Health Care Complaints Bill
HEALTH CARE COMPLAINTS BILL
Debate resumed from 28th October.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [9.10]: Health care is a right. The capacity of citizens to complain against the inadequate provision of health services must be seen as a right of equal standing. In the words of Australia's leading expert on public health, Dr Sidney Sax, "Health care choices are made in an atmosphere of uncertainty". Dr Sax was referring to the fact that consumers are often uninformed about the options open to them, and they are uncertain about their effects. Consumers are also uncertain as to the avenues of redress when things go wrong in a hospital or in a provider's rooms. The primary reason for that is that the system - the health system, the complaints system and the courts - is weighted against the consumer. Let me quote from some advice given to doctors from another famous doctor:
That advice was given to young doctors nearly 2,500 years ago by the Greek physician Hippocrates. That advice was wrong. In some doctors' surgeries that is being said today. It is still wrong. In 1984 the International Organisation of Consumer Unions, at its eleventh world congress, adopted a similar resolution urging health authorities and other concerned parties to uphold patients' dignity and rights as human beings, including the right to accurate information, the right to safety, the right to treatment and care, and the right to refuse treatment. Every day in a hospital, surgery or clinic around the State those rights are breached. Governments must protect those rights. A key task is to ensure those rights have legal backing. As the Consumers Health Forum of Australia has often said:
Perform these duties calmly and adroitly, concealing most things from the patient while you are attending him. Give necessary orders with cheerfulness and serenity, turning his attention away from what is being done to him; sometimes reprove sharply and emphatically, and sometimes comfort with solicitude and attention revealing nothing of the patient's future or present condition.
Whether a health right is legally recognised is a crucial issue. It is a matter of both symbolic and practical importance. A legal right confers upon the consumer authority to better control the provider-patient relationship. It places a positive duty on providers to ensure that consumers' rights are not breached. Most important, consumers are provided with legal remedies when things go wrong. It is instructive to examine the workload of the complaints unit to highlight the problems that clearly are occurring in the health care system in this State. New South Wales has the highest incidence of complaints against doctors than any other State. More than twice as many patients in New South Wales complain about their doctors than do patients in Victoria. During the last financial year the unit received nearly 1,230 complaints against all types of health practitioners. About 80 per cent of complaints were against doctors.
I take this opportunity to congratulate the head of the New South Wales complaints unit, Ms Merrilyn Walton, who arguably has one of the most difficult public sector jobs in this State. I also congratulate staff who work in that unit. Only 3 per cent of complaints were able to be resolved within the financial year. About another 60 per cent are still under investigation and, in about 20 per cent of cases, investigation was decided against. A further 12 per cent of cases were referred for conciliation. It is fair to say that the complaints unit has a task which is almost unmanageable. It is fair to say that investigations are taking too long. I understand that this matter may be dealt with in a report of the Ombudsman which is soon to be tabled. Some inappropriate decisions are being made by the complaints unit and some consumers, and probably health care providers, are being disadvantaged by the system.
I take this opportunity to cite a particular case to highlight how the current system, with its legal impediments and bureaucratic barriers, is weighted against the complainant. Honourable members will probably remember a story in the Sydney Morning Herald in March this year concerning a Sydney dentist, Tibor Vajda, who was then practising in Bondi Junction. He had been practising for decades when one day Mrs Magda Bardy walked into his surgery and allegedly recognised him as the murderer of her husband and the man who tortured her in a Hungarian concentration camp 40 years earlier. Mrs Bardy was beaten, interrogated, and eventually sent to the notorious political prison Kistarcsa where she was held for 2½ years. When she was released she discovered her husband was dead. Mrs Bardy complained to the complaints unit and presented evidence that Tibor Vajda was registered as a dentist in Australia in the 1950s based on fabricated evidence. The complaints unit investigated the matter. It found that the matter should be referred to the dental board for it to consider disciplinary action against Mr Vajda or the removal of his name from the register.
Mr Vajda's name was subsequently removed from the register, but not following the recommendation of the complaints unit. Fortunately, Mr Vajda, who clearly knew he was beaten and who was hiding in disgrace, requested from the board his own deregistration. But the issue here is the inadequacy of the health care complaints system to deal with a situation where, for so many decades, a health care practitioner had been practising under false pretences. The problem with this case is that there was no power in the Dentists Act for the dental board to refer a complaint to the complaints unit for investigation, or for the director of the unit or the Director-General of Health to become involved in the proceedings as a nominal complainant. Mr Vajda may not practise as a dentist ever again in Australia. However, this man, who allegedly committed the serious offence of falsification of registration documents, will receive no further sanction. If the allegations against him are true he will not be fined or suffer any other penalty. So far as I am aware there is to be no further investigation of this most serious issue.
There are many problems with the State's complaints system. It is an issue of enormous proportions. That is why the Opposition seeks to have this bill referred to a legislation committee. Labor supports the thrust of the bill. Indeed, the establishment of the complaints unit as a statutory authority was a policy with which the Opposition went to the polls in 1991. However, there are significant problems with this bill. I take this opportunity to itemise some of those problems. There is no power to review a decision of the commission. In the courts system and the parliamentary system there are, almost by right, checks and balances built in, but not in this case. The commission has inordinate power. What if it makes a mistake? There is nowhere for a complainant to go. We need some sort of system of review. There is no compulsion on the part of a health care practitioner to participate in the complaints process. A doctor can simply ignore a request by the commission to furnish information. There must be compulsion on the provider to play fair.
There are concerns regarding the secrecy under which the commission operates. There is now an expectation that governments and their authorities will operate in a climate of openness. Information regarding investigations, the conciliation of complaints and documents relating to decisions should be available to complainants. Freedom of information legislation has been excluded from the complaints commission. This, quite rightly, has sparked widespread community concern. Clearly, people should be entitled to access information where it encroaches on their rights. I understand that the honourable member for Manly intends to move some amendments in relation to this issue. It is important for this House to recognise that at present there is
recourse to the Freedom of Information Act after a complaint has finally been dealt with. There is no such provision for the commission in the new Act. There is no reason for that provision not being in the Act.
It seems appropriate that upon completion of an investigation parties should be entitled to obtain relevant documentation. It is crucial that justice not only be done, but that it be seen to be done. The commission also should have an improved relationship with the court system. It should be entitled to investigate the frequency, type and nature of allegations of malpractice as they arise in legal proceedings. The coroner should be obliged to notify the commission where instances of malpractice are revealed during the coroner's proceedings. The Act should state that the commission be empowered to refer a matter to the Director of Public Prosecutions, and also that the commission has the power to investigate negligence on the part of the practitioner.
These issues should be dealt with by the legislation committee or, failing the establishment of that legislation committee, subject to amendments moved by the Opposition. These issues are not dealt with in the bill. I must concede that this new bill is a considerable improvement on the bill first presented to this House at the end of last year. In fact, many changes are a direct result of amendments moved by the Opposition at that time. These amendments were opposed by the Government. It was only after considerable Opposition pressure and the hard work and dedication of many health care consumer organisations that we have now been presented with a much fairer piece of legislation. However, I am concerned that the bill does not address the wider issues of the inadequacies of our medical redress system generally.
It has been said to me on numerous occasions during the consultation process that the Opposition has undertaken on this issue in the past few months that the rich have a way of dealing with their problems. They can go to the court system and sue a doctor for all he or she is worth. However, for a battler, someone who cannot afford to brief a barrister for one day, let alone two weeks, the only hope is the health care complaints unit. If that does not work, that is the end of the road. If a person has gone through the experience of two weeks of deep sleep therapy at the hands of Doctors Gill and Herron, or has needlessly lost a 10-year-old son in a casualty unit, the road looks bleak.
It is not just a question of differences between rich health consumers and poor health consumers; the question is the enormous gap in the power balance between consumers and health providers. In general, health consumers have not had the influence over legislative and administrative action that health providers have exercised. It is no surprise that those with the most resources and power in the community - through wealth, status, contacts or the ability to organise - have a greater influence on the law than the less powerful. Governments must redress the wider issue of the complaints process generally. I wish to refer to some of the systems available to health consumers. Civil actions can be initiated in the courts, principally for negligence. According to one estimate, about 150 such actions are commenced each year in Australia. Very few of these even reach the courts.
Consumer remedies are available under various trade practices and fair trading legislation. These include actions for misleading, deceptive or unconscionable conduct. Despite reforms over recent decades, problems still persist in this area and these avenues are rarely available to health care consumers. In certain appropriate circumstances, complainants can go to anti-discrimination bodies, but again in limited circumstances. There are, of course, coronial courts which are a legal mechanism for dealing with unnatural, suspicious or violent deaths. As I have outlined, these procedures all have serious limitations.
The Consumers Health Forum has identified what it describes as an extraordinary array of barriers to pursuing redress: the lack of information about where and how to complain; the fear of complaining, because it might adversely affect the quality of their future services; lack of faith in the bodies to whom complaints were made owing to their lack of independence; the problem of the expense in time and money of making complaints; the high cost of litigation; the limited availability of legal aid; the prospects of having to pay for the defendant's costs if unsuccessful; the problem of restrictive limitation periods for the commencement of legal action; the difficulty of obtaining access to health records to determine whether there is a case worth pursuing; the emotional, physical and intellectual costs to the person and his family of the trauma of court proceedings; the substantial delays in higher court proceedings; the reticence of medical defence unions to allow cases to go to court - so the law itself is slow to develop; the inefficiencies of the legal profession and courts administration; and the inadequacies of existing legal rules, such as those in relation to class or group actions.
What is required is a review of this legislation. This is one of the most important pieces of legislation this Government has so far introduced. It cannot be rushed through this Parliament in its dying days. A legislation committee is needed to investigate this bill in the context of New South Wales complaints procedures. The whole issue of health complaints procedures is one that is begging law reform. Governments, both Federal and State, should examine the legislative structure from the courts through to their respective administrative bodies.
A number of options should be considered nationally or statewide. These include a system of no-fault compensation, and on this issue I await the Federal Government's report. A statutory reform of common law negligence proceedings should be considered, and also the need to update administrative review procedures. I do not necessarily advocate any one of these strategies, but I strongly support an
examination of the issues with a view to reform. I believe change in this area is crucial to improve the health system as a whole and to protect the civil rights of the community.
Proposals to reform laws on this issue usually meet with seemingly impenetrable barriers. The typical reaction is that they are an unnecessary interference in the doctor-patient relationship. Still prevalent in this community is the "Trust me, I am a doctor" attitude. Consumers are dismissed as non-experts. These arguments must be rejected out of hand. In a democratic community, laws governing health care complaints procedures should be consistent with principles of social justice. These principles focus upon adequate information, participation in decision-making and equity of access. However, reforms in complaints procedure must not be supported merely because they are good in principle. There are strong practical reasons to do so. Medical research suggests people simply get better faster if they are better informed, know what their options are, and have their rights protected. The Labor Party believes that the effective mechanisms to deal with health care complaints are a mark of an open, socially just community. A community which fails to protect the legal and ethical rights of its health care consumers is a community that is far short of true democracy.
Mr GLACHAN (Albury) [9.27]: In January 1984 the New South Wales medical complaints unit was established within the Department of Health because it was recognised then, as it is now, that people needed to have access to a body such as this so that they could make complaints when they thought it was necessary. Every State in Australia has arrangements similar to this to give medical consumers the opportunity to make complaints if they feel the need to do so. I think the Northern Territory is the only place in Australia where that access is not as readily available as it is elsewhere. In 1987 suggestions began to be made that the unit really needed a separate legislative base, and people were of the view that it should be independent of the Department of Health. In 1988 consultants carried out a review of the unit and of the work it was doing. At that time people wanted its powers extended, others wanted them curtailed, and others wanted the unit disbanded altogether.
It is important to note that the Health Care Complaints Bill introduced in 1992 was debated in this House. The debate was adjourned in November of that year as a number of questions had been raised about certain aspects of the bill, especially by consumer groups who requested that their major concerns be addressed. Following the adjournment of the debate, much consultation took place with consumer groups. Up to 70 professional and consumer groups were asked to comment on amendments to the bill that they thought were necessary. Generally speaking, most of the important consumer groups are happy with the bill in its present form, though I admit that several groups have sought further safeguards for consumers than are provided for in the proposed legislation. Basically 11 peak groups support the bill. They include: the Australian Consumers Association, Council for Intellectual Disability, Council on the Ageing, Public Interest Advocacy Centre, AIDS Council of New South Wales, Mental Health Co-ordinating Council, the Australian Medical Association, Medical Services Committee, Nurses Association, Council of Social Service New South Wales and New South Wales Disability Safeguards Coalition.
The Deputy Leader of the Opposition said that the bill should be referred to a legislation committee and that there should be further delay so that all the issues can be re-examined in detail. That has already been done over a long period. A good deal of consultation has occurred and a great number and variety of professional groups - at least 70 - are pleased with the way the bill is framed. The time has come for action to be taken on this matter and for the bill to be passed. The time for dilly-dallying is over. We must get on with the job and ensure that the bill passes through the House now. I should bring to the attention of the House matters raised by the consumer groups. As recently as 3rd November in a media release the Australian Consumers Association said:
In no jurisdiction in Australia have the Parliament or the court recognised in a comprehensive fashion the rights of health consumers. Even on those matters where there is law, it is often unclear and unambiguous, or differs between jurisdictions. For Australian consumers there is a considerable uncertainty and confusion as to where they stand in the law.
The Bill will set up a Complaints Commission, a statutory body independent of the Health Department and answerable to a Joint Parliamentary Committee.
The association went on to say:
The Consumers Association supports the Bill and hopes that Parliament will allow its passage during its current session.
The AIDS Council of New South Wales, in a media release also dated 3rd November, said:
When the Minister originally tabled the Bill in November last year, consumer organisations across the board rejected it. But in the last 12 months significant changes have been made. We wanted it taken back to the drawing board and this has paid off because in the new Bill the independence and accountability of the proposed Commission is guaranteed.
People with HIV/AIDS simply cannot afford further delays in establishing the Complaints Commission proposed in the Bill.
In a letter to the then Director-General of Health, Dr Bernie Amos, the Mental Health Co-ordinating Council wrote:
HIV/AIDS continues to generate a steady stream of complaints about health services and the proposed Commission will be a much more effective system than the Complaints Unit structure we have at present.
The council in its letter proceeded:
We have been closely involved with the process of community consultation on the proposed Health Care Complaints Bill, and would like to advise you of our position regarding the legislation.
The Public Interest Advocacy Centre, in a letter to the Minister dated 29th September, said, among other things:
The Mental Health Co-ordinating Council is fully supportive of the Bill going through in this session. We believe the Bill will establish quality, independent mechanisms for complaints and review of New South Wales Health services.
It lists the changes as being the independence of the commission, accountability of the commission, access to the complaints system by health consumers and capacity for the commission to report on systemic problems arising from individual complaints. The letter proceeds:
As you are aware, we have had many detailed discussions with officers of your Department about the Bill since it was withdrawn from Parliament last year. We believe that significant changes have been made in a number of areas, in particular in areas which are fundamental to a proper health complaints system.
Finally I should comment on a letter written to the Minister on 26th October by the Medical Services Committee which says:
It was appropriate that the original Bill was withdrawn, but it has now been almost a year since this occurred. We submit that it is imperative for this matter to be resolved as quickly as possible by approval of the Bill by Cabinet, and its passage through Parliament.
Those peak consumer groups are all in favour of the bill in its present form. They agree that great changes have been made and that the bill is now satisfactory. Most importantly, they want it to be dealt with now so that it can be passed in this session of the Parliament. The bill will establish the Health Care Complaints Commission and the health conciliation registry. The aim is to investigate, conciliate and prosecute complaints against practitioners and to investigate problems with health services. The commission will replace the existing health care complaints unit, but I should emphasise that these bodies will be independent. That is an important point: their independence will be guaranteed.
Anyone in the State at any time will be able to make a complaint. One of the requirements will be that complaints be in writing. However, the bill provides that staff must assist complainants in formulating complaints, putting them into writing and having them lodged. That will be of tremendous assistance to those who might have difficulty in that regard. The bill proposes to set up a parliamentary committee to oversee the commission, which will be accountable to that committee and to the Office of the Ombudsman. There will be adequate oversighting of the way complaints are dealt with. That is fair and reasonable, and it will give much comfort to consumers who seek to complain about the way they have been dealt with by practitioners or institutions providing medical services.
An annual report must be published. In addition, anyone who has a complaint dealt with and is not satisfied with the result will be able to ask the commission to review the decision. The bill requires also that the Minister review the Act after three years and then report to both Houses of Parliament on the effectiveness of the measures. That will be another important check. A requirement under the 1993 Medicare agreement is that an independent health complaints arrangement be established in the State. It is important for that to be done this year. The commissioner will be appointed by His Excellency the Governor for a five-year term. The commissioner may serve 10 years, but no more than that.
The bill includes provisions that will enable the commissioner to be removed from office under section 42Q of the Public Sector Management Act. I believe that the bill includes adequate safeguards for the working of the commission and that consumers will be well protected. I submit that consumers are of a similar view, are totally supportive of the bill and are anxious for it to be brought into effect as soon as possible. Because of the safeguards and the urgency of the matter, there is no need for the bill to be once more referred to a legislation committee. That would be a waste of time. Consumers are happy; and if that is so, the Parliament should be happy too. I strongly support the bill.
Mr ROGAN (East Hills) [9.40]: The closing remark of the honourable member for Albury referred to consumers being happy with this legislation. I do not know where the honourable member has received his information, other than through the normal handout that is provided by the department and by the Minister, but I can assure him and the Government that consumers are not happy. I shall elaborate on that and demonstrate why the various organisations are not happy. I shall name the organisations. One of the great faults of this Government and its predecessor, the Greiner Government, is their total failure to consult. I would dearly like the Minister in reply to tell us the genuine community groups with which he has consulted. I shall inform the House of the various groups that represent half a million medical consumers of this State who are not happy with this legislation and who have no confidence in it.
Let there be no doubt that this bill does not enjoy the confidence or support of the medical consumers of this State. It has been prepared by the health bureaucracy for the benefit of that bureaucracy. For the Minister to become a captive of his department and ignore the genuine concern of the community is a total abrogation of his responsibility as a Minister of the Crown towards consumers of health services in New South Wales. I speak with some experience because tomorrow I celebrate 20 years as a member of this Parliament. I can remember being in government and battling the bureaucracy, battling my own Ministers at the time to try to bring to the attention of the public the awful experience of those who were victims of Chelmsford Private Hospital. It was only after a royal commission was established that the truth came out in the public arena and we became aware of the dreadful abuse that was allowed by the bureaucracy and those paid to exercise responsibility, but who did not do so.
The victims of Chelmsford looked to the Parliament and the Government to introduce legislation to protect those in the future who may follow in their footsteps. Sadly and regrettably they will not get it through this legislation. Those people recall the doctors in the public health system who had a responsibility to check on the drug regime given to patients at Chelmsford Private Hospital, some of whom were rendered unconscious for upwards of two weeks and, in many instances, were carried off to hospital with pneumonia - and many to the morgue. When the bill was first introduced, the Minister in his second reading speech referred to the Chelmsford royal commission and experiences at Chelmsford. He indicated that the measure would address those concerns. Sadly, that is not the case. The Minister in his speech on 16th September, 1992, said:
All the significant concerns of the Committee have been addressed satisfactorily and it is considered that this legislation in conjunction with the Mental Health Act, the Quality Assurance Legislation and the complementary Registration Acts will provide a basis for high and improving standards of health care and of professional responsibility among all categories of health care providers.
One would think, because of the findings of that royal commission and as a result of the work of the Chelmsford Victims Action Group in establishing the group, it would have been consulted. It is logical to assume that, but the only group consulted extensively during the preparation of this legislation was the Australian Medical Association - the association representing doctors. Consumer groups were not consulted, but the doctors were. This bill is for the benefit of the bureaucracy and has been welcomed by the doctors. I assume that if there had been any real oversight in this legislation relating to the medical profession, doctors would have expressed some concern about it, but they have embraced this legislation. When this bill was introduced on 28th October, the Minister in his second reading speech referred to consumer groups that supported this legislation. I have news for the Minister. He would be aware by now that a number of these consumer groups do not support the legislation and an increasing number that have ascertained the ramifications and implications of the legislation are withdrawing their support.
The Minister referred to the Australian Consumers Association. Mr Barry Hart from the Chelmsford Victims Action Group rang the association and said, "I would like to talk to you about this legislation to put to you some of the concerns of the Chelmsford Victims Action Group and our worries about this legislation". The response of the Australian Consumers Association was, "Do not talk to us because we are just a peak organisation. We do not really represent consumers. We do not really know all that much about this legislation". Yet, this is one of the bodies referred to in the Minister's second reading speech as supporting this legislation. When the Association of Relatives and Friends of the Mentally Ill found out about the legislation it was horrified. I attended public meetings - and not one representative from the Government attended either major public meeting held to discuss this legislation - and I heard the concerns of this group and many other groups.
I could run through all these groups but time does not permit me to do so. Suffice it to say such groups include the New South Wales Council of Senior Citizens Association, the Retired Teachers Association, retired union members of various organisations, the Voice of the Elderly, the Association for Mental Health - 48 groups, mainly consumers - the Association for Self Help Organisations and the Vietnam Veterans Association of Australia. Some might ask what their interest is in this. It is simply that since the State has assumed responsibility for what was formerly Concord Repatriation Hospital, these Vietnam veterans have a direct interest in the delivery of health care in this State and they seek safeguards for their members to ensure that they are not victims of the system. They are groups like the Federation of Italian Migrant Workers, Association for Improvements in Maternity Services, the Chelmsford Victims Action Group, the Medical Consumers Association, the Northern Beaches Mental Health Support Group and many others. A spokesperson for the Minister was reported in the Manly Daily of 19th October regarding this legislation as follows:
The decision to establish the Health Care Complaints Commission results from the findings of the Royal Commission into Deep Sleep Therapy in relation to the Complaints Unit.
I assure the Minister and the Government that that pledge is now received with a hollow laugh by those groups. The Opposition and all community organisations, many of which I have just referred to, are concerned with many aspects of this proposed legislation. I should like to refer to some of those concerns. Mr Tony Humphreys, Chairman of the Association for Mental Health, commented that a very broad cross-section of consumer representation at one of the public meetings showed the strength of consumer concern. He said, "The bill cuts across the fundamentals of human rights as expressed in the Burdekin report". Mr Ray Fulton, Secretary of the New South Wales branch of the Vietnam Veterans Association, said that the Government bill was a disgrace. Sally Willington, President of the Association for Improvements in Maternity Services said:
He was unsure when consultation with the community would begin but assured concerned groups there would be a comprehensive consultation process much like the one undertaken when the bill was first drafted.
[Extension of time agreed to.]
I should like to hear the Minister in reply indicate why this piece of legislation contains no provision for freedom of information. The removal of that provision causes a deal of concern. The honourable member for Londonderry will refer to this measure in his speech. It was only through the operation of the Freedom of Information Act that one of his constituents was able to ascertain exactly what appeared in the medical report about swabs left inside a woman's stomach after an operation.
The bill provides for imprisonment and fines for persons who disclose information relating to the investigation of complaints. Why must we have a
sole commissioner for this complaints unit? Why not have a number of commissioners? Irrespective of who the commissioner may be - I have no comment in relation to the competency or capacity of the current commissioner - other commissioners will follow. Therefore, a number of commissioners will safeguard consumer representation at that level of oversighting, which is absolutely necessary if this body is to perform fully in the public interest.
There is no codification for priority investigations even though Department of Health lawyers in the Chelmsford royal commission argued that they failed to act on complaints of malpractice, experimentation and patient abuse at Chelmsford because there was no legislative obligation for the department to investigate the complaints. This proposed legislation has been designed and put together for the benefit of the complaints unit. The bill contains provisions to benefit the commission but not the consumer.
Why will the commissioner be appointed for a term of 10 years? I have been a member of this Parliament for many years and I have never known an appointment for such an extensive length of time. It is an extraordinarily lengthy time for such an important appointment. The unit is not able to make recommendations about medical practice despite the fact that the Medicare agreement states that the commission has to make recommendations on the improvement of hospital services. I should like to deal briefly with the process of lodging complaints. The proposed legislation requires that a statutory declaration be lodged. No provision is made for a person to lodge a complaint after the period of two years has elapsed, despite the fact that proposed section 138 of the Legal Profession Reform Bill, which the House is debating, states:
The lack of public consultation is a disgrace in a so-called democracy. If this bill is passed as it stands, members of my Association will have no redress when they need to make a complaint.
(2) However, the Commissioner may accept a complaint made after that time if:
(a) the Commissioner is satisfied that it is just and fair to do so having regard to the delay and the reason for the delay; or
Why cannot a similar provision be incorporated in this legislation? In Victoria a person who makes a complaint to the commission must first put it in writing. But the Victorian legislation allows for a complaint to be made either orally or in writing though it must be confirmed in writing unless good reason is given to the commissioner why that is not possible. The Ombudsman has expressed concern about the bill. It is interesting to note that it is being pushed through on the eve of a report of the Ombudsman to the Parliament that will strongly criticise the complaints unit.
Why should we not delay this legislation until we know what the Ombudsman says? Surely this Parliament can benefit from the valuable input of the Ombudsman. I return to my first point. In five years' time, when the Minister is no longer the Minister, and indeed may not be a member of this Parliament, issues will arise if the legislation goes through in this form. If the concerns of the community groups eventuate, that is, that the protection will not be available, I foreshadow that the Minister will adopt the fall-back position of all Ministers once they are out of office and out of Parliament when confronted with the inadequacies of legislation they put through. He will say that the damned bureaucracy put the legislation forward and that he should have looked at it in more detail. The Opposition is giving the Minister and the community that opportunity now by having this bill referred to a legislation committee.
The Minister will have the opportunity to consider the proposed legislation in more detail and community groups will also have that same opportunity. Surely that is what this place is about. The community will be able to provide input to the committee. Surely that is what this is all about, not just putting through legislation, despite the opposition and concerns of the community. This legislation does not enjoy the public confidence it should enjoy. That has been demonstrated in resolutions carried at representative gatherings of consumer groups representing, as I said, something like half a million consumer groups. [Time expired.]
Mr O'DOHERTY (Ku-ring-gai) [10.0]: For the benefit of the honourable member for East Hills, I will refer briefly to a news release, an official statement issued by the Australian Consumers Association on 3rd November. It states:
(b) the Commissioner is satisfied that the complaint concerns an allegation of professional misconduct and that it is necessary in the public interest to investigate the complaint.
The NSW Health Care Complaints Bill has been tabled in Parliament and it spells good news for NSW consumers.
The bill will set up a Complaints Commission . . .
The honourable member for East Hills seems to be operating on a different plane so far as this legislation is concerned. He referred to a number of groups, small groups, perhaps groups on the fringe of the medical debate, though they may be involved in other debates -
Mr Rogan: Representing half a million consumers.
Mr O'DOHERTY: The honourable member for East Hills says they represent half a million consumers. How many consumers does the Australian Consumers Association represent? Is it three million, four million, five million, 10 million or 15 million consumers? By the honourable member's own mouth, the Australian Consumers Association is the peak organisation, and it approves of the bill. It says that it is good news. I will come to the question of the half a million members mentioned by the honourable member. He has double counted. It is like the old trick of trying to add up the number of things one does in a day and concluding that only
three people work in Australia, and one of them would not be the honourable member for East Hills, judging from this bill. He has double counted his figures. He has people represented by groups that approve of the bill counted in with those who do not approve of it. The reality is that some people belong to two groups, and that is how he arrived at the figure of half a million people.
However, this is a side issue. The fact remains that 70 groups were consulted and the vast majority of them support the bill. I suggest that when the views are sought of 70 groups, no matter what the issue, of course there will be some who disagree on some points. However, in this case the vast majority of people supported the bill. A limited number are now trying to hijack that process at the eleventh hour when New South Wales has achieved the most significant reform in this area. That limited number of people has tried to undermine the process. They are simply telling lies. What they say is either not true, and known to them to be untrue, or is demonstrably not true but they do not understand it. It is a shame to get to this stage of such important reform and then to have lies and misstatements perpetrated about the legislation. The honourable member for East Hills, who tomorrow celebrates 20 years in this place, should know better.
One of the Opposition's concerns about the bill is that the commission will not be able to prosecute or find legal negligence and award compensation based on that. The Government says that the court system is there for that purpose. The commission has the task of investigating complaints brought by medical consumers. It must investigate those specific complaints or widespread complaints of systemic problems, in order to ensure that practitioners who are not acting in the interests of public health are removed from the system so that they no longer represent a danger to medical consumers. That will be the job of the commission set up by this bill. The job of finding legal fault may cover some of the same ground, but it is the province of the legal system. Any of the groups that have complained to the honourable member or to the Minister, who listened, listened and listened again -
Mr Rogan: But took no notice.
Mr O'DOHERTY: The Minister took lots of notice. Many times the Minister told those groups that they can go to the courts at any time and pursue their own legal rights, independently of anything that the health system itself is doing. Those groups have the right, as I do and any member does, to use the court system to those ends, to have compensation or damages awarded or even to have legal negligence established, if appropriate. The question of establishing legal negligence through the court system is different from establishing medical negligence under the provisions of this bill. It might cover the same facts but the point of the commission is to investigate the treatment of health consumers and to remove from the system doctors who are not fit to be practising - and it does that extremely well.
The honourable member for East Hills referred to a two-year delay about which some groups have been concerned, and whether there is a two-year limit on filing a statutory declaration that is necessary to commence proceedings. The honourable member would probably remember that part of the commission's role is to assist people in making their complaints, and that is a major step forward. It is extremely important to the mental health groups that consulted with me and the Minister. It is one of the hundreds of significant improvements in this bill. As to the two-year delay, the commission has full power to investigate matters that occurred more than two years ago - out of time, as the honourable member would say.
Clause 27(1)(f), at page 12 of the bill, states that a two-year delay in making a complaint is one reason that the commission may consider not investigating, with the emphasis on the word may. However, if the commission considers such cases to be serious enough it can still investigate them. I do not know why the honourable member mentioned this because it is similar to the provisions contained in the legal bill to which he referred. Consumers have been at the heart of this bill. The benefits for consumers are at the heart of what the Minister has achieved and will continue to achieve in the New South Wales health system. Consumers are the important focus of the health system under this Minister and that is something that should never be denied and should never be forgotten.
The commission to be established by this bill is consumer oriented all the way. Consumers have driven the process. Consumers are at the heart of the process. The Chelmsford case was one of the reasons that the Government moved to this process. To suggest otherwise is simply laughable. The present complaints unit that is to be changed by these amendments operates under powers delegated by the Director-General of the Department of Health. That is to be replaced with an independent, statutory body. It has powers, duties and responsibilities clearly defined by statute. It will be accessible, accountable, consumer oriented and consumer driven. In no way will it be bureaucrat driven, as was suggested by the honourable member for East Hills. It is deliberately at arm's-length from that process.
This bill is a step forward and an important improvement on existing structures. The bill establishes new provisions that will make the commission more effective than the present body. For example, a conciliation registry will be established to investigate, conciliate and prosecute complaints against health practitioners and to investigate problems in the delivery of health services. The two bodies to be established - the commission and the conciliatory body - are consumer driven and aimed at getting to the bottom of the complaint, solving it if possible. If serious matters are raised as part of that process, and if there is a need to remove a medical practitioner from practice or to take other serious steps, the bill provides for that to be done by reference to registration boards and other procedures.
The appropriate safeguards are in place to ensure that this is a body that not only listens but also has teeth and can act.
One of the other objections raised by an earlier speaker concerned oral and written complaints. Complaints may be made to the commission in writing or orally. This is an important point for some of the mental health advisory groups to whom I spoke during the preparation of the bill. The commission requires the complaint to be made in writing before it is investigated, but a person who may have trouble lodging a written complaint can complain orally to the commission. The commission will then assist the complainant to draw up his or her complaint to expedite it through the system. People who need help in making that complaint will be given that help, the complaint will be made and the complaint will be dealt with. Once again, the commission is consumer oriented.
By comparison, the Victorian commission does not prosecute as New South Wales will. It has no requirement for complaints to be made in writing. That deals with one of the questions raised by the honourable member for Londonderry and his earlier concerns about oral and written complaints. I am concerned, following some of the misstatements, some of the untruths and, perhaps, some of the direct lies in this debate, that people like the honourable member for Londonderry and the honourable member for East Hills and some of the groups they mentioned have the wrong end of the stick. Make no mistake, this is an important strengthening of an important step forward - the implementation of the complaints unit.
Problems have been found with the complaints unit and some of its structures. For a long time this Minister has been concerned to rectify those faults, to provide the next generation with a complaints process in the health system aimed at consumers. That is what started consultation. Seventy groups consulted with the Public Interest Advocacy Centre undertaking consultation on behalf of those groups, completely at arm's-length from the Government and the Minister. It is the Minister who has real honesty and integrity about the process, about getting the right outcome, who is prepared to hand over a consultation process to a group completely at arm's-length from his office. That is what Minister Phillips has done. The Public Interest Advocacy Centre took care of the consultation from start to finish. The consumer groups by and large - vastly the majority - are in favour of the changes.
It is unfortunate that we get to the eleventh hour only to have honourable members throw misstatements around and cast doubt on an important step forward in the accountability of the medical profession. I certainly hope that the amendment foreshadowed by the shadow minister for health is not part of the bill. I will vote against it. It is a delay; it is unnecessary; it is simply playing political games. When the bill finally passes through this House, we will have a consumer-oriented body, a place to which we can take a complaint about a medical practitioner. The primary function of the commission will be to assist the complainant to make the complaint, to deal with the complaint and to find the necessary answers to ensure that the problem does not happen again, if a complaint is proved. It is a major step forward. It is aimed at consumers. I pay tribute to the role the Minister has played, not only in this issue, but in so many other issues in driving the medical health system into the 1990s as a consumer-oriented, client-oriented body. I support the bill.
Mr MILLS (Wallsend) [10.14]: It is Labor Party policy to establish a health complaints commission. I hope the Government remembers that. In the mid-1980s the Labor Government set up the current Complaints Unit. From our experience, from the experience of the unit over the past nine years, from advances in community attitudes and from an acknowledged need to advance health consumers' rights, the time has come - and the Opposition acknowledges that - to work towards setting up an independent body to deal with health complaints. It is the duty of this Parliament to determine the way in which that body operates. But as the Deputy Leader of the Opposition and the honourable member for East Hills have outlined, the Australian Labor Party has grave concerns about the way in which the Government has proposed in the bill to determine the way in which that body will operate.
I believe that the bill will set up a complaints commission that will not serve the interests of health users - the health consumers. The bill has been subjected to many influences and needs, which should have meant that a very different kind of bill was presented to the Parliament. Public sector health rights have been discussed widely around Australia and other countries in recent years. The Medicare agreements have developed requirements that have not been met in the bill. It is important to look at some of those requirements. The public patients' hospital charter is the basis of the requirements of the Medicare agreements. I understand that the States agreed with the Federal Government to develop a public patients' hospital charter, including a time frame for when it should be distributed to the public. The Minister owes it to the Parliament to state in his reply when that charter is coming.
The bill should have contained a preamble setting out patient rights. The Government must be a long way down the road towards having those patient rights written out. Part of the Medicare agreements was that the public patients' hospital charter had to set out the process by which people could lodge complaints about public hospital services and how the complaints could be heard by an independent body. The State Government agreed to establish a complaints body to resolve complaints made by eligible people about public hospital services. The State Government agreed that the complaints body should be independent of the State's hospitals and the Department of Health. It agreed that it should be given powers that would allow it to investigate, conciliate and adjudicate on complaints brought to it and that it should be given a role in recommending improvements in the delivery of
hospital services for which the Federal Government was providing finance under the Medicare agreements.
It was agreed that there should be a timetable and, most particularly, as part of the Medicare agreements, that the complaints body should not affect rights that a person may have at common law. That part of the Medicare agreements is not met because of exemptions to the Freedom of Information Act and the Ombudsman Act contained in the bill. I said that widespread discussion of health care complaints-type legislation had occurred. One of my major concerns is that the philosophy behind the way in which the bill has been presented is flawed. I should like to give two examples from other Legislatures where the job has been done differently and, in my view, done very much better in terms of health rights because the bill contains a code of what health rights are.
As the philosophy of this is based around the receipt of a complaint, there is no code of behaviour by the provider of health services against which a complaint can be tested. That is a serious flaw in the legislation compared with what, for example, Queensland has done - and I will discuss the New Zealand legislation in a moment. In the Queensland Health Rights Commission Act the objectives of the Act were stated:
We are not only pleased with the Bill because it will give NSW a health complaints system which is in the interests of health consumers, we are also satisfied that Minister Phillips has listened to consumer and community groups in a very fruitful consultation exercise.
(a) to provide for oversight, review and improvement of health services by establishing an accessible, independent facility that will -
(i) preserve and promote health rights; and
(ii) receive and resolve health service complaints; and
(iii) enable users and providers to contribute to the review and improvement of health services; and
(iv) provide education and advice in relation to health rights and responsibilities and the resolution of complaints about health services, whether or not made under this Act; and
(v) assist users and providers to resolve health services complaints; and
The bill goes on to describe the Queensland commissioner's functions. These are listed in section 10 of the bill as follows:
(b) to provide for the development of a Code of Health Rights and Responsibilities;
(a) to identify and review issues arising out of health service complaints; and
(b) to suggest ways of improving health services and of preserving and increasing health rights; and
(c) to provide information, education and advice in relation to -
(i) health rights and responsibilities; and
(ii) procedures for resolving health service complaints; and
(d) to receive, assess and resolve health service complaints; and
(e) to encourage and assist users to resolve health service complaints directly with providers; and
(f) to assist providers to develop procedures to effectively resolve health service complaints; and
The Queensland bill then specifies a period of two years within which the commissioner must come back to the Minister with a code of health rights. The functions of the commissioner in New Zealand's Health Commissioner Bill 1991 are as follows:
(g) to conciliate or investigate health service complaints;
(a) As a first priority, to prepare a Code of Health Consumer's Rights:
(b) To keep the Code of Health Consumers' Rights under review, and make commendations to the Minister on any changes needed to the Code:
(c) To promote, by education and publicity, respect for and observance of health consumers' rights, and, in particular, to promote awareness, among health consumers and health care providers, of health consumers' rights and of the means by which those rights may be enforced . . .
What an excellent basis on which to judge complaints. The functions of the commissioner continue:
(e) To investigate, on complaint or on the Commissioner's own initiative, any action that is or appears to be in breach of the Code of Health Consumers' Rights, and to take such further action in respect of any such breach or alleged breach as is contemplated by the Bill.
(g) To appoint health consumer advocates, and administer the Health Consumer Advocacy Service in accordance with Part III of the Bill:
(h) To make suggestions to any person in relation to any matter that concerns the need for, or desirability of, action by that person in the interests of health consumers' rights . . .
The emphasis, which is totally different, is tipped by that legislation towards health rights. Those health rights are established by the code of health consumers' rights. We really should be looking at that kind of basis, as that is a most serious weakness in this bill. That is one of my two major reasons for advocating the need to go to a legislation committee to follow this procedure through. In the last week of this Parliament we cannot possibly deal with the kind of philosophical objection that I have to these provisions, which weaken the concept of this bill.
The Minister said that the findings of the Chelmsford royal commission essentially led to the preparation of this bill. It seems to me, and particularly to many people who have contacted me, that the recommendations of the Chelmsford royal commission have not been properly carried through into this legislation. The statement by the Chelmsford royal commission that "early intervention could have prevented the tragedy" basically has not been addressed by this bill. The royal commission's recommendation was for a very different model. A few of my colleagues will address the royal commission's recommendations in more detail later, including a professional conduct division of the
Supreme Court; combining civil compensation and private rights as part of a public regulatory and monitoring system; reliance on standards rather than peer assessment to determine whether a complaint is justified and whether breaches of codes have occurred. That is not too far away from what I was talking about earlier - an emphasis on health rights.
The royal commission recommended the lifting of secrecy provisions. That matter is not addressed in the bill - a most serious weakness in the bill. The royal commission also recommended that a periodic directions list would assist the commissioner to ensure that complaints were not overlooked. Public exposure of delays, combined with judicial control, will also ensure efficient case management. One serious weakness in the present system is the never-ending headlines about a seven-year wait for investigation of health complaints. The kind of process provided by the bill runs counter to the recommendations of the Chelmsford royal commission.
Under the process provided for in the bill the Medical Defence Union can swing into action immediately a complaint reaches the provider. Evidence can be gathered, witnesses can be approached, interviewed and even pressured, and defences can be prepared before a complainant has had a chance to draw breath. The complainant lacks the same ability to prosecute a complaint. Perhaps the Health Care Complaints Commission should be the only authority to conduct interviews. Why should the Medical Defence Union be able to do what a complainant, a patient, cannot do? In effect, I am saying, as the honourable member for East Hills said, that patients' health rights are taking second place to the rights of health providers. [Extension of time agreed to.]
The second major reason that I believe the bill should be delayed and should be considered by a legislation committee is that we know that the Ombudsman has submitted a report to the Government on the operations of the existing Complaints Unit. It is outrageous that we are debating this bill and the Government is attempting to finalise it without waiting for all members of Parliament and the public to see what the Ombudsman has recommended. In a way, it is a denial of the freedom and independence that this House should have. Because we have not seen the Ombudsman's written recommendations we must delay the finalisation of the bill until we know what they are. We have already heard the Ombudsman state that the Government has acted foolishly by failing to consult him on this proposed new legislation.
The honourable member for East Hills outlined the ways in which the consultation process was flawed. There is no doubt that some consumer representatives and community groups have approved of the bill. The Minister outlined the consensus procedure that he went through. But the process was flawed in two ways. Only some consumers were consulted. Consumers who were significant victims of health services were not. I believe they were deliberately left out. The consultation process was flawed also because people who had given approval to it and had been involved in the process did not see the final draft of the bill. That is the wrong way to consult. People in many organisations such as the Chelmsford Victims Action Group, the Medical Consumers Association and the Council of Retired Union Members Association - which includes miners, the Federated Engine Drivers and Firemen's Association of Australasia, transport unions, the Building Workers Industrial Union and the metal workers union - who will use health services frequently as they approach later life, need to be assured of their health rights. This bill does not ensure those rights for them.
The Combined Pensioners and Superannuants Association is quoted by the Minister as approving this legislation. That is not the message that is coming from the Combined Pensioners and Superannuants Association. Most frightening of all is the fact that the Association of Relatives and Friends of the Mentally Ill is quoted by the Minister as agreeing to the consultation procedure, but when it saw the final draft of the bill it let the Minister and other people know that it no longer approved of it. We need to know why those people chose to withdraw their support after they had seen the bill. The Minister might have been rolled in Cabinet on a few significant issues that led to those people no longer being satisfied with the bill.
I am concerned about the impact of clauses 36 and 37 on whistleblowers. If we are taking a health rights and consumer rights approach to complaints, whistleblowers must be protected. Arrangements in regard to whistleblowers in New South Wales are not well established, and the clause 37 provisions to gaol or fine whistleblowers run completely counter to the concept of health rights and consumer rights. It is a sledge-hammer to gaol whistleblowers. A legislation committee needs to consider how whistleblowers can be protected while still protecting the privacy of patients who are affected and who have made a complaint, if they so desire. There are many reasons that a legislation committee must examine the bill.
A parliamentary committee will be established, which is an improvement on last year's bill. The parliamentary committee will have the same powers, almost to the word, as the parliamentary committees oversighting the Independent Commission Against Corruption and the Ombudsman. However, it is important to note that the Health Care Complaints Commissioner will have much less power than the commissioner of the ICAC and the Ombudsman, both of whom are significantly more independent. One only needs to look at the provisions of the Public Sector Management Act under which the Health Care Complaints Commissioner will be appointed to realise the grave restrictions in the bill on the independence of the Health Care Complaints Commissioner. The joint parliamentary committee is no panacea.
The honourable member for Ku-ring-gai proved himself once again to be a rude and arrogant twit. In an attempt to denigrate the honourable member for
East Hills, the honourable member for Ku-ring-gai said that the honourable member for East Hills was shuffling papers and talking. At that time the honourable member for East Hills was quietly, without uttering a word to anyone, handing his notes to the attendant to give to Hansard. That is the kind of outrageous stupidity from the honourable member for Ku-ring-gai that leads Opposition members to treat him like the fool that he is.
Mr Phillips: You would not say that while he was here.
Mr MILLS: He does not have the courage to be in here; he left. Why is he not here? This is a debate.
Mr Phillips: Keep the debate on a higher plane.
Mr MILLS: I would be delighted to keep the debate on a higher plane. I will not tolerate the kind of idiocy that the honourable member for Ku-ring-gai showed in abusing, without any justification at all, the honourable member for East Hills. I want to briefly mention clause 56, which proves to be a blocking clause. That clause states that the commission may investigate a complaint that has been subject to conciliation. However, the bill provides in part 2 that a complaint that has been subject to conciliation may be investigated only if the conciliator's report contains a recommendation that the commission investigate, or if new material emerges that would cause the commission to refer the complaint for investigation in accordance with clause 23. In other words, if the conciliator does not recommend an investigation and, for instance, rejects the complaint, there is no further avenue of appeal. There is no one else to go to. That is strong justification for the independent review panel that was proposed by my colleague the Deputy Leader of the Opposition. In conclusion, I want to quote the final comments of the Sun-Herald editorial of 14th November, 1993:
(j) To report to the Minister from time to time on the need for, or desirability of, taking legislative, administrative, or other action to give protection or better protection to health consumers' rights.
. . . ominously, the proposed bill also exempts the proposed new commission from Freedom of Information requests.
Dr MACDONALD (Manly) [10.34]: I support the bill. At the same time I acknowledge that it has some shortcomings; it is not perfect. We are in the process, within this place and in society generally, of trying to develop accountability and scrutiny of the professions, but we have not yet got it right. We are moving down the path of seeking to open up the professions to scrutiny and to providing for consumers' rights. We are not necessarily going to get it perfect at the outset. Indeed, the medical complaints unit itself is far from perfect, but this bill is certainly a clear benefit and an improvement on what exists at the moment. Those improvements should be borne in mind when considering the views of those who oppose this legislation.
Those benefits have to be clearly spelled out at the outset. Some positive words should be said about this legislation, as well as acknowledging the difficulties we may have with it. It establishes a statutory commission with statutory powers. That is the genesis of this legislation. It was born out of remarks by the commissioner in the Chelmsford inquiry, Mr Justice Slattery, who said there was "a desperate need for statutory power over the commission". It establishes that and it is consistent with his request. It also allows for systems review, a concept that some people may have difficulty grappling with, but at the same time it has far-reaching effects on the profession by allowing the commissioner to recommend a review of systems - something which is currently not available under the medical complaints unit.
That point was emphasised by the representative of the AIDS Council who addressed a meeting of the Independents and consumer groups, to which I will refer in a moment. He begged the Parliament to pass this legislation. It was a plea to put this legislation in place because of that particular benefit, which is a systems review. This legislation also provides for a parliamentary committee of review. That committee can recommend that certain amendments be implemented. That parliamentary committee of review is consistent with other standing committees that relate to commissions such as the ICAC and the Ombudsman. That committee will be accessible both to the commissioner and to clients.
When considering the views of those who oppose the legislation, it must be borne in mind that it accommodates the conciliation process. That is consistent with what is occurring elsewhere in Australia and consistent with a concept of alternative dispute resolution. One feature of this legislation is that, certainly at the outset, the major political parties in this State supported it, though consumer groups were divided. That concern confronted the Independents last week, and we decided to call a meeting on 10th November to meet with as many consumer groups as possible. We met in this place along with representatives of about 40 consumer groups in an attempt to determine their concerns and to determine those who were in favour and those who were clearly against. We have been provided with lists, which have probably already been tabled and referred to in the debate. Clearly, some major groups are in support of the bill. It is worth mentioning the New South Wales Council of Social Services, which represents about 500 organisations, and other groups that are clearly major consumer groups, such as the Australian Consumers Association and the Public Interest Advocacy Centre.
An equally impressive group is opposed to the bill. The Independents met representatives from both groups last week. From those discussions a number of issues emerged. It is worth quoting from a letter I received from the Public Interest Advocacy Centre two days after the meeting. It outlines the strength of the new bill and speaks of the independence of the body, the authority of the commission, provisions
enabling anyone to make a complaint to the commission, which must give reasons for its decisions and for discontinuing a complaint, the benefits of having a parliamentary committee, and the fact that dissatisfied complainants can go to the Ombudsman.
The list of benefits is impressive. I should refer to a plea that is made at the end of the letter, which says that the centre fears that further debate will bring out the health provider lobby, particularly the doctors, and that might result in an outcome far worse than the present bill. One result from the meeting was a change of heart by some of the mental health groups, such that I received a letter dated 12th November from the Mental Health Co-ordinating Council, which said, inter alia:
This means members of the public will be unable to find out how effectively the new body is investigating their complaints about the medical profession.
I should be happy to provide that correspondence to any member who has any doubt about its veracity. At the meeting last week one of the issues that emerged was the consultation process, which is far from perfect. It is unlikely that it would ever be regarded as perfect when there is such a disparate group of interested consumers and organisations. Each group must consult with its membership, which makes it almost impossible for the groups to agree. Undoubtedly rivalries and jealously exist between the groups.
If we had to revisit the process, we could do better. The Minister will acknowledge that the development of an exposure package, consistent with what was done in the Australian Capital Territory, may have been the better way to go. One can always make those remarks with the clarity of hindsight. We learned that the consultation process was not perfect. However, I would argue with those who suggest the bill should be referred to a legislation committee. That will not resolve any of those matters.
The other reason for the division among consumer groups is that each of the organisations brings its own agenda for the bill. The goals are different, as is the model of what a health care complaints commission should be. Also, the timetables and sense of urgency will vary. For example, the Public Interest Advocacy Centre and the Australian Consumers Association come in with a very broad knowledge of consumer needs and rights and a strong legalistic emphasis. They see the benefit of getting the commission up and running. Earlier I mentioned that the AIDS Council of New South Wales made a strong plea in regard to the urgency of having a mechanism for systems review.
The Chelmsford group and the Medical Consumers Association came in with a different set of aims. Their agenda is different also. They have a strong focus on the mentally ill. The tragedy of Chelmsford is still very much a ghost for all of them, and they have a lot of unfinished business. However, I do not believe that this bill is a mechanism by which to complete that unfinished business. They appear to have different expectations arising from Mr Justice Slattery's recommendations. Indeed, during the discussions last week there was a difference of opinion as to what Mr Justice Slattery intended by his recommendations.
I do not consider that those who oppose the bill believe that it will ever be improved by future amendments. In other words, they are concerned that we get it right now, otherwise it will remain with us. That is why it is important for the parliamentary committee to be set up so that it can recommend certain amendments. It is clearly important to have a review of the legislation after three years. A case has been put for the establishment of a legislation committee. I do not support that proposal, for several reasons. The consultation process has been comprehensive, albeit not perfect. The differences among consumer groups will remain, for the reasons that I have outlined. Any delay may exacerbate the differences among those groups, and they may be worse off if they wait for some months than they are now.
Clearly the medical complaints unit needs to be replaced - and soon. First, it needs to be replaced to keep faith with Mr Justice Slattery. Second, the Ombudsman's inquiry that was initiated by Mr Landa 10 months ago is critical of the medical complaints unit. The inquiry found that the unit has management problems and difficulties with allocation of resources. For that reason we should proceed with this legislation. The commission will be oversighted by the parliamentary standing committee. At present that is not possible with the medical complaints unit. Parliament has no role in overseeing that unit. [Extension of time agreed to.]
Under the Medicare agreement the State must proceed to establish an independent, accessible complaints body. The proposed legislation committee or a parliamentary inquiry - whichever is proposed - may provide an opportunity for a number of groups to air their grievances. From my inquiries I do not anticipate or believe that it would result in major improvements or amendments. A number of specific concerns were raised at the meeting with Independent members last week. One was a suggestion that there were to be exemptions from the provisions of the Ombudsman Act. A letter has been put out through the Medical Consumers Association by a group of solicitors, who said:
. . . it is clear that the Mental Health Co-ordinating Council can now give its support to this legislation.
That is misleading, for clearly it is not the case. The Ombudsman is excluded only from investigating questions related to the conduct of a conciliator; otherwise in administrative matters the complainant and consumer have every right to go to the Ombudsman. I would support an exemption with regard to the conduct of the conciliator, because the conciliator must not feel constrained in carrying out his process. Another specific concern raised was freedom of information. I understand that the
Minister intends to deal with that matter. An aggrieved complainant can go to the Ombudsman or to the commissioner, as the bill provides, and that may or may not bring results. Certainly a complainant can appeal to the parliamentary standing committee.
