Page 2880 - Week 10 - Wednesday, 14 September 1994
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A health professional shall not comply with the request of a grantee to withhold or withdraw medical treatment from the grantor unless satisfied that -
(a) the power of attorney under which the grantee's request is made complies with this Act ...
You have a nurse on the floor of the ward, and Freddy comes in and says, "Pull the plug on Aunt Fanny because I have a document here that is a power of attorney". Is the nurse supposed to make a legal judgment about whether that complies with this Act? The answer is that the nurse would not be competent to do so. In fact, it is stated twice in here that this is the case. I find it quite exceptional that we are placing this kind of responsibility for legal decisions on health professionals. They are not qualified legal people. How can we expect them, under stress, which we know exists in our hospitals - we have heard a great deal about it lately - to make rational decisions that will involve them in legal consequences if they are wrong?
Let us look at that question for a moment. The Bill purports to place a legal responsibility on these people. At the end of the day, how good is that legal prescription that is going to make these people act in the proper manner? It has no validity at all. Clause 20 states:
A health professional incurs no liability for a decision made by him or her in good faith and without negligence ...
How do you prove that? The health professionals make their decision, the person dies, somebody challenges it, and you find yourself in the High Court arguing whether or not this decision was made in good faith and without negligence. In other words, it would be thrown out by the court. It would always be assumed that the health professional had acted in good faith. Unless you can prove negligence, it is clearly without negligence.
The legalese in which we are trying to cloak this legislation, that says that these things can happen only if people comply with the law and establish the fact that the document before them is in accordance with this Act, is a load of rubbish. No medical professional, in the heat of the moment, is going to dash off and have a look at the Act to see whether it complies in every detail. That is a lot of baloney. But the Bill purports to give all these acts legal backing. It does no such thing. The first time somebody dies as a result of a health professional making a decision under this legislation and it ends up in the High Court because a relative takes exception to it, it will be proved what a paper tiger this piece of legislation is.
Madam Speaker, first of all, there is no need at all for this legislation. I do not know why people put the legislation before us. It was not what anybody asked for originally. What was asked for originally was totally rejected. It was rejected by the committee which Mr Moore chaired. So, instead, we got this. When you look at this piece of legislation that is before us, you find that most of it is unnecessary, and what little is left that might be necessary is the two points that I made, which I said I would agree with.
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