Advance care directives in South Australia 

This article states the law of South Australia. An advance care directive under the Advance Care Directives Act 2013 (SA) is the instrument by which a person, while competent, records what is to happen to their health care later and may appoint a substitute decision-maker¹. The prior question in almost every problem is not whether a directive exists but whether the provision relied on is a binding provision, because most of what a directive contains does not bind anyone.

When capacity is impaired

The directive operates when the person has impaired decision-making capacity, and s 7(1)(a) states a four-limb functional test. A person has impaired decision-making capacity in respect of a particular decision if they are not capable of understanding any information that may be relevant to the decision, including information about the consequences of making it; or of retaining that information; or of using it in the course of making the decision; or of communicating their decision in any manner.

Capacity is therefore decision-specific rather than global. Section 7(1)(b) adds that a person also has impaired capacity if they have satisfied any requirement set out in their own directive specifying when they are to be considered to have impaired capacity.

Section 7(2) then supplies four safeguards that are as important as the test:

• a person is not incapable of understanding merely because they cannot understand matters of a technical or trivial nature;
• a person is not incapable of retaining information merely because they can retain it only for a limited time;
• a person may fluctuate between impaired and full decision-making capacity; and
• capacity is not impaired merely because a decision results, or may result, in an adverse outcome for the person.

The last of these is the anti-paternalism provision and the one most often needed in argument. An unwise decision is not evidence of incapacity.

What a directive cannot do

Section 12(1) prohibits certain provisions. A directive cannot make a provision that is unlawful or would require an unlawful act; nor one that would, if given effect, cause a health practitioner or other person to contravene a professional standard or code of conduct applying to them; nor a provision comprising a refusal of mandatory medical treatment; nor anything declared by the regulations to be within the section.

Section 12(2) narrows the professional standards limb usefully: it does not include a standard or code prepared by or for a hospital, clinic, hospice, nursing home or other place at which health care is provided that regulates the provision of services there. A facility's own policy therefore cannot invalidate a directive.

The consequence of contravention is stated in s 12(3): the provision is void and of no effect to the extent of the contravention. The directive is not destroyed; the offending provision is severed.

Two further limits. Section 12(1a) provides that a directive cannot constitute a request for voluntary assisted dying, though nothing prevents a person expressing preferences or wishes about it. Section 13 provides that a directive cannot give a power of attorney — financial authority must come from a different instrument.

Binding and non-binding provisions

This is the heart of the Act. Section 19(1) provides that a provision comprising a refusal of particular health care, whether express or implied, is a binding provision. Section 19(3) then provides that all other provisions are non-binding provisions.

The asymmetry is deliberate and decides most problems. A refusal binds. A direction to provide particular treatment, a statement of values, an expression of wishes about where the person wishes to live or how they wish to be cared for — none of these binds, however clearly expressed. A student who treats a positive instruction as binding has misread s 19.

Two qualifications. Section 19(2) provides that where a binding provision is expressed to apply, or to be binding, only in specified circumstances, it binds only in those circumstances. And s 19(1a) makes one refusal expressly non-binding despite everything else: a provision purporting to refuse health care arising out of, or directly related to, the attempted suicide or self-harm of the person who gave the directive.

Subject to the Act and to any other Act or law, a directive has effect according to its terms (s 20).

The substitute decision-maker's preconditions

A substitute decision-maker appointed by a directive does not simply step into the person's shoes. Section 24(1) permits a decision under a directive only if three things are satisfied: the substitute decision-maker produces the directive at the request of a health practitioner who is to provide health care in accordance with the decision; the substitute decision-maker is not prevented under that or any other Act or law from acting under it; and the substitute decision-maker is competent at the time the decision is made.

Section 24(2) treats the production requirement as satisfied by a certified true copy, by making a copy available under a regulated electronic scheme, or by the health practitioner accessing an electronic copy in accordance with the regulations.

Applying this in a problem question

1. Identify the specific decision in issue, then apply s 7(1)(a) to that decision rather than asking whether the person is generally capable.
2. Run the s 7(2) safeguards, and use s 7(2)(d) where the argument for incapacity rests on the decision being unwise.
3. Classify the provision relied on: is it a refusal of health care, and therefore binding under s 19(1), or something else and therefore non-binding under s 19(3)?
4. Check s 19(1a) where the refusal relates to attempted suicide or self-harm.
5. Test the provision against s 12, and if it offends, sever it under s 12(3) rather than treating the whole directive as void.
6. For any decision by a substitute decision-maker, work through the three preconditions in s 24(1), including their own competence.

Self-check

• Have I applied the capacity test to the particular decision rather than generally?
• Have I classified the provision as binding or non-binding before asking what follows?
• Have I remembered that a positive direction to treat does not bind?
• Have I named this as South Australian law and avoided reading it across a border?