Medical Treatment Planning and Decisions Act 2016 No.69 (Vic)
The Medical Treatment Planning and Decisions Act 2016 No.69 (Vic) (the MTPD Act) will commence on 12 March 2018. The MTPD Act will amend the laws in Victoria regarding medical treatment decision making, including advance care directives.
The MTPD Act provides a framework for the making of medical treatment decisions on behalf of persons who do not have decision-making capacity.
The MTPD Act allows a person to make a binding advance care directive, and appoint a ‘medical treatment decision maker’ to make medical treatment decisions for the person, and also appoint a ‘support person’ to make, communicate and give effect to the person’s medical treatment decisions and represent their interests.
The MTPD Act will repeal the Medical Treatment Act 1988 (Vic), but ‘refusal of treatment certificates’ made under this Act will continue to remain in force.
In addition, a person will no longer be able to appoint an attorney to make medical treatment decisions on their behalf under the Powers of Attorney Act 2014 (Vic).
An agent or attorney previously appointed by a person under an enduring power of attorney (medical treatment), under the Medical Treatment Act or the Powers of Attorney Act 2014 (Vic), will be taken to be the person’s appointed medical treatment decision maker under the MTPD Act.
The MTPD Act applies to ‘medical treatment’
The MTPD Act applies to ‘medical treatment’ and defines medical treatment as:
‘any of the following treatments of a person by a health practitioner for the purposes of diagnosing a physical or mental condition, preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life –
(a) treatment with physical or surgical therapy;
(b) treatment for mental illness;
(c) treatment with –
(i) prescription pharmaceuticals; or
(ii) an approved medicinal cannabis product within the meaning of the Access to Medicinal Cannabis Act 2016;
(d) dental treatment;
(e) palliative care –
but does not include a medical research procedure;’
The provision of medical research procedures to people without decision-making capacity is covered separately in the MTPD Act (as discussed below).
When does a person have ‘decision-making capacity’?
Section 4 of the MTPD Act provides that person will have ‘decision-making capacity’ if they are able to do all of the following:
- understand the information relevant to the decision and the effect of the decision;
- retain that information to the extent necessary to make the decision;
- use or weigh that information as part of the process of making the decision; and
- communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.
The MTPD Act provides that an adult is presumed to have decision-making capacity unless there is evidence to the contrary. Certain factors need to be taking into account when decision-making capacity is being determined, including that a person may have decision-making capacity for some decisions and not others.
In ordinary circumstances it will be the treating health practitioner that will need to determine whether a person has decision-making capacity (i.e. when the health practitioner is obtaining a person’s informed consent to treatment).
‘Eligible applicants’ may apply to the Victorian Civil and Administrative Tribunal (VCAT) for orders that a person does or does not have decision-making capacity (an ‘eligible applicant’ means a treating health practitioner of a person, the person’s medical treatment decision maker, the person’s support person, the Victorian Public Advocate, or any other person whom VCAT is satisfied has a special interest in the affairs of the person concerned). For example, such orders may be sought in order to challenge a health practitioner’s determination that a person does not have decision-making capacity.
Advance care directives
Under the current Medical Treatment Act 1988 (Vic), a person can make a ‘refusal of treatment certificate’ in order to refuse treatment for a current condition (but not for future health conditions that may arise). The refusal of treatment certificate is the statutory form of ‘advance care directive’ currently in place in Victoria. Current refusal of treatment certificates will remain valid when the MTPD Act commences (see section 102 of the MTPD Act).
The MTPD Act broadens the scope of advance care directives that can be made by a person, and a person may make an advance care directive under the MTPD Act to consent to or refuse treatment for current and future health conditions.
There are two types of advance care directives that can be made by a person under the MTPD Act:
- An instructional directive is an express statement in a person’s advance care directive in which they may consent to or refuse particular medical treatment. For example, a statement that a person consents to a heart bypass operation in specified circumstances, or a statement that a person refuses cardiopulmonary resuscitation. If the person subsequently does not have the capacity to make a decision about the specified treatment, the instructional directive will apply as though the person has consented to or refused the treatment.
Any statement not explicitly identified as an ‘instructional directive’, through the use of these words, will be considered a ‘values directive’.
- A values directive is a more general statement in a person’s advance care directive of a person’s preferences and values and what matters to them, stated as the basis on which the person would like any medical treatment decisions to be made on their behalf, and including the medical treatment outcomes that the person regards as acceptable. The following statements are examples of values directives:
‘If I am unable to recognise my family and friends, and cannot communicate, I do not want any medical treatment to prolong my life.’
