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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-05-05 Daily Xml
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Bills

Voluntary Assisted Dying Bill

Committee Stage

In committee.

(Continued from 31 March 2021.)

Clause 1.

The Hon. D.G.E. HOOD: During my second reading speech on 31 March on this bill, I referred to a document published by Palliative Care Victoria. This document suggested that the government funding for palliative care had decreased as a consequence of the introduction of their voluntary assisted dying bill of 2017. It has since come to my attention that this document that I used off their website contained a calculation error and has been removed from their website since.

I also acknowledge that the timing of the report is such that it does not provide any insight into the impact of the Voluntary Assisted Dying Act on palliative care funding in Victoria. I took that information off the website in good faith, assuming it to be correct; it turns out that it was not correct, and I assure members that there was nothing untoward and that I was acting in good faith.

The Hon. R.A. SIMMS: I welcome the opportunity to speak on this important reform—voluntary assisted dying legislation. I thank the Hon. Kyam Maher for putting this on the agenda and for his leadership on this issue. This has been a long-term priority for the Greens, and members will be aware that Mark Parnell moved his own bill back in 2008 and again in 2010. Of course, this is the first time that I have had the opportunity to put my support for this reform on the public record, so I want to make a few remarks about that. I will be exercising my vote in favour of this bill.

Like many in our community, my support for this reform is based on my lived experience and my family's experience. My nanna, Norma, died more than a decade ago, after a long-term battle with Alzheimer's disease. She had the disease for more than 20 years. In her final years she had no quality of life at all. Her mother, my great-grandmother, also died of Alzheimer's disease, and I know, from when my nanna was in good health, this was not a death she wanted for herself. She talked often about not wanting to face the same death that her mother faced. During her final years she was in a vegetative state. She was in obvious distress. She was unable to eat without assistance. Her death was prolonged and it was certainly one that was without dignity.

Obviously, I recognise that the bill before us will not deal with people in my grandmother's situation. She would not have been able to provide consent. But seeing her suffering, prolonged as it was over many years, has solidified my belief that as legislators we need to do what we can to give people choice in their final days.

I will be exercising my vote in favour of the bill for all those who I have loved who have not had the right to die with dignity and all those South Australians who have not only had to endure the loss of a loved one but have also seen them die in prolonged suffering. No-one should have to endure that in modern Australia. My thoughts are with them tonight. It may be too late for us to help them but we can do something to help other South Australians in the future.

I want to acknowledge all those who have shared their experiences in recent days. These matters of life and death are always difficult to talk about. In particular, I was saddened to read the news in The Advertiser about Ceara Rickard's health. Ceara is somebody I went to university with. I remember her from my Flinders University days. To quote Ceara:

These laws are not about choosing death, but giving people a death that works for them when they are…dying and death is near.

As Ceara says:

The choice of whether I die is not one that I get to make. But how and when I die can be a choice and it is one that I should be free to make.

Those are her words. I really hope that this parliament respects Ceara's choice and the choice of all other South Australians to end their lives with dignity.

The Hon. J.A. DARLEY: I did not make a second reading contribution because I thought my position was well known in this chamber, but I would appreciate the opportunity to make a very brief contribution now.

It is an appropriate time to point out that I have supported all the past bills and will again on this occasion. Many safeguards have been inserted and choice is provided for those who find themselves in an unacceptable end-of-life situation. Elsewhere in our health and welfare system there needs to be substantial improvements to services and their delivery and to make the options more acceptable to those needing extensive support or residential care.

Members have had some time to consider the VAD regime proposed and I will not be well disposed to support amendments that undermine its intent or structure.

The Hon. K.J. MAHER: When we last met to discuss this matter there were a number of questions that were asked and I appreciate that questions were put on notice. I think the nature of the way this debate has been conducted so far is what members of the public would expect of us as parliamentarians. It has been done in a very civil and respectful way. As we have noted before, reasonable people have come to very different views on these issues, and they are sensitive and difficult issues.

I think of the joint committee that the Hon. Mr Hood and I sat on. It was mentioned on more than one occasion that we do not discuss or deal with death in the way that we probably should as a society. I think the way that we have all conducted ourselves does us a great deal of credit. I think that started with the 18-month joint house committee on end-of-life choices. It did not start that well, with the Hon. Dennis Hood trying to roll the chair of the committee, but it has been very respectful and if there have been questions or issues to sort out I think it has been done in very good faith, not just with the Hon. Dennis Hood but with all members. I thank everybody for that.

I have quite a number of questions that were asked by the Hon. Dennis Hood and the Hon. Clare Scriven last time we met and I will go through the answers in relation to them. Some of them can be done reasonably briefly, some of them will take a few minutes more to answer, and if there is further follow-up needed I am happy to do that. The information that gives rise to the answers is probably a couple of hundred pages in total, but I shall not try to battle the Hon. Frank Pangallo for time speaking in this chamber and read them all out.

The first question from the Hon. Dennis Hood was in relation to medical associations opposed to voluntary assisted dying. I addressed that largely when I responded to that question previously in the first reading of clause 1, but I can get further information to supplement my previous answer. As stated by the Hon. Dennis Hood in his question, the Australian Medical Association has a stance of opposition to voluntary assisted dying; however, it should be noted that is not in line with its membership, a majority of whom said, in the AMA's own 2016 survey, that VAD should be provided by doctors if and when it is legalised.

Palliative Care Australia is now neutral towards VAD reform. The Royal Australian College of GPs, whose membership is larger than the AMA's, supports lawful VAD choice, as does the Australian Psychological Society and the Australian Nursing and Midwifery Federation, whose South Australian branch has directly made comment and recommended legislation to be passed in South Australia.

The Hon. Dennis Hood's second question raised the prospect that voluntary assisted dying will negatively impact on palliative care. The Hon. Dennis Hood had this question and a related question about palliative care funding, and he and I have spoken about this in recent days. I completely accept that he was relying on information that was put on a palliative care website in Victoria that was not correct, because we found the same information and were able to come to the same conclusion that it was reasonable to rely on that information, except that the source of the information was not correct.

I think it is important to acknowledge that, while the quality of palliative care services in Australia is world leading, even the two peak palliative care bodies, Palliative Care Australia and the Australian and New Zealand Society of Palliative Care Medicine, acknowledge that palliative care cannot address all intolerable suffering. A quote from them is:

While pain and other symptoms can be helped, complete relief of suffering is not always possible, even with optimum palliative care. It is simplistic to argue that palliative care can remove all suffering at the end of life.

Palliative Care Australia commissioned research into the impact of legal VAD on palliative care funding. The report focused particularly on European jurisdictions and Canada and found:

…no evidence to suggest that the palliative care sectors were adversely impacted by the introduction of legislation. If anything, in jurisdictions where assisted dying is available the palliative care sector has further advanced.

Emeritus Professor Ian Maddocks AM, foundation chair of palliative care at Flinders Uni and a resident in South Australia, wrote in the Medical Journal of Australia in 2018:

In countries where assisted dying has been introduced, palliative care has continued to flourish and grow.

The US states of Oregon and Washington, the first US states with voluntary assisted dying laws, are two of eight states across the US awarded the A grade in the 2011 national review of palliative care services and quality.

In Victoria, the Victorian government increased the funding of palliative care by $62 million and a further $17 million in 2017-18, the year in which the voluntary assisted dying legislation was passed in that state. I am informed there was an additional $23 million in 2018-19, and in the 2019-20 budget they allocated an additional $75 million over four years.

The third question the Hon. Dennis Hood asked was about a claim that people chose voluntary assisted dying to avoid being a burden to others in the state of Washington in the US. There are a number of questions that follow from the Hon. Dennis Hood's question, which uses examples from either the North American or European jurisdictions. The legislation that we are debating here today is substantially different from overseas schemes.

I think a useful summary of the very general, broad differences is provided in the final report of the Victorian ministerial advisory panel, which characterised the North American and particularly the US model as requiring a person to qualify as having a terminal illness, while it generalised the European model as requiring a person to be enduring suffering. The Australian model effectively takes both of those things: a requirement that a person is terminally ill and is suffering. So, as a general statement, in Australia we have taken both the qualifying elements of the European and the US systems. While examples from Europe or the US may be of limited utility, I will still try, as best I can, to answer the questions the Hon. Dennis Hood has asked.

The 2013 report that I think was cited in the Hon. Dennis Hood's question is the Washington State Department of Health 2013 Death with Dignity Act Report. The years 2013 and 2012 were the years when the highest number of participants included 'burden on family and friends' as an end-of-life concern. In 2013 it was 61 per cent and in 2012 it was 63 per cent. In the other eight years, the proportion of people nominating this ranged between 23 and 56 per cent.

