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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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HEALTH PRACTITIONER REGULATION NATIONAL LAW (SOUTH AUSTRALIA) (RESTRICTED BIRTHING PRACTICES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 17 October 2013.)

The Hon. R.I. LUCAS (16:35): I rise to speak to the second reading of the Health Practitioner Regulation National Law (South Australia) (Restricted Birthing Practices) Amendment Bill, and in doing so indicate Liberal Party support for the second reading of the legislation.

As the government outlined, the bill seeks to increase protection for mothers and babies by restricting the provision of birthing practices to registered midwives and medical practitioners only. The government argued that the bill was drafted in response to recommendations by the Deputy Coroner after the high profile deaths of three babies at separate homebirths between 2007 and 2011. The Deputy Coroner found that all three babies would have survived if they had been born in a hospital by caesarean section.

In our consultation there has been broad acceptance that persons involved in the provision of birthing practices should have appropriate training and qualifications to provide the services. The government advises that a consultation paper on this proposal was sent to peak professional bodies, and of the 32 submissions, 25 were supportive and another three agreed the public should be protected from unregistered practitioners, but suggested alternative measures.

One of the issues that was raised in relation to our consultation was the concern from a number of people as to the conflicting position of the South Australian government in some of these areas; that is, in a number of areas the government argues that we must move consistent with national reform and there needs to be national legislation and national regulation. We have seen so many arguments along those lines.

In this case, the government says that that is still the case, but because there cannot be national agreement at this stage, they have decided to proceed anyway with their own regulation in this particular area. As I said, it is a quixotic position the government has. They seem to pick and choose as to when they decide they want to rely on the argument of national uniformity, and as a matter of convenience they will pick that particular argument when it suits their purpose. Then, on other occasions, when the same argument can be mounted by stakeholders and is, they decide not to proceed with using that particular argument and they say that they need to proceed in South Australia before there has been national agreement.

Under the bill, unregistered midwives and other health practitioners will face fines of up to $30,000 or up to 12 months imprisonment for attending births. There are some exceptions which are outlined in the legislation. Those exceptions seem reasonable to most people that we have consulted with and we accept that those exceptions should be included in the legislation, for example, when assistance is provided in the case of an emergency by someone who is not a registered midwife or a health practitioner. The obvious common examples cited are taxidrivers or partners. Clearly provision needs to be made for those sorts of exceptions in those circumstances.

What I was most intrigued about in terms of our consultation was that one of the key stakeholder groups, the Australian College of Midwives, has expressed considerable concern and reservation about the government's legislation. As I entered the discussion on this, I just assumed that key stakeholder groups, such as the Australian College of Midwives, would be onside, would have been consulted all along the way and would have been supportive of the government's proposal.

I met with the Australian College of Midwives again this morning. They indicated that they have been trying in vain for some time to meet with the Minister for Health. It seems to be, sadly, that when you get to the end of 12 years of government you lose touch with the niceties of life. We saw in question time today the Minister for Sustainability revealed as having refused to meet with key stakeholders in relation to a decision that he took.

According to the Australian College of Midwives, they had been trying for some time to meet with the Minister for Health to discuss the issue, but they continually get fobbed off to a public servant within the SA Department for Health in relation to the issue. I think they indicated their last meeting with the SA Health public servant was five or six months ago and they have another meeting coming up in a couple of weeks.

I said, 'Well, I think it might be a bit late because the government has already jammed the bill through the House of Assembly and it is intending to jam it through the Legislative Council this week.' It has been listed as one of the government's top two or three priorities for today's debate. The representative of the Australian College of Midwives today indicated to me that they would not support the legislation being passed in its current form today.

As I said, I was surprised at the position the minister and the government seem to have adopted in relation to their general unwillingness to consult with key stakeholder groups. I am concerned also that the Minister for Health would refuse, as a minister, to meet with a body such as the Australian College of Midwives on an important issue like this. Mr Acting President, I guess that it is for you and your colleagues to discuss, in your councils and fora that are available to you, the creeping arrogance of ministers in the government in refusing to meet key stakeholders groups to defend their position.

