NATIONAL HEALTH AND HOSPITALS NETWORK BILL 2010


NATIONAL HEALTH AND HOSPITALS NETWORK BILL 2010

The inquiry

Previous inquiry

1.1        On 24 June 2010 the Senate referred the National Health and Hospitals Network Bill 2010 to the Community Affairs Legislation Committee for inquiry and report by 24 August 2010.

1.2        The committee received thirteen submissions. No public hearings were held.

1.3        On 24 August 2010, the committee tabled a brief report concluding:

On 19 July 2010, the Governor-General prorogued the 42nd Parliament and dissolved the House of Representatives. After due consideration, the committee has resolved not to continue its inquiry into the bill. If the bill is reintroduced in the new parliament, the Senate may again refer it to the committee for inquiry.[1]

1.4        The evidence received by the committee was tabled in the Senate at that time.

Current inquiry

1.5        On 30 September 2010 the Senate re-referred the National Health and Hospitals Network Bill 2010 for inquiry and report by 18 November 2010.

1.6        The inquiry was advertised in The Australian and through the Internet. The committee invited submissions by 20 October 2010. The committee resolved to accept the submissions received from the first inquiry and wrote to those organisations and individuals that had made submissions advising that they need only re-submit should they wish to amend their previous submission.

1.7        The committee received 22 submissions in total (including those received during the 42nd Parliament). A list of individuals and organisations that made public submissions to the inquiry together with other information authorised for publication is at Appendix 1.

1.8        The committee conducted one public hearing in Canberra on Tuesday 9 November 2010. Appendix 2 lists the names and organisations of those who appeared at the hearing. Submissions, additional information received including answers to questions on notice and the Hansard transcript of evidence may be accessible through the committee's website at https://www.aph.gov.au/Senate/committee/clac_ctte/index.htm

Acknowledgement

1.9        The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Related Inquiries

1.10      The committee notes that the Senate Finance and Public Administration References Committee reported to the Senate on 23 June 2010 on the overall Council of Australian Governments' reforms relating to health and hospitals.

1.11      Further, the Senate Economics Legislation Committee is inquiring into the Federal Financial Relations Amendment (National Health and Hospitals Network) Bill 2010. That inquiry is due to report on 31 January 2011.

Background

1.12      On 19 and 20 April 2010, the Council of Australian Governments (COAG)[2] reached 'an historic agreement on health and hospitals reform – the establishment of a National Health and Hospitals Network'. An important or 'core' component of the reforms is a series of measures that will encourage 'improved performance across the health and hospital system':

A core element of the National Health and Hospitals Network will be enhanced national standards and transparent reporting that are, for the first time, nationally consistent and locally relevant.[3]

1.13      These measures will include: a new National Performance Authority, which will monitor and report on the performance of Local Hospital Networks, individual hospitals and Medicare Locals; and the Independent Hospital Pricing Authority, which will be charged with setting the 'efficient price of public hospital services'.[4]

1.14      Along with the two measures noted above, COAG agreed to new clinical safety and quality standards to be developed by a permanent Australian Commission on Safety and Quality in Health Care.[5]  This bill seeks to legislate this agreement.

Purpose of the bill

1.15      The stated purpose of the bill is to implement the National Health and Hospitals Network, in so far as the network involves the establishment of the Australian Commission on Safety and Quality in Health Care (the Commission) by outlining:

(a)        the establishment, functions and powers of the Commission;

(b)        the compositions, appointment, remuneration, procedures and other governance arrangements of the Commission's Board; 

(c)         the establishment, role, appointment, remuneration and other conditions for the role of Chief Executive Officer of the Commission;

(d)        staffing of the Commission;

(e)        the system of committees underpinning the Commission's Board; and

(f)         core government arrangements.

1.16      The Bill provides for the establishment of the Commission as a permanent and independent national safety and quality body. The legislation also provides an expanded role for the commission in setting national clinical standards and strengthened clinical governance. The intent is that arrangements under this expanded role will be further developed in consultation with the states and territories.

1.17      The Department of Health and Ageing explained that:

Establishing the Commission as a permanent body will ensure that it has the appropriate governance and financial framework to progress its expanded work program, and provide independent advice on safety and quality matters. The governance arrangements for the Commission reflect the shared funding and policy interests of the Commonwealth and states and territories.[6]

1.18      It is intended that the Act will be amended at a later stage to include provisions to establish the Independent Hospital Pricing Authority and the National Performance Authority. Together these three bodies form the foundation of the national healthcare performance and accountability reforms.

