Advance Care Directives Regulations 2014

The Regulations operationalise a number of recurring legal and administrative concepts drawn from the Act. Below are the principal concepts, how the Regulations define or apply them, and the functional consequences those definitions have for drafting, proof and administration.

Health practitioner , The Regulations expand the Act's definition of health practitioner to include ambulance service provision and paramedics, by expressly incorporating staff of SAAS or authorised ambulance providers and paramedics (r 4(1)). The Regulation ties these inclusions to the definitions in the Health Care Act 2008 (r 4(2)). Functionally, that brings pre-hospital emergency providers and paramedics within the Act's obligations and protections when confronting ACDs.

Electronic copy and prescribed systems , The Regulations prescribe three classes of electronic copies for the purposes of s 5A of the Act: entries on My Health Record, Sunrise EMR, and entries on electronic systems approved by the Chief Executive (r 4A). A key evidentiary requirement is that the electronic copy must have been certified as a true copy by a person or class on Schedule 1 before the entry was made (r 4A). Separately, r 9(3) requires health practitioners to access electronic copies only on those prescribed systems. The Regulations therefore create a two-part rule: (1) certification by an authorised certifier precedes entry; (2) health practitioners are required to consult the electronic copy on approved systems.

Suitable witness and information statement , The Regulations define a suitable witness by reference to Schedule 1 and require witnesses to be competent adults (r 7(3)). Schedule 1 lists broad classes, including health practitioners, legal practitioners, Justices of the Peace, police officers, social workers and teachers. The suitable witness must provide the advance care directive information statement to the maker (r 7(2)); the Minister determines and publishes that statement in the Gazette (r 7(2) note). The presence and information statement requirement makes witnessing not merely formal but also an informational gate designed to ensure makers receive standardised guidance before sealing the document.

Substitute decision‑maker acceptance and guidelines , The Regulations require that any appointed substitute decision-maker certify acceptance and that they have read and understand the Ministerial guidelines before the ACD is witnessed (r 8(1)). The guidelines are to be determined by the Minister and published in the Gazette (r 8(2)). The sequence is rigid: acceptance must precede witnessing (r 7(1)(a)). This makes appointment an active, contemporaneous act rather than a passive nomination.

Certification of true copies and electronic availability , A certified true copy may be signed and certified by a person on Schedule 1 (r 9(1)). The Minister may determine a scheme for making copies available electronically (r 9(2)). But a health practitioner may access electronic copies only via the prescribed systems (r 9(3)). The Regulations therefore standardise the evidentiary route to a usable electronic ACD.

Revocation and Tribunal notification , The Regulations list acceptable methods of revocation: a later ACD or a written indication (r 10). Advice to the Tribunal of a wish to revoke must follow the Tribunal's determined form and manner (r 11). That leaves procedural detail to Tribunal rules or practice directions.

Interstate recognition , The Regulations list instruments from other jurisdictions that the State will treat as interstate ACDs (r 12(1)) and specify corresponding laws (r 12(2)). The list includes several statutory instruments across Australian jurisdictions and also instruments binding at common law (r 12(1)(m)). This creates a specific cross-jurisdictional recognition scheme and reduces uncertainty for people moving between states.

Suicide or self‑harm exemption , The Regulations prescribe the information a practitioner must record if they rely on the exemption permitting non‑compliance with an ACD where they suspect suicide or self-harm (r 12A(1)). The practitioner must also report in the manner required by the Chief Executive and provide records as requested (r 12A(2)). These provisions set out a reporting and documentation regime attached to that limited exemption.

Public Advocate mediation and referrals , The Public Advocate may delegate mediation only to persons the Public Advocate is satisfied have suitable mediation qualifications and expertise (r 14(1)). Delegated mediators have the same privileges and immunities as Tribunal members (r 14(2)). Referrals between the Public Advocate and the Tribunal carry tight procedural requirements, including a seven business day window for the Public Advocate to refer a matter after mediation ends or an application is refused, and reciprocal duties to supply written reasons, summaries and contact details (r 15(1), (2)). The Tribunal may not refer to the Public Advocate if the matter has already been the subject of mediation under s 45 (r 15(3)).

Transitional conversion of certain enduring guardian instruments , Schedule 3 sets out transitional provisions treating certain pre-existing instruments that purported to appoint enduring guardians but lacked endorsement or witnessing as if they were ACDs until endorsement occurs or until 31 December 2015, at which point they lapse unless endorsed earlier (Sch 3 cl 2-3). The schedule specifies how such instruments operate as ACDs and which provisions are void for conflict with prescribed prohibitions (Sch 3 cl 3-6).

In short, the main concepts are certification, official information delivery, sequencing of acceptance and witnessing, prescribed electronic pathways, inter-jurisdictional recognition, a documentation-heavy exemption regime for suspected suicide or self-harm, and tight administrative processes for mediation and referral.

The Regulations create obligations and procedural effects across several distinct groups. Identify who pays, who decides, and who changes behaviour.

