The Law Handbook 2024

Chapter 8.5: Guardianship and medical treatment 857 values and preferences. Under the MTPD Act, there are two types of ACDs: 1 An instructional directive; 2 A values directive. An instructional directive An instructional directive: • is a statement in an ACD of a person’s medical treatment decision; and • takes effect as if the person who gave it has consented to medical treatment or has refused the commencement or continuation of medical treatment. An example of an instructional directive is a person refusing cardiopulmonary resuscitation (s 6 MTPD Act). An instructional directive is, with a few exceptions, binding on health practitioners (i.e. health practitioners must follow the instructions expressed in the directive). If a person is making an instructional directive, this must be stated, or it will be presumed that the statement is a values directive. It is important that an instructional directive is clear, unambiguous, and explicitly states in what circumstances the directive applies. For example, a person may not want cardiopulmonary resuscitation where it may be difficult to obtain immediate care, but they do want to be resuscitated during an operation, if required. A values directive A values directive is a statement in an ACD of a person’s preferences and values. Any decisions about medical treatment made on the person’s behalf must be based on these values (s 6 MTPD Act). A values directive is a key way to inform your medical treatment decision-maker of your wishes. ACDs must be witnessed ACDs must be formally witnessed to be valid (ss 16, 17 MTPD Act). ACDs must be witnessed by two people; one witness must be a registered medical practitioner. Both witnesses must certify that the person ‘appeared to understand the nature and effect of each statement in the directive’ (s 17 MTPD Act). Where a child makes an ACD, one witness must be a registered medical practitioner or a psychologist with the prescribed training and experience. Capacity to make an ACD Any person (including a child) can make an ACD if they have the capacity to make decisions. This is defined in section 4 of the MTPD Act. An adult is presumed to have such capacity. Changing an ACD ACDs can be changed, but all amendments must be formally witnessed as per the MTPD Act (ss 16, 17) (see ‘ACDs must be witnessed’, above). A later ACD revokes a former one (s 20 MTPD Act). Format of an ACD There is no set format for an ACD. The Victorian Government Department of Health ( ‘Department of Health (Vic)’ ) has developed a standard form that can be used as an ACD; this is available at www. vic.gov.au/department-of-health) . Disputes about ACDs You can apply to VCAT to determine disputes about: • the meaning or interpretation of an ACD; • the continued applicability of an ACD; • the validity of an ACD; • the decision-making capacity of the person who made an ACD. Medical treatment for a mental illness An ACD can be made about medical treatment for a mental illness. An ACD relating to a person’s mental illness can indicate a person’s values, and their instructions and preferences for treatment. A person can also give informed consent to mental health treatment by way of an instructional directive (s 86 Mental Health & Wellbeing Act 2022 (Vic) ( ‘MH&W Act’ ). However, a person’s instructional directive is not binding if the person becomes subject to compulsory treatment. A psychiatrist treating the person must consider the person’s views and treatment preferences, as outlined in their ACD (s 93 MH&W Act). An ACD is different from the MH Act’s ‘advance statement’. In an advance statement, a person can set out their treatment preferences in the event that they become a compulsory patient.