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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-10-17 Daily Xml
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ADVANCE CARE DIRECTIVES BILL

Introduction and First Reading

The Hon. J.D. HILL (Kaurna—Minister for Health and Ageing, Minister for Mental Health and Substance Abuse, Minister for the Arts) (15:37): Obtained leave and introduced a bill for an act to enable a person to make decisions and give directions in relation to their future health care, residential and accommodation arrangements and personal affairs; to provide for the appointment of substitute decision-makers to make such 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; to provide protections for health practitioners and other persons giving effect to an advance care directive; to make related amendments to the Consent to Medical Treatment and Palliative Care Act 1995, the Coroners Act 2003, the Fair Work Act 1994, the Guardianship and Administration Act 1993, the Health and Community Services Complaints Act 2004 and the Wills Act 1936; and for other purposes. Read a first time.

Second Reading

The Hon. J.D. HILL (Kaurna—Minister for Health and Ageing, Minister for Mental Health and Substance Abuse, Minister for the Arts) (15:39): I move:

That this bill be now read a second time.

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

Leave granted.

This Bill seeks to:

enable competent adults to make decisions and give directions in relation to their future health care, residential and accommodation arrangements and personal affairs;

provide for the appointment of substitute decision-makers to make such decisions on behalf of the person;

ensure that health care is delivered to the person in a manner consistent with their wishes and instructions;

facilitate the resolution of disputes relating to advance care directives;

provide protections for health practitioners and other persons giving effect to an advance care directive;

make related amendments to the Consent to Medical Treatment and Palliative Care Act 1995, the Coroners Act 2003, the Fair Work Act 1994, the Guardianship and Administration Act 1993, the Health and Community Services Complaints Act 2004 and the Wills Act 1936;

and for other purposes.

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 in the future.

Importantly, the Bill contains protections for those who complete and apply Advance Care Directives, particularly Substitute Decision-Makers and health practitioners.

The Bill sets out a simple dispute resolution process for application in situations of uncertainty or if there is a dispute.

In April 2007, I as Minister for Health, the then Attorney-General and the then Minister for Families and Communities jointly launched the Advance Directives Review with the release of an Issues Paper titled Planning ahead: Your health, your money, your life for public comment.

An independent Advance Directives Review Committee was established with former Health Minister, the Hon Martyn Evans, as 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 the Advance Directives Review Committee reported to the Attorney General in two stages:

Stage 1 Report made 36 recommendations for changes to law and policy and

Stage 2 Report made 31 recommendations for implementation and communication strategies.

I would like to take this opportunity to commend the Review Committee for its work and to thank members of the Expert Advisory Panel for assisting the Review Committee in its deliberations.

I would now like to point out some of the key aspects of the Bill.

The Advance Directives Review found that the current legislation, forms and guidelines can be confusing and intimidating, and recommended that any new laws, forms or guidelines be written in simple, lay persons language. This will also assist those for whom English is a second language and Aboriginal and Torres Strait Islander Peoples.

The Bill has been drafted in simple language and the definitions used are contemporary and reflect current practice.

To ensure consistency between the three relevant Acts, the same definitions have been reflected in the amendments to the Guardianship and Administration Act 1993 and the Consent to Medical Treatment and Palliative Care Act 1995.

The term Substitute Decision-Maker is used in the Bill to distinguish between a person appointed of one’s own choosing to make substitute decisions on their behalf, and a Guardian appointed for a person by the Guardianship Board to look after and manage their affairs.

The concepts of competence and capacity are central to the two critical stages, being the completion and the application of Advance Care Directives, which may occur years apart.

The Bill requires that an adult must be competent to make or revoke an Advance Care Directive. As a legal document, an adult completing the form must understand what an Advance Care Directive is and the consequences of completing one. It is presumed that an adult is competent to complete an Advance Care Directive unless there is evidence to the contrary.

An Advance Care Directive takes effect when the person’s decision-making capacity is impaired. For the first time in South Australian legislation, the Bill contains a clear description of what is and what is not deemed impaired decision-making capacity. Decision making capacity relates to the ability to consider information, weigh up options, make a decision based on the information provided and communicate thoughts about that in some way.

Importantly, it is not necessarily related to a diagnosis or condition. The definition in the Bill accommodates temporary and fluctuating decision-making capacity. In particular, it accommodates the needs of people with a mental illness or dementia whose capacity to make decisions may fluctuate.

The Bill recognises that different decisions require varying levels of decision-making capacity. For example, a person may be able to make many simple health care and personal decisions but may not be able to make higher level decisions such as whether to undergo surgery or not. The Bill seeks to support lower level decisions for as long as a person is able, before requiring others to step in and take over their life and decision-making unnecessarily.

If Substitute Decision-Makers or others are unsure whether a person has the capacity to make a decision, the Office of the Public Advocate can provide advice. Alternatively, a medical assessment can be instituted.

The objects of the Bill provide the framework for the intent of the Act which is to enable competent adults to give directions about their future health care, residential and accommodation arrangements and personal affairs and other matters.

This Bill is underpinned by a set of overarching principles.

The principles in the Bill apply in the administration, operation, and enforcement of the legislation, including in the resolution of disputes. The principles apply to all parties including Substitute Decision-Makers, health practitioners and others who may be making decisions under or in relation to an Advance Care Directive.

The framework is contemporary, aligns with a rights based approach, and is consistent with person-centred care and common law.

The Ethics Health Advisory Council assisted to refine the principles in the Bill. I would like to take this opportunity to thank members for their advice and assistance.

The Bill takes a broad view of health and well-being which extends beyond just medical treatment instructions at the end of life.

Submissions to the Advance Directives Review and subsequent consultations with consumers, in particular mental health consumers and older people, indicated that people want the option to be able to write down their wishes, preferences and instructions for matters beyond medical treatment decisions at the end of life, without appointing Substitute Decision-Makers. Reasons for this included:

no-one to appoint or could not choose who to appoint

did not want to burden family/friends with such decisions

complicated family relationships such as second or third marriages or families

religious reasons for example Jehovah Witnesses refusing blood transfusions.

The Bill has been drafted to enable as much flexibility as possible for those completing an Advance Care Directive and allows for three options:

written instructions, preference and wishes and the appointment of one or more Substitute Decision-Makers

only written instructions and preferences

the appointment of one or more Substitute Decision-Makers without written preferences.

The Bill makes it clear that a relevant provision or instruction in an Advance Care Directive or the decision of a Substitute Decision-Maker is as effective as if it were the person themselves making such decisions.

Under the Bill, an Advance Care Directive does not have to be legally or medically informed to be valid, merely that they understand the implications of their direction. An Advance Care Directive Do-it-yourself Kit will be developed to support people in making an Advance Care Directive.

