Health Practitioner Regulation National Law (South Australia) Bill

22 Jun 2010 archivespeech

This speech is regarding the Health Practitioner Regulation National Law (South Australia) Bill. It indicates that the Liberal Party support the legislation but have concerns in relation to the constitutionality and other things.

The Hon. J.M.A. LENSINK (18:06): I will make some comments in relation to this bill and state that, indeed, as my colleague the Hon. Stephen Wade commented, in principle, we certainly support this legislation but have concerns in relation to the constitutionality and other things which I do not propose to go into in any detail. That has been very adequately covered by my colleague the Hon. Stephen Wade and also in another place by the shadow minister for health, the member for Morphett Dr Duncan McFetridge. On behalf of the Liberal Party, I have handled a number of the health professional acts over the years that I have been a member of this place. In some cases, those acts have been on the South Australian statute book for several decades and have served the purpose of protecting consumers through registration, accreditation of training courses and having some established professional procedures to deal with complaints, misdemeanours and so forth.

There was a process of revising all the health practitioner bills, starting with the Nursing and Midwifery Act, followed by the Medical Practice Act and a number of the allied health professionals. Throughout that process it was evident that each profession has unique characteristics, and the parliament managed very effectively to recognise that each profession has its own origins and practices, which can be difficult for people from other disciplines to understand in detail, particularly when it comes to disciplinary matters. Those reviews of the health professional acts followed a national competition review to modernise the acts to take into account changed practices over the years.

With the increased mobility of the health workforce, mutual recognition has served to assist, but it is broadly accepted that it has its limitations and has been superseded by the need for a national system. I may be guilty of repeating comments that have already been stated, but for the sake of completion of the debate they are worth covering again.

In relation to this legislation, which is the national regulation of health professionals, in 2005 the Productivity Commission was tasked with reporting on the health workforce and, as has been stated, some 90 boards were administering multiple pieces of legislation, which naturally would lead to variations in procedures and operational capability. With the findings of the Productivity Commission, its key recommendation was to provide for national registration standards for health professions and for the creation of a national registration board with supporting professional panels. Various models have been mooted over that time.

Personally I had concerns with some of them, which would have lacked the sort of peer review that is required for health professions. One of the examples I would have given at some stage was in relation to medical specialties, and this issue came up in relation to the SARC inquiry into the Medical Board. We have had issues in South Australia with practitioners and complaints have been made, and so forth.

In relation to the Medical Board, I had some significant disagreements with a former member of this place, the Hon. Nick Xenophon, because his belief was that the ultimate arbiter of Medical Board complaints ought to be via some judicial mechanism. However, I believe strongly in peer review as peers are best placed to understand those situations, to pass judgment, and to understand the scope and appropriateness of certain practices. In 2008 all Australian governments, including South Australia, signed on to the intergovernmental agreement to implement a national registration scheme, and the Hon. Stephen Wade has referred to clauses of that instrument.

The key aims of this bill are the twin aims of protection of the public and providing workforce mobility. We are seeing a greater influx of overseas-trained health professionals, and that is a positive thing for the Australian health system in that we, particularly with an ageing population, need more professionals, and they will naturally be more mobile as the global workforce is of itself more mobile.

I will add to the comments of the Hons Tammy Jennings and Stephen Wade in relation to the timing of the passage of this bill and will confirm their comments. The government wants the bill through by the end of the financial year, but it could have recalled parliament earlier had it considered the bill to be so important. I understand that, if the bill does not pass by 1 July, health practitioners and others will continue to be covered by existing acts and boards.

The minister has dragged the chain on consulting on the bill. The Queensland legislation passed in October 2009 and our shadow spokesperson, Dr Duncan McFetridge, took the trouble to write to the minister in September last year because he knew that this would be coming up, that it was important, that it had a start date of 1 July this year, that there would be an intervening election and that it was important that it be firmly placed on the public agenda. The minister replied that the draft bill would be available ‘for public consultation over coming months’. However, this bill was not released until late January this year, with four weeks given for consultation.

I note that, in the minister's second reading explanation, he made a case as to why the bill must be passed by this parliament by 30 June. However, I do not appreciate emotional blackmail towards the parliament and, given the efforts of the member for Morphett, it is quite shabby to use that. As the Hon. Tammy Jennings has reported to the parliament, there is some chaos in the community as to what will happen. I appreciate that health professionals want this bill passed and have it sorted, and we are certainly not intending to hold it up in any way.

