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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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ADVANCE CARE DIRECTIVES BILL

Second Reading

Adjourned debate on second reading.

(Continued from 7 February 2013.)

The Hon. J.A. DARLEY (15:45): I rise to speak very briefly to this bill. At the risk of repeating what has already been said by other honourable members, the bill seeks to create a single form of advance care directive to replace the existing enduring power of guardianship, medical power of attorney and anticipatory direction. It will enable competent adults to make decisions and give directions in relation to their future health care, residential and accommodation arrangements and personal affairs. It will also enable a substitute decision-maker to make such decisions on behalf of another person.

At the outset I, too, would like to commend the former minister for health, the Hon. John Hill, for all his hard work in attempting to streamline a number of very complex laws and processes. I appreciate that this task is not without its difficulties especially given the very sensitive nature of the issues that we are dealing with. Indeed, I understand that the government has already indicated that it will be seeking to move amendments to deal with some of the more concerning aspects of the bill as raised by various stakeholders. I note that the Hon. Dennis Hood has also filed a number of amendments on behalf of Family First, dealing with some aspects of the bill.

There does appear to be some difference of opinion amongst honourable members and the wider community as to whether this bill seeks to provide a form of euthanasia. Whilst I have previously indicated my support for euthanasia, I do not support any backdoor means of getting that legislation through. That said, and irrespective of our personal beliefs on the issue of euthanasia, I believe that the bill does have a number of very good aspects and I am supportive of its intent.

Like other honourable members, I also hope that we will be able to make our way past those aspects of the bill that are the subject of criticism and not lose sight of the bigger picture—that is, to respect people's right of autonomy and to assist them to express their views and make decisions about their care and personal affairs while they are still able to do so. As a person who is closer in age to having to think about these matters than any other member of parliament, I am vitally interested in being able to control my destiny, whatever the future may hold. With that, I support the second reading of the bill.

The Hon. R.I. LUCAS (15:47): I rise to speak only briefly at the second reading stage. I, too, indicate that I was contacted by a small number of stakeholders a number of weeks ago who expressed to me significant concerns about the government's original drafting of the bill. In the discussions I had with them I indicated that I had sympathy with some of the issues that they raised but am not perhaps convinced by some others in relation to their concerns about provisions in the bill.

I note now that the government has indicated that it will be introducing very significant amendments to its own legislation. I acknowledge the work of various stakeholders in terms of lobbying for change. I acknowledge the work of my colleague the Hon. Mr Wade who has assiduously advised Liberal Party members of the various proposals for change and amendments to the bill, whilst always acknowledging that for us this is a conscience vote issue. It has been and will always be a conscience vote issue.

I also acknowledge the work and discussions I have had with the Hon. Dennis Hood, who I know has shared some of the concerns and has expressed those concerns to the new Minister for Health. I acknowledge also my understanding that the new minister has shared some of those concerns and, as a result of that, has ensured that the government has introduced very significant amendments to the legislation that is before us.

Again, I acknowledge the work and the importance of the Legislative Council in relation to this legislation. The detailed debate, the detailed improvements in the legislation and the significant amendments moved by the government itself would not have occurred if there had not been an active Legislative Council. The government's positions, as enunciated by the former minister for health, would have prevailed in the House of Assembly and there would have been no opportunity for mature reflection, consideration of the concerns expressed by stakeholders, and a changed position by the government acknowledging the deficiencies in the legislation and the need to ensure that some of those deficiencies were addressed by amendments made by the government itself.

I am sure I do not need to convince any members of this chamber of the value and importance of the Legislative Council. It is a salutary lesson perhaps to members of the media and other public commentators of the worth of the work of this chamber, again demonstrated by what will, hopefully, be improvements in this bill.

My understanding of the Hon. Mr Hood's position is that, whilst he has tabled significant amendments, it is unlikely that he will proceed with all those amendments, although he indicated to me last evening that that was subject to a further meeting he was to have this morning with representatives of the government; I am not aware of the end result of those discussions. He indicated to me that it was possible that he might proceed with a particular amendment, subject to the government discussions he had today.

From my viewpoint, I will support the second reading of the bill, and I will follow with interest the debate in the committee stage. In particular, I will need to note—and I am sure we will all need to note—the final position of the Hon. Mr Hood, as to whether he is proceeding with any or all of the amendments he has placed on file. I will reserve my position on the third reading, although it is my expectation that, if the bulk of the amendments as flagged are passed, it is more than likely I would support the third reading as well as the second reading of the bill.

The Hon. CARMEL ZOLLO (15:53): I also rise to make a short contribution to this bill, which has as its object the consolidation of a number of various laws in relation to competent adults giving directions in relation to their future health care, residential and accommodation arrangements, and personal affairs. I do believe it is appropriate and desirable for people who are not legally trained to be able to take advantage of this intent and achieve peace of mind in relation to their personal wishes.

At the moment, if people choose to go down this path, they have a number of means of achieving their intentions, with various powers of attorney and directions spelling out such matters as who they want decisions to be made by, the agreement of the majority, etc. This legislation is timely. For those who have already made their views legally known, those arrangements remain valid. My husband and I would be an example of including a medical power of attorney in our wills.

Along with other members, I have received a great deal of correspondence in support of this legislation, but I have equally received correspondence and phone calls urging reconsideration in relation to one aspect of this proposed legislation which concerns the act of omission of reasonable care in some unforeseen circumstances and whether that could indeed be considered facilitating the death of a person.

In correspondence received from Doctors Opposed to Euthanasia, their view is that the proposed bill blurs the commonly accepted distinction between medical and non-medical life-sustaining measures. If I can be succinct and quote Dr Timothy Kleinig and Dr Robert Britten-Jones, on behalf of Doctors Opposed to Euthanasia, they write:

In summary, while we applaud the apparent intent of the Bill in codifying the rights of patients to refuse medical treatment, and in encouraging patients to make their wishes explicit, we strongly urge the Bill be amended to prevent 'euthanasia by omission' (in particular by omission of oral hydration and nutrition).

As we know, since the bill now before us passed the House of Assembly, a great deal of discussion and consultation has taken place with members of this chamber and medical associations to ensure that, whilst the intention of this proposed legislation remains intact, the concerns raised have been addressed by drafting amendments which, I understand, are either before us or will be shortly, and I understand that some consensus has been reached. I would particularly like to acknowledge the work of the Hon. Dennis Hood in driving this important discussion and his willingness to work with the government on proposed amendments for this important piece of legislation.

In relation to future health care, I acknowledge that death is as individual as the life we lead, but the Advance Care Directives Bill will assist in providing enhanced choice and autonomy for patients and, in particular, their families as well—those who are left behind. I add my support to this important piece of legislation.

The Hon. A. BRESSINGTON (15:57): I rise to speak to the Advance Care Directives Bill. This bill has come about after a review by the Advance Directives Review Committee and a long, tireless push by the medical fraternity to have patients' care requests legally enforceable. That being said, I have it on good authority that there are provisions within the current legislative framework which effect this already.

I believe that the right to self-determination is necessary in most circumstances. However, that being said, any attempt to introduce backdoor euthanasia or assisted suicide by relaxing legislation in such a way that a patient can choose to end their life at any stage is something that I strongly disagree with.

I am a supporter of the current process in which a living will can be implemented. I have a living will and have had for some years. It is important to me and to many others out there that, when a serious life-threatening situation occurs or an illness overtakes them to the point that their only option is palliative care, suitable arrangements can be made. People should have a choice whether they want to be kept alive by artificial means or not.

That being said, if we had focused more on tightening and improving the current provisions in line with best practice, then I believe we would have probably had a more productive debate on this issue. I recognise the need for people at the end of their days to have things put in place to allow safe passage onwards. However, I have grave concerns that this bill does not create the appropriate safeguards to protect the patients and their doctors and healthcare practitioners.

I am also aware of a number of amendments that have been put forward by the government and also the Hon. Dennis Hood. I would just like to say that I also commend the Hon. Dennis Hood for the effort he has put into this, ensuring that at least a safe bill for the sick and vulnerable will be passed in this place.

