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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2008-10-15 Daily Xml
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NURSING AND MIDWIFERY PRACTICE BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

(Continued from page 450.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (22:24): The Minister for Health, the Hon. John the-buck-stops-with-me Hill, in his second reading explanation when he talks about transparency and accountability, needs to appreciate that it is his government that needs to be transparent and accountable in relation to this legislation, not just the board.

I refer to the aspect of whether carers should be registered and what the government should be doing about the fact that we have, on a daily basis, carers (who are important people in the community by virtue of the services that they provide) in hospitals and acute centres, providing services which would ordinarily be undertaken by nursing staff if they are available.

I cited examples of the shortfall, even of agency nurses, in providing personnel for the vacancies in hospitals and the need for carers to be brought in. Therefore, it is incumbent upon the government to be open and transparent about what it is doing about this and to ensure that we protect that situation.

I have wondered why we have not heard from any advocate for carers. These are people, as I have said, who undertake a certificate course, and who undertake a considerable amount of work, particularly in our nursing home sector and in caring for people in private homes. Why isn't there a voice coming from them in relation to the work that they are undertaking in the health care sector generally?

It could be argued that, a number of them being members of the Miscellaneous Workers Union, perhaps they are low in the pecking order of priorities within that union. An alternative is that the Australian Nursing Federation (although it is not the official advocate for them as being people who are members of the workforce in that industry) has a number of them as members. That may be because working carers have formerly been nurses or changed their occupation and gone into a caring service and decided that they would maintain their membership with the Australian Nursing Federation. I take no issue with whatever union they are a member of: that is their choice, and we support that. However, nobody seems to be out there advocating for them.

I will be very interested to read the contribution, which I assume will be forthcoming, from the Hon. Gail Gago, a member of the other place. She, of course, was the head of the Australian Nursing Federation, South Australian Branch. I recall her undertaking those duties. She may be able to throw some light upon why the union, of which she was a former head, has not made any public statement in relation to this issue, or why no document has appeared to confirm that it has any advocacy on this matter whatsoever; or, indeed, if they have submitted a document and the government has not taken any notice of it, why that has not become publicly known.

I am at a complete loss as to why this issue has not been dealt with. There does not seem to be a single advocate out there working for them to protect their interests. They, of course, are also the subject of legislation in other areas, including whether they are allowed, as a certificate 4 carer in an aged care facility, to administer drugs, which is another concern that has been raised on the basis of regulations that have been circulated for introduction.

I am not sure why this issue has not been addressed, but it is up to the government to be transparent when it purports to introduce legislation to protect the public through a registration process for nurses—and now formally for midwives as a special category—and to ensure that anybody who is responsible for undertaking services for the care of people in a nursing capacity (and I mean that in its broadest sense), including carers, and who has not come under the umbrella of the same obligations as apply to others in the industry, is entitled to have advocacy, representation and guidelines to which we suggest they are entitled, to identify their obligation under the disclosure of the new fit and proper process.

The government may say, 'Well, they're not in the list yet, so we don't need to do that.' Again, this is the sort of thing that has to be dealt with. Clearly, they are in the industry; they are working in our acute hospitals, and this needs to be identified. It needs to be admitted, and we need to deal with it.

They too will need to have their representatives. The minister claims in his second reading explanation that one of the outcomes of this legislation is that there will be more transparency and accountability for the board in its reporting. I turn to the Nurses Board of South Australia annual report process, and the gist of the legislative reform here is that it will be required to disclose a lot more detail particularly in relation to the complaints raised and the investigative and assessment role that it undertakes in relation to these.

At present, for the record, I indicate that the report, which is required to be presented to the minister annually and tabled in this parliament within a certain time frame, provides us essentially with particulars of who is on the board, staff representatives and particulars of communication that it has published and distributed. Some of these are pamphlets; some are codes; there is some material that I think in general would be used to advise people in the profession of some of their obligations.

Some examples are: the use of restraint standards indicating when a nurse would be expected or entitled to exercise a restraint practice; therapeutic relationships and professional boundaries, which concerns those with whom you may form relationships—for example, not with patients. They are helpful, instructive guides. The board reports on what it has published and obviously details the numbers of people who are registered, their genders and ages, which categories they are in and a broad outline of registration and enrolment information.

The board already details the investigations and formal proceedings by number and nature of the complaint, but it does not at this point detail the outcomes of each of the complaints. It does outline whether the complaint has been dismissed or whether there have been a number that resulted in counselling or something of this nature, but the board does not detail the particular complaints that are the subject of a hearing, particularly a tribunal assessment.

There are obviously particulars in relation to work that the board has done as an educative body, and it tables other material which relates to human resources and financial information about the operations of the Nurses Board for that particular financial year.

Members will recall that I mentioned earlier in this contribution that the Medical Practice Act 2004 was the first of a series of pieces of legislation for health professionals. The Medical Board of South Australia has now had three full years as at 30 June 2008 in its reporting process under the new regime. So, as at the 2007 annual report, it had completed two years, which gives us a bit of insight into what we can expect to receive in the report that is expanded.

I note that Professor Jennifer Beutel, who is the chief nurse, is also on that board, so she will be familiar with the reporting practice that is already adopted by the Medical Board. I hope that that will be helpful when the Nurses Board prepares its report, the first of which will be on 30 June 2009 under this legislation should it pass. I refer to the annual report of the Medical Board. In that financial year, Dr Trevor Mudge as president provided a report. There were particulars (as there were in the other reports) outlining the composition of the board and its duties. There were also various schedules regarding attendance at meetings, moneys received, financial schedules, and fairly streamlined balance sheets and simplified profit and loss statements (and I make no criticism of that; I simply say that that was the nature of the material provided).

The registration services report is pretty much the same as what the Nurses Board still does in the sense of numbers of registrations. I think it gives a little less information regarding breakdown of gender and those sorts of things—the Nurses Board report seems to be a bit more comprehensive—so it seems we are perhaps getting a bit less regarding the profile of who is registered. However, it is fair to say that there is an expanded professional services conduct report. I might say that, even after two years, the Medical Board report seems to be expanded with explanatory paragraphs of the powers under each of the sections. I would have thought they were evident from the act; nevertheless, there is a lot of information on that.

As I said, the professional services conduct report is there, and that details the number of complaints, the nature and sources of those complaints and the areas of practice from which they have come, and it then provides a summary of the complaint outcomes. Really, the only new information is the publication of a summary of about 11 of them, which does not name the party who has allegedly breached their obligations in some way and who may be sanctioned by a suspension, by a condition being imposed, or by a discharge from the registration entitlement, thus rendering them unable to practise.

When I look back at the complaint outcomes I see 135 complaints in the financial year to 2007. In 46 of them it was determined that there was no breach, and all the rest are dealt with in one way or another through counselling, tribunal hearings or the like. It is only the ones who are in tribunal hearings or board proceedings—nine out of the remaining 90-odd—who actually give a little story regarding what happened. As you would expect, they give a summary—which is all very generalised and which gives no detail about the nature of the complaint— of how many decisions were delivered and how many were discontinued. There is the date of the decision and a summary of things like failing to give timely medical reports, management of obstetric patients, assaults of a registered nurse (presumably by a doctor), and reports having misleading or false information.

Some complaints that went before the board alleging proper cause for disciplinary action included things such as the standard of professional care given to an elderly woman when she presented at a hospital emergency department with abdominal pain, failure to refer patients to another practitioner with adequate qualification, attempt to influence the outcome of proceedings (which is pretty serious, I think), two counts of unlawful sexual intercourse, and a practitioner who had taken photographic images without prior consent.

In summary, that is the normal thing we get. We get a bit more detail about the date on which the hearing was determined but, quite frankly, to have a summary outcome of only a very small portion of the 135 complaints received is, I think, inadequate. It is a start but, for the 33 people who received counselling, as a member of the parliament and a member of the public I am none the wiser from this report about what type of offence allegedly occurred that the Medical Board (in this case) deemed justified their receiving counselling.

Were they in the grip of taking drugs whilst undertaking their practice? Sadly, that is not uncommon with some medical practitioners who fall foul of their obligations and prescribe for themselves or a family member. Who knows the nature of these complaints? Are they a true picture and profile of the whole complaint (although not of those who are dismissed, because we do not need to know of those)?

It seems to me that the basic necessary information is still well short of what is currently provided by the Medical Board according to the current pro forma legislation that is about to be imposed on the Nurses Board. I am comforted by the fact that there is some overlap on this board and, hopefully, we might have a better flow of information.

Another thing that is almost non-existent is the identification of who is not registered and who has been prosecuted or called before the Medical Board. On page 16 of the 2007 report (as I say, we do not have the 2008 report) is a little section entitled Unregistered Practitioners. Essentially, it states that each medical practitioner has to register by 30 September each year; that apparently some do not (I do not know how many); and that it is quite inconvenient to practices, them and the board to have to chase them up. That is the nub of what they tell us of their obligation.

