Medical Law Tutorial Student Notes - Consent.pdf

MONASH MEDICAL LAW TUTORIAL NOTES: CONSENT TO MEDICAL TREATMENT FOR ADULT PATIENTS INCLUDING WHO LACK DECISION MAKING CAPACITY AND SUBSTITUTE DECISION MAKERS Disclaimer: Please note that these teaching materials state the relevant law in a general manner only and are not intended as a substitute for...

MONASH MEDICAL LAW TUTORIAL NOTES: CONSENT TO MEDICAL TREATMENT FOR ADULT PATIENTS INCLUDING WHO LACK DECISION MAKING CAPACITY AND SUBSTITUTE DECISION MAKERS Disclaimer: Please note that these teaching materials state the relevant law in a general manner only and are not intended as a substitute for legal advice in a particular case or clinical scenario. Contents MONASH MEDICAL LAW TUTORIAL NOTES: CONSENT TO MEDICAL TREATMENT FOR ADULT PATIENTS INCLUDING WHO LACK DECISION MAKING CAPACITY AND SUBSTITUTE DECISION MAKERS .................................................................................................................................................. 1 1. OBJECTIVES ................................................................................................................................. 2 2. INTRODUCTION ........................................................................................................................... 3 3. PRINCIPLES TO GUIDE DECISION MAKING .................................................................................. 3 4. MEDICAL TREATMENT AS DEFINED BY THE MEDICAL TREATMENT PLANNING AND DECISIONS ACT 2016 ............................................................................................................................................. 4 5. DECISION MAKING CAPACITY ..................................................................................................... 5 The test for decision making capacity............................................................................................. 5 Referral for specialist assessment................................................................................................... 5 Second Opinions and challenging a decision making capacity outcome ........................................ 5 6. APPOINTED MEDICAL TREATMENT DECISION MAKERS.............................................................. 5 Appointing a medical treatment decision maker ........................................................................... 6 The role of a medical treatment decision maker............................................................................ 6 Preferences, values and personal and social wellbeing – the way a medical treatment decision maker should come to a decision ................................................................................................... 7 7. MEDICAL TREATMENT DECISION MAKING ................................................................................. 7 Medical Treatment decisions .......................................................................................................... 7 Reasonable efforts .......................................................................................................................... 8 Process for medical treatment decisions makers to make a decision when there is an advance care directive and a medical treatment decision maker ................................................................ 8 When there is no relevant instructional directive, but a valid values directive ............................. 9 Hierarchy of medical treatment decision makers........................................................................... 9 Process if there is no advance care directive and no medical treatment decision maker ........... 10 Emergency medical treatment...................................................................................................... 11 Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. Palliative care ................................................................................................................................ 11 8. ADVANCE CARE DIRECTIVES ..................................................................................................... 11 Types of advance care directives .................................................................................................. 12 Making advance care directives.................................................................................................... 12 The medical practitioner’s role in witnessing an advance care directive ..................................... 12 Amending or revoking an advance care directive......................................................................... 13 applying an advance care directive............................................................................................... 13 Choosing not to apply an advance care directive ......................................................................... 14 Conflict among family members ................................................................................................... 14 9. SUPPORT PERSONS ................................................................................................................... 14 Appointing a support person ........................................................................................................ 14 The role of a support person ........................................................................................................ 15 A Support person in a clinical context .......................................................................................... 15 10. DISPUTE RESOLUTION ........................................................................................................... 15 Applications to the Victorian Civil and Administrative Tribunal ................................................... 16 Grounds for challenging a medical treatment decision maker .................................................... 16 VCAT hearings ............................................................................................................................... 16 11. MEDICAL RESEARCH .............................................................................................................. 17 12. INTERSTATE APPOINTMENTS AND DOCUMENTS ................................................................. 17 13. APPOINTMENTS MADE PURSUANT TO THE PREVIOUS LAWS .............................................. 17 14. CRIMINAL OFFENCES............................................................................................................. 17 15. CASE SCENARIOS FOR DISCUSSION ....................................................................................... 