The Victorian Government has made significant changes to the legislation regulating Victoria’s medical decision-making laws, which are due to commence on 12 March 2018. These new laws can be found in the new Medical Treatment Planning and Decisions Act 2016 (Vic) (Act), which replaces the existing law around medical decision-making as set out in the Medical Treatment Act 1988 (Vic) (to be repealed).
The changes are relevant to all adults living in Victoria, but are especially important to anyone with ageing family members and members of the medical profession.
The new laws introduce a number of significant changes, including by:
- Altering the process by which medical treatment decision-makers can be appointed;
- Allowing a person to make “advance care directives”, by which a person can lay down instructions and stipulate preferences or values that a decision-maker must adhere to when making decisions regarding medical matters; and
- Giving more control to individuals to determine how future decisions about medical treatment are to be made once they are no longer capable of making those decisions themselves.
These new laws follow the sweeping changes that were made to the legislation around Enduring Powers of Attorney for financial and personal (i.e. lifestyle) decisions with the introduction of the Powers of Attorney Act 2014 on 1 September 2015 (you can read about it here: https://pointonpartners.com.au/changes-to-powers-of-attorney-laws-are-here/), and the subsequent changes to that Act which took effect earlier this year (which you can read about here: https://pointonpartners.com.au/changes-powers-attorney-act-2014/).
Appointment of medical decision-maker
Currently, a person must make an Enduring Power of Attorney (Medical) to authorise another person to make decisions in relation to medical care and treatment if they lose the capacity to make those decisions themselves (whether temporarily, for example, due to loss of consciousness after an accident, or permanently, for example, due to a severe brain injury or illness).
From 12 March 2018, a person will appoint a medical treatment decision-maker without making an Enduring Power of Attorney (Medical). Different formality requirements will apply.
A person who had power to make medical treatment decisions pursuant to an existing Enduring Power of Attorney under the old legislation will maintain their authority to make medical decisions under the new Act.
In contrast to the current law, a person can now appoint multiple people to make medical treatment decisions on their behalf (note only one person can make a decision at a given time).
In addition to the existing power to appoint a decision-maker, under the new Act, a person will also be able to appoint a support person, who does not have the power to make decisions on medical matters, but is entitled to access medical records relevant to a decision, assist the decision-maker with making a decision, and will be able to see to it that their decisions are carried through.
There are also new criminal penalties and protections to prevent a person from falsely acting as a medical decision-maker on behalf of another.
If a formal appointment has not been made
Be aware that the new Act automatically appoints a person to be a medical decision-maker if a person has not made a formal appointment themselves. The de facto decision-maker will be the first available person on a list of individuals set out in the Act (broadly, a spouse or domestic partner, primary carer, child, parent, or sibling), provided they have a close relationship with the person needing the medical treatment. Previously, if a person did not have a Medical Enduring Power of Attorney in place, an application to the Victorian Civil and Administrative Tribunal (VCAT) would have to be made to have a medical decision-maker appointed.
Advance care directives
Under the new Act, a person can make advance care directives. There are two types of advance care directives that can be made, instructional directives and values directives. An instructional directive set outs legally binding instructions about future medical treatment that a person either refuses or consents to. A values directive documents a person’s values and preferences which they require to be taken into account in relation to any medical treatment decision made on their behalf.
A person can choose to make both directives or they can choose to make only one. The advent of the advance care directive replaces the “Refusal of Treatment Certificate” that exists under the current law. Note however that existing Refusal of Treatment Certificates issued under the old Act remain valid.
Obligations on medical practitioners
The Act imposes significant obligations on health professionals to take active steps to ascertain the existence and location of any advance care directive and medical treatment decision-maker. Failure to comply with these obligations can place the health professional at risk of being found liable for unprofessional conduct. Health service providers, including hospitals and aged care providers, have their own set of duties which they will need to be across, including the duty to maintain registers of advance care directives and details of appointed decision-makers.
If you require advice or assistance regarding making an advanced care directive or updating or making a medical treatment decision-making authority, don’t hesitate to contact Michael Bishop or Jonathan Slade.