Statutory Refusal of Treatment Certificate
The Medical Treatment Act 1988 (Vic) provides for a statutory health directive called the ‘Refusal of Treatment Certificate’.
A Refusal of Treatment Certificate can be signed by a person 18 years or over who is of ‘sound mind’. It allows them to refuse medical treatment generally or to refuse a specific kind of medical treatment. Medical treatment includes operations and medication (apart from palliative care). Note that the Refusal of Treatment Certificate does not apply to a potential future condition; it applies only to a current condition.
A Refusal of Treatment Certificate must be signed voluntarily without inducement or compulsion. The signature must be witnessed by a registered medical practitioner and another person. Each must be satisfied that the person in question has been sufficiently informed about their condition, appears to understand that information and has clearly expressed or indicated their decision to refuse treatment.
Once a Refusal of Treatment Certificate is signed, it is against the law for a medical practitioner to treat or continue to treat an individual once they are aware that it is in existence. Likewise, if a medical practitioner refuses in good faith to provide medical treatment in line with the Refusal of Treatment Certificate they cannot be held liable for that person’s injury or death.
Refusal of Treatment Certificates can be signed in hospitals or at home. A copy of the Certificate must be given to the Victorian Civil and Administrative Tribunal (‘VCAT’) by the witnessing doctor.
Person with Capacity
A Refusal of Treatment Certificate can be signed by a person if they are 18 year or over and have capacity. The Refusal of Treatment Certificate: Competent Person form is available via the Office of the Public Advocate of Victoria. The form allows an individual to list the type of treatment they want to refuse. The signing of the form must be witnessed by a doctor and another person who must each be satisfied that the person in question understands their condition and the consequences of signing the Refusal of Treatment Certificate.
Person without Capacity — Power of Attorney or Guardian
The person may have appointed an agent under an enduring power of attorney (medical treatment) to make decisions on their behalf. A guardian may also have been appointed by VCAT if they lack capacity to make decisions for themselves. In these instances, the relevant representative can sign a Refusal of Treatment on behalf of the person. Again, the form must be witnessed by a doctor and another person who are satisfied that the person understands their condition and the consequences of signing the Refusal of Treatment Certificate.
Before the representative can sign the form, they must be satisfied that the medical treatment would cause the person in question unreasonable distress or there are reasonable grounds for believing that the person would consider the treatment unwarranted after serious consideration.
The Certificate can be cancelled by signing the Notice of Cancellation, at the bottom of the Refusal of Treatment Certificate.
Penalties apply to registered medical practitioners in Victoria who treat, or continue to treat, a person’s condition if they are aware of the existence of a Refusal of Treatment Certificate that applies to the person in question.
Common Law Advance Health Directive
Section 4 of the Medical Treatment Act 1988 (Vic) provides that the Act does not affect any right of a person under any other law to refuse medical treatment. This means that the common law continues to operate with regard to advance directives in Victoria.
An advance health directive may be valid at common law if all of the following conditions are satisfied:
1 Capacity: The adult must have had capacity at the time the advance health directive is made and is able to communicate the decision in some way.
2 Voluntariness: The directive must be made voluntarily without coercion or undue influence.
3 Specificity: The adult intended the refusal to apply to the specific situation that later arose.
There are no formal requirements at common law that mean an advance health directive needs to be in writing and be witnessed, though these elements will be persuasive in suggesting that the directive has been made and meets the requirements.
If a health professional fails to comply with an advance care directive that meets the relevant standards, this may constitute a common law assault or battery.
Further Information including relevant forms: