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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-06-10 Daily Xml
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Bills

Voluntary Assisted Dying Bill

Final Stages

The House of Assembly agreed to the bill with the amendments indicated by the following schedule, to which amendments the House of Assembly desires the concurrence of the Legislative Council:

No. 1 Clause 8, page 13, after line 31 [clause 8(1)]—Insert:

(k) every person has the right to make decisions about medical treatment options freely and not as a consequence of the suggestion, pressure, coercion or undue influence of others.

No. 2 New clause, page 14, after line 19—Insert:

10A—Conscientious objection of operators of certain health service establishments

(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 the 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) To avoid doubt, this section does not apply to, or in relation to, a patient accepted into a health service establishment before the commencement of this section.

(6) In this section—

health service establishment means—

(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; or

(b) the whole or part of any other private institution, facility, building or place that is operated or designed to provide inpatient or outpatient treatment, diagnostic or therapeutic interventions, nursing, rehabilitative, palliative, convalescent, preventative or other health services (including, to avoid doubt, places of short-term respite care); or

(c) any other health service establishment of a kind prescribed by the regulations,

but does not include prescribed residential premises, or any establishment declared by the regulations not to be included in the ambit of this definition;

prescribed residential premises means—

(a) a facility (within the meaning of Part 1 A);

(b) any other residential premises of a kind prescribed by the regulations;

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

No. 3 New Part, page 15, after line 17—Insert:

Part 1A—Conscientious objection of operators of certain residential facilities

Division 1—Preliminary

13A—Interpretation

In this Part—

deciding practitioner, for a decision about the transfer of a person, means—

(a) the coordinating medical practitioner for the person; or

(b) if the coordinating medical practitioner for the person is not available, another medical practitioner nominated by the person;

facility means—

(a) a nursing home, hostel or other facility at which accommodation, nursing or personal care is provided to persons on a residential basis who, because of infirmity, illness, disease, incapacity or disability, have a need for nursing or personal care; or

(b) a residential aged care facility;

relevant entity means an entity, other than a natural person, that provides a relevant service;

relevant service means a residential aged care service or a personal care service;

residential aged care means personal care or nursing care (or both) that is provided to a person in a residential facility in which the person is also provided with accommodation that includes—

(a) staffing to meet the nursing and personal care needs of the person; and

(b) meals and cleaning services; and

(c) furnishings, furniture and equipment for the provision of that care and accommodation;

residential aged care facility means a facility at which residential aged care is provided, whether or not the care is provided by an entity that is an approved provider under the Aged Care Quality and Safety Commission Act 2018 of the Commonwealth;

residential facility does not include—

(a) a private home; or

(b) a hospital or psychiatric facility; or

(c) a facility that primarily provides care to people who are not frail and aged.

13B—Meaning of permanent residents of certain facilities

(1) A person is a permanent resident at a facility if the facility is the person's settled and usual place of abode where the person regularly or customarily lives.

(2) A person is a permanent resident at a facility that is a residential aged care facility if the person has security of tenure at the facility under the Aged Care Act 1997 of the Commonwealth or on some other basis.

(3) A person is not a permanent resident at a facility if the person resides at the facility temporarily.

Division 2—Information about voluntary assisted dying

13C—Access to information about voluntary assisted dying

(1) This section applies if—

(a) a person is receiving relevant services from a relevant entity at a facility; and

(b) the person asks the entity for information about voluntary assisted dying; and

(c) the entity does not provide at the facility, to persons to whom relevant services are provided, the information that has been requested.

(2) The relevant entity and any other entity that owns or occupies the facility—

(a) must not hinder the person's access at the facility to information about voluntary assisted dying; and

(b) must, on request, allow reasonable access to the person at the facility by a registered health practitioner or other person to enable the registered health practitioner or other person to personally provide the requested information about voluntary assisted dying to the person.

Division 3—Request and assessment process

13D—Application of Division

This Division applies if a person is receiving relevant services from a relevant entity at a facility.

13E—First requests and final requests

(1) This section applies if—

(a) the person or the person's agent advises the relevant entity that the person wishes to make a first request or final request (each a relevant request); and

(b) the entity does not provide, to persons to whom relevant services are provided at the facility, access to the request and assessment process at the facility.

