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Lawyers have role in new medical treatment law

Lawyers have role in new medical treatment law

By Law Institute Journal



Changes to medical treatment laws represent an opportunity for practitioners to help their clients plan for the future, says former Law Institute of Victoria president and Elder Law Committee chair Bill O’Shea.

The new law, the Medical Treatment Planning and Decisions Act 2016, allows people to express their wishes, preferences and values for future medical treatment when they lose the capacity to make medical treatment decisions for themselves. The law will come into effect on 12 March 2018.

"The Act is about restoring autonomy to people so their wishes are respected and adhered to when they can no longer make decisions themselves,” says Mr O’Shea.

Anyone, at any age can make an advanced care directive, as long as they have capacity to understand its nature and effect, he says. “It’s not something you do when you're at death’s door or when you’ve got some terminal illness.”

The legislation requires that an advance care directive must be witnessed by a medical practitioner, but lawyers can play an important role in drafting it to make sure it is unambiguous and clear, Mr O’Shea points out.

“This is a good opportunity for lawyers to contact their clients and say: let’s have a chat to bring you up to date with the current rules about how you might provide for yourself in the future in terms of medical treatment decision making if you lose the capacity to make medical treatment decisions for yourself.

“Practitioners are also in a good position to ensure that someone making a directive has the capacity to do so, using the new Capacity Guidelines that have been published by the Law Institute of Victoria”, he says.

“The definition of loss of capacity has changed under the new Act. Capacity is now decision-specific. For instance, someone may have lost capacity for making medical treatment decisions even if they haven’t lost the capacity to make a will. So a practitioner has to look at a client who’s making the directive and satisfy themselves that they have this capacity.”

The new laws replace the enduring power of attorney – medical treatment and enable a person to appoint a medical treatment decision-maker to carry out their wishes when they lack capacity to make decisions about their medical treatment. They can also appoint a support person to assist them in making medical treatment decisions.

LIV President, Belinda Wilson said the Act also provides certainty for health practitioners as to when these directives must be followed or considered, and provides a statutory immunity for health practitioners who comply with the Act.

“The changes respect ongoing calls for reform of the legal framework to reflect personal autonomy in decision-making by enabling a person to make their wishes for future medical treatment legally binding,” she said.

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