All below information has been taken from : www.health.vic.gov.au/mta/

How the Act works (http://www.health.vic.gov.au/mta/works.htm)

Refusal of medical treatment certificate: Competent Person (180k, pdf)
In the course of treatment for a medical condition, a patient may decide that having a specific or general course of treatment is not wanted. If a patient determines they do not want a procedure or medical treatment for a medical condition or illness they currently have, they may create a refusal of treatment certificate as a safeguard for both themselves and their medical practitioner in order to make their wishes known and followed.
The patient must:
- be informed about the nature of his or her condition to the extent that they can make a decision about treatment, 
- be of sound mind without clinical signs of cognitive impairment or potentially reversible conditions such as depression, 
- be over eighteen years of age and 
- nominate whether their refusal of treatment is specific or general. 

The certificate to refuse medical treatment must be witnessed by two people - one must be a medical practitioner and may also be the treating doctor.
Enduring power of attorney (medical treatment) (88k, pdf)
Refusal of medical treatment certificate: Agent or guardian of incompetent person (296k, pdf)

To appoint an agent to make medical decisions on their behalf, a person makes a provision for an enduring power of attorney (medical treatment). The enduring power of attorney (medical treatment) names the agent, and an alternative agent if required, whom the person trusts to carry out their wishes about having or refusing medical treatment.
An enduring power of attorney (medical treatment) requires both the person appointing the agent and the agent to be of sound mind and over eighteen years of age. If a person is not able to appoint an agent, the Victorian Civil and Administrative Tribunal (VCAT) may appoint a guardian to act as an agent.

An agent or a guardian appointed by VCAT may enact a refusal of medical treatment certificate on behalf of a person if the agent believes the person would make a similar decision about refusing medical treatment when presented with complete information about their condition or if the agent believes the medical treatment would cause unreasonable distress to the person.

Limits of the Act and instruments created under the Act (http://www.health.vic.gov.au/mta/limits.htm)

The refusal of medical treatment certificate ceases to operate once the circumstances that gave rise to it are no longer relevant. As the refusal of medical treatment certificate applies only to a current condition and not to an illness or condition that may occur in the future, it may not be used as an "advance directive".

In addition, the refusal of medical treatment does not cover medical procedures or other procedures that would be considered palliative care. Palliative care includes reasonable treatment for the relief of pain, suffering or discomfort and the provision of food and water.
When a patient cancels a certificate or their medical condition has changed to such an extent that the specific or general provisions in it no longer apply, the refusal of medical treatment certificate is no longer in force.

The enduring power of attorney (medical treatment) does not allow an agent to make decisions about a person's affairs other than those about medical treatment. A general power of attorney, an enduring power of guardianship and an enduring power of attorney (financial) are all created and administered by other laws.
An enduring power of attorney (medical treatment) does not come into effect until the patient is no longer able to make their own decision. A patient retains the responsibility to make their own decisions if they are able to do so.
An agent can only refuse medical treatment on behalf of a patient when the medical treatment would cause unreasonable distress to the patient or they believe that the patient, if they were still competent, would refuse the treatment.

Supreme Court decision on the Medical Treatment Act (http://www.health.vic.gov.au/mta/decision.htm)

On 29 May 2003 Justice Morris of the Victorian Supreme Court handed down a landmark judgement in a case brought by the Public Advocate. It clarifies a contentious part of the Medical Treatment Act that deals with the refusal of medical treatment and ensures that people with a disability are not treated as having lesser rights than competent persons who can refuse treatment.
The case involved a woman (known as Mrs BWV) with severe disabilities, including a lack of cognitive capacity, as a consequence of a progressive form of dementia. Before she became unwell she had told members of her family that should she ever become so disabled she would not want medical treatment that would artificially and unnecessarily prolong her life.

The Court proceedings were initiated to obtain a definitive ruling on whether Artificial Nutrition and Hydration delivered through a PEG tube (which is surgically inserted in to the stomach) is either: 
- "medical treatment" which may be refused, or 
- "palliative care" which may not be refused. The definition of "palliative care" Act includes "the reasonable provision of food and water". 

The Court decided that it was "medical treatment" and could be refused by a guardian or an agent holding an Enduring Medical Power of Attorney on behalf of a person with a disability that prevented them from making or expressing a decision.
This decision does not affect everyone with a disability but only those who have previously expressed wishes about their medical treatment. The Judge stressed the many safeguards in the Act that protect the interests of people with a disability. They include, most critically, the fact that a guardian or agent can only refuse treatment if there is evidence that the person with a disability would themselves, when fully informed, have considered that the treatment was unwarranted. (Treatment could also be refused if it would cause unreasonable distress.)

The decision, which carefully balanced the competing moral and ethical values of the sanctity of life and the right to self-determination and dignity, is important because: 
- It allows Mrs BWV's wishes to be respected and for her to be treated with dignity. 
- It ensures that people with a disability are not treated as having lesser rights than competent persons who can refuse treatment. 
- It should provide for greater clarity for doctors and therefore greater consistency in the way treatment is provided. 

