Victorian aged and disability providers and the Medical Treatment Planning and Decisions Act 2016 Sonia Gardiner Senior Medical Treatment Decision Officer
Acknowledgement of Country I acknowledge the Traditional Owners of the land on which we are meeting. And I pay my respect to Elders, past and present and extend that respect to other Aboriginal people present.
About this presentation ♦ overview of the MTPD Act ♦ ‘advance care directive’ ♦ ‘medical treatment decision maker’ ♦ ‘medical treatment’ ♦ prescription pharmaceuticals ♦ the process(es) for obtaining a medical treatment decision when your resident does not have ‘decision making capacity’
OVERVIEW OF THE MTPD ACT
Principles of the MTPD Act ♦ a shift away from a ‘best interests’ model in favour of the preferences and values of the patient ♦ a person’s preferences, values should direct decisions about the person’s medical treatment ♦ a partnership between a person and their family and carers and health practitioners is important to achieve the best possible outcomes
Health practitioners The Act applies to registered health practitioners in the following professions: • medical • psychology • optometry • dental • osteopathy • podiatry • physiotherapy • Chinese medicine • nursing and • occupational midwifery • Aboriginal and therapy Torres Strait • medical Islander health • chiropractic radiation practice practice • pharmacy The Act also applies to paramedics and non-emergency patient transport staff.
Formal appointments In Victoria, from 12 March 2018, people can: • make an advance care directive • appoint a medical treatment decision maker • appoint a support person for their medical treatment decisions Appointments made prior to 12/3/18 remain valid
Consent Health practitioners need a patient’s consent before providing medical treatment, unless they are providing emergency treatment. The MTPD Act sets out the medical consent process for a patient who does not have decision-making capacity to make the medical treatment decision.
‘ADVANCE CARE DIRECTIVE’
Advance Care Directives An ‘advance care directive’ is a legal document that sets out a person’s: ♦ preferences and values (‘values directive’) and/or ♦ binding instructions (‘instructional directive’) in relation to the medical treatment of that person in the event that the person does not have decision-making capacity to consent to or refuse medical treatment.
Values Directive ♦ a statement of a person’s preferences and values as the basis on which they would like any medical treatment decisions to be made on their behalf ♦ it must be considered by the person’s ‘medical treatment decision maker’
Instructional Directive ♦ a statement of a person’s medical treatment decision that is directed to the patient’s health practitioner(s) ♦ it is only relevant if the person does not have decision- making capacity ♦ the health practitioner must give effect to the instructional directive – provide or not provide the medical treatment ♦ there is no role for a medical treatment decision maker to play
What is not an ‘advance care directive’? ♦ an advance care plan, goals of care plan, end of life wishes form etc ♦ those documents are not transferable to be an ‘advance care directive’; those documents are not legally binding ♦ powers of attorney or wills are advance care planning documents for lifestyle or financial matters ♦ when a person cannot plan for their future: resources
Who can make an ‘advance care directive? ♦ only a person with decision making capacity ♦ cannot be made by anyone else on their behalf ♦ are made in relation to any type of ‘medical treatment’: to consent or refuse medical treatment ♦ people under the age of 18 can also make one, if they have decision making capacity
Advance Care Directive form ♦ in Take Control and OPA’s website ♦ two witnesses – one must be a registered medical practitioner ♦ second witness – and adult over 18 ♦ must meet the procedural requirements to be legally valid ♦ VCAT is the arbitrator
CPR/Not for Resuscitation ♦ is not a ‘medical treatment’ decision that can be speculatively made by a medical treatment decision maker ♦ is a clinical assessment made by a doctor ♦ but should involve discussion with family and/or medical treatment decision maker ♦ doctors are not required to provide ‘futile and non- beneficial’ treatment ♦ patients or family members should not be pressured to complete these forms
‘MEDICAL TREAMENT DECISION MAKER’
Medical treatment decision makers A person can appoint a medical treatment decision maker with the authority to make medical treatment decisions on their behalf when they do not have capacity to make the decision(s). A patient’s medical treatment decision maker must make the decision that they reasonably believe is the one that the patient would have made.
Medical treatment decision maker Where a patient is unable to consent to treatment, consent can be obtained from the medical treatment decision maker in the following order: (1) A medical treatment decision maker appointed by the patient (2) A guardian appointed by VCAT to make decisions about medical treatment (3) The first of the following who is in a close and continuing relationship with the patient and is reasonably available and willing and able : a) the patient’s spouse or domestic partner b) the patient’s primary carer c) an adult child of the patient d) a parent of the patient e) an adult sibling of the patient
‘MEDICAL TREATMENT’
Definition of medical treatment The definition of medical treatment in the Act has two parts. It is treatment by a health practitioner for one or more of the purposes listed below, and for one of the forms of treatment listed below. Purpose of treatment Form of treatment o diagnosing a physical or o treatment with physical or surgical mental condition therapy o preventing disease o treatment for mental illness o restoring or replacing bodily o treatment with function in the face of prescription pharmaceuticals disease or injury an approved medicinal cannabis o improving comfort and product quality of life. o dental treatment o palliative care. Note: The Mental Health Act 2014 applies where a person is a compulsory patient under that Act.
Prescription pharmaceuticals Like any other type of medical treatment, consent is required. ♦ “a decision to consent to or refuse the commencement or continuation of medical treatment” ♦ responsibility of the health practitioner prescribing the medications, however – ♦ if you (a health practitioner) are administering the medications, you need to know a legal consent has been obtained Documentation.
Chemical restraint? ♦ if the medication is not for the purpose of chemical restraint, the MTPD Act states consent must be obtained ♦ if the medication is for the purpose of chemical restraint, legislative guidance comes from the Disability Act , Mental Health Act or the Quality of Care Principles under the Aged Care Act
OBTAINING A MEDICAL TREATMENT DECISION
In summary 1. from the resident, if they have decision making capacity 2. from the ‘medical treatment decision maker’, if they have one 3. if there is no ‘medical treatment decision maker’ and it is ‘routine medical treatment’ consent not required 4. if there is no ‘medical treatment decision maker’ and it is ‘significant medical treatment’, from the Public Advocate
Step 1. Is there an advance care directive with a relevant instructional directive? A health practitioner must make reasonable efforts in the circumstances to find out if the patient has an advance care directive with a relevant instructional directive. √ Yes If the patient has refused the particular medical treatment in their instructional directive, the health practitioner: • withholds or withdraws that medical treatment. If the patient has consented to the particular medical treatment in their instructional directive, the health practitioner: • administers that medical treatment if they are of the opinion that it is clinically appropriate to do so. x No Proceed to step 2
Step 2. Is there a medical treatment decision maker? Medical treatment decision maker hierarchy in the new Act 1. The patient’s appointed medical treatment decision maker. 2. Guardian appointed by VCAT under the Guardianship and Administration Act 1986 who has the power under that appointment to make medical treatment decisions. 3. The first of the following persons who is in a close and continuing relationship: (a) the spouse or domestic partner of the patient (b) the primary carer of the patient (c) an adult child of the patient (d) a parent of the patient (e) an adult sibling of the patient. Note: Legal documents made before the new Act commences, are recognised. For example, a medical enduring power of attorney. √ Medical treatment decision maker makes the decision to consent to or refuse the treatment. x Proceed to step 3.
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