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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-07-17 Daily Xml
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HEALTH PRACTITIONER REGULATION NATIONAL LAW (SOUTH AUSTRALIA) (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (15:28): I move:

That this bill be now read a second time.

I seek leave to have the detailed explanation of the bill and clauses incorporated in Hansard without my reading it.

Leave granted.

On 1 July 2010 the Health Practitioner Regulation National Law (South Australia) Act 2010 came into effect. The Act sets out the legislative provisions for the operation of the National Registration and Accreditation Scheme, whereby practitioners in ten health professions across Australia are registered under a profession-specific national board and subject to nationally consistent registration standards and codes for their profession. The Act established the South Australian Health Practitioners Tribunal to hear disciplinary matters against health practitioners and appeals against decisions of the national boards.

The Act also covers the regulation of related matters in South Australia that are not part of the National Scheme. These matters include the registration of pharmacy premises and pharmacy depots.

The Amendment Bill before the House today makes changes to the legislation to give effect to:

a standardised timeframe within which appeals against decisions of a national board may be made to a tribunal;

revising the legislative provisions that relate to the ownership of pharmacy premises and pharmacy depots in South Australia; and

provisions relating to the transition of the occupational therapy profession into the National Registration and Accreditation Scheme.

I will now outline these changes in detail for the benefit of Members.

Timeframe for the lodging of appeals against decisions of a national board

Under the National Registration and Accreditation Scheme practitioners and other persons may appeal a decision made by a national board. This appeal is made to a tribunal, which in the case of South Australia is the South Australian Health Practitioners Tribunal. Section 199 of the National Law outlines those decisions of a national board that are appellable and include decisions by the national board to:

refuse to register a person;

refuse to endorse or renew a person's registration;

impose a condition on a person's registration;

refuse to change or remove a condition or undertaking on a person's registration;

reprimand or suspend a person's registration.

These actions may be undertaken by a national board to protect the health and safety of the public by ensuring that only those persons that are appropriately qualified can practise within the profession, and that these persons maintain high standards of competence and conduct when practising.

When the National Law was introduced in July 2010 there was no timeframe outlined within which a person must lodge an appeal against a decision made by a national board. It is important that any timeframe established is consistent across all jurisdictions to maintain the integrity of the National Scheme. Many jurisdictions have already set a timeframe of 28 days for appeals against a decision made by a national board. I have been advised that legislation is currently before the Northern Territory Parliament to introduce a similar timeframe, and the intent of the clause before the House will ensure that the National Law as it applies in South Australia is brought in line with all other jurisdictions.

The clause requires a person to appeal a decision of a national board within 28 days after which the decision of the board is made, or reasons for the decision by the board are given to the person, whichever is the later. The tribunal may consider an appeal outside of this timeframe if it is of the view that there are extenuating circumstances for why the person was unable to appeal within the 28 days. These circumstances will be provided for within the rules determined by the South Australian Health Practitioners Tribunal.

Ownership of pharmacy premises and pharmacy depots in South Australia

The Health Practitioner Regulation National Law (South Australia) Act 2010 provides for the regulation of pharmacy premises and pharmacy depots in South Australia. These provisions are the same as those that previously existed in the now repealed Pharmacy Practice Act 2007, with the exception that the current provisions introduced a new category of pharmacy ownership, trustee pharmacy services providers. The identification of trusts as a means of pharmacy ownership was at the request of the former Pharmacy Board of South Australia which became aware that some pharmacists were using trusts to increase the number of pharmacies that they may own. I understand that the use of trusts as a form of pharmacy ownership has grown markedly in recent years to the extent that it is now more common than the use of companies (or corporate pharmacy services providers).

Until 1 July 2010 these trusts did not have to be registered with a regulatory body, and so no details were recorded about them. From 1 July 2010, these trusts have been required to be registered with the regulatory body to ensure that they are subject to the same requirements as other pharmacy services providers under the Act. This was considered to be important to ensure that the persons providing pharmacy services in South Australia are 'fit and proper' and that these providers can be subject to disciplinary proceedings for improper or unethical conduct or negligence.

Pharmacy stakeholders were consulted on the provisions relating to trusts, or trustee pharmacy services providers as they are referred to in the Act, when an exposure draft of the legislation was released. No objections were raised to the identification and regulation of this group. However, during the first year of operation of the legislation, the South Australian Branch of The Pharmacy Guild of Australia brought to the attention of the Government that the definition of a trustee pharmacy services provider in the Act was having an unforeseen impact on the ability of trustee pharmacy services providers to conform to the legislative requirements by only allowing trusts to distribute income to individuals and not to companies or other trusts.

The Guild advised that the exclusion of companies and trusts from the legislation would have a significant negative financial impact as institutions made loans to pharmacy businesses on the basis that tax rates would be set at corporate rates, and without this being the case, pharmacists would be at risk of breaching their loan governance arrangements. The Guild also advised that corporate pharmacy services providers (or companies) also distributed income to other companies and trusts, and definitions under the legislation also precluded this.