18 1. OBJECTIVES On completion of this tutorial students should: • • • Have a deeper understanding of the clinical aspects of capacity determination and the ability to provide consent. Understand the operation and effect of Victorian consent legislation with particular reference to: o Medical treatment decisions o Medical treatment decision makers and their roles o Advanced care directives o The role of support persons o the legal powers and responsibilities of substitute decision-makers. Understand the role of the Office of the Public Advocate (OPA) and the Victorian Civil and Administrative Tribunal (VCAT) in relation to consent issues. Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. If you wish to provide feedback in relation to these materials, or the tutorial in which the content was delivered, please email Program Convenor Jo-Anne Mazzeo on [email protected] 2. INTRODUCTION The Pre-2018 legislative framework for obtaining consent was complex and difficult for health practitioners and the public to navigate. Although there were a number of relevant Acts, there was little a person could do to ensure their preferences were followed in relation to future treatment when they no longer had capacity. The Medical Treatment Planning and Decisions Act 2016 (the Act) ensures medical decision making is more in line with contemporary views and is more consistent with how people make decisions about their health care. The Act came into effect on 12 March 2018. The Act includes some significant changes for health practitioners and for the community. To ensure that there was sufficient time for people to understand the changes, there was a year lead up implementation period to allow time to develop educative materials and give people an opportunity to understand their rights and obligations. The Act provides a clear framework for medical treatment decision making for people who do not have the capacity to make their own decisions. This includes allowing people to make decisions in advance, through an advance care directive, about medical treatment they do or do not want in future if they do not have decision-making capacity. There is a presumption that people have the capacity to make their own decisions, and medical treatment decisions should only be made on someone else’s behalf when it is demonstrated they do not have the capacity to make those decisions. The Act recognises that medical treatment should not be provided without informed consent, except in exceptional circumstances. If those unable to provide informed consent themselves do not have a relevant instructional directive providing consent, a health practitioner must obtain informed consent from a medical treatment decision maker. This will help to ensure people obtain medical treatment that is consistent with their preferences and values. The Act is part of a broader shift towards empowering people to make their own treatment decisions. This includes clear recognition that, wherever possible, people should be supported in making their own decisions. The Act recognises that when decisions are made on behalf of a person, these decisions should be made in accordance with the person’s preferences and values. Decisions should no longer be made on someone’s behalf based on what is believed to be in the ‘best interests’ of the person (as was the case in the old regime). Instead, decisions must focus on what the person would want in the circumstances. 3. PRINCIPLES TO GUIDE DECISION MAKING The Act includes a number of principles to help guide decision making: • People have the right to make informed decisions about their own medical treatment and should be given, in a sensitively communicated and clear and open manner, information about medical treatment options, including comfort and palliative care, to enable them to make informed decisions. Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. • A person’s informed decision should be respected and given effect to. • A person has the right to be shown respect for their culture, beliefs, values and personal characteristics. • A person’s preferences, values and personal and social wellbeing should direct decisions about the person’s medical treatment. • A person should be supported to enable them to make decisions about their medical treatment. • A person may exercise autonomy in relation to medical treatment by: – making decisions; – setting out preferences and values in advance; – appointing a medical treatment decision maker; – appointing a support person; – making collaborative decisions with family or community. • A partnership between a person and the person’s family and carers and health practitioners is important to achieve the best possible outcomes. 4. MEDICAL TREATMENT AS DEFINED BY THE MEDICAL TREATMENT PLANNING AND DECISIONS ACT 2016 The Act applies to ‘medical treatment’ and defines medical treatment as ‘any of the following treatments of a person 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 – (a) treatment with physical or surgical therapy; (b) treatment for mental illness; (c) treatment with – (i) prescription pharmaceuticals; or (ii) an approved medicinal cannabis product within the meaning of the Access to Medicinal Cannabis Act 2016; (d) dental treatment; (e) palliative care – but does not include a medical research procedure’. Note: Although the definition of medical treatment does not include medical research procedures, the provision of medical research procedures to people without decision-making capacity is still governed by the Act. This will not be discussed in this tutorial. Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. 5. DECISION MAKING CAPACITY The Act provides a four-part test to determine if a person has decision-making capacity. Health practitioners are responsible for obtaining informed consent, and it is up to them to determine whether a person has capacity to give informed consent to the medical treatment they are offering. An adult is presumed to have decision-making capacity unless there is evidence to the contrary. The Act recognises that decision-making capacity may vary depending on the decision and the circumstances and that people may have capacity to make some decisions, even if they do not have capacity to make others. Efforts must also be made to ensure people are provided with practicable and appropriate support to make a decision. People will be deemed to have understood information relevant to the decision if they understand an explanation of the information given in a manner appropriate to their circumstances – for example, through modified language or visual aids. The test for decision making capacity To have decision-making capacity, a person must be able to: (a) understand the information relevant to the decision and the effect of the decision; (a) retain that information to the extent necessary to make the decision; (b) use or weigh that information as part of the process of making the decision; and (c) communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means. Referral for specialist assessment If a health practitioner cannot determine whether or not a person has capacity to make the decision, the person may be referred for a relevant specialist assessment. If the person does not have decisionmaking capacity, the health practitioner has not obtained informed consent. Providing medical treatment without informed consent may constitute unprofessional conduct and may be considered an assault. Second Opinions and challenging a decision making capacity outcome If a health practitioner determines that a person does not have decision-making capacity, the person may seek a second opinion. An application may also be made to the Victorian Civil and Administrative Tribunal (VCAT) to challenge a finding that a person does or does not have decision-making capacity. 