I think, as minister Hunter indicated earlier, 'We have our view and we weren't going to change our view, so I wasn't going to talk to the small business operators who were going to be put out of business by the decision I was taking.' It is very disappointing when ministers such as minister Hunter make those sorts of cracks at small business operators who are struggling, and it is disappointing also to see the same sort of creeping arrogance from minister Snelling in relation to this particular legislation as well. The only message I can give to minister Snelling and minister Hunter is that the people will decide in March next year—

The Hon. I.K. Hunter interjecting:

The Hon. R.I. LUCAS: —on the creeping arrogance of people such as minister Hunter and minister Snelling, and all the squealing like stuck pigs we get from the minister on the front bench here at the moment will count for nothing. The people will decide on these issues, and it does not matter how much the minister squeals on the front bench in relation to the facts being revealed and placed on the record. Let the people decide about these particular issues.

In relation to the Australian College of Midwives, one of its many arguments or concerns about the legislation is that, in its view, the legislation covers only the three stages of labour: the onset of contractions, the birth and the delivery of the placenta. The college agrees, in principle, with the regulation of midwifery practice but believes that the bill should also include pregnancy or antenatal and postnatal care for up to six weeks. The Australian College of Midwives advises that litigation in pregnancy cases often looks at the antenatal treatment aspect of the pregnancy.

The minister in charge of the bill will put the government's response on the basis of the advice he receives but, as I understand it, the government's response to this is that, although antenatal and postnatal care are traditionally part of midwifery practice, the consultation process supposedly informed SA Health that there were a number of health practitioners other than a midwife or medical practitioner who were also involved in the care of women during this time.

The government says that it does not want to restrict access of these antenatal and postnatal services to women, so the decision was made to restrict that area where there was the greatest risk to the public if a person was not clinically trained and operating within acceptable standards, that is, the birthing process itself. My question to the minister is to confirm whether or not that is indeed the government's response to the Australian College of Midwives and its particular concerns.

I note that the Australian Nursing and Midwifery Federation (South Australia Branch) has indicated to my office that it is broadly supportive of the legislation but also believes that it would be improved if the period covered included before and immediately afterwards. They support the position of the Australian College of Midwives. The ANMF and the ACM would also both like to see the international definition of midwifery for the scope of practice used. This is where the government says it is hopeful that this issue can be resolved at the national level. My questions to the minister are: what is the government's response to that particular issue about the international definition of midwifery for the scope of practice being used; and why did the government choose not to proceed with that international definition, given that the College of Midwives and the Australian Nursing and Midwifery Federation have both argued that is what they should do?

On balance, the ACM accepted that the proposed penalties were probably reasonable, and the ANMF also agreed. The ACM believed (and this was their phrase) that the government's bill was a kneejerk reaction to the Deputy Coroner's findings and wanted the scope of the response widened to include issues such as the need for increased midwifery continuity of care services, the need for increased access for eligible midwives to collaborate with healthcare facilities and the need for specific midwifery representation at the departmental level.

With the greatest respect to the ACM, I think the last issue is probably not best covered by legislation. It is ultimately a decision for governments (ministers and departments), I guess, as to whether you have someone responsible for both nursing and midwifery as a senior officer within the department or whether you have two officers with delineated responsibilities, which is the preferred position of the ACM, as I understand it. Nevertheless, I think that is an issue best resolved by ministers, departments and governments and not by legislation.

With that, I indicate the Liberal Party's preparedness to support the second reading of the bill. We are interested in the minister's response to the specific concerns from the ACM in particular, but also the ANMF, and we look forward to hearing those responses at the conclusion of the second reading or in the committee stage of the debate.

