Victorian Law update - Witnessing an Advanced Care Directive is not a standard consult

The way a patient in Victoria can direct their care after they lose decision making capacity changed with the introduction of the Medical Treatment Planning and Decisions Act 2016.

Date published





In March 2018, the way a patient in Victoria can direct their care after they lose decision making capacity changed with the introduction of the Medical Treatment Planning and Decisions Act 2016 (‘Act’).  This Act replaces the former Medical Treatment Act 1988 but preserves refusal of treatment certificates or enduring powers of attorney (medical treatment), unless they are formally revoked or cease to have effect.

The Act provides for individuals to execute in advance what they do and do not want in terms of medical treatment.  These may be binding directives or more general statements as to a person’s values that will direct decisions about medical treatment or care when the person does not have decision making capacity. 

The Act sets out formal requirements to create valid advanced care directives (‘ACD’).  Specifically an ACD must:

  • be in writing and in English
  • include the full name, date of birth and address of the person giving it
  • be signed by the person giving it, and
  • be witnessed by two adults, neither of whom may be an appointed medical treatment decision maker of the person giving the advanced care directive, and one of whom must be a medical practitioner (s.17).

Witnessing an ACD is not a case of merely witnessing a signature.  At the time of witnessing the signing of the ACD the witnesses must certify that the person appeared to freely and voluntarily sign the document and signed the document in the presence of two witnesses.  However the witnesses must also certify that the person giving the ACD appeared to have decision making capacity in relation to each statement in the directive.  This imposes a particular professional burden on a medical practitioner asked to witness an ACD.  

The Act gives clear guidance in Section 4 on the necessary considerations a witness should have in addressing decision making capacity – the absence of which would invalidate an ACD that might otherwise have complied with the Act. 

Importantly in determining whether a person has decision making capacity a witness must consider or ascertain whether a person:

  • understands the information relevant to the decision and the effect of the decision
  • is able to retain the information to the extent necessary to make the decision
  • can use or weigh that information as part of the process of making the decision, and
  • can communicate the decision and their views.

The Act notes that a person who is assessing whether a person has decision making capacity must take reasonable steps to conduct the assessment at a time and in an environment in which the person’s decision making capacity can be most accurately assessed.  The time required for this assessment should be guided by the individual circumstances of the person but also the nature of the directives and their possible outcomes proposed by a person.   

Decision making capacity for many patients will be a simple assessment.  However care should be exercised with people who are not well known to you or where you have concerns that their decisions in regards to the ACD are being influenced by another person.

Consideration as to capacity should not be hurried and medical practitioners would be wise to schedule an appropriate consult time for this discussion, to ensure the patient feels supported but not influenced by any persons attending with them and that the patient has both sufficient information and time to consider the impact of their decisions regarding future medical treatment.  A number of consults might be necessary depending on the patient’s needs and the nature of the directives in the ACD.  If there are any doubts as to capacity the matter needs to be carefully canvassed and documented in the medical records.  Input from a colleague or a specialist may be of assistance and advice from your MDO may also assist.