Advance care planning

Advance care planning is a rapidly developing area in health law. In Victoria there are two statutory instruments for making advance statements:

1 Refusal of treatment certificates (RTC) under the Medical Treatment Act 1988 (Vic) (“MTA”); and

2 Advance statements under the Mental Health Act 2014 (Vic) (“MHA 2014”).

The RTC is an authoritative document whereby treatment is refused by the patient or their agent or guardian. If a doctor provides treatment contrary to the RTC they may be guilty of an offence. A person can only make a RTC where they have a condition that the refusal of treatment relates to. For example, one would have to have cancer before one could sign a RTC to refuse treatment for it.

The advance statement under the MHA 2014 enables a person who may become a patient to set out their preferences regarding their mental health treatment. The advance statement must be considered when making treatment and other decisions under the MHA 2014. It is persuasive, but not binding.

There are a plethora of other advance care planning instruments available through health services and the internet. Most of these do not mandate what should happen when certain events or illnesses take place, but provide guidance to decision-makers such as attorneys for person matters, agents under the MTA, persons responsible, guardians or administrators.

Because RTCs only apply in limited circumstances, can one make a binding advance care directive (ACD) at common law? The legal status of ACDs is unclear in relation to medical treatment because once you have lost capacity the “person responsible” is legally authorised to consent to medical treatment on your behalf (seeConsent to treatment”). However, the Supreme Court of Western Australia affirmed the directive status of an ACD for a man with quadriplegia who wished to refuse treatment (see Brightwater Care Group v Rossiter [2009] WASC 229).

For further information on advance care planning contact the OPA.

For further information, see Mental illness, and Understanding powers of attorney.