NURSING AND MIDWIFERY PRACTICE BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 September 2008. Page 130.)

Dr McFETRIDGE (Morphett) (12:08): I was not expecting to speak on this bill, but I am more than happy to give some opinion on this piece of legislation, which the opposition will support.

The DEPUTY SPEAKER: Member for Morphett, can I confirm that you are not the lead speaker?

Dr McFETRIDGE: I certainly am not the lead speaker on this bill, but it was a midwife who brought me into this world and I would like to say that I have the greatest respect for midwives, particularly as, on 27 January 1952, it was a very cold and snowy morning in Leicester, England, when my father had to pedal his bike through the snow to get the midwife to come to Saffron Lane and deliver one Duncan McFetridge into this world.

In fact, my mother was able to deliver me into this world without the help of the midwife, but it was with the great after-care of the midwife that I am able to stand in this place today. Because of that fact, this sort of bill becomes a very important piece of legislation, and I strongly support the need to give the role of midwives the due regard that it is given in this legislation. As members of this house know, for many years, particularly in many of our remote communities, the midwife has been the chief medical expert at the delivery of many fine South Australians. With that, I will conclude my remarks, because the shadow minister is here and I know that she will continue.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:10): I am sure that, when I read Hansard, I will be thoroughly impressed and think that my colleague's remarks entirely obviated the need for me to address the chamber on this issue. In advance, I thank the member for his contribution.

Today, I speak on the bill introduced by the minister on 23 September this year. In line with the government's desire to have this matter dealt with relatively expeditiously, I was offered and provided with a prompt briefing last week by Ms Wightman, who advises on a number of these matters, to facilitate the government's request to deal with this matter.

It is noted that this legislation repeals the Nursing Act 1999 and is consistent with the Medical Practice Act 2004 and the precursor bill, together with subsequent health professional legislation that followed for a number of other disciplines. In a large respect, this bill is consistent with the tenor of that raft of legislation over the past three years. I note that the psychometric testing issue is still holding up the Psychology Bill in that raft but, nevertheless, in general terms, the opposition has supported the government's initiatives on these bills, noting the National Competition Policy issues.

We have moved a number of amendments, which we think have been helpful in this raft of legislation. It is the opposition's intention on this bill not to move any amendments, but I will highlight a number of areas of concern we would like the government at least to note and undertake some investigation and review on for the purposes of improving the protection of the public, as well as facilitating the registration and regulation of this discipline and certain other specialty areas. It is probably fair to say that there will be aspects of this legislation which we say are noticeably absent and which ought to have some consideration. So, in that regard, we will ask the government to take heed of some of the issues I propose to raise.

There are a number of aspects to this bill, which is presented as a bill to protect the health and safety of the public, and it does so in the nursing and midwifery fields of the health professional service provided to the community in a manner that requires registration and a regulatory regime. It imposes, as it has historically done, even more punitive action if there is a breach of standards, training, conduct or behaviour in the course of attaining the right to practise in this health professional area.

There are significant increases in penalty in respect of the punitive processes for failing to be registered—that is, to masquerade as a health professional and undertake certain employment and duties without having the adequate registration and/or qualification—and in relation to those who are service providers who employ health professionals in this area to ensure that they also comply with their obligations. There are significant punitive aspects to it.

That is the way this structure operates. It is quite similar to a number of other health disciplines. In that sense, that is the model that is being used, maintained and expanded. However, to use the government's description, this bill has the effect of modernising it. There are a number of aspects that I will comment on to say that the opposition understands why it has been done and/or supports the initiative.

The first is to ensure that properly qualified people are registered as nurses and midwives and enrolled as nurses. This, obviously, imposes standards in respect of training and qualification in order to be eligible for registration and to then have the right to be able to practise. That is a given and we support it. There is, essentially, an expansion of the level of accountability for the services provided by corporate providers of nursing and midwifery care. In principle, we support that, and that is outlined in some detail in the act which I will refer to later.

