Health Practitioner Regulation (Consequential Amendments) Bill 2010
Reference
1.1
On 24 February 2010, the Hon Nicola Roxon MP, Minister for Health and
Ageing, introduced the Health Practitioner Regulation (Consequential
Amendments) Bill 2010 (the bill) into the House of Representatives.[1]
On 25 February 2010, the Senate, on the recommendation of the Selection of
Bills Committee, referred the provisions of the bill to the Community Affairs Legislation
Committee for inquiry and report by 9 May 2010.[2]
On 16 March 2010, the reporting date was changed to 11 May 2010.[3]
Conduct of the inquiry
1.2
Notice of the inquiry was posted on the committee's website and
advertised in The Australian newspaper, calling for submissions by 9
April 2010. The committee also directly contacted a number of interested
parties, organisations and individuals to notify them of the inquiry and to
invite submissions. Twelve submissions were received as listed in Appendix 1.
1.3
The committee considered the bill at a public hearing in Canberra on
30 April 2010. Witnesses who appeared before the committee are listed
at Appendix 2. The submissions and Hansard transcript of evidence may be
accessed through the committee's website at: https://www.aph.gov.au/Senate/committee/clac_ctte/index.htm.
1.4
The committee thanks those who assisted with the inquiry.
Purpose of the bill
1.5
The stated purpose of the bill is to make consequential and transitional
amendments to Commonwealth legislation required to recognise and support the
implementation of the National Registration and Accreditation Scheme for Health
Professions (NRAS).[4]
It ensures definitions of health practitioners in the
Health Insurance Act 1973 (HIA) are
consistent with the NRAS and also
streamlines the processes to recognise doctors for Medicare purposes under the
HIA.[5]
Background to the bill
1.6
In 2004 the Council of Australian Governments (COAG) agreed to
commission a paper on health workforce issues,[6]
and in 2005 the Productivity Commission was asked to undertake this task. Among
its recommendations was the establishment of a national registration board for
health professionals as well as a national accreditation board for health
professional education and training.[7]
1.7
In response to the recommendations, on 14 July 2006 COAG agreed to
establish a national registration scheme for health professionals and a
national accreditation scheme for health education and training.[8]
In April 2007, COAG subsequently agreed to establish a single national scheme,
with one national agency covering both the registration and accreditation
functions. It was intended to commence in July 2008 and apply to nine health
professions.[9]
1.8
With implementation delayed by the federal election in 2007, at the
26 March 2008 COAG meeting an Intergovernmental Agreement (IGA) to
implement the NRAS (the scheme) by 1 July 2010 was signed. It contained
the following objectives:
- provide for the protection of the public by ensuring that only
practitioners who are suitably trained and qualified to practise in a competent
and ethical manner are registered;
- facilitate workforce mobility and reduce red tape for
practitioners;
- facilitate the provision of high-quality education and training
and rigorous and responsive assessment of overseas-trained practitioners;
- to have regard to the public interest in promoting access to
health services; and
- to have regard to the need to enable the continuous development
of a flexible, responsive and sustainable health workforce and enable
innovation in education and service delivery.[10]
Consultation
1.9
Extensive consultation has been undertaken with stakeholders regarding
the development of the scheme. During 2008 and 2009 the National Registration
and Accreditation Implementation Project (NRAIP) conducted a comprehensive
national consultation process.[11]
A number of changes were made to the original proposal as a result of
stakeholder feedback, and this was acknowledged during the committee's previous
inquiry (see below, from paragraph 1.14).
