Medical Treatment Planning And Decisions Act 2016 (Vic)
29th Jun 2017
New legislation will come into effect on 12 March 2018 that will repeal the Medical Treatment Act 1988 (Vic), and amend the Mental Health Act 2014 (Vic). The new Act will allow people to give binding instructions or express preferences and values in relation to medical treatment that may be required in the future when they are no longer in a position to consent or refuse treatment. It will also allow people to nominate another person as a ‘decision-maker’, who will be able to make decisions if the nominator themselves lacks decision-making capacity.
Both adults and children can be held to have decision-making capacity as long as they can understand the information relevant to the decision, and also the consequences of the decision. It is also important to note that patients may be in possession of decision-making capacity for some decisions, but not others.
Instructional directives, which are express statements regarding consent or refusal of treatment, and values directives, which suggest overall preferences as to treatment options, can be made by those with decision-making capacity. However, doctors are not obliged to provide futile or non-beneficial treatment, regardless of any directives that exist.
Medical treatment decision-makers can be appointed if the appointor has decision-making capacity. More than one decision-maker can be appointed, and these decision-makers are required to make decisions on behalf of the appointor taking into account their values and preferences, and must make the decision that they reasonably believe the appointor would have made. Support persons can also be appointed, and their role is to represent the appointor, and to help the appointer make, communicate and give effect to medical treatment decisions.
Doctors have an obligation to locate directives or medical treatment decision-makers as far as reasonably possible, with an exception that applies to emergency situations. A contravention of the section that dictates that reasonable efforts must be made to locate either advance care directives or medical treatment decisions-makers will be considered unprofessional conduct. Doctors are also permitted to provide palliative care regardless of any advance care directives or decision by a medical treatment decision-maker. It is also important to note that the Act does not address physician-assisted dying.
Victorian and Civil Administrative Tribunal (VCAT) and the Public Advocate are the avenues for any disputes or contests in relation to decisions or directives made under the Act. The Act also deals with administering medical research procedures to those lacking decision-making capacity. The requirements for undertaking and detailing such procedures are located in the Act, and we encourage those who may encounter this to ensure that they are aware of their responsibilities.
This Act will encourage people to think about potential end-of-life planning, along with formalising instructions in advance. It allows the community to engage with and take responsibility for future medical decisions, and provides a structure and a system in which one can exercise autonomy in relation to potential medical decisions that are required.
Catherine Sim is a Lawyer at Adviceline Injury Lawyers and is an expert in personal injury law, in particular the WorkCover system.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).