Victoria’s inquiry into end of life choices leads to significant legislative change

A recent Parliamentary inquiry into end of life choices challenged Victoria’s current position on assisted dying. The Inquiry into End of Life Choices report recommended introducing laws to allow assisted death in certain circumstances, and allow people to give binding instructions regarding their future medical treatment.

Following on from the report, the Government has released the Medical Treatment Planning and Decisions Bill that will recognise Advance Care Directives in legislation for the first time in Victoria, giving people greater powers to set directives about future medical treatment, including end-of-life care and wishes.

The current position regarding future medical treatment decisions

At present, a patient can only make a legally binding statement regarding future medical treatment in relation to a pre-existing condition, and after certain checks are completed. Further, current forms of Advance Care Directives are not binding, only give guidance regarding future treatment, and allow treatment to be administered even if it against the wishes of the person set out in the Advance Care Directives.

This left many people with a lack of certainty that their wishes would be followed.

Victoria should legalise assisted dying

The report made many recommendations, including allowing an adult with decision making capacity, who is suffering from a serious and incurable condition, to be provided assistance to die in certain circumstances.

While the Bill implements a number of the recommendations from the report, it does not adopt the assisted dying recommendations.

Medical Treatment Planning and Decisions Bill 2016

The Bill intends to make it clear and simple for health professionals to know a patient’s medical treatment preferences and respect their end-of-life care choices, including by:

  • allowing for an instructional directive (which is an express statement regarding a medical treatment decision, such as a statement regarding the refusal of certain treatment); and
  • allowing for a values directive (a statement regarding preferences of values to be considered when medical treatment decisions are made on their behalf, such as not receiving medical treatment to prolong life).

The Bill also allows for the appointment of substitute decision makers (the equivalent of an agent under the existing Enduring Power of Attorney (Medical Treatment), and empowers these decision makers to be able to refuse medical treatment (this will replace the existing arrangements under the Medical Treatment Act).

Importantly however, any existing Enduring Power of Attorney (Medical Treatment) or refusal of treatment certificates will continue to have effect, despite the Bill.

Impact on Health Professionals

Health practitioners will also be affected by the proposed changes, including:

  • a requirement to determine if an Advance Care Directive exists before any treatment is administered; and
  • only being able to refuse to follow the Advanced Care Directive where:
    • circumstances have changed and that Directive is no longer consistent with the preferences or values; and
    • the delay caused in applying to VCAT to change the Advanced Care Directive would cause a significant deterioration of a condition.

Health practitioners are also prohibited from administering medical treatment to save a person’s life or prevent serious damage where that treatment has been refused under an Advanced Care Directive.

Next steps

While these changes are in their formative stages, it provides a good opportunity for your clients to review and discuss their Enduring Powers of Attorney and Advanced Care Plans.