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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-06-24 Daily Xml
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HEALTH PRACTITIONER REGULATION NATIONAL LAW (SOUTH AUSTRALIA) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 June 2010.)

The Hon. D.G.E. HOOD (12:37): I rise today to indicate Family First's position on this bill. We support the bill. Some important and significant measures are introduced in this bill which there seems to be very little opposition to in the community, which is a welcome aspect. We believe that our health practitioners should be able to practise interstate, if they wish to do so, without unnecessary hurdles being put in their way. In a similar light, we welcome competent medical practitioners from interstate to practise here without undue burden in terms of paperwork and the like. This is what this bill seeks to implement and it does so by consolidating 90 or so health boards from around the country into the Australian Health Practitioner Regulation Agency. This will certainly reduce duplication of administrative services, and Family First is certainly all for that.

This national law will commence on 1 July 2010 (next Thursday, if I am correct) and it will cover 10 health professions including medicine, nursing and midwifery, pharmacy, physiotherapy, dentistry, psychology, optometry, osteopathy, chiropractic and podiatry. On 1 July 2012 medical radiation practitioners, occupational therapists, Chinese medical practitioners and Aboriginal and Torres Strait Islander clinical health practitioners will also be included. It is also being scoped for the inclusion of other health professionals in the national scheme over time.

As the minister noted, the primary objectives of the national scheme are several—firstly, to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are actually registered; and secondly, to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between jurisdictions or to practise in more than one jurisdiction, which is becoming increasingly common.

Family First certainly has no issue with those objectives—indeed, we support them. There was also a suggestion during the minister's second reading that, under current mutual recognition laws, there is the potential for the public in South Australia to be exposed to practitioners who may not meet the registration requirements established by local registration boards. The discredited medical practitioners Patel and Reeves, who until recently were registered interstate, were mentioned and our participation in the national registration and accreditation scheme for the health professionals was urged in order to minimise that risk.

The scheme will ensure that health practitioners will be subject to nationally consistent registration standards and codes from their professions. Again, this is something that will protect South Australian families and therefore will have our support.

I also put on record that Family First has had discussions with a number of stakeholders regarding this bill. I indicate our support for the Pharmacy Guild's position in relation to this bill. I will refer to the as always valuable information supplied to us from Messrs Ian Todd and Michael Robertson from within the guild. We agree with the position taken in the bill that registration of pharmacies remain a state matter, and therefore we support the proposition, in principle, that pharmacies should be run by pharmacists. If doctors were to run pharmacies, as is the case in some countries, clearly, that raises the potential for conflict of interest and, if ever we were to go down that path, we would need to do so very carefully indeed.

Further, we will be supporting the government amendments that allow pharmacists who are not personally accredited to dispense drugs to nevertheless own pharmacies. In fact, I have personal acquaintances who fall into that category, and I see no problem with their acting in that capacity.

Family First is also mindful of the concerns raised by the Royal Australian College of General Practitioners regarding the risks they face if we do not get this legislation passed before 1 July. One risk of delay is a doctor care fund, as advised to us recently by a representative from the medical community. This is an important initiative to ensure that doctors look after themselves and have someone to talk to confidentially about their own health if it becomes a concern. Delaying this legislation will put that measure at risk because the continued operations of the South Australian Medical Board will drain the funds earmarked for that initiative.

I am not aware of anyone having issues with the aims of this proposed law. A number of concerns have been raised by the opposition regarding the way in which the law will be implemented, in particular, the handing over of our legislative prerogative, if I can put it that way, to Queensland, which is handling the main bill in this case. My recollection is that this is not the first time this chamber has done that. In fact, the River Murray handover and the national credit laws, which were recently passed, are just two examples, along with this bill, where the parliament has given away some of its sovereignty to a COAG ministerial council in terms of decision-making. I must say we are a little uneasy about that fact.

I am not a big fan of passing on some of our legislative jurisdiction, although it may not be specifically power because we would have the power to overturn that decision at some later date. However, I put on the record that I think we should do so in limited and infrequent circumstances. In my opinion, I think it is fair to say that we have done it only where I see genuine advantages in doing so. I think that, if we are to continue to do that sort of thing, we need to do so carefully, but, at this stage, my feeling is that we as a parliament have been careful in that regard.

It is not ideal. New South Wales, as I understand it, has made some alterations to its bill along this line in relation to disciplinary proceedings, and Western Australia has come to separate arrangements as well. We will be listening to the debate with respect to the amendments; nevertheless, on balance, given the importance of consistency on this issue, at this stage we do not intend to support the amendments. It is something we have considered very carefully, and I think that, on balance, the legislation is best supported as it stands.

