Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-11-25 Daily Xml

Contents

Statutes Amendment (Health and Wellbeing) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2025.)

The Hon. J.M.A. LENSINK (11:37): I rise to speak on the Statutes Amendment (Health and Wellbeing) Bill. The Liberal Party will be supporting the bill, but I am not about to sit down just yet—I know you are all on the edge of your seat. Much of the detailed examination has already taken place in the House of Assembly, where my colleagues the member for Schubert, Ashton Hurn, and the member for Frome, Penny Pratt, worked through a number of issues in great detail. I am not going to repeat that work, you will be pleased to know, in what should be called not only the last sitting week but the dog-ate-my-homework week, where ministers do like to put things through with inordinate haste. That may or may not be true in this case, but I will have some comments on that in a moment.

The bill makes a series of amendments across several health statutes following some reviews which were conducted over recent years. Many of these amendments are technical in nature and are aimed at improving alignment, updating terminology and the like. It is always important that we modernise legislation and ensure that it is up to date and considered within a modern context.

One of the areas in the bill is in relation to substitute decision-making through amendments to the Guardianship and Administration Act. These amendments do the following—and I think these are probably the ones that have had the most attention in the advice on these particular clauses. Amendment to section 31: in terms of a protected person who is admitted as an inpatient at an incorporated hospital—which is most of them—the guardian for the protected person may, subject to the terms of the guardianship order, determine that the protected person, on being discharged from the incorporated hospital, is to reside at a specified residential aged-care facility; authorise the detention of the protected person for the purpose of transporting them; and authorise the detention of the protected person at the residential aged-care facility. The amendment of section 32 is consequential on the grant of powers to a guardian.

These have received some recent attention from the Aged Rights Advocacy Service (ARAS) and particularly Mr Richard Bruggemann, who is a former aged person of the year, for want of a better term. He has expressed concerns, which I will also turn to. The frameworks in relation to substitute decision-making are obviously very important to protect people who can no longer advocate for themselves, while allowing particular decisions to be made in a timely manner. It is obviously a sensitive area of law. I think on face value the amendments are appropriate, but we will continue to observe how those provisions operate in practice, particularly for those with cognitive impairment or limited support networks.

I do note that ARAS and Mr Bruggemann have raised concerns about people who have dementia. I have a lot of personal experience with this. If it were up to my parents, they would be living at home, and my dad would be driving his car. Even though he has passed away, he would still be driving his car! That is how attached to driving his car he was. I say that just by way of making the point that people with dementia often lack insight into their situation, particularly their own safety. We needed to have interventions for both my parents at different times.

My mother screamed the emergency department down. I felt like I was betraying her. I insisted she needed to be in aged care. She was not safe at home. My dad had a capacity to get lost while driving his car, and I had to file a missing person report the last time that happened. We sort of called time on that one and said, 'You can't do this anymore.' He lived with me for six weeks, and that was too much for me to handle, so he went into respite and then subsequently into aged care, thankfully in the same facility as my mum.

Often people with dementia have no understanding of the situation they are in. My mother was constantly asking to go home. She did settle eventually; they both did. I think it was helpful when they were both there together. My dad came to me after the first week at my place and said, 'I want to go home.' I said, 'You can't live on your own anymore,' because I was not even sure if he was eating meals.

I think, on balance, because of the safety issues and the administrative issues—I know SACAT is quite an arduous process as well, having also been through that. It is no excuse that SACAT can be quite not timely. Some of the questions we were asked when we were obtaining a change in the orders to prevent my mother from being the guardian for my father—or was it the other way around? We really were asked a lot of unnecessary questions. It was fairly obvious. There are some internal issues that they could tidy up, which is not an excuse nor a reason not to send it to SACAT. For people who have dementia and who need to be in care, that is not likely to be reversible and those situations are not likely to change. We need to be realistic about the situation that dementia causes.

I will go on to the other areas now. The bill also amends governance of incorporated health services in regional South Australia—local health networks that play an important role in delivering care across the state. Challenges in a number of regional hospitals have demonstrated the importance of ensuring that boards are clear in their responsibilities and appropriately structured, so we welcome that.