On the question of freedom of information I can understand the requirement to deny patients and a person being complained about access to information. Consumer groups have focused on that issue, but if they were given freedom of information, they would be doubly disadvantaged because inevitably the professionals are stronger than the non-professionals. Freedom of information does not simply give equal access. The stronger groups will get more benefit from access under freedom of information legislation. I have spoken to the Minister for Health about the provision of the bill excluding complaint handling, investigative and reporting functions.
Yet, the present complaints unit states that once an investigation has been completed, complainants are welcome to make an application under freedom of information for access to all documents contained on a complaint file. The only documents exempt from access are those containing the name of the external consultant reviewer and the report he produced. I have already asked the Minister why we would want a commission that has less freedom of information access than that already available under the complaints unit. I understand that the Minister will take that matter on board. The other concern I had was the appointment of the commissioner. Indeed, appointment of the Ombudsman, the Commissioner of the Independent Commission Against Corruption and the Director of Public Prosecutions can be vetoed by a parliamentary committee. It is particularly important that much of the strength of this legislation will depend on having the right commissioner. We have to get it right, and Parliament must have a role in that.
The management powers of the commissioner are enormous, and one only need look at recent criticism about some of the priorities dealt with in the medical complaints unit. Indeed the question of whether the McBride inquiry really warranted the priority it was given and the expenditure involved highlights the fact that the commissioner must have wisdom in setting priorities. I would argue that the appointment of commissioner must be subject to parliamentary scrutiny. The latest form of the Medicare agreement includes a commitment on the part of each State to set up an independent accessible complaints unit. In 1987 a health services Act was passed in Victoria with the emphasis on dispute resolution. In 1991 a health rights commission was set up in Queensland with the emphasis on conciliation. South Australia has had 10 years' experience with a health services commissioner and, indeed, is moving towards establishing a health ombudsman.
Any complaint commission must provide clearly for consumers' rights, and I believe this commission will. The bill is not perfect; it may be amended. It will be reviewed at the end of three years. However, it does provide for an improvement in consumers' rights. Access to justice must clearly be allowed, and in my view the legislation does provide that. It must have an opportunity to have an impact on medical standards and on health practices. Again, the legislation does that. Finally, having been a professional for 25 years, I do not believe that the responsible health professional has anything to fear from this legislation. The irresponsible, inept professional has everything to fear because he will be brought to justice and the complaint of the client will be dealt with in a fair and reasonable way. The legislation has been around for three years. We have had the 1992 bill and now we have the 1993 bill. It has been walked over, massaged, improved, subjected to the consensus group and has had considerable amendment. It is disappointing that the previous strong political unity on this bill is being eroded. I support the bill and the amendments adopted by the Minister. I will not support this bill being referred to a legislation committee.
Mr SULLIVAN (Wollongong) [10.54]: I speak to the Health Care Complaints Bill. At the outset, I fully support the stand taken by the Opposition spokesperson on health. The honourable member for Manly raised the issue that South Australia, in particular, which has had some form of health complaints system in operation for more than a decade, is moving towards a health ombudsman. That is where we should be going without having to go through the learning phase that South Australia has been through and Victoria and Queensland are going through now. One of the objectives of the legislation is to facilitate the maintenance of standards of health services in New South Wales; the second one to which I will address my attention is to promote the rights of clients in the New South Wales health system by providing clear and easily accessible mechanisms for the resolution of complaints. I am sure honourable members have mentioned cases of medical practitioners who have been found derelict in their duty, negligent and so on. I shall not concentrate on that particular issue but on the systemic problems of our system, which this legislation does not address.
I wish to turn to the particular types of complaints that can be lodged. A complaint may be made under this Act about the professional conduct of a health practitioner relating to negligence, or a health service that affects the clinical management or care of an individual client. A complaint may be made against a health service provider. To a certain extent that is repetition. To some extent it seems to cover system-based health services. This bill is an attempt to slowly circumscribe the rights and actions that can be taken by the complaints unit or commission to address problems fundamental to our health system. I make those comments because I have a concern for and long involvement in fundamental change within the public health system. I have served for a number of years on the Wollongong Hospital board, I was the first Chairman of the Illawarra Area Health Service from 1983 to 1986 and have been involved with a number of community organisations concerned with health since that time. That views I developed during the 1980s have certainly been confirmed of late.
The Opposition is opposed to the legislation being enacted and prefers that this bill should be referred to a legislation committee. In all honesty, that is the best way to go. Given that that may not come to pass, the Opposition will try to implement certain changes. I shall concentrate on one of those changes, which can be summarised as removal of restrictions on the reporting by the commission of systemic health problems. One thing that strikes me about this bill is that the commission is to be headed by an individual who will report, all knowing, all seeing, to himself. The Opposition would like an independent review panel established to assess complaints about the functioning of the system. As it stands now one would expect that what is needed is someone such as Archibald, known as Archibald the All-Right in "Patience". For those who are familiar with Gilbert and Sullivan, Archibald was so perfect in every way that Patience could not love him because love required a sacrifice and how can one be sacrificial of oneself when the source or attention of one's affection is perfect in every way? I do not know that we will find an Archibald who will fill this role. However, I would suspect that if an Archibald is not found, we will not end up with a particularly effective health complaints commission under this Act.
Three clauses summarise the Government's position in terms of the restrictions the bill places on the reporting of systemic health care problems. Clause 79 states that the commission is subject to the control and direction of the Minister, except in respect of - and then lists assessment of complaints, et cetera. The fundamental statement is that the commission is subject to the control and direction of the Minister. The very essence of clause 79 is contained within the explanatory notes that accompany the document. I thought I was being a bit pedantic, but the Minister said exactly the same thing in his second reading speech, at page 91 of Hansard of 28th October: "The commission will be under the direction and control of the Minister for Health". In that sense the one piece of legislation that appeals to me is the relevant section in the Ombudsman Act, that is, section 25, which states:
The immunity (albeit subject to some limitations) which the Bill would provide from the application of the Freedom of Information Act and the Ombudsman Act are in my view inappropriate and should be resisted.
Consultation with responsible Minister
(1) In an investigation under this Act, the Ombudsman shall, on request by the responsible Minister, consult him on the conduct or police conduct the subject of the investigation.
(2) Before publishing a report under section 26, the Ombudsman:
(a) shall inform the responsible Minister that he proposes to publish such a report; and
That is totally different from "The commission is subject to the control and direction of the Minister". That is a fundamental weakness for eradicating systemic problems within our public health system. Section 89 is headed "Recommendations to have regard to available resources" and states:
(b) shall, on request by that Minister, consult him.
A recommendation made by the Commission in relation to a matter investigated under this Act must be made in such a way that to give effect to it:
(a) would not be beyond the resources appropriated by Parliament for the delivery of health services; or
That says a great deal about the way the commission will be conducted under the direction and control of the Minister. To pretend - and it would have to be pretence - that it is in some way an ombudsman-type organisation is nonsense. The bill's explanatory notes that accompany that particular clause read:
(b) would not be inconsistent with the way in which those resources have been allocated by the Minister and the Director-General in accordance with government policy.
That clarifies the clear restriction placed upon the functioning of the commission. Another concern relates to clause 90 of the bill. I am aware that my feelings are not shared by everyone, including members on my side of the Parliament. Clause 90 reads:
Clause 89 provides that recommendations of the Commission must have regard to available resources for the delivery of health services and the way in which those resources are allocated.
The note beneath clause 90 states:
Nothing in this Act gives the Commission power to determine or recommend general standards of clinical practice.
The explanatory note in the bill relating to clause 90 provides that the commission has no power to determine or recommend general standards of clinical practice. General standards of clinical practice are not contained within the definition section of the proposed legislation. Therefore, I presume we must rely upon common law interpretation. This is an open-ended matter. I shall quote a couple of cases that concern me. In a perfect world if everyone is seen to be doing the best he can, there is a clear, open and honest intention that if standards of clinical practice are not maintained, action will be taken. However, the record within the health system is one which could reasonably be summarised as the old boy network, which tends to look after its own.
I shall refer to two cases where I believe clinical standards in the public system of this State have not been of an acceptable standard. The first example occurred during the doctors' strike of the 1980s when the decision was taken by the doctors who were providing an emergency service that though they were on strike they would use procedures that had mainly been discarded. Rather than operating on broken limbs, pegging or screwing them, which gave very rapid recovery, patients were placed in traction. That was a cruel and outdated method when, had that same accident occurred at a time doctors were not on strike, a different procedure would have been implemented. Another area of concern relates to orthodontics, which at this moment is considered by the Illawarra Area Health Dental Service as not an essential or fundamental part of health services. It is considered to be a luxury, notwithstanding the emotional trauma young children experience when they do not receive the treatment needed. The problem will affect their bite for the rest of their lives. [Extension of time agreed to.]
I am concerned with systemic health care problems and I shall restrict myself to a number of cases that have come to my attention in the past year where it seems that the system is failing the users of the public health system of this State. I shall refer only to Christian names. Franchesca has been waiting now for two years and three months for orthodontic work. The dental service acknowledges that she needs orthodontic treatment. The Illawarra Area Health Service has developed a strategic plan for dental services, giving the highest priority to preventive programs for the young while at school. Those in need of curative treatment, for example, orthodontic treatment, have been left in a no man's land where at the last count 150 young children were waiting for orthodontic treatment. At best, 25 would receive that treatment and the rest would simply miss out. This child's father has cardiomyopathy and is in receipt of a social security income pension. There is no possibility that he can pay for that treatment. That is the public health system malfunctioning.
Stanley has waited for more than 12 months for knee replacement surgery at the Port Kembla campus of the Illawarra regional hospital. His surgeon's operating sessions have been reduced from eight a month to two a month. Stanley was extremely distressed when I saw him, experiencing difficulty walking and in sleeping at night. Who is responsible for this situation - the surgeon, the area health service or the Department of Health? I suggest that it is a systemic problem. William is a pensioner with a health benefits card and has been waiting since March 1992 for cataract surgery. He was recently informed that those on the waiting list as at October 1991 were now receiving treatment. I refer to question No. 1666, which was answered last Thursday, 11th November, by the Minister for Health, who said in his reply:
Note. While sections 89 and 90 limit the scope of a recommendation that the Commission may make, they do not limit other comment by the Commission.
Yet William has been waiting since March 1992.
Mr Phillips: Perhaps questions should be asked of health care management in the region. Maybe they should tell the patient the truth.
Mr SULLIVAN: I have written to the Minister regularly about cases such as this. If I get a reply, I get one that does not address the matters at hand. I will next raise the issue of a girl called Kezia who suffers from Ondine's curse. That is a respiratory problem and during sleep sufferers can, and do, stop breathing. In her case her parents have sought respite care at home and have approached both the Department of Community Services and the Department of Health. By consensus in the Illawarra it seems to be a matter for the area health service. The problem is that the area health service says it cannot provide the services this girl needs to enable her to stay at home with her parents during some nights of the week.
At the moment a night nurse is provided one night a week. Her parents, family and friends provide two nights' care per week, which leaves four nights a week when she has to go to Wollongong Hospital. I suggest to the Minister it indicates a system failure that that need is not being met. I move on to one other case, that of Nikki. Nikki has severe cerebral palsy and epilepsy. She underwent surgery in August 1992. The parents were very dissatisfied and distressed and referred the matter direct to the Minister for Health. Subsequently I was contacted by the parents. I will read from a letter initially sent to the General Manager of the Illawarra regional hospital at Wollongong. The criticisms the parents made are these:
The average waiting time in months for ophthalmology in the area was 3.87.
- an ineffective system for the delivery and administration of vital medications
- recently hired nursing staff who seem inexperienced with even the basics of medical care and who are not sufficiently supervised when treating patients
- nursing care that does not adhere to doctors' instructions clearly set out in case notes
- a general lack of knowledge regarding appropriate care for children with disabilities and quite often an attitude by most staff, that seemingly places children with disabilities as a low priority and as less than human
- grossly negligent post-operative care on the part of nursing staff, a paediatric registrar and, I believe, the surgeon who was ultimately responsible for case management
- inconsistent case management advice/instructions coming from the surgeon and the paediatrician involved
Of course, the letter was written to the manager of the Illawarra regional hospital at Wollongong. In none of those cases do I think it could be said that someone acted nastily and failed to deliver. I suspect that in each case there may have been one individual, who could be named, who did not do one thing or another. But when one puts all those failings together, no matter how small, into a total package, it is the system that has failed. Under this legislation the system will escape close scrutiny once again. I believe the only answer is for the matter to be referred to a parliamentary committee so that we can have put in place a proper health ombudsman Act. Such an Act would allow people to raise these matters in order to have them addressed. It would require this State Government to provide the service that a community and country at the latter end of the twentieth century should expect as a standard feature of its way of life.
Mr GIBSON (Londonderry) [11.14]: Before I speak to this legislation I should like to acknowledge the job done by the Minister for Health. Although my ideology is totally different from his, I acknowledge that he is a fairly hard-working person who tries to do the right thing. That does not mean that I agree with all the decisions that are made because nine times out of 10 I do not. I am very disappointed and concerned about the quality of the legislation. It is being put through hurriedly, although it has been on the table for a long time. There is no doubt that the legislation is being put forward tonight before the Ombudsman's report is made public.
Government members who have spoken to the bill have referred to consultation. The Minister spoke at great length a few weeks ago about the consultation that had taken place on this bill. To my way of thinking that consultation has been very poor. The only groups that were consulted and the only groups that seem to agree with the bill are those that are government funded. That shows that there has not been representation from the New South Wales wider community. Many members from this side of the House have mentioned various groups that oppose the legislation. I have a two-page list comprising many medical and consumer groups that totally oppose the bill. I have heard reference to half a million people being opposed to it, but I would say that the groups represented in this list would account for almost a million people. The list includes the United Action Group for Retired Persons, covering 300,000 people.
