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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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ADVANCE CARE DIRECTIVES BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2012.)

Ms CHAPMAN (Bragg) (12:04): Madam Speaker, what an honour it is to have you in the seat here during this very important debate. I was discussing at the second tranche of my contribution on this yesterday the predicament that we in South Australia are in as one of the only Australian jurisdictions in which advance care directives completed in other jurisdictions are not recognised. The Hon. Michelle Lensink in another place tabled a private member's bill to address this lack of recognition, so I give her credit in these debates for bringing this matter to the attention of the parliament to remedy this.

Quite possibly, members in this house will have been confronted with the difficulty of people who have come from across the border, especially those members who represent electorates that go to the South Australia border, particularly with New South Wales and Victoria. The member for Mount Gambier might, indeed, have difficulties in this regard, and no doubt the member for MacKillop, the member for Hammond and the member for Chaffey would have experienced this.

Members interjecting:

Ms CHAPMAN: And the member for Stuart, of course, whose electorate also reaches the border. So, from time to time, they would actually have a significant transfer of persons. What this means is that people who had legitimately signed directives in another state in the reasonable expectation that they would be honoured and recognised if they moved into another state have found that, in coming to South Australia, that is not the case. Of course, this usually only comes to the attention of somebody when the circumstance occurs when one needs to rely on it, and often it is then too late because one of the parties is already suffering an incapacity, for example.

This bill is to remedy this situation. It is consistent with the whole concept of mutual recognition that, where there has been a legitimate process undertaken in one jurisdiction, it be recognised somewhere else. This is not exclusive to this area of legal documents. With even something as simple as a marriage, if it is legally undertaken in another jurisdiction, another country, and it complies with all the laws of that jurisdiction, then we in Australia recognise that under our Marriage Act. This is not a unique situation but, in this instance, there had been a deficiency, so, thanks to the Hon Michelle Lensink, we now have that provision in this bill and hopefully this will remedy that.

I just also want to mention the concept of 'responsible person' because, under the Consent to Medical Treatment and Palliative Care Act 1995, consent arrangements in the absence of an advance care directive for patients unable to consent are to be clarified under amendments in this bill, and there is also the introduction of a dispute resolution process, including voluntary mediation.

Under the Guardianship and Administration Act, where there is no legally appointed representative such as a guardian, enduring guardian or medical agent, limited relatives can consent to health care on behalf of an adult with a mental incapacity. Amendments to the consent act—which, of course, is the Consent to Medical Treatment and Palliative Care Act 1995—lay down the responsible person who can consent to health care on behalf of patients with impaired decision-making capacity if there is no advance care directive.

The person is to be identified by the following hierarchy, in order: the amendments set out the provision for a guardian appointed by the Guardianship Board; where there is no guardian, a prescribed relative of the patient; if there is no guardian or prescribed relative, an adult friend; and, if there is no-one in the previous categories, an adult charged with overseeing the ongoing day-to-day supervision; and, if there is no-one who meets all those criteria and who is available and willing to make a decision upon application, the Guardianship Board can consent to the proposed treatment. So, there is a hierarchy of persons to be considered to undertake that task.

A responsible person is required to make a decision that they honestly believe the person would have made in the current circumstances; and, if an individual does not want the person responsible to be making decisions for them in the future and they are competent, they should be encouraged to complete an advance care directive.

A responsible person will be subject to a similar dispute resolution process for other advance care directives. The consolidation of the regimes for establishing directives in this area is good, the educative role which has been announced is important and the capture or recognition and remedying of some deficiencies along the way have been welcomed. Finally, the establishment of a dispute resolution process, which hopefully will more simplify matters, is also meritorious.

I come now, however, to some concerns raised, and I think that, in speaking to other members in the house, the actual operation of this bill has raised some concerns. Certainly from my perspective I have not received any criticism of the review or of the identified aspirations of the legislation by way of consolidation and reform that I have referred to; and, indeed, there have been quite a few welcoming comments made about those aspects of the intention of this legislation.

