for a person.
  • 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. The Public Advocate cannot be appointed as a supportive guardian.

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 practitioners 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 health practitioners 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 (Vic));
  • dental treatment; and
  • palliative care.

This definition 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 (a substituted judgment approach), rather than on the basis of the person’s best interests.

The Medical Treatment Act 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. If the medical treatment decision is to be made by the person’s guardian they must also follow this process.

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

When a person without 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. If no relevant preferences can be identified, the person’s values expressed in other ways, or that can be 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. Any alternatives which would be more consistent with the person’s preferences or values e.g. refusing medical treatment should also be considered.

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

If the medical treatment decision-maker cannot find out the person’s preferences or values they must:

  • Make the decision that promotes the person’s personal and social wellbeing and respects the person’s individuality; and
  • Consider:
    • 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; and
    • 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.

When making treatment decisions using either process, the medical treatment decision-maker must also:

  • act in good faith and with due diligence; and
  • consult with any other person they believe the person would want to be consulted.

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

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 practitioner 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 health practitioner must notify the Public Advocate, who may 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 practitioner 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 practitioner 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 below.

Emergency medical treatment

When can emergency treatment be provided, and is consent required?

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 practitioner believes on reasonable grounds that 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.

Though not required by the law, it is still good practice for health professionals to obtain a substitute decision-maker’s consent to the urgent treatment if possible.

In emergency circumstances there is no obligation on a practitioner to search for an Advance Care Directive that is not readily available. If however they are aware that the person has refused the medical treatment or procedure in an Instructional Directive in an Advance Care 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 urgently. If the health practitioner 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.

For more information about emergency treatment visit the Capacity and consent to medical treatment page .

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 practitioners. Sometimes disputes may arise about medical decision-making for the person.

If anyone (including a health practitioner) is concerned about or disagrees with a medical treatment decision-maker’s decision, 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 practitioner 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.

Where a person, their family or carer wishes to raise concerns that a person's health condition is getting worse or not improving as expected while the person is in hospital or receiving care they may contact HEAR Me, a 24/7 helpline for escalation of care.

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, relevant forms and other useful information is detailed in the Office of the Public Advocate's publication Take 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: