Decision-making laws in Victoria

1. An Introduction Decision-making lawsin Victoria

2. Presenter • Medical Decisions Support Officer • Office of the Public Advocate • Sharon Cutrale 02

3. About this presentation • This presentation provides an overview of: • Medical Treatment Planning and Decisions Act 2016 • Powers of Attorney Act 2014 • Guardianship and Administration Act 1986 • In respect to: • Decision-making capacity • Supported decision-making • Substitute decision-making

4. Decision-making capacity • A person has decision-making capacity to make a decision if they 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 the decision • use or weigh that information as part of the process of making the decision • communicate their decision in some way, including by speech gesture or other means.

5. Moving away from substituted decision-making Substituted decision-making Supported decision-making Medical Treatment Decision Maker Enduring Power of Attorney Guardianship and/or Administration order Support person Supportive Attorney Nominated Person

6. Shift away from ‘best interests’ • In Victoria, there is a significant shift away from a ‘best interests’ model of decision-making in favour of promoting the will, values and preferences of individuals and there are a number of laws which enable people with cognitive disabilities to appoint or nominate someone to assist them to make decisions. • Laws operate in Victoria which allow people with cognitive disabilities to appoint a decision supporter: • Medical Treatment Planning and Decisions Act 2016 • Powers of Attorney Act 2014 • Mental Health Act 2014

7. Support & capacity • The law says if a person is able to make a decision with support, then they have decision-making capacity for the decision • Support may include: • Additional time to make the decision • Someone who helps them by discussing the decision • Someone to assist them to communicate the decision • Technology that assists them • Information explained in an appropriate way, using modified language or visual aids

8. Legal roles for decision supporters • Supported decision-making is assisting a person with disability to make their own decisions, make choices about their life and exercise control over things that are important to them • (NSW Family & Community Services, 2015) • Roles for decision supporters in Victoria: • Support Person (Medical Treatment Planning and Decisions Act 2016) • Supportive Attorney(Powers of Attorney Act 2014) • Nominated Person (Mental Health Act 2014)

9. Medical Treatment Planning And Decisions Act 2016

10. What people can do under the new Act • In Victoria, since 12 March 2018, adults and children can: • make an advance care directive • appoint a support person for their medical treatment decisions. • Adults can also appoint a medical treatment decision maker.

11. Advance care directive • An advance care directive is a legal document that sets out a person’s: • preferences and values (values directive) • binding instructions (instructional directive) • in relation to the medical treatment of that person in the event that the person does not have decision-making capacity to consent to or refuse the medical treatment they are offered.

12. Values directive • A values directive is a statement of a person’s preferences and values as the basis on which they would like any medical treatment decisions to be made on their behalf. • It must be considered by their medical treatment decision maker.

13. Instructional directive • An instructional directive is a statement of a person’s medical treatment decision that is directed to the patient’s health practitioner(s). • It takes effect as if the person who made it has consented to, or refused, the commencement or continuation of the medical treatment.

14. Medical treatment decision makers • A person can appoint a medical treatment decision maker: • with the authority to make medical treatment decisions on their behalf if they do not have capacity to make the decision(s) • to must make the decision that they reasonably believe is the one that the patient would have made.

15. Support person • This is a new role under the new Act. • Role of a support person is to: • support the patient to make, communicate, and give effect to their medical treatment decisions • represent the interests of the patient in respect of the patient's medical treatment, including when the patient does not have decision-making capacity in relation tosuch decisions. • Can access health information about the patient that is relevant to a medical treatment decision, for example the patient’s medical record.

16. Legal requirements and forms • There are legal requirements for making an advance care directive and appointing a medical decision maker or support person. • Forms are available from: • the Medical Treatment Planning and Decisions Act page of the Health Victoria website • the advance care planning page of the Better Health Channel website • the Office of the Public Advocate (OPA) website and in the OPA Take Control booklet.

17. Medical consent and the new Act

18. Medical consent and the MTPDA MTPDA2018 Introduction • As has always been, health practitioners need a patient’s consent before providing medical treatment, unless they are providing emergency treatment. • The new Act sets out the medical consent process for a patient who does not have decision-making capacity to make the medical treatment decision.

19. Health practitioners The Act applies to registered health practitioners in all the following professions: • medical • dental • physiotherapy • occupational therapy • chiropractic • pharmacy • optometry • podiatry • nursing and midwifery • medical radiation practice • psychology • osteopathy • Chinese medicine • Aboriginal and Torres Strait Islander health practice The Act also applies to paramedics and non-emergency patient transport staff.

