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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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HEALTH PRACTITIONER REGULATION NATIONAL LAW (SOUTH AUSTRALIA) BILL

Committee Stage

In committee.

(Continued from 25 May 2010.)

Clause 4.

The Hon. J.D. HILL: Last night before we adjourned I was asked a question by the honourable member for Morphett in relation to the obligation to have criminal charges that were either made or where convictions were found to be available. The advice I have is that of course that information is available, but there will be a code of practice, I think, or guidelines established to assist those who have to consider those charges and convictions in how much weight they will be given.

So, for example, if a 21 year old nurse smoked a bit of marijuana and got a conviction and then at the age of 45 that was still on her record it would be given fairly low weight. However, if somebody was convicted of an offence which obviously related to sexual misbehaviour or fraud of some sort that would be given a heavier weighting. Equally, if somebody was charged with an offence on more than one occasion—particularly if it was a sexual offence—even if they were not convicted it is worth knowing that they might have been charged several times. We do not always get convictions in cases where people have done the wrong thing, and if there is a pattern of charges you would want to look very closely before you offered somebody, for example, registration in an area where they might come into contact with children or vulnerable women. That is really what it is about, I think.

Dr McFETRIDGE: In that same clause, I have a concern about how the criminal history of overseas-trained practitioners is going to be checked, because there is a huge area for fraud and deceit there.

The Hon. J.D. HILL: I guess it is probably no different from the arrangements we have now between various jurisdictions. My advice is that if somebody from overseas wants to come and practise in Australia there are a whole series of steps they have to go through, and criminal checks would be included amongst those. I guess immigration would do that in the first instance, and our registration process would take into account whatever was available from those jurisdictions. I guess the point the member is making is: how do we know whether other jurisdictions are giving us the information? We have to rely on those processes and, if we have doubts, I guess the registration authorities can exercise other means if they are available. I am not sure what else they can do, really.

Dr McFETRIDGE: My next question refers to the national law again. That is part 4, Australian health practitioner regulation agency, clause 25(g). This is setting up a register of students and, as I said yesterday, I declare an interest in this: my son is a medical student at Flinders University. I understand that, if the universities do not cooperate (and that is unlikely) with the national board or agencies, there are no penalties for this other than their name appearing on the website. I think we do need to strengthen that particular section of this national law. I am happy to hear anything from the minister about that.

For the sake of time, I will move straight to clause 26, health profession agreements, and the fees that will be set by the national agency. It provides that 'the national agency must enter into an agreement with the national board that makes provision for the following fees'. Does the ministerial council need to sign off on fees yet, and have fees been set for all the professions?

The Hon. J.D. HILL: No; the fees are really the determination of the agency and the boards. They come to ministerial council for noting only. Essentially, my understanding from the consultations and discussions I have had with the professions is that the professions, particularly the medical profession, are very keen that ministers have relatively little say in the professional aspects of the regulation process, and that would include the setting of fees.

In relation to student registration, I guess when you are dealing with universities you really expect them to do the right thing, so I am not sure we really need a penalty. If in two or three years' time after we reviewed it we found that there was a rogue university, I suppose it might be necessary to do that, but I would have thought the universities basically would do the right thing.

Dr McFETRIDGE: Thank you, minister. Yes, you would expect our universities to do the right thing because, in the past, they always have. I move to clause 30, 'Functions of Agency Management Committee'. I am sorry, I refer to part 5, 'National Boards', which deals with the setting up of national boards. Have people who are transferring to national boards from our state boards been given job descriptions? Do they know—

The Hon. J.D. Hill interjecting:

Dr McFETRIDGE: Yes.

The Hon. J.D. HILL: Yes. The transfer has not been automatic for all the people employed by the state boards. I think there was a guarantee that anyone on an income below $120,000, from memory, had an automatic job or an offer of a job with the new registration boards, and those above that salary had to compete for available jobs that were created. Job descriptions have been established for those, particularly at the higher end. I understand—although I have no real knowledge of this—that job descriptions and roles have been established for those on lower salaries. Most of those people are administrative officers, clerical officers, finance officers, records clerks, and so on, and there will be plenty of jobs in the organisations for them.

I incidentally say that, even if they did not originally come from there, the employees of the boards had a right of return to the Public Service in South Australia and, over the course of the first two years, I think from memory, if they are declared excess to the requirements of the board, they have a right of return to the state Public Service. The employees, I think, have been pretty well looked after. I am absolutely sure that a professional approach has been established to create jobs for them which are appropriate.

