The Law Handbook 2024

858 Section 8: Disability, mental illness and the law Medical treatment decision-makers Types of medical treatment decision-makers There are two types of medical treatment decision- maker ( MTDM ): 1 those who are appointed; 2 those who have a close and continuing relationship with the person. A child’s MTDM is their parent or guardian or another person who has parental responsibility for the child, who is also reasonably available, willing and able to make the decision (s 55 MTPD Act). Appointed medical treatment decision-makers The MTPD Act permits an adult to appoint one or more MTDM. The first MTDM on a person’s list is the first one called upon. If that person is not available, willing and able, the second MTDM on the list is called, and so on. People who were previously appointed as medical attorneys, enduring guardians or attorneys for personal matters (before 12 March 2018) are validly appointed MTDMs; however, their powers are only as extensive as those set out in the original appointment (see ss 102–103 MTPD Act). Attorneys for personal matters who were appointed after 12 March 2018 are not authorised to be MTDMs because after that date it is only possible to appoint MTDMs directly. To appoint a MTDM, a person must have decision-making capacity. Adults are presumed to have such capacity. To ensure an appointment of a MTDM is valid, the MTPD Act’s formal witnessing requirements must be met (s 28 MTPD Act). A MTDM must accept their appointment before the role can be exercised. Accepting the role involves committing to undertakings about how they will exercise their obligations (s 29 MTPD Act). An appointed MTDM may resign; they must take all reasonable steps to advise the person and any other appointees of their resignation (s 39 MTPD Act). For more information about appointing a MTDM, including the form of appointment, visit OPA’s website (www.publicadvocate.vic.gov.au) . Other medical treatment decision-makers If a person does not have an appointed MTDM who is available, willing and able to consent to or refuse medical treatment, the MTPD Act has a list of candidates who can perform the role of the MTDM: • a guardian appointed by VCAT who has the power to make decisions about medical treatment; • the person’s spouse or domestic partner; • the person’s primary carer; • the first of the following people – if more than one person is available, the oldest of those people: – the person’s adult child, – the person’s parent, – the person’s adult sibling. If there is no-one, and the treatment is ‘significant treatment’ (defined in s 3 MTPD Act), the Public Advocate must make the decision (s 63 MTPD Act). This system of substitute decision-making does not apply to people receiving compulsory treatment for a mental illness (s 48 MTPD Act). Making medical treatment decisions Before a health practitioner administers medical treatment to a person who does not have decision- making capacity, they must ascertain if the person has an ACD and/or a MTDM (s 50 MTPD Act). If it is an emergency situation, the health practitioner only has to consider an ACD if it is readily available (s 53 MTPD Act). When a MTDM is engaged to make a decision about medical treatment, the MTPD Act (s 61) sets out what the MTDM must consider and the order in which these factors should be considered. The first consideration is the values directive. The second consideration is if there are any other relevant preferences the person has expressed, and the circumstances in which they were expressed. If the MTDM cannot identify any of the person’s preferences, the MTDM must consider the person’s values expressed by ways other than a values directive, or values inferred from the person’s life. If the MTDM is still unable to ascertain or establish the person’s values, the MTDM is to make a decision that promotes the person’s personal and social wellbeing, taking into account their individuality. Alongside this process, the MTDM must consider the likely effects of the treatment, its likely