The Commission

1.19      The Australian Commission on Safety and Quality in Health Care was established by the Australian, state and territory governments and commenced on 1 January 2006. The Commission is presently operating under the auspices of the Department of Health and Ageing. The current operating arrangements are due to expire on 30 June 2011.

1.20      The role of the current Commission is to:

  • lead and coordinate improvements in safety and quality in health care in Australia by identifying issues and policy directions, and recommending priorities for action
  • disseminate knowledge and advocate for safety and quality
  • report publicly on the state of safety and quality including performance against national standards
  • recommend national data sets for safety and quality, working within current multilateral governmental arrangements for data development, standards, collection and reporting
  • provide strategic advice to Health Ministers on best practice thinking to drive quality improvement, including implementation strategies, and
  • recommend nationally agreed standards for safety and quality improvement.[7]

Main provisions of the Bill

Establishment, functions and powers

1.21      Part 2 of the Bill provides for the Commission's establishment, functions and powers.

1.22      Clause 8 of the Bill establishes the Commission as an independent body corporate subject to the Commonwealth Authorities and Companies Act 1997.

1.23      Clause 9 of the Bill sets out the Commission's functions, which include:

  • promoting, supporting and encouraging the implementation of initiatives relating to health care safety and quality;
  • collecting, analysing and disseminating information relating to safety and quality;
  • formulating guidelines, standards and indicators;
  • advising and reporting on quality and safety initiatives;
  • monitoring the implementation and impacts of guidelines and standards;
  • formulating model accreditation schemes; and
  • promoting, encouraging and conducting relevant training and research.

1.24      Subsections (3) to (7) state that standards, guidelines, indicators, model accreditation schemes and written instruments given by the Minister, are not legislative instruments.

1.25      Clause 10 stipulates that the Commission must consult with relevant stakeholders in the development of any guideline, standard or indicator.

The Board of the Commission

1.26      Part 3 of the Bill provides for the membership, appointment, procedures and role of the Board.

1.27      The role of the Board is to 'ensure the proper and efficient performance of the Commission's functions.'

1.28      Board members are appointed by the Minister with reference to a range of areas of expertise of which each Board member must have substantial knowledge or experience and significant standing in at least one area. The Minister must ensure that the Board as a whole holds a balance of skills, experience and knowledge across the following areas: public administration relating to health care; provision of health care services; management of public or private hospitals; financial management; corporate governance; representation of consumer interests; safety and quality; and the law.

1.29      A minimum of seven and a maximum of nine board members may be appointed for a period of no more than five years.

CEO, staff and consultants

1.30      Part 4 of the Bill provides for the appointment of the CEO of the Commission and sets out the conditions of employment and role of the CEO. This section further provides for the appointment of staff and engagement of persons assisting the Commission and the engagement of consultants.

Reporting obligations of the commission

1.31      The reporting obligations of the commission are set out in part 6 of the Bill. These include: an annual report, and an annual work plan, which must be provided to the Minister and, in turn, each participating state/territory health minister. In addition, the Minister may request by written notice information and/or a report on matters relating to the performance of the Commission's functions.

Compliance with standards

1.32      Clause 57 under Part 7 of the Bill provides that compliance with standards and guidelines developed under Part 2 of the Bill is voluntary. However, compliance may be made a term or condition of a grant, contract or other legally enforceable agreement.

Protection of Patient Confidentiality

1.33      Clause 58, Part 7, provides for the protection of patient confidentiality.

Support for the bill

1.34      The majority of submissions explicitly stated their support for the intent of the bill.[8] Reflecting this broad support, the National Primary Health Care Partnership submitted:

We believe that establishing the Commission as a permanent and independent authority with clear responsibility for developing, promoting and monitoring the impact of health care standards, guidelines and indicators will help to ensure an enhanced and continued focus on driving improvement in health care safety and quality.[9]

1.35      Representatives of the mental health care sector were also supportive:

The MHCA supports the establishment of the ACSQHC and values the work it that it has undertaken in the areas of patient safety and improving the quality of health care services.[10]

1.36      From a consumer perspective enhanced performance and accountability measures were welcomed. The Consumers Health Forum of Australia (CHF) explained that:

Access to safe, high quality health care services is a priority for health consumers. The Commission’s work has the potential to enhance safety and quality in the health care system.[11]

1.37      Similarly, the Australian Nursing Federation noted its support of the new quality assurance and performance framework:

The provision under this Bill for a new Performance and Accountability Framework which includes standards developed by the Commission is supported by the ANF.[12]

1.38      As the operators of both private and public hospitals, the members of Catholic Health Australia offered strong support for the establishment of the Commission. Catholic Health Australia submitted:

CHA’s hospital CEOs report that the work of the Commission to date has been useful, particularly in the areas of clinical handover and communication, infection prevention in healthcare and medication safety.[13]

Issues

1.39      Notwithstanding their commitment to a permanent safety and quality commission, witnesses identified a number of issues with the legislation.