Pressures are well known, particularly in regional South Australia. Workforce shortages remain the central challenge facing hospitals across country South Australia, and we know that services are stretched. Emergency departments have faced closures and many regional hospitals are heavily reliant on locums. Unfortunately, no legislative adjustment to governance structures can compensate for the absence of a stable skilled workforce.

The Liberal Party has outlined a comprehensive nurse and midwife recruitment scholarship program, a substantial commitment designed to attract and retain the workforce our hospitals so urgently need. Students will receive up to $12,000 while they study and upon graduation a further $8,000 for metropolitan placements or $18,000 for regional placements in return for two years of service in SA Health. This is a practical measure to help build the pipeline, support the students through their training and strengthen the workforce in the very communities that are struggling most, and we are very grateful for the support of the ANMF in this regard.

I again acknowledge the contributions made by my colleagues in the other place who went through a range of concerns, particularly given they are regional MPs. They are well versed in the issues regarding health care and stability of local health hospitals as they apply to a regional health system. Even small amendments can have some very positive consequences for everybody who interacts with the health system, whether they are consumers, people who work in the system, or the families, so we support the bill.

The Hon. C. BONAROS (11:47): I rise briefly to speak in support of the Statutes Amendment (Health and Wellbeing) Bill 2025, which as we know amends 13 pieces of legislation under the health and wellbeing portfolio to do all manner of things, including minor corrections, updating, modernising language, updating redundant references, clarifying some of the operational elements and decision-making powers of guardians and the line powers of substitute decision-makers to enable them to make decisions consistent with what is being done in other jurisdictions.

I am not going to run through all of the various pieces of legislation. There is an entire raft of them here that are being amended. I do note, in terms of bringing things into line and allowing us to improve the health system, that one of the important measures on which I was briefed was the change to incorporated health services. We know previously that this was tied to a hospital and that under the proposed changes untying it effectively from hospitals and tying it to health services is intended to assist, particularly when it comes to virtual care services.

I note also, and reflect on what the Hon. Michelle Lensink has just spoken of in relation to guardianship and administration changes in advance care directives. If there is anything in this bill that is contentious, it is this, but I think the honourable member has just outlined how difficult an area this is for families when they are having to make very difficult decisions involving parents, grandparents and family members, and the fine balancing act that is required.

The changes themselves, I think, are limited in their scope—appropriately—and certainly consistent with what happens in other jurisdictions. They are intended to also improve delays associated with processes relating to moving a person to a residential aged-care facility, and minimising as much as possible the adverse impacts of prolonged hospitalisations.

We have heard day in, day out as well that we have this issue in our hospital system at the moment where we have the equivalent of a metropolitan hospital in Adelaide on any given day full of patients who are non-acute, do not need to be in hospital, and should be in another facility. That is something that is continuing to cripple our health system in many respects because we simply do not have the places to move them to.

Obviously, where we do have those aged-care facilities and we do need to move them—we certainly need many, many more of those—then it is important we do everything we can to make that as easy as possible, again on the understanding that these guardianship and administration advance care directive changes are intended to apply in very limited circumstances. I think the balance is right in terms of being able to do that respectfully, safely and appropriately.

Again, I note that yesterday there were some concerns raised that this is one of the areas that has not been appropriately consulted on, but there are fine balancing acts at play here in terms of where somebody is a protected person and they need to be moved. I think the changes are intended to do that as effectively, quickly and appropriately as possible in those circumstances, and certainly in line with what is happening in other jurisdictions.

Other than that, I do not know that any other single point has been raised—it certainly has not been raised with me—in relation to the bill as a whole, but I appreciate this is an issue of timing. I am sure that if there are other issues that come to bear then we will hear about them sooner or later, but on the basis of the information that we have before us and the briefings that I have been provided, I indicate that I will be supporting this legislation. I may have a couple of questions for the Deputy Premier when we get to debate in the committee stage, but I indicate my overall support for the bill.

The Hon. R.A. SIMMS (11:53): I rise to speak briefly to the Statutes Amendment (Health and Wellbeing) Bill. The portfolio bill contains a number of amendments, some of which will improve the health and safety of all South Australians. I recognise the contributions of the Hon. Michelle Lensink and the Hon. Connie Bonaros. I have a lot of sympathy with the experience of the Hon. Michelle Lensink. Indeed, I remember my late grandmother had Alzheimer's disease for many years and my family went through that process of trying to manage her affairs and work through some of those arrangements. It is a very difficult and stressful experience for families, so I do understand the need for reform in that area.

