More Certainty for Victorians over their Medical Treatment Decisions

The law surrounding advance care directives and medical treatment decision-making has drastically changed with the introduction of the Medical Treatment Planning and Decisions Act 2016 (Vic) (“the Act”). The Act came into effect on 12 March 2018.

The Act repeals the Medical Treatment Act 1988 (Vic) and implements a single framework regarding medical treatment decision-making for people without decision-making capacity. This overhaul aims to ensure that people receive medical treatment that is consistent with their preferences and values. It is focused on personal autonomy.

The Act is in response to past legislative complexity and inconsistency. Previously, Victoria had four different Acts governing this area, each with their own definitions, tests for capacity and obligations. Now, medical treatment decision-making is solely governed by the Act.

The Act does not cover unlawful medical treatment, such as physician assisted dying.

 

What’s different?

Advance care directive (“ACD”)

The Act will enable Victorians (including some children) to create a legally binding ACD. The ACD can contain:

  • Instructional directives (specific, binding instructions on treatments that a person consents to or refuses); and/or
  • Value directives (which describe a person’s preferences and values that they would like to be taken into account when medical treatment decisions are being made for them).

ACDs will be relevant where a person does not have decision-making capacity and a medical treatment decision needs to be made for them. For example, patient X requires heart bypass surgery. In circumstances such as these, the health practitioner treating patient X is obliged to make reasonable efforts to locate an ACD. If patient X has an ACD in place that contains an instructional directive either consenting to or refusing heart bypass surgery, then the health practitioner is legally bound to follow that instructional directive.

It is important to note that ACDs must be witnessed by two people – one of them being a registered health practitioner.

 

Medical treatment

(a) Decision-makers

The Act also allows a person aged 18 or over to appoint a medical treatment decision-maker to make decisions for them if they lose decision-making capacity. Only one medical treatment decision-maker can be authorised to make decisions at any one time however back-up medical treatment decision-makers can be appointed. The first listed decision-maker maintains the power to make medical treatment decisions. If the first listed decision-maker is unable or unwilling to make these decisions then the second listed decision-maker has the power to make the decisions, and so forth.

A medical treatment decision-maker will be relevant where a person does not have decision-making capacity, a medical treatment decision needs to be made for them and:

  • There is no ACD in place; or
  • The person’s ACD does not contain any relevant instructional directive on the proposed medical treatment decision.

For example, patient X requires heart bypass surgery but he/she has no ACD in place. The health practitioner is then obliged to locate the appointed medical treatment decision-maker. This medical treatment decision-maker will make any necessary decisions on patient X’s behalf regarding heart bypass surgery.

In these situations, a single test is imposed on the medical treatment decision-maker when making decisions. This being that, their decisions must be consistent with the patient’s preferences, values and rights (i.e. no longer what is in the best interest of the patient but on the basis that the decision-maker reasonably believes that the patient would have made that decision if the patient had decision making capacity). Amongst other things, the medical treatment decision-maker will be required to consider relevant value directives contained in the patient’s ACD (if any).

The role of a medical treatment decision-maker comes second to any ACD that is in place and that contains a relevant instructional directive. This intends to give people control over future health choices, with an emphasis on ensuring that a person’s medical instructions, values and preferences are complied with when they have lost capacity.

 

(b) Support persons

The Act introduces the role of a “support person”. This is a completely new option with regard to medical treatment decision-making and can even be made by some children.

A support person can assist in making, communicating and giving effect to a person’s medical treatment decisions and representing that person’s interests whilst they still have capacity. For example, accessing medical records relevant to a decision or attending appointments with that person.

If a person loses decision-making capacity, the support person can continue to act as an advocate for that person. However, the support person cannot make medical treatment decisions on behalf of another person – only the medical treatment decision-maker has that power.

The role of a support person may be particularly relevant where a person is elderly or suffering from an ongoing medical condition.

A support person and medical treatment decision-maker can be the same person.

 

Impact on medical agents and enduring powers of attorney

A medical agent appointed under the Medical Treatment Act 1988 (Vic) prior to 12 March 2018 will still be effective and they will be deemed to be a medical treatment decision-maker under the Act.

Additionally, the Act does impact future enduring powers of attorney (for personal matters) made under the Powers of Attorney Act 2014 (Vic). Prior to the Act, personal matters was defined to include “health matters”. However, this definition has been amended by the Act to exclude “health matters”. Now, a person will no longer have authority to appoint an attorney for health matters under the Powers of Attorney Act 2014 (Vic). This ensures that medical decisions are solely governed by the Act.

The introduction of the Act, and its new framework for medical treatment decision-making, is cause for reflection on the appropriateness of any relevant documentation that may be in place.

 

Should you require further assistance in this area, please contact Bernie O’Sullivan or Thalia Dardamanis.

By Thalia Dardamanis and Carla Massaria