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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-02-24 Daily Xml
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HEALTH AND COMMUNITY SERVICES COMPLAINTS (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 22 February 2011.)

The Hon. T.A. FRANKS (17:17): I rise to speak to the Health and Community Services Complaints (Miscellaneous) Amendment Bill on behalf of the Greens. We welcome this bill before us, which seeks to incorporate some of the recommendations from the Social Development Committee's Inquiry into Bogus, Unregistered and Deregistered Health Practitioners.

The amendments contained within this bill give the Health and Community Services Complaints Commission (HCSCC) the ability to act swiftly in dealing with such people, if it is in the interests of public health, such as issuing orders or interim orders and placing conditions on an unregistered practitioner's practice, or indeed prohibiting them from practising within this state. The bill also allows for the HCSCC to establish a code for minimum standards for unregistered health practitioners.

There are some changes also to the representation on the HCSCC Advisory Council. I understand that provides for the introduction of a position for a carer and for somebody who is an expert in the area of safety and quality within this framework. We welcome all of those things, although I note my concern that the advisory committee, in the lifetime of this bill, I understand, has met once or perhaps twice. I seek clarity on how many times that advisory council has met. The act has been in operation for some many years now, and I would have thought that that particular framework would have been more active, but perhaps I am wrong and perhaps I can be corrected on that.

The bill also proposes to create greater accountability for health and community service providers, where the HCSCC can request information about what actions have been taken or are intended to be taken with respect to the HCSCC recommendations, which are made both in its annual report and with respect to particular case work.

I commend somewhat the work of the government in ensuring that we do indeed have a health rights framework for health and community services. I note that this goes back to July 2008, when all federal and state territory health ministers endorsed an Australian Charter of Healthcare Rights and recommended their use nationwide. Since that time—certainly to mid-2010—four states and one territory have formalised this in a charter, and the Northern Territory and Tasmania at that stage had pre-existing charters. I would note that in South Australia we have been a little slow to come to the party in many areas that are, in fact, incorporated under the Health and Community Services Complaints Act. One of significant concern to me is that we are still awaiting a draft of the South Australian Charter of Rights, which I understand was meant to be—

An honourable member interjecting:

The Hon. T.A. FRANKS: It has just been tabled, I am informed.

The Hon. R.L. Brokenshire: Surprise, surprise, it was tabled last sitting week.

The PRESIDENT: Fair go.

The Hon. T.A. FRANKS: I did ask in the briefing if we had a copy of that yet and where it was up to, which was some days ago. I understand that hot off the press at some stage we may actually see a copy of this health rights charter, although I will note that the 2004 act had provisions for this particular charter to be tabled within 12 months of the proclamation of the bill and some four years later we started to have a consultation period and people had a six-week period in which they could input—

The PRESIDENT: The Hon. Ms Franks should direct her remarks through the President rather than the Hon. Mr Brokenshire.

The Hon. T.A. FRANKS: I am sure the President will be very interested to know that we had a six-week period in which the South Australian community and stakeholders could have some input into this charter, and certainly quite a few did. I would, again, ask whether or not they have received any response to this tabled document which I understand outlines the charter, and if they would be given the opportunity to see whether or not their input was adopted or ignored or rejected for some particular reason given by the government.

It is very exciting to hear that we are finally, all these years later, having that charter. I welcome it and I look forward to that being trumpeted by this government many a time. A highlight of the health and community services work last year was the development of that charter. Certainly, Ms Leena Sudano, the commissioner of the HCSCC, while doing some fine work and certainly addressing many health and community complaints, notes that South Australia is only one step short of having the lowest funding in Australia for an independent health and community services complaints service.

This is something that we should not be proud of. It is not that we are more efficient, it is, I think, that we seem to have less of a commitment in this state. Nevertheless, there were 1,090 new complaints last year, an average, I believe, of about 90 per month, and that is a 31 per cent increase in this last reported year from the year prior to that. About a quarter of those complaints come from outside metropolitan Adelaide. Since the HCSCC opened in October 2005, to the middle of last year, some 5,500 complaints have been put forward.

So, there is certainly much need for this and anyone who has been in a member's office would know that health and community complaints take up quite a bit of constituents' concerns that are raised with it and it is welcome that we have such an institution, but I echo the concerns that they have continually raised themselves with this government, that they are not adequately funded to provide what we would expect as an efficient and effective service to ensure that our health system is, in fact, making savings by improving its service, quality and safety.

