HEALTH PRACTITIONER REGULATION NATIONAL LAW (SOUTH AUSTRALIA) (RESTRICTED BIRTHING PRACTICES) AMENDMENT BILL

Introduction and First Reading

The Hon. J.J. SNELLING (Playford—Minister for Health and Ageing, Minister for Mental Health and Substance Abuse, Minister for Defence Industries, Minister for Veterans' Affairs) (15:36): Obtained leave and introduced a bill for an act to amend the Health Practitioner Regulation National Law (South Australia) Act 2010 and to make a related amendment to the Health and Community Services Complaints Act 2004. Read a first time.

Second Reading

The Hon. J.J. SNELLING (Playford—Minister for Health and Ageing, Minister for Mental Health and Substance Abuse, Minister for Defence Industries, Minister for Veterans' Affairs) (15:37): I move:

That this bill be now read a second time.

On 6 June 2012, the Deputy State Coroner handed down his findings into the unrelated deaths of three babies who died at the time of, or very soon after, their birth, between 2007 and 2011. While the names of these babies are publicly reported, out of respect for the families involved in these tragic events I will choose not to repeat the names in this place.

Each of the babies was delivered by way of planned homebirth at the respective homes of their parents, but unfortunately died after complications that were experienced in the course of their birth. In each of the births the Deputy State Coroner found that there was an enhanced risk of complication associated with their birth that was not unpredictable. SA Health's 'Policy for planned birth at home in South Australia' states that:

The prerequisite for a home birth is that the woman should have an uncomplicated singleton pregnancy with a cephalic presentation between 37 and 42 weeks of gestation (259 to 294 days).

The policy also includes a list of conditions that preclude a woman giving birth at home. These conditions may relate to the woman's obstetric and medical history or may arise during her pregnancy or labour. The conditions may also relate to the home environment; for example, ease of access should a hospital transfer be required and the distance to the nearest hospital.

The policy uses the phrase 'preclude a woman giving birth at home', but I want to put it on record that the government is not opposed to homebirths. The government recognises that where a woman gives birth is her choice. But it is important to ensure that this choice is an informed decision and that the person assisting in the birthing process is appropriately qualified and trained and practises in accordance with accepted professional standards.

In his findings, the Deputy State Coroner found the births were in that category where a homebirth would not normally be considered. One was a macrosomic (or large) baby, the second was a breech birth, and the third was the second born of twins. Complications can, and often do, arise in pregnancies when these indications are identified, and present an increased risk to the mother or baby or both. In these situations, it is important to ensure that the level of care provided is appropriate and that the person providing this care is appropriately qualified. I seek leave to have the balance of my second reading remarks incorporated into Hansard without my reading them.

Leave granted.

It is also important that the mother understands the risk associated with choosing to homebirth where there is an enhanced risk of complication. The Deputy State Coroner raised concerns about whether the mothers appreciated the degree of risk of the complications associated with their decision to proceed with a homebirth. The Victorian Coroner reached a similar conclusion in his May 2013 Inquest into the death of a baby in a planned homebirth in that State where he found:

Her [the mother's] evidence as also articulated in her statement and in counsel's submissions was that had she known there was a risk to her baby she would not have proceeded with home birth plans and would have remained in hospital to deliver her baby.

There will be some parents that will wish to proceed with a homebirth even after being informed of the risks. As the South Australian Coroner found in a 2007 Inquest into the death of a second twin in a planned homebirth:

Clearly the decision as to the place of birth of a child is one for the parents of the child to make. In the present case it is clear that the [parents] made their decision after having obtained a great deal of information of their own initiative. They were clearly intelligent people who were able to make a fully informed decision about the place of birth of their twins.

This Bill is in response to the Deputy State Coroner's recommendations from his 2012 Inquest into the deaths of the three babies. The Deputy State Coroner recommended that the Minister for Health and Ageing:

…introduce legislation that would render it an offence for a person to engage in the practice of midwifery, including its practice in respect of the management of the three stages of labour, without being a midwife or a medical practitioner registered pursuant to the National Law.

The National Law that the Deputy State Coroner refers to is the Health Practitioner Regulation National Law which is the national legislative scheme for the registration and accreditation of 14 health professions. Under the National Law, each profession is regulated to ensure that the persons registered in the profession maintain high standards of competence and conduct. This is to ensure that the health and safety of the public is protected. Should a health practitioner not meet the standards for the profession they may face disciplinary action which may include suspension or de-registration.

Amongst the requirements to be eligible for registration a person must demonstrate that they hold an appropriate qualification to practise in the profession. In order to maintain their registration they must demonstrate continuing professional development. A person that has not been practising in their profession for an extended period of time may be required to undertake further study or only practise under supervision until they can demonstrate competency.

Under the National Law there are currently three practices that are protected—some specific dental treatments, the prescription of optical appliances, and spinal manipulation. The purpose of protecting a practice is to limit its performance to a defined group of health practitioners who are suitably trained and qualified, and regulated. These practitioners must operate under codes and guidelines for the purpose of maintaining high standards of competence and conduct for the scope of practice of the profession.

For example, under the National Law spinal manipulation is a protected practice and may only be performed by a person registered in the medical, chiropractic, osteopathy or physiotherapy professions. Members will appreciate the risk of catastrophic injury that may occur if this practice could be done by unregistered or unqualified individuals.

The Deputy State Coroner's call for the protection of midwifery practice follows the same principle. It is important that any person involved in midwifery practice holds the appropriate qualifications, skills and experience and practises within a quality and safety framework.

It may be useful at this point that I define midwifery practice for the benefit of Members. Midwifery practice refers to the care of a woman across the care continuum of the antenatal, intrapartum and postnatal periods for the mother and baby. In its true sense only a midwife practises midwifery. A medical practitioner may also provide care to the woman throughout the childbearing process. These services are known as obstetric care and are provided by registered medical practitioners who have undertaken education and training in obstetrics, or whose training is recognised by The Royal Australian College of Obstetricians and Gynaecologists and, if employed in the public health system, they are credentialed by SA Health to provide these services.

In responding to the Deputy State Coroner's recommendations SA Health supported the call for legislation to restrict midwifery practice to a midwife or a medical practitioner registered under the Health Practitioner Regulation National Law. In January 2013 a consultation paper was distributed to the peak professional bodies and posted on SA Health's website inviting comments on the proposal to protect midwifery practice in South Australia.

Thirty-two submissions were received following a six-week consultation process and these submissions are available on SA Health's website. 25 submissions supported the proposal to legislate for the protection of midwifery practice; four submissions did not. Another three submissions agreed that the public should be protected from unregistered practitioners but suggested alternate measures to restricting the practice to achieve this.

The Chair of the Child Death and Serious Injury Review Committee has also written to the Government supporting the greater regulation of midwifery services to ensure that 'babies are born as safely as foreseeable in the homebirth setting.' These submissions have assisted in the drafting of the Bill before the House today.

While practice protection works in one way to protect the public by ensuring that only those persons that are suitably trained and qualified can perform those services, in another way it prevents those who are not members of the nominated profession from providing such services. The consultation process highlighted that to protect midwifery practice would affect a number of health practitioners that are involved in the provision of antenatal and postnatal care. This care may be provided by registered health practitioners within their scope of practice or unregulated persons providing emotional or social support to the woman and her family.

Many of the submissions received related to Aboriginal Maternal and Infant Care Workers. These workers work with midwives to provide the best care possible for Aboriginal and Torres Strait Islander women with the goal of reducing poor perinatal outcomes. It is well documented that Aboriginal and Torres Strait Islander women continue to experience substantially poorer maternal and perinatal outcomes, characterised by higher rates of death, pre-term birth and a higher proportion of low birth-weight babies, compared with their non-Indigenous counterparts. The collaborative approach between the Aboriginal Maternal and Infant Care Workers and the midwife and medical practitioner has been important in providing culturally respectful and safe maternity care to Aboriginal mothers, babies and families.

Any practice protection should not interfere with collaborative arrangements between the registered health practitioners and other health providers such as Aboriginal Maternal and Infant Care Workers or support persons such as birth attendants, birthing advocates, doulas, assistants in midwifery, or mothercarers. It is not the Government's intention to restrict the services and support available to a woman during her pregnancy. To do so may inadvertently push women to seek out the services of unqualified or unregistered health care providers.

In restricting birthing practices to either a midwife or medical practitioner this Bill strikes a reasonable balance between the services that may be provided to a woman during her pregnancy and the need to ensure that the health and safety of the mother and baby is protected.

Under the Health Practitioner Regulation National Law it is an offence for any person that is not registered with the Nursing and Midwifery Board of Australia to take the title of 'midwife' or 'midwife practitioner'. It is also an offence under the National Law to claim to be registered or qualified as a midwife, or to take or use any title, or describe themselves in any way, that may cause another person to believe that they are a midwife.

The National Law only prevents a person from taking the title, or leading others to believe they are a 'midwife'; it does not prevent any person from practising midwifery. As the Deputy State Coroner found a person may call themselves a 'birth advocate' and perform the clinical duties and responsibilities of a midwife without having to conduct the practice within the accepted safety and quality framework of the midwifery profession.

A registered midwife or medical practitioner must ensure they comply with any standards, codes or guidelines issued by their professional regulatory board. Failure to do so may result in disciplinary action.

A registered midwife or medical practitioner must ensure that the information that they provide to their patients is based on contemporary, relevant and well-founded evidence and practice. This will allow the woman to make an informed choice about options for her birth. For example, the codes for midwifery require the midwife to practise in a manner that:

…recognises the woman's right to receive accurate information; be protected against foreseeable risk of harm to themselves and their infant(s); and have freedom to make choices in relation to their care.

Under the safety and quality framework the midwifery profession would not have recommended homebirthing for the three babies investigated by the Deputy State Coroner.

The woman is placing her trust in the hands of the health practitioner and will be guided by them in determining that she is making a safe choice. Any person that is not a registered midwife is not bound by the requirements to practise within the profession's safety and quality framework.

I am aware that some people are of the view that the codes and guidelines for the midwifery profession are artificially limiting and favour hospital births, and do not allow an informed choice to be made. While the current guidelines for the midwifery profession state that a woman with certain risk factors should be referred for consultation with another care provider and other women with higher risk status are referred for specialist obstetric care, the guidelines do also support and protect a woman's right to choose where she delivers her baby.

The Australian College of Midwives has recently issued the third edition of the National Midwifery Guidelines for Consultation and Referral that outlines the process for midwives to follow if a woman chooses to proceed with a homebirth even though it is against advice and evidence that it is not safe to do so.

Where the midwife agrees to provide care, the Guidelines suggest that the midwife should continue to make recommendations for safe care, engage other registered health practitioners in the care of the woman, and plan for the management of an emergency.

The decision at this point to continue care does not imply that the woman's decision to choose a pathway of care that carries increased risk of harm to either the woman or her baby is endorsed by the midwife. It is a professional decision to ensure the best outcome for mother and baby.

The midwife may also decide to discontinue care where the woman decides to give birth (including homebirth) in a manner that is not within accepted professional guidelines. In these circumstances the midwife is to inform the woman of the decision and the reasons why. This decision may be made over a period of time as the midwife continues to outline the risks of proceeding with a homebirth to the woman throughout the course of her pregnancy. I am told that this situation will arise in a very small number of cases as once advised of the risk most women will decide against a homebirth.

Where the decision is made to discontinue care the midwife should ensure that the woman has alternative care, which may include providing assistance to find another practitioner who is willing to see the woman and provide care.

The Guidelines advise that the midwife is obliged to attend the woman as the primary care provider if issues arise during labour or in urgent circumstances. Under these circumstances the midwife is to provide care to the best of their ability.

Some submissions received during the consultation raised concerns that passing legislation to restrict childbirth to a registered midwife or medical practitioner is removing the woman's choice to decide who she may have present at the birth. Giving birth involves so many emotions for the woman and her family, and it is important for the woman to not only have people around her that can ensure a safe delivery for the mother and baby but also those who can provide emotional and social support for the woman and her family. It is not the intention of this legislation to preclude the emotional and social support from the woman and her family.

It is accepted professional practice for the midwife to involve others in the care of the woman during her pregnancy and birth, where it is considered that it would be beneficial to the woman or her baby. However, any such involvement must be considered within an appropriate risk management framework where the midwife is to take into account such matters as:

whether the involvement of another is supported by legislation, policies, guidelines or protocols;

that the other person is competent to undertake to perform the activity safely;

that the other person is ready, or confident, to perform the activity;

whether there is consensus in the midwifery profession that another person may perform the activity; and

whether the midwife is available to provide the required level of supervision and support, including education.

Where the midwife makes the decision to involve others in the care of the woman or her baby, the midwife is still regarded as the primary care provider and has responsibility for the overall care of the woman during childbirth.

We have been told that during the consultation period there was a perception from some that registration is just a list of people that can practise in a particular profession. But it is much more than this and this is the message that the Government needs to get across to the public. As I have outlined previously, being registered ensures that the person is appropriately qualified and trained to practise in their profession. In order to continue with their registration they need to continually refresh their skills through professional development. They need to adhere to any standards, codes or guidelines issued by their regulatory board to ensure that they practise in accordance with a quality and safety framework. But more importantly, their practice is at all times under review by both their peers and fellow health practitioners. Under the National Law if a practitioner is impaired, involved in unprofessional conduct or places the public at risk because they are practising in a manner that constitutes a significant departure from accepted professional standards, they may face disciplinary action.

The Deputy State Coroner made a separate recommendation about the need for education in the form of written advice to the public regarding homebirths. SA Health has also accepted this recommendation and work has commenced on an information brochure to be distributed widely and made available on SA Health's website. This brochure will provide up-to-date, unbiased information about the range of birthing options to enable the woman to make appropriate choices in relation to the birth of her baby, including the involvement of a registered health practitioner.

I would now like to take the opportunity to respond to three issues that emerged during the consultation process.

The first was that this change would make the Health Practitioner Regulation National Law inconsistent with other jurisdictions. Shortly after the Deputy State Coroner published his findings SA Health put a paper to the Australian Health Ministers' Advisory Council to seek in-principle support for the National Law to include midwifery practice as a protected practice. Unfortunately this proposal was not supported by other jurisdictions.

The former Minister for Health and Ageing agreed that South Australia would proceed with the practice protection. Since 2007, six Coronial Inquests across four States (South Australia, New South Wales, Victoria and Western Australia) have been held into the deaths of eight babies delivered by way of planned homebirths. SA Health is aware of another death from a homebirth in South Australia that occurred in December 2012 that has been referred to the South Australian Coroner. The circumstances of these Inquests have varied slightly, however, in five of these Inquests it was identified that the deaths resulted from pregnancies where there was an enhanced risk of complication. The common theme in the Inquests was whether the woman had made an informed choice about the place of birth for her baby. The involvement of unregistered persons in these homebirths has been a common element in the Inquests in South Australia and Western Australia.

It is interesting to note that following the publication of the Victorian Coroner's findings released in May 2013 where he also called for greater regulation of homebirthing, the former Commonwealth Health Minister presented a paper to the Standing Council on Health calling for greater regulation of midwifery and maternity care providers. This paper was considered in June 2013 and Health Ministers have agreed to consider options that may be used for greater regulation of unregistered persons providing 'midwifery-type maternity care services'.

While a national approach is preferred, it is the Government's belief that two South Australian Coronial Inquests examining the death of four babies and another death currently referred to the Coroner, highlight the need for greater regulation in this State. South Australia could await the work at the national level but there are concerns about how long this process could take. The evidence is that action is needed now to protect the public in this State.

The proposal to restrict birthing practices in South Australia will create a departure from the National Law which the Australian Health Practitioner Regulation Agency, or AHPRA, will be required to administer in this State. However, Western Australia, New South Wales, Queensland and the Australian Capital Territory have modified the National Law for their jurisdictions on other matters of concern to them, and AHPRA has successfully been able to administer these variations.

The second matter that was raised during the consultation process was that this legislation was not necessary given the increased powers provided to the Health and Community Services Complaints Commissioner to deal with unregistered practitioners.

Members may recall that legislation was passed in this place following the Social Development Committee's Report into Bogus, Unregistered and Deregistered Health Practitioners that gave the Health and Community Services Complaints Commissioner greater powers to take action against these practitioners. Unregistered health practitioners are now required to follow a Code of Conduct which sets out minimum standards of practice. If, after a complaint has been made to the Commissioner, it is found that the unregistered practitioner has breached the Code of Conduct, the Commissioner may make a prohibition order. Such an order will generally be made where the Commissioner is of the opinion that the practitioner poses an unacceptable risk to the health or safety of the public. An order made by the Commissioner may prohibit a practitioner from providing health services, or specified health services, for a period of time or permanently. Penalties apply for those practitioners who do not comply with a prohibition notice.

The Deputy State Coroner recommended that these provisions be brought into place, which occurred on 14 March 2013. However, the Deputy State Coroner acknowledged that these provisions alone would not stop a person who is not a registered midwife from engaging in midwifery practice, hence his consequent recommendation for legislation to protect the practice.

Unfortunately, the Health and Community Services Complaints Commissioner can only take action after a complaint has been made and investigated. This does not stop an unregistered practitioner from engaging in midwifery practice. I think that this quote from the submission from the Health Consumers Alliance of SA summarises succinctly why the Health and Community Services Complaints Commissioner's increased powers are not enough:

…consumers do not believe that this level of protection is sufficient. It is reactive rather than pre-emptive and consideration of complaints and issuing of notices is too late for the dead baby.

The third matter that was raising during the consultation period was a suggestion that women were being forced to seek out unregistered providers because the current level of publicly funded homebirth programs or the number of practising midwives are not sufficient to meet the current demand for homebirthing services.

