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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-12-01 Daily Xml
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Health Care (Governance) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 7.

The Hon. S.G. WADE: I would like to remind honourable members that this is the second edition of the bill. It is the second stage of the governance performance and accountability framework. This bill picks up the concerns the Legislative Council expressed in the previous bill. It has added an additional function of the chief executive to engage with consumers and other interested parties in the development of healthcare policy, planning and service delivery. We saw that as a much better alternative than suggesting that the chief executive could, with all integrity, produce an independent, effective consumer advocacy body.

I also want to make the point that national data on the national safety and quality health services accreditation outcomes for public, private and day surgeries across Australia shows that South Australian public hospitals perform extremely well in terms of engaging consumers. That accreditation showed that, of the 17 South Australian public hospitals surveyed between January 2009 and February 2020, 100 per cent met the national accreditation standard relating to partnering with consumers on their first assessment. This compares with 88 per cent, a significantly lower proportion, 12 per cent lower, in other states and territories. This demonstrates South Australia's strong commitment to consumer engagement in the public health system.

That commitment continues with the establishment of the Commission on Excellence and Innovation in Health. The commission has a directorate specifically on consumer and clinical partnerships. The directorate is focused on developing systems and capabilities to build and sustain partnerships between consumers and with communities, consumers and carers. It aims to support health services to deliver safer, more innovative and effective health care through empowering consumers and clinicians.

The commission is seeking to engage consumers, carers and the community by involving them in the planning, design, implementation and evaluation of its work program, including wider health systems, strategic planning, policy work, development of models of care, clinical pathways and evaluation of programs and services. The commission is developing clear mechanisms and structures to support this collaboration, including through the creation of a consumer advisory committee, consumer membership on all clinical network steering committees and advisory committees as well as consumer representation on all projects.

The commission also has another directorate, called Human Centred Design. That directorate has been established to ensure that patients, their families, carers, the wider community, healthcare staff and anyone else impacted by innovation or improvement are involved through the whole design process.

The government would argue that the commission is very much focused not just on engaging consumers and carers but on empowering them. With all due respect, to think that the chief executive could establish one group that could embrace the diversity of experience in all the domains of Health, right across the diversity of our client groups, is just unrealistic.

Likewise, Wellbeing SA and the SA Mental Health Commission have very strong consumer engagement mechanisms. We are very committed to continuing to improve our consumer care and community engagement. In fact, we are midway through the process of releasing a strategic framework to drive that.

We know that, in the context of patient-centred care—in the context of, as the health system tends to put it, putting the patient in the middle of everything that we do—we need to be effectively engaging consumers and carers. We do not believe the proposed opposition amendment helps us in that solemn responsibility. I would urge the council to keep us accountable for engaging consumers, carers and the community, but I would urge members not to support this amendment.

The Hon. T.A. FRANKS: Further to my previous remarks, I thank the minister and his staff for the briefing they provided to the Greens in the interim while the other work of the parliament carried on. While the Greens are quite supportive of a consumer voice, we do actually see that this is not necessarily the tool to ensure that voice, so we will not be supporting the opposition's amendment.

The Hon. J.A. DARLEY: For the record, I will not be supporting the opposition's amendment.

The Hon. C. BONAROS: I have to say that I am persuaded by what the minister has put on the record. I note also that the concerns that we have raised in relation to that consumer voice have been incorporated into the provisions of the bill, to the extent that we raised them last time. I think I have a lot more faith in the commission undertaking this role with the diversity that it requires, as opposed to leaving it to the chief executive to make that decision. For those reasons and the reasons the minister has outlined, we will be supporting the government's position.

However, I make an important note, and that is a caution, perhaps, to the minister that we will be watching this space very carefully to ensure that that level of consumer engagement is actually taking place. We will be watching this space closely to ensure that what the minister is saying will be done—that it actually transpires. If it does not, then obviously it is something that we will be revisiting, again in this context, in the time to come.

The Hon. S.G. WADE: I thank honourable members for their contributions and, shall we say, their notices.

Amendment negatived.

The Hon. S.G. WADE: I move:

Amendment No 1 [HealthWell–1]—

Page 4, after line 10 [clause 7(1)]—After paragraph (k) insert:

(ka) to develop and issue policies on workforce harassment and bullying;

This government amendment seeks to amend clause 7 of the bill and section 7 of the act to insert an additional function for the chief executive of the department as system leader relating to developing and entering policies on workforce harassment and bullying. This amendment has been filed following discussions with Dr Chris Moy, the President of the South Australian Branch of the Australian Medical Association, who approached me to consider such an amendment.

The government is committed to improving workplace culture and stamping out bullying and harassment, which we believe is unacceptable in any circumstances. That is why we were more than willing to work with Dr Moy to present this amendment to the council. As part of SA Health's commitment to promoting a positive and professional working environment and culture of respect, I am advised that a review of the respectful behaviours policy directive has taken place and a new prevention and management of workplace bullying and harassment policy directive has been drafted for consultation.