People giving ACDs and potential substitute decision-makers , Persons who give ACDs must certify on the prescribed form that they received and understood the advance care directive information statement (r 5(1)). If they appoint substitute decision-makers, those appointees must sign to accept and confirm they have read the Minister’s guidelines prior to witnessing (r 8(1)). The maker must sign the ACD in the witness’s presence (r 7(1)(b)). These persons bear time and procedural burdens, and must ensure sequencing and documentation are correct; otherwise the ACD risks invalidity under the Act read with these Regulations.

Suitable witnesses and certifiers , The Regulations expand and specify who may act as a suitable witness or a certifier of true copies by reference to Schedule 1 classes (r 7(3), r 9(1), Schedule 1). That list includes health practitioners, legal practitioners, commissioners for affidavits, Justices of the Peace, police officers, social workers and teachers. Those persons will be called upon to perform certification and witnessing functions. The State thus delegates aspects of evidentiary verification to a broad set of community professionals.

Health practitioners and ambulance personnel , The Regulations explicitly encompass ambulance service staff and paramedics within the Act’s health practitioner concept (r 4(1)). Health practitioners are obliged to access electronic copies of ACDs via specified systems (r 9(3)), to comply with mandatory-treatment exceptions (r 6), and to create and submit reports if relying on the suicide/self-harm exemption (r 12A). They bear the evidentiary and reporting burden when an ACD is not followed on grounds of suspected self-harm, and the technical burden of accessing and relying on prescribed electronic systems.

Public Advocate and mediator delegates , The Public Advocate remains responsible for mediation under s 45 of the Act, but the Regulations restrict delegation to persons assessed as having suitable mediation qualifications (r 14(1)). When delegating, the Public Advocate must ensure nominated mediators meet the standard, and delegated mediators receive the same privileges as Tribunal members (r 14(2)). The Public Advocate bears procedural obligations for timely and documented referrals to the Tribunal (r 15(1)).

Tribunal , The Tribunal determines the manner and form by which a person advises the Tribunal of a wish to revoke an ACD (r 11). It may refer matters to the Public Advocate but cannot do so if mediation under s 45 already occurred (r 15(3)). The Tribunal receives referrals and must be provided with written reasons and documentation by the Public Advocate (r 15(1)(c)-(d)). The Tribunal is therefore a receiving and adjudicative organ in the dispute resolution pathway specified by these Regulations.

Minister and Chief Executive , The Minister determines and publishes in the Gazette the advance care directive information statement and the guidelines for substitute decision-makers (r 7(2), r 8(2)). The Chief Executive may approve electronic record systems (r 4A(c), r 9(3)(c)) and determines the manner and form of reports required under the suicide/self-harm exemption (r 12A(2)(a)). Both office-holders therefore exercise regulatory control over core informational and technical infrastructure that practitioners and makers must rely upon.

Interstate actors , Individuals holding prescribed interstate instruments are affected because the Regulations declare specified interstate instruments to be interstate ACDs (r 12(1)) and list corresponding interstate laws (r 12(2)). Anyone moving across jurisdictions with those instruments may be able to rely on recognition under these Regulations.

Who pays and who bears costs , The explicit fees table (Schedule 2) indicates an application under s 45 carries no fee. The Regulations do not prescribe other monetary fees; however, compliance costs (time to ensure sequencing, certification, record‑keeping, reporting, system integration and training) fall on individuals, health services and the Public Advocate or Tribunal as administrative actors. Where the Regulations require use of prescribed electronic systems, costs will accrue to health services integrating with My Health Record, Sunrise EMR or to systems seeking Chief Executive approval.

Who decides , The Minister decides the content of the information statement and guidelines (r 7(2), r 8(2)), the Chief Executive approves electronic systems and determines report formats (r 4A, r 9(3), r 12A(2)), the Public Advocate decides who to delegate mediation to and must be satisfied about qualifications (r 14(1)), and the Tribunal determines form and manner for notice of revocation (r 11). Those decision-makers shape practical access and evidentiary standards for all other actors.

Behaviour changes required , Makers must follow prescribed witnessing sequences and ensure substitute decision-makers accept before witnessing; witnesses must supply the information statement and, in some contexts, certify true copies; health practitioners must access ACDs on specified electronic systems and keep prescribed reports if relying on suicide/self-harm exemptions; the Public Advocate and Tribunal must comply with tight referral timetables and documentation duties. The Regulations therefore standardise a chain of conduct aimed at making ACDs traceable, evidenced and discoverable.

The Regulations impose express duties on a set of actors and create limited rights or statutory recognitions for others. Below are the main duties with the relevant provisions, and the rights or recognitions that follow.

Duties of persons giving an ACD

• Certify on the advance care directive form that they were given the advance care directive information statement and understood it (r 5(1)). This is a form-filling and attestation duty that is part of the statutory mechanism for validating an ACD.
• Sign the advance care directive in the presence of a suitable witness (r 7(1)(b)). The witness must also provide the information statement (r 7(2)).

