Bills

Health and Community Services Complaints (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 November 2018.)

Mr COWDREY (Colton) (11:02): I rise this morning to indicate my support for the Health and Community Services Complaints (Miscellaneous) Amendment Bill 2018 and note that this is largely based on a bill that was introduced in the last parliament prior to rising for the election. In large part, it has broad support from both major parties and, from what I understand, it passed the other place in a reasonably expedited fashion with broad support from both sides.

The contents of this bill were largely based on the 2009 report of the Social Development Committee of this place, entitled 'Bogus, unregistered and deregistered health practitioners'. The report canvassed a range of issues about unregistered health practitioners, particularly those working in contemporary and alternative medicine. A key finding of the report was that in the absence of a registration scheme such as that applied to medical practitioners—whether they be dentists, nurses, physios, etc.—there was at that time no way to protect the public from practitioners whose practices were harmful.

To give a level of context, the unregistered health professionals we are talking about in regard to this bill are often those working in contemporary health—for example, naturopaths, massage therapists or counsellors. This includes people who advertise or claim they can cure cancer or other terminal illnesses where there is no evidence to support their claims. An employee behaving in this manner could be terminated from their employment; however, they could continue to place the public at risk by establishing their own practice or working for someone else.

As a result of the recommendations and outcomes of the report of the Social Development Committee of this place, a code was included in the regulations under the Health and Community Services Complaints Act. The code was based on one operating in New South Wales that set a minimum range of standards for unregistered healthcare workers. A breach of the code could lead to a prohibition order being made by the Health and Community Services Complaints Commissioner if the commissioner was of the opinion that action should be taken under that part of the act to protect the health and safety of members of the public.

Subsequently, other states and territories decided that there was a need for the protections that were put in place and codified in South Australia and New South Wales. We should be very proud of our leadership in this space. In 2015, the Council of Australian Governments (COAG) Health Council agreed that a nationally consistent code, developed after national consultation, should and would be implemented.

The National Code of Conduct for healthcare workers is based on the South Australian and New South Wales codes previously alluded to and improves their clarity and focus. Before the national code can be implemented in South Australia, some amendments to the act are required. These are contained in the Health and Community Services Complaints (Miscellaneous) Bill. The amendments include provisions to enable orders made in other jurisdictions to be enforced in South Australia and to enable volunteers to be investigated in regard to part 6, division 5, which deals with actions against unregistered health practitioners.

Volunteers are excluded from the general complaints provision of the act; however, if they are deemed to present a risk to the health and safety of the public, they need also to be subject to an investigation when that is necessary. The provisions of section 56B now provide a discretionary power for the commissioner to issue a public statement and a public warning on the basis of an interim order. The commissioner currently only has the power to make a public statement and issue a public warning on the basis of a final order.

The amendment of sections 56B and 56C specifies that a prohibition order, whether that be interim or final, may prohibit the person from advertising their services, holding themselves out as a provider of these health services or further providing advice about health services. These prohibitions may apply to health services generally or to specific health services.

Section 77 enables the commissioner to obtain specific information from professional organisations for currently unregistered healthcare workers, for example, bodies such as the Australian Association of Social Workers or the Australian Natural Therapists Association. These bodies often investigate their members if complaints are received, and this information may well be valuable to the commissioner in making a case against a particular healthcare worker.

An additional prescribed offence to 5C of the regulations will enable a person who commits an offence against division 10 of the Health Practitioner Regulation National Law (South Australia) Act—that is, by holding out as a registered health practitioner—to be prevented from continuing to work in the same area, by the commissioner making an order if necessary. The Australian Health Practitioner Regulation Agency does not currently have the power to make a prohibition order against an unregistered practitioner; it can only do so against one who is registered. Changing the terms 'health service user' to 'health service consumer' and 'community services user' to 'community services consumer' are changes that also reflect contemporary language changes.

These amendments to the act and subsequent regulations and the implementation of the national code will contribute to better protection of the community from healthcare workers who attempt to exploit people by claiming that they can cure cancer or other terminal illnesses, or whose practices are harmful in other ways. Most unregistered healthcare workers are honest and professional in their approach to the services they provide and have no difficulty adhering to the current Code of Conduct for Unregistered Health Practitioners in force in South Australia.

