Advance Care Directives Act 2013

This

Act may be cited as the Advance

Care Directives Act 2013.

In this Act, unless the contrary intention appears—

advance care directive means an advance care directive given under this Act that is in force (and includes, where the context requires, a reference to the advance care directive form in relation to a particular advance care directive);

advance care directive form means the form for giving advance care directives approved by the

Minister from time to time and published in the Gazette;

binding provision of an advance care directive—see section 19;

decision, of the Tribunal, has the same meaning as in the South

Australian Civil and Administrative Tribunal Act 2013;

health care means any care, service, procedure or treatment (including medical treatment) provided by, or under the supervision of, a health practitioner for the purpose of diagnosing, maintaining or treating a physical or mental condition of a person;

Note—

See also section 4.

health practitioner means a person who practises 1 or more of the following:

a health profession (within the meaning of the Health

Practitioner Regulation National Law (South Australia));

any other profession or practice declared by the regulations to be included in the ambit of this definition;

impaired decision‑making capacity, in relation to a decision—see section 7;

incorporated hospital has the same meaning as in the Health

Care Act 2008;

internal review means a review under section 70 of the South

Australian Civil and Administrative Tribunal Act 2013;

life sustaining measures has the same meaning as in the Consent to Medical Treatment and Palliative Care Act 1995;

medical practitioner means a person registered under the Health

Practitioner Regulation National Law to practise in the medical profession (other than as a student);

medical treatment means the provision by a medical practitioner of physical, surgical or psychological therapy to a person (including the provision of such therapy for the purposes of preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life) and includes the prescription or supply of drugs;

non‑binding provision, of an advance care directive—see section 19;

Public

Advocate means the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993;

residential aged care facility means—

a facility at which residential care is provided by an approved provider under the Aged

Care Act 1997 of the Commonwealth; or

an approved residential care home under the Aged

Care Act 2024 of the Commonwealth;

substitute decision‑maker, under a particular advance care directive, means a substitute decision‑maker appointed under Part 3

Division 2 or Part 7;

Tribunal means the South Australian Civil and Administrative Tribunal established under the South

Australian Civil and Administrative Tribunal Act 2013.

For the purposes of this Act, a reference to an act will be taken to include a reference to an attempt to do the act, and a refusal or omission to act.

For the purposes of this Act, a reference to a decision made by a substitute decision‑maker appointed under an advance care directive will be taken to include a reference to an exercise of a power by the substitute decision‑maker under the advance care directive.

For the purposes of this Act, a reference to a provision of an advance care directive will be taken to include a reference to a condition, instruction or direction of an advance care directive.

Unless the contrary intention appears, a reference in this Act to the provision of health care to a person will be taken to include a reference to the withdrawal, or withholding, of health care to the person (including, to avoid doubt, the withdrawal or withholding of life sustaining measures).

Subject to any provision of the advance care directive to the contrary, a reference in an advance care directive to particular health care will be taken to include a reference to any other health care that is of substantially the same kind, or that is only distinguishable on technical grounds not likely to be understood or appreciated by the person who gave the advance care directive.

Except where the contrary intention appears, a reference in this Act to an advance care directive (being an advance care directive form that has been completed and witnessed in accordance with this Act and by which a person has given an advance care directive) will be taken to include an electronic copy of the advance care directive of a kind prescribed by, or prepared in accordance with, the regulations.

Nothing in this Act authorises the making of—

a provision of an advance care directive; or

a decision by a substitute decision‑maker under an advance care directive; or

an order made under Part 7, that purports to compel a health practitioner to provide a particular form of health care to a person.

Note—

Whilst a person can indicate his or her wishes in respect of the health care he or she wishes to receive, ultimately the question of what form of health care should be provided to a patient is a matter for the health practitioner to decide (however, a person is entitled to refuse health care of any kind, or to require it to be stopped, including health care that saves or prolongs his or her life).

Subsection (1) does not apply to health care comprising the withdrawal, or withholding, of health care to the person.

A provision of an advance care directive, a decision of a substitute decision‑maker under an advance care directive or an order made under Part 7 is, to the extent that it contravenes subsection (1), void and of no effect.