I note that the Minister has a list also, and perhaps we should compare lists. The Combined Pensioners Association represents 30,000 people. The Association of Self Help Organisations represents 50,000 people, and the list includes all forms of medical groups dealing with issues from alcohol right through to motor neurone disease and so forth. It includes organisations such as the Injured Persons Association, not to mention medical consumer associations, mental illness groups, nervous disorder societies, and the list goes on and on. The views of those groups cannot be denied. We have heard about the consultation that this great Government has carried out.
Mr Jeffery: It is a great Government.
Mr GIBSON: It is not a great Government. When I realise the consultation that has not taken place, I have cause for concern. Some Opposition members have referred to the Ombudsman. The editorial in the Sun-Herald as late as last Sunday said:
- a lack of quality assurance standards, which necessitates my considerable efforts in order to bring these events to your attention
That is an indictment of the legislation. It has been mentioned and it is worth mentioning again that the Minister spoke glowingly, publicly and in this Chamber, about the Association of Relatives and Friends of the Mentally Ill. I have a letter dated 20th November in which they state categorically that they do not support the bill and request that the bill be withheld until the results of a parliamentary inquiry are made available. That is an indictment of the legislation. For the Minister to say in this Chamber that he has widespread support is a complete joke. I think this is wrong legislation and that it is dangerous so far as New South Wales consumers are concerned. This legislation is not for consumers' rights; it is to protect the complaints unit as it now stands. It is also designed to take the pressure away from the Minister. The Minister passes on his responsibility to the commissioner, and that suits the Minister down to the ground. This Health Care Complaints Bill will virtually legalise what happened at Chelmsford. This has been mentioned a few times.
Mr Phillips: That is a disgrace.
Mr GIBSON: No, it is not. Sit there and listen and you might learn something. Fifty people died at Chelmsford. Thousands of people were hurt at Chelmsford and hundreds of thousands of people were disappointed and distressed by what happened there. I will tell the House more about Chelmsford. There was no respect given to those people at all. The Government did not even consult them.
Mr Phillips: Nonsense.
Mr GIBSON: It is not nonsense, and the Minister knows it.
Mr Phillips: That is a lie.
Mr GIBSON: The Minister puts his job on the line if he thinks it is a lie. He knows they were not consulted. It is a total disgrace. That group should have been the first group consulted, but they were not consulted. At least the Hon. P. E. J. Collins was responsible for the royal commission. The Government spent $15 million of the taxpayers' money. What happened with Justice Slattery? Absolutely nothing. Since then the Government has done absolutely nothing. The people of Chelmsford died in vain so far as this legislation is concerned because it will not help anyone who may be in the same position. The Chelmsford royal commission recommended that a royal commission be held into the medical complaints unit, but that has never happened. I have called for an inquiry into the medical complaints unit many times inside and outside this Chamber, but it has never happened.
Mr Phillips: You praised them today.
Mr GIBSON: I am not praising them. Let me give honourable members a little more history. How will this legislation help the Roberts family, who have been awaiting results from the medical complaints unit since 1990? How will it help the Formosa family, who have been awaiting the results of an inquiry that began in 1989? How will it help the Silva family, who have been awaiting the results of an inquiry since 1989? It will not help them at all, and the Minister knows it. Since 1989 the Atha family has been awaiting the results of their inquiry. The list goes on and on.
Some time ago I referred two matters to the complaints unit, and I think they are worthy of mention again. One matter involved a seven-year-old boy who lay in a public hospital bed in Sydney's west for three days in terrible pain. At the end of three days, his parents were concerned that he was going to die. Eventually, and against the hospital's wishes, the parents removed the little boy from the hospital and admitted him to another public hospital. He was not in that hospital for 30 minutes before doctors diagnosed that he had a twisted testicle. The doctors operated, but it was too late to save it. He lost a testicle. I know why he lost it, as does everyone else, because of incompetence by the doctors at the first hospital who examined him. That matter went to the medical complaints unit. In all fairness to the unit,
the matter was investigated. It came back to me and gave me an answer: "Everything is okay. No fault of anyone. Thanks for your letter". It took three years for the unit to get back to me.
The second case is even better. A woman in my electorate by the name of Cammille Hurst underwent an operation at the Minchinbury private hospital. Following the operation she was extremely ill and has been ill ever since. Before she was discharged, the wound burst and she all but died. However, hospital staff could not work out why she was in so much pain and why she had so much infection. After many months of endeavouring to recover from the operation she came to see me. She told me the story and I thought it worth while to refer the matter to the complaints unit for investigation. In all fairness to the medical complaints unit, it investigated the case, told me there was nothing wrong, no doctors had anything to answer, everything at the hospital was okay and it was just one of those things that could not be explained.
I was not convinced. Under freedom of information I asked for the theatre documents relating to this woman from Minchinbury private hospital. I would not be able to do that under this legislation. The first document I obtained said in black and white that after the operation five swabs were missing. There are only two conclusions that one can draw. First, that that lady was closed up with five swabs still inside her. I would say that, because of the massive infection she suffered and the condition that she is in today, that is probably what happened. The second explanation is that there was a simple miscalculation of the number of swabs. However, the medical complaints unit - and this is the unit the Government wants to turn into a commission - investigated that case. It took 37 months - three years and one month - to investigate it. I cannot accept the findings of the medical complaints unit. This document was not even looked at by the medical complaints unit, yet it had 37 months of investigation in which to examine it. That is the unit that this Minister wants to turn into a commission.
On further investigation - and this is very interesting - the incomplete files from the medical complaints unit are as follows: 1986, 1 file; 1987, 16 files; 1988, 36 files; 1989, 101 files; 1990, 261 files; 1991, 551 files; 1992, 1,044 files; totalling 2,010 incomplete files under investigation by the unit that the Government wants to turn into a commission. On 14th July, 1993, at the first open morning of the Medical Consumers Association, Merrilyn Walton, the director and guest speaker, opened proceedings by noting that for the past two years the complaints unit had focused on talking to providers, mainly to get them to understand what the unit was about. The 1990 annual report, which she presented, is the latest report the unit has produced. She made a flippant comment that the unit intended to produce an annual report for 1992. [Extension of time agreed to.]
This is the unit the Government wants to turn into a commission. It is the most incompetent unit of any State Government. We need a better way, but this is not the answer. Honourable members know that the tragedy of Chelmsford could have been prevented, but this bill will do nothing to prevent what happened at Chelmsford recurring. The Minister for Health can shirk his responsibilities to the people of New South Wales by handing complaints about the health system to a statutory body, controlled by a single bureaucrat with unlimited discretion to decline to act on any complaint, and there are no effective appeal mechanisms. The Minister knows that and so do I.
The bill stipulates prison sentences of six months and or $1,000 fines should any complainant or person reveal any information relating to an investigation by the commission. That is a total joke! The bill also provides for $1,000 fines for revealing information from a conciliation process. This is the worst deal to be given to consumers since the Indians sold Manhattan, and I kid you not. This Government spent $15 million on the royal commission. What has this Government done since the royal commission? Bearing in mind that the Government spent $15 million to find out what it should be doing, let us see how many of the recommendations of Justice Slattery have been carried out?
What has the Government done about establishing the professional conduct division of the Supreme Court that Justice Slattery recommended? Nothing has ever been heard of it and the bill says nothing about it. Professional standards across disciplines was a great idea. Instead of doctors investigating doctors, or police officers investigating police officers, what happened to that idea from Justice Slattery? It is not even mentioned in the bill. What about the standards made clear in advance so that professionals will know what standards are applicable to them? Nothing in the bill relates to them. What about what Justice Slattery said about combining civil compensation and private rights as part of public regulating and monitoring systems? There is nothing in the bill to deal with any of that.
Nothing in the bill addresses multipurpose hearings to save money and time or reliance on standards rather than on peers - and that is exactly what the Government is reverting to with this legislation: one commissioner who will be appointed for 10 years. It is a total joke! What about regulating and monitoring through the civil jurisdiction of the court? What about Mr Justice Slattery's recommendation to lift the secrecy provisions? The Government wants to take away the right of people to get information under freedom of information. What about what Justice Slattery said about access to databases or about a statutory authority independent of the Department of Health? He also mentioned that provision should be made to examine private complaints. Nothing has been done about that. What about continuing education? It has been overlooked. Optional conciliation has been overlooked. Optional privilege and confidentiality has gone by the board. Nothing in the bill suggests that anything has been done about liaison with the coroners. The Government has spent $15 million of taxpayers' money. What did the Government buy for
it? It bought absolutely nothing. I will finish by quoting from a letter from Greg and Dianne Split from East Hills. In the letter they said:
Mr Landa has accused the State Government of acting foolishly by failing to consult him about the proposed health care complaints legislation.
This is one of hundreds of letters I have received. I have no doubt that other members from this side of the House and Government members have also received such letters. The letter continued:
We are writing to you with our concerns regarding the proposed New South Wales Health Care Bill.
The letter goes on to talk about what happened at the hospital and about what the hospital did. The part of the letter I want to read is this:
This bill does not in any way address problems which my husband and I experienced following a complaint regarding the treatment of our son, Aaron, now aged 2 years. Aaron spent the first 9 months of his life in Camperdown Children's Hospital after being diagnosed with a heart tumour - a very rare condition even worldwide. Aaron suffered life threatening infections as a result of neglect and traumatic procedures.
We then lodged an official complaint with the Complaints Unit through out local member of Parliament, but after six months we have not even received any progress report. This is most disturbing as we have learned of other similar complaints lodged during the period our son was hospitalised and after which have been in the hands of the Complaints Unit for more than 2 years without yet being resolved . . .
That is exactly what they will have to do under the Government's bill. The letter continues:
We feel after this experience that ordinary people - particularly where serious complaints are involved - should not be left to argue medical standards.
This surely is the responsibility of the government to maintain medical standards and minimise medical malpractice in our hospitals.
The proposed bill encourages conciliation by establishing a Conciliation Registry, which will leave people to their own means to argue their complaints with providers. This is a grave concern to us and should be of major concern to our legislators representing the people of New South Wales.
Dianne Split concluded the letter by saying:
The bill also includes a summary clause for the dismissal of complaints without provisions for appeal to an independent body to review the Commission's decisions.
We as parents of a little baby boy, who almost died through medical malpractice are terrified at the possibility of this bill becoming the law.
Dianne Split decided to sit down and write a letter. It is a genuine case, like most of the other cases. The bill will not help people like Mrs Split and her husband or Camille Hurst and everyone else who has legitimate complaints It will not help them one iota. Amendments will be moved, and I hope the House will support them.
Mr SCULLY (Smithfield) [11.32]: I speak to the Health Care Complaints Bill. The bill is important legislation that will cement into place a form of accountability by the providers of health care to New South Wales citizens. I welcome that, as I welcomed the introduction of the health care complaints unit into the Department of Health. The bill deals with the culture of those who wish to lodge complaints against health care providers. I congratulate the Minister for implementing a parliamentary committee, which will work reasonably well. I am a member of the Committee on the Office of the Ombudsman, and that committee has worked reasonably well. In speaking to this bill, I want to put one or two case examples on the record. They deal with my constituents.
The first case relates to Mr Leo Kalas, whose wife died aged 27 in late 1991. After visiting more than one doctor and more than two hospitals, she was told she was suffering from food poisoning. She eventually died from a severe brain haemorrhage. I lodged a complaint against a number of doctors and a number of hospitals. I will not go into the substance of the complaint because it is detailed and complicated, but I am concerned about the inordinate delay in dealing with the matter. After two years, and many letters and many telephone calls from me and my constituent to the complaints unit, we have received constant explanations that it is a complicated inquiry and we should just be patient. I am told that the status of the complaint today, a little over two years after it was made, is that additional information is needed from Fairfield hospital. It is pathetic!
My constituent is a young man; he is not yet 30 years of age. He went through extreme bereavement and grief and continues to do so. In some cases part of the grieving and bereavement process when a close relative passes away may relate to the processing of a complaint by the complaints unit. How can I say to that young man, "You have got to get on with your life. Your wife is dead, get on with life", when this matter is still hanging in the air two years down the track. He cannot. It is totally unacceptable. I want to refer also to the case of Mr and Mrs Watts. Mrs Watts had a baby boy at Fairfield hospital in July 1992. That baby died as a result of intussusception, which, I understand, is a twisting of the bowel. I look to the honourable member for Manly; I think that is the simple terminology. It is not an uncommon thing. I am told that if it is detected early, it is not fatal. In this case it was not detected and as a result of what I believe was, at the very least, slack treatment by a paediatrician and the nursing staff, it went undetected and the baby died. At worst, it was gross dereliction of duty.
I raised the matter with the complaints unit on 1st September, 1992. Guess what? The complaint has not been resolved. In the meantime it has become bogged down in a quagmire of administrivia. It seems to me that the complaints unit loves paperwork. It loves writing letters. It loves receiving replies. It likes writing more letters. It likes sending out questionnaires. Goodness knows what it does! I assure the House that these people went through as much grief and bereavement as Mr Kalas. While they were waiting for the complaint to be dealt with Mrs Watts had another baby. That baby is now four months old. I do not think it is good enough when people have to wait that long for their complaint to be dealt with.
