Consultation Report Final.PDF

THE CABINET OFFICE

NEW SOUTH WALES

REVIEW OF THE HEALTH CARE

COMPLAINTS ACT 1993

CONSULTATION REPORT

October 2004

HEALTH CARE COMPLAINTS ACT 1993

REPORT BACK ON THE CONSULTATION PROCESS

1. BACKGROUND

1.1 Draft exposure Bills

On 14 September 2004, the Minister for Health tabled in Parliament an Introductory

Paper and the following draft exposure Bills:

• the Health Legislation Amendment (Complaints) Bill 2004;

• the Health Registration Legislation Amendment Bill 2004; and

• the Nurses and Midwives Amendment (Performance Assessment) Bill 2004

(Nurses and Midwives Bill).

The purpose of the Bills is to implement the recommendations of the Final Report of

the Special Commission of Inquiry into Campbelltown and Camden Hospitals dated 30 July

2004 (the Final Report) and The Cabinet Office review of the Health Care Complaints

Act 1993 (Health Care Complaints Act).

The Special Commission of Inquiry concluded that the statutory complaints system

in New South Wales is well designed and does not require any major changes (page

2, Final Report). Many of the shortcomings of the Health Care Complaints

Commission (HCCC) in its investigation into Campbelltown and Camden Hospitals

were related not to the statutory framework itself but to the failure of the HCCC to

comply with its statutory obligations (page 33, Final Report). Nevertheless, the

Commissioner recommended that some changes to the statutory framework should

be considered because they ‘offer real prospect of improvement’ (page 32, Final

Report).

In general terms, the Bills refocus the HCCC on investigating serious complaints

about health service providers, improve the operation of the complaints handling

process, and give proper protection to complainants, practitioners and the general

public within this framework.

1.2 Consultation process

The Bills were posted on The Cabinet Office website and approximately 50

stakeholders were notified by letter of the consultation process (see Appendix 1).

During the four week consultation process, The Cabinet Office met with a number of

stakeholders and received 20 submissions (Appendix 2). The focus of the review

has been on responding to the recommendations in the Final Report and improving

the operation of the HCCC. Where other matters raised have not been adopted in

this review, they may be considered for future reform.

2. MAJOR ISSUES RAISED BY STAKEHOLDERS

2.1 Summary

The purpose of this Report is to summarise the submissions of stakeholders on the

main issues raised by the exposure draft Bills, and to explain the further amendments

made to those Bills in light of those submissions. The issues have been grouped into

similar categories to those used in the initial Introductory Paper dated September

2004. For the sake of completeness, a summary of other amendments made to the

Bills is attached at Appendix 3.

2.2 Improving the complaints handling process

The measures designed to improve the complaints handling process were largely

welcomed by stakeholders. The main issues raised in this context are set out below.

2.2.1 Powers of the HCCC to obtain information

Commissioner Walker found that ‘early characterization and assessment’ of

complaints ‘could well have been assisted by greater access’ for the HCCC to records

at Campbelltown and Camden Hospitals (page 71, Final Report). As such he

recommended that the HCCC be given new powers. The Commissioner notes that

compelling witnesses for the purposes of an investigation will involve questions of

privilege and immunity in relation to the evidence obtained in this way (page 83,

Final Report).

The draft exposure Bills contain new provisions permitting the HCCC to issue

notices to compel the production of documents, and to require a person to attend at a

specified place and time for the purpose of providing information and answering

questions. The Bills provide that a person can be compelled to answer questions or

provide information, even though the answer or information might incriminate

them. Where an answer or information incriminates a person, however, the draft Bill

provides that the answer or information cannot be used against them in criminal or

civil proceedings. The HCCC is also excused from responding to a subpoena if the

document to be provided would be inadmissible in proceedings.

Three amendments have been made to these provisions in response to comments of

stakeholders.

• In response to a submission of the Parliamentary Joint Committee, the power

of the HCCC to issue a notice specifying the time period and place for

compliance with a notice has been amended to provide that the specified time

period and place must be reasonable. [Health Legislation Amendment

(Complaints) Bill 2004, Schedule 1 [29]].

