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

Standing Orders Suspension

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) (10:51): I move:

That standing and sessional orders be so far suspended as to enable the moving of a motion forthwith for the rescission of votes taken in committee of the whole house on the Criminal Law Consolidation (Medical Defences—End of Life Arrangements) Amendment Bill.

The SPEAKER: There being an absolute majority present, I accept the motion. Is that seconded?

Mr PEDERICK: Yes ma'am.

The SPEAKER: Minister, do you wish to speak to it?

The Hon. J.D. HILL: Madam Speaker, the reason I am moving this—I am sorry, I have never done this before and I do apologise to the house, particularly as this is during private members' time—the honourable member for Morialta moved some amendments to legislation which had been introduced by my colleague the member for Ashford.

These amendments were passed on the voices of this place, there was no vote called, and I was not aware that these amendments were being proposed. If I had been, I would have come in here and spoken against them, and I would like to have the opportunity to do that, and I could go to the substance of why I feel that way—but I assume that is what I need to do next. So, if the house would support this, then I would go into the substance of that particular set of measures.

Motion carried.

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) (10:53): I move:

That all the votes taken to agree to amendments to clause 3 in committee of the whole house on the Criminal Law Consolidation (Medical Defences—End of Life Arrangements) Amendment Bill be rescinded.

The SPEAKER: Having counted the house, and there being an absolute majority present, I accept the motion. Is that seconded?

An honourable member: Yes, ma'am.

The SPEAKER: Minister.

The Hon. J.D. HILL: Thank you, Madam Speaker, and I thank the house for the indulgence, and, in saying this, I do not want to be critical at all of the intentions of the member for Morialta, but I think the consequences of his amendments are worth considering in greater detail. My original support for the proposition by the member for Ashford was based on establishing an arrangement whereby a doctor and a patient together could determine what was in the best interests of the patient in a particular set of circumstances and then allow that doctor to defend his or her decision in the face of the law, produce what evidence they thought was appropriate in that context in the law and let the law determine it. I still think that is the right way of doing it.

Obviously, a prudent doctor will do whatever is necessary to ensure that there is evidence to support their actions and I would expect, as has happened in other jurisdictions, that organisations like the AMA or the College of Palliative Care Physicians, or some other group of that type, would come up with some guidelines and best practice which would indicate a pathway that the doctor should go through if they were going to demonstrate that they acted in good faith.

What concerns me about the proposition that the member from Morialta has moved is the same concern I had with the legislation which has been moved by the member for Fisher and the member for Ashford; that is, it is the parliament that is putting itself in the position of what is the best way of developing that approach. What the parliament is saying is that, if you go through these approaches, then that satisfies the law. I do not think that is good enough. I think the law should be able to look more deeply than that.

I think the notion of being able to tick a couple of boxes creates too easy a pathway in one sense, then, in a practical sense, it creates too difficult a pathway. In a practical sense, the doctor and the patient may be in a situation where there is not time to get the two experts in, to go through the processes that are required. You may find experts are not willing to participate readily. It might be in the middle of the night; they might not be available; it might be in a remote community; it might be in somebody's home. What is likely to happen, in my opinion, is that you will get experts who are willing to tick off on practically anything, who do not go through the proper rigorous process.

The intention might be undermined by the practicalities that would surround it. That is just my view and I know others will have other views about it. I sincerely support the proposition generally from the member for Ashford, but I want the law itself, the common law, to establish over time the appropriate process that a doctor would need to go through in order to be able to defend themselves, not have us here come up with a tick-a-box kind of solution.

That is my opposition to this proposal. I know it is sincerely meant and I know it is meant to give greater protection and the appearance of greater protection, but what I am saying to the member of Morialta is that I think it actually has the reverse effect. I do not say this as a matter of sophistry; I say this very sincerely. Having talked to doctors who work in this field, I think they would agree with me. So that is the heart and soul of my objection to this.

