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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-09-10 Daily Xml
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Health Care (Governance) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 June 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:38): I rise to speak on this bill and indicate that I will be the lead speaker for the opposition. This bill is the reintroduction of the government's second governance bill, following the previous bill lapsing in the house last year. What we have is, 2½ years after the government was elected, they are still progressing legislation for their governance reforms. We have seen in our hospitals a worsening of ambulance ramping, a worsening of mental health patients stuck with inadequate care and a worsening of emergency department waiting times, bed closures and staff cuts.

By any measure, the Liberal government's reforms to health have failed to deliver for patients. There is now an increased silo'd health system with varying quality of patient care. There are now more buck passing problems between local health networks, entrenching a mindset of 'Not my geographical patch, not my problem'. There is no central coordination of dealing with the systemic problems facing the health system, and the health boards and the government are at open warfare, with all metropolitan health boards refusing government demands to sign a service level agreement over funding disputes.

This legislation certainly has been a long time coming. In 2018, the government introduced their so-called phase 1 of their legislative changes as part of a devolution of responsibility away from the chief executive of SA Health. That legislation passed in late 2018 and it was months until we finally saw the phase 2 legislation introduced in May 2019, near identical to the bill we have before us today—some 16 months later.

That phase 2 legislation passed through the Legislative Council in June last year, with the inclusion of several important amendments that I will return to shortly. Then, that bill sat on the House of Assembly Notice Paper for five long months.

Labor was completely prepared to debate the bill in the house, but to the government apparently it was not a priority before December last year, at which point parliament was prorogued. Almost five months into the parliamentary calendar year, only then was this legislation reintroduced. It has taken months since to get debated again in this council—15 months after we previously debated and passed a bill in an amended form.

When reintroducing the 2020 version of the bill, the minister in his second reading, put it this way:

Unfortunately, while the amendment bill did pass this place with amendments it did not pass the other place before parliament was prorogued.

That is a very roundabout way of saying that the government deliberately did not prioritise the bill for five months because they did not like the improvements made to the bill by this council in its important role as a house of review. It remains unclear why it could not have been reintroduced in the first week of February when parliament resumed. That was just before the full impact of the first wave of COVID-19 in SA understandably absorbed resources, time and attention in a multitude of areas across SA Health.

If there were substantive changes made following a period of further reflection on the SA government's governance structures, perhaps consideration of the Hon. Bruce Lander QC's comments regarding the governance of SA Health for example may explain the delay of the reintroduction, but there were no changes brought forward in relation to the ICAC report—in fact, ignoring the warnings that I will go into a bit later.

If the lessons learned from COVID-19 has brought about substantive proposed changes to the legislation, that would have made sense, but the legislation before us is near identical to the legislation received in the House of Assembly some 16 months prior, but just with amendments the council had considered and which the government did not like taken out. Those amendments were presented following a range of stakeholders raising issues with the opposition and crossbenchers after being ignored by the government. The same stakeholders, unsurprisingly, have now raised those same issues again. They have not changed their views and neither have we.

The South Australian Council of Social Service and the coalition of stakeholders have come back together with an important list of proposed amendments. For the benefit of the council, the stakeholders asking for substantial change to the bill include: the South Australian Council of Social Service, the Health Consumer Alliance of SA, the Aboriginal Health Council of SA, the Lived Experience Leadership and Advocacy Network, the Australian Association of Social Workers SA, Occupational Therapy Australia, the SA Network of Drug and Alcohol Services, the Australian Health Promotion Association SA, the Public Health Association SA and the Mental Health Coalition.

I want to state for the record that this government first met with stakeholders about the bill after introducing the bill. They also told these stakeholders that, while this legislation had already been introduced, it should not be taken as an indication that the bill was done and dusted. Thoughts and amendments were welcome.

My opposition colleagues, during a later briefing, asked the government what time frame was provided to stakeholders for collating any feedback. We were told there were no precise deadlines given to stakeholders, but more a sort of general understanding or a vibe, if you will, that stakeholders would have a few weeks to get their thoughts through.

That was completely at odds with the government's decision a couple of months ago to list the bill as a priority and to try to rush it through the council. Just over a week after making a commitment to stakeholders to take their feedback on board, the government has evidently since delayed debate on the legislation for a number of months, but their incredibly poor form on stakeholder engagement still stands. The government could wait a year to progress this legislation, but apparently they did not have more than a week to try to take into account stakeholders' views.

