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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Advance Care Directives
Bill 2012
A BILL FOR
An Act to enable a person to make decisions and give directions in relation
to their future health care, residential and accommodation arrangements and
personal affairs; to provide for the appointment of substitute decision-makers
to make such decisions on behalf of the person; to ensure that health care is
delivered to the person in a manner consistent with their wishes and
instructions; to facilitate the resolution of disputes relating to advance care
directives; to provide protections for health practitioners and other persons
giving effect to an advance care directive; to make related amendments to the
Consent
to Medical Treatment and Palliative Care Act 1995, the Coroners
Act 2003, the Fair
Work Act 1994, the Guardianship
and Administration Act 1993, the Health
and Community Services Complaints Act 2004 and the Wills
Act 1936; and for other purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Interpretation
4References to provision of
health care to include withdrawal etc of health care
5References to particular
forms of health care in advance care directives
6Health
practitioner cannot be compelled to provide particular health care
7Impaired decision-making
capacity
8Application of Act
Part 2—Objects and
principles
9Objects
10Principles
Part 3—Advance
care directives
Division 1—Advance care
directives
11Giving advance care
directives
12Provisions that cannot
be included in advance care directives
13Advance care
directive not to give power of attorney
14Giving advance care directives where
English not first language
15Requirements for
witnessing advance care directives
16When advance care directives are in
force
17Advance care directive revokes previous
advance care directives
18No variation of advance care
directive
19Binding and non-binding
provisions
20Advance care directive has effect subject to
its terms
Division 2—Substitute
decision-makers
21Requirements in relation to
appointment of substitute decision-makers
22Substitute decision-makers
jointly and severally empowered
23Powers of substitute decision-maker
24Exercise of powers by
substitute decision-maker
25Substitute decision-maker to give notice of
decisions
26Substitute decision-maker may obtain
advice
27Substitute decision-maker may renounce
appointment
28Death of substitute decision-maker does not
affect validity of advance care directive
Division 3—Revoking advance care
directives
Subdivision 1—Revoking advance care
directive where person competent
29Revoking advance care
directive where person competent
Subdivision 2—Revoking advance care
directive where person not competent
30Application of Subdivision
31Guardianship Board to
be advised of wish for revocation
32Revoking advance care
directives where person not competent
Part 4—Recognition of advance care
directives from other jurisdictions
33Advance care directives from
other jurisdictions
Part 5—Giving
effect to advance care directives
34When
things can happen under an advance care directive
35Substitute decision-maker to
give effect to advance care directive
36Health practitioners to give effect to
advance care directives
37Conscientious objection
38Consent etc
taken to be that of person who gave advance care directive
39Consent
taken to be withdrawn in certain circumstances
Part 6—Validity and limitation of
liability
40Presumption of validity
41Protection from
liability
42Validity of acts etc under revoked or varied
advance care directive
Part 7—Dispute
resolution, reviews and appeals
Division 1—Preliminary
43Interpretation
44Application of
Part
Division 2—Resolution
of disputes by Public Advocate
45Resolution of disputes
by Public Advocate
46Public Advocate may refer matter to
Guardianship Board
Division 3—Resolution
of disputes by Guardianship Board
47Resolution
of disputes by Guardianship Board
48Guardianship Board may refer matter to Public
Advocate
49Failing to comply with direction of
Guardianship Board
50Orders of Guardianship
Board in relation to substitute decision-makers
Division 4—Urgent review of
decisions
51Urgent review by Supreme Court
Division 5—Miscellaneous
52Question of law may be
referred to Supreme Court
53Operation of orders pending
appeal
Part 8—Offences
54False or misleading
statements
55Fraud, undue influence
etc
Part 9—Miscellaneous
56Giving
notice to substitute decision-makers
57Prohibition of publication of reports of
proceedings
58Service of documents
59Victimisation
60Confidentiality
61Review of Act
62Regulations
Schedule 1—Related amendments and
transitional provisions
Part 1—Preliminary
1Amendment
provisions
Part 2—Amendment of
Consent to Medical Treatment and Palliative Care Act 1995
2Amendment
of section 3—Objects
3Amendment of section
4—Interpretation
4Insertion of sections 4A and
4B
4AReferences to provision of
medical treatment etc to include withdrawal etc of medical
treatment
4BConsent
not required for withdrawal etc of medical treatment
5Repeal of
section 5
6Amendment of heading to Part 2
7Repeal of Part 2 Divisions 2
and 3
8Amendment of section 13—Emergency
medical treatment
9Repeal of Part 2 Division 6
10Insertion
of Part 2A
Part 2A—Consent to medical treatment if
person has impaired decision-making capacity
14Interpretation
14AApplication of
Part
14BConsent of person responsible
for patient effective in certain circumstances
14CPerson responsible for patient to make substituted
decision
14DPerson
must not give consent unless authorised to do so
11Amendment of section
17—The care of people who are dying
12Insertion of Part
3A
Division 1—Preliminary
18AInterpretation
18BApplication of Part
Division 2—Resolution of
disputes by Public Advocate
18CResolution of disputes by
Public Advocate
18DPublic Advocate may refer matter
to Guardianship Board
Division 3—Resolution
of disputes by Guardianship Board
18EResolution of disputes by
Guardianship Board
18FGuardianship Board may refer matter to Public
Advocate
18GContravention of direction
Division 4—Miscellaneous
18HQuestion of law may be referred
to Supreme Court
18IOperation of orders pending
appeal
13Substitution of section
19
19Regulations
Part 3—Amendment of
Coroners Act 2003
14Amendment of section
3—Interpretation
Part 4—Amendment of
Fair Work Act 1994
15Amendment of section 76—Negotiation of
enterprise agreement
Part 5—Amendment of
Guardianship and Administration Act 1993
16Amendment of section
3—Interpretation
17Amendment of section 5—Principles to be
observed
18Repeal of Part 3
19Amendment
of section 28—Investigations by Public Advocate
20Amendment of section
29—Guardianship orders
21Insertion of section
31A
31AGuardian to give
effect to advance care directive
22Amendment of section 32—Special
powers to place and detain certain persons
23Amendment of section
33—Applications under this Division
24Amendment of section
37—Applications under this Division
25Amendment of heading to Part
5
26Repeal of sections 58, 59 and 60
27Amendment
of section 61—Prescribed treatment not to be carried out without Board's
consent
28Repeal of section 79
29Repeal of
Schedule
Part 6—Amendment of
Health and Community Services Complaints Act 2004
30Amendment
of section 24—Who may complain
Part 7—Amendment of
Wills Act 1936
31Amendment of section 7—Will of person
lacking testamentary capacity pursuant to permission of court
Part 8—Transitional
provisions
32Transitional provisions
relating to anticipatory directions under Consent to Medical Treatment and
Palliative Care Act 1995
33Transitional provisions
relating to medical agents under Consent to Medical Treatment and Palliative
Care Act 1995
34Transitional provisions
relating to other instruments continued under Consent to Medical Treatment and
Palliative Care Act 1995
35Transitional provisions
relating to enduring guardians under Guardianship and Administration
Act 1993
36Only 1 advance care
directive to be created
37Disputes
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Advance Care Directives
Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
(1) 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;
Guardianship Board means the Guardianship Board established
under the
Guardianship
and Administration Act 1993;
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) a health profession (within the meaning of the Health Practitioner
Regulation National Law (South Australia);
(b) 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;
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—
(a) the prescription or supply of drugs; and
(b) the examination and assessment of a patient;
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;
substitute decision-maker, under a particular advance care
directive, means a substitute decision-maker appointed under
Part 3
Division 2 or
Part 7.
(2) 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.
(3) 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.
(4) 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.
4—References
to provision of health care to include withdrawal etc of health
care
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).
5—References
to particular forms of health care in advance care
directives
(1) 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.
(2) Subject to any provision of the advance care directive to the
contrary, a reference in an advance care directive to a particular illness,
injury or condition (however described) will be taken to include a reference to
an illness, injury or condition arising out of, or out of the treatment of, the
illness, injury or condition.
Note—
These are often referred to as Iatrogenic conditions.
6—Health
practitioner cannot be compelled to provide particular health
care
(1) Nothing in this Act
authorises the making of—
(a) a provision of an advance care directive; or
(b) a decision by a substitute decision-maker under an advance care
directive; or
(c) 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).
(2)
Subsection (1) does
not apply to health care comprising the withdrawal, or withholding, of health
care to the person.
(3) 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.
7—Impaired
decision-making capacity
(1) For the purposes of this Act, a person will be taken to have impaired
decision-making capacity in respect of a particular decision if—
(a) the person is not capable of—
(i) understanding any information that may be relevant to the decision
(including information relating to the consequences of making a particular
decision); or
(ii) retaining such information; or
(iii) using such information in the course of making the decision;
or
(iv) communicating his or her decision in any manner; or
(b) the person has satisfied any requirement in an advance care directive
given by the person that sets out when he or she is to be considered to have
impaired decision-making capacity (however described) in respect of a decision
of the relevant kind.
(2) For the purposes of this Act—
(a) 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
(b) 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
(c) a person may fluctuate between having impaired decision-making
capacity and full decision-making capacity; and
(d) 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.
This Act applies within the State, and outside of the State to the full
extent of the extraterritorial power of the Parliament.
The objects of this Act include the following:
(a) to enable competent adults to give directions about their future
health care, residential and accommodation arrangements and personal
affairs;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) to protect health practitioners and others giving effect to the
directions, wishes and values of a person who has given an advance care
directive;
(g) 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):
(a) an advance care directive enables a competent adult to make decisions
about his or her 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;
(b) a competent adult can decide what constitutes quality of life for him
or her and can express that in advance in an advance care directive;
(c) 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 his or her health care, residential and accommodation
arrangements and personal affairs;
(d) 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;
(e) autonomy can be exercised 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;
(f) 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 he or she had full
decision-making capacity;
(g) a decision made by a person on behalf of another in accordance with
this Act—
(i) must, as far as is reasonably practicable, reflect the decision that
the person would have made in the circumstances; and
(ii) 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 his or her interests; and
(iii) must not, as far as is reasonably practicable, restrict the basic
rights and freedoms of the person;
(h) 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;
(i) 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—
(i) any past wishes expressed by the person in relation to the matter;
and
(ii) the person's values as displayed or expressed during the whole or any
part of his or her life; and
(iii) any other matter that is relevant in determining the wishes of the
person in relation to the matter.
Part 3—Advance
care directives
Division 1—Advance
care directives
11—Giving
advance care directives
(1) A competent adult may give an advance care directive if he or
she—
(a) understands what an advance care directive is; and
(b) understands the consequences of giving an advance care
directive.
(2) Subject to this section, a person gives an advance care directive
by—
(a) completing any relevant sections of an advance care directive form in
accordance with this Act and any instructions contained on that form, or causing
any relevant sections to be so completed; and
Note—
An advance care directive form must be the approved form—see the
definition of advance care directive form in
section 3(1).
(b) having the completed advance care directive form witnessed in
accordance with this Act; and
(c) complying with any other requirements set out in the regulations in
relation to giving advance care directives.