Up until the publication of the 2019 report, there had been 10 annual reports of the Death with Dignity Act in Washington state. The most significant end-of-life concern for respondents in those reports was loss of autonomy, with 85 to 90 per cent of participants consistently nominating that as an end-of-life concern. The 10 annual reports listed that being a burden was consistently listed as the fourth most significant end-of-life concern. So while that was a concern, the year quoted was one of the two years when it was the highest proportion. They asked a whole lot of questions, and it is consistently ranked number four in order of the concerns in those reports in Washington state.

I think the next three questions from the Hon. Dennis Hood refer to particular individual patient cases. The first one is a claim that a vulnerable older woman was not competent and subject to undue influence in a case in Oregon in the US. Again, I will preface it by saying that there are very significant differences in the way the scheme operates in the US compared with what we are proposing here. I think what is developing as the Australian model of voluntary assisted dying is consistently recognised as much more stringent and conservative.

This particular case centres around a patient named Kate Cheney. The claim is that she was not competent to make decisions and was being pressured by her daughter. I am informed and advised in relation to this case that a mental health professional thought Ms Cheney was competent and also thought that her daughter was a strong advocate but that the patient was not pressured by her daughter in considering using the law.

The doctor referred her for a second opinion to another mental health professional, who also concluded that she was capable of making the decision to use the Oregon Death with Dignity Act. I am informed that Ms Cheney's physician did not claim she was incompetent. Instead, he refused to write her a prescription, as is his right, because he does not support the act of end-of-life choices.

The medical director of Ms Cheney's health management organisation (HMO), who provides oversight on all cases where a request has been made for a hastened death, determined that Ms Cheney was competent and under no duress. I am informed that Ms Cheney held on to the prescription for the voluntary assisted dying substance for some three months before she made a decision to use it.

The fifth question the Hon. Dennis Hood asked is again about a particular individual's patient case. The allegation is that mental illness was approved for voluntary assisted dying in Oregon. I think the allegation is that according to a physician, Dr Hamilton, Michael Freeland had a history of mental illness and was incompetent, therefore should not have qualified to receive medication under Oregon's Death with Dignity law.

I am informed that the facts are that five physicians involved in the case agreed that at the time Michael Freeland—I think he was quoted in the question as Freeman; I think the name is Freeland—received his prescription under that state's laws he was mentally competent and within six months of dying as well. I am informed that he was mentally competent when he received the medication, when he kept his medication and when he chose not to use the medication.

A particular doctor, I am informed, was apparently involved with the care of Mr Freeland for several months and never once raised an issue with authorities while he was still alive and could speak for himself about these concerns. Since the time Mr Freeland died, his family, I am informed, have been concerned that his private medical records have been used in a political campaign against voluntary assisted dying, and the family have requested for this to cease.

The sixth question the Hon. Dennis Hood asked was again about a particular case in Oregon, involving a woman called Helen. The concern or the allegation is that doctors found this patient, Helen, to be depressed, and that she then went to other doctors and that this is an example of doctor shopping—looking for someone who is prepared to write a prescription.

I am informed neither of the doctors in the Oregon system found the patient Helen to be incompetent. Instead, I am informed they simply did not support the law. One of the doctors, I am informed, said she was sad about her pending death and characterised her sadness as slight depression that did not interfere with her ability to make a rational decision. It was one of her original doctors who recommended that Helen seek further opinions, which she did.

I do note that in the Australian model being proposed by the bill before the parliament there is very significant oversight that requires every single assessment that is made by every single doctor involved to be sent to the Voluntary Assisted Dying Review Board that is proposed under the legislation for that extra oversight.

In the seventh question the Hon. Dennis Hood asked I think the question talks about the expansion of voluntary assisted dying in the Netherlands. I am informed that official data from the Netherlands showed after an initial gradual increase as the law became recognised the rate of voluntary assisted dying use in the Netherlands has levelled off and that these laws are based on establishing agreed criteria for its use, not a cap of how many people might use it.

I am informed that the Netherlands, since the introduction of the legislation in 2001, has not amended their legislation. I think the Hon. Dennis Hood asked, 'How can we ensure this bill will not be enlarged further in its scope in relation to what has happened in the Netherlands?' As I say, I am advised that the Netherlands have not increased their scope; they have not amended their law.

I know that is one of the common concerns that some who do not agree with this bill have—that slippery slope: how do we know it is not going to go further? I think quite simply the only way these laws, like any other laws, could possibly change is with the consent of both chambers of this parliament. It provides a pretty strong safeguard against concerns about the potential change of scope. It does not happen unless both houses of a parliament elected by the people of South Australia agree to it.

The experience around the globe is that once established, there is very little change that occurs with these laws. I think that mitigates the concern many have about that creeping scope. The laws change very little once they are established in a jurisdiction.

The Hon. Dennis Hood's eighth question was about the short-lived Northern Territory scheme and patients who were suffering from depression. I am informed that the NT act, while it remained operational—for that short amount of time—included many criteria which needed to be met for voluntary assisted dying. There was a claim that patients involved had symptoms of depression made by a Professor Kissane, who I am informed did not meet any of the patients who used the NT Rights of the Terminally Ill Act at the time.

I am informed three of the four patients in the NT had terminal cancer and the fourth, a Janet Mills, had mycosis fungoides—and the Hon. Denis Hood might know that better; I will give that to Hansard later, because I am sure my medical pronunciation is not correct. I think to the proposition that the Hon. Dennis Hood put—'Could that happen in the same circumstances here?'—the very simple answer is there are those 68 separate safeguards in the Victorian bill, which is what we have taken an almost carbon copy of in South Australia. In addition, it is very clear that section 13(2) makes it very clear a person is not eligible for VAD only because of a diagnosis of mental illness. It is spelt out in the bill.

The ninth question the Hon. Dennis Hood question asked is about mental competence not being addressed in the bill. In South Australia, the bill that is before us, again, as I said, does not permit VAD exclusively for the reason of mental illness in clause 13(2), and, I might add, nor for disability, as in clause 13(3). Clause 4 details the meaning of 'decision making capacity' in relation to voluntary assisted dying.

Clause 13(1)(c) expressly requires a person to have the decision-making capacity as a precondition for access to voluntary assisted dying, and it further requires both the coordinating and consulting doctors to assess and determine the person's decision-making capacity as part of the assessment process.

The 10th question Dennis Hood has asked about is, again, an expansion of voluntary assisted dying in a jurisdiction. I think he asked about an expansion in Belgium. Again, I will just restate the answer from before that the biggest safeguard we have against expansion is that two chambers of the South Australian parliament that are elected by the people of South Australia would need to agree on any possible changes, which the experience around the world shows are very few and far between.

The 11th question from the Hon. Dennis Hood is in relation to a question about whether VAD will negatively impact on the quality of palliative care. I will not restate what I said before about the experience in Victoria and the significant funding increase after palliative care was established in Victoria. I think that has been the experience in WA as well and the first two states in the US to introduce voluntary assisted dying regimes are some of the top-rated in terms of palliative care around the US.

The 12th question from the Hon. Dennis Hood is specifically about palliative care funding and the figure of a decrease of 6.3 per cent, and I do not think we need to go in to that. I think there was a reliance on information on a website that was incorrect. The 13th question by the Hon. Dennis Hood is about the use of voluntary assisted dying for minors. The question is: what would prevent that happening in the future? I will restate again: there have been very few changes once a scheme is established. I just cannot see that happening in Australia.

We have, for a very long time, held in Australia that the legal age for decision-making capacity in most areas is 18. This bill requires the person to have attained the age of majority before being eligible to access voluntary assisted dying. All those criteria have to be expressly attested to by two separate doctors. I do not mind placing on the record that I do not support voluntary assisted dying being made eligible for minors, and I think that if I do not support it, it is going to be very unlikely we are ever going to see a majority in both houses of parliament support that.

Question 14 from the Hon. Dennis Hood was in relation to a Dutch doctor being sued for not approving VAD. This is one where I might forward the further and better particulars to the Hon. Dennis Hood about this case. My information is—and it goes over quite a number of pages—that there was a doctor who was not sued for not authorising VAD, but in the case, I think it was a Mrs Demore wanted access to VAD and I think it was an unprofessional conduct complaint that was lodged against a practitioner for, as the details have been put before me, trying to stop the person using VAD. So it was not any lawsuit to try to force someone to use VAD as it has been put before me on the basis of alleged unprofessional conduct. That one ended in quite tragic circumstances with that particular patient taking their own life in a pretty gruesome sort of way.

