The changes have been a long time coming. In 2007, the state government initiated an Advance Directives Review; the two stage report was completed 18 months later. The National Framework for Advance Care Directives from the Australian Health Ministers’ Advisory Council followed in 2011. The South Australian legislation reflects the views of both reports.
Using an ACD, a person may express their directions, wishes and values in relation to future health care, residential and accommodation arrangements, and other personal affairs; an ACD is not restricted to medical treatment decisions at the end of life. Binding provisions can only be made regarding refusal of particular health care. Other directions must be complied with as far as is reasonably practicable.
In addition, or alternatively, a person may appoint one or more substitute decision-makers (‘SDM’) to make decisions for them should they have impaired decision making capacity in the future. As under previous legislation, an SDM cannot refuse health care for the relief of pain or distress, or the natural provision of food and water.
A key principle of the Act is that a person ‘must be allowed to make their own decisions’ about relevant matters ‘to the extent that they are able’ and ‘for as long as they can’. An ACD only takes effect when the person’s decision-making capacity is impaired. The Act sets out what is and what is not deemed impaired decision-making capacity. Importantly, capacity is not necessarily related to a diagnosis or condition, and is to be determined in relation to particular decisions. Thus a person may have capacity to make simple decisions, but may not to make more complex decisions. Further, the Act recognizes that decision-making capacity may be temporary and fluctuating — particularly relevant to those with a mental illness or dementia.
Whether or not a person has impaired decision-making capacity is one of the new declaratory powers of the Office of the Public Advocate (‘OPA’), which also has advisory and mediation functions under the Act. This expanded role of the OPA relieves the dispute resolution functions of the Guardianship Board and Supreme Court, and is designed to encourage and facilitate discussion among all those involved in a person’s care.
While the new Act has generally been welcomed, there are some controversial issues. For example, the Act purports to make the gazetted ACD form the only form that can be recognised, despite the Acts Interpretation Act 1915 (SA) indicating that a form to the same effect would suffice. In addition, despite the obligations on a witness being significant (to explain the ACD, to form an opinion the person understands the nature and effect of the ACD, and that they are completing it free of duress or coercion), the categories of persons who can be a witness are numerous.
On a positive note, forms from other Australian jurisdictions that have the effect of an ACD are now (finally) recognised in South Australia. However, provisions in an interstate directive considered unlawful here will be deemed void even if lawful interstate.
Further information is available from: — http://www.advancecaredirectives.sa.gov.au
CATHERINE IRVING is a Legal Education Officer in Adelaide.