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for the City of Adelaide) (12:43): I understand that the Hon. Kelly Vincent also wishes to make a contribution, but she has indicated to me that she is happy for me to proceed with my closing remarks and that she will make her contribution during clause 1.

Having said that, I would like to make some closing remarks. I thank all members who have made a contribution to the debate over recent days. This bill is aimed at creating a nationally consistent scheme for the registration of health practitioners. When established, this system will mean better protection for Australians as well as creating a simpler system for all practitioners.

This bill in its current nationally consistent form is supported by may key groups, including the AMA, the Australian Nursing and Midwifery Federation and the South Australian Medical Board. To oppose this legislation is to effectively go against the wishes of the many health practitioners across South Australia who support national registration and want to see this legislation passed in South Australia.

A number of speakers in this debate have raised points about the protection of state sovereignty in terms of national law. State sovereignty is not threatened by the national law; the amendment to the law passed by the Queensland parliament must be approved by other states and territories. If Queensland were to take unprecedented action and impose its own amendments, states and territories could withdraw from the agreement and the amendment would be null and void. There are a number of other pieces of legislation, including national gas laws, which have similarly applied this arrangement and been successful.

The opposition amendment to allow state-based mirroring law, rather than adopting the Queensland legislation, will mean that amendments to the national law will be applied in South Australia possibly months or even years after it is applied in other states. There is a serious concern that this will disadvantage South Australian health practitioners, with amendments that benefit them coming into force in this state possibly months after they are applied elsewhere.

The experience with the Gene Technology Act 2000 is a good example. States introduced mirroring legislation and there are now significant issues and problems arising when amendments are required. The national law will strengthen requirements for mandatory reporting of health practitioners whose behaviour or actions are impacting and putting at risk their patients. This is all about providing better protection for Australian patients.

The opposition amendments aim to water down mandatory reporting requirements in the legislation, allowing some practitioners to avoid penalty for not reporting a colleague or domestic partner. If this amendment is successful, South Australia will have the weakest mandatory reporting requirement in the nation. This is just not fair for patients. I urge members to strongly consider the implications of these amendments and to pass the national law intact and consistent with the states and territories.

I have responses to a number of questions asked by honourable members during the second reading debate, and I will answer them now. The Hon. Tammy Jennings raised a question about mental health nurses. In response to that, minister Hill issued a statement in a letter to the ANF on 26 May stating:

I can reassure you that nurses currently endorsed as mental health nurses will continue to play an important role in the provision of mental health services in South Australia. We are committed to safe and efficient mental health nursing care, which requires nurses working in mental health to be adequately trained in mental health at the graduate diploma and advanced diploma levels. It is acknowledged that there is a need for a mix of both mental health qualified and non-mental health qualified registered nurses and enrolled nurses, and that appropriate supervision arrangements are in place to support this balance.

This skill mix includes non-mental health qualified registered nurses, mental health registered nurses, enrolled nurses and mental health trained enrolled nurses. The Hon. Tammy Jennings is correct in her assertion that it is a matter for the national Nursing and Midwifery Board of Australia to determine which nursing practice areas should have an area of practice endorsement. However, South Australia will continue to employ mental health nurses as part of the mix of registered enrolled nurses caring for people with mental health issues.

The honourable member also asked a question about medical unfitness or professional conduct of medical students, and I have been advised that in South Australia we already have in place a requirement that students in health professions are required to be registered. This is not the case in other jurisdictions.

Minister Hill fought hard to achieve this significant addition to the national scheme. With the commencement of the national law on 1 July 2010 all students undertaking courses in the relevant health professions will be registered. Boards will decide at what point during their program of study students will be required to be registered, and this will depend on the level of risk to the public. The national scheme will enable national boards to act on student impairment matters or where there is a conviction of a serious nature, which may impact on public safety. This requirement will come into effect for other jurisdictions from the beginning of 2011. However, as South Australia already registers students, clause 275 of the national law allows the continuation of student registration in South Australia from 1 July 2010.

A question was asked by the Hons Tammy Jennings and Stephen Wade concerning restrictions on psychological tests, including psychometric testing. I have been advised that, while South Australia's current Psychological Practices Act 1973 has provisions for the regulation of psychometric tests, no tests have been prescribed since the proclamation of the act.

In considering the risks associated with psychometric testing, the government has found that there is no evidence that the non-prescription of psychometric tests over the last 30 years has resulted in any harm to the public. The government also found that access to certain psychological tests is restricted by the companies or organisations that publish or provide those tests to registered psychologists.

At the first meeting of the Psychology Board of Australia on 20 September 2009, the board approved a process to prepare a consultation paper in 2010 on practice restrictions for psychological testing. This is the appropriate national mechanism for the profession to assess the need, or otherwise, for restrictions on psychometric tests.

