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Advance Care Directives

From 1 July 2014 the Advance Care Directives Act 2013 (SA) is in operation. This allows a person to:

  • set out values and wishes to guide decisions about their future healthcare and other personal matters
  • set out what, if any, particular healthcare they refuse and in what circumstances and
  • appoint one or more substitute decision-makers.

It will no longer be possible for a person to appoint a guardian under the Guardianship and Administration Act 1993 (SA). However, any power of guardianship executed and guardian appointed before 1 July 2014 will be taken to be an advance care directive and substitute decision-maker under the Advance Care Directives Act 2013 (SA).

It will no longer be possible to complete an anticipatory direction or make a medical power of attorney appointing a medical agent under the Consent to Medical Treatment and Palliative Care Act 1995 (SA). However, any directive or medical power of attorney given and agent appointed before 1 July 2014 will be taken to be an advance care directive and substitute decision-maker under the Advance Care Directives Act 2013 (SA).

See: Advance care directives before July 2014

All references in this section are to the Advance Care Directives Act 2013 (SA) unless stated otherwise.

The Advance Care Directives Act

Section 11 of the Advance Care Directives Act 2013 (SA) provides the ability to make an advance care directive. An advance care directive covers personal matters: future health care, residential and accommodation matters and personal affairs [s 11(3) Advance Care Directives Act 2013]. Thus, an advance care directive is different from an enduring power of attorney, which covers the management only of a person's financial affairs.

A person can only make an advance care directive for himself or herself [s 11(4)]. A person cannot make an advance care directive on behalf of another person, even if they are the guardian or parent of that person.

Both types of advance directives (enduring powers of attorney and advance care directives) are arrangements which allow a person to plan ahead, thereby providing a possible alternative to the involvement of the South Australian Civil and Administrative Tribunal (SACAT) at a later stage in a person's life should they become legally incapacitated.

Another key difference between an enduring power of attorney and an advance care directive relates to the need to appoint a substitute decision maker. An enduring power of attorney document must appoint someone to make decisions for the donor of the power. However, there is no need to appoint a substitute decision maker when making an advance care directive. The directive may simply be used to set out a person’s wishes in relation to future health care, residential and accommodation matters and their personal affairs.

Recognition of interstate advance care directives

Documents equivalent to the South Australian advance care directive that have been made under interstate law are recognised in South Australia and treated as if they were advance care directives made under the Advance Care Directives Act 2013 (SA) [s 33(2)(a), reg 12].

However, an interstate advance care directive can only be revoked in the manner allowed for under the relevant interstate law. Apart from revocation, the Advance Care Directives Act 2013 (SA) applies to an interstate advance care directive [s 33(2)(b)]. Thus, even if certain provisions are acceptable under interstate law, if they are not allowed to be included under South Australian law, they are not valid. See: What can be included in an advance care directive.

Objects of the Act

The Advance Care Directives Act 2013 sets out the following objects [s 9]:

  • to enable competent adults to give directions about their future health care, residential and accommodation arrangements and personal affairs
  • to enable competent adults to express their wishes and values in respect of health care, residential and accommodation arrangements and personal affairs, including by specifying outcomes or interventions that they wish to avoid
  • to enable competent adults to allow decisions about their future health care, residential and accommodation arrangements and personal affairs to be made by another person on their behalf
  • to ensure, as far as is reasonably practicable and appropriate, that health care that is provided to a person who has given an advance care directive accords with the person's directions, wishes and values
  • to ensure that the directions, wishes and values of a person who has given an advance care directive are considered in dealing with the person's residential and accommodation arrangements and personal affairs
  • to protect health practitioners and others giving effect to the directions, wishes and values of a person who has given an advance care directive
  • to provide mechanisms for the resolution of disputes relating to decisions made on behalf of those who have given an advance care directive.

