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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-02-22 Daily Xml
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CONTROLLED SUBSTANCES (THERAPEUTIC GOODS AND OTHER MATTERS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 17 February 2011.)

Clause 22 passed.

Clauses 23 to 26 passed.

The Hon. G.E. GAGO: I have been able to find responses to questions relating to earlier clauses asked by the Hon. Mr Brokenshire. In relation to pay scales for nurses, midwives and nurse practitioners, the honourable member expressed concern that as a result of the bill more responsibility is being placed on nurses, nurse practitioners and midwives as a cost saving measure in order to avoid doctors doing this work.

I am advised that payment for public sector nurses, nurse practitioners and midwives is aligned to their scope of practice. This will enable the health system to make better use of these highly skilled clinicians by enabling them to practise to the full scope of their competency. There is no change to the current authorisations for nurses to administer or supply prescription drugs. As such, it is not expected that they will take on more responsibility as a result of the changes included in this bill.

In the case of nurse practitioners and midwives whose registration is endorsed with the scheduled medicines endorsement, if the nurse practitioner or midwife has prescribing rights, prescribing is within their scope of practice. Their scope of practice is aligned to a classification point which has been built around the competencies, accountabilities and responsibilities for that level. The nurse practitioner's or midwife's remuneration reflects these competencies, accountabilities and responsibilities.

In terms of the extension of prescribing rights out of necessity because of the failure to sufficiently train and attract doctors to regional South Australia, the honourable member asked whether the government needed to give these powers to nurses and nurse practitioners out of necessity caused by this failure.

Nurse practitioners and midwives are highly skilled health practitioners. The authorisations for midwives and nurse practitioners to prescribe Schedule 4 and Schedule 8 drugs would recognise their evolving scope of practice and the requirements they must meet to obtain endorsement of their registration as nurse practitioner or midwife with the scheduled medicines endorsement.

The extension of prescribing rights to midwives whose registration is endorsed with a scheduled medicines endorsement, permitting nurse practitioners to prescribe both Schedule 4 and Schedule 8 drugs, will enable those health practitioners to practise to the full extent that they are qualified.

The honourable member was also concerned about enforcement of provisions relating to prescribing rights and access to scheduled medicines. The honourable member asked how many prosecutions have occurred in the context of existing rights and drug access for existing licensed practitioners and how many of those prosecutions have been successful. The honourable member also asked what inspectorate exists or at what level the regulatory oversight occurs.

I am advised that there have been no prosecutions for breaches of section 18, section 18A and section 13 of the Controlled Substances Act. This is most likely attributable to the fact that there are very good control mechanisms in place, such as the Drugs of Dependence Unit, repercussions from registration authorities and strong education and support from professional bodies and peers. Many of these mechanisms are outside the scope of this legislation. Breaches by health practitioners are investigated by the Drugs of Dependence Unit at DASSA.

Under section 57 of the Controlled Substances Act the minister is able to issue an order to prohibit people from prescribing, administering or supplying drugs. Successful prosecution does not stop the medical practitioner prescribing drugs, whereas a section 57 order does.

If there is evidence of a breach of a provision under the Controlled Substances legislation, the Minister for Mental Health and Substance Abuse may issue a section 57 order prohibiting the health practitioner prescribing, supplying, administering or possessing any substance specified in the order. These orders serve to protect public health and safety. I am advised that 42 section 57 orders are in place, and details can be found on the DASSA website.

The relevant National Health Practitioner Regulation Board is notified when a section 57 order is gazetted. The National Health Practitioner Regulation Board may take additional action, and there may be an additional penalty under the Health Practitioners Regulation National Law if the breach of the Controlled Substances legislation constitutes unprofessional conduct.

The regulatory oversight by the Drugs of Dependence Unit includes the monitoring of all prescriptions for Schedule 8 drugs, prescriptions and records of supply of both Schedule 3 and 4 pseudoephedrine-containing products and orders for the supply of Schedule 8 drugs by pharmacists.

New clause 26A.

The Hon. G.E. GAGO: I move:

Page 17, after line 9—After clause 26 insert:

26A—Amendment of section 55—Licences, authorities and permits

(1) Section 55—After subsection (2a) insert:

(2b) The Minister may fix fees payable in respect of a licence, authority or permit (including application fees, fees for grant and renewal and periodic fees) and may waive or reduce a fee payable if the Minister considers it appropriate to do so.