• The Parliamentary Joint Committee also suggested that a failure by a

practitioner to comply with a notice to provide information should be capable

of constituting unsatisfactory professional conduct. This is consistent with

similar provisions under the Medical Practice Act 1992 and amendments have

been incorporated in the Health Registration Legislation Amendment Bill.

[Schedule 1.3 [2] amends the Medical Practice Act and Schedule 1.4 [3] amends

the Nurses and Midwives Act 1991. Schedule 1 also amends the other health

registration Acts].

• In response to AMA/ASMOF/UMP, the reference to ‘documents’ in section

37A(5) (which restricts the subpoenaing of documents which would otherwise

be inadmissible) has been clarified so that it covers information provided to

the HCCC under the new provisions which would be inadmissible in court

proceedings on the grounds of self incrimination. [[Health Legislation

Amendment (Complaints) Bill 2004, Schedule 1 [32]].

The HCCC, the Medical Services Committee, and AMA/ASMOF/UMP submitted

that there should be a more general exemption for the HCCC from responding to

subpoenas issued in court proceedings for documents it obtains during its

investigations. These groups argued that it is not appropriate for the HCCC to

become the target for legal process requiring production in private litigation when

the health provider is capable of producing the relevant information and contesting

its production. In addition, these stakeholders were concerned that organisations

may produce documents under compulsion that may not be self-incriminatory, but

may incriminate employees or other individuals. It was suggested such material

should not be available in private litigation.

Whilst these concerns are noted, it is considered that, as a general principle, litigation

should not be made more difficult by procedural requirements and the HCCC

should therefore be able to be subpoenaed if it holds relevant documents.

Furthermore, the protection against self incrimination is rightly limited to the

individual providing potentially incriminating evidence against themselves, and

should not be used to prevent a party from obtaining evidence from others.

In a related request, UMP has noted that the Medical Practice Act does not give a

practitioner protection from self incrimination when giving evidence in the Medical

Tribunal, and has submitted that the Act should be amended to do so. It is

considered that this proposal falls outside the scope of this review, and has broader

application in relation to similar tribunals both within and outside the health sector.

2.2.2 Proposal to create independent office of Director of Proceedings

In the course of the consultation process, the HCCC proposed the creation of a

statutory office of an independent Director of Prosecutions within the HCCC. The

Director would be responsible for decisions with respect to proceedings before a

disciplinary body. A copy of the HCCC’s proposal is attached at Appendix 4.

This proposal was circulated to stakeholders for comment. The purpose of the

proposal is to seek to address concerns by health professionals that there is a lack of

clear separation between the investigation and prosecution of disciplinary

proceedings within the HCCC, which in turn can contribute to a perception of bias

by the HCCC when dealing with complaints.

This proposal was well received in the submissions (notably by the Medical Services

Committee, AMA/ASMOF/UMP, the Optometrists Association Australia (NSW

Division), the Australian Physiotherapy Association (NSW Branch), the

Psychologists Registration Board and the Australian Dental Association). PIAC

advised informally that it supported the proposal in principle although noted that

there was limited detail available. NCOSS would have preferred public release of

the fully drafted proposal.

The Government has decided to adopt this proposal. There was a strong preference

of the Medical Services Committee to refer to the new position as ‘Director of

Proceedings’ to avoid the association between ‘prosecutions’ and criminal conduct

and this has been adopted. [Health Legislation Amendment (Complaints) Bill 2004,

Schedule 3 [5]].

Some concerns were raised by stakeholders as to how the proposal would fit in with

the co-regulatory model for the regulation of health professionals in NSW. Under

the co-regulatory model, the various registration boards and the HCCC consult

regularly as to the action to be taken in relation to complaints. While the HCCC

proposed that the Director be given a discretion to consult with registration boards,

at the request of the Medical Board, the Nurses and Midwives Board, the

Psychologists Registration Board and the Parliamentary Joint Committee, a provision

has been inserted requiring the Director of Proceedings to consult with the relevant

registration authority about its views before deciding whether or not to institute

disciplinary proceedings. [Health Legislation Amendment (Complaints) Bill 2004,

Schedule 3 [5]].