I would also point out while I am on my feet that the second set of amendments, which have yet to be considered by the house and which are similar to these, would have an even stranger consequence, because they would apply to a person assisting a defendant doctor, who may well be a defendant themselves. The effect of the second set of amendments would be that if a doctor and a nurse were looking after a patient, the doctor, in order to have a defence, would have to have sought these types of expert advice. If the second set of amendments were carried, that would mean the nurse would also have to have her or his own specialist advice. So you would end up with two lots of specialist advice for those two to be successful. I do not think that is what the member from Morialta intends, but my reading of it is that that would be the consequence.

I would say to the house, have the strength of your convictions on this matter by all means, but please consider the consequences of the amendments. I strongly support the proposition in its original form. I think that will go a long way to making the process of dying in our state that much better. I do not think these hurdles that have been put in place deliver the kind of benefits which I think the member for Morialta might hope for.

Mr GARDNER (Morialta) (10:59): I thank the Minister for Health for his comments. I was a bit confused because I understood that the main reason people were concerned about the amendments that were moved last week had been flagged in my second reading speech. I asked parliamentary counsel to file them some weeks before the debate occurred so there was certainly no intention of jumping the parliament.

I am aware, and the minister is aware, of the safeguards that they were intended to create. My understanding was that the concerns that have been raised with me by groups such as the AMA and a number of doctors for whom I have some significant respect, was that the amendments that would create safeguards in the case of euthanasia would create impositions on doctors practising palliative care under our current arrangements.

That would be the last thing that I, and I believe any other lawmaker here, would want to do because in the early to mid 90s this state was groundbreaking in the way that it dealt with palliative care. A predecessor in my seat, the Hon. Jennifer Cashmore, was instrumental in drafting those original laws that have created the opportunity for so many South Australians to pass with less suffering than they would have otherwise, and in the company of their families in some comfort.

If the argument is based around palliative care, and if there is some advice that suggests that the amendments would create impositions on the conduct of palliative care, then I could certainly be persuaded along those lines. If the arguments are as they were put by the Minister for Health, that the amendments removed from this parliament, the authority to determine the restrictions that would surround the application of euthanasia, then I would not support the rescission because I appreciate that the Minister for Health comes with the very best of good faith, as we all do in serious debates of this nature, but I have to disagree with him on a couple of the things that he said.

First, he was right when he said that the prudent doctor will keep good records, but I think when we are dealing with an issue such as this we have to be wary of the imprudent doctor, or the doctor acting without good faith. He made the point that an organisation like the AMA would come up with the guidelines and the common law would inform the process but, before we open a door such as this, if we are to do so, I do not think that that is good enough.

As I said in my second reading speech, the idea that a doctor may have this defence available to them without the imposition that the primary diagnosis must be tested by a second opinion, or with the requirement that the patient must be seen by mental health specialists who might determine that the person is not seeking euthanasia as a result of a depression which can be treated, is a terrifying concept to me, and always has been throughout the years that I have been discussing this through youth parliament, through public policy debate, through forums with doctors and others.

The SPEAKER: Member for Morialta, we are really straying into debate on the bill. The motion before the house is that the amendments to clause 3 be rescinded. We are really straying into the debate which we should come into when we get to the committee stage. So I would ask you to draw your remarks to a close.

Mr GARDNER: Thank you Madam Speaker for your guidance. I make the point that the subject of the amendments that we are seeking to rescind is exactly on the subject matter of the second opinion of a psychological analysis, the mental health specialist, and the third issue of the amendments that the motion before the house seeks to rescind is in relation to the witnessing of the request. The original bill, pre-amendment, required that the doctor had received consent but put no obligations upon the doctor in the manner of the evidence that might be presented.

Again, as I said in my second reading speech, that to me would not be an acceptable circumstance. I come back to the original point of view that for me to consider any sort of bill being presented, those are the three litmus tests for me, and then we can talk about the other things. I remain open to this motion if somebody can convince me that it will affect the palliative care outcomes in South Australia but, as yet, that argument has not been made.

Motion carried.

The SPEAKER: The bill now stands committed for consideration of the committee of the whole house.

The Hon. S.W. KEY: Madam Speaker, before you leave the chair, could I clarify with you where we are at the moment? There seems to be a few confused people. I understand that we are now going back into committee?