The 15th question from the Hon. Dennis Hood was about the loss of life years when future medical discoveries may help. I think it outlined for a young person who elects to use VAD because they meet all the criteria, and the question essentially was about the possibility of a medical breakthrough that might appear when they are in their 20s or 30s that could potentially save them and cure them from such an illness, and what is in the VAD bill to protect against that.

The fact that the time period used in our VAD bill is 'diagnosed in the last six months of your life', except for 12 months with a neurodegenerative disease, guards against that. The possibility of a miracle cure—for someone with a terminal illness that will bring about their death in the last few months of their life—is unlikely. It would be a reasonable point if the time frame was five years or 10 years that someone was diagnosed to live, I think that is a realistic possibility, but it is quite deliberately conservative and restrictive and down to the last six months.

They are the questions from the Hon. Dennis Hood. As I said, on that second to last one I am happy to get further information rather than reading pages and pages of an allegation and then the response to the particulars of the allegation into Hansard.

The Hon. Clare Scriven asked a few questions. The first question was about the establishment in the later clauses of the bill of the Voluntary Assisted Dying Review Board, and was it possible to get an indication of what resources would be provided for them to carry out their duties. I would like to thank the Hon. Stephen Wade, the health minister in this place, who, on a number of things, has sought comment from his department. I think all members have benefitted from some of the comments from members of his department who, as Dennis said, without supporting or not supporting the bill, have made general comment that I think has provided useful guidance.

I can quote the departmental advice that the Hon. Stephen Wade sought in relation to that question. It says simply:

If the VAD Bill was to pass into law the Department for Health and Wellbeing would undertake an assessment of the resource needs of the legal entity, the VAD review board, and fund accordingly.

I think that is what we would expect, and no less, from any legislation that we pass. It is not uncommon for us to pass legislation that establishes an office, a commissioner or an oversight function. I am grateful for that advice from the health minister that resources would be made available to implement what is required under this legislation.

I guess if this legislation did pass in South Australia the health department would not be starting from scratch and could then seek advice from Victoria, as they already have and have had in operation for close on two years a Voluntary Assisted Dying Review Board, and Western Australia, where I am assuming they have already established their Voluntary Assisted Dying Review Board given that their scheme becomes operational—I think it is at the start of the next financial year, the start of July, or if it is not then it is soon thereafter.

The second question from the Hon. Clare Scriven was in relation to the nature of doctor training, which is a mandatory requirement for any doctor whether they are the coordinating or consulting medical practitioner under the Voluntary Assisted Dying Scheme. They cannot complete the assessment and be part of the Voluntary Assisted Dying Scheme unless they have undertaken compulsory training, a number of elements of which are set out in the act.

I am grateful for some advice from Victoria, which has been able to give a little bit of information about the detailed training modules that the Victorian government established prior to the commencement of the Voluntary Assisted Dying Act and its scheme in 2019. I am informed that the modules are studied by a doctor prior to undertaking a VAD assessment. The VAD modules take approximately eight hours to complete and are able to be undertaken by the doctor at the doctor's own pace. Content knowledge is examined using approximately 30 multiple choice questions. I am informed that a candidate must score over 90 per cent to pass, and if they fail twice they must wait a prescribed period of time before being retested.

I am informed a detailed manual is available for doctors to remind them and ensure that a VAD case is conducted to the highest standard and meets every requirement. I think that has been reflected in the very strict compliance that the reporting on the operation of the VAD scheme in Victoria so far has found.

In Victoria, the state has funded a Care Navigator Service, which helps people, patients and, I think, doctors navigate the VAD system in Victoria. I am informed the Western Australian government has been developing similar modules prior to commencement of their act in July of this year. Again, I suspect it would be very similar. If a bill was successful in South Australia, for much of the training that doctors undertake, we would seek guidance and probably look to implement, I suspect, some of the Victorian and Western Australian modules, given that we both have very similar schemes, based on what I think the health minister has correctly described as the Australian model of voluntary assisted dying.

The final question from the Hon. Clare Scriven relates to advance care directives. I think the question was whether in South Australia advance care directives were considered. Section 23(1) of the act refers to information to be provided by the coordinating medical practitioner. I think the question Hon. Clare Scriven asked was why it is not in that section of the act. Was it because this is essentially a carbon copy of the Victorian legislation and in Victoria they do not have the advance care directive legislation that we have, or was it deliberately and specifically excluded from this act?

I am able to inform the chamber that in Victoria they do have advance care directives under their Medical Treatment Planning and Decisions Act 2016, so they have a very similar regime for the availability of advance care directives. The Victorian scheme has chosen not to include advance care directives as one of those items of information that must be provided.

As I said, we are following quite strictly the Victorian model and what is emerging as the Australian model of voluntary assisted dying. Palliative care is one of the options. I think clause 23(1)(c) states one of the matters to be provided is:

(c) palliative care options available to the person and the likely outcomes of that care;

I appreciate the Hon. Clare Scriven asked me a couple more questions just before we started today. Advance care directives could be one of the items in there but also, equally, there are probably a whole lot of other possible end-of-life choices that could be in there. You could have a requirement that the doctor must inform the patient of the possibility that they can refuse medical treatment towards the end of their life.

You could also possibly include a doctor having to inform a patient about what the Hon. Stephen Wade talks about as the 'double effect' rule, that under the Consent to Medical Treatment and Palliative Care Act the patient can have a medical intervention that the doctor knows hastens their death, as long the primary intention of that is to bring about relief and comfort.

These are all things that could be included in there, but I think in terms of care options, the palliative care option is probably the one that is most relevant there. I suspect that was the motivation for the drafting in Victoria, given that they do have the same availability of palliative care options.

They are the answers to the questions that already have been put on notice. Again, I want to reiterate my gratitude to members for the respectful way this has been conducted and for those sorts of general questions to be put on notice to allow a full consideration and a response that helps understand the issues, rather than having a debate where things are brought up to test someone's knowledge on their feet about a specific thing in the bill or where a comma is. As I said, I think this does us a great deal of credit, as we are conducting this debate in a respectful way.

The Hon. D.G.E. HOOD: I will be quite brief initially. I thank the Hon. Mr Maher for his response to my multiple questions that I put on notice to him last time we met to debate this bill. He has obviously put in a good deal of work to compile those answers and I understand there is more detail to come, so I thank him for that.

This is not a love-in, but I think it is appropriate to acknowledge the Hon. Mr Maher's comments about the respectful way in which this debate has been conducted thus far. I think it is very important. I think, frankly, that is what people would expect of us and I am pleased that that is how it has ensued.

It would be remiss of me not to acknowledge that the voluntary assisted dying committee that sprang from this bill looked at all sorts of issues around end-of-life care, including palliative care. That was a productive committee, chaired by the Hon. Mr Maher. Whilst there were very strongly differing opinions on both sides of that debate, it was conducted in a way that I think was befitting of this place and of what we are trying to achieve.

I have a number of amendments, as people know, which I will move, I guess, after dinner now and other members will too. In my discussions with the Hon. Mr Maher, he suggested to me that he may not support any of them. I wish it were otherwise, but that is my expectation. If they will not get up, I do intend to move them anyway because I think the debate is worth having. I will proceed in that direction later this evening when we return after dinner.

The Hon. C.M. SCRIVEN: I would also like to thank the Hon. Mr Maher for providing those answers. I would just note that, in the previous contributions when those questions were put on notice, he had undertaken to come back to me in the break in regard to my question about advance care directives so that I could decide whether or not to move an amendment.

I would like to place on the record that I think it is concerning that, in the bill as proposed, information will be provided about voluntary assisted dying and palliative care but not about the right to refuse care, for example, or indeed the double effect, as the Hon. Mr Maher suggested, could be an extra item that would be important to a person nearing the end of their life. I certainly would have prepared an amendment had I had that answer in the time frame. However, obviously, if the bill passes tonight there is an opportunity between the houses for others to prepare such an amendment.

I would like to just very briefly also place on the record the fact that, in my previous contribution, there have been some public comments saying that the information that I have provided, because it related to the 1990s situation in the Netherlands and the very extensive reviews there, was not relevant because the legislation did not change until the early 2000s. Perhaps those making those comments were unaware that there is a judge-made law, which happened in the Netherlands, whereby euthanasia was able to be accessed, and that is why the Attorney-General in the Netherlands was able to do such an extensive investigation over a number of years.

My points were that the law may not change but the practice does with safeguards ignored, which is the main drawback of any voluntary assisted dying law. Also, in the first years of new legislation there tends to be strict adherence, but culture changes over time and therefore practice changes over time, which is why the less than two years' experience of Victoria is insufficient to form an informed view about whether that legislation is indeed working in the way that it was intended or the way that is appropriate.