Although AMA/ASMOF/UMP submitted any such consultation should be left to

the discretion of the Director, this amendment is considered necessary to ensure the

involvement of the registration authorities as co-regulators and is consistent with the

current position in section 39 of the Health Care Complaints Act under which the

HCCC is required to consult with the relevant registration authority before

prosecuting a complaint before a disciplinary body.

AMA/ASMOF/UMP requested that the Director of Proceedings be appointed by the

Governor or the Minister in order to emphasise the independence of the position. It

is considered that this measure would add a level of administrative complexity to the

operation of the HCCC and is unnecessary given the explicit provision (in section

90C) that the Director of Proceedings is not subject to the direction and control of the

Commissioner of the HCCC in relation to particular complaints. [Health Legislation

Amendment (Complaints) Bill 2004, Schedule 3 [5]].

2.2.3 Removal of requirement for statutory declaration

The proposal to remove the requirement for a statutory declaration to be provided

for a complaint was opposed by AMA/ASMOF/UMP, the Medical Services

Committee, the Australian Dental Association (NSW Branch), the Australian

Psychological Society and Dr Robert Wines. Given the detailed comments made in

the Final Report concerning the practical problems with requiring a statutory

declaration, and the fact that it contributes to delay, the Government remains of the

view that the requirement for a statutory declaration should be removed. In addition

to the reasons put forward in the Final Report, it is noted that neither ICAC nor the

Ombudsman have a mandatory requirement to obtain a statutory declaration before

investigating a matter. Further, a request by the HCCC for a statutory declaration

(pursuant to the Act) may discourage those with poor literacy skills or persons from

particular cultural backgrounds who are sensitive to government agencies from

pursuing complaints.

The Medical Services Committee has proposed inserting drafting notes below the

relevant provisions noting that it is an offence to provide false or misleading

information in relation to a complaint. A drafting note has accordingly been inserted

below section 9 of the Health Care Complaints Act referring to the main offence

provision in section 99 of the Health Care Complaints Act. [Health Legislation

Amendment (Complaints) Bill 2004, Schedule 1 [5]].

AMA/ASMOF/UMP have submitted that if the statutory declaration requirement is

not retained, legislative provisions should be inserted requiring both the HCCC and

the Medical Board to advise complainants that it is an offence to provide false or

misleading information. The Psychologists Registration Board also expressed a

preference for inserting a legislative provision. As noted in the Introductory Paper,

informing complainants of the offence provisions is better done at an administrative

level to avoid a technical breach of the Act and the Minister for Health has written to

the HCCC requesting administrative implementation of the proposal.

2.3 Refocusing the HCCC on investigating serious complaints.

A number of amendments were included in the draft exposure Bills to refocus the

HCCC on ensuring individual accountability of practitioners in relation to serious

complaints. These included tightening the definition of unsatisfactory professional

conduct, clarifying the objects of the Act to ensure the HCCC focuses on dealing with

serious complaints and explaining the role of other bodies in the health system in

maintaining high standards of patient care.

2.3.1 Amendments to objects of Health Care Complaints Act

Stakeholders supported the proposed new objects of the Health Care Complaints Act.

AMA/ASMOF/UMP, in particular, expressed strong approval of the new objects as

placing appropriate emphasis upon the HCCC’s role of receiving, assessing and

investigating complaints against practitioners, prosecuting serious complaints, and

overseeing the resolution of complaints.

The Medical Board proposed insertion of an additional object to reflect the HCCC’s

role in protecting the public. Clearly, it is imperative that the HCCC ensures that it

exercises its functions with protection of the public in mind. A provision has

therefore been inserted requiring the HCCC to exercise its functions in a manner that

protects the public (modelled on s.2A of the Medical Practice Act). [Health Legislation

Amendment (Complaints) Bill 2004, Schedule 1 [1]].

