Recent changes to medical decision making laws

MSI - MedicalBy Rachael HockingTasha Eliassen, Aitken Partners, Lawyers, Melbourne.

Changes to the legislative framework around medical decision making and advance care planning came in to operation in Victoria on 12 March 2018.

Medical Treatment Planning and Decisions Act 2016 (‘the Act’)

The Act introduces the ability to implement a binding Advance Care Directive and the appointment of a Medical Treatment Decision Maker or Support Person.

Advance Care Directive

An Advance Care Directive sets out a person’s binding instructions or preferences and values in relation to their medical treatment in the event they do not have decision-making capacity.

The Act defines a person as having decision making capacity if the person is able to (a) understand the information relevant to the decision and the effect of the decision; (b) retain that information to the extent necessary to make the decision; (c) use or weigh that information as part of the decision-making process; (d) communicate the decision and the person’s views / needs. An adult is presumed to have decision making capacity unless there is evidence to the contrary.

There are two types of directives that can be included in an Advance Care Directive:

  • An instructional directive – an express statement of a person’s medical treatment decision; Eg – a statement that a person consents to a heart bypass operation in specified circumstances or a statement that a person refuses cardiopulmonary resuscitation.
  • A values directive – a statement of a person’s preference and values as to the basis on which the person would like any medical treatment decisions to be made on their behalf. Eg – a statement to the effect ‘if I am unable to recognise my family and friends, and cannot communicate, I do not want any medical treatment to prolong my life’.

The distinction between the two becomes important when a health practitioner proposes to administer medical treatment to a person who has an Advance Care Directive but does not have decision-making capacity. The practitioner must – (a) give effect to any relevant instructional directive; then (b) refer to the Medical Treatment Decision Maker, then; (c) consider any values directives.

Any person (including a child) may give an Advance Care Directive so long as they have decision-making capacity.

Medical Treatment Decision Maker

An adult who has decision-making capacity may appoint another adult as their Medical Treatment Decision Maker (in lieu of an attorney).

Any person, including a child, who has decision-making capacity may appoint another person as their support person. The support person is to support the person to make, communicate and give effect to their medical treatment decisions and represent their interests when they no longer have decision-making capacity. The support person does not have the power to make that person’s medical treatment decisions.


The Act is quite comprehensive and also covers medical practitioners’ obligations and medical research. Aitken Partners are always happy to discuss any matters of interest with you in more detail.

Contact the author directly by email or by telephone.

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