Medical Treatment Planning and Decisions Act 2016 - frequently asked questions

The Victorian Government believes a person should be able to determine which medical treatment they receive.

Previously, the legislative framework regarding medical treatment decision making was complex and difficult for health practitioners and the public to navigate. Although there were a number of relevant Acts, there was little a person could do to ensure their preferences were followed in relation to future treatment when they no longer have capacity.

The Medical Treatment Planning and Decisions Act 2016 (the Act) will ensure medical decision making is more in line with contemporary views and is more consistent with how people make decisions about their health care.

The Act gives people greater opportunity to make their own medical treatment decisions. A key change is the ability to make decisions for future medical conditions, where previously this could only be done for current conditions.

Victorians are now able to create a legally binding advance care directive that allows them to:

• Make an instructional directive (which provides specific directives about treatment a person consents to or refuses).
• Make a values directive (which will describe a person's views and values. A medical treatment decision maker and health practitioners are required to give effect to a values directive).

Victorians are now also able to appoint a:

• Medical treatment decision maker (who can make decisions on behalf of a person when they no longer have decision making capacity).
• Support person (who can assist a person to make decisions for themselves, by collecting and interpreting information or assisting the person to communicate their decisions).

This legislative change gives Victorians greater confidence that the health system will respect their decisions about medical treatment.

An advance care directive is a document where a person may express their preferences and values in relation to medical treatment. These documents are already used throughout Victoria and are ideally created through a process of advance care planning that includes conversations with family, friends and health practitioners.

Advance care directives now have statutory recognition, ensuring that the legal status of a these documents is clear. This means that people can be certain about the effect of the advance care directives they create and that health practitioners are clear about their obligations.

Yes. As of 12 March 2018, Victorians are now able to make an advance care directive under the Act.

In an advance care directive, you can outline your preferences and values for your medical treatment - in a legally binding document.

If you previously documented your wishes for future medical treatment in an advance care plan or other document, you can update these into a legally recognised advance care directive after 12 March 2018. To do so, you must sign these documents in front of two adult witnesses. One of these witnesses must be a registered medical practitioner (a medical doctor). Neither witness can be someone you have appointed as your medical treatment decision maker.

Regardless of whether you choose to update your advance care plan to an advance care directive, your medical treatment decision maker is required to make decisions in accordance with your expressed preferences and values.

The Act has introduced a new process for medical treatment decision making, under a single framework. The Act requires your medical treatment decision maker to make decisions in accordance with your preferences and values. This includes considering an advance care plan that you have made, an advance care directive that you have made, or preferences and values that you have previously expressed to people close to you.

In an advance care directive you are able to include an instructional directive. An instructional directive is an express statement of your medical treatment decision (made in advance). It will take effect as if you had consented to, or refused the commencement or continuation of, the specific medical treatment. You cannot make these legally binding statements in an advance care plan.

As of 12 March 2018, you are able to consent to or refuse medical treatment by making a relevant instructional directive about this in an advance care directive. This allows you to consent to or refuse treatment for any future medical condition, not just a current condition.

Your medical treatment decision maker is also able to consent to or refuse medical treatment on your behalf if you are ever unable to make your own medical treatment decisions. Your medical treatment decision maker must make the medical treatment decision that they reasonably believe is the decision that you would have made in the circumstances. This means it is important that your medical treatment decision maker understands your preferences for your medical treatment and what is important to you.

The appointments you made under previous laws are still recognised under the Act. This means that there is no need to remake existing legal documents.

If you wish, you are now able to change existing appointments or create an advance care directive under the new Act. Forms for making appointments and creating advance care directives can be found in the ACP forms section.