There is one particular area that I will seek clarification on; that is, where someone has an advance care directive and they attempt suicide, a doctor who is aware of the directive may be prevented from doing the very thing that they are paid to do, which is save a life. It is an easy way for people to euthanase themselves within the law.

Healthcare practitioners have a legal and ethical obligation to act in the best interests of their patients and to follow the directions given them. However, the medical practitioners still have some discretion as to when treatment is in the best interests of the patient and when it is not. I am concerned that limiting the medical practitioner's discretion will mean that this Advance Care Directives Bill actually favours death, especially in those times where a misdirection is given or where it is not clear what a directive was actually intended to mean. The current provisions that are working within our South Australian system are 'when in doubt, favour life', which I believe is the appropriate response. Given the submissions that have been made to my office, it appears that a large number of constituents also hold this view.

Whilst I recognise the value of the right to self-determination when one is facing a terminal illness or injury, I consider that there are some very significant deficiencies in the drafting of this bill which I hope will be addressed by the amendments that will be tabled.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (16:00): I would like to thank all honourable members in this place for their considered comments and their indications of support for the bill and the interested parties who provided feedback on this bill. I would also like to take this opportunity to address some of the issues raised by members during the second reading debate, and I apologise in advance that this will take some time (so if you need to go for a break, off you go).

An honourable member: See you tomorrow?

The Hon. I.K. HUNTER: Yes. In response to the issues raised and feedback received on the bill during the parliamentary process, the government intends to move a number of amendments to the bill. These amendments do not change the policy intent of the bill and are consistent with the bill's objects and principles.

First, there is some concern that binding provisions may have unintended consequences and therefore should only apply if a person is in a terminal phase of a terminal illness or a persistent vegetative state. Under the bill, only refusals for health care which are relevant and specific to the current situation are considered to be binding provisions. All other provisions for health care, residential accommodation and personal matters must be taken into account when decisions are made for the person by others, but such provisions are not binding.

Under current legislation, and at common law, a competent adult can refuse medical treatment or health care either themselves or in advance through a medical power of attorney or enduring power of guardianship. Under these instruments, a medical agent or an enduring guardian must follow any lawful instructions written by the person if specific and applicable to the current circumstances. Refusals of health care or medical treatment under these instruments do not necessarily apply only when a person is in the terminal phase of a terminal illness, or in a persistent vegetative state, but can apply to other situations or circumstances as specified by the person.

With a few exceptions—such as mental health involuntary treatment orders or emergency situations—medical treatment, including life-sustaining measures, cannot be provided without the consent of the person or, if they are incapable of making their own decision, their legal representative, which currently includes a medical agent, an enduring guardian, a guardian, a relative or, in some cases, the Guardianship Board.

I would like to remind members that it is the Consent to Medical Treatment and Palliative Care Act 1995 that regulates consent to medical treatment, and not this bill. The Advance Care Directives Bill simply enables competent adults to write down their directions, preferences and wishes for their future health care, residential accommodation and personal affairs.

The principle that a competent adult is not obliged to consent to medical treatment has been established in all major common law jurisdictions, including the South Australian, the New South Wales and Western Australian Supreme Courts in the following cases:

H Ltd v J & Anor (2010) SASC 176;

Hunter and New England Area Health Service v A (2009) NSWSC 761; and

Brightwater Care Group (Inc.) v Rossiter (2009) WASC 229.

These judgements reflect that competent adults have the right to autonomy and self-determination over their own bodies. In balancing the right of a competent adult to control his or her own body and the interests of the state in protecting and preserving the lives and health of its citizens, the common law precedent is that, where such a conflict arises, the right of the individual must prevail.

The relevant principles include that a person may include in an advance care directive a statement that they do not wish to receive specific medical treatment. If that advance care directive was made by a competent adult, and it is clear and unambiguous and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive.

For a provision of an advance care directive to be valid, it is not necessary that the person giving it should have been informed of the consequences of deciding in advance to refuse specified kinds of medical treatment. Nor does it matter that the person's decision is based on religious, social or moral grounds rather than upon, for example, some balancing of risk and benefit. Indeed, it does not matter if the decision seems to be unsupported by any discernible reason as long as it was made voluntarily and in the absence of any mitigating factor such as misrepresentation by a capable adult. I am referred to the Hunter and New England Area Health Service v A (2009) 761 case.

The bill reflects these principles. To limit a person's ability to refuse health care only if they in the terminal phase of a terminal illness or a persistent vegetative state is inconsistent with the principles in the bill and with common law and contrary to the Advance Directives Review Recommendations and the National Framework for Advance Care Directives.

The advance care directive form will be designed 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. The guidelines accompanying the form will highlight the serious consequences of refusing specific medical treatments without being clear about the circumstances in which they apply as well as advising people to seek medical advice to ensure that their instructions will achieve the desired results.

If anyone has concerns regarding an advance care directive or action proposed to be taken under an advance care directive, the Public Advocate can provide advice, mediate a matter and issue a declaration. If a person is not satisfied with the Public Advocate's advice, mediation outcome or declaration, or requires greater certainty about a matter, they can apply to the Guardianship Board for a review.

Moving to another provision, the natural provision of food and liquids by mouth, there is clear legal and medical distinction between the natural provision of food and liquids by mouth (i.e. eating and drinking) and artificial nutrition and hydration. Under the Consent to Medical Treatment and Palliative Care Act 1995, artificial nutrition and hydration is considered medical treatment and a life-sustaining measure. Provision of food and fluids by mouth is not considered to be either of these things.

There has been some suggestion that a binding refusal of health care under the bill would also include a refusal of food and liquids by mouth and that, as a result, such a provision would be binding on health practitioners. I am advised this is not correct. Only refusals of health care are binding and all other provisions must be taken into account as far as reasonably practicable. The natural provision of food and water is not health care and therefore is not a binding provision. If a person expressed a wish to eat and drink, it would be unacceptable and inhumane not to offer them food and liquids by mouth—that is, something to eat and drink despite a refusal in an advance care directive.

Turning to the issue of voluntary euthanasia, this bill does not facilitate or permit euthanasia. The bill makes it clear that a provision in an advance care directive which is unlawful, which would require an unlawful act to be performed or to require a health practitioner to breach a professional code or standard is void and of no effect as at clause 12(1)(a).

The refusal, withdrawal and withholding of health care or medical treatment including life-sustaining measures is not legally or ethically considered voluntary euthanasia or assisted suicide. Euthanasia, voluntary euthanasia and assisted suicide involve an intended act to cause death—for example, administering drugs for the intended purpose of causing the person's death. Section 18 of the Consent to Medical Treatment and Palliative Care Act 1995 (the consent act) explicitly provides that euthanasia or assisted suicide is not permitted under that act.

There has been some concern that an unintended consequence of the bill may be that suicide attempts will be facilitated by doctors. This is not correct, I am advised. As I have already stated, the bill provides that a provision is void and of no effect if acting on it would be unlawful or require an unlawful act to be performed.

Aiding or abetting a suicide is a criminal offence under the Criminal Law Consolidation Act 1935; therefore, if it is suspected to be a suicide attempt, any relevant provision in the advance care directive has no effect and consequently there is no requirement to comply with the relevant refusal, and treatment can be provided. The provisions of the Mental Health Act 2009 may apply if the person attempting suicide is suspected of having a mental illness and therefore treatment can be provided under that act.

Turning to the issue of unprofessional conduct, I would like to clear up any confusion in relation to clause 36 of the bill which relates to unprofessional conduct and provides as follows:

For the purposes of the Health Practitioner Regulation National Law (South Australia) Act 2010 and the Health Practitioner National Law (South Australia), and for any other Act declared by the regulations to be included in the ambit of this subsection, a contravention of subsection (1) will be taken to amount to unprofessional conduct.

That is at clause 36(4). Some medical practitioners believe this means that if they do not follow a binding provision, and override a clear relevant refusal of health care, this will automatically result in them being found guilty of professional misconduct. I am advised that this is not the case. The national law defines unprofessional conduct to include a number of actions, but does not include actions relating to advance care directives. Clause 36(4) adds not abiding by advance care directives to the list of actions considered to be unprofessional conduct for the purposes of national law.

