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

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 9 April 2013.)

The Hon. J.J. SNELLING: I move:

That the Legislative Council's amendments be agreed to.

Ms CHAPMAN: I place on the record and remind members that this bill was a conscience vote for the Liberal Party. Of course, all our votes are conscience votes, but in this circumstance we have elected not to have a party position. I think it is fair to say, though, that the government has been overwhelmed with the response from a number of stakeholders on this legislation. There are those, of course, who are very concerned about whether this legislation was in fact producing a back-door form of euthanasia.

This bill had a very long development period under previous minister Hill, and I think even his predecessor. From memory, the original consideration of this was under minister Stevens when I think she appointed the Hon. Martyn Evans to undertake a general inquiry. I think from one of the earliest meetings I had with him as shadow minister for health, he indicated that in fact this had a gestation period of about four or five years before it even got to a stage of draft bills for consideration.

Of course, even when we had the final presentation under minister Hill to members of parliament there were significant deficiencies in relation to the matters raised in the proposed bill, but also there had been no drafts prepared of the format for the form to be provided in advance care directives, even though it had been considered in other jurisdictions.

So, a very long gestation period and a very long time for members to give some thought to this and, of course, for stakeholders to have an interest; however, notwithstanding that, the government proceeded with a bill that I suggest failed to really take into account a number of important aspects. Fortunately, I think the current minister—I will give him credit for it, anyway—has understood the importance of these and has agreed to a number of amendments. The Hon. Ian Hunter presented a number of those to the Legislative Council, which were passed in that chamber yesterday afternoon and which the current minister has indicated he is supporting.

I will not traverse a number of the issues that the Hon. Ian Hunter outlined, for which he stated that there was a clear position on legal advice which the government had obtained and which he outlined in his contribution yesterday. On those issues, he said they had received advice and it was clear what the position was, he reiterated it there and provided the basis for that, and I think that gives a good summary of assurances from the government on a number of key issues that were raised.

In the categories of amendment, one which has been flagged for years, and which I am pleased the government has acceded to, is the question of iatrogenic complications. I will not detail that because people who have been following this debate will know how that is defined, but the government has now supported the amendment to remove the clause from the bill which effectively means that 'side treatments', if I can call them that, could not be acted upon or there may have been a possibility that they could not have been acted upon with medical intervention. We are very pleased about that.

There was a tidying up of the definition of medical treatment. I think here the government wanted to have consistency but realised that there were some problems in relation to that and accepted that the proposed amendment to the definition of medical treatment would be changed. There was a removal of 'examination and assessment' from the definition, which I think was a wise move, and I thank the government for that.

There were also amendments to deal with this, I think, more difficult issue of emergency provisions in the Consent to Medical Treatment and Palliative Care Act and to provide for the lawful administration of medical treatment in an emergency, and where the refusal in the advance care directive is unclear or ambiguous. I am sure other members, no matter how they voted on this bill, were very concerned about ensuring that there be protection to enable flexibility. I think the amendments proposed by the government, and in fact passed in the Legislative Council, do provide some flexibility for that.

On the issue of conscientious objections, again I think the minister covered that. He did say, however, that, as presently drafted, this may not cover situations where a person thinks that they are acting in accordance with the advance care directive but may have misinterpreted a provision. As a result, of course, we have the amendment before us.

There is some provision to cover the actions and applications made to the Guardianship Board. Remembering that this bill makes provision for people to get advice from the Public Advocate with appropriate capacity to go off to the Guardianship Board, I think the government has helped in looking at minimising vexatious applications to the Guardianship Board, and that is a timely provision. There were other minor amendments which were put forward and we welcome those.

Can I say, for the record, that there were a number of organisations and stakeholders involved in this debate who came forward, some of whom we do not view as the usual suspects when it comes to legislative reform. This is a very important piece of legislation. I support the principle of the objectives that are in the bill, which I think were outlined when minister Hill had the conduct of this matter.

I think it is hard not be supportive of ensuring that people have an opportunity to be able to have greater certainty over their lives, but also to protect those who are going to be in the firing line, which of course are our health and medical people, including ambulance officers and the like. We do need to make sure that we get it as right as possible. I thank all those who have worked hard to ensure that the issues of concern and conflict have been identified.

I thank the government for at least listening to some of those in the end and ensuring that we have some sensible modification. I think this will not only keep flexibility but also ensure that we have those extra protections. I also wish to thank those in the other place who have made a number of contributions. I think I have read almost all of them, and I have no doubt that other members in this house would have carefully looked at this debate and followed it with some interest, no matter how they decide to vote on it.

I think the Legislative Council has done justice to the whole process of the parliament by ensuring that we have had a diversity of views expressed on this matter. Members have taken the opportunity to outline their position, raise the concerns that have been raised with them, and then there has been what I think is a very important and proper counsel of discussion. A resolution has come back here in a form that certainly does justice to the Legislative Council, for which I think we should record our appreciation.

In saying that, I am not diminishing the contribution that I am sure the new minister has had in that outcome, because, of course, he now has the conduct of this matter on behalf of the government. With those words, I indicate that I will be supporting the bill in its amended form.

