Health Legislation Amendment Bill 2013



About this Item
SpeakersPavey The Hon Melinda; Cotsis The Hon Sophie; Cusack The Hon Catherine; Maclaren-Jones The Hon Natasha; Khan The Hon Trevor; Kaye Dr John; Green The Hon Paul; Phelps The Hon Dr Peter; Westwood The Hon Helen; Lynn The Hon Charlie
BusinessBill, Message, 2R, 3R



HEALTH LEGISLATION AMENDMENT BILL 2013
Page: 20151

Second Reading

The Hon. MELINDA PAVEY (Parliamentary Secretary) [6.03 p.m.], on behalf of the Hon. Michael Gallacher: I move:
      That this bill be now read a second time.

I am pleased to introduce the Health Legislation Amendment Bill 2013. As part of the Government's regular review of legislation, the bill seeks to make miscellaneous amendments to the Health Administration Act 1982, the Health Care Complaints Act 1993, the Health Practitioner Regulation National Law, the Health Services Act 1997, the Mental Health Act 2007 and the Mental Health (Forensic Provisions) Act 1990. I turn firstly to the amendments to the Health Care Complaints Act. As honourable members will be aware, the Health Care Complaints Act establishes the Health Care Complaints Commission as an independent body to assess, investigate and prosecute complaints against health practitioners and health service providers. However, a 2012 Supreme Court decision in Australian Vaccination Network Inc. v Health Care Complaints Commission has led to a limitation on when the Health Care Complaints Commission can investigate matters affecting public health or safety.

The structure of the Health Care Complaints Act means that the Health Care Complaints Commission has jurisdiction to investigate a matter only where a valid complaint has been made. Section 7 of the Act sets out whom a complaint can be made about and this list includes health service providers. However, the recent case in the Supreme Court found the Health Care Complaints Commission can investigate only if the complaint shows that the health service in question affects the clinical management or care of an individual client. The judgement has created significant concern that a complaint cannot be investigated by the Health Care Complaints Commission if the matter raises a real likelihood of impact on public health or safety: There must be a specific case where an individual client is affected, thereby limiting the capacity of the Health Care Complaints Commission to act in the public interest.

The bill, therefore, amends section 7 of the Health Care Complaints Act to make clear that a complaint can be made against a health service if the health service affects, or is likely to affect, the clinical management or care of an individual client. Consequential amendments are also made to sections 25, 25A and 80 of the Act so as to ensure the language used is consistent. This important amendment will mean that, if a health service provider is acting in a way that is likely to affect the clinical management or care of a client, even if there is no identified client who has been affected, then the Health Care Complaints Commission will have jurisdiction to investigate a complaint against the health service provider.

I turn to the other amendments to the Health Care Complaints Act which generally follow on from the recommendations of the 2010 joint parliamentary committee report on the operation of the Health Care Complaints Act 1993. The 2010 report considered the operation of the Health Care Complaints Commission with a view to ensuring its continued effectiveness. The report recommended that the power of the Health Care Complaints Commission should be expanded to allow the commission to conduct "own motion" investigations so as to help safeguard the public. The Government has adopted this recommendation in the bill.

The bill amends section 8 of the Act to allow the Commissioner of the Health Care Complaints Commission to make a complaint, and therefore investigate a matter, if it appears to the commissioner that the subject of the complaint raises a significant issue of public health or safety; raises a significant question regarding a health service that affects, or is likely to affect, the clinical management or care of an individual client; and would, if substantiated, be grounds for disciplinary action against a health practitioner or involves gross negligence on the part of the health practitioner. This important amendment will ensure that the Health Care Complaints Commission will be able to proactively initiate its own complaints in respect of serious matters affecting the health or safety of the public.

Another recommendation of the report was that a new section should be included in the Act which would set out the broad principles to govern the work of the Health Care Complaints Commission and other government agencies responsible for the health care complaints system. The Government supports this recommendation and the bill includes a new section 3A (5B) that provides that the Health Care Complaints Commission and other government agencies are to have regard to a range of important principles in carrying out functions under the Act. These principles include accountability, maintaining an acceptable balance between the rights of clients and the rights of healthcare providers, efficiency and flexibility.

The report also recommended, and this Government supports, amending the Act to expressly provide for the Health Care Complaints Commission to provide written reasons in relation to its post-assessment and post-investigation decisions. While it is the Health Care Complaints Commission's practice to provide written reasons, and the Act requires the commission to do so, there are no current requirements to consistently provide information to parties to the complaint. Therefore, the bill amends sections 28 and 45 to expressly provide for the Health Care Complaints Commission to give written information to the parties to the complaint concerning the outcome of its assessment, investigation of the complaint and the reasons for the commission's decision.

Following on from the recommendations of the report, the bill also inserts a new section 16A into the Act in order to allow the Health Care Complaints Commission to give written notice of the making of a complaint to the employer of a health practitioner. Currently, notification to employers is only given following the assessment of a complaint if the Health Care Complaints Commission decides to investigate the complaint. However, as noted in the report, there will be times when early notification to employers is necessary to assist the commission in assessing the complaint properly, or is necessary to protect the health and safety of the public. The report recognised that notifying employers before a complaint has even been assessed may negatively affect health practitioners—for instance, vexatious complaints which may compromise a practitioner's employment.

In order to appropriately balance these two interests the new section requires the Health Care Complaints Commission to notify employers following the making of a complaint against a health practitioner if the Health Care Complaints Commission considers it necessary in order to assess the complaint effectively or to protect the health or safety of the public. However, the mandatory requirement will become discretionary if it appears to the Health Care Complaints Commission that notification would place the complainant or another person at risk of intimidation or harassment or unreasonably prejudice the employment or engagement of the health practitioner.

Another amendment to the Act has been included which is unrelated to the recommendations of the joint parliamentary committee. The amendment relates to section 90B regarding the power of the Director of Proceedings. Following an investigation of a complaint, the Health Care Complaints Commission can refer a complaint to the Director of Proceedings who determines whether or not to prosecute a complaint against a health practitioner before a health professional tribunal. Currently, there is no power to refer the matter back for further investigation if the Director of Proceedings determines that further information is required before deciding whether or not to prosecute a matter. The bill will rectify this problem by amending section 90B to allow the Director of Proceedings to refer a matter back to the Health Care Complaints Commission for further investigation if the director cannot determine whether a complaint should be prosecuted or is of the opinion that further evidence is required in order to enable a prosecution to occur.

Amendments are also made to the Health Practitioner Regulation National Law (New South Wales) (National Law) regarding the Health Care Complaints Commission's duty to investigate matters. Section 150 of the National Law sets out the emergency suspension powers of New South Wales health professional councils with respect to registered health practitioners who are at risk to public health or safety. Section 150D provides that if such an emergency power is exercised under section 150, the matter must be referred to the Health Care Complaints Commission for investigation. Section 150D also provides that such a referral is to be treated as a complaint and must be investigated by the Health Care Complaints Commission.

However, there will be times when a complaint in respect of the same practitioner or matter has already been made to the Health Care Complaints Commission prior to the referral and an investigation may be underway, or completed. Therefore, the amendment to section 150D of the National Law will remove unnecessary administrative burden so further investigation is not required if the matter is already in the process of being investigated, or has been investigated. The bill also includes an amendment to schedule 5C of the National Law to allow the Minister, rather than the Governor, to appoint a person as an acting member of a health professional council which will ease the administrative burden of appointing acting members on short notice, such as when a member becomes ill.

I turn now to the other amendments set out in the bill. Schedule 4 to the bill seeks to amend the Health Services Act to allow staff of the New South Wales health service to be suspended from duty without pay in limited circumstances. Staff employed in the New South Wales health system are employed under the Health Services Act, which is generally silent as to whether or not staff can be suspended from duty without pay, although the Health Services Regulation allows staff in the Ambulance Service to be suspended from duty without pay in limited circumstances. In order to bring the New South Wales health system into line with other public sector staff employed under the Public Sector Employment and Management Act 2002, such as teachers and police, regarding suspension without pay, the bill inserts a new section 120A into the Health Services Act to allow staff to be suspended without pay in limited circumstances.

The bill limits those circumstances to where an employee has been charged with a serious criminal offence punishable by imprisonment for five years or more; where a staff member who is a registered health practitioner has had their registration suspended or conditions imposed on their registration under section 150 of the Health Practitioner Regulation National Law; or in the case of an unregistered health practitioner, where the Health Care Complaints Commission has imposed an interim prohibition order or placed interim conditions on the unregistered health practitioner under section 41AA of the Health Care Complaints Act. These limited circumstances may suggest that there would be a significant risk in permitting that person to continue in their employment, or being paid while suspended from duty, while criminal proceedings are under way.

Further, in the case of a registered health practitioner who has had an interim suspension order placed on their registration, it may be inappropriate for a public body to use public funds to continue to pay the officer who could not perform their employment role due to a health professional council suspending their registration. I am advised that all relevant unions have had active involvement in the development of draft guidelines around suspension without pay since 2008. This has included discussions about the need to amend relevant legislation. The most recent discussions occurred on 26 March 2013 between the Australian Salaried Medical Officers' Federation [ASMOF], the Health Services Union [HSU], the Nurses Association and officers of the Ministry of Health.

The bill makes minor amendments to section 11 of the Health Administration Act 1982 to allow land held by the Health Administration Corporation [HAC] to be disposed of notwithstanding a Crown grant if approval has been given by the Minister. This will allow the Health Administration Corporation to dispose of surplus land, notwithstanding Crown grant conditions, and use the proceeds towards other health capital works projects that are more suited to the health service needs of the community. This will bring the Health Administration Commission into line with existing provisions under the Health Services Act for land held by local health districts. There are no identified parcels of land that the Health Administration Corporation has currently identified to be disposed of if this bill passes.

The bill also amends the Health Administration Act to change the membership of the Medical Services Committee, which is a ministerial advisory body established to provide advice to the Minister on matters affecting the practice of medicine. Currently schedule 4 to the Act states that members may hold office for a period of four years and can be appointed for up to three consecutive terms. While this is generally appropriate, it is often appropriate to appoint a chairperson with experience. However, if a chairperson is appointed as chair while in their third consecutive term, that person can only serve out the remainder of their term. The current restriction has the potential to result in a loss of experienced members to act as chairperson of the committee. In order to ensure that the committee can have access to an experienced member as chair for a reasonable period of time, the bill amends schedule 4 to allow a person to serve four consecutive terms but only if that person is appointed as chairperson during their third consecutive term.

I turn finally to the amendments to the Mental Health Act and the Mental Health (Forensic Provisions) Act, which are set out in schedules 5 and 6 to the bill. These amendments are generally minor amendments aimed at tidying up or clarifying a number of existing provisions. For example, the bill inserts a new section 76HA into the Mental Health (Forensic Provisions) Act to expressly provide that a forensic patient who is on leave or on conditional release can be detained under the Mental Health Act as a civil patient. Forensic patients on conditional release are released into the community subject to certain conditions and are still subject to a degree of oversight by the Mental Health Review Tribunal and their treating team. However, such patients may become unwell while living in the community such that they need to be scheduled and detained under the Mental Health Act for treatment as with any other person with a mental illness. There is nothing expressly in the Act that would preclude a forensic patient from being scheduled and detained under the Mental Health Act.

However, there has been some concern that the Mental Health Act does not apply to forensic patients. This would clearly not be appropriate as all persons in the community are entitled to appropriate mental care and treatment if and when required. Therefore, the new section 76HA makes it expressly clear that a forensic patient on leave or release can be detained and scheduled under the Mental Health Act. Of course, if a forensic patient is detained as a civil patient, the patient will continue to be a forensic patient and subject to the ongoing oversight of the Mental Health Review Tribunal.

