South Australia – Anticipatory Grant or Refusal of Consent

Statutory Anticipatory Direction (Grant or Refusal of Consent)

The Consent to Medical Treatment and Palliative Care Act 1995 (SA) provides for a person to make an anticipatory grant or refusal of consent in an ‘Anticipatory Direction’.

This allows a person of ‘sound mind’ aged 18 years of over to give a direction about medical treatment that he or she wishes to consent to or refuse in the future in the event he or she is:

  • in the terminal phase of a terminal illness, or in a persistent vegetative state; and
  • incapable of making decisions about medical treatment when the question of administering the treatment arises.

The anticipatory direction only comes into effect at this point. It can be used alone or in conjunction with a medical power of attorney or enduring power of guardianship.

Requirements of a Valid Directive

In order for an Anticipatory Direction to be valid;

  • it must be made by a person 18 years or over of sound mind;
  • it must be in the form prescribed by regulation; and
  • it must also be witnessed by an ‘authorised witness’, such as a justice of the peace.

Legal Effect

If a person has a valid Anticipatory Direction, in the terminal phase of a terminal illness or in a persistent vegetative state and they are incapable of making decisions about their treatment, then treatment decisions must be made in accordance with the Direction, as long as there is no reason to suppose that the person has revoked, or intended to revoke, the direction.

Common Law Advance Health Directive

In South Australia, under the Consent to Medical Treatment and Palliative Care Act 1995 (SA) the common law is presumed to continue to apply in relation to advance health directives in the absence of an express legislative provision to the contrary.

An advance health directive may be valid at common law if all of the following conditions are satisfied:

1 Capacity: The adult must have had capacity at the time the advance health directive is made and is able to communicate the decision in some way.

2 Voluntariness: The directive must be made voluntarily without coercion or undue influence.

3 Specificity: The adult intended the refusal to apply to the specific situation that later arose.

There are no formal requirements at common law that that mean an advance health directive needs to be in writing and be witnessed, though these elements will be persuasive in suggesting that the directive has been made and meets the requirements.

Legislation and Regulations

Consent to Medical Treatment and Palliative Care Act 1995 (SA)

Consent to Medical Treatment and Palliative Care Regulations 2004 (SA)

Further Information including relevant forms:

Department of Health

Office of the Public Advocate

The Palliative Care Council of South Australia

Australian Medic Alert Foundation (For Registration of Medical Agents and Anticipatory Directions)
Level 1, 210 Greenhill Road, EASTWOOD SA 5063
Tel (08) 8273 8401 or Toll Free 1800 882 222