Dr McFETRIDGE: Subdivision 3, clause 128 of the national law, 'Obligations of registered health practitioners and students' talks about continual professional development (CPD) which, as I said in my second reading contribution, is a very important part of any profession's requirement, desire and need to continue to develop and keep up with the latest trends. Clause 128(i) provides:

A registered health practitioner must undertake the continuing professional development required by an approved registration standard for the health profession in which the health practitioner is registered.

Subclause (2) provides that a contravention of subclause (1) is not an offence. You must do it, but it is not an offence. On top of that, who accredits the CPD courses?

The Hon. J.D. HILL: An accreditation body has been established for each of the professions. I think it is the existing one for the Australian Medical Council, which has been around for some time. That will continue and equivalent bodies are established. They are professional bodies. The medical one, for example, has representatives from most of the colleges, universities, and so on. They are professional bodies focused on education, training and all of those kinds of standards. They manage this part of the process.

Getting back to my point earlier, the professions very much wanted to run their own professional life, and this is the mechanism by which that will happen. The honourable member would probably be more familiar with the process, but members are to be of good standing. They need to be fellows of their colleges if they are in a senior position. To maintain your fellowship you must undertake certain programs and certain processes; if you do not, you could lose your fellowship or not gain a fellowship, which means you would lack professional standing.

Dr McFETRIDGE: I move now to part 8, clause 140, dealing with mandatory notifications. I am not a lawyer but I have seen on the TV that a wife cannot give evidence against a husband and vice versa—

The Hon. J.D. HILL: That is old law.

Dr McFETRIDGE: That is old law. An issue has been raised with me that, under mandatory notification, if two health professionals are married or in a relationship, the spouse would have to dob in the partner. That seems to be a fairly draconian obligation, according to many people. If the practitioner is undergoing some medical treatment, then the treating medico or health practitioner would have to dob in the patient in that case. Will the minister advise whether that is the case?

The Hon. J.D. HILL: I will make a general point. The law about spouses not being able to testify is an old-fashioned notion. It gets to the notion of the relationship between a man and his wife where a wife was originally considered to be a chattel, and the essential legal point was that your property cannot dob you in. I do not think that is the law any more, but I do not have a legal adviser here to tell me; I think that is the case.

If we are talking about two professionals in a working relationship with each other or who know about each other in a professional way, the fact they are married is secondary. If you have a pair of doctors or a pair of pharmacists or a pair of nurses who are aware of each other and one of them is seriously unwell and likely to cause injury to a third party, surely there is a moral responsibility to do something about it. There is a legal responsibility, too, but the level for mandatory reporting is about substance. It is substantially below the standard reasonably expected. I think there is room for reasonableness here.

This happens quite frequently. Various medical practitioners might have mental health issues which are being managed by proper medication. I can think of a particular doctor in Adelaide who periodically becomes very vocal, but I am aware that he has some mental health problems. From time to time that person may not be properly taking their medication. If they were treating patients without properly being medicated, their spouse knew that and did nothing about it, and something happened to a patient they would have to be liable. You cannot just say, 'He's my husband, I will not report him' or 'She's my wife, I will not report her.' They have a professional duty which is different from their marital duty, if you like. That is the consequence of being a professional.

Dr McFETRIDGE: I quite agree that the obligations of any person acting as a professional and the Hippocratic Oath of 'do no harm'. With some degree of hesitancy and reticence, they are all my questions on clause 4, which is the clause that has caused the opposition, many people on this side and the minor parties some angst.

Clause passed.

Clauses 5 to 18 passed.

Clause 19.

The ACTING CHAIR (Mr Kenyon): Clause 19 refers to the powers of the tribunal. As this is a new tribunal—and we also have national boards—what precedents will the tribunal act upon? Will they be those that were in the District Court? I do not have any understanding of how this system works and I do not want to experience it.

The Hon. J.D. HILL: This is a tribunal that is not operating as a court so it will be up to the tribunal itself to determine how it should behave, but it would have available to it all the findings of other tribunals, courts or bodies that operate or have operated both within and outside South Australia and over time they will develop their own precedents. I am not sure that, in a tribunal, the notion of precedence operates in the same way as it would in a court. It is more of an informal kind of thing, in the same way, I suppose, in this place, we have precedents for doing things, but there is nothing to stop us changing our minds. Whereas in a court, if there was a precedent, you would have to demonstrate through another legal process that you could break away from the precedent of common law.

The common law is a set of precedents which bind current behaviour and to change that you have to find a way of distinguishing one case from all the cases that previously occurred, whereas a tribunal has a looser way of dealing with things. It would certainly take into account what had been decided before, but in the interest of fairness and justice and good public policy, they will find as they see fit on a particular set of circumstances. I think that is right.