There can be no investigation of a health practitioner until a notification to the responsible board or the South Australian Health Practitioners Tribunal has occurred. After the investigation, the board or tribunal will determine whether or not the practitioner has in fact breached the law and, if so, what consequences should flow. This may include: no action, a caution, through to cancellation of a practitioner's registration. The tribunal would apply whatever action is considered commensurate with the actions of the practitioner based on the facts in each case. Section 36(4) deems a contravention of clause 36(1) to be professional misconduct. It does not deem the conduct of a particular health practitioner to amount to a contravention of subsection (1).

Turning to the definition of medical treatment, the bill amends the definition of medical treatment in the Consent to Medical Treatment and Palliative Care Act 1995 (consent act) and the Guardianship and Administration Act 1993 (guardianship act) to be consistent with the definition contained in the bill. The new definition of medical treatment includes medical examination and assessment.

The South Australian Salaried Medical Officers Association has indicated that it does not support the inclusion of assessment in the definition of medical treatment as part of the bill. It believes its inclusion may have unintended consequences for other sections of the consent act, for example, the provision of emergency treatment and for capacity assessment. Therefore, the government intends to amend the definition of medical treatment proposed for the Advance Care Directives Bill, the consent act and the guardianship act, to remove examination and assessment from the definition. These amendments would have no substantive impact on the bill itself, I am advised.

Turning to iatrogenic complications, an iatrogenic event is an illness or condition associated with or stemming from the illness or condition itself or from the treatment for the illness or condition. It is believed that, as clause 5(2) provides that such events are included in references to health care there may be potential unintended or unanticipated consequences for the person. For example, if a person had refused cardio pulmonary resuscitation in their advance care directive and they had surgery for another medical condition and their heart stopped during the operation, under this clause a medical practitioner would be unable to provide CPR, even if the person could make a full recovery. As a result of feedback on this issue, the government will be moving an amendment to remove this clause from the bill. This will allow health practitioners to treat iatrogenic complications or conditions unless the person themself specifies otherwise in their advance care directive.

The bill is based on substitute decision-making. The principles make this clear, as do the provisions relating to substitute decision-makers (clause 35). The provisions relating to substitute decision-makers allow for some flexibility to enable them to make decisions on behalf of a person in light of current circumstances. This may be the case if the person's advance care directive has not been updated for quite some time and the substitute decision-maker knows the person had changed their mind but did not update their advance care directive.

The government intends to move an amendment to the emergency provisions in the Consent to Medical Treatment and Palliative Care Act 1995 (consent act) 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. However, this amendment to the consent act does not apply to non-emergency situations and in cases where there is no appointed substitute decision-maker. For example, 20 years ago a person may have refused all blood interventions in their advance care directive because of their religious beliefs; however, the person has subsequently changed their religion, or taken up no religion, but did not update their advance care directive and now has impaired decision-making capacity.

Under subclause (1) a health practitioner must comply with a binding provision; that is, they must not provide the relevant treatment if the person had refused it in their advance care directive. The government intends to move an additional amendment to provide that a health practitioner may refuse to comply with a refusal of health care if they believe, on reasonable grounds, that the person did not intend the refusal to apply in relation to the particular health care, or the provision does not reflect the current wishes of the person who gave the advance care directive and there is no appointed substitute decision-maker.

In practice, a health practitioner would need some evidence that this was the case to fulfil the requirement on reasonable grounds. It would not be enough to override a refusal just because they or family members did not agree with the provision. If there was a dispute about the provision, an eligible person can apply to the Public Advocate for advice and to mediate the matter. The Guardianship Board, upon application, can also determine the matter.

The intent of this amendment is not to permit the wilful override or ignoring of a person's instructions in their advance care directive; rather, it is to provide for some flexibility in the rare event that there is some evidence that the person's specific refusal no longer applies to the current circumstance. This is consistent with the bill's objects and principles. The amendment would permit a health practitioner not to comply with the refusal in very specific circumstances. Consent for the proposed treatment must still be sought from a person responsible in accordance with the consent act. The person responsible must make a decision they believe the person would have made in the current circumstance.

Turning to the issue of conscientious objections, the bill provides that a health practitioner may refuse to comply with a provision of an advance care directive on conscientious grounds (clause 37). Having refused to comply with a provision, there is then a requirement under the bill that the health practitioner refer the patient or their substitute decision-maker to another health practitioner (subclause (2)).

The requirement by law to provide the name and contact details of another health practitioner was viewed in feedback as being overly prescriptive, and the government agrees. I note that the Hon. Dennis Hood has lodged a similar amendment to remove the requirement for a health practitioner to refer a patient to another health practitioner willing to comply with the advance care directive, and the government supports this amendment. We believe conscientious objection is adequately addressed by the professional codes and standards which govern the practice of registered health practitioners, such as 'Good medical practice: a code of conduct for doctors in Australia', published by the Medical Board of Australia.

However, it must be made clear that an objection to complying with an advance care directive on conscientious grounds does not mean that the health practitioner can then go on to provide the health care. A conscientious objection means that the health practitioner can object to being the treating health practitioner in this circumstance and should refer the patient on or hand over their care to another health practitioner in accordance with their own professional standards or codes.

With protections from liability under clause 41 of the bill, a health practitioner, substitute decision-maker or other person, such as an aged-care worker, incurs no criminal or civil liability for an act or omission done in or made in good faith without negligence and in accordance with an advance care directive. However, as presently drafted, this may not cover situations where a person thinks they are acting in accordance with the advance care directive but may have misinterpreted a provision. As a result, the government will move an amendment to this clause to protect those who believe in good faith and without negligence that they are acting in accordance with the advance care directive.

Turning to the issue of penalties for convictions of fraud or undue influence, the bill provides for an automatic penalty of forfeiting an interest in the person's estate for anyone convicted or found guilty of an offence of fraud or undue influence under clause 55. In their feedback, the Law Society of South Australia suggested that this penalty is excessive. The government will move amendments to this clause to remove the automatic penalty provided for in subclause (3). The court itself could decide the forfeiture of an interest in the estate on a case-by-case basis.

Going to the issue of resolutions of disputes by the Guardianship Board, the government will be moving a number of amendments to division 3 of the bill which relate to the Guardianship Board's responsibilities when resolving disputes in relation to advance care directives. Clause 10 of the bill sets out principles which must be taken into account in relation to the administration, operation and enforcement of the bill, including that in the event of a dispute the wishes of the person who gave the advance care directive are of paramount importance and should, as reasonably practical, be given effect.

Those who choose to complete an advance care directive do so to make sure that their wishes and preferences about future decisions are known in advance and respected when the time comes. People often complete advance care directives to prevent Guardianship Board intervention into their private lives, which can often be a daunting and formal legal process. Currently a number of cases end up before the Guardianship Board because of aggrieved family members.

For example, mum may have appointed her eldest son, Johnny, as her enduring guardian for health care and personal decision-making because she always felt Johnny understood her best. However, the youngest daughter feels hurt by this and believes that she should have been appointed. At present, in these circumstances the board would usually appoint someone neutral to the role of guardian because it believes that due to family conflict Johnny would not be able to perform this role effectively for his mother. We do not want to see this current practice continue in relation to advance care directives and substitute decision-making appointments under the new advance care directives scheme.

It was always intended that the Guardianship Board would be a dispute resolution mechanism of last resort where mediation or advice by the Public Advocate did not resolve the issue or was not wanted. The amendments to this section make it clear that, when the Guardianship Board is considering a matter under an advance care directive, the person's wishes must be paramount, and the board must ensure that it limits its intervention to the minimum necessary in the circumstances of the case. Currently under the bill, the Guardianship Board can, on the application of an eligible person, revoke the appointment of a substitute decision-maker if the board considers it not appropriate for that person to be a substitute decision-maker.

