Guardianship and medical treatment

In 1999, Victoria legislated to formalise the custom that a person’s next of kin could make medical decisions if the person lost capacity to make those decisions. This law introduced Part 4A to the Guardianship and Administration Act 1986 (Vic) and the role of the ‘person responsible’. The Medical Treatment Planning and Decisions Act 2016 (Vic) (‘MTPD Act’) repeals the 1999 law and the Medical Treatment Act 1988 (Vic). 

The MTPD Act came into operation on 12 March 2018 and creates opportunities to:

• write advance care directives;
• appoint a support person;
• appoint a medical treatment decision-maker.

The MTPD Act reforms how medical decision-making is performed so that it is no longer a determination of a patient’s best interest, but what accords with their values and preferences.

‘Medical treatment’ is defined in the MTPD Act (s 3). Medical treatment is not limited to the treatment provided by doctors and dentists, but includes the treatment provided by all health practitioners, including ambulance staff and non-emergency patient transport staff (see Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)).

Special medical procedures are regulated by the GA Act 2019 (pt 6). Special medical procedures are performed on people who are unable to make medical treatment decisions for themselves; the procedures are pregnancy termination, sterilisation, and tissue donation. Only VCAT is authorised to consent to these procedures.

An advance care directive (ACD) is an autonomous statement of what a person wants, the person’s values and preferences. Under the MTPD Act, there are two types of ACDs:

1. An instructional directive;
2. A values directive.

An instructional directive

An instructional directive:

• is a statement in an ACD of a person’s medical treatment decision; and
• takes effect as if the person who gave it has consented to medical treatment or has refused the commencement or continuation of medical treatment.

An example of an instructional directive is a person refusing cardiopulmonary resuscitation (s 6 MTPD Act).

An instructional directive is, with a few exceptions, binding on health practitioners (i.e. health practitioners must follow the instructions expressed in the directive).

It is important that an instructional directive is clear, unambiguous, and explicitly states in what circumstances the directive applies. For example, a person may not want cardiopulmonary resuscitation where it may be difficult to obtain immediate care, but they do want to be resuscitated during an operation, if required.

If a person is making an instructional directive, this must be stated, or it will be presumed that the statement is a values directive.

A values directive

A values directive is a statement in an ACD of a person’s preferences and values. Any decisions about medical treatment made on the person’s behalf must be based on these values (s 6 MTPD Act). A values directive is a key way to inform your medical treatment decision-maker of your wishes.

Advanced care directives must be witnessed

ACDs must be formally witnessed to be valid (ss 16, 17 MTPD Act). ACDs must be witnessed by two people; one witness must be a registered medical practitioner. Both witnesses must certify that the person ‘appeared to understand the nature and effect of each statement in the directive’ (s 17 MTPD Act).

Where a child makes an ACD, one witness must be a registered medical practitioner or a psychologist with the prescribed training and experience.

Capacity to make an advanced care directive

Any person (including a child) can make an ACD if they have the capacity to make decisions. This is defined in section 4 of the MTPD Act. An adult is presumed to have such capacity.

Changing an advanced care directive

ACDs can be changed, but all amendments must be formally witnessed as per the MTPD Act (ss 16, 17) (see ‘ACDs must be witnessed’, above). A later ACD revokes a former one (s 20 MTPD Act).

Format of an advanced care directive

There is no set format for an ACD. The Victorian Government Department of Health has developed a standard form that can be used as an ACD; this is available on the Department of Health’s website.

Disputes about advanced care directives

You can apply to VCAT to determine disputes about:

• the meaning or interpretation of an ACD;
• the continued applicability of an ACD;
• the validity of an ACD;
• the decision-making capacity of the person who made an ACD.

Medical treatment for a mental illness

An ACD can be made about medical treatment for a mental illness. An ACD relating to a person’s mental illness could indicate the person’s values, and their instructions and preferences for treatment. However, a person’s instructional directive is not binding if the person becomes subject to compulsory treatment.

Nonetheless, the psychiatrist treating the person must consider the person’s views and treatment preferences, as outlined in their ACD (s 71 Mental Health Act 2014 (Vic) (‘MH Act’)).