In her correspondence, the chair of the Palliative Care Council, Mary Brooksbank, has identified some concerns. I will just try to summarise them as she indicates to me as follows:

As Chair of the Palliative Care Council SA I am very concerned about the amendment to the Coroners Act 2003 section 3—Interpretation which now includes a new Part 2A of the Consent to Medical Treatment and Palliative Care Act 1985 in the category of reportable deaths. I think this has come about because the hierarchy of who can give consent when a person has impaired capacity has now moved out of the Guardianship Act 1993 into the new Part 2A of the Consent to Medical Treatment and Palliative Care Act as part of the amendments relating to the Advance Directives Act. However, as almost every death in palliative care includes a period of impaired decision making as patient near death, and family are usually consulted about the appropriate treatment abatement, simply as part of good medical practice and good communication, it seems that almost every death becomes reportable, except those where a formal advance directive has been made or a surrogate decision-maker formally appointed. This would be an unworkable situation and I am seeking urgent clarification of the intent of this change.

This is a matter which I think other members have had brought to their attention. As I understand, the minister is also cognisant of this concern, and I would invite him to advise the house in due course as to whether that is a reasonable concern or, indeed, more particularly, that it is covered by virtue of the definition that is proposed. Alternatively, some indication from the minister would be appreciated to consider any amendments that might be necessary.

It is one where I think that members in both houses have been apprised, and therefore if there was some commitment by the government to confirm that there is not a problem or undertake to address it then we would be dealing with it. I have not had any submission, I should say, from the Coroner but others may have, and the minister may have consulted with the Coroner about any concerns that he may have about that because that would, of course, result in an extraordinary amount of extra work for the Coroner's office, and I am certainly aware of the concerns of limited resources that he has to undertake his existing duties, let alone an extension.

The second matter comes as a result of correspondence from Marion Seal, who I think is a professor at the Deakin School of Nursing at the University of Adelaide. If she is something higher than a professor, I do not wish to minimise her position.

The Hon. J.D. Hill: She is a registered nurse.

Ms CHAPMAN: I am advised, helpfully, by the minister that she is a registered nurse—a very important qualification. In any event, clearly she has an academic role with the University of Adelaide. She has co-authored a letter with Dr David Pope, the president of SASMOA (South Australian Salaried Medical Officers Association), and I have had some independent correspondence from Andrew Murray, who is the secretary of that association. I will refer to it in a moment, but I point out that I have not heard at all from the nurses union about this matter, which surprises me. I do not know whether the government has received any correspondence in respect of the bill. I would have expected that they would be a group, along with other medical associations, including the AMA, who would have been consulted during this very long period.

I am not reflecting on the government and implying that in some way they are excluded, but it seems, from what has been raised by Ms Seal, that it is surprising that I have not heard from the nurses union at all because I would have thought that these were exactly the sort of things that would need to be covered by thousands of nurses who work in South Australia, many of whom work in the rural sector.

I will summarise the correspondence that Ms Seal and Dr Pope co-authored by saying that they applaud the initiatives of the Advanced Care Directives Bill as being well intended and an important and valid expression of patient autonomy. They go on to say:

However, we point out there are significant operational problems with some sections of the Bill which may inadvertently mean some people die in a manner and circumstances not intended and where health care would prevent such a death. Deaths such as these would be needless and unintentional.

Alternatively, if health care practitioners provide health care that the Bill classifies as refused by the individual's ACD, but this care is reasonable and would likely be wanted by a person in the circumstances, then the health care practitioner could be subject to a career ending sanction—namely a finding by a professional regulatory board of unprofessional conduct as imposed in this Bill.

Then the specific concerns are identified, the first being:

The broad parameters of the proposed ACDs, rather than the current end phase of life provisions, in which refusals of life sustaining treatments can apply with no requirement for the person to demonstrate they understand the consequences of their decisions. People may make unwitting ACD e.g. refuse Cardio Pulmonary Resuscitation (CPR) and present to hospital unconscious with treatable pneumonia or even an accidental drug overdose. They may also use the ACD to intentionally refuse treatment that could save them after a suicide attempt.

