What happens if I can’t make medical decisions for myself?

If you are unable to make a decision on your medical treatment, a health practitioner may need the consent of your Medical Treatment Decision Maker (MTDM) before they provide treatment.

Appointing a person to make medical decisions for you can be just as important as appointing an attorney to act for financial and personal matters. In Victoria, unlike some other Australian States, a MTDM is appointed under a separate document to that of a financial or personal attorney. The relevant legislation is the Medical Treatment Planning and Decisions Act 2016 (Vic) (Act).

As part of an estate planning matter, we talk to our clients about the importance of having the right people making decisions for them if they were to lose capacity – this includes consenting to or refusing medical treatment. Here are the 5 most commonly asked questions on matters relating to medical decisions.

1. Who can I appoint as my Medical Treatment Decision Maker?

You can appoint an adult person to make medical decisions for you provided you have decision making capacity at the time of the appointment. You may decide to appoint one of your family members, another close relative or a friend. Your MTDM should be someone who you trust, can communicate effectively, and who is willing to accept the responsibilities of the role. Your MDTM does not need to be the same person you appoint as your financial and personal attorney.

Only one person can act as your MTDM at any time. If you want to appoint more than one person to act, the decision-maker is the first person listed who is available, willing, and able to make the decision at the relevant time. 

The appointment of a MTDM must be made in writing in the prescribed form. It must be executed and witnessed in accordance with the requirements of the Act. A person appointed as your MTDM must also accept their appointment.

2. Who will make medical decisions for me if I do not appoint a decision-maker, or my appointed decision-maker is not willing and able to make the medical treatment decision for me?

If you do not appoint a MTDM, or your appointee is not available and willing and able to make a decision for you, then a guardian appointed by the Victorian Civil and Administrative Tribunal (VCAT) with the power to make medical decisions can act for you.

If there is no VCAT appointed guardian, your MTDM will be the first of the following who is in a close and continuing relationship with you:

  • spouse or domestic partner;
  • primary carer;
  • oldest available adult child;
  • oldest parent; and
  • oldest adult sibling.

3. What types of decisions can my MTDM make?

A MTDM must make the medical treatment decision that they believe is the decision you would make if you had decision-making capacity, subject to any conditions or limitations specified in a MTDM document. This includes consenting to treatment on your behalf, or refusing treatment. Your MTDM must consider:

  • Any valid and relevant values directive;
  • Any other relevant preferences that you have expressed;
  • The likely effects and consequences of the medical treatment; and
  • Whether there are any alternatives, including refusing medical treatment.

There are some exceptions to consent. Consent is not required from a health practitioner in the event of an emergency to save your life, prevent serious damage to your health or prevent you from suffering significant pain or distress. 

A MTDM also cannot:

  • Make a decision about palliative care, but can advocate for your preferences and values to be taken into account; and
  • Make decisions with respect to voluntary assisted dying.

4. Can I change who I appoint as my decision-maker?

If you have capacity and you decide that one or more of the people you have appointed as your decision maker is no longer appropriate, you can revoke the appointment of your MTDM. You can do this by:

  • Completing a revocation document which must be in the prescribed form; or
  • Having a subsequent MTDM document in place, as a later document will revoke an earlier one.

VCAT also has the power to revoke an appointment of a MTDM. 

If you revoke your MTDM, you should inform your MTDM and any people who know of the appointment, such as your health practitioner or hospital. 

5. Can I provide directions about medical treatment I consent to and refuse?

In Victoria, you can make an advance care directive. This is a document where you can set out your binding instructions or preferences and values in relation to your medical treatment. 

You can give an advance care directive if:

  • You have decision making capacity in relation to each statement in the directive; and
  • You understand the nature and effect of each statement in the directive.

An advance care directive must comply with certain formal requirements. To be binding, the directive must be in writing, contain certain particulars, be signed by the person giving it and witnessed by two adults, one of whom must be a medical practitioner.

Some of the matters which you can address in an advance care directive are:

  • What matters most to you in your life?
  • Do you have any unacceptable outcomes of medical treatment after illness or injury?
  • What type of medical treatment do you consent to/refuse?
  • Whether you would like the document to expire on a particular date.

Any statement about palliative care in an advance care directive is regarded as a values directive. You cannot provide directions on voluntary assisted dying in an advance care directive.

You can amend or revoke an existing advance care directive, or make a new advance care directive should you change your mind or wish to record further directions.

How we can help

Appointing a MTDM allows you to control who will make medical decisions for you if you are not able to make them yourself. Your estate planning should incorporate a discussion on medical treatment decisions and the preparation of documentation to appoint a decision-maker. We can advise on, and prepare a MTDM as part of attending your estate planning.

Contact us

Please contact us for more detailed and tailored help.

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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.