It was not the Government's intention in regulating pharmacy premises to impede the business practices and models that pharmacists have established. The policy position underpinning the regulation of pharmacy premises is to protect the public by ensuring that:

pharmacy premises and depots are registered and, as a result, are suitable to provide pharmacy services; and

persons who are in 'positions of authority' are held accountable should they not meet their responsibilities under the Act.

It was not the policy intent that the legislation refer to the various pharmacy ownership models and business practices which are of course a matter for pharmacists to determine in conjunction with their financial or legal advisers.

The amendments before the House, which have been developed in conjunction with the Guild and the Pharmacy Regulation Authority SA, the body responsible for the regulation of pharmacy premises in this State, brings the legislation back to the basic policy principle for statutory regulation which is to protect the public.

The Bill also includes amendments to the rules on who may own a pharmacy in South Australia. As background, pharmacy premises may only be owned by a pharmacist (or a prescribed relative of a pharmacist). This restriction is endorsed by the Commonwealth Government and is applied across all jurisdictions on the basis that the public is protected by ensuring that only qualified persons can provide restricted pharmacy services (i.e. dispensing drugs or medicines on prescription).

However, in South Australia the pharmacy ownership requirements were not restricted to practising pharmacists; non-practising pharmacists (for example, retired pharmacists) could own a pharmacy but any restricted pharmacy services were to be provided only by a practising pharmacist. With the commencement of the National Registration and Accreditation Scheme in July 2010 the Pharmacy Board of Australia assumed responsibility for the regulation of pharmacists, but pharmacy premises continued to be regulated by States and Territories.

This split in regulation has caused some policy overlap resulting in confusion for pharmacists. The Pharmacy Board of Australia, whilst recognising that pharmacy ownership is the responsibility of separate legislation in States and Territories, has formed the view that it is in the public interest for proprietor pharmacists to hold general registration. The Board has issued Guidelines on responsibilities of pharmacists when practising as proprietors that include requirements that non-practising pharmacists are unable to comply with, for example, in relation to recency of practice and continuing professional development. The Board expects all registrants to comply with the requirements of the National Law, including all relevant registration standards and guidelines.

The Pharmacy Regulation Authority SA has advised that it now supports the Pharmacy Board of Australia's position that pharmacy service proprietors should hold general registration under the National Law. The Pharmacy Guild of Australia has also supported the national board's position.

The requirement that only practising pharmacists may own a pharmacy will bring South Australia in line with all other jurisdictions except Victoria. However, I am advised that there are a small number of non-practising pharmacists in South Australia that still own pharmacy premises. The legislation includes a transitional provision that will allow these non-practising pharmacists to continue their ownership until these holdings are sold. Should the pharmacist wish to increase their holdings after the commencement of this provision, then they will need to take out general registration with the Pharmacy Board of Australia.

Two other changes have been made to the legislative provisions as they relate to the regulation of pharmacy premises in South Australia. These two changes relate to administrative matters only. The first of these changes concerns the granting of exemptions that will allow an unqualified person to provide restricted pharmacy services. The intent of this clause allows public and private hospitals to operate their own pharmacies and provide services to their patients. Currently only the Little Company of Mary Health Care Limited at the Calvary Hospital has been granted an exemption with the condition that any services must be provided by a pharmacist who holds a current practising certificate. Previously, any exemptions were granted by the Governor by way of proclamation. It is now proposed that any such exemptions are granted by the Minister for Health and published in the Government Gazette.

The second change relates to the setting of fees for the registration of pharmacy premises and depots and other related matters such as register extracts and issuing of duplicate registration certificates. The fees are set at a level to ensure that the activities of the Pharmacy Regulation Authority SA are fully-funded. The legislation currently requires the Minister for Health to fix these fees, but the amendment transfers this power to the Pharmacy Regulation Authority SA. This follows a similar process to that which State health registration boards previously operated under.

Transition of the occupational therapy profession into the National Registration and Accreditation Scheme

On 1 July 2012 four additional health professions were incorporated into the National Registration and Accreditation Scheme being:

Aboriginal and Torres Strait Islander health practice;

Chinese medicine;

medical radiation practice; and

occupational therapy.

National boards were appointed for each of these professions in June 2011, and over the last ten months, these boards have developed registration standards, codes and guidelines that will apply to their profession. Of these four professions, only occupational therapy was regulated in South Australia. Occupational therapists that were registered with the Occupational Therapy Board of South Australia transitioned into the National Scheme and were deemed to be registered with the Occupational Therapy Board of Australia on 1 July 2012. South Australian practitioners in the other three professions applied for registration with the relevant profession regulatory board in order to meet the practice requirements from 1 July 2012.

