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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-10-17 Daily Xml
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Advance Care Directives (Review) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 September 2023.)

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (16:23): I rise today to speak in support of the Advance Care Directives (Review) Amendment Bill 2022, a bill that mirrors a bill introduced and passed through the Legislative Council in 2021 by the then Liberal government. This bill, importantly, seeks to amend the Advance Care Directives Act 2013 to support and provide health practitioners and the community with necessary, up-to-date legislative provisions that can assist with advance care directives in South Australia.

Advance care directives are an essential legal document that allow for freedom and choice over one of the most challenging periods a person may have to experience through their lifetime. Allowing individuals to communicate their own arrangements for future health care, living arrangements and other personal matters is important to me as a Liberal and as someone who believes in individual choice and freedom of that choice for all citizens.

This bill to amend the act was introduced in response to a statutory review of the Advance Care Directives Act 2013, which was undertaken by Professor Wendy Lacey in 2019. This review made several key recommendations which are reflected in the amendments of this bill and which were supported either in principle or in full by the then Liberal government. These recommendations included:

to include references to digital copies of advance care directive documents;

interactions with other acts and laws;

giving advance care directives where English is not the first language;

changing requirements in relation to appointment of substitute decision-makers and their empowerment;

resolutions of disputes by the Public Advocate; and

referral of certain matters to the tribunal.

These recommendations we now find before us as amendments are the result of significant consultation with various key stakeholders in the industry. Through this process, the previous government was able to build upon relationships and gain new perspectives from those whom this bill directly affects. I would like to thank them for their contributions, in addition to Professor Lacey, and for their hard work in leading us to this point.

One must ask, given this bill has been brought to both places before, how has the government taken nearly a year to introduce such an important bill into parliament? The government promised South Australians, leading into the 2022 election, that health was a priority of theirs, yet after some questionable priorities and a low number of sitting days to date, the fact that we are only now moving this important bill through the second reading stage is disappointing to say the least.

However, I support this amendment bill. I would like to acknowledge the member for Frome's advocacy for the inclusion of the provision that an advance care directive cannot be used as the basis for withholding life-saving treatment following an attempt to suicide or cause self-harm. I also acknowledge that the government filed an equivalent amendment, which passed in the other place, and I indicate that I am supportive of that amendment.

Back in 2013, the Advance Care Directives Act was originally drafted so as not to allow advance care directives to require the withholding of life-saving medical treatment following an attempted suicide or self-harm. If it had allowed this, this act would have almost certainly not been passed at that time. In spite of the legislative intent, there have been a number of cases which have subsequently highlighted a lack of clarity for clinicians on the ground in regard to this provision.

To provide greater clarity to clinicians, the Chief Psychiatrist recommended that a regulation be promulgated to clarify the requirements on health practitioners consistent with the legislative intent. Regulation 12A was promulgated in 2019. In her review, Professor Lacey considered the matter and recommended that the act should be amended to explicitly state in the operative provisions of the act that an advance care directive cannot be used as the basis for withholding life-saving treatment following an attempt to suicide or cause self-harm. The remainder of an otherwise valid advance care directive would be preserved.

Whilst I recognise that everyone has a right to individual choice and to refuse medical treatment, we must ensure there is clarity for health practitioners in providing life-saving treatments following an attempted suicide. This amendment does not force health practitioners to disregard the binding refusals of health care in an advance care directive in the case of attempted suicide or self-harm but provides health practitioners with the responsibility to make an appropriate clinical judgement decision on a case-by-case basis in line with the relevant professional standards and good clinical practice and all the circumstances of the case. In doing so, they would be protected against civil or criminal liability for refusing to comply with an advance care directive provision in the relevant circumstances envisaged in this section.

I think it is important to note that if a person is conscious following a suicide attempt, they would be able to refuse medical treatment, and that is their choice. But situations are not always black and white, and it is important that our medical practitioners have the confidence to do their job without fear of retribution in these often intense, fast-moving, high-stakes clinical situations.

After heavy consultation with the Law Society, I also add that I will be moving an opposition amendment concerning the protection of the validity of the advance care directive, no matter the order of signature by the signatories. Currently, the Advance Care Directives Regulations 2014 require a substitute decision-maker to complete and sign the relevant part of an advance care directive form prior to an advance care directive being executed by the person making the appointment. The rationale is that this sequence of signing will ensure that the person making the appointment is able to inform the substitute decision-maker about their values.