The bill amends section 69 of the Mental Health (Forensic Provisions) Act to clarify that if the tribunal issues an order for apprehension of a forensic patient who has breached their conditions of release or leave, that order authorises the apprehension and detention of the patient. Amendments are also made to section 67 to enable the tribunal to make a community treatment order with respect to a forensic patient at the same time the tribunal is considering releasing the patient and for that community treatment order to continue in effect under the Mental Health Act. This change is aimed at lessening the administrative burden of the tribunal rather than changing practice.
    Currently, if the tribunal is proposing to release a forensic patient but is also considering imposing a community treatment order, the tribunal must hold two hearings—one in respect of the release order under the Mental Health (Forensic Provisions) Act and one in respect of the community treatment order under the Mental Health Act. This process is time consuming and administratively burdensome. The amendments to section 67 will overcome this administrative burden and make it easier for the tribunal to consider and make community treatment orders with respect to forensic patients.

    The amendment in the bill to section 77A of the Mental Health (Forensic Provisions) Act relates to the power of the Supreme Court on appeal from a decision of the tribunal with respect to forensic patients. Under section 77A a patient and the Minister of Health may appeal a decision of the tribunal on a question of law or fact. The Attorney General also has a right of appeal but only with respect to questions of law. Under section 77A, if an appeal is made on a ground of law, the court or the tribunal may suspend the operation of the order until the court resolves the appeal. The ability to suspend orders does not currently apply with respect to appeals on a question of fact. Should an appeal against a tribunal decision be made, it should be open to the court to suspend the operation of that tribunal order until the court resolves the appeal, regardless of whether or not the appeal is made on a ground of law or fact.

    Therefore, the bill amends section 77A to ensure that the court and the tribunal can suspend the operation of an order if an appeal is made on a question of law or fact. Of course, should an appeal be lodged, it will remain the discretion of the court or the tribunal to consider whether or not to suspend the operation of the order while the appeal is heard. The bill before the House seeks to make minor but important amendments to various health Acts. These amendments are not only aimed at ensuring the continued smooth operations of the Acts but also at protecting the health and safety of the public. I commend the bill to the House.

    The Hon. SOPHIE COTSIS [6.18 p.m.]: I lead for the Opposition on the Health Legislation Amendment Bill 2013. This bill is part of the ongoing review and update of health-related legislation and amends the Health Administration Act 1982 in schedule 1, the Healthcare Complaints Act 1993 in schedule 2, the Health Practitioner Legislation (Adoption of National Law) Act 2009 in schedule 3, the Health Services Act 1997 in schedule 4, the Mental Health Act 2007 in schedule 5 and the Mental Health (Forensic Provisions) Act 1990 in schedule 6.
      The Opposition will not oppose the bill, but I foreshadow that we will move an amendment during the Committee stage. Following the introduction of this bill and the Minister delivering her second reading speech in the other place, my colleague the shadow Minister for Health, the member for Macquarie Fields, Dr Andrew McDonald, was in contact with various health stakeholders, including the Australian Medical Association, the NSW Nurses and Midwives Association, the Health Services Union and the Australian Salaried Medical Officers Federation. The shadow Minister was advised that while those stakeholders acknowledge many uncontentious aspects of this bill, they noted in the absence of any prior formal briefing being provided by the Government that the devil may be in the detail or practical application.

      I move now to the Opposition's concern. I refer to schedule 4, which amends the Health Services Act 1997. In particular, new section 120A (2) states:

          Any salary payable to a person as a member of staff while the person is suspended from duty under this section is (if the Director-General so directs) to be withheld.
      Staff of the NSW Health service can be suspended from duty without a salary in limited circumstances under this new section. Concern about this was noted by the Legislative Review Committee on page 12 of "Legislation Review Digest No. 33/55", which states:

          The Committee notes that suspension of a staffer without pay would likely seriously affect his or her livelihood. This would be particularly problematic if the misconduct or serious criminal charges laid against the staffer were later withdrawn, or if the staffer was otherwise exonerated. Although the staffer is to be paid the salary withheld in these circumstances, the Committee still notes the financial and emotional stresses likely placed on the individual during which his or her salary is being withheld.
      Those charged with a criminal offence are still innocent until proven guilty. The bill limits those circumstances where an employee has been charged with a serious criminal offence punishable by imprisonment for five years or more, or where a staff member who is a registered health practitioner cannot practice because his or her licence has been suspended or has a condition imposed on his or her practice that, in the opinion of the director general, is inconsistent with the terms of employment. This is an example of the devil being in the detail.

      Health differs from other public service entities because external bodies—registration boards—impose conditions of registration that may restrict the ability of clinicians or nurses to do their job but allow them to continue to work in certain circumstances with greater supervision. They may not be fully prevented from clinical practice. There may be conditions placed on their registration that they require close supervision, that they may or may not be allowed to provide medical treatment, and if those conditions are met they would be allowed to obtain extra training in health care to continue with their practice.

      Concerns have been raised by many stakeholders that suspension without pay may become the easy way out for a local health district. Even the threat of suspension without pay may discourage staff from using means available to them to clear their name and continue to practise. Therefore, the Opposition asks the Government to guarantee that such money owed to a staff member who is exonerated be paid and his or her entitlements restored. As the legislation is currently drafted, the director general may still have the discretion to withhold pay where a staff member is exonerated.
        I understand that when this bill was debated in the other place the Minister undertook to find out whether the Government was prepared to guarantee that a person who is exonerated will have his or her money paid and entitlements restored. The Opposition also asked that the decision of the director general to suspend an employee must not be delegated, for example, to the chief executive or a local health district. Employees should, at the very least, have the opportunity to write to the director general prior to any final decisions regarding suspension without pay, setting out any extenuating circumstances and what other feasible alternatives exist to enable employees to remain in the workplace, perhaps in another clinical setting and, accordingly, continue to earn a living.
          The Opposition's proposed amendment will enable staff to access their previously earned leave entitlements once they have been suspended. Having already done the work and accrued the leave, staff deserve to receive their leave entitlements. As my colleague the shadow Minister for Health noted, it is an entitlement. I note that the bill does not mention entitlements; it mentions only salary payable. This needs to be clarified and our amendment does that.

          The Hon. CATHERINE CUSACK [6.25 p.m.]: The Health Legislation Amendment Bill 2013 proposes several amendments to the Health Care Complaints Act. As a member of the Parliament's Joint Committee on the Health Care Complaints Commission, it is those issues to which I wish to address my remarks. The new provisions will allow the Health Care Complaints Commission to initiate and investigate on its own motion. This addresses a disappointing situation concerning an organisation known as the Australian Vaccination Network, which is a Bangalow-based organisation that is opposed to childhood immunisation that has successfully undermined many parents' confidence in the benefits of immunisation. The Australian Vaccination Network's former director and founder, Meryl Dorey, has undertaken extensive media interviews across Australia using free national media, radio and print to promote her claims that vaccines are toxic and harmful to children. Ms Dorey claims:

              Passing through measles infection is sometimes required, for whatever reason, to strengthen some part of a person's vital force.

          Ms Dorey insists that highly infectious childhood illnesses such as measles, mumps, rubella and chicken pox are benign. There are many good reasons to spare our children the illness and scarring that can result from these diseases. The foremost in my mind is to protect unborn children who are exposed to horrific consequences in the event that their unprotected mothers are exposed to and catch rubella. Ms Dorey reportedly insists that whooping cough cannot kill children. Whooping cough is a horrific disease that causes immense distress and suffering to babies and their tiny lungs.
            In addition to all the media coverage, there is a website and a quarterly magazine called Informed Voice. The zeal and success of the Australian Vaccination Network accumulating scientific fact and truth about immunisation is, sadly, having deadly effects. The Australian Vaccination Network's campaign has been rampant in my community of Northern Rivers, and childhood immunisation rates have fallen below 70 per cent compared with 90 per cent for the rest of Australia. In the Byron shire, which is home to the community of Bangalow, the rate has fallen below 50 per cent.

            In 2009 tragedy struck in my community of Lennox Head when four-week old Dana Elizabeth McCaffery died of whooping cough. By all accounts, this newborn baby fought bravely, but in the words of my local paper, the Northern Star, she never had a chance. The standard schedule of immunisation at that time was two months, four months and six months. The Northern Rivers Health Service, given the appalling immunisation rates in the region, has brought forward the first round to six weeks, but because Dana was four weeks old this would not have saved her life. Her parents support immunisation, but they never had that chance.

            The only things that could have prevented her death would have been if there had been no whooping cough outbreak in the region and if the disease had not been rampaging through the community. That is why our low immunisation rate can be held directly responsible for this tragedy. Following Dana's death responsible and qualified members of the medical and scientific communities formed an organisation called "Stop the AVN". However, the network lodged a complaint about the organisation with the Health Care Complaints Commission. The commission's investigation concluded:

                A Health Care Complaints Commission (HCCC) inquiry into Bangalow-based Australian Vaccination Network has found the organisation provides misleading and inaccurate information on vaccinations.
                The network has been given 14 days to comply to the following recommendations:
                • There should be prominent statement on the network's website explaining its purpose was to provide information against vaccinations;

                • The information provided on the network should not be taken as medical advice; and

                • A decision about vaccinations should be made in consultation with a healthcare provider.

            In addition, the Office of Liquor, Gaming and Racing investigated and cancelled the network's charitable status. The network appealed against the Health Care Complaints Commission ruling and the Supreme Court found deficiencies in the authority of the commission to investigate. That was a disaster. The network had shielded itself from the commission's orders by the clever use of legal technicalities and the decision was presented in the media as a court endorsement of the organisation. I was horrified when I saw the front page of the Northern Star featuring a full-page photo of Ms Dorey with the headline "Vindicated!".

            I have pursued the problem of the Australian Vaccination Network as a member of the Joint Committee on the Health Care Complaints Commission, and I know that others have also pursued the issue. I am surprised that the commission and NSW Health have not acted more promptly to make these amendments, although I am delighted to see them before the House today. They will close the loopholes that allowed the Australian Vaccination Network to continue issuing its misleading and deceptive information. Countering the dissemination of dangerous information by any non-health care provider is the highest priority. I hope that when this bill is passed the Health Care Complaints Commission will immediately return to its investigation of the Australian Vaccination Network. The whole point of Parliament's passing this legislation is to empower the commission to do just that.

            I understand that NSW Fair Trading has ordered the Australian Vaccination Network to change its name. That order has been appealed and it is now being considered by the Administrative Decisions Tribunal. I wish it well. I point out to the Health Care Complaints Commission and the Minister for Health that irrespective of NSW Fair Trading's success it will not be enough. The network will continue its activities and the Government must do whatever it can to protect the lives of our defenceless babies and small children. I call on the Health Care Complaints Commission immediately to stop the Australian Vaccination Network spreading misleading information and I ask the media as a whole not to facilitate the dissemination of such dangerous messages to vulnerable parents who are already bombarded with confusing information and who somehow believe that the network's role in the immunisation debate is evenly balanced. It is not.

            Dr John Kaye: Hear, hear!

            The Hon. Adam Searle: Hear, hear!

            The Hon. CATHERINE CUSACK: It has no support from the scientific and medical communities in Australia. I thank Dr John Kaye and the Hon. Adam Searle for their support. I am horrified that 30 per cent of babies and children in my region are at risk of contracting preventable diseases. I take this opportunity to congratulate the Daily Telegraph on the outstanding campaign that it is conducting to counter this sort of misinformation and to promote a positive message to parents about getting their children immunised. I have no doubt that tens of thousands of babies will be immunised and protected as a result of that campaign. I join with other members in thanking and congratulating the Daily Telegraph on conducting the campaign.

