The Victorian Government has released a Bill which aims to give Victorian’s a greater say in their medical treatment when they have lost capacity.

The Medical Treatment Planning and Decisions Bill (“the Bill”) aims to ensure a person’s medical instructions are complied with and clarifies when a person will be deemed to have lost decision-making capacity.

The Act is in response to legislative complexity and inconsistency. Currently, Victoria has four different Acts governing this area, each with their own definition, test for capacity and obligations.

What’s different?

The major changes contained in the Bill relate to simplifying the legal framework for medical choices and giving legal status to advance care directives.

A single test will be imposed when a medical decision must be made for a person who has lost capacity. The decision must be consistent with the person’s preferences, values and rights.

To prevent any uncertainty about someone’s wishes, the proposed legislation will allow a person (who has capacity) to execute a legally binding advance care directive. This can relate to medical decisions for current or future conditions. Within the advance care directive a person can now include:

  • Binding instructional directives about treatment a person consents to or refuses and which health practitioners must comply with;
  • Value directives, which will describe a person’s views and values; a medical treatment decision maker and health practitioners will be required to give effect to a values directive as far as reasonably possible when making treatment decisions; and
  • Appointment of a medical treatment decision maker who will make decisions on behalf of a person when they no longer have decision making capacity
  • Appointment of a support person who will assist a person to make decisions for themselves by collecting and interpreting information or assisting the person to communicate their decisions.

The proposed changes will give people more control over future health choices. However, the Act does not govern unlawful medical treatment, including physician assisted dying.