The Hon. J.A. DARLEY (16:47): I rise very briefly to indicate my support for the Health Practitioner Regulation National Law (South Australia) (Restricted Birthing Practices) Amendment Bill. The bill is in response to the Deputy State Coroner's recommendation following his 2012 inquest into the very tragic death of three babies. In short, the Deputy Coroner recommended that the Minister for Health and Ageing introduce legislation that would render it an offence for a person to engage in the practice of midwifery, including its practice in respect of the management of the three stages of labour, without being a midwife or a medical practitioner registered pursuant to the national law.

It is extremely important to put this debate into context. This bill is not about denying mothers their choice: it is about ensuring that their safety and their child's safety are treated as paramount. It is about safeguarding mothers and their babies as far as possible from possible risks and it is about recognising that the practice of midwifery is a specialist field that requires a high degree of ongoing training and expertise. There is absolutely no doubt in my mind that, if it were my daughter or granddaughter having a child, I would want them and their baby to be in the safest hands possible. That is not to say that I would not want a midwife looking after them but, rather, ensuring that the midwife is appropriately qualified and registered.

There is no question, also, that parents place an extraordinary amount of faith in whoever is delivering their child. I am sure there are well-meaning individuals out there who think childbirth is relatively straightforward and, in the majority of cases, it probably is. Those same individuals also need to recognise and appreciate the associated risks that can arise, sometimes unexpectedly, at any stage of labour or following a birth.

There will inevitably always be some parents who choose to proceed with homebirths, even after being informed of the risks. At the very least this bill should act as a warning to those individuals who choose to ignore the legislation and pass themselves off as midwives, despite not having the appropriate qualifications.

To reiterate, this legislation is based on the recommendations of the coronial inquest into the deaths of three babies. We often criticise the government for its lack of action in response to such recommendations, but in this instance it has listened and responded accordingly. We should be doing the same to avoid, as far as possible, a similar situation arising again. With that, I support the second reading of the bill.

The Hon. K.L. VINCENT (16:50): On behalf of Dignity for Disability I will speak very briefly in opposition to the second reading of this bill. I have met and consulted with the South Australian Chapter of the Australian College of Midwives, who expressed grave concern about this bill on several fronts. As it currently stands, it is my understanding from that consultation that this bill is not comprehensive, is robust and is dangerous.

As this bill effectively is responding to one particular midwife and the resulting Coroner's recommendation, I have real fear about what this bill could do for other women and other midwives. I fear it could drive homebirthing further underground, and could result in free birthing—a practice that must be monitored very carefully. This bill could have been a great opportunity to recognise and define the role of midwives better, and give them the respect that their profession deserves. However, this bill does not do that. For those reasons, I oppose this bill in its current form, but I look forward to continuing my association with the College of Midwives and working towards legislation that does properly protect, recognise and respect their role.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (16:52): I thank honourable members for their contributions on this bill, even though one of them, the one from the Hon. Mr Lucas, showed an express fondness for lamentable terminological inexactitude, but verballing people is his form—we know that. It is a contribution that is on par with his past contributions, and we will discount it in the way it should be discounted.

I should just say that I do not intend to revisit the tragic circumstances that led to the introduction of this bill—that should be unnecessary. I am pleased that the parliament now has the opportunity to protect the public of South Australia by closing the loophole in the Health Practitioner Regulation National Law that allows any person to perform the clinical duties of a midwife under a different job title. I understand that some industry groups have indicated that this legislation is too limited or too localised, and the minister in the other place has responded to those concerns in detail.

Indeed, there has been a detailed consultation process and feedback: 32 submissions were received in relation to a consultation—25 submissions supported the proposal and four submissions did not. Three submissions agreed that the public should be protected from unregistered practitioners and, while the majority or submissions supported practice protection, a number of issues needed to be considered. Those issues were taken into consideration, I am advised.

The midwifery groups that have been mentioned have expressed some opposition to references in the bill to the nursing and midwifery profession. This objection is based on two issues, I am advised: first, the contemporary practice is now for midwifery to be regulated as a separate profession; and, secondly, that midwifery practice is outside of the scope of practice of a nurse. I do not disagree, but the reference to nursing and midwifery profession reflects the name of the 14 health professions defined under the Health Practitioner Regulation National Law.

