Second Reading – Human Tissue Amendment Bill 2020

I rise to speak on the Human Tissue Amendment Bill 2020, and I will just give a brief overview of what the bill does. Thank you to the Minister for Health for the explanation of the amendments, which we have just been given notice of in the last 24 hours.

But this bill, basically, amends the Human Tissue Act 1982 to include a process for the authorisation of any ante-mortem procedures which are required to be undertaken in relation to a person who, in the removal of tissue, has been authorised for the purpose specified in the Human Tissue Act. Basically, this is a bill about making sure that the procedures are in place when a person is past the stage of life, but has not reached post-mortem, which is death—the term ante-mortem means usually when someone is actually on life support and death is imminent.

So the reason for this: there were some ambiguities left as a result of the Medical Treatment Planning and Decisions Act 2016, which repealed the Medical Treatment Act 1988 and left some ambiguities, like I say, around some terminology in making sure that there was authorisation for procedures to take place in that period between life and post-mortem, or death. The amendment to the Human Tissue Act 1982 created that anomaly. So this bill will now create a legal framework for permitting ante-mortem procedures.

Now, many of those procedures are things like taking blood; being on a life support machine, so maintaining life support, such as ventilation, the usual thing you see; giving someone medications—that is often to maintain haemostasis, which means that you do not want the blood pressure to be really high and cause damage to some of the organs that you may want to use, if the person has authorised that use; taking blood to get some understanding of—you know, it is normal stuff that goes on every day; or things like medical imaging, such as X-rays, CAT scans, also known as CT scans, or MRIs; and many of those procedures that will be taking place to prepare for some of those organ donations.

This bill outlines that these can only occur once two registered medical practitioners have certified in writing that an individual’s respiration or circulation of blood is being maintained only by artificial means. In other words, they are not able to live because they have only got artificial support that keeps their brains from not completely dying or their circulation being able to be maintained—circulatory death is what it is known as.

The medical treatment decision-maker must also be appointed if the next of kin cannot be contacted. So this is putting procedures around the process that needs to take place to make sure there is proper authorisation and management of the patient.

I see we have got an amendment today, and the minister at the table has been so kind as to give some overview of that, but it does make me concerned that an amendment to such an important bill, which has had this anomaly and ambiguity around it for some time, has taken until the eleventh hour. It was just yesterday morning that we were notified of the amendment, and the amendments actually are around making sure that the ambiguity that they are trying to address is less ambiguous.

So, in other words, the bill was not adequate. If you are trying to address an ambiguity, and today we have got amendments to address the fact that there is still the ambiguity there, you have got to ask yourself: where is the government? What are they doing when they have got something as important as this? The respect of a patient, the respect of the family, is what this is all about, yet it still had not been cleared up or addressed properly.

We have seen many examples of the way this government does not consult well enough. Just a few months ago we saw bills that were coming in for which there was no period of consultation available. It is like I do not get the opportunity as a member of Parliament to go back to my community and consult. Some bills are introduced on a Tuesday and then we are addressing them and passing them on a Thursday. So it is like there is no understanding.

We also see muck-ups like this constantly. We are seeing similar things with the pandemic. I know a pandemic is a difficult time, but at the same time we are seeing the ambiguity and the challenges for people whose businesses are so disadvantaged by decisions. Then when I write to the minister to say, ‘Could you consider this because it is an anomaly for my region?’, I do not get anything back for six weeks. Just this morning I had Jayson Lamb from Jayson Lamb swim school ring me.

We all know that indoor pools are able to be opened in the next short while, or they are in the regions now, and Jayson said, ‘I’ve got a swim school on a school ground—theoretically. I rent it off the school. It’s on public land. It has got its own driveway in, its own driveway out. None of the children at the school go near it. I’m going to lose all my customers because they are going to go off to other businesses. So how is it fair?’. I will write to the Minister for Education, but I will also bring it up with the minister at the table now: consider some of these anomalies.

Please do not make us wait six weeks when businesses are actually compromised the way this young man, Jayson Lamb, is compromised. He has been running his swim school for 20 years, so for him not to be able to do that actually makes no sense. I get that we must minimise movement and we must have restrictions in place, but all those things were able to be maintained in this instance.

