You have been appointed as a medical treatment decision maker

§1Who the decision maker is

Victorian law doesn’t leave this to whoever is in the room. The decision maker is the first person on this list who is reasonably available and is also willing and able to decide:

1. A medical treatment decision maker the person appointed themselves.
2. A guardian appointed by VCAT to make medical treatment decisions.
3. Otherwise, the first of these who has a close and continuing relationship with the person: their spouse or domestic partner; their primary carer (not a paid service provider); an adult child; a parent; an adult sibling.

Where two or more relatives share the first place on the list, the eldest is the decision maker. A formal appointment puts you at the top; if the form names more than one person, the first named who is available, willing and able takes the decision.

Older documents still count. Before the Act began in 2018, people could appoint someone through a medical enduring power of attorney, an enduring power of attorney or an enduring power of guardianship, and those appointments remain valid. So do valid appointments made in other Australian states and territories.

§2When you are asked

A health practitioner needs consent before treating. When the patient can’t give it, the practitioner first looks for an advance care directive in which the patient consented to or refused that treatment, and follows it. Only if there is none does the practitioner turn to the medical treatment decision maker.

The treatment in question can be physical or surgical (from dressing a wound to an operation), treatment for mental illness, prescription medicine, or dental treatment. For a decision about treatment for mental illness, OPA asks decision makers to contact it for further information.

§3How the decision is made, step by step

The Act’s test is the decision you reasonably believe the person would have made if they could make it themselves. OPA breaks the work into these steps:

1. Start with what the person said. Where they made an advance care directive, a valid and relevant values directive records their values and preferences about treatment, and it guides you.
2. Add what else they expressed, and the circumstances in which they said it: wishes written down, for instance, or talked through with close family.
3. If no preference fits, turn to their values, whether they stated them or you can infer them from how they lived.
4. Weigh the treatment itself: its likely effects and consequences, including whether it would work; whether those fit the person’s preferences or values; and whether an alternative fits them better. Refusing the treatment counts as an alternative.
5. Consult the people you reasonably believe the person would want involved.
6. Throughout, act in good faith and with due diligence.

When their preferences and values can’t be found

Sometimes nothing the person said or valued can be discovered. Then the decision promotes their personal and social wellbeing, with regard to who they are as an individual. The treatment and its alternatives are weighed in the same way as before, against that wellbeing instead of against their preferences.