However, from this information, I have no idea of how many have not registered who were registered and who need to be registered (obviously, if you retire or whatever you may not need to keep up registration) and/or what the board is doing about it. In particular, has there been any further education or any prosecution under section 70 of the act, which is a penalty process that is available to them?

I say simply that, in legislation, you can direct that some extra information be provided but, if it is not comprehensive or sufficiently detailed, it is utterly useless to us in the parliament. I hope that that is taken on board in relation to those who will report on the outcomes of activity by the Nurses Board in respect of the new group, the extra group (which includes students), and its tribunal and complaints procedures and outcomes.

As I say, at the moment, several pages of the report outline not only the data but also the number of complaints and who made them, that is, whether they were from a general practitioner or other medical person, or from other registered nurses. It is interesting that, repeatedly in the past four years, most have been from a director of nursing. In that sense, I suppose it is a good sign that we are seeing supervision and reporting by the person who is responsible for that nurse or other health professional in this category.

We are provided with a bit of a breakdown of how many are in acute care, how many are in aged care and so on. In 2007, of the 173 complaints, 124 were in breach of the current section 44 (unprofessional conduct), and the next most serious category was incapacity under section 42 (29 complaints), and that is raw data and very generalised.

Again, what we do not have are the particulars of what is happening with those who either do not register under re-registration or have never registered and purport to carry out their profession, or who masquerade to have those professional qualifications without registration. What the Nurses Board currently does is provide (as it does on page 40 of the 2007 report) a little summary on the 'holding out', which is the term the board uses to describe a person who has either worked as a nurse or midwife without registration or enrolment and/or who has led others to believe that they are on the register or roll. That is important because they tell us that 41 people were holding out to be registered or enrolled. One person had never been registered or enrolled in South Australia or interstate, and that person is 'currently before the Magistrates Court in relation to these offences'.

So, we have the raw data of the numbers, and we have some information about the capacity of the board to institute conditions, and that is in an area where 41 people in that financial year, out of the pool of 173 people who made complaints, which is a lot of people, which apparently at least justifies, under this new legislation, our getting more information about the nature of those complaints and how they are dealt with. Yet we have 41 people (which is a very significant pool of people) out there working as nurses without being registered.

If registration is the structure and process upon which we have scrutiny for the protection of the public, these 41 people need a hell of a lot more scrutiny, in my view. We certainly need to have in the report particulars of how that has come about and, again, what the board is doing about it and, if it does not have the power to do it, what power it needs to do it, or what it recommends the minister does about it. These are all things that need to be followed through.

The raw data is not enough when there are people out there masquerading. Here we are having a whole inquiry in another place in relation to quacks, bogus doctors and so forth, yet each year a number of people are out there pretending to have qualifications or pretending to be registered and clearly putting patients at risk. We need to have more information about that matter.

I welcome the call in this legislation and the obligation to be imposed for more data. But on the processes that have been similarly imposed on the Medical Board and their outcome, I am not confident that it will be enough, and I think that needs to be looked at. In respect of those aspects, the government may say, 'Why don't you produce some amendments on this issue?' I want to make absolutely clear that, if we had had time to properly consult on this matter (we received this bill on the last day parliament sat and were expected to debate it on the second day when parliament resumed), we would have certainly been looking at amendments.

We do not discount the possibility that we will introduce some amendments between here and another place. However, my understanding is that the government wants to get this bill through and that it will not delay the bill's passage to enable us to have this matter resolved. The other place may have a different view about any pressure to have this matter resolved. We do not have the numbers in this chamber.

However, I place on the record that we are prepared to accede to the government's request to have this matter dealt with. We have done everything we can in the lower house to accommodate that request and to ensure that our work on the bill has been done as best we can. All we can do at this point, in the time frame we have been allowed, is to highlight areas of concern. The government, and the minister in particular, in his response, may indicate that some of our concerns are without merit or without foundation or that we do not need to be worried, and that would be terrific and I look forward to hearing that. However, I ask that the minister look into the other matters.

There are a few other things I want to mention, one of which is the question of language. The government has presented this bill as being one of many that modernises the position. The terms 'enrolled nurse' and 'registered nurse' are being perpetuated in this bill. I do not know the answer to this. I am probably as old as most people in this place, and I am assuming that is a term that has been around for a long time, certainly in my lifetime. These terms are recognition of a different status of qualification. As I understand it—and I may be wrong—a registered nurse still has four years of a degree qualification at an approved university and/or TAFE, and an enrolled nurse does a three-year course. In any event, it is a reduced academic qualification, and there are various training obligations that go with that.

I just pose for the minister's consideration whether any proposal has been considered, or would he still consider at least consulting with the profession about modernising this language. This language of having a registered nurse and an enrolled nurse, and having people on a roll and/or a register in 2008 seems to me to be bizarre. We have a registration process for all of them. They all have to be registered, yet we still distinguish according to an anachronistic academic differentiation between an enrolled nurse and a registered nurse.

Again, I am a bit puzzled as to why this has not been raised. Perhaps it has been and perhaps the government did not think it was a very good idea. Perhaps there is a good reason for that. Perhaps nobody wants to change it. However, it seems that the definitions in the bill—I do not think I need to refer to them; those following the debate will know what they refer to—of enrolled nurse and registered nurse just perpetuate an antiquated language in light of the fact that, in 2008, and at least since 1999, we have had a strict registration procedure, which I think needs to be reconsidered.

I find it rather curious that we still use the terminology of midwife and midwifery, again only because it is very old language. As I have indicated—and I may be entirely wrong—we changed the title of matrons to directors of nursing, modernising that language. If midwives say that they want to continue to be midwives (it is a description that I think has been used for about 400 years) and that they want to retain history, so be it. I think we have even moved from 'housewife' to 'domestic engineer' and 'manager', and all sorts of things. So, I am just a bit puzzled as to why we are still, on the face of it, in the Dark Ages with 'midwifery' as a description.

I do not have a clue as to what the appropriate replacement name should be but we need to find a description that everyone agrees on, whether it is 'birth practitioners' or 'pregnancy professors'. I do not know what the answer is. I simply say that it puzzles me that, when we are modernising this legislation—and we have really done this for all other health professionals—we are still a few centuries away for this group. I am not quite sure how we would describe a male midwife—whether we call them 'midhusbands'. I do not know what the new language is for male midwives.

I want to refer to the Auditor-General's Report published this week where he mentioned the shared services arrangements. I want to refer to only a portion in relation to nurses because, of course, they are a significant employer. The Department of Health and the Department for Families and Communities have shared service arrangements in place. It caught the attention of the Auditor-General in this year's report, because a requirement under the two agreements between these departments was to help rationalise services, the idea ostensibly being to save money.

On recent information that we have received—and it has been published through the Budget and Finance Committee—it looks as though it is rapidly deteriorating as a money saver. Nevertheless, it is a rationalisation process, and the Auditor-General has reported on this because the agreements required six-monthly performance reviews. The six-month performance review of the Department of Health, as to who delivered services, and so on, had not happened. In fact, the department's explanation was that it had taken the approach that it would deal, on a piecemeal basis, with the resolution of outstanding issues, day-to-day management of services and the transition of some of these services to the government shared services agency rather than actually completing its six-monthly performance review.

That is a concern in itself. However, the consequence of this process of having a shared service plan is one which has been on the agenda and an advocacy matter for the Public Service Association, which has made some very strong comments. I refer to it only in respect of the health professionals. There have been a number of documents forwarded to us but, in summary, in its publication (the Public Sector Review) even for this month, it states that there are some 300 health professionals at risk as a result of shared services; at risk of their job entitlements—that is, their job packages being diminished. There are a number of reasons for that. When you move from the health department into a different department, into a different category, you can lose benefits. The article in question states:

The state government acknowledges that many employees transferred from health units to shared services will incur financial loss as a result of changes to salary sacrifice arrangements and personal circumstances (e.g. increased child care, travel and parking costs) but has not agreed to any compensation whatsoever. The government needs to either offer adequate compensation to help employees or retain all employees within the health portfolio, so that they do not incur financial losses.

I make that observation, because we are talking about the nurses and their professional standards. The Public Service Association is saying that they are going to be required to move from one portfolio to another and they are going to have losses. When we debated the repeal of the IMVS act the government stated, 'We will make sure that those who transferred from the IMVS (the Institute of Medical and Veterinary Science), SouthPath (which is the pathology service at Flinders Medical Centre), and the Children's Hospital pathology service will suffer no loss of benefit or entitlement.' It stated that when nurses came in the buy-back from Modbury Hospital there would be no loss of entitlement. Yet, they are prepared to say here that the people who are at risk, and for whom the Public Sector Review is advocating, are going to have diminished entitlements.

