Controlled Substances (Confidentiality and Other Matters) Amendment Bill

Second Reading

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (16:32): I move:

That this bill be now read a second time.

The Marshall government made an election commitment to implement a real-time prescription monitoring system for schedule 8 medicines in South Australia. This bill is an important step in delivering on that commitment and, more importantly, it is a critical step towards reducing the misuse of controlled medicines in our community. Sadly, the misuse of controlled medicines, which includes pain medication such as oxycodone, morphine and fentanyl, has become increasingly prevalent.

The real-time prescription monitoring software will integrate with existing prescriber and pharmacist software to provide access to real-time prescribing and dispensing of information and to enable real-time detection and alerts for regulators and prescribers. The built-in alert functionality will help health practitioners identify patients with a history of problematic access to high-risk prescription medicines and enable them to make more informed decisions that minimise the risk of overdose, addiction and death.

The South Australian real-time prescription monitoring system will link with other jurisdictions' real-time prescription monitoring systems through the commonwealth-managed National Data Exchange to provide real-time access to prescribing and dispensing data nationally. Amendments to the Controlled Substances Act 1984 are limited to those required to effectively implement real-time prescription monitoring, and these amendments will not change the broader intent or objectives of the act or the role of the government regulator. The proposed changes include:

1. Sanctions for inappropriate use of data collected under the real-time prescription system;

2. Additional regulation-making powers so that the current general confidentiality provisions can be clarified and tightened under the Controlled Substance (Poisons) Regulations 2011;

3. Increasing penalties for offences under the Controlled Substances (Poisons) Regulations 2011, along with the ability to expiate offences; and

4. Allowing information under section 18A to be provided electronically, including via the new system. The changes to the confidentiality provisions will ensure that only relevant patient information is collected, can only be accessed by relevant health professionals and regulators and is only used for the explicit purpose of the system, which is to minimise the risk of harm from the legitimate use of high-risk prescription medicines.

Patients can be assured that real-time prescription monitoring will not prevent them from receiving treatment with the medicines they require, whilst the families, friends and carers of patients who are drug-dependent can be more confident that there will be less risk of inadvertent harm and overdose. There will be minimal day-to-day impact on prescribers and pharmacists, as the system will be integrated into existing practice software.

The changes proposed will impose only minor additional record keeping or reporting obligations on prescribers and pharmacists who are not using integrated software. The administrative burden for most pharmacists will be reduced, as the existing obligation to submit monthly reports of dispensing data to the government regulator will be automated with an integrated real-time prescription monitoring system.

Stakeholders strongly support the implementation of this system in South Australia and have been actively engaged in determining the specific elements of the system, including the high-risk medicines to be monitored, the staged rollout, the training and support required for end users and the information and education required for the wider community. Many of these elements will be captured in amendments to the Controlled Substances (Poisons) Regulations 2011, which will be amended in a concurrent process.

Victoria implemented a real-time prescription monitoring system, SafeScript, in April 2019, and in April 2020 it became mandatory for prescribers and pharmacists to use the system. Other jurisdictions are at various stages of their development and implementation processes. As more jurisdictions implement real-time prescription monitoring and link with the National Data Exchange, more information will be available to health practitioners, further reducing the risk of harm to patients who may be doctor shopping across borders.

The bill before the house will enable the implementation of a real-time prescription monitoring system in South Australia to provide a national source of information about the prescribing and dispensing of high-risk medicines in real time to address the growing problem of addiction, overdose and death associated with legal use of these medicines. I commend the bill to members and seek leave to have the explanation of clauses inserted into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Controlled Substances Act 1984

3—Amendment of section 18A—Restriction of prescription or supply of drug of dependence in certain circumstances

Section 18A of the Act empowers the Minister to give a registered health practitioner an authority to prescribe or supply a drug of dependence in certain circumstances. This clause amends section 18A to provide that an application for such an authority be made in a manner and form approved by the Minister (rather than in writing), and for such an authority, or the variation or revocation of such an authority, also to be given in a manner and form approved by the Minister (rather than in writing).

4—Substitution of section 60A

This clause substitutes section 60A of the Act.

60A—Confidentiality

Proposed new section 60A makes it an offence for a person to disclose confidential information obtained (whether by that person or any other person) in the administration or enforcement of the Act except—

(a) as required or authorised by or under the Act or any other Act or law; or

(b) with the consent of the person from whom the information was obtained or to whom the information relates; or

(c) in connection with the administration or enforcement of the Act; or

(d) for the purposes of any legal proceedings arising out of the administration or enforcement of the Act; or

(e) in accordance with the regulations.