6. APPOINTED MEDICAL TREATMENT DECISION MAKERS Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. The Act allows a person to appoint a medical treatment decision maker. A medical treatment decision maker will make medical treatment decisions on the person’s behalf if they do not have capacity to make the decision. Appointing a medical treatment decision maker The appointment of a medical treatment decision maker must: • be in writing and in English; • include the full name, date of birth and address of the person appointing the medical treatment decision maker; and • include the full name, date of birth, address and contact details of the medical treatment decision maker. The appointment must be witnessed by two people, one of whom is an authorised witness. The witnesses must certify that the person: • appeared to have decision-making capacity in relation to the appointment; • appeared to freely and voluntarily sign the document; and • signed the document in the presence of the two witnesses. A person may appoint more than one medical treatment decision maker, but there will only ever be one medical treatment decision maker with authority to make a particular decision about a medical treatment. The person must list the medical treatment decision makers in the order in which they would like them to act, and the first appointee who is available and willing will be the medical treatment decision maker. Each appointee must accept their appointment in writing on the same document. This acceptance must include a statement that the appointee: • understands the obligations of an appointed medical treatment decision maker; • undertakes to act in accordance with any known preferences and values of the person making the appointment; • undertakes to promote the personal and social wellbeing of the person making the appointment, having regard to the person’s individuality; and • has read and understands any advance care directive that the person has given before, or at the same time as, their appointment. The role of a medical treatment decision maker The role of a medical treatment decision maker is to make medical treatment decisions on behalf of a person who does not have decision-making capacity in relation to a treatment decision that needs to be made. Until this time, an appointed medical treatment decision maker(s) has no role or status. A decision by a medical treatment decision maker has the same effect as if the person had capacity and made the decision themselves. Once a medical treatment decision maker is required to make a decision, they may access necessary medical records to make a properly informed decision. This is the only circumstance in which a medical treatment decision maker may access a person’s medical records. Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. Preferences, values and personal and social wellbeing – the way a medical treatment decision maker should come to a decision The Act requires medical treatment decisions to be made based on what the person would have wanted in the circumstances. This is identified through the new preferences, values and personal and social wellbeing test which replaces the ‘best interests’ test. While the ‘best interests’ test required a substitute decision maker to consider the person’s wishes, there were a range of other factors that also needed to be considered, such as the views of family members. The preferences, values and personal and social wellbeing test requires that a decision be made based on the person’s preferences and values. If the person’s preferences and values are not known, the medical treatment decision maker must make a decision that will promote the person’s personal and social wellbeing. This new approach focuses on respecting people as individuals and enacting their preferences and values, rather than allowing others to impose their values or understanding of what is best for someone else. 7. MEDICAL TREATMENT DECISION MAKING A health practitioner must obtain informed consent before providing medical treatment. If a person has decision-making capacity, consent must be obtained from the person. If the person does not have decision-making capacity, the Act provides a process for medical treatment decision making. If a person does not have decision-making capacity, a health practitioner proposing to administer medical treatment (other than emergency medical treatment) must make reasonable efforts in the circumstances to locate an advance care directive and/or a medical treatment decision maker. The extent of any searches will obviously vary in every situation, but it would be unreasonable to cause delays in treatment that would have a detrimental effect on a person’s health in order to conduct extensive searches. A failure to undertake reasonable searches will constitute unprofessional conduct. This means that a relevant health practitioner board may take disciplinary action against the health practitioner. The appropriate action will be a matter for the board. Medical Treatment decisions If a person does not have decision-making capacity, but is likely to recover this capacity within a reasonable time, the health practitioner should only proceed through this process if further delay in treatment would cause significant deterioration of the person’s condition. This recognises that, wherever possible, people should make their own medical treatment decisions. Once a health practitioner determines that a person they are proposing to treat does not have decisionmaking capacity, they must make reasonable efforts in the circumstances to locate an advance care directive and a medical treatment decision maker. The amount of time spent attempting to locate an advance care directive and/or medical treatment decision maker will obviously depend on how urgently treatment is required. If there is an instructional directive that is relevant to the medical treatment, this may be relied upon as though the person had capacity and was making the decision. This means that: Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. • If the instructional directive consents to the relevant treatment, the health practitioner may provide clinically indicated treatment. • If the instructional directive refuses the relevant treatment, the