Medical Practice Amendment Bill 2008

Debate resumed from 15 May 2008.

Ms LYLEA McMAHON (Shellharbour) [10.57 a.m.]: I speak in support of the Medical Practice Amendment Bill 2008. The main provisions of the bill arise out of an independent review chaired by former Federal Court judge Deirdre O'Connor in 2006 after the criminal conviction of general practitioner Ms Suman Sood for unlawfully administering a drug to a woman with intent to procure miscarriage and for unlawfully causing a woman to take a drug with intent to procure miscarriage. Additional changes have been made to the bill to strengthen the regulatory process after revelations about Dr Graeme Reeves. Ms O'Connor also considered the further changes.

The changes to the Medical Practice Act focus on five areas. The first is increasing public protection. These changes involve the following: an amendment to the object section of the Act to provide that the protection of the health and safety of the public is the paramount consideration in respect of all functions and powers exercised under the legislation by the board or any other person or entity; allowing disciplinary decision-making bodies hearing a disciplinary case to identify what are critical public protection conditions and to red light them accordingly; where the board is satisfied there is evidence that such a condition is breached the medical practitioner will be suspended immediately; and the insertion of a provision expressly requiring the medical board to consider only previous complaints in re-registration proceedings, even those received after the registration.

Procedural provisions dealing with emergency suspension processes under section 66 of the Act are to be strengthened in a range of ways, including providing the board with powers to require production of documents or other information for the purpose of a section 66 inquiry, and enabling the board to provide any information obtained under these powers to the Health Care Complaints Commission. The bill also provides the board with a power to remove or alter conditions or to terminate an order of suspension, and to notify any person the board considers appropriate of action taken under a section 66 inquiry. It also restricts the right of practitioners to apply to the Supreme Court for review of a section 66 decision until after the practitioner has exhausted a new right of appeal to the chairperson or deputy chairperson of the Medical Tribunal. It also requires medical practitioners to provide the board, where requested, with information about where the medical practitioner works so that the board can notify those facilities about any orders or conditions imposed on the practitioner.

The bill introduces for the first time in Australia mandatory obligations on doctors to report serious misconduct by fellow doctors. The key features of the system include that practitioners will be required to report colleagues to the New South Wales Medical Board where they have a reasonable belief that serious misconduct has occurred. Serious misconduct will cover: sexual misconduct in the practice of medicine; being intoxicated by drugs or alcohol while practicing medicine; or engaging in conduct while practicing medicine which is a flagrant departure from accepted standards of professional practice or competence and which risks harm to some other person. Reporting will be restricted to actions taken while practicing medicine. Therefore, doctors will not be expected to report on colleagues' conduct outside of medical practice. For example, they will not be obliged to report a colleague who gets drunk at a private function or who has an extra-marital affair.

Failure to report will be a contravention of the Act. This in turn may constitute unsatisfactory professional misconduct, and in serious cases may even be considered professional misconduct, making the practitioner liable to being struck off the register. The bill also increases the level of transparency and accountability of the disciplinary process. The Reeves case has led to a perception that the standards applied to doctors by other doctors give too much weight to professional interests as opposed to the public interest and operates on a secretive, closed level. To overcome this it is proposed to require urgent section 66 reviews to include non-medical representatives and professional standards committees to include a legal representative to chair proceedings. The bill also overturns the present presumption that professional standards committees hearings are confidential and their findings are not to be published.

Significant changes have been made to the powers of disciplinary bodies to have regard to multiple complaints and previous findings or judgements about practitioners, including requiring the Medical Board to have regard to other matters involving practitioners. That includes any other complaint or a previous finding or judgement by a disciplinary tribunal in the exercise of the board's complaint and public protection functions. It also covers where complaints are being prosecuted concurrently before the Medical Tribunal or a professional standards committee. In that case, the tribunal or committee may have regard to all the evidence before it in making factual findings, finding that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct, or imposing a sanction. It also enables the Medical Tribunal or a professional standards committee to rely on previous judgements or findings of a professional standards committee or tribunal for the purpose of making a finding that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct, where the previous conduct is sufficiently similar to the conduct alleged against the practitioner in the proceedings.