(2) The relevant entity and any other entity that owns or occupies the facility must allow reasonable access to the person at the facility by a medical practitioner—

(a) whose presence is requested by the person; and

(b) who—

(i) for a first request—is eligible to act as a coordinating medical practitioner; or

(ii) for a final request—is the coordinating medical practitioner for the person.

(3) If the requested medical practitioner is not available to attend, the relevant entity must take reasonable steps to facilitate the transfer of the person to and from a place where the person's relevant request may be made to—

(a) the requested medical practitioner; or

(b) another medical practitioner who is eligible and willing to act as a coordinating medical practitioner.

13F—First assessments

(1) This section applies if—

(a) the person has made a first request; and

(b) the person or the person's agent advises the relevant entity that the person wishes to undergo a first assessment; and

(c) the entity does not provide, to persons to whom relevant services are provided at the facility, access to the request and assessment process at the facility.

(2) If the person is a permanent resident at the facility—

(a) the relevant entity and any other entity that owns or occupies the facility must allow reasonable access to the person at the facility by a relevant practitioner for the person to assess the person; and

(b) if a relevant practitioner is not available to attend—the relevant entity must take reasonable steps to facilitate the transfer of the person to and from a place where the person's assessment may be carried out by—

(i) the relevant practitioner; or

(ii) another medical practitioner who is eligible and willing to act as a relevant practitioner.

(3) If the person is not a permanent resident at the facility—

(a) the relevant entity must take reasonable steps to facilitate the transfer of the person to and from a place where the person's first assessment may be earned out by a relevant practitioner for the person; or

(b) if, in the opinion of the deciding practitioner, transfer of the person as described in paragraph (a) would not be reasonable in the circumstances, the entity and any other entity that owns or occupies the facility must allow reasonable access to the person at the facility by a relevant practitioner for the person.

(4) In making a decision referred to in subsection (3)(b), the deciding practitioner must have regard to the following:

(a) whether the transfer would be likely to cause serious harm to the person;

(b) whether the transfer would be likely to adversely affect the person's access to voluntary assisted dying;

(c) whether the transfer would cause undue delay and prolonged suffering in accessing voluntary assisted dying;

(d) whether the place to which the person is proposed to be transferred is available to receive the person;

(e) whether the person would incur financial loss or costs because of the transfer.

(5) In this section—

relevant practitioner for a person, means—

(a) the coordinating medical practitioner for the person; or

(b) a registered health practitioner to whom the coordinating medical practitioner for the person has referred a matter under section 22.

13G—Consulting assessments

(1) This section applies if—

(a) the person has undergone a first assessment; and

(b) the person or the person's agent advises the relevant entity that the person wishes to undergo a consulting assessment; and

(c) the entity does not provide, to persons to whom relevant services are provided at the facility, access to the request and assessment process at the facility.

(2) If the person is a permanent resident at the facility—

(a) the relevant entity and any other entity that owns or occupies the facility must allow reasonable access to the person at the facility by a relevant practitioner for the person to assess the person; and

(b) if a relevant practitioner is not available to attend—the relevant entity must take reasonable steps to facilitate the transfer of the person to and from a place where the person's assessment may be carried out by—

(i) the relevant practitioner; or

(ii) another medical practitioner who is eligible and willing to act as a relevant practitioner.

(3) If the person is not a permanent resident at the facility—

(a) the relevant entity must take reasonable steps to facilitate the transfer of the person to and from a place where the person's assessment may be carried out by a relevant practitioner for the person; or

(b) if, in the opinion of the deciding practitioner, transfer of the person as described in paragraph (a) would not be reasonable in the circumstances, the entity and any other entity that owns or occupies the facility must allow reasonable access to the person at the facility by a relevant practitioner for the person.

(4) In making a decision referred to in subsection (3)(b), the deciding practitioner must have regard to the following:

(a) whether the transfer would be likely to cause serious harm to the person;

(b) whether the transfer would be likely to adversely affect the person's access to voluntary assisted dying;

(c) whether the transfer would cause undue delay and prolonged suffering in accessing voluntary assisted dying;

(d) whether the place to which the person is proposed to be transferred is available to receive the person;

(e) whether the person would incur financial loss or costs because of the transfer.

(5) In this section—

relevant practitioner for a person, means—

(a) the consulting medical practitioner for the person; or

(b) a registered health practitioner to whom the consulting medical practitioner for the person has referred a matter under section 31.

