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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2019-06-19 Daily Xml
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Gayle's Law

The Hon. C. BONAROS (16:17): I move:

That the regulations made under the Health Practitioner Regulation National Law (South Australia) Act 2010 concerning remote area attendance made on 16 May 2019 and laid on the table of this council on 4 June 2019, be disallowed.

I move this motion today motivated, of course, by the memory of slain Adelaide nurse Gayle Woodford specifically to ensure that her legacy is preserved with the respect and dignity it deserves.

As we all know, Gayle Woodford was an incredibly dedicated nurse and beloved mother and wife who was callously murdered responding to a late-night emergency call while working for the community she loved in the remote APY lands. In the aftermath of this most horrific murder the Health Practitioner Regulation National Law (South Australia) (Remote Area Attendance) Amendment Bill 2017, known as Gayle's Law in honour of Gayle, was formulated and passed in this chamber on 28 November 2017. Soon after parliament was prorogued in the lead-up to the 2018 state election.

To recap, Gayle's Law requires remote area nurses to work in pairs when attending after-hours call-outs and is intended to reduce isolation and improve safety for health workers and practitioners, particularly in remote areas. Regrettably, significant details around the application of the law were left to regulations which, at the time of the bill's passage, had yet to be drafted.

In November last year, some 12 months after Gayle's Law had passed through parliament, SA-Best discovered it had not been proclaimed and, as such, was not being enforced. It should have been a priority for the Marshall Liberal government. After questioning in this chamber, it was also revealed that the government's consultation process with stakeholders only commenced in November of last year—again, almost a year after the legislation was passed. At the time, the Woodford family expressed their regret and dismay at the fact that the legislation was not in force and that they had not been consulted by the Marshall Liberal government. They had every reason to be outraged.

To add insult to injury, the regulations, which were open for consultation in March of this year, do not honour the spirit and intent of Gayle's Law. In fact, they completely undermine the very essence of the laws. The regulations allow SA Health nurses and other health practitioners to go to public places without a colleague in a number of circumstances, including where a risk assessment has been undertaken on the person they are to treat.

In my view, these regulations water down and severely undermine the very protections we sought to offer our remote area nurses and they are an insult to Gayle's family, who have fought so hard in such trying times for these reforms. The regulations are crucial to the legislation for the reasons I have already outlined and they have utterly missed the mark.

Along with my former NXT senator, Skye Kakoschke-Moore, I provided the government with a joint submission on 4 April this year, which I alluded to yesterday, highlighting a number of very significant concerns we hoped would be addressed in the regulations. This included questions around potential inconsistencies in the application of the regulations for different health practitioners, and policies and procedures, and questions of liability following any risk assessment undertaken. The response by the minister, in my view, did not address adequately a number of those concerns.

So I support the concerns raised by the Australian Nursing and Midwifery Federation (SA Branch) which has long advocated for legislative change to protect remote area nurses with appropriate collegial presence when responding to the healthcare needs of the community. I acknowledge the presence of a number of those advocates today: Adjunct Associate Professor Elizabeth Dabars AM, Annabelle Randell, Liz Dooley, Nicola Williams, Jenni James, Jodi Knoop, Tracy Semmler-Booth, Rebekah Quinn, Trish Currie and Roslyn Hewlett. They are individuals who advocate for our nurses on the front line.

To paraphrase the words of the ANMF SA, remote area nurses, regardless of where they are working, are vulnerable and their safety must be a priority for the government so that they can carry out their work with confidence, free from fear, thereby supporting, assisting and caring for their communities to the very best of their ability. I note the minister, then in opposition, during the debate on Gayle's Law, highlighted how the legislation would work in practice, and I quote:

The bill requires health practitioners in remote areas to be accompanied by a second person when responding to after hours or emergency call-outs. The presence of a second person should reduce the risk of a personal attack. For this model to work, we need to ensure that we recruit and maintain a network of second responders throughout the remote areas. When called for an after hours or unscheduled emergency call, health practitioners will need to assess the risk involved in the situation, deciding whether their service needs to be provided immediately or whether it can be provided during normal hours. If deemed to be an emergency, the practitioner will rendezvous with a second responder at an agreed location to accompany him or her to the site of the emergency. The second responder will remain with them until the call-out is finished.