That concern speaks for itself. I invite the minister to comment in respect of that. Certainly during the briefings I think there was encouragement given, by those providing the briefing from the minister's office, that it was important to consider ACDs earlier in life and not to wait until you are 95 or have been advised that you might have a terminal condition or disease; in fact, you should think about it at quite a young age.

That may be a good idea; however, this type of concern would be exacerbated by that because, clearly, there could be all sorts of other interventions that require you to go into hospital and be in an unconscious state when the ACD would be whipped out that was intended for something later in life. This type of situation could arise, so it is a legitimate concern and I ask the minister to address it. The second aspect in the letter is:

Such ACD treatment refusals are binding on all health practitioners, including enrolled nurses, junior doctors, social workers etc and to not follow an ACD at face value could attract professional misconduct, assault and battery charges. The conscientious objection referral clause is unfeasible in an emergency and weakens professional practice and ethics codes.

Again, this is a matter that I specifically thought I would hear about from the nurses union but it seems to have been completely silent on this. It may not have any concerns, it may not even have thought about it, but obviously this would apply to many of its union members, and it is concerning that it has not been addressed. In this instance, I will be looking for some assurance from the minister as to how there will be protection against that or whether any amendment is foreshadowed. Finally, there is reference to concerns that:

Health practitioners may be compelled to make an on the spot life or death decision for the patient with an ACD CPR refusal or risk their career when:

the patient could be saved and brought back to wellness;

treating a reversible complaint would prevent premature death, but the complaint has arisen from the condition which the ACD refusal was made for;

the health practitioner may lack the expertise to evaluate the situation properly and therefore lets the patient die but they could have been easily treated e.g. diabetic coma—

and finally:

time is needed to verify that the person would still want the ACD given the gravity of the outcome.

The letter goes on:

These dilemmas may result in residential care staff preferring to transfer residents to hospital rather than make a decision about ACD application placing increased stress on an already stretched health system.

In a small country hospital, nurses will be on their own to make decisions as doctors are not on site, creating problems for the rural and remote sector.

ACDs may be deliberately overlooked by health practitioners in order to avoid the dilemmas which could ensue, meaning peoples' wishes are ignored and the Bill loses credibility.

These are some of the issues that have been raised. The authors have obviously undertaken considerable investigation of the concerns they have raised and the impacts of the new provisions and then made some suggestions as to how that may be resolved in the legislation. None of these has been drafted, but they suggest that making provision for the emergency practitioner's view, dealing with remote country locations and the like, can and should be addressed, and that there would be some reworking of the legislation to ensure that there are protections against those issues in particular.

I should conclude by saying that the correspondence from Mr Andrew Murray, as the senior industrial officer (I think I may have described him as the secretary, but I am sure members know who I am talking about), says—and this is a little concerning because it came in last week, having raised a number of these concerns—that there was no consultation with the South Australian stakeholders about the development of the bill itself. So, he does raise a general concern about the consultation.

I have already made a point that there was a very significant investigation of this matter by the review committee, and we think that was quite comprehensive. But what happens is this: when the recommendations—and there were some 36 or so recommendations—are then translated into legislation, sometimes errors are made or issues are not covered, just as we are now having exposed. So, there is some benefit in the actual drafting of the bill for that to occur. Mr Murray also said:

Many of the events where this legislation will play out will be in public health settings, thus involving our members. Our Council [discussed] the matter last evening, and whilst broadly supportive of the overall intention of the Bill, have very strong concerns about some of the detail about application which may place doctors in very difficult situations as they work through real life scenarios. We are concerned that NO attempt was made to even work through the operationalizing—

I do not know if that is a word, but anyway—

of the legislation with us to test its efficacy.

We will be trying to get the Minister to hold-off on further proceeding until some time as the Bill can be amended to let it do what it was intended to do BUT without the negative impacts upon those who have to administer it on a day to day basis.

