Advanced Care Directives (Vic)
An Advanced Care Directive is a legally binding plan that a person makes for their future medical care in the event they lose their decision-making capacity. It allows a person to ensure their values and wishes influence treatment decisions when they can no longer participate in the decisions. Advanced Care Directives are governed by the Medical Treatment Planning and Decisions Act 2016.
Types of Advance Care Directives
There are two kinds of Advance Care Directives: an instructional directive and a values directive. A person can make either or both. Either directive can be given for medical treatment in general or for specific forms of treatment, and for that treatment to be given in a particular instance or over a period of time.
This directive provides specific instructions about treatment a person consents to or refuses. For example, the person could consent to a heart bypass operation, or refuse cardiopulmonary resuscitation.
This directive contains a person’s views and values, to which a Medical Treatment Decision Maker and health practitioners are required to give effect.
Priority groups to benefit from making a directive include:
- aged or frail older people;
- people with chronic or life-limiting conditions;
- people approaching end of life;
- people with comorbidities and/or conditions such as stroke or heart failure;
- people with early cognitive impairment;
- isolated or vulnerable people.
Under the Act, a person is deemed to have decision-making capacity if they can:
- understand information relevant to the decision and the effect of the decision;
- retain information to the extent needed to make a decision;
- evaluate the information to make a decision;
- communicate the decision in some way, including speech and gestures
Factors which must be considered in assessing decision-making capacity are that:
- a person may have capacity to make some decisions and not others;
- a lack of capacity may be temporary;
- it should not be assumed capacity is lacking:
- on the basis of the person’s appearance; or
- on the basis they have made a decision that others consider to be unwise
- a person has capacity if they can make a decision with practicable and appropriate support.
Medical Treatment Decision Maker
Under the Act, a person can have only one Medical Treatment Decision Maker at any one time. A person’s Medical Treatment Decision Maker is determined according to a hierarchy of the first available and willing person from a list. The list is:
- an appointed Medical Treatment Decision Maker;
- a guardian appointed by Victorian Civil and Administrative Tribunal (VCAT);
- the first of the following with a close and continuing relationship with the person:
- spouse or domestic partner;
- primary carer;
- oldest adult child;
- oldest parent;
- oldest adult sibling.
Under the Act, a person can also appoint a Support Person, and only one at a time. The Support Person’s job is to help the person make, communicate and give effect to the person’s medical treatment decisions, and represent the person’s interests when they do not have decision-making capacity for medical treatment decisions. The Support Person does not have the power to make a person’s medical treatment decisions.
The appointment of a Medical Treatment Decision Maker or Support Person requires a written, signed agreement between the parties, witnessed by two adults.
Requirements of an Advanced Care Directive
To be valid, an Advanced Care Directive must comply with the formal requirements set out in the Act. It must contain the full name, date of birth and address of the person making the directive. The person must sign the document in front of 2 adult witnesses, one of whom must be a registered medical practitioner. Each witness must certify that the person making the directive did so voluntarily and freely, had decision-making capacity, and understood the nature and effect of the statements in the directive. All parties signing the document must sign in the presence of each other.
An Advanced Care Directive ends when:
- any expiry date specified in it is reached;
- a person completes a new directive;
- a person cancels or revokes it;
- VCAT cancels it;
- the person dies.
The Act provides that VCAT, upon application, can make orders about:
- the validity of a directive or amendments made to it;
- the meaning and effect of a directive;
- whether a statement in a directive still applies;
- revoking, varying or suspending a directive.
A person must not, by dishonesty or undue influence, induce another person to give an Advanced Care Directive. The maximum penalty is 600 penalty units ($99,132) or imprisonment for 5 years or both. The same penalty applies if a person makes a false or misleading statement about another person’s Advanced Care Directive.
Statutory forms are available to download from the Department of Health and Human Services website.
For advice or representation in any legal matter, please contact Armstrong Legal.