Under section 7 of the bill the chief executive may issue policies and directives that are to be complied with by the department, local health networks and the South Australian Ambulance Service.

The Hon. T.A. FRANKS: For the sake of the record, the Greens will support this and welcome the government's intervention on this matter. It was raised with the Greens as well by the AMA of South Australia. I want to congratulate Dr Moy for his leadership on this issue. Certainly as a member, like yourself Chair, of the occupational rehabilitation—the committee that needs to rename itself that deals with OHS issues—the leadership of the current AMA SA has been exemplary on addressing workplace bullying, and this is a very important amendment for those reasons.

The Hon. C. BONAROS: I indicate for the record that we will support the amendment.

Amendment carried; clause as amended passed.

Clause 8.

The Hon. T.A. FRANKS: The Greens indicate that we oppose this clause. It is again consequential on the Health Performance Council matter, which was resolved at clause 4.

Clause negatived.

New clause 8A.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Maher–1]—

Page 4, after line 29—After clause 8 insert:

8A—Insertion of Part 3A

Before Part 4 insert:

Part 3A—Mental Health Commission

14A—Establishment

(1) There is to be a Mental Health Commission.

(2) The Mental Health Commission—

(a) is a body corporate; and

(b) has perpetual succession and a common seal; and

(c) is capable of suing and being sued in its corporate name; and

(d) has all the powers of a natural person that are capable of being exercised by a body corporate; and

(e) has the functions and powers assigned or conferred by or under this or any other Act.

(3) The Mental Health Commission consists of 3 members (the Commissioners) appointed by the Governor of whom—

(a) 1 is the Presiding Commissioner; and

(b) 2 are Deputy Commissioners.

(4) The Governor must, when appointing members to the Commission, seek to ensure that, as far as is practicable, 2 of the 3 Commissioners have qualifications, knowledge, expertise and experience in mental health.

14B—Terms and conditions of appointment

(1) A Commissioner will be appointed for a term not exceeding 5 years and on conditions determined by the Governor and, at the end of a term of appointment, will be eligible for reappointment.

(2) The appointment of a Commissioner may be terminated by the Governor on the ground that the Commissioner—

(a) has been guilty of misconduct; or

(b) has been convicted of an offence punishable by imprisonment; or

(c) has become bankrupt or has applied to take the benefit of a law for the relief of insolvent debtors; or

(d) has, because of mental or physical incapacity, failed to carry out duties of the position satisfactorily; or

(e) is incompetent or has neglected the duties of the position.

(3) The appointment of a Commissioner is terminated if the Commissioner—

(a) becomes a member, or a candidate for election as a member, of the Parliament of a State or the Commonwealth or a Legislative Assembly of a Territory of the Commonwealth; or

(b) is sentenced to imprisonment for an offence.

(4) A Commissioner may resign by notice in writing to the Minister of not less than 3 months (or such shorter period as is accepted by the Minister).

14C—Temporary appointments

The Governor may appoint a person (who may but need not be an employee in the Public Service) to act as a Commissioner (whether the Presiding Commissioner or a Deputy Commissioner)—

(a) during a vacancy in the office of a Commissioner; or

(b) when a Commissioner is absent from, or unable to discharge, official duties; or

(c) if a Commissioner is suspended from office under this Act.

14D—Honesty and accountability

A Commissioner (and any person appointed to act as a Commissioner) are senior officials for the purposes of the Public Sector (Honesty and Accountability) Act 1995.

14E—Procedures

(1) Meetings of the Commission are to be presided by the Presiding Commissioner.

(2) A quorum of the Commission consists of 2 Commissioners (at least 1 of whom must be the Presiding Commissioner).

(3) A decision carried by a majority of the votes cast by the Commissioners present at a meeting of the Commission is a decision of the Commission.

(4) A conference by telephone or other electronic means between the Commissioners will, for the purposes of this section, be taken to be a meeting of the Commission at which the participating Commissioners are present if—

(a) notice of the conference is given to all Commissioners in the manner determined by the Commission for the purpose; and

(b) each participating Commissioner is capable of communicating with every other participating Commissioner during the conference.

(5) A proposed resolution of the Commission becomes a valid decision of the Commission despite the fact that it is not voted on at a meeting of the Commission if—

(a) notice of the proposed resolution is given to all Commissioners in accordance with procedures determined by the Commission; and

(b) a majority of the Commissioners express concurrence in the proposed resolution by letter, fax, email or other written communication setting out the terms of the resolution.

(6) The Commission must have accurate minutes kept of its meetings.

(7) Subject to this Act, the Commission may determine its own procedures.

14F—Vacancies or defects in appointment of Commissioners

An act or proceeding of the Commission is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a Commissioner.

