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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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CONSENT TO MEDICAL TREATMENT AND PALLIATIVE CARE (END OF LIFE ARRANGEMENTS) AMENDMENT BILL

Introduction and First Reading

The Hon. S.W. KEY (Ashford) (10:36): Obtained leave and introduced a bill for an act to amend the Consent to Medical Treatment and Palliative Care Act 1995. Read a first time.

Second Reading

The Hon. S.W. KEY (Ashford) (10:36): I move:

That this bill be now read a second time.

It is with great pleasure that I rise to introduce the Consent to Medical Treatment and Palliative Care (End of Life Arrangements) Amendment Bill 2010. On my part, the bill is a product of many years of research and study overseas of both law and practice (including two visits to the Netherlands where voluntary euthanasia has been lawful for many years), the advice of leading South Australian doctors, people suffering from terminal and other incurable conditions, ministers of religion, lawyers, many people out there in South Australia who have taken the time to write to me and other members of both this house and the Legislative Council, and emails that I have received more recently supporting the move for an option of voluntary euthanasia.

I have received some letters—very few, I might add—raising concerns about the option of voluntary euthanasia, but, by far, there have been hundreds that have actually supported this move. Another concern in the community is the recognition of a human right not to die a death of needless pain, suffering and indignity.

The bill seeks to give effect to the wishes of more than 80 per cent of South Australians who support the legal regulation of voluntary euthanasia. It is based on the compassionate principle that no person with a terminal illness, or anyone who is suffering from an illness or injury to an extent that it makes life intolerable, should be forced by law to continue that suffering. I say that the bill seeks to regulate voluntary euthanasia, because, as we all know—or should know—many doctors do, with compassion, assist people who are faced with unbearable suffering to terminate their lives in as peaceful and dignified a manner as possible.

Doctors and the patients they seek to assist should have an appropriate legal regime with all possible safeguards, so that doctors (and those who assist them) do not risk their livelihoods and freedom by providing a compassionate medical service. The law should establish procedures to regulate voluntary euthanasia that are open and transparent. It should provide legal protection when voluntary euthanasia is done in accordance with the law and severe penalties when it is done outside of the law. It should also provide carefully thought out comprehensive and practical safeguards. I believe that this bill does achieve the right balance between the right of people not to be forced into needless suffering and the public interest in protecting the rights of vulnerable people.

I would like to make some brief remarks about the provisions. Medical conditions: the first issue is the conditions under which people may make a request to a doctor for voluntary euthanasia. An adult person of sound mind may make either an active or an advance request for voluntary euthanasia to be administered in a very limited range of circumstances and in accordance with a comprehensive series of safeguards. Active requests for voluntary euthanasia may be made by adults of sound mind who are suffering from the terminal stage of a terminal illness or an illness, injury or other medical condition (other than a mental illness) that irreversibly impairs the person's quality of life so that life has become intolerable to that person. The person must consult two doctors, at least one of whom is a specialist in the relevant area of medicine of which the person is suffering. All possible forms of treatment and palliative care must be explained to the person and, if there is any indication that the person is not of sound mind or is acting under the influence of another person, a psychiatrist must be consulted.

In the case of advance requests, an adult person of sound mind may make an advance request for her or his life to be terminated by a doctor in the event that, at some time in the future, they permanently lose consciousness. The person must consult and be examined by two doctors and, if either believes the person is not of sound mind or acting under duress, incentive or undue influence, they must refer the person to a psychiatrist. An advance request cannot lead to voluntary euthanasia being administered until the person permanently loses consciousness.

The second issue is the medical conditions that are excluded. Only one medical condition is expressly excluded. Mental illness will not be grounds for making a request for voluntary euthanasia. Mental illness is increasingly treatable, including in the most serious cases by a range of medications and evolving technologies. Unfortunately mental health is grossly underfunded, so this is an area that we really need to look at. Only a person of sound mind can make a request for voluntary euthanasia in this bill, so it is simply not possible for a mental illness to be a ground under my bill.

There are two other conditions that are excluded but they are not in the bill; these are old age and disability. They are not listed in the bill because, if you read clauses 35 and 36, they are not within the definitions. There is confusion and misunderstanding about voluntary euthanasia, so I want to make it plain: in my bill, neither old age nor disability are the terminal stage of a terminal illness nor are they illnesses or injuries that irreversibly impair a person's quality of life so that life becomes intolerable. They are not within the definitions and, therefore, not grounds for a person to request voluntary euthanasia.