Statistics released by the Nursing and Midwifery Board of Australia for March 2013 indicate that there were 397 midwives registered in South Australia with a further 2,385 registrants holding dual registration as a registered nurse and midwife.

SA Health currently provides care to women through either the Midwifery Led Continuity of Care Program or the Midwifery Group Practice program in three metropolitan public hospitals (Women's and Children's Hospital, Lyell McEwin Health Service and the Flinders Medical Centre) and six regional centres across country South Australia. These programs cater to women who are at low obstetric and medical risk. An Aboriginal high risk continuity birthing service at Port Augusta is also supported by midwives and medical practitioners.

In addition, SA Health has commenced work on credentialing nurses and midwives that would allow eligible privately practising midwives access to public hospitals.

These are the services available through the public health system. The Midwifery Group Practice Program at the Flinders Medical Centre and Mount Barker maternity services were expanded in late 2012. Any further expansion of the public programs, particularly in country South Australia, is limited by birth rates, demand and workforce requirements as well as geographical and fiscal limitations.

The comments received during the consultation process also highlighted the lack of options for women with complex clinical needs who wanted to birth at home, and under these circumstances had no alternative but to seek the services of unregistered providers. Homebirthing where there are complex clinical needs is not a practice that is condoned by the professions or the current SA Health Policy for Planned Birth at Home in South Australia. However, earlier this year the Australian College of Midwives updated their guidelines to acknowledge that there will be a small number of women who will want to homebirth even where there is an enhanced risk, and so the midwife is able to manage this situation and plan for the management of an emergency. This negates the need to seek out the services of unregistered providers.

The Bill is in response to the Deputy State Coroner's recommendation for legislation to render it an offence for a person other than a registered midwife or medical practitioner to be involved in the management of the three stages of labour.

The Bill before the House will restrict birthing practices, defined as the management of the three stages of labour and childbirth, to a midwife or medical practitioner registered under the Health Practitioner Regulation National Law. It is these practitioners who hold the appropriate qualifications and training to perform a restricted birthing practice and who must practise within accepted professional standards. For any other person it will be an offence to perform a restricted birthing practice with a maximum penalty of $30,000 or imprisonment for 12 months applying. This will include unregistered practitioners, persons who were previously registered but who have had their registration suspended or cancelled, or persons previously registered but who have chosen not to renew their registration. No fine will be applied to the woman giving birth.

The Bill recognises that there are a number of health practitioners that may provide health services to a woman during her pregnancy. By restricting birthing practice, these services may continue. The Bill also recognises that there are others who may provide emotional and social support to the woman and her family during the birth. These persons will also be able to continue in this role.

The Bill also makes provision for those instances where a person other than a midwife or medical practitioner may need to render assistance to a woman who is in labour or giving birth to a child in an emergency.

This Bill is not about denying a woman the choice of whether her baby is born at home or in a hospital. It is about ensuring the safety of the woman and her baby by restricting the management of the three stages of labour and childbirth to a registered midwife or medical practitioner.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will be brought into operation by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Health Practitioner Regulation National Law (South Australia) Act 2010

4—Amendment of Schedule 2—Health Practitioner Regulation National Law

The Health Practitioner Regulation National Law, as it applies as a law of South Australia, is to be amended by inserting a new section that will prevent a person carrying out certain practices associated with a woman's labour and the birth of a child unless the person satisfies 1 of the criteria to be set out in the new provision. In particular, a person will not be able to carry out an act that involves undertaking the care of a woman by managing the 3 stages (or any part of these stages) of labour or child birth unless the person is—

(a) a medical practitioner (as defined by the Law); or

(b) a midwife, as defined by this section (being a person registered as a midwife under the Law); or

(c) a student acting in specified circumstances; or

(d) a person acting under the supervision of a medical practitioner or a midwife and acting in accordance with any professional standards issued by a relevant board; or

(e) a person acting under a recognised form of delegated authority; or

(f) a person acting in an emergency situation.

The maximum penalty for the offence to be constituted by this section will be $30,000 or imprisonment for 12 months. A mechanism is included to ensure certainty about what constitutes the 3 stages of labour or child birth.

Schedule 1—Amendment of Health and Community Services Complaints Act 2004

1—Amendment of section 56A—Codes of conduct

A related amendment is to be made to the Health and Community Services Complaints Act 2004 to ensure that a code of conduct may be prescribed under Part 6 Division 5 of that Act in relation to the provision of health services by any class of persons who are not registered service providers under a registration law that applies in relation to health services in South Australia.

Debate adjourned on motion of Hon. I.F. Evans.