Health Practitioner Regulation National Law (South Australia) Bill

24 Jun 2010 archivespeech

This speech is in relation to the Health Practitioner Regulation National Law (South Australia) Bill and indicates that the Hon. J.M.A. LENSINK is unable to support the bill.

The Hon. J.M.A. LENSINK: I move:

Page 7—

Line 27—Delete 'The' and substitute 'Subject to subsection (2), the'

After line 33—Insert:

(2) An amendment to the Health Practitioner Regulation National Law (as referred to in subsection (1)) enacted by the Parliament of Queensland after 1 July 2010 does not apply as a law of this jurisdiction under subsection (1) unless it has been adopted (with or without modification) by an Act of the Parliament of South Australia.

In relation to the amendments, I have been scurrying around consulting people because amendment No. 3 standing in my name does several things, so I indicate at this stage that I will be moving it in an amended form.

Amendment No. 2 is consequential to amendment No. 1, so this is the test clause in that the existing provisions within the bill mean that, as soon as Queensland amends its bill (bill C), South Australia's laws are immediately amended to that effect. In my second reading contribution I talked about the fact that South Australia has very limited means of changing either through the ministerial council which would be by negotiation or by pulling out of the system entirely if it disagreed with some things that had been brought into effect. So what this clause means is that South Australia does not automatically adopt amendments which are made to the Queensland legislation, which would be at the direction of the ministerial council; therefore, the parliament would have an opportunity to consider those things, and I would envisage that in most instances it would agree to accept it so those changes would come into effect. There may be some delay but that would be up to the government to get things drafted and get things into the system.
The Hon. G.E. GAGO: The government opposes this amendment. The whole purpose of the legislative model that adopts a national law and applies it as a law of its own jurisdiction is to ensure a standard approach for achieving nationally consistent legislation in an efficient manner where the constitutional powers lie with the states and territories. The national law process can only work effectively where legislation applying in each jurisdiction is the same. If essential aspects such as those concerning registration process fall out of alignment, the scheme will effectively become inoperative from a national perspective.

While national uniformity can be obtained by each jurisdiction individually passing necessary amendments, such a process obviously will lend itself to being extremely cumbersome and potentially it will create lengthy delays that, in many cases, will be completely unacceptable to the public and the professions. If South Australia were to adopt this approach, there may be situations when South Australian practitioners are not covered by the national law and their national registration could then be compromised while waiting for the South Australian parliament to pass the required amendments.

The intergovernmental agreement, which forms the basis for the national law and was endorsed by all governments, establishes a process for making future amendments to the national law. This agreement ensures that all jurisdictions can participate and reflect their concerns in any proposed changes. This process ensures amendments must be agreed to by consensus by the ministerial council before Queensland, as the host jurisdiction, can progress them through the Queensland parliamentary process.

As part of this agreement there must be a national consultation for any substantive future amendments prior to them being agreed by the ministerial council. Changes cannot proceed without consideration by all health ministers and require their consensus to make the changes; therefore, there is a reasonable an effective mechanism established to ensure that South Australia's interests are served and one that will also preserve the need for a nationally consistent approach.

The Hon. J.M.A. LENSINK: There was a fair amount of hyperbole in the minister's reason why the government is not accepting this particular amendment. In terms of her stating that it will be an inefficient process, that is a reflection on the South Australian parliament and, if the process of the South Australian parliament is slow in taking on any proposed changes, then that would be entirely in the hands of the government. So I think that is a nonsense argument.

In terms of the undermining of any form of the uniformity of this legislation making the whole scheme fall apart, I remind the committee that, as I outlined last night, New South Wales has already succeeded in undermining a large section of this bill by having its practitioners excluded from the new NRAS process. Furthermore, the Western Australian parliament has the entire set of clauses in its own parliament. So, in effect, if they are going to have to go through the whole process of amending their own statutes, I do not see why South Australia having parliamentary oversight would undermine the scheme.

The committee divided on the amendments:

AYES (10)

Bressington, A.

Darley, J.A.

Dawkins, J.S.L.

Jennings, T.A.

Lee, J.S.

Lensink, J.M.A. (teller)

Parnell, M.

Ridgway, D.W.

Stephens, T.J.

Wade, S.G.

 NOES (9)

Brokenshire, R.L.

Finnigan, B.V.

Gago, G.E. (teller)

Gazzola, J.M.

Holloway, P.

Hood, D.G.E.

Vincent, K.L.

Wortley, R.P.

Zollo, C.


Lucas, R.I.

Hunter, I.K.

Majority of 1 for the ayes.

Amendments thus carried; clause as amended passed.

