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If no advance care directive and no decision-maker

Information about treating a patient without capacity if they have not planned in advance and appointed a decision-maker and there is no-one able to make the decision for them.

If a health practitioner proposes to give medical treatment to a person who does not have requisite capacity and:

  • no advance care directive can be found and
  • nobody able, willing and available to make a decision about treatment on behalf of the patient,

the health care professional may go ahead and administer routine treatment without consent.

Decision about significant treatment

If the medical treatment is significant, treatment can only be given if the Public Advocate gives consent. Once consent is given the practitioner can give treatment.

What is significant treatment?

The Act defines significant treatment as any medical treatment involving any of the following:

  • a significant degree of bodily intrusion, such as an internal or intimate examination
  • a significant risk to the person, such as medical treatment that may result in serious bodily damage
  • significant side-effects, including the administration of any prescription pharmaceutical that is likely to have a serious adverse effect on the person, or
  • significant distress to the particular person, including distress the person may feel when they are about to get an injection or a particular medical treatment that is known to cause that person to be anxious or fearful.

See s. 3—Medical Treatment Planning and Decisions Act 2016 (Vic).

Exception

This does not apply to a person who is a mental health patient.

See ss. 63, 50—Medical Treatment Planning and Decisions Act 2016 (Vic).

More information

Legislation

Medical Treatment Planning and Decisions Act 2016 (Vic)

  • s. 3(1)—defines 'significant treatment'
  • s. 63—medical treatment decisions if there is no advance care directive and no medical treatment decision.

See Medical Treatment Planning and Decisions Act 2016 (Vic).

Updated