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- 17 November 2004
Health Legislation Amendment (Complaints) Bill
Health Registration Legislation Amendment Bil
Nurses and Midwives Amendment (Performance Assessment) Bill
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HEALTH LEGISLATION AMENDMENT (COMPLAINTS) BILL
HEALTH REGISTRATION LEGISLATION AMENDMENT BILL
NURSES AND MIDWIVES AMENDMENT (PERFORMANCE ASSESSMENT) BILL
Page: 12961
Second Reading
Debate resumed from an earlier hour.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [2.32 p.m.]: It should be acknowledged that the health system cannot be fixed by legislation. If John Laws thinks somebody ought to spend longer in gaol, or if a committee finds that the health system does not work very well, the Government comes up with a flurry of legislation so it can be seen to be doing something. We saw it with the registered clubs legislation, which was introduced after someone did something the Government did not think was right. I am surprised we do not have legislation before us to make sure the trains run on time.
The health system is complicated and needs to be fixed in a systematic fashion. If one looks at a systems analysis, the health system is the victim of the division of responsibility between Federal and State governments and their attempts to behave like corporations and try to shift costs. The classic corporate method is to privatise the profits and socialise the losses. This Government is trying to act like a corporation and shift the costs elsewhere while keeping the money. This is particularly unsatisfactory when it distorts the major components of health policy. John Menadue, former head of the Prime Minister and Cabinet Department, and a distinguished Chief Executive of Qantas, said the problem with the health system is that nobody is in charge and nobody takes responsibility for it. That is right. Lest I be accused of humbug, I have devised a 10-point plan to fix the health system. The first thing to do is prevent health problems. In that way people will not need to go to hospital.
Reverend the Hon. Dr Gordon Moyes: Have you proposed this before?
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Yes, I have, but it needs to be done again; it has not made any difference. Prevention saves a lot of money, yet the Government does not even have a decent tobacco policy. It is introducing a tobacco policy that should have introduced 20 years ago, to take effect in 2007. With 12 deaths a day caused by tobacco, the Government is waiting until 2007 to try to change the norm in clubs. That demonstrates how slack it is. It is spending less than $2 million on Quit programs when it should be spending more than $50 million, according to the best world evidence. This Government is not promoting prevention, nor is prevention being promoted at the Federal level.
The second point in the plan is to get a single source of funding. Basically, the Federal and State governments must work together to get a single source of funding so that the major driver of health policy is not cost shifting between Federal and State or to the private sector. We need to fund one system. Those who want to go outside that system can pay. The Howard Government's policy of subsidising private health insurance is extremely foolish, because it is an uncapped system. Also, the shifting of costs between the hospital system and the non-hospital system—which, of course, is Medicare, private funds and individuals paying for their own health system—is bad. Figures on hospital admissions are distorted by whether patients are private or public patients, because the Government is trying to get money from other sources.
My third point is that to get a better deal we need to use competition carefully, but we must not assume that the market will deliver a good system. The market will deliver the most money to the people who provide the service. It might be quite good at procedural efficiency but it is extremely bad at allocative efficiency if there is no serious mechanism for allocative efficiency. In other words, one might be doing the wrong thing very efficiently but it is still the wrong thing. We need a bureaucracy—perish the word—to assess what needs to be done and set the priorities, and to use the market only within those priorities.
The fourth point is that we must integrate the community support system with the acute system. That is difficult because the community system is supported in part by local government, in part by the Federal Government and in part by the State Government. The acute hospital system is supported broadly by the State Government, although it is increasingly being supported by the private hospital system. As I say, there should be one system, and community support should be integrated into that system. If people can be looked after at home, hospital admission costs will be reduced, and that will reduce the strain on the emergency system, which is the part of the system that is cracking most conspicuously.
The fifth point in my plan is the need for public discussion of the limits of intensive care. The Government, under the previous Minister for Health, Craig Knowles, included in advisory committees people who might have been his enemies. Effectively, he has entrenched a lot of vested interests. Intensive care is a very sensitive issue, but intensive care beds are often used by people who need considerable nursing resources, at great cost, when their long-term prognosis for quality years of life is poor. It is a total misuse of resources. We need to talk openly about the policies of admission to intensive care.
My sixth point is that pharmaceuticals are an increasing percentage of the Health budget. We must make more intelligent use of investigation of pharmaceuticals. To do that we need a research project to show which drugs are the most cost-effective. The assessment process, which currently is performed by the Pharmaceutical Benefits Advisory Committee, should compare not just pharmaceuticals to other pharmaceuticals but pharmaceuticals to non-drug modalities. Drugs used for smoking cessation are very expensive. In total, $160 million was spent on those drugs. Compared against doctors just advising patients to quit, they doubled the success rate but, dollar for dollar, if that much money was put into a television Quit campaign there would be far more success and many more health benefits.
I believe that pharmaceuticals are being misused. Some of the drugs used to increase bone density—the evidence for them is somewhat dubious—are not as effective as quitting smoking, undertaking exercise programs and having good nutrition would be in the elderly. But there is no research comparing the two methods because research now is being jointly funded, for short-term gains, with drug companies to a large extent, and after the Wills report again that is quite unwise. Doctors should be mindful of what pharmaceuticals they are prescribing. In a very worrying article in today's Daily Telegraph Dr Johdi Menon refers to a very smart computer program that will collect information from doctors about the drugs they use. The doctors can then make money by selling that information to drug companies.