health practitioner must not provide that treatment. Reasonable efforts If a person does not have decision-making capacity, a health practitioner proposing to administer medical treatment (other than emergency medical treatment) must make reasonable efforts in the circumstances to locate an advance care directive and/or a medical treatment decision maker. The extent of any searches will obviously vary in every situation, but it would be unreasonable to cause delays in treatment that would have a detrimental effect on a person’s health in order to conduct extensive searches. What this requires will depend on the circumstances. It may be reasonable for a health practitioner to: • check a patient’s clinical record; • ask any family or friends present; • contact a medical treatment decision maker; • contact a next of kin or emergency contact on the patient’s medical record; • contact the person’s GP; or • contact any residential care facility or other health facility the person may have attended. A failure to undertake reasonable searches will constitute unprofessional conduct. This means that a relevant health practitioner board may take disciplinary action against the health practitioner. The appropriate action will be a matter for the board. Process for medical treatment decisions makers to make a decision when there is an advance care directive and a medical treatment decision maker The Act requires a medical treatment decision maker to make the decision they reasonably believe the person would have made if the person had decision-making capacity. The Act includes a process for determining the decision the person would have made, stating that the medical treatment decision maker must: • first consider any valid and relevant values directive; • next consider any other relevant preferences that the person has expressed and the circumstances in which the preferences were expressed; • in a case where the medical treatment decision maker is unable to identify any relevant preferences, consider the person’s values, whether expressed by the person or inferred from the person’s life. In making a decision, the medical treatment decision maker must also consider the likely effects and consequences of the medical treatment, including the likely effectiveness, and whether these are consistent with the person’s preferences and values. The medical treatment decision maker must also consider alternative treatment options, including not providing treatment. Given the medical treatment Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. decision maker must either be appointed or have a close and continuing relationship with the person, it is expected they will have an understanding of the person and their values. If the person’s preferences and values cannot be ascertained, the medical treatment decision maker must make a decision that promotes the person’s personal and social wellbeing, ensuring they respect the person’s individuality. In making this decision, the medical treatment decision maker must also consider the likely effects and consequences of the medical treatment, including the likely effectiveness, and whether these would promote the person’s personal and social wellbeing. The medical treatment decision maker must also consider alternative treatment options, including not providing treatment. This prescriptive process is designed to help people understand what it means to make a substituted decision. The medical treatment decision maker should not base their decision on what they would want or what they think is best in the circumstances. Their role is to make the decision they believe the person would make. This also requires the medical treatment decision maker to consult with anyone they believe the person would want consulted. The people consulted will not have any power to make decisions, but will help to inform the decisions of the medical treatment decision maker. If a medical treatment decision maker refuses clinically indicated treatment in circumstances where the person’s preferences and values are not known, the health practitioner must notify the Public Advocate, who will review the reasonableness of this decision. This will only occur in limited circumstances. It is rare that nothing can be discerned about a person’s preferences and values, and in these cases, it would be unusual for a medical treatment decision maker to refuse clinically indicated medical treatment. This safeguard is designed to ensure that, in these unusual circumstances, there is some independent review to protect vulnerable people. When there is no relevant instructional directive, but a valid values directive If there is only a values directive (or the instructional directive is not directly relevant), the health practitioner must turn to the person’s medical treatment decision maker to obtain consent. Hierarchy of medical treatment decision makers There is a hierarchy for determining the person’s medical treatment decision maker, and the first available and willing person from the list below will be the medical treatment decision maker. • an appointed medical treatment decision maker; • a guardian appointed by VCAT; • the first of the following with a close and continuing relationship with the person: – the spouse or domestic partner; – the primary carer of the person; – the adult child of the person; – the parent of the person; – the adult sibling of the person. • Where there are two or more people in the same position eg two children, it is the oldest that is the Medical Treatment Decision Maker. Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. If a medical treatment decision maker consents to treatment, a health practitioner may proceed with that treatment. If the medical treatment decision maker refuses treatment, a health practitioner cannot provide that treatment. A medical treatment decision maker may also refuse treatment at any time after it has begun. If the medical treatment decision maker refuses treatment, a health practitioner must withdraw the treatment. Informed consent from a medical treatment decision maker is required for any new treatment proposed for a person who does not have decision-making capacity. However, this does not mean that a health practitioner must obtain consent separately for every element of a course of treatment. If the health practitioner can explain the nature and effect of the course of treatment and the medical treatment decision maker understands the likely consequences, they can consent to a course of treatment at the beginning of the course. For example, if a medical treatment decision maker consents to a course of antibiotics, they would not need to consent to each dose of the course. Process if there is no advance care directive and no medical treatment decision maker If a health practitioner makes reasonable efforts in the circumstances to locate an advance care directive and/or a medical treatment decision maker, but is unable to locate either, the Act provides a process for proceeding. 