South Australia

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

Yes. A person may create both a common law Advance Directive and/or a statutory Advance Directive (an Advance Care Directive). Though the Act does not specifically refer to common law Advance Directives, a common law Advance Directive is recognised by the law in South Australia.

When will an Advance Care Directive apply?

An Advance Care Directive is active as soon as it is appropriately witnessed but it cannot be used to make decisions until the person who made the Advance Care Directive cannot make decisions themselves. This means a direction about medical treatment in an Advance Care Directive will not operate, and any substitute decision-maker who is appointed cannot make any decisions until the person loses capacity.

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 a substitute decision-maker. Advance Care Directives have both binding and non-binding sections:

• A refusal of consent to future health care, including withholding or withdrawing life-sustaining treatment, is binding and must be followed.
• All other health care directed by the person is non-binding, although should be complied with as far as is reasonably practicable.

What cannot be included in an Advance Care Directive?

The Act prohibits any of the following directions being 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 euthanasia).
• 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
• witnessed by one witness who has no connection to the person.

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;
• instructions based solely on religious, moral or social grounds;
• the person describes their wishes in general terms rather than specific instructions; or
• failing to complete a section of the form (unless a section is mandatory).

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.

The Act also confirms that 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?

A person with decision-making capacity can appoint a substitute decision-maker in an Advance Care Directive to make any decisions about health care for them when they can no longer make decisions for themselves. This includes making decisions about withholding and withdrawing life-sustaining treatment.

How does a decision-maker make decisions?

When making health care decisions for a person who has lost capacity, a 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.

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 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 lacks capacity, the Tribunal has power to revoke the Advance Care Directive on the person’s behalf. To do this, an application must be made to the Tribunal (either by the person who made the Directive, or by someone else acting on their behalf), and the Tribunal must be certain that:

• the person who made the Directive understands the nature and consequences of the revocation;
• the revocation reflects the person’s wishes; and
• it is appropriate to revoke the Directive.

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

A health professional must follow all directions in the binding section of the Advance Care Directive (the section which refuses consent to treatment, including life-sustaining treatment).

The health professional must 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.