The information on this page relates specifically to advance care planning laws in South Australia. Find out how to create your plan in South Australia.
Law and policy in Australia and South Australia
All states and territories have law and/or policy related to advance care planning to support person-centred medical treatment decision-making and advance care directives.
In South Australia, both statutory and common law advance care directives exist and are legally binding. These can include a person’s values, preferences for future treatment (consent to, refusal of and/or withdrawal of treatment) and appointment of a substitute decision-maker. They should be completed and signed by a competent adult. Preferably, they should be stored and accessed via My Health Record.
In South Australia, a person with decision-making capacity can:
- appoint a substitute decision-maker
- complete an instructional and/or values advance care directive
An advance care directive and the role of the substitute decision-maker comes into effect when the person loses decision-making capacity.
A substitute decision-maker can make medical treatment decisions on behalf of a non-competent person.
In South Australia, the substitute decision-maker can be:
- chosen and appointed by the individual as a substitute decision-maker(s)
- a guardian appointed by the South Australian Civil and Administrative Tribunal (SACAT)
- a person with a close and continuing relationship with the individual (person responsible), chosen in the following order:
- A prescribed relative (spouse; partner; adult related by blood, marriage, adoption, Aboriginal kinship rules or Torres Strait Islander kinship rules) with a close and continuing relationship with the patient who is available and willing to make the decision
- An adult friend with a close and continuing relationship with the patient who is available and willing to make the decision
- An adult charged with overseeing the day-to-day supervision, care and wellbeing of the patient who is available and willing to make the decision
There is no hierarchy within the list of prescribed relatives.
An appointment by SACAT overrides all other appointments.
An Enduring Power of Guardianship, a Medical Power of Attorney or an Anticipatory Direction are all legally effective, unless an advance care directive has been completed.
Appointing a substitute decision-maker
A substitute decision-maker appointment should be on the recommended Advance Care Directive form. It must be written in English, contain details of the appointer and person(s) being appointed.
The person(s) being appointed must sign that they accept the appointment. A person’s health practitioner or paid professional carer cannot be appointed as a substitute decision-maker.
Document signing must be witnessed by an independent authorised witness. Authorised witnesses include registered professionals, such as doctors, nurses, pharmacists, psychologists, teachers, accountants, employees of a government authority with more than five years of service, lawyers, Justices of the Peace and ministers of religion. A witness must be independent of the person giving the advance care directive and cannot be a person who is being appointed, a beneficiary in their Will, or their health practitioner or paid professional carer.
Up to three people may be appointed as substitute decision-makers, and can be appointed to act jointly or severally.
The substitute decision-maker(s) can consent to, refuse or withdraw treatment on behalf of the person. They must act in accordance with any lawful limitations or conditions contained in the form. They must make the decision they believe the person would make (i.e. substituted judgement).
Advance Care Directives
Only people with decision-making capacity can complete an Advance Care Directive. An Advance Care Directive should be on the recommended Advance Care Directive form.
It may contain:
- instructional directives - a person can provide specific directions about treatment that they would consent to, refuse and/or withdraw
- values directives - a person can describe their more general views regarding their values and preferences for care
An Advance Care Directive must be written in English, include the person’s full name, date of birth, address, and be signed.
The Advance Care Directive must be signed by the person in front of an independent authorised witness. A witness must be independent of the person giving the Advance Care Directive and cannot be a person who is being appointed, a beneficiary in their Will, or their health practitioner or paid professional carer. Witnesses must certify that the person completing the directive or making the appointment has decision-making capacity, and that they acted freely and voluntarily.
The Advance Care Directive can include binding instructions to refuse healthcare.
The role of advance care directives when making medical treatment decisions
Any person with decision-making capacity is able to make their own decisions, including decisions related to life-saving treatment. All adults are presumed to have capacity unless there is evidence to suggest otherwise.
Consent must be obtained before any treatment is provided, withheld or withdrawn. If a person does not have decision-making capacity, all reasonable efforts must be made to locate an Advance Care Directive and identify a substitute decision-maker. The only exception to this is when emergency treatment is required and an Advance Care Directive or substitute decision-maker is not available.
If there is a refusal of health care, a health practitioner cannot provide treatment. A substitute decision-maker cannot override a valid refusal of health care.
If the person has not completed an Advance Care Directive, the substitute decision-maker is required to provide informed consent before treatment is provided. Health practitioners are only responsible for contacting one substitute decision-maker. The enduring guardian and the health practitioner must consider the person’s values and preferences for care, but it is the enduring guardian who is required to make the decision.
If an Advance Care Directive or substitute decision-maker cannot be located, the South Australian Civil and Administrative Tribunal can provide assistance.
Changes and revocation
An Advance Care Directive ends when a new Advance Care Directive is completed, a person with capacity revokes their Advance Care Directive, or it expires (if an expiry date is included), or the person who made the directive dies.
A substitute decision-maker appointment ends if a person with capacity revokes the appointment of their substitute decision-maker, if all people appointed are unable to act, or if the person who made the appointment dies. The person appointed as substitute decision-maker can also resign from their appointment.
Under certain circumstances the South Australian Civil and Administrative Tribunal can cancel an Advance Care Directive or a substitute decision-maker appointment.
Advance care planning in the context of mental health
For people with mental illness who maintain decision-making capacity, advance care planning occurs in the same way as for everyone else. An Advance Care Directive can include preferences relating to mental health treatment and therefore they receive treatments under the same laws.
Advance care directives for people less than 18 years old
Children can do advance care planning and document their preferences, however, there is no advance care directive legislation pertaining to a person less than 18 years of age and they are not legally binding. A person less than 18 years old cannot appoint a decision-maker.
Applicability in other states and territories
In general, a valid South Australian Advance Care Directive will apply in other states and territories in Australia, although there may be some limitations and additional requirements. It may be recognised under common law.
Similarly, an appointment of a substitute decision-maker will usually apply, but there is variation in the laws within Australia. It is recommended that a person obtain specific advice from the Office of the Public Advocate or equivalent in the relevant state or territory.
If a person is permanently moving state or territory, it is recommended that they update their documentation using the recommended form(s) for their new location.
Advance care directives from other states and territories
In general, a valid advance care directive from another jurisdiction will be recognised in South Australia as an advance care directive and used accordingly. It may be recognised under common law.