The maximum penalty is $10,000.

The proposed new section also makes it an offence for information disclosed for a particular purpose to be used for any other purpose by—

(a) the person to whom the information was disclosed; or

(b) any other person who gains access to the information (whether properly or improperly and whether directly or indirectly) as a result of a disclosure.

The maximum penalty is $10,000.

However, the proposed section does not prevent the disclosure of statistical and other information that could not be reasonably expected to lead to the identification of any person to whom it relates.

Confidential information is defined to mean—

(a) information relating to trade processes;

(b) medical information relating to any person;

(c) any other information that—

(i) is of a personal nature; or

(ii) is by its nature confidential; or

(iii) was specified as confidential by the person from whom the information was obtained;

(d) information of a prescribed class.

5—Amendment of section 63—Regulations and fee notices

This clause amends section 63 so that fines up to $10,000 can be prescribed for offences against the regulations and expiation fees of up to $2,000 can be prescribed for alleged offences against the regulations. It also amends the section to provide for fees to be prescribed by the Minister by fee notices (under the Legislation (Fees) Act 2019.

Mr PICTON (Kaurna) (16:37): I rise to speak on the Controlled Substances (Confidentiality and Other Matters) Amendment Bill 2020, and I indicate that I am the lead speaker for the opposition. This bill seeks to implement some changes to the legislation that will help to bring in real-time prescription monitoring. It is fundamentally good and important for South Australia for it to be brought into place.

We know the danger of the abuse of pharmaceuticals. We know that prescription drugs are abused in our community and are at significant risk of being abused. That is why it is important to have real-time prescription monitoring and we absolutely support this measure being introduced. It is already in place in other states, as I understand. We have seen Victoria implement it and we have seen Queensland implement it. We will now be following those other states that have implemented this system.

This legislation puts in place a number of relatively small changes that will help to enable that process to be brought in. The significant detail of the changes are not in the legislation that we are debating but in the regulation that will form underneath the legislation. We have been provided with a copy of the draft regulations that have been proposed, and they have also been provided to various stakeholders, and we thank the government for that consultation.

The vast majority of the system and function will be in the regulations. Obviously, that is something that parliaments are usually reluctant to do. However, when it comes to the implementation of technology, I can see in this instance there are some good arguments for the vast majority of that being under the regulations rather than the legislation. The fact that the government has provided copies, and provided copies to its working group and stakeholders more broadly, does give some comfort that the regulations are broadly supported by those people who will be using the system and protecting people with the system.

Essentially, the idea is that we need to link up pharmacists and link up our distribution of prescription drugs, in particular opioids, to make sure that people are not hopping from pharmacy to pharmacy, from doctor to doctor, to try to get access to additional drugs due to an addiction. That alone is not going to solve the addiction of those people. That alone is not going to solve the abuse of pharmaceuticals, but it is an important step and can be an important measure in terms of reducing the harm. Obviously, it will also need to be met with support for those people, support for our drug and alcohol services and support for those addiction services as well.

As the minister stated, the government said this was a very urgent matter that needed to be implemented very urgently. However, it was a matter that sat around for the first two years of this government. We saw very little to no action happen until about two years and three months into the term of the government, when the legislation was provided to the house and we are now 2½ years in and the legislation is being debated in this house now. It is still some time away before the system is actually implemented.

If the minister is happy, I will seek him, in his summing up, to provide any updates to the time lines for the implementation. We were told that there would be an implementation in March 2021 and stakeholder trials to begin in October or November this year, with a mandatory implementation of the system to come perhaps a year after that.

Where this goes from a voluntary system to a mandatory system is really going to be where the rubber hits the road in terms of the implementation of the IT rollout and making sure that this works for those pharmacists, GPs and others who will be using the system. We have heard feedback from some of the medical groups who have seen the rollout happen in other states, that they were concerned that there were some strong deadlines about putting in place a mandatory system and that things essentially were not working properly in the lead-up to when a mandatory date was going to come into place. Obviously, you do not want in place a system that is not working, forced upon everybody, with everybody facing delays.

Essentially, the people we are dealing with here, the pharmacists and GPs, are very busy. We do not want a system that is going to unduly delay and obstruct them in the work they are doing. We want a system that is going to be collaborative and conducive to the work that they undertake, considering how busy they already are. As this rolls out, first in the small number of trials potentially later this year and then in a voluntary rollout from March next year, if we see that there are problems, what we are hearing from people is the government needs to make sure they are not rushing to a mandatory rollout before the issues in the system are fixed.