For the benefit of the council, I will provide an overview of some of the changes that the opposition will be seeking to make during the committee stage. The opposition will once again support amendments that block the government's attempts to dissolve the Health Performance Council, an independent body tasked with oversight of the health system.

The Health Performance Council provides independent oversight and reporting to parliament, taking a statewide view of the health system. This government bill seeks to dissolve the council, taking away that independent voice. The newly created Wellbeing SA and the Commission for Excellence and Innovation in Health, bodies the minister suggests might pick up the work of the council, are not independent: they are offices of the department. They do not need to report to parliament. They do not consider the health system in the same way the council does, and they are subject to the direction of the minister. The SACOSS coalition of stakeholders put it this way in a letter to the minister:

If the Government wishes to replace the Health Performance Council…with a new Commission, it should come to the Parliament with a Bill to enshrine that Commission, its powers, oversight, reporting and independence—prior to advancing the dissolution of the HPC.

Occupational Therapy Australia, SA, states:

[Occupational Therapy Australia] is concerned that dissolving the Health Performance Council will limit the government's capacity to make informed decisions around service funding and to minimise health related disparities between segments of the South Australian population.

This is because these decisions will no longer be externally verified under the lens of interdisciplinary clinical expertise…

Rather than abolish the council, the minister should be considering ways the council might be improved, perhaps by empowering the council with a greater ability to collect and analyse data and to work with the researchers on designing improvements to the health system.

In the time this bill has sat waiting to be discussed, the previous Health Performance Council members finished their terms last month. They were advised before the winter break that the minister was 'considering a number of options' if this bill was still before parliament come August. Well, August has come. It turns out the minister's options were just to reduce the size of the council from six members down to just four.

The government is already cutting the council, ready for dissolution. The health minister is gutting it, ready to kill it off completely. Just last week we were provided a clear example of the ongoing relevance of the council. The council last Thursday released an alarming audit revealing the extent that SA Health is failing to deliver for Aboriginal people. The council audit labelled all but one of our health services as evidencing 'very high institutional racism'.

The audit itself was initiated after the council's recommendations to improve Aboriginal health outcomes, which they handed directly to the health minister almost two years ago, were ignored. So at the same time the health minister is ignoring their recommendations to improve health care, the minister is punishing the council by seeking to axe them and remove independent oversight.

It is vital that the council continue its operations or audits such as this, exposing the minister's failure to act, or much-needed improvements to the health system will simply not happen. I am sure it is uncomfortable to the minister to receive such a damning report on the treatment of Aboriginal people by the health system, but it is vital for our system that such a report be delivered. But if the minister has his way, that will be the last independent report he ever sees. He is shooting the messenger, removing the oversight and independence, and ensuring the health system faces less scrutiny in the future.

Also, Labor will again support amendments to enshrine the role of the mental health commissioner, a role that has disgracefully fragmented into three part-time commissioners and been stripped of resources, an office, independence, influence and powers under this government and this health minister. The axing by stealth of the Mental Health Commission was an unforgivable act undertaken by this government and this health minister.

Out of all the aspects of our health system requiring the utmost level of oversight and accountability, mental health is right at the top, yet this government has seen fit to strip to bare bones the one entity tasked with the power to provide that oversight. As Lived Experience Australia told the opposition:

We are concerned that LHNs, and mental health services in particular, have become increasingly hospital and emergency department focused, with less focus on community mental health services.

We are concerned that the economic imperative is the predominant driver for the LHNs, rather than the quality of care to consumers.

And as the CEO of a non-government organisation delivering mental health services put to us:

…the Mental Health Commissioner…should be a properly legislated part of our health system, and the reducing of the position to part time is a slap in the face of an industry already under resourced and battling to help some of society's most needy participants. The position should be full time, legislated, and then backed up with appropriate resources and authority!

We will do what we can with this legislation to try to restore what has been destroyed under this government by enshrining the commission in statute. The opposition will also move to enshrine in legislation the existence of a consumer advisory body funded by government. This seeks to reverse the government's $1.5 million cut to the Health Consumers Alliance, leaving South Australia as the only jurisdiction, the sole jurisdiction in Australia without a consumer voice. The SACOSS coalition of stakeholders suggested the following:

Amend the Act to give consumers and those with lived experience an independent voice.