I am concerned, however, that the government has embarked on this without appropriate consultation. I must say that is not typical for the health minister. I usually find the Hon. Chris Picton to adopt a much more collegial and consultative approach, but in this instance I think it is a case of getting to the end of the parliamentary session and trying to rush things through.

I have had feedback from stakeholders that they do not feel that they have been appropriately consulted. For instance, the Council on the Ageing SA and the Aged Rights Advocacy Service have both reached out to my office and raised a number of concerns, which I believe the government could have actually addressed had there been time for appropriate consultation. I am not moving any amendments today because I simply have not had time to work through what they might look like and to do the level of consultation required.

But I will, for the benefit of the public record, read into Hansard some of the concerns that have been shared with my office in the hope that the government can take these into consideration when they are developing some of the processes that underpin this bill. The concerns that have been raised with me relate to the advance care directive and the guardianship acts. This is a quote from the Council on the Ageing. They say:

In short, we are very concerned about safeguarding the human rights of older people. It seems these changes are being proposed not to advance the rights of the vulnerable people in this situation, but to fix a problem with the health system.

They say they have concerns both for the persons subject to the order, who would have the right to least restrictive care, as well as the substitute decision-makers, who are likely to feel under significant pressure from the system. They say they are concerned that a review from the SACAT is not required for six months, which seems like a long time. They are concerned there is no guaranteed access to independent advocacy or legal support of clear explanations of rights. They are concerned about the potentially confusing opt-out provisions for detention and would like to see those used in plain English and with appropriate supports. They are concerned there has been no co-designed process for the proposed changes.

I am concerned that, in what I am sure is an effort to improve efficiencies in the healthcare system, the government is potentially moving us down another path without appropriate consideration. These orders will come into play when older South Australians are at a very difficult time in their lives, one where their health needs are complex and their families have to make hard decisions on what is best for their loved ones going through a difficult time.

I am concerned that this could be seen as removing some of the rights of older South Australians. I find myself in a difficult position because I approve some elements of the bill but I do feel that the government has not adopted appropriate consultation, and I have not been able to satisfy myself that they have got the balance right.

I will follow the committee stage and see how things progress and reserve my right on the legislation, but I do urge the government to do better when it comes to consultation with stakeholders. This is sloppy lawmaking. It has been done in a slapdash way on the eve of an election and I think the stakeholders deserved a much more consultative approach.

The Hon. S.L. GAME (11:58): I rise briefly to speak on the Statutes Amendment (Health and Wellbeing) Bill 2025. The majority of this bill is designed to update minor technical, administrative and policy amendments to ensure legislation is accurate and up to date. While I support these minor amendments across a broad range of relevant legislation, there has been some concern raised regarding the proposed amendments to the Guardianship and Administration Act 1993 and the Advance Care Directives Act 2013.

The key concern raised from a range of aged-care advocates is that they were unaware that these changes were even being put forward. In response, the government has suggested that the proposed amendments were not significant enough to warrant notification of stakeholders. However, this is not the view of many aged-care stakeholders, who have raised significant concerns about lack of consideration given to the rights of the aged when decisions are made regarding the discharging from hospital and into a nursing home.

Further time to consider these concerns would have been beneficial, given the lack of consultation given to these stakeholders. I will continue to consult with these stakeholders in the future to uphold their right to be heard and to advocate for the vulnerable in our community.

The Hon. K.J. MAHER (Deputy Premier, Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (11:59): I thank members for their contributions on this debate, in particular the Hon. Michelle Lensink who gave a very powerful discussion in her second reading contribution. I will just touch on a couple of issues that have been raised. I appreciate the issues being raised, particularly by the Hon. Robert Simms and the Hon. Sarah Game, in relation to consultation.

