Following a Parliamentary Inquiry into issues related to the treatment of dying patients, the Victorian Government enacted the Medical Treatment Act (the Act) in 1988.

The Act reflects the strong community and professional consensus that individuals, their families, their friends and medical staff should be assisted in law in making informed decisions about whether medical treatment should be continued, particularly at the end of life.

The Act encourages community and professional understanding of the changing focus of treatment from cure to pain relief for terminally ill patients.

The Medical Treatment Act:

  • clarifies the right existing under common law to refuse medical treatment
  • creates an offence of medical trespass where a medical practitioner carries out or continues any procedure or treatment that a competent person refuses, and
  • gives protection from criminal or civil liability to the medical practitioner who acts in good faith and in accordance with the expressed wish of the fully informed, competent person refusing medical treatment.

In addition, the Act establishes the right of a competent individual to appoint an agent to make medical decisions on their behalf in the event that they are unable to make these decisions for themselves. The power given an agent is called an Enduring Power of Attorney (medical treatment) and with it, the agent has the power to determine whether medical treatment should be given or refused.

Limits of the Act and instruments created under the Act

The refusal of treatment certificate ceases to operate once the circumstances that gave rise to it are no longer relevant. The refusal of treatment certificate applies only to a current condition and not to a condition that may or may not occur in the future.

For this reason, the refusal of treatment certificate does not function as an "advance directive" except where the treatment is anticipated for a current condition.

The refusal of medical treatment does not cover medical procedures or other procedures that would be considered palliative care. Palliative care includes reasonable treatment for the relief of pain, suffering or discomfort and the reasonable provision of food and water. Palliative care does not include artificial feeding through a PEG (percutaneous endoscopic gastrostomy) tube inserted directly into the stomach.

When a person cancels a certificate or their medical condition has changed to such an extent that the specific or general provisions in it no longer apply, the refusal of medical treatment certificate is no longer in force.

The enduring power of attorney (medical treatment) does not allow an agent to make decisions about a person's affairs other than those about medical treatment. A general power of attorney, an enduring power of guardianship and an enduring power of attorney (financial) are all created and administered by other laws.

An enduring power of attorney (medical treatment) does not come into effect until the person is no longer able to make their own decision. A person retains the responsibility to make their own decisions if they are able to do so.

An agent can only refuse medical treatment on behalf of a person when the medical treatment would cause unreasonable distress to the person or they believe that the person, if they were still competent, would refuse the treatment.

What does the Act require of registered medical practitioners?

The decision a person or their agent makes about medical treatment is affected by the amount of information provided by the treating doctor. The information provided to the person or the agent should be complete and easily understood. The medical practitioner should be satisfied that the person understands risks involved with the proposed procedure or treatment and any alternatives.

At least one witness on the refusal of medical treatment certificate must be a registered medical practitioner and may also be the treating doctor. Once, however, the treating doctor is aware that a certificate exists, it is an offence for that doctor to continue or undertake any medical treatment covered by the certificate.

The Act protects all registered medical practitioners or people acting under their direction who refuse to perform or continue a procedure or a medical treatment in accordance with a refusal of medical treatment certificate. A medical practitioner is not guilty of misconduct, any offence or liability in any civil proceeding for failing to perform or continue the relevant treatment.

The Board of a hospital or the proprietor of a private hospital or nursing home must take reasonable steps to ensure a copy of a refusal of treatment certificate or a notice of its cancellation is attached to the medical record of the person in the hospital or home and sent to the Victorian Civil and Administrative Tribunal (VCAT) within 7 days of its completion.

Supreme Court decision on the Medical Treatment Act

On 29 May 2003 the Victorian Supreme Court handed down a landmark judgement in a case brought by the Public Advocate. The judgement clarifies the relationship of medical treatment to palliative care. The judgement ensures that people with a disability are not treated as having lesser rights than competent persons who can refuse treatment.

The case involved a woman with severe disabilities, including a lack of cognitive capacity as a consequence of a progressive form of dementia. Before she became unwell she had told members of her family that should she ever become disabled she would not want medical treatment that would artificially and unnecessarily prolong her life.

The Court proceedings were initiated to obtain a definitive ruling on whether artificial nutrition and hydration delivered through a PEG tube (which is surgically inserted in to the stomach) is, under the Medical Treatment Act 1988, either:

  • "medical treatment" which may be refused, or
  • "palliative care" which may not be refused. The definition of "palliative care" in the Act includes "the reasonable provision of food and water".

The Court decided that PEG tube feeding was a "medical treatment" and so can be refused by a guardian or an agent authorised to make medical treatment decisions on behalf of a person unable to make their own decision.

A copy of the full judgement in the case which is cited as Gardner; re BWV may be obtained from - Full judgement in the case, cited as Gardner; re BWV.

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