That is the contribution from Mr Murray. Again, it is concerning that that has not occurred. I am not sure why the government want to press this through particularly urgently, but it is not as though these aspects cannot be remedied by amendment. I have not considered, nor have I asked parliamentary counsel to consider, if the amendments that are recommended by Ms Seal and Dr Pope are appropriate, but I am sure that the minister will be able to enlighten us as to whether that can be accommodated.

With that, I indicate that I will be supporting the passage of the bill in this house. Other members on our side have indicated that they wish to make a contribution and may, of course, take a different view.

Mr PEGLER (Mount Gambier) (12:27): I indicate that I will be strongly supporting this bill. Earlier this year, I met with the Attorney-General to discuss problems many people in Mount Gambier were facing with powers of attorney, in particular with financial affairs, legal affairs and advanced care directives. These problems particularly occur with the differences between the states' rules. Currently, South Australia is one of the only Australian jurisdictions in which advanced care directives completed in other jurisdictions are not recognised. This also applies to other powers of attorney.

The bill will enable people to make decisions and give directions in relation to their future healthcare, residential and accommodation arrangements and personal affairs, to provide for the appointments of substitute decision-makers to make decisions on behalf of the person, to ensure that health care is delivered to the person in a manner consistent with their wishes and instructions, to facilitate the resolution of disputes relating to advance care directives, and to provide protections for health practitioners and other persons giving effect to an advance care directive.

The aim of this bill is to create a single form of advance care directive to replace the existing enduring power of guardianship, medical power of attorney, and the anticipatory direction. The provisions in the bill aim to make it easier to complete and apply advance care directives, and will assist people to express their views and preferences and to have confidence they will be known and respected into the future. Importantly, the bill contains protections for those who complete and apply advance care directives, particularly substitute and health practitioners.

The bill sets out a simple dispute resolution process for application in situations of uncertainty, or if there is a dispute. The bill requires substitute decision-makers to make the decision they believe the person would have made in the current circumstances if they had access to the same information. In other words, we can make advance care directives early in our lives and, if those people we have appointed have some idea of what we would have wished, they can then make those people aware of that.

The bill also makes sure that those substitute decision-makers cannot make unlawful directives—euthanasia, for example, or refusing compulsory mental health treatment. The bill also prevents substitute decision-makers from refusing health care for the relief of pain or distress and the natural provisions of food and water.

The bill, together with the proposed changes to the financial power of attorney being undertaken by the Attorney-General, will go a long way in solving the problems that many people face in Mount Gambier. The bill will form a cohesive package that will reform South Australia's legislation on advance directives to make it easier for the community to plan ahead for future health, medical, residential, personal and financial matters in the event that they are unable to make their own decisions, for whatever reason. I commend the minister for bringing the bill before the house and indicate that I will certainly be supporting the bill.

Mr VAN HOLST PELLEKAAN (Stuart) (12:31): It is a pleasure to follow the member for Bragg on these issues because she is always so thorough and has included so many issues, and I know that she will attend to every single detail on behalf of the opposition, so let me just stick to the general principle, and that is that I certainly do support this bill. This is a conscience vote for the opposition and the Advance Care Directives Bill 2012 does have my support as the member for Stuart.

I support it primarily on the basis that it is purely bringing together powers and authorities which exist already. The bill enables competent adults to make decisions and give directions in relation to their future health care, accommodation arrangements and personal affairs and to appoint substitute decision-makers to make such decisions on their behalf. Of course, there are three key components of this bill. The bill consolidates these areas:

1. Medical power of attorney (medical agents limited to making medical decisions on behalf of the person);

2. Anticipatory directions, whereby people need to list conditions and specific treatments they want in advance of illness; and

3. Enduring power of guardianship.

I would also like to reinforce a point made by the member for Bragg and also the member for Mount Gambier. The issue with regard to a national framework is also very important for the people of Stuart. As members may know, Stuart borders Northern Territory, Queensland and New South Wales, and there are a lot of people whose affairs cross those boundaries quite regularly, so interstate recognition is certainly important for me in this as well.

I attended a briefing a few weeks ago from the minister and his staff, and I thank him and them for that. The government, minister and health department have worked on this issue for many years and I think that work has not been wasted. I also recognise the contribution that the Hon. Michelle Lensink has made to this debate as well.

