CRIMINAL LAW CONSOLIDATION (MEDICAL DEFENCES—END OF LIFE ARRANGEMENTS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 March 2011.)

Dr McFETRIDGE (Morphett) (11:18): I rise to support this bill introduced by the member for Ashford (Hon. Stephanie Key) The member for Ashford has been a very strong supporter of voluntary euthanasia in South Australia, but I should point out from the very start that this bill is not about voluntary euthanasia per se, as in the other bills before the house or what people would perceive to be a voluntary euthanasia piece of legislation.

The bill before us is the Criminal Law Consolidation (Medical Defences—End of Life Arrangements) Amendment Bill 2011. The bill amends the criminal law to insert a defence for bringing about the death of a person if it is requested by that person. The prescribed person, who will be a medical practitioner in all cases, as I understand this legislation, will be a doctor who is the regular treating practitioner of the person involved. They will have as a defence for their actions this legislation. It would be a shame if people who want to die with dignity are not able to do so. We have seen a number of pieces of voluntary euthanasia legislation come to this and the other place only to be either continually adjourned or voted down, in many cases, by the narrowest of margins.

As the Liberal member for Morphett, can I say that, when we survey my constituents on the issue of voluntary euthanasia, over 75 per cent of the respondents of all backgrounds (some professing to be extremely strong Christians, others have secular backgrounds, atheists) are pro-choice, and that is what this legislation is supporting—people's right to make a choice about their future.

If part of that decision about their future involves their medical practitioner giving them treatment that results in their life being ended, that medical practitioner will have a defence within the criminal law. It is an interesting piece of legislation. Some issues have been raised by a number of organisations about words such as 'intended' and about the numbers of people who are 'prescribed persons' in the legislation who can use this as a defence.

It is a piece of very important legislation. I think that, anecdotally, the evidence is there that medical practitioners have been doing what I see as a compassionate act, that is, ending people's lives in a way that enables those people to die with dignity, and it is just so important that that happens. As a veterinarian, I have had access to gallons and gallons of drugs that can end the lives of not only animals but people.

I have had requests from people who have been dying of cancer: 'Can I have a bottle of nembutal,' because nembutal is the one that is always talked about. I have had requests for other drugs that I have had in my possession, and I have never done that. Look, I will be honest, I have been very tempted. When my father died of bowel cancer, fortunately, dad did have very good palliative care and he was able to have a death that was peaceful and dignified and we were able to be with him at that time.

However, had he been a case where palliative care was not working, I would have been in a very difficult position because I would not have wanted my dad to die in agony, in pain and in suffering—a prolonged death, an undignified death—because I knew what sort of person he was. He was a man of dignity. He had great pride. I knew that, even at the end, having to be cared for the way he was had a deep effect on him; it had a deep effect on us as his family.

I have very close friends who have had severe cancers, and they have been cancers that have rapidly progressed. They have been extremely debilitating and, in many cases, extremely painful. I have had those people ask me for drugs and I have had to refuse. It has been hurtful, because I do know—and I do not want anyone even to think for a moment that I am in any way comparing the death of a human with the death of an animal—that, in my veterinary practice over many years, and having to euthanise many, many animals, it is a good thing that we do.

It is a good thing when you make that decision, although animals do not have that choice. As an experienced vet, you know that animals do recognise, they do know when their time is up, and we are able to assist them to die swiftly and, I should say, with dignity, because animals do not like being mistreated. To be able to do this with humans (and I am not comparing the same event; please do not draw that at all from what I am saying), to be able to enable people to die with dignity, is just something that I strongly am committed to. This piece of legislation goes a long way towards that being able to happen.

For doctors around Australia, and internationally, who are assisting their patients—and it has to be long-term patients; it cannot be somebody you have just been acquainted with—to die with dignity and not have to suffer the repercussions and accusations of having committed a criminal offence, this legislation will go a long way towards solving the issue.

The legislation was put together with the assistance of the Minister for Health, the Hon. John Hill, and I thank him and his staff for that. Certainly, the parliamentary counsel, Mr Mark Herbst, has given us a lot of good advice on this legislation.

