South Australian Current Acts

CONSENT TO MEDICAL TREATMENT AND PALLIATIVE CARE ACT 1995 - NOTES

Legislative history

Notes

• Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.

• Earlier versions of this Act (historical versions) are listed at the end of the legislative history.

• For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au.

Legislation repealed by principal Act

The Consent to Medical Treatment and Palliative Care Act 1995 repealed the following:

Consent to Medical and Dental Treatment Act 1985

Natural Death Act 1983

Legislation amended by principal Act

The Consent to Medical Treatment and Palliative Care Act 1995 amended the following:

Guardianship and Administration Act 1993

Mental Health Act 1993

Principal Act and amendments

New entries appear in bold.

Year	No	Title	Assent	Commencement
1995	26	Consent to Medical Treatment and Palliative Care Act 1995	27.4.1995	30.11.1995 (Gazette 30.11.1995 p1500) except s 14—30.5.1996: s 2(3)
2004	12	Consent to Medical Treatment and Palliative Care (Prescribed Forms) Amendment Act 2004	13.5.2004	1.7.2004 (Gazette 3.6.2004 p1716)
2010	5	Health Practitioner Regulation National Law (South Australia) Act 2010	1.7.2010	Sch 1 (cl 5)—1.7.2010 (Gazette 1.7.2010 p3338)
2013	12	Advance Care Directives Act 2013	18.4.2013	Sch 1 (cll 2—13, 32—34, 36 & 37)—1.7.2014 (Gazette 6.2.2014 p546)
2014	26	Statutes Amendment (SACAT) Act 2014	11.12.2014	Pt 5 (ss 30—43)—29.3.2015 (Gazette 5.3.2015 p883)
2021	29	Voluntary Assisted Dying Act 2021	1.7.2021	Sch 1 (cl 5)—31.1.2023 (Gazette 11.8.2022 p2489)

Provisions amended

New entries appear in bold.

Entries that relate to provisions that have been deleted appear in italics.