A number of amendments have also been proposed to the Health Care Complaints Act. The changes include amending the object section to provide that the protection of the health and safety of the public is the paramount consideration in respect of all functions under the Act. The legislation also requires, through assessment, investigation or prosecution, the Health Care Complaints Commission to action matters that have been subject to emergency procedures as soon as is practicable. It requires the commission to have regard to other complaints against a practitioner, or to any previous finding or judgement by a disciplinary tribunal or committee, when making an assessment and to consider undertaking concurrent investigation of all relevant complaints about the same practitioner. Finally, it requires the commission director of proceedings to consider concurrent prosecution of multiple complaints against the same practitioner. The protection of the public is the paramount consideration when it comes to medical regulatory and disciplinary functions. I commend the bill to the House.

Mr ANDREW CONSTANCE (Bega) [11.07 a.m.]: Yesterday the shadow Minister for Health put the Opposition's position on the Medical Practice Amendment Bill 2008. She also outlined the history of the Reeves case leading up to the introduction of this legislation. Throughout this process, the victims have sought legislation to improve the system and provide answers to their questions about the appointment of Dr Reeves. The Minister is trying to scramble and minimise the political fallout from the events surrounding that appointment. This is all about media management; this legislation does not implement a policy designed to ensure that medical misconduct will never happen again. If that were the case, this bill would contain provisions making it mandatory for employers to undertake background checks of medical practitioners before being appointed.

The Government also would have made efforts to ensure that referee checks of doctors are conducted by senior health executives before any credentials committee, medical appointments advisory committee or any other appointment function of a health service approves the appointment of a doctor. The test of this legislation is whether it would prevent a Reeves scenario occurring again. My theory is that it will not, and I will outline why. Carolyn Dewaegeneire, the brave woman who first approached me last year and who sought an investigation of the Reeves appointment through this Chamber, tells me that this bill does not adequately protect medical patients in New South Wales. The shadow Minister likewise outlined to the House yesterday the position of the chief executive officer of the Southern General Practice Network, which is located in southern New South Wales and covers the Bega and Pambula areas. The shadow Minister quoted a letter from the chief executive officer, which states

Changing the legislation to make the NSW Board more rigorous and more transparent than it has been is not a bad thing.

Members on this side of the House concur. The letter continues:

However, simply addressing these issues does not, as the Minister makes out in her preliminary remarks, address the issues seen in Bega.

The Government should still be held accountable for the failure of its public servants to undertake the appropriate pre-employment checks as are required under public sector employment processes.

The general practitioners of the Far South Coast trusted that an Area Health Service appointed specialist had undergone these pre-employment checks and referred to Dr Reeves in good faith.

The Opposition has sought to address the actions of public servants by introducing a private member's bill. All along, the Minister has tried to create the impression that Dr Reeves' credentials were not checked. She stated on 6 March in this House:

I am not going to make any excuses for the Southern Area Health Service. It failed to perform background checks on a candidate who the Medical Tribunal found lied and cheated his way into a job.

The fact remains that background checks were conducted. We have now learnt that a criminal record check was conducted by the human resources department of the health service that cleared him on 19 March 2002. The health service was in possession of signed copies of the orders from the Medical Board, which set out his health, monitoring and employment-related conditions on 12 March 2002. John Mortimer, Deputy Director of Clinical Services, telephoned one of Dr Reeves referees on 11 April 2002. On 26 March 2002 the credentials committee of the health service, which had Dr John Mortimer as its chair, met to discuss applicants for the position of obstetrician and gynaecologist at Pambula and Bega. It is noted in the minutes of the meeting that the committee recommended that further information be sought from the Medical Board on this issue.

Whilst it is not clear from the minutes whether this recommendation applied to all applicants, the minutes suggest it did, given that it is in a separate paragraph of the documentation. What is clear from the Reeves application dated 10 February 2002 is that he indicated to the Government that his registration was made conditional and he had been in the impaired physicians program, undergoing regular reviews by the board since that time. Also in that application he made it clear that not only was his registration conditional but he also spelled out a number of conditions relating to the impaired hearing review and some of the conditions relating to the impaired physicians program. They included the need to be under the care of a psychiatrist, for him to be reviewed annually by the board's nominated psychiatrist, for him to attend the board for review annually, to maintain contact with a general practitioner and to notify the board of any change to his practice. That was spelled out in the application of Dr Graeme Reeves when he applied for the position.

