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:

  • 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
  • provides that medical powers of attorney validly made before the commencement of the Act will still be valid
  • provides a statutory definition of decision making capacity for medical treatment decisions, consistent with the definition in the Powers of Attorney Act 2014 (Vic)
  • 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
  • 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
  • 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)
  • 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
  • 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
  • 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.

View the LIV Medical Treatment and Decisions Act 2016 (VIC) factsheet

View information on the LIV Capacity guidelines and Toolkit - Available at the LIV book shop and at Law Books.

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

Frequently Asked Questions

  • What are the major changes to medical treatment laws in Victoria?

    On 12 March 2018, the Medical Treatment Planning and Decisions Act 2016 (‘Act’) came into force. 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:

    • repeals the Medical Treatment Act 1988 (Vic) (‘MTA’)
    • 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
    • unlike the current refusal of treatment provisions in the MTA, 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
    • provides for the appointment of a medical treatment decision maker, to make medical treatment decisions on behalf of the person in the event they lose capacity to make such decisions
    • provides for the appointment of a support person, to give support to persons with decision making capacity in making, communicating or giving effect to decisions regarding their medical treatment
    • for the first time, includes prescription pharmaceuticals and palliative care in the definition of medical treatment
  • Will appointments of medical agents under an enduring power of attorney (medical treatment) and a Refusal of Treatment Certificate (‘RTC’) be valid after the new Act comes into force?

    The Act repeals the MTA.  However, a medical power of attorney made under the MTA and executed before the commencement of the Act will still be valid and will be treated as if it was an appointment of a medical treatment decision maker. An RTC made under the MTA before the commencement of the Act will also remain valid and health practitioners must follow it. In the case of an emergency, treatment cannot be administered if it has been refused by a legally valid RTC.

  • What if nobody has been appointed as a medical treatment decision maker and the person loses decision making capacity for medical treatment?

    If a person has not appointed a medical treatment decision maker and VCAT has not appointed a guardian with power to make medical treatment decisions, the Act provides a hierarchy of persons who can act as the medical treatment decision maker. 

    • The medical treatment decision maker will be, in order, an adult from the list below who has a close and continuing relationship with the person and is ready, willing and able to act.
    • the person’s spouse or domestic partner; if none then:
    • the person’s primary carer; if none then:the first of the following (and where there’s more than one, the oldest):
      • an adult child; if none then:
      • a parent; if none then:
      • an adult sibling.

     

  • What is the difference between an instructional directive and a values directive?

    An advance care directive may contain an instructional directive, a values directive or both.

    An instructional directive sets out a person’s legally binding instructions consenting to and refusing current and future medical treatment.  Save for in very limited circumstances, it must be followed by a health practitioner after a person loses capacity to make medical treatment decisions. A values directive sets out a person’s values and preferences for future medical treatment. Save for in limited circumstances, a values directive must be considered by a health practitioner before treatment is administered.

  • The Act applies to “health practitioners”. What does this cover?

    The definition of “health practitioner” is very broad. It covers ambulance officers and non-emergency transport staff together with the 14 health professions listed in the Health Practitioner Regulation National Law (Victoria) Act 2009. These are:

    • dental
    • physiotherapy
    • occupational therapy
    • chiropractic
    • pharmacy
    • optometry
    • podiatry
    • nursing and midwifery
    • medical radiation practice
    • osteopathy
    • Chinese medicine
    • Aboriginal and Torres Strait Islander health practice
    • Psychology

     

  • Are health practitioners required to look for a medical treatment decision maker and look for and comply with an advance care directive?

    Subject to limited exceptions (outlined in the Act), a health practitioner must:

    • make reasonable efforts to ascertain whether a person has an advance care directive and/or a medical treatment decision maker;
    • follow an instructional directive; and
    • consider any values directive before administering medical treatment to a person without capacity for the medical treatment decision.

    Failure to do so constitutes unprofessional conduct.

  • Can a request for voluntary assisted dying be included in an advance care directive?

    No. The Act does not allow an instructional directive which consents to voluntary assisted dying. In any case, a person without decision making capacity for medical treatment would not be eligible for voluntary assisted dying.

    The Act is not about end of life planning; it’s about planning for future medical treatment. People of all ages, including children, can make an advance care directive, provided they understand the nature and effect of each statement in the directive and comply with the other requirements set out in the Act.

  • Who can witness an appointment of medical treatment decision maker, support person and an advance care directive?

    The appointment of a medical treatment decision maker or support person must be witnessed by two adults, at least one of whom must be either a registered medical practitioner or a person authorised to take affidavits by section 123C of the Evidence (Miscellaneous Provisions) Act 1958.

    However, an advance care directive must be witnessed by two adults, at least one of whom must be a registered medical practitioner.

  • Are there prescribed forms for making an advance care directive or appointing a medical treatment decision maker or support person?

    There are no prescribed forms for appointing a medical treatment decision maker, support person, or making an advance care directive, but the forms must meet the formality requirements of the Act.  Forms are available via the Department of Health and Human Services website. Information, and a new edition of Take Control containing appointment forms, is available via the Office of the Public Advocate website.

  • How can legal practitioners and members of the public get more information?

    The LIV website contains up-to-date information about the changes to medical treatment laws in Victoria. 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.