The obligations arising from the national code are similar to those currently in operation, both in South Australia and New South Wales. If a healthcare worker is operating a single-person business and they become subject to an order prohibiting them from practising, their business may suffer if they cannot engage someone to take their place for the period of the prohibition order. For other businesses, the national code will enable them to promote their work as meeting Australia-wide minimum standards. Importantly, the national code does not place more onerous requirements on healthcare workers than the current code.

This proposal and bill enhance social justice by providing a means of redress for people who have been harmed or exploited by unregistered healthcare workers. People who have been subject to unscrupulous health workers providing services that they claim to be health care are often embarrassed about being taken in and exploited. This proposal enables them to have their complaint assessed and investigated and the public to be protected by making an order if the relevant criteria are met.

The Health and Community Services Complaints Commissioner has been consulted in regard to this proposal and bill and is supportive of it. The national code was the subject of national consultation and was overwhelmingly supported at the South Australian meeting of COAG. The commissioner will be responsible for communicating with the community and with healthcare workers about the national code when it is included in the regulations under the act. As the South Australian community is already familiar with the very similar code in place at the moment, it is incredibly unlikely that any controversy will be created by this proposal.

As I have said, this bill and the recommendations of the COAG council have gained broad support across both parties and more broadly. This bill is, of course, a response to the Social Development Committee's work in the previous parliament. I am sure there are some in this place, or perhaps in the other place, who served on that committee and who are still here.

The investigations they undertook by way of their committee work uncovered a number of issues in regard to unregistered health workers, particularly the work they did around those who have been promised miracle cures for serious medical illnesses. They discovered, in the cases they looked at, that these often involved unorthodox and unproven treatments, such as dietary regimes, dietary supplements and the cessation of conventional medical cancer treatments and palliative care. During that inquiry, they heard that significant amounts of money were often extracted from these individuals. Payments were often up-front and no receipts were issued.

This bill seeks to address an issue and a class of people who are often quite vulnerable. When dealing with a debilitative medical condition or diagnosis of a terminal illness, people often search for solutions that may sit outside mainstream medicine. Sadly, at these junctures in life, the choice of continuing conventional medical treatment or having the opportunity or the promise, I should say, of a solution or treatment that potentially promises outcomes that perhaps are outside what medical professionals are able to provide leads to that sort of vulnerable situation. I myself have had close family members who have, at this juncture in their life, decided that they would seek alternative solutions and healthcare cures to try to extend the opportunity they have to stay with loved ones and friends.

With that, I indicate my support for this bill. I think it is an important step in continuing to ensure that any breaches of the code are able to be enforced, both in South Australia and across the country. I believe an approach that is nationalised should be endorsed by us in South Australia and, of course, around the country as well. I sincerely thank the minister in the other place for bringing this legislation to this parliament.

The Hon. Z.L. BETTISON (Ramsay) (11:14): I indicate that I will be the lead speaker for the opposition on this bill and that the opposition intends to support this bill. In essence, the Health and Community Services Complaints (Miscellaneous) Amendment Bill 2018 legislates for this national code to apply in South Australia. Essentially, we are aligning South Australia's best practice model with other jurisdictions. As we heard in the second reading speech in the other house, harm prevention is at the heart of this bill and whether a health practitioner—regardless of whether they practise mainstream, complementary or alternative forms of medicine—presents a risk to the community.

There is quite a significant history of discussion about this subject in this place. In 2007-09, the Social Development Committee undertook an inquiry into bogus, deregistered and unregistered health practitioners. As I understand it, that came about through some of the treatments offered by unregistered practitioners to South Australian people in the terminal stage of cancer. So it has a long history here.

In 2018, the COAG Health Council also committed to looking at the codes of practice for unregistered health practitioners. More than anything, one of the concerns is that we have seen people who have been deregistered in other states then move to South Australia and continue practising. The ambition here is to have a national code for those people and to have the prohibitions that can be maintained as well. A key thing we want to ensure is that we work towards a national code. As I understand it, the ACT, New South Wales, Queensland and Tasmania have protections. Western Australia is also looking at a new act, and Victoria has made some progress in this area.

