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 their own health care decisions. They will 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.

If a person has impaired decision-making capacity for a particular decision, they may have an Advance Care Directive that:

• provides directions and wishes about medical treatment,
• refuses medical treatment (a binding refusal), and/or
• appoints a substitute decision-maker, who can give consent for treatment.

If the person:

• has a Directive but it does not appoint a substitute decision-maker, or
• does not have a Directive

consent to provide treatment will be needed from a person responsible (see 'Who can be a substitute decision-maker?')

Decisions made by a substitute decision-maker or person responsible have the same legal effect as if the person had made the decision themselves. View our guide for substitute decision-makers about how to make health care decisions for someone else.

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

Who can be a substitute decision-maker?

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acting as a person responsible, and giving directions, including a direction that medical treatment be withheld or withdrawn.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?

When making decisions, a substitute decision-maker under an Advance Care Directive must follow the principles set out in the Advance Care Directives Act. These require substitute decision-makers to do certain things when making decisions, including:

• consider the person’s present and past wishes and values, and if possible, give effect to those, and
• make the decision they believe the person would have made in the circumstances.

Further information about making decisions is available in the Office of Public Advocate South Australia’s guide Now you are a substitute decision-maker.

A person responsible must make the decision they believe the person would have made in the circumstances. They must also consider the person’s values, wishes and instructions stated in their Advance Care Directive.

Guardians, the Public Advocate, the SACAT and courts must follow the principles set out in the Guardianship Act. A guardian may apply to the SACAT for directions or advice on medical treatment decision-making if required.

View our guide for substitute decision-makers about how to make health care decisions for someone else.

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 medical treatment be provided, and is consent required?

Emergency medical treatment cannot be provided if it has been lawfully refused:

• by the person, if they have capacity (this may be done verbally),
• in a valid Advance Care Directive, or
• by a substitute decision-maker, or person responsible.

Where the person has capacity

In an emergency situation, if a person has capacity a health professional must obtain the person’s consent to treatment. If the person refuses treatment and/or transfer to hospital for treatment, their refusal must be respected. This is the case even if treatment is needed to save their life and they will die without it. It is an assault to provide treatment when the person has refused it.

Where the person cannot consent (whether or not they have impaired capacity)

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

If it is not possible to obtain consent from the substitute decision-maker or person responsible, a medical practitioner can provide treatment without consent if:

• the treatment is necessary to meet an imminent risk to life or health, and another medical practitioner agrees, in writing (only where it is possible to obtain their opinion);
• the person (if 16 years of aged or over) has not refused 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 (these inquiries do not need to be made if it is not possible in the circumstances).

If the person requiring emergency treatment has an Advance Care Directive but the medical practitioner believes it was 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.

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.