            I turn now to the Health Care Complaints Commission's power to advise health services that a medical professional practising in a hospital or other facility is the subject of serious allegations and under investigation. I noted with interest the Hon. Sophie Cotsis' comments about this matter. I point out that many of these issues do not come as a complaint to the health providers, particularly when the health provider has referred the complaint to the commission. The problem is that the commission's process is a legal mechanism involving due process and therefore the investigations, prosecutions and outcomes can take many years to be concluded. Meanwhile, the service has an employee who may be the subject of multiple serious complaints—the Butcher of Bega and Doctor Death are good examples of that. That leaves the health service in a dreadful position. The doctors concerned have medical insurance and indemnity and they are locked into a combative legal process. I make the point for the benefit of the Opposition that because a court case is initiated against a medical professional involving serious allegations and the Health Care Complaints Commission loses, it does not mean that the medical professional has been exonerated. In some cases it can result in the most dreadful situation.

            While I accept that the process must be fair, it is particularly difficult for a rural health service to stand down a doctor on full pay. Regional health services could be devastated by such a requirement. Medical professionals are paid huge salaries and spending that money on a suspended employee would be detrimental to other services because no funding is provided to the health service to cover that cost. Everyone acknowledges that this is a difficult issue. I believe that the solution is to accelerate the process so that the situation does not drag on for years. I note that the Health Care Complaints Commission is trying to expedite proceedings. That is in the interests of employees, but we are subject to legal process timeframes. The medical profession must also look at its peer-review processes and take more responsibility for the accountability of doctors so that we do not rely on the Health Care Complaints Commission and the legal process to protect patients. Anything that can be done to expedite this process would be fairer to employees, the health services and the patients who depend on their resources to get the care they deserve.

            [The Deputy-President (Hon. Natasha Maclaren-Jones) left the chair at 6.37 p.m. The House resumed at 8.00 p.m.]

            The Hon. NATASHA MACLAREN-JONES [8.00 p.m.]: I speak in support of the Health Legislation Amendment Bill 2013 and I begin by thanking the Minister for Health for introducing this important legislation. The proposed amendments cover the Health Administration Act 1982, the Health Care Complaints Act 1993, the Health Practitioner Regulation National Law (New South Wales), the Health Services Act 1997, the Mental Health Act 2007 and the Mental Health (Forensic Provisions) Act 1990. I do not intend to speak on all aspects of the bill, but there are a couple of areas I would like to highlight. The amendments to the Health Care Complaints Act 1993 generally follow the recommendations of the Committee on the Health Care Complaints Commission 2010 report, "Operation of the Health Care Complaints Act 1993".

            I note that the chair of the committee was the Hon. Helen Westwood and the committee was tasked with terms of reference to review the operation of the Health Care Complaints Commission and report on any change that the committee considered desirable to improve the functions, structure and procedures of the commission. The committee made 11 recommendations at the time and I note that the previous Government provided a formal response to the report in late 2010. However, since then there has been a change in government—and it is a very good Government—and the passage of time has allowed the response to be reconsidered. The Minister has indicated that the Government is generally supportive of the recommendations made in the report and the bill proposes to enact a range of legislative amendments to support a number of the recommendations.

            Recommendation No. 4 is that the Health Care Complaints Act 1993 be amended so that the Health Care Complaints Commission can conduct investigations of its own motion where such investigations relate to an issue of public interest or public safety that relates to the functions of the commission. As mentioned previously, a 2012 Supreme Court decision found that the Health Care Complaints Commission can only investigate a complaint where a direct relationship between the client and the health service practitioner exists. In other words, the health service being investigated must directly affect the clinical management or care of an individual client. If there is no individual client affected then under section 8 no complaint can be made against a health service provider, notwithstanding that the health service may pose a serious risk to members of the public.

            The current limitation of the ability of the Health Care Complaints Commission to act in the public interest needs to be addressed, and that is what this bill does. The amendment will mean that if a health service provider is acting in a way that is likely to affect the clinical management or care of a client, even if there is no identified client who has been affected, the Health Care Complaints Commission will have jurisdiction to investigate a complaint against the health service provider. The addition of the words "or is likely to affect" will ensure that the Health Care Complaints Commission can proactively initiate an investigation and respond to complaints against health services that have the potential to pose risks to the health or safety of the public or client without having to wait for such risks to actually eventuate.

            The second area I would like to look at is Recommendation No. 1 in the report, which looks at the roles of the commission and related government agencies being governed by the following principles being amended to include a new provision setting out the principles that should guide the work of the commission and other government agencies. The report recommended that the guiding principles be accountability, transparency, fairness, effectiveness, efficiency and flexibility. The report noted that the principles will not always be in harmony and that there may be competing aims that need to be considered where appropriate. However, clearly expressed guiding principles can ensure that the community knows how the Health Care Complaints Commission should operate.

            The Government supports the recommendation and has implemented it by the inclusion of a new section 3A into the Health Care Complaints Act. This new section will require the commission and government agencies to have regard to a range of principles in carrying out their functions under the Act. These principles are that the Health Care Complaints Commission and those government agencies are to be accountable to the New South Wales community; decision-making processes should be open, clear and understandable; an acceptable balance should be maintained between protecting the rights and interests of clients and health service providers; the processes of the commission and those government agencies are to be effective in protecting the public from harm; the commission and those government agencies are to strive to improve the efficiency of the administration of those functions so as to benefit the New South Wales community; and the commission and those government agencies are to be flexible and responsive as the health care system evolves and changes. The parliamentary committee at the time noted that the commission's operations are largely in accordance with those principles. However, the committee found the need—and the Government supports it—for the principles to be clearly articulated and formalised so that clients, health practitioners and the greater community are fully aware of the principles that guide the commission's important work.

            The final area I want to look at is the Mental Health Review Tribunal. The Mental Health (Forensic Provisions) Act allows the Mental Health Review Tribunal to make community treatment orders with respect to forensic patients and inmates in correctional centres. A community treatment order is an order authorising compulsory treatment of a person. Section 67 (4) of the Act currently provides that if a treatment order is made with respect to a person detained in a correctional centre or another place, the order continues in effect if the person is released from detention. However, the legislation is unclear about the processes that apply when a community treatment order is sought with respect to someone that the tribunal is seeking to unconditionally release and who, therefore, will cease to be a forensic patient but the tribunal considers would benefit from an order.

            Currently, the tribunal has instituted a process under which it holds both a forensic hearing into the issue of unconditional release as well as holding a civil community treatment order hearing under the Mental Health Act. This process is time-consuming and administratively burdensome as it requires two hearings with respect to a patient. In order to overcome these difficulties, the bill amends the Mental Health (Forensic Provisions) Act to give the tribunal express power to make an order under the Act with respect to a patient it is proposing to release unconditionally. The amendments also clarify that the order application and unconditional release application can be heard at the same time. Further, the bill provides that any such order commences operation once the unconditional release order takes effect and continues in effect under the Mental Health Act rather than the Mental Health (Forensic Provisions) Act. This amendment will remove unnecessary administrative burden on the tribunal as well smooth the path for the making of orders for forensic patients. Again I commend the Minister for introducing this bill and commend the bill to the House.

            The Hon. TREVOR KHAN [8.08 p.m.]: I wish to speak in support of the Health Legislation Amendment Bill 2013 and congratulate all members who have spoken to and supported the bill this evening. I specifically wish to direct my comments to schedule 2 to the bill, that is, the amendments to the Health Care Complaints Act 1993. I note that schedule 2 [1] sets out the principles that are to govern the exercise of functions by the Health Care Complaints Commission and other government agencies in connection with health care complaints under the Health Care Complaints Act 1993. Schedule 2 [2] to the bill makes it clear that a complaint under the Health Care Complaints Act may be made concerning a health service that is likely to affect the clinical management or care of an individual client in addition to health services that do affect such management or care. Item [10] of schedule 2 makes consequential amendments to the bill. As to schedule 2 [3], the overview of the bill states:
                Schedule 2 [3] provides that the Health Care Complaints Commissioner may make a complaint under the HCC Act but only if it appears to the Commissioner that the matter that is the subject of the complaint:

                (a) raises a significant issue of public health or safety, or

                (b) raises a significant question regarding a health service that affects, or is likely to affect, the clinical management or care of an individual client, or

                (c) if substantiated, would:
                    (i) provide grounds for disciplinary action against a health practitioner, or

                    (ii) be found to involve gross negligence on the part of a health practitioner, or

                    (iii) result in the health practitioner being found guilty of an offence under Division 1 or 3 of Part 7 of the Public Health Act 2010.

            Schedule 2 [4] provides that the commission must give written notice of the making of a complaint, the nature of the complaint and the identity of the complainant to a person who currently employs or engages the health practitioner concerned as a health practitioner, if the commission considers on reasonable grounds that the giving of the notice is necessary to assess the matter effectively or to protect the health or safety of the public or a member of the public. The commission is not required to give the notice if it appears to the commission, on reasonable grounds of course, that the giving of the notice will place the complainant or another person at risk of intimidation or harassment or unreasonably prejudice the employment or engagement of the health practitioner. I note that at least in part the amendments to the Health Care Complaints Act 1993 arose out of a Health Care Complaints Commission investigation into the Australian Vaccination Network in 2009 and 2010. I am sure a number of members of this place, indeed I suspect all, have received various emails from persons who seek to advance the interests of the Australian Vaccination Network.

            The Hon. Dr Peter Phelps: Boo!

            The Hon. TREVOR KHAN: I note the contribution of the Government Whip. The Australian Vaccination Network publishes a website that could be described as highly sceptical; indeed, far more than that.

            The Hon. Dr Peter Phelps: I think "insane" is the word you are looking for.

            The Hon. TREVOR KHAN: One could say it is dismissive of the benefits of vaccination. Two separate complaints were made that alleged the Australian Vaccination Network engaged in misleading and deceptive conduct in attempting to persuade people not to vaccinate their children. We know that this is not a mere esoteric exercise and that the complainants had grounds upon which to found their complaints. It is my understanding that in the overall community the level of vaccination of children is of the order of 90 per cent but in areas of the North Coast of New South Wales and in areas of Queensland that level has dropped to something in the order of 70 per cent.

            I am not a demographer and I am not able to plot the implications of that very significant drop in the level of immunisation, but we do know that in other areas of infection control that even relatively small drops in the level of infection control and immunisation have profound effects upon the spread of disease among the general community. One should not see a drop from 90 per cent to 70 per cent as being insignificant. It has the potential to ensure that a disease remains recurrent and alive in a community, which at a level of 90 per cent may see it almost disappear.

            Returning to the issue of the complaints, following the investigation the Health Care Complaints Commission recommended that the Australian Vaccination Network—a true tautology one might say, or a truly misleading description of what they are engaged in—recommended that the network publish a disclaimer on its website. When the network failed to do so, the commission issued a public warning against the network. The network challenged the jurisdiction of the Health Care Complaints Commission on the basis that the complaints in question did not allege that an individual client was affected by the actions of the network. Let us be plain about this: we know that they disseminated material in the community that discourages parents from vaccinating their children. Indeed, we know from what has occurred with the drop in levels of immunisation among children, particularly in areas such as the North Coast, that they were in a sense so profoundly disreputable that they were prepared to say that they did not affect an individual client.