Provision	How varied	Commencement
Long title	amended under Legislation Revision and Publication Act 2002	1.7.2004
Pt 1
s 2	omitted under Legislation Revision and Publication Act 2002	1.7.2004
s 3	(a)(ii) deleted by 12/2013 Sch 1 cl  2(1)	1.7.2014
	amended by 12/2013 Sch 1 cl 2(2)	1.7.2014
s 4
s 4(1)	s 4 redesignated as s 4(1) by 12/2013 Sch 1 cl 3(9)	1.7.2014
anticipatory direction	deleted by 12/2013 Sch 1 cl 3(1)	1.7.2014
advance care directive	inserted by 12/2013 Sch 1 cl 3(1)	1.7.2014
authorised witness	deleted by 12/2013 Sch 1 cl 3(2)	1.7.2014
available	deleted by 12/2013 Sch 1 cl 3(3)	1.7.2014
decision	inserted by 26/2014 s 30(1)	29.3.2015
dentist	substituted by 12/2004 s 4	1.7.2004
	substituted by 5/2010 Sch 1 cl 5(1)	1.7.2010
Guardianship Board	inserted by 12/2013 Sch 1 cl 3(4)	1.7.2014
	deleted by 26/2014 s 30(2)	29.3.2015
impaired decision-making capacity	inserted by 12/2013 Sch 1 cl 3(4)	1.7.2014
internal review	inserted by 26/2014 s 30(3)	29.3.2015
medical agent	deleted by 12/2013 Sch 1 cl 3(5)	1.7.2014
medical practitioner	substituted by 5/2010 Sch 1 cl 5(2)	1.7.2010
medical treatment	substituted by 12/2013 Sch 1 cl 3(6)	1.7.2014
parent	substituted by 12/2013 Sch 1 cl 3(7)	1.7.2014
persistent vegetative state	inserted by 12/2013 Sch 1 cl 3(7)	1.7.2014
Public Advocate	inserted by 12/2013 Sch 1 cl 3(7)	1.7.2014
	substituted by 26/2014 s 30(4)	29.3.2015
representative	substituted by 12/2013 Sch 1 cl 3(8)	1.7.2014
substitute decision-maker	inserted by 12/2013 Sch 1 cl 3(8)	1.7.2014
Tribunal	inserted by 26/2014 s 30(5)	29.3.2015
s 4(2)—(5)	inserted by 12/2013 Sch 1 cl 3(9)	1.7.2014
ss 4A and 4B	inserted by 12/2013 Sch 1 cl 4	1.7.2014
s 4C	inserted by 29/2021 Sch 1 cl 5	31.1.2023
s 5	deleted by 12/2013 Sch 1 cl 5	1.7.2014
Pt 2
heading	amended by 12/2013 Sch 1 cl 6	1.7.2014
Pt 2 Div 2 before deletion by 12/2013
s 7
s 7(2)	amended by 12/2004 s 5	1.7.2004
Pt 2 Div 2	deleted by 12/2013 Sch 1 cl 7	1.7.2014
Pt 2 Div 3 before deletion by 12/2013
s 8
s 8(2)	amended by 12/2004 s 6	1.7.2004
Pt 2 Div 3	deleted by 12/2013 Sch 1 cl 7	1.7.2014
Pt 2 Div 5
s 13
s 13(1)	amended by 12/2013 Sch 1 cl 8(1)—(3)	1.7.2014
s 13(1a)	inserted by 12/2013 Sch 1 cl 8(4)	1.7.2014
s 13(2)	amended by 12/2013 Sch 1 cl 8(5)	1.7.2014
s 13(2a)	inserted by 12/2013 Sch 1 cl 8(6)	1.7.2014
s 13(3)	substituted by 12/2013 Sch 1 cl 8(7)	1.7.2014
s 13(4)	amended by 12/2013 Sch 1 cl 8(8)	1.7.2014
s 13(4a)	inserted by 12/2013 Sch 1 cl 8(9)	1.7.2014
Pt 2 Div 6	deleted by 12/2013 Sch 1 cl 9	1.7.2014
Pt 2A	inserted by 12/2013 Sch 1 cl 10	1.7.2014
s 14
s 14(1)
person responsible	amended by 26/2014 s 31(1), (2)	29.3.2015
Pt 3
s 17
s 17(2)	substituted by 12/2013 Sch 1 cl 11	1.7.2014
Pt 3A	inserted by 12/2013 Sch 1 cl 12	1.7.2014
heading	substituted by 26/2014 s 32	29.3.2015
Pt 3A Div 1
s 18A
eligible person	amended by 26/2014 s 33	29.3.2015
Pt 3A Div 2
s 18C
s 18C(5)	amended by 26/2014 s 34(1)	29.3.2015
s 18C(8)	amended by 26/2014 s 34(1), (2)	29.3.2015
s 18D
s 18D(1)	amended by 26/2014 s 35	29.3.2015
s 18DA	inserted by 26/2014 s 36	29.3.2015
Pt 3A Div 3
heading	substituted by 26/2014 s 37	29.3.2015
s 18E
s 18E(1)	amended by 26/2014 s 38(1)	29.3.2015
s 18E(2) and (3)	deleted by 26/2014 s 38(2)	29.3.2015
s 18E(4) and (5)	amended by 26/2014 s 38(1)	29.3.2015
s 18E(7)	substituted by 26/2014 s 38(3)	29.3.2015
s 18E(8)	amended by 26/2014 s 38(1)	29.3.2015
s 18E(10)	substituted by 26/2014 s 38(4)	29.3.2015
s 18F
s 18F(1)	amended by 26/2014 s 39	29.3.2015
s 18G
s 18G(1)	amended by 26/2014 s 40	29.3.2015
Pt 3A Div 4	substituted by 26/2014 s 41	29.3.2015
Pt 3B	inserted by 26/2014 s 42	29.3.2015
Pt 4
s 19	substituted by 12/2013 Sch 1 cl 13	1.7.2014
Schs 1 and 2	deleted by 12/2004 s 7	1.7.2004
Sch 3
cll 2, 3 and 4	omitted under Legislation Revision and Publication Act 2002	1.7.2004