14G—Functions of the Commission

(1) The Commission has the following functions:

(a) to identify and review issues about—

(i) mental illness in South Australian communities, including within aged care, disability and Aboriginal and Torres Strait Islander communities; and

(ii) the provision of mental health services in South Australia;

(b) to inquire into and report on services relating to mental health and the mental health system generally on the Commission's own motion, at the request of the Minister, the Chief Executive, a patient or a body or person representing the interests of consumers or patients;

(c) to review and identify any causes of concern with—

(i) the provision of mental health services; and

(ii) trends in the delivery of mental health services and the mental health of the population;

(d) to advise, and report to, the Minister on any matter relating to mental health services and issues or trends in the area of mental illness;

(e) to maintain links with—

(i) mental health service providers; and

(ii) organisations that have an interest in the provision of mental health services; and

(iii) organisations that represent the interests of patients and consumers of mental health services;

(f) to perform other functions conferred on the Commission by or under this or any other Act.

14H—Annual report

(1) The Commission must, on or before 30 September in every year, forward a report to the Minister on the work of the Commission under this Act during the financial year ending on the preceding 30 June.

(2) The Minister must, within 6 sitting days after receiving a report under this section, have copies of the report laid before both Houses of Parliament.

A committee of this chamber that is looking at the government's response and handling of the COVID pandemic a number of weeks ago heard a very clear message from one of the Mental Health Commissioners. In summary, the mental health response to COVID-19 has been lacking and problematic. The commissioner's voice in that parliamentary committee was important and welcome, but we fear that we will not hear such a voice for much more because this commissioner is not independent of the minister, is not enshrined in legislation and is not appropriately resourced.

This amendment enshrines in legislation an independent mental health commissioner, re-establishing and strengthening the important oversight of our mental health system, which the government scrapped last year. The opposition sought and incorporated feedback from the Mental Health Coalition of South Australia on this amendment. We wanted the make sure the minister could not claim this time an argument that the model presented by this amendment, for a statutorily enshrined mental health commissioner, was not supported.

Following the feedback, the opposition's proposed amendment to enshrine the mental health commissioner in legislation remains substantially the same with two key differences. The first goes to ensuring that lived experience remains key within the leadership of the commission. We know that lived experience in the current commission is highly valued, so the model presented in these amendments is reflective of the continuation of those voices. This model now includes one head commissioner and two deputy commissioners and the requirement that two of the three of those commissioners must have lived experience.

Secondly, the functions of the commission are being clarified so as to reflect the commission's role being focused on systemic issues. Again, this amendment goes to address the concerns put forward by the SACOSS coalition. I commend the amendment to the chamber.

The Hon. S.G. WADE: We believe that this matter not only is not at the right clause but we do not think it is in the right act. This is a matter in relation to mental health care services and should be considered under the Mental Health Act rather than the Health Care Act. The opposition's proposed statutory functions of the commission duplicate and conflict with the statutory functions of the Chief Psychiatrist under the Mental Health Act and are likely to cause confusion as to accountability and responsibility for monitoring provisions of mental health services in South Australia.

The government has reformed and expanded the South Australian Mental Health Commission with an increased focus on engagement with carers and consumers. On 6 January 2020, three new Mental Health Commissioners were appointed under the Constitution Act and report directly to myself as minister. The current Mental Health Commissioner role complements that of the Chief Psychiatrist, focusing on engagement with consumers with lived experience and carers and taking a holistic view of recovery, upholding human rights and working to improve community attitudes. It also continues its work in implementing the strategic plan and the services plan.

It is the government's view that legislating the role of the Mental Health Commission within the Health Care Act is not supported as we believe it is important to allow the South Australian model to continue to evolve. The Mental Health Commission that was established earlier this year is fundamentally different to that of the former government, and we believe it is a model that is already proving its worth, but we do not believe we should be legislating at such an early stage in the development of the commission.

In that context, I have received communication from the Mental Health Commissioners, and I would seek to read that onto the record. They state:

The SA Mental Health Commissioners would like to confirm that they agree with Minister Wade's proposal that a review of the Commissioners' position, and model in which their current functions and roles sit, take place in alignment with the review of the SA Mental Health Act.

The Mental Health Commissioners primary role is to be community facing, with a focus on prevention and early intervention for mental health in the South Australian Community, and to bring the voice and concerns of the community in relation to mental health and service systems that support mental health to the Health Minister, the Hon. S. Wade.

We note the second reading of the Health Care (Governance) Amendment Bill by the Hon. K.J. Maher on 10th  Sept 2020 in which he notes the Opposition's concerns about the current model, the level of resourcing, and capacity for independent oversight by the Mental Health Commissioners in the performance their functions.

We also seek to acknowledge that the Mental Health Commissioners were appointed for their Lived Experience of mental health, their depth of connection and influence in mental health consumer and carer communities, their connection and roles in various national mental health policy committees, and for their diversity in representing the community. Our Commissioner counterparts in the other states have noted the strength of this Lived Experience focus underpinning the role.

2020 has been a year of challenge and whilst the Commissioners have had the opportunity to be closely involved in the mental health and wellbeing of the SA community in relation to COVID support measures, overseeing the implementation of the SA Mental Health Services plan and the SA Mental Health Strategic Plan has therefore not been optimal.

Having a level of independence has been an absolute advantage in being able to take a bird's eye view of the mental health of South Australians during COVID 19, and raising concerns with the Health Minister and various statutory bodies with functions relevant to the mental health and wellbeing of the South Australian community.