Whilst the National Law provides for the inclusion of the occupational therapy profession in the National Scheme from 1 July 2012, saving and transitional provisions need to be established to repeal the current Occupational Therapy Practice Act 2005 and dissolve the Occupational Therapy Board of South Australia. The transitional provisions that will apply are the same that pertained to the nine South Australian registration boards for those health professions that were included in the National Registration and Accreditation Scheme on 1 July 2010.

Assets and liabilities from the Occupational Therapy Board of South Australia will transfer to the Australian Health Practitioner Regulation Agency for distribution to the Occupational Therapy Board of Australia. The amount to transfer into the National Scheme has been determined by an agreed formula covering the operating costs, liabilities and revenue derived from registration fees. Any balance of funds after the transfer to the National Scheme will be distributed to the Minister for Health for distribution to external agencies to administer for purposes agreed between the Minister and the State board (for example: research or scholarships). No funds from the State board will be used by the Government for other purposes; this is money derived from registrants and it will be used for the development of the occupational therapy profession in this State.

I would like to take this opportunity to thank those staff and members, both past and present, of the Occupational Therapy Board of South Australia for the service that they have provided in ensuring the regulation of the occupational therapy profession in this State since 1974. It has been a difficult time for the Board over the last two years knowing that the health profession was to be included in the National Scheme from 1 July 2012. But the Board has continued under the leadership of Dr Mary Russell to ensure that it meets its statutory responsibilities and continues to support the occupational therapy profession in this State. I am pleased to advise the House that Dr Russell was appointed the inaugural Chair of the Occupational Therapy Board of Australia in June 2011 and has ably led the Board in the enormous challenge to prepare the profession for national registration. Members will appreciate the amount of lead-in work that has been involved and the challenges that the national board has faced when I advise that an estimated 5,800 occupational therapists across Victoria, New South Wales, Tasmania and the Australian Capital Territory have not previously been subjected to statutory registration.

The incorporation of the occupational therapy profession into the National Scheme will result in the closure of the last health registration board in this State as regulation transfers to the National Scheme. This does not imply that regulation of health practitioners in this State has failed. In fact, unlike other jurisdictions, South Australia has been fortunate not to have cases of practitioners who have been found not to be fit and proper persons to practise, or to have engaged in unprofessional conduct. However, the move to national registration means that all practitioners in those health professions that are part of the scheme are subject to nationally consistent registration standards and codes and are able to work across jurisdictions. Additional health professions will be incorporated into the National Scheme where it is demonstrated that there is a need for regulation to ensure the health and safety of the public.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will be brought into operation by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Health Practitioner Regulation National Law (South Australia) Act 2010

4—Insertion of section 6A

It is intended to specify that an appeal to the Tribunal for the purposes of the National Law must be instituted within 28 days after the person making the appeal was given notice of the relevant decision or was given reasons for the relevant decision, whichever is the later. The Tribunal will also be given a discretion to extend the time for instituting an appeal.

5—Amendment of section 26—Interpretation

It is intended to revise some of the provisions and definitions associated with the persons or bodies that are entitled to be involved in a pharmacy business.

6—Amendment of section 34—Functions of Authority

These are consequential amendments.

7—Amendment of section 41—Registration of premises as pharmacy

This amendment will require that a person does not own, or hold a proprietary interest, in a pharmacy business unless the business is carried on at premises registered as a pharmacy under the Act.

8—Amendment of section 43—Supervision of pharmacies by pharmacists

It is proposed that the pharmacist who must be in attendance at a pharmacy must be a person who holds a general registration under the National Law to practise in the pharmacy profession.

9—Amendment of section 49—Registers

These are consequential amendments.

10—Amendment of section 50—Registration of pharmacy services providers

This is a consequential amendment.

11—Amendment of section 51—Restrictions relating to provision of pharmacy services

It is intended to provide that a person must not own, or hold a proprietary interest, in a pharmacy business unless the person satisfies a requirement as to being a pharmacist, a prescribed relative of a pharmacist, or a specified entity. Another set of amendments will provide that exemptions under the section will be conferred by the Minister by notice in the Gazette rather than by proclamation.

12—Amendment of section 53—Cause for disciplinary action

13—Amendment of section 54—Inquiries as to matters constituting grounds for disciplinary action

14—Amendment of section 55—Contravention of prohibition order

15—Amendment of section 68—Providers of pharmacy services to be indemnified against loss

16—Amendment of section 69—Information relating to claims

17—Amendment of section 71—Evidentiary provision

These are consequential amendments.

18—Amendment of section 82—Regulations

It is proposed to allow (by regulation) Pharmacy Regulation Authority SA to fix fees or charges in relation to Part 4 of the Act.

19—Amendment of Schedule 1—Repeals and transitional provisions

These amendments provide for the repeal of the Occupational Therapy Practice Act 2005 and the winding up of the activities of the Occupational Therapy Board of South Australia.

Schedule 1—Transitional provision

The amendments effected to Part 4 of the Act will not affect an existing interest while the interest continues to be held by the same person.

Debate adjourned on motion of Hon. J.M.A. Lensink.

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