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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-02-07 Daily Xml
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ADVANCE CARE DIRECTIVES BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 February 2013.)

The Hon. T.A. FRANKS (16:07): I rise to speak on behalf of the Greens with respect to the Advance Care Directives Bill 2012. As the minister stated in her second reading explanation, this is a bill which allows a person to make decisions and give directions relating to their future health care, residential and accommodation arrangements and personal affairs. On that, I note that they are not provisions in this bill, they are in separate areas of legislation with regard to financial affairs. I also commend the Hon. Michelle Lensink for her work and attention to those areas. However, this bill provides for the appointment of substitute decision-makers to make such decisions on behalf of a person to ensure that their health care is delivered in a manner consistent with that person's wishes and instructions.

I note that the Greens have consulted and been lobbied by a variety of individuals and groups with regard to this bill, notably: Martyn Evans, former health minister; Marion Seal, a nurse currently undertaking her PhD in this field; Sandra Bradley, researcher from Flinders University; both Dr Tim Kleinig and Mr Robert Britten-Jones of Doctors Opposed to Euthanasia; as well as Paul Russell, Executive Director of HOPE: Preventing euthanasia and assisted suicide; and Bernadette Davies. On that note, I observe that the Greens do not believe the bill is in any way a bill about voluntary euthanasia. Certainly, while the parties interested in that particular issue have a very valid interest in this bill, it is in no way a bill for voluntary euthanasia.

I indicate that the Greens are generally supportive of this bill, with some small reservations. We note that the legislation does have a need for clarity in some areas and acknowledge that the government has indicated a similar position, and we are awaiting the government amendments that will address those areas of small concern. In broad terms, the bill has been informed by extensive consultation and we acknowledge that. Certainly, during the Advance Directives Review and the development of the National Framework for Advance Care Directives, we have seen quite extensive consultation.

It takes a broad view that health and wellbeing is not restricted to medical treatment, and decisions at the end of life include protections for health practitioners, substitute decision-makers and others who give effect to advance care directives in good faith and without negligence. It sets out some processes for dispute resolution, and I note that additional powers have been given in this bill to the Office of the Public Advocate to conduct voluntary mediation and to the Guardianship Board to hear disputes and review mediation outcomes as well as to give orders and directions to resolve matters.

I would like to acknowledge the valid concerns that have been raised certainly with the Greens and no doubt with other members, specifically in the area of administration: the forms, the directions given to medical practitioners and the processes around referrals by medical practitioners. I believe that the government is in negotiations with the AMA and the salaried medical officers, and certainly we await those particular negotiations to come to us with more substance in the form of government amendments to address those valid concerns.

Further consultation will need to be undertaken, and I imagine that the government is in no hurry to rush this bill through. We would certainly encourage the government to consider that we also need to then take those amendments back and further consult on them. The consultation that we do should be meaningful, and timeliness around that is part of that consultation being meaningful. We will continue our conversations with stakeholders on this bill, and I am sure that the government and other members of this council will as well.

Having said that, I would like to thank the previous minister for health for the briefing he provided from his office in his final days in that role. We also acknowledge that this has now been taken on by a new minister, and we indicate that we will certainly have some patience with that settling-in process, as staff and indeed the minister himself bring themselves up to speed across the board.

As I said, we are very keen to continue our consultations. I trust that the new minister will look at the McCann review submissions (which close this week) and the measure of the services that are non-hospital-based services in that framework with a fresh set of eyes that we perhaps have not seen previously from the former Rann government. We certainly look forward to working constructively with the new health minister. On that note, we look forward to the government amendments to the bill but, in general, we indicate our in-principle support.

The Hon. S.G. WADE (16:13): The Advance Care Directives Bill 2012 was tabled by the Minister for Health in the House of Assembly on 17 October 2012. At that time the minister for health was the Hon. John Hill. The bill enables competent adults to: firstly, make decisions and give directions in relation to their future health care, accommodation arrangements and personal affairs, and, secondly, to appoint substitute decision-makers to make such decisions on their behalf.

I understand that the bill is a government bill. For the Liberal Party, however, this is a conscience vote, and the views I express today are mine alone. As a Liberal, I believe that people should live the life of their own choosing, even if others think that it is not in their best interests. In my view, this legislation makes a positive contribution to that goal. It is the result of a long and detailed consultation process.