In the minister's very own words, this was how he intended the bill to work in practice. How things have changed!

The law adopted by the parliament was premised on the existence of a second responder to attend after-hours call-outs with health practitioners, predominantly nurses. There was never the spectre of risk assessments leading to the possibility of a second responder not accompanying a colleague for an after-hours call-out for assistance. This goes against the very original intent of the legislation and creates the possibility of health practitioners being harmed on call-outs. The category of second responders was drafted in a way to make it sufficiently broad to ensure a large enough group of people could act as a second responder necessary for the protection of nurses.

Mrs Woodford's employer, Nganampa Health Council, had a suite of safety policies around on-call work that ultimately hinged on nurses making a personal risk assessment about whether or not to step outside the cage that enclosed their staff quarters. Since Ms Woodford's death her previous employer removed the personal risk assessment framework and put in place a community escort system so that patients do not present to nurses' houses and nurses are never on call alone. So it beggars belief that the regulations allow for the reintroduction of such a risk assessment framework.

I note a 2017 survey of remote area nurses, which I have referred to previously in this place, conducted by CRANAplus, the peak professional body for Australia's remote and isolated health workforce, which revealed that 77 per cent of respondents had experienced or witnessed staff choosing to resign and leave their remote community following cumulative episodes of threats, bullying or harassment. Only half of the survey respondents reported that 'never alone' guidelines were supported and implemented consistently.

I reiterate statements made by the minister in opposition, while debating Gayle's Law back in 2017. I quote:

Nurses and other health professionals cannot give their full attention to delivering care if they need to have one eye over their shoulder looking out for their personal safety...

I could not agree more. I want to acknowledge the courage and strength displayed by Gayle's family, after such a devastating loss, to mobilise the community and act as agents of positive change to protect so many other South Australians in the future. The Marshall Liberal government, and indeed all of us in this place, must treat Gayle's Law with the respect and honour it deserves. We can and we must do better.

Ms Woodford died in tragic, horrific circumstances doing her job. It was a job that she did selflessly for a community that she loved. We owe it to her and indeed to her family to get these laws right. For the time being, I conclude with the salient words of the minister while in opposition. I quote, 'Health practitioners are men and women who save our lives. To do so, they should not have to risk their own.'

Before closing, you will recall that yesterday I asked the minister a question in relation to the risk assessment process. That question was as follows:

…will this government take full responsibility, heaven forbid, should another remote area nurse be tragically murdered or assaulted due to a decision…not to require a second responder to attend with them on a callout?

I acknowledge and I appreciate the difficulties in this space, but I ask the government to reflect on a question asked of Gayle's sister Andrea before she broke down in a radio interview earlier this week. To paraphrase, Andrea was asked whether she thought Gayle would have indeed undertaken a risk assessment on the day that ultimately resulted in her murder. Her response, to the extent that she was able to answer before breaking into tears, was precisely what you would expect.

The Hon. T.A. FRANKS (16:28): I rise to associate myself with the remarks of both the Hon. Kyam Maher in a previous motion on this topic and the Hon. Connie Bonaros here today. I express my concern with Gayle's Law that we get it right. We know full well in this place the tragic situation that has presented the Woodford family with the loss of Gayle, which led to this law. This law should have, as its paramount consideration, the safety of those nurses and first responders. In terms of doing that, if it does take further negotiation to get these regulations right, then this disallowance motion, I hope, will serve that purpose.

I acknowledge the work of the ANMF of South Australia—and, indeed, their presence in the gallery here today—in actually bringing the political will to this place to get not just bipartisan support but support across the entire parliament for Gayle's Law. I have also had the experience of communication with the Fregon community and their deep pain and sorrow at the events that took place in their community. I reiterate that one of the reasons those events took place was that that community was not given the support they asked for for that person to be removed from that community in the first place.