The third main issue is the means by which the doctor may administer voluntary euthanasia. Provided the person meets the stringent eligibility criteria, and all of the safeguards have been complied with, then a doctor may end the person's life by the administration of drugs in quantities likely to end life, prescribing such drugs for the person to self-administer, or by the withdrawal or withholding of medical treatment. If a person does self-administer the drugs, then the doctor must remain in the premises while they are being taken or else retrieve them.

The fourth provision in this bill, which I wish to talk about this morning, is a proposed Voluntary Euthanasia Board of South Australia. The board will comprise seven members, of whom at least three must be medical practitioners and two must be legal practitioners of at least seven years' standing. The board will employ a registrar, who must receive and place on the register all requests for voluntary euthanasia before they can become valid requests.

The board will have the power to inquire into any requests for voluntary euthanasia on the application of the person who is making the request, of either of the two doctors consulted, the psychiatrist (if relevant), the person's treating doctor, or the doctor proposing to administer VE. The board will also have powers to inquire into a request on its own motion or referred to it by the registrar.

It will have the powers to confirm, deny or vary any request for voluntary euthanasia and refer questions of law to the Supreme Court of South Australia. Appeals against orders or declarations of the board may be made to the Supreme Court of South Australia on the application of the person making the request, the person's treating practitioner to whom the request was made, either of the two doctors who examine the person, the registrar of the voluntary euthanasia board of South Australia, or a nominee of any of the above-named persons.

One of the areas I am keen to make sure is in the bill is penalties for breaches of the law. The most significant of these is up to 20 years' imprisonment for people who make false or misleading statements or engage in other wrongful conduct that leads to the death of a person and, in certain cases, automatic loss of any interest a person might otherwise have in the person's estate.

A number of safeguards are also included in my bill. One in particular that I think it is important to stress is that no person with an interest in a person's estate may be a witness to the request for voluntary euthanasia, nor may any owner, operator, employee or agent of a nursing home or similar institution in which a person is resident.

There is a provision for only reasonable costs to be charged for administering or assisting in the administration of voluntary euthanasia. No for-profit voluntary euthanasia facilities may be established. Insurance companies will be prohibited from offering to fund voluntary euthanasia, unless first asked by the insured person.

There is a residency requirement of 12 months, which will ensure that only South Australian residents are to apply for voluntary euthanasia. Interpreters must be available for any person whose first language is not English, and there is also a provision in my bill for when someone is unable to write or confirm their wish in the normal way. There is an opportunity for a video or filming facility for that person so that there is a record of their decision.

There are protections for doctors, nurses and others who do not wish to be involved in the administration of voluntary euthanasia and protections for those who are prepared to be involved. The bill protects the right of any person to refuse to participate or assist in the administration of voluntary euthanasia. It also protects any medical practitioner or other person who does administer or assist with the administration of voluntary euthanasia.

Some opponents will argue that this bill is the start of a slippery slope; others will fear that, once a person is allowed to make a request, for the doctor to end their life, the next step will be to allow doctors to end the life of people without their consent. My bill does not allow for that. The evidence from jurisdictions where voluntary euthanasia is legal, including the Netherlands, Belgium, Luxembourg and Oregon, is that there is no slippery slope. In fact, one major study shows higher rates of non-voluntary euthanasia in Australia than in the Netherlands. If there is a slippery slope, then parliament would have to vote for it. I will not vote for it, and I do not imagine anyone else in parliament would either. The slippery slope argument is really scaremongering.

I am advised that it might not be possible to reliably estimate the number of Australians who would exercise their right to choose the time of a peaceful, dignified and possible death. However, if we compared South Australia with Belgium—and my bill is closer to the Belgian model than any other model—perhaps a maximum of about 80 people per year would exercise their right to have voluntary euthanasia administered. I think it would give those people suffering in South Australia a choice. I commend the bill to the house, and I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

This measure will commence on the making of a proclamation by the Governor, or, should that not happen within 6 months of assent, it will commence on the 6 month anniversary of assent.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Consent to Medical Treatment and

Palliative Care Act 1995

4—Amendment of long title

This clause amends the long title to reflect the fact that the scope of the Act is broadened by this measure.

5—Amendment of section 1—Short title

The short title of the Act is amended to reflect the changed scope of the Act.

6—Amendment of section 3—Objects

This clause inserts new paragraph (d) into section 3 of the Act, setting out the objects of the Act as amended by this measure.