In April 2007 the government launched the Advance Directives Review with the release of an issues paper titled 'Planning ahead: your health, your money, your life'. An independent Advance Directives Review Committee was established with the 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 professionals, lawyers, community organisations, consumers, Aboriginal communities, government agencies and financial institutions. My understanding is that the submissions were broadly in support of the current regime and enhancements to it. After 18 months of deliberations the Advance Directives Review Committee reported to the Attorney-General in two stages with 67 recommendations.

In 2011 the Australian Health Ministers Council endorsed a national framework for advance care directives. The framework provides a lexicon of terms (to facilitate national harmonisation), a code for ethical practice and best practice guidelines. I understand that the bill substantially accords with the national framework and only fails to address one recommendation of the review, that recommendation being that there be an integrated directive encompassing powers of attorney. Like the Hon. Tammy Franks, I pay tribute to the work of the Hon. Michelle Lensink in this area.

Having said that the bill reflects the national framework and the review, I do caution that it may not be the best way to express those reviews in legislative form, and the bill may yet be able to be improved. While I support the second reading of the bill, I look forward to more detailed consideration in the committee stage.

To summarise the benefits of the bill, I thought I would quote from a letter to me from the Australian Medical Association (South Australian division) which considers:

that the Advance Care Directives Bill offers significant key benefits, including:

It supports patient autonomy by making it easier to complete and apply ACDs.

I pause to add that ACDs in that context means advance care directives. The letter continues:

In particular, the bill aims to protect individuals who have specified a refusal of treatment, and aims to protect health practitioners who comply with these wishes.

It creates a single form of ACD to replace the current confusion that exists between the application of Enduring Power of Guardianship (Guardianship and Administration Act 1993), Medical Power Of Attorney and Participatory Directions (Consent to Medical Treatment and Palliative Care Act 1995).

It resolves issues regarding s17(2) of the Consent to Medical Treatment and Palliative Care Act which has been interpreted to provide for medical practitioners to be legally compelled to provide treatment to patients in the terminal phase of an illness even if they believe it to be of no benefit to the patient.

Later in the letter the AMA states:

We believe that the bill significantly improves the framework for medical and healthcare decision-making in SA, rectifying some of the problems with existing legislation.

I thank the government for the briefings of parliamentarians, both as individuals and groups. The bill has been the subject of a range of criticism and comments from a range of stakeholders and constituents raising legal, medical and ethical issues in relation to the bill.

Personally, I thank minister Hill and his officers for briefings on the bill and for information on the government's responses to concerns raised. In that context, I again refer to the letter to me from the Australian Medical Association dated 30 January 2012 in which it indicated that the government had well advanced amendments to address concerns with the bill. The letter stated:

The government and minister subsequently provided a number of clarifications to the AMA(SA) and we understand the government to be introducing some key amendments to the bill in response to the concerns we raised. In summary we understand that these amendments will:

Mean that medical practitioners who are acting in urgent situations in which there is uncertainty will be protected, for example, if they resuscitate a patient. This is an extremely important provision.

Protect health practitioners who believe in good faith that they are acting in accordance with the advance care directive but may have misinterpreted the provision.

Mean that medical practitioners are not required to find another practitioner to comply with a directive to which they themselves have a conscientious objection, bringing the bill into line with current professional standards.

Allow for the correction of iatrogenic complications.

The AMA(SA) welcomes these amendments, which address the key issues we have raised regarding the bill. With these important amendments, the AMA(SA) supports the bill.

Clearly, the government has provided these amendments to a peak body outside this chamber, but it has not felt it necessary to provide them to this chamber. I am disappointed with that, and I do not intend to address in detail the concerns raised with the bill when a peak body tells me that government amendments to address these concerns are waiting in the wings. I urge the government to table the amendments as soon as possible so that this council can consider the bill and the form that the government actually intends that it should pass.

Like the Hon. Tammy Franks, I, too, would like to address the issue of euthanasia. As the record shows, while I support individual medical self-determination, I will be very cautious in endorsing any legislative scheme for euthanasia. Concerns have been raised that the bill does provide a form of euthanasia. Again, I am reassured by the submission of the AMA which I will now quote. In a section headed 'Euthanasia and end of life care', the AMA states:

The AMA(SA) notes that it is specified that this Bill does not provide for euthanasia. The Association does not consider that this Bill advances or legalises euthanasia, nor would the Association support the introduction of amendments to the Bill which would enhance or legalise euthanasia. The AMA does not support euthanasia.

