Key legislation and terminology
South Australia’s laws relating to withholding and withdrawing life-sustaining treatment and guardianship are contained in three pieces of legislation: the Consent to Medical Treatment and Palliative Care Act 1995 (SA) (Consent to Medical Treatment Act); the Guardianship and Administration Act 1993 (SA) (the Guardianship Act) and the Advance Care Directives Act 2013 (SA) (Advance Care Directives Act).
These Acts define ‘medical treatment’ to include withdrawing or withholding life-sustaining treatment. ‘Health care’ includes medical treatment provided by or under the supervision of a health professional.
Substitute decision-making in South Australia at the end of life
When will a substitute decision-maker be needed to make health care and medical treatment decisions for another person at the end of life?
A person is presumed to have capacity to make health care decisions. If a person no longer has capacity, a substitute decision-maker will need to make the health care decision on that person’s behalf. This situation may arise as a person nears the end of their life. A substitute decision-maker’s decision has the same legal effect as if the person who has lost capacity had made the decision themselves.
A person will only have impaired decision-making capacity if they cannot:
- understand information relevant to the treatment decision;
- retain such information;
- use such information in the course of making the decision; or
- communicate their decision.
- will not be incapable of ‘understanding information’ simply because they can’t understand technical or trivial matters;
- will not be incapable of ‘retaining information’ merely because they can only do so for a limited time;
- may fluctuate between having impaired decision-making capacity and full decision-making capacity; and
- will not have impaired decision-making capacity simply because a decision they make results (or may result) in an adverse outcome.
Who can be a substitute decision-maker for health care and medical treatment decisions at the end of life?
If the person who has lost capacity has an applicable and valid Advance Care Directive (made when they had capacity) which gives a direction about their health care or medical treatment, that direction must be followed. If the person has appointed a substitute decision-maker in their Advance Care Directive, he or she will be able to provide consent and make health care decisions. The substitute decision-maker must, as far as is reasonably practicable, give effect to any directions about health care or treatment provided in the Directive.
If there is no Advance Care Directive, the first person on the following list who is available, willing and able to act can be a substitute decision-maker, and make health care decisions or provide consent to health care for a person with impaired capacity (in order of priority):
- A medical attorney who was appointed under a Medical Power of Attorney by the person when they still had capacity. However since the introduction of the Advance Care Directives Act 2013, it is no longer possible to appoint a medical attorney or make a Medical Power of Attorney. From 2014 medical attorneys have been replaced by substitute decision-makers under Advance Care Directives. Medical Powers of Attorney made prior to 2014 will still be valid and effective.
- An Enduring Guardian who was appointed under an Enduring Power of Guardianship. From 2014 Enduring Guardians have also been replaced by substitute decision-makers under Advance Care Directives. An Enduring Power of Guardianship made prior to 2014 will still be valid and effective, but it is no longer possible to appoint an enduring guardian or make that document.
- A guardian appointed by the South Australian Civil and Administrative Tribunal (SACAT). If there is no person available who can act as a guardian, the SACAT may appoint the Public Advocate as guardian. More information about who can be appointed a guardian is available from the Office of the Public Advocate.
- A default decision-maker, known as a person responsible. This will be the first person from the following list, who is available and willing to make the decision:
- If a guardian has been appointed and has been granted powers to consent to medical treatment, the guardian (this person can be either the enduring guardian or the guardian appointed by SACAT).
- A prescribed relative of the person so long as the relationship is close and continuing. This includes a husband or wife, adult domestic partner, an adult related to the person by blood or marriage, an adult related to the person by adoption, or an adult of Aboriginal or Torres Strait Islander descent who is related to the person according to Aboriginal or Torres Strait Islander kinship rules.
An adult domestic partner is a person who has been living with another person in a close personal relationship for at least 3 years, or there is a child of the relationship. Close personal relationship means the relationship between two adult people (whether or not they are related and irrespective of their gender) who live together as a couple on a genuine domestic basis (it is not necessary that a sexual relationship exists, or has ever existed, between them).
- An adult friend of the person, so long as the relationship is close and continuing.
- An adult who oversees the person’s ongoing day-to-day supervision, care and well-being.
- The SACAT, on the application of a relative, medical practitioner or any other person with an interest in the matter.
It is an offence punishable by imprisonment for a person who is not a person responsible to knowingly give consent to medical treatment, or represent to a medical practitioner that he or she is a person responsible for the person.
Substitute decision-making by South Australia’s guardianship bodies
What is the role of the South Australian Civil and Administrative Tribunal in relation to decision-making at the end of life?
The SACAT has the power to make decisions on behalf of a person who, at the end of life, has lost capacity. The Tribunal’s powers include appointing a guardian to make decisions about health care and/or medical treatment, acting as a person responsible, and giving directions, including a direction that medical treatment be withheld or withdrawn. In making a decision about health care, the SACAT must follow the principles set out in the Guardianship Act. For further information visit the SACAT.
What is the role of the Public Advocate in relation to decision-making at the end of life?
