The short answer
In Victoria, a mental illness or disability can change the time limit for a medical negligence claim, but it does not switch the clock off by itself.
General information only — this article is not legal advice.
If the person was of unsound mind when the treatment happened, s 27E of the Limitation of Actions Act 1958 (Vic) allows six years from the date the claim became discoverable, instead of the usual three. The twelve-year long-stop still applies.
If the person later becomes unable to manage their affairs about the claim for a continuous 28 days or more, because of disease or impairment, s 27J suspends the running of time while that lasts. It does not do so while a guardian or administrator who is authorised by law to sue for them is in place. A court can also extend time under s 27K, and must consider any disability after the claim became discoverable. A diagnosis alone does not decide which rule applies. Capacity, and the evidence for it, does.
| Situation | What the Act says | Section |
|---|---|---|
| Of unsound mind when the treatment happened, including a represented person | Six years from discoverability or twelve years from the act or omission, whichever ends first | s 3(2), s 3(3), s 27E |
| Capable at the time, then unable to manage your affairs about the claim for 28 days or more in a row | Time already running is suspended for as long as that lasts | s 27J(1)(b), s 27J(2) |
| Unable to manage your affairs, but a guardian or administrator authorised to sue for you is in place | Not suspended, and the guardian's knowledge counts as yours | s 27J(1)(b), s 27J(3) |
| Incapacity lasting less than 28 days in a row | No suspension under s 27J. The ordinary three years from discoverability applies | s 27D, s 27J(1)(b) |
| The period has already run | A court may extend time if it is just and reasonable, weighing any disability | s 27K, s 27L(1)(d), s 27M |
Section references are to the Limitation of Actions Act 1958 (Vic), authorised version 113, incorporating amendments as at 2 October 2026, checked on 16 October 2026. How the Act applies to a particular set of dates is fact-specific.
See your two dates
Enter the date of the treatment, and when you first suspected it, and our free checker shows the three-year date and the twelve-year outer limit side by side. It does not apply the disability rules on this page, so treat it as a starting point only. Nothing you enter leaves your browser.
This page covers one situation: the person who was harmed has a mental illness, a brain injury or another disability that affects how they manage their affairs. Time limits for medical negligence claims explains the general rules, and claiming after 3, 10 or 20 years covers older claims. If the negligence itself caused a psychiatric injury, psychiatric injury from medical negligence explains that kind of claim.
What does "under a disability" mean in the Limitation of Actions Act?
Section 3(2) says a person is under a disability while they are a minor or "of unsound mind". Section 3(3) adds that a person is conclusively presumed to be of unsound mind if they are a represented person under the Guardianship and Administration Act 2019 (Vic), meaning a person in relation to whom a guardianship order or an administration order has effect.
The Act does not otherwise define "unsound mind". Whether someone met that description on a particular date is a question of fact, decided on the evidence. Having a mental illness, an intellectual disability or a brain injury is not the same thing as being of unsound mind for this purpose, and the Act does not treat a diagnosis as the test.
What is the time limit if the person was of unsound mind when the treatment happened?
For most adults, s 27D gives three years from the date the claim became discoverable, or twelve years from the act or omission, whichever ends first. Section 27D(2) says that rule does not apply where the injured person was under a disability on the date of the act or omission.
Section 27E applies instead. It allows six years from the date the claim became discoverable, or twelve years from the act or omission, whichever ends first. So the period from discoverability is doubled, but the twelve-year long-stop in s 27E(2)(b) remains.
The date that matters is the date of the act or omission said to have caused the injury. A person who was of unsound mind then falls under s 27E even if their capacity later returns.
What if the illness or injury left you unable to manage your affairs later?
Section 27J deals with this. A person is under a "legal incapacity" while they are an incapacitated person for a continuous period of 28 days or more. If time has already started to run, it is suspended for as long as the legal incapacity lasts (s 27J(2)).
An incapacitated person is someone who is incapable of, or substantially impeded in, managing their affairs in relation to the claim, because of any disease or any impairment of their physical or mental condition (s 27J(4)). Three parts of that definition matter.
- It is about the claim. The question is whether the person could manage their affairs in relation to this claim, not whether they could manage everything in their life.
- "Substantially impeded" is enough. The person does not have to be completely unable to act.
- The 28 days must be continuous. Shorter periods, even if repeated, do not meet the test in s 27J(1)(b).
This can apply where the treatment itself caused the incapacity, such as a brain injury after surgery, or where a separate illness affected the person's ability to deal with the claim for a period. Whether it applied, and for how long, is decided on the evidence.
Does time run if a guardian or administrator has been appointed?
It can. Under s 27J(1)(b), a person is not under a legal incapacity while they are a represented person and their guardian is authorised by law to bring actions in their name. "Guardian" here means a guardian or administrator for the person under the Guardianship and Administration Act 2019 (Vic) (s 27J(4)).
Section 27J(3) adds that, for an incapacitated person who is not under a legal incapacity, what the guardian of a represented person knew or ought to have known is treated as what the person knew. So once an authorised guardian or administrator is in place, the clock may run on the guardian's knowledge, not the injured person's.
