Consent to Medical Treatment and Palliative Care Act 1995

The Act defines several legal and operational concepts that determine how decisions about medical care are made and when substitute decisions or urgent interventions may occur.

Legal competence and age rule (s 6)

• A person aged 16 or over may lawfully make decisions about their own medical treatment as if an adult. The Act therefore treats 16+ as the default age of competence for consenting to medical treatment (s 6).

Impaired decision‑making capacity (s 4(2)-(3); Pt 2A, s 14)

• The Act sets a functional test: a person has impaired decision‑making capacity for a particular decision if they cannot understand, retain, use, or communicate relevant information, or are comatose/unconscious (s 4(2)). The Act permits fluctuation in capacity and rejects incapacity conclusions based solely on technical ignorance, short memory retention, or an adverse decision outcome (s 4(3)).

Medical treatment, health care, and withdrawal/withholding (s 4(1); s 14(1); s 4A)

• “Medical treatment” is broadly defined to include physical, surgical and psychological therapy and prescription/supply of drugs (s 4(1)). Part 2A extends that definition to “health care” for purposes of impaired capacity (s 14(1)). The Act expressly includes withdrawal or withholding of treatment as part of “administration of medical treatment” (s 4A). It also clarifies that nothing in the Act requires a person’s consent before withdrawal or withholding may occur (s 4B).

Person responsible and substitute decision‑making hierarchy (s 14(1))

• For patients with impaired capacity, the Act creates a hierarchy of persons who may be “person responsible”: a non‑excluded guardian, prescribed relatives with a close and continuing relationship, an adult friend with a close and continuing relationship, the adult charged with day‑to‑day care, and, failing those, the Tribunal on application (s 14(1)(a)-(e)). The hierarchy is substantive: consent given by a person responsible is taken to be a consent given by the patient (s 14B(1)). The Act requires the person responsible to make decisions that, as far as reasonably practicable, reflect what the patient would have decided (s 14C).

Advance care directives and interaction (s 4(1) definition; s 14A(2); s 13)

• The Act recognises advance care directives defined under the Advance Care Directives Act 2013 (s 4(1)). Part 2A does not apply where a substitute decision‑maker appointed under an advance care directive is authorised to make the relevant decision or the directive makes specific provision about the treatment (s 14A(2)). In emergencies, the Act allows treatment that would otherwise be refused in an advance care directive if certain strict conditions are met (s 13(1a)).

Emergency medical treatment test and second opinion requirement (s 13)

• A medical practitioner may lawfully administer emergency treatment to an incapable patient if: the practitioner considers the treatment necessary to meet an imminent risk to life or health; that opinion is supported by the written opinion of another practitioner who has examined the patient; the patient (if aged 16+) has not (to the practitioner’s knowledge) refused consent; and the practitioner has made reasonable inquiries about any advance care directive (s 13(1)). The Act contains pragmatic exceptions where obtaining a supporting opinion or making inquiries is not practicable (s 13(2), (2a)).

Duty to explain (s 15) and practitioner protections (s 16)

• Practitioners owe a duty to explain the nature, risks, likely consequences and reasonable alternatives of proposed treatment, so far as practicable and reasonable (s 15). Separate protections immunise practitioners and those acting under their supervision from civil or criminal liability where actions are with consent or authorised by the Act, in good faith, without negligence, in accordance with professional standards, and to preserve or improve quality of life (s 16).

Palliative care and non‑application to causing death (s 17; s 18)

• For patients in the terminal phase, practitioners incur no civil or criminal liability for administering treatment with the intention of relieving pain or distress, even if an incidental effect is to hasten death, provided it is with consent, in good faith, without negligence, and accordant with professional palliative standards (s 17(1)). Practitioners are under no duty to use or continue life sustaining measures if these merely prolong moribund life or result in persistent vegetative state (s 17(2)(a)). The Act nonetheless explicitly disclaims authorising treatment for the purpose of causing death or assisting suicide (s 18).

Dispute resolution architecture: Public Advocate and Tribunal (Pt 3A)

• The Act structures a staged dispute system. The Public Advocate provides preliminary assistance and may mediate (s 18C). Eligible persons can apply to the Tribunal for review, declaration, or direction; the Tribunal may itself direct withdrawal or withholding of treatment and can refer matters to the Public Advocate (s 18E, s 18F). Tribunal directions are legally enforceable; non‑compliance is an offence (s 18G). The Act outlines notice, representation and reasons provisions for Tribunal proceedings (Pt 3B, ss 18I-18K).

These concepts frame who decides, under what procedural constraints and documentation requirements, and how disputes are escalated and enforced across clinical, familial and Tribunal actors. The statutory text creates both procedural safeguards (second opinions, inquiries about directives, Tribunal oversight) and carve‑outs designed for practicability in emergencies (s 13(2), s 13(2a)).

The Act touches several distinct groups and assigns rights, duties or potential liabilities to each. The main affected actors are patients (including children), medical practitioners and other health practitioners, persons who may act as substitute decision‑makers (persons responsible), the Public Advocate, the Tribunal, and certain relatives, guardians and adult friends.

Patients

• Persons aged 16 or over: declare their own medical decisions in the same way as adults (s 6). Advance care directive holders: the Act recognises advance care directives made under the Advance Care Directives Act 2013 and alters application of Pt 2A where directives and substitute decision‑makers exist (s 4(1) definition; s 14A(2)). Patients in the terminal phase: receive palliative‑care protections and have the statutory assurance that pain‑relief given in palliative care will not be treated as an intervening cause of death for legal purposes (s 17(1), (3)).

