Medical treatment decision makers

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.

If you have been formally appointed, you are at the top of this list. If more than one person is listed in the appointment form, the first person listed who is reasonably available and willing and able to make the decision is the medical treatment decision maker.

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. 

Health practitioners need a patient’s consent before providing medical treatment.

If the patient does not have the decision-making capacity to consent to the proposed treatment, the health practitioner follows these steps:

1. If the patient has made an advance care directive in which they have consented to or refused the treatment (in an instructional directive), the health practitioner will follow this.
2. If not, the health practitioner will ask you, as the patient’s medical treatment decision maker, to make the medical treatment decision for the patient.

What is medical treatment?

Medical treatment is any of the following treatments by a health practitioner for the purposes of diagnosing a physical or mental condition, preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life:

• treatment with physical or surgical therapy (such as dressing a wound or an operation)
• treatment for mental illness
• treatment with prescription pharmaceuticals
• dental treatment.

The Medical Treatment Planning and Decisions Act says you must make the medical treatment decision that you reasonably believe is the decision that the person would have made, if they had the decision-making capacity to make the decision.

Consider the person's preferences and values

1. If the person has made an advance care directive, consider any valid and relevant values directive. Their values directive records their values and preferences for their medical treatment, and it guides you when you make a decision on their behalf.
2. Consider any other relevant preferences that the person has expressed, and the circumstances in which those preferences were expressed. For example, they may have written down their wishes, or spoken about them to close family members.
3. If you cannot identify any relevant preferences of the person, you must give consideration to the person’s values. They may have expressed their values, or you may be able to infer them from their life.

Consider the proposed medical treatment

You must also consider:

• the likely effects and consequences of the medical treatment, including the effectiveness of the medical treatment
• whether the likely effects and consequences are consistent with the person’s preferences or values
• whether there are any alternatives, that would be more consistent with the person’s preferences or values. (An alternative can include refusing medical treatment).

Consult

In the process of making the decision for the person, you must consult with anyone that you reasonably believe the person would want you to.

Act in good faith and with due diligence

You must act in good faith and with due diligence.

If you cannot find out the person’s preferences or values

If you cannot find out the person’s preferences or values, you need to make a decision that promotes their personal and social wellbeing. In doing this, you need to consider the person’s individuality.

You need to consider the proposed treatment, in the same way as described above. The one difference is that you consider whether the proposed treatment or any alternatives would be better in promoting the personal and social wellbeing of the person, rather than whether it would be more consistent with the person’s preferences or values.

If you are asked to make a medical treatment decision that relates to treatment for mental illness, contact OPA for more information.