7—Insertion of Part 2 Division A1

This clause inserts new Part 2 Division A1, consisting of new section 5A, which provides that Part 2 of the Act, dealing with medical treatment, does not apply to, or in relation to, medical treatment consisting of the administration of voluntary euthanasia to a person, and contains relocated section 18 of the current Act.

8—Amendment of section 14—Register

This clause makes a consequential amendment following the insertion of new Part 4 Division 2.

9—Repeal of section 18

This clause repeals section 18, as the provisions of that section are now to be found in new section 5A.

10—Substitution of Part 4

This clause substitutes Part 4 of the current Act (currently only a regulation making power) to insert a new Part 4 dealing with the end of life arrangements of certain people as follows:

Part 4—End of life arrangements

Division 1—Preliminary

18—Interpretation

This section defines key terms used in the Part.

19—Object and principles

This clause sets out the objects and principles of the Part.

20—Approval of interpreters

An interpreter of a particular language, in relation to interpreting and translating services required under the Part (for example, in relation to making a request for voluntary euthanasia), must ordinarily be a person accredited as a translator or interpreter (or both) in that language by the National Accreditation Authority for Translators and Interpreters Ltd. However, if such a person is not reasonably available, then the Minister may approve a person to act as the requisite interpreter in relation to a particular request.

Division 2—End of life arrangements other than voluntary euthanasia

21—Refusal of future medical treatment so as to bring about death

This section allows an adult person of sound mind to give an anticipatory direction that he or she refuses to consent to certain medical treatment, and further that he or she be allowed to die. The direction only enlivens if the person is incapable of making decisions about medical treatment when the question of administering the treatment arises. The section also makes procedural provisions in respect of such a direction.

22—False or misleading statements

It is an offence for a person to make a false or misleading statement in, or in relation to, a direction under new section 21. The maximum penalty for such an offence is, where a person has died as a consequence of the statement, 20 years imprisonment. In any other case, the maximum penalty is 10 years imprisonment.

Division 3—Voluntary euthanasia

Subdivision 1—Administration

23—Establishment of Board

24—Composition of Board

25—Terms and conditions of membership

26—Presiding member

27—Functions of Board

28—Board's procedures

29—Conflict of interest etc

These clauses establish the Voluntary Euthanasia Board of South Australia, and deal with matters related to the establishment etc of the Board. The Board has the function of advising the Minister and is to carry out any other functions assigned to it under the Act or by the Minister. Of particular note is the conferral of powers to conduct inquiries, and make declarations and orders, under section 41. However, the Board is not required to inquire into or approve each request for voluntary euthanasia, rather it only acts in relation to a particular request following an application for a declaration, or following an inquiry (whether the inquiry was a result of an application for a declaration or was conducted on the Board's own motion).

30—Other staff of Board

The Board will have such staff as it thinks necessary, and may make use of the services or staff of an administrative unit of the Public Service under an arrangement with the relevant Minister.

31—Annual report

The Board is required to prepare an annual report into its work in the preceding financial year. This report must be laid before both Houses of Parliament.

Subdivision 2—Register

32—Registrar of Board

This section establishes that there is to be a Registrar of the Board.

33—Register

This section requires the Registrar to keep a register that contains the specified information in relation to each request for voluntary euthanasia.

The section also sets out what must happen should the Registrar become aware of a revocation or purported revocation of a request for voluntary euthanasia.

34—Registrar may require information

This section enables the Registrar (for the purpose of preparing and administering the Register) to require a person to provide the Registrar with such information as the Registrar may require.

Subdivision 3—Voluntary euthanasia

35—Active requests

This section provides for the making of active requests for voluntary euthanasia.

Subsection (1) sets out who can make an active request.

Subsection (3) sets out matters that must be complied with in making a request, including the information that must be given to the person making the request, the medical examinations or consultations that must occur (there must be a minimum of 2 independent examinations, 1 of which must be conducted by a specialist in the relevant area of medicine) and a requirement that the applicant be resident of this State for 12 months prior to making a request or have made a current request under the law of another jurisdiction.

The section sets out a requirement that, if the request practitioner or specialist practitioner suspects that the person is not of sound mind, or their decision making ability is affected by their state of mind, or they are acting under duress, inducement or undue influence, the person must consult a psychiatrist and obtain a certificate as to specified matters prior to making their request.

The section further sets out procedural matters in respect of making a request where the person is not able to write, or is not fluent in English.

The section sets out requirements as to the form that a request must take, and the documents that must accompany it.

An active request has effect from the time that it is entered on the Register (that is to say the Board or the Registrar is not required to approve the request before it takes effect) and remains in force until it is revoked.