To minimise vexatious applications to the Guardianship Board about inappropriate substitute decision-makers, it is intended that the Public Advocate be the gatekeeper for such applications to the board. This means that the applications can proceed to the Guardianship Board only if the Public Advocate believes, after investigation, that the substitute decision-maker is no longer appropriate to act in that role. It is anticipated that this amendment will provide another layer of protection for the person who gave the advance care directive by ensuring that only non-vexatious applications about substitute decision-makers can be put to the Guardianship Board for consideration.

In relation to other amendments, the government also intends to move a number of other amendments to the bill, largely of a clarifying nature, I am advised. These are a direct result of further consultation on the bill during the parliamentary process.

Referring to ambiguous provisions in an emergency (amendment to the consent act contained in schedule 1), section 13 of the Consent to Medical Treatment and Palliative Care Act 1995 (consent act) provides for the lawful administration of medical treatment in an emergency where consent cannot be obtained. Under this section, the medical practitioner must be of the opinion that there is an imminent risk to life or health, they are not aware that the patient had previously refused the particular treatment and there is no-one close to the patient to provide consent.

The Australian Medical Board Association (SA Branch) and the South Australian Salaried Medical Officers Association (known as SASMOA) believe that, as currently drafted, the emergency treatment provisions may be problematic for medical practitioners in cases where a refusal of health care in an advance care directive is ambiguous or uncertain. As an example, a difficult situation could arise if the refusal is ambiguous, there is no time to ascertain the condition of the patient or to determine whether the refusal was intended to apply to the current situation. To address this, the government has prepared an amendment to section 13 of the consent act.

The intent of the amendment is to enable medical practitioners acting in an emergency to lawfully provide treatment despite a refusal of particular medical treatment in the advance care directive. This amendment would not permit a medical practitioner to wilfully override or ignore a clear and relevant refusal but provides authorisation to treat in an emergency where there is ambiguity or uncertainty. The AMA has indicated its support for this amendment, and it believes that it will strengthen the bill and protect patients and medical practitioners in ambiguous or uncertain emergency situations.

In regard to implementation, the Advance Care Directives Bill is only the first part of the reform process. As was stated in the second reading explanation of the bill, the implementation of the new act will be critical to its effectiveness and application in practice. This bill adopts only the Advance Care Directives Review stage 1 report, 'Recommendations for changes to law and policy'. The stage 2 report makes 31 recommendations for implementation and communication strategies to support the implementation of the act. The act's implementation plan will be based on these recommendations.

The development of the new advance care directive form, in consultation with relevant parties, will ensure that it is easy to complete and apply. Guidelines with the form will ensure that all parties are aware of their rights and responsibilities. It will be important to raise community awareness about the new advance care directive. Professional education across the health, aged-care and legal sectors will be critical to ensure its effectiveness in practice and to reduce existing confusion. Policies and protocols in the public health system will also need to be developed to support the new act.

In conclusion, the bill adopts the majority of the Advance Care Directives Review stage 1 recommendations, aligns with the National Framework for Advance Care Directives and is consistent with common law. The bill was informed by extensive consultation, including with consumers, health practitioners, doctors, lawyers, ethicists, intensive care and emergency medicine specialists, as well as the aged, community and institutional care sector. I thank all those who provided constructive feedback on the bill.

I would like to reiterate that this bill is not a radical policy shift. This bill does not permit voluntary euthanasia or assisted suicide, a view which is strongly supported by the AMA (SA Branch) and many other people. The AMA, in its letter of support for the bill to all members in this place, makes its position in relation to the bill very clear. This bill is not just about medical treatment decisions at the end of a life but allows competent adults to write down their preferences, their directions, wishes and values for their future health care, residential accommodation and personal matters and/or appoint one or more trusted substitute decision-makers to make such decisions on their behalf.

The bill extends the same common law rights to competent adults to be able to direct what happens to them in the future or to have someone they choose and trust to stand in their shoes when they are unable to personally make their choices and decisions known. As is currently the case, any instructions or directions contained in an advance care directive must be relevant to the current circumstance or condition before they take effect.

The move away from the law requiring people to list specific treatments consented to or refused, often in advance of illness, has been welcomed by many, particularly those in the medical and nursing professions. This approach will also limit or reduce people writing medical instructions—for example, 'I do not want CPR'—in advance of knowing what the circumstances or condition may be that they are facing.

The new form will encourage people to specify their values, what is important to them in terms of functional ability and quality of life, and what is important to them when others are making decisions for them. The guidelines will point out the serious consequences of refusing specific medical treatments without specifying the circumstances under which they apply and will encourage people to seek medical or legal advice if they think the circumstances warrant it.

The government amendments strengthen the bill and also provide greater certainty for health practitioners who are acting in an emergency and who are presented with an ambiguous or uncertain provision in an advance care directive. This bill will enable competent adults to protect their own rights in advance of impaired decision-making capacity. It will enable those who choose to, to have some control and say over their future health care, residential accommodation and personal decisions when they cannot speak for themselves. I welcome honourable members' support for this very important bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I would like to make some comments on clause 1. Back in early February—and at that stage I was expressing concern that the government had engaged stakeholders extensively but had not brought the Legislative Council into its confidence in terms of the form of those amendments—it was my view that, first of all, we were getting assurances from stakeholders that their concerns had been significantly addressed, and at that stage the bill was basically the Hill bill with some amendments being discussed with stakeholders.

It was my view that, even at that stage, the government had the numbers to get this bill through the house in spite of the fact that for our party it is a conscience vote and therefore the government could not presume on any vote of any Liberal member. Liberal whips often have the same fear, but in relation to this bill, I am just making the observation that, even at that point, I think the passage of the bill through this house was assured. In that context, the work that has been done by the incoming minister, minister Snelling, the Treasurer, and by the Hon. Dennis Hood, as the Hon. Robert Lucas has highlighted, is an example of the Legislative Council at its best.

This is such a highly contentious bill, a bill in relation to which I am sure honourable members have received numerous representations, and yet, when this council sits down to talk about it in chamber, if you like, there are no amendments to be put. I think that is a tribute to both minister Hill and the Treasurer and other honourable members in the chamber who have engaged constructively in the process.

I believe that the work that has been done since I made my second reading contribution is to be significantly valued. Of course, the government could have gone out with a bill that still left significant community concerns in place and implemented it. But I would hate to think that people would feel reticent about using advance care directives under this legislation because of some lingering concern that it was, for want of a better phrase, a Trojan Horse for euthanasia. So I commend the Hon. Dennis Hood and the Treasurer, in particular, for taking the opportunity to remove—

Members interjecting:

The Hon. S.G. WADE: —the former treasurer, thank you; the minister for health—whatever he is doing now.

Members interjecting:

The Hon. S.G. WADE: The problem with these part-time treasurers and various ministers is that, when you get to the C team, you have to keep shuffling. The Chair is asking me to come back to the bill and I will. I keep forgetting—we will call him minister Snelling. Let me stress that I think the prospects of the success of the initiative as a whole are enhanced by the amendments that will be put today, and I look forward to considering them.

The Hon. D.G.E. HOOD: I would like to make a few brief comments, if I may, about the bill before us. Members may be aware that, in my second reading speech, I was quite concerned about a number of aspects of this bill. I outlined them in some detail during my speech and I tabled fairly extensive amendments many weeks ago. During that time, we have had extensive consultation with the government, particularly minister Snelling and his staff, and the member for Taylor, Leesa Vlahos. I must say they really have been as good as you could have hoped. I think the Hon. Mr Wade said it well.

My calculations were that the government had the numbers for this bill to pass in its previous form in this chamber, regardless of Family First's position, and I think in my second reading speech I indicated that we would strongly oppose the bill as it was in its previous form. Despite that (and this is a credit to them), minister Snelling engaged in consultation with Family First and other members, as well—not just Family First, of course—and did so willingly and in a spirit of cooperation in order to reach a mutually agreeable position, and that is, in fact, what has happened. I would like to place on the record our thanks to the minister for his willing engagement and willingness to try to find middle ground. We are genuinely grateful and, indeed, impressed with that approach.

The Hon. R.P. Wortley: Have to remember that when we talk preferences.