1. First, a health practitioner must determine whether medical treatment is routine or significant. Significant treatment is any medical treatment that involves any of the following: (b) a significant degree of bodily intrusion; (d) a significant risk to the person; (e) significant side effects; (f) significant distress to the person. Routine treatment is any treatment that is not significant treatment. If the medical treatment is routine, a health practitioner may proceed to provide the treatment without consent, noting this decision in the clinical record. 2. If the treatment is significant treatment, the health practitioner will need to obtain consent from the Public Advocate. The Public Advocate will be required to make a decision through the same process as a medical treatment decision maker. It should be noted that a health practitioner may proceed with emergency treatment without consent and that this includes treatment that is urgently required to prevent a person from suffering or continuing to suffer significant pain or distress. If a person is suffering pain that is not significant, it is unlikely that the treatment will be significant. In practical terms this means that the health practitioner may provide pain-relieving treatment without consent if there is no medical treatment decision maker or advance care directive available. A health practitioner would therefore not usually be required to wait for a decision by the Public Advocate to provide pain-relieving medication. Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. Emergency medical treatment A health practitioner may administer medical treatment to a person who does not have decision-making capacity without consent if the medical treatment is necessary to: • save a person’s life; • prevent serious damage to the person’s health; or • prevent the person from suffering or continuing to suffer significant pain or distress. This recognises that there are times when it would not be possible to obtain consent in time and that the preference in these circumstances is to proceed with treatment. The Act also recognises, however, that an emergency situation does not justify overriding a person’s known preferences and values. If a person has validly refused treatment, a health practitioner must respect this refusal. A health practitioner should never delay emergency treatment to search for an advance care directive but must comply with an advance care directive that is readily available. Palliative care The Act defines palliative care as reasonable medical treatment for the relief of pain, suffering and discomfort, and the reasonable provision of food and water. This does not include providing artificial nutrition and hydration via percutaneous endoscopic gastronomy (PEG feeding), which is legally considered to be medical treatment. The Act provides that a person cannot refuse palliative care in an instructional directive and that a medical treatment decision maker cannot refuse palliative care. A person can, however, include statements about palliative care in their values directive. Health practitioners providing palliative care must ensure the palliative care is consistent with the person’s preferences and values. For example, a person may state in their values directive that at the end of their life it is more important for them to remain lucid than completely pain-free. The medical practitioner would be required to consider appropriate medications and dosages to ensure minimal pain and that the person was able to engage with family and friends as much as possible. 8. ADVANCE CARE DIRECTIVES A person may only create an advance care directive if they have decision-making capacity in relation to each statement in their advance care directive. This means they must understand the nature and effect of the treatment about which they are making decisions. The advance care directive will only take effect at a time when the person does not have capacity to make a medical treatment decision that needs to be made. Until this time, the person will continue to make their own medical treatment decisions at the time treatment is offered. An advance care directive cannot contain any statement that would require an unlawful act to be performed or that would require a health practitioner to breach a code of conduct or professional standards. If an advance care directive contains such statements, these statements are void and have no effect, but the remainder of the advance care directive remains valid. Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. Types of advance care directives INSTRUCTIONAL DIRECTIVE In an instructional directive a person may either consent to or refuse a particular medical treatment. If the person subsequently does not have capacity to make a decision about that treatment, the instructional directive will apply as though the person has consented to or refused the treatment. An instructional directive must be expressly identified as such. This means that it must contain a heading or some other reference using the words ‘instructional directive’. Any other statements in an advance care directive are values directives. If it is unclear how an instructional directive would apply in the circumstances, but it is still indicative of a person’s preferences or values, it must be applied as a values directive. VALUES DIRECTIVE In a values directive a person may make more general statements about their preferences and values and what matters to them. If there is not an instructional directive then the health practitioner will need to obtain consent from a medical treatment decision maker to provide treatment. The medical treatment decision maker must consider a values directive. Making advance care directives Any person with decision-making capacity may create an advance care directive, but it must comply with a number of formal requirements. There is no requirement that an advance care directive be in a prescribed form. The Department of Health and Human Services will develop a generic form that a person may use which will be available on the department’s website and Office of the Public Advocate’s website. The advance care directive must be in writing and in English. For clarity and ease of identification, it must include the person’s full name, date of birth and address. There is no requirement to register an advance care directive, but a person should bring their advance care directive to the attention of their medical treatment decision maker, family and relevant health practitioners. Health facilities also have an obligation to place a patient’s advance care directive on their medical record. The person must understand the nature and effect of each statement in their advance care directive. This includes an understanding of any treatments referred to and the potential consequences of compliance