Duties of substitute decision-makers

• Accept the appointment and certify they have read and understand the guidelines before witnessing (r 8(1)); this must be done before the ACD is witnessed (r 7(1)(a)). The duty is to sign and certify acceptance on the form. Electronic certification is permitted (r 8(1a)). The Guidelines for substitute decision-makers are Ministerial instruments published in the Gazette (r 8(2)).

Duties of suitable witnesses and certifiers

• Be a competent adult and be a person or class listed in Schedule 1 (r 7(3), Sch 1).
• Provide the advance care directive information statement to the maker (r 7(2)).
• Where certifying a true copy, sign and certify the document as a true copy (r 9(1)). For electronic copies to be prescribed, the certified true copy must exist prior to entry on the electronic system (r 4A).

Duties of health practitioners

• Access electronic copies selected by the Regulations only on the prescribed systems: My Health Record, Sunrise EMR or a Chief Executive approved system (r 9(3)).
• Where a practitioner does not give effect to an ACD because of suspected suicide or self-harm, they must collect specified information about the patient and the care provided (r 12A(1)) and report to the Chief Executive in the manner and form determined (r 12A(2)). The report must include required information and accompanying records as required by the Chief Executive.

Duties of the Public Advocate

• When delegating mediation under s 45, ensure the delegate has suitable qualifications and expertise in mediation (r 14(1)).
• If referring a matter to the Tribunal under s 46, do so within seven business days of mediation ending or refusal to determine an application (r 15(1)(a)), provide written reasons (r 15(1)(c)), summary of the dispute, contact details and other relevant information (r 15(1)(d)) and advise whether parties have consented to referral (r 15(1)(b)).

Duties of the Tribunal

• When referring to the Public Advocate, do so within seven business days and provide written reasons and a summary of the dispute with contacts and relevant information (r 15(2)(a)-(d)).
• Determine the manner and form for a person to advise the Tribunal of a wish to revoke an ACD (r 11).

Rights and recognitions

• Interstate instruments of classes listed in r 12(1) are declared to be interstate ACDs for the purposes of the Act, and corresponding interstate Acts are declared listed laws (r 12(1), (2)). That gives legal recognition and reduces uncertainty for holders of those instruments.
• Delegated mediators have the same privileges and immunities as Tribunal members for purposes of mediation under s 45 (r 14(2)).
• The Regulations provide a non-exhaustive list of suitable witnesses (Schedule 1), conferring a statutory right to act as witness or certifier for persons within those classes, subject to competency (r 7(3)).

Records and evidentiary duties

• Certification and sequencing requirements create evidentiary duties on the maker, substitute decision-maker, witness and health practitioner. For example, the pre-entry certification for prescribed electronic copies (r 4A) imposes a particular proof trail: certified true copy by a Schedule 1 person, then entry onto prescribed system.

Procedural duties with deadlines

• Referrals between the Public Advocate and the Tribunal must be made within seven business days and be accompanied by written reasons and specified documentation (r 15(1), (2)). The Tribunal may not refer to the Public Advocate if mediation already occurred under s 45 (r 15(3)). Those timing duties impose operational obligations on both agencies.

Limited exemptions and associated duties

• The suicide/self-harm exemption is conditional on practitioner documentation (r 12A(1)) and reporting to the Chief Executive in the required manner and with any required records (r 12A(2)). The Regulations do not define the form in this instrument; they create a duty to obey whatever the Chief Executive requires.

Fees

• Schedule 2 prescribes the fees payable for the purposes of the Act; the only listed fee is an application under s 45 of the Act, which is nil (Schedule 2). That creates a statutory financial position for mediation applications, but does not preclude other administrative costs.

Rights to revoke and modes of revocation

• Makers may revoke an ACD by creating another ACD or by giving a written indication of revocation (r 10). The right to revoke is therefore broad in mechanism, but the Tribunal prescribes the manner for advising the Tribunal about a wish to revoke (r 11).

Transitional provisions and continuity rights

• Schedule 3 provides that certain documents created before operation of Schedule 1 Part 5 of the Act that purported to appoint enduring guardians will be taken to have been in force from the time of creation and to continue until endorsement or 31 December 2015, and will, on being endorsed, be taken to be ACDs (Sch 3 cl 2-3). This preserves pre-existing arrangements as functional rights for a transitional period.

In short, the Regulations create a chain of documentary and procedural duties designed to assure that ACDs are informed, signed, witnessed, certified and discoverable while granting recognition to a set of interstate instruments and restricting certain non-negotiable treatment categories. Decision-making authority over the content of guidance, approval of electronic systems and reporting formats is vested in the Minister and the Chief Executive, with the Public Advocate and Tribunal carrying defined procedural obligations.

The Regulations themselves do not create criminal penalties or financial penalties beyond the fees schedule. Instead they specify procedural and evidentiary requirements that interact with the Act’s enforcement architecture. The primary enforcement mechanisms and consequences in these Regulations are administrative, procedural and evidentiary.

