Physiotherapists Bill

About this Item
SpeakersMacdonald The Hon Ian; Jobling The Hon John; Rhiannon Ms Lee; Jones The Hon Richard; Moppett The Hon Doug; Chesterfield-Evans The Hon Dr Arthur
BusinessBill, Second Reading


Page: 17102
    Second Reading

    The Hon. IAN MACDONALD (Parliamentary Secretary) [6.08 p.m.]: I move:
        That this bill be now read a second time.
    I seek leave to have the second reading speech incorporated in Hansard.

    Leave granted.
        I have pleasure in introducing the Physiotherapists Bill. This Bill will protect the health and safety of the public of New South Wales by providing for effective regulation that ensures physiotherapists are fit to practise.
        The Bill repeals the Physiotherapists Registration Act 1945 and replaces it with new legislation for the registration of physiotherapists which is appropriately updated so as to strengthen and improve regulation in a similar fashion to improvements that have been made to the regulatory systems for other health professionals, such as medical practitioners.

        This Bill is the result of an extensive review process that has taken place over the last two years. The review has involved detailed consultation with all relevant stakeholders and in particular the physiotherapy profession.

        The composition of the Physiotherapists Registration Board will be revised by this Bill. The Board will now comprise eleven members including physiotherapists elected by physiotherapists and physiotherapists involved in education and recommended by professional associations, an officer of the Department of Health or the public health system, community representatives, and a legal practitioner.

        Honourable members will recall that the Chiropractors Bill 2001, which was recently passed by this chamber, defined and restricted the practice of spinal manipulation, with the practice being restricted to chiropractors, medical practitioners, osteopaths and physiotherapists. The restriction has been placed in the Public Health Act in order to underpin its public health and safety rationale. This Bill takes a similar approach to the use of certain electrophysical treatments.

        The term "electrophysical treatment" refers to the therapeutic application of electric currents to muscles and tissues and is a treatment approach which is in widespread use amongst practitioners in manual therapies.

        This Bill will amend the Public Health Act to restrict the use of prescribed electrophysical treatments to chiropractors, medical practitioners, osteopaths, physiotherapists and podiatrists.

        I turn now to the specific provisions of the Bill.

        To ensure that the welfare of patients is the paramount consideration in administering the Act, clause 3 of the Bill states that the objective of the legislation is to protect the health and safety of the public by providing mechanisms to ensure that physiotherapists are fit to practise. The Bill will achieve this objective through a number of initiatives.

        The first of these initiatives is to provide that the Board may refuse to register a person, or register him or her subject to conditions, where it is not satisfied that he or she is competent to practise.

        For the first time it will be an express requirement that applicants for registration must be competent to practise. As part of the requirement for competence, clause 15 of the Bill provides that the Physiotherapists Registration Board will have the power to conduct an inquiry into a person's competence. If, following an inquiry, the Board is not satisfied as to the applicant's competence it will be able to grant registration subject to conditions or refuse to register the applicant.

        This power to conduct an inquiry will also apply when a person applies to have their registration restored.

        The second initiative within the Bill, to ensure that physiotherapists maintain their competence, is the introduction of a more robust annual renewal process. This process will require practitioners to submit annual declarations to the Board on renewal of registration.

        Clause 21 of the Bill provides that these declarations will cover criminal convictions and findings, ongoing good character, the refusal by another jurisdiction to register the person, the details of any suspension or cancellation of registration or the imposition of conditions in another jurisdiction or by another health registration board in New South Wales, whether the practitioner is registered with another health registration board in New South Wales, significant physical or mental illness that is likely to affect a physiotherapists ability to practise, and continuing professional education activities.

        In addition to practitioners being required to provide the Board with an annual declaration detailing any criminal findings, clauses 22 and 23 of the Bill also provide for the Board to be notified about practitioners who are the subject of criminal findings. Under these provisions:

        • Courts will be required to notify the Board of practitioners who have been convicted of an offence or made the subject of a criminal finding in respect of a "sex or violence offence". Essentially, a criminal finding is one where an offence has been proven but a conviction has not been recorded. A "sex or violence offence" is an offence involving sexual activity, acts of indecency, child pornography, physical violence or the threat of physical violence.

        • Practitioners will be required to notify the Board within 7 days:
          (a) if they have been convicted of an offence of a type that courts are required to report, or

          (b) if they have sustained a criminal finding in relation to a "sex or violence offence", or

          (c) if they are facing criminal proceedings for a "sex or violence offence" where the allegations relate to conduct occurring in the course of practice or involving minors.
        The third significant initiative is Part 4 of the Bill. Part 4 introduces a new disciplinary system.