The Hon. D.G.E. HOOD: I do not think there are any problems with us preferencing the minister; we have a strong record of that. I would also like to place on record the thanks of Family First and my personal thanks to the member for Taylor, Leesa Vlahos, who has been very decent and forthright throughout this whole process and willing to listen and listen and listen and engage in debate, which has been good.

An honourable member interjecting:

The Hon. D.G.E. HOOD: It will be your turn one day on the other side and we will thank you as well. I would also like to thank Annabel Digance for her very constructive role in this process. She has been as good as we could have hoped for and have really enjoyed our discussions.

The Hon. R.P. Wortley: She is a great adviser.

The Hon. D.G.E. HOOD: Indeed. Martyn Evans has played a great role in this whole process, and for several months we have been engaging with him. His passion for the topic is admirable and he is one that I have really enjoyed the debate with.

I would like to say that we have also had communication with Paul Russell—for those members who are familiar with him, and I am sure most people would be—the person who heads the HOPE organisation here in South Australia. He has also given his tick to the bill as it currently stands.

I just have a couple of final comments, if I may. I would like to thank Rick Schroeder in my office, who has been outstanding on this. If it were not for him, I do not think we would have got the result we have before us today. That leads me to my final comment: I will be withdrawing all my amendments on this bill. Family First are, as I said, pleased with the way the government will seek to amend the bill, as we will undertake in the committee stages in just a few moments. Again, I thank not only the government but, of course, other members who have played their role in this process. I think it has been an excellent example of really genuine consultation, and I do not think there is anyone upset with the way this has turned out.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. I.K. HUNTER: I move:

Page 6, lines 30 to 35 [clause 3(1), definition of medical treatment]—Delete the definition and substitute:

medical treatment means the provision by a medical practitioner of physical, surgical or psychological therapy to a person (including the provision of such therapy for the purposes of preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life) and includes the prescription or supply of drugs;

The bill contains a definition of medical treatment which reflects contemporary practice. Schedule 1 of the bill inserts this new definition into the Consent to Medical Treatment and Palliative Care Act 1995 and the Guardianship and Administration Act 1993.

It is important that the definition of medical treatment is consistent across these three acts. This new definition recognises that medical treatment is more than treatment or procedures administered or carried out by medical practitioners in the course of medical or surgical practice but, rather, includes disease prevention, restoring or replacing bodily function and improving the comfort and quality of life. The definition retains the prescription or supply of drugs and also includes examination and assessment.

The South Australian Salaried Medical Officers Association (SASMOA) has since raised concerns with the inclusion of examination and assessment in the definition, as it believes it may have unintended consequences, as I mentioned in my speech. Not all forms of assessment or examination are invasive, of course, such as asking a person if they have pain or looking into their eyes to see if their pupils are dilated. If this was included in the definition of medical treatment, consent may be needed, as well as explaining the risks and benefits for simple non-invasive assessment examination.

This amendment simply removes examination and assessment from the definition of medical treatment in the bill. The removal of examination and assessment does not impact on the operation of the bill nor on the other two acts. To ensure its consistency across the three relevant acts, the amendment will be moved to remove examination and assessment from the definition of medical treatment proposed for the Consent to Medical Treatment and Palliative Care Act 1995 (amendment No. 16) and the Guardianship and Administration Act 1993 (amendment No. 18).

The Hon. S.G. WADE: The minister makes a point that not all examinations and assessments of patients are invasive, but many of them are. Will the consent of a person be required for invasive examination or assessment?

The Hon. I.K. HUNTER: My advice is that current practice will not be changing. Consent is currently required if you are about to touch someone's body, and often that consent is obtained when a medical practitioner asks a patient, 'Can I provide some service to you? Can I help you in any way?'

The Hon. S.G. WADE: Is that current practice a result of the legislative provisions which you are now proposing to remove?

The Hon. I.K. HUNTER: My advice is that the practice that currently exists is not going to be changed. Consent is required if you are going to undertake an invasive practice. If, for example, you ask someone, 'Can I give you an injection?' and they put their arm out, that can be taken as being implied consent.

Amendment carried; clause as amended passed.

Clause 4 passed.

Clause 5.

The Hon. I.K. HUNTER: I move:

Page 7, lines 22 to 27 [clause 5(2)]—Delete subclause (2)

I mentioned in my speech that this amendment deals with an iatrogenic event, which is an illness or condition associated with or stemming from the illness or condition or from the treatment for the illness or condition, such as nausea from chemotherapy, for example, or cardiac arrest during renal dialysis. Clause 5(2) in the bill automatically includes these events in the ambit of health care.

Feedback from the medical profession suggests that this may have potential unintended or unanticipated consequences for the person; for example, a person may die when they could have been treated and the complications reversed. If a person had refused all treatment related to their cancer in their advance care directive, for example, and if, as a result of their cancer, they were suffering nausea and had lost decision-making capacity, under this clause a medical practitioner would not be able to provide medical relief for the nausea and the patient may suffer unnecessarily.

This amendment removes clause 5(2) from the bill. If passed, this will mean that health practitioners will be able to treat iatrogenic complications or conditions unless the person has specified otherwise in their advance care directive. This is consistent, as I understand it, with common law.

Amendment carried; clause as amended passed.

Clauses 6 to 9 passed.

Clause 10.

The Hon. I.K. HUNTER: I move:

Page 9, line 36 [clause 10(e)]—Delete 'autonomy can be exercised' and substitute:

a person can exercise their autonomy

This amendment is, in an abundance of caution, seeking to clarify the intent of the current clause. During consultations it appeared that there may be some confusion as to whose autonomy principle 10(e) refers. By rephrasing principle 10(e) it makes it clear that it is the person who wrote the advance care directive who is exercising their autonomy. This amendment does not change the substance of the clause but rather removes any possible ambiguity.

Amendment carried; clause as amended passed.

Clause 11 passed.

Clause 12.

The Hon. I.K. HUNTER: I move:

Page 12, lines 7 to 9 [clause 12(2)]—Delete subclause (2)

As I understand it, this clause is identical to the amendment that the Hon. Mr Hood is no longer moving. Section 12 sets out what cannot be included in an advance care directive and that if such provisions are included in an advance care directive that particular provision is void and has no effect. Subclause (2) simply acts as a clarifying clause identifying that a provision in an advance care directive directing the withdrawal or withholding of health care is not a provision which would be captured by clause 12. I am advised it is not a substantive clause, and this amendment removes this subclause.

Currently, competent adults have a right to refuse health care, including in advance, even if it results in their death. Removing this clause does not mean that that person cannot include such a provision in an advance care directive as this is not illegal; however, as this clause does not add anything to this section, the government moves this amendment to avoid any confusion on this matter.

Amendment carried.

The Hon. S.G. WADE: In relation to subclause (5), it defines mandatory medical treatment in paragraph (b) as including 'any other medical treatment of a kind prescribed by regulations for the purposes of this definition'. The first element is medical treatment under the Mental Health Act and then there is this open-ended provision by way of regulation. Is the government contemplating any treatments under this subclause?

The Hon. I.K. HUNTER: My advice is there is nothing anticipated at the moment but it is there to take in case of any particular treatment that may be ordered by a court, for example, such as possibly medical castration.

Clause as amended passed.

Clauses 13 to 20 passed.

Clause 21.

The Hon. S.G. WADE: Clause 21 relates to the requirements in relation to the appointment of substitute decision-makers. If you like, the two tent poles of this bill are the advance care directives and the substitute decision-maker and the interaction between those two elements. In my view, the act in many ways is very flexible and I welcome that, but I believe in this particular aspect it is too narrow. The presumption of the government and the drafters has been that the people who are coming to advance care directives and substitute decision-making are involved in traditional and stable family and friendship patterns.

It is assumed that because of those established family and friendship patterns, the values and opinions of the person who has written the advance care directive and appointed the substitute decision-maker will be respected, but we all know that increasingly people will be approaching their end of life without close family and friends. People may have close friends and family but they may not have the confidence that those persons understand or would be effective in putting those values and opinions into effect in terms of substitute decisions.