The decisions of the Nurses and Midwifery Board are to be more transparent. We are yet to see that. In principle, we support that, and I will comment on it. Currently, there are 28 nurse practitioners in South Australia and they are to continue to have adequate training. They have been given special status in this legislation by being able to maintain an independent register. However, they are also recognised as continuing in that category. We support their existence and, if others wish to aspire to that level of health professional standard, we support that—obviously, with the training that is required.

There are new definitions of nursing and midwifery included as being internationally accepted. There could be a lot said about that—as to their necessity or otherwise—but, in principle, we support there being these definitions in the act. Whether they are necessary or adequate is another matter but, in principle, we support that.

There are changes in relation to the composition of the board. It now requires that seven of an expanded number of 11 members must be nurses or midwives. We take no issue with that. We have had different views about the professional qualifications of other members of boards in other health disciplines in previous legislation but, in this regard, we take no objection.

The limit of three terms, which would be a total of nine years on a board, is a legislative imposition now which we do not oppose. Frankly, it could have been done by requiring it to be taken into account by a minister when making the appointments but, in any event, we have no objection to the principle. The idea is that there is a turnover of professional expertise, and we support that.

The Hon. J.D. Hill interjecting:

Ms CHAPMAN: Yes, thank you, minister. The minister points out that there are some elected—not many—nevertheless, for those who are, we accept that.

There is a level of capacity for complainants to be entitled to be involved in proceedings where there is an investigation into the conduct of particular individuals; they have more rights enabling them to be present. However, I do note that the legislation makes provision for proceedings to be held in secret and that that discretion is still left with the board. I am not quite sure how giving notice (of itself) and an invitation to attend, while still retaining that provision, does expand this. I suppose that, at least, the complainants know about the dates and times of the hearing but they may still have to wait in the corridor. However, in any event, we take no objection to advice. That seems to me to be part of natural justice and should be acknowledged, and we support it.

There is to be a register of students, which is consistent with the previous legislation. We have had this debate before: they get it for free, and I note in this bill they will get it for free, as well—as they should. The power of the board to impose conditions, including the power to suspend or impose those conditions prior to the hearing of a complaint, is important. It is consistent with the previous legislation. Again, other boards have been given this power. A number of them have sought it over the years—not just in the health area but in others—and I think that is important. With the approval of the minister, there is power to develop codes of conduct for the behaviour of service providers. I have not seen any of these yet, but I do not see any reason why that should not be supported.

There are provisions for the imposition of conditions by the board if a professional applicant has not worked for five years or more, and I will have something to say about that shortly. In principle, this is a legislative obligation on the board to consider skilled applicants who have been out of the workforce for more than five years.

There has been consistent legislation—with other acts—relating to investigations; that is, a requirement to answer questions, even if there is an incriminating component. Obviously, that is restricted information to be used only for distributive purposes and not evidence for criminal proceedings. That is an important qualification. As I have said, it is consistent with the other acts. It is an offence to hinder and obstruct inspectors; they seem to have been given a bit more power. In any event, that is a process necessary to protect a person who is accused of some misconduct or failure to act in some manner, and it is also consistent with obtaining sufficient evidence for disciplinary purposes. I think it is a fair balance.

The capacity for a single board member to be able to determine a complaint rather than pull together the whole group for what appear to be lesser misdemeanours is, I think, reasonable, and we support that.

The appeal process being taken from the Supreme Court to the Administrative and Disciplinary Division of the District Court is not necessarily desirable. We have not raised any significant objection in relation to other acts other than the Medical Practice Act, where we were clear that there must be an appeal to the Supreme Court because, quite clearly, medical and dental professionals authorise, advise or carry out procedures which can kill people. That is a very serious consequence; I cannot imagine anything more serious. Therefore, there must be an appeal to the highest court.

With the expansion of qualifications and duties undertaken by people in the nursing profession, I think a risk exists with specialised nurses—nurse practitioners come to mind—and this in no way suggests that they would commit any sort of misconduct. I think that, with the expansion of their duties and the capacity to administer medications, a risk would exist and, looking through the Nurses Board complaints historically in respect to registered nurses, it is something to be mindful of. Therefore, to reduce this appeal process to the District Court is not really in the best interests of either the complainant or any potential victim. However, the government has decided that it is going to demote this level of appeal for nurses. I take a different view, but it is perhaps relatively minor in the scheme of things.

