Consent to Medical Treatment and Palliative Care Regulations 2014

The regulations introduce and elaborate several core concepts. “Health practitioner” is defined in the Act, but regulation 4 declares that the professions of ambulance service provision and paramedic are included within that definition for the purposes of section 14(1) of the Act. This is significant because the Act’s consent requirements and the role of the “person responsible” apply when a health practitioner proposes to administer medical treatment. “Person responsible” is defined in section 14(1) of the Act, and regulation 5 deals specifically with the giving of consent by such a person. It distinguishes between different categories of person responsible: paragraph (d) of the Act’s definition is singled out for a special prohibition on consenting to chemical restraint. Chemical restraint is defined in a note to regulation 5 as the administration of drugs (whether sedating or otherwise) principally for the purpose of controlling the patient’s behaviour. The regulations do not define the term further but rely on common usage.

“Mediation” is central to the dispute resolution scheme. Regulation 6 empowers the Public Advocate to delegate mediation functions under section 18C of the Act only to a person with suitable qualifications and expertise in mediation, and such a mediator has the same privileges and immunities as a member of SACAT under the South Australian Civil and Administrative Tribunal Act 2013. This ensures a level of professionalism and legal protection for mediators. “Referral” is the mechanism by which a dispute moves between the Public Advocate and SACAT. Regulation 7 prescribes detailed procedures: the Public Advocate must refer a matter to SACAT within seven business days of ending a mediation or refusing to determine an application, providing written reasons, a summary of the dispute, contact details, and all relevant information. Similarly, if SACAT decides to refer a matter to the Public Advocate, it must act within seven business days and provide the same information. Critically, SACAT cannot refer a matter to the Public Advocate if that matter has already been the subject of mediation under section 18C of the Act - preventing repeated mediation attempts.

“Fees” are set at nil for applications under section 18C (mediation applications), as shown in Schedule 1. This removes a cost barrier for accessing dispute resolution. The concept of a “scheme determined by the Minister and published in the Gazette” appears in regulation 5(a): the Minister may from time to time set a scheme for record-keeping by persons responsible. This scheme is not reproduced in the regulations, so those giving consent must check the Gazette for current requirements. Overall, the regulations create a set of interlocking concepts that flesh out the Act’s consent and dispute resolution machinery.

The regulations affect several distinct groups. Health practitioners within the expanded definition - including ambulance officers, paramedics, and SAAS staff - are directly affected because they must operate within the Act’s consent framework when providing medical treatment. They rely on valid consent from a person responsible where the patient cannot consent, and the regulations clarify who can give that consent and what limitations apply. Persons responsible for a patient are the most directly affected group. Any person who falls within the Act’s definition of “person responsible” (which includes relatives, carers, and guardians) must comply with regulation 5. This means they must make and keep records of their consent decisions according to any ministerial scheme, and those falling under paragraph (d) of the definition cannot consent to chemical restraint. This prohibition has practical implications for family members or informal carers who might otherwise authorise sedating medication for behaviour management.

Patients themselves are indirectly affected because the regulations shape who can consent on their behalf and under what conditions. The prohibition on chemical restraint by certain persons responsible may protect vulnerable patients from non-therapeutic behaviour control. The dispute resolution provisions affect parties to a dispute about medical treatment or palliative care - typically the patient’s family, health practitioners, or the Public Advocate. Application fees are nil, so access to mediation is open. The Public Advocate is directly affected by regulation 6: when delegating mediation functions under section 18C, the Public Advocate must be satisfied of the delegate’s qualifications and expertise, despite the general delegation power in section 23 of the Guardianship and Administration Act 1993. This imposes a higher standard for delegation in this context. The South Australian Civil and Administrative Tribunal (SACAT) is affected by regulation 7, which imposes strict timelines for referrals (seven business days) and prohibits referring a matter to the Public Advocate if it has already been mediated. SACAT members also grant immunity to mediators in certain circumstances under regulation 6(2). Finally, the Minister is affected indirectly by the power to determine a record-keeping scheme under regulation 5(a), which must be published in the Gazette.

The regulations impose several positive duties and create corresponding rights. The primary duty is on a person responsible for a patient: under regulation 5(a), they must make and keep records relating to the giving of consent as required under a scheme determined by the Minister and published in the Gazette. This duty is ongoing - records must be kept for an unspecified period. Although the regulations do not prescribe the content of the records (that is left to the ministerial scheme), the duty ensures traceability and accountability. A failure to keep such records could affect the validity of consent or expose the person responsible to scrutiny. Regulation 5(b) imposes a prohibition: a person responsible under paragraph (d) of the Act’s definition cannot consent to medical treatment consisting of the administration of drugs principally for the purpose of controlling the patient’s behaviour (chemical restraint). This creates a duty not to consent and, by extension, a duty on health practitioners to verify that the person responsible is not from that prohibited category before relying on their consent for such treatment.