Sitting suspended from 17:59 to 19:45.

Clause passed.

Clause 2.

The Hon. D.G.E. HOOD: I state very briefly at the outset of my questions and amendments that none of this is intended to delay—I do not think it will delay—just so that the mover knows. I have a question at clause 2, and I have half a dozen questions roughly, and people are aware of the amendments I have filed. On clause 2, it may be a difficult one for the mover to answer, and perhaps is even a question for the government or the Attorney at some stage, but when would it be proclaimed? Obviously in Victoria there was an 18-month or thereabouts lead-in, and I understand they are doing similar elsewhere. What is the member's intention?

The Hon. K.J. MAHER: The health minister, the Hon. Stephen Wade, I am sure will supplement my answer. The honourable member is correct: it was about an 18-month lead-in time to get all the administrative things needed in place in Victoria. The appointment and the setting up of the Voluntary Assisted Dying Review Board, the training modules required under the act, the Care Navigator Service—there was quite a lot, as the member would appreciate, that went into setting it up. I think the Western Australian scheme comes into operation at the start of July this year, and I think off the top of my head that it may be around a 12-month, or maybe a tiny bit more, time frame.

It might be that it is somewhere around that 12-month time frame. I suspect the Victorian scheme probably will be the longest to do all those things necessary to become operational. My best guess would be 12 months up to 18 months, based on previous experience in other jurisdictions that have already passed this. Of course, we will not be reinventing the wheel, as the health minister pointed out in his second reading contribution. There is a developing Australian model for voluntary assisted dying, which Western Australia, Tasmania and certainly we are implementing very closely. There will be similarities, and my best guess is that it is a 12 to 18-month time frame.

The Hon. S.G. WADE: Thank you, Mr Maher, for suggesting that I might like to add to this. Certainly SA Health does not want to move too quickly. We get dizzy when we move too quickly. The advice from SA Health is that there be significant lead times involved—perhaps 18 to 24 months. Of course, first of all the government needs to decide where the act would be committed, if it passes the parliament, and whether it is committed to the health minister. My understanding is that in other jurisdictions it is, so my expectation is that South Australia would follow course.

Whilst I agree with the comments of the Hon. Kyam Maher that we do benefit from a number of jurisdictions having already implemented this or similar bills, there is always something unique. One of my amendments addresses the consent to medical treatment and palliative care legislation, which is unique to South Australia. That will impact on implementation if the bill is passed.

I think it is also really important to understand the operational issues that our clinicians will need to work through. SA Health convened a clinicians' forum to discuss the bill, and a lot of the issues that were discussed were the sorts of issues that will need to be discussed by clinical networks and not by parliamentarians. The people were talking about: if we are providing palliative care to somebody in a palliative care ward, how does that interact with any other clinicians who might be offering the same person voluntary assisted dying?

To be frank, it has been an issue in Victoria. Perhaps we have less consultation to do or less work to do because legislatively we follow in the footsteps of other jurisdictions, but their experience raises issues that are best discussed and worked through. I suspect we have less work to do legislatively and administratively but we have more work to do in terms of clinical consultation. SA Health is suggesting 18 to 24 months, but that would be very much the responsibility of the government to make an assessment about what are reasonable time frames and to make a proclamation at an appropriate time.

Clause passed.

Clause 3.

The CHAIR: We now come to the first of the amendments on clause 3. It is amendment No. 1 [Hood-1], clause 3, page 10, after line 22.

The Hon. D.G.E. HOOD: This is very much a test amendment and, with your agreement, sir, I will explain what I mean by that. Really, this amendment just inserts the term 'palliative care specialist' into the bill. There is no need to insert that term if my subsequent amendment, that is, amendment No. 6, actually fails.

So with your agreement, sir, it would be my proposal to have the substantive debate on amendment No. 6 now, although I will move the first amendment. If that fails, there will be no need to move amendment No. 6 when I get to it. Is that understandable and acceptable? There being no objection to that in the chamber, I draw members' attention to amendment No. 6 [Hood-1] which, as I said, is the substantive amendment upon which amendment No. 1 [Hood-1] is based.

To further complicate things, I have moved a subsequent amendment to replace amendment No. 6 [Hood-1], which is amendment No. 1 [Hood-2], just to make that clear, and they are very similar. The only difference is that the first amendment called for two palliative care specialists to be involved, but the second amendment, that is, amendment No. 1 [Hood-2], reduces the number of two palliative care specialists to just a single palliative care specialist. It is as simple as that. I move:

Amendment No 1 [Hood–1]—

Page 10, after line 22—Insert:

palliative care specialist means a medical practitioner with expertise in the area of palliative care;

As I said, I will debate the substantive issue and that will determine where we go from there. What is the intention of this amendment? The intention of this amendment is to insert paragraph (e) in clause 13. Clause 13 is a very central clause to the bill that deals with the criteria for access to voluntary assisted dying; so how one qualifies, essentially, for this scheme or program or whatever it is.

It goes through what you might consider a very reasonable list of criteria. That is, they have to be over 18 at least, they must be an Australian citizen ordinarily resident in South Australia, when they make their first request they have lived in South Australia for at least 12 months and they must have decision-making capacity in relation to this issue. Paragraph (d) is the paragraph that I am seeking to amend. I will read it verbatim. It says:

(d) the person must be diagnosed with a disease, illness or medical condition that—

(i) is incurable; and

(ii) is advanced, progressive and will cause death; and

(iii) is expected to cause death within weeks or months, not exceeding 6 months; and

(iv) is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable.

I am seeking to put in paragraph (e), which provides:

(e) [and] a palliative care specialist must have certified, in accordance with any requirements set out in the regulations, that such palliative care as may be reasonably available to the person would not be of therapeutic benefit.

In simple terms, this amendment requires a person seeking euthanasia or voluntary assisted dying to be consulted by a palliative care specialist to ensure that their pain cannot be treated using palliative care. I would argue that that is entirely reasonable. In fact, clause 13(1)(d)(iv) of the bill says that the medical condition 'is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable'. How can we possibly know that it cannot be relieved if that individual has not seen the most qualified type of person in pain management available in order to see if they can relieve their pain?

It is my contention that we cannot know that that pain cannot be relieved if they have not seen a person who has the most tools in their armoury or the most capacity to treat that particular type of pain. As I said, the bill says if the suffering of that person 'cannot be relieved in a manner that the person considers tolerable' but we cannot know that until they have seen somebody qualified to make that decision. I refer to the AMA position statement on euthanasia and physician assisted suicide. Section 1.3 states:

1.3 For most patients at the end of life, pain and other causes of suffering can be alleviated through the provision of good quality end of life care, including palliative care that focuses on symptom relief, the prevention of suffering and improvement of quality of life…

So the AMA is quite clear. They believe that not all but—their word is—'most' patients and most pain can be relieved. I am saying that if the intention of this bill is to allow for those who are at the extreme end—that is, as it says here, they have suffering that cannot be relieved, an incurable disease, etc.—then to really be sure of that we need to put them in front of a palliative care specialist so that they can make that decision. The World Health Organization has stated, and I quote directly:

Palliative care affirms life and regards dying as a normal process. When palliative care of the highest quality is made available to every patient it improves the chances of pain being managed, thus reducing the desire to be euthanased.

The World Health Organization is quite explicit in that, and I will just repeat that last part:

When palliative care of the highest quality is made available to every patient it improves the chances of pain being managed, thus reducing the desire to be euthanased.

I contend that we should give these individuals who are in this precarious situation the opportunity for their pain to be relieved before they take what might be the ultimate solution, and that is to accept assisted suicide. My amendment requires them to have a consultation with a palliative care specialist and then, if the palliative care specialist is of the view that he or she cannot adequately treat that pain, then so be it. The criteria has then been satisfied and the person has satisfied this part of the criteria for physician assisted suicide. That is essentially my position.

The Hon. K.J. MAHER: I thank the mover for his amendment. I have had the benefit—and I think it has been of benefit to both of us—to spend some time this week with the Hon. Dennis Hood discussing his amendments, and I appreciate the ability to have done that. For the benefit of the committee considering this tonight, I will outline that I am intending to oppose all the Hon. Dennis Hood's amendments. I think that comes as no surprise to the Hon. Mr Hood.