However, in the opposition's view the rigid order of signing provisions provides little assurance that substitute decision-makers understand their roles and responsibilities. On the other hand, they significantly increase the risk that an advance care directive will not be signed by the principal in time for when it is needed. In what is such a tough period for the substitute decision-maker, it is only appropriate to remove provisions which would only further confuse and lengthen the legal process of finalising an advance care directive.

Advance care directives allow individuals to think about their dying wishes, such as situations they might want to avoid or that they would find unacceptable. It also allows individuals to communicate other end-of-life wishes such as their intentions to be an organ and tissue donor, or considerations such as spiritual, religious or cultural traditions. Advance care directives are an important document that we all should be aware of, consider and promote in our communities. I support this amendment bill, which was developed after the important 2019 review, and look forward to its passage with amendments.

The Hon. E.S. BOURKE (16:31): I rise to speak in support of this bill. The Advance Care Directives (Review) Amendment Bill 2022 focuses on making improvements to the legislation governing advance care directives, to improve accessibility, strengthen safeguards and clarify the original intent of the act. The Advance Care Directives Act 2013 was passed by the South Australian parliament in 2013 and commenced on 1 July 2014.

This amendment bill seeks to enhance the operations of the act in response to the statutory review of the act conducted by Professor Wendy Lacey in 2019. The Lacey review made 29 recommendations and was tabled in parliament on 1 August 2019. The former government's response to the review was tabled in parliament on 23 July 2020 and supported, in full or in principle, 22 of the recommendations.

The Malinauskas Labor government is committed to continuing to implement the recommendations of the Lacey review to improve the functioning and uptake of advance care directives (ACDs) in South Australia. The bill includes amendments on the following:

inclusion of references to digital copies of ACD documents;

interaction with other acts and laws;

giving advance care directives where English is not the first language;

requirements in relation to the appointment of substitute decision-makers and their empowerment;

resolution of disputes by the Public Advocate; and

referral of certain matters to the tribunal.

The bill seeks to improve accessibility to advance care directives by making it clearer that digital copies of ACDs are legally valid. During consultation by the Lacey review, it was evident that there is a reluctance to rely on digital copies and so this amendment will provide greater confidence for clinicians.

The bill provides additional safeguards for people who require an interpreter when making an ACD, by ensuring that interpreters are subject to eligibility criteria that prevent the potential for undue influence upon the person making the ACD. The bill aims to clarify that there is no limit to the number of substitute decision-makers that can be appointed and that the person making an ACD can empower their substitute decision-maker to make decisions separately and/or together and in order of preference, if they wish to appoint them in that way.

The bill also removes powers from the Office of the Public Advocate that have never been exercised. During consultation, it was found that there was broad agreement, including by the Public Advocate, that these powers should be removed. To guide the implementation of the recommendations of the review, an advance care planning oversight group and a working group were established by the Department for Health and Wellbeing. This ensures that the implementation of the review has been overseen by a broad range of stakeholders from the health, age, disability, legal and community sectors, including the Australian Medical Association, the Council on the Ageing and the Legal Services Commission of South Australia.

In April 2022, the Malinauskas Labor government, through the Department for Health and Wellbeing, commenced a six-week public consultation on the advance care directives redesign project via YourSAy. The consultation process included focus groups with vulnerable communities to understand the enablers and barriers to completing the ACD form.

The redesign of the ACD form will ultimately make it easier for the South Australian public to complete an ACD and therefore increase accessibility and uptake. The redesign project will see a new ACD form, a DIY guide, website and promotional materials developed, and these will be launched following the passing of the amendment bill and the remaking of the regulations to ensure alignment of legislation with these documents in practice.

In August 2022, the Department for Health and Wellbeing hosted an inaugural community forum to bring together key local government partners we are working with to deliver a peer-led ACD training model across local government areas in SA. This partnership consists of four councils in the southern Adelaide metropolitan area, three councils in the western Adelaide metropolitan area, and three councils in the Fleurieu region, as well as the Murray Mallee region.

In September 2022, the Department for Health and Wellbeing launched new branding and a new look and feel for the Plan Ahead Week, the annual awareness-raising campaign that aims to raise community awareness and literacy about the benefits of early planning and the relevant legal tools.

The Malinauskas Labor government supports strengthening advance care directives legislation to support all South Australians to make clear legal arrangements for their future health care. I commend the bill to the chamber.

Debate adjourned on motion of Hon. H.M. Girolamo.

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