Legislative Council: Thursday, November 16, 2023


Advance Care Directives (Review) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 October 2023.)

The Hon. R.A. SIMMS (16:11): I rise to speak on behalf of the Greens on the Advance Care Directives (Review) Amendment Bill. This bill amends the Advance Care Directives Act as a response to some of the concerns that were raised as part of the 2019 Lacey review. The Lacey review, I understand, was established to assess the extent to which the objects of the Advance Care Directives Act 2013 were being achieved.

The report considered legislative amendments and made 29 clear recommendations to improve the implementation of the act. There are now some very sensible amendments to this bill. Digital copies are proposed to be included to bring the act into line with modern practices. Recommendation 5 from the Lacey review included permitting and promoting the use of digital copies of certified advance care directives and the Greens are pleased to see this modernisation of the system and, of course, reduction in the use of paper.

Communities from culturally and linguistically diverse backgrounds will now have clarity around the use of interpreters to prepare advance care directives where English is not their first language. There is also a measure that was recommended in the Lacey review, which found that the use of interpreters under the act is insufficiently regulated and is open to abuse and possible conflicts of interest, both of which undermine the integrity of the act and the possible validity of advance care directives.

The bill also sets out criteria to refer matters to the tribunal and allows for resolutions of disputes by the Public Advocate. On passage of the bill in the other place, we note the insertion of new clauses to amend sections 19 and 36. These two amendments provide additional clarity around people who have advance care directives and present to medical practitioners having self-harmed or attempted suicide.

We have had stakeholders reach out to us in relation to this inclusion in the bill. They have raised concerns about the potential undermining of autonomy on which the Advance Care Directives Act is based. One of the issues they raised is that the right to refuse health care is fundamental to the act. Indeed, I have considered those concerns in contemplating my position on this bill.

On the balance of the information that we have, however, the Greens believe that medical practitioners need clarity around the implications of advance care directives in responding to medical situations as a result of an attempted suicide situation or self-harm. The bill makes it clear that in cases where a health practitioner reasonably suspects that a person has attempted suicide or self-harmed, and that a health professional believes that their health care is necessary to save their life, the provision of the advance care directive is non-binding. The Greens believe in suicide prevention and believe there needs to be investment in programs to ensure that people who have attempted suicide are provided the support they need to prevent future attempts.

We have always been supportive of advance care directives. I think they play an important role in giving people choices around the latter stages of their lives. They also facilitate, I think, important and meaningful discussions within families and within friendship groups around some of those issues. On that basis, the Greens will be supporting the bill.

The Hon. C. BONAROS (16:15): I rise to speak in support of the Advance Care Directives (Review) Amendment Bill 2022 and indeed echo all of the sentiments just expressed by my colleague. The bill does seek to simplify our laws following the 2019 review by Professor Wendy Lacey and I take this opportunity to thank her for her work in this area. It is my understanding that 22 of the 29 recommendations were supported by the previous government, following extensive expert academic and community consultation and input over an extended period. This was a new model that was introduced in the state. We did not really know exactly how it was going to work. We have identified where it has worked well, where it has not worked well, and that review is now giving us the opportunity to address where it has not worked well.

Of course, parliament was prorogued before the previous bill passed. That seems to be the subject of lots of bills that we have debated this year. But the reforms that we are now considering are the same in terms of allowing for digital copies to be taken as valid directives, making it clear there is no cap on the number of decision-makers, prescribing requirements in relation to the use of interpreters, and allowing for a hierarchy of substitute decision-makers.

Importantly, the reforms will make way for a document redesign because the current DIY kit is no longer considered fit for purpose. In fact, it is overly complicated enough to make qualified lawyers often abandon the task and if they are abandoning the task then I can only imagine the difficulties experienced by the layperson in the community, never mind someone who does not have English as their first language.

Perhaps, the most contentious aspect of the bill does relate to where a health practitioner suspects a patient has made an attempt to end their life, and I again agree with the comments by my colleague the Hon. Robert Simms. It is important to give clarity to health practitioners in the event a person presents with critical injuries due to self-harm or a suicide attempt, allowing for life-saving treatment despite the person having a valid ACD refusing treatment. I think it is important to note also recommendation 29 of the Lacey review, which reads:

The Act must be amended to ensure that it is explicit, in the operative provisions of the Act, that an ACD cannot be used as the basis for refusing life-saving treatment following an attempt to suicide or cause self-harm. The remainder of an otherwise valid ACD mut be preserved.