But once again the pharmaceutical companies will be much better able to target doctors to get them to use their products. The marketers will become even more important than the scientists in the choice of drug that is used. That is a bad thing. The cost of pharmaceuticals as a percentage of the total cost of the health system is climbing. It would be a brave man who said that this spending is cost-effective. Overuse of diagnostic systems is favoured by the market system, where everything is profit driven. As with pharmaceuticals, that must be subject to cost-benefit analysis.
My seventh point relates to reform of medical indemnity, replacing tort law with a safety management system. That refers to the Health Care Complaints Commission, which I will come to later. The adversarial system of medical indemnity is expensive. It is forcing doctors out of practice. It delivers a culture of fear and cover-up rather than a willingness to look at the system, and that is very worrying. My eighth point relates to paying a reasonable Medicare rebate and moving towards a salaried medical service. If doctors want to be millionaires they should not do it on the back of sick people. Basically, there are plenty of people who are interested in being doctors on a reasonable salary, and doing a job for humanity. They would be willing to work for reasonable salaries or even a reasonable fee for service. Medicare has been run down against the consumer price index for about 30 years, which is why doctors are abandoning it. They are criticised for being greedy, which is ridiculous from a government that for many years has effectively starved them of a reasonable return for their work.
My ninth point relates to setting up community medical centres, including salaried paramedical personnel, so that doctors are not doing things such as marriage counselling—things that they are unsuited for and do not have time for. Some of the work that general practitioners do could be done by others, making better use of medical resources. My tenth point relates to the establishment of a national dental scheme. Of course, the vested interests are dead against this. I could give many reasons for this being the case. Those are my proposals for the health system.
These bills do not do much in this regard. They try to lay some of the failures of the health care system at the foot of the Health Care Complaints Commission [HCCC]. The commission was set up on a model that, to a large extent, assumes that problems were caused by poor communication or by a few bad apples who had to be chased along. This is a fairly primitive model of mistakes in industry. Most failures are system failures in which a number of miscommunications, misunderstandings or gaps in the system lead to adverse outcomes. A series of relatively minor problems that are not identified lead to a bad outcome. If this happens continually it may reset the bar as people then expect relatively poor outcomes.
When I moved from Australia to Britain in 1979 I found that the standard at Royal Prince Alfred Hospital was far higher than the standard at hospitals I went to in Britain. Doctors said, "Oh well, they are old. You would not do that sort of treatment in someone this old." There was a lowering of expectations, a more philosophic approach to dying. That is fine, but not if, with a little more effort and intelligence, people could be saved. This lowering of expectations can happen by stealth. I note that the legislation refers to root cause analysis. But what are the limits of the root cause analysis? The systemic problems in the health department between the Federal, State and private systems have their root cause in the misapplication of resources.
There may be difficulties in communication between the emergency department, the ward and the intensive care unit. There may be difficulties in communication between shifts. There may be difficulties in communication because of a lack of Australian-trained staff and because of people with poor language skills. It may be difficult to find qualified doctors to fill many jobs. The rundown in the hospital system means that certain hospitals have staffing difficulties, and I do not just mean remote hospitals. I visited John Hunter Hospital in Newcastle, which is the second-biggest city in New South Wales. John Hunter is probably the newest hospital in the State. It is huge, it is complete, it has a medical school, and it has all the bells and whistles. Yet it could not staff the emergency department without declaring it an area of need and advertising worldwide.
Stating that there are only a few little old hospitals that are having problems and that it is not a systemic problem might be convenient for the Government, but it does not relate to reality. Night shifts in country hospitals are far less pleasant than having even the smallest general practice, where at least staff work in daylight hours. Staffing difficulties mean that existing staff have to be spread more thinly, and the likelihood of having a mishap in the back ward is extremely high. The problem will not be fixed by the legislation. The Walker report did not come to terms with the question of whether an adversarial system or a supportive system is needed in health. The fact that a lawyer was put in charge of the HCCC sends a message that it is going to have a prosecutory function, which is quite worrying.
Amanda Adrian was very much made a scapegoat for the failure of the HCCC. As I said, I think that the commission's model was one of finding a few bad apples and improving communication with the bulk of the people. I am not sure that having a centralised body improves communication. To improve communication between doctors and patients perhaps there should be a patient advocate in every significant hospital. Seminars for the doctors and patient advocates may show that they are not communicating well. Patient feedback may show which doctors are communicating well and which doctors are not. Information from patients could be discussed at meetings so that doctors know how well they are communicating. That imposes pressure to change the norm in terms of the need for doctors to communicate with patients. It does not cost very much either.
Under the leadership of Amanda Adrian, the Health Care Complaints Commission tried to establish a more systemic model that was more in keeping with the risk management theory taught in most industries to deal with industrial accidents. It was developed in the aviation and oil industries, in which a number of small mistakes can lead to tragedies. If those mistakes are corrected early enough, tragedies can be avoided. Those mistakes relate to maintenance problems and external and human factors. Because of the belief that the problem was a few bad apples and a communication breakdown, Amanda Adrian was not provided with the appropriate resources to examine the entire health sector. She tried to get the resources to do that, but she was very slow because huge amounts of material came to light from the whistleblower nurses and elsewhere.
More than 100 cases were brought to her attention, of which 70 were found to be worthy of investigation. The inability to get the necessary personnel and resources together quickly caused delays, which made her report look bad, and there were suggestions that she was covering up. Her unwillingness to blame individuals also caused her demise. It is interesting that throughout this process no blame was sheeted home to administrators. If administrators limit the staffing decisions that can be made by departmental heads it can result in staff skills being stretched to breaking point and inadequate backup. Those decisions made by administrators are not capable of being criticised. We must also question how far the root cause analysis is allowed to go.