        Clauses 25 and 26 provide for a two tier definition of misconduct based on the definitions in the Nurses Act. The adoption of the two tier definition, which includes both unsatisfactory professional conduct and professional misconduct, will allow for the Board to deal with both serious and less serious complaints in the most appropriate manner.

        Clause 27 of the Bill provides the grounds for a complaint about a practitioner. The grounds for complaint have been drafted to be consistent with the grounds for complaint in the Health Care Complaints Act, the changes in the grounds for refusing a person registration, the introduction of the two tier definition of misconduct and the introduction of an impaired practitioners system.

        The Bill introduces a Physiotherapists Tribunal which will deal with complaints that practitioners are guilty of professional misconduct. The Tribunal will be chaired by a legal practitioner with at least seven years experience, and include two physiotherapists and a consumer selected by the Board. The Tribunal will hear the more serious complaints about practitioners and the Board will, where appropriate, conduct inquiries into complaints that are less serious.

        The Bill introduces the Physiotherapy Standards Advisory Committee. The Committee will be used by the Board as an expeditious and expert mechanism to inquire into complaints about physiotherapy services, which the Health Care Complaints Commission does not propose to investigate. Those complaints will generally be those at the lower end of the spectrum of seriousness.

        The Committee Chair will be a physiotherapist nominated by the Board and the other two physiotherapists will be selected by the Minister from a panel of practitioners put forward by the Board. Due to the importance of complying with the rules of natural justice Board members will not be eligible to be appointed to the Committee. Precluding Board members from sitting on the Committee will ensure that complaints are not considered by the same individuals in different capacities and fora. Members of the Committee will be appointed for a fixed term of four years.

        The Committee will investigate complaints and make recommendations to the Board for their resolution. Included as part of the Committee's investigatory powers will be the power to require a practitioner who is the subject of a complaint to undergo skills testing. Skills testing will assist the Board in dealing with complaints about professional standards and in ensuring that practitioners maintain appropriate professional standards.

        The Committee will not have the power to determine complaints, but can facilitate the patient and the practitioner reaching an appropriate agreement between themselves. Should the Committee, during its investigations, reach the view that a complaint raises an issue of unsatisfactory conduct which requires referral for a disciplinary inquiry, the Board will be obliged to follow this recommendation. In such cases the Board will either conduct an inquiry into the complaint or, for the most serious matters, refer the complaint to the Tribunal for a hearing.

        Honourable Members will be aware of the valuable role that the Health Care Complaints Commission performs in investigating complaints about health service providers and in appropriate cases instituting disciplinary action against practitioners. I emphasise that under the new disciplinary provisions the Health Care Complaints Commission will continue to play an important role in the investigation and prosecution of complaints.

        As part of the Board's powers to protect the public it will be able to impose conditions on a practitioner's registration or suspend that registration where it is necessary to do so to protect the life or the physical or mental health of any person.

        This leads me to Part 5 of the Bill which introduces a system for the Board to manage impaired practitioners. The provisions of Part 5 are modelled on provisions in the Medical Practice Act which have operated successfully for a number of years. The rationale for such a system is that practitioners whose ability to practise is impaired by factors such as physical or mental illness, or drug and alcohol abuse, can be managed and assisted before those problems develop to such an extent that patients are placed at risk.

        Following the impairment process the Board will be able to place conditions on a practitioner's registration or suspend that registration where it is satisfied that the practitioner has agreed. Where the practitioner does not agree to the recommendations of an impaired registrants panel, the Board will have the option of lodging a complaint about the practitioner and having that complaint dealt with by the Tribunal or at a Board inquiry.

        The Bill includes comprehensive appeal mechanisms to ensure that there are appropriate checks and balances in the disciplinary system. Where a complaint is heard by the Board there is a right to appeal to the Tribunal, and for that appeal to be by way of a fresh hearing. There is also avenue for a practitioner to appeal to the Tribunal on a point of law.

        Where a complaint is heard by the Tribunal there is a right to appeal to the Supreme Court. However such an appeal may only be made on a point of law or in respect of the sanction that is imposed by the Tribunal.

        In the interests of administrative effectiveness and efficiency the Board will have the power to delegate certain of its functions and to establish committees. The establishment of committees will allow the Board to co-opt outside expertise from both the physiotherapy profession and other professions for specific matters such as education.

        The provisions of this Bill will help to ensure that the public can continue to have confidence in physiotherapists and to expect the highest standards of competence and conduct from the profession.

        I would like to take this opportunity to place on the record the Government's thanks to the members of the physiotherapy profession, the Australian Physiotherapy Association and the Physiotherapists Registration Board who have willingly provided their time and assistance to the Department of Health in bringing this legislation to realisation.