Title of the bill

1.40      Submitters noted that the title of the bill is not descriptive of what the bill actually aims to do, which is to establish the Commission as a statutory body. Rather, the title, National Health and Hospitals Network Bill 2010, suggests the bill proposes to provide the legislative underpinnings for the NHHN in its entirety.

1.41      The MHCA suggested that the bill 'be given' a 'less confusing title' in order to:

help to distinguish its content from that relating to the establishment of other initiatives proposed to support the Health and Hospitals Network Agreement'.[14]

1.42      Similarly, the Australian Osteopathic Association stated:

The Bill simply picks up on the COAG Agreement of last April. Thus it belies its title. It provides no detail on the way the NHHN will operate, and in what statutory relationship with existing institutions.[15]

1.43      As noted earlier, the intention is to provide for the establishment of the National Performance Authority and the Independent Hospital Pricing Authority by amendment to the Act at a later stage.[16] For this reason, the title of the Bill must be sufficiently broad. Notwithstanding this, the committee agrees that the title is somewhat confusing.

Timing of the legislation

1.44      The plan, as discussed above, is to establish two other agencies central to the NHHN by amendment, at a later stage, to the proposed National Health and Hospital Network Act 2010. These agencies are the National Performance Authority and the Independent Hospital Pricing Authority.

1.45      A number of witnesses argued that the legislation to establish the other two bodies should be considered at the same time as the legislation to establish the Commission. The Australian Medical Association (AMA) submitted:

[I]t appears there will be important synergies between the three bodies and this should be reflected in the legislation.

We believe legislation for all three bodies needs to:

  • Clarify the regulatory interaction between them;
  • Provide clarity on their roles and responsibilities; and
  • Ensure appropriate legislative links and references to various activities and recommendations made by these bodies.[17]

1.46      Dr Watson from the Royal Australian and New Zealand College of Psychiatrists informed the committee that the College is supportive of the work of the Commission and of making the Commission a permanent body. However, he emphasised the importance of a 'mesh' between the three bodies and agreed that the legislation for all three should be considered at the same time:

[H]aving those key bills aligned would seem to give more benefit than having them apart. ...as long as the good work of the commission is able to continue and we are not talking about years of delay, our preference would be that those things be aligned and we try to reduce the chance of there being cracks in the system or parts that are missed across those bills. [18]

1.47      Ms Bennett, Executive Director of Consumers Health Forum of Australia, concurred:

We have noted the argument in several submissions that legislation to establish the commission should be considered in conjunction with consideration of legislation to establish the National Performance Authority and the Independent Hospital Pricing Authority. Given the likely interrelationships between these three bodies, that is an approach that makes sense to us.[19]

1.48      The Aboriginal Medical Services Alliance NT (AMSANT) emphasised the risks of staging the introduction of the legislation:

It is difficult to reach an unequivocal position on the National Health and Hospitals Network Bill 2010 as two related legislative measures, namely the establishment of the Independent Hospital Pricing Authority and the National Performance Authority. At this point, we want this to be noted, and for the Committee to note that the putative legislation may have unintended consequences with respect to the current Bill under consideration.[20]

1.49      Mr Martin Laverty, CEO of Catholic Health Australia, agreed with the view that the legislation for the three bodies should, ideally, have been scrutinised concurrently. However, he did not accept the proposal that the present bill be delayed:

It would have been our preference to see within this bill the different bodies identified, but also through the Council of Australian Governments meeting of early this year to deal with the different quality of reporting frameworks that each of the states and territories are going to continue to operate. We are pragmatic and we recognise that to delay this bill any further is causing a loss of momentum for the commission as it currently works. For that reason alone we say that the commission is a valuable contribution to promoting continued improvement in quality and safety and we see no reason for further delay at this point.[21]

1.50      Mr Laverty argued, however, that future attention must be directed to harmonising the various compliance requirements placed on healthcare providers:

[I]f the issue of compliance with standards is to be promoted, a necessary trade-off of that is going to need to be bringing national harmonisation. A national group like St Vincent’s Health Australia or the St John of God Health Care group that operate public and private hospitals across state boundaries continue to be subjected to different reporting regimes, at cost, in each of the jurisdictions within which they work. That is not efficient healthcare.[22]