Implementation
1.10
The Australian Constitution provides that the power to regulate health
professions resides with the states. This prevents the Commonwealth from
enacting the NRAS through a single piece of Commonwealth legislation. Instead,
an 'applied laws' model is being used. The scheme is to be established through
state and territory laws, with a finalised National Law being enacted in
Queensland and then adopted by the other states and territories. Each state and
territory will repeal existing laws covering the functions to be performed by
the new system.[12]
This process is described below:
- Queensland is the lead state. The first tranche of legislation, The
Health Practitioner Regulation (Administrative Arrangements) National Law Act
2008 (Qld), known as Act A, established the structure and functions of the
NRAS including the new national agency, the Australian Health Practitioner
Regulation Agency (AHPRA);
- the second tranche of legislation, the Health Practitioner
Regulation National Law Act 2009 (Qld), known as bill B or the ‘National
Law', received Royal Assent on 3 November 2009. It details the substantive
provisions for registration and accreditation and replaces the first tranche of
legislation (Act A); and
- the third tranche of legislation involves states and territories
passing legislation to apply the National Law and to include
jurisdiction-specific consequential and transitional provisions. These are
referred to as bill C. The bill currently before the committee is the Commonwealth
equivalent of bill C.[13]
(a diagram showing the relationship of the bills is at Appendix 3)
1.11
Victoria and the Australian Capital Territory have passed legislation to
adopt the National Law, and consequential amendments laws have also been
passed. The adoption law has also been passed in New South Wales and the
Northern Territory. The adoption and consequential legislation is pending
introduction in South Australia and Western Australia and re-introduction in
Tasmania.[14]
1.12
The Commonwealth does not need to apply the Act for the National Law and
hence only consequential and transitional amendments to Commonwealth
legislation are required to recognise and support the NRAS.[15]
This includes modernising and aligning definitions so they are consistent with
the National Law and making amendments to the HIA to ensure that medical
practitioners continue to retain the same Medicare billing eligibility from 1
July 2010.[16]
Governance
1.13
The IGA notes that the NRAS will consist of a Ministerial Council
comprised of all health ministers, an independent Australian Health Workforce
Advisory Council, a national agency with an agency management committee,
national profession-specific boards, committees of the boards, a national
office to support the operations of the scheme and at least one local presence
in each state and territory.[17]
Scope
1.14
The new scheme will for the first time create a single national
registration and accreditation system for ten health professions: chiropractors;
dentists (including dental hygienists, dental prosthetists and dental
therapists); medical practitioners; nurses and midwives; optometrists;
osteopaths; pharmacists; physiotherapists; podiatrists; and psychologists.[18]
Other health professions will be added over time. On 8 May 2009, the Australian
Health Workforce Ministerial Council (AHWMC) advised that from 1 July 2012 a
further three professions will be regulated under NRAS: Aboriginal and Torres
Strait Islander health practice; Chinese medicine; and medical radiation
practice.[19]
On 27 August 2009, the AHWMC decided to include occupational therapists in the
scheme from the same date.[20]
Previous committee report
1.15
The NRAS is familiar ground for this committee. On 6 August 2009, the
Community Affairs Legislation Committee reported on the exposure draft of the
main piece of legislation implementing the NRAS and made three recommendations.
The background to the National Law has been briefly covered in this report, and
the committee refers readers who are unfamiliar with its history to the further
detail in the committee's earlier report.[21]
Treatment of the issues raised
during the previous inquiry
1.16
Before turning to the main provisions of the bill currently before it,
the committee will briefly report on the outcomes of the recommendations made
during its previous inquiry.
Independence of accreditation
processes
1.17
The main issue raised during the committee's previous inquiry was the
independence of accreditation processes under NRAS and the ability of the Ministerial
Council to give directions on accreditation standards. During the committee's
earlier inquiry, witnesses acknowledged that improvements had been made to the
legislation in this area as a result of consultation, but concerns remained.
The main problem was a perceived tension between public safety and workforce
planning issues which may mean that a directive regarding workforce planning
outcomes might compromise public safety and quality. The committee agreed that
safeguards would enhance confidence in the new system and recommended that the
AHWMC consider the amendments proposed in this area to clauses 10(3) and 10 (4)
of bill B (the National Law), particularly those made by the Australian Medical
Association.[22]
1.18
The committee notes that the National Law now contains the requirement
that the Ministerial Council must consider the potential effect of a direction
on the quality and safety of health care.[23]
1.19
It appears, however, that the AMA's concerns have not been assuaged by
this amendment. An AMA media release in August 2009 noted the requirement for ministers
to give consideration to quality and safety but argued that there is no
guarantee they would act on this consideration. In its opinion 'Ministers have
failed to guarantee that they would put quality and safety and other public
interest considerations ahead of workforce supply considerations'. The AMA
called for ministers to undertake a full public interest test before exercising
the power to issue a direction in relation to accreditation standards. The AMA
said that in the short term it would call on each state parliament to amend the
bill in accordance with its calls for a public interest test.[24]
As this issue was raised again as part of the current inquiry, it is further
discussed below from paragraph 1.57.