The Public Advocate is an independent office created under the Guardianship Act. It has a number of functions relating to substitute decision-making at the end of life. The Public Advocate can:
- Be appointed as a guardian if no one else is available to make a decision about treatment at the end of life for a person who has lost capacity. Those decisions include medical treatment, palliative care and withdrawal of treatment.
- Provide assistance and mediation services in relation to disputes about health care and/or medical treatment (including treatment at the end of life).
For further information visit the Office of the Public Advocate.
Health care decision-making by a substitute decision-maker
What health care and medical treatment decisions can a substitute decision-maker make?
A substitute decision-maker can make decisions for all health care and medical treatment, except for some types of treatment (termination of pregnancy, sterilisation or any other treatment prescribed by the regulations). This means all other health care, including the withholding or withdrawal of life-sustaining treatment, can be consented to, or refused by, a substitute decision-maker.
In the case of a medical attorney, Enduring Guardian, or guardian, the decisions which can be made will depend on the powers granted under the relevant Medical Power of Attorney, Enduring Power of Guardianship, or guardianship order. If there are no limitations, the medical attorney, enduring guardian or guardian will be able to do anything the person could have done if they had capacity, including making most medical treatment decisions.
There are some restrictions on the decision-making power of a substitute decision-maker under an Advance Care Directive. He or she cannot make a decision to refuse the natural provision of foods and liquids by mouth, or the administration of drugs to relieve pain or distress.
How do substitute decision-makers make decisions?
All substitute decision-makers, in deciding whether or not to consent to medical treatment or health care for a person at the end of life, must follow the principles set out in the Guardianship Act. These principles require a substitute decision-maker to:
- consider what would be the wishes of the person if he or she had capacity (this is the paramount consideration);
- seek the present wishes of the person (if it is possible to do so) and consider those wishes;
- in the case of the SACAT only (when making or affirming a guardianship order), consider the adequacy of existing informal arrangements for the care or the person and the desirability of not disturbing those arrangements; and
- determine what decision is the least restrictive of the person’s rights and personal autonomy.
Further information about how substitute decision-makers should approach health care and treatment decision-making is available from the Office of the Public Advocate.
A guardian may also apply to the SACAT for directions or advice on medical treatment decision-making if required.
What information must a health professional give to a substitute decision-maker?
In South Australia, a health professional has a duty to explain to the person or their substitute decision-maker, where possible, the nature, consequences and risks of the proposed treatment, the likely consequences of not undertaking the treatment, and any alternative treatment or courses of action that might be appropriate.
Can health professionals withhold or withdraw treatment without the consent of a person’s substitute decision-maker?
A health professional is under no duty to treat a person (even if requested by a substitute decision-maker) if the treatment would be of no benefit, not in the person’s best interests, or futile. In this situation there is no obligation for a health professional to obtain consent to the withholding or withdrawing of such treatment (though, as a matter of practice they may wish to do so).
Special provisions relating to health professionals caring for a person in the terminal phase of a terminal illness
‘Terminal illness’ refers to an illness or condition likely to result in death. The ‘terminal phase’ of a terminal illness means the phase of the illness reached when there is no real prospect of recovery or remission of symptoms (either permanently or temporarily).
A health professional has no duty to use, or continue to use, life-sustaining treatment, if to do so would merely prolong the life of a person who has no real prospect of recovery. If the person or the person’s substitute decision-maker so directs, the health professional must withdraw life-sustaining treatment.
Who makes decisions about life-sustaining treatment in an emergency situation?
In an emergency situation, a health professional can lawfully administer the treatment if:
- the person is incapable of consenting (whether or not they have impaired capacity);
- the health professional considers the treatment is necessary to meet an imminent risk to life or health, and another health professional agrees;
- the person has not refused consent to the treatment, to the best of the health professional’s knowledge; and
- the health professional has made reasonable inquiries about whether the person has an Advance Care Directive.
If the person requiring emergency treatment has an Advance Care Directive but it is not intended to apply to the proposed treatment or the circumstances, and it is not possible to deal with the matter by referral to the Public Advocate or the SACAT, then the health professional can administer the treatment.
In the event the person has a substitute decision-maker appointed under an Advance Care Directive who is authorised to make decisions about the treatment, or a guardian or a person responsible who is willing and available to make the decision, the medical treatment cannot be administered without the consent of those persons.
Complaints and dispute resolution
End of life decision-making can be a very challenging and emotional time for the person, their family and friends, substitute decision-makers and health professionals, and sometimes disputes arise about medical decision-making for the person.
If anyone (including a health professional) is concerned about a substitute decision-maker or disagrees with the decisions being made, or a decision cannot be reached about the person’s care and treatment, information and mediation assistance can be sought from the Office of the Public Advocate. A person can also apply to the SACAT for directions, declarations, advice, or a review or revocation of the substitute decision-maker’s appointment or decision. The Supreme Court also has power to hear disputes about end of life treatment.
For further information about dispute resolution relating to guardianship and end of life decision-making, contact the Office of the Public Advocate.