1.51      Ms Murnane, Deputy Secretary from the Department of Health and Ageing, explained that the introduction of the bill to establish the Commission was prioritised as the current arrangements that establish the Commission as a temporary body are due to expire at 30 June 2011:

The reason that this bill has been introduced before the other bills are ready is that the commission is already an ongoing operation in some ways. Its governance must be changed and its overall status within government must be changed because there is no possibility of the current arrangements being extended beyond 30 June next year.[23]

1.52      Ms Murnane further explained that the early introduction of the bill would allow sufficient time for the Commission's transition to corporate autonomy:

The bill to establish the commission is being introduced now to ensure that a board and a CEO can be appointed and business and operational arrangements, including staffing, can be put in place in time for the commission to smoothly transition from its current arrangements to an independent authority by 1 July next year. This will allow the governance and operational structures to be put in place without compromising its important work in improving safety and quality. It is anticipated that these arrangements will take six months to put in place.[24]

1.53      The committee agrees that it would have been preferable for the legislation to establish the three bodies under the NHHN Performance and Accountability Framework to be considered together. At the same time, the committee considers that it is important the Commission is able to continue operating with minimal disruption. For this reason, it is essential that a sufficient time-frame is allowed for the transition of the Commission to an independent body. On balance, therefore, the committee does not support further delay of the bill.

1.54      However, the committee notes that it will be essential that careful consideration is given to the issues raised by witnesses when the legislation to establish the National Performance Authority and the Independent Hospital Pricing Authority are introduced: that is, that the roles and responsibilities of the three agencies are clearly articulated and the regulatory interaction between the three agencies is clarified.

1.55      The committee further notes the 'lost opportunity' raised by Catholic Health Australia with respect to harmonising the various healthcare regulatory and reporting regimes across the country. The committee concurs with Catholic Health Australia's argument that this work should be prioritised in the near future. Within this context, the committee notes the comments of AMSANT:

[Aboriginal Community Controlled Health Services] already operate in a complex and highly regulated environment: national standards set by the Safety and Quality Commission should not add to this complexity.[25]

Stakeholder consultation

1.56      The bill provides for consultation on the development of guidelines, standards and indicators (Clause 10(2)) and consultation on development of a national model accreditation scheme (Clause 11(2)). A number of submitters welcomed the emphasis given to consultation in the bill. For example, the Dieticians Association of Australia (DAA) stated:

The DAA agrees with the Bill's emphasis on the role of consultation in the process of formulating standards, guidelines and indicators.[26]

1.57      Clause 10(2) requires that the Commission consult with: clinicians; bodies known as lead clinician groups; heads of health departments of participating states and territories; any other persons or bodies who, in the Commission's opinion are stakeholders in relation to the particular standard, guideline or indicator; and the public.

Meaning of 'clinician'

1.58      A number of witnesses expressed concern about the lack of definition of the term 'clinician', which is contained in clause 10(2)(a). It was argued that the bill, as it stands, leaves open the possibility of a narrow interpretation of 'clinician', which could exclude nursing and allied health professionals. 

1.59      The DAA submitted that the term 'clinician' should be seen to include allied health professionals.[27] Similarly, the National Primary Health Care Partnership (NPHCP) stated:

While no definition of the term ‘clinician’ is provided in the context of the Bill the NPHCP wishes to emphasise that it is important that this term is recognised as applying to nursing and allied health professionals as well as medical doctors and that these professionals are consulted in the development of standards, guidelines and indicators relevant to their scope of practice.[28]

1.60      A number of other witnesses shared these concerns. Allied Health Professionals Australia and the Australian Psychological Society stated:

Unfortunately current practice is that allied health clinicians and their relevant representative organisations are often not invited to comment or participate in discussions regarding safety and quality.[29]

1.61      The Department informed the committee that the term 'clinician':

was not defined on the basis that it would be useful in terms of future-proofing the legislation not to have an inclusive and an exhaustive definition. That allows the legislation to go on in perpetuity.[30]

1.62      Mr Broadhead from the Department commented:

I strongly believe that the term ‘clinician’ in this legislation means somebody who deals in a clinical way with a patient or another person, and therefore I think that, if the commission were to confine itself to talking only to doctors, it would find itself not honouring the spirit of the legislation...I think that the notion that clinicians are only doctors is something that has not had currency for quite some time.[31]

1.63      The Department further advised the committee that the Commission has placed considerable emphasis on broad stakeholder consultation in the development of key projects. In particular, consultation with respect to the development of standards has been framed within a seven-stage methodology that includes different mechanisms through which stakeholder groups contribute and draft standards are tested.[32]

1.64      This is a practice that is expected to continue. The Department summarised:

The Commission has had a strong focus on stakeholder engagement throughout its work to date and is committed to consulting with a diverse range of stakeholders and consumers on the development of standards, guidelines and indicators to ensure their relevance, effectiveness and ultimately, the appropriateness of services being delivered in a particular healthcare setting.[33]

1.65      An 'ordinary use' definition of 'clinician' was offered by the  Department:

For the purposes of the Bill an ‘ordinary use’ of the term ‘clinician’ may refer to: an individual whose training and qualification is principally related to the provision of health care services and includes, but is not limited to, doctors, nurses, allied and other health practitioners.[34]

1.66      However, the Department did not offer legal advice or precedent as evidence that the term would have such a broad meaning.