No new offences or pecuniary penalties specified , The text contains no provisions creating standalone offences or fines. The only fee entry in Schedule 2 is that an application under s 45 of the Act carries no fee (Schedule 2). Thus the Regulations rely on the Act’s enforcement framework for substantive sanctions where applicable.

Evidentiary consequences for non‑compliance , Most enforcement effect is indirect and evidentiary. If an ACD does not meet the witnessing and certification requirements set out in r 5-9, the ACD risks not qualifying as valid under the Act’s sections that require those processes (for example, the requirements in ss 11 and 15 of the Act as referenced in the Regulations). In practice, failure to follow the steps in these Regulations can expose an ACD to challenge before the Tribunal or in clinical decision-making, with the practical effect that practitioners may decline to treat the ACD as authoritative.

Administrative oversight via Chief Executive and Tribunal , The Chief Executive is given administrative authority to approve electronic systems (r 4A(c), r 9(3)(c)) and to determine the manner and form of reports required under the suicide/self-harm exemption (r 12A(2)). The Chief Executive’s approval and reporting instruments will be the mechanisms by which compliance with electronic and reporting requirements is checked. The Tribunal’s procedural role under the Act is supported by the Regulations: people must notify the Tribunal in the form it determines when they wish to revoke an ACD (r 11), and the Public Advocate must provide the Tribunal with full written reasons and documentation when referring matters (r 15(1)). The Tribunal and Public Advocate exchanges ensure administrative oversight of disputes.

Documentation obligations tied to the exemption , Where a practitioner relies on the suicide/self-harm exemption to refuse to give effect to an ACD, the Regulations require specific documentation of the person’s identity, the dates, locations and nature of healthcare provided, grounds for suspicion of suicide or self-harm, and grounds for the opinion that the care was reasonably necessary to save life (r 12A(1)). Those obligations create an auditable record that can be used in subsequent review, complaint handling, or Tribunal proceedings.

Mediation and privileges , The Regulations control how mediation under s 45 is administered. Delegated mediators must meet qualification standards set by the Public Advocate (r 14(1)), and have the privileges and immunities of Tribunal members (r 14(2)). Those privileges and immunities are protective legal status that affect enforcement of mediation processes, for example in terms of confidentiality and testimonial privilege in some contexts; the Regulation extends that protection to delegated mediators.

Referral deadlines as enforcement of administrative flow , The seven business day requirement for referrals from the Public Advocate to the Tribunal after mediation ends or application refusal (r 15(1)(a)) and the reciprocal seven business day requirement on the Tribunal (r 15(2)(a)) are administrative enforcement mechanisms to prevent delay. Failure to observe those deadlines may give rise to procedural complaints or administrative rectification requests, which will be handled in the normal administrative law channels or by the Tribunal itself.

Reliance on the Act for sanctions , Any direct coercive enforcement or penalties for flouting substantive duties will be administered under the Act or other applicable laws (for example, health practitioner disciplinary frameworks or professional regulation), not within the text of these Regulations. The Regulations supply processes and documentary standards that feed enforcement under the Act and other legal regimes.

Implementation and review levers , The Minister and Chief Executive’s ongoing power to publish statements, guidelines and approve systems means that statutory compliance obligations can be updated administratively; their instruments will be the locus for practical enforcement and instruction. The Regulations provide the architecture; operational enforcement will depend on Ministerial, Chief Executive and Tribunal practice.

The Regulations are expressly drafted to work in concert with the Advance Care Directives Act 2013, but they also link to and carve out exceptions in other Acts and to interstate instruments. The principal interactions are as follows.

Health Care Act 2008 , The Regulations adopt terminology and define included ambulance services and paramedics by reference to the Health Care Act 2008; r 4(2) makes ambulance service, medical treatment and SAAS have the same meaning as in that Act. That means the Act’s and Regulations’ obligations apply to the pre-hospital emergency context governed by the Health Care Act 2008.

Mental Health Act 2009 , Regulation 6(b) lists medical treatment contemplated by ss 56 and 57 of the Mental Health Act 2009 as mandatory medical treatment for the purpose of the Act’s definition of mandatory medical treatment (s 12(4) of the Act). That creates an explicit hierarchy: where the Mental Health Act contemplates compulsion or required treatment, an ACD cannot be used to override it.

South Australian Public Health Act 2011 , Regulation 6(c) prescribes that medical treatment subject to a requirement or direction of the Chief Public Health Officer under the South Australian Public Health Act 2011 is mandatory medical treatment that cannot be overridden by an ACD. The Regulations therefore preserve the Public Health Act’s emergency power primacy over ACDs in public health response contexts.

Guardianship and Administration Act 1993 and transitional interplay , Schedule 3 addresses instruments created before the commencement of Schedule 1 Part 5 of the Act that purported to appoint enduring guardians under s 25(2)(a) of the Guardianship and Administration Act 1993, but which were not endorsed or witnessed as required. The Schedule treats those instruments as in force from creation until endorsement or 31 December 2015, and, once endorsed, as ACDs under the Act (Sch 3 cl 2-4). The Schedule also specifies that certain provisions conflicting with s 6 or s 12(1) of the Act will be void (Sch 3 cl 6). The Regulations therefore smooth the transition from guardianship instruments to the ACD regime, preserving continuity.

