Health Services Bill
HEALTH SERVICES BILL
The Hon. Dr B. P. V. PEZZUTTI [9.03 p.m.]: I move:
Page 6, clause 10. Insert at the end of line 29:
The amendment is self-evident. I believe that it is supported by a number of honourable members as well as the Minister. The Opposition’s aim in moving this amendment is to ensure that there is community consultation and community involvement in the planning of health services, and that area health services provide an annual report to the Minister on strategies and the results of those strategies. If the Minister wants reports other than an annual report he has the power to direct area health services to provide further reports from time to time. Communities should be more involved in their health services. The amendment provides for to-and-fro communication on implementation of the Minister’s health policy. The Minister will be able to receive feedback on how the policy is working and on whether appropriate health services are being provided in a timely and reasonable fashion. He will also be able to inform communities about problems with the provision of health services and to explain the policy arrangements to be implemented. With those few words I commend the amendment to the Committee.
The Hon. R. D. DYER (Minister for Public Works and Services) [9.05 p.m.]: The Government does not support this amendment. The importance of community involvement in health service planning and development, and the Government’s commitment to it, is reflected in the bill, which re-enacts existing provisions of the area health services legislation concerning community consultation and involvement in the planning and development of area health services. These functions have been expanded to acknowledge that other organisations in addition to the Department of Health may have an interest in and contribution to make to planning undertaken at a local level. The bill recognises the responsibility of areas to consult and co-operate with their local health professionals.
The Government is actively exploring strategies that might be used to facilitate community involvement in health. To this end, the Department of Health commissioned a health consumers project, which was managed by the New South Wales Council of Social Service - commonly known as NCOSS - to conduct a structured consultation with consumer and community organisations on the issue. The report of that project is now to hand and will provide a valuable resource to the department and areas in developing appropriate strategies for community involvement. The model performance agreement for area health services includes obligations on areas for community participation. Inclusion of this model provision in the area performance agreements will result in increased accountability within the health system in terms of community consultation and annual reporting on and evaluation of that accountability in accordance with clause 126 of the bill. Accordingly, the Government
is of the view that the bill already has adequate mechanisms for community consultation.
The Hon. ELISABETH KIRKBY [9.07 p.m.]: I am a member of the Temora healthy shires committee. I believe that that committee is to be replicated in all local government areas of New South Wales. The Temora committee is chaired by the chief executive officer of the local shire council. For almost six months the committee has been promised a briefing by Department of Health advisers on the Minister’s views and intentions for the delivery of health care not in the Temora region but in the Temora shire. Time and time again that meeting has been postponed because the Minister’s advisers have not been able to attend, for whatever reason.
The first couple of times the meeting was postponed the committee thought that there was probably a good reason for the postponement. However, I believe - I do not know what my fellow members on that committee believe - that there is no intention to consult us. The Minister will simply tell us what will happen. As I pointed out in my contribution to the second reading debate, this bill is retrospective legislation as it ratifies what the Minister has already done. The Minister established these expanded area health regions without the approval of the Parliament. The expanded regions were introduced at the beginning of this year. It is now December and honourable members are debating legislation to ratify the Minister’s actions in January and February.
Reverend the Hon. F. J. Nile: Without any authority.
The Hon. ELISABETH KIRKBY: Yes, without any authority. I do not accept this retrospective legislation, which is unfortunate for the Minister for Public Works and Services because I know that he is only acting on advice given to him by the advisers of his colleague the Minister for Health. He has no control over what the Minister for Health decides to do. The Opposition’s amendment is simple. It states:
(iii) to develop strategies to facilitate community involvement in the planning of those services and to report on the implementation of those strategies in annual reports and to the Minister,
The amendment does not bind the Government; it just says that people who need health care and who use health care services, and who pay for them through their Medicare levy or, if they are wealthy, through private health insurance, should have a medium through which they can have an involvement in the delivery of health services in their local area. The community has no control. People should have a forum through which they can explain to the Minister variations in health services in their area, why they may not be satisfactory and why they should be improved. The Government will not accept the amendment. I am beginning to believe that the Government has gone mad - everything is to be done by ministerial fiat, and anything that destroys ministerial fiat has to be shot down. For example, earlier today ministerial fiat was shot down by a threatening letter. I fully support the Opposition’s amendment. I do not understand why the Government will not accept it.