Directions by the Ministerial
Council
1.20
The committee further recommended that the reasons for the Ministerial
Council issuing a direction in relation to an accreditation standard be made
public.[25]
The committee notes that the legislation requires a copy of any direction by
the Ministerial Council to the National Agency or to a National Board to be
published on the relevant website and in the annual report.[26]
Composition of national boards
1.21
Responding to concerns about the composition of the National Boards, the
committee considered that the power given to the Ministerial Council to decide
the size and composition of the National Boards should not be overly
constrained by the formula in the exposure draft. Accordingly, the committee's
third recommendation was for the AHWMC to ensure that the NRAS contain
sufficient flexibility to ensure that the composition of National Boards
properly reflects the characteristics and needs of the individual professions.[27]
1.22
On 31 August 2009 the appointments to National
Boards were announced by the AHWMC. It reported that ministers took into
account the feedback received on the size and composition of the boards and
revisited their decision of 8 May 2009. It was decided that six of the boards
should be expanded to include eight practitioner members and four community
members each. This enables a practitioner member from each of the eight
jurisdictions to be members of these boards. The six boards to be expanded from
nine to twelve members are: the Dental Board of Australia, the Medical Board of
Australia, the Nursing and Midwifery Board of Australia, the Pharmacy Board of
Australia, the Physiotherapy Board of Australia and the Psychology Board of
Australia. In addition, ministers decided that the practitioner members
of the Dental Board of Australia would comprise five dentists, one dental
therapist, one dental hygienist and one dental prosthetist.[28]
Main provisions of the Health Practitioner Regulation (Consequential
Amendments) Bill 2010
Streamlining the recognition of
doctors for Medicare purposes
1.23
Schedule 1, Part 1, Item 11 repeals a number of sections in the HIA to
streamline recognition for Medicare purposes. There are a number of pathways
for specialist, consultant physician and general practitioner (GP) recognition
for Medicare purposes under the HIA. Currently these involve liaison by
Medicare Australia with a number of bodies, such as medical colleges, to
establish eligibility. NRAS provides a nationally consistent means of
identifying specialists and GPs. Under the NRAS, the Medical Board of Australia
(MBA)—the new national board responsible for registering medical
practitioners—in conjunction with the AHPRA will maintain a 'specialists
register' which will record all medical practitioners who are registered as a
specialist under the National Law. The minister will no longer be required to
make determinations in relation to a medical practitioner, which will simplify
the processes for specialist recognition for Medicare purposes. Therefore
sections 3D, 3DA, 3DB, 3DC and 3E of the HIA are redundant and are repealed by
the bill.[29]
1.24
There are three pathways in the HIA for a GP to be recognised. The
current Vocational Register of GPs will be removed, and the MBA is considering
the eligibility requirements for the GP speciality register.[30]
As a result of the new arrangements, sections 3EA, 3EB, 3F and 3G of the HIA
are redundant and are repealed by the bill.[31]
1.25
Schedule 1, Part 2, Items 26 to 29 deal with transitional provisions.
Issues raised during the current inquiry
1.26
Submissions to the inquiry showed strong support for the introduction of
national registration and accreditation for health professions. The proposed
changes to Commonwealth legislation to support the introduction of the NRAS in
the bill were also generally supported. However, some technical issues were
raised with the committee and are discussed below. Some issues with the
National Law were also raised with the committee. Although these do not fall
within the scope of the bill and therefore cannot be directly addressed by the
committee's current inquiry, these are also discussed briefly below from
paragraph 1.57.
