Medical Wills and Estates

Greater legal autonomy for medical treatment decisions now in effect

13 March 2018

On 12 March 2018, the existing legal framework for medical treatment decision-making, the Medical Treatment Planning and Decisions Act 2016, changed in an attempt to provide greater autonomy to potential patients by enabling them to give advance care directives that are legally enforceable.

How might your current or future power of attorney planning be affected?

The new legislation brings medical treatment decision-making in line with contemporary views that patients have a right to have their medical treatment preferences respected, even when they lose the capacity to express their wishes.

It allows Victorians to create legally-binding advance care directives to inform the decision-maker’s actions by expressing their specific instructional preferences or values for medical treatment, relating to current and future conditions that health practitioners must comply with.

For the first time, Victorians under the age of 18 with medical decision-making capacity are able to prepare an advance care directive.

Those under the age of 18 are required to undergo an assessment by a medical practitioner or a psychologist, who must attest to the decision making capacity of the child, in order for the directive to be legally enforceable. The child is required to understand the nature and effect of each statement made in his or her directive.

Whether you are looking to appoint a medical treatment decision-maker or have been approached by an individual to be appointed one, it is important to take the time to understand the new terminology and carefully consider the requirements and responsibilities to ensure wishes are upheld. Ideally these decisions are made in consultation with health practitioners, friends and family.

The option is also available to appoint a support person, whose role is to assist the individual to make decisions for themselves, by collecting and interpreting information or assisting the person to communicate their decisions.

If a medical treatment decision-maker is not appointed, health practitioners are required to identify one to consent to or refuse medical treatment, in accordance with a statutory hierarchy pre-defined in the Act. If the medical treatment decision-maker refuses significant treatment and the health practitioner reasonably believes that the patient’s preferences and values are not known or unable to be inferred then the health practitioner must notify the Public Advocate.

This highlights the need to not only appoint a medical treatment decision-maker but also the fact that the decision-maker should be aware of the person’s advance care directive to support their exercise of power.

Although medical agent appointments, advance care plans and refusal of treatment certificates made under previous laws will continue to be recognised, it is advisable to review these documents to ensure they reflect your wishes.

If you don’t currently have any documentation in place, now is a good time to consider doing so, to ensure that in the event you are incapable of making your own medical decisions, your medical treatment or wishes are followed without challenge or uncertainty.

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