(3) Subject to this Act, an advance care directive can make such provision
relating to the future health care, residential and accommodation matters and
personal affairs of the person giving the advance care directive as he or she
thinks fit.
(4) Nothing in this Act authorises a person to give an advance care
directive for or on behalf of another person.
Note—
A parent, for example, cannot give an advance care directive on behalf of
his or her child.
(5) An advance care directive, or a provision of an advance care
directive, is not invalid merely because—
(a) the person giving the advance care directive did not complete a
particular section of the advance care directive form (other than a section
specified in an instruction on the form as being a section that must be
completed); or
(b) the person giving the advance care directive did not appoint a
substitute decision-maker; or
(c) the person giving the advance care directive was not fully informed in
relation to each medical condition, or any other circumstance, to which the
advance care directive relates; or
(d) the person giving the advance care directive did not seek legal or
other professional advice in relation to the advance care directive;
or
(e) the advance care directive contains a minor error (being an error that
does not affect the ability to understand the wishes and instructions of the
person who gave the advance care directive); or
Note—
The type of error contemplated by this paragraph includes a misspelling or
obsolete reference.
(f) instructions in the advance care directive are expressed in informal
language rather than medical or technical terminology; or
(g) the person giving the advance care directive expressed their wishes in
general terms rather than specific instructions, or that his or her wishes in
relation to a particular matter need to be inferred from the advance care
directive; or
(h) instructions in the advance care directive are based solely on
religious, moral or social grounds.
12—Provisions
that cannot be included in advance care directives
(1) Subject to this
Act, an advance care directive cannot make provisions of the following
kinds:
(a) a provision—
(i) that is unlawful; or
(ii) that would require an unlawful act to be performed; or
Example—
An example of such a provision would be a request for euthanasia.
(iii) that would, if given effect, cause a health practitioner or other
person to contravene a professional standard or code of conduct (however
described) applying to the health practitioner or person;
(b) a provision that
comprises a refusal of mandatory medical treatment;
(c) any other provision of a kind declared by the regulations to be within
the ambit of this section.
(2) However, nothing in this section prevents an advance care directive
from making a provision in respect of the withdrawal, withholding or refusal of
health care to a person that would, if given effect, result in the death of the
person.
(3) For the purposes of
subsection (1),
a reference to a professional standard or code of conduct does not include a
reference to a standard or code of conduct prepared by or on behalf of a
hospital, clinic, hospice, nursing home or any other place at which health care
is provided to a person that regulates the provision of health care or other
services at that place.
(4) A provision of an advance care directive that contravenes
subsection (1)
is, to the extent of the contravention, void and of no effect.
(5) In this section—
mandatory medical treatment means—
(a) medical treatment ordered under a community treatment order or an
inpatient treatment order under the Mental
Health Act 2009; or
(b) any other medical treatment of a kind prescribed by regulations for
the purposes of this definition.
13—Advance
care directive not to give power of attorney
(1) Nothing in this Act authorises an advance care directive to have the
effect of giving a power of attorney.
Note—
A power of attorney under the Powers
of Attorney and Agency Act 1984 is required if the substitute
decision-maker is to deal with the financial and legal affairs of the person
giving the advance care directive.
(2) A provision of an advance care directive that purports to give a power
of attorney is void and of no effect.
14—Giving
advance care directives where English not first language
(1) The following
provisions apply where a person for whom English is not his or her first
language wishes to give an advance care directive:
(a) the advance care directive may be given with the assistance of an
interpreter in relation to a language in which the person is fluent (the
interpreter);
(b) any information required under this Act to be given to the person in
relation to the advance care directive must be given to the person through the
interpreter;
(c) the advance care directive form must be completed in
English;
(d) the interpreter
must complete the relevant section of the advance care directive form certifying
that—
(i) in his or her opinion, any information required under this Act to be
given to the person giving the advance care directive was given to, and appeared
to be understood by, the person; and
(ii) the information recorded in the advance care directive form
accurately reproduces in English the original information and instructions of
the person provided in the course of giving the advance care
directive;
(e) if an advance care directive form is completed in accordance with this
section, the advance care directive will, for the purposes of this Act, be taken
to have been given by the person.
(2) Nothing in this section prevents a person who is a suitable witness in
relation to a particular advance care directive from being an interpreter under
this section.
15—Requirements
for witnessing advance care directives
(1) An advance care directive will only be taken to have been witnessed in
accordance with this Act if—
(a) the advance care directive form is witnessed by a suitable witness in
accordance with the regulations; and
(b) the suitable witness completes the appropriate parts of the advance
care directive form certifying that—
(i) he or she gave to the person giving the advance care directive any
information required by the regulations for the purposes of this section;
and
(ii) he or she explained to the person giving the advance care directive
the legal effects of giving an advance care directive of the kind proposed;
and
(iii) in his or her opinion, the person giving the advance care directive
appeared to understand the information and explanation given to him or her by
the suitable witness under this paragraph; and
(iv) in his or her opinion, the person giving the advance care directive
did not appear to be acting under any form of duress or coercion; and
(c) any other requirements set out in the regulations in relation to the
witnessing of advance care directives have been complied with.
(2) However, a person cannot be a suitable witness in relation to a
particular advance care directive—
(a) if he or she is appointed under the advance care directive as a
substitute decision-maker; or
(b) if he or she has a direct or indirect interest in the estate of the
person giving the advance care directive (whether as a beneficiary of the
person's will or otherwise); or
(c) if he or she is a health practitioner who is responsible (whether
solely or with others) for the health care of the person giving the advance care
directive; or
(d) if he or she occupies a position of authority in a hospital, hospice,
nursing home or other facility at which the person giving the advance care
directive resides; or
(e) in any other circumstances set out in the regulations in which a
person cannot be a suitable witness in relation to a particular advance care
directive.
(3) For the purposes of this section, a reference to duress or coercion in
relation to a person giving an advance care directive includes a reference to
duress or coercion due solely to a perception or mistake on the part of the
person.
(4) In this section—
suitable witness means a person, or a class of persons, who
satisfies any requirements prescribed by the regulations for the purposes of
this definition.
16—When
advance care directives are in force
(1) An advance care directive will be taken to be in force from the time
that the advance care directive is witnessed in accordance with this
Act.
(2) Subject to this Act, an advance care directive remains in
force—
(a) —
(i) if an expiry date is specified in the advance care
directive—until that day; or
(ii) if no expiry date is specified in the advance care
directive—until it is revoked in accordance with this Act; or
(b) until the death of the person who gave the advance care
directive,
whichever occurs first.
17—Advance
care directive revokes previous advance care directives
(1) Subject to this Act, if a person gives an advance care directive, any
previous advance care directives given by the person are revoked.
(2) A revocation of a previous advance care directive will be taken to
have occurred at the time the later advance care directive is taken to be in
force.
18—No
variation of advance care directive
Subject to this Act, an advance care directive cannot be varied.
Note—
If a person wishes to vary the terms of his or her advance care directive,
he or she must prepare a new one in accordance with this Act. However, only a
competent adult can give an advance care directive—see
section 11.
There is, however, capacity for the Guardianship Board to vary an advance
care directive by appointing another substitute decision-maker in certain
circumstances—see
Part 7
Division 3.
19—Binding
and non-binding provisions
(1) Subject to this
section, a provision of an advance care directive comprising a refusal of
particular health care (whether express or implied) will, for the purposes of
this Act, be taken to be a binding provision.
Note—
Certain provisions of an advance care directive refusing some forms of
mandatory medical treatment are void—see
section 12(1)(b).
(2) If a binding provision of an advance care directive is expressed to
apply, or to be binding, only in specified circumstances, the provision will be
taken to be a binding provision only in respect of those
circumstances.
(3) All other provisions of an advance care directive are
non-binding provisions.
20—Advance
care directive has effect subject to its terms
Subject to this Act, and to any other Act or law, an advance care directive
has effect according to its terms.
Division 2—Substitute
decision-makers
21—Requirements
in relation to appointment of substitute decision-makers
(1) Subject to this Act, a person giving an advance care directive may
appoint 1 or more adults to be substitute decision-makers in respect of the
advance care directive.
Note—
Nothing in this Act requires a substitute decision-maker to be appointed
under an advance care directive—a person may choose simply to give
instructions in his or her advance care directive.
(2) However, the
following persons cannot be appointed or act as a substitute decision-maker in
relation to a particular advance care directive:
(a) a person who is not competent;
(b) a health practitioner who is responsible (whether solely or with
others) for the health care of the person giving the advance care
directive;
(c) a paid carer of the person giving the advance care
directive;
(d) any other person of a class prescribed by the regulations for the
purposes of this section.
(3) An appointment of a substitute decision-maker must comply with any
other requirements set out in the regulations for the purposes of this
section.
(4) An appointment in contravention of this section is void and of no
effect.
22—Substitute
decision-makers jointly and severally empowered
Subject to this Act and to any provision of an advance care directive to
the contrary, if a person giving an advance care directive appoints more than
1 substitute decision-maker in respect of the advance care directive, the
substitute decision-makers are jointly and severally empowered to make decisions
under the advance care directive.
23—Powers
of substitute decision-maker
(1) Subject to this
Act and to any provision of the advance care directive, a substitute
decision-maker appointed under an advance care directive may make any decision
that the person who gave the advance care directive could have lawfully made in
respect of the following areas:
(a) health care (other than a kind of health care declared by the
regulations to be excluded from the ambit of this paragraph);
(b) residential and accommodation arrangements;
(c) personal affairs.
(2) Nothing in
subsection (1)
authorises a substitute decision-maker to make a decision of a kind that
requires the substitute decision-maker to have been given the person's power of
attorney unless the required power of attorney has in fact been given to the
substitute decision-maker.
Note—
A power of attorney cannot be given by an advance care directive—see
section 13.
(3) An advance care
directive does not authorise a substitute decision-maker to perform functions
that the person who gave the advance care directive has as a trustee or personal
representative of another.
(4) Subject to an
express direction to the contrary in the advance care directive, an advance care
directive does not authorise a substitute decision-maker to refuse the
following:
(a) the administration of drugs to relieve pain or distress;
(b) the natural provision of food and liquids by mouth.
24—Exercise
of powers by substitute decision-maker
(1) Without limiting any other provision of this Act, a substitute
decision-maker may only make a decision under an advance care directive
if—
(a) the substitute decision-maker produces the advance care directive at
the request of a health practitioner who is to provide health care in accordance
with the decision; and
(b) the substitute decision-maker is not prevented under this or any other
Act or law from acting under the advance care directive; and
(c) the substitute decision-maker is competent at the time the decision is
made.
(2) A requirement under this section to produce an advance care directive
will be taken to be satisfied if—
(a) the substitute decision-maker produces a document that has been
certified, in accordance with the regulations, as a true copy of the advance
care directive; or
(b) the substitute decision-maker makes available a copy of the advance
care directive in accordance with a scheme set out in the regulations in respect
of electronic access to, or provision of, copies of advance care
directives.