(2) Section 55(3)—Delete 'prescribed' and substitute:

appropriate

This amendment provides the power for the minister to fix fees for licences and permits issued under the act. The regulations specify fees for licences issued under the act. It is proposed that the minister should have the power to fix fees for licences, authorities and permits issued under the act.

This is on the basis that the act provides that the minister has absolute discretion to grant or refuse a licence, permit or authority for the purposes of the act. This specification of fees for licences in the regulations fetters the minister's absolute discretion. This amendment will give the minister the power to fix fees for licences, authorities and permits issued under the act. This would provide flexibility and enable variation of fees if appropriate.

New clause inserted.

Remaining clauses (27 to 31), schedule and title passed.

Bill reported with amendment.

Bill recommitted.

Clause 6.

The Hon. S.G. WADE: I move:

Page 5, lines 12 and 13 [clause 6, inserted section 11A(4)]—Delete subsection (4)

The committee has indicated in relation to a number of bills that it wants to be cautious in relation to national law, and the opposition and, I suspect, other members have been briefed that this bill would allow the South Australian parliament to retain its capacity to legislate for South Australia's particular circumstances, because of course at any time the parliament can come back and amend the act.

We were certainly briefed in those terms before the committee stage of the bill but, during the committee stage of the bill, particularly through the excellent questioning of the Hon. Robert Brokenshire, concerns were raised about the capacity for state-specific modifications to, if you like, resist the application of being overridden by commonwealth law by virtue of proposed section 11A(4)—what is effectively an inconsistency clause that is analogous to section 109 of the federal constitution which provides that a commonwealth act can override a state act.

The point is that, under 11A(1), the national law applies as the law of South Australia, and we discussed the merits of that in earlier stages. Under proposed 11A(3), in consort with 11A(1), modifications made under 11A(3) would be protected, if you like, from being overridden by commonwealth legislation. There is less clarity if that modification is made elsewhere in the act, in other words, from 11B following.

In that context, the opposition is concerned about 11A(4) and submits to the committee that it better preserves the sovereignty of the South Australian Parliament to be silent on the issue of inconsistency and allow the normal rules of statutory interpretation to be applied by the courts in the consideration of how an inconsistency between the state act and the national law be accommodated.

I think that parliamentary counsel—and I am certainly cautious not to misrepresent its position—believes that modifications would be preserved in spite of the preservation of this clause but, as I understand it, accepts that an alternative would be to allow the normal rules of statutory interpretation to apply. We are certainly not trying to undermine in any way the operation of national law but to ensure that, if this parliament does move to amend this act, that it is not made null and void by the operation of this clause.

The Hon. G.E. GAGO: The government supports this amendment. The commonwealth therapeutic goods laws and controlled substances act have been working together for a long time, since the commonwealth law applies to all corporations. The commonwealth therapeutic goods laws are essentially about registration of medicines and medical devices and the licensing of manufacturers of these therapeutic goods, while the controlled substances act regulates the manufacture, production, sale and supply, possession, handling or use of controlled substances. There is some potential there for overlap.

This clause was included in the bill to make it clear that there would be the same approach to the application of the commonwealth therapeutic goods laws to natural persons, that the same laws apply to natural persons as to corporations; that is, to the extent that in any inconsistency between the controlled substances act and the commonwealth therapeutic goods laws the commonwealth law would prevail. The inclusion of this clause clearly appears to have caused more confusion than clarity and, as a result, the government supports its removal.

As per the Commonwealth Constitution, to the extent of any inconsistency between commonwealth and state law, the commonwealth law prevails. That is enshrined in the Commonwealth Constitution, and we believe it is well preserved within legislation, so we do not believe there is any loss of integrity to the bill by accepting the Hon. Stephen Wade's amendment. However, I have been advised that parliamentary counsel did prefer that the clause stay in; however, they are not opposed to its being removed but would prefer that the clause stay in.

The Hon. D.G.E. HOOD: I would like to acknowledge, which is perhaps the best word, what I think is an elegantly simple solution proposed by the Hon. Mr Wade in presenting this amendment. We also had difficulties with this particular issue and shared the concerns that he and others have expressed about the possibility of deferring to the federal arena too often—and, certainly, inappropriately in this case, as we see it. Family First supports the amendment and is pleased that the government is also doing so.

The Hon. S.G. WADE: Just to clarify the record, and make sure that I do not take more praise than I deserve from the Hon. Mr Hood, I acknowledge the work that the Hon. Ann Bressington and the Hon. Robert Brokenshire did in what was a collegiate approach to improve the bill before this committee.

Amendment carried; clause as amended passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises) (15:45): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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