In what I hope will be, again, not just a bipartisan but a cross-party collaboration, where we come together and work out solutions rather than retreat into our corners on this, I also note that I have had several pieces of correspondence in the last 24 hours from the Tullawon Health Service, which are providers in Yalata; from the Aboriginal Health Council; from someone known well to me, the CEO of Purple House, Sarah Brown; and also CRANAplus.

All four have urged that this parliament not disallow the regulations, and I have great sympathy for their concerns. I note that in some of their concerns they are worried that they will not be able to resource Gayle's Law if it is implemented in the way that has been put in the debate today, and was put with the bill, and I certainly urge that resourcing not be the driver in this situation but that the safety of these health professionals and the communities be the paramount consideration.

I note that the contention is around only one small part of the regulations. If previous attempts to change the way we implement and agitate our laws in this place had succeeded, we would have been able to simply delete that particular one line and ask the government to try again, but as it is we have to disallow the entire set of regulations for that particular line to be addressed.

I note that the minister, minister Wade, has put some indications that the government will look at this closely. I would hope that we will see not just a review and a close look at this but some conciliation to come between the time that we sit today and the time that this disallowance motion may well go to a vote in the next sitting week. I note also, though, that these regulations will come into effect before we sit again and so this conversation and this collaboration and consensus building must be done with urgency and respect for all parties.

The Greens, at this point, are quite attracted to supporting a disallowance motion to get that consensus and to get that compromise that is needed to put as the paramount concern the safety of our health professionals and those communities that are affected by Gayle's Law, but we also understand that creating uncertainty with the implementation of Gayle's Law with those health services that are already implementing it is not an ideal situation and not one we wish to drag out too much longer.

With those few words, I thank the member, the Hon. Connie Bonaros, for bringing this matter to this place today. I note that, should the numbers stay, this upper house does have the power to disallow the regulations, and I would hope that that is a strong signal to government that it is time for consensus and conversations. I would hope that all concerned—certainly, I promise to do this as well—will now put away the politics of this and sit down at the table to ensure that we have a workable solution by the time we come back to revisit this disallowance motion.

The Hon. S.G. WADE (Minister for Health and Wellbeing) (16:34): The Marshall Liberal government is committed to delivering Gayle's Law. I honour the memory of Gayle and her service to communities in South Australia and reiterate again my sympathy to Keith Woodford and the family of Gayle.

The intent of the Health Practitioner Regulation National Law (South Australia) (Remote Area Attendance) Amendment Act 2017, more commonly known as Gayle's Law, is to provide health practitioners working in remote areas of the state with protections for their safety over and above existing occupational health and safety requirements. The government does not support the member's motion to disallow the regulations. I want to stress that the regulations have been developed and finalised after extensive consultation with stakeholders and interested parties, including the family of the late Mrs Gayle Woodford.

I appreciate the ANMF and the Woodford family do not support a provision which allows a health professional to attend without a second responder. The government considers that we have got the balance right to both protect our health professionals and support them to respond to a medical emergency when it is safe to do so. That said, I welcome the fact that the parliament's Legislative Review Committee will be taking another look at these regulations, as the Hon. Connie Bonaros outlined in her contribution.

I trust that the committee will take submissions from stakeholders and will consider the extent to which the regulations are appropriate and fit for purpose. It is the government's view, taking into consideration all of the submissions we have received, that they are appropriate and fit for purpose. We welcome the Legislative Review Committee consideration of that.

We need to remember that the act is broad. It relates to the delivery of out of hours and unscheduled episodes of care. It applies in a vast range of situations and locations right across the state. More than three-quarters of the state is covered by Gayle's Law, an area just north of Renmark right through to the furthest corner of the APY lands. The premise of the legislation, as passed in November 2017, was to have a second responder accompany a health practitioner on any out of hours or unscheduled call-out.