Interstate Acts and common law , Regulation 12 lists specific interstate instruments that the State will treat as interstate ACDs (r 12(1)) and declares corresponding laws from other jurisdictions, including the ACT, NSW, Northern Territory, Queensland, Tasmania, Victoria and Western Australia, and the common law (r 12(2)). This is an explicit statutory choice to accept certain foreign statutory instruments and common law instruments as equivalent for recognition purposes, reducing friction for interstate mobility and cross-border medical decision-making.

South Australian Civil and Administrative Tribunal Act 2013 , The Regulations give mediators delegated by the Public Advocate the same privileges and immunities as members of the Tribunal (r 14(2)), tying mediator legal status into the Tribunal Act’s protection framework. Also, the Tribunal determines form and manner for advising it of revocation (r 11), creating an operational link to Tribunal practice rules.

Ministerial and Chief Executive instruments , The Regulations create recurring duties that rely on instruments made by the Minister and the Chief Executive: the advance care directive information statement and the guidelines for substitute decision-makers are Ministerial instruments published in the Gazette (r 7(2), r 8(2)); the Chief Executive may approve electronic record systems and prescribe the manner for reports under r 12A (r 4A(c), r 9(3)(c), r 12A(2)). The operation of the Regulations therefore depends on the content and administrative deployment of those instruments.

Public health and criminal law overlap , Although the Regulations do not create offences, the prescribing of mandatory medical treatment in r 6 to include court-ordered treatment and public health directions implies that compliance with other statutory obligations may require action inconsistent with an ACD. That could create situations where health practitioners must follow orders under other Acts, and any legal consequences would flow from those other Acts rather than from the Regulations themselves.

Common law recognition , Regulation 12(1)(m) explicitly includes instruments corresponding to an ACD that are binding under the common law. That preserves the role of common law doctrines (such as advance directives at common law) within the statutory framework.

In sum, the Regulations integrate the ACD regime with a wider statutory ecosystem: mental health and public health priorities are given statutory priority in defined areas; interstate instruments are recognised; procedural and evidentiary matters defer to Tribunal practice and Ministerial/Chief Executive instruments; and existing guardianship documents are transitioned into the new ACD framework where appropriate.

The Regulations include a detailed legislative history showing multiple variations since the principal regulations were made in 2014. The principal instrument (No 77 of 2014) commenced on 1 July 2014 (Legislative history). Subsequent notable amendments and insertions with their commencement dates are identified in the legislative history and in the marginal notes to each regulation. Key points recorded in the Regulations are:

• 2015 amendments (Nos 15, 46, 50) , Several variations occurred in 2015. r 11 was substituted by No 15 of 2015 (commenced 29 March 2015). r 7(1) and other clauses were varied by No 50 of 2015 (28 May 2015). Schedule 3 was inserted by No 50 of 2015 (28 May 2015). Clause and regulation-specific variations in 2015 included changes to r 4(1), r 7(1), r 8(1), and the content of Sch 1; see the "Provisions varied" and "Historical versions" sections of the legislative history.

• 2016 amendment (No 223) , Variations to r 12 were made by No 223 of 2016, commencing 8 September 2016.

• 2018 amendment (No 223) , Further variation to r 12 occurred by No 223 of 2018, commencing 25 October 2018.

• 2019 amendment (No 186) , Regulation 12A (the exemption and reporting requirements for suicide or self-harm circumstances) was inserted by No 186 of 2019 and commenced on 11 July 2019.

• 2024 amendments (No 2 of 2024) , A number of modernisation changes were made effective 1 March 2024. Notable 2024 changes include:

  • insertion of r 4A prescribing electronic copies and adding My Health Record and Sunrise EMR as explicit systems and an approval route via the Chief Executive (r 4A inserted by 2/2024 r 3; commencement 1.3.2024);
  • redesignation of r 5 as r 5(1) and insertion of r 5(2) to allow giving an ACD by electronic means (2/2024 r 4);
  • insertion of r 8(1a) permitting substitute decision-maker certification by electronic means (2/2024 r 5);
  • insertion of r 9(3) requiring health practitioners to access electronic copies on My Health Record, Sunrise EMR or Chief Executive approved systems (2/2024 r 6);
  • substitution of r 12A by 2/2024 r 8 (which replaced the 2019 iteration);
  • substitution of Schedule 1 by 2/2024 r 9.

• Omitted provisions and technical revisions , Regulation 2 was omitted by the Legislation Revision and Publication Act 2002 as noted in the variation table (commencement 29 March 2015). Schedule 2 was substituted in 2015 (No 15/2015 r 7).