Children

• Persons under 16 (children): their treatment is governed by s 12. Medical treatment may be administered if a parent or guardian consents, or if the child consents and the treating medical practitioner and another medical practitioner both conclude (in writing) the child understands the nature, consequences and risks and that treatment is in the child’s best interests (s 12). If a parent or guardian refuses but the treatment is in the child’s best interests, the Act allows treatment despite refusal (s 13(5)).

Medical practitioners and health practitioners

• Medical practitioner is defined by registration under the Health Practitioner Regulation National Law (s 4(1)). Part 2A expands “medical treatment” to include “health care” and treats health practitioners practising the relevant profession as medical practitioners for the purposes of particular health care (s 14(1)). Practitioners must explain treatment (s 15), obtain or reasonably attempt to obtain consent, and document written supporting opinions where required (s 13). They receive legal protections if they act with consent/authority, in good faith, without negligence and in accordance with professional standards (s 16). Practitioners who withdraw or withhold treatment in line with s 17 face no civil or criminal liability for palliative relief even if death is incidentally hastened (s 17(1)).

Persons responsible; substitute decision‑makers; guardians; prescribed relatives; adult friends

• The Act creates a specified order for who may be a person responsible for a patient lacking capacity (s 14(1)(a)-(e)). Those persons can give consent on the patient’s behalf which is legally effective as if the patient had consented (s 14B(1)). They are required to make substituted decisions that reflect what the patient would have decided, so far as reasonably practicable (s 14C). A person falsely purporting to be a person responsible, knowing or recklessly indifferent, is guilty of an offence with a maximum of two years’ imprisonment (s 14D).

Public Advocate

• The Public Advocate may provide preliminary assistance, identify issues, facilitate communication, and mediate matters (s 18C). The Public Advocate may require written independent medical reports before mediation in certain cases (s 18C(4)). The Public Advocate can end mediation and refer matters to the Tribunal (s 18C(5), s 18D) and may refer questions of law to the Supreme Court (s 18DA).

Tribunal (SACAT)

• The Tribunal hears applications from eligible persons, can make declarations and directions (including ordering withdrawal or withholding of treatment), may vary or revoke directions, and may refer matters to the Public Advocate (s 18E, s 18F). The Tribunal must give reasonable notice of proceedings to specified persons and may act urgently for up to 21 days without notice (s 18I). Tribunal decisions engage internal review and appeal pathways under the SACAT Act as detailed in s 18H.

Eligible persons and other parties

• Eligible persons to bring matters include parents/guardians of children, persons responsible for patients with impaired capacity, treating medical practitioners, and any other person who satisfies the Public Advocate or Tribunal that they have a proper interest (s 18A; s 18B). The person to whom treatment relates is a party to Tribunal proceedings (s 18E(6)).

Those who may face penalties

• A person who falsely claims to be a person responsible may be imprisoned (s 14D). A person who fails to comply with a Tribunal direction is liable to a maximum penalty of $20,000 or six months’ imprisonment (s 18G). These provisions create legal consequence exposure for family or carers who either misrepresent authority or ignore Tribunal directions.

Other affected systems and professionals

• Hospitals and health services will be affected operationally through requirements to seek and document second opinions in emergencies (s 13), to check for advance care directives (s 13(1)(d)), and to interface with the Public Advocate and the Tribunal. The Act’s interaction with the Advance Care Directives Act 2013 (s 14A(2) and extensive transitional provisions) and with the Voluntary Assisted Dying Act 2021 (s 4C) also means practitioners must be aware of multiple statutory regimes in deciding treatment.

In short, the Act allocates decision‑making power across patients, families, carers, guardians, practitioners and statutory bodies, sets a documentation and inquiry burden on practitioners in many circumstances, and creates criminal and civil exposure for certain misrepresentations or non‑compliance with Tribunal directions.

The Act creates explicit duties for medical practitioners, identifies rights of patients and substitute decision‑makers, and prescribes procedural obligations for actors using the dispute resolution mechanisms.

Medical practitioner duties

• Duty to explain: A practitioner must, so far as practicable and reasonable, explain to the patient or the patient’s representative: the nature, consequences and risks of proposed treatment; likely consequences of not undertaking it; and any reasonable alternative treatments or courses of action (s 15). This duty is framed by reasonableness and practicability; the Act does not impose an absolute content list beyond those elements.

• Emergency treatment obligations: In emergency situations involving incapable patients, the administering practitioner must be of the opinion the treatment is necessary to meet an imminent risk to life or health and, where practicable, obtain a written supporting opinion from another practitioner who has personally examined the patient (s 13(1)(b)). The prescribing practitioner must also ensure, so far as possible, that the patient has not refused the treatment and has made reasonable inquiries about any advance care directive where the patient is 18 or older (s 13(1)(c)-(d)). The Act allows exceptions where it is not reasonably practicable to obtain the supporting opinion or make inquiries (s 13(2), (2a)).

• Respect for advance care directives and substitute decision‑makers: If a patient has an advance care directive and a substitute decision‑maker is appointed and available, treatment must not be administered without that substitute’s consent (s 13(3)). If no substitute is available, a guardian must be consulted if available (s 13(4)). If neither substitute nor guardian is available but a person responsible under Pt 2A is reasonably available and willing, that person’s consent is required (s 13(4a)).