I remember when this was last debated having very in-depth discussions. When the Chief Psychiatrist calls and says he would like to come down and see you, we are all very attentive and for very good reason, I should say. On that particular occasion, there was no difficulty in alleviating any concerns that I had, which have also been canvassed by the Hon. Rob Simms, around voluntary assisted dying. That was, I think, well addressed by our Chief Psychiatrist, as it was by Professor Lacey in her review. I am comfortable with that position, as has been articulated to us, for the same reasons as the Hon. Robert Simms.

I do note the two amendments, though, filed by the Hon. Nicola Centofanti, which seek to ensure regulations cannot prescribe a signing order. I will say the prescribed order is found in the regulations, which currently says that the substitute decision-maker must first sign to accept the responsibility of implementing the wishes of the person making the advance care directive before the person making the directive can validly sign.

This is one of the things that has lawyers in a spin. The Law Society has actually strongly advocated for the change, most recently in correspondence and certainly I have seen that, and something like 878 legal practitioners signed an e-petition last year. I think that is a reflection of why we are doing this review in the first place, because you really should not necessarily need a lawyer to do this either. That was never the intent of the legislation either, so that is the first point.

There was an identical amendment filed in the house which failed to convince the government of its merits and I assume the same will occur here. The Lacey review concluded at finding No. 8. We all respect the position of the Law Society. I guess they are basing that on the practical effects of this prior to the changes that we are about to implement. Professor Lacey obviously invested a lot of time and effort into the workings of this piece of legislation and the necessary changes, and it was her view that there is no practical or legal basis for changing the order of signing with regard to ACDs.

I am content to follow the clear direction of the reviewer in this instance, but I will say this: I understand the frustration amongst the good people at the Law Society but I do remember, again, when I was being briefed on this, something that sprung to mind for me was if I approach somebody and ask them to sign my ACD and they are not really happy with the choices that I have made and that is the person who I am then imposing this obligation on, that would be a good time to have that discussion, as opposed to you signing and then allowing them to sign and realising that they have agreed to something that they are not terribly comfortable with.

The conversations are very important. They are supposed to facilitate open dialogue between parties who are going to be engaged in this. So if I was going to ask my sister to sign an ACD and she was not happy about my wishes, then I might not necessarily want her to be the person who is signing my ACD. I might want someone else who actually is more sympathetic to what I want signing the ACD. That is one thing, I suppose, that is controlled in some respect by the order of signatures.

That in and of itself is actually enough to convince me because the last thing you want to do is put people in that predicament where you are trying to alleviate as much as possible—I am not going to call it burden—the pressures that other people feel and at the same time we are trying to bring to fruition the actual wishes of the person who is in that situation. Having someone agree to something that they are not comfortable with, I do not think is necessarily a good outcome.

It can occur, basically, and so the order of signing in that respect, I think, is actually pretty important. It might not have even been the intent but it is certainly one of the examples that has convinced me that the order of signing should stay. Even if I did not hold that view, I would still take the advice of the reviewer who has actually done this body of work. With those words, I support the bill unamended.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:23): I thank all the people who have contributed on the second reading stage of this bill. It is a bill that is the result of very extensive work, as many members who have contributed have made clear. It is a bill that, again, has been spoken about and was close to passing before the pesky election interrupted the passage of this legislation. I look forward to the committee stage and bringing these reforms that have been a lot of time and effort in the making.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 5 passed.

New clause 5A.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 1 [Centofanti–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.

This is an amendment to section 15, which prescribes the requirements of the witnessing of advance care directives. The order of signing an advance care directive is different from other legal documents, in that currently the regulations require a substitute decision-maker to complete and sign the relevant part of an advance care directive form prior to an advance care directive being executed by the person making the direction or appointment.

