In June 2021, the South Australian government passed the Voluntary Assisted Dying Act 2021 (‘The Act’). South Australia is the fourth Australian state to legalise voluntary assisted dying, which is also called euthanasia. The Act is expected to come into effect on 29 March 2023, and is modelled on the Victorian legislation which was passed in 2017.

The Act features more than 70 safeguards and conditions which must be met before euthanasia can be performed. This includes the requirement that you must have been diagnosed with a disease, illness, or medical condition that:

• Is incurable;
• Is advanced and progressive;
• Will cause death within 6 months (or 12 months if you have a neurodegenerative disease);
• Is causing suffering that cannot be relieved in a manner you consider tolerable.

You can only request voluntary assisted dying if you are acting freely without coercion and have mental capacity.

What is an Advanced Care Directive (ACD)?

An ACD is different to a Will or Power of Attorney. It outlines your wishes for future medical treatment (along with end of life, preferred living arrangements and other personal matters) and appoints a Substitute Decision-Maker to make these decisions on your behalf if you are unable to do so. Read more here about the importance of an ACD.

ACDs cannot stipulate that you would like to be euthanised, as there are many safeguards contained within the Act that must first be met. Voluntary assisted dying is only legal through the prescribed process in The Act.

ACDs can include a ‘refusal of treatment’ clause, meaning that your Substitute Decision-Maker will not be able to direct that you receive specific healthcare treatment. An example of a ‘refusal of treatment’ clause is a directive not to accept blood transfusions. However, a refusal of treatment clause cannot operate as a request for voluntary assisted dying.

Creating an ACD vs requesting Euthanasia

A key distinction between requesting euthanasia and creating an ACD is the requirement for mental capacity. To receive euthanasia, you must have mental capacity, and be acting freely and without coercion. While you must have mental capacity to draft and sign your ACD, it only comes into effect once you lose mental capacity. Another difference is that you cannot preemptively request euthanasia – you must have an incurable disease, and satisfy all the criteria. However, an ACD is written in consideration of a situation where you lose capacity, to appoint someone to make decisions on your behalf and carry out your wishes.

So, can I request Voluntary Assisted Dying in my ACD?

The short answer is no. Choosing voluntary assisted dying requires mental capacity, which is inconsistent with how an ACD operates, as they only come into effect when you no longer have mental capacity. 

It is important to continually review your situation and ensure all your wishes are reflected in up-to-date legal documents. For more information on the impact of outdated legal documents, click here to read our recent blog post on this topic. 

How can Hume Taylor & Co help?

For further advice about the implications of an Advanced Care Directive, or to draw one up with one of our Estate Planning lawyers, contact our Adelaide office on (08) 8223 3199, our Millicent office on (08) 8733 2500 or our Whyalla office on (08) 8645 7666 today to book an appointment with one of our qualified estate planning lawyers.

This blog was written by Solicitor Nicholas Wang and Clerk and law student Rosalind Lewis.