An ACD is different from the MH Act’s ‘advance statement’. In an advance statement, a person can set out their treatment preferences in the event that they become a compulsory patient.

Types of medical treatment decision-makers

There are two types of medical treatment decision-maker (MTDM):

1. those who are appointed;
2. those who have a close and continuing relationship with the person.

A child’s MTDM is their parent or guardian or another person who has parental responsibility for the child, who is also reasonably available, willing and able to make the decision (s 55 MTPD Act).

Appointed medical treatment decision-makers

The MTPD Act permits an adult to appoint one or more MTDM. The first MTDM on a person’s list is the first one called upon. If that person is not available, willing and able, the second MTDM on the list is called, and so on.

People who were previously appointed as medical attorneys, enduring guardians or attorneys for personal matters (before 12 March 2018) are validly appointed MTDMs; however, their powers are only as extensive as those set out in the original appointment (see ss 102–103 MTPD Act). Attorneys for personal matters who were appointed after 12 March 2018 are not authorised to be MTDMs because after that date it is only possible to appoint MTDMs directly.

To appoint a MTDM, a person must have decision-making capacity. Adults are presumed to have such capacity. To ensure an appointment of a MTDM is valid, the MTPD Act’s formal witnessing requirements must be met.

A MTDM must accept their appointment before the role can be exercised. Accepting the role involves committing to undertakings about how they will exercise their obligations (s 29).

An appointed MTDM may resign; they must take all reasonable steps to advise the person and any other appointees of their resignation (s 39).

For more information about appointing a MTDM, including the form of appointment, visit the OPA’s website.

Other medical treatment decision-makers

If a person does not have an appointed MTDM who is available, willing and able to consent to or refuse medical treatment, the MTPD Act has a list of candidates who can perform the role of the MTDM:

• a guardian appointed by VCAT who has the power to make decisions about medical treatment;
• the person’s spouse or domestic partner;
• the person’s primary carer;
• the first of the following people – if more than one person is available, the oldest of those people:
  • the person’s adult child,
  • the person’s parent,
  • the person’s adult sibling.

If there is no-one, and the treatment is ‘significant treatment’ (defined in s 3 MTPD Act), the Public Advocate must make the decision (s 63 MTPD Act).

This system of substitute decision-making does not apply to people receiving compulsory treatment for a mental illness under the MH Act (see s 75 MH Act; s 48 MTPD Act).

Making medical treatment decisions

Before a health practitioner administers medical treatment to a person who does not have decision-making capacity, they must ascertain if the person has an ACD and/or a MTDM (s 50 MTPD Act). If it is an emergency situation, the health practitioner only has to consider an ACD if it is readily available (s 53 MTPD Act).

When a MTDM is engaged to make a decision about medical treatment, the MTPD Act (s 61) sets out what the MTDM must consider and the order in which these factors should be considered.

The first consideration is the values directive. The second is if there are any other relevant preferences the person has expressed, and the circumstances in which they were expressed. If the MTDM cannot identify any of the person’s preferences, the MTDM must consider the person’s values expressed by ways other than a values directive, or values inferred from the person’s life. If the MTDM is still unable to ascertain or establish the person’s values, the MTDM is to make a decision that promotes the person’s personal and social wellbeing, taking into account their individuality.

Alongside this process, the MTDM must consider the likely effects of the treatment, its likely effectiveness, and the alternatives. The MTDM must act in good faith and with due diligence. They also must consult any person they believe the person would want them to consult.

People (including children) may appoint a support person to help them make, communicate and give effect to their medical treatment decisions. A child can be a support person. A person can only have one support person (s 31 MTPD Act); an appointment of a support person revokes any earlier appointments (s 35). A person must have decision-making capacity to appoint a support person.

To ensure an appointment of a support person is valid, the MTPD Act’s (s 33) formal witnessing requirements must be met. A support person must accept their appointment before the role can be exercised (s 34).

For more information about appointing a support person, including the form of appointment, visit the OPA’s website.