Substitute Decision-Makers

Principles of decision-making

When making a decision under an advance care directive, a substitute decision-maker must, as far as is reasonably practicable [Advance Care Directives Act 2013 (SA) s 35(1)(a)]:

The substitute decision-maker must make the decision that they reasonably believe the person who gave the advance care directive would have made in the circumstances [s 35(1)(b)] and must act in good faith and with due diligence [s 35(1)(c)].

A substitute decision-maker should not ignore professional advice or damage any of the person's relationships or friendships. The substitute decision-maker can request services and information from service providers, and has the authority to speak on behalf of the person who appointed them, to ensure that necessary services are provided.

Making decisions when there is more than one substitute decision-maker

If more than 1 substitute decision-maker is appointed under an advance care directive, then the substitute decision-makers may exercise powers and make decisions together or separately [s 22], unless the advance care directive specifically says otherwise.

An advance care directive may, for example, expressly require decisions to be made or powers to be exercised jointly by all substitute decision-makers.

Alternatively, an advance care directive may say, for example, that one substitute decision-maker can make decisions about certain matters, and another substitute decision-maker can make decisions about other matters.

Substitute decision-makers may also be appointed in the alternative such that a substitute decision-maker may only be empowered to act if the first appointed substitute decision-maker is unavailable.

Notification of decisions

If a substitute decision-maker makes a decision under the advance care directive, they must take reasonable steps to notify each other substitute decision-maker appointed under the advance care directive of the decision [s 25].

Health Practitioners

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 [s 36(1)]:

Health practitioners are exempt from complying with a binding provision of an advance care directive under s 36(1) in respect of health care where:

This exemption has been clarified by the Advance Care Directives (Review) Amendment Act 2023 (SA), with effect from 1 March 2024. Under s 36 as amended, a health practitioner may provide health care in contravention of a binding provision of an advance care directive to save the person's life following self-harm. The health practitioner is required to document the provision of health care in accordance with the requirements set out in the regulations.

Alternatively, the health practitioner may decide to comply with the person's refusal of health care in their advance care directive, provided this is otherwise consistent with the health practitioner's usual professional standards.

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When an advance care directive may not be followed

A health practitioner may refuse to comply with a provision of an advance care directive if the health practitioner believes on reasonable grounds that [s 36(2)]:

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 [s 36(3)]:

However, a health practitioner must still comply with a binding provision even if it is not consistent with any relevant professional standards or does not reflect current standards of health care in the State [s 36(4)].

Similarly, if a provision of an advance care directive relates to the withdrawal or withholding of health care, including the withdrawal or withholding of life-sustaining measures, then a health practitioner cannot refuse to comply with the provision on the basis that it is not consistent with any relevant professional standards or does not reflect current standards of health care in the State [s 36(4)].

A health practitioner may refuse to comply with a provision of an advance care directive on conscientious grounds [s 37]. In this case, care of the person should be given to another health practitioner.