• Palliative care and life sustaining measures: For patients in terminal phase, practitioners face no duty to use or continue life‑sustaining measures if doing so would merely prolong life in a moribund state without prospect of recovery or result in a persistent vegetative state; and must withdraw life sustaining measures if the patient or their representative so directs (s 17(2)). Practitioners administering treatment to relieve pain or distress are protected from civil/criminal liability if acting with consent, in good faith, without negligence, and in accordance with proper palliative standards even if death is incidentally hastened (s 17(1)).

Rights of patients and adults aged 16+

• Autonomy at 16: Persons aged 16 and over may validly make decisions about their medical treatment (s 6). This is a substantive right to decide treatment, subject to the usual clinical and legal limitations in the Act.

• Advance care directives: The Act recognises directives made under the Advance Care Directives Act 2013. Where a directive appoints a substitute decision‑maker with authority over relevant treatment, Pt 2A does not apply (s 14A(2)). In emergency situations the Act permits limited override of a refusal in an advance care directive under stated conditions (s 13(1a)), but otherwise the substituted decision framework and respect for directives apply (s 13(3)).

Rights and duties of substitute decision‑makers and persons responsible

• Legal effectiveness of consent: Consent by a person responsible is taken to be consent by the patient and has the same effect for all purposes (s 14B(1)). Regulations may further limit the kinds of treatment a particular class of person responsible can consent to (s 14B(2)).

• Duty to reflect patient’s wishes: A person responsible must, as far as reasonably practicable, make decisions reflecting the decision the patient would have made had they had capacity (s 14C). This creates a normative obligation to prioritise the patient’s known or reasonably inferred wishes.

• Criminal liability for false representation: A person who is not a person responsible and knowingly or recklessly purports to give consent or represents to a practitioner they are a person responsible is guilty of an offence with maximum imprisonment of two years (s 14D).

Public Advocate powers and duties

• Assistance and mediation: The Public Advocate may, on application by an eligible person or on the Advocate’s own initiative, provide preliminary assistance and mediation, including information about rights, issue identification, canvassing options, and facilitating communication (s 18C(1)-(3)). Mediation requires a prescribed fee and may be conditioned on a written independent medical report (s 18C(3)-(4)).

• Confidentiality of mediation: Statements made in mediation are inadmissible in subsequent proceedings except by consent of all parties (s 18C(6)). The Public Advocate has the Tribunal’s privileges and immunities for these purposes (s 18C(8)).

Tribunal powers and parties’ rights

• Applications and outcomes: Eligible persons may apply to the Tribunal for review of mediated matters, declarations or directions (s 18E(1)). The Tribunal may confirm, cancel or reverse decisions reviewed; make declarations; give directions (including to withdraw/withhold treatment); and give advice it considers necessary (s 18E(4)). The person to whom the treatment relates is a party to proceedings (s 18E(6)).

• Procedural rights: The Tribunal must give reasonable notice to applicants, the person to whom proceedings relate, the Public Advocate, and other persons with a proper interest, subject to practicable exceptions and a 21‑day urgent order power (s 18I). The Tribunal must furnish reasons on request by persons with a right of internal review or those who satisfy it they have a proper interest, subject to timing limits (s 18J). A person subject to proceedings is entitled to be represented by the Public Advocate or by a recognised advocate (s 18K).

Protections for practitioners and limits on Act

• Immunity: Practitioners acting with consent or under statutory authority who act in good faith, without negligence, in accordance with professional standards and aiming to preserve or improve quality of life incur no civil or criminal liability (s 16).

• Limits: The Act does not authorise acts intended to cause death or to assist suicide (s 18(1)-(2)). The Act also does not apply to voluntary assisted dying treatment under the Voluntary Assisted Dying Act 2021 (s 4C).

These duties and rights produce practical obligations: documentation of consent and second opinions, inquiries about directives, compliance with Tribunal directions, and an evidential trail to substantiate good faith and adherence to professional standards where discretionary clinical decisions are made.

The Act contains several enforcement mechanisms and explicit criminal offences tied to specific conduct, plus Tribunal enforcement and general protections that condition liability. Enforcement operates through criminal sanctions, Tribunal directions and their enforcement, and regulation of representation and false claims.

Criminal offences and maximum penalties

• False representation as person responsible (s 14D): A person who is not a person responsible for a particular patient is guilty of an offence if, knowing they are not the person responsible or being recklessly indifferent to that fact, they purport to give consent under Pt 2A or represent to a medical practitioner they are a person responsible. Maximum penalty: imprisonment for two years. This provision criminalises deliberate or reckless usurpation of authority to consent for another person.

• Failure to comply with Tribunal direction (s 18G): A person who fails to comply with a Tribunal direction under s 18E is guilty of an offence. Maximum penalty: $20,000 or imprisonment for six months. Subsection (2) provides a defence if the defendant proves they did not know and could not reasonably be expected to know that their conduct amounted to a failure to comply.

Tribunal enforcement and procedural tools

• Tribunal powers: Under s 18E, the Tribunal may make declarations and give directions, including directions that particular medical treatment be withdrawn or withheld (s 18E(4)(b)(ii)). The Tribunal may vary or revoke orders (s 18E(5)) and may seek advice to protect the interests of children (s 18E(8)).

• Notice and urgency: The Tribunal must give reasonable notice of hearings to the applicant, the person proceedings relate to, the Public Advocate and other interested persons (s 18I(1)). The Tribunal may proceed urgently without complying with notice for up to 21 days where satisfied urgent action is required (s 18I(2)(b)), allowing rapid interventions when necessary.

• Representation and reasons: The Tribunal must supply written reasons on request by persons with internal review rights or proper interest (s 18J). Persons subject to proceedings are entitled to representation by the Public Advocate or a recognised advocate (s 18K).