This is apparently to ensure that the person making the direction or appointment is able to inform the substitute decision-maker about their values; however, in practical terms, the rigid order of signing significantly increases the risk that the advance care directive will not be signed by the principal in time for when it is needed and does not necessarily assure that substitute decision-makers understand their roles and responsibilities.

In particular—and I touched on it briefly in my second reading speech—this is particularly pertinent in rural and regional communities. Whilst I appreciate that we are in a digital age, digital signatures often will not be adequate in addressing these concerns as often elderly clients face a number of barriers in accessing technology.

This amendment essentially seeks to expedite the completion of advance care directives and to protect the validity of an appointment of a substitute decision-maker no matter the order of signatures by the signatories. To my knowledge, no other state or jurisdiction or territory, in fact, imposes the onerous order of signing provisions with respect to advance care directives.

The Hon. K.J. MAHER: I thank the honourable member for her amendment and her considered contribution. The act, regulations and educational material developed to assist the completion of advance care directives are intended to support people to write their own advance care directives. Some people may choose to use a lawyer; however, this is not a requirement and is not always an affordable option.

It is encouraged that an advance care directive be thoughtfully considered, which can take time and should include conversations with family, friends and particularly 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 completed in one sitting with a lawyer.

Furthermore, ensuring the wishes of the advance care directive maker are known and discussed with their substitute decision-maker or makers before the creation of a legal document that grants them responsibility increases the likelihood that these wishes will be respected and properly acted upon when required.

As other people have contributed and pointed out, Professor Wendy Lacey undertook a review of the act and her findings were tabled in parliament in August 2019. Professor Lacey looked extensively into the signing process in her report and concluded, as stated in finding No. 8, there is no practical or legal basis for changing the order of signing with regard to advance care directives and consequently made no recommendation in relation to this matter.

As the Hon. Connie Bonaros in particular has pointed out, I know there are differing views on this matter. Certainly, as recently as a couple of weeks ago at a meeting of the council of the Law Society, this was a topic of discussion and I do know that there are, particularly now within the Law Society, different views than what is being proposed to retain the order of signing in this bill.

I take into account the Hon. Nicola Centofanti's concerns raised, particularly of those living in regional or remote areas where the tyranny of distance makes the signing of documents sometimes more difficult. The Hon. Nicola Centofanti mentioned the possible use of electronic or digital signatures. That is not something that is possible at the moment, but it is certainly something that has been raised with me and I have undertaken to look into that.

We only recently changed regulations in South Australia to bring back into effect permanently the COVID era ability for electronic or digital signing of statutory declarations, which will make it a lot easier for people who do not have access to a justice of the peace or a lawyer to sign those forms, particularly, as the Hon. Nicola Centofanti is quite reasonably concerned, for people in regional or remote areas. I have given an undertaking that I am happy to look into it as it pertains to advance care directives also, but we do not support the amendment that is being put forward.

The Hon. R.A. SIMMS: The Greens will be supporting these amendments, but I will say that I thought the arguments of the Hon. Connie Bonaros and the Attorney-General were compelling. However, for us, we were persuaded by the fact that so many people in the legal fraternity had concerns around the process, and recognise that whilst it is not a requirement that a legal practitioner witness the advance care directive, it may well be that legal practitioners are involved in that process and it certainly made sense to listen to their views.

The Hon. F. PANGALLO: I rise to say that I will be supporting the amendment, and acknowledge the sentiments that were expressed by the Leader of the Opposition.

The Hon. C. BONAROS: I rise to indicate, as I did during my second reading contribution, that I will not be supporting the amendment, and the reasons why, but I am heartened by the fact that the Attorney has also given the undertakings that he has given to us today.

New clause inserted.

Clause 6 passed.

Clause 7.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 2 [Centofanti–1]—

Page 4, after line 21—Insert:

(2) Section 21—after subsection (3) insert:

(3a) Without otherwise limiting the requirements that may be set out in regulations made under this section relating to the appointment of substitute decision-makers, 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 to complete a part of an advance care directive form before the advance care directive can be witnessed.

This amendment is consequential to my previous amendment.

Amendment carried; clause as amended passed.

Remaining clauses (8 to 11), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:34): I move:

That this bill be now read a third time.

Bill read a third time and passed.