The SPEAKER: Yes.

The Hon. S.W. KEY: At that stage we will consider, obviously, the first amendments which were put up by the member for Morialta and which have now been rescinded. The debate in the committee stage on that has now gone, and we are now back to clause 1, presumably—

The SPEAKER: Clause 3; we are on clause 3.

The Hon. S.W. KEY: We are back to clause 3. I understand that some amendments have been filed that are not the Morialta amendments. I am just wondering whether we can clarify what the amendments are before us, because I am not totally clear; and, as the mover of the bill, I think that it is probably appropriate and probably polite that I am aware of what amendments we are about to deal with.

The SPEAKER: I understand that we have four schedules of amendments to be considered. It will be the normal procedure for a bill—all the amendments that have been submitted will be considered.

The Hon. S.W. KEY: I am only aware of one amendment that has been filed, so I am wondering whether we can clarify what those amendments are. Can we do that in committee?

The SPEAKER: I think that we need to do that in committee. I remind members—if people are feeling upset—what has happened. The previous motion was about rescinding. I allowed some indulgence for people to speak, but we really need to get into the committee stage for members to be able to say the things they want to say. We will now go into committee.

Committee Stage

In committee.

Clause 3.

The Hon. S.W. KEY: Madam Chair, can I clarify the process?

The CHAIR: I am sorry; I am just clarifying something myself. I apologise to everyone for the moment of consideration, but this is obviously quite complex and we do not want to get it wrong. There are many, many amendments. Some amendments seem to be very new.

The Hon. S.W. KEY: I wish to just clarify the process. My understanding is that last time we were in this chamber, in this committee, I withdrew the amendments I had proposed, which is 88(2), and I stand by that. So I assume that we will not be dealing with 88(2). At the death knock (so to speak) minister Kenyon tabled 88(3), so they are now filed, and this morning we have received amendments from the member for Taylor, which is 88(4).

The CHAIR: I have just got that.

The Hon. S.W. KEY: So that I can be clear, are we now proceeding with 88(1) or is that in the realm of the member for Morialta to decide whether we go back to that, or does the decision we made in the house mean that those amendments are not now going forward?

The CHAIR: I understand that we will be treating this—as we should—like any other bill. We are not treating the amendments in the order they have been given to us here; we are treating them in consequential order. Does that make sense?

The Hon. S.W. KEY: Yes.

The CHAIR: Good. Member for Newland.

The Hon. T.R. KENYON: It is my intention to withdraw my amendments, not to proceed with them, if that helps the situation. All the amendments I have circulated, standing in my name, I will not proceed with.

The CHAIR: This is very good; now we have fewer bits of paper.

Mr PEDERICK: I want to make a general contribution with regard to clause 3, if that is appropriate. I think clause 3 is fairly general—

The CHAIR: Clause 3 seems to a giant megalith sort of clause. It would be good if, as you are going along, you could tell me what specific bits of clause 3 you are referring to—if possible.

Mr PEDERICK: I want to speak about the bill in general terms, and I think clause 3 gives me that leeway. I would like to bring members' attention to the Consent to Medical Treatment and Palliative Care Act 1995. I am sure many members in this house and in the other place have researched this act and what it does in terms of the arrangements for medical care or treatment for people, whether they want to give forward directives on what care they do or do not require should they not have the capacity to make that decision. Part 2—Consent to medical treatment, division 2—Anticipatory grant or refusal of consent to medical treatment goes through a whole raft of clauses about what can be done there.

To cut to the chase, in the palliative care act are the arrangements we are obviously talking about, in the bill before the house, about the protections for doctors and medical personnel in case they be charged with some form of criminal offence if a member of the family wants to bring that on. I just bring to the attention of the house Division 2—The care of people who are dying. Section 17 states:

(1) A medical practitioner responsible for the treatment or care of a patient in the terminal phase of a terminal illness, or a person participating in the treatment or care of the patient under the medical practitioner's supervision, incurs no civil or criminal liability by administering medical treatment with the intention of relieving pain or distress.