The Hon. Tammy Jennings also asked a question on the Health and Community Services Complaints Commissioner and workload implications. I have been advised that, under the national law, the national board is required to notify the Health and Community Services Complaints Commissioner when a complaint has been received against a registered health practitioner and provide a copy of the complaint and any other relevant information.

Similarly, if the HCSCC receives a complaint concerning a health practitioner registered under the national scheme, the relevant national board must be notified and provided with a copy of the complaint and any other relevant information. The HCSCC and the national board must attempt to agree on how the complaint is to be dealt with. If agreement cannot be reached, then the most serious course of action will apply. For example, if the HCSCC believes that the matter should be referred to a tribunal, but the national board believes that it could be dealt with by a panel of the board, the matter must be referred to the tribunal.

The role of the HCSCC under the national law is no different from that which currently occurs with registration boards under the current state legislation, that is, to receive advice of complaints and propose a course of action. Under the national law, the HCSCC will have the additional ability to refer matters to a tribunal, a power that does not currently exist under state legislation. As a result, there is not expected to be any significant impact on the workload of the HCSCC.

The Hon. Tammy Jennings also asked a question regarding employment arrangements for nurses that might be deemed surplus to requirements. I have been advised that the national agency is a body corporate and is not an instrumentality of the Crown and, as such, is not a public sector agency.

The provisions in the bill are consistent with other workforce transitions, such as the outsourcing of porters and orderlies at the Royal Adelaide Hospital in 1994 and the privatisation of Modbury Hospital in 1995, where public sector staff were not provided a right of return to the public sector. No other employee has a right of return to their former employment if they decide that they no longer like their new job. The government believes the provisions are generous by guaranteeing redeployment within the public sector should the national agency declare these staff surplus to requirements within two years.

The Hon. Stephen Wade and the Hon. Michelle Lensink asked a question in relation to provisions if there is a disagreement with something that is done by the ministerial council. I have been advised that the IGA states:

Agreement by the ministerial council for the purpose of decisions relating to this scheme will be by consensus. The national law is silent in terms of the agreement process required.

However, clause 16 of the national law states:

The ministerial council is to give direction or approval or make a recommendation, request or appointment for the purposes of a provision of this law by resolution of the council passed in accordance with procedures determined by the council.

Therefore, unless they decide otherwise, resolution of the council is by consensus. The Hon. Stephen Wade made a comment that parliament should make it as easy as possible for South Australians to know what law applies to them, particularly in relation to health practitioners. I have been advised that the Department of Health is in discussion with parliamentary counsel on whether the national law can be collocated with the South Australian adopting legislation for ease of access.

The Hon. Michelle Lensink asked a question in relation to carve-outs, and I have been advised that the exclusion of selected jurisdictional acts from applying to the national law is important to ensure national consistency in the administration of the national scheme. The acts to be excluded have been agreed across all jurisdictions. For example, rather than the requirements under the Freedom of Information Act of each jurisdiction applying to the national scheme, the equivalent commonwealth legislation will apply. There are no common health statutes between the jurisdictions that will affect the administration of the national scheme.

The Hon. Michelle Lensink also asked a question on what would happen with the five professions not included in this legislation. I have been advised that determining whether or not there will be a state office is a matter of the national board. Under national law, the national boards may establish a committee or boards in the participating jurisdictions. Each national board has determined where state or territory boards will be appointed. The role of these state and territory boards will be to oversee registration and complaint processes at the local level where these functions are delegated to them by the national board. The other five professions have determined that they will not establish a state or territory board.

In order to provide efficient processes for the professions, the other five national boards—pharmacy, optometry, podiatry, chiropractic and osteopathy—have decided that they will not establish a state or territory board in the first instance. As a result, the state or territory offices of the national agency will provide the registration and information provision roles on their behalf.

Finally, a question was asked in relation to risks posed by the concessions given to New South Wales. I have been advised that, regardless of whether jurisdictions use the national or local law, any outcomes from disciplinary proceedings will be recorded as part of a single national framework; therefore, the risks are expected to be minimal. Given the diversity of arrangements in Australia, the ministerial council agreed to a flexible model for the administrative arrangements for handling complaints. The national law—or state or territory law, depending on each jurisdiction's choice—provides a legislative framework for investigations and prosecutions and the definitions of offences and contraventions.

With those comments, I again thank honourable members for their valuable contributions and thank the Hon. Kelly Vincent for her cooperation in allowing us to expedite this bill. I look forward to the committee stage.

Bill read a second time.


[Sitting suspended from 12:59 to 14:17]


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