Principles in the Act

The Advance Care Directives Act 2013 s 10 sets out the following principles that must be taken into account in relation to the ‘administration, operation and enforcement’ of the Act and the resolution of disputes under the Act:

  • an advance care directive enables a competent adult to make decisions about his or her future health care, residential and accommodation arrangements and personal affairs either by stating their own wishes and instructions or through 1 or more substitute decision-makers
  • a competent adult can decide what constitutes quality of life for him or her and can express that in advance in an advance care directive
  • a person is, in the absence of evidence or a law of the State to the contrary, to be presumed to have full decision-making capacity in respect of decisions about his or her health care, residential and accommodation arrangements and personal affairs
  • a person must be allowed to make their own decisions about their health care, residential and accommodation arrangements and personal affairs to the extent that they are able, and be supported to enable them to make such decisions for as long as they can
  • a person can exercise their autonomy by making self-determined decisions, delegating decision making to others, making collaborative decisions within a family or community, or a combination of any of these, according to a person's culture, background, history, spiritual or religious beliefs
  • subject to this Act, an advance care directive, and each substitute decision-maker appointed under an advance care directive, has the same authority as the person who gave the advance care directive had when he or she had full decision-making capacity
  • a decision made by a person on behalf of another in accordance with this Act:
    • must, as far as is reasonably practicable, reflect the decision that the person would have made in the circumstances; and
    • must, in the absence of any specific instructions or expressed views of the person, be consistent with the proper care of the person and the protection of his or her interests; and
    • must not, as far as is reasonably practicable, restrict the basic rights and freedoms of the person;
  • in the event of a dispute arising in relation to an advance care directive, the wishes (whether expressed or implied) of the person who gave the advance care directive are of paramount importance and should, insofar as is reasonably practicable, be given effect
  • subject to this Act, in determining the wishes of a person who gave an advance care directive in relation to a particular matter, consideration may be given to:
    • any past wishes expressed by the person in relation to the matter; and
    • the person's values as displayed or expressed during the whole or any part of his or her life; and
    • any other matter that is relevant in determining the wishes of the person in relation to the matter.

Making an advance care directive

Competence

A competent adult may make an advance care directive [Advance Care Directives Act 2013 (SA) s 11].

An adult person wanting to make an advance care directive needs to complete a specific form while she or he has legal capacity, that is, while she or he is ‘competent’. To be ‘competent’ to make an advance care directive, a person must understand what an advance care directive is and the consequences of giving an advance care directive [s 11(1)].

Sometimes it is difficult to assess whether or not someone is competent. Someone who is not competent would be unable to understand the nature of the document and its effect, or be unable to communicate in any way.

Being physically incapacitated, for example being paralysed and unable to sign documents, does not mean that a person is necessarily not competent. The person may still be able to understand the document and its implications. If the person is able to communicate this in some way, then they can be considered competent.

This can be a complex area of law. If there is a question about a person's competence it is best to obtain a written medical opinion, preferably from the person's own doctor.

A person who induces another to make an advance care directive using dishonesty or undue influence is guilty of an offence [s 56(1)]. The maximum penalty is imprisonment for 10 years.

Forms

An advance care directive must be made using a specific form [s 11(2)(a)].

A DIY Kit containing the form and instructions on how to complete it is also available.

A witness to an advance care directive will need an Advance Care Directive Information Sheet to give to the person completing the directive. The information sheet is in the kit.

The form can be filled in and created online at www.advancecaredirectives.sa.gov.au. Alternatively, the blank form and the kit can both be downloaded and printed free of charge from www.advancecaredirectives.sa.gov.au.

If you do not wish to print your own form, hard copies of the form and kit can be purchased at a cost of $5 from Service SA.

The form can be purchased at a cost of $1 from Service SA.

Witnessing an advance care directive form

When a person has completed an advance care directive form, they must sign the form in the presence of a ‘suitable’ witness [Advance Care Directives Act 2013 (SA) s 15(1)(a), Advance Care Directives Regulations 2014 (SA) reg 7(1)] - see below.

When a substitute decision-maker is being appointed

If the person is appointing a substitute decision-maker under the advance care directive, then the advance care directive must not be witnessed until each substitute decision-maker appointed has completed and signed the relevant part of the form [regs 7(1)(a), 8(1)].

