Changes to Medical decision-making Laws

As of 12 March 2018, a person can no longer make a medical enduring power of attorney instead they can appoint a medical treatment decision-maker with authority to make medical treatment decisions and appoint a support-person.

If a medical treatment decision maker is not appointed, the Medical Treatment Planning Decisions Act 2016 specifies who has legal authority to make medical decisions for a person who is unable to do so.

This could lead to someone you do not want making medical decisions for you when you are at your most vulnerable.

Medical Treatment Decision-Maker

If you are unable to make a medical treatment decision, your health practitioner will need the consent of your medical treatment decision maker before providing treatment to you. Your medical treatment decision maker must make the medical treatment decision they reasonably believe is the decision you would make if you had decision-making capacity. For this reason, it is helpful for you to talk to your medical treatment decision maker in advance about what is important to you and any preferences you have. This information can be set out in an advance care directive. (see below).

To be able to appoint your medical treatment decision maker, you must have decision-making capacity to make the appointment. Whoever you choose should be someone you trust to respect your values and preferences. You can appoint more than one person, but only one person acts at any one time.

The appointment of your medical treatment decision maker ends if:

  1. You revoke (Cancel) the appointment, while you have the capacity to do so.
  2. The Victorian Civil and Administrative Tribunal (VCAT) revokes the power.
  3. You die.

Support Person

There may be times when you want someone to support you to make medical treatment decisions. You can appoint someone under the Act. Someone appointed as your support person under this Act can support you to:

  1. Make,
  2. Communicate and
  3. Give effect to

Your medical treatment decisions.

Your support person has authority to access your health information to help you make a decision. However, your support person does not have power to make medical treatment decisions for you, unless they are also your medical treatment decision-maker.

Advance Care Directives

An advance care directive is a legal document made under the Medical Treatment Planning and Decisions Act 2016.

In an advance care directive, you can write either or both:

  1. an instructional directive with legally binding instructions about future treatment the person agrees to or refuses,
  2. a values directive which takes note of the person’s values and preferences for future medical treatment which your medical treatment decision-maker is to consider when making medical decisions for you.

You should only complete an instructional directive if you know the medical treatment that you want or do not want in the future, as health practitioners are bound to follow your instruction.

A values directive is a statement of your values and preferences for your medical treatment, it is not binding.

Medical Treatment Planning Decisions Act 2016

Source: we have sourced information from the relevant statutory instruments, from many legal literatures for this article including from the office of the Public Advocate and legal aid Victoria.