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Do you know who would make medical decisions on your behalf if you were unable to make them yourself?

Do they know how you would like them to make those decisions and what is important to you if they find themselves in that role?

If you do not know the answers to these questions, it may be time to update your arrangements to ensure the right person will make the decisions you want about your medical treatment if you cannot.

The Medical Treatment Planning and Decision Act 2016 (Vic) commenced on 12 March 2018, replacing the Medical Treatment Act and introduced a new legislative framework about who makes medical decisions, how they make them and how medical treatment is administered or refused for people that lack decision making capacity.

Medical Treatment Decision Maker

Prior to the enactment of the new legislation, you could make an Enduring Power of Attorney (Medical Treatment) to appoint an ‘agent’ to make medical treatment decisions if you were unable.

The new legislation revokes the Enduring Power of Attorney (Medical Treatment)[1] and the concept of an agent and introduces the concept of a Medical Treatment Decision Maker.

If you did have an Enduring Power of Attorney (Medical Treatment) under the old act, your agent will become your Medical Treatment Decision Maker.

Your Medial Treatment Decision Maker will be the first of the following:

1. a person you appoint as your Medial Treatment Decision Maker (including anyone appointed under the old act)
2. a guardian appointed by VCAT
3. If you have not appointed someone and there is no guardian, the first of the following who is in a close and continuing relationship

–       spouse/domestic partner

–       primary carer

–       first of the following (and where more than one, the oldest)

–       adult child

–       parent

–      adult sibling

A key difference under the law is that a Medical Treatment Decision Maker is charged with making the decision they reasonably believe you would have made, rather than making a decision they reasonably believe to be in your best interests.

The act also places restrictions on the circumstances in which medical treatment can be administered and/or refused without the consent of the person’s Medical Treatment Decision Maker.

You may appoint more than one person as your Medical Treatment Decision Maker and the person who will then act on your behalf is the first person who is free and available.

We are able to prepare the Medical Treatment Decision Maker appointment on your behalf. The document must be signed in the presence of an authorised witness (i.e. a Lawyer).

Advance Care Directive

The Act also provides for the making of an Advance Care Directive.

The purpose of the document is to promote your autonomy by allowing you to clearly record your preferences, values, and wishes.

You can make binding directives about your medical treatment and provide guidance to your medical treatment decision maker about what is important to you, to help them make decisions for you.

It is a crucial document in setting out your wishes and providing guidance and/or binding instructions to your Medical Treatment Decision Maker.

Examples of directives that can be included in the document:

• “My family and friends are very important to me. I would like my family and friends to be involved in my life.”
• “My independence is very important to me and I would prefer not to have to rely on others daily.”
• “If I am in a permanent coma, and I am not likely to communicate meaningfully again, I do not want health care that keeps me alive and would prefer to be comfortable and allowed to die with dignity.”

Unlike the form appointing your Medical Treatment Decision Maker, the Advance Care Directive must be witnessed in the presence of a doctor and should be developed in consultation with your medical team.

We are able to assist in preparing the document which you may then take to your doctor to further discuss and/or execute.

Please contact us if you require advice in respect of the appointment of a medical treatment decision maker or about making an Advance Care Directive.

[1] Enduring Powers of Attorney (Medical Treatment) which were executed before 12 March 2018 are still valid documents.

This article was written by James Dimond, Senior Associate and Amelia Nowosilskyj, Lawyer – Private Clients | Wills and Estates.