Public Advocate enforcement role

• Mediation and referral: The Public Advocate can mediate and provide preliminary assistance (s 18C). If mediation is ended because the matter is more appropriately dealt with by the Tribunal, the Public Advocate may refer the matter to the Tribunal (s 18D). The Public Advocate may also refer questions of law to the Supreme Court (s 18DA).

Civil and criminal immunity for practitioners

• Protections limit enforcement against practitioners when specified conditions are met: A practitioner who treats a patient with consent or without consent but in accordance with statutory authority, in good faith, without negligence, in accordance with professional standards, and for the purpose of preserving or improving quality of life, incurs no civil or criminal liability (s 16). For palliative relief in the terminal phase, the Act further clarifies that administering such treatment does not constitute an intervening cause of death (s 17(1), (3)). Nonetheless, the immunity is conditional and depends on evidencing good faith, non‑negligence and conformity with professional standards.

Administrative sanctions and costs in Tribunal proceedings

• Costs orders: Under s 18H(d), the Tribunal may make an order for costs against a party in internal review proceedings only if the Tribunal is satisfied that the institution or conduct of proceedings was frivolous, vexatious or intended to cause delay. In appeals to the Supreme Court under s 71 of the SACAT Act, time limits are strict (14 days) but the Supreme Court may extend time if just and reasonable (s 18H(e)).

Other enforcement and procedural limits

• Mediation confidentiality: Statements made in mediation are inadmissible in later proceedings except by consent, reducing the risk that mediations will produce evidence usable against parties in subsequent litigation (s 18C(6)). The Public Advocate also has Tribunal privileges and immunities while performing mediation functions (s 18C(8)).

Who enforces and how

• Criminal offences under the Act would be pursued through usual criminal processes; the Act sets out maximum penalties but not enforcement procedure specifics. Tribunal directions are enforced by the Tribunal process and a statutory offence for non‑compliance (s 18G). The Public Advocate and the Tribunal are the principal administrative enforcers in the Act’s dispute resolution architecture.

In summary, enforcement combines statutory criminal sanctions for unauthorised representation and non‑compliance with Tribunal directions, Tribunal procedural mechanisms to make and enforce directions, and conditional immunities for practitioners where statutory and professional standards are observed. The Act builds both deterrents and protective mechanisms into its enforcement architecture, with defined defences and procedural safeguards.

The Act expressly links to, and excludes application where appropriate with, several other South Australian statutes, and it modifies or preserves existing instruments through transitional provisions. Those statutory interactions are central to how practitioners and decision‑makers should apply the Act in practice.

Advance Care Directives Act 2013

• Definition and primacy: The Act recognises “advance care directive” as defined in the Advance Care Directives Act 2013 (s 4(1)). Part 2A’s operation is limited where an advance care directive appoints a substitute decision‑maker authorised to decide the relevant treatment or where the directive makes specific provision about the treatment (s 14A(2)). Transitional provisions in Schedule 3 and the Advance Care Directives Act further convert prior directives, medical agents and enduring powers of attorney into advance care directives for continuity (Schedule 3, and Advance Care Directives Act 2013, Sch 1 Pt 8, cll 32-36).

• Emergency override: Section 13(1a) permits a practitioner to lawfully administer emergency treatment despite a provision of an advance care directive comprising a refusal of the treatment if strict conditions are met (s 13(1a)(a)-(d)). However, s 13(3) requires that if a substitute is appointed and available and empowered to consent, treatment must not be given without their consent. The Act therefore balances respect for directives with limited emergency exceptions.

South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act)

• Tribunal and review pathways: The Act uses the Tribunal (SACAT) as its review and direction body (defined at s 4(1)). Many procedural and appeal matters in Pt 3A reference the operation of Part 5 and Pt 5 of the SACAT Act, internal review and appeal provisions (s 18H). Section 18H specifies internal review and appeal rules linked to the SACAT Act, sets appeal timeframes (14 days under s 18H(e)), and limits internal review in relation to publication authorisation. The Act amends and aligns with the SACAT Act by inserting “decision” definitions and transferring proceedings previously under the Guardianship Board to the Tribunal (see legislative history: Statutes Amendment (SACAT) Act 2014).

Guardianship and Administration Act 1993

• Guardians and prescribed treatments: Part 2A references guardians and prescribes that where a guardian has been appointed and their powers are not limited so as to exclude consenting under this Part, that guardian is the person responsible (s 14(1)(a)). The Act also excludes from Pt 2A “prescribed treatment” within the meaning of the Guardianship and Administration Act 1993 (s 14A(3)), and notes that prescribed treatments include terminations of pregnancy and sterilisations (s 14A(3) note).

Health Practitioner Regulation National Law (South Australia)

• Registration definitions: The statutory definitions of “medical practitioner” and “dentist” depend on registration under the Health Practitioner Regulation National Law (s 4(1)). Part 2A expands “medical practitioner” in relation to particular health care to include other health practitioners practising relevant professions (s 14(1)).

Voluntary Assisted Dying Act 2021

• Exclusion: The Act expressly does not apply to medical treatment that is or is given in the course of voluntary assisted dying under the Voluntary Assisted Dying Act 2021 (s 4C). This isolates voluntary assisted dying treatment from the consent/withdrawal/Tribunal architecture of this Act. The legislative history indicates s 4C was inserted by the Voluntary Assisted Dying Act 2021 and commenced 31 January 2023 (Legislative history).