The legislative history includes a note that earlier versions are listed and that references to other legislation or bodies may be obsolete unless updated. The record identifies the specific Gazette notices and commencement dates for each amendment, giving an administrative trail for the changes. The Regulations therefore show an iterative pattern of amendment reflecting changes in digital systems (My Health Record and Sunrise EMR added in 2024), procedural streamlining (electronic certification options), and policy additions (the suicide/self-harm reporting framework in 2019 and updated in 2024).

Readers should consult the legislative history table for precise citation: principal regulations No 77 of 2014 (Gazette 12.6.2014 p 2491, commenced 1.7.2014) and subsequent amending instruments: No 15 of 2015, No 46 of 2015, No 50 of 2015, No 223 of 2016, No 223 of 2018, No 186 of 2019, and No 2 of 2024, with those instruments’ Gazette references and commencement dates listed in the Regulations’ legislative history section. The marginal notes to each regulation also indicate which paragraphs were varied and by which instrument.

The Regulations’ text does not list any cases or judicial decisions. The legislative materials provided here contain no reported litigation arising under these Regulations. Consequently, there are no judicial authorities cited in the instrument itself to guide interpretation of these specific regulatory provisions.

Absent reported decisions in the instrument, the following are the realistic points at which litigation or Tribunal proceedings might arise, grounded in the procedural and evidentiary rules set out in the Regulations (these are prospective litigation‑triggering facts identified in the Regulations, not citations to cases):

• validity of witnessing and certification , given the strict sequencing requirements (substitute decision-makers must accept the appointment before the advance care directive is witnessed (r 7(1)(a), r 8(1))) and the competence and Schedule 1 constraints for suitable witnesses (r 7(3), Schedule 1), potential disputes may appear before the Tribunal over whether an ACD was validly made and witnessed.

• admissibility or adequacy of electronic copies , r 4A and r 9(3) create a specific pathway for electronic copies: certified true copy prior to entry and access via prescribed systems. Disputes could arise as to whether a particular electronic record satisfies those requirements, especially where a copy was not certified prior to upload, or where the record is accessed on an unapproved system.

• application of the suicide/self-harm exemption , r 12A requires practitioners to document specified information and report to the Chief Executive in a required form. Tribunal or civil proceedings may contest the adequacy of the practitioner’s grounds for suspicion or the reasonableness of the conclusion that the care was necessary to save life, with the Regulations supplying the evidentiary checklist.

• refusal to give effect where other laws apply , r 6 prescribes categories of mandatory medical treatment, including court-ordered treatment and treatments under the Mental Health Act and Public Health Act. Litigation or Tribunal referral may occur where a practitioner or institution treats an ACD as overridden by another Act or direction, or where a person disputes the operation of the mandatory-treatment rule.

• disputes about referral processes and timeliness , the Regulations impose seven business day deadlines for referrals between the Public Advocate and the Tribunal (r 15). Issues could arise concerning compliance with those deadlines and the completeness of the prescribed materials accompanying referrals.

• transitional instruments , Schedule 3 converts certain pre-existing enduring guardian instruments into ACDs under specified conditions. Disputes might arise about whether an instrument meets those conditions, for how long it remained in force, and whether provisions within it contravene r 6 or s 12(1) of the Act and are therefore void under Sch 3 cl 6.

Because the Regulations do not themselves record litigation, practitioners must rely on Tribunal or court decisions under the Act and related statutes for interpretive authority. Where disputes invite judicial interpretation, the Regulations’ detailed sequencing and documentary provisions will be central factual and legal points. Parties and advisers should monitor Tribunal and court databases for decisions interpreting these regulatory requirements in practice.

This section highlights practical pitfalls and friction points the Regulations create by their sequencing, delegation and reliance on Ministerial or Chief Executive instruments. These are concrete, text‑based risks and traps for practitioners, health services, substitute decision-makers and witnesses.

Sequencing requirement for substitute decision-makers , The Regulations require a substitute decision-maker to certify acceptance and that they have read the guidelines before the ACD is witnessed (r 7(1)(a), r 8(1)). Practically, many existing forms or practices allow a substitute decision-maker to accept after the maker signs; under these Regulations, acceptance must precede witnessing. Failure to observe that sequencing risks invalidity of the appointment component of the ACD.

Certification prior to electronic entry , For an electronic copy to be a prescribed electronic copy for the purposes of s 5A, it must have been certified as a true copy by a Schedule 1 person prior to being entered on the prescribed electronic system (r 4A). The order matters: certifying after upload will not meet r 4A. Organisations that upload scanned documents without an antecedent certifier signature therefore risk creating an electronic record that does not qualify as a prescribed copy under the Regulations.

Limit on where health practitioners can access electronic copies , Regulation 9(3) requires health practitioners to access electronic copies only on My Health Record, Sunrise EMR or a Chief Executive approved system. If a health service stores ACDs on a local clinical system that is not Chief Executive approved, a practitioner may be unable to rely on that local copy as the authorised electronic source under r 9(3). That raises integration and interoperability issues where multiple record systems are in use.