I have quite a bit of information as to the specifics. We are talking about thousands of dollars, even for the base salary of an average nurse qualification. I think it is at least $3,000 in the first year, to be effected immediately, and potentially other salary losses. When the government comes to the treatment of nurses, it needs to be fully disclosing what its obligations are in expectation of the registration process, supporting them with education to ensure that they are able to maintain their obligations, and treating them with respect in the workplace. They are fundamental entitlements for people who are prepared to go into the nursing workforce (who are desperately needed) and stay there.

I conclude by quoting from a short letter to The Advertiser of 4 August. It is entitled 'Nurses treated badly.' It is written by Alice Lewis of Aldinga Beach, and it states:

As many are aware, there is a shortage of nurses in the public hospital system, but what many people don't realise is how badly nurses are treated. Hospitals tend to advertise that they are family-friendly and flexible for their employees, but the system often refuses to give times that suit childcare. And often staff lacking experience are employed. Permanent workers are leaving because of dissatisfaction. No wonder there is a shortage of nurses. Just look at how they are being treated.

The Nurses Board of South Australia and its staff undertake a considerable amount of work under the current act. With the imposition of new obligations under this act and the number of personnel they need to undertake a registration process with an expanded workforce, we can expect that they will have an expanded work obligation. I thank them for the work that they have done to date and, in anticipation, I thank them for the work they are about to undertake.

Mr HANNA (Mitchell) (23:00): I do not propose to speak for as long as the member for Bragg on this issue, but I want to support very strongly the midwives in our community. I am speaking in support of the bill brought in by the Minister for Health. It is an important piece of legislation, I think, because for the first time in South Australia it recognises midwives as having a special role to play in the delivery of babies in our state. It recognises midwives as having a profession separate from nurses. With that comes a certain responsibility and, as one would expect, therefore, there is a system in the legislation for registration and also a complaints system if people fall short of the standards which every responsible midwife would expect to uphold.

The legislation creates this separate profession for midwives. Of course, midwives may be nurses; they may not be nurses. Up to this point, midwives have been constrained in the sense that, if they wanted recognition in the health system in any formal sense, they would have needed nursing qualifications, but those nursing qualifications by themselves do not necessarily equip one to be a midwife.

A number of women in my electorate have successfully worked with midwives to have their children, and I have heard many happy stories of births which have been experienced in a more joyful and natural manner than the women expected to have in hospital. That brings me to the point that the Minister for Health and future ministers for health, I trust, will recognise that, now that we have recognition of midwives, we must also recognise the special role for them within the health system. In other words, midwives are not just for having births at home; we need spaces in our public hospitals for midwives to practise what they do and that means, for example, that the birthing centre at Flinders Medical Centre needs to be properly equipped so that more than one mother at a time can have the benefit of a midwife's experience.

I would like to briefly quote from the philosophy statement for midwifery by the Australian College of Midwifery as follows:

Midwifery is founded on respect for women and on a strong belief in the value of women's work of bearing and rearing each generation. Midwifery is emancipatory because it protects and enhances the health and social status of women which in turn protects and enhances the health and wellbeing of society. Midwifery recognises every woman's right to self-determination in attaining choice, control and continuity of care from one or more known caregivers.

This is not the time to decry the practices of medically trained doctors in past centuries, but certainly some of the practices of the past have not fully accorded respect to women and have not recognised the value of having births as naturally as possible. With the whole experience one must always add the rider that the safety of the baby and the mother are most important, and every responsible midwife, I believe, has a plan for obtaining traditional medical intervention, if necessary, from trained doctors and nurses should the need arise.

The legislation put forward is beneficial, I believe, to midwives and those women who choose to cooperate with a midwife in their birthing. I commend the legislation and I commend the minister for his work in bringing it before the house.

Mr VENNING (Schubert) (23:05): I have been sitting here all day listening to the debate with a lot of interest. I congratulate the deputy leader, the shadow minister and member for Bragg, on a sterling effort in relation to the support of probably one of the most respected professions, that of nursing. My own sister is a nurse, and I think all of us have a very strong affinity and a lot of sympathy for nurses. You only have to go to a hospital, or even a dentist, and you will have dealings with a nurse. I support nurses and I also support midwives because they do a fantastic job.

We do hear some criticisms of the nursing profession, particularly in the training area. I am one of the old school, where I believe that nurses should be trained in the hospitals, in the wards, and once they have done their apprenticeship there that is when you put them in the classroom—not the other way around. That is a controversial thing to say, particularly with the modern misses sitting up there in the gallery. They are probably thinking, 'He is a staid old B; he ought to get with it', but that is how I see it.

The ward in the hospital is the coal face, and for some it does not click, it does not work, and they work out then that it is not their vocation. So, I think there is probably an area of compromise there. I have many friends who are nurses. We have some very good training hospitals in South Australia, and some of them are in the country, and we have a lot of doctors who are very good trainers. I think nursing is a calling and nurses deserve our deepest respect and gratitude.

I read an article a few days ago in one of their magazines about a survey that was done amongst nurses, and I was concerned to see that, of the people who responded, 65 per cent of them—and I could go on for hours about this, but I will not, because it is too late—said that they were not very happy, and there were accusations of bullying and all these sorts of things. It was very concerning to me that these wonderful people who serve have to put up with this so-called bureaucratic interference that causes them a lot of angst.

A recent survey undertaken by the ANF (SA branch) indicates some significant cultural and leadership issues within our mental health services. This is taken from the In Touch magazine, the September 2008 edition:

From the findings a number of concerns were raised which suggest mental health nurses felt that they are placed in circumstances which do not allow them to provide quality care to clients; they are frequently exposed to bullying in the workplace, which is hard to understand. Nepotism is a feature of the organisation in which they work; they are not consulted over directions of the mental health system and are ambivalent about the direction of the reform agenda.

I will not go on at great detail, but I was very concerned to read this, particularly that 65 per cent of them made the accusation that they felt that they were bullied in the workplace. I know we have a shortfall of nurses, and I know that at the moment there is an overseas campaign to recruit nurses. I think it is rather strange that we are actively campaigning for more nurses. I am sure we are losing a lot of practising nurses, and I note the nurses in the gallery, because they are not happy in the workplace.

Today I was very interested to hear the shadow minister talk about nurses who want to re-enter the workforce, and I cannot believe all the rigmarole they have to go through to do that. I am of that age, which is 60-plus—it is sad but true—but many people of my age would like to go back and rejoin the workforce, particularly in the nursing profession, and they find the hurdles that are put in front of them pretty hard to scale. I do not know why it is not made easier, and I think that the shadow minister said that very well today during the debate.

I will not go on at length because I know that the member for Kavel wants to say a few words too, but I want to say how much I respect the nursing profession. They are a wonderful group, who are generally uncomplaining, and this is an instance where we can highlight the work that they do. I take my hat off to them, particularly to those who work in areas that are difficult (such as in aged care and in the mental health area). It must be (and is) extremely frustrating and there is no doubt that it is a calling. I take my hat off to them because I could not do it, and thank goodness that we have people in this world with a heart and soul who are prepared to call themselves nurses and to serve as well as they do. I support the bill.

Mr GOLDSWORTHY (Kavel) (23:11): I am pleased to make a brief contribution on this legislation. Given the time, I will not look to hold the house up unnecessarily. I could summarise what the legislation is trying to achieve; however, I think that the deputy leader and shadow minister for health has done a really outstanding job in her contribution to the house today in outlining and summarising the content of the bill and what it attempts to achieve. Therefore, my remarks will refer to issues in relation to nursing, health resourcing and the like in my electorate.

I do not like to let an opportunity go past in the house where I can speak on issues of such importance relating to my electorate, particularly in the significantly expanding districts of the Mount Barker, Littlehampton and Nairne townships, where another 800-plus homes are being built in a newly developed residential area in Mount Barker. Of course, families will be moving into those 800-plus new homes and, as a result, that will put additional pressure on the current health services provided by the Mount Barker District Soldiers Memorial Hospital.

It is my understanding, particularly in relation to midwives and the services that they provide to our community, that the maternity wards at the Mount Barker hospital are at capacity already. With the increase in population in that particular area, that will only result in placing additional pressure on a health service that is already at capacity. In the strongest terms, I communicate to the government and to the minister that they will need to address that issue sooner rather than later.

I understand that, according to the Country Health Care Plan, Mount Barker hospital was to be linked with the RAH. Whether or not that means that the overflow or the demand will need to be taken up at the RAH or at the Women's and Children's Hospital, I do not know. That level of detail was not clear in the country health plan, but because the state Liberal Party (again capably led by the shadow minister for health and deputy leader) has seen that plan basically scrapped, we are back to the drawing board and we are in the preparation of mark 2 of the country health plan. Goodness knows where we are with the arrangements of what is occurring at the Mount Barker hospital and the other Hills hospitals—the Gumeracha Hospital and the Mount Pleasant Hospital—that work very well (and the member for Schubert will attest to this) under the management of one board.