Definitions
1.27
Schedule 1, Part 1, Items 2 to 10 amend subsection 3(1) of the HIA to make
a number of definitional changes to ensure definitions of health practitioners
in the HIA are consistent with the NRAS.[32]
Nursing
1.28
The Australian Nursing and Midwifery Council (ANMC) noted that the
proposed definition to be included in the Health Insurance Act 1973,
section 5 subsection 3(1)(a)(b), includes reference to registered nurse
(Division 1) and enrolled nurse (Division 2). The ANMC submitted that the
inclusion of 'Division 1' and 'Division 2' in the definition of registered and
enrolled nurse is not appropriate as it is not nationally accepted terminology
and will lead to confusion.[33]
1.29
This view was supported by the Australian Nursing Federation (ANF),
which argued that the terms Division 1 and Division 2 are only used in Victoria
and are therefore not common nor accepted terminology for the nursing
profession.[34]
1.30
The Department of Health and Ageing explained to the committee that one
of the purposes of bill C is to ensure that the definitions in the HIA are
consistent with the National Law:
The term ‘division’ [in the National Law] is meant to apply
to any health professional group that chooses to divide themselves for the
purposes of registration. I understand the terms ‘division 1’ and ‘division 2’
have a history [in nursing], but for the purposes of the national law it is the
definition of division that is picked up...[35]
1.31
Officials further explained that one definition for nurses in the
National Law (section 222) is for the purposes of registration only. On the
register of nurses and on their registration record there are registered nurses
(Division 1) and enrolled nurses (Division 2). Bill C uses the term ‘division’
as that is what is used in the National Law and the objective is to achieve
consistency for the purposes of access to Medicare. The other, and more
relevant definition, is the way in which health professionals refer to
themselves and the title by which they will be known. Professional titles are
protected in the National Law (section 114). The protected titles include
‘nurse’, ‘registered nurse’, ‘nurse practitioner’ and ‘enrolled nurse’, among
others.[36]
1.32
Importantly, under the National Law, there are penalties for any
individuals who misuse titles, and these penalties are referenced to the list
of protected titles.[37]
Committee view
1.33
The committee notes that in order to change the definition of nurses in
bill C the National Law would need to be amended in every jurisdiction. The
Ministerial Council would first need to consider any proposed amendments and,
if agreed, a legislative amendment would need to go through the Queensland
Parliament. If passed, the other states and territories would incorporate the
changes by applying the amendment as a law of those jurisdictions.[38]
While this process does not deter the committee from recommending necessary
amendments, the committee understands that the alignment of definitions with
the National Law is to ensure continued access to Medicare.
1.34
The committee was reassured by the department that there should be no
change to the way in which nurses describe themselves and was told that there
is no intention for this to occur. Nurses will be covered by protected titles,
as will other professional groups. The committee notes that there are four other
professions that have titles listed under section 222 of the National Law under
the heading ‘Divisions of public national register’.[39]
Nursing care
1.35
The ANF also expressed concern about the proposed removal of the word
'registered' from the definition of 'nursing care'. It explained that there is
a difference in the accountability level of a registered nurse and an enrolled
nurse:
Enrolled nurses work under the supervision and direction of
registered nurses. Registered nurses are educated and qualified to assess and
delegate nursing care to other registered or enrolled nurses. The removal of
registered from the definition of nursing care becomes problematic then as this
distinction in accountability level is lost.[40]
1.36
To address this issue, the ANF recommended that the wording for the
definition of 'nursing care' should become 'nursing care means care that is
given by a nurse or under the supervision of a registered nurse'.[41]
1.37
The Department of Health and Ageing explained that the term ‘registered’
now has several meanings:
If you are a ‘registered nurse’, you may be an enrolled nurse
or you may be a registered nurse. Because the term now has several meanings,
the suggestion was to amend the current way it is defined, again in order for
it to be consistent with the national law. There is no intention in that to
change who provides nursing care, how that is structured or any of the
arrangements in place around supervision. None of those things are intended. It
is an issue of consistency with what is in the national law.[42]
Committee view
1.38
The committee understands that a registered nurse may mean a nurse on
the register or the protected title of registered nurse. In the case of
'nursing care', it means a nurse on the register. The committee accepts that
the wording is to ensure consistency of the National Law and the HIA and that
there is no intention to change who provides nursing care or any arrangements
in place around supervision. The committee also notes the willingness of the
department to work with the ANF on this issue to explore suitable alternative
approaches.[43]
Other definitions
1.39
The Royal Australasian College of Physicians questioned the revised
definition of a 'consultant physician', finding it to be too open. It also
suggested clarification is needed regarding the terms 'specialist' and
'consultant physician'.[44]
The Australian Society of Plastic Surgeons (ASPS) submitted that the new
application of the word 'specialist' will result in a lack of clarity, which in
turn will impose an increased level of responsibility on the consumer to
distinguish the qualifications of the practitioner. It advocated that 'the only
title that should be used by a practitioner is the title for which they
trained'. The ASPS noted the work of the MBA to define the use of specialist
titles but stated that it remains concerned about a consumer's ability to
discern and determine whether the scope of practice undertaken by a
practitioner is within the accredited training of that practitioner.[45]
1.40
The committee notes the significant protections for the public in the
National Law against individuals who call themselves specialists but are not
qualified to do so. The MBA has recently stated:
The fields of practice included on the specialist register
closely mirror the fields of practice on the Australian Medical Council's
specialist list...