The Public Advocate has a duty under regulation 6(1): when delegating a function or power under section 18C of the Act relating to mediation, the Public Advocate must be satisfied that the delegate has suitable qualifications and expertise in mediation. This limits the Public Advocate’s otherwise broad delegation power under the Guardianship and Administration Act 1993. Additionally, the Public Advocate has a duty under regulation 7(1) when referring a matter to SACAT: must refer within seven business days of ending a mediation or refusing an application, and must provide written reasons, a summary of the dispute, contact details, all relevant information, and (if applicable) the mediator’s name. These duties are designed to ensure timely and transparent referrals.

Rights include the right of a person responsible to give consent (subject to the chemical restraint limitation) and the right of parties to a dispute to have their matter mediated by the Public Advocate or determined by SACAT. Regulation 6(2) grants a mediator under a delegation from the Public Advocate the same privileges and immunities as a SACAT member under the South Australian Civil and Administrative Tribunal Act 2013, protecting them from civil liability for acts done in the course of mediation. Parties also have the right to have a matter referred to SACAT or the Public Advocate, subject to the prohibition on re-mediation. The nil fee for applications under section 18C means there is no financial barrier to exercising the right to seek dispute resolution.

The regulations themselves do not create specific penalty provisions or enforcement mechanisms; any penalties would arise from the Act or from other legislation such as the Guardianship and Administration Act 1993 or criminal law. However, the regulations establish duties and prohibitions whose breach could have indirect consequences. For example, if a person responsible gives consent to chemical restraint in contravention of regulation 5(b), that consent could be invalid, exposing health practitioners to liability for treating without valid consent. The Act (section 14B and related provisions) likely provides that treatment without proper consent may constitute an assault or trespass. Similarly, if a person responsible fails to keep records as required by a ministerial scheme, the validity of their consent might be called into question, and the health practitioner might be unable to demonstrate that proper consent was obtained.

The enforcement of the Public Advocate’s duty under regulation 6(1) to delegate only to qualified mediators is enforceable through administrative law - a delegate’s lack of qualifications could render the mediation invalid, potentially forcing the dispute to start again. The strict timelines in regulation 7 for referrals (seven business days) are not accompanied by a stated penalty for non-compliance, but a failure to refer within time could lead to a legal challenge or delay, and the Tribunal or a court might deem the referral void or require an explanation. The nil fee in Schedule 1 means that there is no financial deterrent to making an application under section 18C, but it also means there is no revenue incentive for the Public Advocate to process applications quickly.

Ultimately, the regulations are procedural rather than penal. Enforcement relies on the underlying Act, the common law of consent, and the oversight of SACAT. The legislative history does not indicate any amendments that introduced penalties. Practitioners should note that compliance with the regulations is not optional - a health practitioner who relies on consent that does not meet the regulatory requirements may face civil or professional consequences.

The regulations interact explicitly with several South Australian statutes. First and foremost, they are made under and for the purposes of the Consent to Medical Treatment and Palliative Care Act 1995. The regulations reference specific sections of the Act: the definition of health practitioner in section 14(1) (reg 4), the consent of person responsible in section 14B(2) (reg 5), mediation under section 18C (reg 6), referral by the Public Advocate under section 18D (reg 7(1)), and referral by the Tribunal under section 18F (reg 7(2) and (3)). By prescribing additional professions and practices as health practitioners, regulation 4 expands the Act’s scope to include ambulance and paramedic services. Regulation 5 imposes conditions on the Act’s consent framework, restricting the type of consent a person responsible under paragraph (d) can give - effectively adding a substantive limitation not fully expressed in the Act.

The regulations also interact with the Health Care Act 2008. Regulation 4(2) adopts the meanings of “ambulance service”, “medical treatment”, and “SAAS” from the Health Care Act 2008. This ensures consistency in terminology across the two statutes, so that what counts as an ambulance service under the Health Care Act also counts as a health profession for consent purposes. The Guardianship and Administration Act 1993 is explicitly mentioned in regulation 6(1): the Public Advocate’s power to delegate mediation functions operates “despite section 23” of that Act. Section 23 ordinarily allows delegation generally, but regulation 6(1) imposes a qualification requirement - the delegate must have suitable qualifications and expertise in mediation. This overrides the usual delegation rules for the specific context of medical treatment disputes.