To maximise uptake, it will be important that the Kit is designed so that individuals can complete the form without the assistance (and expense) of a lawyer or a doctor.

Having said this, if an individual has strong views or complicated affairs, the accompanying guidelines to the Advance Care Directive form will encourage them to seek medical or legal advice to ensure that their Advance Care Directive will achieve its intended purpose.

To be valid, the Advance Care Directive form approved by the Minister for Health and Ageing will be the only form that may be used and for standing as a legal document, it must be witnessed.

Rather than prescribing the form in legislation, the Do-it-yourself Advance Care Directive Kit will comprise the Advance Care Directive form, accompanied by guidelines. The guidelines will be developed in consultation with stakeholders and tested by focus groups which will include consumers including older people, Aboriginal people and people from culturally and linguistically diverse backgrounds, and health practitioners and others such as aged care staff.

The guidelines will clearly set out, in lay terms, the rights and responsibilities of all parties involved in the completion and application of an Advance Care Directive, including for the person completing the form, Substitute Decision-Makers, witnesses, health practitioners and other prescribed professions. This will ensure that all parties are aware of each others’ rights and responsibilities under the Advance Care Directive.

One of the problems and common criticisms associated with the current Medical Power of Attorney and Anticipatory Direction is the legal requirement for people to list medical treatments they do, or do not, consent to in advance of illness.

This requirement has proven difficult for many people and reports suggest that these types of instructions are not helpful to health practitioners having to interpret them at a later stage. Instructions are often either too specific or not specific enough, or crucially do not relate to the current circumstance or condition.

The Advance Care Directive form will be developed to allow people to write down their values and goals of care, what is important to them when decisions are being made for them by others, what levels of functioning would be intolerable, and where and how they wish to be cared for when they are unable to care for themselves.

Growing numbers of South Australians live alone. Being able to include instructions in an Advance Care Directive about health care, residential, accommodation and personal matters such as not being transferred from a care home to hospital to die or who should look after their dog or cat often brings peace of mind.

The Bill does not however 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 (i.e. life support) and the circumstances under which such refusals would apply.

The Bill provides that refusals of health care are binding if the person intended the refusal to apply to the current circumstance—this is consistent with common law.

Instructions and expressed preferences other than refusals of health care, whether related to health care, accommodation, residential and personal matters, must guide decision-making but are not binding on others. For example, an instruction which directs that the person never wants to live in a nursing home may be impossible to comply with, particularly if that is the only option for ensuring the person receives appropriate care and support.

The Bill provides that the following would be void and of no effect if contained in an Advance Care Directive:

unlawful instructions or instructions which would require an unlawful act to be performed such as voluntary euthanasia or aiding a suicide

refusals of mandatory treatment such as compulsory mental health treatment under the Mental Health Act 2009

actions which would result in a breach of a professional code or standard, for example a Code or Standard issued by the Medical or Nursing and Midwifery Boards of Australia. It does not mean a hospital code or standard.

If a non valid matter is contained within an Advance Care Directive, this does not void the Advance Care Directive in its entirety.

A person is not able to demand specific healthcare be provided in an Advance Care Directive, consistent with the common law. If a person has indicated in their Advance Care Directive specific healthcare that they consent to, this would be a guide to health practitioners rather than a demand. What is appropriate healthcare to be offered in particular circumstances is to be determined by health practitioners according to their clinical expertise and judgment. This is consistent with a well accepted common law principle of health care that a person can consent to treatment that is offered, and refuse treatment that is offered, but cannot demand treatment that is not offered.

The witnessing provisions in the Bill have been designed to be a protective measure for both those completing an Advance Care Directive, and those having to apply it at a later stage such as Substitute Decision-Makers, health practitioners, aged care workers or paramedics.

To be valid, a suitable witness must sign a statement on the Advance Care Directive form to confirm that they are satisfied, to the best of their knowledge, that the person completing the Advance Care Directive understands the nature and effect of the Advance Care Directive and is completing it free of coercion.

The Bill includes offences for knowingly giving false or misleading statements and for fraud and undue influence, including for inducing another to give an Advance Care Directive.

The guidelines for witnesses will point out that if the person’s competence to complete an Advance Care Directive is questionable, the witness should refuse to sign the form or request a medical certificate before they witness the document.

Those relying on a valid Advance Care Directive in good faith and without negligence will be protected from civil or criminal liability.

The categories of persons who can be a witness are expansive and similar to that for witnessing Commonwealth documents.

Importantly, to avoid conflicts of interest or duty, witnesses cannot be:

Substitute Decision-Makers appointed under the Advance Care Directive

persons with a direct or indirect interest in the estate of the person giving the Advance Care Directive

health practitioners responsible for the health care of the person giving the Advance Care Directive

persons in a position of authority in a hospital, nursing home or other similar facility in which the person resides.

The Bill provides that competent adults can appoint one or more Substitute Decision-Makers of their own choosing who they trust to make decisions for them when they have impaired decision-making capacity.

Subject to any contrary provisions contained in an Advance Care Directive, an appointed Substitute Decision-Maker can make all the health care, residential, accommodation and personal decisions the person could lawfully make if they had decision-making capacity.

Under the Bill, a decision of a Substitute Decision-Maker has the same legal effect as if it were a decision of the person themselves.

The Bill requires that Substitute Decision-Makers must:

be competent adults

act in good faith, without negligence and in accordance with the wishes and values of the person for whom they were appointed, and are afforded legal protections for doing so, and

make decisions using the substituted judgement decision-making standard.

To ensure that appointed Substitute Decision-Makers do not have a conflict of interest or duty, the Bill prevents the following from being Substitute Decision-Makers:

health practitioners directly or indirectly responsible for the persons health care

paid carers. The paid carer captured by this clause is a professional carer such as a Director of Nursing, not a close friend or relative in receipt of Carers Allowance

any other class of persons prescribed by the regulations.

The Bill does not prevent individuals appointing different Substitute Decision-Makers for different decision-making areas. The person could also direct how they want Substitute Decision-Makers to make decisions, for example in consultation with others.

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.

As is currently the case with Medical Power of Attorney, the Bill prevents Substitute Decision-Makers from refusing health care for the relief of pain or distress and the natural provision of food and water.

Substitute Decision-Makers can seek advice from the Office of the Public Advocate if they are unsure of their role.

Upon application, the Guardianship Board can revoke the appointment of a Substitute Decision-Maker if the Guardianship Board is satisfied that the Substitute Decision-Maker:

is a person who must not be a Substitute Decision-Maker under the Advance Care Directive Act

is no longer willing to act as a Substitute Decision-Maker

is no longer appropriate. For example if the appointment was made years ago and the relationship with the Substitute Decision-Maker no longer exists

has been negligent in the exercise of their powers under the Advance Care Directive. This includes wilfully making decisions which are not consistent with the person’s Advance Care Directive.