2.3.2 Definition of unsatisfactory professional conduct

The draft exposure Bills implemented the Special Commission of Inquiry’s

recommendation to tighten the definition of ‘unsatisfactory professional conduct’ so

that only significant instances of a lack of skill, judgment or care will result in

disciplinary action. ‘Unsatisfactory professional conduct’ is to be defined as any

conduct that demonstrates that the knowledge, skill, judgment or care possessed by

the practitioner in the practice of the profession is significantly below the standard

reasonably expected of a practitioner of an equivalent level of training or experience.

The Australian Psychological Society queried whether a practitioner may ‘possess’

care, as provided by the draft definition. The advice of Parliamentary Counsel has

been taken to amend the definition to refer to the ‘judgment possessed or care

exercised’ by a practitioner. [Health Registration Legislation Amendment Bill 2004,

Schedule 1.3[1] amends the Medical Practice Act and Schedule 1.4[2] amends the

Nurses and Midwives Act. Schedule 1 also amends the other health registration

Acts].

The Medical Board suggested that ‘unsatisfactory professional conduct’ should be

limited to matters which involve the wilful, criminal, reckless or unethical conduct

by a practitioner. Other matters would still be dealt with by referral to the Board for

performance assessment. The proposed definition has not, however, been amended

as such an amendment could mean that negligent conduct, which was nonetheless

serious, may not be required to be investigated.

Both the Pharmacy Board of NSW and the Australian Psychological Society

expressed concern about the requirement to assess ‘unsatisfactory professional

conduct’ by reference to other practitioners ‘of an equivalent level of training or

experience’. These organisations considered that practitioners should be judged by

the entry level standard and should not be judged by the differing levels of training

and experience. The Government does not support this view. The intent of the

provision as drafted is to ensure that a practitioner is judged by the standards of his

or her peers. A practitioner who has only recently commenced practising should not

be held to a higher standard in circumstances where he or she is presented with a

more complex problem for which he or she may not have been trained. In such

cases, the practitioner should, in accordance with entry level standards, know to refer

the patient to a more experienced practitioner. Conversely, a practitioner who holds

themselves out as a specialist should not be able to avoid a finding of unsatisfactory

professional conduct simply because an entry level practitioner would not have

known how to deal with a particular problem. All practitioners will still need to

meet the entry level standards reflected in the qualification and other requirements

for registration.

The Pharmacy Board noted that it was not appropriate to amend the definition of

‘professional misconduct’ in the Pharmacy Act, as that profession does not currently

have the two-tiered definition of unsatisfactory professional conduct and

professional misconduct. That Act is currently the subject of a separate review, and

the definition will be updated in accordance with the recommendations of the Final

Report at that time.

2.3.3 Removal of HCCC function which is not exercised

Section 80(1)(j) of the Act has been deleted so as to remove the requirement that the

HCCC investigate the frequency, type and nature of allegations made in legal

proceedings of malpractice by health practitioners. The HCCC submitted that in

view of the importance of re-focusing the HCCC on the investigation of serious

complaints, it is inappropriate to retain this redundant function. It is also noted that

the new incident monitoring system being implemented across the health system will

produce data which will provide a more useful basis for analysing trends in relation

to adverse events and medical error. This information will be available to the

Clinical Excellence Commission for analysis. [Health Legislation Amendment

(Complaints) Bill 2004, Schedule 1 [36]].

2.4 Expanding the range of actions available to the HCCC

The draft exposure Bills sought to give the HCCC increased flexibility to deal with

complaints which require attention but do not require investigation. These options

include referring a matter to a registration board for consideration of performance

assessment or other action, and referring appropriate matters to the relevant area

health service and the Director-General of the Department of Health. Subject to the

issues raised below, stakeholders did not object to these revisions.

2.4.1 Separation of the investigation process from processes adopted by the

registration authorities

The Medical Board submitted that the Bills should be amended to better reflect the

co-regulatory nature of the complaints regime when a matter is referred for

performance assessment by the Board. The Medical Board suggested that the Bills

should make it clear that investigation by the HCCC and performance assessment by

registration authorities (such as the Medical Board) are alternative streams.