Natural Death Act 1983 and other repealed legislation

• Transitional recognition: When the 1995 Act commenced it repealed the Natural Death Act 1983 and made transitional provisions preserving certain directions as effective until revoked or amended (Schedule 3, cl 2). Schedule 3 contains detailed transitional provisions that, later in 2013, were used to convert earlier anticipatory directions and medical powers of attorney into advance care directives (see Advance Care Directives Act 2013 Sch 1 Pt 8 cll 32-36).

Statutes Amendment (SACAT) Act 2014 and other amendments

• Transfer of jurisdiction: The Statutes Amendment (SACAT) Act 2014 reallocated jurisdiction from the Guardianship Board to the Tribunal and altered many provisions to reflect the Tribunal’s role (Legislative history). The Amendment history notes multiple substitutions and insertions tied to the Advance Care Directives Act 2013 (effective 1 July 2014 for many provisions) and the Health Practitioner Regulation National Law (2010), which changed definitions of medical practitioner and dentist.

Interactional consequences and compliance implications

• Priority and exceptions: Where an advance care directive appoints an authorised substitute or makes specific provision, the Advance Care Directives Act framework takes precedence and Pt 2A does not apply (s 14A(2)). Emergency exceptions allow limited departure from directives (s 13(1a)), but the statutory hierarchy requires substitute decision‑makers or guardians to be consulted where available (s 13(3)-(4a)).

• Multiple regimes: Practitioners and institutions must align obligations across at least three statutes: this Act, the Advance Care Directives Act 2013, and the SACAT Act, with definitions coming from the Health Practitioner Regulation National Law. The legislative history shows repeated amendment to definitions and jurisdictional alignment; practitioners should rely on the most recent consolidated text when determining their duties.

In sum, the Act operates within a network of South Australian statutory instruments: it defers to advance care directives where specific, routes disputes to SACAT, relies on the guardianship framework for guardianship powers, uses national registration law to define practitioners, and excludes voluntary assisted dying treatment from its scope. The Act’s transitional clauses preserved prior instruments by converting them into advance care directives under the newer regime.

The Act’s text includes a detailed legislative history showing multiple amendments and interaction points with other statutes over time. The history is both substantive (definitions, new Parts) and structural (transfer of jurisdiction to the Tribunal). Key amendment milestones and their mechanical effects follow, with the dates and sections indicated in the legislative history.

1995 , Principal Act

• The Consent to Medical Treatment and Palliative Care Act 1995 (No 26) received assent on 27 April 1995 and mostly commenced on 30 November 1995 (Gazette 30.11.1995 p1500). It repealed the Consent to Medical and Dental Treatment Act 1985 and the Natural Death Act 1983 (Legislative history: “Legislation repealed by principal Act”).

2004 , Prescribed Forms Amendment

• Consent to Medical Treatment and Palliative Care (Prescribed Forms) Amendment Act 2004 (No 12), assent 13 May 2004, commenced 1 July 2004. That amendment made amendments to definitions and forms provisions (Legislative history entries noting s 4 substitutions and s 7(2) amendments).

2010 , Health Practitioner Regulation National Law

• Health Practitioner Regulation National Law (South Australia) Act 2010 (No 5) commenced 1 July 2010 and effected substitutions in the Act for definitions of “medical practitioner” and “dentist” to conform to the national registration scheme (Legislative history: 1.7.2010).

2013-2014 , Advance Care Directives Act 2013 and major rework

• Advance Care Directives Act 2013 (No 12) and its Schedule 1 made comprehensive changes to the 1995 Act, many of which commenced on 1 July 2014 (Legislative history entries show Sch 1 cll 2-13, 32-34, 36 & 37). Significant insertions included:
  • Introduction of “advance care directive” into definitions (s 4(1) insertions).
  • Redefinition of “medical treatment” and insertion of “impaired decision‑making capacity” (s 4 revisions).
  • Insertion of Pt 2A (Consent to medical treatment if person has impaired decision‑making capacity) and Pt 3A (Dispute resolution, reviews and appeals) , many of these amendments took effect 1 July 2014.
  • Sections 4A and 4B (references to withdrawal/withholding; consent not required to withdraw/withhold) were inserted by Sch 1 cl 4, effective 1 July 2014.

2014-2015 , Statutes Amendment (SACAT) Act 2014

• Statutes Amendment (SACAT) Act 2014 (No 26) restructured the Act to reflect SACAT (the Tribunal). Provisions included transferring references from the Guardianship Board to the Tribunal, adding Pt 3B special provisions, modifying Pt 3A’s heading, and other changes; many amendments commenced 29 March 2015 (Legislative history entries with s 30-43 and various substitutions). These changes effected substantial procedural realignment to the Tribunal model and added internal review/appeal modifications (see s 18H and Pt 3B).

2010-2015 , Ongoing definition adjustments

• Across 2010-2015, several definitions and cross‑references were updated to align with national registration law and the SACAT structure (Legislative history lists substitutions in s 4, s 14, and other provisions with corresponding commencement dates).

2021-2023 , Voluntary Assisted Dying Act 2021

• The Voluntary Assisted Dying Act 2021 introduced s 4C into this Act, expressly excluding the Act’s operation in relation to voluntary assisted dying medical treatment (s 4C inserted by 29/2021 Sch 1 cl 5). The commencement recorded is 31 January 2023 in the legislative history (Sch 1 (cl 5),31.1.2023 (Gazette 11.8.2022 p2489)).