One board administered Gumeracha and Mount Pleasant hospitals. That has been scrapped and health advisory councils (HACs) are now in place. It is unclear what the outcome will be in relation to resources that will be available to the Mount Barker District Soldiers Memorial Hospital and the Gumeracha and Mount Pleasant hospitals in the northern part of my electorate.

Towards the end of last year, if my memory serves me correctly, a local general practitioner in the Mount Barker district raised issues of serious concern in relation to practices in an emergency Caesarean situation. I will name this particular doctor, because it is not an issue. His name has been out there in the public arena because he himself did some media and I have highlighted the situation in the media, as well. Dr Paul Lehmann is a very courageous person who highlighted this issue. Dr Lehmann is an anaesthetist, specially skilled in the area of providing emergency Caesarean sections to women.

It is my understanding that a woman needs an anaesthetist, a doctor to tend to the mother and, if the baby is in need of care, a doctor to tend to the baby. She needs three doctors in the theatre at that time, supported by experienced, qualified, properly trained nursing staff. That was not occurring at Mount Barker hospital, and Dr Lehmann had the courage, conviction and the ethics of his profession to highlight this issue publicly. It is not the fault of the doctors, the nurses or the midwives but, rather, the government. It is the fault of the government for not adequately and satisfactorily resourcing that hospital with the level of trained professionals required to carry out emergency surgery procedures.

As a consequence of Dr Lehmann's courage, I understand that he suffered some criticism from his peers. I received some information via my networks in the electorate that he suffered criticism as a consequence of his actions. However, the minister decided that there should be an investigation, which took about six weeks to complete. As a consequence of that investigation, measures have been put in place to remedy the situation. The concerns have been met and there is now a satisfactory level of trained professionals to deal with an emergency Caesarean procedure. It was putting pressure on the doctors, the nurses and the hospital administration—throughout the system—as a direct result of the government not adequately or satisfactorily resourcing those areas.

The criticism should not be laid at the feet of courageous, highly ethical and dedicated professional people such as Dr Paul Lehmann but, rather, fair and square at the feet of the minister and at the state Labor government.

The other issue I raise relates to professional development and qualifying people to hold various nursing positions. Again it comes back to a local electorate matter. A constituent who was an enrolled nurse contacted me. This person was seeking authorisation for an enrolled nurse to practise without the supervision of a registered nurse. I understand that this person's application was the first of its kind in the state. Some changes were made to the way in which these matters were dealt with and enrolled nurses were given the opportunity to practise without the supervision of a registered nurse. This person made application. My notes tell me that the act was amended in 1999 to allow this particular authorisation to occur.

Again I understand that measures and things have to be put in place to ensure that people have the right qualifications and the right training. All those issues have to be dealt with to ensure that the person is at a satisfactory level of experience, qualification and training to undertake these roles in our health system. However, this constituent seemed to come up against hurdles all the way along, particularly with the Nurses Board. A panel was established to endeavour to satisfy itself and the board that the qualifications of this person were at a level that they could undertake this activity. This went on for a long time. The person would answer the questions, meet the requirements, would arguably satisfy the questions that were asked of her, and then another set of questions and another set of hurdles were put in place.

This person reached the stage where she was extremely frustrated and she came to me. I wrote to the current Minister for Health and I received a five page reply. It is a good news story, I guess. After my letter to the minister and the minister's inquiries, this person was finally given the approval. I understand that she is the first person to achieve this authorisation in this state. The reason for my highlighting this matter is not necessarily to criticise the Nurses Board and so on, but to point out that we get caught up in process. We really need to focus on the outcome. We really need to look at what we are trying to achieve with these initiatives. We need to look at what we are trying to achieve with the Nursing and Midwifery Practice Bill 2008.

It is unfortunate that the way the process of government has developed is that we get so bound up with process that we cannot see the wood for the trees—that is an analogy that is used from time to time. All I am saying is that, if we want to deliver an improved health system to the state and all our constituents, we need to stop getting bound up in issues of process. I am sure that the 47 members in this place, who together represent the whole of South Australia, want to achieve that outcome. There is no reason why anyone would not want to achieve that outcome. However, if we keep getting bound up in these ever tightening issues of process, we will never achieve a proper quality health service for South Australia.

So, as I said, I am highlighting this particular issue because it was quite clear that this person was being hindered in achieving what she was setting out to achieve and what the act, amended in 1999, wanted to achieve. She was being hindered by the process, as such. I think we need to be ever mindful of issues such as this in our administration of the state and in looking to improve every aspect of the service delivered to our constituencies.

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (23:25): I thank members for their contributions, and I also especially thank them for their support. The bill is, in fact, the Nursing and Midwifery Practice Bill, and I want to refer to the deputy leader's comments about midwifery and her question: would a male nurse be called a 'midhusband'? No, he would not, because of the derivation of the word 'midwife'. 'Midwife' is middle English, according to the Australian Concise Oxford Dictionary, probably from obsolete preposition 'mid', which means 'with', and 'wife', which means 'woman', in the sense of a person who is with the mother. So a midwife is not a wife who has some particular role but is someone who is helping a wife. So, if you are a midhusband you would be helping the husband in the process of birthing, which probably would be necessary in some circumstances but would be a totally different career, and not one that this legislation attempts to deal with.

There were a lot of comments made, and I will try to deal with some of the issues raised by the Deputy Leader of the Opposition in particular. I will not address all of the things that were said which are really outside the scope of the legislation. A number of points were made by various speakers about a range of things covering the broad canvas of health and its connection to nursing, in somewhat tenuous ways from time to time. If I miss things mentioned by the member or cannot understand my notes, I am happy to pick up the issues during the committee stage.

The deputy leader made much of the provision that after 10 years of absence from the field a nurse is required to undertake retraining, essentially. She made much of this and I have some sympathy for the points she makes, but it is not the legislation that does that: it is, in fact, the board that has developed a policy. The board, of course—

Ms Chapman: Change it.

The Hon. J.D. HILL: Of course, this picks up the point that the member for Kavel was making, which is that of outcomes versus process. The deputy leader in much of her comment was talking about the absence in the legislation of details of process. Yet, if you build into legislation a huge range of process, of course, you make it even more complicated. So, what legislators try to do is create the framework, give the outcomes and goals and produce the powers, and then allow those who have been given the exercise of those powers the responsibility to develop particular frameworks.

Other legislation is more stringent, as I understand it, in terms of when training is required. I think under our legislation after five years' absence from the field a nurse has to undertake some training. After 10 years, as a matter of policy, as the board has implemented it, they are required to go through retraining completely. I think under the Medical Practice Act it is three years of absence from the field before some sort of training has to occur. I am happy to refer the deputy leader's comments in relation to training to the Nurses Board and ask it to consider its processes, protocols and policies, to see whether some more flexibility can be brought in. As I understand it, of course, there is flexibility and capacity to give some sort of benefit for prior knowledge and learning.

The deputy leader also raises the issue of spaces for training. This is an issue for us as a nation. There are about 200,000 registered nurses in Australia at the moment. We graduate about six and a half thousand. Given the age profile of nurses, we need to increase the number of graduates to about 14,000 over the next few years in order to maintain 200,000 by 2020, so there is a great deal of pressure on in-hospital training places. Of course, the government gives priority to the graduates of its own institutions and the universities over private providers.

I am not certain of the example that the deputy leader gave, but I do understand that there is difficulty from time to time, particularly when providers insist on the nurse doing the in-hospital training at a time which suits the timetable of the provider. Hospitals operate 24 hours a day. Providers tend to want nurses to do the in-hospital training in particular breaks in the curriculum. The department is working through that in an attempt to create extra training places in hospitals.

In relation to prescribing rights, I am not aware that there was any change in the legislation between the current act and the bill that is before the house. The intention is that the prescribing rights should be maintained in the same way. There is no sleight of hand in that. If one of the drafts had something slightly different, I cannot recall that being the case, but through the process of consultation and discussion we have adopted the position that we have now.

The deputy leader raised the issue of what is a fit and proper person; what disclosure is required; what is the obligation and so on. As I understand it, the board produces some guidelines and assists nurses to understand their obligations. So there is a process by which nurses and those who are obliged under the legislation to report are given support.

The deputy leader made reference to mental health nurses and the fact that they will now be contained on the general register. I should say to the deputy leader that this is an important and sensible thing to do. I know a little bit about mental health nurses through my family. My late sister was a psych nurse when she was a teenager. She left school early at 15 for a variety of personal reasons, and she decided when she was a bit older that she wanted to become a nurse. This was growing up in New South Wales.

She did not have the qualifications to get into general nursing so she got into psychiatric nursing. There was a different stream. The training was different, and a psychiatric nurse was a different kind of entity to a general nurse. I understand that it was roughly similar in South Australia. Psychiatric nurses were registered separately so that that restricted their areas of practice to psychiatric nursing.