This is the thing: if we have an adequate and well resourced complaints mechanism we will save money in the long run because we will iron out the problems well before they become systematic and intractable. I also look forward to seeing the regulation form of the code of conduct that we will be presented with with regard to the currently non-registered health practitioners and I look forward to the debate around that within the health and community sector regarding what standards we expect of our social workers and naturopaths. I do have some interest in how the area of faith healing may be addressed, and I certainly would like to hear whether the minister has any input on whether or not this particular bill will address issues of faith healers or whether it will simply stick to naturopaths, homeopaths, social workers and so on.

We look forward to the committee stage, which I imagine—I would have liked to have seen the charter before that—will be an interesting time. With that, I commend the government for finally having this piece of legislation before us and certainly look forward to more debate on this area and further funding for the HCSCC in the future.

The Hon. R.L. BROKENSHIRE (17:25): I rise to support the second reading. I agree with most of the comments made by my colleague the Hon. Tammy Franks, particularly the issue around the charter. It is one thing to have a policy prior to coming into government, but when you develop policies, it is not a bad idea to think about what the ramifications might be when you come into government; that is, that you might create some transparency and a genuine opportunity for people with bona fide health complaints to be able to go to an independent arbiter. That is the dilemma with much of what we are doing even now, and that is why I would like to see a standing committee look at this whole issue around the Health and Community Services Complaints Commissioner.

I am not sure where the facts actually sit. As the Hon. Tammy Franks has said, clearly the office has been quite vocal in saying that it is under resourced. Then we see a front page story (which I have a feeling might have come from government) claiming that there were inefficiencies and the cost of each complaint was about $1,500. Then I hear from some constituents that they are not happy with the Health and Community Services Complaints Commission as far as the whole process goes and the outcomes. Then, on the other side, I think that, because they may have created a potential Pandora's box, the commissioner and her office have had one arm tied behind their back, and that is of real concern to me.

It is backed up by what was said earlier by my colleague: where is the charter? I point out to my colleagues that the government is in breach of the law by not providing this charter and setting up the committee within the prescribed time under the act, which was passed in good faith by the parliament. They have broken a law. I understand that the charter, whilst way overdue, may have been in the minister's office as far back as October (or thereabouts) last year. Soon after a story appeared in The Advertiser, surprise, surprise, the government tabled a charter in the other house, possibly during the last sitting week. Perhaps the minister can advise us whether that is right, but it is my understanding that it was tabled, together with the annual report, during the last sitting week.

I want to acknowledge the work of the Social Development Committee, including my Family First colleague the Hon. Dennis Hood, regarding the bogus health practitioners and the evidence that they received. Well done to the Social Development Committee. That is what the committee is set up for.

However, I am specifically speaking to this bill due to concerns that constituents have raised with me about the general performance of this whole commission. I do not take any personal sides in this, but I do want to see a full investigation. Look, if they happen to be under resourced and that is the reason why they are not able to deliver to the expectations of the community, then let us have that debate, but if it is because there has been one arm tied behind their back, then we need the government to come clean on that; or, if there are other issues, let us try to get them addressed through a standing committee.

One thing that we all absolutely agree with is that we do need a structure in place for people who have very serious matters occur in respect of their health so that they can not only lodge a complaint but get an outcome. In this bill additional powers are being given to the commission concerning bogus health practitioners and, as I said on rising to support the second reading, Family First does support the government with that and congratulates it on the amendments.

The inference that we are reading from the writings of the commissioner is that the commissioner wants more resources. If the commissioner can justify that the commissioner needs more resources, then we need the government to be transparent about that and see what really is the situation, because this is clearly going to put more work on them, and we do want that work to be processed in a reasonably expedient way.

I understand from a briefing that my office has had with the government that it is not interested in a new levy or indeed an expansion of funding for these new roles. Certainly, I put on the public record that Family First does not support a levy for this. We have talked already in this chamber today about the fact that it seems that you get $15 billion worth of revenue from taxes and charges, but you do not have any money to run anything, and so what you do then is desperately call for a new tax, a levy or a charge. We certainly would not support the call for a levy. It is up to the government to better manage its budget.