        I wish also to draw the attention of members to an amendment to the Medical Practice Act which has been requested by the Medical Board and is included in Schedule 6 of the Bill.

        Under the existing provisions of the Medical Practice Act the Board may suspend a practitioner or place conditions on their registration where it is necessary to do so to protect the life of a person or their physical or mental health.

        The amendment has the support of the Health Care Complaints Commission and will be replicated in all other health professional Acts that include impaired practitioner systems modelled on that in the Medical Practice Act.

        I commend the Bill to the House.

    The Hon. JOHN JOBLING [6.08 p.m.]: We are pleased to see the introduction of the Physiotherapists Bill, which will repeal an Act that has been in existence since 1945. There is no doubt that since then many things in the profession have changed. Legislation for the protection of members of the public is of paramount importance. In that regard it has been important to completely review the public benefits and issues that relate to health, as well as public benefits that arise from the requirements of the competition policy.

    Physiotherapists must be fit and proper persons if they wish to practise in this profession. After the repeal of the 1945 Act, additional mechanisms were included in the legislation for the accreditation and recognition of qualifications entitling a person to registration as a physiotherapist. For the first time, competence is an express requirement for registration. The Physiotherapists Registration Board has been given power to inquire into and examine the competence of practising members. A number of provisions are set out in great detail in the bill. Part 1 of the bill deals with preliminary matters. Part 2 of the bill, which relates to registration, prohibits a person from practising if he or she is not qualified to do so. Physiotherapists must be registered under the Act before they are permitted to practise. Provisions in the bill refer also to the qualifications that are required before a physiotherapist is able to be registered.

    Clause 9 defines "competence to practise" for the purposes of the proposed Act. A number of reasonable definitions in part 2 will ensure that physiotherapists have the required skills, training and competency. Clause 14 provides for temporary registration under the proposed Act in certain circumstances. Part 3 of the bill deals with the practice of physiotherapy and the conduct of practice. Clause 19 specifically prohibits registered physiotherapists from using the title "doctor", unless they hold a recognised university qualification which entitles them to use that title. Clause 20 provides that the board may establish a code of professional conduct—something that is evident in other codes in the medical and allied professions.

    Clause 21 provides that registered physiotherapists must furnish to the board annual returns which contain specified information. The board has the power to seek such information and it may require such a return to be verified by statutory declaration. Clause 22 provides that a registered physiotherapist must notify the board within seven days if the physiotherapist is convicted of an offence or made the subject of a sex or violence criminal finding for an offence, or if criminal proceedings are commenced against the physiotherapist. Clause 23 provides for the courts to notify the board, as soon as practicable, of the conviction of a registered physiotherapist. Part 4 of the bill deals with complaints and disciplinary proceedings.

    Clause 32 provides that the board is to notify the Health Care Complaints Commission of complaints under part 4 of the proposed Act. Clause 38 will allow the board to require a registered physiotherapist to undergo a medical examination. Clauses 40 to 44 of the bill refer in detail to the referral of complaints to the Physiotherapy Standards Advisory Committee. Clause 44 provides that a complainant and physiotherapist against whom a complaint is made are not entitled to be legally represented at any appearance before that committee. Divisions 4, 5 and 6 of the bill deal with complaint handling, the disciplinary powers of the board and tribunal, and the powers of the board for the protection of the public.

    Part 5 of the bill specifically refers to impairment. Clause 65 allows a person to notify the board of any matter that the person thinks indicates that a registered physiotherapist suffers from or may suffer from an impairment. That clause then refers to the details and requirements of compliance. Part 6 of the bill refers to appeals and to the review of disciplinary action. Part 7 deals with the structure and establishment of the Physiotherapists Registration Board. Clause 86 refers to the constitution of the board, clause 87 specifies the functions of the board, clause 88 provides for the membership of the board and clause 89 provides for the appointment of the registrar and other staff. Part 8 of the bill refers to the Physiotherapy Standards Advisory Committee and part 10 refers to the Physiotherapists Tribunal. Other issues are detailed in this bill. As I said earlier, this bill will replace an old 1945 bill and bring it up to date and into line with other legislation, for example, legislation relating to chiropractors and osteopaths. Allied health professionals must be protected and the public must have confidence in those professionals. The Coalition supports the objectives of this bill.

    Ms LEE RHIANNON [6.16 p.m.]: The Greens welcome the introduction of the Physiotherapists Bill, which is intended to protect the health and safety of the public of New South Wales by providing for an effective regulation to ensure that physiotherapists are fit to practise. I understand that this bill has involved extensive review and consultation over a number of years. I welcome that consultation and review. The Greens are pleased that this bill will restrict the use of prescribed electrophysical treatments to registered practitioners. Modern medical equipment is quite sophisticated. It is in the public interest that only qualified and properly registered individuals employ that equipment. Similarly, the Greens acknowledge the enhanced registration provisions for physiotherapists, including the power of the Physiotherapists Registration Board to refuse to register an individual, and the introduction of an enhanced registration renewal process. The provision dealing with misconduct is overdue, but at least it has been included in the legislation this time. The Greens support this bill.