Transitional etc provisions associated with Act or amendments

Advance Care Directives Act 2013, Sch 1 Pt 8—Transitional provisions

32—Transitional provisions relating to anticipatory directions under Consent to Medical Treatment and Palliative Care Act 1995

(1) A direction given by a person under section 7 of the Consent to Medical Treatment and Palliative Care Act 1995 that is in force immediately before the commencement of clause 7 of this Schedule will, on the commencement of that clause, be taken to be an advance care directive given in accordance with this Act.

Note—

See also clause 36.

(2) A provision of such a direction of a kind contemplated by section 6 or 12(1) of this Act will be taken to be void and of no effect.

(3) An advance care directive contemplated by this clause—

(a) will be taken to have been given by the person who gave the direction; and

(b) will be taken to contain such provisions as may be necessary to give effect to the direction (but no other provision); and

(c) will be taken to contain a provision limiting the circumstances in which the advance care directive has effect to the circumstances contemplated by section 7(1) of the Consent to Medical Treatment and Palliative Care Act 1995 (as in force immediately before the commencement of clause 7 of this Schedule).

Note—

Those circumstances are limited to where the person is in the terminal phase of a terminal illness, or in a persistent vegetative state, and is incapable of making decisions about medical treatment when the question of administering the treatment arises.

(4) Any relevant condition or limitation contained in the direction will be taken to apply to an advance care directive contemplated by this section.

(5) The prescribed form by which the direction under section 7 of the Consent to Medical Treatment and Palliative Care Act 1995 was given will, for all purposes, be taken to be an advance care directive form.

(6) A reference in any instrument or document to a direction under section 7 of the Consent to Medical Treatment and Palliative Care Act 1995 (however described) will be taken to be a reference to the advance care directive contemplated by this clause.

33—Transitional provisions relating to medical agents under Consent to Medical Treatment and Palliative Care Act 1995

(1) A medical power of attorney appointing an agent under section 8 of the Consent to Medical Treatment and Palliative Care Act 1995 that is in force immediately before the commencement of clause 7 of this Schedule will, on the commencement of that clause, be taken to be an advance care directive given in accordance with this Act.

Note—

See also clause 36.

(2) A provision of such a medical power of attorney of a kind contemplated by section 6 or 12(1) of this Act will be taken to be void and of no effect.

(3) An advance care directive contemplated by this clause—

(a) will be taken to have been given by the person who gave the medical power of attorney; and

(b) will be taken to appoint each agent appointed by the medical power of attorney as a substitute decision-maker under the advance care directive; and

(c) will be taken to contain such provisions as may be necessary to enable each substitute decision-maker to make any decision he or she could have made as the person's agent (but no other provision).

(4) Any relevant condition or limitation contained in the medical power of attorney will be taken to apply to an advance care directive contemplated by this section.

(5) The prescribed form by which the medical power of attorney was given will, for all purposes, be taken to be an advance care directive form.

(6) A reference in any instrument or document to a medical power of attorney or agent under section 8 of the Consent to Medical Treatment and Palliative Care Act 1995 (however described) will be taken to be a reference to the advance care directive or substitute decision-maker contemplated by this clause (as the case requires).

34—Transitional provisions relating to other instruments continued under Consent to Medical Treatment and Palliative Care Act 1995

(1) A direction or enduring power of attorney continued in force pursuant to Schedule 3 of the Consent to Medical Treatment and Palliative Care Act 1995 and that is in force immediately before the commencement of this clause will, on the commencement of Part 2 of this Schedule, be taken to be an advance care directive given in accordance with this Act.