25—Substitute
decision-maker to give notice of decisions
If a substitute decision-maker makes a decision under the advance care
directive, he or she must take reasonable steps to notify each other substitute
decision-maker appointed under the advance care directive of the
decision.
26—Substitute
decision-maker may obtain advice
(1) Despite any other Act or law, a substitute decision-maker may obtain
such advice (whether of a professional or technical nature or otherwise) as he
or she reasonably requires in relation to the exercise of his or her powers, or
discharge of his or her responsibilities, under an advance care
directive.
(2) However, a substitute decision-maker must have regard to, and seek to
protect, the privacy of the person who gave the advance care directive when
obtaining such advice.
27—Substitute
decision-maker may renounce appointment
(1) Subject to this
section, a substitute decision-maker appointed under an advance care directive
may, by notice in writing given to the person who gave the advance care
directive, renounce his or her appointment.
(2) Subject to this Act and to any provision of the advance care directive
to the contrary, the powers and responsibilities of another substitute
decision-maker appointed under an advance care directive are not affected merely
because a substitute decision-maker has renounced his or her appointment under
subsection (1).
(3) If the sole substitute decision-maker appointed under an advance care
directive wishes to renounce his or her appointment during a period in which the
person who gave the advance care directive is not competent, the appointment may
only be renounced with the permission of the Guardianship Board.
Note—
See also
section 32
(Revocation of advance care directives where person is not competent etc) and
section 50
(Orders of Guardianship Board in relation to substitute
decision-makers).
28—Death
of substitute decision-maker does not affect validity of advance care
directive
The death of a substitute decision-maker appointed under an advance care
directive does not, of itself, affect the validity of the advance care
directive.
Division 3—Revoking
advance care directives
Subdivision 1—Revoking
advance care directive where person competent
29—Revoking
advance care directive where person competent
(1) A person who has given an advance care directive and
who—
(a) is competent; and
(b) understands the consequences of revoking the advance care
directive,
may revoke the advance care directive at any time.
(2) An advance care directive may only be revoked in the manner prescribed
by the regulations.
(3) On revoking an advance care directive, the person must, as soon as is
reasonably practicable—
(a) advise each substitute decision-maker appointed under the advance care
directive of the revocation; and
(b) take reasonable steps to notify each other person who has been given a
copy of the advance care directive of the revocation.
Example—
Such persons might include family members, hospitals, accommodation
providers and health practitioners.
Subdivision 2—Revoking
advance care directive where person not competent
This Subdivision applies to a person who has given an advance care
directive but who—
(a) is not competent; or
(b) does not appear to understand the consequences of revoking an advance
care directive.
31—Guardianship
Board to be advised of wish for revocation
(1) A person who
becomes aware that a person to whom this Subdivision applies wishes, or may
wish, to revoke an advance care directive must, as soon as is practicable and in
accordance with any requirement set out in the regulations, advise the
Guardianship Board of that fact.
(2) The Guardianship
Board, on being advised under this section, may give any directions to specified
persons or bodies that the Guardianship Board thinks necessary or desirable in
the circumstances of the case.
(3) A person who,
without reasonable excuse, refuses or fails to comply with a direction under
subsection (2) is
guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 6 months.
(4) It is a defence to a charge of an offence against
subsection (2) if
the defendant proves that he or she did not know, and could not reasonably have
been expected to know, that his or her conduct amounted to a failure to comply
with the direction.
(5) A health practitioner or other person who advises the Guardianship
Board that a person wishes, or may wish, to revoke an advance care
directive—
(a) cannot, by virtue of doing so, be held to have breached any code of
professional etiquette or ethics, or to have departed from any accepted form of
professional conduct; and
(b) insofar as he or she has acted in good faith, incurs no civil or
criminal liability in respect of the advice.
32—Revoking
advance care directives where person not competent
(1) An advance care directive of a person to whom this Subdivision applies
may only be revoked by the Guardianship Board in accordance with this
section.
(2) Subject to
subsection (3), the
Guardianship Board must revoke an advance care directive if—
(a) —
(i) the person who gave the advance care directive, or a person acting on
his or her behalf, applies to the Guardianship Board for the revocation in a
manner and form determined by the Guardianship Board; or
(ii) the Guardianship Board is advised under
section 31 of a
person's wish to revoke an advance care directive; and
(b) the Guardianship Board (having made such inquiries as it thinks fit)
is satisfied that—
(i) the person who gave the advance care directive understands the nature
and consequences of the revocation; and
(ii) the revocation genuinely reflects the wishes of the person;
and
(iii) the revocation is, in all the circumstances, appropriate.
(3) If an advance care
directive expressly provides that the advance care directive is not to be
revoked in the circumstances contemplated by this Subdivision, the Guardianship
Board should not revoke the advance care directive unless satisfied that the
current wishes of the person who gave the advance care directive indicate a
conscious wish to override such a provision.
(4) If the Guardianship Board revokes an advance care directive under this
section, the Guardianship Board—
(a) must advise each substitute decision-maker appointed under the advance
care directive of the revocation as soon as is reasonably practicable;
and
(b) must take reasonable steps to notify each other person who has been
given a copy of the advance care directive of the revocation; and
Example—
Such persons might include family members, hospitals, accommodation
providers and doctors.
(c) may give such advice and directions as the Guardianship Board
considers necessary or desirable in the circumstances of the case.
Part 4—Recognition
of advance care directives from other jurisdictions
33—Advance
care directives from other jurisdictions
(1) The Governor may, by regulation, declare a class of instruments made
under a corresponding law to be an interstate advance care
directive.
(2) Subject to this section—
(a) for the purposes of the laws of this State, an interstate advance care
directive has effect as if it were an advance care directive given under this
Act; and
(b) this Act (other than
Part 3) applies to
an interstate advance care directive as if it were an advance care directive
given under this Act; and
(c) the powers and responsibilities of a substitute decision-maker under
the interstate advance care directive will be determined in accordance with the
corresponding law under which the interstate advance care directive was
given.
(3) For the purposes of this Act, a provision of an interstate advance
care directive of a kind contemplated by
section 6,
12(1) or
13 will be taken to
be void and of no effect (whether or not the provision was able to be included
in the interstate advance care directive in the jurisdiction in which it was
made).
(4) In this section—
corresponding law means a law of the Commonwealth, or of
another State or Territory, that is declared by the regulations to be a
corresponding law for the purposes of this section.
Part 5—Giving
effect to advance care directives
34—When
things can happen under an advance care directive
(1) A substitute decision-maker may only make a decision under an advance
care directive if, at the relevant time, the person who gave the advance care
directive has impaired decision-making capacity in respect of the
decision.
(2) A health practitioner may only provide health care pursuant to a
consent granted under an advance care directive (whether by a substitute
decision-maker or otherwise) if, at the relevant time, the person who gave the
advance care directive has impaired decision-making capacity in respect of a
decision relevant to the provision of the health care.
Note—
This includes the withdrawal, or withholding the provision of, health
care—see
section 4.
(3) Nothing in this section prevents a provision of an advance care
directive being taken into account when determining the wishes of the person who
gave the advance care directive.
35—Substitute
decision-maker to give effect to advance care directive
(1) Subject to this Act, in making a decision under an advance care
directive, a substitute decision-maker—
(a) must, as far as is reasonably practicable—
(i) give effect to any instructions or directions expressed in the advance
care directive; and
(ii) 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
(iii) obtain, and have regard to, the wishes of the person who gave the
advance care directive (whether such wishes are expressed or implied);
and
(iv) endeavour to make the decision in a manner that is consistent with
the principles set out in
section 10;
and
(b) must make the decision that he or she reasonably believes the person
who gave the advance care directive would have made in the circumstances;
and
(c) must act in good faith and with due diligence.
(2) A failure to comply with this section does not, of itself, result in
any civil or criminal liability on the part of the substitute
decision-maker.
36—Health
practitioners to give effect to advance care directives
(1) Subject to this
Act, 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 in respect of a decision that is required in relation
to the health care—
(a) must comply with a binding provision of the advance care directive
that relates to health care of the relevant kind; and
(b) 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; and
(c) 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
(d) must endeavour to provide the health care in a manner that is
consistent with the principles set out in
section 10.
Note—
This includes the provision of emergency medical treatment—see
Division 5 of Part 2 of the Consent
to Medical Treatment and Palliative Care Act 1995.
(2) Despite
subsection (1), a
health practitioner may refuse to comply with a provision of an advance care
directive that specifies the kind of health care that the person who gave the
advance care directive wishes to receive if such health care—
(a) is not consistent with any relevant professional standards;
or
(b) does not reflect current standards of health care in the
State.
(3)
Subsection (2) does
not apply—
(a) to, or in relation to, a binding provision of an advance care
directive; or
(b) if the specified health care comprises the withdrawal, or withholding,
of health care to a person (including, to avoid doubt, the withdrawal or
withholding of life-sustaining measures).
Example—
An example would be a "do not resuscitate" instruction in an advance care
directive.
(4) For the purposes of the Health
Practitioner Regulation National Law (South Australia) Act 2010 and
the Health
Practitioner National Law (South Australia), and for any other Act
declared by the regulations to be included in the ambit of this subsection, a
contravention of
subsection (1) will
be taken to amount to unprofessional conduct.
(1) Despite any other
provision of this Act, a health practitioner may refuse to comply with a
provision of an advance care directive (whether binding or non-binding) on
conscientious grounds.
(2) However, if a health practitioner refuses to comply with a provision
of an advance care directive under
subsection (1), he
or she must take reasonable steps to—
(a) provide the person who gave the advance care directive, or a
substitute decision-maker appointed under the advance care directive, the name
and contact information of another health practitioner practising in the
relevant field who the health practitioner reasonably believes will not refuse
to comply with the provision on conscientious grounds; and
(b) if the person or the substitute decision-maker so requires, provide a
referral to that health practitioner.
38—Consent
etc taken to be that of person who gave advance care
directive
For the purposes of the law of the State, a consent to particular health
care given or refused pursuant to an advance care directive—
(a) will be taken to be the consent or refusal of consent (as the case
requires) of the person who gave the advance care directive; and
(b) will be taken to have the same effect for all purposes as if the
person were capable of giving such consent.
39—Consent
taken to be withdrawn in certain circumstances
(1) If, at any time
before particular health care is provided pursuant to a consent granted under an
advance care directive (whether by a substitute decision-maker or otherwise),
the person who gave the advance care directive expressly or implicitly withdraws
his or her consent to the health care, the consent will, for the purposes of the
law of the State, be taken to have been withdrawn.
Note—
The dispute resolution processes in
Part 7 may also be
available in such circumstances.
(2)
Subsection (1) does
not apply in relation to particular health care, or health care of a particular
kind—
(a) if the advance care directive expressly excludes its operation;
or
(b) in any other circumstances prescribed by the regulations.
(3) Any act or omission done or made in good faith, without negligence and
in accordance with an advance care directive before consent was withdrawn under
this section will be taken to be valid, and always to have been valid.
