Health Practitioner Regulation Bill 2009

Debate resumed from an earlier hour.

Mr JONATHAN O'DEA (Davidson) [6.15 p.m.]: I speak very briefly on the Health Practitioner Regulation Bill 2009 to emphasise one particular point. While acknowledging that the general aim of national registration is good I again point out that the execution has not been so good. The main point is that health practitioners are concerned and the bill obviously requires clarifications and amendments. I too have received various submissions from organisations, including the Australian Dental Association. But I want to focus on one submission from a dentist in my electorate, which, like the Oral Health Professionals Association submission, relates to the exclusion of dental technicians.

I emphasise the importance of dental technicians within the profession and respond to the comment from the member for Bathurst, who said that the rationale of the Government for excluding dental technicians was because "dental technicians have no involvement with patients". While dental technicians may not have any direct contact with patients what they create certainly does have direct contact with the mouths of patients. In his submission a dentist from my electorate, Frank Adler, indicated to me:

What the dentist generally does is take my creation from my hand and put it directly into the patient's mouth.

The exclusion of dental technicians from meeting registration requirements is disadvantageous to the public, because our work involves a high level of expertise and training. If dental technicians are not required to register, there is a high risk that the necessary level of expertise will not be met. This could lead to failure to observe proper infection control procedures, causing diseases such as Hepatitis C.

There is a danger that if dental technicians do not have to register as health professionals, the Therapeutic Goods Administration Regulations will not be complied with, resulting in failure of its protective aims.

I support the comments of the shadow Minister for Health.

Ms CARMEL TEBBUTT (Marrickville—Deputy Premier, and Minister for Health) [6.17 p.m.], in reply: I thank all members for their contributions to the debate on the Health Practitioners Regulation Bill 2009. The bill represents an important step towards improving Australia's health system through the consistent national registration of health professionals. By delivering national consistency in registration and accreditation arrangements for health practitioners, the legislation will help to improve accountability and flexibility in the provision of health services.

The bill will also help to protect the public by enabling the adoption of the highest possible registration and accreditation standards nationwide. The national scheme will deliver improved administrative efficiency for the growing number of practitioners who practice in more than one Australian jurisdiction by allowing them to move freely about the country without the need to hold multiple registrations. I believe that was an issue that was recognised by all members who contributed to the debate. It will promote a more flexible, responsible and sustainable health workforce.

The national scheme is also expected to provide improved safeguards for the public. National publicly accessible registers for health practitioners will go a long way to avoiding some of the appalling situations we have seen in the past where a board in one State or Territory has registered a practitioner unaware that he or she has been the subject of serious complaints and investigations in another jurisdiction. The modern reality is that the health workforce is highly mobile and will become increasingly so. It is therefore important that the regulatory systems for those professions are able to adapt to changes in education, the scope of professional practice, and modes of service delivery such as telehealth and e-health.

A number of members have raised concerns about the national law model being utilised for adoption by this national scheme. That model involves the passage of a law by one Parliament, in this case Queensland, with that law subsequently being adopted and applied by each other Parliament. I recognise that this approach has raised some disquiet among members, but it is a common approach designed to achieve national scheme legislation in areas where the constitutional powers lie with States and Territories. This approach was most recently used for the national gas law passed by this Parliament in June 2008 and it has previously been used for national schemes such as the National Consumer Credit Code. It is important to remember that nothing any Minister is doing can bind their Parliament. Each Parliament, including this Parliament, will decide for itself when debating this jurisdictions legislation whether to adopt and apply the national law as a law of its jurisdiction and, if so, how it is adopted.

There will be national consultation prior to any future amendments being agreed by the Australian Health Ministers' Advisory Council. Governments have already clearly demonstrated their commitment to consultation through the processes that have already been undertaken in developing the legislation to this point. Any amendments proposed in the future will be subject to similarly wide-ranging consultation before being submitted to the ministerial council for agreement. The national law process can work only if the legislation applying in each jurisdiction is the same in its essential aspects. Many members have spoken about the importance of national registration and accreditation. If they think that is an important goal, they should also accept that we must put in place processes to achieve it. If essential aspects such as those concerning registration processes fall out of alignment, the scheme will effectively become inoperative. If we want the benefits of national registration, we must have processes that make it happen.

While national uniformity can be achieved by each jurisdiction individually passing the necessary amendments, such a process would be extremely burdensome on the national scheme and create lengthy delays that would in many cases be completely unacceptable to the public and to the professions. We need to be conscious that, in developing a national scheme, compromises and concessions need to be made. The advice from my officials is that this is the best, most efficient and effective way that we can establish national registration and accreditation. New South Wales has maintained its separate complaints performance in health systems. That is a major achievement. I thank my interstate and territory ministerial colleagues for recognising the importance of this matter to New South Wales. I also congratulate my ministerial predecessor, the Hon. John Della Bosca, for his determination and commitment to retaining the New South Wales systems.