Clause passed.

Clauses 20 to 29 passed.

Clause 30.

Dr McFETRIDGE: This clause involves the transfer of assets and liabilities from the state-based boards and agencies to the national agency or the minister. This does involve the case to which I referred yesterday; that is, the Medical Board of Western Australia and $2 million. I understand there are similar amounts involved in some of the boards in South Australia. The total amount is probably getting around the $10 million, I would estimate. It is a significant amount.

There is concern that the money has been accumulated not only to cover some of the running costs of the boards but also, more particularly, to pay for any litigation in which they have been involved. Probably most important to board members now and also the registrants (whose money it is) is that that money is not going to be transferred across to a national bureaucracy and that some will be retained here. I understand there is a formula, although I do not know what that formula is. I know that yesterday the nursing and midwifery federation said that some residual money would be left over. Can the minister tell us how that will work because I think that is something the registrants would like to know?

The Hon. J.D. HILL: It is an issue which has been of some moment for the boards and those being registered by the boards in South Australia. Essentially, a number of the boards in South Australia hold assets which they have collected over time from their members through registration fees and successful investments. As the member said, in some cases there is a reasonable sum of money. A formula was established—and I would not try to explain it to the member but I am happy to send him a note about it; and we will do that so that he can understand the formula—which applied across Australia and money is transferred across the national process.

As I pointed out to the registration boards and their members who came to see me about this, that is money that is going to look after their profession nationally. It is not going to the government: it is going to their profession. Money that was raised through registration processes in all the states will be used collectively in the best interests of that profession. It continues in that way.

As for the residual that stays within South Australia, a discretion is given to me as the minister as to how that money should be acquitted. It is just a technical device that allows the process to be put in place. I am required to consult with the professions about how to use it. I have had preliminary discussions with a number of them and, for example, the professions want the money to be used for scholarships, health services for their profession or research and the like.

I will take advice from the main bodies that represent the professions—the Dentists' Association, the Medical Association, the Nurses Federation and so on—and the boards themselves as to what they want to spend any residual on. The medical board, for example has propositions. It would like to see money, if there is sufficient left over, to provide medical services to doctors. I think the nurses have an interest in having scholarships. We will just do whatever is required. I am happy to table in the parliament, at some future date, details of how that money has been expended, if there is money, in fact, to be expended.

Dr McFETRIDGE: The house will be pleased to know that this really is my last question. It concerns an allegation, and the minister does not have to answer today if he does not know, but perhaps he could get back to me about it. It was alleged that a senior officer of the Department of Health had asked the registrars to transfer up to 30 per cent of the funds that were held by the boards to the Department of Health as of now.

It was put to me that this meeting was a few weeks ago. As far I am aware, there are no minutes of this meeting, but the meeting was held. I am trying to get the date of the meeting so that I can let the minister know about this. The person who told me about this said they thought this was something that was not only unconventional but also, they would have thought, bordering on being illegal. If the minister could check that for me, I would appreciate that.

The Hon. J.D. HILL: I am happy to ask but, presumably, if somebody were doing something illegal, they would not tell me. However, if you have any evidence that supports that, please let me know. There may be some confusion about what was being requested. There was a request that a certain percentage of the annual fees for the registrants be transferred at a particular date to the federal office to allow this establishment fee, and that was 30 per cent. There was a request for 30 per cent of the assets to be transferred to the national scheme to allow it to set itself up. However, no transfers would happen until after this legislation had gone through.

They may have misunderstood what was being requested, or it may have been put in a way that was ambiguous. Even if an officer of the department said, 'Give us 30 per cent of your assets,' there is no way that the department could receive such assets. We are not able to do that, as I understand it. It would obviously have to show up in any audit, anyway, so I assure the honourable member that there would not be an improper process. However, if he has evidence of it, I am happy to look at that.

Clause passed.

Remaining clauses (31 to 83), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for Mental Health and Substance Abuse, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (18:26): I move:

That this bill be now read a third time.

I thank the member for Morphett for his speedy finalisation of these issues in relation to this bill. This is an important piece of legislation. It has been something that has been worked on now at every possible level in Australia over the last four or five years. As I said in my preliminary remarks, it was started when John Howard was prime minister. It was part of the COAG reform processes to streamline decision-making processes in Australia. I am not sure whether, had he realised how much process was involved in getting to this point, he would have proceeded with it; nonetheless, we are getting there.

