Since March 2018, the appointment of a medical treatment decision-maker has replaced the enduring power of attorney (medical treatment). The appointment of a medical treatment decision-maker works in conjunction with the new advance care directive, although it is not necessary to have both.59 In addition, a person may appoint a support person to communicate their medical treatment decisions and represent their interests in relation to medical treatment.
12.1 Advance care directive
An advance care directive is a document that sets out a person’s binding instructions or preferences and values about their medical treatment, in the event that the person no longer has decision-making capacity for that medical treatment.60
It may record general statements about a person’s preferences and values to guide their medical treatment decision maker (values directive) and/or instruct their health practitioners about medical treatments they want or do not want in the future (instructional directive).
There is no prescribed form for an advance care directive. However, the Department of Health has developed templates which individuals can use to assist in their preparation. For example, an Advance care directive for adults form and an Advance care directive for young people under 18 years of age form is accessible on the Department of Health’s website.
12.1.1 Witnessing requirements
- Two adult witnesses, one of whom must be a medical practitioner.
- Each witness must sign and date the document in the presence of the person giving the advance care directive and of each other.
- Neither witness can be the appointed medical treatment decision-maker for the person giving the advance care directive.
- In the case of an advance care directive by a child, a psychologist with prescribed training and experience may witness the advance care directive as an alternative to a medical practitioner
Each witness must certify that, at the time of signing the directive the person appeared to:
- have decision-making capacity in relation to each statement in the directive; and
- freely and voluntarily sign the document; and
- understand the nature and effect of each statement in the directive.
12.1.2 Amendment or revocation
If the person who made the advanced care directive still has decision-making capacity, an advanced care directive may be revoked by making a later advanced care directive or by following the same procedure used for creating an advanced care directive.
An amendment must be made on the face of the original advance care directive. The witnessing requirements are the same.
12.2 Appointment of Medical Treatment decision-maker
An adult who has decision-making capacity may appoint another adult (or more than one other adult) as the person’s medical treatment decision maker, either at the same time as an advance care directive is given or at any other time.
A medical treatment decision-maker has authority to make decisions about the person’s medical treatment when the person is unable to make such decisions themselves. For example, whether/when to perform surgery, whether to have a flu shot, whether to turn off life support. Medical treatment includes medical research and dental treatment.
A medical treatment decision-maker must make the medical treatment decision that they reasonably believe is the decision that the person would have made if they had decision-making capacity to make the decision. This also involves considering the person’s advance care directive if there is one.
12.2.1 Witnessing requirements
- Two adult witnesses, one of whom must be an authorised witness (this includes a JP).
- Each witness must sign and date the document in the presence of the person appointing the medical treatment decision maker and of each other.
- Neither witness can be the appointed medical treatment decision-maker.
Each witness must certify at the time of signing the directive the person appeared to:
- have decision-making capacity; and
- understand the nature and consequences of making the appointment.
The person appointed as a medical decision maker must sign an acceptance of the appointment on the same document (but not necessarily at the same time) in the presence of an adult witness. This witness does not have to be an authorised witness.
12.2.2 Revocation of appointment
If the person who made the medical treatment decision maker appointment still has decision-making capacity, the appointment may be revoked by making a later appointment or by following the same procedure used for creating the medical treatment decision-maker appointment.
12.3 Appointment of support person
A person (including a child) may appoint another person to act as their support person.61 Only one person may be appointed as a support person at a time. The role of a support person is to support the principal to make, communicate and give effect to their medical treatment decisions and to represent the person’s interests about their medical treatment, including when they do not have capacity to make decisions about their treatment. The support person does not have the power to make a person’s treatment decisions.
12.3.1 Witnessing requirements
The witnessing requirements are the same as for the appointment of a medical treatment decision-maker.
12.3.2 Revocation
The requirements to revoke the appointment of a support person are the same as for the appointment of a medical treatment decision-maker.
Footnotes
[59] Medical Treatment Planning and Decisions Act 2016
[60] Part 2, Medical Treatment Planning and Decisions Act 2016
[61] Part 3, Division 3, Medical Treatment Planning and Decisions Act 2016
Updated