I now turn to some of the many issues raised by members during the debate. In response to the issues raised by the member for North Shore, I advise the House that extensive consultation has been carried out at both the national and State level with professional and consumer stakeholders. These are not new matters. The Australian Medical Association wrote to me stating:

AMA NSW welcomes the introduction of the Health Practitioner Regulation National Law (NSW) Bill 2009 to the NSW Parliament. This Bill represents the next stage in the medical profession's wish for a national registration of medical practitioners.

We again wish to formally acknowledge the considerable support of the NSW Government to date in advocating for the concerns of all health professionals in NSW. We appreciate that the decisions of the NSW Government to preserve our internationally recognised systems will ensure the best protection of the patients of NSW.

I acknowledge that the association has raised concerns about certain aspects of the legislation, and it is pursuing those at both a State and Federal level. However, I am advised that it generally welcomes the introduction of this legislation. I will now turn—

Mr Brad Hazzard: Oh, no!

Ms CARMEL TEBBUTT: I am sorry that the member objects to the time this is taking. He should speak to his colleague the member for North Shore. She seems to think that the quality of a speech is determined by its length. She has been extremely critical of the fact that I made a rather short agreement in principle speech on this legislation. I will now address in detail all the issues that have been raised by members in the debate. They have asked me to do that and that is exactly what I am doing.

The first issue raised was the accreditation arrangements. I will make a few issues very clear because members have made somewhat misleading and mischievous comments. Ministers do not have any control over accreditation processes and the national law does not give them any. Ministers will have no power whatsoever to direct a change to any existing accreditation standard. Accreditation of educational programs is a highly specialised process that is undertaken by experts in the field. The standards against which educational programs are accredited are to be developed and approved by the relevant registration boards. Again, this is a specialised process over which Ministers have no control.

I make it very clear: the accreditation processes in the national law do not provide for a lowering of professional or educational standards as some members have suggested. The only involvement that Ministers will retain in the approval of accreditation standards is the power to issue a direction about a new standard or a change to a standard in very limited circumstances. These powers will be exercised only if the new standard or the change will have a significant, substantive or negative impact on the recruitment or supply of health practitioners. When making such a direction, Ministers will also be required to consider the potential impact on the quality and safety of health care. To ensure transparency, the direction and the reasons for the direction must be published.

The Government is well aware of ongoing concerns in some professional groups about these accreditation issues. However, I note that many of those concerns were raised when the Council of Australian Governments first signed the agreement to establish a national registration scheme. Under that agreement, all accreditation standards were to be approved by the Australian Health Ministers' Advisory Council, with a more limited recommending role for national boards. Health professional groups raised their concern that that would place too much power and control of the process in the hands of the ministerial council. In response, extensive discussions took place with key groups. The result was a substantial change that transferred the approval power to the national boards and provided the ministerial council with a more limited oversight role to intervene where specific public interest issues arose. That demonstrates the long period of consultation and debate going back a number of years about this process and the changes that have been made to accommodate stakeholders' concerns.

The member for North Shore foreshadowed an unnecessary amendment that will be debated in the consideration in detail stage. As members are aware, Ministers are mindful of the public interest in all such decision-making. I make it clear that the underlying principle of this legislation is that it is in the public interest. If we seek to apply a specific public interest test in respect of one narrow part of the bill, that could imply that public interest is not a consideration across the entire bill. Clearly, that is not the case. We will debate the amendment in the consideration in detail stage, but the Government will not support it.

A number of members spoke about the regulations that may be made under the national law. To ensure that the national scheme is responsive to the future changes in the regulation of practitioners, the national law specifically allows national regulations to be made about a range of registration matters, including the length of time for which provisional registration would be allowed to provide national boards with the necessary degree of flexibility for this category of registration; to protect additional titles for health professionals and, if necessary, to add to the list of protected titles; and to authorise other health practitioners to carry out restricted practices, which is designed to address the case where other professions gain the necessary skills and expertise to safely carry out these restrictive practices in the future. A range of other specific areas are mentioned where there is an expectation that regulations will also be made. Of course, there is also the standard provision in the national law to allow regulations to be made on matters of a savings or transitional nature if that is required as implementation progresses.