Ms Connolly: On a point of order, Acting Speaker, could you bring the member back to the substance of the bill? I am not too sure why she is talking about swim schools when this is a bill very much about human tissue and organ donation.

The ACTING SPEAKER (Ms Ward): Order! I thank the member. I do accept that when people are first speaking on bills there can be a wideranging debate. However, I do agree with the member that this has strayed way off the scent of anything to do with the bill whatsoever. So I would ask the member to go back, please.

Ms BRITNELL: I will come back to the bill, but that was actually about the ambiguities and the anomalies that are existing and how challenging it is for the community when the government does not actually make things clear when they have the opportunity. This bill is presented today to make some very important changes to the Human Tissue Act 1982, but it has left ambiguity which the government is only addressing today. So it was on that point that I was referring to the Jayson Lamb swim school. I thank the minister for listening, and I will make sure I send him an email about it.

We have a bill here that again has been out for discussion for some time, but it is only here today. The Law Institute of Victoria mentioned their worry that the bill still does not fix the ambiguity, and DonateLife as well brought to the minister’s attention their concern, writing as clinicians on behalf of the organisation DonateLife, to strengthen that up.

In my experience I have had ventilator patients who are donors who had actually signed the form; they had it on their licence to say they want to donate organs, which I encourage people to do. I want to take this opportunity to reassure people that in my experience there is quite a strong oversight, the responsibility is taken very, very seriously by the medical community and it is only very senior medical professionals who do the very extensive tests that take place when a patient is in that position where their life is over and the only reason they are alive is because they are having their circulation maintained and their brain oxygenated via circulation support.

It is a very distressing time for the family. The patient usually looks well. They are very well cared for by the staff in that they are sleeping, they have got a ventilator and they look like they are just lying there, so it is very, very difficult for families to actually accept that death has really occurred. But I have seen that very, very huge responsibility taken on by the medical profession and they have been very cognisant of the family and the next of kin and also very, very respectful of the patient, whether they are in the ante-mortem phase or even the post-mortem phase.

One of the concerns that was raised by Catholic Healthcare when we were consulting on this bill was that there would be a loss of respect for the patient during that ante-mortem phase, and they wanted to be reassured that this bill would not compromise that. I remember actually laying out my first patient, back when I first started in my nursing role, and it was the grandfather of one of my nursing colleagues, who is still my very best friend today.

We nursed, and he passed away, and when you are doing the procedures that you do after death on the person, you are very, very respectful of the fact that they have lived and passed and their family are grieving. The community can be reassured that the health community are very respectful. But I think it is important that that has been raised with the Shadow Minister for Health, and we are confident that there are safeguards in place that do respect that period and that these tests can be taken and organ donations can take place in a way respectful of the recipient, the patient who has passed away and the patient’s family.

I will just make mention here of a lady in my electorate called Anne Rea. Anne has been campaigning for what must be close on 30 years for people to consider organ donation. What an extraordinary activity for this woman to do. She goes to all the country shows, and she has a stand. She sits there, and she is just able to make available information, because it is hard when you are alive to think about (a) the fact that you might die and (b) whether you want to give up your organs.

But I am someone who is quite confident to do that and quite comfortable in doing that, because I do know that the procedures are absolutely robust in making sure that whilst, as I say, the patient may be on a ventilator and look like they are breathing, they are actually not alive any longer. So I really want to congratulate Anne on the work she has done over the years.

I think it is really important, though, that we as a society do remember that it is a person’s right to donate and that we should not necessarily be saying everybody must do it. So it should not ever be an opt-out system in my view; it should be an opt-in system. But we should actually get more discussion around the importance of donating, whether it is someone’s sclera, which is on your eyes, which could be transforming someone else’s vision, or whether it be kidneys, lungs, hearts or so many of the things that we can give today—even skin.

There are so many things that we can do, and if we get our heads more around the fact that death is part of life instead of something to be frightened of, I think we as a society will be better at moving from the 1980s, when we first started doing this, to the 2020s now, where that is quite a well-accepted and well-understood procedure.