Can it examine the faults between the Federal and State governments, the allocation decisions made in area health services, within NSW Health and within hospitals, and the skill levels of the junior staff? They may be stretched to the limit of their knowledge or capacity to care for the number of patients requiring attention. If two patients are very sick at the same time that can cause unreasonable pressure to be placed on staff. Simply changing the HCCC to a more adversarial model will not help. Perhaps we should go for a systems analysis model. I know the Clinical Excellence Commission tries to get doctors to look at their practice patterns systematically. If they try to do that in a framework in which anything may be used against them it will be very difficult.
The Utah model is interesting. Under that model, if doctors report to the administration within 48 hours of their becoming aware of a significant event in which they played a part and in which their performance might not have been optimal, they are defended by the hospital system. At the moment our hospital system defends itself and doctors to some extent, but it has a discretion. Therefore, doctors must carry their own insurance in case the hospital does not believe someone else was at fault. In Utah, provided the doctors confess within the time frame, the system will defend them, no matter how incompetent they might have been. That leads to a huge number of problems being identified and prevented. Analysis of the system is much more effective. It was found that more than 50 per cent of the errors related to medication, but not to incorrect prescriptions. In other words, a weak or small person who was given a standard dose was often overdosed because his or her body could not cope. A large number of the other errors related to the system. The percentage of clinical mistakes was very small; in fact, they represented less than 10 per cent of the total.
Given that situation and the chance of miscommunication being extremely significant, I am not sure that an adversarial model is what is needed. Perhaps the HCCC should simply define what happened and facilitate communication. Once it has discovered what went wrong, the Medical Board or some external body could then pursue the prosecution. The Medical Board could then look at the medical revision system, which I have said for some time is mickey mouse in New South Wales. However, Professor Brian McCaughan from the Medical Board assures me that it is better than it was and that he is working on it. The Health Legislation Amendment (Complaints) Bill is designed to blame the HCCC.
The one bright note in the window-dressing of this legislation is the amendment to section 98 of the Health Care Complaints Act. This amendment will provide protection from liability for complainants who make a complaint in good faith. Hopefully, the whistleblower nurses can take some heart from that. However, given what happened to them, it is hard to believe that anyone else will follow that path. I believe that none of them is now working in the health system and none is likely to be in the future. That in itself is a very strong and worrying message.
The Hon. Duncan Gay: Every day I get people ringing up and complaining but not willing to say anything publicly because they have been threatened.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I have had the same experience. One caller who telephones me regularly with information will not give me his name. I call him "Anonymous One", and when he calls that is how he identifies himself. He is in one of the health systems. The point is that whistleblowers have had a very hard time in this State, and that situation is not likely to improve. Of course, whistleblowers and many of the inquiries that this House conducts would not be necessary if there were a more open culture within this Government.
In general, this legislation has some good components. The ability to examine the conciliation process and complaints resolution is a step in the right direction. The separation of a team to undertake the root cause analysis may be helpful. It is all very well for bureaucrats to examine issues, but if the Government provided the appropriate resources to the people doing the job many of the problems would be solved. A root cause analysis model is all very well, but for every person analysing there is one less person doing the job. A person high up in the mental health system has told me that 50 per cent of his time is spent managing issues and communicating upwards about things that might happen. The more time he spends analysing and passing information about errors up the line—covering his bosses politically—the less time he spends preventing the errors occurring in the first place.
There is some danger too in analysing things to death in terms of resource allocation. I have asked the Minister for Health to determine how many people are involved in the front line; it is important not to have doctors driving everything, lest all attention is given to intensive care rather than prevention because that is more interesting and exciting and, of course, more politically sensitive. So we need to know exactly what people are doing. That is a key allocation decision, and not one that should be made by the market. Sometimes I think such decisions should not be made by doctors either because doctors are very patient-focused and concentrate on the needs of their patients at the moment and fight for those needs. The fact that with better prevention their patients would not be in hospital at all is a consideration that, I am afraid, does slip off the radar sometimes.
In essence these bills are tinkering. Some of them are the result of the inquiry conducted by Bret Walker, SC, who was very focused on what legislative changes should be recommended. I suppose that as a barrister of some experience who may one day become a judge he concentrated on what the law should be. Of course, he is very familiar with the adversarial model, although in his seminars he indicated that he still did not completely believe that that was the best way to manage risk. I am not sure that the changes to the HCCC reflected that degree of enlightenment. These bills are neither particularly bad nor particularly good; they are minor tinkerings. They make some progress, but I do not think that this is the way to fix the health system—and I do not think we should pretend that it is.
The Hon. PATRICIA FORSYTHE [3.01 p.m.]: The Health Legislation Amendment (Complaints) Bill and its cognate bills, the Health Registration Legislation Amendment Bill and the Nurses and Midwives Amendments (Performance Assessment) Bill, represent yet another chapter in what could be described as the Camden and Campbelltown saga. One hopes, though, that these bills will draw that long and sorry saga to a conclusion. The bills are the result of the review conducted by Bret Walker, SC, into the Health Care Complaints Commission [HCCC], which arose out of concerns that insufficient action had been taken to properly examine the complaints that had been raised by the whistleblower nurses at the end of 2002. But it is possible to conclude that the HCCC was, to some extent, made a scapegoat for some of the problems within the system. Notwithstanding those matters, the Opposition certainly supports the bills.
