WHEN AN ADVANCE CARE DIRECTIVE CAN BE USED

While an advance care directive comes into force as soon as it is witnessed in accordance with the Advance Care Directives Act 2013 (SA) [s 16(1)], it may only be used by a substitute decision maker or health practitioner if the person who gave the advance care directive has impaired decision making capacity [s 34]. Note that the impaired capacity must relate to the particular decision that has to be made at the time [s 34].

If a person who has not been appointed as a substitute decision-maker under an advance care directive acts as if they have been so appointed, then they commit an offence [s 56(2)(b)]. The maximum penalty is imprisonment for 10 years.

Impaired decision-making capacity

A person is considered to have impaired decision-making capacity in respect of a particular decision if [ss 7(1)-(2)]:

the person is not capable of understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision);
however, a person will not be taken to be incapable of understanding information merely because the person is not able to understand matters of a technical or trivial nature
the person is not capable of retaining such information;
however, a person will not be taken to be incapable of retaining information merely because the person can only retain the information for a limited time
the person is not capable of using such information in the course of making the decision
the person is not capable of communicating his or her decision in any manner.
An advance care directive given by the person may set out when he or she is to be considered to have impaired decision-making capacity (however described) in relation to particular decisions [s 7(1)(b)].

Note that, under s 10, a person is presumed to have full decision-making capacity, must be allowed to make their own decisions to the extent that they are able, and may make decisions in collaboration with others.

Note further that a person may fluctuate between having impaired decision-making capacity and full decision-making capacity [s 7(2)(c)] and that a person’s decision-making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person [s 7(2)(d)].

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