When we introduced this amendment bill into this house, some of the language was updated. The commissioner indicated a change in language from 'user' to 'consumer' and that is reflected in many of the minor changes in the bill. There will be an updated code of conduct that will be added later in regulations, and a key part of that is that it will be in plain English so it will be very easy for people to understand what protections will be in place.

We look forward to this making its way through the parliament and, therefore, successfully come into practice next year. As I said, I understand there is going to be a national code of conduct going forward.

I would like to talk about clause 13—Amendment of section 56C—Commissioner may take action. Section 56C(1) provides:

(1) The Commissioner may act under this section if—

(a) an investigation has been carried out under this Part in relation to a person who has provided a health service; and

(b) the Commissioner is satisfied that the person has—

(i) breached a prescribed code of conduct under section 56A…

And paragraph (c):

(c) in the opinion of the Commissioner the person poses an unacceptable risk to the health or safety of members of the public in providing health services.

The key issue here is: what can they do? Going back to clause 12, we understand that the commissioner can 'make an order prohibiting the person from doing 1 or more of the following for a period of 12 weeks', which includes providing health services, advertising or otherwise promoting health services or specified health services.

I guess this is one of the areas I am most concerned about. We see complaints about advertised miracle cures that people have used and they have not worked, but they continue to be advertised. This bill strengthens the ability for that to be removed. I understand that that is something that the commissioner now can do across the board. As we know, under the AHPRA area, the commissioner already had the ability to have that prohibition and complaints process for nurses and doctors, but this is to cover unregistered practitioners.

When we introduce bills like this and we debate them in this house, we are looking at how we can support South Australians. We know that people look for different avenues when it is a serious situation or there is frustration that traditional methods of medicine have not been successful. While we understand that people have that desire to find other answers, we also want to protect them at the same time.

We know that there have been changes over time and that complementary medicines are recognised sometimes because of their histories. We know throughout our time that different groups have used very traditional medicines and that they can be complementary to our now well-developed pharmaceutical way of supporting people. The most important thing here is that we are supporting South Australians, we are protecting South Australians, and that is what we want to do here. We want to make sure that they are being looked after.

I think it is always important in this situation to have a national response to this because we know that people move between borders and that if they are prohibited in one place they will just move their business to another place. The one thing that comes to mind is people advertising online. How would this be enacted online? Of course, if you have a national code of conduct, wherever their business has been registered, then that can come into fruition and be used. As the lead speaker for the opposition, I speak today because we support this bill and we want to continue to have the debate here in the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (11:21): I just want to make a small contribution in relation the bill. I commend the work that has been done in the preparation of this bill, particularly the committee of inquiry, to deal with this question of those who purport to practise. As the Minister for Consumer and Business Services, I have to consider regulation of a lot of professions, and this is one of them. Medical and health practice is a serious profession that has serious consequences if it is not administered safely.

I would also just like to place on the record the significance of the establishment of a Health and Community Services Complaints Commissioner in South Australia. Historically, complaints in relation to health matters, particularly if there is some complaint about the service or lack thereof in a hospital or a health facility, or about the conduct of a certain practitioner, have been dealt with by the Ombudsman's office. The Ombudsman, of course, has a public integrity and investigative role in relation to public sector services and personnel. Health services are largely provided for the general public via public hospitals. As we also know, in the health space the federal government pay for doctors and drugs and we pay as a state for the cost of hospitals and the proper administration of them.

I note in today's paper a summary of the KordaMentha report and the decision of this government to install a new and refreshed—in fact, completely new—governance structure for the central Adelaide hospitals, which operates for the provision of services largely in the metropolitan area and northern region. That captures health services, which cost the people of South Australia about $2 billion a year and which we need to make sure are functioning not only financially responsibly but also at a high standard of service.

Having the Health and Community Services Complaints Commissioner, who is the person who took over the role from the Ombudsman in relation to this area, was an important initiative. It was established early in the life of the previous government, and I think, if I recall correctly, it was under the minister who was from the north-eastern suburbs. We had so many health ministers under the previous—

Mr Pederick: Was it Jack Snelling?

The Hon. V.A. CHAPMAN: No, way before Jack. No disrespect to her, she was the minister in the first administration under the Rann government, and she moved a proposal in this house—

Mr Pederick: Lea Stevens.