Although we supported the inquiry conducted by Bret Walker, we argued that a much wider inquiry of the level of a royal commission was needed, so deep were the problems that were then identified in the health system and that, apparently, were not restricted to Camden and Campbelltown. Notwithstanding that, the inquiry was conducted and these bills are an outcome of that inquiry. The proposed legislation represents a clearer direction for the HCCC, and one needs to read the overview of the bill to learn what the commission will be doing. The HCCC will focus on dealing with serious complaints concerning health practitioners, health service providers and the provision of health services. It will establish the Health Conciliation Registry as a separate unit to deal with the conciliation of complaints and to enable the commission, in appropriate circumstances, to deal with complaints through alternative dispute resolution procedures. The HCCC will be required to appoint a member of staff as Director of Proceedings to exercise the function of the commission of determining whether a complaint should be prosecuted before a disciplinary body. There will be changes to other legislation flowing from these bills.
Schedule 1 to the Health Legislation Amendment Complaints Bill will amend the principal Act—the Health Care Complaints Act—by replacing section 3 so as to make it clear that the primary object of the Act is to establish the commission as an independent body for the purpose of receiving and assessing complaints relating to health services and health service providers, investigating and prosecuting serious complaints and resolving or overseeing the resolution of complaints. The proposed section also provides that, when exercising functions under the principal Act, the primary object of the commission is the protection of the health and safety of the public. That is the background against which it is appropriate that we examine the past operations of the HCCC and why it was found to have not acted to safeguard the community in relation to the complaints raised about Camden and Campbelltown hospitals.
I now turn to the evidence given by former Health Care Complaints Commissioner Amanda Adrian to the General Purpose Standing Committee No. 2 inquiry into complaints handling within NSW Health—a committee of this House that conducted an inquiry concurrently with the Walker inquiry. Former Commissioner Adrian told that committee:
I was appointed to the position of Health Care Complaints Commissioner in 2000 with the following as my platform: providing the community with an effective, independent watchdog agency for the health system; developing the commission as an organisation that was taking a more systemic view of the challenges to safety and quality in the health system; and introducing a significant change program aimed at changing the perception of many health professionals that the commission was solely an instrument that was bent on seeking out the "bad apples" in the health system, humiliating them by investigating them and taking disciplinary action through a formal prosecution for professional misconduct. In my view, this new approach would lead to a culture of learning and a willingness to share information about errors, and the failures of the system, and it would encourage open and active discussion and improvement in health care. This is fundamental to a safe system providing high quality care.
They really are good and lofty aspirations, but it is quite clear that within the system at the time was a group of whistleblower nurses, as they became known, who recognised the problems in the system and the significant issues of concern at Camden and Campbelltown hospitals in particular. They decided to share their information, but their desire to get action was simply not taken up appropriately by anyone in the system—from the Minister for Health down. Failures in the system were not accepted; there was no sense of open and active discussion or any real attempt to improve the health care system. Rather, when we talk about shame and blame, those who received the blame in all this were the nurses. The Hon. Dr Arthur Chesterfield-Evans said that virtually all of them—I think one may still be practising in the health care system—were effectively forced out of the system. Whatever might have been the lofty aims of the Health Care Complaints Commissioner, the reality is that the culture simply did not encourage an open and active system.
This legislation will count for nothing unless the Government properly resources all its agencies, and that means, in the first place, the health department, next the area health services and then its investigative bodies. I was not present in the Chamber this morning when the Hon. Dr Peter Wong contributed to this debate; I was meeting with a large number of people who had travelled from Batemans Bay to express their concerns about the inadequacies of their hospital system. I will have something to say about that in debate on other legislation today.
However, I understand that the Hon. Dr Peter Wong suggested that the problem for the commission was not resources. That differs from evidence taken by General Purpose Standing Committee No. 2 from former Commissioner Amanda Adrian, who outlined her vision and then stated that she had encountered an enormous backlog of delayed investigations. She said they had been accumulating from the days of the complaints unit and an inability to meet the expectations of some parties, complainants and respondents, about matters under investigation. She stated it was an organisation that required a more robust system and quality measurement in a number of vital areas. Importantly, she said:
The appropriation from Treasury was not commensurate with this growth in activity, despite constant requests for additional funds. I note with great interest the recent injection of significant additional funds by the Minister for Health to assist in reducing the backlog of investigations. These funds are equivalent to nearly 100 per cent of the previous appropriation. I make reference later in my statement to the resource implications of the Macarthur investigation.
We now have these bills. However, unless the Government acknowledges its responsibility to adequately resource the commission, the objectives of the bills will count for nothing. The committee received evidence that the commission had been inadequately resourced. Indeed, it was not until Commissioner Adrian was dismissed that the Minister provided additional funding because the matter was regarded as politically hot. The Opposition welcomes the proposed legislation, although I note that it only provides the requisite framework. An important element of it is the concept of professional misconduct, which is provided for in the Health Registration Legislation Amendment Bill. Paragraph (a) of the overview to that bill states:
to standardise, as far as possible, the concepts of "professional misconduct" and "unsatisfactory professional misconduct" where used in those Acts so that they relate to conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the relevant health practitioner in the practice of their profession is significantly below the standard reasonably expected of such a health practitioner of an equivalent level of training or experience.