I think it is also pertinent at this point to note that the legislation, as passed by the parliament in late 2017, at section 77E, states that the requirement that a health practitioner not attend a call-out without a second responder does not apply in circumstances prescribed by the regulations. The act itself anticipates that there would be circumstances where a second responder would not be required; that is, when parliament passed this legislation it fully anticipated that there would be circumstances prescribed in regulations where it is not necessary for a second responder to be present to protect the health professional.

The process for deciding which particular circumstances should be prescribed has taken time, longer than I would have hoped, but it is important to get the balance right. In the first half of 2018, SA Health reminded health service providers that Gayle's Law had been passed and that the focus was now on developing the regulations for its implementation and proclamation. On 9 November 2018, a discussion paper was distributed to key stakeholders and peak organisations seeking their views on what should be prescribed in the regulations. The opportunity was also provided for stakeholders to raise issues that need to be considered and resolved prior to the legislation being brought into operation. On 12 December 2018, I met with the Woodford family and provided them with an update on the implementation of Gayle's Law and a commitment to continue to involve them as the legislation was brought into operation.

In response to the discussion paper, 10 submissions were received, which informed the drafting of the regulations. The submissions raised a myriad of complex issues. For example, organisations expressed concern that a universal prohibition on responding without a second responder would present health practitioners with ethical dilemmas even if they were acting within the law. For example, the South Australian branch of the Australian Medical Association wrote, and I quote:

Doctors are concerned that this provision runs counter to their code of ethics. As one doctor put it to us, 'Just because a medical practitioner wouldn't be legally liable, doesn't mean that it wouldn't pose a significant ethical dilemma for many.'

CRANAplus, the peak organisation for remote health professionals, wrote in its submission:

…CRANAplus believes that all people, regardless of where they live, should have access to high quality healthcare and being in a remote area should never be an impediment to this. Health Professionals, including Remote Area Nurses, have a professional, ethical and community obligation to provide care within their scope of practice in the event of a life or limb threatening emergency.

Under no circumstances would CRANAplus advocate that care not be provided; even if a second responder is not available, a plan of action/treatment is to commence.

The Australian Medical Association wrote:

…considers that doctors should be permitted to exercise some independent discretion in determining whether to attend a callout, if a second responder is not available. Naturally, this should include an assessment of any risks, and we do not advocate that doctors should be careless of their own safety.

Other health service providers outlined scenarios in their submissions—scenarios from their own experience—where an emergency response had been required in a public place and a second responder had not been immediately available. One organisation described the situation where a family sought help from a nurse for a child who was choking on a lolly. In that case, the nurse intervened and saved the child's life, which could have been lost if the nurse had waited until a second responder had arrived.

Another scenario asked us to think about the complexities that can arise where a medical emergency continues for a long period of time and there is a need for staff handover at the clinic, or where someone needs to collect the Royal Flying Doctor Service team from a remote airstrip. If the patient and the health professional are safe in the clinic, the submission asked, should the second responder be able to leave them there to go and collect the medical evacuation crew?

From these submissions, consideration was given to prescribing circumstances in line with the legislation where a second responder may not be required. At all times consideration was given to ensuring that the health practitioner needs to be provided with a safe environment in which they can go about their duties. These draft regulations were then distributed to stakeholders on 13 March for a four-week consultation period. The distribution was a much broader consultation process and included all health services that were likely to fall within the ambit of Gayle's Law.

The regulations were also provided to the Woodford family. In response to this consultation process, 11 written submissions were received. Verbal submissions were also received from the Woodford family and a number of Aboriginal community-controlled organisations. The ANMF raised questions about the prescribed circumstances where a call-out was to a public place. Apart from this submission, no other organisation raised concerns about the circumstances to be prescribed in the regulations.

The Hon. Connie Bonaros, as I mentioned yesterday, raised concerns in relation to the legal implications of responding in those circumstances. In fact, health service providers welcomed the flexibility and could see that Gayle's Law could be implemented in a way that would ensure the protection of health professionals and the continuation of services to communities. CRANAplus commented:

We can see that considerable effort has been applied in attempting to make the regulations sufficiently flexible so as to be practicable and achievable in the diverse range of contexts and services for which the legislation will apply.