The South Australian Civil and Administrative Tribunal Act 2013 is relevant through regulation 6(2), which grants mediators the same privileges and immunities as a member of the Tribunal under that Act. This incorporates the Tribunal’s statutory protections into the mediation process, shielding mediators from personal liability. Regulation 7 refers to “the Tribunal” which, in context, means SACAT, the body that handles matters under the Act. The referral provisions ensure seamless interaction between the Public Advocate (a statutory office) and SACAT, avoiding jurisdictional gaps.

Additionally, the regulations implicitly interact with the common law of consent and the principle of informed consent. The chemical restraint prohibition in regulation 5(b) reflects policy concerns about restraint practices, which may also be regulated under other legislation such as the Mental Health Act 2009 or the Aged Care Act 1997 (Commonwealth). The record-keeping duty under regulation 5(a) may intersect with privacy and health records legislation such as the Health Records Act 2001 (SA) or the Privacy Act 1988 (Cth) if applicable. These interactions are not detailed in the source but are relevant for compliance.

The Consent to Medical Treatment and Palliative Care Regulations 2014 were made on 12 June 2014 (Gazette 12.6.2014 p2498) and commenced on 1 July 2014. They revoked the earlier Consent to Medical Treatment and Palliative Care Regulations 2004. The legislative history table shows several amendments. Regulation 2 (the commencement provision) was omitted by 2015 variation 17 under the Legislation Revision and Publication Act 2002, effective 29 March 2015. Regulation 4, which lists health practitioners, was originally varied by variation 51 of 2015 (Gazette 28.5.2015 p2301) effective 28 May 2015 - this expanded the definition to include paramedics (the original reg 4(1) had only referenced ambulance services). The variation to reg 4(1) added paragraph (b) for paramedic. Regulation 6, dealing with dispute resolution by the Public Advocate, had its subregulation (2) varied by variation 17 of 2015 (Gazette 5.3.2015 p889) effective 29 March 2015. This change likely altered the scope of privileges and immunities for mediators, aligning them with the then-new SACAT Act. Regulation 7 was wholly substituted by variation 17 of 2015 (Gazette 5.3.2015 p889, effective 29 March 2015). The substitution replaced the original referral provisions with a more detailed regime, including the seven-business-day timelines, the information requirements, and the prohibition on re-referring a mediated matter. Subsequently, regulation 7(1) was varied by variation 47 of 2015 (Gazette 14.5.2015 p1763, effective 14 May 2015) - this seems to have added the requirement to provide the mediator’s name if the matter was mediated by a delegate. Schedule 1 (Fees) was substituted by variation 17 of 2015, effective 29 March 2015, setting the fee for applications under section 18C at nil. Schedule 2 (which existed in the original regulations) was omitted under the Legislation Revision and Publication Act 2002, effective 29 March 2015. These amendments reflect a fine-tuning of the dispute resolution machinery and the extension of the health practitioner definition to paramedics. The historical versions listed show versions current on 29 March 2015 and 14 May 2015, indicating that further amendments may have occurred after those dates but are not fully detailed in the source.

The regulations themselves do not cite any case law. No cases are named in the source text. However, the dispute resolution provisions - mediation under section 18C and referrals between the Public Advocate and SACAT under sections 18D and 18F - are designed to resolve disputes before they escalate to litigation. SACAT is a tribunal with jurisdiction under the Act, and its decisions may be appealed to the South Australian Supreme Court. While the regulations do not name any specific decisions, the procedural rules in regulation 7 (timelines, information requirements, prohibition on re-mediation) have likely been tested in practice. Practitioners should treat the regulations as procedural law that informs the SACAT process. The legislative history does not indicate any amendments prompted by court rulings. The source provides no further information about litigation history.

Several less obvious provisions could catch practitioners or persons responsible off-guard. First, the prohibition on consenting to chemical restraint in regulation 5(b) applies only to a person responsible under paragraph (d) of the definition in section 14(1) of the Act. The Act’s definition of “person responsible” includes (a) a guardian, (b) a relative, (c) a carer, (d) a person who has the care and control of the patient and is otherwise closely connected with the patient. It is paragraph (d) - the catch-all category for an unpaid, non-guardian carer - that is prohibited from consenting to chemical restraint. This may be easily overlooked: a health practitioner might assume that any person responsible can consent to sedating medication, but if that person is a neighbour or distant relative who has care and control, they cannot. The note in the regulations flags that chemical restraint is the administration of drugs principally for behaviour control, not for therapeutic purposes. Practitioners should verify the category of the person responsible before relying on their consent for any medication that might be perceived as behaviour control.