A review of the work of the Commissioners will align well with the review of the SA Mental Health legislation given that more time will allow a more in-depth assessment of the current model.

The Hon. T.A. FRANKS: I indicate that the Greens have also seen the correspondence from the Mental Health Commissioners of South Australia, and I did have some questions of the opposition with regard to their amendment. Why has the opposition chosen one presiding commissioner and two deputy commissioners? Why has lived experience not been a requirement? What consultation was done in the formation of this amendment?

The Hon. K.J. MAHER: I thank the member for her questions. Obviously, I am not the lead shadow minister on this bill but my advice is that the amendment as put forward is supported by the Mental Health Coalition of South Australia. There was consultation with the Mental Health Commission of South Australia and that is why the amendment is in the form it is in.

The Hon. T.A. FRANKS: Were the Mental Health Commissioners—either the current ones or the previous ones—consulted with in the formulation of this amendment?

The Hon. K.J. MAHER: Not being the lead minister, I cannot give the member full details on exactly who was consulted, exactly what they were consulted on or exactly when they were consulted on, but I am sure if the member wants to we can report progress so that a briefing can be gained from the member for Kaurna. I will move that progress be reported so that the member can get the briefing that she desires. I move:

That progress be reported.

Motion negatived.

The Hon. T.A. FRANKS: I think the answers to those questions just emphasised my concerns about this particular amendment. I thank the Mental Health Commissioners of South Australia for their forthright and independent advocacy, not just in COVID-19 but on this issue. I am somewhat concerned that the Labor Party would come here with a proposal for a Mental Health Commission that does not even consult with the current or former Mental Health Commissioners. It does not prioritise lived experience and seeks to create a hierarchy of presiding commissioners and deputy commissioners.

It is not well consulted. It is not in the spirit of proper engagement with the community it seeks to represent and, indeed, it has been rejected by the current Mental Health Commission as the wrong bill, the wrong act. The Mental Health Act is the appropriate place for this particular debate. I hope that when we do have this debate it will come with the review that is scheduled to look at these issues, but also not cherrypicking those voices that the opposition wishes to support, without listening to all voices and particularly those who are actually the current Mental Health Commissioners, who I would have thought would have been the first people the Labor opposition would have consulted with.

The Hon. C. BONAROS: I think I made it quite clear during my second reading contribution that I had a real issue with the fact that we were still dealing with this. In the lengthy discussions that I had with the minister, obviously one of the questions I had was, 'What have the Mental Health Commissioners got to say about this?' I think we all agree that they are doing an exceptional job and have played a very important role that we need here. That was confirmed to us in the letter that was provided dated 11 November 2020.

The commissioners have made a number of very important and valid points that cannot be ignored. My disappointment was that we are dealing with the same issue and we have come to this point before we have dealt with this issue. However, I think that the commissioners have made it clear that the current lay of the land has enabled them to undertake their work in a way that they consider very beneficial, and they also agree that the correct place for enshrining the commission into legislation would be in the Mental Health Act.

We have always said that that would be the best place to do it, and urge the government to do the same. What the commissioners have now told us is that we would be better served by allowing that to take place when the review of the act comes up. I accept the commissioners' advice in relation to that. I accept that a review of the work of the commissioners will align well with the review of the mental health legislation given that more time will allow a more in-depth assessment of the current model.

If anyone questions that, then they really ought not look any further than the evidence our commissioners have given us. They have been very forthright and impartial in terms of the evidence they have provided in calling the government to account on issues where they have not stepped up or where they have not acted appropriately. I think they will continue to do that.

They have the lived experience we are looking for, and the last thing we would want to do, despite us all wanting this enshrined in legislation, is enact a scheme that undermines the current structure they have, which they say is working very well. With those words, and with the support of the commissioners, it is our intention to support the government's position on this.

This does present another opportunity though, in terms of ensuring that community engagement we discussed in relation to previous amendments, because no doubt the review and the enshrining of the commission into legislation can also take into account the level of community engagement that has been undertaken and whether that is working effectively as well. So we have one review that is going to deal with a whole range of matters.

The Hon. S.G. WADE: Briefly, and to reiterate the point the honourable member just made, the frameworks I was referring to earlier—like the work of the commission, the department's strategic framework, each of the LHN's consumer engagement strategies—all deal with both mental health and physical health. In the context of the Mental Health Act review, the review may well look at the effectiveness of consumer engagement, and of course that review report comes back to the parliament.

The Hon. K.J. MAHER: Regarding the Mental Health Act review, can the minister outline who is conducting that review and when it will be reporting?

The Hon. S.G. WADE: Going from memory, not from a brief, my recollection is that the department is intending that a project officer start work on it in the second half of 2021. The need to have a review is in the Mental Health Act and is triggered by a flux of time since the last amendments. I am told that triggers the commencement of a review in the second half of next year.