I appreciate the Hon. Robert Simms' commentary. I think many stakeholders in the health area appreciate the length and depth of consultation that the health minister regularly does. This is an omnibus bill touching on, I think, 13 different pieces of legislation that are committed to the health minister. I think the thought was that many of these are minor, technical and administrative in nature and, generally, the level of consultation undertaken is often proportionate to the nature and the significance of the changes being made.

I am advised that the government does take on board the concerns that have been raised. I am further advised that there either have been or are soon to be discussions with the Aged Rights Advocacy Service and the Council on the Ageing, and that undertakings have been given to involve both those bodies in the implementation of what is here. I am hoping that can give some comfort. Consultation is generally quite extensive. When the changes are small—and particularly in an omnibus bill—there is less consultation, but there is that undertaking that those groups will be involved in the implementation of these changes.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. J.M.A. LENSINK: I have quite a number of questions in relation to this clause, which inserts new part 5A, so quite a lot of the guts of the changes to the Guardianship and Administration Act is contained in here. My first question is in relation to scope of powers and substitute decision-makers. The bill enables a substitute decision-maker to authorise both the detention and transfer of a person from hospital to a residential aged-care facility by written instrument. What safeguards are in place to ensure that such detention or transfer decisions are made only in the best interests of the person and not for some other purpose?

The Hon. K.J. MAHER: My advice is that the object and principles of the act require it to be in the best interests of the person. That is set out in the legislative scheme for the Guardianship and Administration Act, I am advised. In terms of the safeguarding, the ability for review is with SACAT.

The Hon. J.M.A. LENSINK: Thank you for that answer. If the person's advance care directive is silent on the issue, how is the consent or objection to be managed?

The Hon. K.J. MAHER: In terms of what you have just asked before that?

The Hon. J.M.A. LENSINK: Yes.

The Hon. K.J. MAHER: My advice is, in accordance with the act, the decision made for the person must, as far as is reasonably practicable, reflect the decision the person would have made in the circumstances. There is that overriding principle of acting in their best interests. Also, a decision by that substitute decision-maker, according to legislation, must not, as far as is reasonably practicable, restrict the basic rights and freedoms of the person.

The Hon. J.M.A. LENSINK: The bill allows detention only where it is 'reasonably necessary to prevent or reduce a significant risk of serious harm that the person presents to themselves or to others'. How is this to be defined or assessed?

The Hon. K.J. MAHER: My advice is that substitute decision-makers in such circumstances would take advice from the clinicians, who would be able to give advice to substitute decision-makers about the state of mind and the ability and the capacity of the person.

The Hon. J.M.A. LENSINK: That is a nice segue into my next question, which relates to minimum clinical standards. Because it would involve some level of cognitive assessment of the individual, what would be the minimum standard? Is it a medical opinion, is it a psych screening or any of those things prior to authorisation?

The Hon. K.J. MAHER: My advice is that assessment for cognitive ability and impairment would be done by clinicians—generally, clinicians who are experienced in aged care and dementia.

The Hon. J.M.A. LENSINK: In relation to proposed section 39B(2)(a) and 39B(7), there is some overlap with the Guardianship and Administration Act. This section, on my understanding, operates only if no guardian has been appointed and is stated to be 'in addition to' the Guardianship and Administration Act. If there is a conflict between a substitute decision-maker's authorisation and a later guardianship order, how is this to be resolved?

The Hon. K.J. MAHER: My advice is, if there is subsequent appointment of a guardian, that would take precedence.

The Hon. J.M.A. LENSINK: In relation to potential delays of the tribunal, SACAT says that the decision must be reviewed within six months. Can the minister explain why that timeframe was chosen? Are there any concerns that this could potentially expose individuals to unnecessary detention before oversight occurs?

The Hon. K.J. MAHER: My advice is, six months is the maximum time for it to be reviewed. In many cases, I am advised, it would be much quicker than that. It is a maximum time for the review.

The Hon. J.M.A. LENSINK: What are the circumstances in which it would be shorter than six months?

The Hon. K.J. MAHER: I might clarify: my advice is that the six months is the maximum timeframe. My advice is that it would regularly be shorter than the six months, but I think it is important to note that my advice is that it does not prevent an interested party who has standing bringing a review, notwithstanding there has to be a review within the six months.

