Advance Care Directives Regulations 2014 (SA)

South Australia Advance Care Directives Regulations 2014 under the Advance Care Directives Act 2013

Contents 1 Short title 3 Interpretation 4 Health practitioners 4A Electronic copies of advance care directives 5 Giving advance care directives 6 Provisions that cannot be included in advance care directives 7 Witnessing advance care directives 8 Appointment of substitute decision-makers 9 Copies of advance care directives 10 Revoking advance care directives 11 Advising Tribunal of wish to revoke advance care directive 12 Interstate advance care directives and corresponding laws 12A Exemption from requirement to give effect to advance care directives where suicide attempt or self‑harm 13 Application of Part 7 of Act 14 Resolution of disputes by Public Advocate 15 Referral of matters to Tribunal or Public Advocate 16 Fees Schedule 1—List of suitable witnesses Schedule 2—Fees Schedule 3—Further transitional provisions 1 Further transitional provisions relating to appointment of enduring guardians Legislative history

1—Short title These regulations may be cited as the Advance Care Directives Regulations 2014. 3—Interpretation In these regulations— Act means the Advance Care Directives Act 2013. 4—Health practitioners (1) For the purposes of the definition of health practitioner in section 3(1) of the Act, the following professions and practices are declared to be included in the ambit of that definition: (a) the provision of an ambulance service and medical treatment by a member of the staff of SAAS or other person or body authorised to provide ambulance services under the Health Care Act 2008; (b) paramedic. (2) In this regulation— ambulance service, medical treatment and SAAS have the same meanings as in the Health Care Act 2008. 4A—Electronic copies of advance care directives For the purposes of section 5A of the Act, electronic copies of an advance care directive of the following kinds are prescribed: (a) an electronic copy entered on the My Health Record system; (b) an electronic copy entered on the Sunrise EMR system; (c) an electronic copy entered on an electronic record system approved by the Chief Executive, in each case being an electronic copy that was, prior to being entered on the relevant system, certified as a true copy of a particular advance care directive by a person, or a person of a class, included on the list of suitable witnesses set out in Schedule 1. 5—Giving advance care directives (1) For the purposes of section 11(2)(c) of the Act, a person giving an advance care directive must certify, by completing and signing the relevant part of the advance care directive form, that he or she was given the advance care directive information statement referred to in regulation 7(2) and understood the information contained in the statement. (2) Without limiting the ways in which a certification may be made, or a part of an advance care directive completed or signed, under subregulation (1), a person giving an advance care directive may do so by electronic means. 6—Provisions that cannot be included in advance care directives For the purposes of the definition of mandatory medical treatment in section 12(4) of the Act, medical treatment of the following kinds are prescribed: (a) medical treatment ordered by a court; (b) medical treatment of a kind contemplated by section 56 or 57 of the Mental Health Act 2009; (c) medical treatment that is the subject of a requirement or direction (however described) of the Chief Public Health Officer under the South Australian Public Health Act 2011. 7—Witnessing advance care directives (1) For the purposes of section 15(1)(a) of the Act, an advance care directive will only be taken to be witnessed in accordance with these regulations if— (a) in the case where 1 or more substitute decision‑makers are appointed under the advance care directive—each substitute decision‑maker has complied with regulation 8(1) before the advance care directive is witnessed; and (b) in any case—the person giving the advance care directive signs the advance care directive form in the presence of the suitable witness who witnesses the advance care directive. (2) For the purposes of section 15(1)(b)(i) of the Act, a suitable witness must give to the person giving the advance care directive a copy of the advance care directive information statement (and compliance with this requirement will, for the purposes of section 15(1)(b)(ii) of the Act, be taken to constitute an explanation of the legal effects of giving an advance care directive of the kind proposed). (3) For the purposes of the definition of suitable witness in section 15(4) of the Act, a suitable witness must satisfy the following requirements: (a) the suitable witness must be a competent adult; (b) the suitable witness must be a person, or a person of a class, included on the list of suitable witnesses set out in Schedule 1. (4) To avoid doubt, nothing in subregulation (3) affects an advance care directive witnessed by a suitable witness who was competent at the time he or she witnessed the advance care directive, but who later lost competency. (5) In this regulation— advance care directive information statement means the advance care directive information statement determined by the Minister from time to time for the purposes of this regulation and published in the Gazette. 