The Hon. K.J. MAHER: Is it the minister's expectation that even if a review that was conducted by officers in his own department recommended that the role of mental health commissioners be established in mental health legislation in the Mental Health Act, that would not occur in this term of parliament if the review only starts in the second half of next year?

The Hon. S.G. WADE: It may or may not happen in this term of parliament but, to be frank, I am not concerned about that because this group of Mental Health Commissioners has not even had their one year anniversary. As reflected in the Mental Health Commissioner's letter and in my comments, I believe this model needs a chance to settle, perhaps even to evolve. In the context of the Mental Health Act review, the issue of whether or not there will be benefit at that stage to statutorily enshrine the Mental Health Commission can be considered, and of course the parliament can have a different view.

The Hon. K.J. MAHER: I am assuming—and the minister will correct me if this an incorrect statement—that at this stage the minister sees no reason to enshrine the role of mental health commissioners in legislation, be it in this act or the Mental Health Act.

The Hon. S.G. WADE: I will stand by my remarks. I do not support the model you are trying to put before the chamber, and I strongly agree with the criticisms that the Hon. Tammy Franks put. I am certainly not going to put retrograde amendments into this legislation. It is the view of the government that we should not be legislating even the current form of the Mental Health Commission. It has not served even a year, and it needs time to evolve and mature.

The Hon. K.J. MAHER: The government's review of this area recommends enshrining the role of mental health commissioners, in one form or another, in the Mental Health Act or another act. If that is a recommendation of the review, is there a commitment from the government that they will do that? It seems to be a principal argument against this or any other model now that it is the wrong bill, it should be in the Mental Health Act, so trust us if that is something that ought to be done, we will do it. So is the government committing if that is a recommendation of the review to do that?

The Hon. S.G. WADE: No, the government is not. Just as every member here has the right, with the benefit of the review, to consider whether or not they agree with the review's findings, that is open to the government members as much as it is to opposition members and crossbench members. What I am committed to, as a statutory duty, is a review of the act and what I am committed to is ensuring that that statutory review considers the value of enshrining the Mental Health Commission in legislation. I make the point that when the former Labor government established the Mental Health Commission they did not enshrine it in legislation, yet now we are getting a touch of moral outrage from the opposition.

The committee divided on the new clause:

Ayes 8

Noes 12

Majority 4

AYES
Bourke, E.S. Hanson, J.E. Hunter, I.K.
Maher, K.J. (teller) Ngo, T.T. Pnevmatikos, I.
Scriven, C.M. Wortley, R.P.
NOES
Bonaros, C. Centofanti, N.J. Darley, J.A.
Franks, T.A. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Parnell, M.C.
Ridgway, D.W. Stephens, T.J. Wade, S.G. (teller)

New clause thus negatived.

Clause 9.

The Hon. K.J. MAHER: I move:

Amendment No 3 [Maher–1]—

Page 5, after line 31 [clause 9, inserted section 28B]—After subsection (2) insert:

(2a) A direction issued by the Minister relating to the funding to be provided to the health service under a service agreement must be published on a website determined by the Minister within 14 days of the issuing of the direction.

This amendment requires public notification of any ministerial direction regarding local health network funding agreements. This was canvassed in the second reading speech that was given in this place. The amendment seeks to provide some transparency over how disputes between governing boards and SA Health over funding agreements are managed.

The minister has claimed that such a direction would be a last resort option, but we have seen disputes and we have talked in this chamber during this committee process about disputes over the service level agreements where they apparently reached views that are diametrically opposed. These are the sorts of clashes that perhaps meet the threshold for the minister intervening.

We have heard in today's committee that there are four boards that are still yet to finalise those service agreements for the current financial year, and two of those four local boards did not have a service agreement at all for the last financial year. We have heard previously of concerns of governing boards about fulfilling their directors' duties, who feel they cannot accept the level of funding put to them by SA Health.

Because of conflicts such as this we saw stalemates, as has been canvassed, over service agreements in the 2019-20 financial year. There are obviously disagreements that have led to pretty fundamental service level agreements not being signed. We think this is important if the minister did seek to intervene where all other options have been exhausted.

If it is the case that the minister thinks such a direction would rarely, if ever, be given then there is no harm in passing this amendment. The minister ought not fear that it requires public notification. If the minister thinks that such a direction would not ever or rarely be issued, then this amendment does no harm but, in that extraordinary case where such a direction would be issued, we think it is only reasonable, as a level of transparency, that there be public notification of such a direction.

The Hon. S.G. WADE: As it stands, the amendment is not supported because it may not be practical or workable to publish a direction about funding under the service agreements within 14 days. Our concern is that it may compromise negotiations. Publishing a direction about funding to be provided under a service agreement before that service agreement has been agreed in completion may compromise the negotiations and may create confusion if published in isolation.

As the honourable member rightly reiterates, I have made it clear that I would see these directions as a matter of last resort but, as it is drafted, I certainly think that this amendment would be unhelpful.