Now, of course, the training is different. Everybody does general nursing and people specialise in different areas, and, of course, psychiatric nursing is one of those areas. So you no longer need to provide that protection to the public by restricting the areas of practice of psych nurses. I understand that there are a number of mental health nurses who trained under the old scheme, and the registration process will allow them to be identified. Over time, of course, all nurses will be trained with the same basic training package and then will specialise in a variety of areas. I think the deputy leader mentioned 60 or so identified areas of practice, so that is the general direction.

I think the deputy leader asked whether or not the annual reports could identify particular areas of specialty. That seems reasonable to me and I am happy to pass that on to the registration board to take that on board. The deputy leader may wish to seek further clarification during the committee stage about the corporate provider liability.

As I understand it, there are a number of exemptions. I may not get this exactly right, so I apologise in advance but, as I understand it, under the Health Care Act there are certain responsibilities for public hospitals, for example. Exemptions are given to organisations such as the Royal Flying Doctor Service and the Rural District Nursing Service (RDNS), as well as to some private hospitals I think, so they are covered by other means. This is a sort of general catch-all for anyone who is not covered—a small business, for example. If I were a nurse and my wife or partner were also a nurse we could set up a propriety limited company and rent ourselves out to various bodies. If we were to do that then this part of the legislation would cover us (I think that is right).

The deputy leader made the point that carers were not covered by this legislation. It is true that they are not. This piece of legislation deals with the professions of nursing and midwifery. These are clear and identified areas of professional practice that have developed over a long period of time, and systems are in place for registration and accreditation and all the rest of it in relation to the duties of nurses and midwives. Carers, or people who work in aged care facilities and the like, come from a broad range of backgrounds. As I understand it, there is no settled or developed area of practice, and it would be an exaggeration to describe this work as a professional skill or as being in the area of health skills.

These people do a range of things in different circumstances. I do not disagree (and I have said this to the nurses union) with the fact that there should be standards or some sort of process for managing the work done by people in these industries, but this is not the piece of legislation in which to do it. I have asked the Department of Health to develop a paper and do some work in this area, and I understand that is progressing.

Finally, the deputy leader raised an interesting question. As a former English teacher I am always interested in language, and she made an interesting point about the language of enrolled and registered nurses. I cannot answer the question; I guess it is the way it has always been done. It is a reasonable point, and I suppose it is something that can be considered. However, even though 'midwifery' and 'midwife' are ancient terms, I think it would be at her peril if she advocated changing it to 'birth assistant' or some other phrase of that ilk. I think we will probably keep the term 'midwife', but the deputy leader makes a reasonable point about whether it should be different for an enrolled nurse, because I agree that it is not very contemporary.

I believe I have covered most of the issues. If I have not, I apologise, and I am happy to answer any questions the deputy leader may have in the committee stage. One other thing I would like to say is that this was a process of consultation. I have been Minister for Health now for almost three years, and I think the process of developing this legislation preceded me. There has been a huge amount of discussion and consultation with key groups, and there was advertising in the media, so I find it impossible to believe that anyone who had an interest in nursing or health would not have known that the legislation was being contemplated, and people were invited to participate.

The agency certainly went through a process of consultation with the main groups, and the deputy leader has been given a list of those groups. A number of them chose to make written submissions and others did not, but that is not to say that they were not consulted. A number of meetings were held that were attended by various groups (including some that the deputy leader mentioned) where they gave their support, although not in writing.

I understand there is now a broad consensus for the legislation. I thank the deputy leader for indicating opposition support. She asked me to consider a number of issues, and I give her an undertaking that I am happy to do that, and if I can assist I will.

Finally, I thank the officers from SA Health, who have been working on this for a very long time. I thank them for their patient consideration of all the submissions and for working towards a consensus in and across the profession. I particularly thank Jenny Butel, who is our chief nurse, and Heather Osborne and Lee Wightman, who have been working on this for a great deal of time. I also thank our parliamentary counsel, Christine Swift and Mark Herbst. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

Ms CHAPMAN: In relation to clause 3, definitions, you commented, minister, on midwife, enrolled, and registered nurse, so I will not address those. In relation to exempt provider, you referred to hospitals, private hospitals and so on being exempt. I think you referred to the Royal Flying Doctor Service and others, and I understand that. That is relevant then to the obligations for a services provider, which are defined on the following page. The definition states:

services provider means a person (not being a nurse or midwife) who provides nursing or midwifery care through the instrumentality of a nurse or midwife but dos not include an exempt provider.

Are nursing agencies covered by this?

The Hon. J.D. HILL: Yes, I understand so. They are not exempt: they are service providers.

Ms CHAPMAN: In the very extensive list of consultations that was provided by your office, why were any of the nursing agencies or a representative association not consulted about this legislation?

The Hon. J.D. HILL: As I said, we advertised extensively, and the whole world had an opportunity to come to us: as far as I understand, it did not. That is the only answer I can really provide.

Clause passed.

Clauses 4 to 15 passed.

Clause 16.

Ms CHAPMAN: This clause provides for delegation by the board, and it is not an uncommon clause. It restricts it to the powers which, I presume, are those outlined in clause 14, but it excludes other than prescribed powers which, of course, from time to time may often be referred by you to the board to deal with. There are quite extensive powers here, including the approval of training programs. There is a consultation requirement, for example, with the education authorities, under clause 14(1)(b), but it could mean that one member of the board would have the delegated power to provide that. These are quite extensive powers. Is there some logical reason? Often there is a provision for a subcommittee of a board to meet, which obviates practical requirements; sometimes people are absent and all sorts of things like that. I understand the delegation power, but this seems to be fairly broad.

The Hon. J.D. HILL: As I understand it, this is just a general delegation power. It will be up to the judgment of the board, from time to time, what powers it ought to delegate. In general terms, most of the delegations, of course, would be to the registrar. But, from time to time, I imagine the chair of the board might be delegated particular things, or some other employee might be delegated with particular matters. It is true, they can exercise their power in this way. I guess it goes back to the point the member for Kavel was making that you have to create a framework with good outcomes in mind, and then set up a mechanism to create as much flexibility as you can to achieve those outcomes. If they make errors, of course there are appropriate appeal rights.

Clause passed.

Clauses 17 to 23 passed.

Clause 24.

Ms CHAPMAN: Minister, this relates to the annual report and includes the outcomes of proceedings before the board under part 4 as being part of the expanded information to be required. In my contribution, I indicated that I felt that, whilst, for example, the Medical Board had been given this, it provided only a snapshot, really, of all the complaints that had been received. So, there is no comprehensive data on this issue, and I ask why that is the case; that is, if it is going to be expanded and open and transparent and accountable, and all those sorts of things, we need to know what the outcomes are and the follow-up action of all complaints, other than those that are dismissed.

The Hon. J.D. HILL: I am not opposed to that. We can create a regulation that will do that, and I am happy to have a look at that and ask my officers to develop something along those lines.

Ms CHAPMAN: Under clause 24(2)(a)(iv), there is a provision for other information prescribed by the regulations. Will the minister take on notice for consideration also detailing the number of suspensions and/or removals from the registry per year? With a comprehensive report, that may be available, but they would also provide information to cover that. Again, in none of these requests am I seeking disclosure of individual names, for all the usual reasons.

The Hon. J.D. HILL: I do not think that is unreasonable. I will ask the officers to develop a regulation that will deal with those issues. I will obviously seek advice from the board and others who might have an interest as to whether there is a practical reason we cannot do it, but I cannot see any.

Clause passed.

Clause 25.

Ms CHAPMAN: I am not quite sure whether you have answered this, minister, but the register or nurses roll that is proposed now means that we have a nurses register or roll, depending on that definition we talked about before, and a midwives register and one for students. Is it accurate that nurse practitioners are no longer going to be recorded separately? Will they just be notated like mental health nurses? I was not quite sure about this when you gave the explanation as to why mental health nurses were going to be removed; that they previously had a separate type of qualification as distinct from a degree in nursing, and then an add-on, as the reason for mental health not being able to retain status. I am not quite sure where they have disappeared to. It was my understanding from the briefing that they were still going to have their own separate registration.

The Hon. J.D. HILL: The answer to that is on page 25. Clause 36—Endorsement provides:

(1) A registered nurse is eligible to have his or her registration endorsed with recognition as a nurse practitioner in a particular area of practice.

So, that is how nurse practitioners will be dealt with. It continues:

(2) A registered nurse or midwife is eligible to have his or her registration endorsed with—

(a) recognition in a particular area of nursing or midwifery prescribed by the regulations;

So, that would be mental health nurses, and so on.

Ms CHAPMAN: So there would be no separate register? My understanding is that nurse practitioners would still have a special status, not an endorsement status, which is what we are doing with mental health and any others.

