South Australia

Does South Australia have both common law Advance Care Directives and statutory Advance Care Directives?

Yes. Though the Act does not specifically refer to common law Advance Care Directives, a common law Advance Care Directive is recognised by the law. However, in South Australia, a reference to an 'Advance Care Directive' generally means a statutory Advance Care Directive.The information on this webpage applies only to statutory Advance Care Directives.

When will an Advance Care Directive apply?

An Advance Care Directive is active as soon as it is appropriately witnessed, but it cannot be followed unless the person is unable to make a particular decision for themselves due to having impaired decision-making capacity.

The person should be supported to be involved in decisions that affect their lives as much as possible. When supported decision-making is not possible, a substitute decision-maker appointed by an Advance Care Directive can make health decisions.

Learn about South Australia's laws on capacity at Capacity and consent to medical treatment.

What can an Advance Care Directive cover?

In addition to giving directions about future medical treatment, an Advance Care Directive can also be used to appoint one or more substitute decision-makers.

Advance Care Directives have legally binding and non-binding sections:

• A refusal of treatment, including withholding or withdrawing life-sustaining treatment, is binding and must be followed.
• A refusal of treatment is non-binding if it arises out of a suicide attempt or self-harm, and health care is reasonably necessary to save the person’s life (see Can a health professional decide not to follow an Advance Care Directive below).
• All other directions are non-binding but should be complied with by health professionals if possible.

What cannot be included in an Advance Care Directive?

The following directions cannot be made in an Advance Care Directive:

• A direction that is unlawful or would require an unlawful act to be performed (e.g. a request for illicit drugs).
• A direction that, if followed, would cause a health professional to breach a professional standard or code of conduct (e.g. a hospital or nursing home standard or code of conduct).
• A direction refusing mandatory medical treatment (e.g. such as treatment orders under the Mental Health Act 2009 (SA)).
• Any other directions prohibited by the Act’s Regulations.

What are the formal requirements to make an Advance Care Directive?

The person must:

• be over the age of 18 years;
• have capacity; and
• understand what an Advance Care Directive is and the consequences of making one.

An Advance Care Directive must be:

• in the prescribed form;
• in writing;
• signed by the person; and
• properly witnessed.

An electronic copy of a Directive that meets these requirements will be valid.

In South Australia, the legislation states that an Advance Care Directive will not be invalid because of any of the following:

• minor errors e.g. spelling mistakes;
• not appointing a substitute decision-maker;
• the person was not fully informed about their medical condition or other circumstances the Directive relates to;
• failing to seek legal or other professional advice about the Directive;
• use of informal language rather than medical language;
• the person describes their wishes in general terms rather than specific instructions;
• failing to complete a section of the form (unless a section is mandatory); or
• instructions in the Directive are based solely on religious, moral or social grounds.

Does a person have to receive information about the treatment he or she is requesting or refusing in an Advance Care Directive?

No, a person does not have to receive any information about the treatment they are requesting or refusing before they make the Directive.

A Directive will not be invalid merely because the person:

• was not fully informed about medical conditions, or other circumstances the Directive relates to; or
• did not seek legal or professional advice about the Directive.

Who can be appointed as a decision-maker under an Advance Care Directive and what are their powers?

In an Advance Care Directive, a person can appoint one or more substitute decision-makers to make a decision about medical treatment if, in the future, they have impaired decision-making capacity for the decision. This includes making decisions about withholding and withdrawing life-sustaining treatment.

The person may appoint any number of substitute decision-makers they wish. If the person appoints more than one substitute decision-maker, they can specify an order of priority for the decision-makers, and what powers or decisions they can make.

A person cannot appoint as their substitute decision-maker a paid carer, someone without legal capacity, or a health practitioner with responsibility for their health care.

How does a substitute decision-maker make decisions?

When making decisions, a substitute decision-maker under an Advance Care Directive must follow the principles set out in the Act. These require the decision-maker to:

• ensure, as far as is reasonably practicable, that the decision he or she makes reflects the decision the person would have made in the circumstances;
• if there are no specific instructions or views of the person, make a decision consistent with the proper care of the person, and the protection of their interests; and
• must not restrict the basic rights and freedoms of the person (as far as is reasonably practicable).

In determining what the person's wishes would have been, a substitute decision-maker may consider:

• any past wishes the person expressed in relation to the matter;
• 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 person's wishes.

Visit the Office of the Public Advocate South Australia for an overview of the principles.

Can an Advance Care Directive be varied (changed) or revoked (cancelled)?

A person cannot vary (change) their Advance Care Directive once they make it. If a person wishes to vary their instructions, they must make a new Advance Care Directive, so long as they still have capacity. In certain limited circumstances the South Australian Civil and Administrative Tribunal (the Tribunal) can vary a Directive (for example, by appointing a new substitute decision-maker).

A person who has capacity can revoke (cancel) their Directive at any time, so long as they understand the consequences of cancelling it. The process for doing this is discussed on the South Australian Advance Care Directives website. If a person revokes their Advance Care Directive, they must also:

• advise any substitute decision-makers appointed under the Advance Care Directive that they have revoked the Directive; and
• notify any other person who was given a copy of the Advance Care Directive (for example, family, friends, hospitals and health professionals) that it has been revoked.

The Directive will operate until one of the following occurs:

• it reaches its expiry date (if it has one);
• the person completes a later Advance Care Directive;
• it is revoked (in the way described above); or
• the person’s death.

If a person has impaired decision-making capacity, in certain circumstances the SACAT has power to change or revoke the person's Advance Care Directive. For more information read the SACAT's Advance Care Directive fact sheet.

Can a health professional decide not to follow an Advance Care Directive?

A health professional must:

• follow all directions i.e. refusal of treatment (including life-sustaining treatment) in the binding section of the Advance Care Directive, except in the circumstances detailed below.
• comply with non-binding directions only as far as reasonably practicable. They do not have to follow non-binding directions that are inconsistent with professional standards or the standards of health care in South Australia.

A health professional does not have to comply with a binding or non-binding direction if:

• they believe that the person did not intend the direction to apply in the circumstances that arose; or
• the direction does not reflect the current wishes of the person; or
• the health professional refuses on conscientious grounds. This may occur, for example, where the health professional has a religious objection to ceasing treatment as this would result in the death of a person. However, if this occurs, a different health professional must still follow the Advance Care Directive.

Where a person refuses health care in the case of suicide or self-harm

A health professional does not have to comply with a binding provision in an Advance Care Directive that refuses health care if the health professional:

• reasonably suspects that the person has attempted suicide or self-harmed, and
• they are of the opinion that providing health care is reasonably necessary to save the person’s life.

Such a provision is non-binding, and a health practitioner may provide life-saving treatment if another law authorises them to do so (such as under the Consent to Medical Treatment and Palliative Care Act 1995 (SA), or the Mental Health Act 2009 (SA)).

However, a health professional may decide to comply with the person’s refusal and not provide health care to the person following an attempted suicide or self-harm. This decision is subject to the health practitioner’s usual professional standards.

The person’s refusal of health care will continue to be binding in relation to any health care that either:

• does not arise from the attempted suicide or self-harm; or
• is not needed to save the person’s life.

If a health practitioner provides health care in contravention of a binding provision of an Advance Care Directive, special reporting obligations apply. Further details about reporting requirements are available in this SA Health factsheet.