1.67      The Explanatory Memorandum to the Bill and the Second Reading Speech state that consultation with 'relevant parties' is an important focus in the development of standards, indicators and model accreditation schemes. For example, the Explanatory Memorandum states:

It is intended that the process of consultation would ordinarily include providing an opportunity for all relevant parties to provide comments, a reasonable timeframe within which to provide those comments and that those comments would be taken into consideration by the consulting party.[35]  

1.68      While the intention to consult is expressed in these supporting documents, the view that nursing and allied health professionals are stakeholders or relevant parties is not made explicit.

1.69      The committee is concerned that there is not a consistent understanding of the usual meaning of the term 'clinician'. Health professionals and researchers have a range of views about who 'clinicians' might include, but those contacted by the committee thought the term would often be understood to mean doctors rather than health professionals generally. This is confirmed by definitions used in some reference dictionaries. The 1987 Macquarie Dictionary defines a clinician as 'a physician who studies diseases at the bedside'. The Chambers Dictionary online says 'a doctor who works directly with patients, in a clinic, etc, as opposed to conducting experimental or theoretical work.' Likewise, the Oxford English Dictionary's definition of the term is 'a doctor who has charge of, or who works in, a clinic', while the Australian Oxford Online offers a similar meaning: 'a doctor having direct contact with patients rather than being involved with theoretical or laboratory studies'.

1.70      The intent of the bill, as described by the Department, is that allied health and nursing professionals would be included. The practice of the Commission to-date also points to this intent. The committee is concerned, however, that this is not sufficiently captured in the bill and its supporting documentation. This appears to be causing concern amongst stakeholders, who may be influenced by the widespread understanding (documented above) that 'clinicians' is a term used to refer specifically to doctors.

1.71      The committee considers this can be addressed by:

  • providing a definition of the term 'clinician' in clause 5 of the bill, OR
  • revising the Explanatory Memorandum to include commentary on the term 'clinician', including the definition of the term offered by the Department in its answer to a question on notice.

1.72      The committee does not believe that either of these options are designed to be exhaustive, and therefore they would not impair the 'future-proofing' of the legislation.

Recommendation 1

1.73      The committee recommends that one of the two options above be adopted in order to ensure that the term 'clinician' explicitly includes all health care professionals in clinical practice.

Consumers and carers

1.74      The Consumers Health Forum (CHF) of Australia and the Australian Institute for Primary Care argued that consumers and carers should be explicitly referred to in clause 10. CHF submitted:

[A]s consumers will be the key beneficiaries of effective standards, guidelines or indicators, health consumers should be identified as a group that must be consulted in the formulation of standards, guidelines or indicators.[36]

1.75      Similarly, the Royal Australian and New Zealand College of Psychiatrists stated:

The Bill mentions consultation with the ‘public’ in a number of clauses. The College suggests that the phase ‘public’ is retained but that explicit mention of consumers and carers is included in the Bill. This could be considered in Section 9 in relation to the functions of the Commission, in Section 10 in relation to the formulation of standards, guidelines and indicators and in Section 11 in relation to consultation around a model for a national accreditation scheme. The College, as an organisation, has embraced consumer engagements and believes that the ACSQHC will be strengthened by input from national consumer and carer groups.[37]

1.76      The Australian Institute for Primary Care compared the bill to comparable legislation enacted in the United Kingdom and argued that the bill does not 'adequately include health consumers in the consultation process'.[38]

1.77      The Mental Health Council of Australia advised that the specific inclusion of consumers and careers would:

better reflect the role of consumers and carers as equal partners with clinicians in health care and the important role that they play in the health system.[39]

1.78      The UK Health and Social Care Act 2008, in contrast to the Australian legislation, states that Britain's Care Quality Commission 'must have regard to...experiences of people who use health and social care services and their families and friends...'[40] and:

(1) The Commission must publish a statement describing how it proposes to—

(a) promote awareness among service users and carers of its functions,

(b) promote and engage in discussion with service users and carers about the provision of health and social care services and about the way in which the Commission exercises its functions,

(c) ensure that proper regard is had to the views expressed by service users and carers, and

(d) arrange for any of its functions to be exercised by, or with the assistance of, service users and carers.[41]

1.79      That Act also contains explicit definitions of 'service users' and 'carers'. The Department indicated that 'consumer outcomes and experience are key markers of the safety and quality of care',[42] and no arguments were put to the committee as to why it would be undesirable to explicitly identify consumers and carers in the requirements for consultation.

