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Preferences, Values and Rights - the proposed new framework for Medical Treatment Decisions and Advance Care Planning in Victoria

NewsFlash 29 June 2016

The Victorian Government has released a Position Paper on a proposed new framework to govern medical treatment decision making in Victoria. The proposed Medical Treatment Planning and Decisions Act (‘Act’) aims to simplify the law relating to medical treatment decision making and provide greater certainty on the legal status of advance care directives. The proposed Act would not affect existing laws regarding unlawful medical treatment, including physician assisted dying.

Changes under the proposed Act

While the Position Paper suggests that the proposed Act would not drastically alter the current situation for physicians in relation to medical treatment decision making, notable changes are as follows:

  1. The Act would apply to both registered health practitioners and to paramedics.
     
  2. The Act would recognise that persons under 18 years of age could be competent to issue advance care directives, that capacity may fluctuate for persons with particular illnesses, and that the need for support to make a decision does not mean that a person does not have capacity.
     
  3. Applications to VCAT could be made for orders that an advance care directive not be followed where it is apparent that circumstances have changed. In urgent circumstances or where an advance care directive is unclear, a health practitioner could choose not to follow it.
     
  4. An advanced care directive could refuse or consent to treatment for both current and future conditions. Under current laws, a Refusal of Treatment Certificate can only be issued in relation to a current condition.
     
  5. A person could also prepare a ‘values directive’ to outline their values and beliefs. 
     
  6. The definition of ‘medical treatment’ would be expanded to include the provision of pharmaceuticals. Palliative care would continue to be excluded from this definition, meaning that it could not be refused under an advance care directive. However health practitioners would be required take any expressed values regarding palliative care into account.
     
  7. A person may appoint a medical treatment decision-maker, and where necessary VCAT could also appoint a guardian. Either could refuse treatment where:

(i) Medical treatment would cause unreasonable stress to a person; or

(ii) There are reasonable grounds for believing that the person, if they had capacity, after giving serious consideration to their health and wellbeing, would have refused the treatment.

  1. A health practitioner would be required to appoint a decision-maker where a person has not given an instructional directive or appointed a decision-maker. The person appointed would need to be in a close and continuing relationship with the person who would be treated. The Act would set out a hierarchy for determining who should be appointed, although VCAT could appoint a decision-maker from outside that list.

The most significant change would be the introduction of a single test and framework for decision-makers to follow when considering medical treatment:

  1. Decision-makers would be required to make decisions that are consistent with any preferences expressed by a person.
     
  2. Where no preferences have been expressed, the person’s values would be considered.
     
  3. In circumstances where the person’s values could not be ascertained, decisions would need to be made in accordance with the person’s rights.

The Act would also include specific mechanisms for where ‘significant treatment’ is refused but a health practitioner considers that the person’s preference cannot be known, and to resolve disagreements regarding interpretation of an advanced care directive.

Effects for health practitioners, providers and employers

The criminal offence of Medical Trespass for failure(s) to comply with a Refusal of Treatment Certificate would be removed. Instead, non-compliance with an advance care directive may amount to ‘unprofessional conduct’

In advance of specific legislation it is unclear whether there would be a specific mechanism for referral to the relevant Board under the Health Practitioner Regulation National Law, or whether non-compliance with an advanced care directive could be conduct which requires a mandatory notification to the relevant Board. Further, while there are current moves to include them paramedics are not yet part of the national health practitioner regulation scheme, and it is not yet clear how the risk of ‘unprofessional conduct’ findings could apply to a paramedic who does not comply with an advanced care directive.

Submissions regarding proposed Act

The Department of Health and Human Services is seeking feedback on the proposed framework by email to acp.responses@dhs.vic.gov.au. Submissions are due by 4:00pm on 29 July 2016.

You can read more at www.health.vic.gov.au/acp, or contact our Health & Aged Care team to discuss how the changes may affect your practice, employees or operations.


Cindy Tucker, Partner
Melbourne

Emily Scott, Legal Trainee
Melbourne

NewsFlash 29 June 2016
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