So I do support the bill with the amendment. I am comfortable that there are enough safeguards in place. We had thank you day last Friday, rather than what was actually supposed to be grand final day. We did not have the grand final in Victoria because of the government’s contact-tracing and hotel quarantine stuff-ups, which made Victoria stand out as the state that was not achieving what could have been achieved and what other states have achieved with this pandemic happening at the moment.

We lost the grand final. Now we have had thankyou day for our nurses and doctors and support staff of the health community, which is a great thing to say—thank you. I certainly know how brilliant the health staff, the cleaners, the orderlies, the doctors and the support staff in allied health—occupational therapists et cetera—are because I was part of that system for a very long time.

I look at what my community in Warrnambool achieved and the Warrnambool Base Hospital under extraordinary circumstances getting ready for COVID. They had two intensive care sites ready, one we called the dirty COVID area and one the clean area.

They are medical terms for infection control, and I could probably go on there for a while about understanding infection control and having a decent understanding, which Warrnambool Base Hospital and other hospitals in my region all did—unlike the government, who got untrained people in to try and manage an infection control situation in the middle of a pandemic. I will never get my head around that, and I absolutely know that we would not have done that. We would have taken the offer of the Australian Defence Force, and we would never have compromised Victorians in the way that this current government has compromised them.

I want to thank particularly the staff at Warrnambool Base Hospital. This is a group of people who have been quietly getting on with the job of trying to work under extraordinary conditions. For a number of years now the Liberals and Nationals have promised that the second stage of the hospital would be delivered. For the last five budgets we have been waiting for a commitment from the Andrews Labor government. The minister is at the table. We have got a budget coming down hopefully—is it 10 November?

Mr Foley interjected.

Ms BRITNELL: Cannot possibly tell me the date of the—

Mr Foley interjected.

Ms BRITNELL: So when we get the privilege of knowing what date we will be hearing the budget, which is rumoured to be 10 November and has to be by the end of November, I think, the Premier has said, I am hoping that the Minister for Health will give me the good news that Warrnambool Base Hospital second stage will be funded. This is a development that is not wanted; it is needed. And it is not just something for good looks or for happiness and whatever. It is about the fact that the accident and emergency area specifically is extremely compromised in space, which makes it very, very difficult if you have got, say, a big motor car accident, which they often get, and they have got three or four people in critical conditions. They cannot actually get the X-ray machine in and they cannot do blood gases and they cannot do all the sorts of things like intubate at the same time as they are trying to X-ray to try and save a life. These guys actually do an extraordinary job under those circumstances.

Also the theatres absolutely need to be upgraded. They are not meeting the needs of population demand. What happens in health is that you do not just stop. You cannot strike like the unions would encourage you to do, because you have actually got patients—and unfortunately the government is playing on that desire not to fail. As a nurse, as a doctor, you just cannot fail, because somebody actually suffers, dies or is in pain—whatever. There are consequences that are way too hard for your ethics to allow. We have got surgeons working after hours—doing minor procedures such as lacerations after 9 o’clock at night—because the theatres are not free. That is not actually within the guidelines of ideal, but it is to make sure that they actually get through the workload. They are really, really compromised. If you talk to the theatre staff, they are really compromised in their wellbeing because they are in really difficult circumstances.

I know there is a big health fund. You know that with COVID we have got to get on and get some jobs done to get the economy back up and running, and here is a shovel-ready project, the Warrnambool Base Hospital, that needs to be funded in the budget. I implore you, Minister; we have waited over five years. We are promised every time. Denis Napthine put the money there. The member for Bulleen promised it. I have committed to it. It is not something, as I say, that would be lovely; it is actually something that is going to compromise the health and wellbeing of our community, and I am sure that you do not want to see that any more than I want to see that. So I look forward to the good news. And while we are on it, do not forget—because you have just come from the mental health portfolio—the Lookout project as well, a very important project that funds drug and alcohol rehabilitation beds.