The government, in referring to the midwifery profession in the title of the bill, has decided that midwifery should be recognised as a profession, presumably independent of nursing, as clearly it is; in fact, you must undertake a separate degree course to qualify as a midwife. We do not take any issue with that, but the government has seen fit to do that and also to maintain a separate registry for midwives in the state. I note that, in the annual reports of the Nurses Board, a separate registration of midwives is already kept, and I will refer to that in a moment. We do not take any issue with that, but I will refer to it in the context of maintaining a register of midwifery and a separate registry in relation to nurse practitioners when I come to what I call the demise of the mental health nurses.

In referring to the nursing profession in South Australia, and I say that in its broadest sense, The State of Public Hospitals, June 2008 Report (a report of the commonwealth Department of Health and Ageing provided in 2008 for the previous financial year) tells us that, as at 30 June 2007, 18,769 people are working in our public hospitals and, of those, 8,821 are nurses. There are just over 2,000 salaried medical officers, other health professionals, a very large proportion of clerical and administrative staff, and some personal care and domestic staff. So, there are a number of other categories but nurses make up essentially nearly 9,000 out of nearly 19,000.

It is interesting to note that, when we come to the whole of the health sector, and we look at the Auditor-General's Report published yesterday, for that same financial year—and, of course, he has provided details for 2008 as well—10,066 nurses are in the total health sector along with a number of others, including medical staff, scientific administration, allied health, etc. totalling 25,100 people plus 759 at the Department of Health (the head office staff) and another 983 in the Ambulance Service. That totals 26,842 people. I am referring to Part B: Agency Audit Reports, Volume II, page 576 which all relates to 2007. Remember that, out of 26,842 people employed in the health department (now including SA Ambulance Service) for the same period ending 30 June 2007, 18,769 people are employed in public hospitals.

Therefore, the consultation was very interesting because we were advised by the minister in his second reading explanation that a number of people were consulted—organisations, particularly, although some individual submissions were received. I have also received from the minister's office the details of the more extensive list of consultation that has been undertaken. I say that because, as at 30 June 2007, we have 28,140 registered nurses in South Australia. I point out that, in the data I have identified, less than half of those (closer to a third) are actually employed in the public health sector.

The minister told us early in his contribution that the Nurses Board of South Australia had identified a number of areas in the current legislation that needed to be improved, and we support that. That is a very good group to start with in consultation. He stated:

Key nursing and midwifery organisations, such as the Australian Nursing Federation, the Royal College of Nurses, the Australian College of Midwives, the Australian College of Mental Health Nurses Inc., have also identified areas for improvement and have been consulted during the development of the new proposed legislation.

We endorse the fact that they are all important agencies and stakeholders in the development of this legislation. In fact, the opposition had written to the Australian Nursing Federation to ascertain their view on the bill, as we consider that they are particularly important stakeholders. So, we acknowledge the government's consultation in that regard: it is all important, and one would hope that the government has listened to the issues that each of them have raised during this development.

I received a letter from the minister's office confirming that submissions had been received from a number of other organisations, and that was pleasing to see. They include groups such as: the Maternity Coalition; Lifecare, which is the Park Rose Village and Aldinga Beach Court; educational people from TAFE; Aged and Community Services SA/NT; the Christian Science Committee on Publication for SA; Health Consumers Alliance; the Nursing and Midwifery Governance Council at the Flinders Medical Centre; the AMA; and some other individual submissions, in addition to those that have been referred to.

I was also advised that the Royal College of Nursing (SA Chapter), the Australian College of Mental Health Nursing, Nursing and Midwifery Executive Leaders and Directors—I am not quite sure who they are but, in any event, they deal with public and private sector hospitals—and the Australian New Zealand Council of Chief Nurses had been sent copies of the bill but had not put in any submission, which I found rather interesting given that the minister had told us that the Australian College of Mental Health Nurses Inc. had been very involved in providing and identifying areas for improvement. So, I did find that a little inconsistent, although perhaps there has been some oral contribution at some stage. Indeed, this bill has been out there for a long time.