36—Advance requests

This section provides for the making of advance requests for voluntary euthanasia to be administered should the person who made the request suffer a permanent deprivation of consciousness.

The requirements in relation to making an advance request are largely the same as for active requests, with the difference being that, because a person need not be suffering an illness etc at the time of making the request, the second doctor is not a specialist, rather their role is to independently consider the person's soundness of mind, whether their decision making ability is affected by their state of mind, or whether they are acting under duress or inducement.

37—Request form etc to be forwarded to Registrar

This section requires the medical practitioner who accepts a request for voluntary euthanasia to forward the specified forms, documents and records to the Registrar. Failure to do so, without reasonable excuse, is an offence.

38—Variation of requests

This section provides that a request for voluntary euthanasia may be varied with the authority of the Board. However, a request cannot be varied if the proposed variation significantly changes the nature of the request.

39—Interaction between requests

A person's request for voluntary euthanasia revokes all earlier requests for voluntary euthanasia made by the person.

40—Revocation of requests

This section sets out how a request for voluntary euthanasia can be revoked. A person's request will be taken to be revoked should the person make any indication whatsoever that he or she wishes to revoke the request, whether or not the person is mentally competent at the time the indication is given.

The clause then sets out the responsibilities of medical practitioners and others to advise the Registrar upon the person becoming aware of a revocation. It is an offence carrying a maximum penalty of up to 20 years imprisonment for a medical practitioner or other person to refuse or fail, without reasonable excuse, to comply with a requirement under this section.

Subdivision 4—Board declarations and orders

41—Board declarations and orders

This section sets out the powers and functions of the Board insofar as they relate to the Board's ability to make declarations and orders.

The Board may, on the application of a person of a kind specified in subsection (1) but not otherwise, make declarations of the following kind under subsection (2):

(a) a declaration that a person who made a request is, or is not, a person to whom section 35 applies;

(b) in the case of an advance request—a declaration that a person who made a request is suffering from a permanent deprivation of consciousness;

(c) a declaration that a condition specified in the request has, or has not, been satisfied;

(d) a declaration that a requirement under this Act in relation to the making of the request has, or has not, been satisfied.

Medical practitioners who may administer voluntary euthanasia to a patient, and other persons specified in subsection (1), can seek a declaration so as to provide certainty in respect of actions they may take in relation to the administration of voluntary euthanasia.

The Board may also make the kinds of orders set out in subsection (7). Unlike the declarations, the Board can make these orders following inquiries undertaken on the Board's own motion, in addition to inquiries arising out of an application for a declaration under the section. Failure to comply with an order under the section is an offence carrying a maximum penalty of up to 20 years imprisonment.

The section does not, however, require the Board to inquire into every request for voluntary euthanasia.

The section further sets out procedural matters in relation to the consideration of applications, including requiring matters to be heard as a matter of urgency, and not be open to the public.

42—Powers of Board in relation to witnesses etc

This section is a standard provision setting out the powers of the Board in relation to witnesses, including the power to require persons to appear before, and documents to be provided to, the Board.

Witnesses before the Board have the same protections as witnesses in proceedings before the Supreme Court.

43—Access to Board records

The persons specified in section 41(1) can inspect records of proceedings of the Board in respect of a declaration under section 41. Other people can only inspect the records if the Supreme Court authorises them to do so.

Subdivision 5—Appeal

44—Right of appeal to Supreme Court

This section sets out appeal rights to the Supreme Court in respect of declarations or orders under section 41. Only the persons specified in section 41(1) can institute such an appeal.

Subdivision 6—Administration of voluntary euthanasia

45—Administration of voluntary euthanasia

This section sets out when and how a medical practitioner may administer voluntary euthanasia. Subsection (1) provides a list of matters that must be satisfied before voluntary euthanasia can be administered to a person.

Subsection (2) sets out the methods by which voluntary euthanasia may be administered.

The provision also sets out procedural matters relating to the administration of voluntary euthanasia, including the handling by medical practitioners of drugs used, or intended for use, in the administration of voluntary euthanasia, and a requirement that the medical practitioner administering voluntary euthanasia examine the person to whom voluntary euthanasia has been administered to ensure the person has died.

46—Report to State Coroner

This section requires a medical practitioner who has administered voluntary euthanasia to a person to submit a report to the State Coroner, and sets out what the report must contain.

The State Coroner must forward a copy of the report to the Board.

Subdivision 7—Offences

47—Undue influence etc

It is an offence for a person to induce another to make a request for voluntary euthanasia by means of dishonesty or undue influence. The maximum penalty is up to 20 years imprisonment (where a person has died as a result of the inducement).

