Springer Nature is making SARS-CoV-2 and COVID-19 research free. View research | View latest news | Sign up for updates

Deciding For When You Can’t Decide: The Medical Treatment Planning and Decisions Act 2016 (Vic)

Abstract

The Australian state of Victoria introduced new legislation regulating medical treatment and associated decision-making in March 2018. In this article we provide an overview of the new Medical Treatment Planning and Decisions Act 2016 (Vic) and compare it to the former (now repealed) Medical Treatment Act 1988 (Vic). Most substantially, the new Act provides for persons with relevant decision-making capacity to make decisions in advance regarding their potential future medical care, to take effect in the event they themselves do not have decision-making capacity. Prima facie, the new Act enshrines autonomy as the pre-eminent value underlying the state’s approach to medical treatment decision-making and associated surrogate decision-making. However, we contend that the intention of the Act may not accord with implementation of the Act to date if members of the community are not aware of the Act’s provisions or are not engaged in advance care planning. There is a need for further research, robust community advocacy, and wider engagement for the intention of the Act—the promotion of “precedent autonomy” in respect to surrogate medical treatment decision-making—to be fully realized.

This is a preview of subscription content, log in to check access.

References

  1. Advance Care Planning Australia (Austin Health). 2019. https://learning.advancecareplanning.org.au. Accessed August 25, 2019.

  2. Beauchamp, T.L., and J.F. Childress. 2009. Principles of biomedical ethics. 6th ed. New York: Oxford University Press.

  3. Better Health Channel (State Government of Victoria, Department of Health and Human Services). 2018. Advance care plans. Last modified March 2018. https://www.betterhealth.vic.gov.au/health/servicesandsupport/advance-care-plans. Accessed August 25, 2019.

  4. Brown, M., and S. Jarrad. 2008. Putting “the powers” in place: Barriers for people with memory loss in planning for the future. Journal of Law and Medicine 15(4): 530–537.

  5. Chesterman, J. 2017. Prioritising patients’ preferences: Victoria’s new advance planning and medical consent legislation. Journal of Law and Medicine 25(1): 46–51.

  6. Detering, K.M., K. Buck, R. Ruseckaite, et al. 2019. Prevalence and correlates of advance care directives among older Australians accessing health and residential aged care services: Multicentre audit study. BMJ Open 9(1): e025255.

  7. health.vic (State Government of Victoria, Department of Health and Human Services). 2018. Medical Treatment Planning and Decisions Act 2016. https://www2.health.vic.gov.au/hospitals-and-health-services/patient-care/end-of-life-care/advance-care-planning/medical-treatment-planning-and-decisions-act. Accessed August 25, 2019.

  8. Johnstone, M-J., and O. Kanitsaki. 2009. Ethics and advance care planning in a culturally diverse society. Journal of Transcultural Nursing 20(4): 405–416.

  9. Law Instititute of Victoria. 2019. Medical Treatment Planning and Decisions Act 2016: https://www.liv.asn.au/Professional-Practice/Medical-Treatment-Act. Accessed August 25, 2019.

  10. McCarthy, S., J. Meredith, L. Bryant, and B. Hemsley. 2017. Legal and ethical issues surrounding advance care directives in Australia: Implications for the advance care planning document in the Australian My Health Record. Journal of Law and Medicine 25(1): 136–149.

  11. MyValues (Barwon Health). 2014. https://www.myvalues.org.au. Accessed August 25, 2019.

  12. Office of the Public Advocate. 2019a. Medical decisions. https://www.publicadvocate.vic.gov.au/medical-consent. Accessed August 25, 2019.

  13. -----. 2019b. Plan for the future. https://www.publicadvocate.vic.gov.au/power-of-attorney. Accessed August 25, 2019.

  14. Parliament of Victoria Social Development Committee. 1987. Report upon the Inquiry into Options for Dying with Dignity (Second and Final Report).

  15. Pereira-Salgado A., Mader P., and Boyd LM. 2018. Advance care planning, culture and religion:an environmental scan of Australian-based online resources. Australian Health Review 42(2): 152–163.

  16. Royal Commission into Aged Care Quality and Safety. 2019. Advance care planning in Australia: Background paper 5, June 2019. https://agedcare.royalcommission.gov.au/publications/Documents/background-paper-5.pdf. Accessed August 25, 2019.

  17. Tran, M., M. Grant, J. Clayton, and J. Rhee. 2018. Advance care decision making and planning. Australian Journal of General Practice 47(11): 753–757.

  18. Victorian Legislative Council Legal and Social Issues Committee. 2016. Inquiry into end of life choices: Final report. Parliament of Victoria.

  19. Waird, A., and E. Crisp. 2016. The role of advance care planning in end-of-life care for residents of aged care facilities. The Australian Journal of Advanced Nursing 33(4): 26–34.

  20. White, B., C. Tilse, J. Wilson, et al. 2014. Prevalence and predictors of advance directives in Australia. Internal Medicine Journal 44(10): 975–980.

  21. White, B., L. Willmott, C. Cartwright, M. Parker, and G. Williams. 2016. The knowledge and practice of doctors in relation to the law that governs withholding and withdrawing life-sustaining treatment from adults who lack capacity. Journal of Law and Medicine 24(2): 356–370.

  22. Yap, S., Chen, K., Detering, K., and S. Fraser. 2018. Exploring the knowledge, attitudes and needs of advance care planning in older Chinese Australians. Journal of Clinical Nursing 27: 17–18.

Download references

Funding

Courtney Hempton receives funding from the Australian Government (Research Training Program Scholarship).

Author information

Correspondence to Courtney Hempton.

Additional information

Publisher’s Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and Permissions

About this article

Verify currency and authenticity via CrossMark

Cite this article

Hempton, C., Bhatia, N. Deciding For When You Can’t Decide: The Medical Treatment Planning and Decisions Act 2016 (Vic). Bioethical Inquiry (2020). https://doi.org/10.1007/s11673-020-09960-3

Download citation

Keywords

  • Health law
  • Bioethics
  • Decision-making
  • Surrogate decision-making
  • Advance care planning
  • Advance care directives