I think that is a very important part of the current act. Subsection (1) continues:

(a) with the consent of the patient or the patient's representative; and

(b) in good faith and without negligence; and

(c) in accordance with proper professional standards of palliative care,

even though an incidental effect of the treatment is to hasten the death of the patient.

Section 17 then states:

(2) A medical practitioner responsible for the treatment or care of a patient in the terminal phase of a terminal illness, or a person participating in the treatment or care of the patient under the medical practitioner's supervision, is, in the absence of an express direction by the patient or the patient's representative to the contrary, under no duty to use, or to continue to use, life sustaining measures in treating the patient if the effect of doing so would be merely to prolong life in a moribund state without any real prospect of recovery or in a persistent vegetative state.

(3) For the purposes of the law of the State—

(a) the administration of medical treatment for the relief of pain or distress in accordance with subsection (1) does not constitute an intervening cause of death; and

(b) the non-application or discontinuance of life sustaining measures in accordance with subsection (2) does not constitute an intervening cause of death.

Section 18, the saving provision, states:

(1) This act does not authorise the administration of medical treatment for the purpose of causing the death of the person to whom the treatment is administered.

(2) This act does not authorise a person to assist the suicide of another.

I may be wrong and I am not a lawyer, but in reading the Consent to Medical Treatment and Palliative Care Act 1995 I would have thought that there are sufficient safeguards in our current law to protect those in the health profession, especially doctors and specialists, from any criminal liability if someone chose to go down that path. In fact, I repeat section 17(1):

A medical practitioner responsible for the treatment or care of a patient in the terminal phase of a terminal illness, or a person participating in the treatment or care of the patient under the medical practitioner's supervision, incurs no civil or criminal liability by administering medical treatment with the intention of relieving pain or distress.

I have witnessed this. I witnessed my father-in-law passing away a couple of years ago, and it was pretty tough; but, at the end of the day, we knew that he was getting the best of care at Ashford Hospital. We were told at the end, and I knew the day I saw him for the last time, that he might have three weeks to live, but I think for his benefit, because he had had enough, he slipped away in the next week and a half.

I still do not condone endorsing euthanasia, because I think the doctors know damn well what they are doing. They know that a side effect of giving treatment may be death and I believe under the current act they are fully protected. I would like to read a letter from the Australian Medical Association of 19 October:

Dear Politician

Re: Criminal Law Consolidation (Medical Defences—End of Life Arrangements) Amendment Bill 2011

The AMA(SA) remains concerned in regard to the latest amendments by Gardner to the Criminal Law Consolidation (Medical Defences—End of Life Arrangements) Amendment Bill 2011 (proposed by Hon Stephanie Key MP).

The amendments propose that prior to patients receiving 'end of life' treatment that may hasten death they are to be reviewed by two independent specialists, one of whom needs to be a psychiatrist. This is in order to increase the legal defence for a doctor should they face a criminal action. The reason this is seen as necessary of course is that the true underlying purpose of the Bill is the loosening of the present access criteria to effective palliative care to allow patients who do not have a terminal illness to receive treatment that may hasten death. This is seen by the AMA(SA) to amount, on any reasonable objective view, to euthanasia.

The proposal also ironically creates additional barriers to the provision of palliative treatment than presently exist under the current Consent to Medical Treatment and Palliative Care Act. The only logical reason for this increased 'defence' is that the actions and intent of the doctor will become more blurred in the eyes of the public and the legal community, again due to the underlying purpose of the Bill.

The proposed amendments not only present a significant additional burden on patients and the doctors providing care in this area, they are logistically unworkable due to the psychiatric resources in this state. The psychiatric community would also be loath to be involved in such activity given the obvious difficulties of assessment of patients, many who would present with confusion related symptoms. The legal risk upon the psychiatrists as a critical part of the decision making clinical team would also be a deterrent.

The AMA(SA) has previously stated the Bill needs to be debated under its true purpose of allowing euthanasia and clearly differentiated from palliative care. The amendments if accepted will be a deterrent to many doctors being involved in palliative care.

