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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-10-28 Daily Xml
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Advance Care Directives (Review) Amendment Bill

Introduction and First Reading

The Hon. R.I. LUCAS (Treasurer) (18:03): On behalf of the Minister for Health and Wellbeing, obtained leave and introduced a bill for an act to amend the Advance Care Directives Act 2013. Read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (18:04): I move:

That this bill be now read a second time.

Breaching every convention I have held dear for 40 years, given it is a bill being introduced in this house for the first time I should read the speech, but I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Today I rise to introduce the Advance Care Directives (Review) Amendment Bill 2021. This Bill seeks to amend the Advance Care Directives Act 2013 to enhance the operation of the Act in response to the statutory review of the Act, before its five-year anniversary, that was conducted by Professor Wendy Lacey in 2019.

The Advance Care Directives Act 2013 was passed by the South Australian Parliament in 2013 and commenced on 1 July 2014.

The Act created a single advance care directive to replace the existing Enduring Power of Guardianship, Medical Power of Attorney and Anticipatory Directions documents. It enables a competent person to make decisions and give directions in relation to their future health care, accommodation arrangements and personal affairs; provides for the appointment of substitute decision-makers to make such decisions on behalf of the person if a person is not able to make them due to impaired decision-making capacity; ensures that health care is delivered to the person in a manner consistent with their wishes and instructions; facilitates the resolution of disputes relating to advance care directives; and provides protections for health practitioners and other persons giving effect to an advance care direction.

Section 62 of the Act provides for a review of its operations to be completed before the fifth anniversary of the commencement of the Act.

The Department for Health and Wellbeing engaged Professor Wendy Lacey to undertake the review which was conducted over a 10-week period from 10 April 2019 to the end of June 2019. Professor Lacey consulted extensively, with both targeted consultation with interested organisations, persons and professions; as well a broad invitation to contribute provided to members of the community.

The Lacey Review made 29 recommendations and was tabled in Parliament on 1 August 2019. The South Australian Government's Response to the Review was tabled in Parliament on 23 July 2020 and supported, in full or in principle, 22 of the recommendations.

To guide the implementation of the recommendations of the Review, an Advance Care Planning Oversight Group and a Working Group have been established by the Department for Health and Wellbeing. This ensures the implementation is overseen by a broad range of stakeholders from the health, aged, disability, legal and community sectors, including the Australian Medical Association, Council on the Ageing and the Legal Services Commission South Australia.

The Bill has been drafted to implement the recommendations of the Review that recommend changes to the Act. This Bill includes amendments on the following:

Inclusion of references to digital copies of ACD documents

Interaction with other Acts and laws

Giving advance care directives where English is not the first language

Requirements in relation to appointment of substitute decision makers and their empowerment

Resolution of disputes by Public Advocate; and

Referral of certain matters to Tribunal.

Consultation on the Bill commenced via YourSAy on 25 June 2021 and concluded on 3 August 2021. Over this period, there were 1200 visits to the YourSAy consultation page. Engagement occurred via the online survey, a webinar session and through written submissions.

In total, 64 responses were received comprising 31 survey results and 33 written submissions.

As a result of community consultation on the draft Bill, changes have been made to how the Government has responded to the recommendations of the Review undertaken by Professor Lacey. The Government feels confident in making these changes to reflect the best interests of the community in making Advance Care Directive law as robust as possible. These changes will improve access to Advance Care Directives and provide stronger support for the principles of the Act.

Recommendation 22 of the Lacey Review recommended that interpreters must be duly qualified as interpreters of the relevant language, they should be an adult with capacity and they should be subject to similar requirements as apply to witnesses under section 15 of the Act. During our consultation with the community it was made clear to us that additional barriers to completing ACDs will be unintentionally created for culturally and linguistically diverse communities if interpreters must be duly qualified through a relevant accreditation scheme. For some dialects there may be few or no interpreters with a relevant qualification, thereby preventing access for that community to complete Advance Care Directives.

For this reason, the Bill does not impose this requirement on interpreters. However, I would emphasise that the ACD Guide and supporting materials being developed will strongly encourage the use of accredited interpreters where possible, if this amendment is passed. The remaining recommended requirements on interpreters continue to be proposed in this Bill.

Recommendation 17 of the Lacey Review recommended that the Act be amended to require the Office of the Public Advocate to discontinue a matter where a reasonable suspicion of elder abuse exists and refer the matter to SACAT for determination.

In some cases where abuse is alleged in a matter that has been brought to the Public Advocate for resolution, further analysis and discussion with the parties to the dispute has identified a misunderstanding about the roles of Substitute Decision-Maker (SDM) and principles of the ACD Act. In these less serious cases, the Dispute Resolution Service (DRS) of the OPA has the opportunity to provide education and support to those people involved in the dispute and resolve matters without needing to refer the matter to SACAT.

Requiring the OPA to discontinue mediation and refer the matter to SACAT in these scenarios has the potential to reduce public confidence in completing Advance Care Directives. When people complete ACDs, they do so under the principles of self-autonomy and believing their wishes will be respected. The potential for a dispute to be referred to SACAT, and potentially a guardian appointed who is not of that person's choosing, undermines these principles.

In addition, these amendments could potentially significantly increase SACAT's case load with a range of matters that are not most appropriately dealt with by SACAT.

The above feedback has been received through consultation with the community and the Office of the Public Advocate (OPA). The Government has considered this, and agrees that the OPA should continue to have the option to refer certain matters to SACAT where abuse of a person is alleged, but not be required to do so, as is currently specified in the Act.

Maintaining a strong legislative framework for Advance Care Directives is a commitment of the Marshall Liberal Government and is essential for empowering South Australians to make clear legal arrangements for their future health care.

The Bill will improve the functioning of Advance Care Directive legislation in South Australia and will also be essential for medical practitioners to have legislation that is up to date and appropriate for their task of achieving compliance with the Act.

In closing, I would like to thank officers from the Department for Health and Wellbeing and Parliamentary Counsel who have assisted with bringing this legislation before the chamber.

I commend this Bill to members.

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

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Advance Care Directives Act 2013

4—Insertion of section 5A

This clause inserts new section 5A into the principal Act, providing that certain electronic copies of advance care directives, prepared in accordance with the regulations, will be taken to be advance care directives.

5—Insertion of section 8A

This clause inserts new section 8A into the principal Act, clarifying that the principal Act does not limit the operation of other Acts and laws and also that a direction under another Act or law is not an advance care directive.

6—Amendment of section 14—Giving advance care directives where English not first language

This clause amends section 14 of the principal Act to add additional protections around who can be an interpreter who can assist a person to give an advance care directive.

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

This clause amends section 21 of the principal Act to clarify that a person who gives an advance care directive can have such number of substitute decision-makers as they see fit.

8—Substitution of section 22

This clause amends section 22 of the principal Act to clarify that a person who gives an advance care directive can appoint substitute decision-makers in conditionally and in order of preference.

9—Amendment of section 24—Exercise of powers by substitute decision-maker

This clause amends section 24 of the principal Act to provide that a requirement to produce an advance care directive can be satisfied by accessing the advance care directive electronically or in accordance with the scheme to be set out in the regulations.

10—Amendment of section 45—Resolution of disputes by Public Advocate

This clause amends section 45 of the principal Act to remove the ability for the Public Advocate to make the declarations specified in current subsection (5).

Schedule 1—Statute law revision of Advance Care Directives Act 2013

This Schedule effects a statute law revision cleanup of obsolete terms and references in the principal Act.

Debate adjourned on motion of Hon. I.K. Hunter.

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