- 04 March 2018
- Duration: 26:09
The new legislation that comes into force in 102 days. Alright, so that commences on the 12th March next year. Unfortunately, that’s a public holiday. [Laughter] Presents a challenge but, nonetheless that’s when it comes into force. So, what I’m talking about here –are two things, really, and this has been a big challenge in getting information out about this legislation. One is that it deals with advanced planning and, so, you’re here today to do advanced planning forum. That’s not too much a problem. The other is that it has significant implications for the process by which medical consent is given to medical treatment by people that aren’t able to consent to the treatment themselves and that’s the other element. So, it’s not just about advanced planning. So, we’re not going off to talk to health services and other places and having to keep making the point – it’s not just about advanced planning although it is an element. Alright, an important preliminary point to note is this legislation overrides the Medical Treatment Act, which is no longer in force from the 12th March and subsumes almost all of the provisions – the medical treatment provisions and the Guardianship and Administration Act. Importantly, legal documents made under those Acts prior to the 12th March next year, remain valid. That’s one of the constant queries we’ll get at the Office of the Public Advocate about whether someone’s enduring power of attorney medical treatment remains valid and the short answer is if it’s valid when it’s created, then it remains valid.
Ok, so let me talk firstly about advanced care planning under the new legislation and then I’ll look to medical consent. So, from the 12th March, as you can see on that slide, people can make an advanced care directive. They can appoint a medical treatment decision-maker. That’s the new term for person responsible. Going back further and further – next of kin and they can appoint a support person and that’s a new role that I’ll talk to you a little about. So, of course there are formal requirements for the making of an advanced care directive and there’ll be forms available from the 12th March on the health website – you can see there – and on the Office of Public Advocate website and in our revamped Take Control book and of our OPA new forms on your table there – the flow chart for providing consent. So, there are some formal requirements. One of the – for creating the advanced care directive. One of the two witnesses must be a registered medical practitioner. Interestingly, in an earlier draft of the Bill, there is a requirement that one of the witnesses be either a registered medical practitioner or someone able to take Affidavits, like a lawyer. Now, the lawyers have been removed as authorised witnesses of an advanced care directive and, in part, I think that’s because we’re mindful that, not only does someone have to have the ability to – the capacity to know what they’re doing in creating their directive, and there’s no doubt a lawyer in a Collins Street office could gauge that, but the implication can be for one of the kinds of advanced care directives that I’ll talk to you about, an instructional directive, it is binding. So, the concern, I guess, has been that this instrument might be fine now but it might be put into use in ten years’ time. In scenarios that even perhaps the lawyer in the Collins Street office may not foresee how this might be utilised. I think that’s part of the thinking why one of the witnesses has to be a registered medical practitioner. There are no specific obligations on the medical practitioner, in terms of how they witness it but the hope is, I imagine, that they would be aware of the types of scenarios in which such a directive might be put into use.
Ok, so, in terms of – that’s one of the witnessing requirements for advanced care directives for the appointment of a medical treatment decision-maker and the appointment of the support person has a lower witnessing threshold. So, you need two witnesses, one of whom must be either a medical practitioner or able to take affidavits. So, there’s different witnessing requirements for the reason that I’ve just gone into.
Alright, so, advanced care directives are legal documents that set out either a person’s preferences and values, which is a values directive, or binding instructions, which is the instructional directive. It’s in relation to the medical treatment of the person and in the event that the person doesn’t have decision-making capacity to consent to or refuse medical treatment they’re offered. So, you might have an advanced care directive but if you’ve got the capacity to make your own medical treatment decision, you make your treatment decision that can differ from your directive. The directive comes into play if you don’t.
Ok, there are two kinds of directives – the values directive is a statement of a person’s preferences and values as the basis on which they’d like any medical treatment decisions to be made on their behalf. So, this has to be considered by a medical treatment decision-maker and you’ll see in a moment. In making any treatment decisions, medical treatment decision-maker, we’re moving to a new paradigm, away from best interests, where a medical treatment decision-maker might make a decision based on what they think is in the best interests of the person. We’re moving to a situation that we call substituted judgment, where that decision-maker is required to make the decision that the person themselves would likely have made. So, how do you know what decision the person themselves would likely have made, a values directive will be very important in that regard.
Alright, the other kind of advanced care directive is the instructional directive, which is a statement of a person’s medical treatment decision that is directed to the patient’s health practitioner. It takes effect as if the person who made it has consented or refused the commencement or continuation of the medical treatment. Now, it’s very important, of course, if people take up this option of completing an instructional directive, that they bear in mind the kinds of scenarios in which this might be utilised. For instance, a person might say, ‘I never want any life support, should I be unable to make my own decisions’ and that might sound like an important exercise of the person’s preferences. However, as many people in the room would know, there may well be scenarios where otherwise routine operations might require a person to be on life support for twenty minutes and expected to make a full recovery. If your binding advanced instructional directive saying ‘I don’t’ want this’ and they’re not able to make a decision themselves, then that’s what happens. So, in the development of the forms, there’s no prescribed form but in the development of the form, the Department of Health and Human Services and OPA assisting in this, were wanting to put flags all over the place on the instructional directive to bring to people’s attention the situations in which they might find an instructional directive being put into play.