He was interviewed for the position by the medical and dental appointments advisory committee on 2 April 2002. That committee was chaired by Grattan Wilson and consisted of Denise Robinson, who quit New South Wales Health two weeks ago, and John Mortimer as secretary. It also included doctors who would work closely with Dr Reeves in the future. Again, I believe this poses a problem, as having doctors on the appointment panel who will be working closely with the doctor in question raises questions about the overall appointments process. On 12 April the board approved Dr Reeves appointment, and that appointment was seconded by Mick Veitch, a Labor member of Parliament. On 11 April a phone call was made by Dr John Mortimer, chair of the credentials committee, secretary of the medical appointments advisory committee and Deputy Director of Clinical Services of the Southern Area Health Service, to one of Reeves' referees. From the referee's report it was stated about Dr Reeves:

Very well-trained technically very well-trained had depression there was a catastrophe few arguments with nursing staff and junior registrars.

Ok when normal and has apparently been normal last heard not meant to do obstetrics was holding fort at Hornsby/dispensed with services. Ok as long as treatment has been successful.

This referee check should have been carried out before the credentials committee even began to assess the application. Again, this shows a major deficiency in the legislation before the House today. It highlights the need for greater scrutiny of the public sector appointment of doctors in the State. Again I highlight comments made in Parliament yesterday in relation to this matter. In relation to that diary note the Minister for Health stated:

It is a handwritten note. In fact, it was written several days after Dr Reeves was appointed to the position.

This poses the question: At what point was he appointed? A handwritten note was written on 11 April 2002, transcribed after a phone call that took place on 15 April 2002, which was one day before the board meeting in which a motion was carried to hire him. He was notified in writing about the appointment approval on 17 April 2002. Again this brings into question the judgement of the Minister for Health on this matter. The report of the commission of inquiry into the Dr Patel case in Queensland, handed down in 2005, made these statements about Dr Patel:

This registration and appointment occurred through a chapter of negligent mistakes by the Medical Board and by administrators at Bundaberg Base Hospital. The Medical Board negligently failed to properly check Dr Patel's paper credentials to make any assessment of whether he had the qualifications and experience for practising surgery in Bundaberg ...

He came to be employed at Bundaberg Base Hospital without any assessment being made of his clinical skill and competence. This should have been done by that hospital, as a condition of his appointment, by a process of credentialing and privileging, pursuant to a policy and guidelines of Queensland Health which had been in force since 2002. This failure was due to the negligence of [one particular doctor], then Acting Director of Medical Services at Bundaberg Base Hospital.

We in the Opposition are seeking to establish legislative provisions that make it mandatory for bureaucrats to check the credentials of any doctor being employed in this State. In the case of Patel the guidelines did not work. The Government is introducing this legislation on the premise that Dr Reeves' background was not checked but it is also trying to bring about greater scrutiny of the medical profession. I have had a discussion with Carolyn Dewaegeneire, the lady who brought this issue to notice. She has written to me of her concerns about the legislation, and I want to note some of those concerns on the record. She is concerned about the definition of the word "flagrantly". She also expresses concern about a practitioner being ordered to take part in a performance assessment only if the Health Care Complaints Commission concurs with the proposed action. That is seen as a loophole.

She is also concerned about the use of the word "may" in relation to the exercise of powers in relation to concurrent presentation of multiple complaints about a practitioner. She believes that exercise of that power should be a requirement and that the loose word "may" should not be used. She also indicates that the Professional Standards Committee proceedings will only be public unless the committee directs otherwise. Again, there is a question mark around what determination will be made by the committee. The committee might not make all those hearings public. She also goes on to state that the bill does not adequately protect medical patients in New South Wales. [Extension of time agreed to.]

Carolyn Dewaegeneire has highlighted a number of deficiencies in the bill and I want to put them on the record. I suspect the Government will not take up some of those concerns. From Carolyn's perspective, and that of many other women who were involved in these terrible events, their concern is that what was done to them should never happen again. The legislation seeks to focus on the medical profession, while the Government continues to avoid focusing on why it happened and on what needs to be done in the public sector, through the Department of Health, to ensure it never happens again.

I hope that a situation similar to the one we have experienced with Dr Reeves never happens again. The incidents involving Dr Reeves have a long history. I raised this matter in the House eight months ago, but for whatever reason—one might argue political—there has been a cover-up. The bottom line is that the victims seek answers and justice. The feedback I have received from the women interviewed is that the police were incredibly professional. The Dr Reeves case covers an enormous amount of material and I urge everyone to be patient, because the police must get it right. Also, we must await the findings of the Garling inquiry.

