Bills

Advance Care Directives (Review) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 9 February 2023.)

The SPEAKER: Minister, if you speak you close debate.

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (11:01): I think I already have, but in any case I thank all members for their contributions.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 5 passed.

New clause 5A.

Ms PRATT: I move:

Amendment No 1 [Pratt–1]—

Page 4, after line 8—Insert:

5A—Amendment of section 15—Requirements for witnessing advance care directives

Section 15—after subsection (1) insert:

(1a) Without otherwise limiting the requirements that may be set out in regulations made under this section relating to witnessing an advance care directive, the regulations—

(a) cannot require an advance care directive to be signed or witnessed in a particular order; and

(b) cannot require a substitute decision-maker appointed under the advance care directive to have completed a part of an advance care directive form before the advance care directive can be witnessed.

I rise to move an amendment to section 15 of the act, which prescribes the requirements of the witnessing of advance care directives. The order of signing in an advance care directive is different from other legal documents such as a will or enduring power of attorney. Currently, the Advance Care Directives Regulations 2014 (SA) require a substitute decision-maker to complete and sign the relevant part of an ACD form prior to an ACD being executed by the person making the appointment.

The rationale is that this sequence of signing will ensure that the person making the appointment is able to inform the substitute decision-maker about their values. However, in our view, the rigid order of signing provisions provide little additional assurance that substitute decision-makers (SDMs) understand their roles and responsibilities. On the other hand, they significantly increase the risk that an ACD will not be signed by the principal in time for when it is needed.

Following fresh consultation on the bill and in particular with the Law Society, the opposition has decided to move an amendment to remove the order of signing provisions currently required under the act. The society has raised concerns that the current order of signing causes unnecessary delay in the finalisation of an ACD, where the person making the appointment is extremely ill or becoming increasingly forgetful and may lose capacity.

They also highlight the difficulties for practitioners and clients living in rural, regional and remote areas in getting ACDs finalised on short notice. I am also advised by the legal profession that measures such as digital signatures will not be adequate in addressing these concerns, as often elderly clients face a number of barriers in accessing technology.

The order of signing of ACDs has been an ongoing issue for the Law Society. They recently put forward a petition signed by nearly 900 of its members seeking the order of signing requirements to simply be removed.

I move this amendment to section 21(3) of the act to expedite completion of ACDs and to protect the validity of an appointment of a substitute decision-maker (SDM), no matter the order of signature by the signatories. To our knowledge, no other jurisdiction, state or territory imposes such onerous order of signing provisions with respect to advance care directives. The opposition moves this amendment to ensure that ACDs are as accessible as possible to all South Australians.

The Hon. C.J. PICTON: I indicate that the government is opposing this amendment. Safeguards have been put in place to protect South Australians who choose to record their wishes in an advance care directive. If this amendment is passed, those safeguards would be removed and, I am advised, potentially place the community at increased risk of coercion.

In line with the requirements of regulations 7 and 8 of the Advance Care Directives Regulations 2014, by signing last, the authorised witness is required to certify that (a) substitute decision-maker or decision-makers have completed the relevant parts of the advance care directive form; (b) substitute decision-makers accept being appointed; and (c) they have read and understood its associated substitute decision-maker guidelines. These objectives would not be met if the document was witnessed before the substitute decision-maker had signed.

It is acknowledged that the order of signing an advance care directive is different from other legal documents such as a will or an enduring power of attorney. However, this approach allows an authorised witness to satisfy their legal obligations by making sure that the advance care directive maker understands the nature and effect of their advance care directive, including the appointment of substitute decision-maker or decision-makers, and strengthens the process to ensure that there is no coercion involved in making it.

The Law Society of South Australia has been advocating for regulations 7 and 8 to be revoked since 2015. They believe that an advance care directive form should be signed by the substitute decision-maker after it has been signed by the person to whom an advance care directive relates—that is, after the advance care directive has been witnessed. This would enable the person making their advance care directive to potentially complete it in one sitting with their lawyer. The act, regulations and education material developed to assist the completion of an advance care directive are intended to support people to write their own advance care directive.

Now, some people may choose to use a lawyer; however, this is not a legal requirement. It is not always an affordable option. It is encouraged that an advance care directive be thoughtfully considered, which can take time, and should involve conversations with family, friends and a substitute decision-maker or makers about the person's wishes and preferences when it comes to all aspects of an advance care directive. It is not intended to be a process to complete in one sitting with a lawyer.

Furthermore, ensuring the wishes of the advance care directive maker are known and discussed with their substitute decision-makers before the creation of a legal document that grants them responsibility increases the likelihood that those wishes will be respected and properly acted upon when required. The Advance Care Directives Act 2013, the regulations and subsequent forms and website were developed in 2014 through a comprehensive consultation process with many stakeholders, which included the Law Society of South Australia.

In 2019, under the previous Marshall Liberal government, Professor Wendy Lacey undertook a review of the act, and her findings were tabled in parliament on 1 August 2019. Professor Lacey looked extensively into the signing process in her report, concluding—as stated in Finding 8—'There is no practical or legal basis for changing the order of signing with regard to ACDs', and consequently made no recommendation in relation to this matter.

Additionally, in 2021, the Department for Health and Wellbeing conducted a consultation process via YourSAy about the proposed changes to the act. In 2022, a further YourSAy consultation was conducted about an advance care directive form and DIY guide redesign project. No feedback regarding this matter has been received from the community or any other organisation, apart from the Law Society of South Australia.

The Department for Health and Wellbeing has previously sought advice regarding the concerns raised by the Law Society of SA from the Legal Services Commission of South Australia and the Office of the Public Advocate. Neither of these organisations support the proposal to change the order of signing. Furthermore, during her second reading speech, the member for Frome raised concerns about the potential risks that an advance care directive will not be signed by the principal in time for when it is needed if the order of signing is not changed.

The Department for Health and Wellbeing has not received any feedback from the general public indicating that this situation is occurring. However, if this should occur that an advance care directive has not been validly completed before capacity is lost, information recorded by an individual about their wishes can still help in guiding the decisions made on their behalf. These decisions will, however, be made by the person responsible as defined in section 14(1) of the Consent to Medical Treatment and Palliative Care Act 1995.

I stress the importance of having early conversations with any potential substitute decision-maker or makers and obtaining their acceptance and signature on the form before it is appropriately signed and witnessed. To further support timeliness in completing an advance care directive, especially when a substitute decision-maker is living interstate or internationally, the Department for Health and Wellbeing is currently exploring the use of digital signatures, which will help facilitate a timelier approach to obtaining signatures. Therefore, the government is opposing the amendment as moved, which would revoke the order of signing as stipulated in the regulations.

Amendment negatived.

Progress reported; committee to sit again.