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Advanced Care Directive - Patients have a Greater say under Overhaul of Medical Decision Making Laws

Tuesday March 20, 2018

Advanced Care Directive - Patients have a Greater say under Overhaul of Medical Decision Making Laws

You now have the power to have a greater say in the type of medical treatment you receive should you lose the ability to make decisions, thanks to the wide-ranging new laws that came into effect on 12 March 2018.


Under the Medical Treatment Planning and Decisions Act 2016, decisions relating to your medical treatment when you lose capacity can be made in advance. Your instructions relating to your treatment can be set out in a legally binding document known as an "Advanced Care Directive".

Under the new laws, you also have the power to appoint someone, known as a "Medical Treatment Decision Maker" who will have the authority to make decisions about your medical treatment when you lose capacity. You will no longer make an Enduring Power of Attorney (Medical Treatment) to appoint this person. However, any Enduring Powers of Attorney (Medical Treatment) made before the new laws came into effect will remain valid.

What is an Advanced Care Directive?

An Advanced Care Directive is a legal document that may contain:

  • "Instructional Directives" - legally binding instructions relating to the consent or refusal of treatment and/or
  • "Values Directives" - non-binding statements about your values and feelings in relation to medical treatment

Medical treatment includes dental treatment and treatment for mental illness. It also includes treatment such as surgery, the administration of prescription medication and palliative care.  However, a medical practitioner may administer palliative care despite any information to the contrary in an Advanced Care Directive.

Although an Advance Care Directive can be in any form, it must meet certain requirements including that it be:

  • in writing
  • in English
  • contain personal details of the person giving it
  • witnessed by two people, one of whom must be a medical practitioner
  • signed by the person giving it

With the exception of emergencies, your health care provider will have an obligation to make reasonable efforts in the circumstances to locate your Advanced Care Directive if you lack capacity and a decision about your medical treatment must be made. In the absence of any Instructional Directives in relation to your medical treatment, your health care practitioner must identify your Medical Treatment Decision Maker.

What is a Medical Treatment Decision Maker?

A Medical Treatment Decision Maker will have the authority to make medical treatment decisions they reasonably believe you would have made had you had capacity. The medical treatment decision maker must ascertain your values and preferences by undertaking a series of steps, the first of which is considering any Values Directives in an Advanced Care Directive. If a Medical Treatment Decision Maker is unable to ascertain your preferences and values, their ultimate obligation is to promote your social and personal wellbeing.

A Medical Treatment Decision Maker will not have the power to refuse palliative care. Also, if your Medical Treatment Decision Maker refuses "significant treatment" on your behalf, your health practitioner must notify the Office of the Public Advocate who will review the decision to ascertain its reasonableness.

If you do not have an appointed Medical Treatment Decision Maker, the role will be undertaken by the first of the following with whom you are in a "close and continuing relationship":

  • spouse or domestic partner
  • primary carer
  • adult child
  • parent
  • sibling

The formal requirements of an appointment of a Medical Treatment Decision Maker are the same as those for the Advanced Care Directive. However, one of the witnesses need only be an "authorised witness" rather than a medical practitioner.

What is a Support Person?

Under the new laws you will be able to appoint someone to assist you with the making of decisions relating to your medical treatment. For example, a Support Person may coordinate your care while you are ill. They will have the power to access your medical records, but will not be able to make medical treatment decisions on your behalf.

What happens to my existing Enduring Power of Attorney (Medical Treatment) after the new laws were introduced on 12 March 2018?

  • An agent or alternate agent under an Enduring Power of Attorney (Medical Treatment) made pursuant to the Medical Treatment Act 1988 is recognised under the new laws as your appointed Medical Treatment Decision Maker.
  • Refusal-of-treatment certificates and appointments made under the Medical Treatment Act 1988 will continue to have the same effect.

What about my Enduring Power of Attorney (Personal Matters)?

  • An attorney appointed under an Enduring Power of Attorney (Personal Matters) with the power to make medical treatment decisions pursuant to the Powers of Attorney Act 2014 becomes your appointed Medical Treatment Decision Maker. However, the definition of "personal matters" in the Powers of Attorney Act 2014 now does not include any matters that relates to medical treatment.

Should you wish to discuss your care planning needs or review your existing documentation, please contact our Wills and Estates team on 03 9550 4600.