The release of documents in the past week through the upper House sheds some light on the matter and highlights deficiencies in the bill, which, because it does not focus on the appointments process within the Department of Health, will not prevent such a tragedy from recurring. Legislation, not departmental guidelines, that makes it mandatory for bureaucrats to check doctors' credentials—whether it is a professional body relating to a speciality or the New South Wales Medical Board—will enhance the system and patient safety. The fact that the credentials committee did not contact referees well before the assessment must be investigated also.

The Opposition will continue to seek accountability. When I first raised this matter in the House on 27 September 2007 I gave a clear indication of what had happened to Carolyn Dewaegeneire. Again I place on the record for the benefit of those who will read the debate that Carolyn Dewaegeneire has shown a strength and determination that I have never before seen in a human being. She is not going to give up. She wants legislation in place and justice done. She wants the system overhauled. She wants issues dealing with the medical profession addressed. The Opposition will support the bill because it makes some inroads. However, Carolyn has made it very clear that the bill does not adequately address patient safety in New South Wales because it does not cover the appointments process.

Many women have been affected by the actions of Dr Reeves. I am aware of 30 women in the Bega Valley shire alone who have suffered at the hands of Dr Reeves, and women who were his patients in years gone by when he was practising elsewhere around the State are coming forward. All these women deserve answers from the Minister for Health and a clear explanation as to how he remained in the system without scrutiny. I remain concerned that the Government is adopting a media strategy when it should adopt the private member's bill introduced by the Deputy Leader of the Opposition, which focuses on the appointments process overseen by bureaucrats. No doubt the Garling inquiry will investigate who knew what and when in the medical profession and the police investigation will do likewise. I reiterate that on a number of occasions the Government has tried to deflect responsibility from its involvement in this affair and subsequent cover-up, particularly given that it now involves a Labor member of Parliament, Mick Veitch.

Mr THOMAS GEORGE (Lismore) [11.25 a.m.]: In speaking to the Medical Practice Amendment Bill 2008 I thank the member for Bega and the shadow Minister for Health for their work on this case. Also, I thank Carolyn Dewaegeneire for leading the fight: her efforts enabled a lady who lives in Casino to go public with her concerns about a Dr Hasil in March 2008, after she had lived with them for six years. The bill is long overdue and, like my colleagues, I believe that a mandatory background check is necessary for future appointments. I thank Alex Easton of the Northern Star, who was able to write compassionately about Connie Scholl's story:

North Coast Area Health Service was not allowed to check former obstetrician Roman Hasil's overseas criminal record before it hired him in 2001, the health service said.

But knowing Dr Hasil had served time in jail in Singapore for domestic violence before he came to Australia would not necessarily have stopped him being employed at Lismore Base Hospital.

Dr Hasil worked for four years at Lismore Base Hospital before going to New Zealand where he botched a string of sterilisation procedures and was suspended for drinking while on call.

The report also says Dr Hasil made a "hasty" exit from Lismore after the North Coast Area Health Service began investigating his time sheets, on the suspicion the overseas-trained doctor had been claiming money he wasn't entitled to. Dr Hasil denied this claim to the NZ inquiry, but the health service has said it disciplined the doctor over the incident.

He has since been the subject of an investigation by New Zealand authorities, which led to a damning report being issued this week and included claims he had been charged and jailed for domestic violence in Singapore.

Dr Hasil has worked for two hospitals in Queensland since fleeing New Zealand and was tracked down in Sydney by New Zealand media, where a friend reportedly said he was contemplating working as a bricklayer and denied the doctor had "run away".

Responding to questions from The Northern Star, the health service said it did routine criminal checks on Dr Hasil within Australia when it hired him.

However, a spokesman said the service "does not have the jurisdiction to conduct international criminal checks". The service "was not aware of any prior conviction" when it hired Dr Hasil. The article continued:

"Had it obtained any details of such a conviction, the mater would have been referred to the NSW Medical Board," the spokesman said.

The NSW Medical Board this week suspended Dr Hasil's registration in the state, following [these details].