13H—Written declarations

(1) This section applies if—

(a) the person has been assessed as eligible for access to voluntary assisted dying; and

(b) the person or the person's agent advises the relevant entity that the person wishes to make a written declaration ; and

(c) the entity does not provide, to persons to whom relevant services are provided at the facility, access to the request and assessment process at the facility.

(2) If the person is a permanent resident at the facility—

(a) the relevant entity and any other entity that owns or occupies the facility must allow reasonable access to the person at the facility by the coordinating medical practitioner for the person and any other person lawfully participating in the person's request for access to voluntary assisted dying to enable the person to make a written declaration; and

(b) if the coordinating medical practitioner is not available to attend—the relevant entity must take reasonable steps to facilitate the transfer of the person to and from a place where the person may make a written declaration.

(3) If the person is not a permanent resident at the facility—

(a) the relevant entity must take reasonable steps to facilitate the transfer of the person to and from a place where the person may make a written declaration; or

(b) if, in the opinion of the deciding practitioner, transfer of the person as described in paragraph (a) would not be reasonable in the circumstances, the entity and any other entity that owns or occupies the facility must allow reasonable access to the person at the facility by a relevant practitioner for the person and any other person lawfully participating in the person's request for access to voluntary assisted dying.

(4) In making a decision referred to in subsection (3)(b), the deciding practitioner must have regard to the following:

(a) whether the transfer would be likely to cause serious harm to the person;

(b) whether the transfer would be likely to adversely affect the person's access to voluntary assisted dying;

(c) whether the transfer would cause undue delay and prolonged suffering in accessing voluntary assisted dying;

(d) whether the place to which the person is proposed to be transferred is available to receive the person;

(e) whether the person would incur financial loss or costs because of the transfer.

(5) In this section—

relevant practitioner for a person, means—

(a) the coordinating medical practitioner for the person; or

(b) a registered health practitioner to whom the coordinating medical practitioner for the person has referred a matter under section 31.

131—Application for voluntary assisted dying permit

(1) This section applies if—

(a) the person has made a final request; and

(b) the person or the person's agent advises the relevant entity that the person wishes to make an application for a voluntary assisted dying permit; and

(c) the entity does not provide, to persons to whom relevant services are provided at the facility, access to a person's coordinating medical practitioner to enable such an application to be made.

(2) If the person is a permanent resident at the facility—

(a) the relevant entity and any other entity that owns or occupies the facility must allow reasonable access to the person at the facility by the coordinating medical practitioner for the person to consult with and assess the person in relation to the application; and

(b) if the coordinating medical practitioner is not available to attend—the relevant entity must take reasonable steps to facilitate the transfer of the person to and from a place where consultation and assessment of the person can occur in relation to the application in consultation with, and on the advice of—

(i) the coordinating medical practitioner; or

(ii) another medical practitioner who is eligible and willing to act as the coordinating medical practitioner for the person.

(3) If the person is not a permanent resident at the facility—

(a) the relevant entity must take reasonable steps to facilitate the transfer of the person to and from a place where the coordinating medical practitioner for the person can consult with and assess the person in relation to the application; or

(b) if, in the opinion of the deciding practitioner, transfer of the person as described in paragraph (a) would not be reasonable in the circumstances—the relevant entity and any other entity that owns or occupies the facility must allow reasonable access to the person at the facility by the coordinating medical practitioner for the person to consult with and assess the person in relation to the application.

(4) In making a decision referred to in subsection (3)(b), the deciding practitioner must have regard to the following—

(a) whether the transfer would be likely to cause serious harm to the person;

(b) whether the transfer would be likely to adversely affect the person's access to voluntary assisted dying;

(c) whether the transfer would cause undue delay and prolonged suffering in accessing voluntary assisted dying;

(d) whether the place to which the person is proposed to be transferred is available to receive the person;

(e) whether the person would incur financial loss or costs because of the transfer.

Division 4—Accessing voluntary assisted dying and death

13J—Administration of voluntary assisted dying substance

(1) This section applies if—

(a) an application for a voluntary assisted dying permit has been made in respect of the person and a permit issued; and

(b) the person or the person's agent advises the relevant entity that the person wishes to self administer a voluntary assisted dying substance or have the coordinating medical practitioner for the person administer a voluntary assisted dying substance to the person; and

(c) the relevant entity does not provide, to persons to whom relevant services are provided at the facility, access to the administration of a voluntary assisted dying substance at the facility.