Second, the record-keeping obligation under regulation 5(a) is not self-contained: the requirement is to make and keep records “as may be required under a scheme determined from time to time by the Minister and published in the Gazette.” That scheme is not reproduced in the regulations, and it may be updated without notice. Persons responsible must therefore monitor the SA Government Gazette for the current scheme. Failing to keep records could undermine the validity of consent.

Third, the Public Advocate’s delegation power under regulation 6(1) is subject to a qualification condition: the delegate must have suitable qualifications and expertise in mediation. This overrides the general delegation power in section 23 of the Guardianship and Administration Act 1993. If the Public Advocate delegates to an unqualified person, the mediation may be invalid, wasting time and resources.

Fourth, the timeline for referrals is tight. Under regulation 7(1), the Public Advocate must refer a matter to SACAT within seven business days of ending a mediation or refusing an application. Under regulation 7(2), SACAT must refer to the Public Advocate within seven business days of making the decision to refer. Missing these deadlines could complicate the dispute resolution process.

Fifth, regulation 7(3) contains a critical bar: SACAT may not refer a matter to the Public Advocate if the matter has already been the subject of mediation under section 18C. This prevents the recycling of disputes between mediation and tribunal.

Sixth, the fee for applications under section 18C is nil (Schedule 1). While that seems beneficial, it may also encourage frivolous applications. However, the Public Advocate still has discretion to refuse to determine an application under section 18D, so not all applications must be mediated.

Seventh, the regulations apply only to consent for medical treatment and palliative care under the Act. They do not cover consent for other forms of treatment, such as mental health treatment under the Mental Health Act 2009, which has its own consent rules. Practitioners should not assume that these regulations govern all consent scenarios.

Compliance with the Consent to Medical Treatment and Palliative Care Regulations 2014 requires attention to several distinct obligations depending on one’s role. For a person responsible giving consent on behalf of a patient, the key step is to ascertain whether they fall within paragraph (d) of the Act’s definition of person responsible. If they do, they must never consent to medical treatment that involves administering drugs principally to control the patient’s behaviour. If they fall into another category (guardian, relative, carer), the chemical restraint prohibition does not apply, but they must still comply with the record-keeping requirement. This means checking the SA Government Gazette for any current ministerial scheme that specifies what records must be made and kept, and then creating and retaining those records. The records should document the decision-making process, the patient’s circumstances, and the consent given. There is no stated period for keeping records, but prudent practice would be to keep them for at least as long as the consent is relevant or until the patient’s death.

For health practitioners, compliance involves verifying that the person responsible is legally capable of giving consent for the specific treatment. If the treatment could be characterised as chemical restraint (drugs for behaviour control), the practitioner must confirm that the person responsible is not from paragraph (d) of the definition. This may require asking the person responsible about their relationship to the patient. Practitioners should also ensure that any consent they rely on is accompanied by the required records (if the ministerial scheme requires production). Where the person responsible cannot produce records, the practitioner may need to seek alternative consent (e.g., from a guardian or the Public Advocate).

For the Public Advocate, compliance with regulation 6(1) means that any delegation of mediation functions under section 18C must be made only after checking that the delegate has suitable qualifications and expertise in mediation. The Public Advocate cannot rely on the broader delegation power in the Guardianship and Administration Act. When the Public Advocate decides to refer a matter to SACAT under section 18D, the referral must be made within seven business days of ending the mediation or refusing the application, and must include written reasons, a summary of the dispute, contact details, all relevant information, and the mediator’s name if applicable.

For SACAT, compliance with regulation 7(2) requires acting within seven business days of deciding to refer a matter to the Public Advocate, and providing the same package of information. Importantly, SACAT must not refer a matter that has already been the subject of mediation under section 18C.

For any party involved in a dispute, the path is to apply for mediation under section 18C (free of charge) and, if that fails, the Public Advocate may refer the matter to SACAT. Parties should be prepared for the strict timelines and ensure that all information is provided promptly. The regulations do not prescribe a format for applications, but the nil fee reduces administrative barriers. Overall, compliance hinges on awareness of the specific limitations and procedural requirements, especially the chemical restraint prohibition and the interplay between mediation and tribunal referral.