South Australian Current Acts

CONSENT TO MEDICAL TREATMENT AND PALLIATIVE CARE ACT 1995 - SECT 13

13—Emergency medical treatment

        (1)         Subject to this section, a medical practitioner may lawfully administer medical treatment to a person (the "patient") if—

            (a)         the patient is incapable of consenting (whether or not the person has impaired decision-making capacity in respect of a particular decision); and

            (b)         the medical practitioner who administers the treatment is of the opinion that the treatment is necessary to meet an imminent risk to life or health and that opinion is supported by the written opinion of another medical practitioner who has personally examined the patient; and

            (c)         the patient (if of or over 16 years of age) has not, to the best of the medical practitioner's knowledge, refused to consent to the treatment; and

            (d)         the medical practitioner proposing to administer the treatment has made, or has caused to be made, reasonable inquiries to ascertain whether the patient (if the patient is 18 or more years of age) has given an advance care directive.

        (1a)         Subject to this section, a medical practitioner may lawfully administer medical treatment to a person (the "patient") despite a provision of an advance care directive given by the patient comprising a refusal of medical treatment if—

            (a)         the patient is incapable of consenting (whether or not the patient has impaired decision-making capacity in respect of a particular decision); and

            (b)         the medical practitioner who administers the treatment is of the opinion that the treatment is necessary to meet an imminent risk to life or health and that opinion is supported by the written opinion of another medical practitioner who has personally examined the patient; and

            (c)         the medical practitioner who administers the treatment reasonably believes that the provision of the advance care directive is not intended to apply—

                  (i)         to treatment of the kind proposed; or

                  (ii)         in the circumstances in which the proposed medical treatment is to be administered; and

            (d)         it is not reasonably practicable in the circumstances of the case to have the matter dealt with under Part 7 of the Advance Care Directives Act 2013 .

        (2)         A supporting opinion is not necessary under subsection (1)(b) or (1a)(b) if in the circumstances of the case it is not practicable to obtain such an opinion.

        (2a)         Inquiries under subsection (1)(d) need not be made if in the circumstances of the case it is not reasonably practicable to do so.

        (3)         If—

            (a)         the patient has given an advance care directive; and

            (b)         the medical practitioner proposing to administer the treatment is aware of that fact (whether on the basis of inquiries made under this section or otherwise); and

            (c)         a substitute decision-maker appointed under the advance care directive is empowered or authorised to make decisions relating to the administration of such treatment and is reasonably available to make such a decision,

the medical treatment must not be administered without the consent of the substitute decision-maker.

Note—

This provision simply requires the substitute decision-maker to be given the opportunity to make the decision about consent if he or she is available—there may also be other provisions of the advance care directive in relation to the treatment that are relevant, and need to be complied with, in the circumstances.

        (4)         If no such substitute decision-maker is available and a guardian of the patient is available, the medical treatment may not be administered without the guardian's consent.

        (4a)         If neither a substitute decision-maker nor a guardian of the patient is available, but a person responsible for the patient (within the meaning of Part 2A) is reasonably available and willing to consent to the administration of the medical treatment, the medical treatment may not be administered without the consent of the person responsible for the patient (given in accordance with Part 2A).

        (5)         If the patient is a child, and a parent or guardian of the child is available to decide whether the medical treatment should be administered, the parent's or guardian's consent to the treatment must be sought but the child's health and well-being are paramount and if the parent or guardian refuses consent, the treatment may be administered despite the refusal if it is in the best interests of the child's health and well-being.