Advance Care Directives for Aboriginal and Culturally Diverse Communities in South Australia

Why This Matters Differently

Advance care planning assumes a specific model of decision-making: an individual documents their personal wishes, appoints trusted people to carry them out, and the healthcare system follows those instructions when capacity is lost. For many Aboriginal and Torres Strait Islander communities and culturally diverse families in South Australia, this model sits uneasily alongside collective decision-making traditions, kinship obligations, and cultural protocols around illness, death, and dying.

The Advance Care Directives Act 2013, its regulations, and the Consent to Medical Treatment and Palliative Care Act 1995 include provisions relevant to language access and Aboriginal and Torres Strait Islander kinship — but these details are rarely explained in standard government materials. Understanding how the law accommodates different cultural frameworks is essential for making the ACD system work for communities it wasn't originally designed around.

Aboriginal Kinship and the "Person Responsible" Hierarchy

When someone lacks decision-making capacity and there is no applicable ACD provision or authorised SDM for the relevant decision, South Australian law falls back on the "Person Responsible" hierarchy under Section 14 of the Consent to Medical Treatment and Palliative Care Act 1995 to determine who consents to medical treatment. This hierarchy explicitly recognises Aboriginal and Torres Strait Islander kinship structures.

A "prescribed relative" under the Act includes any adult of Aboriginal or Torres Strait Islander descent who is related to the patient according to Aboriginal or Torres Strait Islander kinship rules. This means a person recognised as family through skin groups, moiety systems, or customary adoption has the same legal standing as a biological relative when making substitute medical decisions.

This recognition is significant because it prevents the default hierarchy from excluding people who hold genuine care responsibilities under customary law. Without it, hospitals might default to a distant biological relative with no ongoing relationship rather than a close kinship-system relative who has been involved in the patient's daily care.

However — and this is the critical point — the Person Responsible hierarchy applies to a decision only when there is no applicable ACD provision or authorised SDM for that decision. If you execute an ACD and appoint SDMs for relevant decisions, those named individuals take precedence over the statutory hierarchy, including kinship-based relatives. This means an ACD that names only one or two SDMs can inadvertently shut out broader family and community voices that would otherwise be legally recognised.

Community Decision-Making vs Individual Appointment

Many Aboriginal and culturally diverse communities practice collective or consensus-based decision-making about healthcare. Major medical decisions are discussed among elders, family groups, or community leaders rather than left to a single appointed person.

The ACD's SDM appointment structure doesn't directly accommodate group decision-making — you can appoint up to four SDMs in sequential order (first preferred, then backups), but the legal framework gives authority to individuals, not groups. There is no mechanism to appoint a "family council" as your decision-maker.

Practical workarounds that preserve collective input:

• Use the values and preferences section of your ACD to document that important healthcare decisions should be discussed with your family group, elders, or community leaders before your SDM acts. While this isn't a legally binding instruction, it creates a clear expectation that your SDM will consult broadly before deciding.
• Appoint an SDM who understands and respects the community's decision-making process. The person you name as first preferred SDM should be someone who will genuinely seek family and community input rather than acting unilaterally.
• Consider the non-statutory "My Life My Wishes" form developed by the Office of the Public Advocate for individuals who may lack the capacity to execute a formal ACD. This easy-read document allows you to record values, cultural protocols, and community connections that guide informal decision-making without the rigid appointment structure.

Interpreter Requirements

For principals whose first language is not English, the Advance Care Directives Regulations 2014 require a qualified, independent interpreter to assist with the execution of the ACD. The interpreter must:

• Be at least 18 years old
• Not have impaired decision-making capacity
• Not be an appointed SDM
• Not be a beneficiary under the principal's will
• Not be the principal's treating clinician
• Not hold a position of authority at the principal's care facility

The interpreter must translate the ACD Information Statement and the principal's recorded instructions, then sign the statutory interpreter's section certifying that the English translation accurately reflects the principal's original instructions.

In practice, finding a qualified interpreter who meets all these independence requirements is one of the hardest parts of the process for culturally diverse families, especially in regional SA. Arrange an interpreter who can assist with the English ACD and complete the statutory interpreter's section. The principal must still sign in person before the authorised witness.

Cultural Protocols Around Death and Dying

Several cultural considerations intersect with ACD content:

Sorry Business and bereavement protocols. Many Aboriginal communities observe Sorry Business — cultural mourning practices that can restrict who is permitted to speak the deceased's name, view images of the deceased, or enter specific spaces. An ACD cannot enforce these cultural protocols, but documenting them in the values section ensures healthcare and aged care staff are aware of community expectations.

Returning to Country. Cultural traditions often place high importance on a deceased person being returned to their traditional homelands for burial. South Australia's Funeral AssistanceSA program covers the cost of transporting a deceased Aboriginal person to their homeland when culturally required. If this is important to you, record the funeral and transport wish in your will and any prepaid funeral plan, and inform your SDM and next of kin. The ACD does not control post-death funeral arrangements.

Men's and Women's Business. Some medical decisions involve cultural gender restrictions — certain health matters may only be appropriately discussed with or decided by people of the same gender. When appointing SDMs, consider whether gender-specific protocols affect who should make particular categories of decisions. You can include conditions on an SDM's authority in Part 2b of the ACD form to reflect these boundaries.

Organ donation and cultural beliefs. Attitudes toward organ donation vary significantly across cultural communities. Some traditions have concerns about bodily integrity after death, while others view donation as a gift. Whatever your position, record your preference in the organ and tissue donation section of the ACD and, separately, on the Australian Organ Donor Register. Discuss it with your family so your wishes are clear when donation is considered.

Getting Culturally Appropriate Support

• Aboriginal Legal Rights Movement (ALRM) provides free legal services to Aboriginal and Torres Strait Islander people in SA; ask whether it can assist with your specific planning issue
• Nunkuwarrin Yunti and other Aboriginal community-controlled health services can help connect you with culturally safe health support; ask whether advance care planning is available
• The Office of the Public Advocate provides ACD information in several community languages and support with disputes
• Multicultural Communities Council of SA may be able to help identify culturally appropriate legal and health-service options

The South Australia Advance Directive & Living Will Kit includes a values and cultural preferences section alongside the clinical treatment refusals, SDM appointment workflow, and signing protocol — designed so your cultural obligations sit alongside your legal instructions in a single, coherent document.

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