One of the overarching reasons, and I will reflect again on the second reading contribution from the health minister, is that I think the amendments the Hon. Dennis Hood is moving, however well intentioned, bring us to departing, and quite often in a quite substantial manner, from the Australian model that Victoria first enacted, that we have seen WA and Tasmania enact and that we are now looking at. I think there is great benefit in having a scheme or schemes around Australia that share substantial similarities. I am not keen to depart greatly from those, and I think this does possibly in a very major way.

There are a few reasons I disagree, and I will go through them briefly. The first one is, as the Hon. Dennis Hood has gone through, those qualifying criteria, if you like. They talk about suffering in a manner that the person does not consider tolerable. I think it is a feature that wherever suffering is required for voluntary assisted dying—as I talked about earlier, the differences in the models in Europe and in the US do not always require that, but I will look further into it later—in all the models that have suffering that is not considered tolerable it is up to the patient to decide that.

It is not something where an outside specialist comes in and tells a patient, 'Your suffering is tolerable.' I think it is reflected in all the Australian models, and I suspect the overseas ones, that it is subjective, that it is up to the patient to determine whether or not that suffering is tolerable. Suffering does not always necessarily mean, although it often does, immediate physical pain.

The substance of the amendment requires the involvement of a palliative care specialist; it was two and I appreciate that it has been refined back to just one. I oppose that insertion, but I oppose even more the idea that they must assert that no palliative care would be of therapeutic benefit. To the first part of that, we already have the coordinating medical practitioner and the consultant medical practitioner, one of whom must be a specialist in the disease, illness or medical condition that affects the patient. There are qualifications that both those medical people involved must have.

I think it is a very significant departure from the Australian model to require another health practitioner as a third person to be involved. For a couple of reasons, I do not think it is a good idea. Firstly, a palliative care specialist might not be the most appropriate person to give that diagnosis about the condition of the person.

The ministerial expert panel in Victoria talks in a number of places about palliative care specialists often being someone who can assist, whether it is in determining a patient's ability to understand, their mental capacity to enter into a voluntary assisted dying scheme or the pain of their condition, but there are a whole lot of others who could also assist, like gerontologists. By having only palliative care specialists, it narrows it down from any other form of medical practitioner or specialist who may be even more appropriate than only a palliative care specialist.

Even more concerning than just that—and we checked this morning—according to the Medical Board of Australia's registrant data for the reporting period of the last quarter of 2020, which was published on 10 February 2021, in South Australia there were 2,185 general practitioners, 4,589 general and specialist practitioners and 27 palliative care doctors. If we are limiting it down to palliative care specialists, which I think is a bad idea to start with, it also means you are quite likely going to have to find one of only 27 people. It would almost certainly deny nearly everyone in a regional area from accessing VAD, to get to that third person, the palliative care specialist, and I think it would substantially and to my view unacceptably limit the number of people who might be able to avail themselves of the scheme.

I appreciate the intention of the amendment but on that part I fundamentally disagree. I even more fundamentally disagree with the second part, that is, the palliative care specialist has to certify that for the person who has the treatment there would be a therapeutic benefit, that is, that there is nothing else that can be done. That even more fundamentally breaches a patient's right to refuse treatment.

The Consent to Medical Treatment and Palliative Care Act very specifically makes it clear that any person can refuse treatment and they can refuse treatment even if that treatment might be life saving. What this amendment would in effect do (if the bill passes) is create a legal option for a person to get a medical intervention, that is, voluntary assisted dying, but only if they have tried everything else.

A person has a right not to try something. I think it is an exceptionally fundamental right of a person to refuse medical treatment. What this would have the effect of doing is to say, 'You have to try this medical treatment if you want to be involved in what would be (if this bill passes) a legal medical intervention.' So, for a range of cascading reasons, I disagree a bit, I disagree quite a lot and I disagree very strongly with things in there. I understand where the Hon. Dennis Hood is coming from but on this one we have a different viewpoint.

The Hon. S.G. WADE: I would like to indicate that I also join the Hon. Kyam Maher in not supporting this amendment. I do agree with the Hon. Kyam Maher that the issue of being able to find medical practitioners in this legislation would be problematic with this amendment if it passed. The proposed amendment would seek to have palliative care specialists certify that the voluntary assisted dying applicant would not benefit from palliative care.

This additional criteria creates a significant barrier to access, requiring the approval of multiple different medical practitioners: one coordinating medical practitioner, one consulting medical practitioner, one specialist medical practitioner (if deemed necessary), in addition to the proposed palliative care specialist. From an implementation perspective, and given the dearth of medical practitioners willing to provide voluntary assisted dying, this proposed amendment I fear would render the bill inoperable in practice.

The amendment, though, raises a key issue for me. My amendment, which we will be discussing later—and I assure the Chair that I will not be dwelling on it—the key purpose of the amendment that I will be moving later is to try to avoid the conflation of palliative care and voluntary assisted dying, and this amendment does exactly that.

It not only, shall we say, does not avoid the conflation that I think is already in the current bill, it actually doubles it. It says, 'Not only are we not clear about the difference between voluntary assisted dying and palliative care, we actually want a palliative care specialist interposed in a voluntary assisted dying process.'

I was very fortunate to be an observer at a clinical forum for SA Health clinicians to discuss this bill. Let's be clear, the Department for Health and Wellbeing and SA Health does not have a view on this bill. There were people in that room who vehemently opposed voluntary assisted dying and there were people who actively supported it, but the overwhelming consensus was that we do not want conflation.

We do not want medical practitioners going into a treatment context and muddying the waters about whether they are providing palliative care or voluntary assisted dying. That forum emphasised that VAD and palliative care should not be conflated. Though most people who seek voluntary assisted dying would also be supported by palliative care and end-of-life services, it is important to clarify that voluntary assisted dying and palliative care are not the same.

Palliative care does not include the practice of voluntary assisted dying, nor is voluntary assisted dying intended to be an alternative to palliative care. Both are part of a range of end-of-life choices. The reason I oppose this amendment is because we need to have that distinction codified in law, and I believe that supporting this amendment would go in the opposite direction.

Respectfully, I disagree with the Hon. Dennis Hood in relying, as he did, on a policy statement of the AMA in support of this amendment. I refer honourable members to the letter sent to me on 3 May by the South Australian President of the Australian Medical Association together with the Chair of the Board of Management of Palliative Care SA, Professor Gregory Crawford. On page 2 of their letter—and I will, in due course, table this so that it might be to the benefit of the parliament going forward—there are two particular paragraphs that are relevant on this point. They refer to the same forum I was present at, and they say:

The forum held on 10 February revealed major practical difference problems in the Victorian experience stemming from confusion between what constitutes voluntary assisted dying and palliative care. For example, a failure to have a clear, common understanding of the difference between these two concepts might cause confusion at the level of governance, transparency of funding and practical provision of care and the functioning of a palliative care service which might also provide VAD services, and this might then flow to a confusion for patients and their families.

This would be especially problematic if health practitioners working within such a service had a conscientious objection to providing voluntary assisted dying. In addition, any confusion in the minds of doctors between palliative care and voluntary assisted dying could have the effect of undermining the provision of good palliative care, with the potential for some doctors then becoming fearful of providing adequate analgesia to terminally ill patients for fear of being accused of actively ending a patient's life without their consent. That is, euthanising their patient.

I would argue, with the support of that letter, that it is very important this bill maintains a clear distinction between palliative care and voluntary assisted dying. With all due respect, I believe the Hon. Dennis Hood's amendment increases the conflation rather than reduces it, so I cannot support this amendment.

The Hon. J.A. DARLEY: For the record, and for the reasons already given by the Minister for Health and the Leader of the Opposition, I indicate I will not be supporting any of the Hon. Mr Hood's amendments.

The Hon. D.G.E. HOOD: I will just make a couple of comments if I may. As I said, I do not want to prolong this. Just to be absolutely crystal clear, I was not at all claiming that the AMA position statement supported my amendment. What I was saying was that section 1.3 clearly states:

For most patients at the end of life, pain and other causes of suffering can be alleviated through the provision of good quality end of life care, including palliative care that focuses on symptom relief, the prevention of suffering and the improvement of quality of life.

I make no further claim than that; merely that that is their position as outlined in their statement.

Clearly, there are differences of opinion in the room, and I think you might expect that with something like this. I make no apology, I guess is the way of putting it, for creating a further barrier. I think physician assisted suicide is something that should be an absolute last resort. We are literally talking about people ending their life, and it literally is the last resort. What may drive someone to making such a request—and what drives many people, we are told—is that they have this unbearable pain. So to give them the opportunity to consult with a palliative care specialist would, in my mind at least, be very helpful.

With respect to the availability of palliative care services around South Australia, I understand there are 26 such centres around the state. I will not read them all—it would take too long—but they do cover many regional areas, including the Adelaide Hills, Ceduna, the Murray Mallee, Port Augusta, Port Lincoln, Whyalla. They are in the Barossa, Clare, Port Pirie, Wallaroo—all of which, I am told, if required have access to a palliative care specialist. Of course, that does not include all the ones in the metropolitan area. That may be a concern that could be dealt with. Certainly, in my conversations with people in palliative care, they maintain that that would be possible, but that is yet to be seen.

The Hon. S.G. WADE: Because I have had a good go I might leave some other comments I was going to make until after the Hon. Clare Scriven. On the point that the honourable member just made, I think we need to appreciate that the commonwealth legislation in relation to telecommunications does not allow communication—I cannot remember the detail, but basically telehealth cannot be used for euthanasia consultations. That being the case, the access that a lot of country services would have to palliative care specialists would not be possible under the honourable member's amendment.

The Hon. C.M. SCRIVEN: I think the objections to this amendment really go to a couple of very pertinent points. The first is that the majority of the discussion, certainly in the public domain outside of this parliament but also inside this parliament, about the reasons we need voluntary assisted dying is because of unrelievable pain.

We all know of and/or have heard of people who have had terminal illnesses that have resulted in a great deal of pain. Palliative care can relieve most of those symptoms, but we are told that it cannot relieve all. If we are saying that it is not essential to actually investigate the benefits of palliative care, it really does cause us to question whether those extreme examples that are being used as the major support for this type of legislation are really what the intention is.

However, I would move on to an even more important point. Being someone from a regional area, if this amendment were to pass it would force investment in palliative care in regional areas as well as elsewhere. We have heard that there are not enough palliative doctors or palliative care services, yet we have also heard that, where voluntary assisted dying legislation is in place, supposedly investment in palliative care increases.

If it is in fact a requirement before someone can access voluntary assisted dying that they do have consultation with a palliative care specialist, that means we will have to provide palliative care specialists. That surely is a good thing. Surely that is consistent with what most of the debate has said, which is that palliative care is an important part of end-of-life choices and, according to the proponents of the bill, is side by side with voluntary assisted dying. I think anything that would force investment in palliative care would be a very positive thing. I also challenge what the Hon. Mr Maher stated. He talked about paragraph (d)(iv):

(d) the person must be diagnosed with a disease, illness or medical condition that…

(iv) is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable.

He then said that this amendment would mean that someone else would decide what is tolerable. That would be true if this amendment was replacing subparagraph (iv), but it is not; it would be in addition to it. So the person would still be deciding whether their suffering would be relieved in a way that is tolerable, but they would also have the benefit of understanding what palliative care can and cannot do.

I think that comes to the crux of the matter, that while people do not have access to a good understanding of what palliative care can do they are not making an informed choice. This amendment would ensure those two things: that palliative care is available and that people are then making an informed choice.

The Hon. F. PANGALLO: I will be supporting the Hon. Dennis Hood's amendment. Interestingly, with regard to this argument, I would like to draw to the attention of members a very interesting article in the current Medical Journal of Australia, where the Victorians are actually grappling with a number of issues as a result of VAD.

I will go further into the aspect that will affect my amendment later on about conscientious objection, but in relation to this I want to read out this section which goes to show that palliative care, according to this Victorian working group, actually needs to work hand in hand with VAD. The section states:

Perhaps the largest challenge was fulfilling the responsibility of a Pathway A public health service to provide VAD as an option while respecting the staff member's decision to conscientiously object to facilitating or being involved in VAD. The need to consider each case individually was highlighted…

It then goes on to give some examples in relation to deaths that occurred under VAD:

Without comparable local evidence, the expected demand for VAD was inferred from international evidence, which predicted that a low number of people would request VAD…

But:

Over a 14-month period (June 2019 to September 2020), the health service received 42 patient requests for VAD, with four patients progressing to a prescription of VAD medications and dying as a result. Three of these four patients died after receiving VAD as inpatients and one died at home after being discharged from the health service.

Here is where it gets interesting. The section continues:

Patients who requested VAD were cared for across a number of services and received concurrent palliative care as part of appropriate end-of-life care management. The patients who died after receiving VAD were cared for in the ward that was most familiar and suited to their needs; palliative care was provided by the treating team, with specialist input as required.

Most VAD requests were from patients in the final weeks of their lives, who therefore did not survive the full length of the VAD assessment process. This observation made it imperative that VAD processes complemented end-of-life care, thus not denying the patient and their loved ones appropriate palliative and bereavement care respectively. Indeed, a core tenet of staff education was that progression of VAD may occur during end-of-life care; therefore, palliative and comfort care must continue concurrently with VAD processes.

Implementing VAD in a hospital setting demanded sensitive, honest and respectful communication between multiple health professional groups and the community, particularly between individuals with opposing views.

So this working group is currently going through some issues that have arisen as a result of the Victorian legislation and, no doubt, if this legislation passes in South Australia, it may well be that South Australia will also need to have a working group looking into the legislation to see how it applies. It seems to support what the Hon. Dennis Hood is saying: that they need to work together and that we need stronger emphasis and input into ensuring there is more palliative care when we introduce this type of legislation. So I will be supporting the amendment.

The Hon. S.G. WADE: With all due respect to the Hon. Frank Pangallo, I strongly support the fact that voluntary assisted dying and palliative care need to work together, but the lessons you were relaying from Victoria actually support the view of trying to avoid conflation. Sure, there are two distinct treatment modalities: palliative care treatments and the voluntary assisted dying treatments. Both of those treatments may be provided in the same facility, the same institution; they need to learn to work together. Yes, they are complementary, but it is very dangerous for them to be conflated.

To further seek to rely on the letter from the AMA and Palliative Care SA about why that is so important, if the committee could indulge me I would like to read another three paragraphs from the letter. The heading is Informed Consent and the letter says:

To be clear about the nature of a treatment, and in this case the intention of the treatment, is an important central tenet of health care and absolutely vital to respect the autonomy of a patient. As in all medical practice, a doctor must clearly explain the nature of a particular treatment and why it is being provided. To obtain informed consent from a patient, it is essential that both the doctor and the patient are absolutely clear whether they are being provided palliative care or voluntary assisted dying. A doctor's responsibility is to offer treatment options and to be clear in their own mind in explaining to a patient why the treatments are being offered. It is not the role of a doctor to unilaterally declare the fate of a patient based on their own values or because they themselves fail to properly understand the difference between treatment options. That is, it is not a doctor's role to play God.

So, while arguments for voluntary assisted dying include patient autonomy and the prevention of others imposing their values onto a patient, the same holds true in reverse. For some patients who do not want voluntary assisted dying or euthanasia, it is important that both the patient and the treating doctor genuinely understand and accept the boundary between palliative care and voluntary assisted dying so that the patient's autonomy can be properly respected in the provision of their care.

On the other hand, clearly defining palliative care and voluntary assisted dying will not undermine the ability of a patient who was waiting for or contemplating voluntary assisted dying to be provided with palliative care. The nature and timing of the two treatments would just need to be clearly explained to the patient.

The two treatments are complementary, but it is really important they are not conflated. If I can be self-indulgent, I am a Christian and I do not believe that voluntary assisted dying is an option that I feel morally able to take up. The conflation would actually make it more difficult for me to get involved with palliative care because the parliament is giving a lack of clarity to the medical practitioners who might be attending to me about what the difference is between the two.

I would strongly urge people who want to stand up for people who do not support voluntary assisted dying as a personal treatment option for them: you are doing them a service if you have clear legislative distinction between voluntary assisted dying and palliative care because, if they will not tolerate voluntary assisted dying, they will still have the moral comfort to be able to engage with palliative care.

The CHAIR: The Hon. Ms Scriven and then I will go to the Hon. Ms Bonaros. We have canvassed this amendment pretty well. We will be approaching a vote, but I will go to the Hon. Ms Scriven.

The Hon. C.M. SCRIVEN: Thank you. My question is to the Hon. Mr Wade. How does ensuring that a patient understands what palliative care can or cannot do, whether it can or cannot be of therapeutic benefit, how does that conflate palliative care with VAD?

The Hon. S.G. WADE: With all due respect, clearly the Hon. Mr Hood's amendment conflates it because it requires the approval team to be blended with palliative care specialists and people involved in the VAD treatment program. They are two separate pathways. People can have a consultation with palliative care specialists about whether palliative care can provide assistance to them in their journey. They can have conversations with the voluntary assisted dying team. It may well be that, within the particular institution, that is being offered by the same practitioners. But in the voluntary assisted dying journey, they are not compelled to have their patient choices determined by clinicians.

I completely agree with the Hon. Kyam Maher's position. I would like to know where else we are going to say that medical practitioners can determine an individual patient's treatment regime. But I think it is extremely important that we avoid conflation. Having mixed teams is clearly conflating.

The Hon. C. BONAROS: For the record, I am seeking to indicate that I will not be supporting the amendments. I agree with the arguments that have been put forward by the Leader of the Opposition and the Minister for Health. While I am on my feet, I want to make an additional observation at this stage of the debate, which I think is very important, and that relates to the use of language during this debate because I think language in this debate is very important.

I think the language in this bill has been very deliberately chosen and I think it is incumbent on all of us here tonight to be mindful of the language we use when speaking about voluntary assisted dying. There have been references to voluntary assisted suicide and to my knowledge that term has not been used in any Australian jurisdiction, but more importantly it does not appear anywhere in this bill. Indeed, clause 5 of the bill addresses this issue specifically when it refers to voluntary assisted dying not being suicide.

I think that is very important for a number of reasons, but first and foremost I think it is very important from a mental health perspective because language does matter and it matters very much in this context. So I am respectfully asking for members to bear that in mind when reflecting on voluntary assisted suicide as opposed to voluntary assisted dying, which is the terminology that we have accepted and has been drafted in the bill before us.

The Hon. I. PNEVMATIKOS: I indicate that I will not be supporting the amendments by the Hon. Mr Hood.

The Hon. N.J. CENTOFANTI: I rise to indicate that I will be supporting the Hon. Mr Hood's amendment. I think it goes to the heart of this bill, which is the voluntary assistance of dying to therefore relieve suffering. The Hon. Kyam Maher spoke about the fact that the patient should be able to determine what is tolerable in terms of suffering, and I do not disagree; I completely agree with the Hon. Kyam Maher that the patient should have that decision.

But I struggle to see how they can make that decision if they have not accessed or at least been informed of any potential form of palliative care that may relieve them of their suffering. If there is potential for the relief of suffering by palliative care, then to ensure that this is realised a palliative care specialist really needs to be involved in this process. Therefore, I support this amendment.

The Hon. I.K. HUNTER: Sir, to assist you in your deliberation, I indicate that I will not be supporting the amendment.

The Hon. E.S. BOURKE: I would also like to put on the record that I will not be supporting this amendment or any other amendments from the Hon. Dennis Hood.

The Hon. D.G.E. HOOD: Just to round it off if I may, Mr Chairman, and then we can move to a vote.

The Hon. K.J. Maher: Are you going to be supporting it?

The Hon. D.G.E. HOOD: I will be supporting the amendment, yes, there is a shock. I want to make a few final comments. I want to be absolutely clear about this: there is nothing in my amendment that takes away a patient's right to refuse palliative care. Simply, that they would be consulted and the options explained that are easily available to those persons is what the amendment does. Specifically, it says:

(e) a palliative care specialist must have certified, in accordance with any requirements set out in the regulations, that such palliative care as may be reasonably available to the person would not be of therapeutic benefit.

That is all. So the specialist has to have a view and then the patient decides what is appropriate for them.

With respect to the comment made by the Hon. Ms Bonaros, I mean no disrespect calling this anything other than voluntary assisted dying. I do not mind what term we use. The reason I have been using those terms is because those are the terms—that is, 'euthanasia' and 'physician assisted suicide'—on the Australian Medical Association's position statement on this issue, so it seems that they are satisfied that it is an acceptable term.

The CHAIR: We have canvassed this very largely, but I will allow the honourable—

The Hon. F. PANGALLO: It will be very brief, and it is just about the language. My honourable colleague raised the issue about suicide and I know that word tends to be quite sensitive to those who are supportive of this legislation, but I will just remind members what the actual definition of suicide is: suicide is the act of intentionally causing one's own death.

The committee divided on the amendment:

Ayes 7

Noes 14

Majority 7

AYES
Centofanti, N.J. Hood, D.G.E. (teller) Lucas, R.I.
Ngo, T.T. Pangallo, F. Scriven, C.M.
Stephens, T.J.
NOES
Bonaros, C. Bourke, E.S. Darley, J.A.
Franks, T.A. Hanson, J.E. Hunter, I.K.
Lee, J.S. Lensink, J.M.A. Maher, K.J. (teller)
Pnevmatikos, I. Ridgway, D.W. Simms, R.A.
Wade, S.G. Wortley, R.P.

Amendment thus negatived; clause passed.

Clause 4.

The CHAIR: We come to clause 4, amendment No. 3 [Hood-1].

The Hon. D.G.E. HOOD: I have a question for the mover of the bill before I determine whether I will move this amendment or not. It deals with clause 4, as you rightly said, sir, and the issue I am particularly interested in is in subclause (1)(d), which reads:

(d) communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

I wonder: what constitutes other means? What gestures are envisaged by this particular clause?

The Hon. K.J. MAHER: I thank the honourable member for his question. It is consistent with other pieces of legislation in South Australia that allow these sorts of wishes to be made known, for example, the Consent to Medical Treatment and Palliative Care Act 1995, regarding determining impaired decision-making capacity, takes into account in section 4(2)(a)(iv) 'communicating his or her decision in any manner'.

The Mental Health Act has a similar provision, communicated decision in any manner, not just 'a manner'. It is a good and reasonable question. It is certainly one that in the many, many hours that I have spent going through this bill and talking to clinicians in South Australia and around other parts of Australia I was interested in, as well.

For example, someone who communicates via an Auslan interpreter cannot use speech so that is a form of communicating. A different example and probably one of the most well-known examples was that of the late Professor Stephen Hawking who could communicate very well about very sophisticated concepts, but who was not able to speak and used a machine. There are people who use electronic aids, who use thumb movements to communicate—there is a whole range of very well-established means of communicating that are used outside of written or spoken communication, and they are used in South Australia, I suspect, every single day by medical practitioners in the treatment of people to understand their needs.

The Hon. D.G.E. HOOD: Yes, in fact, in the discussions I have had subsequent to filing my amendment, one of what I would call a usual supporter of my position actually took issue with this amendment because his view was that in his practice he had had experience of patients blinking for yes and no—blink once for yes and blink two for no. That being the case and I think given the response from the mover I am not inclined to move my amendment.

Clause passed.

New clause 4A.

The CHAIR: We now come to amendment No. 1 [Wade-2] which is the insertion of a new clause on page 12 after line 9. I call the Hon. Mr Wade.

The Hon. S.G. WADE: Thank you, Mr Chair, and I should thank you for referring to me as the Hon. Mr Wade and not the Minister for Health and Wellbeing because it reminds me to restate that this is a conscience vote for Liberal members. This is a private member's bill and I speak only for myself.

In some ways we have already started this conversation. I indicated in response to the Hon. Mr Hood's earlier amendment the importance that I see in avoiding the conflation of palliative care and voluntary assisted dying. Section 17(1) of the Consent to Medical Treatment and Palliative Care Act provides that a—

The CHAIR: The Hon. Mr Wade, this is replacing your original amendment.

The Hon. S.G. WADE: I am moving Wade 1 [Wade-2]—set 2.

The CHAIR: Right, but it replaces set 1.

The Hon. S.G. WADE: Yes, I am moving amendment No. 1 in [Wade-2], and I formally move:

Amendment No 1 [Wade–2]—

Page 12, after line 9—Insert:

4A—Voluntary assisted dying is not palliative care

(1) For the purposes of the law of the State, the administration of a voluntary assisted dying substance to a person in accordance with, or purportedly in accordance with, this Act will be taken not to constitute palliative care of the person.

(2) To avoid doubt, nothing in subsection (1) prevents a person who is providing, or who has provided, palliative care to a person, or an institution at which palliative care is provided to a person, from performing functions or otherwise being involved in the operation of this Act (whether as a coordinating medical practitioner, a consulting medical practitioner or otherwise).

(3) Nothing in this Act limits Part 3 Division 2 of the Consent to Medical Treatment and Palliative Care Act 1995 (and, for the purposes of section 17(1) of that Division, a reference to administering medical treatment in that subsection will be taken not to include a reference to administering a voluntary assisted dying substance to a person in accordance with, or purportedly in accordance with, this Act).

Note—

Section 17 of the Consent to Medical Treatment and Palliative Care Act 1995 provides that a medical practitioner does not incur liability where certain medical treatment incidentally, rather than intentionally, hastens the death of a patient.