20. Definition of medical treatment Treatment by a health practitioner for one or more of the purposeslisted below, andfor one of the forms of treatment listed below. • Purpose of treatment • diagnosing a physical or mental condition • preventing disease • restoring or replacing bodily function in the face of disease or injury • improving comfort and quality of life. • Form of treatment • treatment with physical or surgical therapy • treatment for mental illness • treatment with • prescription pharmaceuticals • an approved medicinal cannabis product • dental treatment • palliative care. Note: The Mental Health Act 2014 applies where a person is a compulsory patient under that Act. 01

21. Emergency treatment • Medical treatment (or medical research procedure) that is necessary, as a matter of urgency to: • save the patient’s life or • prevent serious damage to the patient’s health or • prevent the patient from suffering or continuing to suffer significant pain or distress). • Consent is not needed for emergency treatment. • However, if the health practitioner is aware that the patient has refused the treatment in an instructional directive, they must not proceed with the treatment.

22. Obtaining a medical treatment decision The Act sets out three steps for health practitioners to follow when a patient does not have decision-making capacity to make their own medical treatment decision.

23. Summary of steps for health practitioners May administer treatment without consent. Advance care directive with a relevant instructional directive? Yes Medical treatment decision maker? Routine treatment? No No Significant treatment? Yes Yes Yes Give effect to relevant instructional directive. Decision is made by the patient’s medical treatment decision maker. Decision is made by the Public Advocate.

24. Powers of Attorney Act 2014

25. Powers of attorney • Definition • a legal document where an adult with decision-making capacity (the principal) gives another adult with capacity (the attorney) the power to make decisions for them or support them to make their own decisions. • powers of attorney operate while the principal is alive, but wants or needs someone to make decisions for them. • when the principal dies, the authority of the attorney ceases. • every state and territory in Australia has its own laws for • powers of attorney.

26. Powers of attorney laws in Victoria • Power of Attorney Act 2014: • General non-enduring power of attorney • Enduring power of attorney for personal matters and/or financial matters • Supportive attorney for personal and/or financial matters

27. Supportive attorney appointments • Promotes rights, autonomy and dignity • Supports the principal in making their own decisions about: • Personal matter or • Financial matter or • Other matters specified in the appointment • 3 powers (all or any): • Information power • Communication power • Power to give effect to decisions • Note a supportive attorney appointment has no effect for any period during which the principal does not have capacity

28. Guardianship and Administration Act 1986

29. Victorian Civil & Administrative Tribunal (VCAT) VCAT - Guardianship ListMission Protect the personal and financial affairs of adults with a disability who are unable to make reasonable decisions about their person, circumstances or affairs. www.vcat.vic.gov.au

30. Role of Guardianship list of VCAT • VCAT can hear applications and make orders to: • appoint guardians and/or administrators for up to 3 years • safeguard the operation of enduring powers of attorney • and supportive attorney appointments • consent to special procedures • Who can make an application? • Any person can lodge an application for an order if they • have concerns regarding decisions being made by or for • a person with a disability • Note: VCAT can also make orders in respect to the Medical Treatment Planning and Decisions Act 2016

31. Guardianship and Administration Act 1986 APPLICANT Advice service or website Application process: VCAT Investigation • Administration • Private administrator • State Trustees • Guardianship • Private guardian • Public Advocate ORDER Limited to: - health care - accommodation - access to persons - access to services Or plenary (all) All financial and legal decisions

32. Guardianship and Administration • When is a guardian / administrator needed? • When the represented person: • Is 18 years or over and has a disability • Cannot make reasonable judgments because of the disability • Needs to make a decision and there is no less restrictive • alternative than appointing a guardian/ administrator • Needs someone to act in their best interests

33. Guardianship • A guardian will: • be an advocate • protect from abuse, exploitation and neglect • respect family relationships, culture & confidentiality • consider wishes & the lest restrictive option • consult with anyone who has a real interest in well being • Who can be a guardian? • A relative or friend of the person • will act in the person’s best interest • no conflict of interests • is available and accessible • is familiar with values and beliefs • Public Advocate can be appointed as guardian last resort

34. VCAT disability jurisdiction • Guardianship and Administration Act 1986 • Powers of Attorney Act 2014 • Medical Treatment Act 1988 • Instruments Act 1958 • Disability Act 2006 • Medical Treatment Planning and Decisions Act 2016 • Victorian Civil and Administrative Tribunal Act 1998.

35. For more information • The Medical Treatment Planning and Decisions Act page of the Health Victoria website • www2.health.vic.gov.au • The Office of the Public Advocate website • www.publicadvocate.vic.gov.au