The Medical Treatment Act 1988

Medical Treatment Act 1988 (Vic)

Here are some relevant extracts incorporating the amendments up to 1992.

Reprinted 4 March, 1993 incorporating amendments up to Act No. 26/1992

EXTRACTS

(These are extracts only. More details are provided with DWDV membership.)

This Act concerns the refusal of medical treatment. Refusing medical treatment is not voluntary euthanasia because it does not mean that an ill person necessarily dies in the way he or she would wish; there may still be a prolonged process of dying, with much suffering.

Preamble

The Parliament recognises that it is desirable -

• (a) to give protection to the patient's right to refuse unwanted medical treatment;
• (b) to give protection to medical practitioners who act in good faith in accordance with a patient's express wishes;
• (c) to recognise the difficult circumstances that face medical practitioners in advising patients and providing guidance in relation to treatment options;
• (d) to state clearly the way in which a patient can signify his or her wishes in regard to medical care;
• (e) to encourage community and professional understanding of the changing focus of treatment from cure to pain relief for terminally-ill patients;
• (f) to ensure that dying patients receive maximum relief from pain and suffering.

1. Purpose

The purposes of this Act are -

• (a) to clarify the law relating to the right of patients to refuse medical treatment;
• (b) to establish a procedure for clearly indicating a decision to refuse medical treatment;
• (c) to enable an agent to make decisions about medical treatment on behalf of an incompetent person.

3. Definitions

In this Act -
"registered medical practitioner" means a registered medical practitioner within the meaning of the Medical Practice Act 1994; "medical treatment" means the carrying out of -

• (a) an operation; or
• (b) the administration of a drug or other like substance; or
• (c) any other medical procedure

but does not include palliative care;
"palliative care" includes -

• (a) the provision of reasonable medical procedures for the relief of pain, suffering and
  discomfort; or
• (b) the reasonable provision of food and water.

4. Other legal rights not affected

1. This Act does not affect any right of a person under any other law to refuse medical
   treatment.
2. This Act does not apply to palliative care and does not affect any right, power or duty which a registered medical practitioner or any other person has in relation to palliative care.
3. This Act does not -
   (a) affect the operation of Section 6B(2) or 463B of the Crimes Act 1958; or
   (b) limit the operation of any other law.

5. Refusal of treatment certificate

1. If a registered medical practitioner and another person are each satisfied -
   (a) that a patient has clearly expressed or indicated a decision-
   - (i) to refuse medical treatment generally; or
   - (ii) to refuse medical treatment of a particular kind - for a current condition; and
   (b) that the patient's decision is made voluntarily and without inducement or compulsion; and
   (c) that the patient has been informed about the nature of his or her condition to an extent which is reasonably sufficient to enable the patient to make a decision about whether or not to refuse medical treatment generally of a particular kind (as the case requires) for that condition and that the patient has appeared to understand that information; and
   (d) that the patient is of sound mind and has attained the age of 18 years- the registered medical practitioner and the other person may together witness a refusal of treatment certificate.
2. A refusal of treatment certificate must be in the form of Schedule I.
3. For the purposes of sub-section (1) (a), the patient may clearly express or indicate a decision in writing, orally or in any other way in which the person can communicate.

5A. Agents and Guardians

2. An appointment of an agent or alternate agent -
   (a) shall be by way of an enduring power of attorney (medical treatment) in the form of Schedule 2 * and must be witnessed by two persons, one of whom shall be a person authorised by law to take and receive statutory declarations and neither of whom shall be the agent or alternate agent to be appointed; and
   (b) takes effect if and only if the person giving the power becomes incompetent; and
   (c) in the case of an appointment of an alternate agent, takes effect if and only if section 5AA is complied with.

5B. Refusal of treatment certificate by agent or guardian

1. If a registered medical practitioner and another person are each satisfied -
   (a) that the patient's agent or guardian has been informed about the nature of the patient's current condition to an extent that would be reasonably sufficient to enable the patient, if he or she were competent, to make a decision about whether or not to refuse medical treatment generally or of a particular kind for that condition; and
   (b) that the agent or guardian understands that information- the agent or guardian, on behalf of the patient -
   (c) may refuse medical treatment generally; or
   (d) may refuse medical treatment of a particular kind - for that condition.
2. An agent or guardian may only refuse medical treatment on behalf of a patient if -
   (a) the medical treatment would cause unreasonable distress to the patient; or
   (b) there are reasonable grounds for believing that the patient, if competent, and after giving serious consideration to his or her health and well-being, would consider that the medical treatment is unwarranted.
3. Where a refusal is made by an agent or a guardian, a refusal of treatment certificate must be completed In the form of schedule 3.

6. Offence of medical trespass

A registered medical practitioner must not, knowing that a refusal of treatment certificate applies to a person, undertake or continue to undertake any medical treatment to which the certificate applies, being treatment for the condition in relation to which the certificate was given.