Transitional provisions and conversions

• Schedule 3 originally preserved instruments under the previous Natural Death Act 1983 and earlier enduring powers; the Advance Care Directives Act 2013 (Sch 1 Pt 8) provided specific transitional provisions that convert prior directions, medical powers of attorney, and enduring powers into advance care directives with limited effect (Advance Care Directives Act 2013 Sch 1 cll 32-36). The consolidated legislative history explicitly records these transitional arrangements and their effect on continuity of prior instruments.

Practical effects of amendments

• The 2013 Advance Care Directives reforms replaced earlier anticipatory directions and agents with the advance care directive framework; inserted Pt 2A to deal with impaired decision‑making capacity comprehensively; and added modern dispute resolution pathways (Public Advocate mediation and Tribunal review). The Statutes Amendment (SACAT) Act 2014 then moved jurisdictional functions and procedural rights to the Tribunal model. The Voluntary Assisted Dying Act 2021 then carved out a separate statutory regime for those treatments, removing them from this Act’s scope.

Taken together, the amendment history shows progressive statutory layering: a move from older “natural death” and “medical agent” frameworks to a contemporary regime centred on advance care directives, SACAT oversight, and alignment with national registration law and the separate voluntary assisted dying scheme. Practitioners and decision‑makers must rely on the current consolidated Act and be attentive to these historic conversion rules where older instruments remain in existence.

The legislative text provided does not list or cite judicial decisions, nor does it include case law. The Act, however, sets out internal administrative and appeal pathways that indicate how disputes would be litigated or reviewed under the statutory scheme. The relevant procedural and appellate routes in the Act are:

Tribunal proceedings and review (s 18E, Pt 3A)

• Eligible persons may apply to the Tribunal for review of matters mediated by the Public Advocate, or for declarations or directions including those about withholding or withdrawing treatment (s 18E(1)). The Tribunal has powers to confirm, cancel or reverse decisions reviewed, to make declarations, to give directions including to withdraw medical treatment, and to give advice (s 18E(4)). The Act states the person to whom the treatment relates is a party to proceedings (s 18E(6)).

Internal review and appeals to the Supreme Court (s 18H; s 18DA)

• The Act incorporates the application of Part 5 of the South Australian Civil and Administrative Tribunal Act 2013, which provides internal review procedures and appeal routes. Section 18H specifies:

  • A decision of the Tribunal not to authorise publication of a report of proceedings is not subject to internal review (s 18H(a));
  • Who can apply for internal review (s 18H(b));
  • Costs constraints on internal review (s 18H(d));
  • Timeframe for appeal under s 71 of the SACAT Act must be instituted within 14 days after the decision or after being furnished with reasons (s 18H(e)), with the Supreme Court able to extend time if satisfied it is just and reasonable.

• The Act further provides that the Public Advocate may refer any question of law for opinion to the Supreme Court (s 18DA), which is a direct link to judicial determination on legal questions arising from the Act.

Nature of litigable issues under the Act

• Disputes likely to give rise to litigation under this statutory scheme include:
  • Conflicts between persons responsible or family members about consenting or refusing specific treatment for patients with impaired capacity (Pt 2A and s 18B).
  • Challenges by medical practitioners about whether to administer or withhold treatment in emergency situations, especially where advance care directives are present and the emergency exceptions in s 13(1a) are invoked.
  • Appeals from Tribunal decisions or refusals to authorise publication, and internal review proceedings under the SACAT Act as applied by s 18H.

No cases named in the source

• The provided Act text does not name any judicial decisions or litigated authorities. It provides the institutional and procedural framework that would govern litigation and administrative appeals but does not summarise actual litigation history. Practitioners seeking case law construing the Act will need to consult court and Tribunal databases; this Act’s text makes clear that questions of law may be referred to and decided by the Supreme Court (s 18DA) and that appeals are available under the SACAT Act (s 18H).

Implication for legal research

• Given the statutory architecture, litigation is most likely to arise in SACAT and, on appeal or question of law, in the Supreme Court. The Act’s provisions on mediation confidentiality (s 18C(6)) will limit the use of mediation communications in subsequent proceedings unless parties consent. The Act also constrains costs orders in internal review unless proceedings are frivolous, vexatious or delay‑aimed (s 18H(d)), which may affect litigation strategies.

In short, the Act itself does not include litigation summaries. It does, however, set out the administrative and judicial routes available for disputes, and practitioners should consult Tribunal and Supreme Court records for authoritative interpretations and precedents since those bodies are the statutory forums envisaged by the Act.

The Act contains specific provisions and structural features that can produce traps for the unwary. The following issues are factual, mechanical and directly rooted in the statutory wording; they identify areas where practice, documentation or timing errors commonly produce disputes or legal exposure.

1. Advance care directive exceptions in emergencies (s 13(1a))

• Gotcha: Section 13(1a) allows treatment despite a patient's advance care directive refusal if strict conditions are met, including that the practitioner reasonably believes the directive’s refusal does not apply to the treatment or circumstances, and that it is not reasonably practicable to have the matter dealt with under Part 7 of the Advance Care Directives Act 2013. Practitioners may mistakenly assume advance care directives are absolute and decline to treat in emergency settings. The Act allows a narrow emergency override, but it requires careful documentation of the belief that the directive does not apply, supporting written opinion, and an explanation why referral under Part 7 of the Advance Care Directives Act was not reasonably practicable (s 13(1a)(b)-(d)). Failing to document these steps risks later challenge.

