By: Chris Spain and Trudi-Ann Mercurio

At a glance

  • The Advance Care Directives (Review) Amendment Act 2023 (SA) came into effect on 1 March 2024. The Act amended the Advance Care Directives Act 2013 (SA), following a review undertaken by Professor Wendy Lacey in 2019.
  • The Act provides health practitioners with clarification as to the effect of an Advance Care Directive in suspected suicide or self-harm attempts providing safeguards for clinical decision making.

Background

An Advance Care Directive enables a legal adult with decision-making capacity to make decisions and give legal directions about their future health care, end of life, living arrangements, and other personal matters.

It can also be used to appoint one or more substitutes to make decisions regarding medical treatment on their behalf.

A health practitioner who is providing, or is to provide, health care to a person who has given an advance care directive and who has impaired decision-making capacity, (pursuant to s 36):

  • must comply with a binding provision of the advance care directive that relates to health care of the relevant kind,
  • should, as far as is reasonably practicable, comply with a non-binding provision of the advance care directive that relates to health care of the relevant kind,
  • must, as far as is reasonably practicable, seek to avoid any outcome or intervention that the person who gave the advance care directive would wish to be avoided (whether such wish is expressed or implied), and
  • must endeavour to provide the health care in a manner that is consistent with the advance care directive principles set out in s 10 of the Act.

Amendments in Advanced Care Directives (Review) Amendment Act 2023

The recent amendments to s 36 of the Act exempt health practitioners from complying with a binding provision of an advance care directive under the Act where:

  • the health practitioner reasonably suspects that the person has attempted suicide or self-harmed, and
  • the health practitioner is of the opinion that the provision of health care is reasonably necessary to save the life of the person.

The health practitioner must, as soon as reasonably practicable after the provision of treatment, document the provision of health care in accordance with the requirements set out in the regulations. Regulation 12A of the Advance Care Directives (Miscellaneous) Amendment Regulations 2024, sets out the information and requirements of a report required by these amendments.

Alternatively, the health practitioner may decide to comply with the person’s refusal of health care in their advance care directive, provided this is otherwise consistent with the health practitioner’s usual professional standards.

Other amendments to the Act include:

  • Recognising digital copies of Advance Care Directives as valid and legal copies (s 5).
  • Strengthening requirements for interpreters for people making Advanced Care Directives where English is not their first language (s 14).
  • Clearer requirements for appointing substitute decision-makers and empowering substitute decision makers to make decisions together and/or separately and appoint them in an order of precedence (s 21, 22 and 24).

If this topic has caused personal distress, assistance is available 24 hours a day, 7 days a week. Call Lifeline on 13 11 14 or visit their website.