More than six months of the Medical Treatment Planning and Decisions Act 2016 (Vic) – what issues are aged care providers seeing?

Anita Courtney, Victor Harcourt, Laura Kerridge, Felicity Iredale

It has been over six months since the Medical Treatment Planning and Decisions Act 2016 (Vic) (Act) commenced. With the Royal Commission into Aged Care set to consider end of life care, it’s more important than ever that aged care providers ensure their policies are up to date and compliant with the changes. 

As outlined in our previous article, the Act has introduced a scheme for creating binding advance care directives (ACDs). It also changed the rules in relation to substitute decision makers.   

From what we have seen, aged care providers have made good progress in getting their staff up to speed on the Act, however some complexities are starting to emerge. The purpose of this article is to explain a couple of the challenges we are seeing, to assist you in updating or developing your policies in relation to the new Act.

1) Advanced consent

The issue we’re seeing most frequently is aged care providers not knowing whether a medical treatment decision maker is able to consent, in advance, to certain types of medical treatment that might be provided to a care recipient in the future.  

In our view, medical treatment decision makers can consent to certain routine medical treatment in advance – for example, Nurofen on an “as needs” basis for recurring back issues.   

The question is more complicated in relation to more significant directives. For example, what should a provider do if a family member or power of attorney says that they don’t want the resident to receive CPR or directs the provider not to transfer the resident to hospital in the event of an emergency?  

In our opinion, approved providers should only accept ‘advance consents’ from medical treatment decision makers in relation to routine and uncontroversial medical treatment (eg PRN medication). If more significant treatment is proposed, providers should contact the medical treatment decision maker at the relevant time to obtain their consent.

2) Who is responsible for ensuring compliance?

Another complexity is understanding who is responsible for ensuring the new laws are complied with. The Act applies to all health practitioners registered with AHPRA as well as paramedics. This can present challenges for aged care nursing staff when dealing with a GP or locum who has, for example, not taken an ACD into account in ordering treatment or not consulted with the relevant medical treatment decision maker. If the nurse knows that treatment ordered is contrary to an ACD or a medical treatment decision maker’s decision, they should not administer the treatment, and should instead raise the issue with the GP or locum who ordered it. 

3) Advanced care plans completed prior to 12 March 2018

Another issue we’re seeing is around the interpretation of documents completed before the Act came into effect on 12 March 2018. For example, many aged care providers previously allowed family members of care recipients without decision making capacity to complete forms saying the care recipient wasn’t to be resuscitated. The status of such documents needs to be carefully reviewed, because, under the new Act, the person or persons who completed those documents might not be the care recipient’s medical treatment decision maker. If this is the case, the approved provider may not be able to rely on the document because an ACD made prior to 12 March 2018 does not have the same effect as one made under the new Act.  

As such, we recommend approved providers satisfy themselves that those purporting to make decisions on behalf of a care recipient without decision-making capacity have the proper legal authority to do so.

Advance care plans for care recipients without capacity are commonly made with the guidance of the person’s family or power of attorney. While the language is similar, ACDs are different to advance care plans and cannot be made on behalf of a person by a medical treatment decision maker. This means that complying with ACDs will really only be relevant for residents who have or had capacity after 12 March 2018.

Russell Kennedy has been assisting providers to review their policy documents to reflect the changes and has developed some template policies.

If you would like assistance reviewing your policies and procedures, please contact Anita Courtney, Principal, on 03 8602 7211, Laura Kerridge, Lawyer on 03 8602 7214 or Felicity Iredale, Lawyer on 03 8602 7254.

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