The RFDS response was a short one; it read:

The RDFS is 100% behind the Gayle's Law legislation and believes we are already compliant.

I will reiterate that there has been no change to the circumstances listed in the regulations that were sent out for consultation and what has been proclaimed.

In recent days, myself and other members of this council have been contacted by a number of health service providers concerned at the possible disallowance of the regulations. For many months, these service providers have been strengthening their policies and procedures to ensure staff are safe, to ensure that their staff do not take risks and that their organisation is ready and able to be fully compliant from 1 July. In a letter I received earlier today, the Aboriginal Health Council of South Australia wrote:

The implementation of Gayle's Law, and the Gayle's Law Regulations in response to the tragedy was appropriate, and welcomed by the sector.

Importantly, however, Gayle's Law was drafted so as to provide a balance between the protection of health practitioners, and the realities of remote service provision. Section 77E of Gayle's Law is not a 'loophole' as has been described by some, but rather presents a practical balance between health practitioner safety and health service provision by allowing the Government to prescribe places and circumstances in which second responders are not required.

AHCSA agrees that health practitioner safety must be a paramount consideration. We agree that all reasonable steps must be taken to ensure that health practitioners have a safe workplace, and that they should never be placed at undue risk.

Arbitrarily requiring second responders in circumstances in which a risk assessment has been carried out, and no safety issues have been identified is unworkable given current funding and resources, and denies the reality of remote service provision in our State.

This is particularly so where our members have been preparing for the implementation of Gayle's Law on 1 July 2019 based on their understanding of the Gayle's Law Regulations. We do not believe that the Gayle's Law Regulations place health practitioners at an unreasonable level of risk.

In another letter, the CEO of Tullawon Health Service, an organisation that delivers health services to the Aboriginal community of Yalata, wrote the following:

Over the past 12 months, a considerable investment has been made by [Tullawon Health Service] to ensure that our organisation meets the important South Australian requirements of Gayle's Law. We have taken the abovementioned provisions into account when updating and developing our policies, procedures and strategic plan to ensure all our health service staff are safe and the organisation is compliant with the law.

It goes on later to state:

…Our policy states, that wherever possible, our procedures will always be to have a second responder. However, in unusual circumstances such as simply having two emergencies at once and minimal afterhours manpower, these provisions allow our organisation to meet the health needs and abide by the law…

The letter continues:

There is a significant need for flexibility within this legislation, as each remote area is very different to the next. Roxby Downs for instance, is very different to Yalata Community in terms of the population makeup, the landscape and service availability. In order for the implementation of these regulations to be practical and achievable on the ground, this flexibility is imperative...

…Our Health Professionals are fully trained and we must respect that they have the experience, knowledge and expertise to properly analyse a situation for risk and deem it appropriate to attend without putting themselves, or others' lives at risk. We have consulted with our nursing staff and know they have not been consulted by the ANMF in regards to these proposed changes.

THS and Yalata Community would appreciate some time for these laws and regulations to be properly implemented and tested, before these are reviewed in due course and amended from there if necessary, if they are not having the desired effect.

Another organisation, Purple House, which is about to open a nurse-run dialysis facility on the APY lands and which already operates similar facilities in 16 remote areas in the Northern Territory and Western Australia, has also expressed its support for the regulations as they stand. They state:

In preparation for the start of 'Gayle's Law' we have been looking at how it will affect our staffing and operations as well as its impact on the Primary Health Care provider in the community.

From our assessment, the proposed legislation in its current form with its 'public places' provision provides a reasonable balance to deal with possible scenarios in remote communities, particularly if health services prioritise supporting staff to build up their skills in risk assessment.

This legislation will allow for a focus on safety, without putting the health of remote residents at risk by reducing the ability of health staff to respond in emergency situations.

I can understand that Gayle's family may want far more than the current arrangements. They are grieving. However we believe that the current legislative arrangements due to begin on 1 July 2019 are a significant change to the safeguards for staff and strike a reasonable and attainable balance.