Following consultation with the HCCC, the Bills have been amended to remove the

current uncertainty in the exposure drafts so it is clear that the HCCC does not have

a supervisory role over the Board in relation to performance assessment. A new

section 25B has been inserted in the Health Care Complaints Act to this effect. The

registration authorities’ current obligation to refer serious matters back to the HCCC

will be retained and this is recognised in the drafting note below this new section.

[Health Legislation Amendment (Complaints) Bill 2004, Schedule 1 [21]].

2.4.2 Introduction of Performance Assessment provisions for nurses and midwives

The Nurses and Midwives Board and the Nurses’ Association expressed general

satisfaction with the new performance assessment provisions to be inserted in the

Nurses and Midwives Act. The Nurses’ Association noted that the Nurses and

Midwives Board NSW has yet to determine the procedures and processes to be

adopted. It should be noted that it is not proposed to commence this Bill until the

procedures for performance assessment have been finalised by the relevant

stakeholders and this will be done in consultation with the Nurses’ Association.

Provisions have been inserted confirming that decisions of the Panel may be

appealed in certain circumstances. This change has been made in response to issues

raised by Nurses’ Association and the Nurses and Midwives Board. This is in line

with the performance review provisions in the Medical Practice Act [Nurses and

Midwives Amendment (Performance Assessment) Bill 2004, Schedule 1[2]].

2.5 Integration of Health Conciliation Registry functions with the HCCC

The draft exposure Bills provide for the integration of the Health Conciliation

Registry (HCR) with the HCCC so that the existing conciliation service is better

utilised and all alternative dispute resolution functions are performed efficiently

under the auspices of the HCCC.

The Parliamentary Joint Committee on the HCCC, AMA/ASMOF/UMP and the

Medical Board each expressed a preference for the Registry to be a separate statutory

entity to the HCCC whilst recognising the reasons for the proposed transfer. There

was broad support for the measures contained in the Bill to ensure the conciliation

function remains independent (these include statutory recognition of the separate

role of the HCR, providing that the HCR and conciliators are independent of the

HCCC when conducting conciliations or participating in the assessment process,

offence provisions to prevent HCR staff or conciliators disclosing information

obtained in the course of their duties, and giving the Parliamentary Joint Committee

a role in overseeing the operation of the HCR).

The Parliamentary Joint Committee also submitted that the provisions relating to the

position of Registrar should be amended to provide for appointment as a result of an

external competitive recruiting process, or that at least the more senior staff of the

HCR should be appointed following such a process. This amendment has not been

adopted as it is considered that recruitment procedures are best dealt with internally

by the HCCC and not specified in the legislation.

The Health Legislation Amendment (Complaints) Bill required the HCCC to consult

with the Registrar before dealing with a complaint. The HCCC, the Medical Services

Committee and AMA/ASMOF/UMP expressed concern that this would give the

Registrar access to information about a practitioner which could affect the manner in

which conciliation is handled, and is inconsistent with the general proposition that

the role of the HCR should be separate from the HCCC’s other functions. There is,

however, some merit in consultation with the HCR to ensure only complaints which

are suitable for conciliation are referred. Accordingly, the Health Legislation

Amendment (Complaints) Bill has been amended to limit the requirement to consult

with the Registrar so that it only applies where it is proposed to refer a complaint for

conciliation to determine if it is suitable for conciliation. [Health Legislation

Amendment (Complaints) Bill 2004, Schedule 2 [4]].

The Parliamentary Joint Committee has a particular interest in proposals relating to

the HCR both because of its general responsibility for overseeing the HCCC and

because of its proposed new function to monitor and review the exercise of functions

by the HCR. It has prepared a separate report into alternative dispute resolution of

health care complaints in NSW and has made a number of recommendations which

are set out in Appendix 5.

The Parliamentary Joint Committee noted that a number of provisions already in the

Bill protect the independence of the Registrar and the conciliators, but recommended

that additional safeguards be adopted. A number of those recommendations

(recommendations 5, 8, 9, 10, 11, 12, 13, 14, and 15) are best implemented by financial

or administrative arrangements and not by legislative change, and therefore they will

be considered separately.