In those circumstances they may want to appoint a person as their substitute decision-maker by reference to an office or position. Let me give you three examples where I anticipate that might happen. For example, I could be a devout follower of the Catholic teachings. I might have little confidence in my children's understanding of those values; they may not even be adherents of the same faith. I may want to nominate my local Catholic priest. If I am a parishioner of, say, the parish of St Dominic's, the person I most trust to make substitute decisions might be the priest of St Dominic's. The government and the drafters would say, 'Just name him.' The reality is, particularly as one ages and the priest might be advancing in years as well, you do not want to run the risk of losing the access of that input by using a specific name. You may actually want to identify the person by the position.

Alternatively, somebody might come to the appointment of the substitute decision-maker concerned about advocacy skills. Somebody might be very confident that they have put into their advance care directives all the relevant information that is required to discern the outcome in most circumstances, but they might be concerned about the advocacy skills of their loved ones. Let's say I am a recent arrival in Australia. English is my second language. I can use the support of my supporters to write a very good advance care directive which will be useful for medical personnel but I might have no confidence in my kids, for whom English is also their second language, in being able to advocate.

I may be a person with a disability and I might have a very well-established relationship with a specific person or a system-based advocacy network and it might be that I would like a person from that organisation. A lot of these organisations have their own culture, have their own values, and I might be very keen that a person with the values of that organisation is there ready when they are needed.

In terms of quality assurance, in terms of, if you like, the capacity to effectively understand and utilise advance care directives, it might be that a person wants to appoint a person from the Office of the Public Advocate, it may be that they want to say, 'My substitute decision-maker shall be the public advocate.' It is true that the current bill does provide some scope, if you like, for this third-party engagement. On one reading of clause 21(1) you could actually appoint a person by reference to an office or position. Let me read you that clause. Clause 21(1) provides:

Subject to this Act, a person giving an advance care directive may appoint 1 or more adults to be substitute decision-makers in respect of the advance care directive.

On one reading, that does not preclude identifying that adult by reference to an office or position. It would be fair to say that it might be legally risky, on the one hand. The appointment needs to be of a specific person and it may be difficult in terms of the uncertainty of who might hold a particular appointment at any one time, whether they in fact qualify to be an SDM and whether they want to be one.

On the other hand, it is clearly the intention of the bill that these arrangements have as much flexibility as possible. If a person wants to accept the uncertainty of a position-based appointment then that may well be a risk that they are willing to take and should be accorded. Let us remember they can appoint one or more. They could appoint two or three by name, they could appoint others by reference to office or position. The point about clause 21(1) is that it is not clear how the courts would interpret it and I certainly would not want, as a person writing an advance care directive, to have to rely on the future judgements of the court.

There is also the capacity for the contents of the advance care directive to apply. In this respect, I am not going to ask a question, but let me put it this way: if I have misunderstood the bill, I would appreciate the government clarifying it because I certainly would not want to be progressing on a misapprehension. My understanding is that the contents of an advance care directive can include conditional instructions.

In other words, the advance care directive provides guidance to your substitute decision-maker, but it could actually say, as I understand it, to the SDM, 'When you approach decisions of a certain class you need to get advice from X moral source.' For example, I presume it is permissible, and as I said I would appreciate correction if that is needed, it might be that your advance care directive states that, 'In any situation involving a threat to life then I want you to consult, again, the priest at St Dominic's.'

As I understand it, that can happen now; that does not have to struggle with the uncertainties of section 21(1). Personally, that is probably the course I would take. If you like, it gives you that flexibility, the flexibility to allow for those who come and go from some of these key positions. I do not think we should be blind to both the flexibility of the private sector or the flexibility of faith communities in our state to respond to need. I would expect that there would be documents produced by faith communities, such as the Catholic community, that will, perhaps, find their way into schedules to the information kits that are going to be available to people writing advance care directives.

Also, there may well be demand for substitute decision-makers of a particular religious community. For example, the Catholic community might have people who are willing to take on that role, either on a named basis or, if it was through a reference in an ACD, it might be that a person is required to consult that person and, depending on how you read clause 21(1), perhaps even appoint them as a substitute decision-maker. I believe it is consistent with the overall philosophy of the act, but I believe that the bill would be enhanced by making it clear that a substitute decision-maker can be appointed by office or position.

I have tabled and distributed an amendment in my name, which I do not intend to move because I appreciate that it has not had the benefit of the wide consultation which the rest of the bill has received, but I have tabled it for the consideration of the committee, particularly moving forward. Very few bills do not get revisited more than once and this may well be something that we look at in the future. I believe that we need to make sure that our laws are flexible for people in very diverse circumstances, and I would commend the issue to those people who are implementing these very important reforms. It may well be that the parliament has cause to consider them in the future.

The Hon. I.K. HUNTER: I thank the honourable member for his very considered comments. There are some concerns that may possibly arise from his suggestion. One is, of course, that if you elect to appoint a person from a certain class who might not be occupying the position right now the problem under the legislation is that that person still has to be competent to carry out the duties, they must also accept their role and they need not have a conflict of interest in the carrying out of their function. These are things that would be difficult to ascertain in the future if you do not know who is carrying out that role when you go to set up your advance care directive.

The honourable member is quite right: you can actually write some of that into your advance care directive; giving instructions to your substitute decision-maker is probably the way forward. There is also the additional paragraph 21(2)(d), which allows 'any other person of a class prescribed by regulations for the purposes of this section', and I thank the honourable member for bringing this up because it may well be something the government will give consideration to when it comes to construct regulations.

Clause passed.

Clause 22 passed.

Clause 23.

The Hon. I.K. HUNTER: I move:

Page 16, line 19 [clause 23(4)]—Delete 'Subject to an express direction to the contrary in the advance care directive' and substitute:

Despite any provision of an advance care directive to the contrary

Clause 23 sets out the powers of substitute decision-makers appointed under an advance care directive, including what types of decisions substitute decision-makers can and cannot make. Clause 23(4) provides that, unless a person specifies otherwise in their advance care directive, a substitute decision-maker cannot refuse the administration of drugs to relieve pain or distress or the natural provision of food and liquids by mouth.

The amendment being proposed by the government will effectively mean that, despite a provision refusing the person's advance care directive, a substitute decision-maker is not authorised to refuse either on the person's behalf. The administration of drugs to relieve pain or distress—that is, palliative care at the end of life—does not represent an effort to cure or even modify a disease or a condition. It is directed at the fundamental humanitarian purpose of relieving pain or distress during the dying process. Such a purpose is a fundamental right, not only of the patient but also of those around them, be they health practitioners, family friends or fellow patients.

Other medical situations in which treatment can be refused impose a burden only on the patient, although others may empathise with that patient. However, a situation which cannot be ignored is the case of a person in serious pain which, if untreated, may cause them to writhe and scream in agony, for example. It is unlikely that many of us can predict in advance or imagine the extent or level of pain or suffering which may be experienced in many terminal conditions. The actual impact of the pain at the time may not have been anticipated.

These are matters which must be assessed at the time by reference to the external condition of the patient and their response to pain medication. It would not be a humane response to leave the patient writhing and screaming out in serious pain or distress on the basis of a decision they made at some previous time. If a person specifically requested in their advance care directive that pain medication be limited to maximise their lucidity, but provided sufficient pain relief, then that would be an appropriate course and could be honoured.

A provision in an advance care directive refusing food and liquids by mouth is not considered a binding provision of the bill, as I mentioned earlier, as the natural consumption of food and liquids is not health care; it is simply eating and drinking, for example, lunch, dinner or afternoon tea. Therefore, if a person expressed a wish to eat and drink, it would be unacceptable and inhumane not to offer them food and liquids by mouth (that is, something to eat and drink), despite a refusal in an advance care directive. An appointed substitute decision-maker should not be able to refuse the natural provision of food and liquids on another person's behalf.

Amendment carried; clause as amended passed.

Clauses 24 to 35 passed.

Clause 36.

The Hon. I.K. HUNTER: I will not be moving Amendment No. 6 [SusEnvCons-1]; instead, I move amendment No. 1 [SusEnvCons-2]:

Page 21, after line 28—Insert:

(1a) Despite subsection (1), a health practitioner may refuse to comply with a provision of an advance care directive if the health practitioner believes on reasonable grounds that—

(a) the person who gave the advance care directive did not intend the provision to apply in the particular circumstances; or

(b) the provision does not reflect the current wishes of the person who gave the advance care directive.