The AMA(SA) supports the principles of patients having access to high quality palliative care. We support the autonomy of doctors to provide this treatment free from the risk of being accused of aiding and assisting suicide, conducting manslaughter, or partaking in any other form of criminal activity where death is hastened as a result of quality palliative treatment. We support the privacy of the patient-doctor relationship and engagement with their families at the time of discussing treatment. We support legislation that supports these principles in the domain of palliative care.

In summary, this remains a Euthanasia Bill that will damage palliative care in South Australia and the AMA(SA) opposes it.

I support that. I also want to make some comments from a letter that Right to Life Australia has written to me.

Dear Mr Pederick,

I am writing to you to express my utmost concern at the thought of the S.A. parliament legislating to give to one group in the community—doctors—the power to end life—a power not even possessed by our Supreme Courts!

The Criminal Law Consolidation (Medical Defences—End of Life Arrangements) Amendment Bill 2011 is nothing short of a passport to suicide—physician assisted suicide.

As you must be aware the bill changes the law on homicide to allow a treating doctor to give a deliberate lethal dose to a patient aged 18 years and over where the patient claims to have a medical condition that makes life 'intolerable' for them.

This encompasses a whole range of medical conditions both major and minor. Of particular concern is the category of mental illness.

On the one hand the community demands of governments that more be done for those who are mentally ill, especially those with depression. The level of suicide is alarming especially amongst young men. Interviews with their parents reveal their agony at the loss of a beautiful child to suicide.

Yet here we are preparing to legislate to allow a physician to comply with a request to end the life of someone over 18 years, who may be very depressed or have bipolar disease or schizophrenia or whole range of medical conditions.

To legislate in this fashion is to embrace the principle of the life not worthy to be lived. Why strive to provide good medical treatment for people when they can ask for an early death?

Ultimately, the so-called right to die, if allowed, will ultimately become a duty to die. I urge you to reject the bill.

Yours sincerely, Margaret M. Tighe, Vice President.

I endorse those comments. I have some major concerns that there may be instances, for a whole range of reasons, where people believe their life is not worth living; yet I have heard of various cases where people have been in that very situation and then pulled through with proper medical treatment and lived for quite a few years.

In fact, one of my uncles was a World War II veteran. I got a call that he had been admitted to the Mary Potter Hospice and that he was leaving this world. I thought, 'Poor old uncle Les. He's fought cancer over many years, various forms. And you know what? He came out and he is still alive today,' and that was several months ago. So, tough as he was when he was on the Shropshire cooking for the troops. This is a conscience vote. People can vote how they want, but please think about your conscience if you vote for this bill.

Mrs VLAHOS: I move:

Page 2, line 13 [Clause 3, inserted section 13B(1)]—Delete:

'or intended death of a person if the death resulted, or was intended to result,' and substitute:

of a person if the death resulted

The Hon. S.W. KEY: I defer to the member for Taylor. I think she needs to explain her amendment. I would like to speak against it, so I would probably like to hear her argument first.

Mrs VLAHOS: Thank you, member for Ashford. I have had a number of ongoing concerns about this bill, but the reason I have tabled these amendments today is that I have sat in the chamber and listened to many of us ponder the nature of this bill. It strikes me that the crux of it is the nature of 'intentional', and that is the thing that troubles many people. So, these amendments are really designed to ensure that the intended consequence of issuing a drug to a person that is suffering from an incurable disease with the primary intent of making that person end their life is dealt with, and that is the crux of these amendments.

That is the crux of these amendments. It is the differentiation between non-intentional, where a drug is issued to someone and a non-intended or secondary consequence is a respiratory arrest or death, which is the current situation in palliative care. The 1995 palliative care act, which the member for Hammond was speaking about before, deals quite adequately with that now in the South Australian jurisdiction. Where the use of 'intentional' is used in this bill it causes a great many concerns to many general practitioners and palliative care specialists. I do not see a need for this bill to be changed.

The CHAIR: Member for Taylor, I do apologise. I am just making you aware of the time.

Mrs VLAHOS: I will conclude on this first amendment. To sum up, it is about the difference between intentional and non-intentional. I do not support intentional.

Progress reported; committee to sit again.