Amendment agreed to.
Chapter agreed to.
The Hon. ELISABETH KIRKBY [9.12 p.m.]: I move Australian Democrats amendment No. 1:
to develop strategies to facilitate community involvement in the planning of those services and to report on the implementation of those strategies in annual reports and to the Minister,
No. 1 Page 13, clause 26(2), lines 25-27. Omit all words on those lines.
(2) Of the persons appointed by the Minister:
(a) 1 is to be a person who the Minister is satisfied will represent the interests of the local councils whose local government areas are included in the area of the area health service, and
(b) 1 is to be a medical practitioner who the Minister is satisfied will represent the interests of the medical practitioners that practise in the area of the area health service, and
(c) 1 is to be a registered nurse who the Minister is satisfied will represent the interests of the nurses that work in the area of the area health service, and
I refer honourable members to clause 26, which states:
(d) 1 is to be a person elected in the manner prescribed by regulations under clause 2 of Schedule 5.
(1) An area health board is to consist of the following persons:
(a) the chief executive officer of the area health service (who holds office as an ex officio member),
The board is to be controlled by the Minister: he will choose the membership of the board. My amendment asks that the board comprise members who represent the medical and health professionals of the area and local government. I believe that this is important. I am not suggesting that the Australian Medical Association, the Royal Australian College of General Practitioners, the Nurses Association or any professional association should select candidates for membership of the board. The bill provides for the Minister to appoint between eight and 11 people to a board. I am merely asking that three of the eight be representative of medical and health professionals and of the local community. The Minister will obviously select people whom he believes will be sympathetic to his philosophy of health management in this State. My amendment provides for a broader cross-section of the community.
The Minister has introduced legislation that made changes to the area health boards. As a result, one chief executive officer has resigned, probably because he was not prepared to lose his integrity by diminishing health services to meet the budgetary constraints forced on him; one officer has been removed by the Minister; and the chair of the Greater Murray regional health board resigned before the legislation was introduced and before the Minister’s management plan had been in place for nine months. She did not believe that it would work and she was not prepared to attempt to carry out something that she knew was impossible, even though the Minister had appointed her to that position.
There have been teething problems with this legislation. In many cases the expanded area health boards are far too large to work and geographically they are unwieldy. At the very least, the people involved in the delivery of health care - that is, the health professionals - should have representation on the board. I am aware that the Opposition will not support my amendment, and I do not intend to divide the Committee. However, it is proper that I place my concerns firmly on the record. The Minister goes around the country saying that he wants community involvement in the provision of health care, but when we try to involve the community he backs off and says that he will not consider it. I commend my amendment to the Committee. It would be ridiculous for me to call for a division if the Opposition is not prepared to support it. My amendment is not unreasonable as it leaves the power in the hands of the Minister. I am suggesting that three people on a board of eight or 11 should represent health professionals and the wider community.
The Hon. R. D. DYER (Minister for Public Works and Services) [9.19 p.m.]: The Government believes that the Hon. Elisabeth Kirkby misunderstands the nature of corporate governance and the duties of board members to act in the interests of the area health service for the benefit of the community as a whole and not to represent particular sectional interests. I intend to deal with each part of the honourable member’s amendment in turn. The first proposal would insert a new clause 26(2)(a) to provide for a member of the board to represent local council interests. This amendment is not only contrary to the general legal responsibility that board members have to act in the interests of the area and not to represent sectional interests, but would also be entirely impractical to implement.