Returning to the bill, we support the intent but, as the Hon. Stephen Wade has outlined, we prefer the Western Australian model, which is corresponding legislation rather than adopting the legislation. Two bills went through the Queensland parliament, one which has been referred to colloquially as Bill A or its full title the Health Practitioner (Regulation) (Administrative Arrangements) National Law Act 2002, which established interim administrative and governance arrangements. Bill B, or as it is officially titled the Health Practitioner (Regulation) National Law Act 2009, passed the Queensland parliament on 29 October 2009. The bill before us is known as Bill C, and all states and territories, except Tasmania, have now passed laws to enable the transfer of their registration system to the national registration and accreditation scheme (NRAS), to commence on 1 July 2010. The effect of this bill is to adopt Queensland's Bill B. We have a fundamental issue with clause 4, and some other amendments which have been tabled for the benefit of members.

I note that in his contribution, the member for Morphett provided some constitutional expert advice about this concept of adoption versus corresponding legislation. I will not repeat those comments. I also note that he advocated the usefulness of the upper house, which is not something we hear from our House of Assembly colleagues very often. He expressed his love (I think he used that word) and admiration of the work we do, and for that expression of support for this place alone, I urge my colleagues to consider his proposals.

The government provided a paper to members of this place that was aimed at addressing some concerns that have been expressed about undermining the sovereignty of the parliament. Interestingly to me, the paper, in arguing that a nationally consistent approach is best served using the adopting model, referred to patient safety and scope of practice issues.

The example given was that current restrictions to spinal manipulation were only limited to the cervical spine, or neck. However, it could be anticipated in future that restrictions should be extended to the rest of the spine, which would enable a faster response to emerging concerns regarding the need for safer practice and which practitioners should be able to use which techniques, or scope of practice. The paper referred to chiropractors, but it is also a practice that is common among physiotherapists, even those who do not have further qualifications in that area.

I found that argument interesting because the flip side of implementing nationwide change through the changing of an act of parliament in the Queensland jurisdiction is the possibility that at some point the ministerial council may dumb down qualifications, training and scope of practice to address skills shortages or to cut training costs, which certainly would not be in the interests of patient safety.

This issue was actually raised in the Senate Community Affairs Legislation Committee, which reported in August last year. The inquiry made three recommendations which have been adopted by the Australian Health Workforce Ministerial Council. These recommendations were that, in accreditation matters, when the ministerial council makes a decision which may be perceived as having a negative impact on standards, it must consider the impact on safety and care; it must also publish the reasons for such decisions; and there were other changes to the composition of boards to enable them to be more flexible, rather than a one-size-fits-all approach.

At this point I will make a slight diversion to put a question on the record. The Hon. Ann Bressington referred to the recent passing of the credit bills that have the effect of nationalising consumer credit law. The rationale for those was that nationalisation would mean harmonisation between the states: it is easier for one national law to keep pace with market changes, as it is for one regulator to enforce the laws.

I think that there is a significant difference between the transfer of credit to the commonwealth and what this parliament is being asked to do here. I return, in this sense, to part of the constitutional debates. In relation to consumer credit transferring from the states to the commonwealth, the scope of regulation in relation to consumer credit in 2010 really is a mere remnant of what it once was when we compare the regulating bodies, OCBA and ASIC. ASIC is a commonwealth resourced, muscular organisation, which is focused on many financial instruments already, including banking, insurance and so forth, whereas OCBA has a broader role and necessarily lacks that sort of financial expertise. So what we have before us today is a shift from a set of fully operational state-based boards, which deal on a day-to-day basis with registration, accreditation and disciplinary matters. Their primary responsibility is going to transfer to the new NRAS. I suspect there will be a number of teething problems.

So that is by way of a fairly long introduction to my question, which is that in relation to the consumer credit bills, the relevant minister sought, through the ministerial council process, a number of what she referred to as 'carveouts'. My question for the government is: were any of these sought, either by the South Australian minister, or indeed any other minister? Did the ministerial council discuss unintended consequences upon any of our state's health statutes? There is a list of statutes in clause 7 of the bill, but it does not refer to any health-related ones.

It is interesting to note how this new ministerial council will be structured. The Hon. Stephen Wade stated that, contrary to the information provided in the briefing, it needs a majority decision, not a unanimous one, to change the legislation. So, in effect, if South Australia disagrees with the majority decision, it does not have a remedy, let alone the South Australian parliament having any remedy if it disagrees with something that is done by that council.

In theory, if South Australia does not agree with the amendments of the ministerial council, which will in effect change Bill B, it can withdraw from the scheme. However, this must surely be academic, as what is the likelihood of any jurisdiction seeking to re-establish all of those statutes and systems that it has had in place, at what cost and inconvenience in the meantime to health professionals, and a further risk of completely stuffing up the process and having some sort of embarrassing disaster take place by some dodgy person managing to get themselves registered in that state? I would have thought that it would be far more likely that an agreed jurisdiction would have to negotiate at ministerial council level, but this provides no guarantee that the jurisdiction will get what it needs.

For that reason, we have an amendment to the bill, which will state that the South Australian parliament is not automatically required to adopt any changes to Bill B. I seek leave to conclude my remarks.

Leave granted; debate adjourned.