The Advance Care Directives Act (the Act) received assent on 18 April 2013. Whilst it is yet to come into operation, the Act will greatly impact how medical and lifestyle decisions can be made.
Currently under South Australian law, Medical Powers of Attorney and Anticipatory Directives are governed by the Consent to Medical Treatment and Palliative Care Act 1995. Additionally, Enduring Powers of Guardianship are governed by the Guardianship and Administration Act 1993. All documents prepared pursuant to those Acts address how medical and/or lifestyle decisions can be made in the event of an individual not having the capacity to make those decisions for themselves.
To avoid the confusion between these various documents, the Act will allow individuals to prepare an Advance Care Directive (ACD). The ACD will replace the existing Enduring Power of Guardianship, Medical Power of Attorney and Anticipatory Direction, creating one document for all medical, health care and lifestyle decisions.
The ACD will have effect when a person’s decision-making capabilities are impaired. Impaired decision-making capacity is defined in the Act to include when a person “is not capable of understanding any information that may be relevant to the decision” or “is not being capable of communicating his or her decision in any manner”.
The ACD will allow individuals to record their wishes and instructions as to their future medical and health care, residential and accommodation arrangements and personal matters.
This is achieved by the appointment of a “substitute decision-maker” being a person to make those decisions upon an individual’s behalf if they are unable. The substitute decision-maker will have the power to make all decisions that the individual could lawfully make themselves if they had capacity to do so. A substitute decision-maker can only make medical, health care and lifestyle arrangement decisions and not financial, legal or business decisions.
To avoid any potential conflicts of interest, a substitute decision-maker cannot be a person’s health practitioner or paid carer. A health practitioner is defined in the Act as including medical practitioners, nurses, psychologists and pharmacists.
An ACD can state the health care an individual wishes to receive and also the treatment they wish to decline. A health practitioner is not obliged to comply with wishes relating to health care if such wishes are not considered to be clinically appropriate but the health practitioner must comply with all wishes declining specific treatment such as withdrawal of life support.
The Act also provides increased protection and safeguards for health practitioners and substitute decisionmakers who give effect to an ACD.
The Act proposes to make the process of preparing and using a valid ACD easier. For example, an ACD can be produced electronically rather than producing a certified hardcopy of the document every time it is required, as is the current requirement.
The Act also sets out a simplified resolution process in cases of uncertainty or disputes regarding an ACD.
Enduring Guardians and Medical Powers of Attorney prepared under the current legislation will still be considered valid and will be recognised as being an ACD.