Reliance on unpublished Ministerial and Chief Executive materials , The advance care directive information statement and the guidelines for substitute decision-makers are to be determined by the Minister and published in the Gazette (r 7(2), r 8(2)). Similarly, the Chief Executive approves electronic systems and determines the form and manner of reports under r 12A(2). Those instruments will specify key content and processes; until they are published or if they change, practitioners face uncertainty and must track publications to ensure compliance.

Broad classes of suitable witnesses , Schedule 1 lists broad classes such as social workers, teachers and police officers as suitable witnesses. These classes increase availability of witnesses but create possible conflicts of interest or perceived bias, for example where a witness is employed by the same health service providing care. The Regulations impose only a competence requirement (r 7(3)(a)), not an express independence test. That can create contested factual disputes over impartiality that may be litigated or examined in Tribunal proceedings.

Ambiguity in “written indication” of revocation , Regulation 10(b) allows revocation by giving, or causing to be given, a written indication of revocation. The term “written indication” is not defined in the Regulations. That leaves room for argument about what suffices: signed notice, email, text message, or other communication, and whether it must be witnessed or certified. The Tribunal determines manner and form for advising it of revocation (r 11), but the broader legal effect of different forms of written indication may be contested.

Reporting burden when using suicide/self-harm exemption , Regulation 12A imposes a substantive documentation burden on practitioners who do not follow an ACD because they suspect suicide or self-harm. The list of required information is extensive (r 12A(1)). Practitioners must also submit reports in the manner and form determined by the Chief Executive and provide additional records as required (r 12A(2)). Operationally this requires clinical teams to have administrative processes ready; delays or incomplete reports could expose practitioners to procedural scrutiny.

Potential gatekeeping via Chief Executive approvals , The Chief Executive’s power to approve electronic systems (r 4A(c), r 9(3)(c)) creates a centralised gate. If approval takes time or has onerous technical requirements, health services and private EMR vendors may face integration delays or additional costs to achieve compliance. This can create access asymmetries between well-resourced providers and smaller or remote services.

Delegation thresholds and scarcity of mediators , The Public Advocate may delegate mediation only to persons the Public Advocate is satisfied have suitable qualifications and expertise in mediation (r 14(1)). If the Public Advocate applies a high standard or if qualified neutrals are sparse, mediation capacity could be constrained, leading to more matters being litigated or referred to the Tribunal.

Transitional date fixed in the past , Schedule 3 provides that certain pre-existing instruments will continue in force until they are endorsed and witnessed or until 31 December 2015 (Sch 3 cl 3). That date has passed; practitioners dealing with very old documents must check whether endorsement occurred before that deadline, and whether the instrument was converted to an ACD under the transition provision. The Schedule’s operation depends on events that may have occurred, so duty-holders must investigate the instrument’s history.

Minimal fees but undisclosed administrative costs , Schedule 2 lists only one fee (s 45 application, nil). There is no explicit schedule of costs for other administrative acts. That means there are likely real-world compliance and administrative costs (staff time, training, system upgrades) not captured in the Regulations’ fee schedule.

In short, the main operational gotchas are sequencing requirements, certification-before-entry for electronic copies, upstream reliance on Ministerial and Chief Executive instruments, limited approved electronic access points for practitioners, broad witness classes without independence tests, and a detailed reporting burden when the suicide/self-harm exemption is invoked. These are concrete compliance traps that should be addressed in operational policies and training.

This section provides a practical compliance checklist and recommended administrative processes for the principal affected actors: health services/health practitioners, legal advisers preparing ACDs, persons giving ACDs and substitute decision-makers, witnesses (Schedule 1 classes), the Public Advocate and Tribunal administrators. All steps are grounded in the Regulations’ text and referenced to the relevant provisions.

For persons giving an ACD and substitute decision‑makers

• Use the prescribed advance care directive form and complete the part certifying receipt and understanding of the advance care directive information statement (r 5(1)). Retain a signed copy.
• Ensure the substitute decision-maker completes and signs the relevant part of the form accepting the appointment and certifying that they have read and understand the guidelines before the ACD is witnessed (r 8(1)). Electronic acceptance is permitted (r 8(1a)), but the acceptance must precede witnessing (r 7(1)(a)).
• Sign the ACD in the presence of the suitable witness (r 7(1)(b)).
• Keep contemporaneous records showing the sequence: substitute decision-maker acceptance, maker signing in witness presence, witness providing the information statement and certifying any true copies if required (r 7(2), r 9(1)).

For suitable witnesses and certifiers (Schedule 1)

• Confirm competence and that you belong to a Schedule 1 class (r 7(3), Schedule 1). If acting as a certifier of a true copy, sign and certify the document as a true copy (r 9(1)).
• Provide the advance care directive information statement to the maker when witnessing (r 7(2)). Keep a record of giving the statement and the maker’s attestation that they understood it (r 5(1)).
• Where asked to certify a true copy for later electronic entry, ensure certification occurs before the document is uploaded to an electronic system if that copy is to be used as a prescribed electronic copy (r 4A). Maintain dated, signed certification records.