Important point to note, as we go through, where ever there are concerns about the validity of an advanced care directive or indeed a medical treatment decision-maker or a health practitioner wants advice on what they should do on XY and Z situations, the Victorian Civil and Administrative Tribunal is the umpire in those situations.
Ok, let’s look at medical treatment decision-makers. So, a person can appoint a medical treatment decision-maker with the authority to make medical treatment decisions on their behalf if they don’t have decision-making capacity to make the decisions. A patient’s medical treatment decision-maker must make the decision as I say that they reasonably believe is the one that the patient themselves would have made. This is a paradigm shift away from simply empowering the person to make the decision that they think is the best one in the circumstances to making one – the decision that they believe the person themselves would have made. That’s why advanced care planning is so important because it’s through that process we all know that the process is more important than any document. Through that process, we get to understand what the person’s wishes are.
There’s also a new role in the legislation of support person. So, one of the signature developments in the field of human rights, especially when we look at the rights of people with cognitive impairments comes under the heading of supportive decision-making and the believe that people should play greater roles in the decisions that affect them and that even where they might have some limitations on their ability to make decisions, they should be supported to make their own decisions. This development is a bit of a nod in the direction of supported decision-making and there’s equivalent nods in legislation in Victoria, particularly in the powers of attorney legislation. Anyway, so this is a new role of support person and the role, as you can see there, is to support the patient to make, communicate and give effect to their medical treatment decisions and represent the interests of the patient, in respect of the patient’s medical treatment, including when they don’t have decision-making capacity. So, the idea here is a person can appoint a support person but the decision still rests with the individual, not with the support person. The support person, however, is thereby legally enabled to get, for instance, information that health and privacy legislation would otherwise inhibit them from getting. That’s one of the legal implications of this role. So, it’s a way in which a person can appoint someone else to assist them to get information and to assist them in making a decision.
That’s all I wanted to look at with the advanced planning element. So, now I want to turn to the medical consent elements and they are, of course, related but there are specific provisions that simply relate to medical consent. Right, a general observation, of course, health practitioners need the patient’s consent before providing medical treatment unless they’re providing emergency treatment. The new legislation sets out from the 12th March, the medical consent process for a patient who does not have decision-making capacity to make the medical treatment decision. Right, so how do we define decision-making capacity? The legislation adopts now a pretty standard definition of capacity that’s in place in other countries in the world, particularly draws from the UK’s Mental Capacity Act. So, a patient has decision-making capacity for medical treatment decision if they’re able to do four things - understand the information relevant to the decision, retain that information to the extent necessary to make the decision, use or weigh the information as part of the process of making the decision and communicate their decision in some way. It doesn’t have to be by speech. It can also be by gesture or other means. Importantly, adults are presumed to have decision-making capacity, unless there’s evidence to the contrary. Oftentimes, it will be important to allow people to have more time to make a decision if they have, for instance, some degree of cognitive impairment but the simple fact of having some degree of cognitive impairment doesn’t automatically mean they don’t have decision-making capacity.
The legislation applies to registered health practitioners in those professions you can see listed up there. Now, this is a much broader group of professionals than under previous medical treatment laws. Also broader is the definition of medical treatment, which has two parts. So, medical treatment is treatment by a health practitioner for one or more of the purposes listed there and for one of the forms of treatment listed there. So, the purposes are around diagnosing, preventing disease, restoring bodily function, improving comfort and quality of life. The form of treatment includes physical or surgical therapy. Treatment for mental illness – I’ll come to that in a second, treatment with prescription pharmaceuticals. Now that’s an important development because our guardianship legislation currently, which is the most important legislation concerning the provision of medical consent for people who aren’t otherwise able to consent currently excludes pharmaceuticals and regular dosage levels from the definition of medical treatment. Pharmaceuticals are now included. That has significant practice implications for the provision of pharmaceuticals for people who aren’t able to consent to their provision and consent on that person’s behalf will now be required. So, that’s a signature change here.
The legislation adopts, what you might say, is a much more everyday definition of medical treatment. There’s also treatments – dental treatments included in palliative care and I’ll say something about palliative care in a moment. Importantly, special procedures which term the guardianship legislation still in the guardianship legislation includes things like sterilisation and abortion for people who aren’t able to consent to that. They stay in the guardianship legislation and consent there has to be provided by the Victorian Civil and Administrative Tribunal. Just for those special procedures.