I have consulted a number of lawyers, friends of mine, about this. The only issue that was raised with me by one of my legal friends, who is a very experienced lawyer and has numbers of case law on his record, was that if there was a charge proceeded with against a doctor, who would pay the cost? Under normal criminal law, the costs are not covered by the Crown. The intent here is to provide a defence. If there is ever a case where a doctor does have to defend his actions under this piece of legislation, that could be costly. I would like to see this issue addressed at some stage.

Other than that, I do not have any issues with this piece of legislation. I think it is a good move. We do know that there are many doctors at the moment who are assisting their patients to have a dignified death. I hope this does give them some comfort, and other doctors who would like to be able to act in this way, to give them some courage to be able to act in this way.

It is such an important thing that we allow people to have dignity throughout their lives, but particularly when they are at their most vulnerable and when they are on their deathbed. I commend the bill to the house, and I look forward to the support of members. I should say that, while I am the shadow minister for health, the Liberal member for Morphett, this is a conscience vote. It is a conscience vote for the Liberal Party, and I know that some of my colleagues may not agree with my views. I am yet to convince them of the merits of this, but I will not give up, because I know without any doubt whatsoever that this is the correct thing to do. With that, I commend the bill to the house.

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for Mental Health and Substance Abuse, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (11:27): To pick up a point made by the member for Morphett, this is a conscience vote, and what I say today, of course, is my personal view, not that of the health department or the government, so I make that plain. I do congratulate the members for Ashford and Morphett for sponsoring this piece of legislation.

What I want to do today is three things: first, explain my own view about end of life and my personal view about the questions around euthanasia; secondly, say why I did not support the previous legislation that was brought before the house in relation to euthanasia; and, thirdly, why I do support this. Personally, in an abstract sense, I support the notion of euthanasia. Without thinking about it deeply, that used to be my position, and I would have probably supported any legislation along those lines.

Ten or 11 years ago my sister died of cancer, and I saw the progress of her death over a period of time. I know all of us have these anecdotes and I do not want to be weepy or sentimental about it; it just instructed me about end of life stuff. She was only relatively young; she was 47, and she fought the whole disease all the way through. She was convinced she was going to survive, but it was clear to her medical team that she was not. She just did not do the things that she ought to have done in anticipation of death, and I think it was because of her age. At 47 she did not want to die so she did not properly embrace the palliative care.

When I arrived in Sydney (where she lived) a week before she died, she had been admitted to hospital and she was in awful pain and agony, and they were giving her shots of morphine on a regular basis. I stayed with her pretty well the whole time. You could see the morphine kick in and relax her, and at the end of the period the morphine would wear off and you could see the agony. I thought this was dreadful, somebody should get in there and shoot her—that was my feeling; I thought it was cruel, inhumane, horrible—and I would have done it myself.

However, after a day or two a palliative care doctor came along and properly provided the drugs that she required. As a result of that, she went into, over a period of time, a deep coma. There was a pump on, there was no up-and-down change in the pain that she was feeling, and she went into this slow decline. I knew exactly what was happening and how long it would take, virtually, and the doctor was very good at comforting those around her and explaining what was happening; so, we saw her dying.

One of the advantages of this, I think, was that family and friends were able to spend time with her, at her bedside, in the last few days of her life and were able to say their goodbyes. Her children were able to be with her and say their goodbyes; my mother was able to say her goodbyes. A bit of a party atmosphere actually developed around her bedside over the course of the four or five days, and I thought that was pretty good. I thought it was actually a really good thing.

So, I have different views now about euthanasia as a result of that because, if we had applied that principle early on, that last four or five days of saying farewell and kind of getting used to the idea would not have occurred. So, I do have very mixed views about it.

The Hon. R.B. SUCH: I move:

That the house extend the time by 10 minutes to allow the minister to complete his remarks.

Motion carried.

The Hon. J.D. HILL: Thank you very much. I recognise this is private members' time, so I appreciate the courtesy you have shown me. I had different views. I no longer had that sort of black-and-white view that I had in the abstract before I experienced somebody dying and the process of palliative care. That is what I want to say: my views are complicated; they are not simple. It is not black and white for me any longer. However, I recognise that many people do want to be able to exercise some sort of right to terminate their lives under certain circumstances.