Note—

See also clause 36.

(2) A provision of such a direction or enduring power of attorney of a kind contemplated by section 6 or 12(1) of this Act will be taken to be void and of no effect.

(3) An advance care directive contemplated by this clause—

(a) will be taken to have been given by the person who gave the direction or enduring power of attorney (as the case requires); and

(b) in the case of an advance care directive related to a direction—will be taken to contain such provisions as may be necessary to give effect to the direction (but no other provision); and

(c) in the case of an advance care directive related to an enduring power of attorney—will be taken to appoint each agent appointed by the enduring power of attorney as a substitute decision-maker under the advance care directive; and

(d) will be taken to contain such provisions as may be necessary to enable each substitute decision-maker to make any decision he or she could have made as the person's agent under the enduring power of attorney (but no other provision).

(4) Any condition or limitation contained in the direction or enduring power of attorney (as the case requires) will be taken to apply to an advance care directive contemplated by this section.

(5) Any instrument by which the direction or enduring power of attorney was given will, for all purposes, be taken to be an advance care directive form.

(6) A reference in any instrument or document to a direction or enduring power of attorney to which this clause relates (however described) will be taken to be a reference to the advance care directive contemplated by this clause.

36—Only 1 advance care directive to be created

(1) If 2 or more of clauses 32, 33, 34 or 35 apply in respect of a particular person, the person will, for the purposes of this or any other Act, be taken to have given 1 advance care directive containing, or subject to, the relevant provisions (in addition to any other applicable provisions under this Act).

(2) In this clause—

relevant provisions means—

(a) if clause 32 applies in respect of the person—clause 32(2), (3) and (4); and

(b) if clause 33 applies in respect of the person—clause 33(2), (3) and (4); and

(c) if clause 34 applies in respect of the person—clause 34(2), (3) and (4); and

(d) if clause 35 applies in respect of the person—clause 35(2), (3) and (4).

37—Disputes

A dispute arising out of the operation of this Schedule will be taken to be a matter to which Part 7 of this Act applies.

Statutes Amendment (SACAT) Act 2014

43—Transitional provisions

(1) In this section—

Guardianship Board means the Guardianship Board established under the Guardianship and Administration Act 1993;

principal Act means the Consent to Medical Treatment and Palliative Care Act 1995;

relevant day means the day on which this Part comes into operation;

Tribunal means the South Australian Civil and Administrative Tribunal.

(2) A right to make any application or referral, or to seek a review, under the principal Act with respect to any matter in existence before the relevant day, with the effect that the relevant proceedings would have been commenced before the Guardianship Board, will be exercised as if this Part had been in operation before the right arose, so that the relevant proceedings may be commenced instead before the Tribunal.

(3) Any proceedings before the Guardianship Board under the principal Act immediately before the relevant day will, subject to such directions as the President of the Tribunal thinks fit, be transferred to the Tribunal where they may proceed as if they had been commenced before the Tribunal.

(4) The Tribunal may—

(a) receive in evidence any transcript of evidence in proceedings before the Guardianship Board, and draw any conclusions of fact from that evidence that appear proper; and

(b) adopt any findings or determinations of the Guardianship Board that may be relevant to proceedings before the Tribunal; and

(c) adopt or make any decision (including a decision in the nature of a declaration), direction or order in relation to proceedings before the Guardianship Board before the relevant day (including so as to make a decision or declaration, or a direction or order, in relation to proceedings fully heard before the relevant day); and

(d) take other steps to promote or ensure the smoothest possible transition from 1 jurisdiction to another in connection with the operation of this section.

(5) Nothing in this section affects a right to appeal to the Administrative and Disciplinary Division of the District Court against a decision, direction or order of the Guardianship Board made or given before the relevant day.

Historical versions

1.7.2004
1.7.2010
1.7.2014
29.3.2015