Alright, emergency treatment. Now, emergency treatment – the term ‘emergency’ exists in the one of the headings in the legislation but the term itself isn’t in the body of the legislation. Instead, there’s reference to urgency. So, medical treatment or a medical procedure that is necessary as a matter of urgency to save the patient’s life, presents serious damage to the patient’s health or prevent the patient from suffering or continuing to suffer significant pain or distress can be provided without consent. So, it’s an important last phrase there – significant pain or distress. So, where treatment comes within that exception, it can be provided without consent. However, if the health practitioner is aware that the patient has refused the treatment in an instructional directive, they mustn’t proceed with treatment.
Now, I’ll say a bit more about the obligations on health practitioners to search for advanced care directives. In short here, if emergency treatment is needed, a health practitioner is not required to search for a directive that is not readily available. Point being, though, if they are aware there is one, then that has to be observed. If a health practitioner is aware that the patient has refused treatment in their instructional directive, there are limited other circumstances where they can refuse to comply and these cover where circumstances have changed so that they believe their directive is no longer consistent with the preferences and values of the person or where a delay caused by an application to VCAT would lead to a significant deterioration in the person’s condition and in those circumstances, the instructional directive doesn’t have to be followed. Now, that, I know, raises questions about what comes within and how do you get advice about whether something comes within those exceptions and that’s something that indeed has to be worked through as the practice implications for this legislation being considered.
Alright, obtaining a medical treatment decision the Act sets out three steps for the health practitioners to follow when a patient doesn’t have decision-making capacity to make their own medical treatment decision and I’ll go through those. So, step 1. Is there advanced care directive with an instructional directive? So, health practitioner must make reasonable efforts in the circumstances to find out if the patient has an advanced care directive with the relevant instructional directive. What’s reasonable in the circumstances – of course, that’s not defined in the legislation. it depends on the situation and on the time-frame in question. Largely, in the person’s ability later to … if they’re able perhaps to regain capacity, of course, that’s something that has to be borne in mind as well but is there an advanced care directive with the relevant instructional directive? If yes, give effect to that. So, if the patient’s refused the particular medical treatment in their instructional directive, then the health practitioner withholds or withdraws the treatment. They’ve consented to it then they administer it. So, this instructional directive is advanced consent or refusal.
If there’s not an instructional directive, we go to step 2. Is there a medical treatment decision-maker? So, there is a hierarchy in the legislation, as there is in the current guardianship legislation. Interestingly, it’s a smaller hierarchy now. So, at the top is the person’s appointment medical treatment decision-maker. Next, is the guardian appointed by VCAT who has relevant powers to make medical treatment decisions and there’s the automatic hierarchy of these people – spouse, primary carer, adult child, parent of the patient, adult sibling of the patient. Importantly, there’s the qualifying phrase that whoever is at the top of that automatic hierarchy under point 3, has to have a close and continuing relationship with the person. So, the distant Aunty can’t fly in from Darwin and just make a medical treatment decision. The person has to have a close and continuing relationship and where there are debates about does this person have that – such a relationship – or are there others who are claiming that they are higher in the hierarchy, VCAT ultimately is the decision-making authority. So that if there are more than one in that particular category, for instance, an adult child of the patient, the eldest of those persons makes the decision. I usually drop in a personal anecdote at this stage, which I apologise if people have heard me say before – I’m the father of identical twins. Who is the older of my identical twins is a matter of some debate in our house? One was plucked first but I say that they were conceived at the same time. Anyway, that would be a question for VCAT but for the fact that I have an older son. [laughter]
Ok, so, is there a medical treatment decision-maker? If yes, they make the decision and bearing in mind, if they make that decision, it is on a substitute of judgement, based on what the person themselves would likely have wanted, not what I simply think is best. Alright, so, the medical treatment decision-maker makes the decision. If there’s not a medical treatment decision-maker, then we go on and this is where we divide proposed treatment into two categories: significant treatment and routine treatment. So, if it’s a significant treatment and there’s no instructional directive, there’s no medical treatment decision-maker, then the decision falls to the Public Advocate or her delegate to make a decision and this is a variation on a current authorisation process we have, known as the Section 42K process, which is a registration of a document process, it’s not so much a decision by the Office of the Public Advocate, so we are moving to an actual decision now. In situations where we are talking about signification treatment, the legislation pretty briefly defines significant treatment with a mix, you’ll see, of objective and subjective elements. So, significant treatment means any medical treatment of a patient that involves any of the following: a significant degree of bodily intrusion, a significant risk to the patient, significant side effects and significant distress to the patient. That last one, of course, is a very subjective element. So, an example here would be someone who has a morbid fear of dentist. Any operation by a dentist might be significant treatment for them but it might not be significant treatment for Ian, over there, who I see – an old friend of mine. Might not be significant treatment for him. So, there is a subjective element there. So, if it is significant treatment, then the decision is made by the Public Advocate. If it’s not, then the health practitioner may provide treatment without consent and, so, if it’s routine treatment – routine treatment is treatment that is not significant.