The Nursing and Midwifery Board of Australia has been established to regulate the nursing and midwifery health profession. The board does this by maintaining a register that includes two separate divisions—one for nurses and one for midwives—and issuing a series of registration standards, codes and guidelines that nurses and midwives must follow. I understand the arguments put forward by the midwifery groups as to why the midwifery profession should be recognised separately to the nursing profession. However, the reference in the bill to the nursing and midwifery profession reflects the terminology of the national law.

For this bill to recognise midwifery as a separate profession to nursing would require significant change to the governance arrangements established at the national level, and this would require unanimous agreement by the Standing Council on Health. The intergovernmental agreement that established the national registration and accreditation scheme requires a review of the operation of the scheme after three years, and this review will commence in the first quarter of 2014, I am advised. I do not think I need to say any more about that.

In terms of seeking national agreement—and the Hon. Mr Lucas, in his usual sleazy way tries to drive a wedge into this debate about uniformity and national uniformity and the government picking and choosing—I put to the chamber that we really have a choice. We have a choice to wait for national agreement—and national agreement has been delayed for some very clear reasons that have been explained elsewhere—or, if there is a danger to public health and public safety, we can act. This government has chosen to act and we are acting for the very best reason, and that is that it is in the public interest for us to act in this state right now, and that is an intention that I hope this chamber will support. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I put some questions to the minister in the second reading but now that he has his advisers next to him I will repeat them. The Australian College of Midwives put the position to the Liberal Party, and I guess to other members as well, that whilst they agree in principle with the regulation of midwifery practice, they believe the bill should also include the antenatal and postnatal care periods for up to six weeks. They indicate that litigation in pregnancy cases often looks at the antenatal period of the process as well. Can the minister indicate, based on his advice, the reason the government has rejected that particular position from the Australian College of Midwives? Can I add that the Australian Nursing and Midwifery Federation also supported that position.

The Hon. I.K. HUNTER: I have a long answer but I might go for the short answer and see whether that satisfies people. Essentially it is this: when you protect a practice you reduce the number of people who can access those people to provide a service. I am told that in postnatal and antenatal care—in that period—there are a number of other providers who provide services to women. If we were to restrict the practice in the way that has been suggested, we would have to be very careful about how we were to do that without reducing further access to services for pregnant women and postpartum. Essentially that is the answer but I can give a much longer answer if it is required.

The Hon. R.I. LUCAS: On behalf of the Australian College of Midwives and the Australian Nursing and Midwifery Federation, whose views I present to this chamber this afternoon, I do seek more detail from the minister and his advisers in relation to the government's reasons. Can the minister indicate the types of other service providers he is referring to and who the government's advisers believe would be caught up in the legislation, and perhaps give an example or two in relation to some specifics of the concerns the government has?

The Hon. I.K. HUNTER: I am happy to give more detail. I am aware that the Australian College of Midwives has written to members stating that the bill before the house does not fulfil the Deputy State Coroner's recommendation to protect the practice of midwifery. As part of his recommendations, the Deputy State Coroner called for legislation that would render it an offence for a person to engage in the practice of midwifery, including its practice in respect of the management of the three stages of labour, without being a midwife or medical practitioner registered pursuant to national law.

While SA Health supported this recommendation in principle, in the following consultation process it was highlighted that to restrict midwifery, commonly defined as the continuum of care across antenatal, intrapartum and postnatal periods, could have implications for other service providers in the antenatal and postnatal periods. One of the consequences of practice protection is to restrict services to a defined group of health practitioners. While this protects the public from the risk of harm that may arise if these services were performed by unqualified or an unregistered practitioner, it does cause a reduction in the number of providers that the public may access.