Clauses 5 to 7 passed.

New clauses 7A and 7B.

The Hon. J.M.A. LENSINK: I move:

Page 8, after line 21—Insert:

7A—Specific modifications in relation to application of Health Practitioner Regulation National Law

(1) Without limiting subsection (1) of section 115 of the Health Practitioner Regulation National Law (South Australia), it will be taken to be an offence against that subsection if a person knowingly or recklessly takes or uses the title 'surgeon' or 'physician' unless the person is registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student).

(2) Without limiting subsection (2) of section 115 of the Health Practitioner Regulation National Law (South Australia), it will be taken to be an offence against that subsection if a person knowingly or recklessly takes or uses the title 'surgeon' or 'physician' in relation to another person unless the other person is registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student).

(3) Subsections (1) and (2)—

(a) do not prevent the use of the title 'dental surgeon' by a person registered under the Health Practitioner Regulation National Law— (i) to practise in the dental profession as a dentist (other than as a student); and (ii) in the dentist division of that profession; and

(b) do not prevent the use of the title 'veterinary surgeon' by a person who is registered as a veterinary surgeon under the law of this State.

(4) Section 141 of the Health Practitioner Regulation National Law (South Australia) does not apply— (a) if the first health practitioner within the meaning of that section forms the reasonable belief referred to in subsection (1) of that section in the course of practising the first health practitioner's profession while employed or otherwise engaged (including in an unpaid capacity) by a designated body; or (b) if the first health practitioner is the spouse or domestic partner of the second health practitioner under that section.

(5) The power conferred by section 245 of the Health Practitioner Regulation National Law (South Australia) to make regulations for the purposes of that Law does not extend to making a regulation relating to the safe operation or use by a medical radiation practitioner of radiation apparatus or a radioactive substance as those terms are defined in the Radiation Protection and Control Act 1982.

(6) In this section— designated body means—

(a) the Doctors Health Advisory Service; or (b) any other body brought within the ambit of this definition by the regulations; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared under that Act or not; spouse—a person is the spouse of another if they are legally married.

7B—Policy directions

The Minister must, in exercising functions as a member of the Ministerial Council under section 11 of the Health Practitioner Regulation National Law in relation to a particular proposed accreditation standard, or a particular proposed amendment of an accreditation standard, for a health profession, have regard to the public interest.

Amendment No. 3 does several things all at the same time. I will explain each of the subclauses and, when we vote, we will vote on them separately. On the first page of the amendments new clause 7A is headed 'Specific modifications in relation to application of health practitioner regulation national law'. Subclauses (1), (2) and (3) are a set and relate to the definition of 'surgeon'.

All these amendments, which have been tabled in my name, come from the Australian Medical Association, and I believe it circulated a letter it wrote to the Chief Executive of SA Health, along with some suggested draft amendments, which have been redrafted for us by parliamentary counsel. So, if members are familiar with those, this is the explanation that they have provided in relation to subclauses (1), (2) and (3), which seek additional protections of the titles 'surgeon' and 'physician'. The AMA has intimated that it is concerned that the legislation offers no protection around the use of titles.

As the Queensland legislation stands, non-medical health practitioners will be able to use the title 'physician' or 'surgeon'. This is dangerous and misleading as members of the public could wrongly believe that they are seeing a medical practitioner. The community must have confidence that this new national scheme will ensure safety, quality and high standards in medical training and, ultimately, in the provision of medical services themselves. A failure to protect these titles for the medical profession will not provide the community with that confidence and protection.

If we go over the page, subclause (4), which refers to section 141 of the Health Practitioner Regulation National Law Act, and subclause (6) are also a set. They relate to seeking additional exemptions for mandatory reporting. The AMA has provided advice on this as follows:

The Queensland act fails to provide additional exemptions from mandatory reporting for spouses, treating doctors and other professionals—such as doctors working in doctors' advisory health services—who provide support to doctors with health issues. Without changes, we risk instituting a system where doctors may not seek necessary and needed medical care because their treating doctors will be obliged to report them, and thus may pose a risk to both themselves and the members of the public that they treat.

Subclause (5) relates to radiation practitioners. Dr McFetridge has sought to have this particular subclause drafted because he has concerns that regulations may limit the ability of health and veterinary practitioners to continue to use radiation—X-rays and the like.

The final section, 7B—Policy Directions—is a public interest test. I apologise, because I am not sure whether I heard a response to my question of the minister last night in relation to the Senate committee recommendations whereby the ministerial council must provide some kind of public interest test: if the accreditation standards are reduced in any way and there may be a perceived risk to public safety, firstly, they must consult and, secondly, they must publish the decision as to why they have reduced those standards. I cannot recall whether the minister had a reply on that, so I hope that that might form part of her response to these amendments.