The Hon. K.J. MAHER: I thank the minister. If 14 days is a problem, I am happy for him to say the number of days that would get rid of that problem, and I will seek the advice of the Chair of Committees to move it in such an amended form. The minister has said that the number of days is the impediment here, so I am keen for the minister to let us know the number of days it can be changed to so that we can pass this amendment.

The Hon. S.G. WADE: For the sake of good faith discussions, this may be something that the opposition may want to move in the other place and we consider it as a house amendment. I would personally be attracted to dropping the words 'within 14 days of the issuing of the direction', because I just do not know how long it might take to conclude the negotiations. If the opposition was minded to consider an amendment that they might move in the other place, I would refer them to the Health Care Act, section 28C(7), which provides:

The Chief Executive must, within 14 days after a service agreement is entered into or varied, publish the service agreement, or the agreement as varied, in a way that allows the agreement to be accessed by members of the public (including, for example, on the Internet).

It may well be that there is an amendment to that section, which said 'including any ministerial directions in relation to that agreement'. I appreciate that that may give us a problem with agreements that are not concluded, but I would suggest that, working with parliamentary counsel between the houses, the government would favourably consider a well-considered amendment.

The Hon. K.J. MAHER: I might indicate that we are not at all attracted to the idea of having a look at it in the lower house and not considering it here. I think most of us know that once it goes to the lower house any leverage that the opposition or crossbenchers might have is completely lost and the government can do entirely and exactly as they please. I think we would be much more attracted to the idea of, 'Let's leave it as it is and continue the discussion between the houses about reforming how this looks,' rather than taking it on the trust of the government that we may do something or not.

I accept the minister's invitation to continue to consider the issue between the houses, but I would suggest that we leave the amendment as it is stated here and the opposition will undertake to enter into constructive and good faith discussions with the minister as to whether that needs to be changed, whether there is a number other than 14 or, rather than a number, a period or a point in negotiations when that can be released. I moved the amendment as it is printed in order to make sure that there is the clause there that keeps it alive.

The Hon. S.G. WADE: For the reasons given, I cannot support it. There is no reason to think that within 14 days of a direction being issued the appropriate discussions have been had. Boards only meet once a month. I think the parliament needs to consider what accountability looks like and what sort of accountability it wants. It is quite common to have directions required to be tabled. The honourable member is not seeking to have it tabled in parliament but to have it published on a website. I would be more attracted to leaving out 'within 14 days of the issuing of the direction' and adding something like 'and in any event in the next annual report of the department'. That picks up the fact, too, that a service agreement may never be finalised.

I think this does need more work. I take the honourable member's point, that when we are diametrically opposed on issues, you would not want it to slip out of the council before you had settled your basic values, but I think the intent is shared. It is up to the council whether they want work to be done here or are happy to consider an amendment from the house, which has given it due consideration. But with all due respect, we cannot support the amendment as it currently stands.

The Hon. K.J. MAHER: I thank the minister. I think they are constructive suggestions the minister has made. I will indicate that the opposition would be open, rather than a definitive time line, to have it triggered by some form of event such as an annual report. We would be keen to discuss that. But, again, I would suggest that, unless we keep this placeholder in there, it does not necessarily create an incentive for a government to negotiate about what that might look like. I would suggest that we vote on the amendment as it currently is but with the knowledge that it may well be changed before it comes back to us in the council.

The Hon. T.A. FRANKS: To the mover of the amendment: which stakeholders support this amendment and who called for it?

The Hon. K.J. MAHER: I will take that question on notice and refer it to the shadow minister who has responsibility for this. I must admit I was not involved in every stakeholder meeting that occurred on this bill and on the amendments on this bill. However, I know groups such as the coalition led by SACOSS were instrumental in the development of many of the amendments that we see with us today.

The Hon. T.A. FRANKS: My office and I have had many conversations with SACOSS and those particular stakeholder groups, which is partly why I asked that particular question. The Greens will not be supporting this amendment.

The Hon. J.A. DARLEY: For the record, I will not be supporting it.

The Hon. C. BONAROS: I think both the Leader of the Government and the Leader of the Opposition have put up tangible alternatives, and I am confident this matter will be considered. I am happy to support the amendment on the basis that it will leave open the window for those discussions to take place in the other place.

The Hon. S.G. WADE: I thank the honourable member for her indication of support for the government's position. The more I look at it, the more I think we need to look at this, because the opposition amendment says 'issued by the Minister relating to the funding to be provided'. There is a lot more in service agreements than just funding. What about the services? What about the population cohorts that they are supposed to be engaging with? It is an issue the government is willing to consider, but we certainly do not think this amendment is worthy of support. We thank the crossbench for indicating that they are happy to work with us between the houses to look at a workable amendment.

Amendment negatived; clause passed.

Clause 10.

The Hon. S.G. WADE: I move:

Amendment No 2 [HealthWell–1]—

Page 6, after line 31—After inserted paragraph (ca) insert:

(cb) to ensure that the incorporated hospital—

(i) promotes a healthy workforce culture for and among staff employed to work within the incorporated hospital; and

(ii) implements measures to provide for and promote the health, safety and wellbeing of those staff within the workplace (including the psychosocial health, safety and wellbeing of staff); and

(iii) implements policies issued by the Chief Executive on workforce health, safety and welfare (including policies on workforce harassment and bullying), so far as those policies apply to the incorporated hospital.