            Being a lawyer I know that the law is a complicated thing and relies on matters of discrete definition. Regrettably, as we know, the court accepted their view. The network was ultimately successful in its argument. That is why this bill seeks to amend the Health Care Complaints Act to ensure that there does not need to be an individual client affected—let us be clear, one does not have to prove that a specific individual has been affected—before a complaint against a health service can be made. In view of the case, it is vital to emphasise plainly the importance of immunisation. Immunisation of the population is one of the most effective and cost-efficient measures to prevent disease. More importantly, immunisation is one of the most important methods by which we protect our children, the sick and the elderly from dying or being disfigured by disease in our society. This is not a mere technicality; it is not a mere matter of definition; it is not a mere matter of people's lifestyle choices. We are talking about the lives of our children.

            Dr John Kaye: And other people's children.

            The Hon. TREVOR KHAN: Indeed. I note Dr John Kaye's comment, "And other people's children". We collectively have an obligation to our society to ensure that all of us are healthy and all our children have a chance to grow up strong and capable of contributing to our society. The immunisation programs that successive governments, irrespective of their political flavour, have supported have been fundamental to ensuring that our own children reach their full potential. In the broader international context we know that those immunisation programs are fundamental to assisting and uplifting children in the poor and depressed areas in Third World countries from the degradation in which they live. It is a fundamentally important obligation that we have as rational human beings—

            The Hon. Sophie Cotsis: As parents.

            The Hon. TREVOR KHAN: —indeed, as parents, to ensure all our children have an opportunity in life. Before immunisation became widely available, many infectious diseases such as diphtheria, measles, polio, tetanus and whooping cough were frequent causes of death or serious illness in New South Wales. Immunisation programs introduced over the past 70 years have resulted in significant reductions in these infectious diseases. But immunisation programs are not just historical: new vaccines introduced in recent years have protected countless children and adults against chickenpox, pneumonia and meningococcal disease, and we know of the important work being done with regard to cervical cancer. We are now seeing an extension of those programs related to cervical cancer not just to young women in our society but to young men to ensure that those viruses are, as far as possible, wiped out.

            Vaccination for key vaccines is free for children in New South Wales. Roughly $136 million is being invested in New South Wales in 2012-13 by both the New South Wales and Commonwealth governments to maintain and improve high vaccination coverage rates for children, adolescents and adults to keep people healthy and out of hospital. While immunisation provides good protection for the individual child who is immunised, as Dr John Kaye said earlier, through herd immunity it will indirectly protect children who are too young to be vaccinated. If we extend that, it protects not only children but also the sick and elderly from the prospect of the same diseases.

            Dr John Kaye: And the other vaccinated kids as well.

            The Hon. TREVOR KHAN: That is very true; I acknowledge that. Herd immunity means that if immunisation rates increase in the community, there will be a substantially reduced risk to those who are too young to be vaccinated or people who have insufficient immunity to suffer the sometimes terrible effects of disease. As many people as possible should be vaccinated in New South Wales. Sadly, some groups discourage parents from immunising their children. Let there be no doubt, these groups are a danger to the public health of our society. Their unscientific opinions can result in parents not vaccinating their children. They may contract the infections themselves and pass it on to their children. Anti-immunisation groups, such as the Australian Vaccination Network, have touted unscientific propaganda such as the discredited link between the measles vaccine and autism. The name of the Australian Vaccination Network is profoundly misleading; it implies that it supports immunisation.

            The Hon. Melinda Pavey: Anthony Roberts acted.

            The Hon. TREVOR KHAN: As the Parliamentary Secretary observes, the Commissioner for Fair Trading, at the encouragement of the Minister, has issued a direction under the Associations Incorporation Act for the Australian Vaccination Network to change its unacceptable, misleading and deceptive name. Parents have a right to know the benefits and risk of immunisation. The health strategy of New South Wales is to provide accurate information about the benefits and safety of immunisation, as proven by evidence and research and supported by a myriad of health professionals, not only in Australia but throughout the world.
              The Hon. John Ajaka: Over many, many years.

              The Hon. TREVOR KHAN: Over many, many decades, as the Hon. John Ajaka says. NSW Health has a comprehensive system for the surveillance of adverse events to ensure the safety of the immunisation program. In 2013 NSW Health will begin a new immunisation awareness campaign to further educate and inform the community, as well as immunisation providers, about the importance of ensuring that our children are fully immunised on time. Among the many speeches that were made in the other place, the speech made by the member for Cessnock, Mr Clayton Barr, led to emails being sent to many of us by members of the community in which they criticised him for his vocal criticism of the Australian Vaccination Network. I congratulate him on his words and on assisting in the protection of our children in New South Wales.
                The Hon. Sophie Cotsis: Hear, hear! Go Cessnock.

                The Hon. TREVOR KHAN: I congratulate him on having the guts to stand up against an organisation such as the Australian Vaccination Network. I invite members of the community to send emails about my speech. I will happily receive them and respond accordingly.

                Dr JOHN KAYE [8.22 p.m.]: Before I formally commence, I congratulate the Hon. Trevor Khan on his contribution, with which I agree 100 per cent. I also congratulate the Parliamentary Secretary, the Minister, and the Minister for Fair Trading, and I particularly congratulate the Hon. Catherine Cusack on her words about her community. To speak out about the vaccination issue, as the Hon. Catherine Cusack has done on the North Coast, is not something that one does lightly. It is done with a sense of moral obligation to the children who will be affected if the vaccination crisis that is emerging is not solved, particularly on the North Coast.
                  I speak on behalf of The Greens to the Health Legislation Amendment Bill 2013. It is an omnibus bill; it contains a number of different provisions and amends some five or six Acts. Some of the amendments are machinery, others are important and worthy, and there are two about which we raise significant concerns. We will not be opposing the legislation; we will be seeking to address those matters by amendment. The first amendment in the bill relates to the Health Administration Act 1982. The amendment is to section 11, Disposal of land by Corporation. The legislation will now include the ability for the Health Administration Corporation—which, I understand, holds land on behalf of local health districts—to dispose of surplus land with the approval of the Minister, notwithstanding Crown grant conditions.
                    Many of us would have been involved in the campaign to stop the previous Government from selling Graythwaite to the private school Shore. We were ultimately unsuccessful. The community asset, which was granted to the predecessors of NSW Health by a benefactor for the purposes of public health, ended up in the hands of a private school for the purpose of its operation. We have concerns about a more permissive approach to the disposal of lands. We will be addressing that issue because it does open up the NSW Health assets to further privatisation in a grab-for-cash fire sale with very little public accountability. The Government is already on the record as saying that it wants to sell whatever it can get away with. We are concerned it increases the capacity for the Government to dispose of land.
                      The second area of concern for The Greens is the amendment to section 120 of the Health Services Act to allow the director general to suspend and withhold pay from a member of staff until the issue that caused their suspension or the placing of practising conditions either changes or is resolved. If the matter is found to be unsubstantiated, the director general may pay the salary amounts withheld but is not required to do so if the director general feels it would be inappropriate to do so. In effect, the director general can withhold pay for a member of staff who has been suspended or has practising conditions imposed upon him or her by the Health Care Complaints Commission. We do not oppose the capacity to suspend an individual. There may be good reasons for doing so. But the individual can have their pay withheld and there is no requirement to refund the salary amounts that were withheld if the cause against the individual is subsequently dismissed, the individual's practising conditions are removed, or the suspension is found to be unjustified.

                      Our concern is that an individual working for the Department of Health or an agency of the Department of Health, through no fault of their own, may end up having their conditions changed or they will be suspended and will lose their pay. Without their pay, they may find it difficult to survive. If it was subsequently ruled that no serious matter was found against them, they can return to full operation without receiving their lost wages. This violates the fundamental principle of being innocent until proven guilty. It violates the fundamental principle that an individual who presents to work should be paid.

                      That individual is prevented from working by a decision of the Health Care Complaints Commission or the director general. As the NSW Nurses and Midwives Association stated, to withhold pay pending an investigation or termination is a "fundamental breach of the presumption of innocence, it cannot be justified and is completely punitive". The Greens agree and will move amendments in Committee to that effect. I have no doubt that the Government will say that if someone is not working, they should not be paid. However, if an individual is not working because of something that is not their fault, they should continue to be paid. Both of those matters are serious and The Greens have a number of amendments that address them.

                      The bill amends the Health Care Complaints Act 1993. The first amendment allows the Health Care Complaints Commission to deal with complaints that have not yet had a direct effect on an individual. The second amendment deals with section 8 of the Act and allows the commissioner to initiate a complaint if the commissioner believes that the subject of the complaint raises a significant public health or safety issue, raises significant questions regarding a health service that affects or is likely to affect the clinical management or care of an individual client, or meets a number of other criteria.

                      The Greens strongly support both amendments, and particularly those that address the findings of the Supreme Court in the case of the completely misleadingly named Australian Vaccination Network and NSW Health. That case involved a technicality that effectively stopped the action that NSW Health was taking against the network. We strongly support these amendments because they address that technicality. I add my voice and that of The Greens to the fine words of the many members who have contributed to debate on this bill in this place and the other place. I particularly acknowledge the contribution of the member for Cessnock, Clayton Barr, and of the shadow Minister for Health, Andrew McDonald, who dealt with this issue far better than I can. I have noted the interjections from the Government Whip, and I am pleased that he is taking a very sensible approach to this issue.

                      The Hon. Matthew Mason-Cox: As he always does.

                      Dr JOHN KAYE: I presume that he is taking the John Stuart Mill approach to liberty, which allows the majority to impinge on the rights of the individual when that person's action does harm to others. Just as he no doubt supports the existence of a police force and other legal entities that restrain individuals from inflicting harm on others, he would be concerned—good for him and I congratulate him—

                      The Hon. Dr Peter Phelps: It is slightly different.

                      Dr JOHN KAYE: Perhaps I am verballing him. Nonetheless, there is no doubt that even someone with a strongly libertarian view based on the writings of John Stuart Mill would have reason—

                      The Hon. Matthew Mason-Cox: It is good to hear you paying respect to the Government Whip.

                      Dr JOHN KAYE: I am not paying him respect; I am complimenting him on his stand on this matter, just as I compliment all members of Parliament who have supported this legislation.

                      The Hon. Melinda Pavey: That is because they agree with you.

                      Dr JOHN KAYE: Yes, they do agree with me, and for good reason. It would perhaps be more accurate to say that I agree with them.

                      The Hon. Trevor Khan: I am sure they are retrospectively informed by you.

                      Dr JOHN KAYE: There is no doubt that they read my mind, if not my media releases, which are similarly oriented, and they understand my arguments. The fundamental issue is that parents having their child vaccinated impacts not only on that child but also on every other child.

                      The Hon. Paul Green: It is like passive smoking in public.

                      Dr JOHN KAYE: That is a good analogy. As the Hon. Trevor Khan said, this impacts on not only those children who are too young to be vaccinated but also those who have been vaccinated. The epidemiological evidence demonstrates that children who are vaccinated are more likely to reject infection if they are surrounded by other children who are vaccinated. A vaccinated child in a cohort that is largely not vaccinated is much more exposed to disease. This is a very simple Markovian process. Vaccination is not 100 per cent successful; it has a failure rate. However, the greater percentage of the population that is vaccinated the greater is the capacity of each individual to reject infection. It is called the herd effect.

                      The World Health Organisation suggests that 95 per cent of the community needs to be immunised to achieve herd immunity. Research undertaken by people like J. B. S. Haldane at Oxford University in the 1930s involving the early application of mathematics to biology established that fact and it has been a tenet of public health ever since. To deny that is to deny much of the progress that has been made in ensuring a healthier society. It is one thing for parents to decide that they do not want their child vaccinated because they believe it is dangerous, but it is another thing to go beyond denying the obligation to that child. In that case the parents are going beyond their obligations as citizens of this community and are inflicting ill health on others. Much of this came about as a result of a paper produced by Dr Andrew Wakefield, a British researcher, who had an article published in the Lancet in 1988 in which he suggested that there were links between vaccination and autism.