Largely, there should be bipartisanship about this. It will create big advantages in the longer term for health consumers in Australia, who can be assured that one common, high standard will apply to all health professionals. It will give a much greater focus to the training, assessment and registration of those professionals across Australia. In the future, other groups will be included in the legislation by the registration process, and that will just expand the level of protection that exists.

There are big benefits in this for the practitioners as well. If you are registered it means that you can be assured that you are of a high standard, but it also means that you can practise anywhere in Australia with the one fee. That will help with mobility; it will help those practitioners who do move across state boundaries. For places around the borders—Mount Gambier, up in the APY lands, or any of the other borders that we share with the other states—it will mean that it will make it easier for practitioners to move across borders to do things, and I think that is obviously very sensible.

In cases of emergency it allows practitioners to move across borders to provide services where they are required. I think that the public and the professions will all benefit greatly. The one issue of contention, which the opposition raised, was the methodology to bring this legislation into place in South Australia. As I indicated yesterday, there is plenty of precedent for using mechanisms similar to that, including legislation which was passed when the Liberal Party was in power, which adopted legislation from Queensland in exactly the same way. It is a sensible way of doing it.

There are issues and principles and so on, which one can point to and say state sovereignty and the like, but the reality is that, if you want to have a practical system which ensures a standard of registration in Australia which does not break down over time, you need to have a mechanism such as this. If we were to have a separate piece of legislation, even if it is identical at the beginning, over time it would be corrupted by regulations not changing promptly enough, and individuals would become confused about what the rights and wrongs were. There may well be parliaments where they have decided that certain things should not be passed—who knows?—and it would corrupt the process, and that is a great risk.

There is nothing that takes away from the sovereignty of this parliament. If at any stage in the future it chooses not to embrace any of the regulatory changes that are proposed or it wants to walk away from the legislation, it can do that and set up its own registration scheme. There is no giving up of any power by any authority.

I thank the opposition for its support in principle and, as I say again, for the speedy passage through the committee stage. I look forward to the bill eventually passing through this parliament by the end of this financial year so the scheme can come into place on a national basis. Once again, I thank the officers who have assisted me.

Dr McFETRIDGE: I will not speak for as long as I did last night, but I would like to reiterate a couple of points. The opposition supports the intent of this legislation. We know that if it were delayed there would be some difficulties, and I think some of them might be quite severe difficulties. I was told that if this legislation was not passed by this parliament within this sitting week South Australia, Western Australia and Tasmania would not be included in the national scheme until October. I should have asked the minister about that in committee. I had not heard that before; it was something that was put to me but, once again, when you are talking to other stakeholders there are a lot of variations on the theme.

The amendment put up by the AMA relating to changes to the Queensland national law that are passed through the Queensland parliament not automatically being accepted by this parliament is a good amendment and would give this house reassurance. We have previously passed similar legislation under Liberal governments, but I think we were the lead legislators in the majority of those cases and, as I said yesterday, we would not be having this discussion if we were the lead legislator here, because we would have control of our destiny.

The Hon. J.D. Hill interjecting:

Dr McFETRIDGE: Not everyone can, but I think we can be parochial in this case. It was a great opportunity, and we would have loved to be the lead legislator. There are issues with Queensland being used as the lead legislator when it has only a unicameral system, and we may have been a bit more comforted had it been any of the other parliaments.

The opposition will consider its position between the houses in terms of what we do with the AMA amendments which are, I think, good amendments. We will have discussions with the minister and his staff and hopefully make sure that this legislation, which is well intended, will produce the results that the stakeholders and those who have been involved over the many years and months want to achieve. We hope that actually happens, and I look forward to seeing it happen in a way that does not increase levels of bureaucracy, does not slow down the efficiencies of boards operating at the state level and does not create extra costs that will then be passed back onto practitioners. I hope that it actually fulfils all the objects of the legislation, primarily protecting the public of Australia but, in our case—and more importantly for us here in this parliament—protecting the people of South Australia.

I thank the minister for his cooperation on this matter. I enjoy the relationship between the Minister for Health much more, unfortunately, than I did the relationship with the Minister for Transport. That is not to say that the Minister for Health and I agree on everything; we disagree on a lot of things, and there will be lots of things that we continue to disagree on in the future—priorities and methods, and things like that. I also thank the ministerial staff and advisers who have put in a lot of work with this legislation over a long time. Unfortunately for them it is not over yet, because it has to go through the other place, and I wish them well in coping with that. With those comments I conclude my remarks.

Bill read a third time and passed.


At 18:35 the house adjourned until Thursday 27 May 2010 at 10:30.

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