South Australia

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.

A person:

• will not be incapable of:
  • ‘understanding information’ simply because they can’t understand technical or trivial matters;
  • ‘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.

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

Who can be a substitute decision-maker?

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, when they had capacity, appointed:

• a substitute decision-maker in their Advance Care Directive, or
• a Medical Agent under a Medical Power of Attorney, or
• an Enduring Guardian under an Enduring Power of Guardianship

that person will be able to make the decision. (Note: Since the introduction of the Advance Care Directives Act 2013 (SA) it is no longer possible to appoint a Medical Agent or Enduring Guardian. These decision-makers have been replaced by substitute decision-makers under Advance Care Directives. However, Medical Powers of Attorney and Enduring Powers of Guardianship made prior to 2014 will still be valid and effective).

Under an Advance Care Directive, a person may appoint any number of substitute decision-makers they wish. If a person appoints more than one substitute decision-maker, they may appoint the decision-makers in order of precedence, and may specify what powers or decisions decision-maker/s may make. A person cannot appoint a paid carer as a substitute decision-maker

If the person did not make any of the above appointments a default decision-maker, known as a person responsible, may make the decision. This will be the first person from the following list who is available and willing to make the decision (in order of priority):

• A guardian appointed by the South Australian Civil and Administrative Tribunal (SACAT) with power to consent to medical treatment. The Tribunal can appoint either a plenary guardian (with all the powers the person would have if they had capacity) or a limited guardian (with specific powers only). If there is no person available who can act as a guardian, the SACAT may appoint the Public Advocate as guardian.

• A prescribed relative of the person if the relationship is close and continuing. This includes the person’s:
  • husband or wife, or
  • adult domestic partner (where they have been in a close personal relationship with the person for 3 years, or there is a child of the relationship), or
  • an adult related to the person by blood or marriage, or adoption, or according to Aboriginal or Torres Strait Islander kinship rules.

  There is no hierarchy within the list of prescribed relatives.

An adult domestic partner is a person who:

• is in a registered relationship with the person, or
• has been living with the person in a close personal relationship and:
  • they have lived together for the past 3 years continuously or, during the previous 4 years for periods aggregating not less than 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).

Visit page 22 of this SA Health Policy Directive to see a flow chart of substitute decision-makers.

What is the role of the South Australian Civil and Administrative Tribunal (SACAT) 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 more 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 guardian if no one else is available to make decisions about treatment for a person who has lost capacity. Those decisions include medical treatment, palliative care and withdrawal of treatment.

• Provide assistance and mediate disputes about health care and/or medical treatment (including treatment at the end of life).

For more information visit the Office of the Public Advocate.

What health care and medical treatment decisions can a substitute decision-maker make?

A substitute decision-maker can make most decisions about health care and medical treatment except for decisions about 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 Agent, 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, these substitute decision-makers 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 food 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 must follow the principles set out in the Guardianship Act when making decisions about consent to medical treatment or health care for a person at the end of life. 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; and

• determine what decision is the least restrictive of the person’s rights and personal autonomy.

If the SACAT is making or affirming a guardianship order it must also consider the adequacy of existing informal arrangements for the care or the person and the desirability of not disturbing those arrangements.

A guardian may also apply to the SACAT for directions or advice on medical treatment decision-making if required.

More information about how substitute decision-makers should approach health care and treatment decision-making is available from the Office of the Public Advocate.

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 to 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).

Find out more about the law on futile or non-beneficial treatment at Adult Treatment Decisions.

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.

When can emergency treatment be provided, and is consent required?

In an emergency situation, a medical practitioner can lawfully administer treatment if:

• the person is incapable of consenting (whether or not they have impaired capacity);
• they consider the treatment is necessary to meet an imminent risk to life or health, and another medical practitioner agrees;
• the person has not refused consent to the treatment, to the best of the medical practitioner's knowledge; and
• the medical practitioner 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 South Australian Civil and Administrative Tribunal, then the medical practitioner can administer the treatment.

If the person has appointed a substitute decision-maker under an Advance Care Directive to make treatment decisions, or there is a guardian or a person responsible who is willing and available to make the decision, the medical treatment cannot be administered without their consent.

Where a health practitioner (including a paramedic) reasonably believes the person has attempted to commit suicide, emergency treatment may still be provided despite the person refusing treatment related to the suicide attempt (e.g. resuscitation) in their Advance Care Directive.

For more information about emergency treatment visit Capacity and consent to medical treatment.