In summary, I support the second reading of the bill. I look forward to amendments from the government or other members to enhance the bill so that this council can give it due consideration and that as soon as possible South Australians can benefit from care which more closely accords with their values and wishes.

The Hon. J.M.A. LENSINK (16:20): I rise to make some remarks in relation to this bill which consolidates a number of existing anticipatory instruments that exist in several different acts and which relate to issues of health, medical, residential and personal decision-making. I would also like to add to the comments of speakers prior to me and commend the former health minister, the Hon. John Hill, for conducting a review and attempting to simplify the laws because they are quite complex. They often require some legal assistance in order for people to take advantage of them, they take several forms in several different acts, so I think that it is a laudable aim to attempt to bring them under one piece of legislation. I note that these sorts of consolidations have taken place in other jurisdictions.

I also strongly support the existing intent of these acts in terms of trying to assist people to make decisions while they are still able. As those of us who have ageing parents know, if you are prepared for things in advance it makes it a lot easier if things happen suddenly. People's health can deteriorate very quickly, and if you have some guidance from them it makes those decisions much easier. These instruments also serve as a guide to health professionals who have expressed that they value it and need it to be provided to them because it is part of their practice at all times to follow the wishes of the patient—if I can use that term, which is not always in vogue in health language but be that as it may I think we all understand what it means.

There is also the concept in this legislation of substitute decision-makers. I support the aim that they should try to stand in the shoes of the person as if they were that person. However, I have expressed my views before in relation to the voluntary euthanasia debate and I am not about to indicate that I think this in any way opens the door on voluntary euthanasia—I do not think that is the case. I think a lot of times when people make decisions in advance of when they are faced with a particular situation it is almost like a hypothetical. You hear a lot of people saying, 'If I'm in a particular state then I don't wish to be kept alive,' but when they are confronted with that situation they may well not hold that point of view.

Indeed, it has been my own situation, having some executive over my mum, that she has expressed to me that, whilst she may have signed documentation not to have certain treatment, she certainly wishes to hang around. I have said to her, 'We are going to have to ignore that then. You've told us that you wish to stay around, so we will encourage the doctors to give you every treatment possible.'

We have all been lobbied extensively by a number of stakeholders, and I was a little concerned when I read the letter from the South Australian Salaried Medical Officers Association (SASMOA) (and I will not read it all) to the minister dated 19 November last year, reflecting on the debate in the House of Assembly, in which they expressed that they are concerned that the government does not actually understand the issues that have been raised. It is written by Dr David Pope who says:

Specifically there seemed to be an assumption on your part that you believed the motivation for concerns raised—

I think this is in the debate—

including some proposed amendments, was a desire to deny patient wishes. I wish to make it very clear that that is not the case.

On the second page he goes on to say:

Indeed, if the bill did function as you described it in your speech last Thursday and in your responses while in the committee on the Bill, the majority of salaried doctors would not take any issue with it.

However, parts of the bill raise concerns that relate to problems in the construct of the act and amendments of other legislation in the bill which relate to the mechanics of the functioning of the act such that doctors and other health professionals could only be faced with a choice between:

1. Following an advance care directive, which is written in a way such that it applies in a binding way in a circumstance unforeseen...

2. Not following an advance care directive of the like described above and then face a career ending sanction...

In summing up I would appreciate if the minister in this chamber could address those particular issues. They may be unintended consequences or may in fact not be a correct interpretation of the legislation, but in any case those issues need to be resolved.

The SA Nurses Supporting Choices in Dying have also written to us and are advocating that we support this legislation. They make the point that many people who are admitted to hospital for end-of-life care have not actually made any decisions or had discussions, so they are very supportive of the legislation. I assume they would be supportive of the current legislation that also attempts to do the same thing.