I do support it. Far too often these issues are dealt with at the last minute. Far too often these issues are not dealt with at all or put off and, clearly, it is quite understandable that healthy people do not deal with these issues and, of course, when you are unhealthy it is very often too late to be addressing them or you are doing so under pressure. I support pre-planning for such important matters and this bill allows these plans to be put into place and, very importantly, without introducing or conferring any additional powers. It really is very much about bringing together powers that already exist under a streamlined framework that fits into a national framework as well. So, very importantly, on the basis that no additional powers are brought it, I strongly support the bill.

Mr PEDERICK (Hammond) (12:34): I rise to speak on the Advance Care Directives Bill 2012, which was tabled by the Minister for Health in this place on 17 October 2012. This bill is about enabling competent adults to make decisions and give directions in relation to their future health care, accommodation arrangements and personal affairs, and to appoint substitute decision-makers to make such decisions on their behalf. Back in 2007, the government launched the Advance Directives Review with the release of an issues paper looking for public comment.

An independent Advance Directives Review Committee was established, with the former health minister, the Hon. Martyn Evans, as the chair. The 11-member review committee was supported by a panel of experts across a broad range of areas. Over 120 submissions were received on the issues paper from health, aged-care and community care professionals; lawyers; community organisations; consumers; Aboriginal communities; government agencies; and financial institutions.

After 18 months of deliberations, this committee reported to the Attorney-General in two stages, with 67 recommendations. In 2011, the Australian Health Ministers' Advisory Council endorsed the National Framework for Advance Care Directives. The framework provides a lexicon of terms to facilitate national harmonisation, a code for ethical practice, and best practice guidelines. The bill, in my understanding, substantially accords with the national framework and only rejects one recommendation of the review, namely, that the integrated directive encompass powers of attorney.

The bill consolidates three different advance directives that are currently available. These include the medical power of attorney, which comes under the Consent to Medical Treatment and Palliative Care Act 1995. The scope of this is that the medical agent is limited to making medical decisions of behalf of the person. The model involves an agent to act in the best interests of the subject, with the capacity for directions. It applies when the grantor is incapable of making decisions on his or her own behalf. The decision of a medical agent can only be reviewed by the Supreme Court.

Anticipatory direction comes under the Consent to Medical Treatment and Palliative Care Act 1995. People need to list conditions and specific treatments they want, often in advance of illness or condition. The model is based on a precommitment to specific decisions; that is, a person cannot appoint a substitute decision-maker. This only applies when a person is in the terminal phase of a terminal illness or a persistent vegetative state. There is no dispute resolution process.

The third advanced directive that is currently available is the enduring power of guardianship, which comes under the Guardianship and Administration Act 1993. Its scope is that, except where there is a medical agent available and willing, an appointee can make medical and dental treatment decisions on behalf of the person, otherwise 'the powers at law or in equity of a guardian'. The model is to act in the best interests of the subject, and it applies when the grantor becomes mentally incapacitated. If there is a dispute or disagreement in relation to the enduring power of guardianship, the Guardianship Board can hear and decide the matter.

These instruments require different forms to be completed and have different witnessing provisions. The bill will bring all these directives to one form and be governed by one act. Financial powers of attorney and wills are not affected. The bill is founded on the principle of supported decision-making, that people should be supported to make their own decisions (lower-level decisions) for as long as they can. From what we have been informed, the directives will apply in any period of impaired decision-making capacity, whether temporary, fluctuating or permanent, as directed by the person in their advance care directive in various periods of life. For example, not just at the end of life, unconscious, degenerative conditions.

Assessment of capacity will now be decision-specific, not global, and made when the decision is required. The scope of the directive is that, while enduring powers of guardianship is currently as broad as the powers of the guardian at law, medical power or attorney and advance directions are focused on medical issues. The new advance care directives are broad, including residential accommodation and other personal matters.