The Hon. S.W. KEY: I am pleased to see that we are at the stage where we may actually pass this bill. I have been campaigning for reform in the advance care directives area for over 10 years and I have been a bit frustrated, to be honest, about the lack of progress that as been made. At one stage, I was getting involved in very complicated discussions with the view to introducing a private member's bill. One of the reasons for this is that back in the day when, as the member for Bragg said, the then minister for health (Lea Stevens) and I, as social justice minister, saw this as a very important initiative for people in South Australia.

I do not think the former member for Little Para and former minister (Lea Stevens) would mind me saying this, but we really believed that it was important for people to be able to make arrangements in relation to their lives, to be able to understand those arrangements, to change the arrangements and, where necessary, delegate arrangements (particularly with regard to advance care directives) to other people who would carry out and respect the wishes that one had put forward.

When I say there has been a long history, it has certainly been my experience—and I know other people in this chamber, as JPs, for example, would understand—where there has been some confusion from constituents who come to you with various documents that they want you to certify. I have been very concerned, over the years, when a whole family will come into the electorate office with their mother or grandmother to try to formalise these arrangements. Sometimes, although your job as a JP is to certify documents, in fact it is important that the person who is going through this process understands what is happening and is totally comfortable with it.

Over the years I have also been very concerned about information that has come from the community legal service area, where different constituents have gone to community legal service and the lawyer who has been working on these cases has been really concerned about the understanding (or not) of the person who has come to them. It is the same with the Women's Information Service and the Women's Legal Service, just to mention a few of those organisations that provide support for people.

I do commend the original band in South Australia, chaired by Martyn Evans, for the work they have done over many years in the advanced care directives area and also the input they had a little later on in the process with the national group that was set up to try to make sure that we not only had advanced care directives that were understandable and, as I said, accessible to people, but also that there was some sort of national uniformity. I do not know how far that has gone recently, but that is certainly another area. I congratulate the former minister John Hill and, certainly, the current minister for making this possibly a bill that will be passed today.

The Hon. J.D. HILL: I will not speak at great length, Mr Chairman. I just express my pleasure that after a very long period of time, which covered my entire period as minister for health and beyond on both ends, this legislation has finally got to this stage. I will comment on the sentiment of the contribution made by the member for Bragg. It has been something which has been worked on across both chambers, and with some give-and-take we have reached a set of words which most people seem to be able to live with, including the legal profession, the medical profession, and all members of this place, which gives me some confidence that the legislation will be well received in the community and will be able to be implemented in a sensible way.

It is really, really important that individuals tell their families about what they want to happen when they are well and when they are of sound mind if circumstances change. The legislation has allowed that for some time, but very few people have taken it up. It is really important—and I will say this to the minister for health, and I am sure he knows this—that the department through its officers has to go out there and sell this package because of itself it will not really change the world but it makes it easier for people to use the existing provisions.

Finally, I just want to make one comment. During the period when I was minister and had responsibility for this, The Australian newspaper, through the person of Christopher Pearson, wrote an article which attacked this provision and attributed to me the view that I was doing it in order to reduce the number of old people in our hospitals as some sort of grubby cost saving measure. I wrote to the editor and complained about this and sought an apology. Pearson originally refused to give one saying that he was being ironic in a Swiftian kind of way when he made that observation, but if anybody had read his article they would know this was not correct. What he did was rely on somebody who was opposed to the legislation (a person I had not heard of) and appear to rely solely on the opinion of this person to mount a case that this was a stepping stone on the way to euthanasia.

Regardless of what one's views are about euthanasia, this legislation has nothing to do with euthanasia. It is about the sense of provision of care for people in various times of their life, including when they are terminally ill. This is not about terminal illness per se: it is about people who have lost capacity in various ways who need the help of others to make decisions on their part or who want to tell others, including the medical profession, about what interventions they want at particular periods of their life. This is not a stepping stone to euthanasia. I was deeply offended by the comments made by Pearson. Ultimately, after a more stern letter was sent by me, he apologised and withdrew the comments in his article, but I just wanted to put it on the record here, because I was offered the opportunity by The Australian to put my own views at the time.

I rejected that opportunity on the basis that, if I were to put my views, I would be giving some credence to the views he put—that is, that we both had views; I had a different view. I just think that he was wrong, and I am glad that eventually an apology arrived. But having got that off my chest, I can say that I am very pleased that this legislation is now at this stage, and I look forward to its fruitful implementation in our community, where I know that it will be welcomed strongly.

The Hon. J.J. SNELLING: I thank members for their comments. I want to put on the record my thanks to the Hon. Martyn Evans, who went and spoke to various interested parties who had a number of concerns about the legislation as it was drafted. As a result, Martyn worked very hard in order to develop amendments which met any concerns anyone had and, as a result of that, if I am not wrong, the legislation and the amendments passed through the Legislative Council unanimously, which I think might be unprecedented. This is indeed landmark legislation, and I put on the record my thanks to Martyn Evans for his very hard work to ensure that this piece of legislation had the broad support it deserves.

Motion carried.

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