Witness obligations

Before the person signs the form, the witness must give the person an ‘advance care directive information statement’ [s 15(1)(b)(i), reg 7(2)]. This statement is available in the DIY Kit from: www.advancecaredirectives.sa.gov.au

The witness must also explain to the person the legal effects of giving an advance care directive [s 15(1)(b)(ii)]. While simply giving the person an ‘advance care directive information statement’ is taken to be an explanation of the legal effects of the document [reg 7(2)], there is a further obligation on the witness to form an opinion that the person understands the information and explanation [s 15(1)(iii)]. Thus, a witness should have a conversation with the person about the proposed advance care directive to ensure that the person understands the nature and effects of the document.

If a witness has any doubt about the person’s ability to understand the nature and effects of the advance care directive, they should not sign the form. The witness may suggest that the person obtains legal advice to have the advance care directive further explained. Alternatively, if it is a question of the person’s ability to understand the document, the witness may request the person obtains a medical certificate indicating they are competent to make the advance care directive.

The witness must also form an opinion that the person does not appear to be acting under any form of duress or coercion [s 15(1)(iv)]. Again, the witness should have a conversation with the person so that they can ascertain this is the case. A person may act under duress or coercion that exists solely due to the perception of the person or a mistake on the part of the person [s 15(3)]. If the witness has any doubts, they should not sign the form.

As making an advance care directive revokes any previous advance care directive [s 17], a witness should ask the person whether they have previously made an advance care directive and form the opinion that the person understands the consequences of revoking the existing advance care directive [s 29(1)]. See: Changing or revoking an advance care directive.

Conflict of interest

A person cannot witness an advance care directive if he or she [s 15(2)]:

  • is appointed under the advance care directive as a substitute decision-maker
  • has a direct or indirect interest in the estate of the person giving the advance care directive (whether as a beneficiary of the person's will or otherwise)
    • note that it is the responsibility of the witness to make sure they are not in this position – if in doubt, a witness should not sign
  • is a health practitioner who is responsible (whether solely or with others) for the health care of the person giving the advance care directive
  • occupies a position of authority in a hospital, hospice, nursing home or other facility at which the person giving the advance care directive resides.

Suitable witnesses

A suitable witness is someone who is:

  • ‘competent’, that is, someone who understands the nature and legal effects of the proposed advance care directive [reg 7(3)(a)] and
  • comes under the list of suitable witnesses in schedule 1 of the Advance Care Directives Regulations 2014 [reg 7(3)(b)].

When a peson's first language is not English

An advance care directive form must be completed in English [s 14(1)(c)]. However, a person may give an advance care directive with the assistance of an interpreter, using a language in which the person is fluent [s 14(1)(a)].

If an interpreter is used, the interpreter must fill in the section of the form that certifies that the information recorded in the advance care directive form accurately reproduces in English the original information and instructions of the person provided when giving the advance care directive [s 14(1)(d)(ii)].

Before the form is witnessed, the interpreter must translate the ‘advance care directive information statement’ for the person [s 14(1)(b)]. The interpreter must also complete the section of the form that certifies that, in his or her opinion, the ‘advance care directive information statement’ was given to the person and the person appeared to understand the statement [s 14(1)(d)(i)].

A person who is a ‘suitable’ witness in relation to a particular advance care directive may also act as an interpreter for the person giving the directive [s 14(2)].

When an advance care directive can be used

While an advance care directive comes into force as soon as it is witnessed in accordance with the Advance Care Directives Act 2013 (SA) [s 16(1)], it may only be used by a substitute decision maker or health practitioner if the person who gave the advance care directive has impaired decision making capacity [s 34]. Note that the impaired capacity must relate to the particular decision that has to be made at the time [s 34].

If a person who has not been appointed as a substitute decision-maker under an advance care directive acts as if they have been so appointed, then they commit an offence [s 56(2)(b)]. The maximum penalty is imprisonment for 10 years.