The Hon. J.M.A. LENSINK: My understanding is that during the briefing with the minister there were comments that these powers only apply in limited circumstances. Can the minister advise what they mean by limited circumstances? Is there a clarification in terms of a definition in policy or practice to guide this?

The Hon. K.J. MAHER: I am advised that proposed section 39B sets out some of the preconditions and those sort of limitations, such as in 39B(1)(a) that the person has to be an inpatient of a facility. Then 39B(2) sets out in (a) (b) and (c) the other preconditions that need to be met. In effect, that is what it limits it to.

The Hon. J.M.A. LENSINK: The minister cited 'avoiding adverse effects associated with prolonged hospitalisations'. Can the minister provide data or clinical evidence that supports this statement, including examples specific to South Australia such as physical deconditioning, cognitive decline and infection risk?

The Hon. K.J. MAHER: I am happy to take that on notice to see if I can supply further information. I do not have any of that with me here but certainly I have been in meetings around the table where there have been health officials who have talked about the fact that being in the public hospital system is not the best place for many patients with these sort of conditions, and that a memory support unit is a much more appropriate place for their health and wellbeing. In terms of the evidence for that, I am happy to go away and bring back an answer for the member.

The Hon. J.M.A. LENSINK: In relation to the expansion of guardian powers, amendments explicitly allow a guardian to (a) determine residence at a residential aged-care facility, (b) authorise detention for transport and (c) authorise detention within the facility. How does this broaden the existing detention powers under section 32 of the principal act?

The Hon. K.J. MAHER: My advice is that it does not broaden the potential powers that someone would have in those circumstances. What it does is make it explicitly clear in those circumstances that you do have the powers and you do not necessarily need to go back for a special order for those powers.

The Hon. J.M.A. LENSINK: At risk of asking the minister's opinion, does the government consider that this is a shift in the legal threshold for detention outside mental health legislation? A simple yes or no is fine.

The Hon. K.J. MAHER: My advice is, no, that is not our view.

The Hon. C. BONAROS: I just want to go back to the comments that I made at the outset and confirm—and I might have missed this; I apologise. Certainly, we have had correspondence, or commentary, now from Carolanne Barkla from the Aged Rights Advocacy Service, who has indicated that they and Dementia Australia and COTA were not consulted. Has the Deputy Premier undertaken that these changes will now be the subject of consultation with those various stakeholders before anything final is put into play?

Carrying on from that, given the questions and concerns that have been raised by all of us in this place, are the Deputy Premier and the health minister undertaking to go back and consult with them should there be unintended consequences or measures that go beyond what is acceptable, given that we are dealing with this now and they have not had the privilege or benefit of being able to consult on this issue?

The Hon. K.J. MAHER: I touched on this in my second reading sum-up speech in relation to issues that the Hon. Rob Simms had raised. Being a portfolio bill that amends 13 acts, often the consultation is proportionate to the significance of the change, and I think the view was that a lot of these were more minor and administrative changes. Having had ARAS, COTA and Dementia Australia raise views, I understand the department has already been in contact with all three of those groups and has undertaken to include and consult with them in the implementation of any changes.

The Hon. C. BONAROS: That is good news. Following on from that, if there are issues that are identified that go beyond, certainly, the scope of anything that is agreed to, the government is willing to revisit this to address those issues in the new year?

The Hon. K.J. MAHER: Absolutely. I know Minister Picton is always willing to make sure we are doing everything we can in the best interests of the health system, but more particularly the best interests of patients in the health system.

Clause passed.

Clauses 5 to 19 passed.

Clause 20.

The Hon. J.M.A. LENSINK: The government may tell me this is out of scope, but I just think it is worth asking. Has either the Attorney-General's Department or the Human Rights Commission been consulted to assess compliance with the charter of rights for residents of aged-care facilities or the Aged Care Quality Standards?

The Hon. K.J. MAHER: My advice is, no, and that is but and because. The advice is that what is being proposed in this act does not change or abrogate the principles that are set out in the federal Aged Care Act.

Clause passed.

Clauses 21 to 39 passed.

Clause 40.