Why does the honourable member for Oxley not listen? Surely he has constituents who have brought to his attention matters they want to bring before the complaints unit. I have had a look through the glossy annual report issued a day or so ago by the complaints unit. The number of complaints received in 1992-93 appears to be 1,738. Of that number, 20 per cent have been declined, 3 per cent have been substantiated, 12 per cent have been sent to conciliation, and an inordinate 60 per cent are under investigation. One should compare those figures with the figures relating to complaints in 1991-92. In that year the number was 1,700. Of that 1,700 complaints, 25 per cent were declined, 8 per cent were substantiated, 21 per cent were conciliated and 27 per cent are under investigation. This report contains pages of claims about what a wonderful job the complaints unit is doing, but it contains not one apology to the people of New South Wales or to the people who have bought matters to the attention of the unit. The report is merely self-aggrandisement about what a wonderful job the unit is doing.
Member after member of my party has told me about a large number of cases before the complaints unit which have been inordinately delayed. I would have thought that an annual report would have included an explanation of the dramatic difference between the 60 per cent of cases under investigation and the lower number of cases in earlier years. There is no doubt that investigations simply take too long. The problem is that the complaints unit has no teeth. I ask the Minister to go through the report and explain to us why there have been these inordinate delays. What compulsion is there on medical officers to answer questions? What requirement is there for them to give information? There is no compulsion and no requirement. They go to the Medical Defence Union and say, "We have a letter from the complaints unit". The Medical Defence Union then drafts a response which is non-committal. All they are worried about is disciplinary action - not getting to the truth of the matter.
There is no reason why suitable amendments could not be made to the Health Care Complaints Bill to introduce some form of compulsion. A few provisions in the bill should be brought to the attention of the House. I believe that clause 89 is a dreadful rort. If Government members believe that it is not, I suggest they should read it. It is one of the most disgraceful, sneaky, administrative exercises that I have ever seen. Clause 89 seeks to curtail the ability of the commission to make any recommendation which will allegedly be "beyond the resources appropriated by Parliament for the delivery of health services." This means that the commission will not be able to recommend anything, because the Minister will be able to say, "Any recommendation dealing with systemic problems cannot be dealt with because it is beyond the resources appropriated by Parliament." That is not appropriate. The Opposition will be seeking to have that provision removed.
I want to refer to a matter concerning my mother, who died of cancer. Two months after she passed away my father discovered, after a considerable amount of research, that the drug she had been given for chemotherapy worked only in one out of 100 cases of people suffering from the cancer from which my mother was suffering. I wanted to take up the complaint but, because of considerable pressure from my father, I did not. Having been the member for Smithfield for three and a half years, and having taken up matters with the complaints unit, I am not satisfied that that unit would have been able to deal with a complaint of that nature. It would not have been able, in a timely or diligent manner, to deal with such a complaint. These are the sorts of cases of which I have had experience. I have no confidence in the complaints unit at the moment. Some of my colleagues may have confidence in the current director of the unit, but I want some explanations as to why complaints are not being dealt with diligently and in a timely fashion. We do not need glossy annual reports that give us a warm, inner glow; we need answers.
Mr PHILLIPS (Miranda - Minister for Health) [11.44], in reply: I thank the Deputy Leader of the Opposition and the honourable members for Albury, East Hills, Ku-ring-gai, Wallsend, Manly, Wollongong, Londonderry and Smithfield for participating in debate on the Health Care Complaints Bill. The quality of their contributions varied dramatically. I was concerned about the lack of understanding of the bill by a number of honourable members, and I will deal with a number of the matters raised because I believe this bill is important. I need to deal with the issues raised by honourable members, to state whether they are right and to establish whether they will be addressed.
The investigation of complaints concerning treatment and care provided by health practitioners is no easy task - a matter referred to by the Deputy Leader of the Opposition in his contribution to the debate - particularly when the body responsible for investigation is without statutory powers. Acting Justice Slattery, in his report on the Royal Commission Into Deep Sleep Therapy, commended the complaints unit on its success in investigating and prosecuting in the absence of a legislative base. Public confidence in the present health complaints system, coupled with the need to properly delineate the responsibilities of the complaints unit, the New South Wales Department of Health, health professional registration boards and the Minister for Health in this system, demand that the respective roles of those bodies be formalised in legislation.
The Health Care Complaints Bill provides for the establishment of a Health Care Complaints Commission and a separate health conciliation registry. The commission will primarily be responsible for the investigation and prosecution of complaints relating to the clinical management and care of health consumers in New South Wales. It will also be responsible for investigating complaints raised about the delivery of health care directly affecting the
clinical management and care of clients. In order to ensure that the commission is able to fulfil its responsibility for the investigation of serious complaints the commission has been provided with powers of entry, search and seizure. These powers will be exercised only with the consent of the owner or occupier of the premises in question, or under the authority of a search warrant.
In addition, the commission will be provided with the power to prosecute complaints relating to registered health practitioners before the appropriate professional standards committees or tribunals. The bill also formally establishes conciliation as a new method for resolving minor complaints about health care, while the decision about which complaints will be referred for conciliation is to rest with the commission. In consultation with the appropriate registration board and with the consent of the parties, responsibility for organising conciliation will rest with the health conciliation registry. A careful reading of the final report of the Royal Commission into Deep Sleep Therapy will show that the bill adopts many of its recommendations concerning the complaints unit, most notably those concerning the need to establish the complaints unit as an independent body and to define its powers by way of statute. That was the main recommendation of the royal commission regarding the complaints unit. That was the reason this bill was processed and introduced.
That does not mean that all the royal commission's recommendations have been accepted. For example, the royal commission made recommendations about the complaints unit and a complaints mechanism for mental health professionals. The department believes - and I support the view - that there should be one body to investigate and prosecute complaints concerning the treatment and care of individual clients. I also support the view that it is inappropriate for an investigation and prosecutorial body to be governed by a council or a board. It does not happen elsewhere. I am sure that all honourable members are aware that the bill presently being discussed has changed substantially from that tabled at this time last year. I reiterate my thanks to the Public Interest Advocacy Centre for its assistance in drawing together the views of consumer groups on the 1992 bill, as well as variations to that bill. I understand this was a most successful method of obtaining the input of community groups within a short time frame on what is clearly a complex issue.
The Health Care Complaints Bill is a watershed in the handling of health complaints in New South Wales and Australia. With the establishment of the health care complaints commission consumers can be confident that any complaint they have about health services will be dealt with by a body independent of the New South Wales Department of Health, and the professional bodies responsible. I am confident that, once commenced, the Health Care Complaints Bill will be embraced by health professionals and consumer organisations alike.
Let me come to the particular issues raised. First of all, the Deputy Leader of the Opposition made the suggestion that the bill should be referred to a legislation review committee. I do not know how long honourable members want to spend debating this bill and I do not know how perfect they feel they can make it. I do not know how on earth there can be 100 per cent agreement on such a complex issue, with such a variety of views that cross the whole community. I have never pretended to be able to get 100 per cent agreement, because that is impractical and impossible. There has to be a process to get something in place; we have to then make it work; then review it and correct it in order to fine-tune it.
That is what happened with the Mental Health Act introduced in this State by the Government. It has worked very sensibly and that is what will happen with this bill. It does not matter what bill the Government finally comes up with; it can be taken to a legislation review committee and that committee will be totally divided about the issues, and would have to make recommendations. One could come up with a bill but, until that bill is tested in the field, it will not be perfect. That is the reality. The Government cannot come up with a perfect bill. As the honourable member for Manly asked: Are we moving forward? We are in a developmental path and we will keep moving forward.
This bill has been three years in the making. An enormous number of people, both within the department and within consumer groups, professional boards, professional associations and the union movement have spent hours and hours and hours mulling over how to approach this problem and the various issues related to it. It has been subjected to intensive and massive consultation. No one can doubt that. Just how broad do honourable members want the consultation? Consultation does not mean 100 per cent agreement. That seems to be the impression people have gained, that consulting means saying, "What is your view? Yes, I will do it". It does not work like that. Consultation on a very complex issue, across professions and consumer groups, is about trying to find the fair position for both parties from which to move forward.
In March of this year the Government wrote to 70 groups - and here is the list - calling for submissions. It analysed those submissions and set up a consensus group through the Public Interest Advocacy Council - PIAC - a body independent of government. It was felt that the most appropriate way was to try to get the issues together and get an arm's-length group to work through them and come up with a sensible proposal. That is what has been occurring for months. Honourable members should have a look at some of the groups. It is important that the Government dispel the nonsense about lack of consultation. The groups that are supporting the bill are groups such as the Australian Consumers Association. The honourable member for Londonderry slighted that group by including it in the groups funded by the Government. That group has as
one of its policies never to accept a dollar from any government. It wrote to the Government and - to put aside the nonsense about phone calls - said:
There has been a great deal of public criticism over the bill and accordingly I would be grateful for your response . . .
The letter says at the end:
The NSW Health Care Complaints Bill has been tabled in Parliament and it spells good news for NSW consumers.
The list goes on: the Council for Intellectual Disability; the Council on the Ageing; the Public Interest Advocacy Centre; the AIDS Council of New South Wales - ACON - which has a tremendous vested interest in this issue on behalf of its customers and patients. It says in its letter:
On the whole, we believe the Bill deserves bipartisan and community support.
The letter concludes:
The AIDS Council today called on all parties in Parliament to expedite debate and passage of the Health Complaints Bill due for debate next week. People with HIV-AIDS simply cannot afford further delays in establishing the complaints commission proposed in the bill.
That is the appeal that has come from ACON. The Mental Health Co-ordinating Council Inc., the Australian Medical Association, the Medical Services Committee, the Nurses Association, the Council of Social Service of New South Wales, the disability safeguards coalition, the consumer advisory committee to the complaints unit, the New South Wales Council for Intellectual Disability, the Network of Alcohol and Other Drug Agencies, the Australian Association for the Welfare of Child Health - the list goes on and on.
One of the things that concerned me was the list that was trotted out by the Opposition. I have a copy of the list, because it has been distributed quite widely. These are the groups opposing health care complaints, making up, the Opposition says, half a million people. The first group of 300,000 it lists on the letter is the United Action Group for Retired Persons. There is the Retired Communication Workers Union, the Justice for Veterans Association, retired miners, the retired Federated Engine Drivers and Firemen's Association of Australasia, the retired members of the Liquor Hospitality and Miscellaneous Workers Union, the retired members of the Australian Railway Union - the retired this and the retired that. What concerned me about this particular issue, in terms of the people who are opposed to the bill, is that there is no doubt in my mind - and I think it is a most unfortunate part of this process - that there is a small group which, in the total picture of things, is determined to do whatever is necessary to totally undermine the process and kill it.
Honourable members know that is a good political process. If you cannot attack the substance, attack the process. That is what this is all about. That is what referral to a legislation review committee is all about. It is about giving that small body time to go out and create fear and worry among groups, as they have already done among the elderly, and to lie about what is proposed in the bill and what it will do. I do not think that is acceptable. I make a further point about this consultation. New Zealand was used as an example by the honourable member for Wallsend, I think it was, who said it was a tremendous example of what we should use. Three to four years ago New Zealand referred its complaints proposal to a legislative review committee. The legislation has been with that committee for three to four years and is still sitting there. It never looks like seeing the light of day; it is a very complex issue on which many people have very differing views because, like our legislation, it is venturing into very new territory.
I have no qualms about the fact that we have consulted widely and for a long time. The bill came out at the end of 1992. Concern was shown and it was withdrawn. Groups were written to and consulted, and those who wished came forward. We spoke to the Independents and the Opposition and adopted many recommendations from that process in order to make the bill not only better but as bipartisan as possible, because it is essential, if there is to be a good process, that the largest group possible supports it on a bipartisan basis to enable the bill to move forward.
This Government rejects any proposal about a legislative review committee, because that process would create unnecessary delay. It cannot improve the result, because the issue is divisive and complex and is likely to disappear down the hole for a long time. It will not improve the bill and will not test the bill, which is the next step to which we have to go. Another important reason that the Government will not support referring the bill to a legislative review committee is that people have spent an enormous amount of time in preparing the bill for introduction to the House. If more time is consumed over subsequent months trying to keep this bill on track, that will be unfair to the people who have worked hard on this job. We should go forward, and that is the next step we must take.
The honourable member for East Hills raised the question of the Ombudsman's report. Unfortunately, that report, which has landed on my desk, has noted across the front of it that it is not to be shown to anyone, and not to be discussed with anyone outside, because it is a draft report. That is not my fault; those are the requirements of the Ombudsman Act, and the Ombudsman sent the report to me. It is also unfortunate that the contents of part of that report with a particular spin on it reached the media at least a week to two weeks before it hit my desk. I was advised by a member of this House on the day on which it was going to hit my desk that it would be hitting my desk. I do not know how that happens. I find it totally undesirable with respect to a report from the Ombudsman.
The only thing I can do to fulfil my obligations under the Ombudsman Act, and the Ombudsman's requirement, is to meet with him and discuss his recommendations before a final report is issued. I
assure the House that that report, which took 10 months to produce, refers to the management process and the way things are managed through it. Its recommendations in no way have any impact on the creation of the complaints commission. I assure honourable members that all information contained in the Ombudsman's report will be used in terms of the way the new complaints commission is structured and goes about its work. That again relates to moving forward. That is what I am talking about, and I cannot say any more than that.