The bill aims to make it easier for people to express their views and preferences and to have confidence that they will be known and respected in the future. The type of information people will be able to include in the new advance care directives is significantly expanded, and you can include issues such as: the values and goals in life and care; what is important to you when decisions are being made for you by others; instructions relating to various periods of life, for example not just at the end of life; what levels of functioning would be intolerable; and where and how you wish to be cared for when you are unable to care for yourself.

The bill does not prevent people specifying health care they do not wish to receive, including refusals of life-sustaining measures, such as CPR, artificial hydration, nutrition or ventilation and the circumstances under which such refusals would apply. Instructions and expressed preferences, other than refusals of health care, must guide decision-making, but are not binding on others.

The bill has been put to enable as much flexibility as possible for the people completing these directives and there are different options. You can use written instructions and that can include preferences and wishes and the appointment of one or more suitable decision-makers. Secondly, you can have only written instructions and preferences; and the third point is the appointment of one or more suitable decision-makers without written preferences.

Subject to any contrary provisions contained in an advance care directive, an appointed substitute decision-maker can make all the health care, accommodation and personal decisions the person could lawfully make if they had decision-making capacity, and the decision has the same legal effect as if it were a decision of the person themselves.

The bill requires that substitute decision-makers must make decisions using the substituted judgement decision-making standard to make the decision they believe the person would have made in the current circumstances if they had access to the same information.

Both the witness to the form and the substitute decision-maker are subject to conflict of interest disqualifications. Throughout the process there is a new dispute resolution process, and there are forms and different ways the advance care directive must be put; it must be completed using a form approved by the minister. I also note that currently, South Australia is one of the only jurisdictions where advance care directives completed in other jurisdictions are not recognised, and this bill takes note of that.

The bill also amends the Consent to Medical Treatment and Palliative Care Act to clarify consent arrangements in the absence of an advance care directive for patients unable to consent and introduces a dispute resolution process, including voluntary mediation.

Currently, the Guardianship Act specifies that, where there is no legally appointed representative such as a guardian, enduring guardian or medical agent, and limited relatives can consent to health care on behalf of an adult with a mental incapacity.

Amendments to the consent act lay down the 'responsible person' who can consent to healthcare on behalf of a patient with impaired decision-making capacity if there is no advance care directive. The person is to be identified by the following hierarchy, and they run in order:

1. A guardian appointed by the Guardianship Board, provided that the guardian's powers do not exclude making health care decisions.

2. If there is no guardian appointed, a prescribed relative of the patient can consent without a hierarchy related to whether the person has a close and continuing relationship with the patient.

3. If there is no guardian or prescribed relative, an adult friend.

4. If there is no one who meets the previously mentioned categories of persons responsible, an adult charged with overseeing the ongoing day to day supervision, care and well-being of the patient who is available and willing can make a decision.

5. If there is no-one who meets the above criteria who is available and willing to make a decision, upon application, the Guardianship Board can consent to the proposed treatment.

So, there are quite a range of people and it is quite a lengthy list. I wonder whether it is too long, but perhaps that is what is needed. There has obviously been consultation. The responsible person will be subject to a similar dispute resolution process to that for advanced care directives.

I have had some correspondence with regard to this bill from a lawyer who works in this field of health care and advanced care directives. He is a person with an interest in the Respecting Patient Choices program. He is quite a proponent of advanced care directives and says that everyone should have them, but he has certainly raised a few concerns with me that the minister needs to address before I am able to support this piece of legislation. His concerns are:

(1) That some people may die needlessly and unintentionally if they sign Advance Care Directives in the form proposed;

(2) Pursuant to S.11 of the Bill the person making the Advance Care Directive needs to understand the consequences of giving an Advance Care Directive rather than the consequences of the decisions they have (using the current Anticipatory Direction, Medical Power of Attorney and Enduring Power of Guardianship forms);

(3) Pursuant to Ss.19 & 36 of the Bill an Advance Care Directive refusing life sustaining measures (eg CPR) can apply to any period of incapacity in the circumstances specified rather than to the terminal phase of life, as is the case presently;