It refers to other matters that a professional person may be accused of neglecting, such as the taking of appropriate action when complaints are made. The bill provides a clear definition of what might qualify as unsatisfactory professional conduct, and that is appropriate. I do not wish to take up too much more time of the House; the background and history of the legislation are well understood. However, I again make the point that the legislation itself will count for nothing unless the Government has the will to properly resource the Health Care Complaints Commission so that it can do its job effectively. The Hon. Dr Arthur Chesterfield-Evans and I differ on this point because he is enamoured of the approach Commissioner Adrian had in place: a systematic approach towards the health system viewed within that framework, rather than a prosecutorial approach.
The Walker inquiry highlighted that inadequate action had been taken, that clearly faults had been identified and errors made. It also found lack of professional conduct by some people and lack of appropriate follow-up. Some deaths may not have occurred if appropriate investigations had been undertaken at the right time. I do not oppose the legislation and acknowledge that it is the logical outcome of the inquiry undertaken by Bret Walker, SC. However, I reiterate that it will stand for very little unless the Government accepts its responsibilities to provide appropriate resources in order to have a proper health complaints system.
Reverend the Hon. Dr GORDON MOYES [3.15 p.m.]: It is quite clear that the main objective of the Health Legislation Amendment (Complaints) Bill, and cognate bills, is to refocus the Health Care Complaints Commission [HCCC] on investigating serious complaints about health service providers, to improve the operation of the health complaints handling process and to give proper protection to complainants, practitioners and the general public within this framework. The new objectives centre on the Health Care Complaints Commission and its complaints-handling function.
Specifically, the first objective of the bills is to refocus the HCCC on investigating serious complaints about health service providers. It will do so by providing new objectives for the HCCC, which will emphasise that its primary role is the investigation of serious complaints. The bills will clarify the definition of "unsatisfactory professional conduct", thereby giving the HCCC the flexibility to refer matters to a registration board for consideration and apply performance assessment provisions to nurses and midwives.
The second objective is to improve the operation of the complaints handling process to make it faster and more effective. It is proposed to achieve this by removing the requirement for statutory declarations to be provided by a complainant and empowering the HCCC to require the production of hospital, medical and practice records. The third main objective is to make the complainants system fairer for all parties by giving proper protection to complainants, practitioners and the general public within this framework.
Further, the bills will implement the special commission of inquiry recommendation that the HCCC must properly identify doctors and nurses who are the subject of complaints and the allegations against them. Additional protections are provided for those who make complaints. Complainants will be protected from liability if they make a complaint in good faith. The bills also propose to transfer the Health Conciliation Registry to the HCCC so that the one body can perform all dispute resolution functions. A number of safeguards have been included to ensure that the conciliation functions are kept independent of the HCCC's investigative functions. As recommended by Commissioner Walker, these changes will ensure that challenges based on oppressiveness or delays are not prevented.
I thank Justice Kenneth Taylor, who, as the new Acting Health Care Complaints Commissioner, has set the organisation on a new path towards providing a more accountable complaints process. I take this opportunity to thank also Mr Bill Grant, who stepped in as interim commissioner of the HCCC, and the New South Wales Cabinet Office for its work in the review of the Health Care Complaints Act. The bills seek to implement the recommendations of the special commission of inquiry into Campbelltown and Camden hospitals and the Cabinet Office review of the Health Care Complaints Act of 1993. A number of exposure draft bills were tabled in Parliament, together with an introductory paper, on 14 September this year.
The bills have undergone a four-week public consultation process and 20 submissions on them have been received. The Cabinet Office met with key stakeholders during this period. As honourable members would be aware, I chaired the General Purpose Standing Committee No. 2 inquiry into the handling of health complaints within NSW Health. Committee members interviewed past and present leadership of the HCCC and recognised serious delays in investigating complaints. Commissioner Amanda Adrian and others blamed lack of resources; but that was not the whole answer to the HCCC's inactivity, despite the advocacy of Hon. Dr Arthur Chesterfield-Evans.
Three bills will institute major changes to the health care system: the Health Legislation Amendment (Complaints) Bill, the Health Registration Legislation Amendment Bill and the Nurses and Midwives Amendment (Performance Assessment) Bill. On behalf of the Christian Democratic Party, I commend the initiatives introduced in these bills and I shall now comment on those bills.
The Health Legislation Amendment (Complaints) Bill establishes the Health Care Complaints Commission as an independent body for a number of stated purposes. The fulfilment of each of these stated purposes is necessary in the light of the events preceding the inquiry into Campbelltown and Camden hospitals. No doubt the commission required independent status, and the bill gives the commission that status. In matters as delicate as complaints handling for persons direly affected by the health care system it is an absolute necessity for the entity considering the complaints to be in an uncompromised position. I commend the Government's initiative in making the commission independent. The bill explicitly states:
In exercising its functions under this Act, the Commission is to have as its primary object the protection of the health and safety of the public.
The importance of this statement is without question. Hopefully, due service will be paid to this statement, not just lip service. The health and safety of our public cannot be underestimated. Although we in New South Wales are incredibly fortunate to have a health system that is funded by our Government, the Government should ensure that appropriate systems are in place and working effectively to safeguard the health and safety of our people. The health and safety of our people should be of utmost priority for any responsible government. The responsibilities of the Director-General of the Department of Health are clearly delineated by the bill. It seems that the director-general will be responsible for identifying any structural problems in the health system and, naturally, will be made responsible for issues of high-level concern, such as, specifically and importantly, facilitating the achievement and maintenance of adequate standards of patient care within public hospitals and in relation to other services provided by the public health system.