Impaired decision-making capacity

A person is considered to have impaired decision-making capacity in respect of a particular decision if [ss 7(1)-(2)]:

  • the person is not capable of understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision);
    • however, a person will not be taken to be incapable of understanding information merely because the person is not able to understand matters of a technical or trivial nature
  • the person is not capable of retaining such information;
    • however, a person will not be taken to be incapable of retaining information merely because the person can only retain the information for a limited time
  • the person is not capable of using such information in the course of making the decision
  • the person is not capable of communicating his or her decision in any manner.

An advance care directive given by the person may set out when he or she is to be considered to have impaired decision-making capacity (however described) in relation to particular decisions [s 7(1)(b)].

Note that, under s 10, a person is presumed to have full decision-making capacity, must be allowed to make their own decisions to the extent that they are able, and may make decisions in collaboration with others.

Note further that a person may fluctuate between having impaired decision-making capacity and full decision-making capacity [s 7(2)(c)] and that a person's decision-making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person [s 7(2)(d)].

Changing or revoking an advance care directive

Making a new advance care directive

It is not possible for a person to change an advance care directive [Advance Care Directives Act 2013 (SA) s 18]. If a person wishes to change, delete or add to an advance care directive, they must make a completely new advance care directive and go through the witnessing process again.

If a person makes a new advance care directive, then any previous advance care directive is automatically revoked when the new one comes into force [s 17], that is, when the new one has been witnessed as required by the Act [s 16(1)].

If a person who is competent revokes an advance care directive, either by making another directive or giving written notice, they must, as soon as practicable [s 29(3)]:

  • advise each substitute decision-maker appointed under the advance care directive of the revocation, and
  • take reasonable steps to notify each other person who has been given a copy of the advance care directive of the revocation.

If a person who was a substitute decision-maker knows that the advance care directive appointing them has been revoked but they then act as if they were still a substitute decision-maker, they commit an offence with a maximum penalty of 10 years imprisonment [s 56(2)(a)].

Making another directive when the person is competent

An advance care directive may be revoked by making another advance care directive [s 17(1), Advance Care Directives Regulations 2014 (SA) reg 10(a)]. In this case, the earlier directive is revoked at the time the later directive comes into effect, that is, when the later directive has been witnessed in accordance with the Act [s 17(2), s 16(1)].

In assessing the person’s competence to make the new directive, the witness should also form an opinion that the person understands the consequences of revoking the earlier directive [s 29(1)].

Giving written notice when the person is competent

An advance care directive may also be revoked by the person giving, or causing to be given, a written indication that he or she has revoked the advance care directive [reg 10(b)].

In order for the revocation to be effective, the person must have been competent at the time of giving the notice and have understood the consequences of making the revocation [s 29(1)].

If there is any doubt as to the person’s competence or understanding of the consequences of making a revocation, then SACAT must be advised of the situation. See: When the person is not competent.

When the person is not competent

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), reg 11]

IF:

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

AND:

they believe that the person is not competent or does not appear to understand the consequences of revoking an advance care directive

THEN:

they must advise SACAT

BY:

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 its internal review process, see State administrative appeals.

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 21 days [s 54(2)]. See SACAT - notice of proceedings.

What can be included in an advance care directive

Directions, wishes and values

A competent adult may use an advance care directive to give directions about their future health care, residential and accommodation arrangements and personal affairs [Advance Care Directives Act 2013 (SA) s 9(a)].

A competent adult may also use an advance care directive to express their wishes and values in about health care, residential and accommodation arrangements and personal affairs, including by specifying outcomes or interventions that they wish to avoid [s 9(b)].

See also: Giving effect to an advance care directive.

Binding provisions

A provision of an advance care directive comprising a refusal of particular health care (whether express or implied) is a binding provision [s 19(1)].

If a binding provision of an advance care directive is expressed to apply, or to be binding, only in specified circumstances, the provision will be taken to be a binding provision only in respect of those circumstances [s 19(2)].

All other provisions of an advance care directive are non-binding provisions [s 19(3)].

Appointment of Substitute Decision-Makers

A person giving an advance care directive may appoint one or more adults to be substitute decision-makers in respect of the advance care directive [Advance Care Directives Act 2013 (SA) s 21(1)].