I hope that that adequately explains things for the benefit of members. I wanted us to vote on these separately, because I appreciate that some members may support certain aspects but not all of them. I did not want the whole thing to fall for the sake of not moving them separately.

The Hon. G.E. GAGO: The government will be opposing this amendment. The amendment will immediately result in South Australia having different requirements in relation to the national law for every other state and territory. It relation to (1), (2) and (3), protection of title, the intent of title protection is to protect members of the public by ensuring that they may be confident that the person using the title is, in fact, registered under the law and therefore appropriately qualified and competent to practise the profession.

The national law creates an offence under sections 116 and 117 in relation to the use of certain specific titles associated with the health professions regulated under the national scheme. These provisions ensure that only persons who are registered under the national law may use a title associated with that profession. The proposed titles 'surgeon' and 'physician' are not protected under South Australia's Medical Practice Act 2004. This has not presented any problems that the government is aware of.

The new National Medical Board of Australia established under the national law has issued registration standards which have been approved by the ministerial council and include a list of names, with specialists including specialties describing physicians and surgeons, providing specialist title protection for professions included on the list. The provisions in the national law are sufficient to provide adequate protection for the safety of the public without the need for specific title protection as proposed by this amendment. The registration standards listing the named specialists approved by the Medical Board of Australia ensure national consistency for the medical profession.

In relation to subclauses (4) and (6), mandatory reporting requirements under national law will ensure that patient safety is foremost and that if any issues of unprofessional conduct arise they are reported appropriately and as early as possible. The basis for such reporting is referred to as 'notifiable conduct'. Notifiable conduct in relation to a registered health practitioner provides that the practitioner has:

(a) practised while intoxicated by alcohol or drugs; or

(b) engaged in sexual misconduct while practising; or

(c) placed the public at risk of substantial harm because they have practised with an impairment (e.g. physical or mental impairment, disability, condition or disorder); or

(d) placed the public at risk of harm because they have practised in a way that constitutes a significant departure from accepted professional standards.

The intent of the bill is to ensure that all registered practitioners are required to work together to maintain high standards of conduct. All registered health practitioners and employers have a responsibility to report notifiable conduct in relation to a registered health practitioner.
The proposed amendment would significantly weaken the protection of the public by exempting persons who would reasonably have a responsibility as members of a registered profession to notify a board of such conduct.

By adopting this amendment South Australia would be adopting a lower standard for health practitioners in this state than any other jurisdiction in Australia. A consistent national standard is essential for the protection of the public and the security of the profession. It is important that if someone is practising in a way that may put a member of the public at risk they should be reported.

Subclause (5) relates to the regulation of radiation apparatus or a radioactive substance by a medical radiation practitioner. The national law concerns only the regulation of health professions and individual practitioners, not the licensing of radiation apparatus and practitioners involved in using such equipment. This occurs under the Radiation Protection and Control Act 1982. Any practitioners that operate such equipment are required to be appropriately trained in the use of that equipment and their licensing occurs under the Radiation Protection and Control Act 1982.
I understand that in relation to the question about accreditation standards in new clause 7B, the government is opposed to that. This amendment will require the minister when exercising his or her functions as a member of the ministerial council in relation to issuing a policy direction to an accredited standard to have regard to the public interest.

The government is opposing this amendment. The powers and functions of the ministerial council are broad enough for it to consider the public interest in relation to accreditation standards or any other matter on which it may issue a direction. Clause 11 enables the ministerial council to issue a policy direction relating to a proposed accreditation standard or a particular proposed amendment of an accreditation standard for a health profession. In particular, clause 11(4) requires that, if the ministerial council intends to make a policy correction to a national board concerning an accreditation standard, it must take into account the potential impact on the quality and safety of health care. Therefore, in deciding to issue such a direction it will be essential for the ministerial council to consider the public interest. So, the government believes the public interest is already protected in these matters.

The Hon. J.M.A. LENSINK: Can I just clarify that the clauses the minister just referred to are in the Health Practitioner Regulation National Law Bill that has been passed by the Queensland parliament?

The Hon. G.E. GAGO: I am advised that that is correct. New clauses negatived.

Clauses 8 to 12 passed.

Clause 13.

The Hon. G.E. GAGO: I move:

Page 10, lines 30 and 31—Delete subclause (1) and substitute:

(1) A person may be appointed to be the Registrar or a Deputy Registrar of the Tribunal on a basis determined by the minister.

