What is an Advance Care Directive?

    Advance Care Directives empower South Australians to record their values and wishes and make clear legal arrangements for their future health care.

    An Advance Care Directive allows you to write down your wishes, preferences and instructions for your future health care, end of life, living arrangements, personal matters and/or appoint Substitute Decision-Makers to make these decisions on your behalf if you are unable to do so in the future.

    An Advance Care Directive makes it easy for others to know what your health care wishes are when you are unable to make these decisions yourself.

    It replaces the existing Enduring Power of Guardianship, Medical Power of Attorney and Anticipatory Direction with a single, Advance Care Directive Form (however, those existing documents remain valid).

    The rules that govern Advanced Care Directives are written in law, in the Advance Care Directives Act 2013.

    Why is there a public consultation?

    SA Health is committed to progressing law reform that will better support all South Australians in planning ahead for their future healthcare and lifestyle arrangements.

    The Advance Care Directives Act 2013 was reviewed in 2019, and a number of changes were recommended to improve Advance Care Directives.

    We are in the process of amending this Act, through the Advance Care Directives (Review) Amendment Bill 2021, and we want to hear what you think.

    By consulting on the proposed changes to the Act, we are empowering the South Australian community to provide their views on these important changes and to ensure Advance Care Directives are upheld in health and other care settings.

    What are the proposed changes?

    You can have your say about each of the proposed changes in the Bill, which aims to amend the Act to:

    • make copies of Advance Care Directives available to health care professionals electronically;
    • make it clearer that other Acts and laws still apply;
    • clarify what should happen when a person with an Advance Care Directive comprising refusal of health care attempts suicide or self-harm;
    • make it clear that there is no limit on the number of substitute decision-makers that can be appointed and provisions for listing them in order of precedence
    • impose clearer requirements on interpreters; and
    • strengthen how adults who are vulnerable to abuse are protected by the Public Advocate during the resolution of disputes.

    You can also have your say about other proposed changes to Advance Care Directives, including:

    • how people with limited or impaired decision-making capacity can record their wishes for future health care;
    • whether digital or electronic signatures should be permitted; and 
    • limiting the groups of people who can witness an Advance Care Directive.

    Will this Amendment Bill impact any current Advance Care Directives?

    While changes are being made to the Act, existing Advance Care Directives remain valid, as does older documentation such as Enduring Powers of Guardianship, Medical Powers of Attorney and Anticipatory Directions.

    Will there be any changes to Advance Care Directives if the Voluntary Assisted Dying Bill passes Parliament?

    The Voluntary Assisted Dying Bill recently passed both houses of Parliament. Once the new Act is proclaimed, amendments will automatically apply to the Advance Care Directive Act 2013 (ACD Act). These amendments include:

    1) New section 7A (to be inserted by Schedule 1. clause 2 of the Voluntary Assisted Dying Act 2020 (VAD Act)) provides that the ACD Act does not apply in relation to medical treatment etc. that occurs as part of the Voluntary Assisted Dying process under the VAD Act.

    2) New section 12(1a) (to be inserted by Schedule 1, clause 3 of the VAD Act) provides that an Advance Care Directive cannot legally constitute a request for Voluntary Assisted Dying. In other words, a person cannot trigger the Voluntary Assisted Dying provisions and lawfully access Voluntary Assisted Dying by making a request for it in their Advance Care Directive.

    3) New section 23(5) (to be inserted by Schedule 1, clause 4 of the VAD Act) provides that an Advance Care Directive does not authorise a Substitute Decision-Maker (SDM) to make a decision, or to otherwise act in a manner, that is inconsistent with a request for Voluntary Assisted Dying made by the person who gave the Advance Care Directive. In other words, the Advance Care Directive cannot be used, and the SDM cannot prevent a request for Voluntary Assisted Dying made under the VAD Act by using their powers under the ACD Act.

    In the case of a provision of an Advance Care Directive that is inconsistent with point 2 above, the provision or decision will be void and of no effect (per Section 12(3) of the ACD Act).

    In the case of a decision of a SDM that is inconsistent with point 3 above, the SDM will not have power to make a decision inconsistent with a request for Voluntary Assisted Dying.

    The VAD Act will not require any changes to the Advance Care Directive Form, however the Government may include information relating to Voluntary Assisted Dying in the DIY Kit/Guide to make people’s rights clear.

    Can I specify in my Advance Care Directive that I want access to Voluntary Assisted Dying?

    You are welcome to indicate your preferences/wishes in relation to Voluntary Assisted Dying in your Advance Care Directive, however it is important to note these preferences and wishes will render no legal effect in accordance with the Advance Care Directives Act 2013 and will not legally constitute a request for Voluntary Assisted Dying.  In order to access Voluntary Assisted Dying, you will need to meet the requirements in accordance with the Voluntary Assisted Dying Act 2020.

    Will you be reviewing the Advance Care Directives Form and DIY Kit?

    Yes. The changes proposed in the draft Bill will automatically require updates to be made to the form and DIY kit if the Bill is passed in Parliament. We are also working to improve the Advance Care Directive form and DIY kit to make it easier for you to complete an Advance Care Directive so that others know your wishes when you are unable to express them yourself.

    How can I submit my feedback?

    You can join the conversation by providing your comments and feedback via:

    Health Services Programs
    PO Box 287 Rundle Mall
    ADELAIDE 5000 SA

    How will my feedback be used?

    Your feedback will be reviewed and considered during the analysis phase following the consultation period. It will be considered in determining what amendments are legislated under the Advance Care Directive Act 2013.

    When do I have to submit my feedback by?

    Submit your feedback by close of business 5pm, Tuesday 3 August 2021.

    How can I register for the consultation webinar?

    We will be running two webinar consultation sessions via Microsoft Teams in the coming weeks. Please keep an eye out on our YourSAy page for dates and times.

    To register your interest, please email us at Health.AdvanceCarePlanning@sa.gov.au

    We will respond to your email with the Microsoft Teams meeting link.

    How can I find out the outcome of this process and keep up to date with any progress?

    Keep an eye out on our dedicated YourSAy webpage as updates will be provided there.

    Where can I find more information about Advance Care Directives?

    To find out more or to download the free Advance Care Directive Kit and Form, visit www.advancecaredirectives.sa.gov.au or the SA Health website.

    Who can I contact if I have any questions?

    If you have any questions or queries, please email Health.AdvanceCarePlanning@sa.gov.au.