The bill makes investigation mandatory in cases in which either the commission or the appropriate registration authority is of the opinion that a complaint, or even part of a complaint, should be investigated. However, when neither the commission nor the appropriate registration authority is of the opinion that a complaint should be investigated, but either is of the opinion that it should be referred to the registration authority, it must be referred to the appropriate registration authority. Complaints may also be referred to conciliation in circumstances when the commissioner and the registration authority consider that the matter is appropriate for conciliation and when both entities hold the opinion that the complaint should not be investigated. Currently, the Act requires the commission to give written notice of making a complaint, the nature of the complaint and the identity of the complainant, and of the person against whom the complaint is being made, within 14 days of the commission receiving the complaint.
The bill will institute a new procedure. Rather than giving notice within 14 days of receiving the complaint, the commission will be required to give notice no later than 14 days after the commission's assessment of the complaint under division of the Act. Under the Act, the commission has 60 days in which to make that assessment. At first blush it would seem that the delay in a person against whom a complaint has been made receiving notification of certain details of the complaint could be unjust. However, it seems necessary that the commission should be given adequate time to consider whether the notice should be released in the light of such things as whether or not the notice will or is likely to prejudice the investigation of the complaint, place the health or safety of a client at risk, or place the complainant or another person at risk of intimidation or harassment.
A welcome initiative in this regard is that, even if the commission is of the opinion that certain factors exist that point towards not giving notice, the commission may give some form of notice. In essence, some form of notice of a complaint may only be given when the notice does not affect the health or safety of a client or puts any person at risk of intimidation or harassment. The commission will also be placed under an obligation to give notice, regardless of the circumstances, if it considers on reasonable grounds that it is essential on the grounds of natural justice to investigate the complaint effectively or it is otherwise in the public interest. Another important amendment relates to the withdrawal of complaints by complainants, which on one level might be seen as a matter of semantics but in fact is a matter of importance.
Currently, the commission may cease to deal with a complaint once it is withdrawn. However, it must continue to deal with the subject of the complaint if it appears to the commission that, for example, the matter provides grounds for disciplinary action against the health practitioner or the matter involves gross negligence on the part of a health practitioner. The bill omits the term "provides", replacing it with "if substantiated would provide". That means that under this amendment if the evidence would then tend to prove grounds for disciplinary action against the health practitioner, the commissioner must continue to deal with the matter. Similarly, in the second instance the term "involves" is replaced with the words "if substantiated would involve". The effect of the change in the wording of these provisions will provoke the commission to look even more closely at the evidence submitted. This is because the commission will be made to reflect upon whether or not the matter is substantiated, rather than simply making a straightforward assessment of the material concerned.
Significantly, as part of the commission's assessment procedure, the bill requires that the commissioner align the allegations comprising the complaint with the actual version of the events. Such a power is necessary for the commission to exercise its functions effectively. The bill introduces a duty for the commission to keep under review its assessment of a complaint while it is dealing with the complaint. Thus the commission is charged with a responsibility of constantly monitoring the process of the complaint and is able to take one of a number of actions, including referring the complaint for conciliation, or referring the complaint to the director-general or some other body.
The bill gives the commission the power to obtain certain medical records and documents relating to a health practitioner's practice for the purpose of assessing whether a complaint should be investigated. That is an important initiative. Information that may assist in elucidating a complaint and the facts surrounding the complaint should be made readily available and accessible. In relation to conciliation as a means of resolving a complaint, the bill widens the scope in which conciliation may be used as a tool for resolution, and also tightens the provision in relation to this means of resolution. The Christian Democratic Party is committed to the use of conciliation wherever possible, rather than taking judicial action.
Under the current bill, the commission has the discretion to refer certain complaints to conciliation, but the bill proposes that in some situations referral is mandatory. Under this bill, the commission is also given the power to refer complaints to the director-general if the commission is of the opinion that the complaint, entirely or in part, relates to a matter that could be subject to an inquiry by the director-general under the Public Health Act 1991 or the Health Services Act 1997. It is for the director-general to decide whether he or she—in this case she—will consider the complaint for these purposes. The commission may also refer a complaint to the appropriate registration authority if it sees fit to do so.
It would seem that the director-general is responsible for the performance of the health system overall and is not directly charged with the responsibility of resolving local level matters when these can be dealt with by an appropriate public health organisation. Thus the commission may refer a complaint directly to an appropriate public health organisation when the complaint is capable of resolution at a local level. The Act specifies certain circumstances in which the commission may discontinue dealing with a complaint. This is an important part of the bill. It adds an additional circumstance: that is, when a complaint, or part of a complaint, has been referred by the commission to another person or body for investigation, or for consideration of another action, including, for example, performance assessment or impairment assessment under the Health Registration Act. It is important that the other entities to which complaints are referred ensure that the complaint is appropriately dealt with.
It is incumbent on the Government to ensure that a network of relevant entities is wholly aware of its responsibilities to the public. A holistic perspective is not only necessary but also essential to the effective and efficient functioning of our health care system. Certain provisions in the Act deal with the commission giving notice to relevant parties to a complaint of the action the commission intends to take in relation to that complaint. The bill tightens those provisions. For example, the commission must give notice of its intention within 14 days. Previously there was no time stipulation.
The commission is given the discretion to give notice of the investigation of a complaint against a health practitioner to a person who currently employs or engages the health practitioner. Another important insertion is the provision that the "commission may review a decision made after assessing a complaint if requested to do so by the complainant, and must do so if the request is made within 28 days after the complainant is notified of the decision". These are some of the few initiatives that improve the notification procedures.
