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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-02-22 Daily Xml
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HEALTH AND COMMUNITY SERVICES COMPLAINTS (MISCELLANEOUS) AMENDMENT BILL

Second 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) (16:41): I move:

That this bill be now read a second time.

This bill seeks to amend the Health and Community Services Complaints Act 2004. Some of the amendments arise from the review of the act, which was conducted in line with the requirements of section 88 of the act. Others arise from the Social Development Committee's Inquiry into Bogus, Unregistered and Deregistered Health Practitioners.

In late 2008, I appointed Ms Uschi Schreiber, Lead Partner and Chair, Oceania Health and Human Services Practice from Ernst and Young (New South Wales) to independently review the act. Her report was subsequently tabled in parliament on 3 March 2009. Ms Schreiber stated that the act has substantively achieved its intended purpose and that no significant legislative changes are required. However, some finetuning was recommended. This bill will finetune the act as recommended by the review.

Section 22 has been amended to include an additional principle, which must be included in the Charter of Health and Community Services Rights. This additional principle states that a person should be entitled to be assisted by a person of his or her choice when making a complaint about the provision of health or community services. The need for this amendment has arisen from the increasing number of complaints that are made and resolved on behalf of a service user with the involvement of a person authorised by the service user to act on their behalf.

Section 55 has been amended to enable the Health and Community Services Complaints Commissioner to require a health or community services provider to provide information to the commissioner about what action they have taken, or plan to take, with regard to matters that the commissioner has raised with them. The purpose of this amendment is to foster greater accountability by the providers of health and community services.

The arrangements which exist within the act with regard to the sharing of information between a registration board and the commissioner have been extended to section 29(3). This section has been amended to enable the commissioner to work cooperatively with complaints resolution bodies established under the commonwealth government Aged Care Act 1997.

The grounds on which the identity of a service user or complainant may be protected have been extended by amendment of section 74. The additional grounds are where the complaint raises a significant issue of public safety, public interest or public importance, or where the complaint raises a significant question as to the practice of a health or community service provider, and non-disclosure is in the public interest. The commissioner will have the power to publish returns by prescribed providers and the manner of reporting has been amended to require providers to report complaints relating to rights under the charter established in part 3 of the act.

The amendments expand the membership of the Health and Community Services Advisory Council, with an additional member to represent the interests of carers and another additional member to have knowledge and experience in the quality and safety of health services. The need to regulate unregistered health professionals was highlighted by the Social Development Committee's Inquiry into Bogus, Unregistered and Deregistered Health Practitioners.

Unregistered health practitioners include a range of complementary/alternative practitioners, such as naturopaths and homeopaths, as well as mainstream health practitioners, such as social workers or speech therapists and any other health practitioner who does not need to be statutorily registered in order to practice their occupation.

The vast majority of these practitioners are entirely conscientious in the way they do their jobs. Some, however, and particularly those who come to the attention of the Social Development Committee, have used their positions to exploit people. Some claim to be able to cure cancer while others resort to treatment that is essentially nothing more than sexual voyeurism. Some do not offer receipts and request that all payments be made in cash, and others will not give refunds to families where a course of treatment is paid for but the patient dies part way through the treatment.

In the case of registered health professionals such as medical practitioners, optometrists, dentists, etc., their registration board may impose a variety of sanctions on them as a result of investigating a complaint. Conditions may be imposed and a practitioner can be prohibited from practising for various periods of time, including permanently. The primary task of the registration board is to protect the health and safety of the public.

In contrast, the commissioner may only publish a report following the investigation of a complaint against an unregistered practitioner. If the publication of the report does not result in the practitioner improving their practice in ways requested by the commissioner, no further action can be taken. The commissioner does not have powers to impose sanctions or enforce these sanctions if necessary.

This bill will rectify the situation by giving the commissioner the power to issues orders, including interim orders, to place conditions on an unregistered practitioner's practice or prohibit them from practising for a specified period of time or permanently. A code of practice similar to the one operating in New South Wales will be established in the Health and Community Services Complaints Regulations 2005 under the act. The code will establish some minimum standards with which unregistered health practitioners must comply. Breach of the code will potentially lead to an order being issued by the commissioner. Non-compliance with an order may result in the unregistered health practitioner being fined or even gaoled. A person who is subject to an order is entitled to appeal this decision.

The effect of this bill is to finetune and strengthen the Health and Community Services Complaints Act 2004. It will enable the independent commissioner to be more demanding of the health and community services providers while strengthening the role of the service user within the act. Health practitioners, who seek to exploit people who are often very vulnerable because of terminal illness, can potentially be gaoled. The bill will provide increased protection for South Australians from quacks and bogus health practitioners and I commend it to all members. I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Health and Community Services Complaints Act 2004

4—Amendment of section 4—Interpretation

This clause inserts a new definition of carer being a person who is a carer for the purposes of the Carers Recognition Act 2005.

5—Amendment of section 9—Functions

This clause updates the reference to the Australian Human Rights Commission.

6—Amendment of section 22—Content of Charter

This clause adds an additional principle to which the Commissioner must have regard when developing or reviewing the Charter under section 22 of the Act. That principle is that a person should be entitled to be supported by a person of his or her choice when making a complaint about the provision of health or community services.