(2) If the person is a permanent resident at the facility, the relevant entity and any other entity that owns or occupies the facility must—

(a) if a practitioner administration permit is issued in respect of the person— allow reasonable access to the person at the facility by the coordinating medical practitioner and any other person lawfully participating in the person's request for access to voluntary assisted dying for the person to make an administration request and for the coordinating medical practitioner to administer a voluntary assisted dying substance to the person; or

(b) if a self administration permit is issued in respect of the person—

(i) allow reasonable access to the person at the facility by a person lawfully delivering a voluntary assisted dying substance to the person, and any other person lawfully participating in the person's request for access to voluntary assisted dying; and

(ii) not otherwise hinder access by the person to a voluntary assisted dying substance.

(3) If the person is not a permanent resident at the facility—

(a) the relevant entity must take reasonable steps to facilitate the transfer of the person to a place where the person may be administered or may self administer a voluntary assisted dying substance; or

(b) if, in the opinion of the deciding practitioner, transfer of the person as described in paragraph (a) would not be reasonable in the circumstances, subsection (2) applies in relation to the person as if the person were a permanent resident at the facility.

(4) In making the decision under subsection (3)(b), the deciding practitioner must have regard to the following—

(a) whether the transfer would be likely to cause serious harm to the person;

(b) whether the transfer would be likely to adversely affect the person's access to voluntary assisted dying;

(c) whether the transfer would cause undue delay and prolonged suffering in accessing voluntary assisted dying;

(d) whether the place to which the person is proposed to be transferred is available to receive the person;

(e) whether the person would incur financial loss or costs because of the transfer.

Division 5—Information about non-availability of voluntary assisted dying at certain facilities

13K—Relevant entities to inform public of non-availability of voluntary assisted dying at facility

(1) This section applies to a relevant entity that does not provide, at a facility at which the entity provides relevant services, services associated with voluntary assisted dying (including, without limiting this subsection, access to the request and assessment process or access to the administration of a voluntary assisted dying substance).

(2) The relevant entity must publish information about the fact the entity does not provide any services, or services of a specified kind, associated with voluntary assisted dying at the facility.

(3) The relevant entity must publish the information in a way in which it is likely that persons who receive the services of the entity at the facility, or may in future receive the services of the entity at the facility, become aware of the information.

No. 4 Clause 14, page 15, after line 36 [clause 14(1)]—Insert:

and

(e) the person must be acting freely and without coercion.

No. 5 New clause, page 54, after line 14—Insert:

115A—Minister to report annually on palliative care spending

(1) The Minister must, on or before 31 December in each year, cause a report to be prepared and provided to the Minister setting out—

(a) the total amount spent by South Australians on palliative care during the financial year ending on 30 June of that year (determined by reference to data provided by the Independent Hospital Pricing Authority established under the National Health Reform Act 2011 of the Commonwealth); and

(b) the aggregated amounts spent by South Australians on palliative care during the preceding 5 financial years; and

(c) the variation in—

(i) the total amount spent by South Australians on palliative care during the year to which the report relates compared with the immediately preceding financial year; and

(ii) the aggregated amounts spent by South Australians on palliative care during the 5 financial years immediately preceding the year to which the report relates compared with the corresponding amount reported in the most recent previous report,

expressed both in terms of an amount of money spent and as a percentage increase or decrease in the amount spent during the relevant periods; and

(d) any other information required by the regulations,

and must, within 6 sitting days after receiving the report, have copies of the report laid before both Houses of Parliament.

(2) If the variation referred to in subsection (1)(c)(ii) indicates a reduction in the amount spent by South Australians on palliative care from the corresponding amount reported in the most recent previous report, the Minister must cause a review of the operation of this Act to be conducted and a report of the review prepared and submitted to the Minister.

(3) A review and report under subsection (2) must be completed not later than 3 months after the Minister becomes aware of the variation.

(4) The Minister must cause a copy of a report submitted under subsection (2) to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

(5) This section is in addition to, and does not derogate from, a provision of any other Act or law that requires or authorises the Minister to report to Parliament.

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