Who cannot be a substitute decision-maker

Certain persons cannot be appointed or act as substitute decision-makers [s 21(2)]:

  • a person who is not competent
  • a health practitioner who is responsible (whether solely or with others) for the health care of the person giving the advance care directive
  • a paid carer of the person giving the advance care directive.

Acceptance of appointment

A substitute decision-maker must certify, by completing and signing the relevant part of the advance care directive form, that he or she accepts the appointment as a substitute decision-maker, and has read and understands the guidelines for substitute decision-makers (available at: www.advancecaredirectives.sa.gov.au) [s 21(3), Advance Care Directives Regulations 2014 (SA) reg 8].

A substitute decision-maker must accept their appointment before the advance care directive is signed by the person appointing them, that is, before the advance care directive is witnessed [reg 8(1)].

Powers of a substitute decision-maker

A substitute decision-maker appointed under an advance care directive may make any decision that the person who gave the advance care directive could have lawfully made in relation to [s 23]:

  • health care
  • residential and accommodation arrangements
  • personal affairs.

The advance care directive may limit the matters a substitute decision-maker can make decisions about.

An advance care directive cannot be used to allow a substitute decision-maker to perform functions that the person who gave the advance care directive has as a trustee or personal representative of another [s 23(3)].

An advance care directive does not authorise a substitute decision-maker to refuse the administration of drugs to relieve pain or distress, or the natural provision of food and liquids by mouth [s 23(4)].

Although a substitute decision-maker has a responsibility to protect a person's interests, he or she does not have the obligation to care for the daily needs of that person. The decisions of a substitute decision-maker extend to all personal decisions (unless limited by the advance care directive); however, the substitute decision-maker has no authority to interfere with civil liberties, for example, intercepting mail or preventing a person from marrying.

Renouncing an appointment

A substitute decision-maker may renounce their appointment by giving written notice to the person who appointed them [s 27(1)].

The permission of SACAT is needed if a substitute decision-maker is the only person appointed under an advance care directive, and they wish to renounce their appointment during a period in which the person who gave the advance care directive is not competent, [s 27(3)].

Removal of Substitute Decision-Maker by SACAT

In circumstances where a substitute decision-maker:

  • is no longer willing to act as a substitute decision-maker under an advance care directive; or
  • has been negligent in the exercise of their power; or
  • is not, in the opinion of SACAT, fit to continue as a substitute decision-maker, then

SACAT may, of its own motion or on application by an eligible person:

  • revoke the appointment of the substitute decision-maker;
  • if the person who made the advance care directive has capacity (and consents) - vary the advance care directive as appropriate including appointing another substitute decision-maker; or
  • if the person who made the advance care directive does not have capacity, and no other substitute decision-maker was appointed - revoke the advance care directive.

See section 51 of the Advance Care Directives Act 2013 (SA).

A revocation of an advance care directive by SACAT in these circumstances should not occur if there are still provisions in the document that can continue to have effect, in spite of the removal of the substitute decision-maker [Advance Care Directives Act 2013 (SA) s 51(5)].

What cannot be included

If an advance care directive contains any of the following provisions, that provision is void and of no effect. Any other provisions of the advance care directive remain effective.

Powers of attorney

An advance care directive cannot give a power of attorney in relation to financial matters [Advance Care Directives Act 2013 (SA) s 13(1)]. This must be done under the Powers of Attorney and Agency Act 1984 (SA).

Stipulation of health care

Although a person may refuse health care of any kind, or require it to be stopped, including health care that would save or prolong their life, a health practitioner cannot be compelled to provide a particular form of health care to a person by an advance care directive [ss 6(1)-(2)].

Unlawful acts

An advance care directive cannot include a provision that is unlawful, or that would require an unlawful act to be performed , for example, euthanasia [s 12(1)(a)].

Contravention of professional standards

An advance care directive cannot include a provision that would, if given effect, cause a health practitioner or other person to contravene a professional standard or code of conduct applying to the health practitioner or person [s 12(1)(a)].

Refusal of mandatory treatment

An advance care directive cannot include a provision that amounts to a refusal of mandatory medical treatment [s 12(1)(b)].