Since Ms Connie Scholl came forward with her concerns about Dr Hasil, another 10 women who had similar experiences with Dr Hasil have come forward, although none of them has lodged a formal complaint or spoken publicly about their experience. In March the North Coast Area Health Service, under chief executive Chris Crawford, announced that the service had launched an urgent review into its handling of Ms Scholl's complaint. He told the Northern Star he had called Ms Scholl to tell her of the review, but I talked to Ms Scholl as late as yesterday and she has not spoken to Mr Crawford.

Mr Crawford said he had asked the service's director of clinical governance to review Lismore Base Hospital's system for handling complaints to determine how it could be improved and advise on any necessary follow-up actions that should be taken on the original complaint. On 14 July 2002 Ms Scholl was transferred to the Lismore Base Hospital. On 15 July her child was born. On 16 July she left hospital. On 16 August she sent a complaint letter about Dr Hasil to the Lismore Base Hospital, of which I have a copy. The Northern Rivers Area Health Service acknowledged her letter in writing:

Dear Ms Scholl,

I am in receipt of your letter which was received in my office on 1 September 2003 in which you outline your concerns about your treatment at Lismore Base Hospital.

Your concerns are currently being investigated and I will contact you with the outcome of this investigation.

That letter was written on 24 September 2003 in response to her letter of 1 September. On 16 October she received another letter from the Lismore Base Hospital virtually saying the same thing:

It is expected a response will be available to you within four weeks.

Bear in mind that that was 16 October 2003. This is a complaint about a doctor who has since been deregistered. This lady had enough courage to give her story to the paper on 28 February, after she had lived with it for six years. On 29 February 2008 the hospital rang her and said, "We don't seem to have any complaint from you", yet it had acknowledged her letter back in 2003, and that is all that ever happened with the complaint. The story was published. Dr David Hutton contacted her to get the story. The services of a sexual abuse counsellor were provided. On advice from certain people, police statements have been given. The sexual abuse counsellor has been very comforting to Connie Scholl and has kept in touch with her. She says, "I have continually kept in touch with Connie and to this day she is still waiting for answers". I note that clause 8 of the bill states that professional standards committees will now also have to take into account a practitioner's past conduct. If this had been done, Dr Hasil would not have been able to practise in Lismore, in New Zealand or in Queensland. Dr Hasil has been deregistered and, as I understand it, he has a lot to answer for.

I compliment the member for Bega and our shadow Minister for Health on their work in bringing this matter forward. Their work has encouraged other patients throughout the State who have experienced problems with doctors within the medical system to come forward. Everyone in this House would agree that, by and large, doctors do a tremendous job in our communities, especially in country and regional areas. However, I am the son of an old fruiterer and it is always the bad apple that destroys the box. I draw to the attention of the Parliamentary Secretary, the member for Wollongong, that background checks should be mandatory prior to any future appointments. Let us learn from these mistakes. Enough patients in this State are hurting. Mandatory background checks could have saved them from that hurt. I encourage the Minister to include mandatory background checks in the legislation.

Mr JONATHAN O'DEA (Davidson) [11.37 a.m.]: Like many of my colleagues, I am appalled at the failure of public servants to appropriately undertake and act on pre-employment checks of potentially dangerous doctors to protect a public that deserves better government oversight of health services. However, my brief comments will touch on two areas covered by the Medical Practice Amendment Bill and a concern that one of my constituents—a retired doctor—has raised with me. The two areas are, firstly, the ability of relevant authorities when dealing with a complaint against a medical practitioner to have regard to the totality of any previous complaints and adverse findings against that practitioner and, secondly, improving the accountability and transparency of investigative and disciplinary processes for medical practitioners.

Schedule 1 item [23] to the bill relating to the amendment of the Medical Practice Act 1992 and schedule 2 item [5] relating to the amendment of the Health Care Complaints Act 1993 enable the disciplinary bodies referred to in the bill—the medical tribunal and the professional standards committee—to take into account recommendations or written statements of a decision on a performance review provided by a performance review panel. In this regard, my constituent Dr Dawson writes:

This I would be most concerned about. The Performance Review Panel (PRP) hears matters in private and has recently made, without proper evidence, a series of punitive orders, far exceeding in cost to the practitioner, the fines available to Professional Standards Committees.

I welcome the opening of the PSC to the public. If findings of a PRP are to be taken into account subsequently in retrospect, the PRPs should also be properly conducted in a fair and transparent manner and not chaired by a lay person with inordinate powers as at present.