Note—

This subsection does not, however, authorise a health practitioner to provide health care. If health care is to be provided, consent must be given in accordance with the Consent to Medical Treatment and Palliative Care Act 1995—see, for example, Part 2A of that Act.

The Advance Care Directives Bill is based on substitute decision-making, as outlined in the principles of the bill. The provisions in clause 35 relating to substitute decision-makers allow for some flexibility to enable them to make a decision on behalf of the person in light of current circumstances. This may be the case if a person's advance care directive has not been updated for quite some time and their substitute decision-maker knows the person had changed their mind but did not update their advance care directive.

Cases may arise when there is no substitute decision-maker but there is a refusal of health care in non-emergency situations which may no longer reflect that person's wishes. For example, 20 years ago, a person may have refused all blood interventions in their advance care directive because of their religious beliefs. The person subsequently may have changed their religion but did not update their advance care directive and now has impaired decision-making capacity.

Under clause 36(1), a health practitioner must comply with a binding provision; that is, they must not provide the relevant health care if the person had refused it in their advance care directive. This amendment provides that a health practitioner may refuse to comply with a refusal of health care if they believe, on reasonable grounds, that (1) the person did not intend the refusal to apply in relation to the particular circumstances, or that (2) the provision does not reflect the current wishes of the person who gave the advance care directive and there is no appointed substitute decision-maker.

The intent of this amendment is not to permit the wilful override or the ignoring of a person's instruction in their advance care directive but to provide for some flexibility in the rare event that there is some evidence that the person's specific refusal no longer applies to the current circumstance or particular health care. This is consistent with the bill's objects and principles and contemporaneous substitute decision-making.

In practice, a health practitioner would need some evidence that this was the case to fulfil the requirement on reasonable grounds. It would not be enough to override a refusal just because they or family members did not agree with the provision. This amendment would permit a health practitioner not to comply with a refusal in very specific circumstances and therefore relieve them of being in breach of the law.

However, consent for the proposed treatment must still be sought from the person responsible, in accordance with the consent act. The person responsible must make a decision they believe the person would have made in the current circumstances. If there was a dispute about the provision, an eligible person can apply to the Public Advocate for advice and to have the matter mediated. The Guardianship Board, upon application, can also determine the matter. This approach is still consistent and respectful of the person's autonomy and will ensure that, as far as is practicable, health care is delivered in accordance with the person's wishes.

The Hon. S.G. WADE: Just to clarify, presumably it would also apply the other way. If somebody was making nonreligious directions which related to refusal of treatment and then they developed religious inclinations—say they became a Jehovah's Witness in the meantime—it would also have the same effect; it would update their directions. Is that the case?

The Hon. I.K. HUNTER: It makes it pretty plain, I think, that if a person has not updated their advance care directive for some time, their life circumstances have changed in some way (religion being one of them, one way or the other), then a substitute decision-maker who has reasonable grounds or a medical practitioner who has reasonable grounds to believe that that change in their circumstances has happened that would impact on their earlier decision then, yes, that would be the case.

Amendment carried; clause as amended passed.

Clause 37.

The Hon. I.K. HUNTER: I move:

Page 22, lines 6 to 18—Delete clause 37 and substitute:

37—Conscientious objection

Despite any other provision of this Act, a health practitioner may refuse to comply with a provision of an advance care directive on conscientious grounds.

This goes to the issue of conscientious objection which I outlined in my second reading contribution. After the amendment, section 37—Conscientious objection would read:

Despite any other provision of this Act, a health practitioner may refuse to comply with a provision of an advance care directive on conscientious grounds.

Currently, under clause 37(1), a health practitioner may refuse to comply with an advance care directive on conscientious grounds. The second part of this clause provides that the health practitioner must take reasonable steps to provide the person or their substitute decision-maker with the name and contact details of another health practitioner they believe will not refuse to comply with the advance care directive.

Feedback from the medical profession suggests that this legal requirement to refer on is considered too prescriptive. This amendment removes the legal requirement for a health practitioner to refer a person to another health practitioner willing to comply with the advance care directive. The government believes that conscientious objection is adequately addressed by the professional codes and standards which govern the practice of registered health practitioners.

It should be made clear that the conscientious objection to complying with a binding refusal of health care does not mean that the health practitioner can provide the health care because they disagree with the refusal. Providing treatment without consent in most cases would be considered assault and battery under common law. It does mean, however, that a health practitioner can object to being the treating health practitioner. In this circumstance, and in accordance with their own professional standards or codes, they should refer the person on or hand over their care to another health practitioner. This is particularly important for people who have lost decision-making capacity and, therefore, would not be able to find another health practitioner themselves.

The Hon. S.G. WADE: Could I clarify whether it is the government's belief that what is being removed under clause 37(2) is already within the professional obligations of a health practitioner in any event and all we are doing is removing a prescriptive restatement of those obligations?

The Hon. I.K. HUNTER: My advice is that, yes, that is the case.

Amendment carried; clause as amended passed.

Clauses 38 to 40 passed.

Clause 41.

The Hon. I.K. HUNTER: I move:

Page 23, line 10 [clause 41(1)]—After 'in accordance with' insert:

, or purportedly in accordance with,

It has been brought to light through consultation with the AMA (SA Branch), the South Australian Salaried Medical Officers Association and the Law Society that this clause may not cover situations where a health practitioner, substitute decision-maker or another person, such as an aged-care worker, believes that they are acting in accordance with an advance care directive but may have misinterpreted a provision.

For example, they may believe that they are providing care in accordance with the advance care directive, but it may come to light after speaking with those close to the person that person did not intend the provision to apply to that particular situation. As a result, the government is amending this section to protect health practitioners and substitute decision-makers and others, such as aged-care workers, who believe in good faith and without negligence that they are acting in accordance with the advance care directive.

Amendment carried; clause as amended passed.

Clauses 42 to 46 passed.

New clause 46A.

The Hon. I.K. HUNTER: I move:

Page 25, after line 33—Insert:

46A–Guardianship Board to give priority to wishes of person who gave advance care directive

Without limiting Part 2, the Guardianship Board must, in performing a function or exercising a power under this Division—

(a) seek, as far as is reasonably practicable, to give full effect to the wishes of the person who gave the relevant advance care directive; and

(b) without limiting paragraph (a), to limit the intervention of the Guardianship Board as far as is reasonably practicable in the circumstances.

Clause 10 of this bill sets out principles which must be taken into account in relation to the administration, operation and enforcement of the bill, including dispute resolution. Principle (h) states that in the event of a dispute:

the wishes...of the person who gave the advance care directive are of paramount importance and should, insofar as is reasonably practicable, be given effect;

Those who complete advance care directives will do so to make sure that their wishes and preferences about future decisions are known in advance and respected when the time comes. People often complete advance care directives to prevent Guardianship Board intervention into their private lives, which can often be a daunting, emotional and a formal legal process.

Currently, a number of cases end up before the Guardianship Board because of aggrieved family members, and I gave an example earlier in my speech and I will not repeat it now. So we are keen to ensure this current practice does not continue in relation to advance care directives and subsequent decision-making appointments under this new scheme. It was always intended that the Guardianship Board would be a dispute resolution mechanism of last resort where a mediation or advice by the Public Advocate did not resolve the issue or was not wanted.

New clause inserted.

Clauses 47 to 49 passed.

Clause 50.

The Hon. I.K. HUNTER: I move:

Page 27, line 21 to page 28, line 3 [clause 50(1)]—Delete subclause (1) and substitute:

(1) If, on the application of an eligible person in respect of an advance care directive, the Guardianship Board is satisfied that a person appointed as a substitute decision-maker under the advance care directive—

(a) is a person who cannot be a substitute decision-maker pursuant to section 21(2); or

(b) is no longer willing to act as a substitute decision-maker under the advance care directive; or

(c) has been negligent in the exercise of his or her powers under the advance care directive; or

the Guardianship Board may—

(d) revoke the appointment of the substitute decision-maker; or

(e) if the person who gave the advance care directive is competent—with the consent of the person, make any variation to the advance care directive the Guardianship Board thinks appropriate (including by appointing another substitute decision-maker); or

(f) if the person who gave the advance care directive is not competent, and if no other substitute decision-maker was appointed under the advance care directive—revoke the advance care directive.