Each area health service covers a number of local government areas. If a person were chosen from one particular local government area it might well be viewed as a bias towards that local government area at the expense of others. Furthermore, clause 10(f)(iii) of the bill places a responsibility on area health services to consult and co-operate with organisations, including local authorities, concerned with the promotion, protection and maintenance of health. This is the right and proper place in the bill for the relationship between area health services and local government to be reflected. I deal now with the proposal to insert new paragraphs (b) and (c) into clause 26(2). Paragraph (b) provides that a member of the board be a medical practitioner representing the interests of local doctors. This amendment treats the medical profession more favourably than other health professional groups, such as physiotherapists, pharmacists and psychologists, who also practise in an area. The Government is not prepared to put medical practitioners in a more privileged position.
The Hon. Elisabeth Kirkby has sought to assuage the concerns of the nursing profession by adding paragraph (c) to clause 26(2), which provides that a registered nurse be appointed to the board to represent the interests of nurses. This latest formulation does not rectify the flaws in the Democrats amendment. Firstly, the nursing profession comprises not only registered nurses but also enrolled nurses, and the latter receive no recognition under the Democrats amendment. Secondly, all the amendment does is place part of another profession in a more privileged position than other health professionals. There are already strong and effective mechanisms in place to ensure proper
liaison and communication with health professionals practising in an area. Firstly, registered doctors and nurses employed by area health services have the same rights as other health care workers to stand for election as the staff member of the area board.
Secondly, under the model by-laws for area health services, medical staff council representatives have the right to attend board meetings. Thirdly, clause 10(f)(ii) of the bill places upon area health services the responsibility of consulting and co-operating with all health professionals practising in the relevant area. This provision is not restricted to the medical profession or to registered nurses, but extends to all health professionals providing care to the local community. The Government is not prepared to put certain health professionals in a more privileged position than other health professionals, or to value the input of one professional group more than another. The Government is not prepared to depart from the well-established principles of corporate governance that board members have a duty to act in the interests of the area health service for the benefit of the community as a whole and do not have some statutory obligation to represent external sectional interests.
It is for this very reason, similar to the position that pertains currently under the Area Health Services Act, that the staff elected member provided for in clause 26(2) of the bill is in no way designated under the bill to "represent" the interests of staff. The honourable member misunderstands the board’s role. It is not one of direct representation of the community or particular sections of the community, but of discharging its duties and functions in the interests of the community as a whole. If the amendment proceeded, it would place certain board members in a position of conflict between their fiduciary duty to act in the interests of the area health service and the obligation envisaged by the amendment to represent a particular sectional interest, be it local councils, or local doctors or nurses. Furthermore, the amendment fails to address how this conflict should be resolved. The amendment, in the Government’s view, is fundamentally flawed and for the reasons I have outlined is not supported.
The Hon. Dr B. P. V. PEZZUTTI [9.24 p.m.]: I can understand that the Hon. Elisabeth Kirkby was concerned about this issue when she read the bill because she had had the experience of the board of the New South Wales Cancer Council and the Minister’s decision to appoint to that board a whole range of people with no experience of treatment of patients with cancer. That board’s rapid demise meant that the Minister had to remove the unionists and others and start again. The Opposition sympathises with the intent of the amendment, which seeks to ensure that the decisions of members of the board are tempered with the tradition of caring for the community; and that board members should not be trying to keep the Minister happy or do what is fashionable, but should also have some idea of what is going on in the system.
My colleague the shadow minister, the honourable member for North Shore, and I have had discussions with a number of people, including members of the Australian Medical Association. That association did not support the suggestion that the board should include a medical officer to represent the views of medical practitioners. Surprise, surprise, the AMA agrees with the Government that the function of area health service boards and board members is to focus on the care of the community. Members of such boards should not be people who are there to push a particular barrow. The Opposition also had discussions with Debbie Picone from the college of nursing. The Opposition sought the views of both organisations concerned with the honourable member’s amendment about the suggestion that a clinical person might be appointed by the Minister - a dentist, pharmacist, physiotherapist, podiatrist, medical practitioner or registered or enrolled nurse - in other words, someone from the broad grouping of clinical practitioners.