8—Appointment of substitute decision-makers (1) For the purposes of section 21(3) of the Act, it is a requirement that the substitute decision‑maker must certify, by completing and signing the relevant part of the advance care directive form before the advance care directive is witnessed, that he or she— (a) accepts the appointment as substitute decision‑maker; and (b) has read and understands the guidelines for substitute decision‑makers. (1a) Without limiting the ways in which a certification may be made, or a part of an advance care directive completed or signed, under subregulation (1), a substitute decision‑maker may do so by electronic means. (2) In this regulation— guidelines for substitute decision-makers means the guidelines determined by the Minister from time to time for the purposes of this regulation and published in the Gazette. 9—Copies of advance care directives (1) For the purposes of section 24(2)(a) of the Act, a document may be certified as a true copy of a particular advance care directive by a person, or a person of a class, included on the list of suitable witnesses set out in Schedule 1 signing and certifying the document as a true copy of the advance care directive. (2) For the purposes of section 24(2)(b) of the Act, a scheme determined by the Minister from time to time in respect of making copies of advance care directives available electronically is prescribed. (3) For the purposes of section 24(2)(c) of the Act, it is a requirement that the health practitioner accesses the electronic copy of the advance care directive on— (a) the My Health Record system; or (b) the Sunrise EMR system; or (c) an electronic record system approved by the Chief Executive. 10—Revoking advance care directives For the purposes of section 29(2) of the Act, a person who has given an advance care directive may revoke the advance care directive— (a) by giving another advance care directive; or (b) by giving, or causing to be given, a written indication that he or she has revoked the advance care directive. 11—Advising Tribunal of wish to revoke advance care directive For the purposes of section 31(1) of the Act, a person must advise the Tribunal of a wish to revoke an advance care directive in such manner and form as is determined from time to time by the Tribunal. 12—Interstate advance care directives and corresponding laws (1) For the purposes of section 33(1) of the Act, instruments of the following classes are declared to be interstate advance care directives: (a) an enduring power of attorney under the Powers of Attorney Act 2006 of the Australian Capital Territory that is in force; (b) a health direction under the Medical Treatment (Health Directions) Act 2006 of the Australian Capital Territory that is in force; (c) an instrument appointing an enduring guardian under the Guardianship Act 1987 of New South Wales that is in force; (d) an advance personal plan under the Advance Personal Planning Act 2013 of the Northern Territory that is in force; (e) an enduring power of attorney under the Powers of Attorney Act 1998 of Queensland that is in force; (f) an advance health directive under the Powers of Attorney Act 1998 of Queensland that is in force; (g) an instrument appointing an enduring guardian under the Guardianship and Administration Act 1995 of Tasmania that is in force; (ga) an advance care directive instrument under the Guardianship and Administration Act 1995 of Tasmania that is in force; (h) an instrument appointing an enduring guardian under the Guardianship and Administration Act 1986 of Victoria that is in force; (i) a refusal of treatment certificate under the Medical Treatment Act 1988 (repealed) of Victoria that is in force; (j) an enduring power of attorney (medical treatment) under the Medical Treatment Act 1988 (repealed) of Victoria that is in force; (ja) an enduring power of attorney under the Powers of Attorney Act 2014 of Victoria that is in force; (jb) an advance care directive under the Medical Treatment Planning and Decisions Act 2016 of Victoria; (k) an advance health directive under the Guardianship and Administration Act 1990 of Western Australia that is in force; (l) an enduring power of guardianship under the Guardianship and Administration Act 1990 of Western Australia that is in force; (m) an instrument (however described) corresponding to an advance care directive that is binding under the common law and in force. Note— Such instruments are often referred to as a living will. (2) For the purposes of section 33(4) of the Act, the following Acts are declared to be corresponding laws: (a) the Powers of Attorney Act 2006 and the Medical Treatment (Health Directions) Act 2006 of the Australian Capital Territory; (b) the Guardianship Act 1987 of New South Wales; (c) the Advance Personal Planning Act 2013 of the Northern Territory; (d) the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000 of Queensland; (e) the Guardianship and Administration Act 1995 of Tasmania; (f) the Guardianship and Administration Act 1986, the Medical Treatment Act 1988 (repealed), the Medical Treatment Planning and Decisions Act 2016 and the Powers of Attorney Act 2014 of Victoria; (g) the Guardianship and Administration Act 1990 of Western Australia; (h) the common law. 12A—Exemption from requirement to give effect to advance care directives where suicide attempt or self‑harm (1) For the purposes of section 36(1b)(a) of the Act, the following information is required: (a) the name, address and age (if known) of the person to whom the health care was provided; (b) the date or dates on which the health care was provided to the person; (c) the location or locations at which the health care was provided to the person; (d) a description of the health care provided to the person; (e) the grounds for the health practitioner's suspicion that the person had attempted suicide or self‑harmed; (f) the grounds for the health practitioner's opinion that the provision of the health care was reasonably necessary to save the life of the person. (2) For the purposes of section 36(1b)(b) of the Act, a report must comply with the following requirements: (a) the report must be made to the Chief Executive in a manner and form determined by the Chief Executive; (b) the report must include such information, or be accompanied by such records and documents, as may be required by the Chief Executive. (3) In this regulation— Chief Executive means the Chief Executive of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Act and includes a person for the time being acting in that position. 13—Application of Part 7 of Act For the purposes of section 44 of the Act, a matter related to the residential and accommodation arrangements and personal affairs of a person who has given an advance care directive is specified. 14—Resolution of disputes by Public Advocate (1) For the purposes of section 45 of the Act, and despite section 23 of the Guardianship and Administration Act 1993, the Public Advocate may only delegate a function or power under that section relating to mediation to a person if the Public Advocate is satisfied that the person has suitable qualifications and expertise in mediation. (2) A mediator to whom the Public Advocate has delegated a function or power under section 45 of the Act has, for the purposes of that section, the same privileges and immunities as a member of the Tribunal under the South Australian Civil and Administrative Tribunal Act 2013. 15—Referral of matters to Tribunal or Public Advocate (1) If the Public Advocate decides to refer a matter to the Tribunal under section 46(1) of the Act, the following provisions apply: (a) the referral must be made within 7 business days of the Public Advocate bringing a mediation to an end or refusing to determine an application, as the case may be; (b) the Public Advocate must notify the Tribunal whether any or all parties have consented to the matter being referred to the Tribunal; (c) the Public Advocate must provide the Tribunal with written reasons for its decision to refer the matter to the Tribunal; (d) the Public Advocate must provide the Tribunal with a summary of the dispute between the parties, the contact details of the parties and all other information relevant to the matter that is in the possession of the Public Advocate when the referral is made; (e) if the matter was the subject of mediation under section 45 of the Act and the mediator was a delegate of the Public Advocate—the Public Advocate must provide the Tribunal with the name of the mediator. (2) If the Tribunal decides to refer a matter to the Public Advocate under section 49(1) of the Act, the following provisions apply: (a) the referral must be made within 7 business days of the Tribunal making the decision to refer; (b) the Tribunal must notify the Public Advocate whether any or all parties have consented to the matter being referred to the Public Advocate; (c) the Tribunal must provide the Public Advocate with written reasons for its decision to refer the matter to the Public Advocate; (d) the Tribunal must provide the Public Advocate with a summary of the dispute between the parties, the contact details of the parties and all other information relevant to the matter that is in the possession of the Tribunal when the referral is made. (3) For the purposes of section 49 of the Act, the Tribunal may not refer a matter to the Public Advocate if the matter has already been the subject of mediation under section 45 of the Act. 16—Fees The fees payable for the purposes of the Act are as prescribed in Schedule 2.