Medical Treatment Planning and Decisions Act 2016: What Changed and What It Means for You

What the 2016 Act Changed

The Medical Treatment Planning and Decisions Act 2016, which commenced on 12 March 2018, fundamentally restructured how medical decisions are made for people who lose capacity in Victoria. Before this Act, Victoria's framework for advance care planning was scattered across multiple pieces of legislation, the terminology was inconsistent, and advance directives had uncertain legal force.

The 2016 Act replaced that patchwork with a unified framework that made three structural changes:

Advance care directives became legally binding. Before the Act, an advance directive in Victoria was an expression of wishes — respected in practice but not enforceable. The 2016 Act made instructional directives binding on health practitioners: a doctor must follow a valid written instruction to refuse CPR or decline ventilation, even if the treating team or family disagrees.

"Medical power of attorney" was abolished. The Act created a new role — the Medical Treatment Decision Maker (MTDM) — with clearly defined scope. Unlike the old system where a broadly-scoped power of attorney could cover medical decisions alongside financial ones, the MTDM role is strictly limited to medical treatment decisions and requires its own separate appointment document.

Medical and financial/personal powers were formally separated. An Enduring Power of Attorney (EPOA) under the Powers of Attorney Act 2014 covers financial affairs and personal matters (where you live, what services you receive). It has no authority over medical treatment decisions. That separation is absolute — an EPOA attorney cannot consent to surgery, refuse a blood transfusion, or make any medical decision, regardless of what the EPOA document says.

The Key Concepts

Advance Care Directives

The Act recognises two types of directive content:

• Instructional directives — specific, binding clinical orders (e.g., "I refuse CPR"). Health practitioners must follow these as if the patient were making the decision with full capacity.
• Values directives — statements about priorities, preferences, and what quality of life means. These guide the MTDM in making decisions not covered by instructional directives, but they aren't binding in the same direct way.

An ACD can contain either or both types. The execution requirements are strict: two adult witnesses must be physically present, one must be a registered medical practitioner, and neither can be the person's MTDM. Remote witnessing is not permitted for ACDs.

Medical Treatment Decision Maker

The MTDM is the single person appointed to make medical treatment decisions when the principal lacks capacity. Only one MTDM can act at a time (though an alternative can be named in case the primary is unavailable). The MTDM's authority activates only when the principal lacks capacity and cannot override a valid instructional directive.

The MTDM appointment requires two witnesses, one of whom must be a doctor, a lawyer, or a Justice of the Peace. Unlike the ACD, the MTDM appointment can be witnessed remotely via audio-visual link, provided a special witness (a lawyer or JP) oversees the process.

The Decision-Making Hierarchy

When a person lacks capacity and no ACD covers the situation, the Act establishes a statutory hierarchy for identifying who makes treatment decisions: appointed MTDM first, then a VCAT-appointed guardian, then the closest available family member with a continuing relationship (spouse, primary carer, oldest child, oldest parent, oldest sibling). If nobody in the hierarchy is available, the Office of the Public Advocate acts as decision-maker of last resort.

Why the Pre-2018 Terminology Still Causes Problems

Despite the Act being in force since 2018, the general public — and even some health professionals — continue to use outdated terms. "Medical power of attorney," "enduring guardian," and "healthcare proxy" have no legal meaning in Victoria under the current framework. Using these terms on forms, in hospital records, or in conversations with clinical teams creates confusion at exactly the moments clarity matters most.

The terminology problem is compounded by national resources and interstate forms that use different terms for similar (but not identical) concepts. A Victorian searching "medical power of attorney form Victoria" will find resources that either predate the 2016 Act or describe interstate frameworks that don't apply in Victoria.

What You Need to Do

If you haven't created new documents under the 2016 Act, your existing arrangements may have uncertain standing. The safest approach:

1. Execute a new ACD using the current statutory form (free from health.vic.gov.au).
2. Complete a separate MTDM appointment.
3. Ensure your EPOA under the Powers of Attorney Act 2014 is current.
4. Distribute copies of all three documents to your GP, your local hospital, your MTDM, and your My Health Record.

The Victoria Advance Directive & Living Will Kit covers all three documents with step-by-step instructions aligned to the 2016 Act's requirements, including clinician-approved phrasing templates for instructional directives and a GP consultation script for the witnessing appointment.

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