In relation to the Parliamentary Joint Committee’s legislative recommendations,

proposed section 46(2) of the Bill has been amended to permit the appointment of

more than one conciliator.

Recommendation 6 of the Parliamentary Joint Committee proposes that the

Registrar, as well as not being subject to the direction of the Commissioner of the

HCCC in performing his or her functions (as proposed in the Bill), should be

legislatively responsible to the Commissioner for the efficient, effective and

economical management in the carrying out of the HCR’s functions. While clearly

the Registrar should be responsible to the Commissioner for performance issues, it is

not considered necessary to amend the provision as it is implicit that the Registrar

would be responsible for performance issues.

The Committee has also proposed in recommendation 7 that all forms of complaint

resolution by the HCCC, other than investigations, should come under the functions

of the Registrar. This proposal has been carefully considered in the course of The

Cabinet Office review. The model proposed in the Bill, whereby the other

alternative dispute resolution functions of the HCCC are recognised in the Bill but

are separate from conciliation, will enable these new functions to be used early in the

assessment of a complaint without the need for the matter to be separately referred

to the HCR. This may allow some complaints to be resolved more quickly.

AMA/ASMOF/UMP requested that the Registrar be appointed by the Governor or

the Minister in order to emphasise the independence of the HCR. For similar reasons

to those given in relation to the Director of Proceedings, this proposal has not been

adopted. It is considered that this measure would add a level of administrative

complexity to the operation of the HCCC and is unnecessary given the safeguards

that have been inserted to ensure a separation of the HCR functions and the HCCC’s

investigative role.

2.6 Further protection of the public, complainants and practitioners.

The draft exposure Bills contained a number of amendments to improve protections

for practitioners, whistleblowers, complainants and the public. The issues raised by

stakeholders are summarised below.

2.6.1 Introduction of protections for root cause analysis teams

Support for the new provisions relating to the establishment of root cause analysis

(RCA) teams was expressed by a number of stakeholders including

AMA/ASMOF/UMP, the Medical Services Committee and the Northern Rivers

Area Health Service. AMA/ASMOF/UMP note that the Bill provides extensive

protections in relation to those involved in an RCA and that these protections are

essential if the RCA process is to work as it is designed to do. The Medical Services

Committee noted a number of practical and administrative issues that need to be

addressed in order to ensure proper and satisfactory functioning of the RCA teams.

These will be considered by the Department of Health when it further develops

policies to support the RCA process.

2.6.2 Remedial legislation

The proposed amendments to the remedial legislation introduced following the

Special Commission of Inquiry’s Interim Report are supported by

AMA/ASMOF/UMP.

2.6.3 Legal representation

The Health Registration Legislation Amendment Bill provides that health

practitioners will be allowed to be represented by an adviser (other than a lawyer)

when appearing before a Professional Standards Committee (PSC). This reform has

been welcomed by AMA/ASMOF/UMP and the Nurses’ Association. The Medical

Board, however, expressed concerns that permitting representation will lead to

increased legalism and fundamentally change the successful ‘inquisitorial’ nature of

a PSC.

The proposed amendments permitting non-legal representation are to be retained

because they ensure that practitioners are not disadvantaged before PSCs in

circumstances where an experienced representative of the HCCC argues the case

against the practitioner.

AMA/ASMOF/UMP have submitted that the provision should go further and

permit a PSC to give leave to allow representation by a lawyer if the issues become

complicated. It is considered, however, that representation in a PSC should be

limited to non-legal representation at this stage so that it does not become too

legalistic.

AMA/ASMOF/UMP also requested clarification be provided as to whether the new

right of non-legal representation is not limited to merely ‘addressing’ the PSC.

Accordingly, the reference to ‘address’ has been replaced with ‘represent’. In order

to retain the inquisitorial nature of a PSC and address concerns of the Medical Board,

a new provision has been inserted providing that the right to representation does not

prevent a PSC from asking a practitioner questions directly. [Health Registration

Legislation Amendment Bill 2004, Schedule 1.3 [15]].

