Advance Care Directives (Review) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (12:35): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them.

Leave granted.

This Bill seeks to amend the Advance Care Directives Act 2013 to improve the functioning of Advance Care Directive legislation in South Australia. This is necessary to continue supporting the community and health practitioners by having legislation that is up to date and appropriate for the task of achieving compliance with the Act.

The Bill enhances the operation of the Act in response to the statutory review of the Act that was conducted by Professor Wendy Lacey in 2019.

The Advance Care Directives Act 2013 was passed by the South Australian Parliament in 2013 and commenced on 1 July 2014.

An Advance Care Directive enables a competent person to make decisions and give directions in relation to their future health care, accommodation arrangements and personal affairs; provides for the appointment of adults, known as substitute decision-makers, to make such decisions on behalf of the person if a person is not able to make them due to impaired decision-making capacity; ensures that health care is delivered to the person in a manner consistent with their wishes and instructions; facilitates the resolution of disputes relating to advance care directives; and provides protections for health practitioners and other persons giving effect to an advance care direction.

Section 62 of the Act provides for a review of its operations to be completed before the fifth anniversary of the commencement of the Act.

The Department for Health and Wellbeing engaged Professor Wendy Lacey to undertake the review which was conducted over a 10-week period from 10 April 2019 to the end of June 2019. Professor Lacey consulted extensively, with both targeted consultation with interested organisations, persons and professions; as well a broad invitation to contribute provided to members of the community.

The Lacey Review made 29 recommendations and was tabled in Parliament on 1 August 2019. The former Government's Response to the Review was tabled in Parliament on 23 July 2020 and supported, in full or in principle, 22 of the recommendations.

To guide the implementation of the recommendations of the Review, an Advance Care Planning Oversight Group and a Working Group were established by the Department for Health and Wellbeing. This ensures the implementation has been overseen by a broad range of stakeholders from the health, aged, disability, legal and community sectors, including the Australian Medical Association, Council on the Ageing and the Legal Services Commission South Australia.

The Malinauskas Labor Government is committed to continuing to implement the recommendations of the Lacy Review to improve the functioning and uptake of Advance Care Directives in South Australia.

This Bill has been drafted to implement the recommendations of the Review that recommend changes to the Act. It closely aligns with the Bill that was introduced into Parliament in 2021, which was subject to extensive consultation in 2021.

The Bill includes amendments on the following:

Inclusion of references to digital copies of ACD documents

Interaction with other Acts and laws

Giving advance care directives where English is not the first language

Requirements in relation to appointment of substitute decision makers and their empowerment

Effect of advance care directives in suspected suicide or self-harm attempts

Resolution of disputes by Public Advocate; and

Referral of certain matters to Tribunal.

The Bill as introduced in the other place did not initially include an amendment to sections 19 and 36 to clarify the effect of an advance care directive on the provision of health care when a health practitioner reasonably suspects that a person has attempted suicide or self-harm. The Minister for Health and Wellbeing moved to amend sections 19 and 36 on 31 August 2022 to provide the opportunity for debate and a conscience vote on the matter.

In 2021, the former Minister for Health and Wellbeing, Hon Stephen Wade moved a similar amendment in this place to insert section 36A into the principal Act with the intent to address Professor Lacey's recommendation.

Members may recall that Bill to amend the Act did not pass before Parliament was dissolved for the 2022 State Election.

The amendments to sections 19 and 36 improve upon previous iterations of this legislation by ensuring additional safeguards are in place against misuse.

These additional safeguards include:

that provisions written in to an advance care directive that explicitly refuse health care arising out of, or directly related to, a attempt of suicide or self-harm will no longer be binding provisions;

that a health practitioner will need to have reasonable grounds for believing that a suicide or self-harm attempt has been made and that provision of health care is necessary to save the life of that person;

that health practitioners will be required to record and report health care provided in contravention to a binding provision of an advance care directive;

that these amendments will not compel health practitioners to provide treatment, nor force them to disregard binding provisions; and

there are also further clarifying notes and examples on the effect of the amendments for the avoidance of doubt.

As I understand it, the debate that occurred in the other place on 31 August 2023 supported and commended the Bill to Parliament and subsequently passed without further amendment.

The Malinauskas Labor Government acknowledges the concern of some members of the community that the amendment will, in limited instances and scenarios envisaged by this particular amendment, remove the autonomy of the person to make their future decisions binding through an advance care directive. However, on balance we are confident the amendment supports health practitioners to provide the best care for our community.

The Government wants to thank all the key stakeholders for their work in working with the Department for Health and Wellbeing to try to reach what resulted in a consensus position in the other place and I hope will continue that way following today's debate.

We would also like to thank a few of the key people who have been instrumental in leading this work over many years, including the former minister of the other place the Hon. Martyn Evans for his work and his passionate advocacy in relation to advance care directives for many years. We also thank the Australian Medical Association and their officials, including Dr Chris Moy, and the Chief Psychiatrist, Professor John Brayley.

Strengthening Advance Care Directives legislation will support all South Australians to make clear legal arrangements for their future health care.

I commend this Bill to members.

I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Advance Care Directives Act 2013

3—Insertion of section 5A

This clause inserts new section 5A into the principal Act, providing for the recognition of certain digital copies of advance care directives.

4—Insertion of section 8A

This clause inserts new section 8A into the principal Act, setting out the relationship between the principal Act and other Acts and laws.

5—Amendment of section 14—Giving advance care directives where English not first language

This clause amends section 14 of the principal Act to set out requirements and limitations relating to the use of interpreters under the Act.

6—Amendment of section 19—Binding and non-binding provisions

This clause amends section 19 of the principal Act to provide that a provision of an advance care directive that purports to be a refusal of health care arising out of, or directly related to, the attempted suicide or self-harm of the person who gave the advance care directive will be taken to be a non-binding provision.

7—Amendment of section 21—Requirements in relation to appointment of substitute decision-makers

This clause amends section 21 of the principal Act to clarify that there can be any number of substitute decision-makers under an advance care directive.

8—Substitution of section 22

This clause substitutes a new section 22 into the principal Act setting out the relationships between substitute decision-makers under an advance care directive and how they exercise their powers, including by providing for orders of precedence.

9—Amendment of section 24—Exercise of powers by substitute decision-maker

This clause amends section 24 of the principal Act to provide that substitute decision-makers under an advance care directive can produce certified or electronic copies of advance care directives rather than the original.

10—Amendment of section 36—Health practitioners to give effect to advance care directives

This clause amends section 36 of the principal Act to set out the way in which provisions of an advance care directive amounting to a refusal of consent operate, where a health practitioner reasonably suspects that the person giving the advance care directive has attempted suicide or has self harmed and that life saving health care is required. In such cases, the health practitioner may provide that treatment in contravention of a provision of the advance care directive to save the life of the person. The amended section also makes procedural and explanatory provisions in relation to such treatment, including the need for the health practitioner to make certain records.

11—Amendment of section 45—Resolution of disputes by Public Advocate

This clause amends section 45 of the principal Act to remove to the ability of the Public Advocate to make certain declarations relating to mediation under the section.

Schedule 1—Statute law revision of Advance Care Directives Act 2013

This Schedule is a statutes law revision exercise correcting obsolete references and gendered language in the principal Act.

Debate adjourned on motion of Hon N.J. Centofanti.