It is hard to know at this stage whether there are going to be issues. The company that the government has selected is obviously a national company that is in place in other states. I would expect that on one hand the fact that issues would have been identified in other states would assist in terms of the rollout in South Australia. However, I am sure that there are particularities of our legislation and our medical and pharmaceutical industry and environment that would have to be taken into account in terms of the implementation of that. You cannot unplug it from one state and plug it in here in South Australia. There are a lot of changes that would need to be put in place to get that right.

We will certainly be watching closely the rollout of that over the next, looks like, year or two to see if that is in operation. It certainly does not look like this will be in place in a mandatory way across all pharmacies in the state by the time of the next election, which is disappointing. I suspect if there had been action a lot earlier after the promise had been made then we would have seen that. But we are where we are and we need to make sure that what is implemented now is not going to be put in place in a way which is going to cause more difficulties than it is solving.

We will continue to talk with stakeholder groups, and we will continue to listen to their feedback as the rollout of this continues. We have received some very detailed submissions, some of which have been mentioned by my colleague the Hon. Kyam Maher in the other place. We have heard of issues that have been raised in particular about the Royal Australian and New Zealand College of Psychiatrists. They have said that their members are cautiously optimistic; however, they want to take advantage of this to raise matters surrounding the execution of the system which need to be in consideration. Specifically, they have stated:

Feedback from our Victorian counterparts has been that identifying patients based on their name as an identifier is not sufficient, due to the potential for errors. Our view is best practice would be to use Medicare numbers to identify patients. We acknowledge this would need integration and cooperation from the Commonwealth Department of Health in order to achieve and is therefore not the easiest method—however also note that should a national prescription monitoring system be implemented, doing so now would allow for much easier integration in future.

I would raise that issue that I think is a significant question as this is very important in making sure that the identification of people is correct. If we are going to have a system that is only going to rely on the names of people, then obviously maybe for me or you even, Deputy Speaker, that might be okay but there might be some names out there, perhaps the member for Playford's name, Michael Brown—I suspect there are a lot of Michael Browns in South Australia.

An honourable member interjecting:

Mr PICTON: And long may all those Michael Browns reign across South Australia. You would not want a situation in which—

An honourable member: What about Chris Pictons? He is unique.

Mr PICTON: Well, I said that earlier. Many of us are unique, but there are many Michael Browns. In fact, we just had a council election in my electorate where a Michael Brown ran unsuccessfully for the council that was resolved yesterday. I do not believe that was the member for Playford; if it was, he did very badly.

We have clearly seen issues in Victoria that the College of Psychiatrists are raising in relation to the use of names. This is something that we raised with the Minister for Health and Wellbeing in the other place. His answer is that, effectively, we cannot do it because it is the commonwealth who runs Medicare and we cannot get access to that.

I found that answer a little bit underwhelming I have to say in that, as I understood it, this is a tripartite agreement where the commonwealth is a signatory to the agreement and the commonwealth is a party to the rollout of prescription monitoring. This is not a unique thing that we are doing here; this is a national agreement to roll this out across the commonwealth, so why can we not have a situation in place where we could use that as an identifier for people to make sure that we have the right identity?

In a similar way, through the rollout of the national eHealth system and patient records, there is a national identifier. Each one of us has an identifier in that system. This was put in place long before the system was constructed to make sure that we are all being identified through that system. Most of us I am sure do not know what our eHealth identify number is, but we all have one.

If what the College of Psychiatrists is saying is correct and this is going to rely on names, then that would seem to create the potential for error and the potential for problems down the track. They have also said:

What steps will need to be taken to ensure transparency between prescribers and consumers regarding the use of the RTPM system?

In principle, an RTPM system should not be accessed in circumstances other than when the prescriber is making a prescription for their patient. Where circumstances require access to the system to make a prescription without the patient in the room, we would suggest there be a mechanism by which the patient can be notified their record has been accessed.

This does go to privacy issues, which I think it is really important are addressed through the implementation of this scheme. The privacy of records is something that we are still having to grapple with not only in Health but across government, making sure that people are only accessing things to which they are entitled. In the past couple of years, I believe some SA Health staff were in trouble for accessing records they had no need to access, other than the name of somebody who was in the public eye and they were snooping on that person.

I am sure the vast majority of people would not do this, but anywhere there is the potential for somebody to do this, we do need to think through how some systems will be put in place to make sure that that does not happen. That needs to be addressed in the implementation of this, as well. They have also said:

Clinical guidelines for actions prescribers should take when a RTPM notification identifies an issue with an individual's prescription history. In many cases, it is not as simple as deciding to continue or stop a patient's medication.

While we absolutely agree that the final decision should be based on the clinical decision of the health practitioner, the provision of a certain measure of advice and guidance is not inappropriate.