For health practitioners and health services

• Treat ambulance personnel and paramedics as health practitioners under the Act (r 4(1)). Ensure pre-hospital policies address ACD recognition and access (r 4).
• When relying on an electronic ACD, access the copy only on My Health Record, Sunrise EMR or an electronic record system approved by the Chief Executive (r 9(3)). If a health service’s local system is not Chief Executive approved, integrate with an approved system or retain certified paper copies following r 9(1) evidentiary steps.
• If electing not to give effect to an ACD because of suspected suicide or self-harm, collect all required information listed in r 12A(1) and lodge a report to the Chief Executive in the manner and form required, attaching requested records (r 12A(2)). Put in place an internal checklist and secure, auditable documentation process for such events.
• Train clinicians on mandatory-treatment exceptions (r 6) so they are aware of court-ordered treatment, Mental Health Act 2009 s 56/57 treatment and Public Health Act 2011 directions that override ACDs.
• Document decisions and the legal basis for following or not following an ACD; preservation of contemporaneous clinical notes supports compliance with reporting and Tribunal processes.

For organisations uploading or making ACDs available electronically

• Before uploading an ACD to My Health Record, Sunrise EMR or another system, confirm a Schedule 1 certifier has signed a true-copy certification prior to entry (r 4A). Implement a workflow that prevents upload until certification is logged.
• If seeking Chief Executive approval for a proprietary system, engage early with the Chief Executive’s processes to understand technical and security requirements (r 4A(c), r 9(3)(c)). Record approval documents and retain audit trails.
• Ensure consistent metadata and version control so that health practitioners can reliably access the correct, certified document.

For the Public Advocate and mediators

• Assess mediation delegates for suitable qualifications and expertise and retain documentary evidence of assessments (r 14(1)). Delegated mediators will have the same privileges and immunities as Tribunal members for mediation (r 14(2)), so ensure confidentiality and privilege protocols are in place consistent with Tribunal practice.
• When a mediation ends or an application is refused and referral to the Tribunal is necessary, make the referral within seven business days and provide written reasons, the summary of dispute, contact details and other relevant information (r 15(1)(a)-(d)). Keep copies of all materials provided to the Tribunal.

For the Tribunal and administrators

• Determine and publish the manner and form for a person to advise the Tribunal of a wish to revoke an ACD (r 11). Ensure forms and online lodgement options are accessible and publicised.
• When the Tribunal refers a matter to the Public Advocate, do so within seven business days and provide written reasons, a summary of the dispute, contact details and all other relevant information (r 15(2)(a)-(d)). Maintain secure records of referrals.

For legal advisers and advice-givers

• When preparing ACDs, ensure forms compel the sequence required by the Regulations: substitute decision-maker acceptance before witnessing, maker signature in witness presence, and witness provision of the information statement (r 5-8).
• Advise clients that revocation may occur by creating a subsequent ACD or by a written indication and that if Tribunal notification is required it must be in the form determined by the Tribunal (r 10-11).
• For interstate clients, review whether their instrument is captured by r 12(1) and whether corresponding laws listed in r 12(2) apply to reduce cross-border friction.

Record retention and audit

• Maintain the following records for each ACD: completed form with maker certification (r 5(1)), substitute decision-maker acceptance (r 8(1)), witness name and Schedule 1 class with signature and confirmation of giving the information statement (r 7(2), r 7(3)), any certified true-copy certificates (r 9(1)), electronic upload logs showing prior certification before entry (r 4A), and, if relevant, the r 12A suicide/self-harm report and associated clinical records.
• Ensure records are stored securely, with access logs, and kept for a period consistent with health records legislation and organisational retention policy.

Policy, training and integration

• Update ACD policies to incorporate the sequencing, certification and electronic system requirements, and provide quick-reference checklists for clinicians and administrators.
• Train front-line staff, community-facing personnel (e.g., police, teachers, social workers), and administrative teams on witness roles and documentation expectations.
• Incorporate ACD checks into admission and intake workflows so that the presence or absence of an ACD, the quality of witnessing and certification, and the authorised electronic copy source are evaluated at first contact.

Practical checks before relying on an ACD

• Confirm the witness is a competent adult and belongs to a Schedule 1 class (r 7(3), Schedule 1).
• Confirm substitute decision-maker acceptance is signed prior to witnessing (r 8(1)).
• For electronic ACDs, verify the certifier signed prior to upload and that the copy is on a prescribed system (r 4A, r 9(3)).
• For any decision not to give effect to an ACD on the basis of mandatory treatment, confirm the statutory basis applies (r 6) and whether other Acts require treatment.

By following these concrete steps and embedding the sequencing and documentation requirements into routine practice, actors can align operational procedures with the Regulations’ legal requirements. Keep a monitoring process in place to capture Ministerial and Chief Executive updates to the information statement, guidelines and approved systems and update policies accordingly.