Given that, according to recent media coverage there are some inefficiencies—it has been claimed it cost $1,500 to process a complaint in South Australia—I think the government needs to demonstrate to the parliament just what it is doing to try and rein in or manage or administer better the budget allocation that it has because, whilst there should be independence in the investigations, I think the health minister needs to explain to us just what is the situation as the minister sees it with the budget for that office.

In conclusion, I have tabled some amendments, which I would hope that members, and especially the government, will look at seriously. Really, it is simply about transparency in the annual report. I put these amendments in here because I think it would give a lot more confidence to us as members of parliament if we could see this information in the annual report. It would give us a much better understanding of whether or not the work is so detailed that the budget is inadequate or whether indeed, perhaps, we can then question the government of the day through its minister’s representative here in our house on issues relevant to transparent reporting.

I just want to put on the public record that when we discussed in my office moving these amendments, whilst they are specific and quite detailed as to what sort of reporting processes we would like to see from the Health and Community Services Complaints Commission, it is something that I feel we need to ensure is enshrined in a lot of annual reports and a lot of legislation that comes into this house, because it is not for us to try and assess what is happening with expenditure from a government literally blind to what the real outcomes are.

In the short time I have been in this legislative council I have seen that there seems to be a trend of less and less information being made available to the parliament. That is an unhealthy trend and one that I believe that we should be turning around. Given that the government has now introduced this amending legislation, which we support, I would like to see a clean start from the government in supporting real transparency and much more detail in annual reports so that members of parliament, particularly legislative councillors in the house of review, can adequately make assessment on behalf of our constituents as to the benefits of that particular office or department and whether taxpayers’ money is being spent appropriately.

The Hon. A. BRESSINGTON (17:34): I also rise to briefly indicate my support for the bill. This bill in part gives effect to the recommendations of the Social Development Committee report into bogus, unregistered and deregistered health practitioners, an inquiry which heard of charlatans preying on the vulnerable by claiming to be able to cure cancer and other such illnesses. While any measure that will protect vulnerable consumers from shonky operators is most welcome, I do hold some reservations that, in our attempts to target these, we may place undue restrictions on legitimate professionals, such as naturopaths and homoeopaths.

However, it will not be until the code of conduct is released that we will have any indication as to whether or not my concerns are valid. I was assured in my briefing yesterday that there would be extensive consultation on the draft code of conduct, and it is my hope that the end result will be reasonable and reflect the intent expressed by the minister when introducing this bill. Of course, if it is not, we can always move to disallow the regulation.

Another concern I have about the bill is that this places additional responsibilities with the Health and Community Services Complaints Commissioner who, from media reporting and my constituents' experiences, is clearly overstretched by her current responsibilities. I am not sure whether that is budgetary or whether it is actually due to the wide scope of complaints that that office is required to deal with. Probably the most trying of all are the complaints that have been received against our most dysfunctional child protection agency, Families SA.

I have long held the position that complaints against agencies such as Families SA should be heard by a commissioner or tribunal dedicated to hearing such complaints. There can be no disputing that the complex issues involved in complaints to do with child protection require a specialised skill set not entirely compatible with that required of investigations into complaints against various health practitioners.

I also hold the view that, unlike the ombudsman model, complainants should be given the opportunity to make verbal representations and in a controlled setting directly question decision-makers, for only then will complainants see the process as just and fair. In the many referrals that my office has made to the commissioner in relation to child protection, the responses that have been received by complainants have been inadequate, to say the least.

One of the letters that I have in my office refers to a complaint made relating to a breach of professional conduct, and the letter received by my office about that complaint indicated that, 'Well, this hasn't been an ideal situation. These social workers do have sets of guidelines laid down for them, but they're not really bound by those guidelines.'

That is hardly a response that is going to bring anybody any closure in a case where their children have been removed based on what are said to be false allegations and where a social worker has acted in an unprofessional manner. It is certainly not going to bring about any level of confidence among constituents who are caught up in that system that there is actually a decent road of appeal that is going to yield any sort of outcome for them or see any changes made to the system.

While I am in no position to advocate one particular model over another, I have heard positive things about Queensland's model of allowing complaints about certain decisions of its child protection agency to be reviewed by the Queensland Civil and Administrative Tribunal with other complaints being heard by a specific children's protection commissioner, the Commission for Children and Young People and Child Guardian.

