Changes To Medical Decision Making Laws


Do you have ageing family members who live in Victoria? Are you a member of the medical profession?

Significant changes have been made, by the Victorian Government, to the legislation regulating laws on medical decision-making in Victoria (namely, the Medical Treatment Planning and Decisions Act).  These amendments replaced previous Victorian legislation on medical treatment decisions and appointment of medical attorneys. The changes came into effective on 12 March 2018.

The amendments have introduced significant changes to the law, namely:

  • You can now appoint medical treatment decision-makers;
  • The introduction of the “advanced care directives”; and
  • Certain new obligations on medical practitioners

1. Changes in the Process of Appointing Medical Treatment Decision-Makers

Before the introduction of these amendments an Enduring Power of Attorney (Medical) was required to authorise another person to make decisions in relation to giving or withholding medical care and treatment, in circumstances where you lost your capacity to make such decisions.  With the introduction of these amendments, effective 12 March 2018, a person will be entitled to appoint a “medical treatment decision-maker” without an Enduring Power of Attorney (Medical).  There are still a number of different formality requirements that will apply, including witnessing requirements, more details about this can be found on http://www.publicadvocate.vic.gov.au/medical-consent/medical-treatment-decision-maker.  While, the changes will apply for new appointments to a medical treatment decision-maker, Enduring Power of Attorneys entered into under the previous law, will still maintain their authority of making medical decisions under the new legislation.

(a) Multiple Medical Treatment Decision-Makers

Unlike the previous legislation, where the donor could only appoint one attorney and one alternate attorney should the first be unable or unavailable to act, under the new Act a person may now appoint multiple medical treatment decision-makers. However, only one person will be able to make a decision at any given time.

(b) Support Person

The new legislation also allows Victorians to appoint a support person to assist the decision-maker when such person has decision-making capacity.  The support person will not have the power to make decisions on medical matters and treatments, however, this person will be entitled to access the medical records relevant to the decision that needs to be made.  The person will then assist the decision-maker with the medical decision and see that such decisions are carried through.

(c) Introduction of Criminal Penalties

The new law introduced new criminal protection and penalties preventing persons from falsely acting, on behalf of another, as medical decision-makers.

(d) The de facto decision-maker

The new law lists a number of de facto decision-makers that would be automatically appointed, starting from the first available person on the list, in cases where a person has not formally appointed someone themselves, more details about this list can be accessed at http://www.publicadvocate.vic.gov.au/publications/medical-consent/medical-treatment-decision-maker-list. This change repealed the requirement that existed under the previous legislation, whereby in the case of a person not having a Medical Enduring Power of Attorney, an application had to be made to the Victorian Civil and Administrative Tribunal to acquire the appointment of such a medical decision-maker.

2. Introduction of “Advance Care Directives”

“Advance care directives” are now allowed to be made by a person, laying down instructions and stipulating preferences and values to be followed by the decision-maker, when making medical treatment decisions.  This gives more control to individuals when they are no longer capable of making such decisions themselves.  It allows individuals to determine future medical decisions in case they are no longer capable of making such decisions.  A person may choose to have either Binding Instructional Directives, setting out legally binding instructions on future consent or refusal of medical treatment, or, Non-Binding Values Directives, listing one’s values and preferences to be considered when medical treatment decisions are made on the person’s behalf.  A person may also choose to have both types of directives. The formal requirements required for the execution of a valid advanced care directive may be accessed on http://www.publicadvocate.vic.gov.au/medical-consent/advance-care-directive.  The introduction of the advance care directives replaced the previous “Refusal of Treatment Certificate”, however, existing certificates issued under the previous legislation remained valid after the introduction of these amendments.

3. Obligations on Medical Practitioners

Health care professionals are legally obliged to ascertain the existence and location of any advance care directive as well as medical treatment decision-maker.  Health professionals may be liable for unprofessional conduct should they not comply with these obligations.  Health service providers and facilities are also obliged to maintain copies of advanced care directives and information of appointed decision-makers on a person’s medical record, if they are in fact aware of such directives being made by the person.

4. Contact Aperion Law

The content of this article is an overview of the amendments introduced to advance care directives.  Aperion Law's lawyers in Melbourne and Sydney can help you with these and other issues.  We provide free 30-minute initial consultations to help understand your needs.  Please contact us when you are ready, for specialist advice:  https://www.aperionlaw.com.au/#find-us.