2. The legal effect of consent given by “person responsible” (s 14B)

• Gotcha: Consent by a person responsible is taken to be consent by the patient (s 14B(1)). That legal effectiveness persists even if the person responsible could have been someone higher in the hierarchy but insufficient inquiries were made (s 14B(3)). Practitioners should understand that a consent given by someone who purports to be person responsible and whom the practitioner reasonably believed to be so will be effective (s 14B(4)). The risk is twofold: accepting a consent from someone without actually verifying their status can be effective (s 14B(4)) but exposing the practitioner to disputes where another person with higher priority exists and later contests the decision. The Act relieves practitioners of strict liability in some circumstances, but careful records of inquiries and the basis for believing the person was person responsible are essential.

3. Criminal penalty for falsely claiming to be person responsible (s 14D)

• Gotcha: Section 14D is punitive: a maximum of two years’ imprisonment for knowingly or recklessly portraying oneself as person responsible or purporting to give consent when not authorised. Family members or carers who assume authority without checking may inadvertently commit an offence if their conduct is knowing or reckless. Practitioners must be alert to potential false claims and take reasonable steps to verify authority.

4. Emergency second‑opinion requirement practicality and delay risk (s 13(1)(b))

• Gotcha: The Act requires a written supporting opinion from another medical practitioner who has personally examined the patient for many emergency interventions (s 13(1)(b)). While s 13(2) permits omission where not practicable, confusion may arise about when a supporting opinion is practicable to obtain. Practitioners should document why a supporting opinion could not be obtained; failure to do so may expose them to disputes about whether the emergency exception applied.

5. Withdrawal/withholding included as “administration” and no consent required (s 4A; s 4B)

• Gotcha: The Act counts withdrawal and withholding as “administration” of medical treatment (s 4A) but also states nothing in the Act requires a person’s consent before withdrawal or withholding (s 4B). The combined effect means that in some circumstances treatment may lawfully be withdrawn or withheld without patient consent. This can create tension with family expectations and requires good documentation and careful explanation under s 15. Practitioners should not assume consent is always required to discontinue treatment; the legal basis for withdrawal, especially in terminal cases (s 17(2)), should be recorded.

6. Palliative care and the “incidental hastening” formulation (s 17(1))

• Gotcha: Section 17 protects practitioners who intend to relieve pain or distress even if death is incidentally hastened. The protection turns on the practitioner’s intention, good faith, non‑negligence and conformity with palliative standards (s 17(1)). Documentation of the intended clinical purpose and adherence to standards is essential because the protection requires those conditions to be satisfied.

7. Tribunal notice and urgency (s 18I)

• Gotcha: The Tribunal must give reasonable notice but may act urgently without notice for up to 21 days (s 18I(2)(b)). Parties should not assume that Tribunal proceedings will always provide full pre‑hearing notice; urgent orders can be made. Practitioners and family members must therefore be prepared for ex‑parte or urgent Tribunal directions.

8. Mediation confidentiality and evidentiary limits (s 18C(6))

• Gotcha: Evidence of anything said or done in mediation is inadmissible in later proceedings except by consent (s 18C(6)). Parties seeking to preserve certain factual admissions for later use should not rely on mediation statements alone; they need independent evidence because mediation communications will typically be inadmissible.

9. Who qualifies as “close and continuing relationship” and practitioner presumptions (s 4(4)-(5))

• Gotcha: The Act entitles a practitioner to presume someone purporting to be in a close and continuing relationship or to hold a familial relationship is such unless the practitioner knew or ought reasonably to have known otherwise (s 4(4)-(5)). This presumption eases verification for practitioners but can lead to disputes if later evidence shows the relationship was not what it was represented to be. Practitioners should note the “ought reasonably to have known” standard and keep contemporaneous notes of how the relationship was assessed.

10. Costs and fees for mediation (s 18C(3)(c))

• Gotcha: Applications to the Public Advocate for mediation must be accompanied by the prescribed fee (s 18C(3)(c)). Parties assuming mediation before the Public Advocate is cost‑free may face unexpected costs; the regulations may also set other fees.

11. Interaction with Voluntary Assisted Dying Act (s 4C)

• Gotcha: The Act does not apply to medical treatment that is or given in the course of administering a voluntary assisted dying substance under the Voluntary Assisted Dying Act 2021 (s 4C). Practitioners must therefore be clear which statutory regime applies to a given situation and not conflate the consent or substitution rules of this Act with the VAD regime.

12. Limits on internal review and publication (s 18H(a))

• Gotcha: A Tribunal decision not to authorise publication of proceedings may not be internally reviewed (s 18H(a)). Parties seeking publication may face a final administrative bar at the Tribunal stage.

These “gotchas” are procedural and evidential risks that arise directly from the Act’s wording. They point to documentation, verification and timing as recurrent sources of dispute. Addressing them requires procedural discipline: contemporaneous notes, written supporting opinions where feasible, verified searches for directives and substitute decision‑makers, and timely use of the Public Advocate or Tribunal where disagreements are intractable.

Compliance under the Act requires practices that align clinical decision‑making with statutory requirements, documentation to demonstrate good faith and adherence to professional standards, proactive checks for advance care directives and persons responsible, and familiarity with dispute resolution routes. The following practical checklist and procedural steps are grounded in the Act’s text.

1. Check patient age and competence

• For any patient aged 16 or over, treat them as legally competent to consent to treatment unless there is reason to believe otherwise (s 6; s 4(2)-(3)). For patients under 16, follow s 12: seek parental/guardian consent or, if the child consents, obtain the treating practitioner’s opinion and a second written supporting opinion that the child understands the treatment and that it is in the child’s best interests (s 12).

