ADVANCE CARE DIRECTIVES BILL

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 3, page 6, lines 30 to 35 [clause 3(1), definition of medical treatment]—Delete the definition and substitute:

medical treatment means the provision by a medical practitioner of physical, surgical or psychological therapy to a person (including the provision of such therapy for the purposes of preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life) and includes the prescription or supply of drugs;

No. 2. Clause 5, page 7, lines 22 to 27 [clause 5(2)]—Delete subclause (2)

No. 3. Clause 10, page 9, line 36 [clause 10(e)]—Delete 'autonomy can be exercised' and substitute 'a person can exercise their autonomy'

No. 4. Clause 12, page 12, lines 7 to 9 [clause 12(2)]—Delete subclause (2)

No. 5. Clause 23, page 16, line 19 [clause 23(4)]—Delete 'Subject to an express direction to the contrary in the advance care directive' and substitute:

Despite any provision of an advance care directive to the contrary

No. 6. Clause 36, page 21, after line 28—Insert:

(1a) Despite subsection (1), a health practitioner may refuse to comply with a provision of an advance care directive if the health practitioner believes on reasonable grounds that—

(a) the person who gave the advance care directive did not intend the provision to apply in the particular circumstances; or

(b) the provision does not reflect the current wishes of the person who gave the advance care directive.

Note—

This subsection does not, however, authorise a health practitioner to provide health care. If health care is to be provided, consent must be given in accordance with the Consent to Medical Treatment and Palliative Care Act 1995—see, for example, Part 2A of that Act.

No. 7. Clause 37, page 22, lines 6 to 18—Delete clause 37 and substitute:

37—Conscientious objection

Despite any other provision of this Act, a health practitioner may refuse to comply with a provision of an advance care directive on conscientious grounds.

No. 8. Clause 41, page 23, line 10 [clause 41(1)]—After 'in accordance with' insert:

, or purportedly in accordance with,

No. 9. New clause, page 25, after line 33—Insert:

46A—Guardianship Board to give priority to wishes of person who gave advance care directive

Without limiting Part 2, the Guardianship Board must, in performing a function or exercising a power under this Division—

(a) seek, as far as is reasonably practicable, to give full effect to the wishes of the person who gave the relevant advance care directive; and

(b) without limiting paragraph (a), to limit the intervention of the Guardianship Board as far as is reasonably practicable in the circumstances.

No. 10. Clause 50, page 27, line 21 to page 28, line 3 [clause 50(1)]—Delete subclause (1) and substitute:

(1) If, on the application of an eligible person in respect of an advance care directive, the Guardianship Board is satisfied that a person appointed as a substitute decision-maker under the advance care directive—

(a) is a person who cannot be a substitute decision-maker pursuant to section 21(2); or

(b) is no longer willing to act as a substitute decision-maker under the advance care directive; or

(c) has been negligent in the exercise of his or her powers under the advance care directive; or

the Guardianship Board may—

(d) revoke the appointment of the substitute decision-maker; or

(e) if the person who gave the advance care directive is competent—with the consent of the person, make any variation to the advance care directive the Guardianship Board thinks appropriate (including by appointing another substitute decision-maker); or

(f) if the person who gave the advance care directive is not competent, and if no other substitute decision-maker was appointed under the advance care directive—revoke the advance care directive.

(1a) If, on the application of the Public Advocate, the Guardianship Board is satisfied that, because of a change in the personal circumstances of—

(a) the person who gave the advance care directive; or

(b) a substitute decision-maker under the advance care directive,

it is no longer appropriate that a particular person be a substitute decision-maker under the advance care directive, the Guardianship Board may make any of the orders contemplated by subsection (1)(d), (e) or (f).

No. 11. Clause 50, page 28, line 14—Delete 'subsection (1)(e)' and substitute 'this section'

No. 12. Clause 50, page 28, line 21—Delete 'subsection (1)(e)' and substitute 'subsection (1)(f)'

No. 13. Clause 55, page 30, lines 8 to 10 [clause 55(3)]—Delete subclause (3)

No. 14. Clause 55, page 30, line 17 [clause 55(4)(c)]—Delete paragraph (c)

No. 15. Clause 55, page 30, lines 18 and 19 [clause 55(4)(d)]—Delete 'in relation to the advance care directive'

No. 16. Schedule 1, page 34, lines 10 to 19 [Schedule 1 clause 3(6), inserted definition of medical treatment]—Delete the definition and substitute:

medical treatment means the provision by a medical practitioner of physical, surgical or psychological therapy to a person (including the provision of such therapy for the purposes of preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life) and includes the prescription or supply of drugs

Note—

See also section 14, which extends this definition for the purposes of Part 2A to include other forms of health care.

No. 17. Schedule 1, page 37, after line 33—Insert:

(3a) Section 13—after subsection (1) insert:

(1a) Subject to this section, a medical practitioner may lawfully administer medical treatment to a person (the patient) despite a provision of an advance care directive given by the patient comprising a refusal of medical treatment if—

(a) the patient is incapable of consenting (whether or not the patient has impaired decision-making capacity in respect of a particular decision); and

(b) the medical practitioner who administers the treatment is of the opinion that the treatment is necessary to meet an imminent risk to life or health and that opinion is supported by the written opinion of another medical practitioner who has personally examined the patient; and

(c) the medical practitioner who administers the treatment reasonably believes that the provision of the advance care directive is not intended to apply—

(i) to treatment of the kind proposed; or

(ii) in the circumstances in which the proposed medical treatment is to be administered; and

(d) it is not reasonably practicable in the circumstances of the case to have the matter dealt with under Part 7 of the Advance Care Directives Act 2012.

(3b) Section 13(2)—delete 'subsection (1)' and substitute 'subsection (1)(b) or (1a)(b)'

No. 18. Schedule 1, page 47, lines 28 to 34 [Schedule 1 clause 16(7), inserted definition of medical treatment]—Delete the definition and substitute:

medical treatment means the provision by a medical practitioner of physical, surgical or psychological therapy to a person (including the provision of such therapy for the purposes of preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life) and includes the prescription or supply of drugs;

At 18:01 the house adjourned until Wednesday 10 April 2013 at 11:00.