The Hon. V.A. CHAPMAN: Yes, the Hon. Lea Stevens came into the parliament and sponsored this new form of legislation. The objective was to ensure that the investigative role in relation to health services in South Australia be expanded to outside the public sector. The previous government wished to sponsor the capacity for the public to complain and have their legitimate complaints investigated. Hopefully, recommendations would be made from that to ensure that any behaviour that was substandard was dealt with and that, secondly, if there were illegal conduct, it would be referred to the relevant agencies.

They were very clear in saying to the parliament, 'We need to broaden the capacity for the public to complain outside the public sector facilities, but including private hospitals and private clinics, to ensure that there is a comprehensive way that people can make a complaint and, in addition to that, it should actually expand beyond the public sector health services to community services.'

These are often provided not by independent businesses but by non-government agencies—NGOs, we commonly call them—which are usually run by a business arm of a church or charitable institution but have now developed significant business roles and undertake work in the social welfare area, either on behalf of government or on behalf of the community in their parish or other area of interest and support.

It was a very substantial change and a significant broadening of the area of responsibility of a complaints procedure that would have a capacity to record, investigate, remedy, recommend and the like. I was only newly in the parliament with the Hon. Dean Brown, who is a former premier and former minister in previous governments, including also the Tonkin government actually, but we will not go back over history for the moment; otherwise, we might be here for a bit longer. I notice his government is coming up to celebrating 25 years and having some recognition of that shortly.

At the time, the Hon. Dean Brown took the view that perhaps there should be consideration of there being a dedicated structure within the Ombudsman's office to do this, rather than setting up an independent office and structure and the like. That was the then opposition's position. Notwithstanding that, obviously the government of the day, ultimately with the blessing of this parliament, had the passage of the act, and that Health and Community Services Complaints Act 2004 was passed and a new agency was set up.

We have a comprehensive report provided by the commissioner each year. I am just glancing at present at the annual report for 2017-18, submitted by Dr Grant Davies, who I think is the current Health and Community Services Complaints Commissioner. There have been several in the time of its operation, and I place on the record my appreciation for the work they have done. It is not easy work.

When under the responsibility of the Ombudsman, this area usually took up a large amount of the report. The continuing responsibilities in relation to complaints by prisoners in the Department for Correctional Services, complaints in the welfare area, and complaints about the Housing Trust and community welfare agencies of various forms, attract a large amount of attention of the Ombudsman's office, and it continues to undertake some considerable work.

These agencies only work if, firstly, the general public feel free, comfortable and unrestricted in their opportunity to lodge a complaint. For that to happen, they also have to have some confidence in the agency to ensure that their complaint will be considered and dealt with. That is not to say that some frivolous applications are not made to these types of agencies, because of course that does happen, but hopefully they are treated respectfully in the declining of further investigation. However, at least someone has an assessment of that.

Sometimes the remedy being sought by the complainant is a far cry from whatever the commissioner can do in terms of making a recommendation to the government for them to fix up or to go to the parliament to provide some legislative or regulatory remedy. Sometimes circumstances occur where people are injured or even die whilst in a health service, and there is really nothing that could have been done.

Probably one of the most concerning matters that has come to my attention in the time that I have been a member of parliament is in relation to the suicide of a medical specialist. The complaint that went to the commissioner about that was whether in fact that particular medical specialist had had sufficient support in the hospital in which he was working prior to his untimely death. It is fair to say that ultimately the resolution, or lack thereof, of an investigation into that matter raised concerns for me and a member of the family at the time as to how these processes are sometimes inadequate and are not able to solve all the problems that occur in this area.

Nevertheless, the annual report identifies a level of accountability as to the work that is being done, the money that is being spent on them doing it, the effectiveness of it and the like. The second thing that maintains a level of confidence in the public in this type of entity is that there will be recommendations published and, if those recommendations are designed to assist in ensuring that people are not hurt or fail to be adequately provided for in a health or community service in the future, that those recommendations will be acted on.

In that regard, I cannot express how concerned I have been in my time in this parliament about so many reports being presented to parliament with extensive recommendations and people in government have not taken up those recommendations. Sometimes they say it is too expensive, sometimes they say it will not work and sometimes they say they already have a certain process to protect people in this area. All too often, people have worked very hard, whether they are commissioners or whether they are coroners, on the types of reports that we receive, and many of those recommendations have gone unresolved.

