New laws in relation to medical treatment decision making

On 12 March 2018 the Medical Treatment Planning and Decisions Act 2016 commenced in Victoria.

The new Act replaces the Medical Treatment Act 1988 which allowed persons to appoint an agent pursuant to an Enduring Power of Attorney (Medical Treatment).

The new Act allows Victorians to plan ahead and take control of who has legal authority to make medical treatment decisions on their behalf if they are unable to do so for themselves in the future.

An appointed medical treatment decision maker may have authority to consent to, or refuse the commencement or continuation of, medical treatment including:

  • treatment with physical or surgical therapy;
  • treatment for mental illness;
  • treatment with prescription pharmaceuticals or an approved medicinal cannabis product;
  • dental treatment; and
  • palliative care.

A medical treatment decision maker is required to make the decision that they reasonably believe the person would have made if he or she had decision-making capacity.

The new Act also allows Victorians to make advance care directives which set out binding instructions or preferences and values in relation to medical treatment.

An advance care directive may contain either or both of the following:

  1. an instructional directive which is an express statement about medical treatment that the person consents to, or refuses the commencement or continuation of; or
  2. a values directive which is a statement about the person’s preferences and values to be used as the basis upon which the person would like any medical treatment decisions to be made on their behalf.

Health practitioners are now required to follow an instructional directive which provides specific directives about treatment a person consents to or refuses. If the advance care directive does not include a relevant instructional directive, then the medical treatment decision maker will be asked to make the decision. The medical treatment decision maker is required to consider the person’s preferences and values, consider the likely effects and consequences of the treatment and consult the person’s closest family members.  

The Act significantly changes the process by which medical treatment decisions are made on behalf of persons who have lost decision making capacity and ensures that people receive medical treatment that is consistent with their preferences and values.

To discuss this article, or for further information please contact:

Edward Skilton
Special Counsel
Sladen Legal
T +61 3 9611 0145
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia

Magdalena Njokos
Sladen Legal
T +61 3 9611 0134
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia