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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

Debate resumed.

The Hon. K.J. MAHER: I thank the Hon. Rob Lucas for his question. I do not think I can remember exactly the nature of submissions that were put forward, but certainly one path we followed that differed from many of the other times this bill has been introduced is that, prior to the bill being introduced in parliament, we had a joint house select committee that spent some 18 months taking evidence. From memory there were about 130 written submissions and dozens of witnesses, both here and in Victoria, as the committee went to look at the operation of the scheme there, who put forward their views.

Certainly, bodies representing palliative care put forward their view. The consultation was over 18 months and ended some time ago. I cannot remember exactly the nature of the submissions, but I think it is fair to say—and as representatives of this chamber, the Hon. Dennis Hood served on that committee, as did the Hon. Mark Parnell, who up until recently was a member of this chamber—that we took a range of views, from very supportive to very unsupportive and everything in between.

It is some time since that committee did its thorough work and took submissions from all those stakeholders. I am sure there would have been some clinicians who probably expressed those views, but I cannot remember the exact details of all of them.

The Hon. J.A. DARLEY: For the record, I indicate that I will support the Hon. Stephen Wade's amendment and all other amendments of the member.

The Hon. C. BONAROS: I rise to indicate that I will be supporting the Hon. Mr Wade's amendment. I indicated at the outset during my second reading contribution that I will not support any substantive amendments that depart from the Australian scheme, as has been explained by the Hon. Kyam Maher and the Hon. Stephen Wade. In any event, I think for the reasons the Hon. Mr Wade has outlined in relation to the conflation of voluntary assisted dying and palliative care, this is an important amendment and as such we will be supporting it.

The Hon. I. PNEVMATIKOS: I also indicate that I will support the amendments of the Hon. Mr Wade because the bill needs to draw a distinction between the two processes but also acknowledge they can be complementary. I think the amendment does that.

The Hon. R.P. WORTLEY: I indicate that I will be supporting the amendment of Mr Wade and all his other amendments.

New clause inserted.

Clause 5.

The CHAIR: We now move to clause 5, amendment No. 3 [Hood-1]. You are just opposing this clause? You are not moving an amendment as such?

The Hon. D.G.E. HOOD: Correct, Mr Chairman, although I have a question before I proceed with that because I may not proceed. This intrigues me a little bit because you do hear this issue in these debates around the world. Some places around the world choose to consider that voluntary assisted dying—assisted suicide—is not considered to be suicide in a legal sense. I ask the question: why did the member choose to include this in the bill? I note that my understanding is that it is not in the Victorian act. I think that is right, so what was it that made the member include this in his bill?

The Hon. K.J. MAHER: I thank the member for the question. I think the Hon. Connie Bonaros has talked about language and the importance of the language we use. Much of the life's work of the Chair of the committee today in this chamber has been in suicide prevention. I think it is very important to recognise the difference between the two. The expert ministerial panel in Victoria discussed this at some length. Around page 145 to 150 in their report was the distinction between the two.

In a very practical sense, there are legal ramifications. In terms of potential superannuation or annuities, there are very real practical considerations. Should this bill pass and should this scheme operate in South Australia, someone who is availing themselves of a perfectly legal medical intervention might be penalised if it was suicide, in terms of some of those legal ramifications.

From a very practical sense, someone who is admitted and given approval under this scheme is going to die. They are suffering a terminal disease that two medical practitioners, one of them a specialist in that area, have determined a prognosis of less than six months to live, or 12 months for a neurodegenerative disease.

According to medical expertise, they are going to die from the condition they suffer from. They would not be able to be part of the scheme unless that was the case. It is necessarily the case that the considered view is that they are going to die. The fact of the matter that there is an intervention that, in my view, helps alleviate that suffering and with dignity does not take away from the fact that, if it were not but for that condition, they are going to die.

Andrew Denton, who many people would be familiar with, who is a very persuasive advocate in this area, describes the difference between these two in a very easy to understand way, with reference to New York in 2001 when the World Trade Centres had planes fly into them—the fall or the fire. The chief medical officer of New York did not record those people who elected to jump out of the building that was to collapse as suicides. He recorded them as homicides due to terrorism.

The very act of jumping out, if you accept that argument is suicide, ignores the fact that, faced with the choice of fire or fall, some people chose fall knowing full well that they would die from the natural consequence of the fire in the building. I think that is an apt analogy. You would be dying and succumb to your condition by the very nature of being involved in this scheme and the fact that there is an intervention that hastens your death should not detract from that.

Similarly, also under our Consent to Medical Treatment and Palliative Care Act, if you refuse medical intervention you are not committing an act of suicide by refusing intervention, even though it might have the effect of saving your life. I think they are two really important distinctions and that is why I think it is important that this clause is in the bill.

The Hon. S.G. WADE: I indicate that I support what the Hon. Kyam Maher has just said. I am also advised that it might have relevance in terms of medical codes. This clause ensures that a person who performs an act or omission in relation to a person will not be in breach of professional standards or codes of conduct.

The Hon. D.G.E. HOOD: I do not intend to move this amendment anyway.

Clause passed.

Clauses 6 to 8 passed.

New clause 8A.

The Hon. F. PANGALLO: I move:

Amendment No 1 [Pangallo–1]—

Page 13, after line 34—After clause 8 insert:

8A—Conscientious objection of entities providing health care

(1) A relevant service provider has the right to refuse to authorise or permit the carrying out, at a health service establishment operated by the relevant service provider, of any part of the voluntary assisted dying process in relation to any patient at the establishment (including any request or assessment process under this Act).

(2) A relevant service provider may include in the terms and conditions of acceptance of any patient into the health service establishment an acknowledgment by the patient that the patient—

(a) understands and accepts that the relevant service provider will not permit the establishment to be used for purposes of, or incidental to, voluntary assisted dying; and

(b) agrees, as a condition of entry, that they will not seek or demand access to voluntary assisted dying at the establishment.

(3) Subsection (4) applies in relation to a patient at a health service establishment if the patient advises a person employed or engaged by the relevant service provider at that health service establishment that they wish to access voluntary assisted dying.

(4) If this subsection applies in relation to a patient at a health service establishment, the relevant service provider who operates the establishment must ensure that—

(a) the patient is advised of the relevant service provider's refusal to authorise or permit the carrying out at the health service establishment of any part of the voluntary assisted dying process; and

(b) arrangements are in place whereby the patient may be transferred to another health service establishment or prescribed health facility at which, in the opinion of the relevant service provider, a registered health practitioner who does not have a conscientious objection to voluntary assisted dying is likely to be able to participate in a voluntary assisted dying process in relation to the patient; and

(c) reasonable steps are taken to facilitate the transfer referred to in paragraph (b) if requested by the patient.

(5) In this section—

health service establishment means each of the following:

(a) a private hospital within the meaning of the Health Care Act 2008 or other private health facility of a kind prescribed by the regulations;

(b) premises owned or operated by a residential care provider as defined in section 41-3 of the Aged Care Act 1997 of the Commonwealth;

relevant service provider means a person or body that operates a health service establishment.

I would hope that members on both sides, particularly those who will be supporting the bill, will see that this is actually a fair and reasonable amendment that dovetails with clause 9 regarding conscientious objection of registered health practitioners.

Basically, this amendment covers the providers, the entities that actually provide health care—those that will have a conscientious objection because of who they are and who they represent. An example of that would be Calvary, which is of course through the Catholic Church. As members would know, they are opposed to VAD. They have told me, and health practitioners in that system have said, that while there is that conscientious objection for the health practitioners overall, it does not actually cover the entities that they work for.

I think it is only fair that if the service provider does have a conscientious objection to VAD they would not allow VAD to be carried out in their premises. Essentially, this amendment covers the health practitioners who work in there. I will go into what it does now. The relevant service provider could be a hospital—as I mentioned, it could be Calvary—an aged-care facility that may well be under the auspices of the Catholic Church or a Christian organisation that does not support VAD. It would also encompass aged-care facilities that would either have operators or staff who would be opposed to VAD.

It would work in such a way that the terms and conditions of accepting any patient into the hospital would be such that when the patient comes into the hospital, they understand and accept that that establishment would not permit it to be used for purposes of or incidental to voluntary assisted dying, and the patient agrees upon entry that they will not seek or demand access to voluntary assisted dying at that establishment. I think that is quite reasonable.

Furthermore, through this amendment the establishment would advise the patient of the service provider's refusal. They could also make arrangements whereby the patient may be transferred to another health service establishment or prescribed health facility where, in the opinion of the relevant service provider, a registered health practitioner who does not have a conscientious objection to voluntary assisted dying is likely to be able to participate in a voluntary assisted dying process in relation to the patient.

In other words, if a patient wants to be admitted into a hospital like the Calvary, perhaps with a view to voluntary assisted dying as the end result, the Calvary would inform that patient that VAD is not to be carried out on those premises because they have a conscientious objection to that. If they wish to be admitted, they must understand those conditions. In the event that while they are there they do want to access VAD, the provider will enable that patient to go to a premises where it is carried out—it could be the Royal Adelaide Hospital, for instance.

I just want to go back to the article I was quoting from earlier in the current edition of the Medical Journal of Australia. As I pointed out, under their act, the Victorians have been required to review and have a look at the workings of their VAD laws. In mid-2018, they established a VAD working group with senior professional executive representation, which included the Chief Medical Officer, the General Counsel, the Executive Director of Nursing and Midwifery, relevant medical heads of units, senior nurses, allied health representatives and a senior clinical communications adviser. They looked at various issues that have arisen since that.

The clinical communications adviser conducted consultations with 25 working group members to explore the impact of VAD legislation on their professional group and clinical practice between September and December 2018. The outcomes of these consultations highlighted the systemic and ethical complexities inherent in implementing VAD and informed the next steps, including the need to engage with a range of appropriately skilled and experienced clinicians throughout the implementation phase.

A key consideration during the implementation phase was balancing staff members' right to conscientiously object to supporting patients when the assistance was related to VAD, with the expectation that health professionals would continue to provide care unrelated to VAD. Capacity for moral injury for staff whose beliefs and values were at odds with the employing organisation's approach to VAD needed to be recognised and addressed throughout the implementation process.

The article then goes on to say that a survey of medical professionals was undertaken in 2019. They were invited to complete an anonymous survey asking them to indicate their willingness to participate in VAD. The survey achieved 208 responses, which was a 17 per cent response rate, with 106 of those from senior medical staff and 72 per cent of respondents supporting a patient's access to VAD at the health service. In addition, eight senior medical staff members expressed a willingness to be involved in the facilitation of VAD. The survey results guided the health service's management to determine pathway A as the appropriate model of care for this health service.

In parallel with the survey, training for VAD was provided by the DHHS-led Voluntary Assisted Dying Implementation Taskforce. During these sessions, the need for local VAD procedures were identified as staff members required further guidance to navigate patients' requests for VAD and to ensure the health service adhered to legislative requirements. Importantly, the procedures need to support the right of staff to conscientiously object to VAD while fulfilling lawful access to care.

While the Hon. Kyam Maher's bill addresses the conscientious objection to health practitioners, I think it is just that it also covers the service providers who provide a similar service to public hospitals or aged-care facilities and that those providers do have a right to express their own conscientious objection to VAD. After all, if that is their approach and their policy against VAD, they should have the right to have that conscientious objection. VAD does present quite a moral and ethical dilemma for these organisations. I hope the Hon. Kyam Maher recognises that and agrees to this amendment.

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