The Hon. J.D. HILL: They have a special status. They are nurse practitioners.

Ms CHAPMAN: Separate registers?

The Hon. J.D. HILL: It is not a separate register. There will basically be a common roll or register, and additional skills or areas of practice will be highlighted on that. There is a different register for midwives because it is a different profession now, but nurses will be on the one register, with additions to point out their special skills.

Clause passed.

Clause 26 passed.

Clause 27.

Ms CHAPMAN: Minister, this is the provision for eligibility to enrol, which is under subclause (1)(c) and (d)—the requirement to be medically fit to provide nursing care and being a fit and proper person. I raised this during the debate and in response you indicated that the board already provides guidelines on this. I have never seen those guidelines and, in a briefing that I received, I was not provided with any details of their existence. In fact, I was left with the impression that they did not exist. Perhaps there may need to be a list.

I do not for one moment doubt that the board may well be the appropriate body to prepare a list of guidelines. As I have indicated, it does have guidelines as to what is appropriate regarding boundaries and the relationships that nurses have vis-a-vis patients, as to when they might use intervention or restraint action, and those types of things. So, I am perfectly prepared to accept that they may be the ones to do it, but is there something that gives them some guidance as to what they are expected to disclose to render the board able to say that they are medically fit and/or that they are a fit and proper person?

The Hon. J.D. HILL: What I will do at this stage is table a code of professional conduct for nurses in Australia which is prepared by the Australian Nursing and Midwifery Council. I gather that is used as a general guideline.

Ms CHAPMAN: So is there a provision in the code of practice that tells the nurse or applicant nurse a list of diseases that they need to disclose, or anything of that nature?

The Hon. J.D. HILL: It does not get into that, but it does go through a code of professional conduct. I will table it so that the deputy leader can have a look at it. I have multiple copies here. I am not sure if there is anything in addition to that but, if there is, I will happily get it.

The CHAIR: Can I just clarify that you are providing the deputy leader with some information rather than tabling something?

The Hon. J.D. HILL: Okay, I will do that. I will just give an indication that if there is anything in addition to that which is available I will certainly obtain it.

Ms CHAPMAN: In the same clause there is reference (and I think the member for Kavel touched on this in his contribution) where a board may, on conditions determined by it, authorise an enrolled nurse to be able to carry out nursing care without the supervision requirement. In what circumstances has that been already approved and in how many cases has that occurred—or does it currently apply, I should say?

The Hon. J.D. HILL: The advice I have is that there is only one person to whom this has applied.

Clause passed.


[Sitting extended beyond midnight on motion of Hon. J.D. Hill]


Clause 28.

Ms CHAPMAN: This clause relates to the registration of midwives. I referred to the medical fitness and fit and proper person clauses and I tried to look at the code of ethics that is provided for midwives. I raise this question because it is sometimes a dilemma in relation to the administration of medical practice for general medical practitioners who have a particularly strong view—for example, those who make a personal decision that they do not condone terminations of pregnancy (abortions)—and they are not under any obligation to provide that service if it is contrary to their views. One of the values stated at page 5 of the document in the code of ethics for midwives is quite reasonable:

Midwives value quality midwifery care for each woman and her infant or infants.

Obviously, that is something that is to be universal notwithstanding, for example, the marital status of the expectant mother.

If the midwife holds a view that they do not believe in children being born out of marriage or condoning those relationships, that is the type of thing in some circumstances that may justify rendering that person not a fit and proper person to undertake those roles. Is that the type of thing we are talking about that would exclude a midwife from being a fit and proper person, other than the usual things—a criminal record or whatever? I am trying to get a clearer picture as to the grounds on which a board would disqualify someone for not being a fit and proper person or identify as rendering them as such, or any view, conduct or behaviour of theirs that would allow the board to use that clause to either refuse or terminate a registration.

The Hon. J.D. HILL: This is a very complex area in theory, but I think in practice it is probably pretty straightforward. It is hard, as I am sure the deputy leader would understand, to codify an area such as this and list every single thing that might render somebody unfit for a particular position. The point about this legislation is that it is really up to the profession itself to determine who is a fit and proper person to fill the role of nurse and midwife. Clearly, over time, that will change as standards and views change.

I do not think it is about a person's views or attitudes but rather their behaviour. Somebody might be a midwife who does not agree with children being born out of wedlock but, as long as they treat the patient before them in a professional way, I do not think that view matters. However, if they had a racist view and they treated a patient who was black or Jewish or whatever in a different way from another patient, I think that would render them unfit and there would be a review. I guess it is what they do in practice that is of importance, not what is in their head.

In terms of disease, illnesses and so on, if they are suffering from a condition or they have exercised behaviour that might lead to an assumption that they might be suffering from a condition, obviously they are under some obligation to report that if it might affect their professional work.

There is a lot of subjectivity in that, but essentially it is about: what would a professional do? As a society, we give a lot of subjective discretion to professionals; that is the essence of what makes somebody a professional, that they are self-determining in how they behave in relation to a set of facts. I think we have to rely on the fact that we are talking about professionals here who have gone through a training process and they understand what is appropriate.

There are penalties for those who do not report what they should have, that is, if they behave in an unprofessional way not only in delivering a service when they are unfit for it but by not reporting it—that is a second offence, if you like. So, that is the structure that is put in place. I guess there are any number of people in all professions who are not always acting professionally, but I do not know whether you can have any scheme which is 100 per cent guaranteed that somebody is not doing the wrong thing at some particular time.

This is a structure that we have put in place, and I think it is common across all professions, as I understand it. It creates the right kind of framework so that you optimise the chances of unprofessional behaviour being discovered, but you do not want to create such an onerous burdensome structure that nobody would be able to do anything because everything would be subject to reporting. As I say, I think in theory it becomes really difficult, but in practice it is pretty straightforward.

We have a board which has lots of experience in dealing with these matters pretty well and, as other members have said, we have a very fine workforce, highly trained and highly professional, and they get good outcomes.

Ms CHAPMAN: I understand what you are saying in relation to that, minister, but there is no definition in this act as to what is medically fit or unfit or what is a fit and proper person. I am trying to identify—

The Hon. J.D. Hill interjecting:

Ms CHAPMAN: All right. Well, then let us go to that. Other than a prior criminal offence, or even where they have committed a crime and there has been no conviction recorded, is there any example that the minister can give me of which the board has determined that someone is not a fit and proper person and therefore should be denied registration or should be deregistered, and could you give me that example?

The Hon. J.D. HILL: I cannot answer that question on the spot, but I am happy, between the houses, to seek advice from the Nurses Board, which I will provide to the member, in relation to that matter. I assume what the member might mean is if, say, a nurse was arrested for being drunk and disorderly and did something foolish in an alleyway, would that be something which would have to be reported? I cannot answer that, but I will certainly try to get an answer for the member. My feeling is probably not. But if somebody had an alcohol problem and that affected their work then, I think, clearly yes.

Ms CHAPMAN: The sort of situation is this: somebody could be drunk and disorderly at a public function and they have not been prosecuted or not been charged, but it is not very suitable for somebody in a professional role, especially if it was in the presence of other professionals—it might have been at a Christmas party—and that is one thing. It is another thing if they are either charged with some criminal activity or they are charged but no conviction is recorded but it is noted that the behaviour has been acknowledged.

The common situation is that somebody will attend a job interview and say, 'Look, I've got 14 speeding offences,' and they are told, 'Well, Road Traffic Act issues aren't really a problem. Don't worry about that, that's not a problem.' That is why it is so undefined. We are trying to make it very clear to an applicant what they are obliged to disclose. It might be tell all and then the board will make a decision about whether or not it is relevant. I am not sure what guidance will be given to the applicants because, as the minister said, there are very severe penalties here, apart from loss of registration down the track. There are penalties for signing declarations (and we are talking about tens of thousands of dollars in this bill) containing information that is inaccurate.

The Hon. J.D. HILL: Perhaps I can give some further advice here. I am advised that the following is the Crown Solicitor's view :

There is ample guidance in case law as to what the phrase means—

that is, 'fit and proper person'—

and more aptly covers the range of issues which are relevant to the protection of the public.

It is accepted that the attributes necessary for a person to be 'fit and proper' must be considered in the context of the activities in which the person is or will be engaged. It is most often used in legislation in the context of disciplinary tribunals where the focus is the protection of the public and not punishment of the professional concerned.

The term is to give the widest scope for judgments as to the appropriateness of a person for the position and takes into consideration a person's honesty, knowledge and ability. A person's criminal record is often a highly relevant fact in considering fitness and propriety, but it does not necessarily follow that a criminal record will automatically exclude a person from being regarded as fit and proper. It will often depend on the offence in question, the recency of the offence and its relevance to the ability of the person to operate effectively in the position of the profession in question. All of these matters the board will need to take into account when making a decision about a person being 'fit and proper person' to register.

