Mr GAFFNEY (Mersey) - Mr President, I appreciate the comments made, and I appreciate the briefing. I thought it was really valuable, as were the comments made by the member for Murchison. Going from something interesting she discussed, there are a couple of things I would like to address before I start my speech.

The first is the situation of the doctor choosing a different direction to the directive, regarding the ventilator, member for Murchison. I think it was a great outcome but I wonder what the response would have been if the person had not recovered the way they did and they were then left on the ventilator for a number of -

Ms Forrest - They can still use the provision to withdraw treatment. It was a very clear clinical judgment of the medical practitioner that this patient would survive.

Mr GAFFNEY - That was a good outcome. I am wondering, in other situations, if it is not a good outcome, where does that place them?

The other point you raised was to let people know that the person has to have decision-making capacity in the End-of-Life Choices (Voluntary Assisted Dying) Act. It is interesting to note that in Canada at the moment they are doing good research and making good legislation regarding this very aspect and how to try and link the advance care directives, enduring guardianship, the bill of rights and medicinal assistance in dying and they have taken great inroads in that area. If you are interested in it, Professor Jocelyn Downie is the main legislator in Canada who would be able to help out.

Also, of interest, I remember reading some time ago about New South Wales when they were looking at advance care directives and the way they approached the voluntary assisted dying in their draft directives because they do not have VAD legislation in place. I thought there were some interesting aspects to their draft they put out for consultation, but have not had a chance to get back and have a look at that.

Mr President, I rise to speak on the Guardianship and Administration Amendment Bill relating to advance care directives. Everyone in this place recognises the need for this timely intervention in amending the Guardianship and Administration Act 1995 to formalise an essential update to an act that, whilst appropriate in its day, is now over 25 years old and can be considered to be a whole generation out of date.

The catalyst for this reform has been the Tasmania Law Reform Institute's review and the resultant report that amounts to nearly 500 pages, as the member mentioned yesterday.

The Government has taken the expedient move of extracting the recommendations relating to advance care directives and accepting them in their totality, and they are now delivered in the form of an amended bill to the act, the final consideration of which is the task before us and I thank the Government for doing that. I think it was a wise decision.

This could not have come at a better time as so much has changed in our community's expectations as we openly embrace new perspectives and legislation on end-of-life choices. This has been balanced with the need of engaging an inclusive culture that is at the core of our wider Tasmanian community.

Legislation must evolve and be improved upon to better reflect the ongoing expectation that we are an increasingly diverse society that has higher expectations of the services and choices available to us all; a society that must acknowledge and recognise a person's right to self-determination and, in the case of incapacity, that their predetermined range of treatment parameters and choices are defined in a form available to every medical practitioner who may be involved in their future care.
As we reflect on the ongoing challenges the COVID-19 pandemic is having, it has brought sharp focus on our vulnerabilities, both as individuals and that of our greater society. In order to address these concerns, there is often an impetus to deliver even more stringent regulations and safeguards that can be seen to address quite remote possibilities.

I would like to think we can examine this legislation with an open mind where we can focus on the intent behind a person's free choice in drafting an advance care directive that allows them a sense of control and dignity without undue intrusion or bureaucratic complication.

The seemingly onerous witnessing requirements are a case in point where the bill suggests that two witnesses must have a complete knowledge of the nature and effect of the provisions within an advance care directive and check those against the person's understanding of such. These may be something the person considering an advance care directive may wish to remain a personal and private matter between themselves and those with whom they choose to confide.

I raise this as one of the defining tenets of the bill: that in the absence of anything to do to the contrary, a person is rightly assumed to have decision-making capacity or ability at the time of establishing an advance care directive.

An advance care directive will be a defined device that gives authority to their choices at such a time when they may be incapacitated for whatever reason. As part of this defined decision-making capacity, it seems reasonable to assume a person by the very act of drafting such a document will be well aware of the impact of an advance care directive and be able to seek further advice or independent opinion if they feel it necessary.

It has been the case that traditionally one may witness a person's signature on a confidential document without needing to know the detail of its content. The requirement for two witnesses with intimate knowledge of the terms of the advance care directive, together with a forensic examination of the person's understanding of them, may be a safeguard too far. Perhaps an amendment witnessing protocol or an alternative mechanism for endorsing an advance care directive - such as a statutory declaration - would be appropriate for those who may hesitate due the currently drafted requirements.

I look forward to hearing the thoughts of others on these points.