2. Before administering treatment, ascertain and record capacity

• Use the Act’s functional capacity test (s 4(2)): document whether the patient can understand, retain, use and communicate information relevant to the decision. Note any fluctuation of capacity (s 4(3)(c)). Record reasons if capacity determinations are not straightforward.

3. Search for advance care directives and substitute decision‑makers

• For patients aged 18 or more, make reasonable inquiries to ascertain if the patient has an advance care directive and whether a substitute decision‑maker is appointed (s 13(1)(d); s 13(3)). If a directive and substitute exist and the substitute is available and authorised, do not administer treatment without that substitute’s consent (s 13(3)). Record the inquiries made and any sources checked.

4. In emergency situations, follow s 13 formalities and document exceptions

• If the patient is incapable and you consider treatment necessary for imminent risk to life or health, where practicable obtain a written supporting opinion from another medical practitioner who has personally examined the patient (s 13(1)(b)). If it is not practicable to obtain a supporting opinion or to make inquiries about directives, record why it was not reasonably practicable (s 13(2), (2a)). If relying on the emergency override to an advance care directive (s 13(1a)), document the practitioner’s reasonable belief that the directive’s refusal does not apply to the treatment or the circumstances, and explain why referral under the Advance Care Directives Act was not reasonably practicable.

5. Identify the person responsible when capacity is impaired (Pt 2A, s 14)

• Ascertain the person responsible per the statutory hierarchy (guardian, prescribed relative with close and continuing relationship, adult friend with close and continuing relationship, person charged with daily supervision, or Tribunal appointment) (s 14(1)). Document each step and the availability and willingness of each candidate in the hierarchy. If the practitioner is presented with someone purporting to be a person responsible, verify and record basis for presumption under s 4(4)-(5).

6. When consent is given by a person responsible, document substituted‑decision rationale (s 14B, s 14C)

• Record the consent and show, as far as reasonably practicable, how the substitute decision reflects the patient’s own likely decision (s 14C). Use existing advance statements or past expressed wishes to inform substituted decisions (s 14C note referencing Advance Care Directives Act). Keep written records of inquiries and the substituted decision process.

7. Duty to explain,document informed discussion (s 15)

• Comply with s 15 by explaining the nature, consequences and risks, likely consequences of not undertaking treatment, and reasonable alternatives. Record that the explanation was given, who it was given to (patient or representative), and any materials provided. The statutory standard is “so far as may be practicable and reasonable in the circumstances,” so record constraints if explanation could not be fully delivered.

8. For palliative care and life‑sustaining decisions, document clinical rationale and standards (s 17)

• Where pain relief or palliative measures are given and there is a risk of incidental hastening of death, document the clinical intention (relief of pain/distress), the patient/representative consent (if given), adherence to palliative standards and steps taken to avoid negligence (s 17(1)). If withdrawing life‑sustaining measures, document why continuation would merely prolong life in a moribund state without prospect of recovery (s 17(2)(a)), and obtain directions where a patient or representative requests withdrawal (s 17(2)(b)).

9. Use the Public Advocate and Tribunal early for disputes (Pt 3A)

• If disagreements occur, consider initiating mediation with the Public Advocate (s 18C). Note that the Public Advocate may require a written independent medical report and a prescribed fee (s 18C(3)-(4)). If mediation is inappropriate or unsuccessful, apply to the Tribunal for review, declaration or directions under s 18E. Keep in mind mediation communications are inadmissible in later proceedings except by consent (s 18C(6)).

10. Be mindful of deadlines and appeal procedures (s 18H)

• If you are a party to a Tribunal decision and wish to appeal, the appeal under s 71 of the SACAT Act must be instituted within 14 days of the decision or being furnished with reasons (s 18H(e)). Internal review rights are specified in s 18H(b). Preserve rights by timely requesting reasons under s 18J.

11. Avoid acting on assumed authority,verify persons responsible and consent

• Because s 14D criminalises knowingly or recklessly pretending to be the person responsible, verify authority where possible. If uncertainty exists, seek Tribunal direction or involve the Public Advocate rather than acting on shaky authority.

12. Preserve evidence of good faith and professional standards to rely on s 16 protections

• Keep contemporaneous records demonstrating good faith, non‑negligence, and adherence to professional standards for decisions made without consent but under statutory authority. These records are the primary means of invoking the Act’s civil and criminal immunities (s 16).

13. Be aware of regulatory fees and documentation requirements

• Mediation requires a prescribed fee (s 18C(3)(c)). Regulations under s 19 may further detail forms, classes of persons who can consent to certain treatments, and other administrative details; check the regulations for prescribed forms and fees.

14. In urgent Tribunal matters, be prepared for limited notice (s 18I(2)(b))

• If urgent Tribunal orders are likely, act promptly to seek representation and prepare evidence since the Tribunal may make short‑term urgent orders without full notice for up to 21 days.

15. Keep updated on statutory changes and cross‑legislation (s 4C and legislative history)

• Note that voluntary assisted dying is excluded from this Act (s 4C). Also ensure alignment with the Advance Care Directives Act 2013 and the SACAT Act. The Act has been amended multiple times; ensure reliance on current consolidated provisions.

Following these steps aligns practice with the Act’s requirements. The recurring compliance themes are timely and documented inquiries about directives and persons responsible, obtaining and recording supporting medical opinions in emergencies, careful documentation of explanations and clinical intentions, early use of the Public Advocate or Tribunal for conflicts, and preservation of evidence to invoke statutory protections.