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Planning ahead for medical treatment when we can no longer decide for ourselves

Planning ahead for medical treatment when we can no longer decide for ourselves

By Bill O’Shea

Health Opinions 


Victorians can now plan ahead for medical treatment to ensure their wishes are followed and their values considered when decisions are made on medical treatment after they lose medical decision-making capacity. 

The Medical Treatment Planning and Decisions Act 2016 comes into force on Monday 12 March 2018. Yes, it’s Labour Day and the Moomba Parade is on - but let’s not allow this important change to our health system to get lost in all the holiday excitement.

It will no longer be possible to appoint someone as a medical agent under an enduring medical power of attorney and Refusal of Treatment Certificates will be abolished. However, any medical powers of attorney or Refusal of Treatment Certificates made before 12 March will still be valid.

So, what’s new? 

We will be able to make an advance care directive. This allows us to include two important statements:

  • an instructional directive with legally binding instructions consenting to and refusing medical treatment in the future. It will apply and must be followed after we lose medical treatment decision making capacity; and 
  • a values directive which sets out our values and preferences for future medical treatment. It must be considered by those making medical treatment decisions for us after we lose medical treatment decision making capacity.

In fact, we all ought to consider making an advance care directive at the same time as reviewing our will and powers of attorney for financial and non-medical personal matters. 

A health practitioner is not required to provide treatment to which we have consented in an advance care directive if the treatment is not clinically indicated. The same applies where a health practitioner believes that circumstances have changed since our advance care directive was made (eg new treatments available) or the effect of the treatment would be inconsistent with our expressed values.  Even then, a health practitioner is required to get consent from the Victorian Civil and Administrative Tribunal before departing from our advance care directive (unless it’s urgent).

It will also be possible for a child to make an advance care directive so long as they understand the nature of the treatment they are making decisions about and the potential outcomes when the advance care directive is followed.

We will also be able to appoint a medical treatment decision maker who will make decisions about our medical treatment after we lose medical treatment decision making capacity. A medical treatment decision maker is obliged to make the decision they believe we would have made if we still had capacity to make the decision. They will be guided by our advance care directive, including any instructional directive or values directive we have made.

If a person hasn’t appointed a medical treatment decision maker, all is not lost. The new Act sets out a hierarchy of people who can step in as a medical treatment decision maker. They too have to make decisions they believe we would have made if we still had medical treatment decision making capacity and consider any values directive we have made.

And here’s something else that’s new: before we lose medical treatment decision-making capacity, we can appoint a support person to assist us to make medical treatment decisions. For example, a support person could collect and interpret information for us or help us to communicate our decisions. The support person’s role continues as our advocate after we lose medical treatment decision making capacity, although by then, medical treatment decisions will be made by our medical treatment decision maker.

The new Act will be good for health practitioners too: if they follow an advance care directive they will be protected from legal liability.  So, a health practitioner who follows an instructional directive, even if it’s against the family’s wishes, can’t be sued for administering or not administering treatment in line with our wishes.

So, the message is: we should not wait until we are seriously ill to think about the medical treatment we would like - or not like - in the future when we can’t decide for ourselves. People should discuss it with family and friends now. To be certain, they should put their wishes in writing by appointing a medical treatment decision maker - and maybe a support person - and make an advance care directive. A solicitor can help to ensure it's clear and unambiguous.

With this new Act, we can rest easy – our wishes for future medical treatment must be followed when we can no longer decide for ourselves.


Bill O’Shea is a Melbourne lawyer and a regular broadcaster on ABC Radio Melbourne. He is a former president of the Law Institute of Victoria and chairs the Law Institute’s Elder Law Committee.


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