with the advance care directive. The advance care directive must be witnessed by two adults, one of whom is a medical practitioner. The witnesses must certify that the person: • appeared to have decision-making capacity in relation to each statement in their advance care directive; • appeared to freely and voluntarily sign the document; • signed the document in the presence of the two witnesses; and • appeared to understand the nature and effect of each statement in their advance care directive. The medical practitioner’s role in witnessing an advance care directive Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. The role of the medical practitioner in witnessing the document is not to make judgements about the reasonableness of a person’s decision. The medical practitioner’s role is to ensure the person understands the nature and effect of the statements in their advance care directive and the possible implications of including these statements in their advance care directive. The medical practitioner can also help ensure that the advance care directive is consistent and practically applicable. The medical practitioner should also help the person understand any consequences of the Instructional Directive that the person has not forseen. eg an Instructional Directive that refuses Intensive Care admission and treatment for all situations may not have considered that a number of hours in intensive care might be needed after surgery for a fracture, in order for a good recovery, Amending or revoking an advance care directive A person may also amend or revoke their advance care directive. In order to amend or revoke an advance care directive the person must have decision-making capacity to do so and must comply with the same formal requirements for making an advance care directive. To avoid inconsistency or confusion about versions, an amendment must be made on the face of the original document. A subsequent advance care directive will also revoke a previous advance care directive, so a person can have only one valid advance care directive at any one time. While people may feel the need to amend their advance care directive, an advance care directive will only have effect when the person does not have decision-making capacity. Those with decision-making capacity receiving medical treatment may make decisions that are contrary to their advance care directive and do not need to amend their advance care directive to do so. They may, however, wish to amend their advance care directive in case they subsequently lose decision-making capacity. applying an advance care directive A health practitioner should turn to an advance care directive only if a person does not have capacity to make a decision. If the person does have decision-making capacity, informed consent must always be sought from the person. How an advance care directive is applied will depend on whether there is a relevant instructional directive or values directive. WHERE THERE IS AN INSTRUCTIONAL DIRECTIVE: If there is a relevant instructional directive consenting to the medical treatment, a health practitioner may provide clinically indicated treatment as though the person has capacity and has given informed consent. It is still up to the health practitioner to determine whether treatment is clinically indicated, and the practitioner is under no obligation to provide specific treatment just because a person has consented to it in their advance care directive. If there is a relevant instructional directive refusing a medical treatment, a health practitioner cannot provide that treatment. A medical treatment decision maker cannot override an instructional directive. WHERE THERE IS A VALUES DIRECTIVE BUT NO INSTRUCTIONAL DIRECTIVE: If there is a values directive but no relevant instructional directive, a health practitioner will need to turn to a medical treatment decision maker to obtain informed consent before providing treatment. The health Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. practitioner must consider the values directive, but ultimately it is the role of the medical treatment decision maker to interpret the values directive and make a decision. Choosing not to apply an advance care directive A health practitioner may decide not to comply with an advance care directive if they believe, on reasonable grounds, that circumstances have changed since the person gave the advance care directive and that the practical effect would no longer be consistent with the preferences and values. A health practitioner may make this decision without making an application to VCAT if the person’s condition would deteriorate significantly as a result of the delay an application to VCAT would cause. Some people might make their advance care directive years before it is actually used. It might be that developments in medical technology mean there is a new treatment available for the person’s condition that would not be significantly less onerous than the treatments that existed at the time the person decided to refuse further treatments. It may also apply where the person’s diagnosis or prognosis has changed substantially from the time they made their advance care directive. Conflict among family members Conflict is inevitable in the stressful and upsetting circumstances in which medical treatment decisions often need to be made. The Act seeks to make unambiguous legal obligations so it is at least clear who has authority to make decisions. The Act recognises that if a person takes time to make an instructional directive and this is relevant, it should be respected even though family members might disagree with the decision. Indeed, many might make an instructional directive chiefly because they recognise that their family will not implement their preferences and values. While previous laws allowed the appointment of multiple substitute decision makers, the Act allows only one medical treatment decision maker for each decision. The medical treatment decision maker should still consult with other family members, but ultimately they are responsible for making the decision and their decision should be respected unless there is some evidence they are acting contrary to the person’s preferences and values. 