If a Substitute Decision-Maker is revoked and more than one Substitute Decision-Maker has been appointed, the Advance Care Directive will remain valid and the remaining Substitute Decision-Maker/s can still act under it.

The Bill sets out provisions for the revocation of an Advance Care Directive for both a competent and also an incompetent adult who is, as a result, not able to complete a new Advance Care Directive.

Under the Bill, a competent adult can revoke their Advance Care Directive at any time, in accordance with the Regulations. The Regulations could include provisions whereby a person must sign, date and have witnessed a section on the form to make it clear that they have revoked the Advance Care Directive.

If a competent adult completes a new Advance Care Directive, any previously made instruments including existing Enduring Powers of Guardianship, Medical Powers of Attorney or Anticipatory Directions are automatically revoked. This means that the most recently dated and witnessed Advance Care Directive will be the one in force and can be relied upon in good faith.

In such a case, to ensure that all parties are aware of the revocation, the person must notify others who may have a copy, as soon as is reasonably practicable, of its revocation.

However, those acting on what they consider to be a current and valid Advance Care Directive in good faith will be afforded protection from liability.

The introduction of electronic health records will enable the most recent Advance Care Directive to be scanned and included as part of the person’s electronic health record so that it can be accessed when needed.

The Bill sets out a process for the revocation of an Advance Care Directive by the Guardianship Board if a person is not competent to complete a new Advance Care Directive and they indicate a wish to revoke.

When considering the matter the Guardianship Board must:

apply the principles in the Advance Care Directives Act

only revoke the Advance Care Directive if the Guardianship Board is satisfied that:

the person understands the nature and effect of revoking the Advance Care Directive, and

the revocation genuinely reflects the wishes of the person to whom it relates, and

it is appropriate to do so in the circumstances.

However, the Guardianship Board should not revoke the Advance Care Directive if the Advance Care Directive contains provisions to the contrary.

The Bill also sets out the rights and responsibilities of health practitioners in relation to Advance Care Directives.

Health practitioners have been defined as persons who practice a registered health profession within the meaning of the Health Practitioner Regulation National Law (South Australia) Act 2010 which includes for example, medical practitioners, nurses and midwives, psychologists and pharmacists.

The Bill also provides for other professions or practice declared by the regulations to be included in the ambit of this definition. It is anticipated that the Regulations could for example include ambulance officers or aged care staff in the definition of health practitioner for the purposes of this Act.

Health practitioners are afforded protections from criminal and civil liability for acting on a valid Advance Care Directive in good faith and without negligence.

The Bill requires that a health practitioner providing health care to a person who is the subject of an Advance Care Directive and who is incapable of making the particular decision:

must comply with binding refusals of health care

should as far as is reasonably practicable to do so, comply with non-binding provisions

must endeavour to seek to avoid an outcome or intervention that the person has indicated that they want avoided, for example being dependent on life support and will not recover, unable to undertake daily tasks of living for themselves or unable to communicate with family/friends

must act in accordance with the principles set out in the Advance Care Directives legislation.

I will reiterate that a relevant provision in an Advance Care Directive, applicable to the current circumstance, is as effective as if it was the consent/refusal of the person themselves at the present time.

If a binding refusal is ignored and the particular health care is subsequently provided, this may amount to professional misconduct under the Health Practitioner Regulation National Law (South Australia) 2010. In these circumstances the relevant National Board would consider and decide the matter.

In addition, a health practitioner overriding a person’s refusal of health care may not be afforded the relevant protections under the legislation, and in fact could be faced with a charge of assault and battery for providing health care without consent.

If a health practitioner is unsure of their obligations, they can seek advice from the Office of the Public Advocate.

Disputes or disagreements can sometimes arise about the application and interpretation of an Advance Care Directive.

Currently, under the Consent to Medical Treatment and Palliative Care Act 1995 the only appeal mechanism is to the Supreme Court. Pursuant to the Guardianship and Administration Act 1993, if there is a dispute or disagreement in relation to the Enduring Power of Guardianship, the Guardianship Board can hear and decide the matter.

The Bill confers advisory and mediation functions on the Office of the Public Advocate as a less formal way of resolving a dispute.

Upon application, the Public Advocate (or delegate) can assist to resolve a matter by:

ensuring that all parties are aware of their rights and obligations

identifying issues which may be in dispute between the parties

canvassing options that may obviate the need for further proceedings

facilitating full and open discussion between the parties.

Mediation is entirely voluntary and would only be undertaken if all parties agree.

The Public Advocate may also give declarations regarding advice or mediation matters, but only in relation to:

the nature and scope of a person’s powers under the Advance Care Directive

whether or not a particular act or omission is within the scope of the Advance Care Directive or

whether the person who completed the Advance Care Directive has impaired decision-making capacity in respect of the particular decision.

These declarations are not binding, but may offer some certainty to those acting under an Advance Care Directive.

If a person is not satisfied with the outcome obtained from the Public Advocate’s advice or declaration, or requires greater certainty about a matter, they can apply to the Guardianship Board for it to consider the matter.

Upon application, the Guardianship Board can:

review a matter dealt with by the Public Advocate and the Board can confirm, cancel or revoke any resulting decision or declaration

give a binding direction or declaration in relation to a matter relating to an Advance Care Directive whether or not it was a matter considered by the Public Advocate. There are penalties for failing to comply with a Guardianship Board direction or declaration.

refer a matter to the Public Advocate if the Guardianship Board believes it should be resolved through mediation.

Currently, South Australia is one of the only Australian jurisdictions in which Advance Care Directives completed in other jurisdictions are not recognised.

To enable the legal recognition of interstate Advance Care Directives, the Bill sets out a process whereby the Governor can declare by regulation a class of instruments completed in other jurisdictions, as though completed under the Advance Care Directives legislation here in South Australia.

Provisions in an interstate Advance Care Directive considered unlawful in South Australia will be deemed void and of no effect, even if lawful interstate.

To ensure that the new legislation continues to be relevant and meets community needs and expectations into the future, the Bill requires a review of the Act five years after its commencement.

It is recognised that there will still be existing Enduring Powers of Guardianship, Medical Powers of Attorney or Anticipatory Directions which may still need to apply in the future, and will therefore require legal recognition of those prior instruments.

The Bill contains transitional provisions to this effect. The legal protections and dispute resolution process contained in the Advance Care Directives Bill will apply to these instruments.