I request the Minister to comment on this in her speech in reply.

Mr BRAD HAZZARD (Wakehurst) [11.38 a.m.]: As has been indicated, complex matters have given rise to a review that has resulted in the introduction of the Medical Practice Amendment Bill. The unfortunate and sad circumstances surrounding the treatment of patients by Dr Reeves have highlighted these complex issues. Both the member for Bega and I raised these issues in the media, and they have been the subject of much media discussion. I trust that the bill will address some of those issues. In regard to the provisions that will require medical practitioners to report on fellow practitioners in a number of circumstances, clearly there is already a professional duty of care by medical practitioners when working with other medical practitioners to ensure that each operates in accordance with appropriate professional standards.

The legislation before the House arises as a result of the circumstances involving Dr Graeme Reeves. It will place additional pressure on medical practitioners. As a lawyer, I am aware of the sort of issues that face professionals in dealing with clients or patients. I was interested to note the comments of Dr Garyck Joseph from my local area on the front page of the Medical Observer of 16 May 2008. I know Dr Joseph extremely well, as he is in practice with my wife. I have not discussed the issues with him, but I will highlight his comments for the benefit of the Minister for Health, who is not in the Chamber, and ask her to consider them in reply. Dr Joseph is a very capable and considered person and he would not raise issues publicly unless he had genuine concerns. I read from the Medical Observer an article by Desi Corbett:

Proposed laws compelling GPs to report each other for professional misconduct are a step closer, with the NSW Health Minister tabling the new legislation in Parliament last week, but concerns remain over grey areas in the legislation

The proposed laws will force doctors to report on other practitioners' actions involving sexual abuse and drug or alcohol intoxication while practising and could see them facing committees chaired by lawyers

However, doctors are calling for a much clearer definition of the issues about GPs who fail to report colleagues for misconduct because they could find themselves facing the NSW Medical Board answering allegations of unsatisfactory or professional misconduct.

Sydney GP Dr Garyck Joseph said clarification was definitely needed and explanatory guidelines should be sent to doctors in New South Wales.

"Adding 'the risk of harm to another person' would certainly influence me to act on it more, but we also need 'flagrant departure' explained in legal terms."

Medical practitioners in general regard themselves as having a role to report other medical practitioners who are not behaving in an appropriately professional manner. That would be the norm through most professions. If a professional person observed, and was certain, that a fellow professional was not providing appropriate services, he or she would feel morally, ethically and legally bound to report that fellow professional to the appropriate board, tribunal or oversight body. The aim of the Medical Practice Amendment Bill is to clarify the obligations of medical practitioners, but I wonder how some medical practitioners will interpret that. A general practitioner observing another general practitioner is likely to be at the same standard of professional practice and would have some idea of what a reasonable general practitioner in a particular set of circumstances should do in relation to a patient.

General practitioners should be in a position to make informed evaluations and, in the absence of malice or other inappropriate motivating force, one could expect that a general practitioner would make a report against a colleague. Firstly, I ask the Minister for Health to inform the House what will happen if a general practitioner who is motivated by less than an appropriate professional approach to his or her colleague determines that a report should be made? Will there be a sanction applied to a general practitioner who makes a report about a fellow general practitioner for other than proper professional purposes, for example, in a competitive environment? Will appropriate sanctions be in place to ensure that the practitioner is exercising a truly professional judgement in reporting his or her colleague? If so, what sanctions will flow if there is doubt surrounding that issue?

Secondly, practitioners often work in environments in which they are with other medical practitioners who have different levels of expertise or specialties. Some clarity should be provided of what is expected of general practitioners who may be working with, for example, specialists. If Dr Reeves had been working in the city rather than at Bega at the time of the incidents that brought him to public attention, it may well have been that a general practitioner may have assisted him in the delivery of babies in his obstetrics practice—albeit that that practice was highly suspect with the benefit of hindsight. What would happen if a general practitioner who is working as an assistant surgeon to a specialist surgeon—such as an obstetrician, a cardiovascular specialist, a cardiologist or an orthopaedic specialist—observed something that may in their view amount to inappropriate practice, or some other action of the specialist that created an issue in their mind?