'Mandatory medical treatment' is:

Giving effect to an advance care directive

Substitute Decision-Makers

Principles of decision-making

When making a decision under an advance care directive, a substitute decision-maker must, as far as is reasonably practicable [s 35(1)(a)]:

  • give effect to any instructions or directions expressed in the advance care directive
  • seek to avoid any outcome or intervention that the person who gave the advance care directive would wish to be avoided (whether such wish is expressed or implied)
  • obtain, and have regard to, the wishes of the person who gave the advance care directive (whether such wishes are expressed or implied)
  • endeavour to make the decision in a manner that is consistent with the principles set out in section 10 (principles in relation to advance care directives).

The substitute decision-maker must make the decision that he or she reasonably believes the person who gave the advance care directive would have made in the circumstances [s 35(1)(b)] and must act in good faith and with due diligence [s 35(1)(c)].

A substitute decision-maker should not ignore professional advice or damage any relationships or friendships that the person has. The substitute decision-maker can request services and information from service providers, and has the authority to speak on behalf of the person who appointed them, to ensure that necessary services are provided.

Making decisions when there is more than one substitute decision-maker

If more than one person is appointed as a substitute decision-maker, then the substitute decision-makers may either make decisions together, or separately [s 22], unless the advance care directive says otherwise. An advance care directive may require substitute decision-makers to make decisions together. Alternatively, an advance care directive may say, for example, that one substitute decision-maker can make decisions about certain matters, and another substitute decision-maker can make decisions about other matters.

Notification of decisions

If a substitute decision-maker makes a decision under the advance care directive, he or she must take reasonable steps to notify each other substitute decision-maker appointed under the advance care directive of the decision [s 25].

Health Practitioners

A health practitioner who is providing, or is to provide, health care to a person who has given an advance care directive and who has impaired decision-making capacity in respect of a decision that is required in relation to the health care [s 36(1)]:

  • must comply with a binding provision of the advance care directive that relates to health care of the relevant kind
  • should, as far as is reasonably practicable, comply with a non-binding provision of the advance care directive that relates to health care of the relevant kind
  • must, as far as is reasonably practicable, seek to avoid any outcome or intervention that the person who gave the advance care directive would wish to be avoided (whether such wish is expressed or implied)
  • must endeavour to provide the health care in a manner that is consistent with the principles set out in section 10 (principles in relation to advance care directives).

When an advance care directive may not be followed

A health practitioner may refuse to comply with a provision of an advance care directive if the health practitioner believes on reasonable grounds that [s 36(2)]:

  • the person who gave the advance care directive did not intend the provision to apply in the particular circumstances, or
  • the provision does not reflect the current wishes of the person who gave the advance care directive.

A health practitioner may refuse to comply with a provision of an advance care directive that specifies the kind of health care that the person who gave the advance care directive wishes to receive if such health care [s 36(3)]:

  • is not consistent with any relevant professional standards, or
  • does not reflect current standards of health care in the State.

However, a health practitioner must still comply with a binding provision even if it is not consistent with any relevant professional standards or does not reflect current standards of health care in the State [s 36(4)].

Similarly, if a provision of an advance care directive relates to the withdrawal or withholding of health care, including the withdrawal or withholding of life-sustaining measures, then a health practitioner cannot refuse to comply with the provision on the basis that it is not consistent with any relevant professional standards or does not reflect current standards of health care in the State [s 36(4)].

A health practitioner may refuse to comply with a provision of an advance care directive on conscientious grounds [s 37]. In this case, care of the person should be given to another health practitioner.

Advance care directives before July 2014

Prior to July 2014, it was possible to make three different types of advance care directive: an enduring power of guardianship, a medical power of attorney, and an anticipatory direction. These forms of advance care directive are no longer available. The current advance care directive form enables a person to do anything they could have done using these previous types of directive.

