Should I appoint a medical treatment decision maker?

On 12 March 2018, the Medical Treatment Act 1988 (Vic) was replaced by the Medical Treatment and Planning Decisions Act 2016 (Vic).

The previous ‘Enduring Power of Attorney (Medical Treatment)’ document is replaced by two further documents – the ‘Appointment of Medical Treatment Decision Maker’ and the ‘Advanced Care Directive’ document.

Although it is another change to an already complex area of law, it is certainly a welcomed change, as this new legislation focuses on the personal autonomy of the Principal (the person receiving medical treatment), and allows them to specify how they would like to be treated in light of their current medical condition, preferences and values.

Medical Treatment Decision maker is the person you appoint to make medical decisions on your behalf in the event that you do not have the capacity to make those decisions for yourself.

Documentation prepared under the old legislation is still legally valid as the new legislation allows the previous attorney appointments to transition to a ‘medical treatment decision maker’.

However, it does not allow the attorney to make decisions that relate to medical research procedures.

What is the Advanced Care Directive?

An ‘Advance Care Directive’ is a legally binding document which the Principal prepares – preferably together with their medical practitioner – which comprehensively sets out an individual’s preferences, values and binding instructions in relation to medical treatment, should they not have the capacity to make their own decisions in the future.

The Principal can make an ‘instructional directive’ or a ‘values directive’. An instructional directive is a direction of the Principal which effectively consents, refuses or withholds medical treatment. A ‘values directive’ states the Principal’s preferences and values as the basis on which a person would like their decision maker to make medical decisions on their behalf. The advanced care directive will only come into effect once the Principal no longer has decision-making capacity.

There are strict guidelines as to what an advance care directive can and cannot include and it is vital that you seek legal advice to ensure that the document is binding!

The Definition of Medical treatment is described as any of the following treatments of a person by a health practitioner for the purposes of diagnosing a physical or mental condition, preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life:

  • Treatment with physical or surgical therapy;
  • Treatment for mental illness;
  • Treatment with (i) prescription pharmaceuticals; or (ii) an approved medicinal cannabis product within the meaning of the Access to Medicinal Cannabis Act 2016;
  • Dental treatment;
  • Palliative care.

What happens if there is no documentation?

If you have not appointed a medical treatment decision maker and you are in a position where you cannot make your own medical decisions, a health practitioner must seek out the first person who is ready, willing and able to make the medical treatment decision in order of hierarchy as follows:

A guardian appointed by VCAT under the Guardianship and Administration Act 1986.

The first person who is in a close and continuing relationship with you, being:

  • Spouse or domestic partner;
  • Your primary carer;
  • The first of the following (and when there is more than one of the oldest prevails);

Your adult child;

Your parent;

Your adult sibling; or

A Public Advocate such as State Trustees.

If you do not have the proper documentation that the above hierarchy comes into fruition and ultimately you are putting important medical decisions in the hands of a family member who you do not want to be appointed or in the event of a public advocate being appointed, someone you have never met and does not know what your preferences or personal values are.

To avoid someone making decisions for you without taking into account your values and preferences, we recommend seeing for an appointment with one of our family lawyer about a Medical Treatment Decision Maker and an Alternate Medical Decision Maker.

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