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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2019-10-16 Daily Xml
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Parliamentary Committees

Legislative Review Committee: Health Practitioner Regulation National Law (South Australia) (Remote Area Attendance)

The Hon. T.J. STEPHENS (16:29): I move:

That the Legislative Review Committee inquiry report on the Health Practitioner Regulation National Law (South Australia) (Remote Area Attendance) Variation Regulations 2019 (SA) be noted.

On 19 June this year, the Legislative Review Committee resolved to conduct an inquiry into the variation regulations that have been developed to support the operation of the Health Practitioner Regulation National Law (South Australia) (Remote Area Attendance) Amendment Act 2017, more commonly known as Gayle's Law. Gayle's Law is legislation the parliament passed in late 2017 in response to the tragic death of Gayle Woodford, a dedicated nurse murdered in March 2016 while working on the APY lands.

Having resolved to conduct this inquiry, the Legislative Review Committee invited some 27 individuals and organisations to make a submission on the regulations. In all, the committee received 16 written submissions. Those submissions came from a broad range of interested and affected parties, from the managers of health clinics operating in remote Aboriginal communities, professional and industrial organisations and chief executives of national organisations like the Royal Flying Doctor Service, to name just a few. The committee also received two submissions from members of the Woodford family.

The submissions contained a variety of views on the variation regulations. Each submission deepened the committee's understanding of the complexity of strengthening the safety afforded to the front-line health professionals working in remote and sometimes unpredictable environments. The majority of the submissions the committee received were supportive of the regulations, recognising both the need and the challenge of providing a degree of flexibility in limited circumstances so that health practitioners in remote areas are able to respond to an out of hours or unscheduled call-out without a second responder, but only if it is safe to do so. The ability to attend a call-out without a second responder in limited circumstances to prescribed locations does not undermine the primary intentions of Gayle's Law, which is to minimise risk to health practitioners when answering an unexpected call-out.

Anyone who has lived in or visited towns like Innamincka, William Creek and Marree or communities in the APY and Maralinga lands will be aware of the challenges of seeking and delivering health care in those remote locations. Limited practitioner numbers, patchy telecommunication systems and vast distances are just some of the issues health practitioners must navigate on a daily basis as they work and live among the communities they serve. A blanket rule, where under no circumstances a health practitioner is permitted to attend the care of a patient alone, could be destructive to community health and risk patient lives in rural communities.

As minister Wade has detailed in this council and in correspondence to the Legislative Review Committee, the purpose of the regulations is to ensure every health professional working in remote areas is protected from harm while balancing their interests in being able to carry out their job with practicality, skill and care. Everyone deserves to feel safe in their workplace wherever that workplace may be. The disallowance of the regulations some three months after they came into operation would undermine the safety of the staff and the sustainability of services they were first and foremost designed to protect.

The purpose of the committee's inquiry was to ensure that those stakeholders who had an interest in making public their submissions in relation to this important issue had a vehicle to do so. The South Australian community, rightfully so, is incredibly vocal and passionate about these regulations and how they support the strong desire we all have to keep our front-line health workers safe.

Both in the formulation of the regulations and their examination by the Legislative Review Committee, key organisations like the Aboriginal Health Council of South Australia, Tullawon Health Service, CRANAplus, the AMA and the Australian Nursing and Midwifery Federation were consulted. It was vital for the committee to be informed by the insights, experience and challenges of delivering health services safely in remote areas. However, there will always be risks. Unfortunately, in no situation can a guarantee be made about the absolute safety of every individual. That is simply the reality and nature of the job. I am sure everyone here admires the selflessness and courageous nature of the people who deliver these vital services. The resilience and dedication of these professionals in caring for some of South Australia's most vulnerable individuals is nothing short of inspiring.