A copy of the full judgement in the case which is cited as Gardner; 
re BWV may be obtained from - Full judgement in the case, cited as, Gardner; re BWV

MTA Home (http://www.health.vic.gov.au/mta/)

Hot topics!
The Department of Human Services is embarking on an awareness campaign for all Victorians on the Medical Treatment Act 1988. Initially the campaign will focus on medical practitioners and hospitals. Further activities will be planned to assist allied health professionals, Senior Victorians and the community at large.
Your feedback on the type of approach needed to raise public awareness of the Medical Treatment Act 1988 is welcome. 
Please contact Ellen Kittson on (03) 9637 4998 or email her on ellen.kittson@dhs.vic.gov.au with your comments. Written comment may be sent to:
Ellen Kittson
Manager, Biotechnology, Safety and Ethics
Level 18, 120 Spencer Street
Melbourne, Victoria 3000

Background
Following a Parliamentary Inquiry into issues related to the treatment of dying patients, the Victorian Government enacted the Medical Treatment Act (the Act) in 1988. The Act reflects the strong community and professional consensus that patients, their families, their friends and medical staff should be assisted in law in making informed decisions about whether medical treatment should be continued, particularly at the end of life. The Act encourages community and professional understanding of the changing focus of treatment from cure to pain relief for terminally ill patients.
The Medical Treatment Act 1988:
- clarifies the right existing under common law to refuse medical treatment; 
- creates an offence of medical trespass where a medical practitioner carries out or continues any procedure or treatment that a competent patient refuses; and 
- gives protection from criminal or civil liability to the medical practitioner who acts in good faith and in accordance with the expressed wish of the fully informed, competent patient refusing medical treatment. 

In addition, the Act establishes the right of a competent individual to appoint an agent to make medical decisions on their behalf in the event that they are unable to make these decisions for themselves. The power given an agent is called an enduring power of attorney (medical treatment) and with it, the agent has the power to determine whether medical treatment should be given or refused.

What is required under the Act of the registered medical practitioners (http://www.health.vic.gov.au/mta/required.htm)

The decision a person or their agent makes about medical treatment is affected by the amount of information provided by the treating doctor. The information provided to the patient or the agent should be complete and easily understood. The medical practitioner should be satisfied that the person understands risks involved with the proposed procedure or treatment and any alternatives.
At least one witness on the refusal of medical treatment certificate must be a registered medical practitioner and may also be the treating doctor. Once, however, the treating doctor is aware that a certificate exists, it is an offence for that doctor to continue or undertake any medical treatment covered by the certificate.

The Act protects all registered medical practitioners or a person acting under their direction who refuse to perform or continue a procedure or a medical treatment in accordance with a refusal of medical treatment certificate. A medical practitioner is not guilty of misconduct, any offence or liability in any civil proceeding for failing to perform or continue the relevant treatment.
The Board of a hospital or the proprietor of a private hospital or nursing home must take reasonable steps to ensure a copy of a refusal of treatment certificate or a notice of its cancellation is attached to the medical record of the patient in the hospital or home and sent to the Victorian Civil and Administrative Tribunal (VCAT) within 7 days of its completion.

Contacts (http://www.health.vic.gov.au/mta/contacts.htm)

For further information please contact:
Ellen Kittson
Telephone: (03) 9637 4998
Email: ellen.kittson@dhs.vic.gov.au
or write to:
Ellen Kittson
Manager, Biotechnology, Safety and Ethics
Public Health Group, Department of Human Services
18th Floor, 120 Spencer Street
Melbourne, Victoria 3000

Related information (http://www.health.vic.gov.au/mta/related.htm)

A range of agencies and organisations provide information, advice and support for persons needing more information on either creating a refusal of medical treatment certificate or appointing a power of attorney (medical treatment).
Office of the Health Services Commissioner

Office of the Public Advocate

Office of Senior Victorians

BACKGROUND MEDICAL TREATMENT ACT (provided to Choice by a contributor (thank you) as a matter of interest to readers)

[These notes haven't been verified against other sources - simply a quick search of available VESV Reports and one or two articles.]

In 1985 a young man (McEwan, 29) became a quadriplegic following a diving accident (Murray River). He spent about 12 months struggling on a ventilator. He kept asking to be allowed to die as there was no chance of any improvement. But despite legal advice, media attention etc etc he was unable to get his wish. He died in April 1986.

Around the same time there was overall increased interest in "voluntary euthanasia" with Helga Kruhse running a program for senior medical professionals at Monash Uni, the increasing use of respirators to prolong life (not readily available till around this time) and developing interest in bioethic issues.

In addition in 1986 VESV sponsored a poll by Morgan which showed that more than 85% of those questioned approved the right to die (in particular situations ie terminal etc).

The Vic govt in April 1986 (month that McEwen died) set up an inquiry by its Social Development Committee inviting submissions on the "Options for Dying With Dignity".

As a consequence, the Vic parlt passed the Medical Treatment Act. As the May 1988 VESV Report says, many were disappointed that this law did not establish the right to die. What it did do was clarify the common law (case law) position that individuals had the right to refuse medical treatment.

The Bill did not get through parlt as quickly as one would have believed, given that the Social Development Committee was bipartisan, the Bill was supported by the RC Church etc. The Liberal Party (opposition) announced it was "fraught with uncertainties and dangers".

However, the Bill was finally passed ( Alan Hunt Liberal defied his Party and abstained from voting). The final Act of Parlt did not contain, however, the extremely important Clause 9 which set out an agent's right to act for an incompetent person. (Thus a huge 'watering down' of the legislation.)

If you cannot see the menu, click here for an alternate menu