The Hon. J.M.A. LENSINK: This is in relation to incorporated health services. There is a new mechanism for incorporated health services. The people who drafted this bill would know better than I do. In relation to the establishment of incorporated health services, there are proposed sections within these clauses which enable the Governor by proclamation to establish independent incorporated health services with their own boards and governance. Can the minister outline what specific problems within the current LHN governance this provision is intended to resolve?

The Hon. K.J. MAHER: I am advised that there is no particular current problem necessarily that this seeks to address. My advice is this is about futureproofing what may occur. My advice is all such services need to be attached to a particular hospital, and if you are talking about virtual care services, it may be that they are not attached to a particular hospital, which is why these provisions are anticipated.

The Hon. J.M.A. LENSINK: Can I pose a hypothetical to the minister? Is it possible that this could enable statewide services such as the Rural Support Service or SA Pathology to be removed from local health network oversight?

The Hon. K.J. MAHER: Hypothetically—and we have not considered it—that may be possible, but my advice is, and I am happy to state, that there is no intention to do that.

The Hon. J.M.A. LENSINK: Proposed section 48BE allows the Governor by proclamation to transfer functions, assets, rights and liabilities between incorporated entities. Is there any parliamentary oversight or public consultation before such a transfer?

The Hon. K.J. MAHER: My advice is, depending on what would be proposed, if there was an intention to do something under these provisions there would absolutely be consultation with any parties who may be affected.

The Hon. J.M.A. LENSINK: How will accountability be maintained if assets or services funded through regional LHNs are centralised?

The Hon. K.J. MAHER: My advice is there is no proposal to do that.

The Hon. J.M.A. LENSINK: How will board members for incorporated health services be appointed and held accountable to parliament given these are entities of the Crown but operate under their own governance?

The Hon. K.J. MAHER: My advice is they would have the same accountability as board members of LHNs. They would be appointed under the act and have the same responsibilities and same oversight and accountability as board members of LHNs.

The Hon. J.M.A. LENSINK: Just a final one on this one: how will the boards interact with the chief executive and existing LHN boards to avoid duplication?

The Hon. K.J. MAHER: My advice is there would be the same interface that happens with LHNs as if any of these were set up.

The Hon. C. BONAROS: I apologise; I was not listening to all of those contributions. I am losing track of who supports and opposes centralised and decentralised LHNs at the moment. These measures are not intended to impact that at all, in terms of the current framework around LHNs and the way that they function and operate?

The Hon. K.J. MAHER: My advice is this is not intended to disturb how an LHN works. This just provides a mechanism for the future—for, as I said, something like a virtual hospital that might be not attached to a particular LHN.

Clause passed.

Clause 41 passed.

Clause 42.

The Hon. J.M.A. LENSINK: In relation to transfer of a restricted ambulance service licence, which is new section 58(10), under what conditions can the minister transfer a restricted ambulance service licence to a new provider?

The Hon. K.J. MAHER: My advice is that the determination is if the minister is satisfied as to the suitability of the person to hold the licence. I have been given an example of the reason for wanting to do this: if the RFDS had a change in its board and how it operates such that it was an entity that was required to apply for a new ambulance licence, what this would allow is the minister to be satisfied that it is a very substantially similar entity and transfer the licence. That is an example of the circumstances that I am advised this contemplates.

The Hon. J.M.A. LENSINK: I thank the minister for that answer. Does this in any way relate to the transfer of contracts from Babcock to Toll for the new aeromedical and rescue aviation services scheduled to commence in 2026-27?

The Hon. K.J. MAHER: My advice is I am not aware that that is the case.

Clause passed.

Clauses 43 to 46 passed.

Clause 47.

The Hon. J.M.A. LENSINK: This is in relation to ministerial exemptions from licensing. The proposed new section 88A allows the minister to exempt a person from being required to obtain a private hospital licence in limited circumstances. Can the minister provide examples of such circumstances?

The Hon. K.J. MAHER: My advice is this provision would be used by the minister in, it is anticipated, limited circumstances. An example that I have been advised of is the Pullman hotel being used for step-down services. In that case, the Pullman hotel is required to apply fully for a hospital licence. This would allow, in those limited circumstances, for this provision to come into effect.

Clause passed.

Remaining clauses (48 to 70) and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Deputy Premier, Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (12:29): I move:

That this bill be now read a third time.

Bill read a third time and passed.