Part 6—Validity
and limitation of liability
A health practitioner, substitute decision-maker or other person is
entitled to presume that an apparently genuine advance care directive is valid
and in force unless he or she knew, or ought reasonably to have known, that the
advance care directive was not valid or in force (as the case
requires).
(1) A health
practitioner, substitute decision-maker or other person incurs no criminal or
civil liability for an act or omission done or made in good faith, without
negligence and in accordance with an advance care directive.
(2) For the purposes of this section, a reference to the civil liability
of a person includes a reference to liability arising under disciplinary
proceedings or similar proceedings.
42—Validity
of acts etc under revoked or varied advance care directive
Subject to this Act, the revocation or variation of an advance care
directive under this Act does not affect the validity of any act done or
decision made under the advance care directive before the revocation or
variation.
Part 7—Dispute
resolution, reviews and appeals
In this Part—
eligible person, in respect of an advance care directive,
means—
(a) the person who gave the advance care directive; and
(b) a substitute decision-maker appointed under the advance care
directive; and
(c) a health practitioner providing, or proposing to provide, health care
to the person who gave the advance care directive; and
(d) any other person who satisfies the Public Advocate that he or she has
a proper interest in a particular matter relating to the advance care
directive,
and, for the purposes of
section 47, includes
each person who was a party to any mediation under
Division 2 arising
out of the matter.
This Part applies to the following matters:
(a) the giving or revoking of an advance care directive;
(b) a decision, or proposed decision, under an advance care
directive;
(c) the provision, or proposed provision, of health care to a person who
has given an advance care directive;
Note—
This includes the withdrawal or withholding of health care—see
section 4.
(d) any other matter specified by the regulations for the purposes of this
section.
Division 2—Resolution
of disputes by Public Advocate
45—Resolution
of disputes by Public Advocate
(1) The Public Advocate may, on application by an eligible person in
respect of an advance care directive or on his or her own initiative, provide
preliminary assistance in resolving a matter to which this Part applies,
including by—
(a) ensuring that the parties to the matter are fully aware of their
rights and obligations; and
(b) identifying the issues (if any) that are in dispute between the
parties; and
(c) canvassing options that may obviate the need for further proceedings;
and
(d) where appropriate, facilitating full and open communication between
the parties.
(2) The Public Advocate may, on application by an eligible person in
respect of an advance care directive, mediate a matter to which this Part
applies.
(3) The Public Advocate may bring a mediation to an end at any
time—
(a) if, in the opinion of the Public Advocate, it is more appropriate that
the matter be dealt with by the Guardianship Board; or
(b) at the request of a party to the mediation.
(4) Evidence of anything said or done in the course of a mediation under
this section is not admissible in subsequent proceedings except by consent of
all parties to the proceedings.
(5) The Public Advocate
may, on application by an eligible person in respect of an advance care
directive or on his or her own initiative, or in relation to a mediation under
this section—
(a) make such of the
following declarations in respect of a matter to which this Part applies as the
Public Advocate thinks necessary or desirable in the circumstances of the
case:
(i) a declaration as to the nature and scope of a person's powers or
responsibilities under the advance care directive;
(ii) a declaration as to whether or not a particular act or omission is
within the powers, or discharges the responsibilities, of a person under the
advance care directive;
(iii) a declaration
as to whether or not the person who gave the advance care directive has impaired
decision-making capacity in relation to a specified decision;
(iv) any other declaration prescribed by the regulations; and
(b) give any advice that the Public Advocate considers necessary or
desirable in the circumstances of the case.
(6) The Public Advocate
may vary or revoke a declaration under this section.
(7) The Public Advocate may refuse to determine an application for a
declaration or advice under this section if, in the opinion of the Public
Advocate, it is more appropriate that the matter be dealt with by the
Guardianship Board.
(8) An application under this section—
(a) must be made in a manner and form determined by the Public Advocate;
and
(b) must be accompanied by such information as the Public Advocate may
reasonably require; and
(c) must be accompanied by the prescribed fee.
(9) An application under this section may be determined by the Public
Advocate despite the absence of any person who may be affected by the Public
Advocate's decision.
(10) The Public Advocate has, for the purposes of this section, the same
privileges and immunities as a member of the Guardianship Board under the Guardianship
and Administration Act 1993.
(11) Subject to this Act, the Public Advocate may conduct proceedings
under this section in such manner as he or she thinks fit.
(12) Despite section 23 of the Guardianship
and Administration Act 1993, the Public Advocate cannot delegate a
power or function conferred on the Public Advocate under
subsection (5)(a) or
(6).
(13) The regulations may make further provisions in relation to mediations
under this section.
46—Public
Advocate may refer matter to Guardianship Board
(1) If the Public Advocate ends a mediation, or refuses to determine an
application, under
section 45 on the
grounds that it is more appropriate that the matter be dealt with by the
Guardianship Board, the Public Advocate may refer the matter to the Guardianship
Board.
(2) The regulations may make further provision in respect of referrals
under this section.
Division 3—Resolution
of disputes by Guardianship Board
Note—
Certain persons who are dissatisfied with a decision, direction or order of
the Guardianship Board under this Division may, with the permission of the
Guardianship Board or the Administrative and Disciplinary Division of the
District Court, appeal to that court against the decision, direction or
order—see section 67 of the Guardianship
and Administration Act 1993.
47—Resolution
of disputes by Guardianship Board
(1) An eligible person
in respect of an advance care directive may apply to the Guardianship Board
for—
(a) a review of a matter dealt with by the Public Advocate under
section 45;
or
(b) a declaration or
direction in relation to a matter to which this Part applies (including, to
avoid doubt, a matter contemplated by
section 45).
(2) The Guardianship Board may refuse to hear an application under this
section if the Guardianship Board is of the opinion—
(a) that the matter to which the application relates lacks substance, is
unnecessary or unjustifiable, or is frivolous, vexatious or not made in good
faith; or
(b) that to conduct a review would be an abuse of the processes under this
Part; or
(c) that the matter should be determined by way of legal
proceedings.
(3) The Guardianship Board may, on determining an application under this
section—
(a) in the case of a review of a matter dealt with by the Public Advocate
under
section 45—
(i) confirm, cancel or reverse a decision that is the subject of the
review;
(ii) confirm, vary or revoke a declaration given under
section 45;
and
(b) in any case—
(i) make any declarations that the Guardianship Board thinks necessary or
desirable in the circumstances of the case; and
(ii) give any directions that the Guardianship Board thinks necessary or
desirable in the circumstances of the case (including a direction that the
provision of particular health care to a person be withdrawn or withheld);
and
Note—
The Guardianship Board cannot compel a health practitioner to provide
particular health care to a patient—see
section 6.
(iii) give any advice that the Guardianship Board considers necessary or
desirable in the circumstances of the case.
(4) The Guardianship Board may vary or revoke a declaration or direction
under this section.
(5) The person who gave the advance care directive to which proceedings
under this section relate is (if he or she is not the applicant) a party to the
proceedings.
(6) Sections 15 and 15A of the Guardianship
and Administration Act 1993 do not apply to, or in relation to,
proceedings under this section.
(7) An application under this section—
(a) must be made in a manner and form determined by the Guardianship
Board; and
(b) must be accompanied by such information as the Guardianship Board may
reasonably require; and
(c) must be accompanied by the prescribed fee.
(8) The regulations may make further provisions in relation to proceedings
under this section.
(9) Subject to this Act and the Guardianship
and Administration Act 1993, the Guardianship Board may conduct a
review under this section in such manner as it thinks fit.
Note—
Section 14 of the Guardianship
and Administration Act 1993 sets out the powers and procedures of
the Guardianship Board in respect of proceedings before the Guardianship
Board.
48—Guardianship
Board may refer matter to Public Advocate
(1) If the Guardianship Board is of the opinion that it is more
appropriate that a particular application under
section 47(1)(b) be
dealt with by the Public Advocate, the Guardianship Board may refer the matter
to the Public Advocate.
(2) The regulations may make further provision in respect of referrals
under this section.
49—Failing
to comply with direction of Guardianship Board
(1) Subject to this
Act, a person who fails to comply with a direction of the Guardianship Board
under this Division is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 6 months.
(2) It is a defence to a charge of an offence against
subsection (1)
if the defendant proves that he or she did not know, and could not reasonably
have been expected to know, that his or her conduct amounted to a failure to
comply with the relevant direction.
50—Orders
of Guardianship Board in relation to substitute
decision-makers
(1) If the
Guardianship Board is satisfied, on the application of an eligible person in
respect of an advance care directive, that—
(a) a person appointed as a substitute decision-maker under the advance
care directive—
(i) is a person who cannot be a substitute decision-maker pursuant to
section 21(2);
or
(ii) is no longer willing to act as a substitute decision-maker under the
advance care directive; or
(iii) has been negligent in the exercise of his or her powers under the
advance care directive; or
(b) it is otherwise not appropriate for a particular person appointed as a
substitute decision-maker under the advance care directive to be a substitute
decision-maker under the advance care directive,
the Guardianship Board may—
(c) revoke the appointment of the substitute decision-maker; or
(d) if the person who gave the advance care directive is
competent—with the consent of the person, make any variation to the
advance care directive the Guardianship Board thinks appropriate (including by
appointing another substitute decision-maker); or
(e) if the person
who gave the advance care directive is not competent, and if no other substitute
decision-maker was appointed under the advance care directive—revoke the
advance care directive.
(2) The Guardianship Board may refuse to hear an application under this
section if the Guardianship Board is of the opinion—
(a) that the matter to which the application relates lacks substance, is
unnecessary or unjustifiable, or is frivolous, vexatious or not made in good
faith; or
(b) that the matter should be determined by way of legal
proceedings.
(3) An application—
(a) must be made in a manner and form determined by the Guardianship
Board; and
(b) must be accompanied by the prescribed fee.
(4) However, the
Guardianship Board should not revoke an advance care directive under
subsection (1)(e)
if there are provisions in the advance care directive that can continue to have
effect despite the fact that there is no substitute decision-maker appointed
under the advance care directive.
Note—
Such provisions include, for example, an expression of the wishes of the
person who gave the advance care directive in respect of specified health care,
or accommodation or personal matters.
In the circumstances contemplated by
subsection (1)(e)
of this section, the Guardianship Board may also make an order placing the
person who gave the advance care directive under limited or full
guardianship—see Part 4 Division 2 of the Guardianship
and Administration Act 1993. If such an order is made,
section 31A of that Act requires the guardian to seek to give effect to the
instructions and wishes of the person as set out in the revoked advance care
directive.
Division 4—Urgent
review of decisions
51—Urgent
review by Supreme Court
(1) The Supreme Court may, on the application of—
(a) a health practitioner responsible (whether solely or with others) for
the health care of a person who has given an advance care directive;
or
(b) any person who has, in the opinion of the Court, a proper interest in
the exercise of powers by the substitute decision-maker,
review the decision of a substitute decision-maker appointed under an
advance care directive.
