Appointing a Medical Decision Maker – by Ben McLean
On 12 March 2018 the Medical Treatment Planning and Decisions Act 2016 (the Act) came into force in Victoria. The Act aims to simplify the medical treatment laws in Victoria and has repealed the previous Medical Treatment Act 1988.
The Act aims to ensure that the person is now able to decide what they actually want rather than the previous test of what is in their best interest. The person’s values and preferences are now taken into account with respect to decisions regarding their medical treatment. The Medical Treatment Decision Maker’s decision must now be the decision they reasonably believe the person who appointed them would have made if the person had decision making capacity.
This is achieved through the ability to legally document ones wishes via an advanced care directive. An advanced care directive is a document which allows the maker to specify medical requests and/or directives they may have, such as the right to refuse medical treatment in certain circumstances.
An advanced care directive may include an instructional directive which is a legally binding instruction with regard to medical treatment. It may also contain a values directive which documents the person’s values and preferences for medical treatment. Values directives must be considered by the Medical Treatment Decision Maker but are not legally binding instructions.
Importantly, one of the requirements for an advanced care directive is that one of the subscribing witnesses must be a registered medical practitioner.
The appointment of a Medical Treatment Decision Maker will replace all previous appointments such as an appointment of an Enduring Power of Attorney (Medical Treatment) and will take priority over a Victorian Civil Administrative Tribunal (VCAT) appointed Guardian in relation to medical decisions. An Enduring Power of Attorney (Medical Treatment) or Refusal of Treatment Certificate that was validly executed prior to 12 March 2018 will still remain valid.
If a person loses capacity and a Medical Treatment Decision Maker has not been appointed and VCAT has not appointed a Guardian then the Act outlines a hierarchy of people who can make medical decisions. The following is a summary of the hierarchy that will be followed and where two or more people meet the same definition the oldest will be deemed to come first:
- Spouse or Domestic Partner;
- Primary Carer;
- An Adult Child;
- A Parent; or
- An Adult Sibling.
The importance of having these documents in place is comparable to an insurance policy in the sense that one hopes they never have to use them but we never know what may happen in life or be around the corner. A person should not wait until they are elderly or unwell before appointing a Medical Treatment Decision Maker as they may not retain the capacity to do so at that time.
If you would like to appoint a Medical Treatment Decision Maker or make other Enduring Powers of Attorney in relation to financial matters or personal matters, please feel free to contact our office.