However, it is not true to suggest that the regulations under the national law can be used to undermine parliamentary sovereignty. Regulations may only be made on limited subjects and only in those areas where the national law provides an express power. I now turn to the issue of mandatory reporting. The national law requires practitioners and employers such as hospital managers to report to the relevant national board a practitioner who is placing the public at risk of harm. There are also mandatory notification requirements in relation to impaired student registrants. Mandatory notification will be triggered when a practitioner is affected by drugs or alcohol in the workplace, engages in sexual misconduct in their professional practice, places the public at risk of substantial harm in the practitioner's practice of the profession because the practitioner has an impairment, or has placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

To a large extent these provisions reflect the existing law of New South Wales under the Medical Practice Act. As members may be aware, New South Wales was the first jurisdiction to introduce a comprehensive reporting regime in 2008. While this was somewhat controversial at the time, the New South Wales Medical Board has not reported any significant difficulties in the reporting of practitioners' conduct since the introduction of these provisions. The only variation between the current New South Wales reporting regime and that proposed in the national law is the inclusion of mandatory reporting in some cases of impairment. This is a matter that has been of significant concern to other jurisdictions and therefore compromises have been required. While not diminishing the importance of concerns raised about mandatory reporting of impairment, it is essential to remember that the system in place for managing impairment matters operates—

Pursuant to resolution business interrupted.

Mr JOHN AQUILINA: With the concurrence of the House I seek leave to enable the Minister to conclude her speech in reply.

Leave granted.

Ms CARMEL TEBBUTT: I thank the House. As I was saying, while not diminishing the importance of concerns that have been raised about mandatory reporting of impairment, it is essential to remember that the system in place for managing impairment matters operates in a supportive and rehabilitative manner, and practitioners who are reported simply on the basis of an impairment that has not given rise to any form of misconduct would be assisted by the cooperative approach rather than by the disciplinary system. Such an outcome is in the best interests of the practitioner, patients and the health system as a whole. The experience of the New South Wales Medical Board with mandatory reporting is such that the concerns that have been expressed are largely unfounded.

Dental technicians have been registered in New South Wales since 1975 and are also currently registered in the Australian Capital Territory, Queensland and South Australia. Dental prosthetists are currently registered in all jurisdictions under the intergovernmental agreement. Since the agreement was signed the Government identified 15 professions appropriate for regulation under the scheme. Dental prosthetists were included; dental technicians were not. The essential distinction between dental technicians and dental prosthetists is that prosthetists may attend upon and deal directly with their own patients while dental technicians may not see patients and may only undertake technical work on the written order of a dentist or a dental prosthetist. In other words, there is always another registered practitioner between the patient and the technician, another practitioner who is responsible for patient satisfaction. On that basis and on a genuine independent assessment of the risks to patients associated with the practice of dental technicians, dental technicians have not been included in the national scheme. Accordingly, when the national scheme commences the Dental Technicians Registration Act will be repealed and dental technicians will no longer be registered in New South Wales.

Psychological testing was also raised by the member for North Shore. New South Wales has never had restrictions on the use of psychological testing or any practice restrictions in the area of psychology. The result is that the use of psychological tests is not in any practical sense restricted by legislation in any Australian jurisdiction. Therefore, suggestions that not including such a restriction in the national law is a retrograde step are false and misleading. I am advised there is no objective evidence that psychological tests are misused to the detriment of patients or the public.

In view of the concerns raised by doctors trained overseas I can advise that the national law does not purport to change the mechanisms by which training and education are recognised. If the national law did make such changes, Ministers would be condemned by the profession for interfering in the accreditation process. In concluding, I take this opportunity to acknowledge the contributions made by both government officials and the health practitioners to the development of the legislation now before Parliament. I particularly thank the officers of the New South Wales Parliamentary Counsel's office who have devoted a considerable amount of energy to this task. The national law represents a drafting task that has been prolonged and difficult but which the drafters have always tackled with professionalism and an abundance of good grace. I also thank the officers from New South Wales Health who have been intimately involved in this process and who have spent a good deal of time on it.

I also thank the many health professional board members, professional association members, clinicians and members of the public who have taken the time to read discussion papers, write submissions, attend forums and generally offer the benefit of their experience and knowledge to help devise the best regulatory system that we can develop. They have given their time freely with no expectation of recompense or even acknowledgement. The commitment of their energy and enthusiasm to the benefit of the broader community should be acknowledged and applauded. I thank them for it. I commend the bill to the House.

Mr JOHN AQUILINA: Again with the concurrence of the House I wish to give an undertaking to the Opposition that this matter will be revisited again after 8.30 p.m.

Mr BRAD HAZZARD: The Opposition accepts that undertaking and we look forward to considering the bill at 8.30 p.m. or as soon as possible thereafter

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.

Consideration in detail set down as an order of the day for a later hour.

[The Acting-Speaker (Mr Matthew Morris) left the chair at 6.36 p.m. The House resumed at7.30 p.m.]