7—Amendment of section 29—Assessment

Currently section 29(3) of the Act provides that, if a complaint involves an approved provider under the Aged Care Act 1997 of the Commonwealth, the Commissioner must consult with a relevant complaint resolution body operating under that Act and may also refer the complaint to another authority operating under that Act for resolution. This clause provides for the Commissioner, where a complaint is referred to another authority operating under the Commonwealth Act, to be able to provide information and assistance to that authority.

8—Amendment of section 55—Notice of action to providers

Currently section 55 of the Act provides for the Commissioner to publish a report in relation to a complaint that the Commissioner considers is incapable of resolution. The section provides for a process of notification of recommended action to the relevant service provider and any relevant registration authority who are afforded time in which to make representations to the Commissioner prior to the publishing of any report. This clause proposes to replace the existing subsections (4) and (5) with new provisions that, while allowing for the same period for representations to be made, allow the Commissioner to require a service provider to respond to the notice outlining what action (if any) the service provider has taken, or intends to take, in response to the matters raised in the notice.

9—Insertion of Part 6 Division 5

This clause proposes to insert a new Division in relation to unregistered health practitioners as follows:

Division 5—Action against unregistered health practitioners

56A—Codes of conduct

This proposed section enables the Governor to make a code, or codes, of conduct in relation to the provision of health services that is not otherwise covered by the operation of a registration authority.

56B—Interim action

This proposed section provides for the Commissioner to be able to take interim action preventing or restricting the practice of a health service provider pending an investigation. An interim order may be made where an investigation has been commenced, where the Commissioner has a reasonable belief that the provider has breached a code of conduct or committed a prescribed offence and where the Commissioner is of the opinion that interim action is necessary to protect the health and safety of member of the public. The Commissioner may make orders restricting, placing conditions on, or removing the provider's right to provide health services, for a period of 12 weeks or shorter period as may be specified in the order. A breach of an order under this proposed section carries a maximum penalty of $10,000 or imprisonment for two years or both.

56C—Commissioner may take action

This proposed section provides for the action that the Commissioner may take upon a breach of a code of conduct or upon a provider being found guilty of a prescribed offence if, in the Commissioner's opinion, the relevant health service provider also poses an unacceptable risk to the health or safety of members of the public. The Commissioner may make orders restricting, placing conditions on, or removing the provider's right to provide health services, and may also publish public warnings in relation to the health service provider. A breach of an order under this proposed section carries a maximum penalty of $10,000 or imprisonment for two years or both.

56D—Commissioner to provide details

This proposed section requires the Commissioner, if taking action under proposed section 56B, to provide information in relation to the orders to the health service provider the subject of the orders, the complainant (if any) and to any relevant professional body. The Commissioner may also publish all or part of such information.

56E—Appeal

This proposed section provides for an appeal to the Administrative and Disciplinary Division of the District Court in relation to the making of an order or the publishing of a statement.

56F—Related matters

This proposed section provides that the Governor may, by regulation, exclude a specified person, or persons of a specified class, from the application of this Division.

To avoid doubt, this proposed section also provides that action may not be taken under this proposed Division in relation to conduct that falls within the authority of a registration authority under Part 7 of the Act.

10—Amendment of section 67—Establishment of Council

This amendment adds two members to the Health and Community Services Council. Firstly, one person who, in the opinion of the Minister, is qualified, by reason of his or her experience and expertise, to represent the interests of carers, and secondly, one person who, in the opinion of the Minister, has appropriate experience and expertise in relation to the quality and safety standards of health services.

11—Amendment of section 69—Functions of Council

Currently section 69(1) provides for the functions of the Health and Community Services Council. This clause proposes to delete section 69(1) and replace it with a substantially similar provision. It is proposed that the functions of the Council are to advise both the Minister and the Commissioner in relation to those matters listed in the section. An additional function is proposed to be providing advice on key strategic issues that arise in relation to the resolution of complaints made in relation to the provision of health or community services. It is proposed to delete the current function of the Council to refer to the Commissioner any matter that, in the view of the Council, may properly be dealt with or considered by the Commissioner under this Act.

12—Substitution of section 74

This clause proposes to substitute a new section 74 into the Act. The proposed section adds an additional power of the Commissioner to withhold information that would enable a health or community service user or a complainant to be identified. This would be where, in the Commissioner's opinion, the matter under consideration raises a significant issue of public safety, public interest or public importance, or raises a significant question as to the practice of a health or community service provider, and non-disclosure is in the public interest.

13—Amendment of section 76—Returns by prescribed providers

Currently section 76 of the Act requires a designated health or community service provider to lodge with the Commissioner a return containing information of certain types of complaints received by the health or community service provider and any action taken during the relevant period in response to, or as a result of, those complaints. Currently the section applies only to prescribed classes of complaints relating to matters of public safety, interest or importance. This amendment proposes to expand the types of complaints to which this section applies to include prescribed classes of complaints received that relate to matters arising under the Charter.

14—Insertion of section 86A

This proposed section enables the Commissioner to assist and share information with a person concerned in the administration or enforcement of a law of the State, the Commonwealth, another State or a Territory of the Commonwealth, for purposes related to the administration or operation of that other law.

Debate adjourned on motion of Hon. Mr S.G. Wade.


At 16:49 the council adjourned until Wednesday 23 February 2011 at 14:15.


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