Who makes the decisions?
Wills and Estates: 23 March 2019
Changes to the Medical Treatment Planning and Decisions Act 2016
One of the most important questions we deal with when discussing a person's medical affairs is "who makes the decisions. The short answer is, you do! But what happens when you cannot make decisions for yourself?
Current Legislative Framework in Victoria
The law varies in each state. This article deals with the Victorian law. Presently, medical practitioners need a patient's consent before performing any medical treatment.
If a patient cannot consent, the practitioner can only administer emergency treatment or palliative care unless there is valid authority in place.
'Medical treatment' is the carrying out of an operation; or the administration of a drug or other like substance; or any other medical procedure but does not include palliative care.
What are your options?
You can:
- execute an Enduring Power of Attorney (Medical Treatment) whereby you appoint an agent, and possibly an alternate agent, to make a decision about medical treatment on your behalf if you are incompetent. However the term 'incompetent' is not defined in the Act;
- execute a Refusal of Treatment Certificate under section 5 refusing medical treatment for a current condition.
The Victorian Civil and Administrative Tribunal ('VCAT') also has jurisdiction to appoint someone to make medical decisions upon application in certain circumstances.
There is a hierarchy of decisions makers with respect to medical decisions:
- Agent appointed under an Enduring Power of Attorney (Medical Treatment);
- Person appointed by VCAT;
- Person appointed under a guardianship order with power to make medical decisions;
- Attorney appointed under the Power of Attorney Act 2014 (Vic) with power to make medical decisions;
- Person appointed in writing by the patient;
- Spouse;
- Carer;
- Nearest relative as follows:
- Child;
- Parent;
- Sibling;
- Grandparent;
- Grandchild;
- Uncle / Aunt; or
- Nephew / Niece.
Some people choose to execute an Advance Care Plan which sets out their intentions, wishes and views with respect to medical treatment. However, presently, whilst an Advance Care Plan can be completed it is not legally binding.
Medical Treatment Planning and Decisions Act 2016
On 13 September 2016 the Victorian Minister for Health introduced the Medical Treatment Planning and Decisions Bill.It essentially creates a framework around medical treatment decision making and advance care planning.The Act has now been passed comes in to operation no later than 12 March 2018.
Importantly, the Act introduces the ability to implement a binding Advance Care Directive and the appointment of a Medical Treatment Decision Maker or Support Person.
What is an Advance Care Directive?
An Advance Care Directive is a document that sets out a person's binding instructions, or preferences and values, in relation to their medical treatment in the event they do not have 'decision-making capacity' for that medical treatment. The Advance Care Directive is only active when this criteria has been met, and generally an adult is presumed to have decision making capacity unless there is evidence to the contrary.
There are two types of directives that can be included in an Advance Care Directive:
- An instructional directive which is an express statement of a person's medical treatment decision
Eg - a statement that a person consents to a heart bypass operation in specified circumstances or a statement that a person refuses cardiopulmonary resuscitation. - A values directive which is a statement of a person's preference and values as to the basis on which the person would like any medical treatment decisions to be made on their behalf.
Eg - a statement to the effect 'if I am unable to recognise my family and friends, and cannot communicate, I do not want any medical treatment to prolong my life'.
The distinction between the two becomes important when a health practitioner who proposes to administer medical treatment to a person who has an Advance Care Directive but does not have decision-making capacity must - (a) give effect to any relevant instructional directive, if there is no instructional directive in the Advance Care Directive; (b) refer to the Medical Treatment Decision Maker discussed below; (c) consider any values directives.
Any person (including a child) may give an Advance Care Directive so long as they have decision-making capacity and understand the nature and effect of each statement in the directive.
There is no prescribed form for an Advance Care Directive but there are formality requirements that must be complied with
An Advance Care Directive cannot contain unlawful statements.
Medical Treatment Decision Maker
When the Act takes effect, it will be possible to appoint a person as medical treatment decision maker (in lieu of an attorney). The appointed medical treatment decision maker has the powers set out in the Act to make medical decisions for that person.
Again, there is no prescribed form however there are formality requirements that must be complied with, similar to those of an Advance Care Directive.
Support Person
It will also be possible to appoint a support personto support the person to make, communicate and give effect to their medical treatment decisions and represent the interests of the person when they do not have decision-making capacity. However the support person does not have the power to make that person's medical treatment decisions for them.
There are formality requirements apply as for the appointment of a medical treatment decision maker.
When a medical practitioner proposes to administer medical treatment for someone who does not have decision-making capacity, under this Act, that practitioner must obtain or ascertain a medical treatment decision maker.
So who is a person's medical treatment decision maker?
Similar to the present hierarchy of persons responsible, this Act sets out the hierarchy of a person's decision maker as follows:
- The appointed medical treatment decision maker;
- Person appointed by VCAT under a guardianship order with power to make medical decisions;
- Spouse;
- Carer;
- Nearest relative as follows (needs to be an adult):
- Child;
- Parent;
- Sibling.
A child's decision maker is that child's parent or guardian.
Role of VCAT
There is provision under the Act for certain interested parties, or for the Public Advocate, to apply to VCAT for orders concerning both an ACD and the appointment of a MTDM
Effect on current legislation
The Act repeals the current Medical Treatment Act 1988 but preserves the 'refusal of treatment certificate'. Existing Enduring Powers of Attorney (Medical Treatment) will continue to remain in force and taken to be an appointment of a medical treatment decision maker. It also makes significant changes to the Guardianship and Administration Act 1986.
The Act is quite comprehensive and cannot be covered in this brief overview. Aitken Partners can provide tailored advice to suit individual circumstances.