1.80      The committee agrees that the terms 'consumers' and 'carers' should be explicitly stated in the sections of the bill identified by witnesses.[43] This will put beyond doubt the intention to include consumers/carers in the consultation process.

Recommendation 2

1.81      The committee recommends that the following clauses be amended to explicitly include the terms consumers and carers:

  • Clause 9(1)(m)
  • Clause 10(2)(e)
  • Clause 11(2)(c)

Limitations on Commission's functions

1.82      The Royal Australian and New Zealand College of Psychiatrists noted that the wording of clause 12(a) of the bill could be construed as meaning that the Commission would be limited to 'working solely with medically trained practitioners and dental practitioners'. The College suggested that this clause be expanded to ensure that 'the Commission is working with allied health, nursing and other health practitioners'.[44]

1.83      Similarly, the Aboriginal Medical Services Alliance Northern Territory (AMSANT) made the following observation about clause 12(a):

It is unclear from this whether this would restrict the scope of the Commission's work so as to exclude from the Commission's oversight the work of multidisciplinary teams as is standard practice within comprehensive Aboriginal primary health care. This includes work, some of which are billable items under Medicare by Aboriginal Health Workers, nurses and allied health professionals.[45]

1.84      However, the Department informed the committee that the wording of this section replicates the wording as set out in the Constitution:

These provisions relate to the Constitutional Powers of the Commonwealth and therefore they are described in the way in which the powers of the Commonwealth exist and so the Commission can function in the same areas that the Commonwealth has powers.[46]

1.85      On this basis, the committee considers this section of the bill should remain unchanged.

Board membership

1.86      Clause 20 of the Bill provides for the appointment of Board members by the Minister. Clause 20(3) and clause 20(4) set out the eligibility requirements as follows:

(3) A person is not eligible for appointment as a Board member unless the Minister is satisfied that the person has:

(a) substantial experience or knowledge; and

(b) significant standing;

in at least one of the following fields:

(a)    public administration in relation to health care;

(b)   provision of professional health care services;

(c)    management of companies, or other organisations, that are involved in the provision of health care services outside the hospital system;

(d)   general management of public hospitals;

(e)    general management of private hospitals;

(f)    financial management;

(g)   corporate governance;

(h)   improvement of safety and quality;

(i)     representation of the interests of consumers;

(j)     law;

(m) a field that is specified in a legislative instrument made by the Minister.

(4)     The Minister must ensure that the Board members collectively possess an appropriate balance of experience and knowledge in each of the fields covered by subsection (3).

1.87      Submitters argued that other areas of experience/expertise should be included under clause 20(3) as follows:

  • management of general practice and primary health care services
  • mental health
  • health economics

1.88      The National Primary Healthcare Partnership (NPHP) noted that clause 20(3) provides for experience in general management of public and private hospitals but does not specifically provide for expertise 'related to the management of primary health care provider services as private clinics or through community health services'. The NPHP stated:

The NPHCP is concerned that this places emphasis on health care services provided in hospitals at the expense of services provided in the community through primary health care providers.[47]

1.89      The committee notes that the clause as currently drafted contains two separate references to management of hospitals. It also notes clause 20(3)(e) refers to 'management of companies, or other organisations, that are involved in the provision of health care services outside the hospital system'. It is not clear whether this is intended to refer to primary health care providers, but it seems unfortunate that management of primary health care, which is such a fundamental part of the health care system, is not explicitly identified as an area of expertise warranting inclusion on the Commission's board.

Recommendation 3

1.90      The committee recommends that clause 20(3) be revised to explicitly refer to expertise relating to the management of general practice and primary health care services.