When parliament passed Gayle's Law in 2017, it stipulated that a review of the legislation must be undertaken two years after the legislation came into operation, that is, after 1 July 2021. The committee has adopted its final report, with a recommendation that a review be conducted one year after coming into operation instead of two years, consistent with the Minister for Health and Wellbeing's previous public commitment. Gayle's Law has been operating in South Australia for some three months already. In another nine months it will be reviewed thoroughly, I am sure.

I would like to thank the members of the committee, the Hon. Connie Bonaros MLC, Mr Dan Cregan MP, the Hon. Irene Pnevmatikos MLC, Mr Josh Teague MP and Mr Joe Szakacs MP. I would also like to thank the secretary, Mr Matt Balfour, and the research officer, Mrs Lisa Baxter. Additionally, I extend a thank you to all of those who assisted in the development, implementation and examination of the regulations and to all those who made submissions to this inquiry.

The Hon. I. PNEVMATIKOS (16:35): Gayle Woodford was a dedicated nurse for—I might not pronounce these groups correctly, but I will endeavour—the Nganampa Health Council in Fregon in the Anangu Pitjantjatjara Yankunytjatjara lands in South Australia. She was held in high regard by the community due to her ability to provide high-level health service to those in the area, yet unfortunately in March 2016 whilst responding to an emergency call in a public space she was assaulted and killed by a third party.

It was the nature and the alarming circumstances surrounding the death of Gayle Woodford that then created the very serious discussion of: are we doing enough to keep our nurses safe, specifically remote area practitioners and health professionals? That discussion led to the introduction of legislation that was to place restrictions on single person attendances in remote areas by requiring health practitioners in remote areas to be accompanied by a second responder.

This included setting out regulations as to how a second responder is engaged as a second responder for the purposes of a call-out and the predicted circumstances of when a second responder would be required or would not be required. This bill passed both houses in November 2017, with discussions pertaining to regulations commencing in May 2019. The discussions thereafter were about whether or not the regulations met the requirements of the legislation, which there has been a notable amount of debate about, both inside and outside of this place, and which was reviewed by the Legislative Review Committee.

At the time the bill was debated in parliament it was envisaged that risk assessments would be required by health practitioners in terms of determining whether a service needed to be provided as a matter of urgency or whether it could wait until the clinic was open the next day. If an emergency response was required, a second responder would be contacted to accompany the practitioner. The regulations, however, stipulate that a health practitioner can make a risk assessment in the circumstances above in regard to whether it is safe to attend the call-out without a second responder.

The report produced by the Legislative Review Committee reflects differing perceptions in undertaking a legislative review of the regulations as promulgated. Many raised concerns that the current regulations afford health practitioners no additional support or security. Further, the regulations place an inordinate amount of pressure and stress on a health professional who already finds themselves in an urgent and emergency situation. I note that the government acknowledged the ongoing concerns regarding the regulations as highlighted in the minority report and accepts the need for a new set of regulations.

I appreciate the minister's undertaking to work with the Woodford family and stakeholders to finalise the reviewed set of regulations in the near future. I stand by the concerns raised in the minority report that the regulations are not tenable in their current form and cannot be supported. The primary intention of Gayle's Law was to reduce the harm and potential deaths for remote health professionals. It is my belief that the regulations considered in the report do not meet these requirements as envisaged in the act.

The Hon. C. BONAROS (16:39): I rise to speak to the report of the Legislative Review Committee on its inquiry into the Health Practitioner Regulation National Law (South Australia) (Remote Area Attendance) Variation Regulations 2019. As has been articulated already, the need for the inquiry arose following concerns raised specifically by the Woodford family, the ANMF(SA) and others with the current drafting of the regulations that the minister has maintained strike the right balance in terms of:

…both protecting our health practitioners, predominantly nurses operating in remote communities, and supporting them to respond to medical emergencies when it is safe to do so.

I think I have made it quite clear in this place that I do not agree with the minister's stated views and that this has been borne out through the inquiry process. It is terribly disappointing that the only recommendation made by the committee majority was simply a 12-month review, which coincidentally aligned with the minister's public comments about bringing forward the review. In my view and in the view of many, it is simply not good enough and brings into question issues around that inquiry process, which I raised during question time in this place and I will allude to further in a moment.