This could be done by inserting at section 7, that the Chief Executive shall ensure a percentage (to be set by regulation) of the funding amount allocated to LHNs, through their service agreements, is directed to an independent, non-government health consumer organisation, for individual and systemic representation and advocacy, and to enable evidence-informed consumer and community engagement in health care services policy, planning and services.

While recognising the constraints on the Legislative Council for introducing this amendment verbatim, the opposition will move amendments that give effect to the overall intent of the stakeholder coalition's suggested course of action. This is yet another way the government is moving to remove independent oversight and voices on the delivery of healthcare services. Consumer voices in the future will not be independent if the government has its way. Consumer voices will be subject to the control of health regions.

The opposition will once again vote against government attempts to loosen the eligibility requirements over governing board members. These changes that the government is seeking to make would mean that individuals working for a consultancy firm providing services to an LHN, unbelievably, could also sit on the governing board of the same LHN. As SASMOA summarised it:

The newly proposed change to this section now places a significant risk that the interest of the individual's non-pecuniary and pecuniary interest could have a priority over the public hospital interests and the community who subsidise our State hospital services, eroding confidence in the governance…

The closer the individual is to influence the outcome of a hospital tender or procurement process, in provision of a service to a hospital or selection of senior executives, the greater the public requires protection from such misconduct.

Perhaps the most strident criticism of this amendment has come from the outgoing ICAC commissioner, the Hon. Bruce Lander QC, who warned that these proposals could heighten the risk of conflicts of interest within SA Health. Members would know, of course, that the ICAC has delivered a scathing report of SA Health, the same report that the health minister did not read before he announced his report for setting up a weak task force response.

One of the areas the commissioner was particularly scathing was in relation to conflicts of interest. He said this was a dangerous risk for SA Health and one of the areas of risk for maladministration and corruption, so it seems strange to the opposition that following this scathing report on conflicts of interest the government would seek to introduce a change that would, in fact, increase the risks of conflicts of interest.

The opposition wrote to the ICAC commissioner asking if he had been consulted and asking for his views on the proposal from the government in this area. The response we received from the ICAC commissioner is extraordinary. It is definitely worth reading and considering before voting on this dangerous proposition, and the opposition will seek to table a copy of the letter from the ICAC commissioner when we get to this area in committee. The commissioner's written feedback included this specific warning about the amendment:

…could heighten the possibility that a Governing Board member will have a conflict of interest.

He went on to say:

Relaxing the eligibility criteria for membership to a local health network Governing Board will tend to heighten the risk of actual, perceived and potential conflicts of interest emerging for those Board members who may provide services to a relevant local health network.

In light of the existence of this control measure, I regard it as a question for the Parliament if the Parliament wishes to remove eligibility criteria that would further reduce the risk of the occurrence of conflicts of interest.

The commissioner has rightfully called out these proposals for what they are, a clear risk to the integrity of our health system. I take this opportunity to once again remind the council of the minister's comments upon the introduction of the first phase of the government's reforms. He said:

I would urge members not to create conflicts of interest problems, probity issues, for the boards.

Yet, here he is again attempting to remove protections against potential conflicts of interest that the minister himself established in 2018. The minister is ignoring the ICAC report and ignoring the review of the ICAC on these provisions. If this clause goes ahead, there is no doubt there will be greater risk of conflicts of interest—exactly the opposite lesson the government should be learning from the ICAC report.

For the record, we asked the government for concrete examples of what the current conflict of interest rules are holding back from participation and, as you would expect, we never received any examples. We will absolutely be voting against this provision and would encourage other members to reflect on the views of the ICAC and not allow this risk for corruption or maladministration to creep into the legislation.

As a result of discussions with stakeholders and further consideration of the bill since it was last brought before this council, the opposition will remove several additional amendments, increasing transparency and accountability over the new governance model. As Lived Experience Australia summarised in their submission to the opposition:

…the assumption and expectation is that LHNs will be increasingly autonomous and be able to report on their information and activity. We have concerns about independence of reporting when an organisation is reporting on itself without independent oversight.

