Medical Treatment Decision Makers
The Medical Treatment Planning and Decisions Act 2016 (Vic) (The Act) commenced operation on 12 March 2018. The Act has two key purposes, first, provision for the appointment of “Medical Treatment Decision Makers” on behalf of a person who at a future point will not have decision making capacity; and, second, the provision of legally binding advanced care directives. The Act repeals the Medical Treatment Act 1998 (Vic).
Importantly the Act does not affect existing Enduring Power of Attorney (Medical Treatment) appointments. Under those appointments an agent or alternate agent is now taken to be an “appointed medical treatment decision maker.”
Medical Treatment Decision Maker appointment
When an issue arises with respect to making decisions about medical treatment when the person affected lacks decision making capacity themselves the Act (Section 55) sets out who, in those circumstances, is the person’s medical treatment decision maker.
First, in the case of an adult, it is the person they have appointed as their medical treatment decision maker under an appointment made under the Act.
In the absence of such appointment then the decision maker is the first person in the following hierarchy:
- Any guardian appointed by VCAT;
- The first of the following who is in a close and continued relationship;
– spouse or domestic partner;
– the primary carer of the person;
– the eldest adult child;
– the parent;
– an adult sibling.
In the case of children the medical treatment decision maker is the child’s parent or guardian. Ideally a person when organising their affairs ought ensure that they have made an appointment of a medical treatment decision maker.
Requirements for such an appointment
The Act sets out the formal requirements for the appointment. The document must comply with the Act; can appoint more than one person as a decision maker, and such appointment must be accepted by each person appointed.
The appointment document must be witnessed by two adult witnesses (at least one of whom must be an authorised witness) (similar to the provisions for the Financial Power of Attorney appointment).
Each witness must certify that the person making the appointment appeared to have decision making capacity, understood the documentation, and was voluntarily executing the document.
The acceptance by the appointee(s) includes statements that they understand their obligations and undertakes to act in the known preferences of the person appointing them and having regard to the person’s individual personal and social wellbeing etc.
Where more than one person is appointed the medical treatment decision maker is the first person listed in the appointment. It is not possible for a joint or several appointment.
The emphasis in the Act is for increased autonomy for a person ensuring that their preferences and values are taken into account rather than having to rely upon a substitute judgement by a medical practitioner.
It follows that the decision maker must make decisions believing that they would be the decisions the person would have made themselves if they had capacity.
This may involve taking account of an advanced care directive (if one exists) but otherwise taking account of the expressed preferences of the person which may be inferred from their life including expressions made during their lifetime, or in the course of making the appointment, whilst acting at all times in good faith.
In the event that a decision maker is unable to ascertain what a person’s wishes might have been then they are obliged to consult with any person who they believe the person making the appointment might wish to be consulted in the circumstances. This might be a family member.
The Act also provides for a legally binding advanced care directive to be made by which the person sets out their binding instructions as to medical treatment decisions that might be made in the future.