Interpreting an instructional directive
An instructional directive in an advance care directive made in accordance with the Medical Treatment Planning and Decisions Act 2016 sets out a person’s binding instructions.
It is directed to the person's health practitioners.
Below are some things to keep in mind when interpreting an instructional directive.
Any of the following are considered a values directive, rather than a binding instruction:
- Any statement that is not expressly identified on the face of the document as an instructional directive .
- A statement that is of unclear or uncertain application in relation to particular circumstances, but that is still indicative of the patient’s preferences and values to those circumstances.
- A statement about palliative care.
- Any statement purporting to consent to a special medical procedures.
A person cannot include any statement in their instructional directive that:
- is unlawful or would require an unlawful act to be performed
- would, if given effect to, cause you to contravene a professional standard or code of conduct.
If a person has included such a statement, it is void.
Statements about medical treatment
Unless the patient has stated otherwise in their instructional directive, a reference to particular medical treatment includes a reference to any other medical treatment that is:
- of substantially the same kind
- only distinguishable on technical grounds not likley to be understood or appreciated by the patient when they made their instructional directive.
The patient may have included statements about:
- medical treatment to be provided in a particular instance that they consent to or refuse
- a course of medical treatment to be provided over a period of time that they consent to or refuse
- one or more forms of medical treatment that they consent to or refuse.
The patient may have included a statement that they consent to or refuse generally all medical treatment.
The statements may also be about a medical research procedure.
Applications to VCAT
A health practitioner may apply to the Victorian Civil and Administrative Tribunal (VCAT) for directions or an advisory opinion on any matter or question relating to an advance care directive or the medical treatment of a person.
Among other things, VCAT can make orders in relation to:
- the validity of an advance care directive
- whether a statement in an advance care directive is still applicable.
When a health practitioner can refuse to comply with an instructional directive
A health practitioner should make an application to VCAT if they believe:
- circumstances have changed since the patient made their instructional directive and
- this means that the practical effect of the instructional directive would no longer be consistent with their preferences and values.
If a health practitioner reasonably believes that the delay in making the application would result in a significant deterioration of the patient’s condition, they may refuse to comply with the instructional directive.
This means the patient’s medical treatment decision maker (or the Public Advocate) makes the decision, unless emergency treatment is required.