Proposed section 34A will empower the commission to request information that is relevant to a complaint. Such a request must be complied with if the person to whom the request is addressed is the complainant, or a person against whom the complaint was made. Persons who do not comply with such a request will be liable to a maximum penalty of $2,200. It is worthy of note that proposed section 37A relates to privilege against self-incrimination; it provides that self-incrimination may not be used as an excuse not to give information, or not to answer a question or produce a document under section 34A.
However, the same provision states that any information given by a natural person in compliance with section 34A is not admissible in evidence against the person in any civil or criminal proceedings, especially where the person objected at the time to doing so on the ground that it might incriminate himself or herself, or where the person was not warned that he or she may provide answers that might incriminate himself or herself. Thus the right of privilege against self-incrimination is preserved for civil and criminal proceedings. However, any information given in this context may be used in relation to disciplinary proceedings or proceedings for an offence under the relevant part of the Act.
The bill makes it entirely clear that the Ombudsman Act 1974 will apply to the commission. The underpinnings of this Act are essentially to provide a means for the public to make complaints to the Ombudsman and, consequently, for the Ombudsman to investigate the conduct of the public authority complained of. The function of the Ombudsman is to ensure that authorities remain accountable to the public. Importantly, the commission is also not precluded from providing information to the Ombudsman for the purposes of an investigation under the Ombudsman Act. One of the most important functions carried out by the commission is its conciliatory function. The bill clarifies the provisions relating to conciliation. One pertinent example is the note to proposed section 49, which says:
A conciliator has no power to impose a decision on the parties, to make a determination or to award compensation.
Sometimes, resort to legal methods of complaint resolution instigates an expectation that due compensation will be paid out. It is important for the public to be made aware of their standing and the outcomes they can expect once they resort to legal methods of complaint resolution. Also, it was apparent during General Purpose Standing Committee [GPSC] No. 2 deliberations that a number of persons making complaints would have been satisfied with a simple apology. A brief extract was submitted to GPSC No. 2 hearings from a statement made by the mother of a child who died in hospital. The mother said:
We later found out that the doctor wanted to be the one to tell us [about the child's death]. He wanted to tell us then and there but the hospital protocol did not allow it. I had to wait 10 months to hear, "I'm sorry."
The nurse that was involved in the procedure—and I remember this distinctly—spoke in a most moving way. The mother said:
We had to wait 10 months to meet her, and she was banned from approaching us. And we were actually at the Coroner's Court. I am standing in the line to the ladies toilet. I am in a public toilet and the lady's standing behind me, I happened to recognise her, and I said, "You are one of the nurses from the hospital, aren't you?" She said, "I am the nurse." She breaks down and cries and I break down and cry. And this is all happening in the public toilet, the last place this should happen. It is one of the most emotional meetings I have ever had, and all she ever wanted to say to me was, "I'm sorry" and all she could keep saying was, "I'm sorry, I'm so sorry." We ended up embracing and it was something we needed to do. I needed to hear that "I'm sorry" and she needed to say it. And it is happening in the public toilet. It is something the hospital should have organised.
Discussion in GPSC No.2 also touched on what patients want when something goes wrong. Research indicates that when something goes wrong with their health care, patients want to know about it. The interpretation of all the literature about what patients want when things go wrong is, "Please tell us what is happening?". Or, in the case of a patient's death, "Please tell us what went wrong." In the health system this is usually referred to as "open disclosure": proactively providing patients or families with a full explanation of the causes of their condition and entering into discussion with the patient about their future care and treatment implications. The provision of timely and frank information about an adverse event not only helps patients come to terms with their situation, or about what really did happen, but, if properly managed, may reduce the likelihood that they will take legal action, contradicting the generally held view that admitting mistakes is likely to lead to litigation.
NSW Health acknowledged that many of the complaints arising from Campbelltown and Camden hospitals were, in part, due to poor communication by doctors to families about the patient's condition and treatment. NSW Health has also indicated that communication is a key area in which improvements need to be made and is committed to this, which was acknowledged by our committee. During the inquiry the committee heard of many instances of where either NSW Health or health professionals failed to communicate effectively with relatives affected by adverse events. As the case studies show, the failure to adequately consult with or inform patients or their families about their treatment can have far reaching and damaging consequences.
Another salient point relates to the establishment of the health conciliation registry within the commission. The Christian Democratic Party supports this. Currently the registry is a statutory corporation that is charged with arranging and facilitating the conciliation of complaints. The introduction of the office of Director of Proceedings is a welcome initiative. The person serving as Director of Proceedings will do such things as "determine whether the complaint should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the commission or referred to another person or body for prosecution".
The director is also given power to "intervene in any proceedings that may be taken before a disciplinary body in relation to the complaint". It is also important to note that the director is to take account of a number of matters, including the protection of the health and safety of the public and the seriousness of the alleged conduct the subject of the complaint, when deciding whether a complaint should be prosecuted before a disciplinary body. The bill will also ensure the director's independence from the commission.
I will speak briefly on the two cognate bills. One of the main objectives of the Health Registration Legalisation Amendment Bill is to standardise the concepts of "professional misconduct" and "unsatisfactory professional conduct" in legislation dealing with myriad health-related professions. The legislation will affect doctors, chiropractors, dentists, nurses, optometrists, osteopaths, physiotherapists, podiatrists, and psychologists. The bill expands the phrase "unsatisfactory professional conduct" to include "conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the relevant health practitioner in the practice of their profession is significantly below the standard reasonably expected of such a health practitioner of an equivalent level of training and experience". The bill will make a contravention of proposed section 34A (4) of the Health Care Complaints Act by health practitioners—which relates to requirements to provide information to the Health Care Complaints Commission—a type of unsatisfactory professional conduct under the relevant Acts.
