Overview of the changes

The Act introduces a new scheme for creating binding advanced care directives (“ACDs”) and appointing medical treatment decision makers and support persons.

ACDs will give a person the ability to refuse or consent to a range of medical treatments – including CPR. For the first time, health practitioners registered with AHPRA as well as paramedics, will be required to comply with an ACD subject to certain limitations.

Aged care providers will need to review their procedures and policies and provide training to staff prior to 12 March 2018 to mitigate their risks.

How will the changes introduced by the Act affect Victorian aged care providers?

The Act has a number of important implications for aged care providers. Residential and home care providers will need to consider the impact of the new rules in relation to ACDs. In particular:

  • Nurses and other health professionals will be statutorily obliged to comply with an ACD subject to certain limitations. This may affect the emergency response of a provider, particularly in relation to the administration of CPR.
  • Providers will be required to take reasonable steps to ascertain the existence of a consumer’s ACD, such as asking for a copy of an ACD on admission to a facility, or on commencement of home care package.

One of the key challenges for providers will be balancing the different rules that apply for health practitioner staff, versus non-health practitioner staff in relation to ACDs. The new regime means providers will need to have policies which reflect the differing responsibilities and protections that apply to health practitioners, such as nurses versus non-health practitioner staff (eg personal carers). In particular:

  • If staff are “health practitioners”, they will be bound by an ACD, and must take reasonable steps to ascertain whether a care recipient has an ACD (except in emergency situations, where they are not required to take these reasonable steps). Failure to do so may constitute unprofessional conduct within the meaning of the Health Practitioner National Law.
  • If staff are not “health practitioners”, they are not bound by an ACD, nor are they required to take reasonable steps to ascertain whether a care recipient has an ACD. However, they can still be civilly liable if they knowingly administer treatment (eg CPR) to a consumer contrary to an ACD. At the same time, those staff will not enjoy the same protections in the Act if they act in good faith on the basis of an ACD.

ACDs aside, aged care providers will also need to be aware of the new regime of medical treatment decision makers. Under the new Act, medical powers of attorney, and guardians with health care decision making powers will be replaced with “medical treatment decision makers”. In addition, the old "person responsible" regime has been replaced by a “medical treatment decision maker” hierarchy which includes any appointed medical treatment decision maker followed by certain family members who are in a “close and continuing relationship” with the person. Significantly, the class of potential “medical treatment decision makers” is narrower than that under the “person responsible” regime.

While the Act seeks to preserve existing appointments as much as possible (eg medical powers of attorney will become the “medical treatment decision maker”), providers will need to clarify who is the current medical treatment decision maker in place for each of their consumers following the changes. There are some complexities arising from the changes that have the potential to cause distress and confusion among consumers’ family members about who the person is who can make medical treatment decisions.

What can aged care providers do to mitigate risk?

Aged care providers will need to review their procedures and policies and provide training to staff prior to 12 March 2018 to ensure they are prepared for the new changes. This includes:

  • Requiring care recipients to provide copies of any existing ACDs, or otherwise warrant that they do not have an existing ACD;
  • Revising internal policies and procedures for recognising ACDs and applying ACDs in clinical care contexts;
  • Providing updates and training to staff addressing the different responsibilities of health;
  • Setting up systems to ensure any health practitioner employees are made aware of any ACDs, particularly those that may affect an emergency response;
  • Reviewing privacy policies and information collection statements to expressly reflect that your organisation may request and share information about ACDs; and
  • Determining who each consumer’s medical treatment decision maker will be following the changes.