I am happy to speak to this amendment in more depth, but I suggest it is almost consequential because what it is doing is putting on the local health network governing boards the responsibility to promote healthy workplace culture similarly as we put on the department earlier.

The Hon. C. BONAROS: SA-Best supports the amendment.

Amendment carried; clause as amended carried.

Clause 11 passed.

Clause 12.

The Hon. K.J. MAHER: I take this opportunity to reiterate to the committee the former ICAC commissioner's unprecedented commentary on this amendment. It is not often you see an independent statutory office holder, such as an ICAC commissioner, pass their views on a particular amendment or a particular legislative proposal by the government. The commissioner's written feedback warned that this amendment, and I quote:

…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.

We will be opposing this clause in the bill. We cannot in good conscience vote for an amendment that will, in the ICAC commissioner's own words, 'heighten the risk of the occurrence of conflicts of interest.'

The ICAC commissioner made it quite clear that these are matters for members of parliament if the parliament wishes to increase that conflict of interest. For these reasons, we cannot support the loosening of eligibility criteria. I would be interested to hear the government's view of the ICAC commissioner's view. I am advised that SACOSS supports the opposition opposing this amendment in line with what the ICAC commissioner has said in terms of loosening the eligibility criteria for the conflicts of interest.

The Hon. S.G. WADE: The opposition has selectively lifted a quote from a letter of the former Independent Commissioner Against Corruption to the shadow minister for health and wellbeing, namely, that the proposed amendments to the eligibility provisions of local health network governing boards would tend to heighten the risk of actual, perceived and potential conflicts of interest for those board members who may provide services to the relevant local health network.

The opposition, though, studiously chooses to ignore the rest of the letter, which rightly points out that an actual, perceived or potential conflict of interest is not in itself wrong or unethical and that the key is to identify, declare or manage the actual, perceived or potential conflict.

If I could go into more detail on this, the government does not treat conflict of interest lightly by any means. The letter of Commissioner Lander suggests that the proposed amendments to the eligibility provisions for local health network governing board members will tend to heighten the risk. However, I respectfully note that the letter incorrectly suggests that South Australia has not enshrined conflict of interest provisions for local health network governing boards in our health legislation as other Australian jurisdictions have done.

Through provisions of the Health Care Act that commenced on 1 July 2019, the same date the boards commenced operation, our LHN boards have the most extensive disclosure and confidentiality requirements in the state, far exceeding those requirements for other South Australian government boards, including the SA Water Board, the Essential Services Commission and the Super SA Board.

In the first instance, in making an appointment to an LHN board, the minister may consider whether a person's interest would represent such a conflict that it would not be practical for that person to discharge their duties on a governing board. The minister is then accountable to the public and the parliament in exercising that judgement.

In addition, section 33C of the Health Care Act requires a governing board member to act impartially and in the public interest in performing their duties. Section 33D of the Health Care Act requires a member to disclose any pecuniary and personal interest in relation to a matter being considered by the board, and the member must not vote or be present while the matter is being considered.

Section 33D of the Health Care Act requires any disclosure at a board or committee meeting to be recorded in the minutes of the meeting, which are to be published on the internet and in a register kept by the board and which must be reasonably available for inspection by a person. Governing board members are also accountable to their fellow board members, and boards are responsible for self-regulating with respect to their members' interests.

Failure of a member to disclose a personal or pecuniary interest will attract a maximum penalty of $25,000, a higher penalty than any other South Australian government board and the highest penalty of other health boards in other states. In addition to the duties in the Health Care Act, the LHN governing board members are subject to a range of other legal duties and criminal offences under other South Australian legislation.

Under the Public Sector (Honesty and Accountability) Act 1995, members are subject to the relevant duties of board members, a breach of which can result in a significant fine or even imprisonment, or both. Further, they can result in removal from the board. For example, members have a duty to act honestly, a duty to exercise care and diligence, a duty to not be involved in unauthorised transactions with the agency and a duty not to hold unauthorised interests in the agency.

Part 7 of the Criminal Law Consolidation Act 1935 sets out a number of criminal offences relating to current and former public officers, which includes current and former members of government boards. All such offences hold significant terms of imprisonment if convicted, for example, the offences of acting improperly, bribery or corruption, abuse of public office and demanding or requiring a benefit on the basis of public office.

Local health network governing board members are also subject to the provisions of the Independent Commissioner Against Corruption Act 2012. Sections 33B to 33D of the Health Care Act deem some interest holders ineligible for appointment to the board and impose a duty to act in the public interest and to declare interests.

Under the amendments to the Health Care Act, which came into operation on 1 July 2019 to establish the governing boards, it was intended that persons who work in an LHN be excluded from eligibility on the governing board for that LHN. Accordingly, the Health Care Act contains a provision at section 33B(5)(a) that a person is not eligible for appointment to the governing board if the person is employed to work at the incorporated hospital.

