Advance Care Directives Regulations 2014

These regulations may be cited as the

Advance Care Directives

Regulations 2014.

In these regulations—

Act means the Advance Care Directives

Act 2013.

For the purposes of the definition of health practitioner in section 3(1) of the Act, the following professions and practices are declared to be included in the ambit of that definition:

the provision of an ambulance service and medical treatment by a member of the staff of SAAS or other person or body authorised to provide ambulance services under the Health Care

Act 2008;

paramedic.

In this regulation—

ambulance service, medical treatment and SAAS have the same meanings as in the Health Care

Act 2008.

For the purposes of section 5A of the Act, electronic copies of an advance care directive of the following kinds are prescribed:

an electronic copy entered on the My Health Record system;

an electronic copy entered on the Sunrise EMR system;

an electronic copy entered on an electronic record system approved by the Chief Executive, in each case being an electronic copy that was, prior to being entered on the relevant system, certified as a true copy of a particular advance care directive by a person, or a person of a class, included on the list of suitable witnesses set out in

Schedule

1.

For the purposes of section 11(2)(c) of the Act, a person giving an advance care directive must certify, by completing and signing the relevant part of the advance care directive form, that he or she was given the advance care directive information statement referred to in regulation 7(2) and understood the information contained in the statement.

Without limiting the ways in which a certification may be made, or a part of an advance care directive completed or signed, under subregulation (1), a person giving an advance care directive may do so by electronic means.

For the purposes of the definition of mandatory medical treatment in section 12(4) of the Act, medical treatment of the following kinds are prescribed:

medical treatment ordered by a court;

medical treatment of a kind contemplated by section 56 or 57 of the Mental Health

Act 2009;

medical treatment that is the subject of a requirement or direction (however described) of the Chief Public Health Officer under the

South Australian Public Health

Act 2011.

For the purposes of section 15(1)(a) of the Act, an advance care directive will only be taken to be witnessed in accordance with these regulations if—

in the case where 1 or more substitute decision‑makers are appointed under the advance care directive—each substitute decision‑maker has complied with regulation 8(1) before the advance care directive is witnessed; and

in any case—the person giving the advance care directive signs the advance care directive form in the presence of the suitable witness who witnesses the advance care directive.

For the purposes of section 15(1)(b)(i) of the Act, a suitable witness must give to the person giving the advance care directive a copy of the advance care directive information statement (and compliance with this requirement will, for the purposes of section 15(1)(b)(ii) of the

Act, be taken to constitute an explanation of the legal effects of giving an advance care directive of the kind proposed).

For the purposes of the definition of suitable witness in section 15(4) of the Act, a suitable witness must satisfy the following requirements:

the suitable witness must be a competent adult;

the suitable witness must be a person, or a person of a class, included on the list of suitable witnesses set out in

Schedule

1.

To avoid doubt, nothing in subregulation (3) affects an advance care directive witnessed by a suitable witness who was competent at the time he or she witnessed the advance care directive, but who later lost competency.

In this regulation—

advance care directive information statement means the advance care directive information statement determined by the

Minister from time to time for the purposes of this regulation and published in the Gazette.

For the purposes of section 21(3) of the Act, it is a requirement that the substitute decision‑maker must certify, by completing and signing the relevant part of the advance care directive form before the advance care directive is witnessed, that he or she—

accepts the appointment as substitute decision‑maker;

and

has read and understands the guidelines for substitute decision‑makers.

Without limiting the ways in which a certification may be made, or a part of an advance care directive completed or signed, under subregulation (1), a substitute decision‑maker may do so by electronic means.

In this regulation—

guidelines for substitute decision-makers means the guidelines determined by the Minister from time to time for the purposes of this regulation and published in the

Gazette.

For the purposes of section 24(2)(a) of the Act, a document may be certified as a true copy of a particular advance care directive by a person, or a person of a class, included on the list of suitable witnesses set out in

Schedule

1 signing and certifying the document as a true copy of the advance care directive.

For the purposes of section 24(2)(b) of the Act, a scheme determined by the Minister from time to time in respect of making copies of advance care directives available electronically is prescribed.

For the purposes of section 24(2)(c) of the Act, it is a requirement that the health practitioner accesses the electronic copy of the advance care directive on—

the My Health Record system; or

the Sunrise EMR system; or

an electronic record system approved by the Chief

Executive.

For the purposes of section 29(2) of the Act, a person who has given an advance care directive may revoke the advance care directive—

by giving another advance care directive; or

by giving, or causing to be given, a written indication that he or she has revoked the advance care directive.

For the purposes of section 31(1) of the Act, a person must advise the Tribunal of a wish to revoke an advance care directive in such manner and form as is determined from time to time by the

Tribunal.

For the purposes of section 33(1) of the Act, instruments of the following classes are declared to be interstate advance care directives:

an enduring power of attorney under the

Powers of Attorney

Act 2006 of the Australian Capital Territory that is in force;

a health direction under the Medical Treatment (Health Directions)

Act 2006 of the Australian Capital Territory that is in force;

an instrument appointing an enduring guardian under the

Guardianship

Act 1987 of New South Wales that is in force;

an advance personal plan under the Advance Personal Planning Act 2013 of the Northern Territory that is in force;

an enduring power of attorney under the

Powers of Attorney

Act 1998 of Queensland that is in force;

an advance health directive under the

Powers of Attorney

Act 1998 of Queensland that is in force;

an instrument appointing an enduring guardian under the

Guardianship and Administration

Act 1995 of Tasmania that is in force;

an advance care directive instrument under the

Guardianship and Administration

Act 1995 of Tasmania that is in force;

an instrument appointing an enduring guardian under the

Guardianship and Administration

Act 1986 of Victoria that is in force;

a refusal of treatment certificate under the

Medical Treatment

Act 1988 (repealed) of Victoria that is in force;

an enduring power of attorney (medical treatment) under the

Medical Treatment

Act 1988 (repealed) of Victoria that is in force;

an enduring power of attorney under the

Powers of Attorney Act

2014 of Victoria that is in force;

an advance care directive under the Medical Treatment Planning and Decisions

Act 2016 of Victoria;

an advance health directive under the

Guardianship and Administration

Act 1990 of Western Australia that is in force;

an enduring power of guardianship under the

Guardianship and Administration

Act 1990 of Western Australia that is in force;

an instrument (however described) corresponding to an advance care directive that is binding under the common law and in force.

[Note: NoteSuch instruments are often referred to as a living will.]

For the purposes of section 33(4) of the Act, the following

Acts are declared to be corresponding laws:

the Powers of Attorney

Act 2006 and the Medical Treatment (Health Directions)

Act 2006 of the Australian Capital

Territory;

the Guardianship

Act 1987 of New South Wales;

the Advance Personal Planning

Act 2013 of the Northern Territory;

the Powers of Attorney

Act 1998 and the Guardianship and Administration

Act 2000 of Queensland;

the Guardianship and

Administration Act 1995 of Tasmania;

the Guardianship and

Administration Act 1986, the

Medical Treatment

Act 1988 (repealed), the Medical Treatment Planning and Decisions

Act 2016 and the Powers of Attorney Act 2014 of

Victoria;

the Guardianship and

Administration Act 1990 of Western

Australia;

the common law.