Guardianship and administration orders are made by the Victorian Civil and Administrative Tribunal (VCAT) under s 30 of the 2019 Act. A guardianship order must say whether VCAT has given the guardian power to take legal proceedings (s 34(1)(d) and s 40). If someone holds that role for your family member, check the order, and ask early what they knew about the treatment and when.
Does the twelve-year long-stop still apply?
For a claim under s 27E, yes. The six-year period ends earlier if twelve years from the act or omission comes first.
Section 27J speaks of suspending "the period of limitation" while a legal incapacity lasts. How that works for a particular set of dates, including where the twelve-year period sits, is a technical question. Have it checked early rather than assume the answer either way.
Can a court extend time because of a mental illness or disability?
Yes, in some cases. Section 27K lets a person apply to a court to extend a limitation period, and the court may do so if it decides that is just and reasonable. Section 27M says the court can do this even after the period has expired.
Section 27L lists matters the court must consider. One is "the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability" (s 27L(1)(d)). Others include the length of and reasons for the delay, prejudice to the defendant, and whether the plaintiff acted promptly and reasonably once they knew they might have a claim. An extension is a discretionary decision made on evidence, not an entitlement.
Who brings the claim if the injured person cannot?
The courts' rules require a person under disability to bring a court case through a litigation guardian. Court Services Victoria's guideline for litigation guardians describes a person under disability as a minor, or a person who is incapable, because of a disability such as a brain injury or mental illness, of managing their affairs in relation to the court case.
A litigation guardian is often a family member or support person. They must be over 18, must not have an interest in the case that conflicts with the person's, and must have a lawyer act for the person. The guideline notes that a litigation guardian may not be needed where the person already has an administrator.
Any settlement for a person under disability must be approved by the court to be valid, under r 15.08 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic), with similar rules in the County Court and Magistrates' Court.
What evidence shows when capacity was affected?
The time-limit question often turns on dates of capacity, so the records that show those dates matter as much as the records of the treatment. These may include:
- hospital admission and discharge records, including any period as an inpatient;
- treating doctors' notes that describe the person's ability to understand and make decisions;
- any VCAT order appointing a guardian or administrator, and its date; and
- letters, emails or notes that show what the person, or their guardian, knew about the treatment and when.
How to get your medical records in Victoria explains how to request them and from whom.
What should you do if you are helping someone with a disability?
- Write down the key dates: the treatment, when problems appeared, any admissions, any guardianship or administration order, and when anyone first suggested something went wrong.
- Request the records now. Requesting them does not pause the clock.
- Do not assume a disability means there is no deadline, and do not assume the ordinary three years applies. Either assumption can be wrong.
Get the dates checked
You do not need to work out which rule applies. That is part of what an assessment is for. A lawyer reviews the evidence and makes every legal decision.
If you, or someone you care for, may have a claim and capacity has been an issue, start a free assessment and tell us the dates you know. There is no obligation, and you will be told plainly whether time is a concern.
Common questions
Does a mental illness stop the time limit for a medical negligence claim?
Not by itself. Under the Limitation of Actions Act 1958 (Vic), time is suspended only while a person is unable, or substantially impeded, in managing their affairs about the claim for a continuous 28 days or more, and not while an authorised guardian or administrator is in place. A person who was of unsound mind when the treatment happened has six years from discoverability instead of three, still subject to the twelve-year long-stop.
What is the time limit if the person was of unsound mind at the time of the treatment?
Section 27E of the Limitation of Actions Act 1958 (Vic) applies. The claim must be brought within six years from the date it became discoverable, or twelve years from the act or omission that caused the injury, whichever ends first. A represented person under the Guardianship and Administration Act 2019 (Vic) is conclusively presumed to be of unsound mind.
Does time run if a guardian or administrator has been appointed?
It can. A represented person is not treated as under a legal incapacity while their guardian or administrator is authorised by law to bring actions in their name, so the suspension in section 27J does not apply. What that guardian knew or ought to have known about the claim is treated as what the injured person knew.
Can a court extend the time limit because of a disability?
It can. Section 27K lets a court extend a limitation period where that is just and reasonable, even after it has expired. Under section 27L the court must consider the duration of any disability or legal incapacity arising after the claim became discoverable, along with the reasons for the delay and any prejudice to the defendant. An extension is discretionary, not automatic.
Sources
- Limitation of Actions Act 1958 (Vic) — authorised version 113, incorporating amendments as at 2 October 2026: s 3(2) and (3), and Part IIA, ss 27D, 27E, 27F, 27J, 27K, 27L and 27M
- Guardianship and Administration Act 2019 (Vic) — authorised version 010: s 3 (represented person), s 30 (VCAT orders), s 34(1)(d) and s 40 (a guardian's power to take legal proceedings)
- Court Services Victoria — Litigation Guardians: A General Guideline (March 2026)
- Supreme Court of Victoria — Practice Note SC GEN 24, Litigation Guardians
- Funds in Court, Supreme Court of Victoria — Approvals of compromise