Some professional associations and Colleges submitted that
the Board should protect many commonly used titles for each profession.
Concerns were expressed that nonqualified persons may use the titles that are
not protected and therefore compromise public safety. The Board chose to
protect a single title for each field of practice and noted that the National
Law imposes significant protections for the public against individuals who hold
themselves out to be specialists and are not qualified to do so. This law
applies regardless of whether or not the specific title was protected. Fines of
up to $30,000 are applicable. In this way, the specialist register will be an
additional safeguard for the public.[46]
1.41
Professor John Horvath, Principal Medical Consultant, Department of
Health and Ageing, also explained this aspect to the committee:
...There are very harsh penalties. To claim to hold a type of
registration or endorsement under this law that the practitioner does not
hold—it is very clear. A specialist obstetrician can only call themselves a
specialist obstetrician if they are on the specialty register of the Medical
Board of Australia. That is very clearly defined in section 119 of the act, and
it goes on. In the case of an individual who is not a specialist obstetrician
and calls themselves a specialist obstetrician, the fine is $30,000.[47]
Committee view
1.42
The committee understands that professional titles will be protected and
that there is no intention to change the way health professionals refer to
themselves. It also notes the penalties for individuals misrepresenting
themselves.
1.43
However, given the issues raised in this section regarding definitions
and the importance of ensuring there is no confusion in the community, the
committee believes that it would be helpful for AHPRA to provide information on
protected titles and roles, including for nurses and specialists, on its
website.
Recommendation 1
1.44
To ensure clarity around definitions for the community, the
committee recommends that the Australian Health Practitioner Regulation Agency (AHPRA)
place information on protected titles and roles, including for nurses and
specialists, on its website.
Additional requirements for
consultant and specialist medical practitioners
1.45
Items 2(a) and 9(a) in Schedule 1 require consultant physicians and
specialists to be a medical practitioner who is registered in a speciality by
the MBA, where the speciality is prescribed by regulation. The Australian
Medical Association (AMA) noted that this is broadly similar to the existing
arrangements. However, the AMA pointed out that items 2(a)(iii) and 9(a)(iii)
introduce new provisions that would allow the government to impose additional
requirements on consultant physicians and specialists. It added that no
clear explanation is provided for this open-ended power. The AMA observed that
the government is not seeking the same provisions and regulatory powers for
general practitioners or any other health profession for Medicare eligibility
and recommended that subitems 2(a)(iii) and 9(a)(iii) be removed.[48]
1.46
The Royal Australian College of General Practitioners (RACGP) supported
the AMA position and stated that it does not believe the subsections are
necessary 'given that consultation physicians and specialists would already be
required to be registered and on the specialist register to attract Medicare
benefits'.[49]
1.47
The Department of Health and Ageing explained that the intention of bill
C is to take the current arrangements and describe them for the purposes of the
new National Law. Regarding this particular issue, officials explained the
intention:
At the moment under Medicare if you are a specialist there is
a determination as such, and if you are a consultant physician there is a
determination as such. One of the opportunities for bill C was to streamline
that arrangement so that you did not have to have determinations, and there are
a small group of professionals who are both consultant physicians and
specialists. The clause that is there was meant to pick up that group so that
it did not have to go through dual processes. It was a transition from what
currently happens under a banner of, ‘We want to make it easier in the future,
so we need to pick it up, for drafting purposes, in the new bill.’[50]
1.48
Departmental officials reported that they are investigating whether
Medicare still requires a mechanism to distinguish this group and undertook to
advise the outcome. The committee was encouraged to hear the willingness of the
department to work with the AMA to find a suitable outcome for this drafting
issue.[51]
Ability for regulations to
prescribe classes of consultant physicians, general practitioners and
specialists
1.49
Subitems 2(b), 3(b) and 9(b) are intended to cover persons who are not
on the general practice or specialist registers but who provide services
related to a speciality or general practice services, in accordance with their
registration and for which Medicare benefits are payable.[52]
1.50
The AMA confirmed the need for subitems 2(b), 3(b) and 9(b) where the
regulations can prescribe classes of consultant physicians, general
practitioners and specialists who are not on the MBA specialist register. However,
it noted the difference in wording between subitems 2(b), 3(b) and 9(b) and
recommended that subitems 2(b) and 9(b) be worded as per subitem 3(b).[53]
1.51
Again, the committee notes the general willingness of the department to
work with the AMA to resolve any drafting issues.
