Advance Care Directives Bill

This speech is in relation to the Advance Care Directives Bill 2012.

The Hon. J.M.A. LENSINK (16:20): I rise to make some remarks in relation to this bill which consolidates a number of existing anticipatory instruments that exist in several different acts and which relate to issues of health, medical, residential and personal decision-making. I would also like to add to the comments of speakers prior to me and commend the former health minister, the Hon. John Hill, for conducting a review and attempting to simplify the laws because they are quite complex. They often require some legal assistance in order for people to take advantage of them, they take several forms in several different acts, so I think that it is a laudable aim to attempt to bring them under one piece of legislation. I note that these sorts of consolidations have taken place in other jurisdictions.

I also strongly support the existing intent of these acts in terms of trying to assist people to make decisions while they are still able. As those of us who have ageing parents know, if you are prepared for things in advance it makes it a lot easier if things happen suddenly. People's health can deteriorate very quickly, and if you have some guidance from them it makes those decisions much easier. These instruments also serve as a guide to health professionals who have expressed that they value it and need it to be provided to them because it is part of their practice at all times to follow the wishes of the patient—if I can use that term, which is not always in vogue in health language but be that as it may I think we all understand what it means.

There is also the concept in this legislation of substitute decision-makers. I support the aim that they should try to stand in the shoes of the person as if they were that person. However, I have expressed my views before in relation to the voluntary euthanasia debate and I am not about to indicate that I think this in any way opens the door on voluntary euthanasia—I do not think that is the case. I think a lot of times when people make decisions in advance of when they are faced with a particular situation it is almost like a hypothetical. You hear a lot of people saying, 'If I'm in a particular state then I don't wish to be kept alive,' but when they are confronted with that situation they may well not hold that point of view.

Indeed, it has been my own situation, having some executive over my mum, that she has expressed to me that, whilst she may have signed documentation not to have certain treatment, she certainly wishes to hang around. I have said to her, 'We are going to have to ignore that then. You've told us that you wish to stay around, so we will encourage the doctors to give you every treatment possible.'

We have all been lobbied extensively by a number of stakeholders, and I was a little concerned when I read the letter from the South Australian Salaried Medical Officers Association (SASMOA) (and I will not read it all) to the minister dated 19 November last year, reflecting on the debate in the House of Assembly, in which they expressed that they are concerned that the government does not actually understand the issues that have been raised. It is written by Dr David Pope who says:

Specifically there seemed to be an assumption on your part that you believed the motivation for concerns raised—

I think this is in the debate—

including some proposed amendments, was a desire to deny patient wishes. I wish to make it very clear that that is not the case.

On the second page he goes on to say:

Indeed, if the bill did function as you described it in your speech last Thursday and in your responses while in the committee on the Bill, the majority of salaried doctors would not take any issue with it.

However, parts of the bill raise concerns that relate to problems in the construct of the act and amendments of other legislation in the bill which relate to the mechanics of the functioning of the act such that doctors and other health professionals could only be faced with a choice between:

1.Following an advance care directive, which is written in a way such that it applies in a binding way in a circumstance unforeseen...

2.Not following an advance care directive of the like described above and then face a career ending sanction...

In summing up I would appreciate if the minister in this chamber could address those particular issues. They may be unintended consequences or may in fact not be a correct interpretation of the legislation, but in any case those issues need to be resolved.

The SA Nurses Supporting Choices in Dying have also written to us and are advocating that we support this legislation. They make the point that many people who are admitted to hospital for end-of-life care have not actually made any decisions or had discussions, so they are very supportive of the legislation. I assume they would be supportive of the current legislation that also attempts to do the same thing.

Anyone listening to or reading this may not be any the wiser as to what is my position, but I support the intent of the legislation. I hold concerns about whether there are unintended consequences. We do not want to bind patients to a decision they have made in the past. My overriding concern with all of this is that the current wishes of the patient, if they are able to have those exercised, must always be paramount. I am very uncomfortable with a situation where someone has signed an advance care directive and it is almost as if it is written in stone. I know there are ways of revoking them, but it is incumbent on all of us, whether family or health professionals, to check at every point in the process that the wishes of the patient are being exercised.