So, you have on your table, a guideline to what is significant treatment, which goes in rather more depth than those four dot points. It extends to 20 pages on what is significant treatment and that’s an important guide that’s been developed in the lead-up to the 12th March.
Right, there are provisions around acting in good faith. A health practitioner who, in good faith, without negligence, reasonably believes they’ve complied with the medical consent process set out in the act is not guilty of an offence or liable for unprofessional or professional misconduct. This is a helpful kind of summary of the steps for the health professionals to take. So, these slides will be publicly available. So, you can see there – is there advanced care directive with the relevant instructional directive? If yes, give effect to it. If not, is there a medical treatment decision-maker? If yes, they make the decision. If not, is it significant treatment? If yes, the Public Advocate makes the decision. If not, the treatment may be administered without consent.
Alright, the Act also provides for a process for health practitioners, where the patient is likely to recover within a reasonable time. If the person is likely to recover in a reasonable time, the treatment can only go ahead if it’s consented to in an instructional directive or if the medical treatment decision-maker consents and delay would lead to a significant deterioration in the person’s condition.
Palliative care – now this is a very important point. Anyone who purports to refuse palliative care in an instructional directive, that becomes effectively a values directive. So, it’s only suggestive for a medical treatment decision-maker and, indeed, there is another provision that enables a health practitioner to go against the desire of the medical treatment decision-maker to refuse palliative care. So, palliative care can be provided. There is no obligation on health practitioners to provide futile or non-beneficial treatment. It’s an important statutory provision that really just brings to the fore the common law position prior to the 12th March and there is a consent process for the provision of medical research. There is a similar procedural authorisation process where medical research is [Unclear 23:08] for someone that is not able to consent to it, as currently exists under the guardianship legislation, known as Section 42T process.
Importantly, with this legislation, we’re getting rid of a bizarre distinction in Victoria between – a bizarre distinction that most lawyers can’t even tell you what the distinction is between withholding consent to treatment and refusing treatment. We’re getting rid of that distinction now, which is good, and the way we’re doing it is essentially by empowering all medical treatment decision-makers to refuse treatment on behalf of a person. Now, you’ll understand there are ethical issues involved that perhaps distinguish a situation where I point someone – I point Joe to become my medical treatment decision-maker. I can do that, knowing that I’m empowering Joe to make decisions. It might be different, though, if I’m not authorising someone but someone has that role, simply on a statutory hierarchy. We’re empowering both to refuse treatment on my behalf. There’s an important safeguard there that, largely, we think we will apply with people with lifelong and significant and cognitive impairments, whereby if a health practitioner is away that a person’s medical treatment decision-maker is refusing treatment and they – the health practitioner – reasonably believe the preferences and values of the patient aren’t known or are unable to be known by the medical treatment decision-maker, they must tell the Office of the Public Advocate which can then decide whether to make a guardianship application in those situations.
Alright, you see there, the websites for further information and, just to reiterate on the obligations of health practitioners, there are broad settings where urgent treatment can be given without consent, including to prevent significant pain and distress. As I said before, health practitioners can’t treat if they know there’s been a refusal of treatment in an instructional directive but the obligation to search is only what is reasonable in the circumstances. Again, the general obligation to find a medical treatment decision-maker also is what’s reasonable in the circumstances. Importantly, in terms of finding an instructional directive, of course, there’s no compulsory register at the moment. We’ll be hearing later on about the My Health record facility and there will be the possibility of people uploading their record onto My Health record, but, of course, registration is not compulsory. So, you have the operational question of I completed an instructional directive. In five years’ time I’m presented to emergency, how does anyone know I’ve got an instructional directive? That’s an operational challenge that will … in short, what we’re saying to people is if you have an instructional directive, you really need someone to know about this, other than in the context of the current relationship with the health practitioner.
And, that’s all I wanted to say, at this stage. So, you can see those websites. There are a range of materials on your table and we are looking forward to hearing your thoughts as we go through the day about the practice implications of all of these significant changes.
Thanks for your attention.
This presentation provides an overview of the Medical Treatment Planning and Decisions Act 2016, including information related to values directives, instructional directives, appointing a medical treatment decision maker, appointing a support person and the new legal obligations introduced by the Act.
Presented by Dr John Chesterman, Manager of Policy and Education at the Office of the Public Advocate
Reviewed 04 March 2018