I was also given a very extensive list of other important people, and I will summarise them: state government agencies, local government agencies, all the different divisions of general practice, and a whole list of private hospitals and aged care services—all of which are important. I will not detail them all, but it is fair to say that the government had sent copies of the bill to a number of people, and they are all there to be seen and noted.

What I find incredible is that there does not appear to be any consultation with, or even a copy of the bill sent to, the nursing agencies in South Australia. These are the people who in some instances in certain hospitals are providing 60 per cent of the nurses who are working on a given day. These are the people who are going to be further regulated as service providers and who have obligations in relation to insurance to protect their nursing and carer staff, and they have had no notice at all. They have not been consulted at all, and I will refer to that later because, to me, this is an area that opens up a whole level of failure to take into account the regulation and/or registration of the carer industry. I think that that is a woeful omission from this legislation and I think it needs to be addressed.

I will come to that detail later, but half a tick is awarded to the government for consulting those who have been identified as relevant; another cross for those it has either conveniently left off, or did not want to hear from. I can say that the opposition has consulted with some of them and, to a large degree, they support what will be imposed on them, I might say, and they do not have an issue with it. It is bizarre that a government would introduce a whole new set of rules for this industry, not just for the professionals, but for the industry that is out there every day, placing people in gaps in public and private hospitals and aged care facilities without telling them about it.

The first area of concern that I want to address is the training obligations, which are already in place to some degree under the umbrella of the existing act and which will be perpetuated in this legislation. I turn specifically—for those who will ultimately follow this debate—to clause 35 of the bill, which imposes conditions on nurses or midwives if they have not practised in their profession for five years. They may have undertaken other work, but not specifically in their profession. Under this requirement, if the board is satisfied that they have not practised for five years, it may give notice of the imposition of a number of conditions on the practitioner to practise in either a limited capacity or under supervision, or they may not be permitted to undertake that work if they have not actually begun practising.

It seems to me that there is a capacity to keep paying your registration fee but, if you have not been undertaking nursing duties or practising your profession for five years or more—I am unsure whether that has to be in a ward, or whether it could be in a car, moving from house to house taking blood, or in an office—then, under this legislative umbrella, the board can step in and say what you have to do. We will ask some questions about that during the course of the committee. That is a good thing: if you are not practising your profession, there must be some kind of process to ensure that you are up to speed with your contemporary obligations.

I do not have any issue with that; that is important. It is like continuous education in any profession; whether you are a teacher, a lawyer, or an accountant, you need to be up-to-date with what is happening. If you are dealing with medical procedures and/or medications, it is important to be up to speed with the different types of approaches to situations. For example, what do you do when a suspected snakebite victim turns up at the surgery and a nurse asks, 'What are we going to do with this? Are we going to put a tourniquet on it, are we going to cut it, are we going to suck it, or are we going to do all those other things that we used to do in the past?' or 'What is the new thing that is now done to maintain and stabilise the victim until they receive medical treatment?' These things change and nurses have to be brought up to speed.

My understanding is that, if it less than five years, there is a 10 to 12-week refresher course that can be undertaken at a registered training organisation or at the Royal Adelaide Hospital or the Flinders Medical Centre. However, in other circumstances, they may need to do a re-entry course, which, I think, is a 16-week course available at either the University of South Australia, the Royal Adelaide Hospital or the Flinders Medical Centre. They are logical, and they are important.

What happens, though, when they have been out of the workforce for more than 10 or 15 years? This is common in the health industry for lots of reasons, not the least of which is that women still make up the bulk of the professional composition of the nursing industry and professional body. I expect that for some time that will continue, although a few more chaps are seeing the light of this being an important profession and nudging in on the statistics, and that is fine.

However, for as long as it is a highly feminised industry and for as long as women are the producers of children (and I do not think there is any reason why that will change in a hurry), they do carry out a large role of child rearing and therefore frequently there is a period of time in which they have child rearing responsibilities they want to undertake. Another area of frequent responsibility for women—more so than men at this stage—is the care of the elderly. I am one of probably many in this chamber who are in that sort of in-between generation, where it seems we end up with both: no sooner do you get rid of your children than you are looking after your parents—sometimes it overlaps.

