New law allows you to ensure that your wishes for future medical treatment must be followed when you can no longer decide for yourself
The Medical Treatment Planning and Decisions Act 2016 (the Act) came into force on 12 March 2018. The Act provides for the following actions you can take to prescribe how medical decisions shall be made after you lose medical treatment decision making capacity (capacity):
- Advance Care Directive
- Medical Treatment Decision Maker Appointment
- Support Person Appointment
Advance Care Directive
The Act allows you to make an Advance Care Directive which may include:
- an instructional directive containing legally binding instructions consenting to and refusing medical treatment options. Such directive must be followed by your medical attendants after you lose capacity; and
- a values directive which sets out your values and preferences for future medical treatment. This directive must be considered by your medical attendants after you lose capacity.
The new law means that medical decisions must be made based on your stated instructions or values instead of someone else’s belief of what is in your best interest.
Examples of instructional directives –
- if you have a terminal condition, do you wish to have any life sustaining equipment (e.g. use of a respirator or resuscitation), which will prolong your life but not improve your condition
- when death is imminent and you can no longer take foods or fluids by mouth, do you wish to receive food or fluid by artificial means (tube or intravenous)
- do you wish to receive maximum palliative care even if such treatment may have the additional consequence of prolonging your life
Examples of values directives –
- I wish it to be understood that I dread degeneration, prolonged dependence, inability to communicate and indignity far more than I fear death. I ask my medical attendants to bear this statement in mind when considering what my intention would be in any uncertain situation.
- If I am no longer able to take care of my personal needs, I would rather be in a nursing home or other care facility than to be a burden to my family.
- I would like to stay at home for as long as possible and as long as it is not too hard on my family.
- I value my privacy.
- I have lived a good, long life. I am not afraid to die. If my condition is terminal and I am no longer able to communicate with my family, I do not want any treatment that would prolong my life without improving my condition.
- I believe that every human being is valuable, even if he or she is not aware of surroundings and cannot interact with other people. So, even if I become mentally incapacitated, I wish to be given the benefit of any treatment or care that will extend or improve my life.
Witness Requirements
An Advance Care Directive must be in writing and signed in the presence of two witnesses, one of whom must be a medical professional. Both witnesses must certify that you appeared to:
- have decision making capacity in relation to each statement in the Directive;
- freely and voluntarily sign the Directive; and
- understand the nature and effect of each statement in the Directive.
Medical Treatment Decision Maker
The Act provides for the appointment of a medical treatment decision maker who will make decisions about your medical treatment after you lose capacity.
The medical treatment decision maker is obliged to make decisions based on the decisions you would have made if you still had capacity. Your instructional directive or values directive must be followed.
It will no longer be possible to appoint someone as a medical agent under an enduring medical power of attorney. However, any medical power of attorney made before 12 March 2018 will still be valid.
Support Person
The Act also allows for you, while you have capacity, to appoint a Support Person to assist you in making medical treatment decisions. For example, a Support Person could collect and interpret information for you and help you communicate your decisions.
This support role continues after you lose capacity, although medical treatment decisions will be made by your nominated medical treatment decision maker and not by the Support Person.
Summary
You should not wait until you are seriously ill to think about the medical treatment you would like – or not like – in the future when you lose capacity.
It is recommended that:
- you discuss the issues with families and friends now; and then
- prepare an Advance Care Directive; and
- appoint a Medical Treatment Decision Maker (and maybe a Support Person).
We stand ready to assist you to develop and formalise the documents in accordance with the requirements of the Act.
If you follow the above recommendations, you can rest easy – your wishes for future medical treatment must be followed when you can no longer decide for yourself.