Second reading debate: Medical Treatment Planning and Decisions Bill 2016

I rise to speak on the Medical Treatment Planning and Decisions Bill 2016 and to support the opposition’s stance of an amendment to the second reading for the bill to be redrawn and redrafted.

As the statement of compatibility says, the bill’s intent is to establish a new scheme of medical treatment planning, to consolidate the law relating to medical treatment decision-making and to take into account contemporary views about personal autonomy and how people participate in decisions about their own health care.

In my view this bill should help to eliminate the position some medical professionals find themselves in when it comes to end-of-life care and planning. The legislation is to provide clear guidelines and a framework for medical professionals, nurses and doctors, who often find themselves lacking clarity around medical intervention when caring for people who are dying, which unfortunately leaves the medical professionals vulnerable. However, this legislation is just too scant in detail, and may create more uncertainty in its current form. In fact, I think it is probably opening a can of worms.

Medical professionals want to do what is right for their patients. I do not think anyone can deny that but often they are hamstrung. They face legal hurdles and many feel compromised because the laws surrounding this area are confusing and fragmented. I had hoped this bill would clear up that confusion because we have reached a point where this type of care needs clarity. Most importantly I had hoped that it would put the decision-making power into the hands of supported individuals who are professionally counselled, which would allow a person of sound mind to decide how they want to spend their final moments of life and how they want to see those moments played out. People should not be making decisions on a whim. There should be extensive consultation with doctors and other medical professionals and there should be counselling. This actually does happen now, I understand that, but we can improve on it, particularly when people are diagnosed with terminal illnesses.

The legislation also aims to better support and provide clarity for people who are making medical decisions on behalf of others. The legislation will not prevent them from changing their minds on their position. In fact, whilst a person remains of sound mind and has the capacity to articulate their wishes, I had hoped the legislation would be clear enough that they are able to change their directives and the care plan they have designed only comes into play if they lose that decision-making capacity. I think this would alleviate the fear that many people have shared with me around this legislation.

The legislation allows people to make instructional directives on how they wish to be treated for current or future medical conditions that are legally binding or make values statements which can be used as guidance.

Many patients or their families during my nursing career made these directives, such as a not for resuscitation — or NFR, as we called it over the years. I had hoped that this legislation would put more clarity around that already established practice and improve the clarity. I have personally had this discussion with my 83-year-old mother. She is a nurse as well so this is something we are both very familiar with. But at this point in time this legislation does not clarify this for me. A values directive is a directive that allows a patient to give guidance so that the medical staff can work with those values while still using professional judgement, which is probably the discussion my mother and I had around NFR. I think this concept is good but there is no clarity in the legislation.

This is something I have been involved in for many, many years. Prior to joining this place I worked for 30 years as a nurse, many years spent on wards giving patients treatment and support as part of managing their end-of-life care. I sat with many dying patients and cried with many families. Hence the discussions here today are very, very important to me.

Legislation with the right amendments would allow for people to make decisions so they can die with the least distress. I have seen on too many occasions families struggling and confronted with having to make decisions that are in the best interests of their loved ones. The pain and suffering when they have not been able to manage the situation has been prolonged. We can improve this if we get it right, but this legislation is not the right piece of work to achieve that.

If amended, the legislation would also give medical professionals the confidence they have been looking for to provide the best care that fits with the patient’s wishes. The bill should outline what a medical practitioner can and cannot do in terms of treating a patient with a care directive. It should outline when a doctor can refuse to comply with a directive, which allows a doctor or medical practitioner to exercise their professional judgement without fear of being reprimanded or prosecuted.

That is why I think this is really more of a can of worms. It does not actually enhance the ability of a professional to use their judgement; I think it actually hinders it further. I do have some concerns over how the terminology used in this legislation is defined, particularly when talking about significant and routine treatments and reasonable efforts. There must be absolutely no ambiguity about what these terms mean and how they can be interpreted because it will defeat one of the main purposes of this bill — to simplify and streamline Victoria’s laws around medical treatment. It is absolutely vital that we get this right. There is no point putting this in place if it is going to confuse the laws and the rights and obligations of medical practitioners further. If it is not clear, we run the risk of not improving the situation.

I do take issue with an authorised witness to directives not having to be a medical professional. I believe there must be strong safeguards in place to ensure that those making advance care directives fully understand the implications, especially with vulnerable patients like the elderly and children.

There are other unanswered questions. For example, I do not know where organ donation fits into this legislation. Currently if you are a registered organ donor, your family can override that decision. Will this legislation change that?

Giving people the right to make decisions about their treatment does not affect life’s journey. It simply ensures that when the end is reached it is done with dignity and how the patient wants it to be done. However, this bill does not do that for me. It does not provide clarity, it does not have consistency and it does not appear to have improved outcomes. It is all very well for the member for Dandenong to talk about idealism, but at the end of the day this is a very complex area. I absolutely urge the Parliament to make sure we get this 100 per cent right. As a person with a 30-year history in practical nursing, I implore us to make sure we put this bill aside and take the time to do it exactly right. Unintended consequences have no place here.