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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-11-13 Daily Xml
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ADVANCE CARE DIRECTIVES BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms CHAPMAN (Bragg) (15:51): Before the luncheon adjournment, I was canvassing a similar aspect of the disappointment in the uptake of directives, namely, the education input that had been given to the organ donation procedure so that we try to encourage people through education to think about these things and attend to them, including the documentation, if in that instance it is able to save the lives of others so that we do not place parents in the appalling situation of not being able to deal with the death of a child, for example, as the result of a car accident and be worrying about the donation of organs. The educative role, therefore, is an important one and I think the review committee also made it very clear that it was important.

Another disappointing aspect, though, of not bringing forward the financial powers of attorney, that is, have an integrated directive that encompasses powers of attorney, is that the national framework that had been endorsed by the 2011 Australian health ministers council had suggested a provision for this integrated directive. This is the one recommendation, it appears, that our minister has declined to take up.

As I say, it is not a problem, in my view, if the Attorney had also come into the house with a separate bill identifying his commitment to making submissions to amend this legislation in due course. All we have is the possibility of the Attorney-General doing an update of the powers of attorney law. Disappointing as that is, the comprehensive process for new directives is one which I think ought to be supported by the house.

In addition to what can be put in the new directive regime and the scope of it, I think it is fair to say that the objective of the bill is to ensure that a broad range of information can be in directives. That is not contained at the moment, or restricted at the moment, but the information people will be able to include in the new advance care directives is to be significantly expanded.

The examples given are: values and goals in life and of care, what is important to them when decisions are being made for them by others, instructions relating to various periods of life (that is, not just the end of life), what levels of functioning would be intolerable, where and how they wish to be cared for when they are unable to care for themselves, and even, indeed, who is going to be looking after them in those circumstances.

The other aspect I wanted to briefly refer to was the form itself. I think I said earlier that the object here is to provide a sort of simple standard precedent form that will need to be complied with for the purposes of having a valid advance care directive. Now, that is not uncommon for forms to be provided. Sometimes they are very skeletal and there is a significant amount of information that needs to be included by the person granting the advance care directive. This model, though, is going to make it a requirement that, for the advance care directive to be valid, it be completed using a form approved by the minister and that it must be witnessed.

So, that is fairly simple, but, nevertheless, what was disappointing at the briefing, I thought, was that, in relation to this do-it-yourself advance care directive kit that is going to be developed, with accompanying guidelines outlining in lay terms the rights and responsibilities of all the parties involved in the completion of the application of the advance care directive, at the time of the briefing no draft, after all these years, had been prepared. I inquired myself about other forms from interstate, because we are not the first state to advance this, pardon the pun—but they were not entirely consistent with what was had in mind here in the do-it-yourself kit in the model we were going to produce.

But it seems to be that this whole issue has been under consideration for years, that for years we have had people working on this, and to have not even turned up with a draft of what this very prescriptive process is going to be in this, sort of do-it-yourself kit, I think was a bit poor to be honest. I think we need that to be remedied. I think that if there is going to be a law that future directives have to be in this form then we should at least have had that material available.

It is not the same as a regulation which will set out the rules that are to apply to a document, say like the regulations that go under the Wills Act. In this instance we are going to have this kit arrangement, and that is what is going to be used, and that is what is proposed to be advanced and approved by the Minister for Health and Ageing. We therefore, in my view, should have at least had a draft of what was to be provided.

Now, I suppose there is some legal background in me that makes me express a word of caution when we look at these do-it-yourself kits. We are talking about very significant decisions that are made in respect of interventions, or lack of interventions, or medical procedures that could be life extending or life threatening. We are talking about estates that could be very significant and the management of them that could also have very significant financial consequences.

So I am not keen on these do-it-yourself jobs. I think there is a place for them where people have minimal assets or if they are simply wishing to give a very simple instruction in respect of health. Some, for example, for religious reasons might want to say that under no circumstances do they want to be given a blood transfusion. It is a very clear, simple instruction and there will certainly be people in the community who would want to ensure that that did not happen in the event that they were admitted to a hospital, or in any emergency circumstance, or where they might be unable to give instructions and be vulnerable to some other well-intentioned, probably, relative authorising that to happen, when it is clearly not their wish that it occur.

So, we need to appreciate that these are very significant documents and sending people off with a kit with a few guidelines that we have not even seen a draft of at this stage, I think, has got some significant drawbacks which will provide some considerable difficulty with enforcement in the future, possibly even interpretation, if people are not given advice in the drafting of the contents that they add into them.

So, I am a little anxious about that. I would only encourage those people who are making any decision in respect of medical interventions, or placement in care, or financial management of any consequence, that they have advice about what the content of this document is. It is one thing to buy a kit with a heading and a signature clause, and an envelope to store it in, or anything else, like do-it-yourself will kits, but what goes in that document is going to be a very precious record of very important decisions that people want to have respected.

The second aspect I will comment on is the mutual recognition provision. Currently, South Australia is one of the only Australian jurisdictions in which advanced care directives completed in other jurisdictions are not recognised. I do not know of any others. That was the wording that was identified in the second reading explanation. I have no reason to suggest that that is incorrect, but I am not aware of any other state. I again seek leave to continue my remarks.

Leave granted; debate adjourned.

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