I think, by extension, an individual would need to take into account all of these things when making a decision about what information they ought to provide to the board, of course. The opinion continues:

Under clause 64 of the bill, any decision of the board to not register a person based on this or another reason can be appealed in the District Court.

I am not sure that I can provide much further to the member. I am happy to take on board the member's concerns and ask the board to provide further advice, if it can, and also ask it to consider whether or not it would be useful to provide more explicit guidelines. I think the trouble with doing that, of course, is that, if you create a list, then there is an assumption that anything not on the list is okay. Then there is the problem of forgetting or leaving something out, or not contemplating something that might, in the future, be of concern. I think that there would be a reluctance to provide a really comprehensive list, but there might be some general information which can assist individuals to comply with this part of the legislation. I am happy to ask the board to think about that.

Clause passed.

Clauses 29 to 34 passed.

Clause 35.

Ms CHAPMAN: This clause relates to the obligation for nurses or midwives who have not practised for five years to have their position reviewed. As the minister said, after five years there is an obligation for the board to be satisfied that, in those circumstances, they have undertaken some re-entry or reassessment, depending on the time frame. As I have indicated, we totally support that.

Frankly I was astounded when the minister indicated, in response to this issue of the 10-year rule (the policy), that this is a policy of the board and we do not need to interfere with that, that the purpose of the legislation is to provide the framework and they can fill in the dots. Here we are in a situation where the legislation specifically states that conditions have to be imposed if they have been out of the workforce for five years. It does not mention the 10-year issue at all.

It may be a policy that has been developed and there may be some good reason for it. I have not heard from the Nurses Board as to why it does that. I have indicated that there are people in the real world who want to re-enter and that this is an impediment—for all the reasons I have said before—that should not exist. That does not mean necessarily that you take any notice of it, but I think we need some explanation; and to simply say that this matter will be left with the board, when we have issues of workforce and people who want to come back into the workforce, and that this policy is a unique requirement for professionals, is something for which I cannot see any justifiable reason.

Minister, you do not need to have that policy at all. You can still impose on the board, as you propose here, that it require a re-entry or reassessment after five years—I have no issue with that—but in relation to a policy where after 10 years they will have to redo it, I think the parliament deserves a response from the minister to indicate the reasons why that is just not able to be changed. But, having identified it as policy, it is up to us as a parliament to make those decisions. I would hope that we would have information from you, minister, as to whether opening it up is something that your government would support. It is clear from what I have said that we would support that. I would be concerned if this were left as a policy issue and not resolved.

The Hon. J.D. HILL: I attempted to answer this during my second reading explanation. I refer to clause 35(1)(e) which provides 'such other conditions as the board thinks fit'. That is a condition that the current board has thought fit. The whole essence of registration in Australia is based on the profession with some outside support—but, essentially, the professions themselves—determining what the rules are. Doctors determine the rules for doctors, nurses for nurses, osteopaths for osteopaths and so on. That is what it is about. They fight strongly to maintain that kind of principle.

For us as legislators—who are not medical, clinical, nursing people—to put ourselves in the position of the profession is wrong. What we have done through the process of this legislation is to set some processes in place through which we believe the profession should go in order to make a determination about what the profession does in terms of creating standards. We have created a structure—and it is a similar structure for all the professions—but we do not actually say specifically what it is that is appropriate and what sort of retraining protocols should apply. We have given them some basic structures, so in this particular clause we have said, 'After five years you have to continue these things and you can do other things.'.

The Nurses Board—and I have absolute confidence in the application of its responsibilities—has made this determination. I understand that the 10-year rule is not a hard, fixed rule. There is some flexibility around it and, if people can demonstrate that they have certain experiences which will assist in retraining, that is allowed. I said to the deputy leader that I am happy to refer her concern back to the board and ask them to think it through. I must say that I share that concern, in part. An arbitrary rule set at a particular time does not have a lot of magic. Why is it not nine years or 11 years? What is magic about 10 years? It is just a round figure.

I am happy to ask them to go through it again, but having a clear rule such as that sends a message to those who have left the workforce for a period of time that they need to get back within a particular time. I am still a registered teacher, though I have not taught in a school since 1984, I think.

Mr Venning: No wonder you are grey.

The Hon. J.D. HILL: Yes, it was the first years that made me grey. I have not taught since 1984. I am still a registered teacher, but I am absolutely certain that, if I were to leave here and go back to teaching, I would be required to go through some retraining process, quite properly. There are requirements, as I understand it, under the teachers registration legislation. However, it is up to the teachers—and that is kind of the same principle. I do not know what the rules are for lawyers. I assume there are some protocols in place, but essentially it is the lawyers who make the rules and parliament sets the structure in place to allow the professions to make determinations about what those rules ought to be.

I do not disagree with the deputy leader. I think there is some merit in the point she makes. However, we do not want to get to the point where we say, 'Because we have a shortage of nurses'—and I will get to the point about whether or not we have a shortage of nurses at the moment—'or because there might be a shortage of nurses in the future, we want to make the rules as easy to comply with as possible to attract people into the workforce.' The Queensland government went through this process with the medical profession, and we have seen some of the disastrous consequences. We have pretty tight rules in South Australia. When we talk about national registration, we want to ensure that we maintain a fairly conservative framework in place so that we can protect the public and not compromise that level of protection because we have shortages.

We in South Australia and, indeed in the other states, recently (a year or so ago) increased the amount of English language proficiency that non-English speakers in nursing had to have before they could practise in South Australia. I think it used to be 6.5 points that they had to get and now it is an average of seven. That meant that it was harder to get nurses, but that was a decision made by the board, quite appropriately. It made life more difficult for the department, individual hospitals and the government, but we accepted that advice. They make it on a professional judgment basis. I do not think you can second guess that. However, I am happy to refer the deputy leader's concerns. I add my own: it makes sense to have a flexible regime in place, but I would not want to put any pressure on them to do anything which is contrary to what they believe is in the best interests of the safety of the community.

Ms CHAPMAN: Thank you, minister. I note the request that the minister will make of the Nurses Board in that regard. As they may receive a copy of the Hansard for that purpose, I place on the record reference to paragraph (e) which makes provision for other conditions. If there is some interpretation of that paragraph pursuant to the Acts Interpretation Act, then I suggest that it would not be consistent with what the minister is suggesting. Paragraph (c) outlines the condition relating to undertaking a specified course of education or training, and it is within that sub-placitum, I suggest, that this issue is introduced. What the minister makes absolutely clear by introducing this bill on behalf of the government is that he requires conditions to be considered and imposed after five years.

We all agree that there has to be a re-entry process, and for every other profession either some refresher or re-entry course is required or recommended. No-one has an issue with that. I might say that, to the best of my knowledge, no other profession—whether they are ophthalmologists, medical people, optometrists, chiropractors (we have been through all those)—says that you have to redo the whole degree. Obviously their boards have made a decision and/or have had no direction from the parliament that says that they have to redo a whole degree after 10 years.

Minister, you say—and I say this for the purposes of the Nurses Board responding—at least if they have a 10-year rule as a policy, people know where they stand. However, the people who come to me saying, 'I have lined up to go back to do my nursing refresher, Vickie. I understood I had to do some course and I find that I have to do the whole degree again' did not know when they retired from their employment to have a family that, 15 years later, they have to do their whole degree again. No-one has told them that.

There is nothing—no literature—that I am aware of that tells people of that, so that you can say, 'Okay, I have got nine years and 364 days, I have to get back in there; children strapped to the hip, ready to get back into the workforce, otherwise I have to redo my degree.' The minister has indicated he will ask the Nurses Board to respond to the request that I have made, and we need to have some explanation from the board as to why it thinks this profession, uniquely, somehow or other evaporates capacity completely so that it fails to recognise this degree in this way.

No other profession is required to do it. No other board has determined that it is necessary. I do not know of any other parliamentary requirement that any former minister has decided it is necessary to impose. I think we are all entitled to have some explanation from the Nurses Board as to the justification—it might be a very good one—for putting so many women in this situation. It is only women who have complained to me about this. Why should they be treated in this manner? If there is a good explanation, I indicate to the minister that we will take that on board, also.

Clause passed.

Clauses 36 to 38 passed.

Clause 39.

Ms CHAPMAN: Clause 39 is in Division 3—special provisions for services providers—and the minister has explained that this does provide for agency nurses. I think I have clarified this question of why they were not consulted and, as I understand the minister's answer in this regard, it is because these are pretty significant organisations in our community. They place thousands of nurses and carers into hospitals, acute facilities, aged care homes and private homes every day. They were not told, although the minister tells me that he advertised this.

This is an obligation of recording information, providing detail if it is asked for in relation to their employees, and a number of these carry obligations of record-keeping for seven years. It provides $10,000 penalties for any failure on behalf of the agencies if they do not comply with this. On the basis of what we understand, just in the brief opportunity we have had to consult on this, they did not know about it. They were told about the general gist of it and have not described any specific complaint to me, but I have not even gone through the issue of the amount of penalty.