The amendment would add an explicit statement in the Voluntary Assisted Dying bill that voluntary assisted dying is not palliative care. Section 17(1) of the Consent to Medical Treatment and Palliative Care Act provides that a medical practitioner responsible for the treatment or care of a patient in the terminal phase of a terminal illness under the Medical Practitioners Division incurs no criminal liability by administering medical treatment with the intention of relieving pain or stress.

A specific and direct reference to section 17(1) in the Voluntary Assisted Dying Bill in my view highlights the difference between the medical practitioner's intention in two situations: firstly, under the Consent to Medical Treatment and Palliative Care Act the intention is to relieve pain or distress, and under the Voluntary Assisted Dying Act the intention is to facilitate death.

Again, I seek the indulgence of the council to read three paragraphs from a letter sent to me and provided to honourable members from the president of the Australian Medical Association and the chairman of the board of management of Palliative Care SA. It starts in Dr Moy's voice where he states:

I write to you alongside clinical academic palliative care medicine physician Professor Greg Crawford who, as its current chair, is representing Palliative Care SA in support of this amendment.

Together we write to you reinforcing the need for your proposed amendment which requires an insertion of a new clause 4A making it clear that voluntary assisted dying is not palliative care.

In doing so, this clause clearly sets out that voluntary assisted dying and palliative care are defined and distinguished by the intention of treatment, with the intention of palliative care and the concept of double effect being solely and directly aimed at treatment and relief of a patient's distressing symptoms, while the intention of voluntary assisted dying is to end an individual's life.

The addition of this amendment would enhance the legislation in creating an explicit reference to section 17(1) of the SA Consent to Medical Treatment and Palliative Care Act 1995, which remains the gold standard of legislation in Australia in setting out the protections for medical practitioners providing treatment under the framework of palliative care and the widely accepted principle of double effect (that is, while providing treatment aimed at the relief of symptoms, the medical practitioner does not incur liability where the treatment incidentally, rather than intentionally, hastens the death of a patient).

In conclusion, because I think I have made the point under two clauses now, I stress the point that I believe that the passage of this legislation, with the greater clarity of the scope of palliative care and the scope of voluntary assisted dying, will actually enhance the practice of palliative care in South Australia.

I have real concerns that there are some medical practitioners under the current Consent to Medical Treatment and Palliative Care Act who do not have clarity about the operation of the act. By having these complementary references in the legislation to stress the distinction, I think we will have better medical practice, because we will have practitioners having more clarity about what medical treatment they are offering and what informed consent they need to obtain. I think that will lead to better palliative care practice in South Australia.

The Hon. C.M. SCRIVEN: The Hon. Mr Wade refers to clarity, which raises a question that perhaps I should have asked at clause 1, but since he was not the mover of the bill I did not do so. Earlier on in the debate and in emails to members of parliament, the Hon. Mr Wade indicated that he might move an amendment in terms of death certificates. This comes to the point of transparency and clarity around how things are described in this case, voluntary assisted dying not being palliative care. Could the Hon. Mr Wade indicate why he has not gone forward with that amendment and any other relevant matters he might think would be useful for transparency?

The Hon. S.G. WADE: With all due respect, the honourable member is misstating what I wrote to members. I think the honourable member is referring to a letter that I sent two months ago, where I conveyed, merely as a messenger, six suggested amendments from the clinicians' forum on 10 February. I indicated that I might move some or none of those amendments and that other members were free to move them if they wished.

I think in that same correspondence I provided questions and answers—'frequently asked questions', as SA Health is inclined to call them—from the Department for Health and Wellbeing, and I did stress that the Department for Health and Wellbeing is agnostic as to whether or not this legislation should be passed. Unlike the termination of pregnancy legislation, which SA Health did support, the department in this context merely seeks to support an informed public discussion. I sent those six suggested amendments. At that stage I did not indicate that I would be moving any of them.

In my second reading contribution, I think I indicated that I would be moving two of those six amendments. Why it was so limited was because of what I also said in my second reading contribution, that I think it is really important that we maximise consistency. I know it can be somewhat galling when ministers quote themselves, but let me explain again by quoting my speech as to why I think consistency is important:

I think it is helpful for patients, for clinicians and for regulatory bodies if the laws in an area of law such as this are similar across Australian jurisdictions. Consistency would support access, it would support quality and safe practice and it would reduce the pressure for what is sometimes called medical tourism.

I support South Australia joining our sister states in enacting the Australian model of voluntary assisted dying. In that context, I want to be clear on my general stance in relation to amendments. I think that the basic framework of the bill is sound and should be supported. I think there is significant value in national consistency of voluntary assisted dying legislation.

Accordingly, I indicate to the council that I will only support amendments to the bill that do not undermine close national consistency, and I will not support the third reading of the bill if the bill is amended in committee in a way that does not maintain close national consistency.

I went on. In the end, I had to ask myself which matters were so important to me that I thought I should move an amendment. I was tempted not to indulge myself with unnecessary amendments, so let me explain why I chose those two. The first one is the importance of maintaining what the AMA describes as the gold standard in palliative care.

We do not want to do anything in this legislation that would undermine an excellent piece of legislation that this parliament has already had the wisdom to pass. We need to make sure that palliative care and voluntary assisted dying are complementary treatments, but they are not conflated. It is in the interests of medical practitioners and their patients that we have clarity in terms of the two treatment modes.

The second and following amendments, because they are all related to the same issue, are to not allow a medical practitioner to be one of the relevant practitioners if a family member is involved or if they would benefit financially. I would argue that that is not a diversion from the Australian model because, whilst Victoria does not have it, Western Australia does have it. I think that it is also not a matter that would disrupt, if you like, the consistency across the regimes. With all due respect to the honourable member, I never proposed that I was going to do an amendment on death certificates.

The Hon. C.M. SCRIVEN: I appreciate the clarification. Certainly, I was simply going from memory. It was not my intention to misrepresent what the Hon. Mr Wade might have said, but one of his comments in regard to transparency just prompted me to remember somewhat vaguely that piece of correspondence. I agree with the Hon. Mr Wade that it is important that clinicians do have protections in terms of the double effect not being conflated with voluntary assisted dying, and therefore I will be supporting this amendment.

The Hon. K.J. MAHER: I rise to indicate that I will be supporting the amendment in the amended form that the Hon. Mr Wade is putting forward. For the sake of the smooth operation of this committee, I will also indicate that I will be supporting the rest of the Hon. Stephen Wade's amendments.

I agree with the Hon. Stephen Wade that neither amendment, and particularly the further amendments that we will come to later on, departs in any significant way from the Australian scheme of voluntary assisted dying. The minister is quite right: the second group of amendments appear in the WA scheme. A lot of those may be obligations that registered medical practitioners would have under a code of ethics and things that govern the way that they practice, but it is in here, and I do not oppose those.

I thank the minister for his discussions about the amendments that he has put forward. I think it has worked well with this slightly amended form. Most people who practise in this area are reasonably comfortable. I will indicate that, whilst I have appreciated those discussions with the minister, I will not get into the habit of engaging in a text message conversation with him at about 4:26 in the morning all that often in the future.

The Hon. S.G. WADE: The honourable member nudges me to properly acknowledge that the second version of the amendments was enhanced by the contribution of the Hon. Kyam Maher, so I thank him for that. I am disappointed that you are not willing to get up early, because that is my habit.

The Hon. R.I. LUCAS: The Hon. Mr Wade refers to the fact that the AMA has referred to Consent to Medical Treatment and Palliative Care Act, in particular clause 17, as the gold standard of palliative care. Given that, can the Hon. Mr Wade indicate whether any group representing palliative care doctors, palliative care society or any other medical association has made a submission either to him or indeed to the mover of the bill that the bill, as currently proposed, will undermine the gold standard?

The Hon. S.G. WADE: With all due respect, the honourable member is asking a broad question that relates to the bill as a package. Those are matters that should be asked of the Hon. Kyam Maher as the sponsor of the bill. I am only moving one amendment, and I would confidently say that, whether or not an individual clinician supports voluntary assisted dying, my expectation would be that this amendment would be welcomed because there are so many palliative care specialists who oppose voluntary assisted dying and are very disturbed about conflation.

As I said earlier, with the lack of clarity between the informed consent that is required and obtained for palliative care, there is concern that, because of that, there are administrations of palliative care that look more like assisted dying. Without a framework like voluntary assisted dying, you cannot be confident that it is voluntary.

The Hon. R.I. LUCAS: I did introduce my question by saying 'either to the mover of the amendment or the mover of the bill'. Given that Mr Wade defers the question to the Hon. Mr Maher, my question is to Mr Maher. Has he received submissions from people representing palliative care doctors who argue that the bill as he has drafted it would undermine the gold standard of the Consent to Medical Treatment Bill?

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