For the purposes of this Act, a person will be taken to have impaired decision‑making capacity in respect of a particular decision if—

the person is not capable of—

understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or

retaining such information; or

using such information in the course of making the decision; or

communicating their decision in any manner; or

the person has satisfied any requirement in an advance care directive given by the person that sets out when the person is to be considered to have impaired decision‑making capacity (however described) in respect of a decision of the relevant kind.

For the purposes of this Act—

a person will not be taken to be incapable of understanding information merely because the person is not able to understand matters of a technical or trivial nature; and

a person will not be taken to be incapable of retaining information merely because the person can only retain the information for a limited time; and

a person may fluctuate between having impaired decision‑making capacity and full decision‑making capacity; and

a person's decision‑making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person.

Except where expressly provided for, this Act does not apply in relation to medical treatment or other services consisting of, or given in the course of, the administration of a voluntary assisted dying substance, or any other medical treatment or other service relating to voluntary assisted dying, under the Voluntary

Assisted Dying Act 2021.

This

Act applies within the State, and outside of the State to the full extent of the extraterritorial power of the Parliament.

This

Act is in addition to, and does not derogate from, any other Act or law.

To avoid doubt, a direction (however described) given by a person under another Act or law is not an advance care directive for the purposes of this or any other Act.

The objects of this Act include the following:

to enable competent adults to give directions about their future health care, residential and accommodation arrangements and personal affairs;

to enable competent adults to express their wishes and values in respect of health care, residential and accommodation arrangements and personal affairs, including by specifying outcomes or interventions that they wish to avoid;

to enable competent adults to allow decisions about their future health care, residential and accommodation arrangements and personal affairs to be made by another person on their behalf;

to ensure, as far as is reasonably practicable and appropriate, that health care that is provided to a person who has given an advance care directive accords with the person's directions, wishes and values;

to ensure that the directions, wishes and values of a person who has given an advance care directive are considered in dealing with the person's residential and accommodation arrangements and personal affairs;

to protect health practitioners and others giving effect to the directions, wishes and values of a person who has given an advance care directive;

to provide mechanisms for the resolution of disputes relating to decisions made on behalf of those who have given an advance care directive.

The following principles must be taken into account in connection with the administration, operation and enforcement of this Act (including, to avoid doubt, the resolution of disputes under

Part 7):

an advance care directive enables a competent adult to make decisions about their future health care, residential and accommodation arrangements and personal affairs either by stating their own wishes and instructions or through 1 or more substitute decision‑makers;

a competent adult can decide what constitutes quality of life and can express that in advance in an advance care directive;

a person is, in the absence of evidence or a law of the State to the contrary, to be presumed to have full decision‑making capacity in respect of decisions about their health care, residential and accommodation arrangements and personal affairs;

a person must be allowed to make their own decisions about their health care, residential and accommodation arrangements and personal affairs to the extent that they are able, and be supported to enable them to make such decisions for as long as they can;

a person can exercise their autonomy by making self‑determined decisions, delegating decision making to others, making collaborative decisions within a family or community, or a combination of any of these, according to a person's culture, background, history, spiritual or religious beliefs;

subject to this Act, an advance care directive, and each substitute decision‑maker appointed under an advance care directive, has the same authority as the person who gave the advance care directive had when the person had full decision‑making capacity;

a decision made by a person on behalf of another in accordance with this Act—

must, as far as is reasonably practicable, reflect the decision that the person would have made in the circumstances; and

must, in the absence of any specific instructions or expressed views of the person, be consistent with the proper care of the person and the protection of their interests; and

must not, as far as is reasonably practicable, restrict the basic rights and freedoms of the person;

in the event of a dispute arising in relation to an advance care directive, the wishes (whether expressed or implied) of the person who gave the advance care directive are of paramount importance and should, insofar as is reasonably practicable, be given effect;

subject to this Act, in determining the wishes of a person who gave an advance care directive in relation to a particular matter, consideration may be given to—

any past wishes expressed by the person in relation to the matter; and

the person's values as displayed or expressed during the whole or any

part of their life; and

any other matter that is relevant in determining the wishes of the person in relation to the matter.