                      The Hon. Trevor Khan: And he was wrong.

                      Dr JOHN KAYE: Yes, he was dead wrong. As a result of that notorious paper, measles, mumps and rubella vaccination in United Kingdom plummeted to less than 80 per cent, and that triggered measles outbreaks, including some substantial outbreaks that affected many people and that had a substantial public impact. In 2010—12 years later—the General Medical Council declared Wakefield's research fraudulent and unethical. It was fraudulent because it was misleading and unethical because it caused children to be subjected to a number of unnecessary and unapproved procedures such as colonoscopies.

                      From our perspective, the key issue is that Wakefield's research has been comprehensively discredited. He was struck off the medical register, in 2010 the editors of the Lancet retracted the paper—possibly a little late—and a comprehensive review was conducted. As members would be aware, the British Medical Journal is deeply conservative and its editors choose their language extremely carefully. Unlike some members of this Chamber, it is not given to extravagant language. In 2011 it declared Wakefield's research an elaborate fraud. His connection between vaccination and autism has been comprehensively discredited, as has every other piece of so-called research that suggests there are widespread problems with vaccination.

                      That is not to say that there are not finite risks associated with vaccination. However, there are finite risks associated with walking down the street and with using soap and water; there are finite risks with almost everything we do that is fundamental to the prosecution of our life and the protection of our health. These risks are infinitesimally small compared to the public health risk associated with the extraordinarily low levels of herd vaccination that we are seeing emerging in the northern part of the eastern suburbs of Sydney, on some parts of the North Shore and in some areas of the inner western suburbs of Sydney. I pay tribute to the Health Editor of the Sydney Morning Herald, Amy Corderoy, for her article in late April when she comprehensibly blew the whistle on those suburbs where vaccination rates were below 85 per cent. In the past one would have assumed it was a socioeconomic issue—but it is not, as Ms Corderoy identified in her article. It is interesting that areas that one would think have a relatively low socioeconomic status, such as Tamworth, Gunnedah, Lake Macquarie, Wagga Wagga, Penrith, Dubbo, Wyong and the Snowy Mountains, have immunisation rates above 95 per cent. I compliment the public health services in those areas—

                      The Hon. Trevor Khan: And the general practitioners.

                      Dr JOHN KAYE: —and the general practitioners and all the providers of public and private health care in those areas for maintaining those vaccination rates. It is on the south coast and in Kempsey surprisingly, the Richmond Valley, the inner suburbs of Sydney, Sydney's eastern suburbs north, North Sydney, Mosman, Manly and the Blue Mountains where the rate is below 85 per cent. We are seeing the emergence of a combination of two groups of people: the vaccine deniers—those who swallow the propaganda being peddled by the so-called Australian Vaccination Network; and the free riders—those who believe it is easier not to get vaccinated.

                      I do not wish to vilify any particular parent but I do seek to raise serious alarm, as others have, about the behaviour of the Australian Vaccination Network and those who promote the non-science and nonsense of the risks of vaccination. It is all very well to be trendy and to adopt issues that are published on the web but we are serious. This is about the lives of children. Kids die from whooping cough. I do not know if members have seen a child under the age of three years suffering from whooping cough. It is terrible and something that no child should experience. We should be eradicating whooping cough by ensuring we have a vaccination rate of about 95 per cent. I believe that people such as Meryl Dorey from Australian Vaccination Network are behaving in an entirely immoral way. I give my complete support to—
                        The Hon. Trevor Khan: You will be getting emails now too, John.

                        Dr JOHN KAYE: I have had plenty of emails, believe me. My Facebook site became a battleground between rationality and irrationality.
                          The Hon. Trevor Khan: Good on you.

                          Dr JOHN KAYE: Yes. I urge people like Meryl Dorey to stop this campaign that is leading to the death or permanent impairment of children. Meryl Dorey's campaign is immoral and she ought to stop that happening. She should drop this campaign and understand the damage that she is inflicting on other children. The Hon. Paul Green likened this issue to smoking in public.
                            The Hon. Paul Green: Passive smoking in public.

                            Dr JOHN KAYE: Yes, passive smoking in public, and he is right. We should not subject innocent children to theories that are based on non-science and nonsense. I commend the Government, the Opposition and all members of Parliament who stand up for vaccination.

                            The Hon. PAUL GREEN [8.44 p.m.]: I speak in debate on the Health Legislation Bill 2013, which makes changes to the Health Administration Act 1982, the Health Care Complaints Act 1993, the Health Practitioner Regulation National Law (New South Wales), the Health Services Act 1997, the Mental Health Act 2007 and the Mental Health (Forensic Provisions) Act 1990. The amendments to the Health Administration Act make a number of changes. The first will allow the Health Administration Corporation to seek the Minister's approval to dispose of land held by the Health Administration Corporation notwithstanding a Crown grant, and to use the earnings towards other health capital works projects that are more appropriate to the health service needs of the community.
                              This brings the disposal of land held by the Health Administration Corporation into harmony with land held by local health districts under the Health Services Act. I note that in the Legislative Assembly the Hon. Brad Hazzard mentioned that the Health Administration Corporation has not identified any parcels of land that are to be disposed of if this bill receives royal assent. Another amendment to the Health Administration Act extends the serving time of the chairperson of the Medical Services Committee. A member of the Medical Services Committee who is appointed chairperson in his or her third term will be allowed to serve an additional term as chair. This will enable the committee to have access to an experienced member as chair for a reasonable time.
                                The amendments to the Health Services Act will allow staff employed in NSW Health to be suspended without pay in a restricted set of circumstances. Essentially, the director general will be able to suspend a staff member without pay if the staff member is charged with a serious criminal offence. This will also occur in the case of health professionals if an external body such as a Health Professional Council or the Health Care Complaints Commission has taken interim action to prevent the person from practicing as a health practitioner, such as when a Health Professional Council imposes an interim suspension order on a practitioner. I note that in the Legislative Assembly the member for Macquarie Fields stated that the following amendment would be moved in the upper House:

                                    No. 1 Page 11, schedule 4, proposed section 120A, lines 5-9.
                                        Omit all words on those lines. Insert instead:
                                          (7) In this section:
                                          Salary does not include any payment in connection with sick leave, recreation leave or any other leave.

                                          "Serious criminal offence" means an offence committed in New South Wales that is punishable by imprisonment for five years or more or an offence committed elsewhere that, if it had been committed in New South Wales, would be an offence so punishable.
                                I note the Government is currently seeking advice on the amendment foreshadowed by the member for Macquarie Fields, Dr Andrew MacDonald, and the Christian Democratic Party has had meetings with the Government about that. We will support the amendment, particularly as it relates to the interpretation of conditions and entitlements for persons who may be affected and as it relates to potential inconsistencies with other legislation. I note that in the Legislative Assembly the Hon. Brad Hazzard gave an undertaking that the matter will be further considered if others seek to move the amendment in this Chamber. Just who moves this significant amendment here is not an issue for the Christian Democratic Party.

                                A number of parents, many of whom are mothers, work as nurses or health care professionals, and if they are asked to stand down without pay, they will suffer unduly because they will not be to meet their mortgage and car payments and school fees. Families could be crippled based purely on something that is yet to be investigated. It is a wise move not to vindicate anyone who has acted criminally, but certainly everyone should be given the benefit of innocence until proven otherwise.

                                I recall when I was on the Health Care Complaints Commission that many respondents were found guilty of lesser offences that were not criminal; they would have been penalised heavily if they were forced to sell the family home in order to cope during any period of suspension. Minister Hazzard said also that the Government appreciated the Opposition's thoughts on the matter and indicated that the amendment would be proceeded with in the upper House. Since 2008 all unions have had an active involvement in the development of draft guidelines around suspension without pay. This has included discussions about the need to amend relevant legislation. I would even suggest that the policy relating to police salaries and wages should be changed to reflect that spirit. If police are suspended without pay they could also have the same sort of access to those long-term entitlements.

                                The amendments to the Health Care Complaints Act, which followed the recommendations of the joint parliamentary committee and a 2012 Supreme Court decision, will strengthen the role of the Health Care Complaints Commission and help to better protect and serve the public. For example, new section 7 amends the Act to allow a complaint to be made against a health service provider where the health service in question affects or is likely to affect the clinical management or care of an individual patient. I sit on the Committee on the Health Care Complaints Commission and the future administration of this amendment will be helped by this. It will mean that the commission will not be constrained to having to wait for actual harm to occur to future patients before it can investigate a complaint. The amendment to section 8 of the Act provides for the commission to initiate its own motion complaint. This will ensure that the commission does not have to wait for a formal complaint to be made in respect of a serious matter. It allows the commissioner to make the complaint himself or herself. This will allow for a more pragmatic approach by the commission to protecting the health and safety of the community.

                                In my time I have immunised quite a lot of children, and I acknowledge the comments of the Hon. Trevor Khan and Dr John Kaye. Interestingly, my final paper at university addressed the theory gap in immunisation. It was basically a reflection of the Federal Government recommendations made some time later and that Act was aimed at encouraging parents to immunise their children. At that time it was a cost-neutral funding model and the child allowance would be increased only if a child was immunised—part of my paper. I noticed something recently on the television—and I cannot remember the exact terminology—about being acknowledged as the parent who does not want to have his or her child immunised but who is still therefore entitled to an endowment rise. The paper was all about being cost neutral but very encouraging to ensure that children get immunised. In fact, the paper noted that it was similar to the Medicare system where it was recorded and reminders were sent to parents about where their children were up to.

                                Pleasingly, the immunisation process has come a long way since 1994. I believe that we are on the right track but we can never take away the rights and responsibilities of being a parent and parents may choose not to immunise their child. But, as Dr John Kaye has said, one needs to remember that when one is making a decision about immunisation one is probably parenting the whole daycare centre—it will have an impact on the herd immunisation issues of the whole centre. I can remember immunising my own child but my wife would not let me do any more of our children after that. It is such a cute moment when the needle goes through the fatty thighs of a two-month old child. It is like a hot knife through butter as the needle slides in so sweetly.

                                It is well documented that a lot of parents think there will be no side effects from having their children immunised. However, the side effects from immunisation include rashes and possibly headaches. There are ways to ameliorate those side effects but there are also other more serious effects from immunisation. The wonderful thing about health care is that there is always someone who breaks the mould of what is acceptable. I can remember seeing a lady once who had a haemoglobin level of four and, incredibly, she was still walking around and living life. Medical marvels do happen, but so do accidents and fatalities in situations where we are not aware that some children may be allergic to immunisation.

                                In the end we need to think of the greater good. For example, polio is almost no longer existent in the world. How wonderful would it be if we could get rid of whooping cough, measles, mumps, rubella and all those diseases we can immunise against? It is a no brainer that children who are immunised will be saved from those terrible illnesses that so many who have gone before us have either been incapacitated or died from. The Christian Democratic Party commends the bill to the House.

                                The Hon. Dr PETER PHELPS [8.55 p.m.]: Up until a short while ago if one went into a reasonable bookstore around Australia one could have bought an anti-vaccination book aimed specifically at children called Melanie's Marvellous Measles. That book claimed, despite evidence that measles can kill and cause brain damage, that it is "a good thing" to have measles. On the cover of the book Melanie is happily playing in the garden and showing off a rash on her belly. In the story she is at home with measles and her friend Tina is worried but her mother reassures her, "Firstly, Tina, measles do not run and catch or hurt you; for most children it is a good thing to get measles. Many wise people believe measles make the body stronger and more mature for the future." Tina then asked if she can go and catch measles from Melanie. Her mother responds, "That sounds like a great idea" and suggests some carrot juice and melon might help Melanie recover.