Every time a member of parliament or a community group has tried to codify euthanasia, I think they have come up with the same problems. It becomes overly complex and very bureaucratic, and it creates a state apparatus which, to me, is the opposite of what you really want at the end of your life.

I have a number of objections to the proposals that have been put forward. It is a very complicated bureaucratic process; it would take a couple of doctors to agree, and they would do that over a long period of time, so the benefits that might accrue to a quick decision would be lost. You would always find, I think, a couple of doctors who would be prepared to rubber-stamp any applications, so the safety checks would not really apply. I was concerned about it being made part of the palliative care legislation because I think palliative care is really important, and to pollute the notion of palliative care with a reference to euthanasia, I think, would make people fearful of palliative care.

My third objection is to the establishment of a state mechanism which would be appointed by the health minister and which would be responsible to the health minister. I thought that created complications as well. However, I think the proposition that is now being put forward addresses all of those central issues.

What is being proposed does not establish a right to euthanasia. What it does is establish the right for the doctor-patient relationship to be used to decide what is in the best interests of the patient in particular circumstances, and that includes the use of medication to produce death in the circumstances which the bill outlines. I think that is the right way to go. I think we should make the doctor-patient relationship the heart of what we are doing in this area, because I think in that relationship, where the doctor knows the patient and the patient knows the doctor, we will get, in nearly all of the circumstances, good decisions. You cannot go shopping around for a doctor who might be a bit gung ho or maverick in their attitudes or in their practices; it has to be in the relationship that pre-exists, and I think that is a really important thing.

The second point about this is that it does not provide a set of rules and guidelines and boxes that you have to tick before you can access this—it is not a right—kind of care. It is about what is in the best interests of the patient according to what is reasonable in the circumstances, and what is reasonable in the circumstances can be tested by the courts.

The test of reasonableness, as lawyers would know, is not a subjective test. It is not what the doctor or the patient thinks is reasonable, it is what the man in the Clapham bus (to use that British legal cliché) thinks. It is an objective test: what an outsider looking in would say was reasonable in the circumstances, so the law would be able to determine whether the use of this power was done appropriately. We do not codify it in a detailed way; we allow the law to supervise it. I think that is a very strong safeguard against abuse. The fact that both the doctor-patient relationship and the legal processes oversee it creates a sufficient number of safeguards.

My final point is that I did consult with the AMA over this legislation and received some advice, some of which was incorporated into the provision. The AMA has told me in writing that it does not object to this legislation. I think it is a very good thing to have the doctors' organisation onside, because we know that, if that conservative organisation supports it, it is not a dangerous or radical provision. This is one very small step forward. I am sure the Euthanasia Society and many other organisations will be bitterly disappointed that it does not go to where they want to go which is to give people an absolute right. I think that would be going too far and the means of achieving what they want would not be supported by the medical profession nor many in the community.

This takes the provisions one step, which allows the doctor-patient relationship to determine what should happen in the circumstances that the legislation provides within a legal framework, with the common law really settling over time what essentially can happen. I commend this to the house and I thank the member for Ashford and the member for Morphett for bravely moving and seconding it and speaking in favour of it in this chamber.

Mrs GERAGHTY: I move:

Private Members Business, Orders of the Day, No. 3, have priority over Private Members Business, Other Motions.

Motion carried.

The Hon. R.B. SUCH (Fisher) (11:37): I will be brief because I want to see this matter progressed. I support this measure. As members know, I have standing in my name a bill which I obviously intend to put if the situation arises. This measure deserves support because, as we now know, doctors essentially are ending the lives of patients, so it is already happening, and I think it is important that we address what can be a grey area in relation to ending someone's life. I do not believe that doctors will inappropriately seek to end a life. Doctors commit themselves (in their work as doctors) to upholding the sanctity of life so I do not believe that this measure would be used inappropriately.

The reality is that there is a deficiency at the moment for a number of people who cannot get adequate pain relief. I think of people like the late president of the upper house (Gordon Bruce), a lovely man, who died a shocking, agonising death from motor neurone. He used to ask people visiting him, I am told, to basically help end his life. We should not have people in that situation.

