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Changes to the Advance Care Directives Regulations 2015 and the Consent to Medical Treatment and Palliative Care Regulations 2014

Recent changes to the Advance Care Directives Regulations 2015 and the Consent to Medical Treatment and Palliative Care Regulations 2014 came into effect on 28 May, 2015. Please find below a list of the changes, and a brief description of what they mean in practice.

1. Definition of health practitioner now includes staff of all licensed ambulance providers and volunteers who provide medical treatment under the Health Care Act 2008 

S3 of the Advance Care Directives Act 2013, Regulation number 4(1) of the Advance Care Directives Regulations 2014, s14 of the Consent to Medical Treatment and Palliative Care Act 1995, and Regulation number 4(1) of the Consent to Medical Treatment and Palliative Care Regulations 2014

In addition to the South Australian Ambulance Service, all licensed ambulance providers have legal protections and obligations under the Act in relation to Advance Care Directives and consent to medical treatment and health care.

2. A Substitute Decision Maker must sign and accept their appointment before the document is finalised and witnessed

S21(3) of the Advance Care Directives Act 2013, Regulation number 7(1) and 8(1) of the Advance Care Directives Regulations 2014

There was some debate about the order of accepting Substitute Decision Maker appointments and finalising an Advance Care Directive document. S18 of the Advance Care Directive Act 2013 does not permit an Advance Care Directive to be varied after it has been signed and witnessed.

Amending Regulations now make it clear that Substitute Decision Makers must sign and accept their role prior to the person and witness signing the Advance Care Directive for the appointment to take legal effect. 

The significance of Substitute Decision Makers signing and accepting the appointment prior to the formal execution of an Advance Care Directive is that when the Advance Care Directive is then signed in front of an authorised witness, the witness can satisfy him or herself that the person giving the Advance Care Directive understands the effect of giving an Advance Care Directive, including the appointment of Substitute Decision Makers. The witness can also satisfy him or herself and can certify that there has been no apparent duress or coercion with respect to the appointment(s).

To ensure witnesses understand their role and the process required to satisfy their legal obligations as a witness, the Information for Witnesses document is included in the Advance Care Directive Do-It-Yourself-Kit, and with the downloadable and fillable PDF form. Current versions of both of these documents are available for download for reference and distribution from the Advance Care Directives website

Online training for witnesses is available from:

Justices of the Peace Training Organisation 

TAFE SA: email advancecare.online@tafesa.edu.au 

3. Inclusion of Northern Territory’s Advance Personal Planning Act 2013

S33 of the Advance Care Directives Act 2013, Regulation number 12(1) and 12(2) of the Advance Care Directives Regulations 2014

The Northern Territory’s newly enacted Advance Personal Planning Act 2013 is now included in the list of declared interstate advance care directives and corresponding laws which can be legally recognised in South Australia.

Persons from the Northern Territory travelling to South Australia can have their advance personal plan recognised and acted upon if they are being cared for in South Australia.

4. Transitional provisions for recognising as Advance Care Directives incomplete Enduring Powers of Guardianship instruments which were started before 1 July, 2014

S63 of the Advance Care Directives Act 2013, Schedule 3 – Further transitional provisions of the Advance Care Directives Regulations 2014

Transitional provisions in the Advance Care Directives Act 2013 recognise Enduring Powers of Guardianship, Medical Powers of Attorney, and Anticipatory Directions in force as of 1 July, 2014 as if completed under the Advance Care Directives Act.

It was intended that ‘in force’ meant a fully completed document, which had been signed and accepted by any appointees (Substitute Decision Makers) by 1 July, 2014.

The varied regulations now provide legal recognition (as Advance Care Directives) for those Enduring Power of Guardianship documents which were created before 1 July, 2014, provided that those documents are appropriately signed and accepted by those being appointed and witnessed before 31 December, 2015.

A Fact Sheet about the new Transitional provisions for Enduring Powers of Guardianship forms is available on the Advance Care Directives website: http://www.advancecaredirectives.sa.gov.au/information-for-you/additiona..., and is attached for reference and distribution.

5. Change of business names to witness list

S15 of the Advance Care Directives Act 2013, Schedule 1 - List of suitable witnesses in the Advance Care Directives Regulations 2014

The Authorised Witnesses list has been updated in the Advance Care Directive Do-It-Yourself-Kit and in the online fact sheet (located here) to reflect several organisational name changes.

Please advise your staff and clients about the varied regulations, amend any relevant materials to ensure the information is consistent with the updated regulations, and/or publish this information in any relevant newsletters.

Please contact the Legal Services Commission on 1300 366 424 if you require any further information or have any questions.

For more information about Advance Care Directives visit the website.  

Information provided by SA Health - Health and Policy 19 August 2015

For more information, an SA Health Fact Sheet is below.