Department of Health

Planning when a person does not have decision making capacity

Where a person does not have decision making capacity to make decisions with regard to their medical treatment, that responsibility falls to their medical treatment decision maker.

A person will only have one medical treatment decision maker to make a particular medical treatment decision. This will be the first person listed who is available and willing to make the decision. This ensures clarity regarding who is responsible for making medical treatment decisions.

Where a person does not have decision making capacity to make decisions about their own medical treatment and has not appointed a medical treatment decision maker, the Medical Treatment Planning and Decisions Act sets out who the medical treatment decision maker will be. The Act then directs the decision maker to make the decision they reasonably believe the person would have made if the person had decision-making capacity. In making such decisions the Act states that the medical treatment decision maker must:

  • first consider any valid and relevant values directive
  • next consider any other relevant preferences that the person has expressed and the circumstances in which the preferences were expressed
  • in a case where the medical treatment decision maker is unable to identify any relevant preferences, consider the person's values, whether expressed by the person or inferred from the person's life.

Further information and resources on planning when a person doesn't have decision-making capacity to undertake advance care planning can be found on The Victorian Office of the Public Advocate's website.

Reviewed 30 September 2019

Health.vic

Contact details

Senior Policy Officer, Advance Care Planning Department of Health & Human Services

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