This amendment changes the appointment process for the Registrar of the South Australian Health Practitioners Tribunal. The method of appointment for the Registrar has been reconsidered in the context of the proposed administrative arrangements for the tribunal. An opportunity exists to collocate the tribunal with the Industrial Court, which will allow resources to be shared between the two bodies.

On this basis, the current Industrial Court Registrar is proposed to be appointed as the Registrar of the South Australian Health Practitioners Tribunal. The appointment of the Industrial Court Registrar under the Fair Work Act 1994 is not made by the Governor. To require the appointment of the Registrar of the South Australian Health Practitioners Tribunal to be made by the Governor would be incongruous for a position which will be held in conjunction with another position which does not require the same level of appointment.

There are many other examples where registrars are not appointed by the Governor, including the Supreme or District Court registrars. The Registrar of the Equal Opportunity Tribunal and the Guardianship Board are Public Service employees. The Registrar of the South Australian Health Practitioners Tribunal is a support staff role, and as such it is not considered that the appointment needs a high level of cabinet scrutiny and government appointment.

To change the appointment process to that proposed by this amendment will streamline the appointment process and reduce red tape. The deletion of the clause in relation to the terms and conditions of this is consequential to the proposed appointment method.

The Hon. J.M.A. LENSINK: The opposition supports this amendment. We believe that the Industrial Court probably is a little idle these days, and it is an appropriate place for these issues to be dealt with.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 10, lines 34 and 35—Delete subclause (3)

Clause as amended passed.

Clauses 14 to 25 passed.

Clause 26.

The Hon. G.E. GAGO: I move:

Page 17, line 3—Delete 'to practise'

This amendment clarifies the definition of a 'pharmacist' as it relates to pharmacy ownership in South Australia. The definition of a 'pharmacist' is amended for the purpose of the pharmacy practice provisions as they relate to pharmacy ownership. The definition in the bill implies that pharmacists must be practising in order to own a pharmacy, and this was not the government's intention. The effect of this amendment will ensure that any pharmacist registered under the national law may own a pharmacy whether or not they are practising or non-practising.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 20, after line 32—Insert:

(8a) However—

(a) a trust cannot be a trustee pharmacy services provider for the purposes of this part unless the trust conforms with each of the following: (i) each trustee must be—

(A) a pharmacist;

or (B) a prescribed relative of a pharmacist;

or (C) a person of a prescribed class;

and (ii) at least one trustee must be a pharmacist;

and (iii) any beneficiary of the trust must be a pharmacist or a prescribed relative of a pharmacist;

and (b) a trust ceases to be a trustee pharmacy services provider for the purposes of this part if the trust ceases to satisfy the requirements of paragraph (a) in any respect.

This amendment clarifies the definition of 'trustee services provider'. The concept of a trustee services provider was introduced in this bill as a means to restrict the ability of individuals from using trusts to increase the number of pharmacies that may be owned. However, the definition in the bill provides for others other than pharmacists to own a pharmacy through the use of trusts. This was not the policy intent. This amendment brings the trustee pharmacy services provider into line with other pharmacy services providers under the bill.
Amendment carried; clause as amended passed.

Clauses 27 to 42 passed.

Clause 43.

The Hon. J.M.A. LENSINK: I rise to speak to this with very mixed feelings. As I said in my second reading speech, we fought very hard to ensure that these provisions were retained in the South Australian statute and that was against a lot of opposition from the government which I think had just given up on this issue entirely and agreed with whatever national organisation it was that this was somehow uncompetitive.

I completely agree with the sentiment of restricting tests of personality or intelligence to those who are properly trained in it. A few years ago, when we debated the psychological practices bill in this place, I used the example of a friend of mine who had some test applied to him in a job application situation where it was very narrowly cast. I will not go into the whole background but, needless to say, he is a scientist and the questions were framed in such a way that it was either a yes/no answer, so he came out of it looking as though he had no personal skills, which was not the case.

In fact, as a personal reference, that was what tipped the balance for him in getting his job and saying, 'No, I don't think that test result is accurate.' That is just one example, but I do not think that clerical officers should be applying these. I think they should be performed by psychologists who do not just have that base qualification but have some appropriate form of training in that area.

However, in terms of the technicality, I am very pleased to hear in the minister's response that the psychological board is taking this issue a lot more seriously than has been done in the past, and therefore I am hopeful that there may be some outcome which will make sure that this issue does have some regulation.

The other reason why I am not able to support this is because of the timing of it. Because of our party room rules, this has not been included as one of the considerations. I am bound by those rules and so am unable to support it, but I do congratulate the Greens on having the clause brought in. I did actually think that it would be quite technically difficult to have this retained in our legislation but I am unable to support it for those reasons.