The honourable member for East Hills said at the end of his speech that in five years I would be saying the bureaucracy was the reason we got it wrong, and I should have looked more closely at the bill. I have spent an enormous amount of time in consultations on the bill, both within and without the department, including meetings with the Chelmsford Victims Action Group some time ago. Honourable members will not have to wait five years. Those who read the bill will see that it is to be reviewed within three years and that a committee, to be established in a year or two, will have a year in which to review it. At the end of the third year it will have reviewed the operation of the bill and made recommendations. I do not pretend I am going to get it 100 per cent right, so a mechanism has been put in place to look at its working and appropriately amend it at the end of the day.
The honourable member for Wallsend spoke about the Medicare agreement, and read out the requirements of the Medicare agreement. That is an important part of this bill. The bill fulfils every requirement of the Medicare agreement. Every requirement that the honourable member for Wallsend read out is fulfilled in the bill. He also said the Medicare agreement should not affect the rights of people at common law. It does not change the rights of people at common law. In fact, he then mistakenly said that leaving out the freedom of information part of the bill has an impact on the common law rights. I do not have a great understanding of law, but even an accounting manager knows that FOI is not common law; it is the statutory right of individuals to obtain information. Let us make sure we get our facts right when we are handling this bill.
The honourable member for Wallsend also spoke about the inclusion of a code of behaviour. This is the very subject being managed under the Medicare agreement through the development of a patients' charter of rights. Detail of clinical practice standards are under constant review by the various colleges and various groups of practitioners. That is very important. The important part of the Medicare agreement and codes of behaviour is that the charter of patients' rights is to be negotiated and agreed to between the New South Wales Government and the Commonwealth. That is in process at the moment and is separate from the requirements of the complaints commission and of the Medicare requirements regarding this bill. This Government and I as Minister strongly support the principle of a patients' charter and we will continue to develop that charter.
I was asked by the honourable member for Wallsend to give an indication of time. He will not have to wait long. The honourable member for Wallsend and the honourable member for Londonderry spoke about the Chelmsford findings, on which I have already commented. One of the prime groups which constantly says it has not been consulted - and the honourable member for Londonderry said so also - is the Chelmsford Victims Action Group. That is not true. After the 1992 bill was tabled and concerns were expressed I met with the Chelmsford Victims Action Group and listened to their concerns. They then wrote to me and to the department listing their concerns. Those concerns were responded to. The Public Interest Advocacy Centre wanted to involve the Chelmsford Victims Action Group in the consultation process, but the suggestion was rejected.
The Chelmsford Victims Action Group did not want to be part of that process. I do not know what else the Government can do except ask people to be involved and write submissions. In the past some of the concerns raised have been agreed to but not those resulting from reading between the lines. I do not agree they are there. Consultation is not about agreeing with everything that is put forward. I am sure the Chelmsford Victims Action Group will monitor the new commission over the next two to three years and it will have another committee to which it can make representations on whether or not it is working.
The honourable member for Wallsend raised the issue of whistleblowers. I thought he was talking about the old bill. At least the honourable member for Londonderry was referring to the 1992 bill and not the bill currently before the house. Under the whistleblower clause it will be an offence for a person to threaten, intimidate, induce or persuade another person not to make a complaint, or not to proceed with a complaint, or not to assist the commission or a registration authority in its dealings with a complaint. It will also be an offence to refuse to employ or to dismiss a person because the person intends to make or has made a complaint, or is assisting the commission in its dealings with a complaint.
Further, there are no fines - another furphy that has been raised - imposed on individual complainants who disclose information. The only offence is in clause 37, which imposes a penalty where an authorised person discloses information obtained under the special investigative powers of the commission. This will ensure that officers of the commission will be bound not to release information they obtain, such as personal or distressing details of a complainant's medical condition. Obviously parties must be protected from that information being made public. I have no problem with that.
The honourable member for Manly has it right. He spoke about moving down the pathway to getting this new course right. It may not be perfect in the eyes of some people. As I said, I do not pretend to be able to get it 100 per cent right, but I believe we
are on the right track and we should continue to move forward. I take this opportunity to thank the honourable member for Manly for his professional approach to consulting the Government about amendments that have been brought to his attention, amendments that have been included in the bill, and additional amendments that I will move in Committee. The same offer was made to Opposition members but over the past fortnight they have not come forward with any recommendations for inclusion in the bill. That one side decides not to consult properly makes it difficult to move forward sensibly.
One of the issues raised by the honourable member for Wollongong was that the commission was subject to the control and direction of the Minister. Clearly, the independence of the commission is established under clauses 74 and 79. Clause 74 constitutes the Health Care Complaints Commission as a body corporate and provides that it be a statutory body representing the Crown. Clause 79 provides that although the commission is generally subject to the control and direction of the Minister, the Minister cannot direct the commission in relation to the assessment of a complaint, the investigation of a complaint, the prosecution of disciplinary action against the person, the terms of any recommendations of the commission or the contents of a report of the commission. Those are some of the items. In addition a parliamentary committee will oversee the workings of the commission. The commission will be required to report to the Parliament annually. it will have the ability to report separately on a matter of concern to the Parliament if it so desires, and the list goes on.
Mr Gibson: Can you appeal to the committee?
Mr PHILLIPS: What are you talking about?
Mr SPEAKER: Order! I call the honourable member for Londonderry to order.
Mr PHILLIPS: I found the question of the ability of the complaints unit to determine clinical standards confusing. One of the problems is that a whole group of people are trying to make the bill do too much, trying to make it bigger and broader and encompass many possibilities, one of which is the issue of clinical standards. The Deputy Leader of the Opposition knows the difficulties of pursuing the issue of clinical standards. A whole raft of colleges and processes are going down the path of resolving clinical standards. If a complaints commissioner or a separate unit is required to gather or garner medical advice to determine clinical standards it will disappear down a hole for the rest of its life. The Labor Party also has conflicting opinions about that issue. During debate on this bill one member said that the complaints unit should determine clinical standards and another member said that it should not determine them. I believe that the complaints unit should not determine clinical standards.
Another issue raised was systemic problems. This has been an important addition to the bill. The bill provides that if the complaints commissioner finds or determines that there are systemic problems, he can write to the department and advise it of his concerns. If he is not happy with the department's action or response - and the honourable member for Londonderry should listen because he made significant noise but knew least about the contents of this bill - the complaints commissioner can then advise the Minister of his concerns. If the complaints commissioner is unhappy about the Minister, he can write to the Parliament. That is an important step forward in the systemic control process.
Another matter that I found disturbing was the attack on the complaints unit by the honourable member for Londonderry, which was in total conflict with the statements of the Deputy Leader of the Opposition, who praised the work of the complaints unit. Most disturbing to me in the past couple of years is the way in which the complaints unit has been most unfairly and unnecessarily maligned. As the royal commission indicated, as the Deputy Leader of the Opposition indicated and as I will clearly indicate, the complaints unit, which was established in 1983, has done an excellent job as a pathfinder. In that time and in a most difficult climate it has achieved an enormous amount and the people associated with the complaints unit, Merrilyn Walton and her team, should be congratulated on the work they have done over many years.
This new step is a way forward to further improving the handling of health care complaints in New South Wales. I am sure that further action will be taken in the future as we learn more about how to improve this process. I shall deal now with the foreshadowed amendments to the bill. I thank the Independent members - the honourable member for Manly, the honourable member for Bligh and the honourable member for South Coast - for the way they have consulted. The Government will accept some of the proposed amendments and oppose others. The amendments that the Government will move relate to the powers to veto the appointment of a commissioner.
This matter was brought to my attention by the honourable member for Manly and will bring the Health Care Complaints Commission into line with the Ombudsman and the ICAC in that a committee of the Parliament will have the power to veto the appointment of the complaints commissioner. The amendment also will introduce further accountability. The committee of the Parliament will have a power of veto over an appointee to the position if it is dissatisfied with a specific appointment. The Government will be happy to accept that amendment. Another amendment, which arose from the consultation process, relates to freedom of information. The honourable member for Manly made strong recommendations about this, as did many other people.
The Government will move an amendment that will provide access to freedom of information after investigations have been completed, as parties must be protected during an investigation. Another
amendment that will be moved by the honourable member for Bligh will incorporate a code of practice in the regulations. The Government will accept that amendment, which will mean that the commissioner must consult with the community and the organisations involved to arrive at a code of practice for the complaints commission and then put that code into place. That is an excellent amendment.
The Government will oppose amendments that would affect the independent review panel. When a complaint is lodged and the complaints commission has made a decision, under the bill a party aggrieved will be able to ask for the decision to be reviewed. If the complaints commission sends the matter back for review, it is proposed that an independent review panel be established so that a complainant may make a further appeal. I wonder how this will be handled administratively. No such provision applies to the ICAC or the Ombudsman. I am not speaking about criminal matters. When will people be able to have confidence in the process? The proposed amendment would create a complaints unit at arm's length from the department for those who are not satisfied with the way complaints are determined. The complaints unit has a process for handling such disputes and giving determinations. That appeal process includes an enormous number of safeguards, including a committee of the Parliament and a range of reporting procedures.
The amendment would result in an additional expensive appeal mechanism that would repeat the whole process. If a complainant were not satisfied with the result, he or she would have the right to go to the court and go through the process yet again. That is unnecessary and is not a precedent that has been set with any of the other relevant commissions. The Government will oppose the establishment of an independent review panel. If after three years when the Act is reviewed it is found necessary to make an amendment, that can be done at that time.
I wish to thank a significant number of people for all of their work and good will in the preparation of this legislation, though that good will has not been apparent in the narrow debate today. I thank the departmental people, Chris Bentley, Virginia Neighbour, Leanne O'Shannessy and Alex Goodwin, who have been instrumental in bringing forward the bill. They have spent an enormous amount of time and energy on a difficult task. I formally thank Merrilyn Walton and her staff for the progress that has been made with the bill. I acknowledge the efforts of Clair Petrie of PIAC, who once again tested the ability of the Public Interest Advocacy Centre staff. Clair Petrie has been an intelligent and patient person in her handling of this difficult issue.
I thank the members of the myriad health associated boards who were engaged in the process. I thank those involved with the Australian Medical Association, the Medical Services Committee, and all the consumer groups that have put in enormous time and energy. The list of them goes on and on. I acknowledge also the participation of the union movement. In spite of the fact that for the past few weeks there has been little communication about last-minute amendments, I thank Opposition members for discussing over the years a number of amendments, some of which have been taken on board and included in the bill. In particular I thank the Independent members for the way they have handled this matter. I commend the bill.
Motion agreed to.
Bill read a second time.
The bill contains legislative provisions for formal review of its operations within three years. Let us get it up and working, then fix what we need to rather than just talk about it for another three years.
Dr REFSHAUGE (Marrickville - Deputy Leader of the Opposition) [12.27 a.m.]: I move that:
(1) The Health Care Complaints Bill be referred to a Legislation Committee for consideration and report to the House on such amendments as it considers should be proposed to the Committee of the Whole on the bill;
(2) Such Committee consist of:
(a) Three members supporting the Government nominated by the Leader of the House.
(b) Three members not supporting the Government nominated by the Leader of the Opposition.
(3) The nominations be made in writing to the Clerk of the Legislative Assembly by 18 November, 1993.
I have moved that the bill be referred to a legislation committee -
Mr SPEAKER: Order! The sessional orders are silent as to debate on the motion, however practice has been not to debate this type of motion, as it is merely a procedural step between stages of a bill.
Question - That the motion be agreed to - put.
The House divided.
(4) The Committee report by 15 April, 1994.
Ms Allan Mr Martin
Mr Amery Mr Mills
Mr Anderson Ms Moore
Mr A. S. Aquilina Mr Moss
Mr J. J. Aquilina Mr J. H. Murray
Mr Bowman Mr Nagle
Mr Clough Mr Neilly
Mr Crittenden Mr Newman
Mr Doyle Ms Nori
Mr Gaudry Mr E. T. Page
Mr Gibson Mr Price
Mrs Grusovin Dr Refshauge
Mr Hatton Mr Rogan
Mr Hunter Mr Rumble
Mr Iemma Mr Scully
Mr Irwin Mr Sullivan
Mr Knight Mr Thompson
Mr Knowles Mr Whelan
Mr Langton Mr Yeadon
Mrs Lo Po'
Mr McBride Tellers,
Mr McManus Mr Beckroge
Mr Markham Mr Davoren
Mr Armstrong Mr D. L. Page
Mr Beck Mr Peacocke
Mr Blackmore Mr Petch
Mr Causley Mr Phillips
Mr Chappell Mr Photios
Mrs Chikarovski Mr Richardson
Mr Cochran Mr Rixon
Mrs Cohen Mr Schipp
Mr Collins Mr Schultz
Mr Cruickshank Mr Small
Mr Downy Mr Smiles
Mr Fraser Mr Smith
Mr Glachan Mr Souris
Mr Humpherson Mr Tink
Dr Kernohan Mr Turner
Mr Kinross Mr West
Mr Longley Mr Windsor
Dr Macdonald Mr Yabsley
Ms Machin Mr Zammit
Mr Morris Tellers,
Mr W. T. J. Murray Mr Jeffery
Mr O'Doherty Mr Kerr
Mr Carr Mr Baird
Mr Face Mr Fahey
Mr Harrison Mr Griffiths
Mr Shedden Mr Hartcher
Mr Ziolkowski Mr Hazzard
Mr SPEAKER: The vote being equal, I give my casting vote with the noes and declare the question to have passed in the negative.
Consideration called on, progress reported from Committee and leave granted to sit again.