Significant changes to medical treatment laws in Victoria
The Medical Treatment Planning and Decisions Act 2016 (‘Act’) came into effect 12 March 2018, bringing with it significant changes to medical treatment laws. The Act seeks to simplify and consolidate medical treatment laws and provide a legislative framework for advance care planning in Victoria. The Act, among other things:
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repeals the Medical Treatment Act 1988 (Vic) and replaces the appointment of medical agents under an enduring power of attorney (medical treatment) with appointments of medical treatment decision makers for persons without decision making capacity for medical treatment
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provides that medical powers of attorney validly made before the commencement of the Act will still be valid
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provides a statutory definition of decision making capacity for medical treatment decisions, consistent with the definition in the Powers of Attorney Act 2014 (Vic)
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enables a person with decision making capacity to execute an advance care directive, documenting their values and treatment preferences by way of a values or instructional directive, or both
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unlike the current refusal of treatment provisions in the Medical Treatment Act 1988 (Vic), allows a person to refuse medical treatment for a future or current condition and to give directions about treatment for specific conditions or about medical treatment generally
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requires health practitioners to make reasonable efforts in the circumstances to attempt to ascertain whether a person, without decision making capacity for the medical treatment decision, has an advance care directive, and if, so, requires them to give effect to that directive (save for in limited circumstances)
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requires health practitioners to make reasonable efforts to ascertain whether a person without decision making capacity for a medical treatment decision has appointed a medical treatment decision maker, and if none is appointed, outlines a hierarchy for a substitute decision maker
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provides for the appointment of support persons, to give support to persons with decision making capacity in making, communicating or giving effect to decisions regarding their medical treatment
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does not permit a person to refuse palliative care in an instructional directive* nor allow a medical treatment decision maker to refuse palliative care. A person can, however, include statements about palliative care in their values directive which a health practitioner must take into account
*Where statements regarding palliative care are included in an instructional directive, they will be treated as a values directive.
LIV resources
The LIV has compiled the following resources to provide further information regarding the Act, and assist LIV members in navigating the new medical treatment laws to advise their clients in how to best plan for their future.
Significant changes to medical treatment laws in Victoria (video)
In this interview LIV president, Belinda Wilson and former LIV president and current LIV Elder Law Committee Chair, Bill O'Shea discuss how lawyers can best prepare for these significant changes.
Planning ahead for medical treatment when we can no longer decide for ourselves
Further information from former LIV president and LIV Elder Law Committee Chair, Bill O’Shea.
Lawyers have role in new medical treatment law
The Law Institute Journal
The LIV will be offering education seminars for members and will keep members up to date with details of when and where these sessions will be run via LawNews. Any queries can be directed to the LIV’s Practice Support Line on 03 9607 9378 or to practicesupport@liv.asn.au.
Further resources
LIV members can receive more information regarding forms for appointing a medical treatment decision maker and/or support person, and making an advance care directive by clicking the links below:
Office of the Public Advocate
Department of Health and Human Services Advanced Care Planning forum