However, any enduring power of guardianship, medical power of attorney, or anticipatory direction made before July 2014 is still valid. There is no need to make an advance care directive to replace a previous form.

enduring power of guardianship

While it is no longer possible for a person to appoint a guardian under the Guardianship and Administration Act 1993 (SA), any enduring power of guardianship executed and guardian appointed before 1 July 2014 will be taken to be an advance care directive and substitute decision-maker under the Advance Care Directives Act 2013 (SA) [sch 1 cl 35(1)].

incomplete enduring guardianship forms

If an enduring guardianship form had been created prior to July 2014 but the person appointed as the enduring guardian had not signed the acceptance section of the form, or the form had not been witnessed, then the form can still be completed (endorsed or signed or both) [sch 3 cl 1(3) Advance Care Directives Regulations 2014]. Upon endorsement and signing, the enduring guardianship form will be taken to be an advance care directive [sch 3 cls 1(3)(c), (7)]. Any incomplete enduring guardianship forms must be completed by 31 December 2015 [sch 3 cl 1(3(b)(ii)]. After this date, an advance care directve form must be used.

medical power of attorney

While it is no longer possible to make a medical power of attorney appointing a medical agent under the Consent to Medical Treatment and Palliative Care Act 1995 (SA), any medical power of attorney executed and agent appointed before 1 July 2014 will be taken to be an advance care directive and substitute decision-maker under the Advance Care Directives Act 2013 (SA) [sch 1 cl 33(1)].

anticipatory directions

Similarly, while it is no longer possible to complete an anticipatory direction under the Consent to Medical Treatment and Palliative Care Act 1995 (SA), any anticipatory direction made before 1 July 2014 will be taken to be an advance care directive under the Advance Care Directives Act 2013 (SA) [sch 1 cl 32(1)].

Natural Death Act forms

Formerly, the Natural Death Act 1983 (SA) enabled a person suffering from a terminal illness to complete a form similar to an anticipatory direction form. In 1995 the Act was revoked, but any declarations made before 1995 were still valid under the Consent to Medical Treatment and Palliative Care Act 1995 (SA). Natural Death Act directions made before 1995 are still valid and taken to be an advance care directive under the Advance Care Directives Act 2013 (SA) [sch 1 cl 34(1)].

multiple forms

If a person has made more than one of an enduring power of guardianship, a medical power of attorney, and an anticipatory direction, they are all valid, but they are treated as one advance care directive under the Advance Care Directives Act 2013 (SA) [sch 1 cl 36].

Provisions contrary to the Advance Care Directives Act 2013

As these pre July 2014 forms are taken to be advance care directives, any provision they may contain that is contrary to the Advance Care Directives Act 2013 (SA) is of no effect [sch 1 cl 32(2), 33(2), 34(2), 35(2); sch 3 cl 1(6)]. See: What cannot be included.

Revocation of pre July 2014 forms

As the pre July 2014 forms are taken to be advance care directives, they can be revoked in the same way as an advance care directive. See: Changing or revoking an advance care directive. A competent adult who has made one or more of the former advance care directives may choose to revoke them by making a new advance care directive. If a person has more than one of the former directives, making a new advance care directive will revoke all of them.

Disputes

Any disputes concerning pre July 2014 forms are dealt with as if the forms were advance care directives. See Disputes.

Disputes about advance care directives

Disputes that may be dealt with by the Public Advocate or SACAT

If there is a dispute about [s 44]:

  • the giving or revoking of an advance care directive
  • a decision, or proposed decision, under an advance care directive
  • the provision, or proposed provision, of health care to a person who has given an advance care directive
  • a matter related to the residential and accommodation arrangements and personal affairs of a person who has given an advance care directive [Advance Care Directives Regulations 2014 (SA) reg 13]

then the Public Advocate or SACAT may be approached to resolve the dispute.

The Public Advocate or SACAT may refer any question of law for the opinion of the Supreme Court [s 53].

Those who may go to the Public Advocate or SACAT for assistance about an advance care directive are [s 43]:

  • the person who gave the advance care directive
  • a substitute decision-maker appointed under the advance care directive
  • a health practitioner providing, or proposing to provide, health care to the person who gave the advance care directive
  • any other person who satisfies the Public Advocate or SACAT that they have a proper interest in a particular matter relating to the advance care directive.