9. SUPPORT PERSONS The Act introduces the process for formally appointing a support person. The role of a support person is to help a person who has decision-making capacity to make their own decisions. The role will vary depending on the type of support that is required. It is important to note that the formal appointment of a support person will not preclude others from supporting people informally. Appointing a support person will give the support person automatic access to the person’s medical information. This will allow the support person to compile information or help interpret information. Appointing a support person The appointment of a support person must: Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. • be in writing and in English; • include the full name, date of birth and address of the person making it; and • include the full name, date of birth, address and contact details of the support person. The appointment must be witnessed by two adults, one of whom is an authorised witness. The witnesses must certify that the person: • appeared to have decision-making capacity in relation to the appointment; • appeared to freely and voluntarily sign the document; and • signed the document in the presence of the two witnesses. The role of a support person The support person’s role is to support a person to make their own decisions and to help ensure these decisions are enacted. What this requires will vary depending on the needs of the person. Some people may simply need information from a range of sources to be collated, while others may need the information to be presented in a way they can understand and may need help communicating their decision. It is important the support person understands that it is not their role to make medical treatment decisions, but to help ensure the person can make their own decisions. The support person should not try to influence these decisions. If the person does not have decision-making capacity, their medical treatment decision maker must decide. The support person may play a role in medical treatment decisions if the person does not have decisionmaking capacity. In these circumstances, the support person’s role will be to advocate for the person and to ensure treatment is provided in accordance with the person’s preferences and values. The support person may also help to coordinate medical treatment. The support person may also continue to collect and collate information to help inform other medical treatment decisions that the person may need to make. The support person and medical treatment decision maker may be the same person. A Support person in a clinical context The Act is not prescriptive about the role of a support person, and in practice the role may include providing whatever support is needed. A support person may help coordinate care. People often see a range of specialists at different locations and receive different information from each. When a person is unwell, this may be overwhelming. A support person may provide a clear point of contact for specialists and may follow up with specialists to help coordinate care. The medical practitioners can feel comfortable disclosing information because the support person is authorised to access the person’s health information. A support person may also help to present medical information in a way that the person can understand to allow them to continue to make their own decisions. This may include collecting information over a period that the person is particularly unwell and providing it to them at a time when they can fully consider the implications. A support person may help to ensure the person is able to make their own decisions for longer. 10. DISPUTE RESOLUTION The medical treatment decision making process often requires consultation with both an individual and their family. There may be disagreements and, ideally, these will be resolved through ongoing Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. discussions. It is important to note the Act provides that if a person does not have decision-making capacity, the medical treatment decision maker has authority to make a medical treatment decision. If a health practitioner reasonably believes that the medical treatment decision maker is acting in accordance with the person’s preferences, values and personal and social wellbeing, the health practitioner must accept the medical treatment decision maker’s decision. A health practitioner acting in good faith and without negligence will not be liable for a medical treatment decision maker’s decision Applications to the Victorian Civil and Administrative Tribunal A health practitioner may apply to VCAT for an order limiting the authority of a medical treatment decision maker or an order that the person is not the medical treatment decision maker. If a health practitioner, another family member or friend would like to challenge the decision of the medical treatment decision maker, they may challenge their decision through VCAT. The Act allows an eligible applicant to apply to VCAT. An eligible applicant is any of the following: (c) a health practitioner who has the care of, or is providing medical treatment to, a person; (g) the medical treatment decision maker of a person; (h) a person’s support person; (i) the Public Advocate; or (j) any other person whom VCAT is satisfied has a special interest in the affairs of the person concerned. The decision of a medical treatment decision maker cannot be challenged simply on the basis that another person disagrees with it. Grounds for challenging a medical treatment decision maker There are a number of grounds on which a medical treatment decision maker may be challenged: • that the person is not actually the medical treatment decision maker (whether because they have not been properly appointed or because they are not the first person in the list with a close and continuing relationship with the person); • that the medical treatment decision maker has not appropriately considered a valid advance care directive; or • that the medical treatment decision is not consistent with the person’s preferences, values and personal and social wellbeing. VCAT hearings VCAT may conduct a hearing and receive evidence. VCAT may determine the medical treatment decision maker has not made a decision consistent with the legislative requirements and may set aside the decision. VCAT may also declare that the person is not the medical treatment decision maker. VCAT may then appoint a guardian. If a guardian is not appointed, the next person listed with a close and Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. continuing relationship with the person receiving treatment, who is available and willing, will be the medical treatment decision maker. 11. MEDICAL RESEARCH The Act also provides a process for obtaining consent to medical research procedures for people without decision-making capacity. The Act does not affect medical research procedures provided to people with decision-making capacity. Medical research pursuant to the Act will not be covered in this tutorial. 12. INTERSTATE APPOINTMENTS AND DOCUMENTS The Acts recognises that advance care directives (or the equivalent document) validly made in another Australian state or territory should be recognised in Victoria. An interstate advance care directive will be taken to be a values directive and must be given effect in the same way as a values directive in Victoria. Interstate advance care directives are limited to values directives because of the different laws and requirements in other jurisdictions. Some jurisdictions limit what a person may include in (the equivalent of) an instructional directive, and it would not be appropriate to require health practitioners to have an understanding of the laws in each jurisdiction and the intended effect of an advance care directive from another jurisdiction. Recognising interstate advance care directives as values directives ensures medical treatment decisions will always be made in accordance with the person’s preferences and values, without giving the advance care directive greater legal effect than the person intended. 