As it is a court action, it would indeed come at a greater expense than our current commissioner. However, as the Hon. Tammy Franks pointed out in her speech, when we actually solve problems we save money, rather than having institutions or offices in place where these problems just go round and round in circles indefinitely.

It was my hope that the Statutory Authority Review Committee would inquire into the office of the commissioner, and that was proposed by the Hon. Robert Brokenshire. I am not quite sure where that is up to or whether or not that is still going to go ahead, but I do believe that would have been a perfect opportunity for that committee to look into the functions, responsibilities and budgetary restrictions, if any, of this office and perhaps offer some recommendations to the parliament to remedy some of those issues. As I said, I support the second reading of the bill, and look forward to seeing the code of conduct that is being proposed.

The Hon. K.L. VINCENT (17:40): I will speak briefly to this bill—briefly because I was told, more or less at the final hour, by the minister's representative, that it would be taken through its second reading today. That is disappointing, to say the least, because something as important as health and community services complaints should not be rushed.

The Hon. G.E. Gago interjecting:

The Hon. K.L. VINCENT: Well, that is all right then—

The Hon. G.E. Gago: So, you can take your time.

The Hon. K.L. VINCENT: I intend to; I would have anyway, but thank you very much. As we all know, this bill seeks to amend the Health and Community Services Complaints Act, and I believe that the amendments, if passed, would indeed improve the way in which the act operates. So, from the outset, I indicate that I will support the bill. Of course, I do acknowledge that some constituents have come to me with grave concerns about the HCSCC and the commissioner and, while this bill does not allay all those concerns, as I said, the improvements therein make for a good start.

First, the bill provides for an additional principle to be included in the Charter of Health And Community Services Rights, which I understand we have now tabled, so who knows what other programs we shall see, which is good—

The Hon. A. Bressington: Probably not much.

The Hon. K.L. VINCENT: Come on Ann, get into the spirit—we have a draft! The right for people—

The Hon. J.M.A. Lensink interjecting:

The PRESIDENT: I think the Hon. Ms Vincent has got the gist of parliament, and I reckon she can work that out.

The Hon. K.L. VINCENT: Thank you very much, sir. I am about quarter of the way through now, so I may as well soldier on. This bill provides for an additional principle to be included in the Charter of Health And Community Services Rights, that is, the right for people to be supported by a person of his or her choice when making a complaint. I believe this is an improvement to the current status quo.

Sometimes people need support when making complaints, and in various circumstances people may only make complaints when they do have support. Therefore, it makes sense to me that the commissioner must have regard to this important principle when reviewing the charter. I understand that this principle is in the draft charter that is currently with the minister (although it has been tabled now, as I said). If not, I would hope that the draft charter is amended so as to include this.

It also makes sense to place a higher onus on a service provider to ensure that it takes action in response to complaints that have been made against it. As the act stands now it is up to the service provider as to whether it informs the commissioner of what action is taken in relation to a complaint, and it should not be up to the service provider to decide whether it provides this information. What is the point of having a Health and Community Services Complaints Commission if it does not have the power to find out what action has been taken in response to a complaint?

It is logical for complaint resolution bodies to work together. All too often different government departments and authorities have a silo mentality but, let's face it, in many instances it is worth working together, especially if the authorities are fighting the same fight, so to speak. That is why I believe that the act will be improved if the commissioner can not only refer but also provide information and assistance to complaint resolution bodies under the commonwealth Aged Care Act.

I agree that there also needs to be more scope for people to make confidential complaints. Some people will not even complain if their identity is disclosed and this can be for a range of reasons, for example, if the person is an employee of an organisation. At the same time, there must be a balance so that people cannot go around complaining for the sake of it, so to speak, just to be vexatious or difficult. I believe that this bill strikes the right balance.

It is no surprise that I support the way in which the bill requires a carer to be on the Health and Community Services Advisory Council. Carers play such an important role in our community and are at the coalface, so to speak, when it comes to complaints. People with disabilities and older people are more likely to access health services and community services than other people in our population and are also more likely to have a carer. So, it makes perfect sense to me for a carer representative to advise the minister and the commissioner about health and community services complaints.