Restriction of Medicare benefits
for services beyond the scope of registration
1.52
The AMA recommended that the bill be amended to extend the application
of sections 19C, 19CB and 19DA to chiropractors, dental practitioners, nurses,
optometrists, osteopaths, physiotherapists, podiatrists and psychologists.[54]
These sections broadly provide for offences where a medical practitioner
provides an unauthorised service or was not registered when a service was
provided and a Medicare benefit was paid for the service. The AMA argued:
...with the introduction of national registration for ten
health professions and the extension of Medicare benefit arrangements to a
wider range of health professions, it is appropriate that the same statutory
obligations and offences that apply to the medical profession in respect of
Medicare benefits should apply to all nationally registered health
professionals whose services attract Medicate benefits.[55]
1.53
The RACGP supported this position and argued:
In a national registration scheme, it is appropriate for the
same statutory obligations and offences to apply to all health professions
covered by the legislation.[56]
1.54
Departmental officials acknowledged that the restrictions are currently
applied only to medical practitioners and agreed this needs to change for the
new system to reflect the fact that the range of health professionals accessing
Medicare has changed.[57]
The committee notes that the department is working on resolving this drafting
issue.[58]
Issues raised with the committee regarding NRAS or the National Law
MBA registration fees
1.55
The AMA told the committee that registration fees for the medical
profession are 'likely to be increased by nearly 85 per cent of the current
weighted national average registration fee'.[59]
The Department of Health and Ageing responded that this issue is not settled:
...The Australian Health Practitioner Regulation Agency (AHPRA)
has not published the fee schedule for the practitioners under the National
Registration and Accreditation Scheme for health professions. AHPRA is working
with the ten National Boards considering fees for applications and annual
renewals. Fees will be announced in June once final information about assets
and liabilities transferring to the national scheme is available.[60]
Committee view
1.56
The committee notes that fees are to be set by the 10 National Boards
and AHPRA; and that this issue is not addressed by the bill before the
committee.
Community representatives on boards
1.57
Each of the 10 national boards has at least
two community members appointed.[61]
The Consumers Health Forum (CHF) emphasised that these are community members,
not consumer members.[62]
1.1
The CHF told the committee that the opportunity for consumers to
contribute to the scheme through community members on the boards would be a
positive step.[63]
Ms Carol Bennett, Executive Director, CHF, indicated to the committee that it
will be important for the community members to have the opportunity to engage
with each other and to obtain broader community and consumer feedback. However,
she pointed out that currently they are bound by confidentiality provisions.
She stressed the value of having a mechanism for them to speak with and support
each other and to draw on broader networks and knowledge. To this end Ms
Bennett advised the committee that, on the advice of the CEO of AHPRA, the CHF
wrote to the Chair of the National Boards' Chairs Group to seek the capacity to
bring the community representatives on national boards together to optimise
their representation.[64]
1.2
The Department of Health and Ageing advised that board members are
subject to a code of conduct and the National Law provides for a duty of
confidentiality regarding protected information.[65]
Committee view
1.58
The committee understands the requirement to protect certain information
but is concerned to ensure this does not hinder the ability of community
members to communicate with each other and the general public, nor their
ability to reach out to relevant organisations to tap into their knowledge and
canvass their views.
1.59
The committee encourages AHPRA, through the Chair of the National
Boards' Chair's Group, to facilitate the CHF's request.
