This website is for use by legal professionals (lawyers and law practices) only. If the information is used incorrectly, you could risk losing money or your legal rights. If you are a member of the public looking for free advice about your legal problems please visit legalaid.vic.gov.au, or contact our Legal Help advice line on 1300 792 387, Monday to Friday from 8 am to 6 pm. 

If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Challenging a decision-maker at VCAT

Information about how to challenge a person's authority to make a decision on behalf of a person who has lost capacity.

At person who is eligible can apply to the Victorian Civil and Administrative Tribunal (VCAT) about whether a medical decision-maker has authority to make a decision on behalf of a person who no longer has capacity to consent or refuse medical treatment. VCAT may also make an order on its own motion.

Who can apply to VCAT about an advance care directive?

Any eligible applicant may apply to VCAT. An eligible applicant can be:

  • a health practitioner who has the care of, or provides medical treatment to a person
  • a medical treatment decision-maker to a person
  • a support person
  • the Public Advocate, or
  • any other person that VCAT believes has a special interest in the affairs of the person concerned.

See s. 3—Medical Treatment Planning and Decisions Act 2016 (Vic)(opens in a new window).

Parties to the proceeding

The following parties are parties to a VCAT proceeding if an application is made challenging the authority of decision-maker to make decisions about medical treatment for a person who has lost the capacity to decide for themselves:

  • the person who is getting (or not getting the treatment)
  • the decision-maker (if a decision has been made)
  • the Public Advocate (if they want to challenge a decision refusal).

See s. 71—Medical Treatment Planning and Decisions Act 2016 (Vic)(opens in a new window) and s. 59—Victorian Civil and Administrative Tribunal Act 1998 (Vic)(opens in a new window).

Exceptions

VCAT has no power to make decisions under the Medical Treatment Planning and Decisions Act 2016 in relation to special medical procedures. Special medical procedures are:

  • any procedure that is intended (or is reasonably likely to) result in permanent infertility
  • termination of pregnancy
  • removal of tissue for transplanting into another person (such as a kidney)
  • any other medical procedure that is prescribed in regulations to be a 'special medical procedure' under Part 6 of the Guardianship and Administration Act 2019.

Note: Currently no other procedures are prescribed under regulations.

The procedure for applying to carry out special procedures is dealt with under Guardianship and Administration Act 2019 (Vic).

See Special medical procedures.

What VCAT must consider before making an order

Before making an order, VCAT must be satisfied that the person who is to get medical treatment does not have decision-making capacity in relation to that decision. VCAT must also be satisfied that the order they plan to make is consistent with:

  • any known preferences and values (whether expressed or inferred) by the person about whom treatment is being considered, and
  • promoting the personal and social wellbeing of that person, having regard to their individuality.

See s. 69—Medical Treatment Planning and Decisions Act 2016 (Vic)(opens in a new window).

Orders VCAT can make

VCAT may make any of the following orders about whether a person has the authority to make a medical treatment decision on behalf of a person who does not have capacity:

  • an order limiting the capacity of a person to make a medical treatment decision
  • an order declaring that a person is not the medical treatment decision-maker of a person
  • an order setting aside a decision that has been made by a decision-maker
  • any other order that it considers necessary.

See ss. 66, 68—Medical Treatment Planning and Decisions Act 2016 (Vic)(opens in a new window).

VCAT may give an advisory opinion

A medical treatment decision-maker or health practitioner may apply to VCAT any time for directions or an opinion on any matter relating to an advance care directive or medical treatment of a person.

See s. 70—Medical Treatment Planning and Decisions Act 2016 (Vic)(opens in a new window).

Application by Public Advocate in response to treatment refusal

If VCAT is notified about a decision-maker refusing treatment (as health practitioners are required to do) and the Public Advocate believes that the decision-maker's refusal was unreasonable, the Public Advocate must apply to VCAT for a review of this decision within 14 days of getting this notification.

VCAT may vary, set aside or substitute the decision to refuse treatment by the decision-maker.

See ss. 62, 67—Medical Treatment Planning and Decisions Act 2016 (Vic)(opens in a new window).

More information

Legislation

Medical Treatment Planning and Decisions Act 2016 (Vic)

  • s. 3—defines 'eligible applicant' and refers to the Guardian and Administration Act 2019 for the definition of a 'special procedure'
  • s. 64—excludes special medical procedures from being dealt with under this Act
  • s. 66—orders in relation to medical treatment decisions
  • s. 67—application by the Public Advocate challenging a decision-maker's refusal of treatment
  • s. 70—VCAT may give advisory opinion to medical treatment decision-maker or health practitioner about an advance care directive or medical decision
  • s. 71—parties to a VCAT proceeding

See Medical Treatment Planning and Decisions Act 2016 (Vic)(opens in a new window).

Guardianship and Administration Act 2019 (Vic)

  • s. 140—defines a special medical procedure
  • s. 143—application for consent to a special procedure

See Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Victorian Civil and Administrative Tribunal Act 1998 (Vic)

  • s. 59—who are the parties to a proceeding?

See Victorian Civil and Administrative Tribunal Act 1998 (Vic)(opens in a new window).

Updated