13. APPOINTMENTS MADE PURSUANT TO THE PREVIOUS LAWS Appointments made under the previous regime (pre 12 March 2018) will continue to be recognised when the Act is in place from 12 March 2018. This means that there is no need to remake existing legal documents. Amendments to appointments or creating an advance care directive under the new Act can be done from 12 March 2018, and should be completed in accordance with the new Act. 14. CRIMINAL OFFENCES The Act creates a number of criminal offences to protect people who may be vulnerable to abuse. The creation of an advance care directive may have serious consequences, including death. Pushing or inducing a person to make an advance care directive will be a serious offence. An advance care directive that is created as a result of dishonesty or undue influence will be void and of no effect. • A person must not, by dishonesty or undue influence, induce another person to create an advance care directive. Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. • A person also must not knowingly make a false or misleading statement in relation to another person’s advance care directive or an attempt of another person to give an advance care directive. Many advance care directives are likely to be open to interpretation, and an unscrupulous person may deliberately encourage others to misinterpret an advance care directive and so act contrary to the preferences and values of the person receiving treatment. The offence will only apply to those who make knowingly false or misleading statements. • A person must not purport to act as an appointed medical treatment decision maker or a support person. A medical treatment decision maker will have the power to make extremely important decisions about a person’s medical treatment, and both a medical treatment decision maker and support person will have access to private medical records. These offences will only apply to those who deliberately purport to act as a medical treatment decision maker or support person, and not those who make an honest and reasonable mistake. • A person must not, by dishonesty or undue influence, induce another person to appoint a medical treatment decision maker. A medical treatment decision maker will have significant powers, and pushing or inducing someone to appoint another could have very serious consequences. An appointment that is created as a result of dishonesty or undue influence will be void and of no effect. All of these offences carry a maximum penalty of 600 penalty units or five years’ imprisonment, or both. 15. CASE SCENARIOS FOR DISCUSSION Case 1 Sam is a 54yr old man admitted to the Emergency Department following a car accident. On arrival in the ED Sam is unconscious, intubated and requiring ventilation. He also has a fractured femur which has been splinted by the paramedics. Sam is accompanied by a lady who identifies herself as Sam’s daughter, Jemma. Jemma explains that her parents are separated and don’t have a lot of contact. She has an older brother, Michael, who lives interstate and who keeps in regular touch with Sam. • What steps would you take to identify who is Sam’s Medical Treatment Decision Maker? A new person then arrives, Carl, who identifies himself as Sam’s appointed Medical Treatment Decision Maker. • What do you do now? You have clarified that Carl is in fact Sam’s appointed Medical Treatment Decision Maker – he was appointed Medical Enduring Power of Attorney prior to 12th March 2018. Jemma, however, is upset to hear this as she doesn’t trust Carl and can’t believe that Sam would have appointed Carl instead of one of the children. Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. • What is your advice to Jemma? While this discussion has been occurring, Sam had an urgent CT scan of his brain and x-rays of his leg. The CT brain shows a subdural haematoma that needs urgent surgical drainage. The x-ray shows a fractured femur, which will require surgery and internal fixation. • What steps do you need to take with regard to consent before operating on Sam’s subdural haematoma? Do you need consent for this surgery? You are about to transfer Sam to theatre when a nurse tells you that she has discovered an Advance Care Directive in Sam’s wallet. It says that Sam has been recently diagnosed with lung cancer and has refused any surgery, radiotherapy or chemotherapy for this. In his Instructional Directive he says that he refuses intubation, ventilation or CPR for deterioration related to his lung cancer. He further explains in his Values Directive that he knows he doesn’t have long to live and that if he ever becomes seriously unwell, he would not want any life-prolonging treatment. He would want to be kept comfortable and allowed to die peacefully. Emma says that the Advance Care Directive doesn’t apply as her father’s current condition has nothing to do with the lung cancer and is treatable. • What do you do now? Case 2 Mario is a 64year old man who has no-one who could be his Medical Treatment Decision Maker. He has been admitted to hospital with a gangrenous foot. Mario has a history of peripheral vascular disease and has had previous surgery for this. He has multiple medical problems including poorly controlled Type 2 Diabetes, Ischaemic heart disease, mild cardiac failure and he is a smoker. His GP has noticed that over the past six months Mario’s memory, problem solving, and new learning has deteriorated quite significantly. An appointment has been made for Mario to see a Geriatrician about this. The Vascular surgeon recommends that amputation of the foot is the only medical treatment option and that, without this, Mario is likely to have problems with increasing pain and infection. • What steps will you take to obtain consent for the amputation? Mario develops a urinary tract infection that is causing him to be confused. You assess that he lacks capacity to consent to the intravenous antibiotics that are required to treat the infection. • Can you proceed without obtaining consent from the Office of the Public Advocate? Copyright © Monash University 2020. All rights reserved. Except as provided in the Copyright Act 1968, this work may not be reproduced in any form without the written permission of Department of Forensic Medicine, Faculty of Medicine, Nursing and Health Sciences. Adjunct Clinical Associate Professor David Ranson and Ms Jo-Anne Mazzeo Medical Law Tutorial Program Co Co