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Victorian Edition | COVID-19 vaccine– who decides if you get the jab when you don’t have capacity to decide yourself?

Ilana Kacev

Australia’s COVID-19 vaccination program is now underway, and has proved to be the subject of much debate as to whether or not people should opt to receive the vaccine. But what happens if you don’t have capacity to choose, and that decision has to be made for you? Who can make that decision on your behalf?

In Victoria, the answer is:

  1. a decision maker appointed under an Appointment of Medical Treatment Decision Maker (AMTDM);
  2. a doctor, under an Advanced Care Directive (ACD), or where it is “routine treatment”; or
  3. The Office of the Public Advocate, where it is “significant treatment”.

The role of a medical treatment decision maker under an AMTDM

A medical treatment decision maker is an adult appointed by you to make medical treatment decisions on your behalf when you no longer have capacity to make those decisions yourself.

When making decisions on your behalf under an AMTDM, the decision maker must act in accordance with your known preferences and values. These may be recorded in an ACD or otherwise made known to your decision maker. They must also promote your personal and social wellbeing when making any decision.


If you have an ACD

An ACD sets out your values and preferences with respect to medical treatment in the event that you do not have capacity to decide for yourself.

If you have an ACD, medical practitioners are required to consider the directives set out in it before taking instructions from a treatment decision maker.

“Medical treatment” means:

“Treatment of a person by a health practitioner for the purposes of diagnosing a physical or mental condition, preventing disease, restoring or replacing bodily function in the face of disease or injury, or improving comfort and quality of life.”

Administering a vaccine is considered to be a medical treatment to prevent disease.


If you don’t have an AMTDM or an ACD

A medical practitioner may administer medical treatment if it is “routine treatment”, without consent. If it is “significant treatment” they can only administer the treatment if the Public Advocate consents.

“Routine treatment” means:

“Any treatment other than significant treatment.”

“Significant treatment” is treatment that involves:

(a) a significant degree of bodily intrusion;
(b) a significant risk to the person;
(c) significant side effects; or
(d) significant distress to the person.”

Therefore a medical practitioner may need to consider on a case by case basis whether the vaccine constitutes routine or significant treatment.

A doctor can also submit an application to a Public Advocate if a medical treatment decision maker refuses significant treatment on your behalf, and your values and preferences are not known.


Summary:

When deciding whether or not you want to have the vaccine, you should consider:

  1. having an AMTDM prepared and making known to your treatment decision makers what your values and preferences are; and
  2. updating or having an ACD prepared.

How we can help

For any queries arising out of this alert, or for assistance with your estate planning needs, please contact Ilana Kacev at ikacev@rk.com.au or 03 8640 2370 for further advice.

To read our recent alert discussing whether employers can require workers to have COVID-19 vaccinations, click here.

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