Consent to Medical Treatment and Palliative Care Act 1995 SA: The Person Responsible Hierarchy

What Happens When There Is No Advance Care Directive

If you lose the ability to make medical decisions and there is no applicable advance care directive instruction or authorised SDM for the decision, South Australian law doesn't leave the decision to chance — or to whichever family member happens to be at the bedside. The Consent to Medical Treatment and Palliative Care Act 1995 establishes a strict legal hierarchy that determines who has the authority to consent to or refuse medical treatment on your behalf.

This hierarchy — the "Person Responsible" framework under Section 14 of the Act — is the fallback system for a particular decision when an ACD does not contain an applicable specific provision and no authorised SDM is available for that decision. Understanding it matters for two reasons: it explains what happens by default if you do nothing, and it clarifies exactly what you're choosing to override when you do complete an ACD.

The Person Responsible Hierarchy

When a patient lacks decision-making capacity and no applicable ACD provision or authorised SDM is available for the relevant decision, clinicians must seek substitute consent from the highest-ranking available person on this list:

1. A SACAT-appointed guardian with healthcare decision-making powers. If the South Australian Civil and Administrative Tribunal has already appointed a guardian for you with explicit authority over healthcare decisions, that guardian sits at the top of the hierarchy. SACAT appoints guardians when informal family arrangements have broken down or when no one else is available — it's a formal, court-ordered intervention.

2. A "prescribed relative" with a close and continuing relationship. This is the category that applies to most South Australians. A prescribed relative includes your legally married spouse, an adult domestic partner, or an adult related to you by blood, marriage, or adoption. Critically, the Act also explicitly includes an adult of Aboriginal or Torres Strait Islander descent who is related to you according to Aboriginal or Torres Strait Islander kinship rules — recognising that customary kinship structures carry the same legal weight as biological or legal family connections.

The qualifier "close and continuing relationship" is important. A distant relative you haven't spoken to in years doesn't automatically qualify just because they share your bloodline. The relationship must be genuinely ongoing.

3. An adult friend with a close and continuing relationship. If no prescribed relative is available or willing, a close friend who maintains a genuine ongoing relationship with you can act as Person Responsible. This recognises that not everyone has accessible family — long-term partners, housemates, or community members who provide regular care can fill this role.

4. The person with day-to-day care and supervision. This is the person charged with overseeing the patient's ongoing day-to-day supervision, care, and wellbeing — in residential aged care, this may be a Director of Care. This tier only activates when no one from the first three categories is available, which in practice is rare but does happen for isolated individuals with no family or social connections.

5. SACAT as a tribunal of last resort. If no Person Responsible can be identified at all, a treating doctor or any interested party can apply directly to SACAT to make the medical decision. This is the emergency backstop — slow, formal, and used only when every other option has been exhausted.

How This Differs from an Advance Care Directive

The Person Responsible hierarchy and the ACD system are distinct legal mechanisms that do not interact the way many people assume.

An ACD takes precedence over the hierarchy for decisions within its scope. If you've executed a valid advance care directive with an appointed SDM authorised to make the relevant decision, that SDM takes precedence over the Person Responsible hierarchy. If no authorised SDM or specific ACD provision applies to the decision, the statutory hierarchy can still operate. This means you can appoint a close friend as your primary healthcare decision-maker even if you have a living spouse — something the default hierarchy would not allow.

An ACD provides binding instructions; the hierarchy provides only consent authority. A Person Responsible can consent to or refuse treatment, but they're making decisions in real time based on their understanding of your values. An ACD lets you pre-decide specific treatments — and if those instructions are clinically precise enough, they're legally binding on clinicians where they apply, subject to statutory exceptions.

The hierarchy has no written record of your preferences. Without an ACD, the Person Responsible is essentially guessing about what you'd want, informed by their knowledge of you and clinical advice from the treating team. Family disagreements about "what Mum would have wanted" are a direct consequence of relying on this system rather than documenting preferences in writing.

When the Hierarchy Creates Problems

The default system works adequately when family dynamics are straightforward and everyone agrees. It creates serious problems when they're not:

Estranged spouses. A legally married spouse is one category of prescribed relative, but the person must also have a close and continuing relationship. Separation or estrangement can therefore affect whether the spouse qualifies; it is not automatic that an estranged spouse ranks above adult children.

Blended families. Stepchildren are not a separate category in the hierarchy. An adult may qualify if they are related by marriage (or another listed basis) and have the required close and continuing relationship. A step-parent who raised you from childhood is not automatically authorised merely because of that history.

Unmarried partners. A domestic partner of 20 years is a "prescribed relative" under the Act, but proving "domestic partner" status in a hospital crisis — especially for same-sex couples or partners who don't share a surname — can involve delays and challenges that a named SDM appointment avoids entirely.

Family conflict. When two siblings disagree about their parent's treatment, the hierarchy provides no mechanism for resolving that dispute quickly. The close-and-continuing relationship and availability requirements may need to be resolved through the Office of the Public Advocate's initial mediation support or an application to SACAT. An ACD that clearly names an authorised SDM can reduce this ambiguity.

The Palliative Care Dimension

The Consent to Medical Treatment and Palliative Care Act 1995 also establishes important protections for palliative care. Section 17 authorises medical practitioners to administer treatment for the relief of pain and distress to a patient in the terminal phase of a terminal illness, even if that treatment has the incidental effect of hastening death — provided the treatment is given in good faith, without negligence, with proper consent, and in accordance with proper professional standards.

This legal protection — sometimes called the "double effect" principle — exists independently of any ACD. It means that even without documented preferences, a treating doctor can provide adequate pain relief to a dying patient without civil or criminal liability for an incidental hastening of death, subject to those conditions. The protection also covers a person participating in the treatment or care under the medical practitioner's supervision.

What an ACD adds is specificity about what kind of palliative care you want and what life-prolonging treatments you want refused. The Consent Act provides the legal framework for palliative care; the ACD provides the personalised instructions.

Taking Control of the Decision

The Person Responsible hierarchy exists as a safety net, but it's a blunt instrument. It assigns decision-making authority based on relationship categories, not on who actually knows your wishes best or who you'd trust with difficult medical decisions.

An advance care directive lets you choose the specific people you want making decisions, document the specific treatments you want refused or continued, and remove the ambiguity that fuels family disputes at the bedside.

The South Australia Advance Directive & Living Will Kit walks you through the SDM appointment process, the binding treatment refusal language, and the signing protocol that makes your choices legally enforceable — replacing the statutory default with your own informed decisions.

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