                                Dr John Kaye said that he did not seek to vilify anyone; I am not going to be so nice. If someone was to give or read that book to their child they would be a bad parent. They would not be merely stupid; they would be putting their child at risk. Dr John Kaye questions my motive for supporting this—

                                Dr John Kaye: No, I did not.

                                The Hon. Dr PETER PHELPS: I do not mean that in a pejorative sense. It is not some great libertarian, Millian idea; it is the basic principle that the State stands ultimately in loco parentis where the parent is unable or unwilling to do the right thing. Stupid adults can do what stupid adults like, but the nature of the relationship between a parent and a child means that the State on occasion must intervene where the parent's obvious incapacity puts a child at risk. In other words, it is part of the grand libertarian tradition that no person should initiate harm against another. If people want to educate themselves about vaccination they should not be reading Melanie's Marvellous Measles. Instead, I would encourage them to go to the internet and Google "Penn and Teller vaccination". Penn and Teller—two of my favourite libertarian speakers, magicians, comedians—present a wonderful debunking of the whole antivaccers doctrine, and in those three or four minutes they present a more powerful account of why the antivaccers are not only bad but they are mad.

                                One thing which has been missing in all of this is the question: Why would sensible people do this? Why would reasonable adults choose to turn their back on what is the obvious materially-proven effectiveness of vaccination? It is sad but true to say that there is a growth of neo-primitivism in Australia, a love of return to the primitive, a belief that nature is best, that we should accommodate ourselves to nature and not seek to overcome it. That says that if people wish to accommodate themselves to nature, when a lion runs at them they should stay and be eaten. People should not do anything to give effect to their survival and improvement. Unfortunately, neo-primitivism is gaining more and more influence. There is another group called the National Toxics Network, which is also part of the grand neo-primitivism that is sweeping areas.

                                Dr John Kaye: That's not fair. It is neither fair nor true.

                                The Hon. Dr PETER PHELPS: The National Toxics Network recommends that people not have flame-retardant clothing. For any of us who know about this, flame-retardant clothing has done much to save children's lives in Australia. Flame-retardant clothing is necessary. They also have links to anti-fluoridation.

                                Dr John Kaye: That's not true.

                                The Hon. Dr PETER PHELPS: It does indeed. The network has links to anti-fluoridation statements. That is a sad example of how it is not merely the antivaccers but neo-primitivism is creeping through our society.

                                Dr John Kaye: This is wrong.

                                The Hon. Dr PETER PHELPS: We should not accommodate ourselves to nature. From the primordial slime onwards we have spent our entire time seeking to overcome nature. We do not accommodate; we overcome.

                                The Hon. Trevor Khan: We shall.

                                The Hon. Dr PETER PHELPS: And we shall overcome some day. Neo-primitivism also finds its way into things such as crystal therapy, aural healing, osteopathy, herbal medicines or things of that nature. The anti-vaccination movement fits solidly within this bizarre realm of thought. There is a reason it is called "alternative medicine". Because if it actually worked, it would just be called "medicine".

                                The Hon. HELEN WESTWOOD [9.02 p.m.]: I speak on the Health Legislation Amendment Bill 2013 and in doing so I will restrict my comments—

                                The Hon. John Ajaka: To the bill.

                                The Hon. HELEN WESTWOOD: I acknowledge the interjection. I assure the Hon. John Ajaka that I will be restricting my comments to schedule 2 to the bill. He will not be hearing about aromatherapy or crystal therapy from me. Schedule 2 amends the Health Care Complaints Act 1993. I will comment on the 2010 report of the Committee on the Health Care Complaints Commission on the operation of the Health Care Complaints Act 1993. Previous speakers referred to the 2012 decision of the Supreme Court in Australian Vaccination Network Inc. v Health Care Complaints Commission. That case led to the development of the provisions in schedule 2. I was the chair of the Committee on the Health Care Complaints Commission when that report was published.

                                When the Health Care Complaints Commission began its action against the Australian Vaccination Network, as chair of the committee I was concerned that the commission may not have the power to act as it was so doing. As the chair I wrote to the commissioner and asked him whether he thought he had that power. The committee members—Reverend the Hon. Fred Nile was a committee member at that time, as was the Hon. David Clarke, amongst others—had doubts about whether the Health Care Complaints Commission had the power. We sought advice because the committee was willing to recommend to the then Government that amendments were necessary to ensure that the commission had that power. The commissioner wrote back and his advice to the committee at that time was that the commission believed it had the power and it proceeded with the action.

                                We now know from the 2012 Supreme Court decision that the Health Care Complaints Commission did not have the power; hence these amendments are before the House. It is important to put the issue in that context. There was concern. I believe the Committee on the Health Care Complaints Commission fulfilled its role when it sought advice from the commissioner. Honestly, a number of committee members were concerned that the commission did not have the power and we were willing to advise the Government to make amendments. It was only because the commissioner wrote to the committee and advised that he believed the commission had the power that the committee did not recommend to the then Government to make those amendments.

                                The bill is important for the same reasons given by previous speakers. I am gravely concerned when organisations misrepresent the facts, and the role and intent of their organisation. That could lead to parents—or for that matter any person looking for accurate, evidence-based material or information that relates to their health or the health of their child—believing that the organisation has information and can fulfil that role based on science and peer-reviewed research. When an organisation represents itself as being able to provide information, that is not only reprehensible but it should be a crime because the consequences for our public health are serious. In addition, not only are the consequences for public health serious; the consequences for children are dire. Children die; infants die from whooping cough. They also die from other childhood diseases, the dangers of which we do not understand because of vaccination. Honestly, people do not believe the serious consequences of childhood diseases such as measles, mumps, chicken pox and whooping cough.

                                It is in the interests of the whole community that we urge all parents to vaccinate their children against these diseases. Like many other people, I vaccinate my children. I am a great advocate for vaccination. I simply do not accept the arguments against vaccination. They simply do not hold up to any evidence, research or inquiry. They have made such a difference to public health in this community. As many members know, I have an adult daughter who is deaf. Because of my involvement with the deaf community I know a number of children who are deaf as a consequence of measles. People do not realise that.

                                Childhood diseases cause serious disabilities in children, which they then have to live with for the rest of their lives. They affect the quality of their lives and their family. That is the sort of information about vaccination that parents need. They do not need lies, they do not need misinformation and they do not need organisations such as the Australian Vaccination Network putting themselves forward as advocates for vaccination, as informants of scientific evidence based information that has been tested and peer reviewed. They do not have that information, but they put themselves forward to parents as the providers of that information, and that is a reprehensible lie that has serious consequences for the community, for the public and for children.

                                No-one should have to lose a child through a disease that is easily prevented by vaccination. Most of us here are parents, but even those who are not would believe that there is nothing worse than losing a child. I could not imagine having my baby and losing her at four weeks or six weeks of age to whooping cough. In 2013 it is absolutely unnecessary—

                                The Hon. Melinda Pavey: —for that newborn to be put at risk.

                                The Hon. HELEN WESTWOOD: Yes. Children should not be put at risk, there is no doubt about that. I acknowledge the interjection. I believe that we have a duty to do anything we can as legislators and as community leaders to prevent children dying from childhood diseases that are easily prevented through vaccination. I certainly will be happy to put up my hand for this legislation. When my daughter was 12 she went on a school excursion and came home with whooping cough. I must say I was naïve at that time and did not realise that she needed to have a booster, but I since found out and I make sure that my grandchildren have it. My daughter was a healthy young woman, although she is an asthmatic. She was a very fit 12-year-old and she was debilitated. It was just terrible to see her coughing and coughing, not being able to catch her breath. How that would be for an infant, I cannot imagine. I have heard descriptions of babies' little chests caving in and virtually touching the diaphragm. It is heartbreaking, and it is unnecessary because vaccination really can prevent it.

                                We must do all that we can to give parents accurate information and let them know that vaccinations are safe. We accept that there are risks, but the risks need to be put into perspective. The risks are miniscule compared to the risks of not vaccinating. I think that is a really important message that all of the community must hear. My greatest concern is that we have organisations such as the one that calls itself the Australian Vaccination Network, and we know that that is an absolute misrepresentation of who and what they are.

                                The Hon. Trevor Khan: A lie.

                                The Hon. HELEN WESTWOOD: Yes, it is a lie.

                                The Hon. Sophie Cotsis: They are anti.

                                The Hon. HELEN WESTWOOD: They are the anti-vaccination network. They are anti-vaccination and that has serious public health consequences. In addition, it actually risks the lives of children—infants—and we must all do everything we can to prevent that from happening. No parent should lose a little one because they have not been vaccinated, because it is so readily available in our community and it really can make a difference to children's lives. That is the main point I wanted to make. So many other parts of this bill are clearly worthy of our support, but for me this is the most important aspect of it. The Government, to its credit, has addressed the issue of the Australian Vaccination Network having the capacity to use a name that misrepresents who they are, and I think that is a really important action that the Government has taken. I commend it for that as well.

                                The Hon. Trevor Khan: It is a bipartisan position.

                                The Hon. HELEN WESTWOOD: Absolutely, yes. I acknowledge the Hon. Trevor Khan's interjection. I believe there will be bipartisan support for this—in fact, I think there will be multipartisan support. I think all of us here are community leaders and we know what is in the interests of the community. We do not want to see little children die from childhood diseases that are so easily prevented because of the wonders of medical science that are available to us in developed, wealthy countries such as Australia in 2013. I commend the bill to the House.

                                The Hon. CHARLIE LYNN (Parliamentary Secretary) [9.16 p.m.]: I congratulate the members who have spoken to the Health Legislation Amendment Bill 2013, including the Hon. Trevor Khan, Dr John Kaye, the Hon. Helen Westwood and the Hon. Paul Green. We have heard wonderful contributions across the spectrum in support of the bill, which will make various amendments to the Health Care Complaints Act 1993, the Health Services Act 1997, the Health Administration Act 1982, the Health Practitioner Regulation National Law (New South Wales), the Mental Health Act 2007 and the Mental Health (Forensic Provisions) Act 1990. The bill has some small amendments, but they will have very profound effects. I congratulate the Minister for Health, and Minister for Medical Research on introducing the bill.

                                I acknowledge that some of the amendments reflect recommendations made by members of the previous Joint Standing Committee on the Health Care Complaints Commission. One of the amendments will enhance and strengthen the operations of the Health Care Complaints Commission. In particular, the amendment to section 7 (1) (b) to insert ", or is likely to affect" will change the legislation to read:
                                    What can a complaint be made about?

                                    (1) A complaint may be made under this Act concerning ...
                                        (b) a health service which affects, or is likely to affect, the clinical management or care of an individual client.

                                The commission has received complaints against the Australian Vaccination Network, including one relating to the parents of a four-week-old child who died of whooping cough, alleging that the Australian Vaccination Network provided inaccurate and misleading information about vaccination. Tonight we have heard a lot from members about the Australian Vaccination Network. Dr John Kaye mentioned the impact of whooping cough. I grew up in an era when a lot of the kids in my town were affected by the various diseases we have spoken about. I was born with eczema; I had chronic asthma; I had chicken pox, the mumps and whooping cough; and I had my tonsils out twice—you name it. I spent all my early years in the Orbost district hospital.

                                The Hon. Rick Colless: And you live to tell the tale, Charlie.

                                The Hon. CHARLIE LYNN: Yes. When I look back, polio was a big thing in those days and a number of kids in our town suffered tremendously from it. Dr John Kaye said something about the impact of whooping cough. I remember my baby sister once had a bad attack of whooping cough. Mum and dad were throwing her between the two of them. I stood only a metre or so high, and I was just praying to God that something would work. When you experience it and when you see the impact of it on a young child, as the Hon. Helen Westwood said, it is unbelievable. We have a duty to do anything we can to prevent that.