As members would know, I, along with my colleagues on the Legislative Review Committee, Joe Szakacs and the Hon. Irene Pnevmatikos, annexed a minority report highlighting our concerns and making several very sensible recommendations, which were all disregarded by the majority of that committee. To be perfectly frank, I am not willing to stand here today and reciprocate the gratitude expressed by the Hon. Terry Stephens, because in my view the process was anything but genuine in many regards.

It made for interesting talking with the Woodford family, whom I have had many conversations with and who agreed to wait diligently for that inquiry to play out, only to find out before we had even finalised our deliberations, before we had even seen the final draft of the report, before we had even considered the draft recommendations of the report, that no action was going to be taken, other than, of course, to review the legislation in 12 months, which had already been highlighted by the minister.

Having said that, I am heartened—I hope I am heartened—by the minister's comments in recent days that he has now accepted that the current regulations are not good enough. I hope this matter can be resolved to the satisfaction of stakeholder groups, but for me most importantly for the Woodford family, who I continue to maintain my commitment to in terms of ensuring a good outcome on this issue and who I continue to commit to working collaboratively with to reach a mutually agreeable outcome in line with the actual intent of Gayle's Law as it is articulated in the act itself.

The minister has, in a letter two days ago, had a moment of clarity, I hope, and recognises the need for a new set of regulations to replace the ones that we are dealing with now. I make the point to the minister that what we do not want, given the commitments we have all made to our nurses and to the Woodford family, is more policy on the run, because it is completely and utterly disrespectful, not only to those people who work in this area but to the legacy of Gayle Woodford and to all those groups and individuals who took the time to make submissions during the inquiry, highlighting the many concerns with the regulations.

It stands that nurses working in remote areas deserve nothing less than to be accompanied by a second responder, dispensing with the need for a risk assessment model. It is why, following Gayle Woodford's death, the Nganampa Health Council, Mrs Woodford's employer at the time, abolished the risk assessment framework model for its own health practitioners and instituted instead an escort system. It is my understanding that that escort system set up by Nganampa Health Council works well and they have not had any difficulty finding individuals to fill the position of second responder.

I also agree with the sentiments expressed by the Australian Medical Association (SA) in its submission to the inquiry when it states:

…health practitioners who make decisions in the face of urgent medical situations do so under significant pressures, often with insufficient time to properly evaluate and weigh complex ethical and legal obligations, particularly where the obligations may be in opposition as they are here.

It is my view, and that of my colleagues on the committee, the Hon. Irene Pnevmatikos and Joe Szakacs, which are also the views echoed by the ANMF(SA), the SA Salaried Medical Officers Association (SASMOA) and the Woodford family, that health practitioners should not be required to undertake a risk assessment in circumstances where they will inevitably be made in haste and under significant pressure, with insufficient time to properly evaluate and weigh up the myriad complex ethical and legal obligations in a matter of seconds, which inevitably could have led to adverse consequences.

A number of submitters raised serious concerns about having to balance the safety of health practitioners with the practical realities of limited funding that health service providers in our remote communities have to contend with, but I say again that that is not a consideration we need to be looking at in the context of Gayle's Law: we need to be looking at the intent of Gayle's Law. We knew when that law was passed that it would need to be backed by funding. It is a sad indictment on the state of our health system in remote communities when submitters like the Aboriginal Health Council of Australia state that, without desperately needed increases in funding to the sector, they would not be able to meet the needs of health service provision with the requirement for the second responder, stating:

While AHCSA and its members recognise the importance of Gayle's Law, and in an ideal world would have a second responder in all cases, the reality is that without substantial increases in funding to the sector it is simply impossible to meet both the need for health service provision in our communities and also fund the staffing that would be required for second responders to attend in all cases.