The Bill contains related amendments to the Consent to Medical Treatment and Palliative Care Act 1995 (Consent Act) and the Guardianship and Administration Act 1993 (Guardianship Act) to recognise the new Advance Care Directive, update terminology and to ensure consistency between these three Acts.

Currently, the Guardianship Act sets out who can consent to health care in the case of persons with mental incapacity. The Guardianship Act specifies that, 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.

Under the Guardianship Act, medical treatment is defined to include health care which can be provided by a medical practitioner or other health professional such as podiatrist, nurse and midwife, chiropractor, pharmacist, psychologist etc.

It is logical to have all of the consent provisions relating to health care contained in the Consent Act. This would leave the Guardianship Act to deal with the rare or extreme cases where it is appropriate for the state to step in.

The amendments to the Consent Act set out who can consent to health care on behalf of a patient with impaired decision-making capacity if there is no Advance Care Directive.

Under the Bill, the term person responsible is used and a hierarchy has been introduced.

The hierarchy is based on whether the person has a close and continuing relationship with the patient and is available and willing to make a decision.

In the absence of an appointed Substitute Decision-Maker or relevant provision under an Advance Care Directive, a person responsible for the patient can consent or refuse to consent to health care on the patient’s behalf in the following 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. Under this clause, a prescribed relative means:

a a legal spouse or domestic partner

b an adult related to the patient by blood, marriage or adoption

c an adult of Aboriginal and Torres Straight Islander descent who is related to the patient by Aboriginal or Torres Straight Islander kinship rules or is married to the patient according to Aboriginal tradition.

The key to the hierarchy here is whether a person who fits into the above category has a close and continuing relationship with the patient.

3. If there is no guardian or prescribed relative, an adult friend with a close and continuing relationship can consent provided they are available and willing. A person envisaged by this category is a close friend or unpaid carer who is not a relative, but has been caring for the patient for many years and knows them well.

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. Except for the Guardianship Board, this is the category of last resort and is included to ensure that residents of care facilities for example receive timely treatment without having to go the Guardianship Board for consent each time simple treatment is proposed.

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

The provisions relating to prescribed treatment will remain in the Guardianship Act and this treatment is still only permitted with the authority of the Guardianship Board.

The amendments:

require a person responsible to make a decision they honestly believe the person would have made in the current circumstance

recognise that the consent or refusal to consent of a person responsible is as legally effective as if it were the consent or refusal of the patient themselves

make it an offence for a person to knowingly hold themselves out as a person responsible if they are not

protect health practitioners who rely on the consent/refusal of a person who holds themselves out as a person responsible, but is not.

These amendments seek to modernise and most importantly clarify consent arrangements for health care for people unable to consent themselves, and who do not have an applicable Advance Care Directive.

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.

The amendments to the Consent Act set out a similar dispute resolution process to that contained in the Advance Care Directives legislation, for consistency.

A party to a health care disagreement or dispute can apply to the Office of the Public Advocate for voluntary mediation to assist the parties to reach a mutually agreed decision. Under the Consent Act, the Public Advocate cannot issue declarations in relation to health care disputes, as the Public Advocate can under this Bill.

Alternatively, a person with an interest in the matter can apply directly to the Guardianship Board for a direction or declaration in relation to the health care decision.

In conclusion, the Advance Care Directives Bill 2012 replaces the Enduring Power of Guardianship, Medical Power of Attorney and Anticipatory Direction with one Advance Care Directive under which competent adults will be empowered to:

express their wishes, preferences and instructions about future health care, residential, accommodation and other personal matters and/or

appoint one or more substitute decision-makers who will be empowered to make health care, residential, accommodation and personal decisions on their behalf.

The Bill will apply to any period of impaired decision-making capacity whether temporary, fluctuating or permanent, as directed by the person in their Advance Care Directive.

The Bill:

takes a broad view of health and well-being and is not restricted to medical treatment decisions at the end of life

includes protections for Substitute Decision-Makers, health practitioners and others who give effect to Advance Care Directives in good faith and without negligence

sets out clear processes for dispute resolution. Additional powers have been given to the Office of the Public Advocate to conduct voluntary mediation and to the Guardianship Board to hear unresolved disputes, review mediation outcomes, and give orders and directions to resolve matters and

amends the Consent to Medical Treatment and Palliative Care Act 1995 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.

To realise the benefits of the new legislation, a comprehensive and collaborative approach to the Act’s implementation will be critical. This will largely be based on the Advance Directives Review Stage 2 Report: Recommendations for implementation and communication strategies.

As a way of increasing public awareness about the benefits of completing an Advance Care Directive, it is intended to execute and launch an annual ‘Life in Order Day’ or similar to coincide with the Act’s commencement.

The aim of this annual event would be to encourage all South Australians to think about putting their affairs in order, including completing or revising their Advance Care Directive and financial and legal affairs (Power of Attorney), as well as their organ donation wishes and their will.

I would encourage non-government organisations to participate and involve their consumers in the day. There is considerable support in the non-government sector for increasing uptake, and raising awareness about the importance of Advance Care Directives so that people can have a say in decisions affecting them before their capacity to do so is impaired or lost.

Advisory services for both the completion and application of Advance Care Directives will support the community and health, community care and aged care sectors with the new scheme.

This Bill, together with the proposed changes to the financial power of attorney being undertaken by the Attorney-General, will form a cohesive package that will reform South Australia's legislation on advance directives and make it easier for the community to plan ahead for future health, medical, residential, personal and financial matters in the event they are unable to make their own decisions, for whatever reason.

A simplified framework for Advance Care Directives and clarifying informal consent arrangements for people with impaired capacity will be welcomed by many South Australians.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal

3—Interpretation

This clause defines key terms used in the measure.

4—References to provision of health care to include withdrawal etc of health care

This clause clarifies that references to providing health care will also include withdrawing or withholding health care.

5—References to particular forms of health care in advance care directives

This clause provides that references in advance care directives to a particular form of health care will extend to other health care that is of substantially the same kind, so that people giving advance care directives are not required to be unduly technical in their descriptions of treatments.

The clause also provides that a reference to a particular illness etc extends to include a reference to any other illness etc that arises in the course of, or out of the treatment of, the original illness etc.

6—Health practitioner cannot be compelled to provide particular health care

This clause makes it clear that an advance care directive, a substitute decision-maker or an order of the Guardianship Board cannot compel doctors and other health practitioners to provide any particular form of treatment—those decisions remain for the doctor to decide.

However, that does not apply in the case of withdrawal or withholding of healthcare which would, because of the operation of clause 4 of the Bill, otherwise be caught by this proposed section.

Should a provision of an advance care directive etc purport to compel a health practitioner to provide particular treatment, the relevant provision will be void and of no effect.