There is a large desire on the part of a number of people who are in this profession to undertake other areas of family responsibility and who therefore disappear from the professionally-employed market for a while. That is fine, but what do we do with them when they come back 10 years later and say, 'Well, actually, now I would be very happy to go back and work four nights a week or do some work in a hospital'? We have this draconian idea that we must make them redo their whole qualification. I have inquired of the Nurses Board about this, which says, 'Well, of course, this is all part of the safety requirements for the public. We need to make sure that, after 10 years of being out of the workforce, they are properly skilled, and to do that, frankly, they will need to redo their degree.'

We may, between that 10 and 15 year period, give them some credit for the fact that they have been in a caring role, which would presumably maintain at least part of their skill and experience. That could be recognised and they could be given credit for it in terms of undertaking the sufficient modules (that is my language) or sufficient parts of the requalification for their degree. No other professional person that I know of (and I have searched a number) lose their qualification or the right to practise after they have been out of the workforce for more than 10 years. I think that is a scandalous practice. I do not care whether it is this or previous governments, it is unacceptable to me as a trained professional (but not in the health industry) and as a female that there be a reduction in the status of the qualification of these people by effectively wiping out recognition of that degree and requiring them to start all over again.

Some people will say, 'Well, look, it is still more important that we look at the safety and protection of the public.' However, we do not ask doctors, academic professors, lawyers or accountants to do it, yet we wipe out the recognised academic standard these people have. That degree or diploma they obtained is wiped off the face of the earth has having absolutely no recognition whatsoever. You have to do it all again.

People might say that that would rarely happen because most often there would be sufficient work they have done in the meantime to give them some recognition, so they may only have to do 90 per cent of it. That is not the point. I have had the people concerned come to me—and why have they come to me? Because I am the opposition spokesperson for health. They come to me and say, 'I have raised my children, and my parents have died'—or whatever the reason—'I now want to go back into the workforce and do you know what I have to do to?' I say, 'What is that?' They say, 'Actually, I have to redo my whole degree.' They say that they cannot just do an extra extended refresher course but have to repeat the whole degree. They have to do their training in the hospital, where they might have worked 12 or 15 years before, and work for nothing and retrain to get their degree. That is a scandalous situation. Here we are in this state, in fact the whole country, desperate for nurses, yet we are putting up this barrier for those re-entering the workforce, and at the same time insulting the professional standing of these women, in particular.

In the last decade or so there has been a further expansion of men into the profession, so those numbers will change again in the future. Perhaps it will take men coming into the profession to note this and say, 'We will not put up with this; this isn't acceptable.' I do not know what will happen, but I want the government to understand that we in the opposition think it is unacceptable and want it looked into, because to me it is a total insult to women and the nursing profession in particular.

The person who raised this matter with me, as an example, had been out of the workforce for just over 15 years. She had raised a family of three children, undertaken other work—having done some volunteer work in health agencies during that time—and was required to repeat her degree. She said she thought it would be reasonable to do a six-month re-entry course—much longer than required at the moment—and to have an exam at the end and, if her professional competency was below standard, she would not pass and not be registered. She accepted that. That is an example of where someone says, 'I accept there must be standards; I don't want my degree wiped off as though it doesn't exist. I will accept a competency test or examination, but I think there's a better way to do this, especially when there's a drought when it comes to the workforce supply.'

The only fate for that person was to undertake a three-year registered nursing course—18 months as it was then, because it was a little while ago—as an enrolled nurse if she were to be recognised sufficiently for registration and to go back into the workforce. She did not do that. She went and got a job doing something else, and was probably paid more than she would have received as a registered nurse. She was ready, willing and able to line up and provide nursing services to South Australia, but she is out there doing an administrative clerical job in another industry altogether. She is lost to the profession. She is about 50 years of age and has plenty of working life left in her, I can tell members.