This bill will allow a medical practitioner, using their normal standards of medical care, to ensure that a person does not suffer and that their life is ended with dignity. I agree with what the Minister for Health said: the other options are more complex and more complicated but this is a very simple proposal which basically allows a medical practitioner to end a life with dignity. It is already happening every day in Adelaide at the moment, so let us move to clarify it and provide some clear direction in relation to what should be a dignified end of life for a person. I support this measure.

The Hon. S.W. KEY (Ashford) (11:39): I would like to thank the house for allowing us time to deal with this bill. In addition, I would like to thank the speakers who have supported the bill, which is a medical defence for end of life arrangements and amends the Criminal Law Consolidation Act. In amending that act, this does not say that euthanasia is legal. It does not say that murder, manslaughter or assisting someone to suicide is legal. What it does do is provide a defence should a medical practitioner or treating doctor (as defined in the bill) be charged with any of those crimes. It does not take away from the fact—

Members interjecting:

The SPEAKER: Order! This is quite an emotional thing for some members. Could we show some respect, please, in the debate?

The Hon. S.W. KEY: It is important to stress that this bill does not take away from the very good work that happens in South Australia with regard to palliative care. I have the highest respect, and I know all the speakers who have contributed to this bill also have that respect for the palliative care provisions that are available. What we are talking about is providing a defence to a medical practitioner or treating doctor should they be charged with any of those offences that I have mentioned.

The focus for me in the voluntary euthanasia debate has been very similar to the member for Fisher and the member for Morphett. We have argued a number of times that people should have the choice of how they end their days. They should be able to die in dignity. I will continue to campaign on that basis, as I am sure other members in here who support that choice will do. It is also important, I think, to take up minister Hill's suggestion that we need this first step that provides a legal defence for medical practitioners.

My main focus in this campaign has been to make sure that people have access to information for a whole lot of end of life decisions. Part of my campaign, as with other members in this house, has been that advance directives are available and made more simple. So, another part of the campaign that I think will continue is that we bring in legislation that looks at making it easier. Members here will particularly know what it is like for family, friends and constituents to try to get through the maze of not so much wills—that is an issue in itself—but certainly the medical power of attorney, decisions on organ and tissue donation and so on.

So, this bill is very specifically directed at providing a legal defence to doctors should they and their patient decide that their end of life needs to be triggered. It is a very simple piece of legislation but also very sensitive and important. I ask members to consider the fact that this does not decriminalise euthanasia. It does not change the Criminal Law Consolidation Act to say that murder, manslaughter or assisting someone with suicide is not a crime. It is just that, if a doctor and their patient do come to that arrangement, there is a legal defence for that medical practitioner and treating doctor should they be charged.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: Point of order, Madam Acting Chair. The time for dealing with—

The ACTING CHAIR (Mrs Geraghty): That is all right. If you would like to take your seat, we will be one second.

Progress reported; committee to sit again.

Ms CHAPMAN: Madam Speaker, I now make a further point of order. The motion to extend time has now expired according to the clock and the house may receive a further motion to extend time, bearing in mind that we are now into the second part of private members' business for which speakers are here ready to deal with their items of business. If a further motion is to be put, I think the house needs to make a decision about whether we are going to deal with this issue.

An honourable member interjecting:

Ms CHAPMAN: I keep hearing that, but we have—

The SPEAKER: Member for Bragg, I think you probably were not present, but the time that expired was actually time for the member to speak, not the time allowed for the bill. We had already agreed to extend the time to get to that stage that we have just got to with the bill. I think we are now ready to move on.

Ms CHAPMAN: If the motion was put that we simply speak to continue the bill for whatever anticipated time without a time limit—that is not what I heard—but my understanding is, just so that we have it clear—

An honourable member interjecting:

The SPEAKER: Order!

Ms CHAPMAN: Just so that we have it clear, the minister was given the opportunity by motion to conclude his remarks. A second motion was then received for 10 minutes to enable the member for Fisher to speak and, as I understand it, conclude the debate. The 10 minutes has expired, and I simply raise the point that we are now past that motion period. If my understanding is that, having got to the committee stage, the debate is now going to be adjourned, I will not take the matter further. However, I want that on the record.

The SPEAKER: You have made your point of order, member for Bragg, but there actually was no time limit on the extension of time that we agreed. We agreed to extend the time until the business was finished, which is what we did.