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The new Medical Treatment Act - what do Victorian aged care providers need to know?

Anita Courtney, Victor Harcourt, Laura Kerridge

On 2 February 2018 Russell Kennedy published an article on the introduction of the Medical Treatment Planning and Decisions Act 2016 (Vic) (“Act”) which commences on 12 March 2018.

In this article, we’ll explain what Victorian aged care providers need to know about the impact of the new Act.

What are the changes?

The Act introduces a new scheme for creating binding advance care directives (“ACDs”) and appointing medical treatment decision-makers and support persons.

ACDs will enable people to refuse or consent to a range of medical treatments in advance - including CPR and the administration of medication.

It was formerly the case, under the Medical Treatment Act 1988 (Vic), that only doctors were required to comply with “refusal of treatment” certificates.

The new Act will cast the net much wider – requiring:

  • health practitioners registered with AHPRA; 
  • paramedics; and
  • non-emergency patient transport workers and licence holders

to comply with ACDs, subject to certain limitations, which we will discuss below.

How will the changes introduced by the Act affect Victorian aged care providers?

What’s the primary impact?

The primary impact of the Act on Victorian aged care providers will be that, from 12 March 2018, Victorian aged care providers will have:

  • staff to whom the new Act does apply (primarily nurses, but also physiotherapists and other AHPRA registered staff); and
  • staff to whom the new Act does not apply.

For staff to whom the new Act does apply:

  • if they are aware of a valid ACD, they must give effect to it as far as reasonably practicable (failing to do so will constitute unprofessional conduct);
  • before administering medical treatment to a person in a non-emergency situation, they must make reasonable efforts to ascertain if that person has either or both an ACD or a medical treatment decision-maker;
  • in an emergency situation they can administer medical treatment, unless they are aware of an ACD refusing that treatment or there is an ACD readily available to them; and
  • if they administer or fail to administer treatment to a person, without negligence and believing on reasonable grounds that they have complied with their obligations and that any ACD they have relied on is valid, they will not be guilty of an offence or liable for unprofessional conduct/professional misconduct, in any civil proceeding or for contravention of any code of conduct.

For staff to whom the new Act does not apply, common law ‘tort’ principles will continue in force.  This means that:

  • in both emergency and non-emergency situations, if they are aware that a person has refused consent to certain medical treatment in an ACD, they must act in accordance with that person’s refusal (for example, if a personal care attendant is aware of an ACD refusing consent to CPR in all circumstances, the personal care attendant must comply with that ACD);
  • in an emergency (i.e. when the person is incapacitated and cannot consent to medical treatment), they can administer medical treatment only if they are not aware of any ACD refusing consent to certain medical treatment (for example, they are not aware of any ACD refusing consent to CPR);
  • if they fail to act in accordance with an ACD refusing treatment (for example, an ACD refusing consent to CPR), they could be liable in the tort of ‘trespass to the person’; and
  • they are not required to try to ascertain the existence of an ACD or a medical treatment decision-maker in any situation.

In short, the new Act imposes greater obligations on those to whom it applies, but also offers them greater protections.  For Victorian aged care providers whose workforces include staff to whom the new Act both does and does not apply, the changes will need to be incorporated into their policies and procedures.  We’ll discuss how Victorian aged care providers can accommodate these changes below.

What’s the secondary impact? 

ACDs aside, Victorian aged care providers will also need to be aware of the new regime of medical treatment decision-makers.  Under the new Act, medical powers of attorney and guardians with health care decision-making powers will be replaced with “medical treatment decision-makers”.  

Further, the old “person responsible” regime will be replaced by a “medical treatment decision‑maker” hierarchy, which includes any appointed medical treatment decision‑maker, followed by certain family members who are in a “close and continuing relationship” with the person.  Significantly, the class of potential “medical treatment decision-makers” is narrower than that under the “person responsible” regime.  

While the Act seeks to preserve existing appointments as much as possible (e.g. medical powers of attorney will become the “medical treatment decision-maker”), Victorian aged care providers will need to clarify who the current medical treatment decision-maker is for each of their care recipients following the changes.  There are some complexities arising from the changes that have the potential to cause distress and confusion among care recipients’ family members about who the person is who can make medical treatment decisions.

What can Victorian aged care providers do to address these impacts?

Victorian aged care providers will need to review their policies and procedures before 12 March 2018. This includes:

  • identifying which staff the new Act does and does not apply to, and making staff aware of same;
  • ensuring staff to whom the new Act does apply have ready access to information about ACDs and medical treatment decision-makers in respect of care recipients they are looking after;
  • ensuring that, to the extent possible, staff to whom the Act does not apply are not placed in positions where they may be compelled to make medical treatment decisions or administer medical treatment (acknowledging that this may be difficult in a home care context);
  • requiring care recipients to provide copies of any existing ACDs, or otherwise warrant that they do not have an existing ACD;
  • revising internal policies and procedures for recognising ACDs and applying ACDs in clinical care contexts;
  • reviewing privacy policies and information collection statements to expressly reflect that your organisation may request and share information about ACDs; and
  • determining who each care recipient’s medical treatment decision-maker will be following the changes. 

How can we help you?

The changes the Act will introduce will have a significant impact on Victorian aged care providers. If you require any assistance ensuring your compliance with the Act, or any other aged care matter, please contact Anita CourtneyVictor Harcourt or Laura Kerridge.

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