The other aspect is that, when it comes to the retraining component, it means that, when you give someone a refresher, re-entry or, in this case, a full degree, you need to find places for them to retrain. You need to find host surgeries, hospitals or facilities that will accommodate them to enable them to do this. Of course, they can have training on dummies on how to use new pieces of equipment, and they can have written examinations and those sorts of things, but for their practical retraining and trying out the new equipment that was not around before they left the workforce, these places are required.

One needs host facilities in order to do it. As they do in TAFE organisations, one way in which to do it is to have little rooms with dummies, as they do, also, for shopkeepers where they set up little shops and people pretend to be serving and there is a fake but, nevertheless, realistic provision of an environment in which to train.

One of the problems we have got already in accommodating traineeships is space in these facilities. Whether we fix up this issue or look at it from the perspective of overseas-trained people trying to get their skills up, or look at a much greater group coming into the workforce that we will need in the future, on anyone's assessment we will have to provide these spaces. I want to comment on two aspects of this issue because this has been the domain of the Nurses Board when it looks at its role in implementing the standards for training, in particular the legislative obligation which will be perpetuated in this act by clause 36.

I will give an example of the problem. A 36 year old mature-aged student contacted me last year. She had been undertaking a Diploma in Enrolled Nursing. Her training was with a private provider that provided a 12-month course whereas it was an 18-month course with TAFE. She had a young family. She had been out of the workforce for 11 years and she wanted to retrain to go back into nursing. She lived in the Modbury area and she was happy to work in any of the major hospitals in the area—either Modbury or Lyell McEwin. The Modbury Hospital had said that it would take a number of students, but when she said that she had undertaken her training through a private provider she was told—and I quote—'We're no longer taking them from private colleges.' Her class was left without any placements. She was unable to find a position, and she told me about other class members in the southern districts region, not the north-eastern suburbs. She asked, 'What will I do about this,' and they said, 'There's a training spot available at Booleroo Hospital, if you would like to take it up.' This lady lived at Modbury. I wonder how these sorts of rule changes will enable us to embrace those who want to resume working in the nursing industry, rather than set up barriers for them.

I will give another example. Ultimately, the minister's office in this case was helpful in dealing with the matter, but essentially it involved an overseas trained nurse from Canada who came to Australia. Her husband was obtaining a masters degree. She was highly qualified with lots of experience and came from an English speaking country. She went to the Nurses Board to get her qualification recognised. On the website there was a reference to the fact that there would be a possible three-month delay in processing applications because they had so many people wanting their qualifications to be dealt with.

To some degree this is a resources issue, as distinct from a barrier, because no-one is suggesting there be a change of standards. But, what was evident—and this was a question of flexibility—was that the board had imposed a standard to recognise the fact that sometimes people can be overseas-trained at some institution which, frankly, is a bit dodgy and not up to a reasonable Australian standard, so it has to be properly investigated. Sometimes the applicants come from a country where English is a second language and there is the question of a language barrier and the capacity of that person to undertake their duties in the Australian system. That is a standard, and that is fine.

But here we have this one-size-fits-all approach where they wait in line. Someone from Canada, who speaks English as her first language and has years of experience, is waiting on a list under those who are waiting to come in from, say, South Africa or another country where there is not the same standard and where, clearly, inquiries need to be made. There is no question about that.

I wonder about the way we are operating and whether the government (which has the responsibility, through the department) and the nurses board (which is vested with this responsibility and that will be perpetuated under this bill) recognise that in the real world we need a lot of nurses, but we are treating those who have been in the workforce and gone out of the workforce with a high level of disrespect and making it as hard as hell, to be frank, for them to get back into the workforce by having this inflexible, one-size-fits-all approach. I think that needs to be reviewed. That must be done if we are to ensure that we have an adequate workforce in nursing and other specialty areas of nursing, which we all know are going to be with us.

The next matter that I move on to is the obligation that is proposed to be imposed on nurses of being a fit and proper person. However, before proceeding with this topic, I seek leave to continue my remarks.

Leave granted; debate adjourned.

[Sitting suspended from 12:58 to 14:00]