What onus will there be on a practitioner, who has less training and expertise, to evaluate a practitioner who has much greater training and expertise? If there are carte blanche expectations that medical practitioners with less expertise will evaluate medical practitioners who have greater expertise or a specialty, that will impose very onerous requirements on a practitioner who does not purport to have the same level of specialised expertise. I know from being married to a doctor, and having many friends who are doctors, that this happens quite frequently and that that will be a general cause of concern to medical practitioners. The legislation needs to be interpreted in a practical manner.

I ask the Minister for Health to clarify the issue during her reply. The comments by Dr Garyck Joseph on the front page of the Medical Observer effectively have raised the issue. As I said, I have not spoken to him, but I believe we need to be more supportive of medical practitioners generally. Throughout New South Wales in urban and regional areas there is a profound shortage of medical practitioners. If we put more and more pressure on them to make their medical practice more and more onerous, and if they feel they have an obligation to be evaluating others who have a completely different and highly specialised medical capacity, we are facing the risk of deterring more and more people from becoming medical practitioners. Many aspects of the regulatory framework already do that. The issue needs to be clearly spelled out for them.

Ms NOREEN HAY (Wollongong—Parliamentary Secretary) [11.49 a.m.], in reply: I will address a number of issues that were raised in debate on the Medical Practice Amendment Bill. As to the appointment process applied to Dr Reeves, the Minister for Health has made it clear that the Government will not make any excuses for the significant shortcomings in the recruitment processes that were followed by the former Southern Area Health Service in 2002. While there is no question that Dr Reeves deliberately set out to deceive his employers and withhold vital information during his recruitment, the fact remains that the systems and process followed by the area health service were inadequate.

For that reason, the Government has submitted documentation relevant to the appointment of Dr Reeves to the special commission of inquiry that is being conducted by Mr Peter Garling, SC. I remind the House that the special commissioner has the powers to subpoena documents, to call witnesses and to compel witnesses to answer specific questions. The commissioner will determine who will be called to give evidence, which was an issue raised by Opposition members. Further, it is not appropriate for members to anticipate the possible outcome of the commissioner's inquiries. The Deputy Leader of the Opposition called on the Government to impose statutory requirements on employers to conduct backgrounds checks. This shows a complete lack of understanding of the situation at the time Dr Reeves was appointed and the changes to practices in the public heath system that have been made since.

The House has been informed on a number of occasions about the substantial changes that have been made to NSW Health policy directives over the past few years as to the employment and appointment of medical practitioners. These policies—which were introduced in 2005, some time after Dr Reeves' position with the Southern Area Health Service was terminated—make it very clear that public health organisations cannot simply accept documentary evidence provided by an applicant. They must verify registration status directly with the Medical Board. Managers must comply with a comprehensive reference checking process. This process requires applicants to include referees, not just professional colleagues, and a current or recent supervisor. Compliance with NSW Health policy directives is mandatory for health public sector employees and managers. Compliance with the directives is a condition of the NSW Health code of conduct, and failure to comply is enforceable by disciplinary action in serious cases.

The Deputy Leader of the Opposition failed to mention additional changes recently announced by the Government that further strengthen the recruitment processes. Pursuant to these changes, public health sector managers will be required to consult a public health sector service check register before offering employment or appointment. This register will include information about current suspensions, any conditions imposed as a result of disciplinary action, termination for disciplinary action while the person was employed in the public sector, and cases in which a person resigned before serious disciplinary action could be concluded. The register will provide an important additional tool to further improve the current appointment processes.

As the Minister noted in her agreement in principle speech, one of the key aspects of the proposals is to increase the transparency of disciplinary proceedings. The Deputy Leader of the Opposition seemed to suggest that the proposed changes that will apply to the Professional Standards Committee should apply also to performance review panels. Her statement indicates that she fails to understand the role and function of the panels. Performance review panels undertake an inspectorial and monitoring role. They are not investigative, nor do they make determinations on questions of unsatisfactory professional conduct or professional misconduct. Therefore, they do not conduct disciplinary hearings in the manner of a tribunal or the Professional Standards Committee. Any concerns about possible misconduct that arise before a review panel are not dealt with by the panel but are referred for action through the complaints process.

