Medical treatment decisions in Victoria 

This article states the law of Victoria. The Medical Treatment Planning and Decisions Act 2016 (Vic) splits an advance care directive into two kinds of provision that operate differently, and puts a substituted judgment standard on anyone deciding for a person who cannot decide¹. The prior question is which kind of provision is relied on, because one binds and the other guides.

Two kinds of directive

Section 12(1) defines an advance care directive as a document setting out a person's "binding instructions or preferences and values" about their medical treatment, operating where the person does not have decision-making capacity for that treatment. Section 12(2) provides that a directive may contain either or both of an instructional directive and a values directive.

Section 12(3) then sweeps material into the second category by default. A values directive includes any statement not expressly identified on the face of the document as an instructional directive, and any instructional directive that is of unclear or uncertain application in relation to particular circumstances.

Both limbs repay attention. The first makes labelling decisive: an instruction intended to bind must say on the document that it is an instructional directive. The second is a safety valve — an instructional directive whose application is unclear is not simply disregarded, nor is it stretched to fit; it takes effect as a values directive and so guides rather than binds.

Giving effect to an instructional directive

Section 60(1) applies where a health practitioner proposes to administer treatment to a person who has an advance care directive and who lacks decision-making capacity for that treatment. The practitioner must, as far as reasonably practicable and subject to s 51, give effect to any relevant instructional directive — by withholding or withdrawing treatment where the directive refuses particular medical treatment, and by acting on it where the directive consents to treatment.

This is the sharpest divergence from South Australia. Under the Advance Care Directives Act 2013 (SA), only a refusal of health care is a binding provision; everything else, including a positive direction, is non-binding. Victoria gives effect to an instructional directive whichever way it points. A student who carries the South Australian rule into a Victorian problem will wrongly treat a consent as merely advisory.

Section 51 states the circumstances in which a health practitioner may refuse to comply with an instructional directive, and any answer relying on s 60 should acknowledge that it operates subject to that section.

The medical treatment decision maker

Where there is no applicable instructional directive, a medical treatment decision maker decides. Section 61(1) sets the standard: they must make the decision they reasonably believe "is the decision that the person would have made if the person had decision-making capacity".

That is substituted judgment, and it aligns with South Australia's guardianship standard rather than with New South Wales's welfare and interests test — though Victoria applies it here to medical treatment specifically, and its own guardianship Act works from will and preferences. The three jurisdictions do not line up neatly across topics, which is why each statute has to be read on its own terms.

Section 61(2) prescribes how that belief is formed, in order:

1. first consider any valid and relevant values directive;
2. next consider any other relevant preferences the person has expressed, and the circumstances in which they were expressed;
3. if no relevant preferences can be identified under either of those, give consideration to the person's values, whether expressed other than by a values directive or inferred from the person's life.

The values directive therefore has real work to do even though it does not bind: it is the first thing the decision maker must consider. And the third step permits inference from how the person lived, which is a broader evidentiary base than an express statement.

Where this sits among the three jurisdictions

Three different architectures for the same problem:

• Victoria — a directive that may bind (instructional) or guide (values), with a substituted judgment standard and a structured cascade for the decision maker.
• South Australia — a directive in which only refusals of health care bind, with a substitute decision-maker the person appointed, subject to production and competence preconditions.
• New South Wales — no equivalent advance directive statute in the material examined; instead a statutory person responsible hierarchy under Part 5 of the Guardianship Act 1987 (NSW), with treatment permitted without consent in urgent cases.

Victoria and South Australia both begin from the person's own instrument; New South Wales begins from a ranked list of people. That is the division to hold onto.

Applying this in a problem question

1. Ask whether the provision relied on is labelled an instructional directive on the face of the document; if not, s 12(3)(a) makes it a values directive.
2. Where an instructional directive is unclear in its application to the facts, apply s 12(3)(b) rather than construing it strictly.
3. For an instructional directive, apply s 60(1), and remember it operates for a consent as well as a refusal.
4. Note that s 60 is subject to s 51 before concluding the practitioner must comply.
5. Where no instructional directive applies, state the s 61(1) standard as substituted judgment, not best interests.
6. Work the s 61(2) cascade in order, and use the third step to reason from values inferred from the person's life where nothing express is available.

Self-check

• Have I checked whether the provision is labelled as an instructional directive?
• Have I treated an unclear instructional directive as a values directive?
• Have I remembered that a consent, not only a refusal, can bind in Victoria?
• Have I stated s 61(1) as substituted judgment rather than best interests?