(2) A review under this section—
(a) is limited to ensuring that the substitute decision-maker's decision
is in accordance with the advance care directive and this Act; and
(b) cannot be undertaken in respect of a decision to withdraw or withhold
health care if the person who gave the advance care directive is in the advanced
stages of an illness without any real prospect of recovery and the effect of the
health care would be merely to prolong the person's life.
(3) On completion of a review, the Supreme Court may—
(a) confirm, cancel or reverse the decision of the substitute
decision-maker; and
(b) make such other orders, and give such advice and directions, as the
Court thinks necessary or desirable in the circumstances of the case.
(4) The Supreme Court must conduct a review under this section as
expeditiously as possible.
52—Question
of law may be referred to Supreme Court
The Public Advocate or the Guardianship Board may refer any question of law
for the opinion of the Supreme Court.
53—Operation
of orders pending appeal
(1) Subject to
subsection (2),
a decision, direction or order of the Guardianship Board or a court against
which a right of appeal lies (whether under this Act or any other Act or law)
continues to operate despite that right of appeal or the institution of an
appeal.
(2) The operation
of a decision, direction or order against which an appeal has been instituted
may, on the application of the appellant, be suspended by the body that made it
or by the appellate court pending determination of the appeal, if the body or
court thinks special reason exists for doing so.
54—False
or misleading statements
(1) A person who
knowingly makes a false or misleading statement in, or in relation to, an
advance care directive is guilty of an offence.
Maximum penalty:
(a) if the defendant is a substitute decision-maker appointed under the
advance care directive—$20 000 or imprisonment for
2 years.
(b) in any other case—$10 000.
(2) A person who
knowingly makes a false or misleading statement in relation to an attempt to
give an advance care directive is guilty of an offence.
Maximum penalty: $10 000.
(3) For the purposes of
subsection (1), a
reference to a substitute decision-maker includes a reference to a person who is
not but who was, at the relevant time, a substitute decision-maker appointed
under the advance care directive.
(1) A person who, by dishonesty or undue influence, induces another to
give an advance care directive is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(2) A person who purports to act as a substitute decision-maker appointed
under an advance care directive knowing that—
(a) the advance care directive has been revoked; or
(b) he or she is not a substitute decision-maker appointed under the
advance care directive,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(3) A person convicted
or found guilty of an offence against this section forfeits any interest that
the person might otherwise have had in the estate of the person who gave the
advance care directive, or revoked advance care directive (as the case
requires).
(4) If a person is
convicted or found guilty of an offence against this section, the court
sentencing the person may, if satisfied it is appropriate to do so in the
circumstances—
(a) revoke the relevant advance care directive; or
(b) if the person is a substitute decision-maker appointed under the
relevant advance care directive—revoke the person's appointment as a
substitute decision-maker; or
(c) declare that
subsection (3) does
not apply to, or in relation to, the person; or
(d) make any other order the court thinks appropriate in relation to the
advance care directive.
56—Giving
notice to substitute decision-makers
(1) If a person or
body is required under this or any other Act or law to give notice to a
substitute decision-maker, that requirement will be taken to be satisfied if the
person gives such notice to—
(a) if a particular substitute decision-maker is specified in the advance
care directive as being the person to whom such notice is to be given—that
substitute decision-maker; or
(b) in any other
case—the substitute decision-maker who is appointed first in the advance
care directive.
Note—
This paragraph does not require a person to give notice to or otherwise
contact a substitute decision-maker, rather it applies where a provision of this
Act or another Act requires such notice to be given.
(2) If the first-appointed substitute decision-maker is given notice in
accordance with
subsection (1)(b),
he or she must give each other substitute decision-maker appointed under the
advance care directive—
(a) if the notice is a written notice—a copy of the notice;
or
(b) in any other case—information setting out the effect of the
notice.
57—Prohibition
of publication of reports of proceedings
(1) Subject to this
section, a person must not publish a report of any proceedings under this
Act.
Maximum penalty: $10 000.
(2) The body or
court before which proceedings under this Act are heard may, on application by a
person who it is satisfied has a proper interest in the matter, authorise the
publication of a report of those proceedings.
(3) A person who publishes a report pursuant to an authorisation given
under
subsection (2)
must not disclose any information in the report that identifies, or could tend
to identify, the person to whom the proceedings relate.
Maximum penalty: $10 000.
(4) This section does not apply if the person who gave the relevant
advance care directive consents to the publication of the report or
information.
A notice or document required or authorised to be given or sent to, or
served on, a person for the purposes of this Act may—
(a) be given to the person personally; or
(b) be posted in an envelope addressed to the person—
(i) at the person's last known address; or
(ii) at the person's address for service; or
(c) be left for the person at the address for service with someone
apparently over the age of 16 years; or
(d) be transmitted by fax or email to a fax number or email address
provided by the person (in which case the notice or document will be taken to
have been given or served at the time of transmission).
(1) A person commits an act of victimisation against another person (the
victim) if he or she causes detriment to the victim on the ground,
or substantially on the ground, that the victim—
(a) has made, or wishes to make an advance care directive; or
(b) is a substitute decision-maker appointed under an advance care
directive; or
(c) is otherwise involved in relation to an advance care
directive.
(2) An act of victimisation under this Act may be dealt
with—
(a) as a tort; or
(b) as if it were an act of victimisation under the Equal
Opportunity Act 1984,
but, if the victim commences proceedings in a court seeking a remedy in
tort, he or she cannot subsequently lodge a complaint under the Equal
Opportunity Act 1984 and, conversely, if the victim lodges a
complaint under that Act, he or she cannot subsequently commence proceedings in
a court seeking a remedy in tort.
(3) If a complaint alleging an act of victimisation under this Act has
been lodged with the Commissioner for Equal Opportunity and the Commissioner is
of the opinion that the subject matter of the complaint has already been
adequately dealt with by a competent authority, the Commissioner may decline to
act on the complaint or to proceed further with action on the
complaint.
(4) In this section—
detriment includes—
(a) injury, damage or loss; or
(b) intimidation or harassment; or
(c) discrimination, disadvantage or adverse treatment in relation to the
victim's employment or business; or
(d) threats of reprisal.
(1) A person
engaged or formerly engaged in the administration of this Act must not divulge
or communicate personal information obtained (whether by that person or
otherwise) in the course of official duties except—
(a) as required or authorised by or under this Act or any other Act or
law; or
(b) with the consent of the person to whom the information relates;
or
(c) in connection with the administration of this Act; or
(d) as may be required to give effect to the provisions of an advance care
directive to which the information relates; or
(e) to an authority responsible under the law of a place outside this
State, where the information is required for the proper administration of that
law; or
(f) to an agency or instrumentality of this State, the Commonwealth or
another State or a Territory of the Commonwealth for the purposes of the proper
performance of its functions.
Maximum penalty: $10 000.
(2)
Subsection (1)
does not prevent disclosure of statistical or other data that could not
reasonably be expected to lead to the identification of any person to whom it
relates.
(3) Information that has been disclosed under
subsection (1)
for a particular purpose must not be used for any other purpose
by—
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly
or improperly and whether directly or indirectly) as a result of that
disclosure.
Maximum penalty: $10 000.
(1) The Minister
must cause a review of the operation of this Act to be conducted and a report on
the results of the review to be submitted to him or her.
(2) The review and the report must be completed before the fifth
anniversary of the commencement of this Act.
(3) The Minister must cause a copy of the report submitted under
subsection (1)
to be laid before both Houses of Parliament within 6 sitting days after
receiving the report.
(1) The Governor
may make such regulations as are contemplated by, or necessary or expedient for
the purposes of, this Act.
(2) Without limiting
subsection (1),
the regulations may—
(a) exempt (conditionally or unconditionally) a specified person or class
of persons from a specified provision or provisions of this Act; and
(b) prescribe fees in respect of any matter under this Act and their
payment, recovery or waiver; and
(c) prescribe fines, not exceeding $5 000, for offences against the
regulations; and
(d) make provisions for the facilitation of proof of the commission of
offences against the regulations; and
(e) make provisions
of a saving or transitional nature.
(3) The regulations may—
(a) be of general application or vary in their application according to
prescribed factors; and
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister or a
specified person or body.
Schedule 1—Related
amendments and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Consent to Medical
Treatment and Palliative Care Act 1995
2—Amendment
of section 3—Objects
(1) Section 3(a)(ii)—delete subparagraph (ii)
(2) Section 3(b)—delete paragraph (b) and
substitute:
(b) to provide for the medical treatment of people who have impaired
decision-making capacity; and
3—Amendment
of section 4—Interpretation
(1) Section 4, definition of anticipatory
direction—delete the definition and substitute:
advance care directive means an advance care directive under
the
Advance
Care Directives Act 2012 that is in force;
(2) Section 4, definition of authorised
witness—delete the definition
(3) Section 4, definition of available—delete the
definition
(4) Section 4—after the definition of guardian
insert:
Guardianship Board means the Guardianship Board established
under the
Guardianship
and Administration Act 1993;
impaired decision-making capacity, in respect of a particular
decision—see subsection (2);
(5) Section 4, definition of medical agent—delete
the definition
(6) Section 4, definition of medical
treatment—delete the definition and substitute:
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—
(a) the prescription or supply of drugs; and
(b) the examination and assessment of a patient;
Note—
See also section 14, which extends this definition for the purposes of
Part 2A to include other forms of health care.
(7) Section 4, definition of parent—delete the
definition and substitute:
parent, of a child, includes—
(a) a step-parent; and
(b) an adult who acts in loco parentis in relation to the
child;
persistent vegetative state includes post-coma
unresponsiveness and a minimally responsive state;
Public Advocate means the Public Advocate appointed under the
Guardianship
and Administration Act 1993;
(8) Section 4, definition of
representative—delete the definition and
substitute:
representative, of a patient, means a person authorised under
this or any other Act or law to make decisions about the administration of
medical treatment of the relevant kind to the patient;
substitute decision-maker has the same meaning as in the
Advance
Care Directives Act 2012;
(9) Section 4—after its present contents (now to be designated
as subsection (1)) insert:
(2) For the
purposes of this Act, a person will be taken to have impaired
decision-making capacity in respect of a particular decision
if—
(a) the person is not capable of—
(i) understanding any information that may be relevant to the decision
(including information relating to the consequences of making a particular
decision); or
(ii) retaining such information; or
(iii) using such information in the course of making the decision;
or
(iv) communicating his or her decision in any manner; or
(b) the person is, by reason of being comatose or otherwise unconscious,
unable to make a particular decision about his or her medical
treatment.
(3) For the purposes of this Act—
(a) 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;
(b) 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;
(c) a person may fluctuate between having impaired decision-making
capacity and full decision-making capacity;
(d) 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.
(4) For the purposes of this Act, a medical practitioner is entitled to
presume that a person who purports to be in a close and continuing relationship
with another person is in such a relationship unless the medical practitioner
knew, or ought reasonably to have known, that the 2 persons were not in
such a relationship.