7—Impaired decision-making capacity

This clause sets out when a person will be taken to have impaired decision-making capacity for the purposes of the measure.

8—Application of Act

This clause is formal.

Part 2—Objects and principles

9—Objects

This clause sets out the objects of the Act.

10—Principles

This clause sets out certain principles that must be taken into account in connection with the administration, operation and enforcement of this measure. The principles reflect the underlying values on which the Bill is predicated. Of particular note is the idea that people need to be allowed to make their own decisions about their health care, residential and accommodation arrangements and personal affairs to the extent that they are able, and then be supported to enable them to make such decisions for as long as they can.

Part 3—Advance care directives

Division 1—Advance care directives

11—Giving advance care directives

This clause sets out how an advance care directive must be given in order to be valid.

In particular, it requires that an approved form be completed and witnessed as required by the measure.

An advance care directive can cover the future health care, residential and accommodation matters and personal affairs of the person giving the advance care directive as he or she thinks fit-it is up to the person how detailed he or she wishes their instructions and wishes to be.

Proposed subsection (5) sets out a number of circumstances that may be present in respect of a person's advance care directive, but that will not, of themselves, invalidate the advance care directive. Again, this is intended to make it easier for people to give advance care directives, without being unduly restricted by technicalities.

12—Provisions that cannot be included in advance care directives

This clause sets out provisions that cannot be included in an advance care directive (and if they are, they will be void and of no effect).

In particular, an advance care directive cannot make a provision that is illegal, or requires an illegal act to be performed (for example a provision requiring voluntary euthanasia to be administered). But an advance care directive also cannot be relied on to thwart treatments required by the law, such as treatment orders under the Mental Health Act 2009.

13—Advance care directive not to give power of attorney

This clause provides that an advance care directive cannot give a person's power of attorney to another (that is, the power to deal with the legal and property affairs of the person). That can only occur under the Powers of Attorney and Agency Act 1984, or some other relevant law.

14—Giving advance care directives where English not first language

This clause sets out how a person can give an advance care directive if English is not his or her first language.

15—Requirements for witnessing advance care directives

This clause sets out the requirements for witnessing an advance care directive. The advance care directive will only be taken to have been witnessed in accordance with the measure if it complies with this proposed section.

The witness is required to certify to certain matters set out in proposed subsection (1)(b).

A person specified by proposed subsection (2) cannot be a witness under an advance care directive.

16—When advance care directives are in force

This clause sets out when an advance care directive takes effect, namely from the time it is witnessed in accordance with the Act (following completion of the advance care directive form and the witness complying with section 15). An advance care directive remains in force (that is, it continues to have effect) until the person who gave the advance care directive dies, it is revoked or it expires in accordance with its terms, whichever happens first.

17—Advance care directive revokes previous advance care directives

This clause provides that if a person gives an advance care directive, all previous advance care directives given by that person are revoked.

18—No variation of advance care directive

This clause clarifies that, subject to the power conferred on the Guardianship Board under Part 7 of the measure to make certain orders in relation to substitute decision-makers, an advance care directive cannot be varied.

19—Binding and non-binding provisions

This clause sets out what is a binding provision of an advance care directive (which must be complied with by health practitioners etc) and what are non-binding provisions (which should be given effect).

20—Advance care directive has effect subject to its terms

This clause provides that an advance care directive has effect according to its terms other than where this measure, or another Act or law, prevents a particular provision of an advance care directive from having effect.

Division 2—Substitute decision-makers

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

This clause provides that a person who gives an advance care directive can appoint 1 or more substitute decision-makers to make decisions for the person.

The clause also sets out who cannot be a substitute decision-maker—basically a person who is either incompetent, or has duties that may conflict with the role of substitute decision-maker.

The regulations may also set out requirements that must be complied with in relation to the appointment of substitute decision-makers.

22—Substitute decision-makers jointly and severally empowered

This clause provides that, unless the person giving the relevant advance care directive specifies otherwise in the advance care directive, any substitute decision-makers appointed under the advance care directive will be able to act jointly or severally, that is any one of them can exercise any power by themself, or collectively with any or all of the others.

The person giving the advance care directive can, however, make provisions setting out how any powers conferred on substitute decision-makers are to be exercised, and those provisions will prevail.

23—Powers of substitute decision-maker

This clause sets out the powers of substitute decision-makers, namely that he or she can make decisions on behalf of the person who gave the relevant advance care directive in the areas listed in subsection (1).

However, the person giving the advance care directive can make provision in his or her advance care directive limiting or otherwise qualifying the powers of any or all of the substitute decision-makers, and those provisions will prevail.

A substitute decision-maker cannot exercise a power that the person who gave the advance care directive has as a trustee or personal representative of another, for example where the person is the guardian of another.

The clause also provides that (unless the advance care directive provides otherwise) the substitute decision-maker cannot refuse the provision of pain relief, or food and liquids by mouth, to the person who gave the advance care directive.

24—Exercise of powers by substitute decision-maker

This clause sets out requirements relating to how a substitute decision-maker can make a decision under an advance care directive. In particular, he or she must produce the advance care directive or a certified copy at the request of the relevant health practitioner.

25—Substitute decision-maker to give notice of decisions

This clause requires a substitute decision-maker to notify each other substitute decision-maker under an advance care directive if he or she makes a decision under the advance care directive.

26—Substitute decision-maker may obtain advice

This clause allows a substitute decision-maker to seek advice—professional or otherwise—in relation to performing his or her functions as substitute decision-maker.

27—Substitute decision-maker may renounce appointment

This clause sets out how a substitute decision-maker can renounce his or her appointment, namely by giving notice in writing to the person who gave the advance care directive. Of particular note is the fact that, if the person who gave the advance care directive is not competent, a substitute decision-maker can only renounce his or her appointment with the permission of the Guardianship Board.

28—Death of substitute decision-maker does not affect validity of advance care directive

This clause clarifies that the death of a substitute decision-maker does not, of itself, affect the validity of the relevant advance care directive. That is not to say that the operation of the advance care directive will not be affected (for example certain decisions may not be able to be made), but the death will not itself automatically invalidate the advance care directive in its entirety.

Division 3—Revoking advance care directives

Subdivision 1—Revoking advance care directive where person competent

29—Revoking advance care directive where person competent

This clause sets out how a competent person who understands the consequences of revoking their advance care directive can revoke it, and sets out requirements to be complied with if they do so.

Subdivision 2—Revoking advance care directive where person not competent

30—Application of Subdivision

This Subdivision applies to people who are not competent, or do not appear to understand the consequences of revoking an advance care directive.

31—Guardianship Board to be advised of wish for revocation

If any person becomes aware that a person in relation to whom this Subdivision applies wishes, or may wish, to revoke an advance care directive they must advise the Guardianship Board.