                                It is good to be able to stand here and listen to the cross-party condemnation of the Australian Vaccination Network and the support for the bill. The Australian Vaccination Network website presents a highly sceptical view of vaccination, which could be interpreted as an anti-vaccination message, which it is. But at first glance its name would imply the exact opposite. The commission investigated and made a recommendation that the Australian Vaccination Network should publish a public statement on its website that, in essence, it provides information against vaccination. The network failed to do so and the Health Care Complaints Commission issued a public warning against the Australian Vaccination Network.

                                The Australian Vaccination Network challenged the recommendation in the Supreme Court and won the case against the commission. The challenge was based on the argument that the commission did not have jurisdiction to conduct an investigation because a valid complaint had not been made. It also implies that if people take the health provider's advice, even if it is published on the internet, it cannot be responsible for the individual's medical outcome.

                                Such a limitation on the Health Care Complaints Commission's jurisdiction is fundamentally problematic as complaints cannot be made and the commission cannot investigate matters proactively when there are reasonable grounds that a health service has the potential to affect the clinical management or care of an identified client. Rather, the commission will be required to wait for such risks to materialise. This is not in the best interest of public health. Adding the words "is likely to affect" to section 7 will enable the commission to legitimately investigate a complaint. It will ensure the Health Care Complaints Commission will not be prevented from carrying out an investigation about a serious matter of which the Health Care Complaints Commission is aware purely on the basis that another person has not made a complaint.

                                The safeguards applying to the amendment are that the subject of complaint made by the commission raises a significant issue of public health or safety, raises a significant question regarding a health service that affects, or is likely to affect, the clinical management or care of an individual, or if substantiated would provide grounds for disciplinary action against a health practitioner, or involves gross negligence. This amendment will strengthen the role of the Health Care Complaints Commission and will ensure that when the commission is aware of a matter affecting the health or safety of patients, or of the public in general, the commission will not have to wait for a complaint to come to the commission but proactively will be able to investigate a complaint.

                                The bill inserts a new section 16A into the Health Care Complaints Act that gives notice of the making of a complaint to the current employer of the health practitioner in only the limited circumstance in which the Health Care Complaints Commission considers that giving the notice is necessary to assess the matter effectively or to protect the health or safety of the public. There have been so many incidents involving obstetricians in New South Wales and Queensland that one can only think that a provision similar to new section 16A may have prevented some of the issues from arising. One can only speculate on whether that may have helped. However, the commission has discretion about whether to notify an employer if notifying the employer will place the complainant or another person at risk of intimidation or harassment or will unreasonably prejudice the practitioner.

                                Once a complaint has been assessed the provisions of this bill will make it mandatory for the commission to notify parties to the complaint and additionally give reasons for the decision. Currently the procedure is somewhat ad hoc. This provision will ensure that both parties to a complaint will receive reasons that have led to the commission's decision. The bill amends section 90B of the Act to allow the director of proceedings to formally refer complaints back to the commission for investigation when further information is required, and provides for reactivation of the investigative powers of the commission. The provision will be a very handy tool for the commission when it progressively receives complaints regarding a practitioner or a service that already has been investigated. This provision will enable the commission to add the new complaints and reopen the investigation. The amendments I have discussed and other amendments will allow for smoother running of the Health Care Complaints Commission. I commend all speakers in the debate and I commend the bill to the House.

                                The Hon. MELINDA PAVEY (Parliamentary Secretary) [9.23 p.m.], in reply: I thank honourable members for their support for the bill. I genuinely appreciate the comments and the passion that I witnessed in the Chamber this evening. The Legislative Council is a good place to be tonight and I thank all members for their contributions and the passion with which they were delivered. The bill makes changes to the Health Administration Act 1982, the Health Care Complaints Act 1993, the Health Practitioner Regulation National Law (New South Wales), the Health Services Act 1997, the Mental Health Act 2007 and the Mental Health (Forensic Provisions) Act 1990.

                                The provisions of the Health Administration Act will allow the Health Administration Corporation to seek the Minister's approval to dispose of land held by the Health Administration Corporation, notwithstanding a Crown grant, and use the proceeds towards other health capital works projects that are more suited to the health service needs of the community. The amendment put forward by The Greens will require the Health Administration Corporation to notify the Minister as to the purposes to which the proceeds of the disposition of land will be allocated. Good practice would require such notice to be given to the Minister. It is the intention of New South Wales Health to support this provision through internal policy and guidelines. Therefore the foreshadowed amendment is not supported.

                                The bill will bring the disposal of land held by the Health Administration Corporation into line with land held by local health districts under the Health Services Act. There are no identified parcels of land that the Health Administration Corporation has currently identified to be disposed of if this bill passes. Of course, this will occur in the broader context of clinical services planning, and other health planning, that is conducted by local health districts and the Ministry of Health to ensure the needs of local communities are adequately met. The other amendment to the Health Administration Act will allow a member of the Medical Services Committee who is appointed chairperson in their third term to serve an additional term as chair. This will enable the committee to have access to an experienced member as chair for a reasonable period.

                                The amendments to the Health Services Act will allow staff employed in the New South Wales health service to be suspended without pay in a limited set of circumstances. In essence, the director general will be able to suspend a staff member without pay if the staff member is charged with a serious criminal offence or, in the case of health professionals, if an external body such as a health professional council or the Health Care Complaints Commission has taken interim action to prevent the person from practising as a health practitioner, such as when a health professional council imposes an interim suspension order on a practitioner.

                                The Greens' proposal to amend the bill to remove the ability to suspend staff in the health service without pay is not supported. Suspension without pay is not uncommon within the public sector as it recognises that there will be limited circumstances where taxpayer money should not continue to be used to pay an employee while they are suspended from duty. Suspension without pay is an option under the Public Sector Employment and Management Act and also applies to teachers and police. While it is an option, suspension without pay should be a limited option and the bill applies an appropriate balance in this respect. The Public Service Commissioner has also indicated that the amendment is inconsistent with the current provisions under the Public Sector Employment and Management Act.
                                  The proposed Labor Party amendment seeks to clarify the ability of a staff member to access previously accrued leave entitlements during a period of suspension. The amendment is not opposed as it was the intention of NSW Health that any staff member suspended without pay would have access to leave entitlements accrued prior to their suspension. While this provision was intended to be supported by NSW Health policy and guidelines, the Government is happy to clarify the ability of staff to access previously accrued leave while suspended without pay.
                                    Regarding the issue raised by the Opposition of returning withheld salary should the employee later be exonerated, this will be at the discretion of the director general. As noted by the Hon. Catherine Cusack, in many cases it is not a question of exoneration. Staff in the health system are often registered health practitioners whose ability to work in the health system is dependent on maintaining their registration under the Health Practitioner Regulation National Law. If a health professional council imposes an interim cancellation order on a practitioner's registration the practitioner is not able to practice. Even if the emergency cancellation order is later lifted this does not change the fact that the practitioner could not legally practice for that period. In such circumstances it may be inappropriate to return any money withheld during the practitioner's suspension from duty.
                                      This situation may be contrasted with the case of an employee who is suspended from duty because they are charged with a serious criminal offence. If the employee is later found not guilty it may be appropriate to return any salary withheld during their suspension as the employee could have worked but for their suspension from duty. The different scenarios that arise in the health service therefore call not for a blanket rule but for discretion in order to deal with each case as it arises on its individual merits. It is important to note that, given that the threshold for suspension without pay under this bill is so high, the provisions are only ever likely to be applicable to an extremely limited proportion of staff.
                                        The Opposition has called for a guarantee that the power to suspend a staff member without pay is not delegated. As is normal practice, the director general delegates many of her powers to other officers within the New South Wales health system, including chief executives of local health districts. As chief executives have the day-to-day management of staff in a local health district this is entirely appropriate. A delegation to the chief executive, if that occurs, will not affect their ability to consider all of the practitioner's circumstances prior to making a decision regarding suspension without pay. This is consistent with the model of devolution across NSW Health whereby local health districts are empowered to make decisions that may impact on the health care of the community and on the provision of quality services.

                                        Noting the concerns raised by the Opposition, not only have all relevant unions had active involvement in the development of draft guidelines around suspension without pay for some time, these discussions will be ongoing. The amendments to the Health Practitioner Regulation National Law, and the Mental Health Act and the Mental Health (Forensic Provisions) Act are generally minor in nature and are aimed at tidying up and clarifying existing provisions. For example, the amendments will clarify that a forensic patient on leave or released into the community can be scheduled and detained under the Mental Health Act.

                                        Further amendments will clarify the role of a health professional council when dealing with impaired practitioners so that legislation accords with current practice. The amendments to the Health Care Complaints Act, which follow on the recommendations of the joint parliamentary committee and a 2012 Supreme Court decision, will strengthen the role of the Health Care Complaints Commission to help better protect the public. For example, the amendment to section 7 of the Act will allow a complaint to be made against a health service provider where the health service in question affects, or is likely to affect, the clinical management or care of an individual patient. This means the commission will not be hamstrung in waiting for actual harm to occur to patients before it can investigate a complaint. Likewise, the amendment to section 8 of the Act, which provides for the commission to initiate an own motion complaint, will ensure that the commission does not have to wait for a formal complaint to be made in respect of a serious matter; the commissioner will be to make the complaint. This will allow for a more proactive approach by the commission to protecting the health and safety of the community. I commend the bill to the House.

                                        Question—That this bill be now read a second time—put and resolved in the affirmative.

                                        Motion agreed to.

                                        Bill read a second time.
                                          In Committee
                                            Clauses 1 and 2 agreed to.

                                            Dr JOHN KAYE [9.31 p.m.]: I move The Greens amendment No. 1 on sheet [C2013-023C]:

                                                No. 1 Page 3, Schedule 1 [1]. Insert after line 11:
                                                      (3) The Corporation must, in a request to the Minister under subsection (2), identify the purposes to which the proceeds of the disposition of land are to be allocated.
                                            This amendment inserts a proposed subsection that requires the corporation, when requesting the Minister to dispose of land, to identify the purpose to which the proceeds of the disposition of land are to be allocated. It is a mild amendment. It is asking that when the Health Administration Corporation sells land that it identifies to the Minister where the proceeds of that land go. It is designed to put a brake on privatising the ownership of land to ensure that the disposition of the money is appropriately allocated. I commend the amendment to the Committee.
                                              The Hon. MELINDA PAVEY (Parliamentary Secretary) [9.32 p.m.]: The Government opposes The Greens amendment. The bill proposes to amend section 11 of the Health Administration Act to allow land held by the Health Administration Corporation that is subject to a Crown grant to be disposed of with the approval of the Minister notwithstanding that the use or disposal is contrary to the provision of the Crown grant. The provision, as outlined in the bill, will bring land held by the Health Administration Corporation into line with land held by local health districts under the Health Services Act. It will allow the Health Administration Corporation to use the proceeds towards other health capital works projects that are more suited to the health needs of the community.
                                                The Greens have proposed an amendment to require the Health Administration Corporation in any request to the Minister under section 11 to identify the purposes to which the proceeds of the disposition of land are to be allocated. It would be good practice for any proposal to the Minister to dispose of land subject to a Crown grant to identify where the proceeds from the disposal will be allocated. As it is the intention of NSW Health to ensure this occurs through internal policy and guidelines, the Government does not support The Greens amendment.
                                                  The Hon. SOPHIE COTSIS [9.33 p.m.]: The Opposition does not support this amendment.
                                                    Question—That The Greens amendment No. 1 [C2013-023C] be agreed to—put and resolved in the negative.
                                                      The Greens amendment No. 1 [C2013-023C] negatived.
                                                        Schedule 1 agreed to.
                                                          Schedules 2 and 3 agreed to.
                                                            Dr JOHN KAYE [9.34 p.m.]: I will not move The Greens amendment No. 2 on sheet C2013-023C. I now move The Greens amendment No. 1 on sheet C2013-029:

                                                                No. 1 Page 10, Schedule 4, proposed section 120A (2)–(4), lines 1–38. Omit all words on those lines. Insert instead:
                                                                      (2) If:
                                                                          (a) a person referred to in subsection (1) (e) is suspended from duty under this section, and
                                                                          (b) the person is subsequently convicted of the serious criminal offence concerned,
                                                                            any salary paid to the person as a member of staff while the person was suspended must be repaid to the State unless the Director-General otherwise directs.
                                                                        (3) Any salary required to be repaid under this section may be recovered in any court of competent jurisdiction as if it were a debt due to the State.
                                                              This amendment ensures that if a person is suspended from duty in the previous subsection and the person is subsequently convicted of a serious criminal offence then salary paid to that staff member while they are suspended must be repaid to the State unless the director general otherwise directs. The proposed section 120A as it stands, as I said during the second reading debate, leaves the discretion to the director general as to whether the salary is withheld or whether it is refunded if the matter is discharged. This amendment allows an individual to be paid, but if the person is subsequently convicted of a serious criminal offence during the suspension period then that salary can be recovered by the State and power is given to take the matter to a court of competent jurisdiction. It is a compromise: on the one hand, the staff member does not forgo their salary; and, on the other hand, any staff member who may be subsequently convicted of a serious criminal offence will have their salary recovered by the State. It is a good compromise between the Government's opposition and our original desire to remove the withholding of salaries. I commend the amendment to the Committee.

                                                              The Hon. MELINDA PAVEY (Parliamentary Secretary) [9.37 p.m.]: The Government opposes this amendment. The bill proposes to amend the Health Services Act to allow suspension without pay in limited circumstances where an employee is charged with a serious criminal offence or, in the case of a registered health practitioner, where an interim order by a health professional council has suspended the practitioner's registration or placed conditions on the practitioner's registration that are inconsistent with the inherent requirements of their job. The ability to suspend staff without pay in limited circumstances is common across the public sector. Public sector staff can be suspended without pay under the Public Sector Employment and Management Act, as can teachers and police. The bill recognises that there are circumstances in which it may be inappropriate for a public sector employer to continue to pay taxpayers' money to a staff member who has been suspended from duty.

                                                              The Greens proposal would remove the ability to suspend staff in the health service without pay. Rather, The Greens proposal would allow health service staff to be suspended with pay, which already occurs. Under The Greens' proposal a medical practitioner whose registration has been suspended by the Medical Council can be suspended by the health service but must continue to be paid by the taxpayers. The Hon. Catherine Cusack clearly illustrated the impact that that would have on health services across New South Wales. That is notwithstanding that the practitioner in question would have had his or her registration suspended by the Medical Council and therefore could not lawfully practice medicine.

                                                              While health practitioners would not be able to be suspended without pay where an external body has found that they cannot practise, The Greens are in effect proposing a reverse suspension without pay for employees charged with a serious criminal offence. Under The Greens' proposal, if an employee is charged with a serious criminal offence the employee can be suspended with pay. However, if the employee is convicted of the offence he or she must repay the salary paid during the suspension unless otherwise directed by the director general. The money paid during the period of suspension would become a debt owing to the State. Expecting a local hospital to recover that money paid is utterly unreasonable, impracticable and would be a waste of the hospital's time, money and resources.

                                                              The Public Service Commission has indicated that The Greens' amendment is inconsistent with section 49 (2) of the Public Sector Employment and Management Act 2002, which provides that the departmental head is able to suspend with or without pay. The choice of without pay is based on the seriousness of the issue and is reviewed every 30 days in accordance with the policy dealing with suspension. The purpose of this amendment is to limit the capacity to make a decision based on the seriousness of the matter and to fetter the capacity of the decision-maker to assess and respond to a decision made by an external third party. The Government does not support the amendment.

                                                              The Hon. SOPHIE COTSIS [9.41 p.m.]: The Opposition will not support The Greens' amendment. My colleague the shadow Minister for Health, Andrew McDonald, was not given notice of this amendment. If he had been we could have discussed it with the relevant stakeholders, although we have discussed it with Dr Kaye.

                                                              The Hon. CATHERINE CUSACK [9.42 p.m.]: I thank the Opposition for the responsible attitude that it is taking. If the onus is placed on the Government to continue to pay medical professionals who have been charged with serious offences none of them will resign and leave the service. They will all stay on and continue to draw a salary while they go through long, drawn out legal proceedings. If this amendment were agreed to the Butcher of Bega would still be drawing his salary for years and the people of Bega would be denied access to resources unless someone found more money. That salary would be paid to someone who was accused of serious offences and who was not working and patients would be abandoned. Let us not forget that salaries are paid to people who provide services to the community.

                                                              Under The Greens' amendment, if a doctor were convicted at the end of a long, drawn out legal process the health service would be confronted with the prospect of trying to recover years of salary. I predict that that money would be long gone, having been used to pay legal bills. How much of the money that is desperately needed by patients should we spend on people who in some instances have been killing their patients? That proposition is completely indefensible. There is a gap between what The Greens are proposing and what happens in health services. The Greens must understand that hospitals and area health services are trying to undertake as many operations as they can and as safely as they can within budget constraints.
                                                                The last thing we should do is waste those resources and then lose even more trying to recover them. That would inevitably be a hopeless cause, because the convicted person would probably be in jail and would most likely be declared bankrupt. This is a ludicrous amendment. It is definitely not in the interests of patients and it will undermine the budget. Anyone accused of a serious offence will not resign because they will be guaranteed an income for the duration of the legal process. I urge members to reject this amendment.
                                                                  The Hon. PAUL GREEN [9.44 p.m.]: We have heard some solid arguments from the Government and the Opposition. The Christian Democratic Party never wanted money to be paid for services not rendered. We simply wanted people to have access to their own money to use during the hard times. The Christian Democratic Party opposes the amendment.
                                                                    Dr JOHN KAYE [9.45 p.m.]: I thank members for their contributions. I apologise to the Opposition, and particularly to Dr Andrew McDonald, for not providing a copy of the amendment. The Hon. Catherine Cusack made a cogent point and she was persuasive. However, under our system of law the Butcher of Bega is not the Butcher of Bega until he is convicted of being the Butcher of Bega. Indeed, he might not be the Butcher of Bega; false accusations might have been made. He remains innocent until he is convicted. That is a fundamental principle.
                                                                      Without this amendment innocent people will be denied access to their salary through no fault of their own. They are not working but they have been excluded from their profession. I totally accept that there is a risk that money will be lost, and that is a good argument. I have seen outside the health profession a person who I was convinced was guilty of malfeasance continue to be paid after having been suspended from duty. That happens under a number of employment arrangements. The money was probably lost in that case, but that is the price we pay. I respect the member's point of view and I understand it. However, in this case The Greens believe that the principle of a person being deemed innocent until proven guilty overrides the economic notion that money can be denied to someone if they are not delivering a service.
                                                                        It is not that people in that position are not delivering the service because they are lazy or because they choose not to do so; they are not delivering it because they are prevented from doing so as a result of being accused of an offence by the Health Care Complaints Commission. I acknowledge the argument and its validity. However, it is trumped by the principle that we are innocent until proven guilty. We run the risk of savagely hurting people who through no fault of their own are accused of something and who are subsequently found not guilty.
                                                                          The Hon. CATHERINE CUSACK [9.47 p.m.]: The Butcher of Bega will be presumed innocent and no member would deny him that presumption. However, the interests of thousands of innocent patients in need of health care must have priority over the income requirements of the Butcher of Bega while he fights his legal case. This Government stands behind patients. The defendant will be presumed innocent in the court system. This bill prioritises the delivery of health services to patients.

                                                                          Question—That The Greens amendment No. 1 [C2013-029] be agreed to—put and resolved in the negative.
                                                                            The Greens amendment No. 1 [C2013-029] negatived.
                                                                              The Hon. SOPHIE COTSIS [9.49 p.m.]: I move Opposition amendment No. 1 on sheet C2013-027:

                                                                                  No. 1 Page 11, Schedule 4, proposed section 120A, lines 5–9. Omit all words on those lines. Insert instead:
                                                                                        (7) In this section:
                                                                                            Salary does not include any payment in connection with sick leave, recreation leave or any other leave.
                                                                                            Serious criminal offence means an offence committed in New South Wales that is punishable by imprisonment for 5 years or more or an offence committed elsewhere that, if it had been committed in New South Wales, would be an offence so punishable.

                                                                              This amendment will enable staff to access their previously earned leave entitlements once they have been suspended. They have done the work and accrued leave. This is a work entitlement. This amendment will allow these workers to feed their families, access medical treatment and pay their mortgage or rent while due process, which is required for patient safety and fair treatment of staff, occurs. I thank the Government for supporting this amendment. I urge other members to also support it. I have heard some fantastic and passionate contributions from members on all sides about the importance of vaccinating our children and the need to get the message out to the community. I congratulate all members on their contributions.

                                                                              The Hon. MELINDA PAVEY (Parliamentary Secretary) [9.50 p.m.]: The Government does not oppose this amendment. It was the intention of NSW Health that any staff member suspended without pay would have access to leave entitlements that accrued prior to their suspension. I know that this matter greatly concerned the Hon. Paul Green from the Christian Democratic Party. He spoke with me last week about it and was involved with this amendment. While this provision was intended to be supported by NSW Health policy and guidelines, the Government is happy to clarify the ability of staff to access previously accrued leave whilst suspended without pay.

                                                                              The Hon. PAUL GREEN [9.51 p.m.]: I have enjoyed the role I have played in the past couple of weeks working with all sides of Parliament to introduce common-sense legislation. I give full credit to the Hon. Melinda Pavey who looked at this proposal on merit and embraced it. I was approached by a member of the Legislative Assembly about his concerns in relation to this matter and now the upper House has addressed those concerns in a multi-platform way. I hope this amendment will be mirrored in the future across all portfolios. The Christian Democratic Party supports the amendment.

                                                                              Dr JOHN KAYE [9.52 p.m.]: The Greens support this sensible amendment. I note, however, that the first I was aware of this amendment was at 8.02 p.m. No copy was sent to me.

                                                                              The Hon. Catherine Cusack: And you are still voting for it? Vote against it, John.

                                                                              Dr JOHN KAYE: Thank you for that advice. That being said, The Greens are capable of analysing this amendment in the time granted to us and we recognise it as a step forward. It possibly does not go far enough. The Greens support the amendment.

                                                                              Question—That Opposition amendment No. 1 [C2013-027] be agreed to—put and resolved in the affirmative.

                                                                              Opposition amendment No. 1 [C2013-027] agreed to.

                                                                              Schedule 4 as amended agreed to.

                                                                              Schedules 5 and 6 agreed to.

                                                                              Title agreed to.

                                                                              Bill reported from Committee with an amendment.

                                                                              Adoption of Report

                                                                              Motion by the Hon. Melinda Pavey, on behalf of the Hon. Michael Gallacher, agreed to:

                                                                                  That the report be adopted.

                                                                              Report adopted.
                                                                                Third Reading

                                                                                Motion by the Hon. Melinda Pavey, on behalf of the Hon. Michael Gallacher, agreed to:
                                                                                    That this bill be now read a third time.
                                                                                Bill read a third time and returned to the Legislative Assembly with a message requesting its concurrence in the amendment.