(5) For the purposes of this Act, a medical practitioner is entitled to
presume that a person who purports to have a particular relationship to another
person (whether the relationship is based on affinity or consanguinity or
otherwise) does have such a relationship unless the medical practitioner knew,
or ought reasonably to have known, that the person did not have such a
relationship to the other person.
4—Insertion
of sections 4A and 4B
After section 4 insert:
4A—References to provision of medical treatment etc
to include withdrawal etc of medical treatment
Unless the contrary intention appears, a reference in this Act to the
administration of medical treatment to a person will be taken to include a
reference to the withdrawal, or withholding, of medical treatment to the person
(including, to avoid doubt, the withdrawal or withholding of life sustaining
measures).
4B—Consent not required for withdrawal etc of
medical treatment
Nothing in this Act operates to require the consent of a person to be given
before medical treatment (including, to avoid doubt, life sustaining measures)
can be withdrawn or withheld.
Section 5—delete the section
6—Amendment
of heading to Part 2
Heading to Part 2—after "treatment" insert:
generally
7—Repeal
of Part 2 Divisions 2 and 3
Part 2 Divisions 2 and 3—delete Divisions 2
and 3
8—Amendment
of section 13—Emergency medical treatment
(1) Section 13(1)—delete "subsection (3)" and
substitute:
this section
(2) Section 13(1)(a)—after "consenting" insert:
(whether or not the person has impaired decision-making capacity in respect
of a particular decision)
(3) Section 13(1)—after paragraph (c) insert:
and
(d) the medical practitioner proposing to administer the treatment has
made, or has caused to be made, reasonable inquiries to ascertain whether the
patient (if the patient is 18 or more years of age) has given an advance
care directive.
(4) Section 13—after subsection (2) insert:
(2a) Inquiries under subsection (1)(d) need not be made if in the
circumstances of the case it is not reasonably practicable to do so.
(5) Section 13(3)—delete subsection (3) and
substitute:
(a) the patient has given an advance care directive; and
(b) the medical practitioner proposing to administer the treatment is
aware of that fact (whether on the basis of inquiries made under this section or
otherwise); and
(c) a substitute decision-maker appointed under the advance care directive
is empowered or authorised to make decisions relating to the administration of
such treatment and is reasonably available to make such a decision,
the medical treatment must not be administered without the consent of the
substitute decision-maker.
Note—
This provision simply requires the substitute decision-maker to be given
the opportunity to make the decision about consent if he or she is
available—there may also be other provisions of the advance care directive
in relation to the treatment that are relevant, and need to be complied with, in
the circumstances.
(6) Section 13(4)—delete "medical agent" insert:
substitute decision-maker
(7) Section 13—after subsection (4) insert:
(4a) If neither a
substitute decision-maker nor a guardian of the patient is available, but a
person responsible for the patient (within the meaning of Part 2A) is
reasonably available and willing to consent to the administration of the medical
treatment, the medical treatment may not be administered without the consent of
the person responsible for the patient (given in accordance with
Part 2A).
Part 2 Division 6—delete Division 6
After Part 2 insert:
Part 2A—Consent to medical treatment if person has
impaired decision-making capacity
14—Interpretation
(1) In this Part—
health care means any care, service, procedure or 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;
health practitioner means a person who practises 1 or
more of the following:
(a) a health profession (within the meaning of the Health Practitioner
Regulation National Law (South Australia);
(b) any other profession or practice declared by the regulations to be
included in the ambit of this definition;
medical practitioner, in respect of particular health care,
includes a health practitioner practising in the relevant profession or
practice;
medical treatment includes health care;
patient means a person to whom medical treatment is, or is
proposed to be, administered pursuant to this Part;
person responsible for a patient means—
(a) if a guardian has
been appointed in respect of the patient, and his or her powers as guardian have
not been limited so as to exclude the giving of a consent contemplated by this
Part and he or she is available and willing to make a decision as to such
consent—that guardian; or
(b) if
paragraph (a) does
not apply, but a prescribed relative of the patient who has a close and
continuing relationship with the patient is available and willing to make a
decision as to a consent contemplated by this part—that prescribed
relative; or
(c) if
paragraphs (a) or
(b) do not apply, but
an adult friend of the patient who has a close and continuing relationship with
the patient is available and willing to make a decision as to a consent
contemplated by this part—that friend; or
(d) if
paragraphs (a),
(b) or
(c) do not apply, but
an adult who is charged with overseeing the ongoing day-to-day supervision, care
and well-being of the patient is available and willing to make a decision as to
a consent contemplated by this part—that person; or
(e) if none of the preceding paragraphs apply, or otherwise with the
permission of the Guardianship Board—the Guardianship Board on the
application of—
(i) a prescribed relative of the patient; or
(ii) the medical practitioner proposing to give the treatment;
or
(iii) any other person who the Board is satisfied has a proper interest in
the matter;
prescribed relative—the following persons are
prescribed relatives of a patient:
(a) a person who is legally married to the patient;
(b) an adult domestic partner of the patient (within the meaning of the
Family
Relationships Act 1975 and whether declared as such under that Act
or not);
(c) an adult related to the patient by blood or marriage;
(d) an adult related to the patient by reason of adoption;
(e) an adult of Aboriginal or Torres Strait Islander descent who is
related to the patient according to Aboriginal kinship rules or Torres Strait
Islander kinship rules (as the case requires).
(2) If a man and woman are married according to Aboriginal tradition, they
will be regarded as legally married for the purposes of this Part.
14A—Application of Part
(1) This Part does not apply to, or in relation to, a child.
Note—
Section 12 sets out who can consent to the administration of medical
treatment (other than prescribed treatment) to a child.
(2) This Part does not apply to, or in relation to, a person who has given
an advance care directive to the extent that—
(a) a substitute decision-maker has been appointed under the advance care
directive who is authorised to make decisions relating to the administration of
medical treatment of the relevant kind to the patient; or
(b) the advance care directive makes specific provision in respect of the
administration of medical treatment of the relevant kind to the
patient.
(3) This Part does not apply to, or in relation to, prescribed treatment
(within the meaning of the Guardianship
and Administration Act 1993).
Note—
Under the Guardianship
and Administration Act 1993, prescribed treatments include
terminations of pregnancy and sterilisations.
(4) Nothing in this Part limits the operation of
section 13.
14B—Consent of person responsible for patient
effective in certain circumstances
(1) Where it is
proposed to administer medical treatment to a patient with impaired
decision-making capacity in respect of a decision that is required in relation
to the medical treatment, a consent given by a person responsible for the
patient to the administration of the proposed medical treatment—
(a) will be taken to be a consent given by the patient; and
(b) will be taken to have the same effect for all purposes as if the
patient gave the consent.
(2) The regulations may
make further provision in relation to the giving of consent by a person
responsible for a patient for the purposes of this Act (including by limiting
the kinds of medical treatment to which a specified class of person responsible
can consent).
(3) The effectiveness of a consent given by a person responsible for a
patient is not affected merely because insufficient inquiries were made to
locate a person with higher responsibility for the patient before the consent
was given (as contemplated by the hierarchy in the definition of person
responsible in
section 14).
(4) Consent to the administration of particular medical treatment will,
for all purposes, be taken to have been given by the patient if—
(a) the medical treatment was administered with the purported consent of a
person who represented to the medical practitioner that he or she was a person
responsible for the patient; and
(b) the medical practitioner did not know and could not reasonably be
expected to have known that the person was not, in fact, a person responsible
for the patient.
14C—Person responsible for patient to make
substituted decision
A decision of a person responsible for a patient to give, or to refuse to
give, consent under this Part must, as far as is reasonably practicable, reflect
the decision that the patient would have made in the circumstances had his or
her decision-making capacity not been impaired.
Note—
In cases where the patient has given an advance care directive under which
no substitute decision-maker is appointed, but the patient's wishes or
instructions in relation to treatment of the relevant kind is recorded, it may
nevertheless be necessary to give effect to those wishes or
instructions—see Part 5 of the Advance
Care Directives Act 2012.
14D—Person must not give consent unless authorised
to do so
A person who is not a person responsible for a particular patient is guilty
of an offence if he or she, knowing that he or she is not a person responsible
for the patient or being recklessly indifferent as to whether or not he or she
is a person responsible for the patient—
(a) purports to give a consent under this Part in respect of the patient;
or
(b) represents to a medical practitioner that he or she is a person
responsible for the patient.
Maximum penalty: Imprisonment for 2 years.
11—Amendment
of section 17—The care of people who are dying
Section 17(2)—delete subsection (2) and
substitute:
(2) A medical practitioner responsible for the treatment or care of a
patient in the terminal phase of a terminal illness, or a person participating
in the treatment or care of the patient under the medical practitioner's
supervision—
(a) is under no duty to use, or to continue to use, life sustaining
measures in treating the patient if the effect of doing so would be merely to
prolong life in a moribund state without any real prospect of recovery or in a
persistent vegetative state (whether or not the patient or the patient's
representative has requested that such measures be used or continued);
and
(b) must, if the patient or the patient's representative so directs,
withdraw life sustaining measures from the patient.
After Part 3 insert:
Part 3A—Dispute resolution
Division 1—Preliminary
18A—Interpretation
In this Part—
eligible person, in relation to a matter,
means—
(a) if the matter relates to a child—a parent or guardian of the
child; and
(b) if the matter relates to a patient with impaired decision-making
capacity in respect of a particular decision—a person responsible for the
patient; and
(c) a medical practitioner who is providing, or is to provide, the medical
treatment to which the matter relates; and
(d) any other person who satisfies the Public Advocate that he or she has
a proper interest in the matter;
medical practitioner and medical treatment, in
relation to the administration, or proposed administration, of medical treatment
to a patient pursuant to Part 2A, have the same meanings as in that
Part;
patient means a patient within the meaning of
Part 2A;
person responsible for a patient has the same meaning as in
Part 2A.
18B—Application of Part
This Part applies to the following matters:
(a) a decision of a parent or guardian of a child to consent, or to refuse
to consent, to the administration of medical treatment to the child;
(b) a decision of a medical practitioner to administer, or not administer,
medical treatment to a patient pursuant to Part 2A;
(c) a decision of a person responsible for a patient to consent, or to
refuse to consent, to the administration of medical treatment to the person
pursuant to Part 2A;
(d) any other matter prescribed by the regulations for the purposes of
this section.
Division 2—Resolution of disputes by Public
Advocate
18C—Resolution of disputes by Public
Advocate
(1) The Public Advocate may, on application by an eligible person in
relation to a matter to which this Part applies or on his or her own initiative,
provide preliminary assistance in resolving the matter, including
by—
(a) ensuring that the parties to the matter are fully aware of their
rights and obligations; and
(b) identifying the issues (if any) that are in dispute between the
parties; and
(c) canvassing options that may obviate the need for further proceedings;
and
(d) where appropriate, facilitating full and open communication between
the parties.
(2) The Public Advocate may mediate a matter to which this Part applies on
application by an eligible person in relation to the matter.
(3) An application under this section—
(a) must be made in a manner and form determined by the Public Advocate;
and
(b) must be accompanied by such information as the Public Advocate may
reasonably require; and
(c) must be accompanied by the prescribed fee.