1.91      The Mental Health Council of Australia commented:

It is disappointing that the Bill does not make provision for specific expertise from health consumers and carers or mental health professionals as part of the Board of the ACSQHC. Such provision would be a significant step in ensuring that the activities of the Commission reflect the needs of mental health consumers and carers and would assist the Commission to better address the acute safety and quality needs in the mental health system.[48]

1.92      Dr Kathryn Antioch argued that consideration be given to including the category of health economics expertise on the basis that it may 'facilitate the work of the commission'. Dr Antioch explained that:

Guidelines should include economic evidence in the form of Cost Effectiveness Analysis and/or Cost Benefit Analysis evidence. Economic evidence is an area that the health industry in Australia finds complex and challenging to incorporate and apply. Many reputable Australian and international Guidelines (ie ‘Clinical Practice Guidelines’) include economic, especially cost effectiveness evidence, in addition to clinical evidence. Australian Guidelines are not always up to date and the health industry often uses international Guidelines to implement at the point of care in hospitals and in other health sectors.[49]

1.93      The committee agrees that these are important areas of expertise in the health system. It expects that organisations represented on the board would bring to the Commission experience in these areas and in particular a commitment to ensuring that quality and safety in mental health services are addressed.

Consumer representation on the board

1.94      Clause 20(3)(k) of the bill provides for the representation of the interests of consumers as one area of experience to be considered by the Minister when appointing board members.

1.95      The Consumers Health Forum of Australia submitted that a consumer representative should be assured a position on the board:

Health consumer perspectives provide an important balance to the views of health professionals and industry, and it is essential that consumer interests are represented on the Board.[50]

1.96      The committee agrees that consumers and carers bring important insights to the decision-making process and would like to see consumers interests represented on the Commission's Board.

Functions: guidelines, standards, indicators and accreditation

1.97      Section 9 of the bill sets out the functions of the commission. It provides for the formulation, promotion and monitoring of guidelines, standards and indicators relating to health care safety and quality matters. It further provides for the development of model national accreditation schemes.

Compliance: voluntary or mandatory?

1.98      Clause 57 provides that compliance with the standards and guidelines is voluntary. Some witnesses were concerned about the voluntary nature of compliance. For example, the Australian Osteopathic Association stated:

The Commission is given the power to issue standards, indicators and guidelines. These, however, are deemed not to be legislative instruments. In any case, they appear not to be enforceable.[51]

1.99      The Australian Nursing Federation submitted:

As a major contributor to the work of the Commission, the ANF is concerned that without an incentive or requirement in place, consistency in safety and quality of care for consumers of health and aged care services will not be achieved.[52]

1.100         Similarly, Ms Bennett from the Consumers Health Forum of Australia stated:

Ideally, if the commission is being charged with having national oversight for improving quality and safety in health care, then we would want it to have some teeth in terms of its powers in enforcing compliance with its guidelines and standards.[53]

1.101         The Department explained, however, that the starting point for the legislation is not enforcement but enhancement and complementarity:

[T]he legislation is not premised on enforcement. It is premised on the fact that one of the barriers or impediments to good practice is information, standards and guidelines. The absence of same, developed in the way that this legislation contemplates, is an impediment to safety and quality in health care.[54]

1.102         The Department further explained that there are already a number of regulatory and enforceable requirements in place and noted that the purpose of the Commission is not to add another layer of regulatory oversight:

There are already a vast range of mechanisms for the regulation of medical practice, the registration of medical professions, the recognition of medical professionals to practice in hospitals and so on and so forth. But all those processes take place, in part, in the absence of a mechanism such as this to provide information on what are good standards or excellent standards of practice and care. This body is established to assist in that regard. It is not there to be the police, if you like, of medical practice; it is there to provide information that has been properly developed about what is good practice and good care in order to ensure safety and quality.[55]

1.103         The Department's comments reflect the bill's Explanatory Memorandum, which explains that it is possible that compliance may be mandated through other mechanisms:

[S]ubsection (2) specifies that compliance against a standard or guideline that is formulated under Clause 9(1)(e) or Clause 9(1)(f) of the Act may be imposed as a term or condition on receiving a grant; or in the case of a contract or other legally enforceable agreement (subsection (2)).

This Act does not prevent a standard or guideline that is formulated under Clause 9(1)(e) or Clause 9(1)(f) of the Act from being applied or adopted under a law of a State or Territory, or any other law of the Commonwealth apart from this Act.[56]

Potential for overlap of functions with NHMRC

1.104         Dr Kathryn Antioch expressed concern that there is the potential for overlap of functions with the National Health and Medical Research Council (NHMRC)—particularly in the area of guidelines development.[57] 

1.105         While supportive of the Commission's functions in principle, the National Stroke Foundation and the National Heart Foundation of Australia jointly submitted that these functions are not set out clearly in the bill:

[S]everal aspects of the Commission's proposed role in standards and guidelines development and accreditation are not clearly articulated. Neither the Bill nor its supporting documentation make clear the role and responsibilities that the Commission is to play in regard to clinical standards and guidelines, and how these relate to the roles of other relevant agencies, including the Department of Health and Ageing and the NHMRC-NICS.[58]