The Guardianship Board may give any directions to specified persons or bodies that the Guardianship Board thinks necessary or desirable, which must be complied with, with a criminal offence carrying a maximum penalty of 6 months imprisonment applying if they do not. A defence is available and is set out in subsection (4).

32—Revoking advance care directives where person not competent

This clause provides that the advance care directive of a person to whom the Subdivision applies can only be revoked by the Guardianship Board under this proposed section.

The Board should only revoke an advance care directive if it truly reflects the considered wishes of the person who gave it.

Part 4—Recognition of advance care directives from other jurisdictions

33—Advance care directives from other jurisdictions

This clause recognises and gives effect to advance care directives (whatever they may be called) from other jurisdictions within Australia. However, a provision of an interstate advance care directive that could not be made in this jurisdiction, for example a provision requesting the administration of euthanasia, is void and of no effect.

Part 5—Giving effect to advance care directives

34—When things can happen under an advance care directive

This clause sets out when decisions can be made by a substitute decision-maker, or health care provided, under an advance care directive.

Those things can only happen if the person who gave the advance care directive has impaired decision-making capacity in respect of a proposed decision. However, any provision of an advance care directive may be used in determining the wishes of the person who gave it.

35—Substitute decision-maker to give effect to advance care directive

This clause requires a substitute decision-maker to give effect to the matters set out in proposed subsection (1)(a), to make the decision that the substitute decision-maker reasonably believes the person who gave the advance care directive would have made, and to act with due diligence and in good faith.

36—Health practitioners to give effect to advance care directives

This clause requires a health practitioner who is providing, or is to provide, health care to a person who has given an advance care directive to give effect to the matters set out in subsection (1). In particular, he or she must comply with a binding provision of the advance care directive (that is, a provision refusing particular health care) and should, if it is reasonably practicable, comply with non-binding provisions.

The clause does allow a health practitioner to refuse to comply with a provision (other than a binding provision and a provision comprising instructions in relation to the withdrawal, or withholding, of health care) of an advance care directive if to give effect to the provision is not consistent with any relevant professional standards or does not reflect current standards of health care in the State.

A failure to comply with the proposed section by a health practitioner amounts to unprofessional conduct.

37—Conscientious objection

This clause allows a health practitioner to refuse to comply with a provision of an advance care directive (including a binding provision) on conscientious grounds. If they do so, the health practitioner must comply with the requirements under proposed subsection (2) including identifying, and referring the patient to, a health practitioner who they believe will not refuse.

38—Consent etc taken to be that of person who gave advance care directive

This clause provides that a consent given by a substitute decision-maker, or by a provision of an advance care directive, will be taken to be the consent of the person who gave the advance care directive (as if they were capable of giving such consent).

39—Consent taken to be withdrawn in certain circumstances

This clause provides that a consent granted under an advance care directive will be taken to have been withdrawn if the person who gave the advance care directive expressly or implicitly withdraws the relevant consent.

However, a person giving an advance care directive can override that presumption by express provision in the advance care directive, and the presumption will not apply in circumstances prescribed by regulation.

Despite the deemed withdrawal of consent, anything done in good faith, without negligence and in accordance with an advance care directive before consent was withdrawn under the section will be taken to be valid, and always to have been valid.

Part 6—Validity and limitation of liability

40—Presumption of validity

This clause provides that a person is entitled to presume that an apparently genuine advance care directive is valid and in force unless he or she knew, or ought reasonably to have known, that is was not.

41—Protection from liability

This clause removes criminal and civil liability for an act or omission of a person done or made in good faith, without negligence and in accordance with an advance care directive.

42—Validity of acts etc under revoked or varied advance care directive

This clause provides that things done pursuant to an advance care directive remain valid despite its revocation or variation.

Part 7—Dispute resolution, reviews and appeals

Division 1—Preliminary

43—Interpretation

This clause defines who is an eligible person in respect of an advance care directive, and hence able to access the dispute resolution processes under the proposed Part.

44—Application of Part

This clause sets out the matters to which the proposed Part applies (that is, those disputes and matters that can be resolved under the Part).

Division 2—Resolution of disputes by Public Advocate

45—Resolution of disputes by Public Advocate

This clause sets out the ways in which the Public Advocate can assist in the resolution of matters to which the Part applies.

In particular, the Public Advocate can mediate disputes, and can make declarations of the kind set out in subsection (5).

The clause also makes procedural provisions in relation to proceedings under the section.

46—Public Advocate may refer matter to Guardianship Board

This clause provides that the Public Advocate can refer certain matters to the Guardianship Board if he or she thinks it is more appropriate that the matter be dealt with by the Guardianship Board.

Division 3—Resolution of disputes by Guardianship Board

47—Resolution of disputes by Guardianship Board

This clause sets out the ways in which the Guardianship Board can resolve matters to which the Part applies.

This can occur by way of the Guardianship Board reviewing a matter dealt with by the Public Advocate under proposed section 45, or by the Board making certain declarations or directions in relation to a matter.

The clause also makes procedural provisions in relation to proceedings under the proposed section.

48—Guardianship Board may refer matter to Public Advocate

This clause provides that the Guardianship Board can refer certain applications under section 47(1)(b) to the Public Advocate if the Board is of the opinion that the matter is more appropriately dealt with by the Public Advocate.

49—Failing to comply with direction of Guardianship Board

This clause establishes an offence for a person to fail to comply with a direction of the Guardianship Board under the proposed Division, carrying a maximum penalty of 6 months imprisonment. A defence is available and is set out in subsection (2).

50—Orders of Guardianship Board in relation to substitute decision-makers

This clause allows an eligible person to apply to the Guardianship Board to revoke the appointment of a substitute decision-maker who cannot be a substitute decision-maker, who does not wish to be a substitute decision-maker or who has been negligent or is otherwise an inappropriate person to be a substitute decision-maker.

The clause also allows the Guardianship Board to vary the advance care directive to, amongst other things, appoint a new substitute decision-maker or (in cases where there is only one substitute decision-maker) to revoke the advance care directive.

The clause also provides guidance to the Guardianship Board in relation to the exercise of its powers under the section.

Division 4—Urgent review of decisions

51—Urgent review by Supreme Court

This clause provides for an urgent review in the Supreme Court of a matter specified in proposed subsection (1). The review is limited to ensuring that a substitute decision-maker's decision is in accordance with the relevant advance care directive and the Act.

Division 5—Miscellaneous

52—Question of law may be referred to Supreme Court

This clause allows the Public Advocate or the Guardianship Board to refer a question of law for the opinion of the Supreme Court.

