SACAT is able, in certain circumstances, to revoke an advance care directive on behalf of a person who is not generally competent. The issue of whether to revoke an advance care directive may come before the Tribunal in one of two ways:
- notification of a person's wish to revoke [s 31(1)] or
- a formal application to revoke [Advance Care Directives Act 2013 (SA) s 32(2)(a)(i)].
Notification of a person's wish to revoke [s 31(1), reg 11]
anyone becomes aware that a person who has made an advance care directive wishes to, or appears to wish to, revoke the advance care directive
they believe that the person is not competent or does not appear to understand the consequences of revoking an advance care directive
they must advise SACAT
notice in writing, or by email or fax, or in such other manner and form as may be determined from time to time by the Tribunal.
Upon receiving notification of an alleged wish to revoke, SACAT may give any directions that the Tribunal thinks necessary or desirable in the circumstances of the case [s31(2)].
A person who, without reasonable excuse, refuses or fails to comply with such a SACAT direction is guilty of an offence with a maximum penalty of $20 000 or imprisonment for 6 months.
A decision by SACAT following notification of a person's wish to revoke an advance care directive is a decision made under its original jurisdiction [s 31(6)], therefore the decision is subject to internal review.
Formal application to revoke
A formal application to revoke must be made in the manner set out by SACAT [s 32(2)(a)(i)].
When SACAT will revoke an advance care directive
If SACAT receives a notification of a person's wish to revoke an advance care directive or a formal application to evoke an advance care directive, SACAT must revoke the advance care directive if it is satisfied that [s 32(2)(b)]:
- the person who gave the advance care directive understands the nature and consequences of the revocation, and
- the revocation genuinely reflects the wishes of the person, and
- the revocation is, in all the circumstances, appropriate.
An advance care directive may state that it is not to be revoked under s 31 or s 32. If so, the Tribunal 'should not revoke the advance care directive unless satisfied that the current wishes of the person who gave the advance care directive indicate a conscious wish to override such a provision' [s 32(3)].
If the Tribunal revokes an advance care directive, it [s 32(4)]:
- must advise each substitute decision-maker appointed under the advance care directive of the revocation as soon as is reasonably practicable
- must take reasonable steps to notify each other person who has been given a copy of the advance care directive of the revocation
- may give such advice and directions as the Tribunal considers necessary or desirable in the circumstances of the case.
In the case of an urgent request for revocation of an advance care directive, the Tribunal may make a decision without giving notice of the proceedings. However, the decision may only have effect for up to 14 days [s 54(2)]. See SACAT - notice of proceedings.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.