Guardianship and Administration Act 2019

On hearing an application under this Part, VCAT may consent to the carrying out of a special medical procedure if VCAT is satisfied that—

the patient has not given an instructional directive (within the meaning of the Medical Treatment Planning and Decisions Act 2016) in relation to the special medical procedure; and

the patient does not have decision-making capacity in relation to giving consent; and

the patient is not likely to have decision‑making capacity in relation to giving consent within a reasonable time; and

the patient would consent to the carrying out of the special medical procedure if the patient had decision-making capacity in relation to giving consent.

For the purposes of determining whether VCAT is satisfied as to the matter set out in subsection (1)(d)—

first, if the patient has given a valid and relevant values directive (within the meaning of the Medical Treatment Planning and Decisions Act 2016), VCAT must consider the values directive; and

second, VCAT must take into account any other relevant preferences that the patient has expressed and the circumstances in which those preferences were expressed; and

if VCAT is unable to identify any relevant preferences under paragraphs (a) and (b), VCAT must give consideration to the patient's values whether—

expressed other than by way of a values directive; or

inferred from the patient's life; and

VCAT must also consider—

the likely effects and consequences of the special medical procedure, including the likely effectiveness of the procedure and whether these are consistent with the patient's preferences or values; and

whether there are any alternatives, including refusing the special medical procedure, that would be more consistent with the patient's preferences or values.

If VCAT is unable to apply the process required by subsection (2) because it is not possible to ascertain or apply the patient's preferences or values, VCAT may consent to the carrying out of the special medical procedure if—

VCAT is satisfied that the special medical procedure will promote the personal and social wellbeing of the patient, having regard to the need to respect the patient's individuality; and

VCAT has considered—

the likely effects and consequences of the special medical procedure, including the likely effectiveness of the procedure; and

whether there are any alternatives, including refusing the special medical procedure, that would better promote the patient's personal and social wellbeing.

In the case of either subsection (2) or (3), VCAT must also consult any other person who VCAT reasonably believes the patient would want to be consulted in the circumstances.