Finally, I guess the big-ticket item on this bill is to provide the commissioner with powers to effectively oversee unregistered health professionals such as social workers, kinesiologists, naturopaths, etc. Again, I think this bill takes a step in the right direction in, firstly, setting up a code of conduct for the unregistered health professionals and then providing powers to the Health and Community Complaints Commissioner to take action in relation to unscrupulous dealings. It is only fair that there should be some sort of redress for dodgy operators. One more sentence, I promise.

The Hon. T.J. Stephens: How long is the sentence though?

The Hon. K.L. VINCENT: Listen intently and you will find out.

The Hon. T.J. Stephens: I am.

The Hon. K.L. VINCENT: I wasn't saying you weren't; I am just making sure. I wish only that I had more time to speak to this, but unfortunately—

Members interjecting:

The Hon. K.L. VINCENT: Drum roll—but unfortunately my speech was written on the run in response to the government making law on the run. In any event, I will be supporting the bill. Thank you for your patience, sir.

The Hon. J.M.A. LENSINK (17:47): I also rise to indicate support for this bill, but I would like to place some comments on the record in relation to the process of this bill, which has been outlined by some of the previous speakers, in that it has been brought on early. It was tabled on Tuesday, and according to the conventions that we used to have operating in this place for a long time, the bill should sit on the Notice Paper. Now, I understand that the government is embarrassed that it does not have enough business to deal with, but I think that is to the detriment of proper scrutiny by this chamber in terms of legislation.

For the record, I would like to say that I am not particularly happy with these practices. I am a fairly cooperative speaker on behalf of the Liberal Party in this place, as with the building licences bill in terms of consumer affairs last year, but this is not a practice that I wish to continue to be part of in the future because we all like to be ready and prepare additional remarks.

I would have liked to examine the Social Development Committee's report in much more detail, if I had had the time, and I really do not appreciate the way that the government is managing business in this place. I have cooperated a couple of times, but I am actually losing my patience and am clearly quite annoyed. I am grateful to the officers and thank them for providing me with a briefing. It was originally due to be next Tuesday, and I was happy to have it this morning, but I do not feel like I have had adequate time to prepare my remarks in relation to this bill.

I will now turn to some of the provisions within this particular piece of legislation, which, I understand, is the result of two particular matters. One is a statutory review of the act which took place some two years ago now in 2008, so why the urgency is upon us I am at a loss to understand. The other, as I mentioned, is the Social Development Committee's inquiry into unregistered health practitioners, which, I think, was quite informative in providing examples of some fairly disgraceful behaviour by people preying on vulnerable people who were in desperate search of cures which, unfortunately, they were not going to avail themselves of by going through those health practitioners.

I understand that New South Wales is the only other jurisdiction that has some form of legislation to protect consumers from these practitioners who may be indulging in dodgy claims. I understand from the briefing that it will be on the discussion for the Australian Health Ministers' Advisory Council next month and that there may then be further amendments to legislation arising from that.

The Health and Community Services Complaints Act is to be amended with what look to me to be some technical matters. The provisions that relate to unregistered health practitioners will provide that there will be codes of conduct, interim actions, penalties of $10,000 or imprisonment for two years or both, and the commissioner may require that health services providers will provide explicit statements about what their intentions are in terms of correcting some statements that have been found to be incorrect.

There are appeal provisions to the Administrative and Disciplinary Division of the District Court for those health practitioners. There are further amendments to the council and a matter of returns, which will need to be provided to the commissioner. This topic was explored in great detail by our health spokesperson, Dr Duncan McFetridge, whose contribution was made on 10 February.

Dr McFetridge raised in that discussion many things which relate directly to the provisions within this particular bill and also went into great detail on some of the matters that have been raised in the public domain about funding for the Health and Community Services Complaints Commissioner. I have to say that some of the suggestions about how funding should be raised amount to additional tax and they are not things that would be supported. Indeed, if this agency is to be properly funded, then it should be funded from general revenue. I would also appreciate any comments that the minister might have about those issues that have been raised about funding for this agency.

With those remarks, I indicate that we will be supporting this bill. I think we would have been derelict in our duty if we had put this through to the end of the debate. I flag for the government that, if they try these tactics again in future, we certainly will not be supporting the rushing through of legislation unless there is a really good reason.

Debate adjourned on motion of Hon. G.E. Gago.

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