Anyone listening to or reading this may not be any the wiser as to what is my position, but I support the intent of the legislation. I hold concerns about whether there are unintended consequences. We do not want to bind patients to a decision they have made in the past. My overriding concern with all of this is that the current wishes of the patient, if they are able to have those exercised, must always be paramount. I am very uncomfortable with a situation where someone has signed an advance care directive and it is almost as if it is written in stone. I know there are ways of revoking them, but it is incumbent on all of us, whether family or health professionals, to check at every point in the process that the wishes of the patient are being exercised.

The Hon. K.L. VINCENT (16:29): I will speak briefly today on Dignity for Disability's support for the second reading of this bill and perhaps hope to contribute a little more in committee. I also hope to have heard from the new Minister for Health, the Hon. Jack Snelling, our colleague in the other place, about his position on the government proposing amendments as requested by the Australian Medical Association (AMA) and others. Whilst I congratulate minister Snelling on his move into the very important health portfolio, I think it is unfortunate for the passage of this bill that there has been a ministerial changeover whilst this bill is only halfway through the parliament.

Despite the fact that this bill has been some eight years in the making, and comprehensive public and professional consultation has been done by the Advance Care Directives Review from 2008 onwards, there seems to be confusion and opposition over both the intent and the effect of this bill, and much of it, I would suggest, is unfounded. Many health professionals, academics and bureaucrats in this area have spent years working through issues to ensure that the bill has the intended impact. It is time for legislation to progress through the parliament so that we can be brought into line with the agreed national framework in this area.

This bill has comprehensive supporters, such as UniSA Adjunct Professor Margaret Brown, and I thank her for the time she took to meet with me and my staff to share some of her immense knowledge and expertise in the area. She has more than 20 years of both academic and real world experience in the field. I believe that it is high time that we passed legislation which brings South Australia into the modern era and which consolidates other pieces of legislation.

People's individual wishes when they are sick, injured or nearing end of life or, I would argue, at any time, should be respected and not put upon them by societal expectations and the desires of others around them. Self-autonomy should be assured. Of course, we all recognise that this is a sensitive subject and in no way an easy one to deal with, but I certainly see it as my job as a member of this parliament to advocate so that South Australians are able to live with dignity and autonomy, and I think it is high time that we recognised that death is a part of that life.

I also thank the government and SA Health for the early briefing on this legislation last November and for yesterday's further briefing from relevant staff. I have received several letters from constituents opposed to this bill stating that they believe that it supports and encourages euthanasia, and they are opposed to it for those reasons.

I have also had Family Voice, Medicine with Morality and Doctors Opposed to Euthanasia echo these sentiments. I appreciate the concerns, and I understand that they are approaching this from the perspective that they believe it facilitates euthanasia, but I am afraid that I cannot agree with this view. I do not think that it opens the way to euthanasia, nor is it a backdoor method for introducing the same. I have received a larger volume of letters from constituents urging me to support this bill, and I also note that I very much appreciate that correspondence.

At this stage, I indicate my support for the second reading of the bill, and I look forward to further discussion and amendments that improve the impact of this bill in those stages.

The Hon. J.S.L. DAWKINS (16:32): I rise to speak on the Advance Care Directives Bill which, as has been indicated earlier, is a conscience issue for members of the Liberal Party. I commend the Hon. Stephen Wade for the amount of preparation and background information he has provided to Liberal members. I think that, in general, he is prepared to discuss these matters sincerely with any member of the parliament.

Certainly, the Hon. Stephen Wade, in his work coming up to the Liberal Party joint party room discussion last year, provided considerable research on the background of this bill and the various stages of the governmental processes that have led to it. I also commend the Hon. Michelle Lensink for the valuable work she has done in this area, and that was noted earlier by the Hon. Mr Wade.

I have noted a range of community views about this bill. Even those that are critical in some aspects still generally indicate that the bill has many good parts to it, despite some of the reservations they have expressed. My view, I suppose, is that I am supportive of what the bill intends to do. I have taken note of some of the suggestions that it could become a short cut to voluntary euthanasia. I am someone who is on the record as having supported voluntary euthanasia on a number of occasions, but I certainly do not see the bill in that light whatsoever. I do respect those who are concerned, but that is not my view.

It is my intention to support the second reading of the bill and during the committee stage I will examine at some length the amendments to be moved by the Hon. Mr Wade and any others, and that includes government amendments if they come to fruition. With those comments in mind, I indicate my support for the second reading of the bill.

Debate adjourned on motion of the Hon. R.I. Lucas.

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