Ministerial reserve powers
1.60
Concerns about the potential for political interference in decisions
were once more raised with the committee.[66]
As noted previously in paragraphs 1.16-1.18, the AMA again raised its concerns about
the reserve powers of health ministers in relation to accreditation standards
(section 11d of the National Law). The AMA acknowledged the change made to the
National Law where health ministers will now first have to consider the
potential effect on the quality and safety of health care before issuing
directions in relation to new or amended accreditation standards for medical
education and training. However, the AMA believes this change is not sufficient
to protect the public interest in terms of accreditation standards for medical
education and training. It suggested that, as the Federal Minister for Health
and Ageing is a member of the Ministerial Council, Federal Parliament could
require the minister to apply a public interest test when contributing to a
decision of the Ministerial Council. The AMA recommended the inclusion of the
following provision in the National Law:
The Federal Minister for Health and Ageing, in exercising
functions as a member of the Australian Health Workforce Ministerial Council in
relation to the giving of directions to National Boards about proposed
accreditation standards or proposed amendments of accreditation standards under
Part 2 section 11 (3)(d) and (4) of the Schedule to the Health Practitioner
Regulation National Law Act 2009 (QLD), must have regard to the public
interest.[67]
1.61
While noting some concern about the ministerial reserve powers, the
RACGP acknowledged that there may be circumstances where such decisions are
necessary in the interests of the community. It noted that it is therefore
important that any such process is public and transparent.[68]
The Australian Nursing Federation also supported a public and transparent
process.[69]
1.62
The Consumers Health Forum supported the reserve powers to intervene
should a situation require it, particularly as the Public Interest Assessor
role was removed from Bill B.[70]
It argued that the reserve power would provide:
...an additional level of decision-making to safeguard
consumers from any decisions that may impact on patient health and safety.[71]
Committee view
1.63
The committee notes that public interest underpins the establishment of
the NRAS. Extensive consultation has been undertaken over a number of years and
the initial draft legislation was substantially changed as a result of concerns
raised about ministerial powers. When COAG agreed to establish a national
scheme, the initial proposal was that all the accreditation standards were to
be approved by the Ministerial Council, with only a more limited recommending
role for the National Boards. As a result of concerns raised by health
professional groups, the approval power was transferred to the National Boards
and the Ministerial Council was given a more limited oversight role to
intervene when specific public interest issues arise.
1.64
The committee notes that ministers do not have control over
accreditation processes. The AHWMC agreed that the accreditation function will
be independent of governments. Accreditation standards will be developed by the
independent accrediting body or the accreditation committee of the board, where
an external body has not been assigned the function. Accreditation of
educational programs is a specialised process that is undertaken by experts in
the fields. The accrediting body or committee will recommend to the board, in a
transparent manner, the courses and training programs it has accredited and
that it considers to have met the requirements for registration. The final
decision on whether the accreditation standards, courses and training programs
are approved for the purposes of registration is the responsibility of the National
Board.[72]
1.65
Ministerial Council control over the setting of accreditation standards
is limited to the power to give direction in relation to a new or amended
accreditation standard. Furthermore, the circumstances in which directions on
standards can be issued are themselves limited. Such a direction can only be
issued where the Ministerial Council considers that the new or amended
accreditation standard will have a substantive and negative effect on the
recruitment and supply of health practitioners.[73]
1.66
Ministers, when using this power, will first be required to consider the
potential effect on quality and safety of health care. In addition, to ensure
transparency, any direction and the reasons for the direction must be
published.[74]
1.67
The committee notes that the Australian Health Ministers' Advisory
Council concluded that this mechanism 'delivers the greatest net benefit to the
community' as:
...in general it does not involve an increase in the regulatory
role of governments. The independent role of professional bodies in the accreditation
process is maintained as the final decision on whether the accreditation
standards are approved for the purposes of registration remains the
responsibility of the national board for each profession. The national boards
are best placed to approve accreditation standards that will apply to their
profession. The limited scope of the reserve power of the Ministerial Council
to issue directions on accreditation standards allows for an appropriate level
of regulatory oversight in relation to matters that are rightly the concern of
governments including the quality and safety of health care.[75]
1.68
As the public interest underpins this entire piece of legislation and is
what guides ministers in their decision making, the committee believes it is
unnecessary to include a provision in the legislation to apply a specific public
interest test on this aspect.