On one of the few occasions that officers of the department have been keen to speak to me and to Mrs Skinner, they made it clear that, as a matter of principle, the Minister would always appoint a doctor to the board and that he confidently expects that the representative elected to the board by the staff will be a nurse. The nurses have the numbers and that is how it generally pans out. The Hon. Elisabeth Kirkby will get her wish, according to the Minister and the department, but it will not be the role of members to represent the sectional interests from which they have been drawn: their role will be to represent the whole community. The person elected could be a paramedic or a radiographer, but it will be a person who is well known and respected; someone who moves around the hospital and is widely approachable.
The Minister will have to choose the appointees very carefully, because if a board does not have credibility in the community it will lose its ability to do what needs to be done. I trust that people of stature will be appointed who will ask the appropriate questions, and that the medical staff council representative who generally attends
meetings of the board will give appropriate reassurances and draw people in so that there is a co-operative arrangement not only between the medical practitioners, the visiting medical officers and staff representatives, but with the wider community as well. That is why the Opposition moved an earlier amendment, which was strongly supported by the Hon. Elisabeth Kirkby. Although we understand the reason for the amendment, on this occasion the Opposition cannot support it.
The Hon. ELISABETH KIRKBY [9.29 p.m.]: I would like to make a few comments in response to the Minister. If I recollect correctly, he said that my amendment was fundamentally flawed. I believe the Minister’s reasoning is fundamentally flawed. The area in which I live is covered by the Greater Murray Area Health Service. In order to meet the needs of Treasury - not the needs of community health, not the needs of patients, but the needs of Treasury - that service has refused to allow specialist practitioners to continue to provide an obstetric and gynaecology service in Albury. That service has been outsourced and obstetric and gynaecological patients in Albury will now have to go to Wodonga. The Greater Murray Area Health Service is setting up a contract with the Victorian Government.
The specialist obstetricians and gynaecologists who have offered their services in Albury have been abandoned. That is not in the best interests of community health and it is certainly not in the best interests of women, particularly pregnant women, because it is documented that Victoria has the highest intervention rate of surgical procedures in child birth of any country in the western world. It is higher than Canada and it is higher than anywhere else in the world where western medicine is practised. The service has been abandoned purely for financial reasons. It will relieve the area health board of a financial obligation that it no longer wishes to carry because it is vastly in debt. The area health board has been told that it has to come in close to budget, if not under budget, and that it will not get any further funding.
The Hon. R. T. M. Bull: But it works both ways: a lot of Victorians go to the Albury Base Hospital.
The Hon. J. R. Johnson: The same thing happens in Coolangatta: they come into New South Wales.
The Hon. ELISABETH KIRKBY: It is not the same. The women of Albury are losing a very successful service because the area health board has taken it away from them. They will not be able to go to the Albury Base Hospital because no obstetric beds will be available. They no longer have the choice. I do not know about Coolangatta because I do not know what the choices are in the north of New South Wales, but in Albury on the Murray River women will no longer have the choice. This is one of the reasons I believe my amendment is important. I fully appreciate what the Hon. Dr B. P. V. Pezzutti has said - what he placed on the record is what he has said to me privately - but I do not believe that the method the Minister is using to set up area health boards reflects the needs and wishes of the community.
I make that comment specifically as a member of General Purpose Standing Committee No. 2 that is inquiring into health services in this State. An increasing amount of correspondence has been received by that committee, particularly correspondence concerning delivery of health service in the south of the State under the control of the Greater Murray Area Health Service. More letters come in from that area than from any other part of New South Wales. The community is desperately concerned about the closure of its hospitals and the loss of services. Under this legislation the only people who will be able to represent the community are those appointed by the Minister. Do we honestly believe that he will appoint anybody who does not follow his belief and his philosophy? Of course we should not. I will not push my amendment because I do not have the numbers. It is the way the Minister is trying to set this up that is fundamentally flawed, not my amendment.
Reverend the Hon. F. J. NILE [9.34 p.m.]: The Christian Democratic Party sympathises with the amendment moved by the Hon. Elisabeth Kirkby for reasons similar to those she has outlined. We are on record as opposing what has become a centralised, bureaucratic approach to the health system, with a dramatic move away from local hospitals, local hospital boards, volunteer workers and people who were motivated and involved with their local hospitals. Of course, this has happened over a number of years, and both sides of politics have been involved in that change. It seems that governments do not realise the community interest in local hospitals. Unfortunately, much of that interest has dried up because we now have a bureaucratic machine overseeing the area health services.