The Deputy Leader of the Opposition also raised the issue of legal representation before the Professional Standards Committee. I again emphasise that the critical issue and paramount consideration in all these amendments has been to focus on public protection. The Professional Standards Committee process is designed to be inquisitorial. Doctors are allowed to have advisors present with them. As a matter of practice, the advisor is generally a lawyer. The Government would be concerned if the protection of the public was compromised by adding further legal formality and disputation, thereby delaying the disciplinary process. The current changes already provide for the appointment of a lawyer to the Professional Standards Committee and for that lawyer to chair the committee. This will ensure that due consideration is given to the legal rights of the practitioner appearing before proceedings. I also note that serious matters, whereby a practitioner may be struck off the register, must be referred to the tribunal where there is an entitlement to legal representation. Given the very serious consequences of the outcome of a tribunal process, this is entirely appropriate.

I thank members for their thoughtful contributions to the debate, particularly the Deputy Leader of the Opposition and the member for Bega whose concerns I have responded to. I am glad that my Opposition colleagues have welcomed the changes. The key changes in the bill seek to ensure that rogue doctors never again can fly under the radar and that the medical profession will no longer operate under a shroud of secrecy protected by self-regulation and confidentiality clauses. Doctors will be scrutinised in the same manner as are people in other professions. I note that many people within the medical profession have welcomed the changes. Dr Andrew Keegan, President of the New South Wales branch of the Australian Medical Association, supported the move to greater scrutiny in the April edition of Australian Doctor magazine. Dr Keegan said:

It has become apparent that checks on those practising medicine in NSW were not up to scratch in the past few years. The community must be able to rely on the processes that are supposed to bring inappropriate practice to the attention of the authorities and ensure it is acted on and better still prevented.

Dr Andrew Dix from the New South Wales Medical Board told the SBS Insight program on 15 April that the New South Wales Medical Board supported this legislation. He said:

It's more than a code of ethics in New South Wales. It's a professional legal obligation on doctors. But now putting in the legislation will give encouragement to those [doctors] who might just be wavering and are not quite sure. So certainly we support it.

The Iemma Government has taken the lead on this issue. This legislation is the strongest in the country. It has been well received by our colleagues in other States and Territories, who may well follow our lead. The Medical Observer on 14 March stated:

The NSW Government is spear-heading radical new legislation that will make it compulsory for medical practitioners to report their colleagues' misconduct with other states including Queensland and Tasmania confirming they may follow.

Indeed, the federal President of the Australian Medical Association, Dr Rosanna Capolingua, told the SBS Insight program on 15 April that the case of Dr Reeves and others had highlighted the need for protective legislation. Dr Capolingua said:

I think that the cases we have been talking about contribute towards the need for this sort of protective legislation to evolve so that doctors can make clear complaints about their colleagues if they are concerned without feeling they are jeopardising themselves in the process and I think that's something that probably could be replicated across Australia.

These endorsements from those within the medical profession demonstrate that the Iemma Government is on the right track. I take this opportunity to thank some of the people with whom the Department of Health consulted in the course of developing this legislation. In particular, the New South Wales branch of the Australian Medical Association, the Australian Salaried Medical Officers Federation and the two regulatory bodies—the Health Care Complaints Commission and the New South Wales Medical Board—have provided useful input into the development of the changes to ensure they are both robust and practical. I also thank Ms Lorraine Long of the Medical Error Action Group.

At two meetings with the Minster Ms Long has asked for changes to the law to make complaints procedures more transparent. I agree that this objective is important and represents a key element of the changes the Government is proposing in the bill. Finally, I thank Ms Deirdre O'Connor, who agreed to take on a review of the amending legislation prepared by the Government earlier in the year and who identified a number of further changes. The two key purposes of the changes are patient protection and the accountability of the statutory disciplinary system. I believe the patient protection role of our regulatory system will be reinforced and enhanced by a system of mandatory reporting that focuses on serious misconduct and provides protection for those who make such reports.

Strengthening the emergency powers of the medical board to allow consideration of multiple and similar complaints will also give the regulatory authorities a greater range of options when faced with poor practice or continued poor and substandard practice by doctors. The changes also ensure a far greater level of accountability and transparency by opening up the professional standards committees to external scrutiny and by ensuring a greater role for non-medical practitioners in the disciplinary process. I am confident that, taken together, this package of reforms will make the New South Wales legislation among the strongest and most accountable in Australia. I commend the changes to the House.

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

Motion agreed to.

Bill agreed to in principle.


Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.