(1a) If, on the application of the Public Advocate, the Guardianship Board is satisfied that, because of a change in the personal circumstances of—

(a) the person who gave the advance care directive; or

(b) a substitute decision-maker under the advance care directive,

it is no longer appropriate that a particular person be a substitute decision-maker under the advance care directive, the Guardianship Board may make any of the orders contemplated by subsection (1)(d), (e) or (f).

Currently under the bill, the Guardianship Board can, on the application of an eligible person, revoke the appointment of a substitute decision-maker if the Guardianship Board considers it is not appropriate for that person to be the substitute decision-maker. For example, if the substitute decision-maker no longer has a relationship with the person, such as a former partner, this may happen if the person has not updated their advance care directive and is no longer competent to complete a new one.

Some matters end up before the Guardianship Board because of family disputes about who was appointed as substitute decision-makers, and currently in such cases the board generally appoints a neutral person as guardian to prevent continued family dispute. However, this neglects the person's original wishes about who they trusted to make decisions for them when they could not. This bill places the wishes of the person as paramount.

To minimise vexatious applications to the Guardianship Board about inappropriate substitute decision-makers, it is intended that the Public Advocate be a gatekeeper for such applications. This means that applications can only proceed to the Guardianship Board if the Public Advocate believes, after investigation, that there is a case to be heard. It is intended that this amendment will provide another layer of protection for the person who gave the advance care directive by ensuring that only non-vexatious applications about substitute decision-makers can be put to the Guardianship Board for consideration. Amendments Nos 11 and 12 are consequential to this amendment, I am advised.

The CHAIR: Therefore you will be moving 11 and 12. So we will be dealing with amendment No. 10, and amendments Nos 11 and 12.

The Hon. I.K. HUNTER: Accordingly, I move:

Page 28—

Line 14—Delete 'subsection (1)(e)' and substitute 'this section'

Line 21—Delete 'subsection (1)(e)' and substitute 'subsection (1)(f)'

The Hon. S.G. WADE: I would like to put on the record that I welcome amendment 10 and the related amendments. It is a concern that I expressed to the government in earlier discussions and I think it does reinforce the point I was making earlier in relation to clause 21. We need to make sure that people do have advance care directives and appointments of substitute decision-makers that are respected by the authorities. I think that this set of amendments reminds the Guardianship Board of the respect that should be accorded to those decisions, and I welcome the amendment.

Amendments carried; clause as amended passed.

Clauses 51 to 54 passed.

Clause 55.

The Hon. I.K. HUNTER: I move:

Page 30—

Lines 8 to 10 [clause 55(3)]—Delete subclause (3)

Line 17 [clause 55(4)(c)]—Delete paragraph (c)

Lines 18 and 19 [clause 55(4)(d)]—Delete 'in relation to the advance care directive'

For the offence of fraud or undue influence under clause 55(3) of the bill, there is currently an automatic penalty of forfeiting an interest in the person's estate. The government has received feedback suggesting that this penalty may be excessive. This amendment removes clause 55(3) from the bill, which will remove the automatic penalty from the bill.

Amendment No. 14 is consequential to this amendment and removes subclause (4)(c). The courts could use their discretion extended by amendment No. 15 to apply such a penalty if it thought fit, on a case-by-case basis, under subclause (4)(d). I commend the amendments.

Amendments carried; clause as amended passed.

Clauses 56 to 62 passed.

Schedule 1.

The Hon. I.K. HUNTER: I move:

Page 34, lines 10 to 19 [Schedule 1 clause 3(6), inserted definition of medical treatment]—Delete the definition and substitute:

medical treatment means the provision by a medical practitioner of physical, surgical or psychological therapy to a person (including the provision of such therapy for the purposes of preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life) and includes the prescription or supply of drugs

Note—

See also section 14, which extends this definition for the purposes of Part 2A to include other forms of health care.

This amendment seeks to extend the definition of medical treatment in the bill to the Consent to Medical Treatment and Palliative Care Act 1995 at clause 4. I do not think I need to belabour the point. I made it well in my second reading speech, I am sure.

The Hon. S.G. Wade: If you do say so yourself.

The Hon. I.K. HUNTER: Yes, and it will save time.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Page 37, after line 33—Insert:

(3a) Section 13—after subsection (1) insert:

(1a) Subject to this section, a medical practitioner may lawfully administer medical treatment to a person (the patient) despite a provision of an advance care directive given by the patient comprising a refusal of medical treatment if—

(a) the patient is incapable of consenting (whether or not the patient has impaired decision-making capacity in respect of a particular decision); and

(b) the medical practitioner who administers the treatment is of the opinion that the treatment is necessary to meet an imminent risk to life or health and that opinion is supported by the written opinion of another medical practitioner who has personally examined the patient; and

(c) the medical practitioner who administers the treatment reasonably believes that the provision of the advance care directive is not intended to apply—

(i) to treatment of the kind proposed; or

(ii) in the circumstances in which the proposed medical treatment is to be administered; and

(d) it is not reasonably practicable in the circumstances of the case to have the matter dealt with under Part 7 of the Advance Care Directives Act 2012.

(3b) Section 13(2)—delete 'subsection (1)' and substitute:

subsection (1)(b) or (1a)(b)

This refers to the lawful administration of medical treatment. Section 13 of the consent act sets out provisions for the lawful administration of medical treatment in an emergency when there is imminent risk to life or health and a patient is unable to consent and the medical practitioner is not aware of a prior refusal of treatment.

Whilst the bill amends terminology in section 13, the substance of the section remains the same. If time permits, consent for the medical treatment should be sought from a substitute decision-maker or person responsible under the new arrangements proposed for the consent act in schedule 1.

Medical practitioners have raised some concerns about this section and believe the emergency provisions may not protect them in situations of emergency where there is an advance care directive in place refusing medical treatments but where the circumstances of refusal of medical treatment are ambiguous, or where there is no time to ascertain the condition of the patient to determine whether the refusal applies to the current situation and there is no-one close to the patient to seek consent from or with whom to clarify the advance care directive.

The intent of this amendment is to enable medical practitioners to lawfully provide treatment in an emergency, despite a refusal of the particular medical treatment in the advance care directive, only if the medical practitioner is of the opinion that the refusal was not intended by the person to apply to the current condition or circumstance. This may be the case if the refusal is ambiguous and there is no time to clarify the advance care directive provisions or the patient's condition.

This amendment does not permit a medical practitioner to wilfully override or ignore a clear, relevant refusal but provides authorisation to treat, unless there is a clear refusal of consent for the treatment in the prevailing circumstances. I understand this amendment is supported by the Australian Medical Association and the South Australian Salaried Medical Officers Association.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Page 47, lines 28 to 34 [Schedule 1 clause 16(7), inserted definition of medical treatment]—Delete the definition and substitute:

medical treatment means the provision by a medical practitioner of physical, surgical or psychological therapy to a person (including the provision of such therapy for the purposes of preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life) and includes the prescription or supply of drugs;

Similar to my earlier amendment, this amendment takes the definition of medical treatment in the Guardianship and Administration Act 1993, section 4, to be congruent with the existing definition in this bill. I do not believe I need to speak to it any further.

Amendment carried; schedule as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (17:21): I move:

That this bill be now read a third time.

Very briefly, I have been advised that I need to clarify something I said in relation to the Hon. Mr Wade's amendment to clause 21, which he did not move. I spoke about a paragraph under clause 21(2)(d), talking about a class of prescribed person. I just want to make it clear that I was not speaking about that clause when I was talking about making regulations: when I was talking about making regulations, I was referring to the suggestions made by the Hon. Mr Wade.

Bill read a third time and passed.

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