The Hon. J. R. Johnson: You can’t go back to that.
Reverend the Hon. F. J. NILE: There should have been some compromise to maintain local interest and involvement, but now that is completely lost. This amendment seeks to address that situation by ensuring that someone from the local council, someone who is a local doctor, or someone who is a registered nurse is on the board, although, as the Hon. Dr B. P. V. Pezzutti said, it is usual for a registered nurse to be the elected representative, so two nurses might end up on the board. Although I believe that the principle is correct, the wording of the amendment may be wrong. It is not as though those on the board are like union members representing the Australian Medical Association -
The Hon. J. R. Johnson: You have voted against that on numerous occasions.
Reverend the Hon. F. J. NILE: I know, and that is what I am saying. That is the way the amendment has been drafted. I believe the wording of the amendment probably goes beyond what the Hon. Elisabeth Kirkby had in mind. We support the amendment in principle.
Chapter agreed to.
The Hon. ELISABETH KIRKBY [9.39 p.m.], by leave: I move Australian Democrats amendments 2 and 3 in globo:
(b) persons (not being less than 8 or more than 11) appointed by the Minister.
No. 2 Page 46, clause 71, line 9. Omit "destitute people". Insert instead "persons unable to pay".
The Hon. Dr B. P. V. Pezzutti: Tell us why you are doing it.
The Hon. ELISABETH KIRKBY: The Hon. Dr B. P. V. Pezzutti has asked me to say why I am doing it. I would have thought that was crystal clear. The bill contains the words "destitute people". In law, one would have to prove if one was destitute, which is totally different from not having the means to pay. Fortunately, very few people are totally destitute but many thousands are unable to pay.
The Hon. R. D. DYER (Minister for Public Works and Services) [9.40 p.m.], by leave: I seek to amend the amendments by moving Government amendments Nos 1 and 2 as circulated in globo:
No. 3 Page 46, clause 71 , line 11. Omit "destitute".
No. 1 That amendment No. 2 be amended by omitting "unable to pay" and by inserting instead "without means".
There are some technical legal concerns with the amendments proposed by the Hon. Elisabeth Kirkby. Firstly, as the honourable member said, the terms "destitute" and "unable to pay" are not synonymous. The term "unable to pay" is broader than "destitute", which means bereft of means. Hence, the Democrats amendment actually broadens the circumstances under which a hospital must treat a person without payment. Secondly, the provisions concerning destitute persons re-enact existing provisions of the Public Hospitals Act. These and similar provisions in other jurisdictions have been the subject of case law with regard to the status of hospitals as firstly, public hospitals, and secondly, public benevolent institutions for the purposes of exemptions under Commonwealth taxation legislation. Courts consider that hospitals, in providing relief from sickness and treating destitute persons, assume a public benevolent role.
Furthermore, the requirement under the Public Hospitals Act that third schedule institutions receive destitute persons without payment was one relevant factor in concluding that such institutions were public hospitals for the purposes of Commonwealth taxation legislation. Clause 71 of the bill has taken a cautious legal position in re-enacting provisions that have supported public hospital and public benevolent status in the past. To reflect the honourable member’s concern about the term "destitute person", it is proposed to substitute the term "person without means" rather than to remove the term altogether. The substituted term will not alter the existing intention of clause 71 and is consistent with the wording of clauses 70(1) and 73.
The Hon. Dr B. P. V. PEZZUTTI [9.42 p.m.]: The Opposition is perfectly happy with the Minister’s explanation and his amendment to the sensitive amendment moved by the Hon. Elisabeth Kirkby, which the Opposition supports.
Amendments of amendments agreed to.
Amendments as amended agreed to.
Chapter as amended agreed to.
Bill reported from Committee with amendments and passed through remaining stages.
No. 2 That amendment No. 3 be amended by omitting "Omit "destitute"." and by inserting instead "Omit "destitute person". Insert instead "person without means".".