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VCAT review relating to voluntary assisted dying

Information about when and how a person can apply to VCAT for a review of a decision made by the co-ordinating doctor or the consulting doctor in relation to a request for voluntary assisted dying.

Decisions that can be reviewed

Some specified decisions made by the co-ordinating medical practitioner (co-ordinating doctor) or the consulting medial practitioner (consulting doctor) can be reviewed at VCAT. These are that the patient:

  • is not ordinarily a resident of Victoria
  • was not an ordinary resident in Victoria for at least 12 months at the time of making the request
  • does not have decision-making capacity in relation to voluntary assisted dying.

Challenges relating to decision-making capacity

An eligible person may also apply to VCAT for a review of the co-ordinating doctor's decision if they believe that the person did not have decision-making capacity in relation to voluntary assisted dying when:

  • the doctor was applying to the Secretary of Health and Human Services (secretary) for a self-administration permit
  • the doctor was applying to the secretary for a practitioner administered permit
  • the patient made the request for the doctor to administer the lethal drug.

The co-ordinating or consulting doctor may refuse to continue the process if they made a finding that the patient did not have decision-making capacity and VCAT found that the person had decision-making capacity in relation to voluntary assisted dying. Under these circumstances the co-ordinating doctor must transfer the patient to another doctor.

See ss. 47(3)(a), 48(3)(b), 64(5), 68, 73—Voluntary Assisted Dying Act 2017 (Vic)(opens in a new window).

Who is eligible to apply to VCAT

The patient (that is the person who is subject to the decision) under review, or their agent may apply to VCAT. Any other person may apply, provided that VCAT is satisfied that that person has a special interest in the medical treatment and care of the person referred to. According to the Explanatory memoranda for the Bill, parliament did not intend for a person to be eligible merely because they were a family member of the patient.

If the patient was not the applicant, they are a party to the proceedings.

See s. 68(2) (3)—Voluntary Assisted Dying Act 2017 (Vic)(opens in a new window).

VCAT responsibility if application is lodged

If an application is lodged at VCAT, VCAT must notify the secretary, co-ordinating medial doctor and the Voluntary Assisted Dying Review Board (the board) of the application made and any order or determination made by VCAT relating to the application.

If the person dies before the hearing is concluded, the application is taken to have been withdrawn.

See ss. 69, 71—Voluntary Assisted Dying Act 2017 (Vic)(opens in a new window).

Stay

If the voluntary assisted dying process has not been completed when the application is lodged at VCAT, all further action is suspended pending the outcome of the hearing.

See s. 70—Voluntary Assisted Dying Act 2017 (Vic)(opens in a new window).

VCAT decision

VCAT may make a determination that the patient:

  • is an ordinary resident in Victoria
  • is not an ordinary resident in Victoria
  • was an ordinary resident for at least 12 months before they applied for voluntary assisted dying
  • was not an ordinary resident for at least 12 months before they applied for voluntary assisted dying
  • has decision-making capacity
  • does not have decision-making capacity.

See s. 70—Voluntary Assisted Dying Act 2017 (Vic)(opens in a new window).

More information

Legislation

Voluntary Assisted Dying Act 2017 (Vic)

  • Part 6—review by VCAT
    • s. 68—application for review of certain decisions
    • s. 69—notice requirements
    • s. 70—no further action to be taken while VCAT hearing is on foot
    • s. 71—application is taken to be withdrawn if patient dies
    • s. 72—power of VCAT to make decisions
    • s. 73—doctor may refuse to continue if VCAT finds person has capacity and they had decided the patient did not have capacity

See Voluntary Assisted Dying Act 2017 (Vic)(opens in a new window)

References

Voluntary Assisted Dying Bill 2017 (Vic)

  • clause 68—Explanatory memorandum

See Voluntary Assisted Dying Bill 2017(opens in a new window).

Updated