48—False or misleading statements

It is an offence for a person to make a false or misleading statement in relation to a request for voluntary euthanasia. The maximum penalty is up to 20 years imprisonment (where a person has died as a result of the statement).

49—Limitation of fees

This section prevents a medical practitioner or other person from receiving fees in relation to requests for, and administration of, voluntary euthanasia that exceed the reasonable costs they have incurred in relation to their actions.

Should a person be convicted of an offence against the section, a court can require them to account for any fees received in contravention of the section.

Division 4—Miscellaneous

50—Certain persons to forfeit interest in estate

This section provides that a person who commits an offence against new section 47 automatically forfeits any interest they may have in the estate of the person who was induced by them to make a request for voluntary euthanasia.

Similarly, a court has the discretion to order, on the application of the prosecution, that a person who commits an offence against new section 40(4) or 48 forfeit any interest they may have in the estate of the person who made a request for voluntary euthanasia as a result of their conduct.

51—Protection from liability

This clause confers immunity from civil or criminal liability on a person for an act or omission done or made in good faith, without negligence and in accordance with a direction under new section 21.

Similarly, persons involved in, or in relation to, a request for, or the administration of, voluntary euthanasia incur no liability of the kinds, and in the circumstances, set out in subsection (2).

The protections under the section extend to disciplinary or similar proceedings.

52—Imputation of conduct or state of mind of officer etc

This provision imputes the conduct and state of mind of an officer, employee or agent of a body corporate, or an employee or agent of a natural person, to the body corporate or person. This allows the body corporate or natural person to be held accountable for the actions of their employees etc to the extent that they were acting within their usual or ostensible authority.

However, there is a defence available to the body corporate or natural person if they prove that the alleged contravention did not result from any failure on the defendant's part to take all reasonable and practicable measures to prevent the contravention or contraventions of the same or a similar nature.

53—Liability of directors

This section extends the liability of a body corporate, in relation to a particular offence committed by the body corporate, to each of its directors (except where the principal offence did not result from failure on the director's part to take reasonable care to prevent the commission of the offence).

54—Cause of death

Subsection (1) is a restatement of current section 17(3).

This section provides that, where voluntary euthanasia is administered to a person, the cause of death will be taken to be the underlying illness, injury or medical condition, and not suicide or homicide.

55—Insurance

This section prevents an insurer who may be liable to make payment under a life insurance policy following the death of a person from refusing to make the payment simply because treatment was withdrawn etc in accordance with a direction under new section 21, or because voluntary euthanasia was administered to the person.

It is an offence for an insurer to ask a person to disclose whether they have made a request for voluntary euthanasia.

Moreover, an insurer must not, in any way, encourage or promote voluntary euthanasia as alternative to other treatment. A person convicted of an offence against this provision will be liable to up to 5 years imprisonment if they are a natural person, or a fine of $600,000 if they are a body corporate.

Finally, subsection (5) provides that the section applies despite any agreement to the contrary between an insurer and a person.

56—Person may decline to administer or assist the administration of voluntary euthanasia

This section makes it clear that a person who does not wish to take any part in relation to voluntary euthanasia can do so without suffering adverse consequences, whether to their employment or otherwise.

However, certain institutions need to advise prospective patients or residents before they enter the institution that they will refuse permission to administer voluntary euthanasia on the premises (and must give the patient the name of an institution that does permit voluntary euthanasia to be administered), This will assist the patient to choose whether or not to enter the institution.

57—Victimisation

This section is a standard victimisation provision preventing people who take part in a request for, or administration of, voluntary euthanasia in accordance with the Act from being victimised for doing so. What constitutes victimisation or detriment is set out in subsection (4).

58—Review of Part by Minister

This section requires the Minister to cause a review of the operation of new Part 4 to be conducted within 2 years of its commencement, and for the report to be laid before both Houses of Parliament.

Part 5—Miscellaneous

59—Confidentiality

This is a standard confidentiality provisions protecting the privacy of information gathered in the course of the administration of the Act.

60—Service

This section is a standard provision setting out how service of documents etc may be effected.

61—Regulations

This clause provides a regulation-making power for the Act (as amended by this measure) that is consistent with modern drafting practice.

Schedule 1—Active request form

This Schedule sets out requirements in respect of the contents of an active request form.

Schedule 2—Advance request form

This Schedule sets out requirements in respect of the contents of an advance request form.

Debate adjourned on motion of Mr Williams.

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