I can think of two other areas where we have had royal commissions that have made recommendations in respect of children, in particular child sexual abuse.

The Hon. Z.L. BETTISON: Point of order: relevance. I think we are straying from the substance of the bill.

The SPEAKER: It is a second reading speech, but I will listen carefully to the Deputy Premier.

Members interjecting:

The SPEAKER: Order, members on my right!

Mr Pederick: It is a quiet day over there.

The SPEAKER: Member for Hammond, please!

The Hon. V.A. CHAPMAN: Just in case the lead speaker, or anyone in the parliament, for that matter, who is listening to this, has closed their ears or is not keeping up with the thread of my presentation, what I am saying is that, whatever happens when the Health and Community Services Complaints Commissioner provides an annual report to the parliament—or indeed comes to us as a parliament independent of the annual report, and says, 'This is what I recommend. This is what I have identified as a serious deficiency in relation to a particular service that's being offered.'—governments do need to listen to it.

I was illustrating the unfortunate litany of reports of recommendations that have been presented, even under this new procedure, which were not taken up by the former government. On the other hand, dealing with royal commissions as an example, we feel very concerned about these matters. So, as a new government, the Minister for Child Protection, the Minister for Human Services and myself as Attorney-General have been very conscientious, with the support and assistance of our departments, in ensuring that the recommendations of the national Royal Commission into Institutional Responses to Child Sexual Abuse are read, listened to and acted on. We are very diligent, and will continue to be, in ensuring that that is offered.

I will not use the last six minutes to read to you what I think is important in this annual report, but I urge members, when these annual reports are tabled, to flick up your iPads and have a look online at what these important people do in reporting to us and give their recommendations some thought. Certainly, if any members have an issue from it or examples of it in their own electorates, I do not care what side of the parliament they sit on, I would urge them to talk to members of the government to ensure that those issues are followed up and that we have some real and concrete outcomes to ensure that we do not set up these inquiries and then have their resolutions ignored.

With that, I commend the bill to the house and thank the Minister for Energy for just about everything, acting for health, and for bringing this through the parliament.

Mr DULUK (Waite) (11:37): I also rise to make a few comments on the Health and Community Services Complaints (Miscellaneous) Amendment Bill 2018. I will perhaps begin where the Deputy Premier finished off and talk about the value of reports and understanding them. If we reflect upon, over the last 16 years, one of the areas that the Deputy Premier was reflecting on with regard to child protection, we had the Layton report, the Mullighan inquiry and the Nyland royal commission report in an area of government where all three reports highlighted the systemic failure of government, of agency and of ministers.

The Hon. Z.L. BETTISON: Point of order.

The SPEAKER: There is a point of order, member for Waite. I must deal with this point of order.

The Hon. Z.L. BETTISON: My concern is about relevance again. It is very specific about the bill we are talking about today.

The SPEAKER: I have the point of order. I will listen to ensure that the member for Waite is not indulging in irrelevance. Member for Waite.

Mr DULUK: Thank you, sir, for your protection. We are talking about reports, the recommendations coming out of reports and the framework of good governance. If the member for Ramsay has a problem with good governance—

The SPEAKER: Please do not respond to the member for Ramsay, member for Waite.

Mr DULUK: Thank you, sir. As I said, the government at many times receives reports from experts, by and large, in their fields and, as the Deputy Premier indicated, I think it is incumbent upon us as parliamentarians, with broad interests on many issues, to heed and follow them where possible.

The bill seeks to bring South Australia in line with the national standards and to adopt of the national code, which of course will be adopted by states and territories so that a nationally consistent approach will be taken aimed at strengthening the regulation of unregistered healthcare workers across the entire nation. The National Code of Conduct for healthcare workers, approved by the COAG Health Council for adoption by the states and territories, will replace the Code of Conduct for Unregistered Health Practitioners—the South Australian code—which is currently in the regulations under the act.