People are engaged to work in our health services in various ways outside of traditional employment arrangements, for example, visiting arrangements or other contractual arrangements, such as fee-for-service arrangements in regional areas. To ensure such employees are precluded from employment, the Health Care Act also provides that a person is not eligible for appointment if the person provides a service to the incorporated hospital. These provisions cover both clinical and non-clinical staff.

The key rationale and intent in drafting these provisions was to ensure that those who have involvement in the patient care at the LHN, either directly or through clinical governance processes, and who may be in a position to influence a governing board that there is no risk or anomaly in patient care, are excluded from board member eligibility. An example of where such influence within a board contributed to tragic consequences occurred at Djerriwarrh Health Services in Victoria, which experienced a high number of abnormal baby deaths that were potentially avoidable.

The Report of the Review of Hospital Safety and Quality Assurance in Victoria which followed this tragedy recommended that the relevant Victorian health legislation be amended to include a requirement that:

…at least one member of every public hospital board have contemporary knowledge of clinical practice and who is at least 'somewhat experienced'…

And that:

…no person appointed to a board have an appointment as a clinician, or be employed, at the same hospital or health service.

The legal interpretation of section 33B(5)(b) of the Health Care Act has taken a much wider application than intended, resulting in persons who may provide any form of service, including services such as cleaning and catering, and persons at a much further arm's length from the services, such as in circumstances of someone who works for a company that has a contract with the LHN being ineligible for appointment.

The proposed amendment to the eligibility requirements in clause 12 of the bill removes the overly broad, provides a service reference and refers to a person who is employed or engaged to work. The amended clause would mean that any person who is employed or engaged to work by an LHN to work at that network, either directly or through a commercial arrangement, will not be eligible to be appointed to the board, in line with the original intent.

A person considered to provide a service to the LHN, but who does not work at the network, could therefore be considered on a case-by-case basis for a board vacancy as part of a merit-based selection process through which one aspect considered would be an assessment of any potential conflict of interest. It is the government's view that there are sufficient statutory and other checks and balances to ensure that situations in which persons who do not work within the LHN but who may have potential pecuniary or personal interest in matters associated with the LHN are dealt with appropriately.

The state government strives to appoint persons of a very high calibre to government boards and by their very nature this means persons appointed will be likely to hold several other senior positions and have broad expertise and interests. The health system is complex and if members have experience in and knowledge of the public health system then we believe this is of benefit to the board and the LHN.

We do not believe it is in the best interests of the state and our health system to limit the ability to appoint talented persons with valuable and relevant skills, qualifications and experiences to a governing board. We believe the proposed amendment in relation to clause 12 of the bill strikes the right balance when coupled with the legislative disclosure requirements, duties and offences described above.

The Hon. T.A. FRANKS: I thank the minister for reading out the totality of the cherry-picked letter that was written by the former ICAC commissioner to the shadow minister for health and wellbeing. I ask the opposition to table that particular letter because, in its totality, it does not actually support the contention that they made in their support of this amendment. The Greens will be opposing the amendment.

The Hon. C. BONAROS: SA-Best will be opposing the amendment.

The Hon. J.A. DARLEY: I will be opposing the amendment.

Clause passed.

New clause 12A.

The Hon. K.J. MAHER: I move:

Amendment No 5 [Maher–1]—

Page 7, after line 9—After clause 12 insert:

12A—Amendment of section 33D—Disclosure of pecuniary or personal interest

Section 33D(8)(b)—delete 'reasonably available for inspection by any person' and substitute:

made available for inspection on a website accessible to the public and reasonably available for inspection in hard copy by any person

This amendment requires board members' disclosure of pecuniary or personal interest to be made available on a public website. Currently, these disclosures of conflicts of interest are only available by booking a time to physically attend the hospital and inspect a physical copy of the register, which makes these registers, for all practical purposes, inaccessible. We do not think this is an overly onerous imposition on local health networks and it allows the highest level of transparency possible within this regime.

The Hon. S.G. WADE: The government does not support the amendment. Under the current provisions of the act, any disclosures of personal or pecuniary interest are required to be recorded in the minutes of the meeting, which already are subsequently required to be published on the internet.

The board is also required to record those disclosures in a register, which is to be available for inspection by the public. Members of the public are free to access and peruse the minutes of governing board meetings at any time from the board's internet page. The provisions of the Members of Parliament (Register of Interests) Act only require the register of interests for members of this parliament to be available for inspection by the public at their request. Is the opposition suggesting that they are likewise inaccessible?

The government believes it is unreasonable to expect members of governing boards to adhere to a higher standard than members of parliament who are directly accountable to the public. Our local health network governing boards have the most extensive disclosure and conflict of interest requirements in the state, far exceeding those placed on other South Australian government boards, including the SA Water board, the Essential Services Commission and the Super SA board.

New clause negatived.

Clause 13 passed.

Progress reported; committee to sit again.


At 18:27 the council adjourned until Wednesday 2 December 2020 at 14:15.

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