We would recommend that the legislation proceeds in its current form with a review after a suitable interval.

In some of the correspondence I have received in recent days, Aboriginal health service providers have raised issues around the cost impact of implementing Gayle's Law. In the case of South Australia's largest Aboriginal community-controlled health service, Nganampa Health Service on the APY lands, I am aware that the federal government has provided significant funding to establish and operate a comprehensive second responder system, which has been in place now for more than a year.

Additional funding for some smaller Aboriginal and non-Aboriginal health services may be required, something I intend to raise with the relevant federal counterparts. I will also continue to keep the Woodford family informed as the law comes into effect. The government believes that the regulations we have developed and on which we have widely consulted have the balance right. For these reasons, the government does not support the member's disallowance motion. However, we do welcome the Legislative Review Committee's consideration of the regulations and look forward to their comments.

The Hon. K.J. MAHER (Leader of the Opposition) (16:49): I rise to speak briefly to this motion. I note that I gave notice yesterday of an identical motion that I adjourned before this in order for this motion to continue, but that my motion will stay alive and see another day if it needs to.

In 2016, Gayle Woodford, a nurse working remotely in the APY lands, tragically lost her life at the hands of somebody she was called out to assist. I extend my sympathies to Keith and the Woodford family. I know that in the community of Fregon, or Kaltjiti as it is known as in the Pitjantjatjara language, Gayle was very well loved and nurses have a very special role in the communities and are very highly regarded.

In my former role as the minister for Aboriginal affairs, I was in the Kaltjiti community only a couple of months after the tragedy occurred and I know it was a massive shock to many at Nganampa Health and many service providers, but particularly to the community. I distinctly remember being in the community for the opening round of the football season where there was a massive tribute with plastic flowers that last a lot longer in the harsh terrain lining the oval. Gayle's memory lives on in the community and the elders (the tjilpis) in Kaltjiti.

Back in 2017, when in government, we passed legislation named in Gayle's honour, designed to ensure that no health worker would find themselves in Gayle's situation again. The legislation was aimed at prohibiting health workers from being able to work alone in remote areas, areas where they might be placing themselves in positions of danger. We did not want to see health workers put in life-threatening situations when they were just trying to do their job: trying to help others.

The current government finally moved to enact the legislation passed under the Labor government, now set to come into effect on 1 July this year, but sadly there is a catch. The government has tabled regulations accompanying the legislation that in effect change the legislation to the point that it could easily be argued that it goes against or beyond the intent of the original Gayle's Law.

The regulations put forward by the government would permit health practitioners to work alone in certain circumstances. The Australian Nursing and Midwifery Federation (SA Branch) has raised grave concerns with the opposition and other members of this council regarding these regulations. A letter to the shadow minister for health and wellbeing, the member for Kaurna, in another place states:

We were therefore distressed to read the regulations, as gazetted, which create the possibility that nurses or midwives could be required to attend alone in certain circumstances. Such a possibility in our submission is fundamentally at odds with the intention of the Parliament and campaigners for the legislation including ourselves.

The letter goes on to say:

This creates, in our view, the very real circumstances that have created a risk of harm in the past.

The letter also says that:

…the regulations in their current form would severely compromise achieving the safety of our members in remote areas.

The Woodford family, who have been tireless advocates for the implementation of this law in Gayle's honour, have also expressed their disappointment at the regulations. As a member of the Woodford family pointed out on the radio:

The inclination of a nurse or a healthcare practitioner is always going to be to help where they can. That's exactly why Gayle's Law was drafted to require the attendance of two…

The regulations are weakened by one particular section, specifically regulation 11D(2)(e), which could easily be removed and the government regulations be reissued. I understand that one of the committees of the parliament is scrutinising the regulations and will give some advice, but I want to briefly take this opportunity to say that the opposition stands with healthcare practitioners, particularly with nurses who do a remarkable job in some very difficult conditions. They are doing incredible work and often life-saving work and the Labor opposition commends all those who do this work. Labor will stand with you in what you are doing and ensure that you can perform your job safely.

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

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