I conclude by referring to the Nurses and Midwives Amendment (Performance Assessment) Bill. The object of that bill is to amend the Nurses and Midwives Act 1991 to include provisions enabling assessments of the "professional performance" of nurses and midwives in order to mirror those existing in the Medical Practice Act 1992. "Professional performance" refers to the knowledge, skills or care possessed and applied by nurses or midwives in the completion of their responsibilities as a nurse or midwife. Ensuring that the work of nurses and midwives is being carried out at satisfactory levels is of utmost importance to a sound health care system, and any measures that support this stance ought to be supported. I realise that these are important bills and that is why I have taken some time to outline their support by the Christian Democratic Party.
The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Commerce, Minister for Industrial Relations, Assistant Treasurer, and Minister for the Central Coast) [3.41 p.m.], in reply: I thank honourable members for their contributions to the debate. The proposed amendments implement the recommendations—this has been canvassed a number of times by speakers in the debate—of the Special Commission of Inquiry and the Cabinet Office review designed to support the recommendations. The bills will streamline the complaints handling process and focus the Health Care Complaints Commission [HCCC] on ensuring that practitioners who are the subject of serious complaints are individually accountable.
The Government appreciates the input of the stakeholders who provided submissions on the bills, and it has given careful consideration to their views. The Government intends to move an amendment in response to a concern expressed by the Legislative Review Committee about proposed amended section 35 (d) of the Health Care Complaints Act. The amendment will clarify that in order to be guilty of the offence of furnishing false or misleading information to the Health Care Complaints Commission a person must know that the information furnished is false or misleading.
The Hon. Robyn Parker made a number of points on behalf of the Opposition. The Health Care Complaints Commission has an annual budget of $7.2 million, which it has received for the past four years. In addition, in February this year the Government gave the HCCC an additional $5.7 million over 15 months to enable the commission to deal with the backlog of complaints and with matters arising from the Special Commission of Inquiry. The commission expects to have dealt with the backlog of complaints entirely by early next year.
The Special Commission of Inquiry made no recommendations about the funding of the HCCC, as I believe the Hon. Robyn Parker observed. The HCCC is now likely to be more efficient in its use of resources, due to the new management of the commission, the commission's new powers to obtain information, its renewed focus on the core business of investigating serious complaints, and other reforms in the bill that will streamline the complaints handling process in general.
The Hon. Robyn Parker referred to the appointment of the Director of Proceedings. The proposed amendment to the Health Care Complaints Act provides for the commission to appoint a member of its staff to be the Director of Proceedings. This is appropriate because the new office of the Director of Proceedings will form part of the commission. It is only right that the commissioner, who will ultimately be accountable for the overall performance of the commission, including the prosecution function, has the freedom to select HCCC staff members as appropriate. The independence of the Director of Proceedings is ensured by the Act, which provides that the Director of Proceedings is not subject to the direction and control of the commissioner of the HCCC when dealing with a complaint.
The Hon. Dr Peter Wong made a number of points about the proposed integration of the Health Conciliation Registry with the HCCC. In the Government's view the integration will ensure that the existing conciliation service is better used, and that all alternative dispute resolution functions are performed by the same body. I think the honourable member asserted that there were insufficient, or no, safeguards. The safeguards included in the bill to ensure that the conciliation function remains independent include the statutory recognition of the separate role of the registry; providing that the registry and conciliators are independent of the commission when conducting conciliations; offence provisions to prevent the unauthorised disclosure of information obtained by registry staff or conciliators as part of their duties; and giving the parliamentary joint committee a role in overseeing the operation of the registry. I commend the bills to the House.
Motion agreed to.
Bills read a second time.
In Committee
The CHAIRMAN: The Committee will deal first with the Health Legislation Amendment (Complaints) Bill.
Clauses 1 to 4 agreed to.
The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Commerce, Minister for Industrial Relations, Assistant Treasurer, and Minister for the Central Coast) [3.47 p.m.]: I move Government amendment No. 1:
Page 16, schedule 1 [30], line 21. Omit "that is". Insert instead "knowing that it is".
The Legislation Review Committee expressed concern, which was echoed by honourable members in the second reading debate, about proposed amended section 35 (d) of the Health Care Complaints Act. The existing offence of furnishing false or misleading information to the Health Care Complaints Commission states that the person must know that the information is false or misleading. The Legislation Review Committee has noted that in the bill the explicit requirement of "knowledge" as an element of the offence has been omitted.
As is clear from the extensive material released as part of the Cabinet Office review, it is not the Government's intention to make a policy change of this kind. Removal of the "explicit knowledge requirement" occurred inadvertently in the course of drafting. I am advised that the omission of the express reference to knowledge would not necessarily affect the interpretation of the offence, but to put the issue beyond doubt, the Government has moved the amendment. The amendment makes it clear that a person must know that the information furnished is false or misleading.
Amendment agreed to.
Schedule 1 as amended agreed to.
Schedules 2 to 4 agreed to.
Title agreed to.
The CHAIRMAN: The Committee will now deal with the Health Registration Legislation Amendment Bill.
Clauses, schedule and title agreed to.
The CHAIRMAN: The Committee will now deal with the Nurses and Midwives Amendment (Performance Assessment) Bill.
Clauses, schedule and title agreed to.
Health Legislation Amendment (Complaints) Bill reported from Committee with an amendment, and cognate bills reported without amendment, and bills passed through remaining stages.
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