As part of a major overhaul of medical treatment decision-making in the event of a loss of capacity, the Medical Treatment Planning and Decisions Act 2016 (Vic) came into force from 12 March 2018.
The new legislation provides for the appointment of a medical treatment decision maker and a legally binding advance care directive, which replaces the former practice of appointing an enduring power of attorney for medical treatment and completing a refusal of medical treatment certificate.
The new law intends to provide personal autonomy for those wanting to feel confident they have made plans in the event they are unable to make their own medical treatment decisions.
Medical Treatment Decision Maker Appointment
An appointed medical treatment decision marker is the person to whom a health practitioner refers a medical treatment decision, should you not have a directive in place under an advance care directive. Although the health practitioner is required to consider what has been provided in any advance care directive, they must also consider the following:
• The likely effects and consequences of the medical treatment;
• Any available alternatives, including refusing medical treatment;
• How the above two points align with your preferences or values; and
• Acting in good faith and with due diligence.
An Advance Care Directive
In addition to appointing a medical treatment decision maker, you can also create a legally binding advance care directive This sets out your instructions and/or preferences and values in relation to medical treatment. Importantly, you can make express statements in relation to a particular treatment, or in the event a particular medical event occurs. The directive can also set out values directives, which are preferences and values upon which you (with your medical treatment decision maker) base your decisions on.
Should you have an advance care directive in place and you lack capacity, a medical treatment decision must first be obtained by reference to your advance care directive. You should also consider uploading the document to your online MyHealth platform, and providing certified copies to your treating medical practitioners.
It is recommended that an advance care directive be completed with your treating medical practitioner, such as your GP, as they are able to assist you in considering different scenarios, and provide you with correct medical terminology. It is also required to be witnessed by two adult witnesses, one of which must be a registered medical practitioner. You may also wish to consider that the second witness be your appointed medical treatment decision maker, so they are involved in your discussion and have an opportunity to understand your intentions.
What does this mean for an existing Enduring Power of Attorney (Medical Treatment) under the old law?
A current valid appointment of an agent or an alternate agent under an enduring power of attorney (medical treatment) which is in force is taken to be an appointment of an appointed medical treatment decision maker. Therefore, your agent may make medical treatment decision on your behalf to the extent that the attorney provides.
The importance of an Appointment of Medical Treatment Decision Maker
Appointing a medical treatment decision maker and enduring power of attorney, for general and financial matters, is equally as important as drafting a will. It provides you with the peace of mind that your affairs and treatment will be dealt with in the manner that you wish, and by the people that you trust.
If you’re looking to update your will, enduring power of attorney and appoint a medical treatment decision maker, please complete one of our instruction forms. If you’re interested in discussing your options with one of our solicitors, please contact us on 9486 1661 or email firstname.lastname@example.org.