(4) Before
undertaking a mediation, the Public Advocate may, if he or she thinks it
appropriate to do so, require an applicant for mediation who is not a medical
practitioner to first obtain a written report from an independent medical
practitioner (made after examining the relevant person) setting
out—
(a) the potential advantages and disadvantages of—
(i) the medical treatment that a medical practitioner proposes to
administer to the relevant person; and
(ii) any medical treatment that the eligible person, or some other person,
has requested be administered to the relevant person; and
Note—
This includes where the medical treatment comprises the withdrawal or
withholding of medical treatment—see section 4A.
(b) whether, in the independent medical practitioner's opinion, the
requested treatment is in the best interest of the relevant person's health and
well-being; and
(c) any other information required by the regulations for the purposes of
this subsection.
(5) The Public Advocate may bring a mediation to an end at any
time—
(a) if, in the opinion of the Public Advocate, it is more appropriate that
the matter be dealt with by the Guardianship Board; or
(b) at the request of a party to the mediation.
(6) Evidence of anything said or done in the course of a mediation is not
admissible in subsequent proceedings except by consent of all parties to the
proceedings.
(7) Without limiting any other ways in which the Public Advocate may
inform himself or herself for the purposes of a mediation, the Public Advocate
may seek advice from such persons as the Public Advocate thinks fit in relation
to protecting the interests of a child who is a party to, or is otherwise
affected by, the matter the subject of the mediation.
(8) The Public Advocate has, for the purposes of this section, the same
privileges and immunities as a member of the Guardianship Board under the Guardianship
and Administration Act 1993.
(9) Subject to this Act, the Public Advocate may conduct a mediation in
such manner as he or she thinks fit.
(10) The regulations may make further provisions in relation to mediations
under this section.
18D—Public Advocate may refer matter to
Guardianship Board
(1) If the Public Advocate ends a mediation under
section 18C on the
grounds that it is more appropriate that the matter be dealt with by the
Guardianship Board, the Public Advocate may refer the matter to the Guardianship
Board.
(2) The regulations may make further provision in respect of referrals
under this section.
Division 3—Resolution of disputes by
Guardianship Board
Note—
Certain persons who are dissatisfied with a decision, direction or order of
the Guardianship Board in proceedings under this Division may, with the
permission of the Guardianship Board or the Administrative and Disciplinary
Division of the District Court, appeal to that court against the decision,
direction or order—see section 67 of the Guardianship
and Administration Act 1993.
18E—Resolution of disputes by Guardianship
Board
(1) An eligible person in relation to a matter to which this Part applies
may apply to the Guardianship Board for—
(a) a review of a matter mediated by the Public Advocate under
section 18C;
or
(b) a declaration or direction in relation to the matter (including, to
avoid doubt, a matter contemplated by
section 18C).
(2) An application under this section—
(a) must be made in a manner and form determined by the Guardianship
Board; and
(b) must be accompanied by such information as the Guardianship Board may
reasonably require; and
(c) must be accompanied by the prescribed fee.
(3) The Guardianship Board may refuse to hear an application under this
section if the Guardianship Board is of the opinion—
(a) that the matter to which the application relates lacks substance, is
unnecessary or unjustifiable, or is frivolous, vexatious or not made in good
faith; or
(b) that to conduct a review would be an abuse of the processes under this
Part; or
(c) that the matter should be determined by way of legal
proceedings.
(4) The Guardianship Board may, on determining an application under this
section—
(a) in the case of a review of a matter mediated by the Public Advocate
under
section 18C—confirm,
cancel or reverse a decision that is the subject of the review; and
(b) in any case—
(i) make any declarations that the Guardianship Board thinks necessary or
desirable in the circumstances of the case; and
(ii) give any directions that the Guardianship Board thinks necessary or
desirable in the circumstances of the case (including a direction that the
administration of particular medical treatment to a person be withdrawn or
withheld); and
(iii) give any advice that the Guardianship Board considers necessary or
desirable in the circumstances of the case.
(5) The Guardianship Board may vary or revoke a declaration or direction
under this section.
(6) The person to whom the medical treatment is to be provided or not
provided (as the case requires) is (if he or she is not the applicant) a party
to the proceedings.
(7) Sections 15 and 15A of the Guardianship
and Administration Act 1993 do not apply to, or in relation to,
proceedings under this section.
(8) Without limiting any other ways in which the Guardianship Board may
inform itself for the purposes of this section, the Guardianship Board may seek
advice from such persons or bodies as the Guardianship Board thinks fit in
relation to protecting the interests of a child who is a party to, or is
otherwise affected by, an application.
(9) The regulations may make further provisions in relation to proceedings
under this section.
(10) Subject to this Act and the Guardianship
and Administration Act 1993, the Guardianship Board may conduct a
review under this section in such manner as it thinks fit.
Note—
Section 14 of the Guardianship
and Administration Act 1993 sets out the powers and procedures of
the Guardianship Board in respect of proceedings before the Guardianship
Board.
18F—Guardianship Board may refer matter to Public
Advocate
(1) If the Guardianship Board is of the opinion that it is more
appropriate that a particular application under
section 18E be dealt
with by the Public Advocate, the Guardianship Board may refer the matter to the
Public Advocate.
(2) The regulations may make further provision in respect of referrals
under this section.
18G—Contravention of direction
(1) Subject to this
Act, a person who fails to comply with a direction of the Guardianship Board
under this Division is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 6 months.
(2) It is a defence to a charge of an offence against
subsection (1)
if the defendant proves that he or she did not know, and could not reasonably
have been expected to know, that his or her conduct amounted to a failure to
comply with the relevant direction.
Division 4—Miscellaneous
18H—Question of law may be referred to Supreme
Court
The Public Advocate or the Guardianship Board may refer any question of law
for the opinion of the Supreme Court.
18I—Operation of orders pending
appeal
(1) Subject to
subsection (2),
a decision, direction or order of the Guardianship Board or a court against
which a right of appeal lies (whether under this Act or any other Act or law)
continues to operate despite that right of appeal or the institution of an
appeal.
(2) The operation
of a decision, direction or order against which an appeal has been instituted
may, on the application of the appellant, be suspended by the body that made it
or by the appellate court pending determination of the appeal, if the body or
court thinks special reason exists for doing so.
Section 19—delete the section and substitute:
19—Regulations
(1) The Governor may
make such regulations as are contemplated by, or necessary or expedient for the
purposes of, this Act.
(2) Without limiting
subsection (1), the
regulations may make provisions of a saving or transitional nature.
(3) The regulations may—
(a) be of general application or vary in their application according to
prescribed factors;
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister or a
specified person or body.
Part 3—Amendment of Coroners
Act 2003
14—Amendment
of section 3—Interpretation
Section 3(1), definition of reportable death,
(g)—after "
Guardianship
and Administration Act 1993" insert:
or Part 2A of the Consent
to Medical Treatment and Palliative Care Act 1995
Part 4—Amendment of Fair Work
Act 1994
15—Amendment
of section 76—Negotiation of enterprise agreement
Section 76(5a)(a)(iii)—delete subparagraph (iii) and
substitute:
(iii) a substitute decision-maker under an advance care directive (within
the meaning of the Advance
Care Directives Act 2012) given by the employee (being a substitute
decision-maker who is authorised to make decisions relating to the employee's
employment); or
Part 5—Amendment of Guardianship and
Administration Act 1993
16—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of
administrator insert:
advance care directive means an advance care directive given
under the
Advance
Care Directives Act 2012 that is in force;
(2) Section 3(1), definition of authorised
witness—delete the definition
(3) Section 3(1), definition of enduring
guardian—delete the definition
(4) Section 3(1), definition of guardian appointed under this
Act—delete the definition
(5) Section 3(1), definition of medical
agent—delete the definition
(6) Section 3(1), definition of medical
practitioner—delete the definition and substitute:
medical practitioner means a person registered under the
Health Practitioner Regulation National Law to practise in the medical
profession (other than as a student);
(7) Section 3(1), definition of medical
treatment—delete the definition and substitute:
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—
(a) the prescription or supply of drugs; and
(b) the examination and assessment of a patient;
(8) Section 3(1)—after the definition of mentally
incapacitated insert:
person responsible for another person, means—
(a) any of the following persons if he or she has a close and continuing
relationship with the other person:
(i) a prescribed relative of the other person;
(ii) a parent of the other person (including an adoptive parent and a
step-parent);
(iii) if the other person is under 18 years of age—an adult who
acts in loco parentis in relation to the other person;
(iv) an adult friend of the other person; or
(b) an adult who is charged with overseeing the ongoing day-to-day
supervision, care and well-being of the other person;
Example—
The director of nursing in an aged care facility would be such a
person.
(9) Section 3(1)—after the definition of person to whom
the proceedings relate insert:
prescribed relative—the following persons are
prescribed relatives of a person:
(a) a person who is legally married to the person;
(b) an adult domestic partner of the person (within the meaning of the
Family
Relationships Act 1975 and whether declared as such under that Act
or not);
(c) an adult related to the person by blood or marriage;
(d) an adult related to the person by reason of adoption;
(e) an adult of Aboriginal or Torres Strait Islander descent who is
related to the person according to Aboriginal kinship rules or Torres Strait
Islander kinship rules (as the case requires).
(10) Section 3(1), definition of relative—delete
the definition
(11) Section 3(1)—after the definition of
sterilisation insert:
substitute decision-maker, in respect of a person, means a
substitute decision-maker appointed under an advance care directive given by the
person under the Advance
Care Directives Act 2012 that is in force;
(12) Section 3—after subsection (2) insert:
(3) For the purposes of this Act, the Board is entitled to presume that a
person who purports to be in a close and continuing relationship with another
person is in such a relationship unless the Board knew, or ought reasonably to
have known, that the 2 persons were not in such a relationship.
(4) For the purposes of this Act, the Board is entitled to presume that a
person who purports to have a particular relationship to another person (whether
the relationship is based on affinity or consanguinity or otherwise) does have
such a relationship unless the Board knew, or ought reasonably to have known,
that the person did not have such a relationship to the other person.
(5) If a man and woman are married according to Aboriginal tradition, they
will be regarded as legally married for the purposes of this Act.
17—Amendment
of section 5—Principles to be observed
Section 5—delete "appointed under this Act"
Part 3—delete the Part
19—Amendment
of section 28—Investigations by Public Advocate
Section 28(1)—delete ''directs after an application has been
lodged with the Board for an order under this Part, investigate the affairs of
the person the subject of the application" and substitute:
directs for the purposes of this Part, investigate the affairs of a
person—
(a) who is the subject of application for an order under this Part;
or
(b) who has had an advance care directive revoked by the Board under the
Advance
Care Directives Act 2012.
20—Amendment
of section 29—Guardianship orders
(1) Section 29(1)—delete ", on an application made under this
Division" and substitute:
(whether on an application made under this Division or on its own motion
after revoking an advance care directive under the Advance
Care Directives Act 2012)
(2) Section 29(1)(b)—delete paragraph (b)
(3) Section 29—after subsection (6) insert:
(7) A condition or limitation imposed under subsection (6) should, as
far as is reasonably practicable, be consistent with the terms of any advance
care directive that the protected person has given.
