On 12 March 2018, changes were made to the Medical Treatment Planning and Decisions Act 2016 (Vic.) (“the Act”) in an attempt to provide greater autonomy to potential patients which enable them to provide advance care directives that are legally enforceable. The Act will allow patients to give binding instructions or to express their 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 patients to nominate another person as a ‘decision-maker’, who will be able to make decisions if the patient themselves lacks decision-making capacity.
How these new changes may affect you or may affect a friend or family member
The new legislation provides patients to provide their views and allows them to have their medical treatment preferences respected, even when they lose the capacity to express these wishes.
The new laws allow for the creation of new legal documents called advance care directives. Advance care directives may include either or both:
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An instructional directive with legally binding instructions about future treatment the person consents to or refuses
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A values directive which documents the person’s values and preferences for future medical treatment.
An instructional directive is a statement of the patient’s medical treatment decisions and takes effect as if the patient had consent to or refused the medical treatment. An instructional directive should be completed by a patient if they are aware of the medical treatment that they want or do not want to receive in the future, as health practitioners will be found to follow these instructions.
On the other hand, a value directive is a statement of the patient’s values and preferences for their medical treatment. The values and preferences of the patient will be used as the basis on which medical treatment decisions are made on their behalf, and it can also include statement of treatment outcomes the patient may want.
There are formal requirements to make an advance care directive. It must be in writing and in English; include the patient’s full name, date of birth and address; and be signed by the patient and witnessed by two adults.
The new legislation will also patients under the age of 18 with medical decision-making capacity to prepare an advance care directive. Those under 18 are required to undergo an assessment by a medical practitioner who must confirm to the decision-making capacity of the child, in order for the advance care directive to be legally enforceable. The child is required to understand the nature and effect of each statement they have included in their advance care directive.
Appointing a medical treatment decision maker
Medical treatment decision-makers can be appointed if the patient has decision-making capacity. More than one decision-maker can be appointed, and these decision-makers will be required to make decisions on behalf of the patient taking into account their values and preferences and must make the decision that they reasonably believe the patient would have made. There is a staged process for determining this:
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Consider any relevant values directive;
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Consider any relevant preferences expressed by the patient;
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Consider the patient’s values, whether expressed or implied;
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If none of the above apply, to make a decision that promotes the patient’s personal and social wellbeing
There is also an option to appoint a support person, whose role is to assist the patient to make decisions for themselves, by collecting and interpreting information from the patient or to assist the patient to communicate their decision. They can also represent the patient’s interest relating to their medical treatment. For example, the patient may tell the support person of what they want and do not want, and the support person may help the patient in talking to doctors, nurses and other health practitioners about this.
If a medical treatment decision maker is not appointed, health practitioners are required to identify a decision maker to consent to or refuse medical treatment on behalf of the patient, in accordance with a statutory hierarchy predefined in the Act as follows:
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The appointed medical treatment decision maker;
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Person appointed by VCAT under a guardianship order with power to make medical decisions;
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Spouse;
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Carer;
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Nearest relative as follows (needs to be an adult):
If the medical treatment decision maker refuses to make treatment decisions for the patient, and the health practitioner reasonably believes that the patient’s preferences and values are not known or are unable to be inferred then the health practitioner must notify the Public Advocate.
Conclusion
These new changes demonstrate the importance for patients to consider a medical care directive and to consider appointing a medical treatment decision maker to ensure their values are respected relating to their medical treatment preferences. If you do not have any documentation in place and are considering creating a medical care directive, De Marco Lawyers can assist and guide you in accordance with the new legislation.
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This article is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can get from De Marco Lawyers and other relevant experts.