    The Hon. RICHARD JONES [6.17 p.m.]: I support the bill. Barry Davies from my office spoke to Mark Brown from the Australian Association of Physiotherapists, who said he is satisfied with the preparation and outcome of this bill. He said that consultation with the Department of Health was satisfactory. This bill, which is an update of legislation regulating the physiotherapists profession, repeals the 1945 Physiotherapists Act. Included in the provisions of the bill is a revised disciplinary procedure which is in line with that introduced in recent legislation for other health professionals. The tribunal will be established for serious complaints and the Physiotherapy Standards Advisory Committee will investigate less serious complaints. The Health Care Complaints Commission will retain its role of investigation and prosecution. The bill also includes an annual membership renewal process which will require practitioners to inform the board of their activities, including further education during the previous year. I support the bill.

    The Hon. DOUG MOPPETT [6.18 p.m.]: I add to the remarks of my colleagues the Hon. John Jobling, Ms Lee Rhiannon and the Hon. Richard Jones. It has been said that, essentially, this bill will increase protection for members of the public who seek the services of physiotherapists. However, it must be borne in mind that this legislation will also enhance the status of physiotherapists. This profession has developed a great deal since the early days, when physiotherapists were first identified and registered. In those days physiotherapy was seen largely as a service provided to people who were recovering either from injuries or from operations. Physiotherapy was directed at re-establishing limb and muscle function.

    In later years we have all come to realise the role that physiotherapists play in relation to people with degenerative diseases and certain disabilities. Their contribution is vital to the quality of life of those people, and to the extension of the term of some lives. For a lot of individuals access to physiotherapists is not some sort of add-on luxury to get them back to the ski fields or onto the football field, or to help them get over their tennis elbow. For some, it is a matter of life and death. As the Hon. Ian Macdonald will appreciate, the distribution of physiotherapists is not adequate throughout New South Wales. Where they do practice in the country they tend to attract another couple of practitioners to the immediate area, but in vast areas of New South Wales the services of physiotherapists are almost unattainable. Something has to be done about that. In the meantime, this bill is good for consumers and practitioners. It enhances the status of physiotherapy and physiotherapists, and it safeguards those who seek their services.

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.20 p.m.]: I support the Physiotherapists Bill. It will give physiotherapists a status similar to that achieved under the Medical Board system. It will ensure their accreditation and ongoing training, and some degree of professional status. Physiotherapists have always had other massage groups compete with them, without their having completed the same degree of training. It is good that physiotherapists will get this recognition. The economics are somewhat difficult because they do not have Medicare accreditation. The Government has saved a lot of money by not keeping sufficient salaried physiotherapists for the outpatient needs of those who do not have private health insurance. A lot of physiotherapy is conducted privately.

    Changes in workers compensation demand extreme cost-effectiveness and limit how many physiotherapy visits people might have. This has put quite a squeeze on a profession that completes about two-thirds of the training undertaken by doctors. Members of this profession face many difficulties surviving in the economic framework in which they have been put, yet they show a remarkable level of skill to achieve remuneration. Although this bill will ensure quality control in their profession, it does not address other important issues that I will mention in passing. As the Hon. Doug Moppett said, physiotherapists perform a valuable function and help people to recover rapidly. They do good work in many areas, particularly in relation to sleep apnoea and getting people back to work after they have sustained head injuries.

    The Hon. Doug Moppett: Heart attacks.

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Yes, heart attacks. Physiotherapists allow people to stay in their homes, in association with occupational therapists, while they strengthen their muscles. They perform a large range of services that are not being looked after in the public health system. They are being squeezed by changes that increase the power of workers compensation insurers, and a gap is occurring among people who cannot afford their services. That is something the Government should have noted. This bill allows the registration of physiotherapists and maintains their standards. However, we have to ensure that their services are available to the public. The bill will create a board which, as one Medical Board member said to me, will deal with the mad, the bad and the sad. It will ensure quality control, but quality has to be delivered.

    The Hon. IAN MACDONALD (Parliamentary Secretary) [6.24 p.m.], in reply: I thank all honourable members for their salient and succinct comments in relation to the bill. I commend the bill the House.

    Motion agreed to.

    Bill read a second time and passed through remaining stages.

    [The Deputy-President (The Hon. Henry Tsang) left the chair at 6.25 p.m. The House resumed at 8.15 p.m.]