In the joint submission the issue was specifically highlighted as follows:

There is no detail as to any additional funding made available by the South Australian and Federal Governments so that health practitioners are able [to] comply with the regulations and legislation requiring the use of a second responder for an out of hours or unscheduled callout in certain circumstances.

I specifically raised the issue of funding during the consultation period for the regulations. Issues around funding remain unanswered, and in my view the government has been silent on funding for these vital issues, something that I find completely unacceptable.

The position of the AHCSA is that, if Gayle's Law regulations are to be disallowed, a substantial and immediate increase to funding of our remote services will be required, or the welfare of our communities will be put at significant risk. We sympathise with that position on the variation regulations, that if they are disallowed services will not have the resources to provide care that is urgently needed unless they are provided with a substantial and, importantly, a permanent increase for remote health services.

The submission from the Tullawon Health Service was damning of the present situation, where they currently receive minimal funding from the state government for health service provision, and no further funding whatsoever has been provided in order to comply with the regulations. Specifically, they said:

…the funding we receive from the State Government for our health service provision is minimal and we receive no financial assistance to provide 24/7 Emergency Response Care or Acute Care for the people of Yalata, nor the additional support we provide to those in wider surrounds (such as Eyre Highway accidents of the greater population). It is important to note, that no further financial assistance has been provided in order for our remote health service to achieve these legislative requirements, despite the increased cost it imposes.

It is clear that there is an urgent need for additional and permanent funding for remote health services in this state, not only to comply with the requirements for second responders but also, of course, to meet the health needs of people living in remote communities who generally have poorer access to and use of health services than people in regional areas and major cities, a contributing factor we know to poorer health outcomes for them as well.

There are many other concerns we collectively raised in our minority report. I will not traverse all of them given the number of items we are required to deal with today, but I certainly will have more to say on that when we get to the disallowance motion which we will be considering later this afternoon. It should not be this hard to implement a second responder scheme for our nurses and other health practitioners working in remote and often difficult circumstances and the reality is that they deserve absolutely nothing less.

The Hon. T.A. FRANKS (16:50): I rise very briefly to indicate that, while the Greens were not involved in this particular legislative review process, we are, of course, certainly invested and interested in the issues that it explored. As the previous speaker noted, it is the subject of a motion that is further down the Notice Paper this evening, that is, the disallowance of the regulations with regard to what is known as Gayle's Law, with regard to those protections that Gayle's Law seeks to provide where a second responder accompanies that person who is giving that very important health care.

The Greens previously have been reticent to progress with the disallowance of those regulations and the reality is that the government can reinstitute those regulations the very next day in the exact same form. We know that. We know that is the political reality here. We also know that this is a conversation where consensus has not yet been reached. I indicate that the Greens will be supporting a disallowance should it go to that vote, with the expectation that there will not be the time to introduce new regulations in that very short time frame but certainly most cognisant that we do not seek to leave nurses unprotected.

So should the regulations be disallowed and nothing stand in their place, we would be very concerned with that outcome, but this conversation has been going on for a long time now. However, the time clock is ticking in a different way. Should parliament be prorogued, as has been discussed in the corridors of this place if not the chambers, at the end of this year we may lose the ability for the parliament to effect debate on these regulations.

With that, the Greens will be supporting a disallowance of these regulations to start that time clock again to progress this conversation to hopefully reach a consensus that provides protection, not just in the cases that have so far been envisaged but to cover the range of nuanced applications. There is merit on both sides of the debate. We do have concerns that we may put particularly nurses in an invidious position where their indemnity may be endangered, and we certainly do not want to see those unforeseen outcomes, but for the moment we would expect that the government would institute the very same regulations the very next day.

While the minister may shake his head at me, which is somewhat unparliamentary for me to note, I will note that this is a conversation where we have not reached a consensus of the stakeholders, and by disallowing the regulations today we will continue that conversation in a way that I hope will have a more productive outcome than we have seen to date.

Debate adjourned on motion of Hon. I.K. Hunter.

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