Page 2893 - Week 10 - Wednesday, 14 September 1994
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However, I must say that, as far as I am concerned, it is not enough to say that the origins of this Bill are suspect in order to say that the Bill itself is worthy of being rejected. The phrase "the devil can quote Scripture to prove his purpose" springs to mind. It is worth bearing in mind, however, that it is Scripture, nonetheless, even though it is the devil that is quoting it. Having heard the debate, I must say that I am unable to discern any intellectually valid or sustainable argument, beyond mere innuendo, against the passing of this Bill; and therefore I intend to support it.
Unquestionably, the state of the law in the ACT at the present time is unsatisfactory. By refusing to pass this Bill, we would be shutting our eyes to what happens in our hospitals in this Territory every day of the week. We would be saying to people in our hospitals who are charged with these complex and difficult questions, "Do what you do now. Do it with our blessing" - as I have heard no-one here say today that they do not believe that these things should take place - "but do not ask us to protect you if you get sued as a consequence of your actions". Madam Speaker, I reject that approach. If we accept that these practices should take place in our hospitals, if we believe that medical practitioners are entitled to consult with their patients to achieve these ends, then we should protect those involved.
Madam Speaker, there are a few questions that have been raised by my colleagues that I want to respond to only briefly. Mr Kaine has raised the question of whether, having accepted that a written direction is okay, an oral direction should be a mechanism by which one expresses one's views about whether one wants treatment withdrawn or refused. Mr Kaine's argument appears to be that, if a person is in pain, ill in a hospital, it ought not to be assumed that they will have the mental state of health, if you like, to be able to give validly a direction about their treatment. In fact, it goes somewhat beyond that. He seems to suggest that a person is capable of making a written direction satisfactorily but cannot always give an oral one.
I think it is a dangerous assumption, Madam Speaker, to suggest that, because someone cannot write something down, they are not capable of making a sound judgment. Certainly, it is true to say that some people who are physically incapacitated will also, as a consequence of that, be mentally impaired at the same time, be either incapable of forming a rational judgment or so distressed at the time that they would not be able to actually proceed to make a rational judgment about their treatment. But the legislation does talk about people being of sound mind when making this kind of direction and it backs that up by saying that a medical practitioner will not give effect to a direction unless it appears that the person who has affirmed that direction understands the consequences of what they are doing. Of course, we expect certain judgments to be made by medical practitioners about the extent of understanding by their patients. We expect that all the time. Medical practitioners have to make that kind of judgment every day of the week in respect of all their patients. For all sorts of reasons, patients might not be capable of making a rational judgment. To suggest that a patient is necessarily unable to make a rational judgment because he or she cannot give a written direction, I think, goes too far.
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