So my question is: what action does the government propose to take to advise those who are clearly in the business as services providers—and any others? I am not aware of others, but I just picked agency nurses because it seemed to be a logical group that would be covered by this after reading those that were exempt, and they were not in that category. As to what education process or what information is going to be given to these people in relation to what is proposed, it may be too late for them to have any say about it but, at the very least, advise them of the obligations they are about to have.

The Hon. J.D. HILL: In the normal course of events, once a piece of legislation has been passed through this place, regulations will be developed and various guidelines and communication strategies put in place. Given the deputy leader's great interest in services providers, I will pay special attention to ensuring they are provided with very adequate communication about what the legislation does and how it might affect them.

Clause passed.

Clauses 40 and 41 passed.

Clause 42.

Ms CHAPMAN: I again have a question about this area because of the extraordinary penalties that apply if a person holds themselves out to be a nurse, midwife or student, and the penalty is $50,000 or imprisonment for six months for pretending to be something that you are not. Whilst I have no issue with someone who pretends that they have these qualifications or holds someone else to do that, I am a bit worried about the student being in there with this sort of penalty and I just ask why pretending to be a nurse student should attract that level of penalty.

The Hon. J.D. HILL: It is the circumstances, obviously. The courts will determine how severe the penalty will be, depending on the circumstances. I think if you were in a pub on a Friday night and you said, 'I'm a nurse student. What are you doing?' I do not think that would be a very severe example. However, if you were wearing a uniform and wandering around a hospital heading for the drug cupboard, I think it might be a more severe case and, in those circumstances, the penalty is probably warranted.

Clause passed.

Clauses 43 to 46 passed.

Clause 47.

Ms CHAPMAN: This is about directions to a registered or enrolled person to do something unprofessional. This also has a very heavy fine of $75,000, and directing them to contravene a particular condition again has a fine of $75,000 or imprisonment for six months. This may be, for example, a person requesting a nurse to fill out a form and say that they have actually undertaken that particular procedure knowing that to be false.

I referred to one example with a carer where this has happened in other circumstances where there is a pressure on the nurse in a situation, and they do not have time to carry out certain things and are then expected to fill out the forms. I think that it is done not because there is a desire to fill out a false declaration for itself but to make sure that they are quarantined against losing some form of accreditation.

It may be to distort the statistics so that when the statistics go to the minister there is not some hoo-ha about it. So this question of keeping accurate data in relation to procedures is often one which is at risk of its integrity being breached and there is pressure on some of our professionals to fill these out. Is that the sort of thing you have in mind here: if somebody in the hospital hierarchy, for example, were to say, 'Fill out these forms. Don't worry about this; tick the box and everything will be fine.' Is that what we have in mind here?

The Hon. J.D. HILL: I think that it possibly covers that, but it is more to do with the treatment of patients, so that if the nurse were told to give a particular drug which was not appropriate or to wash a patient in kerosene or some other bizarre things that have been reported from time to time—not to give medication when somebody was in pain (and I can think of some examples and am aware of the case at the moment where that is happening—I think it is that kind of situation.

This is really saying that professional nursing is a discrete area of practice. Nurses are professional beings. They operate within an organisation. They can be directed to provide nursing for a particular person, but they cannot be directed as to the appropriate level of care in an unprofessional way. Clearly their supervisor can say, 'Do it this way' or 'Do it that way' or a doctor might say, 'I prefer to have this treatment done in a particular way', but if they were to say, 'I want you to do something which is outside the professional regime,' especially to the detriment of the patient, it is really appropriate that we have a very severe penalty against anybody who might do that. I am not sure that this happens terribly often—you would hope not.

Ms CHAPMAN: I raise this issue, minister, because in my contribution I referred to the ANF survey of mental health nurses. One of the things that they complain about is an expectation that they do just that—that they are expected to make decisions that are to the detriment of their patients.

An example provided to me was that a proposal had been made to a senior mental health nurse by another professional (not a mental health nurse) that there would be an agreement to see a particular patient conditional upon her agreeing that, in respect of other patients, there would be no change of shifts. This is very serious, and I have counselled the person to refer this matter to the Nurses Board, because I believe that is exactly the type of pressure that is imposed when the workforce is in a pressure cooker environment—which is clearly the outcome of this survey.

They are not expected to do anything illegal in relation to shifts but, if they consider this to be to the detriment of patients and that they would compromise that in order to be able to access some other service—that is, another patient being seen by this other professional—that seems to me to be directing or pressuring another person to engage in unprofessional conduct. As proposed in this legislation, it attracts a very severe penalty. It may be a very important one, but it is not uncommon and it needs to be addressed.

The Hon. J.D. HILL: I am not aware of the circumstances and, as the honourable member knows, I am not responsible for the mental health part of the portfolio. I am aware, in a general sense, of concerns that have been expressed. I do not want to enter into a debate about this, because I do not know the circumstances; the member may be right that it may apply, but I do not think you can transport industrial relations issues into this area. There may be some circumstances where you can, but I think the industrial relations environment of any institution can sometimes be quite difficult. I believe this is really about someone being directed to do something that is unprofessional and contrary to the interests of the patient.

I guess from time to time people may argue about working particular hours or that the ward is not properly air conditioned. All those kinds of amenity issues may somehow lead into this, but I think that would interpreting it in a very broad way. Of course, it is not up to me to give an interpretation; it is up to us to create the laws and for the courts to give the interpretation, but that is the feeling I have.

Clause passed.

Clauses 48 to 54 passed.

Clause 55.

Ms CHAPMAN: I rise to speak on this clause because I want to highlight that here is a legislative proposal to direct the board to provide guidelines—in fact, within six months—to deal with the processes carried out by the inspectors in their investigations. Indeed, there is a whole provision for a review of those guidelines further on in the proposed act. I would make the point that if it is good enough to provide guidelines to inspectors it is good enough to provide guidelines to the very professional people who will be involved in this act.

The Hon. J.D. HILL: The member makes a debating point; however, these are guidelines regarding how officers implement legislation, so it is about how an inspector goes about inspecting. That is not a professional area of conduct except in the sense of what is an inspector's area of conduct. It is not about the health profession of nursing: it is about the behaviour of inspectors, so it is appropriate to seek guidelines in relation to that. I have already answered the other question more specifically, but I would just make that point.

Clause passed.

Clauses 56 to 58 passed.

Clause 59.

Ms CHAPMAN: I have a question on this clause that I am not sure has been covered. This is a provision for the obligation to report medical unfitness and unprofessional conduct by others, and I think we have covered that. Again, it is quite a significant penalty. I am trying to find the section in relation to students, because there is also a penalty for educational institutions—

The Hon. J.D. Hill: Paragraph (d).

Ms CHAPMAN: Yes; thank you. They are obliged to report if a student ceases to do the course. Of course, we will bring in students here. It is a $10,000 fine to the University of Adelaide if it forgets to tell the Nurses Board that somebody has withdrawn from a course. I wonder how that can possibly be justified.

The Hon. J.D. HILL: I do not think that the deputy leader is correct. This clause relates to who is obliged to report to the board behaviour as a result of medical unfitness or unprofessional conduct. It obviously applies in the workplace, but it also applies to those who are training students. So, if a director of a training institution became aware that one of the students had a mental or physical disability to the extent that they could not conduct themselves as a nurse, given that they were registered as a student and would be in contact with patients, they would be obliged to let the registration board know. As I read it, it is not about their dropping out of the course.

Ms CHAPMAN: That is why I was trying to identify whether that was the relevant clause. My understanding is that, if a student ceases their course, there is an obligation for the educational institution to advise them. I read that somewhere, but I had not marked it. Is it there?

The Hon. J.D. HILL: It is not in that clause. I am advised that it is on page 23, removal from register or nurses roll. Clause 40 relates to records to be kept by service providers. I think that clause 32 is the applicable clause. It provides that the registrar must remove from the appropriate register or the nurses roll a person who completes or ceases to be enrolled in a course of study.

Clause 32(3) provides that the registrar may act under clause (2) without giving prior notice to the person. I do not think any penalty applies that I am aware of; I cannot see it. I am not aware of any penalty that applies. This is really a penalty that applies for the more serious concern about somebody who clearly has a problem and the educational institution has a responsibility to let the board know, so that is a different issue.

Clause passed.

Clauses 60 to 72 passed.

Clause 73.

Ms CHAPMAN: This clause relates to where a person who is registered or enrolled under the act becomes aware that he or she is medically unfit. I assume that somebody else must report the medical unfitness or it may just be the person themselves.

The Hon. J.D. HILL: No, the person themselves.

Clause passed.

Remaining clauses (74 to 85), schedule and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.


At 00:47 the house adjourned until Thursday 16 October 2008 at 10:30.


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