The purpose of the National Code of Conduct is to protect the public by setting minimum standards of conduct and practice for all unregistered healthcare workers who provide a health service. The code will apply to practitioners such as naturopaths and homeopaths. It will also apply to social workers, nursing assistants and aged-care workers. At this time, when there is a lot of justified scrutiny of the aged-care sector and the provision of aged-care services, we are taking a national approach. The royal commission established by Prime Minister Morrison just goes to show, in my view, his ability and his leadership at the national level on this issue and is certainly a reason he is an outstanding Prime Minister. The type of framework that will apply in the aged-care space is also covered under this legislation.

Volunteers will be included under the act, which is very important as well. If a volunteer places the health or safety of the public at risk, they need to be held accountable so that ultimately the public can be protected. The vast majority of healthcare workers practise in a safe way and certainly to a competent high standard and in an ethical manner, and that is so important. However, at times a small proportion can present a risk to the public for a wide variety of reasons, whether it is a predatory nature, an impairment of ability or perhaps illegal conduct. It is important that we have a framework to deal with those matters.

If there is risky behaviour by a registered health practitioner, I think it is prudent that their registration is cancelled and their right to practise is withdrawn. We need to say to people that if they are not a registered health practitioner but they are in their mind providing a like service, then an accountability regime should apply as well. We need to protect the people of South Australia, particularly people who may be suffering from a disease or illness and who can be especially vulnerable to the promise of a miracle cure.

Giving treatment to a patient without reasonable evidence of success fails, in my view, to take care of the patient. Doctors in Australia have a code of conduct, as should all who practise in the medical field. Good medical practice is the code that describes what is expected of all doctors who are registered; it sets it out in that regard. We have the same code, and we have a code of conduct for suppliers and manufacturers to comply with safety standards. As such, why not have it apply to this space as well?

I think it is very important that we have this legislation. It is fairly non-controversial in its nature. It does make a few amendments to various sections of the act, which is incredibly important. It is also to give the consumer a better understanding of language that will be used; for example, consumer health services will now be called 'community service users' and those types of things to reflect the nature of the provision of the service that is being sought at times and of course ultimately provided.

The Health and Community Services Complaints Commissioner has been consulted in regard to this proposal and is supportive of it. The national code was the subject of a national consultation and was overwhelmingly supported at the South Australian round of that consultation. The commissioner will be responsible for communicating with the community and with health and aged-care workers about the national code when it is included in regulations under the act.

As the South Australian community is already familiar with a similar code, it is unlikely to be controversial in nature. With those few words, I know that the consumers in my electorate of Waite will benefit from this code. I also think that it will be a great alignment between registered professional health providers and everyone else practising in this field.

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Minister for Energy and Mining) (11:45): Thank you to all those who have spoken. Thank you to the opposition's lead speaker for expediency in this matter. I understand that it is not the opposition's desire to go into committee and I understand that issues were dealt with in the other place previously to the opposition's satisfaction.

I would like to thank all speakers who have contributed and shared important information on behalf of their electorates and/or their ministerial portfolios. I would like to single out the member for Colton, who gave a very thorough explanation of exactly what this bill intends to do. At its simplest, essentially we are trying to replace a code of conduct for healthcare workers with a code of conduct for unregistered health practitioners so that healthcare service consumers can be confident that they are receiving what they expect to receive— that is, good quality care from any type of health service provider, including a volunteer, for that matter.

I am told that it is a negative obligation in the sense that it is meant to be as light a touch as possible on those service providers. We are not trying to create red tape, but we do want to make sure that there is a framework within which those providers are expected to operate and also which clearly outlines what consumers of their services can expect. Largely, what we are doing here is working with the bill to realign the act so that the new code can be implemented for the benefit of consumers.

As is always the case in these types of situations, in my view, when standards are made more transparent not only do those who consume the service benefit but also the service providers benefit because they know exactly how they are expected to behave. They know exactly what they are expected to deliver and they know exactly what will happen if they do not.

With those few words, I am happy to close the debate. I wholeheartedly thank the Hon. Mr Stephen Wade from another place, the Minister for Health and Wellbeing, who goes about his work in an extraordinary fashion. He is an outstanding minister and I thank him for bringing the bill to parliament and, again, I thank the opposition for their support.

Bill read a second time.

Third Reading

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Minister for Energy and Mining) (11:48): I move:

That this bill be now read a third time.

Bill read a third time and passed.