| Published by Michael Gorton AM, Emma Turner
Written by Michael Gorton AM, LLB. BComm FRACS (Hon) FANZCA (Hon), Principal, Emma Turner, Special Counsel and Sophie Bolzonello, Associate.
The Medical Treatment Planning and Decisions Act 2016 will commence on 12 March 2018 and introduces a new scheme for individuals to create binding Advance Care Directives and to appoint medical treatment decision makers and support persons.
The new Act will consolidate existing laws into the one piece of legislation including: the definition of medical treatment; requirements for capacity assessments; substitute decision makers under the Guardianship and Administration Act 1986; and medical powers of attorney under the Powers of Attorney Act 2014.
The Act continues to exclude palliative care from the medical treatment decision-making process and does not allow a person to make an instructional directive about palliative care. While a medical treatment decision-maker remains prohibited from making decisions about a ‘special medical procedure’, a person is able to refuse a ‘special procedure’ in an instructional directive.
The Medical Treatment Act 1988, which was an important piece of legislation that introduced refusal of treatment certificates, will also be repealed.
Health practitioners will also be given new obligations to make reasonable efforts in the circumstances to identify if a patient has an advance care directive; and comply with Advance Care Directives even after the individual loses capacity to continue making health care decisions, with the result that a failure to do so will constitute unprofessional conduct and may constitute an assault.
The Act introduces two types of Advance Care Directives known as an instructional directive and a values directive.
An instructional directive allows a person to make a clear decision about specific types of medical treatment they consent to and refuse to receive. The Act also introduces formal requirements for validly made advance care directives. This includes that where a person seeks to make an instructional directive, they must clearly identify the relevant directive as an instructional directive or it will be treated as a values directive.
Unlike an instructional directive, a values directive allows a person to identify in advance their preferences and values and may include types of treatment the person considers acceptable. Where appointed, a medical treatment decision maker must give effect to a values directive as far as is reasonably possible.
Health facilities also receive new record keeping requirements that they must take reasonable steps to ascertain whether a patient of the facility has an advance care directive or has an appointed medical treatment decision maker or a support person. Health facilities include residential aged care, public and private hospitals and group homes within the meaning of the Disability Act 2006.
Health facilities can ensure they are compliant by:
We will continue publish further information on how to make advance care directives and the types of issues to be aware of prior to the new Act commencing on 12 March 2018.
 special medical procedure means: any procedure that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out; or termination of pregnancy; or any removal of tissue for the purposes of transplantation for another person; or any other medical treatment within the meaning of the Medical Treatment Planning and Decisions Act 2016 that is prescribed to be special medical procedure for the purposes of Part 4A.