Draft SA Advance Care Directives (Review) Amendment Bill 2021 Released

Friday 30 July 2021 @ 2.07 p.m. | Legal Research | Torts, Damages & Civil Liability | Trade & Commerce

The [Draft] Advance Care Directives (Review) Amendment Bill 2021 (SA) ("the Draft Bill") was released for public consultation and feedback on 25 June 2021 and is open for submissions until 5 pm on 3 August 2021. The Draft Bill proposes amendments to the Advance Care Directives Act 2013 (SA) ("the Act").

The Review of the Advance Care Directives Act 2013

The Draft Bill proposes the implementation of a number of recommendations put forward by a 2019 review of the Act conducted by Professor Wendy Lacey ("the Review").

The Act contains provisions regarding Advance Care Directives ("ACD"s). An ACD is described in the Explanatory Discussion Paper as:

"a legal document that empowers South Australians to record their values and wishes and make clear legal arrangements for future health care, end of life, preferred living arrangements and other personal matters."

The Review's terms of reference included:

  • to assess the extent to which the objects of the Act were being achieved;
  • to recommend changes to the legislation, administration, policy or practice which would improve the extent to which the objects are achieved with particular reference to certain topics such as:
    • general understanding of ACDs in the community;
    • understanding of ACDs amongst the clinical community including access to and adherence of signed ACDs;
    • the practicality of the process to complete an ACD; and
    • the different roles the Act assigns to the Public Advocate and the extent to which those roles are reconcilable;
  • to consider whether further inquiries should be made (outside the scope of this review) into how the following issues may enhance future care and arrangements, including:
    • a process by which adults who do not have decision making capacity can give directions, to the extent of their capacity, about their future health care, residential and accommodation arrangements and personal affairs;
    • increase organ donation consents and compliance with those consents; and
    • the interaction of ACDs with other related documents such as Medical Powers of Attorney and Legal Powers of Attorney.

The final report of the Review was tabled in SA Parliament on 1 August 2019 and made 29 recommendations.

The SA Government tabled its response to the Review in Parliament on 23 July 2020 and supported in full or in principle 22 of the recommendations made. It also noted that further consultation would be required to inform its response to Recommendation 29.

The Draft Bill proposes amendments to the Act that would implement the recommendations supported by the Government.

Key Changes Proposed by the Draft Bill

The Explanatory Discussion Paper summarises that the Draft Bill seeks 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 ACD comprising refusal of health care attempts suicide or self-harm;
  • impose clearer requirements on interpreters;
  • make it clear there is no limit on the number of substitute decision-makers that can be appointed;
  • include provisions for listing substitute decision-makers in order of precedence; and
  • strengthen how suspected abuse of adults who are vulnerable to abuse is identified during the resolution of disputes by the Public Advocate is reported and addressed."

Information sought from the Feedback

The consultation seeks feedback on the Draft Bill and additional issues such as:

  • other ways that people with limited or impaired decision-making capacity should be able record their wishes for future health care;
  • the possibility of introducing of digital signatures for people signing ACDs; and
  • reviewing the groups of people who can witness an ACD.

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[Draft] Advance Care Directives (Review) Amendment Bill 2021 (SA) and additional explanatory materials available from TimeBase's LawOne service.

Have your say on Advance Care Directives (Review) Amendment Bill 2021 (SA Government, 25 June 2021)

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