There are other health practitioners, some registered and some not, who may provide services to women during the antenatal and postnatal period. Some of these services may be directly related to the pregnancy and some may not. I have been told that some women seek services such as physiotherapists and chiropractors for back pain and psychologists for their emotional wellbeing during their pregnancy. There is also a range of other health providers that may provide emotional and social support to women throughout their pregnancy, such as doulas or culturally appropriate care such as Aboriginal maternal and infant care workers. To exclude these providers from the antenatal and postnatal periods could potentially restrict the range of services available to women, particularly those in rural areas.

This does not detract from the importance of antenatal and postnatal care as part of the woman's pregnancy. The decision to exclude reference to the antenatal and postnatal period of a woman's pregnancy has not been taken lightly. It is important that women receive information during the antenatal period that is based on well-founded evidence and practice to enable her to make an informed choice about her impending birth. In conjunction with this legislation, SA Health will also be providing information to the public on safe birthing choices and will encourage women to also access registered health practitioners for their antenatal and postnatal care.

The Deputy State Coroner made reference in his recommendations to the management of these three stages of labour, and it is this that the legislation before the house addresses. It is perceived that it is in this part of a woman's pregnancy where the greatest risk to the mother and baby could occur for a person that did not hold the appropriate clinical training. The Chief Executive of SA Health wrote to the Deputy State Coroner in July 2012, advising that the legislation to be introduced will focus only on the three stages of labour. To date, no response has been received from the Deputy State Coroner, I am advised.

The decision of the South Australian government to restrict birthing practice in this legislation recognises the commencement of work at the national level for the regulation of midwifery and maternity services. The passage of this legislation will not introduce a regulatory process that will be inconsistent with the call for greater regulation of midwifery and maternity services at the national level. It will address the immediate risk to public safety of unregistered health practitioners providing birthing services in South Australia while work at the national level considers options for the regulation of midwifery and maternity services.

The Hon. R.I. LUCAS: On behalf of the Australian College of Midwives and the Australian Nursing and Midwifery Federation, I thank the minister for the fuller explanation he has now put on the record. The other key issue that was raised by both of those organisations with me relate to their concerns that the government decided not to use, as they would argue, the international definition of midwifery for the scope of practice in the legislation. Can the minister indicate on the basis of the advice provided to him why the government believed that they could not agree with the Australian College of Midwives and the Australian Nursing and Midwifery Federation on this issue?

The Hon. I.K. HUNTER: My advice is that the international definition is a circular argument and that the definition basically says a midwife is a person or someone who undertakes midwifery services without defining what those services are. Midwifery is generally seen as covering those three stages, as I mentioned in my previous explanation, and for the reasons that I outlined, we did not want to cover antenatal and postpartum services, as well.

The Hon. T.A. FRANKS: Could the minister address some concerns that were raised with regard to what impact this legislation might have on doulas specifically?

The Hon. I.K. HUNTER: My advice is this legislation will not have any impact on doulas who currently carry out their activities. Midwives will be able to delegate to doulas as they do currently. The legislation will only impact such people were they to be designated as a primary birth carer which this legislation clearly will not allow.

The Hon. T.A. FRANKS: Also, in the government response to questions that I raised with them in the briefing on this bill I note that it was indicated that work was being commenced by SA Health for the credentialling of nurses and midwives that will allow privately practising midwives better access to public hospitals. Is there any update on that work?

The Hon. I.K. HUNTER: My advice is that change is imminent. It is currently sitting with the Crown Solicitor for advice.

The Hon. T.A. FRANKS: Finally, I know that professional indemnity insurance has been a longstanding issue with regard to midwifery. Are there any developments there? Does this bill have any impact on those particular issues?

The Hon. I.K. HUNTER: My advice is this bill will have no impact on the situation. Professionals would have to have indemnity if they practise under registered health practitioners licensing. Further to that, I am advised that work is happening at a national level and there is some determination to have a response by 2015.

Clause passed.

Remaining clauses (2 to 4), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (17:08): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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