‘If a time comes when I cannot make decisions about my medical treatment, I would like to receive any life prolonging medical treatments that are beneficial. This includes receiving a medical research procedure to see if the procedure has any benefit for me.’
As discussed below, if a person has a values directive, but has not included an instructional directive in relation to proposed medical treatment, then the health practitioner will need to obtain consent from the person’s medical treatment decision maker to provide the treatment. In that case, the medical treatment decision maker must consider the values directive.
Any person (including a child) may give an advance care directive provided they have decision-making capacity in relation to each statement in their advance care directive, they understand the nature and effect of each statement in the directive, and the requirements under Part 2 of the MTPD Act are complied with (which include that the directive cannot contain unlawful, false or misleading statements, must be written in English, must contain the person’s name, date or birth and address, and be signed and witnessed).
An advance care directive must be witnessed by two adults, one of whom is a medical practitioner.
Medical treatment decision makers
Section 26 of the MTPD Act allows an adult with decision-making capacity to appoint another adult as their ‘medical treatment decision maker’.
The role of a medical treatment decision maker is to make medical treatment decisions on behalf of a person who does not have decision-making capacity.
If a medical treatment decision maker is required to make a medical treatment decision, they are authorised to access and collect the person’s medical records to make a properly informed decision (section 94 of the MTPD Act).
An agent or attorney previously appointed by a person under an enduring power of attorney (medical treatment), under the Medical Treatment Act 1988 (Vic) or the Powers of Attorney Act 2014 (Vic), will be taken to be the person’s appointed medical treatment decision maker under the MTPD Act (see sections 102 and 103 of the MTPD Act).
Section 31 of the MTPD Act also allows any person (including a child) to appoint a ‘support person’. The role of the support person (in relation to the person making the appointment) is to:
- make, communicate and give effect to the person’s medical treatment decisions; and
- represent the person’s interests in respect of their medical treatment, including where the person does not have decision-making capacity.
The support person is authorised to access and collect the person’s medical records relevant to a medical treatment decision to be made, in order to carry out their functions and duties as a support person (section 94 of the MTPD Act).
A support person acting in that capacity cannot make a person’s medical treatment decisions, but this does not preclude a support person also being appointed as a person’s medical treatment decision maker.
There are formal appointment requirements for both medical treatment decision makers and support persons set out in Part 3 of the MTPD Act (including that the appointment be in writing in English, contain the details of the person making the appointment, and be witnessed by two adults, one witness being an ‘authorised witness’ such as a registered medical practitioner).
Medical treatment decision making
Before a health practitioner administers medical treatment to a person who does not have decision-making capacity, the health practitioner must make reasonable efforts to ascertain if the person has either or both of the following:
- an advance care directive;
- a medical treatment decision maker.
Failure to do so will be deemed as unprofessional conduct (section 50 of the MTPD Act).
If medical treatment is indicated for a person that does not have decision-making capacity, a health practitioner must obtain consent for the relevant treatment from the person’s instructional directive, or if there is no such instructional directive, consent must be sought from the person’s medical treatment decision maker. The health practitioner must also consider any values directive in offering and administering medical treatment. Failure to follow these requirements will be deemed as unprofessional conduct (section 60 of the MTPD Act).
If an adult person’s appointed medical treatment decision maker is not available, willing and able to make the medical treatment decision, the medical treatment decision maker will be the first person in the list below who is in a close continuing relationship with the person, and who is reasonably available, willing and able to make the medical treatment decision (see section 55 of the MTPD Act):
- a guardian appointed by the VCAT who has the power under that appointment to make the medical treatment decision;
- the spouse or domestic partner of the person;
- the primary carer of the person;
- the oldest adult child of the person;
- the oldest parent of the person;
- the oldest adult sibling of the person.
If a child does not have decision-making capacity, their medical treatment decision maker will be the child’s parent, guardian or other person with parental responsibility for the child who is reasonably available, willing and able to make the medical treatment decision (section 55(4) of the MTPD Act).
Section 61 of the MTPD Act requires a medical treatment decision maker to make the decision they reasonably believe the person would have made if the person had decision-making capacity, and in doing so, the medical treatment decision maker must consider factors including:
- any valid and relevant values directive;
- any other relevant preferences that the person has expressed and the circumstances in which the preferences were expressed; and
- if the medical treatment decision maker is unable to identify any relevant preferences (as above), the person’s values, whether expressed by the person other than by way of a values directive, or inferred from the person’s life.
If a medical treatment decision maker for a person cannot be located, then the following process under section 63 of the MTPD Act applies:
- If the proposed treatment is ‘significant treatment’, then the health practitioner must obtain consent from the Public Advocate. ‘Significant treatment’ means any medical treatment of a person that involves any of the following:
- a significant degree of bodily intrusion;
- a significant risk to the person;
- significant side effects; or
- significant distress to the person.