1.106         The Foundations argued that the bill should be strengthened in order to:

reinforce the role of the Commission in identifying and helping address data gaps that are important to quality and safety improvement, in conjunction with data collection agencies, such as the AIHW.[59]

1.107         The Department explained that a strong working relationship has already been established between the Commission and the NHMRC:

Both the NHMRC and the Australian Commission on Safety and Quality in Health Care (the Commission) have a role in the development of National Clinical Safety and Quality guidelines.  The work of both the Commission and the NHMRC is complementary and mutually supportive.  There is an already well-established close relationship between these two national organisations with a mutual intent of preventing duplication of activity and ensuring that the ongoing work of both is complementary and mutually supportive.[60]

1.108         The Department further stated:

The Commission will prioritise the areas in which guidelines are developed and promote and assist in their implementation. It will source the writing of guidelines from the expert groups who already do this in Australia, particularly the NHMRC.[61]

1.109         The Department noted that once the Commission has been established as a permanent body its relationship with the NHMRC will be formalised:

In relation to the development of guidelines, the Commission will maintain and formalise its relationship with NHMRC to ensure there are no overlapping functions.  This is achieved by Commission representation on Committees, working groups and in the processes of the NHMRC.[62] 

1.110         The committee notes that it will be important that the relationships between bodies involved in healthcare guideline development are clearly articulated in administrative arrangements following the legislation's enactment.

Building on existing standards and accreditation

1.111         The Australian Council on Healthcare Standards (ACHS)  expressed concern that the wording of the bill may prevent the Commission from building on existing work:

We are very supportive of a permanent commission and we seek to work collaboratively with such an entity...We seek reassurance that the wording of section 9(1) (e), (f) and (g) on page 6 does not in any way preclude our continued collaborative involvement.[63]

1.112         The Department assured the committee and the ACHS that such a situation would not occur:

It is acknowledged that ACHS is a major provider of accreditation services and there is nothing in the Bill that will preclude the ACHS from continuing to provide these services.  The Commission will not deliver or develop another set of accreditation services that would overlap with the role of the ACHS or other accreditation agencies.  Furthermore, there is nothing in the Bill that would prevent the ACHS from continuing to provide accreditation services.[64]

1.113         The Department further sought to clarify the role of the Commission and its relationship to existing accrediting bodies:

The Commission and accrediting agencies have separate roles.  The Commission promotes and improves safety and quality across the whole of the Australian healthcare system...Accreditation agencies, on the other hand, will accredit health service organisations against the standards developed by the Commission.[65]

1.114         The committee notes that in the ACHS' view, the standards development function and the accreditation function should be undertaken by the same organisation.[66] Notwithstanding this, the committee was satisfied with the Department's response.

Patient confidentiality

1.115         The Consumers Health Forum of Australia argued that clause 58(2), which provides for the protection of patient confidentiality should be amended to clarify the meaning of consent:

CHF welcomes the provisions requiring that the Commission does not publish or disseminate information that is likely to enable the identification of a particular patient. CHF notes that these provisions do not apply if consent has been provided. CHF argues that the legislation should specify that this must be ‘informed consent’, so that consumer or another person who is able to give consent is fully aware of the implications of providing consent.[67]

1.116         The Department assured the committee that such an amendment is not necessary. They stated:  'Consent would need to be "informed" in order to be valid consent'.[68]

1.117         The committee understands that CHF's concern is not with the legal definition of 'consent' but with the interpretation of the term 'consent' by a lay person—specifically a consumer or another person who is authorised to give consent. CHF's suggestion is that amending this clause to read 'informed consent' will assist consumers in making an informed decision around the issue of consent. On this basis, the committee supports this amendment.

Recommendation 4

1.118         The committee recommends that clause 58(2) be amended to read 'informed consent'.

Conclusion

1.119         The committee welcomes measures to enhance performance and accountability in Australia's healthcare services. Establishing the Australian Commission on Safety and Quality in Health Care as a permanent body with responsibility for the development of standards in safety and quality for services across the healthcare spectrum will, the committee believes, enhance outcomes for healthcare consumers.

1.120         The committee would like to see this bill enacted as soon as possible to support the smooth transition of the Commission to corporate autonomy. At the same time, the committee considers that its recommendations will provide for more robust legislation that, in turn, will provide greater clarity to healthcare professionals and consumers as to the bill's intent and scope.

Recommendation 5

1.121         The committee recommends that the bill be passed subject to the amendments as recommended in this report.

Senator Claire Moore

Chair

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