Appointing a medical treatment decision maker

You have decision-making capacity if you are able to:

• understand the information relevant to the decision and the effect of the decision
• retain that information to the extent necessary to make that decision
• use or weigh that information as part of the process of making the decision
• communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

Capacity is decision-specific. A person may have capacity for some decisions but not others.

Note:

It is the responsibility of the health practitioner to determine capacity for a specific decision.

The medical treatment decision maker is the first person in the list below who is reasonably available, and willing and able to make the decision:

1. a medical treatment decision maker appointed by the patient
2. a guardian appointed by VCAT to make decisions about medical treatment
3. the first person in the list below who is in a close and continuing relationship with the patient:
   1. the patient's spouse or domestic partner
   2. the patient's primary carer (not a paid service provider)
   3. an adult child of the patient
   4. a parent of the patient
   5. an adult sibling.

If there are two or more relatives who are first on this list, it is the eldest person.

Note: Before the Medical Treatment Planning and Decisions Act commenced in 2018, the patient may have appointed someone to make medical treatment decisions in a medical enduring power of attorney, an enduring power of attorney, or enduring power of guardianship. These appointments are still valid.

Valid appointments made in other Australian states and territories are also recognised. 

Choosing a medical treatment decision maker

If you decide to appoint a person, or people, who will have legal authority to make medical decisions for you, think about what qualities are important to you. For example, you may want someone who:

• is willing to listen to, and act on, your wishes rather than their own
• is trustworthy
• has the skill and time required
• is willing to take on the role with all its responsibilities
• can communicate effectively and is willing to consult with others
• understands and respects your culture and connections with your community.

Whoever you choose should be someone you trust to respect your values and preferences.

You can appoint more than one person, but only one person acts at any one time.

You can download the appointment form, from the Health Vic website

There is a long version and short version of the form.

If you want to appoint more than two medical treatment decision makers, use the long version.

If you cannot physically sign the form, use the form Appointment of medical treatment decision maker for someone signing on your behalf

Witnessing requirements

You need to sign the form in front of two witnesses.

One must be:

• a registered medical practitioner (medical doctor)
• authorised to witness affidavits.

The Department of Justice & Community Safety website has a full list of people who can witness affidavits.

Neither witness can be a person who is being appointed in the document.

If you choose to appoint a medical treatment decision maker, you can set limitations and conditions in the document of appointment.

An appointed medical treatment decision maker has the powers set out in the Act, subject to any limitations or conditions you specify in the document of appointment.

The Act sets out how a medical treatment decision maker must make a medical treatment decision.

When to include limitation or conditions

The Office of the Public Advocate (OPA) does not suggest you would ordinarily need to include limitations or conditions.
OPA provides the following examples so that you can consider if doing so would be relevant to your personal circumstances and preferences.

It could be relevant if:

• You wish to specify that the appointed medical treatment decision maker consult with particular people (noting that a medical treatment decision maker is required by the Act to consult with any person they reasonably believe you would want them to consult with in the circumstances).
• You wish to specify that the person is only empowered to make certain types of decisions. However, if
  the appointed medical treatment decision maker is not empowered to make the decision (and a medical treatment decision needs to be made) whoever else would be your medical treatment decision maker would be empowered by the legislation to make the decision.
• You wish to set an expiry date for an appointed medical treatment decision maker to be in the role. However, if the appointed medical treatment decision maker’s appointment has expired (and a medical treatment decision needs to be made) whoever else would be your medical treatment decision maker would be empowered by the legislation to make the decision.
• You wish to specify that the medical treatment decision maker is to seek advice from the Victorian Civil and Administrative Tribunal (VCAT) in relation to specific medical treatment decisions.

When your medical treatment decision maker is not appointed by you

It is important to understand that while you can set conditions and limitations when you appoint your medical treatment decision maker, you cannot set conditions and limitations in relation to any other type of medical treatment decision maker.

It is possible to express your preferences and values in relation to medical treatment in an advance care directive. If you do this, your medical treatment decision maker must consider your values directive.

Your advance care directive would need to be considered by any medical treatment decision maker, regardless of whether they are:

• your appointed medical treatment decision maker
• a guardian appointed by VCAT to make medical treatment decisions for you or
• your relative or primary carer as described in the Act.

Ending or cancelling a medical treatment decision maker appointment

The appointment of your medical treatment decision maker ends if:

• you revoke (cancel) the appointment (while you have capacity to do so)
• the Victorian Civil and Administrative Tribunal (VCAT) revokes the power
• you die.

You should inform your medical treatment decision maker that their appointment has been revoked. You should also inform people who know of the appointment, such as your doctor or hospital.

Resignation

If your medical treatment decision maker resigns, they must take all reasonable steps to inform the following people they have resigned as medical treatment decision maker:

• the person who appointed them
• any other appointed medical treatment decision maker who was appointed at the same time.

The resignation must be:

• in writing and expressly state an intention to resign
• signed and dated by the appointee
• witnessed by one adult witness.

Below is a checklist with some things to think about before you sign. It is not a complete list, but is to help you think carefully before you sign.

If there is a question you do not feel able to answer, you may wish to get more information.

☐ Do you know what happens if you do not appoint a medical treatment decision maker — do you know who, by law, would be able to make decisions for you?

☐ Do you know what types of medical treatment decisions your medical treatment decision maker could make?