One of the most notable improvements is the recognition that mature minors under the age of 18 may give an advance care directive. The needs and rights of people under the age of 18 have been a point of considered debate on a number of issues that have come before us. I applaud the Government in making this provision available for young people and their families that may be facing challenging decisions regarding their health care and treatment. This provision will hopefully give a certain amount of relief and clarity in impossible circumstances.

I note in this element, from an Australian perspective, that case law surrounding the original Gillick principle case has been applied to those under 18 years of age in this bill, whilst the original case relates to the health care decision autonomy of those under 16 years of age.

I am not sure we in Tasmania are quite ready to consider this point in general terms, but it is notable to be aware that other jurisdictions outside of Australia have done so on the basis of the mature minor's capacity to fully understand the consequence of their decisions at a younger age threshold.

It would be instructive to reflect on Lord Scarman's observation in relation to the original case from over 35 years ago. He said:

… as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.

There are additional requirements - dare I say safeguards - relating to inform minors that requires that a registered health practitioner is a witness to the advance care directive and bears the responsibility to attest to the minor's capacity to fully understand what is proposed.

There is an additional point of Australian law that may yet relate to this bill in terms of what is commonly known as Marion's Case, an incredibly difficult case that went before the High Court nearly 30 years ago in 1992. The outcome of the case of an incompetent child was that parents were ruled to have decision-making capacity in medical treatments that must only be in the best interest of such a child. If there was any doubt, it was left to the Family Court to rule on what might be considered as such, and as a child's best interest. We may have to consider if this has bearing on a dispute resolution process, revocation or variance of an advance care directive, one that may arise in a disputed advance care directive by the interested parties in the care of the minor that may have lost decision-making capacity.

In my community consultation and dialogue with stakeholders surrounding what is now the End-of-Life Choices (Voluntary Assisted Dying) Act 2021, one of the greatest causes of concern is dementia and how its victims are robbed of their cognitive abilities, together with their impact on the relationships with loved ones and life partners. At this stage, for many people and legislators the contemplation of including dementia within the eligibility criteria for VAD is a step too far. Despite this, it is my hope this bill can offer solace to those that might wish to retain some control over what may or may not happen to them if they happen to befall the ravages of this vicious disease.

There has been learned debate that a dementia patient, despite no longer being able to recall or demonstrate any of their past life or familiar relationships, can still live in a contented state. However, it is not our place to contradict the person's wishes on their health care choices that were properly made and registered when they were of sound mind and with full decision-making capacity.

I would like to think whilst any possible review or revocation process of an advance care directive may be initiated with the best of intentions, the person's wish must prevail with rigorous safeguards to ensure this is indeed the case.

I also acknowledge the significant emphasis on safeguards that will inhibit improper influence on a person's choice on establishing an advance care directive, as is right and proper. It is pertinent to observe this from another perspective, as an advance care directive can give a person comfort that they will relieve a loved one or life partner of having to make destressing decisions on that person's behalf.

There can be a worry a person may be unduly influenced not to be an unnecessary burden. However, in saying that, I am sure there are many of us who hold that concern close to our hearts and it is not an unreasonable wish. The opportunity to draft an effective and enforceable advance care directive can provide a particular comfort to all involved, knowing that a person's directions in the circumstance of unforeseen events can be followed in good faith, and that their express wishes relating to their treatment and health care have been properly enacted. In doing this, any condition that renders a person unable to have decision-making capacity will not shift a decision or responsibility onto someone else at a time of extreme distress.

Mr President, we have seen in recent years increasing community expectations in greater autonomy for a person's control over the interventions that may or may not be made to their wellbeing, health care and treatment. That need has never been more relevant in the light of expanding health care services, capabilities, and the ability to maintain life in challenging circumstances that may well be against the person's wishes.

I shall be closely observing the passage of this bill to ensure that a person's right to self-determination is fully supported and their rights are not eroded by the compounding effect of bureaucratic and legislative niceties. It has to be workable and it has to be appropriate. In this place, and the other place, many poignant issues that have a direct impact on our community's sense of personal identity, compassion and integrity have been debated at length and with dignity and respect.

It would be beneficial for members and those listening for the Leader, in her closing remarks, to indicate the Government's intentions to inform all Tasmanians and health practitioners about the amended and altered advance care processes. I look forward to hearing the considered thoughts of my fellow members on this bill. The bill has the potential to deliver significant advancements and I will be supporting it.