Mandatory reporting exemptions
1.69
The National Law requires practitioners, employers and education
providers to report 'notifiable conduct', as defined in section 140, to AHPRA.
A practitioner is exempted from reporting in certain circumstances.[76]
The AMA raised the need to exempt from the mandatory reporting requirements
those doctors who are in a therapeutic relationship with other doctors. While
it recognised that the Federal Parliament is limited in its ability to
influence amendments to the National Law on this issue, the AMA recommended
that the committee ask the Federal Minister for Health and Ageing to monitor
the effect of the mandatory reporting provisions and report to the Federal
Parliament annually.[77]
1.70
The RACGP also raised concerns about the mandatory reporting
requirements, believing that they will have the opposite of the intended effect
and recommended that they be reviewed or removed:
...The legislation, as currently written, will cause medical
and health practitioners to hide their impairments and professional issues from
their colleagues, driving the issues underground and increasing, rather than
decreasing, the risks to patients, the public, the practitioners themselves,
and their colleagues.[78]
1.71
The committee notes the MBA has looked at this issue and reported:
The Board is aware of the professions' concerns about the new
mandatory reporting obligations required under the National Law. The Board has
approved draft guidelines about mandatory reporting that provide guidance and
explain more fully the obligations of health professionals. The Board will be
consulting on the content of these guidelines during March and encourages
everyone with an interest in this important issue to make a submission to the
Board.[79]
1.72
The AHWMC believes that mandatory reporting of health practitioners will
deliver a greater level of protection for the public:
Ministers agreed that reportable conduct will include conduct
that places the public at substantial risk of harm either through a physical or
mental impairment affecting practice or a departure from accepted professional
standards. Practitioners who are practising while under the influence of drugs
or alcohol, or have engaged in sexual misconduct during practice must also be
reported.[80]
1.73
Professor John Horvath, Principal Medical Consultant, Department of
Health and Ageing, spoke to the committee on this aspect and advised:
...I am aware that there was significant concern expressed
throughout the professions about this. However, due to a significant number of
high-profile cases that we are all aware of that perhaps could have surfaced a
lot earlier had there been a mandatory reporting, a number of states already had
mandatory reporting in their legislation and it was very clear that state
health ministers were not of a mind to dilute their public protection by
removing that. There was a view of all ministers that this was an important
public protection.[81]
1.3
Professor Horvath advised that there are conditions where it is
recognised that mandatory reporting would not be appropriate and these have
been taken into account either in the legislation or by regulation.[82]
The Department of Health and Ageing advised that during April 2010 all National
Boards undertook consultation on draft codes and guidelines for mandatory
reporting and the final codes and guidelines will assist practitioners,
employers and education providers to work with these requirements.[83]
Committee view
1.74
The committee accepts that the need for appropriate exemptions to
mandatory reporting has been taken into consideration.
Improved feedback to organisations
1.75
The committee notes with disappointment a concern raised by several
organisations regarding a lack of appropriate feedback following the
consultations to establish NRAS. These organisations were engaged in
consultation but, if an issue which was important to them was not ultimately
included in the legislation, there appears to have been a lack of effective feedback
and discussion about why that occurred. The committee notes that the
consultation work was not undertaken by the department but by the
implementation project team. It further notes that the issue has arisen
throughout the process and may ultimately affect an organisation’s trust in how
the system will work.
1.76
However, the committee notes that the department appears willing to
further engage with organisations with residual issues and encourages this to
occur.[84]
The committee also encourages the application of lessons learned during the
establishment of NRAS to future consultation processes.
Conclusion
1.77
The committee recognises the time, effort and constructive engagement required
by all stakeholders to establish the NRAS. The benefits of the scheme are clear:
it will end duplication of effort, inconsistent standards and the red tape
caused by multiple systems. It will improve mobility for the health workforce
and contribute to improving the safety of the health system.
1.78
The committee is pleased to support this bill as part of the process of
implementing the NRAS.
Recommendation 2
1.79
The committee recommends that the bill be passed.
Senator Claire Moore
Chair
May 2010
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