- On 12 March 2018 the Medical Treatment Planning and Decisions Act 2016 commenced.
- The Act has given statutory recognition to advance care directives and simplified and contemporised laws relating to medical treatment decision making for people without decision making capacity.
Medical treatment may only be provided to a person after there has been a medical treatment decision. If the person has decision-making capacity, they must either consent to or refuse the medical treatment. If the person does not have decision-making capacity in relation to the decision to be made, their medical treatment decision maker must make the decision.
When a medical treatment decision maker makes this decision, they must make it in accordance with what they believe the person would want in the circumstances.
What is the intention of the Act?
Existing laws are fragmented and health practitioners are understandably confused. The Medical Treatment Planning and Decisions Act 2016 creates clear obligations for health practitioners caring for people who do not have decision making capacity.
The Act will ensure medical decision making is more in line with contemporary views and is more consistent with how people make decisions about their medical treatment and personal autonomy.
The Act establishes a single framework for medical treatment decision making for people without decision making capacity that ensures that people receive medical treatment that is consistent with their preferences and values.
Under the Act, Victorians are able to create a legally binding advance care directive that allows them to:
- Make an instructional directive (which will provide specific directives about treatment a person consents to or refuses).
- Make a values directive (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).
- Appoint a medical treatment decision maker (who will make decisions on behalf of a person when they no longer have decision making capacity).
- Appoint 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).
This Act ensures Victorians can have confidence in the health system, which will respect their decisions about medical treatment.
The Act does not authorise physician assisted dying and, as the Standing Committee on Legal and Social Issues found, this is a separate issue to advance care planning.
A person’s medical treatment rights
The law supports a person’s rights when it comes to medical treatment in Victoria in the following ways:
- a person has the right to refuse medical treatment in most circumstances
- the medical practitioner must usually seek the person’s consent prior to carrying out medical treatment
- a person’s capacity to consent is assumed unless there are indications otherwise
- a competent person can refuse treatment in relation to a current or future condition under the Medical Treatment Planning and Decisions Act 2016 by completing a a valid instructional directive
- likewise, the person’s medical treatment decision maker can consent to or refuse treatment on their behalf if they no longer have the capacity to do so themselves.
Determining a person’s medical treatment decision maker
At any one time, a person will only ever have one medical treatment decision maker. This ensures it is clear who is responsible for making the medical treatment decisions. There is a hierarchy for determining the person’s medical treatment decision maker, and the first available and willing person from the list below will be the medical treatment decision maker.
- an appointed medical treatment decision maker;
- a guardian appointed by VCAT;
- the first of the following with a close and continuing relationship with the person:
- the spouse or domestic partner;
- the primary carer of the person;
- the oldest adult child of the person;
- the oldest parent of the person;
- the oldest adult sibling of the person.
If a medical treatment decision maker consents to treatment, a health practitioner may proceed with that treatment. If the medical treatment decision maker refuses treatment, a health practitioner cannot provide that treatment.
Strengthening the validity of advance care directives
An advance care directive will be strengthened if it demonstrates that:
- it is consistent with a person’s wishes
- the person has repeated these wishes regularly
- the person has appointed a medical treatment decision maker who has a clear understanding of their wishes and is willing to be a strong advocate for them.
A valid advance care directive must comply with the formal requirements set out in the Medical Treatment Planning and Decisions Act 2016. To make a valid advance care directive a person must sign in front of two witnesses. One of these witnesses must be a registered medical practitioner (a medical doctor). Neither witness can be someone you have appointed as your medical treatment decision maker.
Even if an advance care planning document has not been witnessed, anything a person documents about their wishes for future care will still provide useful information for their treating team and medical treatment decision maker.
Reviewed 14 September 2016