Advanced care directives

Legislation is swiftly moving through the Victorian Parliament that will legislate, for the first time in Victoria, for the use of advanced care directives, allowing people increased control over end-of-life decision making.

The Medical Treatment Planning and Decisions Bill has stemmed from the Parliamentary Committee’s Inquiry into End-of Life Choices, which report made 49 recommendations to Parliament about this area of great public interest. Discussion around euthanasia and assisted dying always provokes much interest and lively debate.

An advanced care directive is a written document, that has force at law, that communicates a person’s wishes about future medical treatment when that person loses capacity to make decisions for themselves. The legislation differentiates between instructions directives and values directives.

An instructional directive is an express statement of a person’s medical treatment decision, to either consent to treatment, refuse treatment or continue with treatment, depending on the case.

A values directive is a statement of a person’s preferences and values as the basis on which a person would like medical treatment decisions to be made on their behalf. Such a directive may be given generally, or about a specific form of treatment.

A directive will allow people to communicate their wishes about medical treatment, personal values, appointing someone to make medical treatment decisions on their behalf and appointing a support person.

The legislation defines advanced care directives, provides for the appointment of medical treatment decision-makers and support persons, defines what medical treatment decisions are and defines how medical research can be used in circumstances where a person cannot consent.

Medical treatment decisions are decisions to consent to, or refuse medical treatment or a medical research procedure.

Importantly the legislation recognises same sex relationships, and covers off issues such as duty of care and capacity.

Nothing in the legislation affects any duty of care owed by a health practitioner to a patient.

For a person to have decision-making capacity, they must:
• understand the information relevant to the decision;
• understand the effect of the decision;
• retain that information to the extent necessary to be able to make the decision;
• use or weigh that information as part of the process of making the decision; and
• communicate the decision and the person’s views and the needs as to the decision in some way, including by speech, gestures or other means.

VCAT will have jurisdiction to deal with legal issues arising from advanced directives.

These new documents will work together with existing legislative instruments such as refusal of treatment certificates, enduring powers of attorney and enduring powers of attorney (medical treatment).

The legislation is currently before the Senate or consideration, after passing the lower house with minor amendments.

The anticipated commencement date of the legislation is March 2018, if not earlier.