Guidelines as to how primary and secondary care, as well as pharmacists and other prescribers, should communicate regarding notifications about individuals in the RTPM system.

They also said it must be considered:

Where health professionals should direct an individual identified as having a substance misuse issue for assistance. Alcohol and Other Drug (AOD) services are very often stretched, and it is likely the RTPM system will lead to identification of additional individuals who require assistance. It may be necessary to consider increased resources for these services in order to meet an anticipated growth in demand.

This goes to the point I made earlier that this system alone is not going to address the issues, it is not going to end the abuse of pharmaceuticals and it is not going to stop people who are addicted to prescription drugs. In fact, by definition, if it works and we are detecting people who are doing this, we are going to be finding out about more people who are addicted. There will need to be in place additional services, additional staff and no doubt additional funding to make sure that we can manage.

The college is certainly right in that alcohol and other drug services are very stretched. DASSA is very stretched. We hear this quite a lot from families and from other concerned people in the community. If this system is doing what it is meant to, by definition, we will be finding more people who will need more assistance.

Further to that, the system not only needs to detect these people but we need to have in place some guidance for clinical staff in terms of what the next steps will be and how they should go about addressing those issues when they are detected. I think that would be entirely appropriate and I would encourage the government to listen to the college and to make sure that is a feature of the implementation of this measure.

As I said, this is a measure that has the support of the opposition. I know that the Hon. Kyam Maher has raised a number of questions in the other place during the committee stage. Many of them were very good questions, may I add—I may well have even suggested some of those questions. The minister has answered the majority of them. As much as I would love to test the Minister for Education on his knowledge of the RTPM system, I suspect that, at the very least, they will be the same answers that the minister gave in the other house.

I am happy to dispense with the committee stage and indicate our support for this measure, for this program, for this bill. We will be keeping in close contact with all the people involved here to make sure that the implementation of this is successful and that we do not see difficulties that could cause problems as the rollout continues.

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (16:55): I thank the member for Kaurna for his contribution and for indicating the opposition's support for this legislation. I would also like to take this opportunity to thank Narelle Hards, from the Minister for Health's office, as well as Kerin Montgomerie, the manager of the Drugs of Dependence Unit in the Department for Health, for their assistance in ensuring I have the necessary wherewithal to respond to the member for Kaurna's questions.

I take on board the member for Kaurna's assurance that he does not need the committee stage in the best interests of the speedy resolution of this through the house, and I thank him for that. Nevertheless, I know that Narelle and Kerin and many other people have been working very hard on this bill for very long period of time. I will respond briefly to two of the points made by the member for Kaurna, one on which he requested a response. The other I will reflect on briefly.

The work done on this bill has been significant. The member for Kaurna suggested there was nothing until earlier this year: to the contrary, work towards the preparation of this measure has been underway since the second half (and not the end of the second half) of 2018, and there has been a significant level of stakeholder engagement with a large number of people. I would like to put on record my gratitude to all the officers in SA Health, the Department for Health and the Minister for Health's office, as well as all those external bodies that have contributed to that level of engagement.

Over the last two years, as I said, work has been done to prepare us to get to where we are now and get us ready for this. The member for Kaurna asked about time frames and outlined his understanding of what those time frames were, and I am pleased to advise him that the time frames he identified in the chamber—October, March and so forth for the next stages—are currently still the time frames identified. We are looking forward to seeing that in place.

The member for Kaurna raised a series of questions that were identified by the Royal Australian and New Zealand College of Psychiatrists in relation to matters that would need to be addressed before the measure was finally put in place. I can reassure the member for Kaurna that those matters have all been part of the process and have been addressed over the last two years.

The feedback from the Royal Australian and New Zealand College of Psychiatrists was useful because they were one of the stakeholders that had been working in the external advisory group since October 2018 in supporting the development of this legislation, along with about 20 other organisations that were part of that group. All their work, all their contributions, all the suggestions that have been made about matters that needed to be taken into account in ensuring this legislation and its accompanying regulations, which the member for Kaurna identified have already been produced, will help the project go from here.

The work has been done over those two years to ensure it is in a state where the people of South Australia, the many psychiatrists who have already signed up to take part in the trial—hopefully starting just a month or two from now—and all the other people who have an interest in this program, can have confidence it is appropriate, that the mechanisms are appropriate, that the technology is ready.

It will be a great advancement for the people of South Australia. I thank all members for their contributions. I thank the opposition for their support and commend the Minister for Health and his team for their work. Once more, I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (16:59): I move:

That this bill be now read a third time.

Bill read a third time and passed.