I do not know how many times, when I was in my role working in a community health setting, I would make calls looking for beds for patients who had done a two-week in-hospital detox, because you do not want a patient detoxing out of the hospital setting, because they can actually fit and have cardiac arrests et cetera. So that is fine; we can get to that stage. But then to let them out into the community to go back to that environment where it is difficult for them to maintain a stay-off-drugs position—I was looking constantly for beds all over the state. A lot of my patients at the time were very, very committed to their area where they had young children or where they had Indigenous links. The support in families in Indigenous communities is incredible—something that I will always admire and always take away as a mother, that, ‘Gee, they’re fantastic at family’.

Often I would go to work and my little girl would be home sick, and Violet Clark—who I pay my respects to, who passed away just earlier this year—would say to me, ‘Roma, what are you doing at work? Get home to your daughter’. So I would often take her. They were just the most amazing group of people, who supported families. So for them to go away to find a rehab bed was not an acceptable situation, and we did not have rehab beds for the post-detox period. It is incredibly important to our Indigenous community and our people who understand that this is not something people want to do. They do not want to get stuck on drugs and fall into that situation. They actually want help. These are people who are ready to make the move to get back into a healthy phase. So these are two projects that are very important.

Again, a big thankyou to the nurses and doctors for all the work that was done during the pandemic. We in Warrnambool and the South-West Coast had four outbreaks really, and I would like to take a minute to remember that communities like Portland, Heywood and Port Fairy all did such a good job because we actually really know how to look out for each other. I suppose it is because we have got smaller areas and we do know each other well, so contact tracing was not something we sat back and waited for the government to do. There was a lot of evidence at that point that the government were not doing it very capably—and that has proven to be fact not fiction—so I take my hat off to the work that Portland District Health did to set up extra testing sites, to use social media and to be open and honest with the community about where the outbreaks occurred and which businesses people had been to. They just used what I have seen New South Wales do. Premier Gladys Berejiklian is doing exactly the same thing. She is being very open with her community, and that is the stark difference I am seeing with the Victorian government and their inability to really speak to the people around how to be part of our solution.

It feels more like we have been blamed as a community—whether it be people in the homes’ fault or the young people’s fault, it is always someone’s fault, instead of actually working with the community like we saw in South-West Coast. In the Warrnambool community we saw the business Midfield Meats’ outstanding response where they ignored the Department of Health and Human Services (DHHS) recommendation—who said they could stay open—and shut down. And we also ignored, as a community, the advice that you cannot get a test unless you are symptomatic. They tested all the workers at Midfield Meats and waited until all the results came back before they opened up the business. So business, community and health service locally working together is the epitome of how we should be using the community in addressing this pandemic, because as I am hearing admitted around this room today even, we are going to have to live with this pandemic now. And that is how you live with it in the country, as I am sure the member for Ovens Valley would actually agree with, because he has seen the same thing in his community—how well we work together. We have certainly had restrictions eased.

I think we will have more outbreaks, so let us just be sensible, like we have seen evidenced in the country. If you need an example, look at Colac, look at Shepparton, look at Portland, where outbreaks occurred and did not become explosive situations. They were well-managed clusters.

The other thing I think we need to think about is, locally, how well we can do things. The government have actually just recently announced that there is some funding for the logistics hub at the hospital to be moved off site—so the linen area and supply department to be moved off site. That is a really big win for the local area because it means many, many jobs, and I think it is testament to the likes of people like Terry Hoy. Terry Hoy has been in the supply department down at Warrnambool for years.

I used to work with Terry when I would get supplies for the community health service, and he was amazingly resourceful and effective. So it is fantastic to see people like Terry who have done such a great job. Rather than having these top-down approaches—and we could have centralised this—I am really pleased they have not, because the locals know how to do it and they know the needs of their regions. So when we have got situations where we need a hospital, like in this situation, we are now going to move the supply department offsite. I hope that is an indication that the government is ready to fund the next stage, because they know stage 2 of the hospital needs to be done.

Obviously elective surgeries are going to be a massive issue right across the state. Post pandemic there will never be a more important time to fund health and to recognise the importance of health, because everyone has got it at top of mind. The government I think understands that. But we are not going to get on top of elective surgery lists at Warrnambool, for example, unless we actually do get that redevelopment.