Public Advocate

The Public Advocate may:

  • give preliminary assistance to help resolve the matter [Advance Care Directives Act 2013 (SA) s 45(1)]
  • mediate the matter [s 45(2)]
  • make a declaration about certain specified matters [s 45(5)(a)]
    • a declaration as to the nature and scope of a person's powers or responsibilities under the advance care directive
    • a declaration as to whether or not a particular act or omission is within the powers, or discharges the responsibilities, of a person under the advance care directive
    • a declaration as to whether or not the person who gave the advance care directive has impaired decision-making capacity in relation to a specified decision
  • give advice to the parties [s 45(5)(b)].

The Public Advocate may refer a matter he is mediating to SACAT [s 45(3)], or refer a request for a declaration or advice on the basis that it would be more appropriate for the matter to go to SACAT [s 45(7), s 46].

See the Office of the Public Advocate's website for more information.

South Australian Civil and Administrative Tribunal (SACAT)

SACAT may:

It is an offence not to comply with a direction of SACAT in relation to s 48 [s 50].

SACAT may also review a declaration made by the Public Advocate [s 48(1)(a)].

SACAT may refuse to hear a matter because [s 48(2)]:

  • the matter lacks substance, is unnecessary or unjustifiable, or is frivolous, vexatious or not made in good faith; or
  • to conduct a review would be an abuse of the processes under the Act; or
  • the matter should be determined by way of legal proceedings.

If SACAT is of the opinion that it is more appropriate that a particular application be dealt with by the Public Advocate, SACAT may refer the matter to the Public Advocate [s 49(1)].

Notice of proceedings

The Tribunal must give reasonable notice of the time and place of proceedings before the Tribunal to the applicant; the person to whom the proceedings relate; the Public Advocate; such other persons as the Tribunal considers have a proper interest in the matter [s 54(1)].

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)].

In any other urgent type of matter, the Tribunal may make an order that has effect for 21 days [s 54(2)].

Representation before SACAT

In addition to being able to appear personally or by counsel [s 56 South Australian Civil and Tribunal Act 2013], a person may be represented by the Public Advocate or, except in the case of an internal review, by a recognised advocate [s 54B].

Reasons for decisions

Written reasons for decisions of the Tribunal must be given to a person who has a right to seek an internal review, if the person requests the reasons. The request for reasons must be made before the time limit for seeking the review, or, if the application for review has already been made, before the review is decided. [s 54A]

Written reasons must also be given on request by a person who satisfies the Tribunal they have a proper interest in the matter [s 54A].

Appealing a SACAT decision

An internal review of a decision of the Tribunal may be sought by the original applicant; a person to whom the proceedings relate; the Public Advocate; any person who presented evidence or material before, or made submissions to, the Tribunal in the relevant proceedings; or any other person who satisfies the Tribunal that they have a proper interest in the matter.

With the leave of the Supreme Court, a further appeal may be made to the Supreme Court.

Former Guardianship Board matters

Any matters commenced in the Guardianship Board before 30 March 2015 will be transferred to SACAT.

If prior to 30 March 2015 a right to make an application or referral, or to seek a review to the Guardianship Board existed, then from 30 March 2015, the matter will be heard before SACAT.

If prior to 30 March 2015 a right of appeal from the Guardianship Board to the District Court existed, then the appeal may still be made to the District Court.

Urgent review by Supreme Court

The Supreme Court may make an urgent review of the decision of a substitute decision-maker appointed under an advance care directive, on the application of:

  • a health practitioner responsible (whether solely or with others) for the health care of a person who has given an advance care directiver
  • any person who has, in the opinion of the Court, a proper interest in the exercise of powers by the substitute decision-maker.

The review is limited to ensuring that the substitute decision-maker's decision is in accordance with the advance care directive and the Advance Care Directives Act 2013 (SA) [s 52(2)(a)]. The review cannot be undertaken in respect of a decision to withdraw or withhold health care if the person who gave the advance care directive is in the advanced stages of an illness without any real prospect of recovery and the effect of the health care would be merely to prolong the person's life [s 52(2)(b)].

    Advance Care Directives  :  Last Revised: Fri Jul 4th 2014
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