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You and the law on medical decision making

You and the law on medical decision making

Meagan Adams, ACP Coordinator, Bendigo Health

Nurses need to understand how laws relating to advance care directives and medical decision-making may play out in a clinical setting, says Meagan Adams, a registered nurse and the Advance Care Planning Coordinator at Bendigo Health.

Under the Medical Treatment Planning and Decisions Act 2016 if a patient cannot communicate their care preferences, healthcare workers have to make ‘reasonable efforts’ to locate a patient’s advance care directive, and follow it.

Reasonable efforts to locate an advance care directive or a medical treatment decision maker may include checking a patient’s clinical record, asking any friends or family present, contacting the next of kin or emergency contact on the patient’s medical record, the person’s GP or another health facility they may have attended.

It is not reasonable to delay medical treatment to locate an advance care directive if this would cause the person’s health to significantly deteriorate.

If there is no directive, you ask the medical treatment decision maker, nominated by the patient. If there is no nominated treatment decision maker, you must decide if the medical treatment is significant or routine.

Significant treatment is any medical treatment that involves significant bodily intrusion, risk to the patient, side effects or distress to the person.

If significant treatment is required and there is no advance care directive or nominated decision maker, a hierarchy of decision makers applies.

The medical decision maker hierarchy

A guardian appointed by VCAT; followed by the first available and willing person with a close and continuing relationship with the person, in this order:

  • the spouse or domestic partner
  • the primary carer of the person
  • the oldest adult child of the person
  • the oldest parent of the person
  • the oldest adult sibling of the person.

Ms Adams said if the oldest adult child did not have a ‘close and continuing relationship’ with the patient, a younger child could ‘trump’ the elder.

Ms Adams, presenting at the 2018 Australian Nurses and Midwives Conference, said: ‘We’ve all seen the scenario where mum’s living with her daughter, the daughter knows her really well and goes to all of her appointments but mum gets sick and the daughter’s the youngest,’ she said. ‘So it’s about us having good conversations (with patients), working through the hierarchy and talking to people about who their medical decision maker is.’

If someone doesn’t have a partner or children but is close to their niece or nephew, the niece or nephew should be encouraged to formalise their carer role, or the public advocate would be appointed to make medical decisions.

‘It’s very important to talk to your patients while they’re competent and while they can make these decisions and also for yourself, think about who’s your medical decision maker.

‘If you’re looking at this list and thinking “No way!” you need to get the forms out and start filling them in for yourself. This is not only about old people, this is not only about chronic illness, this is about all of us.’

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 a values directive.