After section 31 insert:
31A—Guardian to give effect to advance care
directive
(1) A person
appointed as a guardian under this Part—
(a) must take reasonable steps to ascertain whether the protected person
has given an advance care directive; and
(b) if the protected person has given an advance care
directive—must, as far as may be reasonably practicable—
(i) give effect to any provision in the advance care directive;
and
(ii) seek to avoid any outcome or intervention that the protected person
would wish to be avoided (whether such wish is expressed or implied in the
advance care directive).
(2) For the purposes of
subsection (1),
a reference to an advance care directive includes an advance care directive that
was revoked by the Board under the Advance
Care Directives Act 2012 in proceedings that gave rise to the
making of an order under this Division.
(3) For the purposes of this section, a reference to a provision of an
advance care directive includes a reference to a condition, instruction or
direction of an advance care directive.
22—Amendment
of section 32—Special powers to place and detain certain
persons
(1) Section 32—before subsection (1) insert:
(a1) This section applies to the following persons:
(a) a protected person;
(b) a person who has given an advance care directive under which at least
1 substitute decision-maker has been appointed.
(2) Section 32(1)—delete "the guardian of a protected person"
and substitute:
an appropriate authority in respect of a person to whom this section
applies
(3) Section 32(1)(a)—delete "protected"
(4) Section 32(1)(a)(ii)—delete "guardian" and
substitute:
appropriate authority
(5) Section 32(1)(b)—delete "protected"
(6) Section 32(1)(c)—delete "protected"
(7) Section 32(2)—delete "protected"
(8) Section 32(3)—delete "protected"
(9) Section 32(4)—delete "protected" wherever
occurring
(10) Section 32(4)(a)—delete "guardian" wherever occurring and
substitute in each case:
appropriate authority
(11) Section 32—after subsection (7) insert:
(8) In this section—
appropriate authority, in respect of a person,
means—
(a) if the person is a protected person—the guardian of the person;
or
(b) if the person is a person who has given an advance care directive
under which a substitute decision-maker has been appointed—each substitute
decision-maker appointed under the advance care directive.
23—Amendment
of section 33—Applications under this Division
(1) Section 33(1)(c)—delete "relative, guardian or medical
agent of" and substitute:
guardian of, or substitute decision-maker for,
(2) Section 33(1)—after paragraph (c) insert:
(ca) a person responsible for the person; or
24—Amendment
of section 37—Applications under this Division
(1) Section 37(1)(c)—delete "relative, guardian appointed under
this Act or medical agent of" and substitute:
guardian of, or substitute decision-maker for,
(2) Section 37(1)—after paragraph (c) insert:
(ca) a person responsible for the person; or
25—Amendment
of heading to Part 5
Heading to Part 5—delete "medical and dental treatment" and
substitute:
prescribed medical treatment
26—Repeal
of sections 58, 59 and 60
Sections 58, 59 and 60—delete the sections
27—Amendment
of section 61—Prescribed treatment not to be carried out without Board's
consent
(1) Section 61(1)—delete "to whom this Part applies" and
substitute:
who, by reason of his or her mental incapacity, is incapable of giving
effective consent (whether or not he or she is a protected person)
(2) Section 61(5)—delete "in relation to a person to whom this
Part applies"
Section 79—delete the section
Schedule—delete the Schedule
Part 6—Amendment of Health and Community
Services Complaints Act 2004
30—Amendment
of section 24—Who may complain
(1) Section 24(d)—delete "or an enduring guardian of the health
or community service user"
(2) Section 24—after paragraph (d) insert:
or
(da) a substitute decision-maker appointed under an advance care directive
(within the meaning of the Advance
Care Directives Act 2012) given by the health or community service
user; or
Part 7—Amendment of Wills
Act 1936
31—Amendment
of section 7—Will of person lacking testamentary capacity pursuant to
permission of court
Section 7(7)(e)—delete "or enduring guardian"
Part 8—Transitional
provisions
32—Transitional
provisions relating to anticipatory directions under
Consent to Medical Treatment and Palliative Care
Act 1995
(1) A direction given by a person under section 7 of the Consent
to Medical Treatment and Palliative Care Act 1995 that is in force
immediately before the commencement of
clause 7 of this
Schedule will, on the commencement of that clause, be taken to be an advance
care directive given in accordance with this Act.
Note—
See also
clause 36.
(2) A provision of such
a direction of a kind contemplated by
section 6 or
12(1) of this Act
will be taken to be void and of no effect.
(3) An advance care
directive contemplated by this clause—
(a) will be taken to have been given by the person who gave the direction;
and
(b) will be taken to contain such provisions as may be necessary to give
effect to the direction (but no other provision); and
(c) will be taken to contain a provision limiting the circumstances in
which the advance care directive has effect to the circumstances contemplated by
section 7(1) of the Consent
to Medical Treatment and Palliative Care Act 1995 (as in force
immediately before the commencement of
clause 7 of this
Schedule).
Note—
Those circumstances are limited to where the person is in the terminal
phase of a terminal illness, or in a persistent vegetative state, and is
incapable of making decisions about medical treatment when the question of
administering the treatment arises.
(4) Any relevant
condition or limitation contained in the direction will be taken to apply to an
advance care directive contemplated by this section.
(5) The prescribed form by which the direction under section 7 of the
Consent
to Medical Treatment and Palliative Care Act 1995 was given will,
for all purposes, be taken to be an advance care directive form.
(6) A reference in any instrument or document to a direction under
section 7 of the Consent
to Medical Treatment and Palliative Care Act 1995 (however
described) will be taken to be a reference to the advance care directive
contemplated by this clause.
33—Transitional
provisions relating to medical agents under
Consent to Medical Treatment and Palliative Care
Act 1995
(1) A medical power of attorney appointing an agent under section 8
of the Consent
to Medical Treatment and Palliative Care Act 1995 that is in force
immediately before the commencement of
clause 7 of this
Schedule will, on the commencement of that clause, be taken to be an advance
care directive given in accordance with this Act.
Note—
See also
clause 36.
(2) A provision of such
a medical power of attorney of a kind contemplated by
section 6 or
12(1) of this Act
will be taken to be void and of no effect.
(3) An advance care
directive contemplated by this clause—
(a) will be taken to have been given by the person who gave the medical
power of attorney; and
(b) will be taken to appoint each agent appointed by the medical power of
attorney as a substitute decision-maker under the advance care directive;
and
(c) will be taken to contain such provisions as may be necessary to enable
each substitute decision-maker to make any decision he or she could have made as
the person's agent (but no other provision).
(4) Any relevant
condition or limitation contained in the medical power of attorney will be taken
to apply to an advance care directive contemplated by this section.
(5) The prescribed form by which the medical power of attorney was given
will, for all purposes, be taken to be an advance care directive form.
(6) A reference in any instrument or document to a medical power of
attorney or agent under section 8 of the Consent
to Medical Treatment and Palliative Care Act 1995 (however
described) will be taken to be a reference to the advance care directive or
substitute decision-maker contemplated by this clause (as the case
requires).
34—Transitional
provisions relating to other instruments continued under
Consent to Medical Treatment and Palliative Care
Act 1995
(1) A direction or enduring power of attorney continued in force pursuant
to Schedule 3 of the Consent
to Medical Treatment and Palliative Care Act 1995 and that is in
force immediately before the commencement of this clause will, on the
commencement of
Part 2
of this Schedule, be taken to be an advance care directive given in accordance
with this Act.
Note—
See also
clause 36.
(2) A provision of such
a direction or enduring power of attorney of a kind contemplated by
section 6 or
12(1) of this Act
will be taken to be void and of no effect.
(3) An advance care
directive contemplated by this clause—
(a) will be taken to have been given by the person who gave the direction
or enduring power of attorney (as the case requires); and
(b) in the case of an advance care directive related to a
direction—will be taken to contain such provisions as may be necessary to
give effect to the direction (but no other provision); and
(c) in the case of an advance care directive related to an enduring power
of attorney—will be taken to appoint each agent appointed by the enduring
power of attorney as a substitute decision-maker under the advance care
directive; and
(d) will be taken to contain such provisions as may be necessary to enable
each substitute decision-maker to make any decision he or she could have made as
the person's agent under the enduring power of attorney (but no other
provision).
(4) Any condition or
limitation contained in the direction or enduring power of attorney (as the case
requires) will be taken to apply to an advance care directive contemplated by
this section.
(5) Any instrument by which the direction or enduring power of attorney
was given will, for all purposes, be taken to be an advance care directive
form.
(6) A reference in any instrument or document to a direction or enduring
power of attorney to which this clause relates (however described) will be taken
to be a reference to the advance care directive contemplated by this
clause.
35—Transitional
provisions relating to enduring guardians under
Guardianship and Administration
Act 1993
(1) An instrument appointing an enduring guardian under section 25 of
the Guardianship
and Administration Act 1993 that is in force immediately before the
commencement of
clause 18 of this
Schedule will, on the commencement of that clause, be taken to be an advance
care directive given in accordance with this Act.
Note—
See also
clause 36.
(2) A provision of such
an instrument appointing an enduring guardian of a kind contemplated by
section 6 or
12(1) of this Act
will be taken to be void and of no effect.
(3) An advance care
directive contemplated by this clause—
(a) will be taken to have been given by the person who appointed the
enduring guardian; and
(b) will be taken to appoint each enduring guardian appointed by the
instrument as a substitute decision-maker under the advance care directive;
and
(c) will be taken to contain such provisions as may be necessary to enable
each substitute decision-maker to make any decision he or she could have made as
the person's enduring guardian (but no other provision).
(4) Any condition or
limitation contained in the instrument appointing the enduring guardian will be
taken to apply to an advance care directive contemplated by this
section.
(5) The instrument by which the enduring guardian was appointed will, for
all purposes, be taken to be an advance care directive form.
(6) A reference in any instrument or document to an enduring guardian
appointed under section 25 of the Guardianship
and Administration Act 1993 (however described) will be taken to be
a reference to the advance care directive contemplated by this clause.
36—Only
1 advance care directive to be created
(1) If 2 or more of
clauses 32,
33,
34 or
35 apply in respect of a
particular person, the person will, for the purposes of this or any other Act,
be taken to have given 1 advance care directive containing, or subject to,
the relevant provisions (in addition to any other applicable provisions under
this Act).
(2) In this clause—
relevant provisions means—
(a) if
clause 32 applies in
respect of the person—
clause 32(2),
(3) and
(4);
and
(b) if
clause 33 applies in
respect of the person—
clause 33(2),
(3) and
(4);
and
(c) if
clause 34 applies in
respect of the person—
clause 34(2),
(3) and
(4);
and
(d) if
clause 35 applies in
respect of the person—
clause 35(2),
(3) and
(4).
A dispute arising out of the operation of this Schedule will be taken to be
a matter to which
Part 7 of this Act
applies.