(4) Pursuant to S.36 of the Bill health care refusals are binding on all health practitioners, even in emergency events, rather than that responsibility resting with the medical practitioner(s) or those under their supervision in such circumstances. Health practitioners who do not comply with the Advance Care Directive could be charged with assault and battery and also cited for professional misconduct;

(5) Pursuant to S.5 of the Bill any subsequent health issues arising from the condition, to which the Advance Care Directive refusal relates, cannot be treated;

(6) Pursuant to S.37 of the Bill a health practitioner, who has an objection to facilitating an Advance Care Directive treatment refusal, has to refer the case and patient on to someone who will comply with the Advance Care Directive, even if the consequence of doing so results in the needless and unintentional death of that patient;

(7) S.23(4) of the Bill infers that an express directive could refuse the natural provision of food, fluids or palliation rather than inferring the opposite.

He also notes that health practitioners who discussed the implications of this bill in the last week or so have put forward the following suggestions regarding the bill in its current form:

(1) That S.19(1) of the Bill be amended to state that 'an Advance Care Directive containing a refusal of life sustaining measures (whether expressed or implied) will, for the purposes of the Act, be taken to be a binding provision when the person is in the terminal phase of a terminal illness or condition'—thus having the same meaning as set out in the current Consent Act, although terminal condition could include 'ageing';

(2) That in S.11(5), a subsection be added to the Bill to note that the person's refusal of life sustaining measures, when that person is not in the terminal phase of a terminal illness or condition, will be less open to enquiry as to its validity if the Advance Care Directive indicates that the person has been medically informed of the consequences of such refusal of life sustaining measures;

(3) That a provision be added to S.23(1)(a) of the Bill to the effect that any decision(s) made by the substitute decision maker regarding life sustaining measures are binding when a person is in the terminal phase of a terminal illness or condition;

(4) That the provision that any subsequent health issues, arising from the condition, to which the Advance Care Directive refusal relates, cannot be treated be deleted from S.5 of the Bill;

(5) That if S.5 of the Bill is removed then S.37 of the Bill could be removed because there would be no cause for conscientious objection, in that a person could be allowed to die naturally in the terminal phase of a terminal illness or condition, that fits with codes of professional practice and ethics to which health practitioners currently adhere; and

(6) That, with respect to S.23(4) of the Bill the current version of the Consent Act be left intact and so remove the words 'unless there is an express direction to the contrary' from this Section of the Bill.

My legal friend indicates that he is concerned and, as I have just indicated to the house, he wants these points debated so that all possible unintentional consequences of the bill that have been detected by the health professionals can be avoided.

I note that my lawyer friend is very supportive of advance directives, but he wants them in the appropriate form, and I could not agree with him more. I think they are probably a very useful item for people's care and their proposed needs when they have the capacity to make those decisions, when they are of sound and competent mind, but the issue is: when do the advance care directives take place?

My reading of these comments and my reading of the bill indicate that it could be at any stage of your life and not just with a terminal illness, so I need the minister to outline to me that it will not apply to a younger person who might have an accident on a farm or a car accident and someone checks out the advance care directive that they want to withhold treatment and that person will be let go. I do have a real concern with that. I think there needs to be clarity and, if I am given that clarity, I will be able to support the bill, but I am just concerned that there are quite a few loose ends that need to be tied up.

I think it is a good idea to bring these three forms of advance care directive into the one form so that people can give their anticipatory direction, but we just need to make sure that people are not left unwillingly to die, quite frankly, if that was not the point they were trying to make. We want to make sure that these directives are for the very appropriate end-of-life time when they may be needed and not in a situation where persons could be resuscitated and perhaps go on to live an extra 20, 30, 40 or however many years and have a productive life.

I have mentioned before in this house my opposition to euthanasia. I am told that this bill does not directly involve active euthanasia, but I want to be satisfied in my mind that, if this becomes an act, the right safeguards are in place to protect the citizens of this state. I commend the idea to bring the three directives together and that there will be interstate recognition of the advance care directive from South Australia.

Debate adjourned on motion of Dr McFetridge.


[Sitting suspended from 12:54 to 14:00]


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