The Medical Treatment Planning and Decisions Act 2016 came into effect in Victoria in March 2018. Under this new legislation, Victorians are now able to execute a document called an Advance Care Directive to provides clear and explicit directions in relation to their future medical treatment for use if the person is incapacitated and unable to give medical instructions.
The purpose of the legislation, as defined by the Act is to ‘provide for a person to execute in advance a directive that gives binding instructions or expresses the person’s preferences and values in relation to the person’s future medical treatment’ The Act also outlines the formal requirements of an Advance Care Directive and the circumstances when a person may rely upon a directive that has been made.
Why make an Advance Care Directive?
Having a properly prepared Advance Care Directive is the only way for a person to ensure that, in the event they are injured or unwell, and are either temporarily or permanently unable to express their wishes, that those wishes will be conveyed to the treating medical practitioners.
An Advance Care Directive may only be made while a person holds decision-making capacity (as defined in Section 4 of the Act) and is able to fully understand the directions that they are making. In keeping with these provisions, it is recommended that any person updating a will, consider making an Advance Care Directive at the same time.
Medical Treatment Decision Maker and Support Person
The new legislation also allows a person to appoint a Medical Treatment Decision Maker. Under the legislation ‘the appointee is the person’s medical treatment decision maker if the appointee is reasonably available and willing and able to make the medical treatment decision.’
A person may also nominate an individual as their support person. The support person may ‘make, communicate and give effect to the person’s medical treatment decisions’ and ‘represent the interests of the person in respect of the person’s medical treatment’.
In the event that a person is determined by a medical practitioner to lack capacity, the medical practitioner is required to make all reasonable efforts to determine whether the person has made an Advance Care Directive and/or appointed a Medical Treatment Decision Maker.
Types of Advance Care Directives
There are two types of Advance Care Directives that a person may choose to make: Instructional Directives and Values Directives.
An Instructional Directive is binding on medical practitioners and outlines any care that person either specifically wishes or does not wish to receive in the future. An Instructional Directive may among other things include a direction in relation to the performance of life saving surgeries or the use of life support.
Upon being made aware of the existence of an Instructional Directive, a medical professional must consider the instructions in that directive as though they were instructions that had been made directly to them by the patient.
A Values Directive identifies to a medical professionals the values and preferences that are held by the person making the directive. Examples of things that may be included in a Values Directive are the person’s thoughts on end of life care, their views on the use of life support, their opinion on treatment that it is no longer effective or other considerations that may be relevant to their care. Making a Values Directive provides a medical professional with insight into the beliefs and attitudes of the person that they are treating in the event that the person is no longer able to convey these to their treating professional.
In the event that a person chooses to make a Values Directive without an Instructional Directive, the Medical Treatment Decision Maker will be required to take the Values Directive into consideration when determining the best treatment for that person.
A person may choose to make both an Instructional Directive and a Values Directive. The Instructional Directive will inform doctors as to the patient’s consent or refusal of treatment and the Values Directive will be relied upon in consideration of the person’s views and values.
Requirements of an Advance Care Directive
An Advance Care Directive may be made by any person (including a child) provided the person has decision making capacity in relation to each statement in the directive and understands the nature and effect of each statement in the directive. To be deemed valid, the directive must include the following details to be deemed valid;
- The full name of the person making the directive,
- The date of birth of the person making the directive,
- The address of the person making the directive,
It is also important that an Advance Care Directive is signed by its maker in front of two independent adult witnesses. One witness must be a registered medical practitioner, and their qualification must be duly recorded on the document. All parties signing the document must do so in the presence of each other. It is important to ensure that neither of the witnesses to the document is the same person who has been appointed as the Medical Treatment Decision Maker.
Each witness will be required to certify that they have formed the opinion that;
- The maker has capacity to execute the document;
- The maker understands the nature and effect of the statements made in their directive; and
- The document was signed voluntarily and free from undue influence.
Canceling or Revoking an Advance Care Directive
A person may choose to revoke an Advance Care Directive at any time provided they have capacity to do so. In order to revoke an Advance Care Directive the person who has provided the directive is required to complete a revocation form. Similarly to the directive, the revocation form must be signed in front of two independent witnesses (not the relevant person’s Medical Treatment Decision Maker), and one of the witnesses must be a registered medical practitioner.
An Advance Care Directive will be canceled upon a person making a new Advance Care Directive or by order of the Victorian Civil and Administrative Tribunal.
An Advance Care Directive ceases to have effect at the time that its maker dies.
Advance Care Directives and Powers of Attorney
Under the Medical Treatment Planning and Decisions Act, a person may no longer make a Power of Attorney providing a person with authority to make medical decisions for them. Whilst Enduring Powers of Attorney may still be made in relation to lifestyle, financial and personal matters, providing a person with the authority to make decisions in relation to medical treatment must now take the form of an Advance Care Directive.
It is important to note that any Medical Enduring Powers of Attorney made prior to the commencement of the new legislation are still recognised under the new Act.
By Kristen Moore, Senior Associate