That probably leads me close to the end of the bill, so I will just wrap up by saying this is an important bill because I think leaving in an ambiguity like that, which was left in the bill after the change, and then to see an amendment come in today is nothing short of disappointing. With such an important bill you would hope that the government, which was trying to fix up an ambiguity, which is why we are here, would not then come up saying that the law institute and the like actually think there is still an ambiguity in the bill. So to have to see an amendment come before the Parliament within just 24 hours is rushed and poor form on behalf of the government.

But as I have said all through this, the former health minister showed quite clearly that she was not across health like we would hope. The pandemic responses demonstrated that, and we can only hope that now they have had nine months contract tracing is finally fixed. They certainly learnt their lesson about hotel quarantine, and using people untrained in health and infection control was the disaster decision that led to the hotel quarantine mess that let the virus escape. Unfortunately for the 800 families who are suffering today because of the loss, prematurely, of a family member, there is no coming back from that. There is just no way that that is acceptable.

Nor is it acceptable, as I say, to have a very simple bill still being ambiguous 24 hours before the bill when there has been an enormous amount of time to consult and you have got put the likes of DonateLife clinicians writing to the government saying, ‘I think you had better strengthen this up because it’s still quite ambiguous’.

But in the same sense, donating organs I think is a very important thing that people can do if they choose to. It should always be the patient’s choice and the person’s right. It does give life to many people who are struggling. Someone who is on a dialysis machine for many hours of the week really appreciates the fact that they can have a new life, and I have seen that so many times over.

In fact—this is a sad story—I had a man write to me just recently saying, ‘Please can you help me. I’m stuck here in Victoria because of the mismanagement of the government. My mother has just been diagnosed with cancer, and she’s in Queensland and the borders are shut,’ which is the fault of the Victorian government, because we are the only ones with our borders open but everyone not letting us in. He wanted to go and see his mother, and only two years earlier she had donated a kidney to his son. I felt so incredibly sad for this young man whose mum had given his son life and freedom and a future, and here was he not able to go to Queensland to support her in her greatest time of need, having just been diagnosed with terminal cancer.

So they are some of the horrendous stories that we are seeing come out of this pandemic, and I am pretty sick, to be honest, of hearing it called an enemy and ‘It’s terrible overseas’. No, come on, let us work it out. We can do things with restrictions in place. We can manage to live with the virus. We are going to have to, because we have not got a vaccine. And if we just look across the border, as I have said already, to New South Wales, they are being open with their community. They are managing the outbreaks like we have done in the regions, because they are honest and they are clear and I suppose they are not trying to cover up.

You know, when they had the Ruby Princess, they came out and they said, ‘We made a mistake’, and Gladys Berejiklian, the Premier, said, ‘I’m sorry’. We have not seen that same level of dignity or respect for our community of Victoria from our Premier unfortunately. All we have seen is politics played, even though that is the card he keeps trying to throw at us. But as my leader, the Leader of the Opposition, said here in the Parliament yesterday, or it might have been to the press, ‘We haven’t had the respect of those discussions’. You would hope we would all come together and we would all work together—we hope for that—but I have not had any briefings, and I have asked for many from the health minister.

We did not know anything about the state of emergency being extended, which is what I have said about this before. There was no consultation, which we have seen again with this bill. Obviously there was not enough consultation if 24 hours before the bill came to the table, you had organisations like the law institute saying, ‘We probably should strengthen this bill up’. I mean, where was the consultation? But anyway.

I probably just need to conclude with the fact that I do support this bill. I am disappointed that there are ambiguities that had to be strengthened today, given it is a bill about strengthening ambiguities, but you know, we have seen that from the government for the last nine months. I do hope they have got contact tracing right. We have got businesses; families; children who go to school, from prep right through to year 12; university students; and people who want to get on with life and buy a house or get their licence all relying on this government not making the same mistakes continually. We have seen enough of it. We are nine months in now. Get contact tracing fixed and do the job that the Victorian community expects so we can learn to live with this virus. I will leave it at that.