53—Operation of orders pending appeal

This clause provides that a decision, direction or order of the Guardianship Board or a court continues to have effect despite an appeal against the decision being instituted (although the decision, direction or order can be suspended by the body that made it or the appellate court.)

Part 8—Offences

54—False or misleading statements

This clause creates an offence where a person knowingly makes a false or misleading statement in, or in relation to, an advance care directive. The maximum penalty is 2 years imprisonment.

55—Fraud, undue influence etc

This clause creates an offence where a person, by dishonesty or undue influence, induces another to give an advance care directive. The maximum penalty is 10 years imprisonment. A person found guilty of the offence may also forfeit any interest that the person has in the estate of the person who gave the relevant advance care directive.

The clause also allows a sentencing court to make certain orders relating to the disposition of the advance care directive.

Part 9—Miscellaneous

56—Giving notice to substitute decision-makers

This clause sets out how notice can be given to a substitute decision-maker, and further requires a substitute decision-maker given notice to then notify each other substitute decision-maker.

57—Prohibition of publication of reports of proceedings

This clause prevents publication of reports into proceedings under the proposed Act (except with the authorisation of the court or body conducting the proceedings or the consent of the person who gave the relevant advance care directive).

58—Service of documents

This standard clause sets out how documents under the Act can be served on a person.

59—Victimisation

This clause provides for acts of victimisation arising out of the doing of certain things under the measure to be dealt with as a tort, or under the Equal Opportunity Act 1984 (but not both) and sets out procedural matters accordingly.

60—Confidentiality

This clause creates an offence for a person engaged or formerly engaged in the administration of this Act to divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except in the circumstances set out in proposed subsection (1).

61—Review of Act

This clause requires the Minister to cause a review of the proposed Act to be conducted before the fifth anniversary of its commencement. A report of the review must be prepared and laid before both Houses of Parliament.

62—Regulations

This clause is a standard regulation making power, allowing regulations to be made for the purposes of the Act.

Schedule 1—Related amendments and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Consent to Medical Treatment and Palliative Care Act 1995

2—Amendment of section 3—Objects

This clause makes a consequential amendment.

3—Amendment of section 4—Interpretation

This clause makes consequential amendments and defines key terms to be used in the principal Act.

4—Insertion of sections 4A and 4B

This clause inserts new sections 4A and 4B into the principal Act as follows:

4A—References to provision of medical treatment etc to include withdrawal etc of medical treatment

This clause clarifies that where there is a reference in the Consent to Medical Treatment and Palliative Care Act 1995 to medical treatment, that reference will include the withdrawal or withholding of treatment.

4B—Consent not required for withdrawal etc of medical treatment

This clause clarifies that the Consent to Medical Treatment and Palliative Care Act 1995 does not operate to require consent to be given before any medical treatment can be withdrawn or withheld.

5—Repeal of section 5

This clause repeals section 5 of the principal Act.

6—Amendment of heading to Part 2

This clause makes a consequential amendment.

7—Repeal of Part 2 Divisions 2 and 3

This clause repeals Divisions 2 and 3 of Part 2 of the principal Act, anticipatory directions and medical agents having been replaced by advance care directives.

8—Amendment of section 13—Emergency medical treatment

This clause makes a consequential amendment.

9—Repeal of Part 2 Division 6

This clause makes a consequential amendment.

10—Insertion of Part 2A

This clause inserts new Part 2A into the principal Act as follows:

Part 2A—Consent to medical treatment if person has impaired decision-making capacity

14—Interpretation

New section 14 defines key terms used in the new Part 2A.

Of particular note is the definition of 'person responsible', which sets out a hierarchy of persons who, in respect of a particular patient, can make certain decisions regarding the patient's medical treatment. However, a person who is lower than another in the hierarchy will only be taken to be a person responsible if no higher person is available and willing to make the relevant decision.

New Part 2A applies to a broader range of health care than the usual limits of medical treatment. The 'medical treatment' contemplated by the new Part includes health care provided by a person practising any health profession (within the meaning of the Health Practitioner Regulation National Law (South Australia), including areas such as optometry, podiatry and physiotherapy.

14A—Application of Part

New section 14A sets out matters or areas to which the new Part will not apply, namely the treatment of children, people who have given certain advance care directives and the provision of prescribed treatment under the Guardianship and Administration Act 1993 (such as sterilisation of mentally incapacitated persons).

14B—Consent of person responsible for patient effective in certain circumstances

New section 14B enables a person responsible in respect of a patient with impaired decision-making capacity to make certain decisions relating to medical treatment on behalf of the patient. If they do so, any consent given will be taken to have been given by the patient. It is worth noting that a person responsible can refuse to consent to proposed medical treatment.

The new section also provides protection for medical practitioners, insofar as it deems the patient to have consented even where the person responsible was not, in fact, a person responsible for the patient, provided that the medical practitioner did not know and could not reasonably be expected to have known that the person was not, in fact, a person responsible for the patient.

14C—Person responsible for patient to make substituted decision

New section 14C requires a person responsible who is making a decision on behalf of a patient to make the decision that they believe the patient would have made in the circumstances.

14D—Person must not give consent unless authorised to do so

New section 14D creates an offence for a person to purport to make a decision, or represent him or her self, as a person responsible in respect of a patient if he or she is not, in fact, such a person. The maximum penalty is imprisonment for 2 years.

11—Amendment of section 17—The care of people who are dying

This clause substitutes section 17(2) of the principal Act to clarify some confusion about the ability of a patient's representative to demand the continuation of treatment to a dying patient in circumstances where to do so is futile. New subsection (2) makes it clear that medical practitioners and those under their supervision are under no duty to use or continue treatment in such circumstances, regardless of the whether the patient's representative has requested them to do so. However, the medical practitioner etc must withdraw life sustaining measures if directed to do so by the patient's representative.

12—Insertion of Part 3A

This clause inserts new Part 3A as follows:

Part 3A—Dispute resolution

Division 1Preliminary

18A—Interpretation

New section 18A defines key terms used in the new Part.

18B—Application of Part

New section 18B sets out the matters able to be subject to the dispute resolution processes under the new Part.

Division 2—Resolution of disputes by Public Advocate

18C—Resolution of disputes by Public Advocate

New section 18C sets out the Public Advocate's role in the dispute resolution processes of the new Part.

Importantly, the Public Advocate may mediate a dispute that has arisen in relation to a matter without prejudice to the parties' position in later proceedings.

18D—Public Advocate may refer matter to Guardianship Board

New section 18D allows the Public Advocate, if he or she has ended a mediation that would be more appropriately dealt with by the Guardianship Board, to refer the matter to the Board for determination.

It is proposed that the regulations will make the necessary procedural provisions in respect of the referrals.