- If the proposed treatment is ‘routine treatment’ (being any treatment that is not significant treatment), then the health practitioner may administer the routine treatment without consent.
Section 53 of the MTPD Act provides that a health practitioner may administer emergency treatment (other than electroconvulsive treatment) or a medical research procedure on a person without consent if they believe on reasonable grounds that the treatment or research procedure is that is urgently needed to save the person’s life, prevent serious damage to the person’s health, or prevent the person from suffering or continuing to suffer significant pain or distress. The health practitioner cannot proceed in this way, however, where the practitioner is aware that treatment or research procedure has been refused by the person, whether by way of an instructional directive or a legally valid and informed refusal of treatment by or under another form of informed consent (e.g. a refusal of treatment certificate under the Medical Treatment Act 1988 (Vic)).
Section 12 of the MTPD Act provides that any statement concerning palliative care in an advance care directive will be a values directive (i.e. a person cannot refuse palliative care in an instructional directive).
The MTPD Act essentially provides that a medical treatment decision maker cannot refuse palliative care (sections 54 and 57), and health practitioners may provide palliative care to a person but in doing so must ensure the palliative care is consistent with the person’s preferences and values, and consult with the medical treatment decision maker, if any (section 54).
Medical research procedures
The MTPD Act defines a ‘medical research procedure’ to relevantly include a procedure carried out for the purposes of medical research, including, as part of a clinical trial, the administration of pharmaceuticals, or the use of equipment or a device.
Medical research procedures do not include:
- any non-intrusive examination, including a visual examination of the mouth, throat, nasal cavity, eyes or ears, or the measuring of a person’s height, weight or vision;
- observing a person’s activities;
- undertaking a survey;
- collecting or using identifying health information or personal information; or
- any other procedure prescribed not to be a medical research procedure.
Part 5 of the MTPD Act sets out the requirements to administer a medical research procedure to an adult who does not have decision-making capacity.
These requirements include the following:
- Before a ‘medical research practitioner’ (a registered medical practitioner or registered dentist) administers a medical research procedure on a person, the practitioner must make reasonable efforts to ascertain whether the person has an advance care directive and/or a medical treatment decision maker (failure to do so is deemed unprofessional conduct).
- Medical research procedures must be administered in accordance with human research ethics committee approvals and any conditions of that approval.
- A medical research practitioner must not administer a medical research procedure to a person unless consent has been obtained, either through an instructional directive or from the person’s medical treatment decision maker. A person’s medical treatment decision maker may consent to the medical research procedure where they reasonably believe the person would have consented to it. The only exceptions to these consent requirements are:
- in an emergency (as discussed above); or
- if there is no applicable instructional directive and no medical treatment decision maker available, the medical research practitioner must believe, on reasonable grounds that:
- inclusion in the research project and being the subject of the proposed procedure would not be contrary to the person’s preferences and values, the personal and social wellbeing of the person, respecting the person’s individuality;
- the relevant human research ethics committee approved the research project with the knowledge that a person may participate without prior consent of that person or their medical treatment decision maker;
- one of the purposes of the research project is to assess the effectiveness of the procedure and that the medical research procedure poses no more of a risk to the person than the risk that is inherent in the person’s condition and alternative medical treatments; and
- the research project is based on valid scientific hypotheses that support a reasonable possibility of benefit for the person compared with standard medical treatment.
The medical research practitioner must also comply with certification requirements in section 81 of the MTPD Act for medical research procedures administered without consent in these circumstances.
The MTPD Act does not govern medical research procedures administered to people that have decision-making capacity.
Mental health patients
The medical treatment decision making process under the MTPD Act does not apply to persons who are being treated for mental illness as a ‘mental health patient’ under the Mental Health Act 2014 (Vic) (being a compulsory patient, a security patient, or a forensic patient under the Mental Health Act). However, the MTPD Act will also amend the Mental Health Act so such patients will be able to make and advance care directive and appoint a medical treatment decision maker in relation to the treatment they receive under the Mental Health Act (see section 48 and Part 9 of the MTPD Act).
Special medical procedures
The medical treatment decision making process under the MTPD Act will not apply to ‘special medical procedures’, such as any procedure that will render a person permanently infertile, or termination of a pregnancy. Administration of a special medical procedure on a person without capacity will continue to be governed by the Guardianship and Administration Act 1986 (Vic), which will require the consent of VCAT. However, the MTPD Act will amend the Guardianship and Administration Act to provide that a person may refuse consent to a special medical procedure through an instructional directive (see Part 10 of the MTPD Act).