Medical Treatment Planning and Decisions Bill

Mr. HIBBINS (Prahran) — I rise to speak on behalf of the Greens for the Medical Treatment Planning and Decisions Bill 2016. The Greens support the bill because we believe there is a clear need for these laws to come into place, particularly around a person's end of life, to create these legally binding advance care directives, and I will go into just some of the detail of the bill because it is important that these advance care directives can include instructional health directives which will replace the refusal-of-treatment certificates and allow for the specific refusal of or consent to a particular medical treatment in specific circumstances. It will also allow for, as other speakers have indicated, a broader values directive which will be a more generalised statement about a person's wishes, which will only come into effect once a person no longer has the capacity to make decisions for themselves.

In regard to medical decision-makers, the bill makes a clear and simplified framework for establishing medical treatment decision-makers who can act on a person's behalf to interpret these values and directives, or in the specific circumstances when a person is no longer capable of making the medical decisions themselves. It allows for the nomination of a support person who can support a person with their care, especially when they do have decision-making capacity, and where no person can be located it provides for the Office of the Public Advocate to be a decision-maker of last resort for those significant medical treatment decisions.

The bill will oblige health practitioners, whether it is doctors, nurses, paramedics or other health professionals, to seek out a person's advance care directive and act in accordance with it, even if the person no longer has capacity, and a failure to comply with these requirements will constitute unprofessional conduct, with a penalty attached to it. Having said that, it does not prevent health practitioners from providing treatment in emergency situations when there is no time to locate the directive. The Greens will support the bill because there is a pressing need for this clear obligation on healthcare providers to adhere with a person's advance care directive, where in the past that has not been the case. The bill will enable people to exercise choice and also express values that can be interpreted by trusting people when new and unforeseen circumstances arise with a person's medical care.

Today approximately 85 per cent of Australians are dying after a chronic illness, not a sudden event, and up to 50 per cent of people will be incapable of making their own decisions at the end of their life, and that is why these legally binding advance care directives are so important. There are many people with a very serious illness or injury that will have times when they are incapable of making their own decisions. It is so important to have these clear directions for healthcare providers, particularly at a time when very few people have advance care directives or refusal-of-treatment certificates.

Currently there is no legislative framework supporting advance care directives, meaning that even if you write one, there is no obligation on doctors to adhere to it, and that is why this bill is important. It ensures that Victorians have more control and more say and get the health care that is true to their wishes. To do this, it is important to get the legislative framework in place and ensure that we have got a good culture regarding end-of-life choices when someone is critically ill. That is why we strongly support these reforms.

As we know, there has been an inquiry into end-of-life choices, and that inquiry made a number of recommendations. One of those recommendations is where this legislation comes from, but there are also a number of other recommendations that are not legislative in nature but go really to, I think, changing the culture in hospitals and other healthcare settings to integrate advance care planning and conversations about end-of-life choices into their core business. It goes to the need for education and awareness campaigns. We would certainly be very interested in knowing how the government intends to enact those recommendations.

As I said, we are supportive of this bill, but there is one area where we do have some concerns, and we would certainly be open to discussing and rectifying that with the government. It is in relation to clause 17, and we understand there are some amendments to clause 17. In my understanding the creation of a new advance care directive or a revision of an existing advance care directive must be witnessed by two adults and they must be in the presence of the person giving the advance care directive and each other, and one of those witnesses, as I understand from these amendments, must be a registered medical practitioner, or a doctor in this instance.

Where that might be a problem is where a person wishes to die at home with the support of palliative care and a palliative care nurse. In these circumstances a person might be weak or unable to travel, they might decide that they want to change their instructions of their advance care directive and they might decide that they want to withdraw life-prolonging treatment. They might require an advance care directive specifically because of the time, because of pain relief drugs or for whatever reasons. They might be ebbing in and out of consciousness and not have the ability to make those decisions.

At this point, as the legislation stands, to change the advance care directive the person would have to call a locum doctor. In these circumstances, particularly in regional instances, this could be difficult, unaffordable, impractical and possibly impossible. In this instance a locum doctor would have no knowledge of the patient, their values or their circumstances, which again creates a challenge in itself. We would be very concerned that this could lead to some people getting unwanted treatment at the end of their life and be a barrier to getting the advance care directive that they want to actually put in place.

We believe that there is a simple solution to this: that when someone is receiving home-based palliative care where district and palliative care nurses are making regular home visits to provide care and are familiar with that person — that in those circumstances, and only in those circumstances — a registered nurse would be able to witness the advance care directive in the place of an authorised witness or, as the government's amendment says, a registered medical practitioner. It is a pretty narrow issue we have with the bill, and certainly I think there would be a pretty simple solution for those sorts of instances to make sure that everyone in all the circumstances would be able to get the advance care directive that they so desire.

Of course in looking at this issue we need to look at the issue of assisted dying, and certainly that is something that is a longstanding policy of the Greens, as it has been for many years, back to when we were not represented in this place and only had one senator, Bob Brown, up in the federal Parliament. It is certainly something that we have been pushing for a long time and something that has the overwhelming support of the community, who want to be able to have a dignified, peaceful death without suffering.

We have seen the inquiry into end-of-life choices by the upper house Standing Committee on Legal and Social Issues, which did recommend implementation of a framework for assisted dying. Of course this area is complex and potentially problematic, but I think in that inquiry and that report we have seen that laws can be devised in ways that are fair, workable and evidence based and that it is possible to have a system that relieves suffering but also protects the most vulnerable.

Assisted dying works in other jurisdictions, and it certainly can work in Victoria. I welcome comments made by members of the cabinet and other government members that they are supportive of assisted dying, and we look forward to legislation being introduced. We have indicated that if the government does not put forward legislation, we will be putting forward legislation. We certainly hope that we can work with members of all parties to put this legislation in place and get assisted dying legislation within this term of Parliament.

We will be supporting this bill. As I said, we have one issue with this bill, which we believe has a simple solution, so we would like to work with the government to address that particular issue. We certainly look forward to working with all members of Parliament to address the issue of assisted dying as well.