Labor will seek to go some way to addressing these concerns about a lack of oversight and accountability by moving amendments to:

subject board member appointments and removals to publication in the Government Gazette (at the moment, there is no notification to anyone of decisions that the minister makes in relation to board appointments, and some pay very lucratively);

require that the disclosure of board members' conflicts of interest be published on a website, as opposed to the current register of interest, which is only accessible via a visit to the physical register at the individual hospital, and officers have told us they were unable to take records if requested; and

require that any direction made by the minister in relation to the service agreements of governing boards is published on a website within 14 days of the direction being given.

This last amendment seeks to provide some transparency over an ongoing concern the opposition has with this bill: how disputes between governing boards and SA Health over funding agreements are managed.

Again, during the opposition briefing, my colleagues were assured that minister involvement in service agreements would only come as a last resort and only after a range of other strategies had been attempted and exhausted. But what we have seen is that, in disputes over service agreements, we have already reached what appear to be irreconcilable clashes. We have heard that governing boards with concerns about fulfilling their director's duties feel they cannot accept the level of funding put to them by SA Health, including significant cuts, and so we witnessed many stalemates over service agreements for the 2019-20 financial year.

My opposition colleagues confirmed during their briefing on the bill that, if a service agreement between a governing board and SA Health is not on the website, it means an agreement has not been signed. At the very end of the 2019-20 financial year, all four metropolitan LHNs were operating without a funding agreement for that year, let alone moving to consider the current year's agreement. It is just extraordinary that metro LHN boards are all refusing to sign the minister's service level agreements for all of the past financial year and none of them have signed up for this year either.

Clearly, there are already big disagreements over our major services, so telling the opposition the minister would only intervene where all other options have been exhausted does not seem completely out of the question. Clearly, the minister would immediately use these provisions to overrule objections of his own boards.

One chair of a board said to the opposition that board members might have to consider resigning as the only option available if they were unsatisfied with the service level agreement presented. The ANMF has also raised concerns regarding the potential negative impact of two proposed amendments upon the consistency of those employed across LHNs and the ability of governing boards to have control over their CEOs with regard to employment matters outside of 'hiring and firing'.

We understand these concerns and proposed amendments to alleviate these concerns have been clearly provided to the government. We will be seeking to ensure those proposed amendments are passed through this council.

The disagreement and stagnation on funding agreements is one clear example of where the minister's reforms are failing, but I will finish with another one. We know that South Australia's health response to COVID-19 has been very good under the fantastic leadership of Professor Nicola Spurrier and deputy chief public health officers, along with police commissioner Grant Stevens. But there are some lessons to be learned and one of those was very clearly outlined by the nurses' federation in their appearance before parliament's COVID-19 committee a couple of months ago.

The Australian Nursing and Midwifery Federation outlined serious concerns about delays and widespread divergent policies across the local health networks when it came to the supply and use of personal protective equipment in our hospitals. Associate Professor Elizabeth Debars of the ANMF outlined the poor experience the federation had in trying to get clear information about PPE and then went on to say:

We have had very serious concerns about the LHN and this alleged decision-making at the local level.

That's ideal in one sense, but on the other hand it provides for continuing inaction and lack of consistency and transparency when things are or could be directed from a single overseeing level.

We think: why on earth would you produce five different policies or five different procedures just based on your geographical location when surely, in most instances, there should be one clear way of doing things in a health context?

It is clear from the fragmented nature of governance brought about by this government that it is already creating challenges and unfortunately one of those challenges came to the forefront at the worst possible time for our health system. At a time when South Australia needed rapid and consistent statewide action in responding to COVID-19 and ensuring our clinicians were appropriately protected by PPE, that clear communication rollout was lacking.

While the opposition remains open to supporting this legislation to provide further clarity to the operation of these governing boards, that support will be predicated on a number of important amendments gaining the support of this council, just like the council has previously done. It is a disrespect to the Legislative Council and the people of South Australia that the minister would seek to just reintroduce this bill and ignore the significant improvements that were made by the council to the previous bill and, more importantly, completely ignore the findings of the ICAC last year.

The opposition looks forward to again working with members to improve this bill and discussing the many outstanding concerns with this legislation during the committee phase.

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

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