Division 3—Resolution of disputes by Guardianship Board

18E—Resolution of disputes by Guardianship Board

New section 18E sets out the role of the Guardianship Board in terms of resolving disputes to which the new Part applies.

The Guardianship Board (on the application of an eligible person) can review matters the subject of mediation by the Public Advocate. The Guardianship Board can also make declarations and directions that it considers appropriate in a particular case.

The Guardianship Board can refuse to hear certain matters—those lacking substance, or that are frivolous or vexatious, for example. It can also refuse to hear a matter that it thinks should properly be the subject of legal proceedings.

18F—Guardianship Board may refer matter to Public Advocate

New section 18F enables the Guardianship Board to refer certain matters the subject of an application under new section 18E to the Public Advocate. Such matters would include those that would be open to mediation.

18G—Contravention of direction

New section 18G creates an offence for a person to fail to comply with a direction of the Guardianship Board under new Division 3. The maximum penalty is imprisonment for 6 months.

Division 4—Miscellaneous

18H—Question of law may be referred to Supreme Court

New section 18H allows the Public Advocate and the Guardianship Board to refer questions of law to the Supreme Court for an opinion.

18I—Operation of orders pending appeal

New section 18I provides that a decision, direction or order of the Guardianship Board or a court continues to have effect despite an appeal against the decision being instituted (although the decision, direction or order can be suspended by the body that made it or the appellate court).

13—Substitution of section 19

This clause substitutes section 19 of the principal Act, replacing it with a regulation-making power that reflects current legislative practice.

Part 3—Amendment of Coroners Act 2003

14—Amendment of section 3—Interpretation

This clause makes a consequential amendment to the Coroners Act 2003.

Part 4—Amendment of Fair Work Act 1994

15—Amendment of section 76—Negotiation of enterprise agreement

This clause makes a consequential amendment to the Fair Work Act 1994.

Part 5—Amendment of Guardianship and Administration Act 1993

16—Amendment of section 3—Interpretation

This clause makes consequential amendments to section 3 of the principal Act, and inserts new terms used in the Act.

17—Amendment of section 5—Principles to be observed

This clause makes a consequential amendment.

18—Repeal of Part 3

This clause repeals Part 3 of the principal Act (relating to the appointment of enduring guardians). That role is instead to be dealt with by way of an advance care directive.

19—Amendment of section 28—Investigations by Public Advocate

This clause extends the operation of section 28 of the principal Act (dealing with investigations of certain matters by the Public Advocate) to include the affairs of a person whose advance care directive has been revoked by the Guardianship Board under the measure.

20—Amendment of section 29—Guardianship orders

This clause extends the operation of section 29 of the principal Act (dealing with when the Guardianship Board can make a guardianship order) to include where a person's advance care directive has been revoked by the Guardianship Board under the measure.

The clause also inserts new subsection (7) into section 29, requiring that the terms of a guardianship order should, as far as is reasonably practicable, be consistent with the terms of any relevant advance care directive.

21—Insertion of section 31A

This clause inserts new section 31A into the principal Act, which requires a guardian to find out whether the person for whom they are a guardian has given an advance care directive (including certain advance care directives that have been revoked), and then to take steps to give effect to any wishes or instructions it may contain, particularly in terms of avoiding unwanted outcomes.

22—Amendment of section 32—Special powers to place and detain certain persons

This clause amends section 32 of the principal Act to include persons who have given an advance care directive under which a substitute decision-maker has been appointed among the persons who can be placed and detained under the section.

23—Amendment of section 33—Applications under this Division

This clause makes a consequential amendment.

24—Amendment of section 37—Applications under this Division

This clause makes a consequential amendment.

25—Amendment of heading to Part 5

This clause makes a consequential amendment.

26—Repeal of sections 58, 59 and 60

This clause repeals sections 58, 59 and 60 of the principal Act, those sections having been moved to new Part 2A of the Consent to Medical Treatment and Palliative Care Act 1995.

27—Amendment of section 61—Prescribed treatment not to be carried out without Board's consent

This clause makes a consequential amendment.

28—Repeal of section 79

This clause makes a consequential amendment.

29—Repeal of Schedule

This clause makes a consequential amendment.

Part 6—Amendment of Health and Community Services Complaints Act 2004

30—Amendment of section 24—Who may complain

This clause makes a consequential amendment to the Health and Community Services Complaints Act 2004.

Part 7—Amendment of Wills Act 1936

31—Amendment of section 7—Will of person lacking testamentary capacity pursuant to permission of court

This clause makes a consequential amendment to the Wills Act 1936.

Part 8—Transitional provisions

32—Transitional provisions relating to anticipatory directions under Consent to Medical Treatment and Palliative Care Act 1995

This transitional provision converts, on the day clause 6 of Schedule 1 comes into operation, a current direction under section 7 of the Consent to Medical Treatment and Palliative Care Act 1995 to an advance care directive of corresponding effect and given in accordance with this Act, and makes consequential and procedural provisions accordingly.

The provisions of this measure will then apply to the advance care directive.

33—Transitional provisions relating to medical agents under Consent to Medical Treatment and Palliative Care Act 1995

This transitional provision converts, on the day clause 7 of Schedule 1 comes into operation, a current appointment of a medical agent under section 8 of the Consent to Medical Treatment and Palliative Care Act 1995 to an advance care directive of corresponding effect and given in accordance with this Act, and makes consequential and procedural provisions accordingly.

The provisions of this measure will then apply to the advance care directive.

34—Transitional provisions relating to other instruments continued under Consent to Medical Treatment and Palliative Care Act 1995

This transitional provision converts, on the day Part 2 of Schedule 1 comes into operation, a current direction or enduring power of attorney continued in force under Schedule 3 of the Consent to Medical Treatment and Palliative Care Act 1995 to an advance care directive of corresponding effect and given in accordance with this Act, and makes consequential and procedural provisions accordingly.

The provisions of this measure will then apply to the advance care directive.

35—Transitional provisions relating to enduring guardians under Guardianship and Administration Act 1993

This transitional provision converts, on the day clause 18 of Schedule 1 comes into operation, a current appointment of an enduring guardian under section 25 of the Guardianship and Administration Act 1993 to an advance care directive of corresponding effect and given in accordance with this Act, and makes consequential and procedural provisions accordingly.

The provisions of this measure will then apply to the advance care directive.

36—Only 1 advance care directive to be created

This transitional provision provides that, even if 2 or more of the preceding transitional provisions have work to do, only 1 advance care directive will be created, covering all of the relevant provisions.

37—Disputes

This transitional provision extends the operation of Part 7 of this measure dealing with dispute resolution to include disputes arising out of the operation of Schedule 1 of the measure.

Debate adjourned on motion of Ms Chapman.

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