AMA/ASMOF/UMP also requested the right to legal representation (or, at a

minimum, non-legal representation) for practitioners in inquiries under section 66 of

the Medical Practice Act. Such inquiries provide for the emergency suspension of a

practitioner or the imposition of conditions to protect the public. In view of the fact

that the Medical Board already has the discretion to allow legal representation in a

section 66 inquiry, that any suspension only applies for eight weeks at a time, and

that appeal rights are available, the proposal has not been adopted.

2.6.4 Right of review by a practitioner

AMA/ASMOF/UMP have requested an amendment to section 28(9) of the Health

Care Complaints Act to include a right for the practitioner the subject of the complaint

to request the HCCC to review its assessment decision. This section currently

provides that the HCCC may review a decision made after assessing a complaint if

requested by the complainant only. It is considered that it is unnecessary to give the

practitioner a right of review at the assessment stage since the practitioner has a clear

right to put his or her case when and if he or she is subject to an investigation. By

contrast, if the HCCC decides not to proceed any further with a complaint following

assessment, without the right of review in proposed section 29(5), there is no further

scope for the complainant to request a reconsideration of this decision.

2.6.5 Protection of confidentiality of information provided to the HCCC

Currently, the offence of improper disclosure of information in s.37 of the Health Care

Complaints Act applies only to information obtained by the HCCC under Division 5

of Part 2 for the purposes of investigations. The HCCC recommended that this

offence be extended to apply to the improper disclosure of information obtained

under any part of the Health Care Complaints Act in order to impose appropriate

confidentiality obligations on its staff and to protect complainants. This proposal has

been adopted. [Health Legislation Amendment (Complaints) Bill 2004, Schedule 1

[38]]

2.6.6 Protecting complainants

Currently, the identity of whistleblowers and other complainants may be kept secret

if there is a risk of intimidation or harassment for up to 60 days only. After this time,

their identity must be disclosed to the respondent practitioner. The draft Bill

proposed to remove this time limit and to require the HCCC to review its decision to

keep the identity of complainants confidential every 60 days, subject to certain

limitations.

The Nurses’ Association was concerned, however, that the HCCC had an unfettered

discretion to withhold information about the complaint from the practitioner. To

address this concern, the Bill now provides that in deciding not to provide

information, the Commission’s decision must be reasonable [Health Legislation

Amendment (Complaints) Bill, Schedule 1[7]].

A new provision has been inserted in the Health Legislation Amendment

(Complaints) Bill requiring the HCCC to use its best endeavours to notify the

outcome of an assessment decision to a patient whose treatment is subject to the

complaint or the person identified in a hospital record as the ‘next of kin’ in cases

where a patient has died or lacks capacity. The hospital must assist the HCCC by

providing the name of the person identified in the hospital record. In addition, the

HCCC will be permitted to notify relatives, carers and other ‘significant others’ about

the outcomes of the assessment of the complaint in certain circumstances. [Health

Legislation Amendment (Complaints) Bill 2004, Schedule 1 [24]].

2.7 Review of amendments

The Medical Board has requested a review of the proposed amendments in three

years time. Although a formal review provision has not been included in the

legislation, the Government will continue to monitor the legislation to ensure that it

is effective and if necessary amend the legislation. In addition, the ongoing role of

the Parliamentary Joint Committee in scrutinising the legislation will allow any

issues to be identified as soon as they arise.

3. CONCLUSION

The Cabinet Office appreciates the input of the stakeholders that provided

submissions on the issues raised in the exposure draft Bills. The amended Bills will

be available on the website of the NSW Parliament upon introduction into

Parliament.

APPENDIX 1

LIST OF STAKEHOLDERS NOTIFIED IN WRITING OF THE PUBLIC

CONSULTATION PROCESS

Professor Kim Oates Administrator Children's Hospital at Westmead

Professor Stuart

Schneider

Administrator Southern/Greater Murray Area Health Service

Dr Claire Blizard Administrator Far West/Macquarie/Mid Western Area Health

Service

Mr Terry Clout Administrator Hunter/New England Area Health Service

Mr Chris Crawford Administrator Northern Rivers/Mid North Coast Area Health

Service

Dr Stephen Christley Administrator Northern Sydney/Central Coast Area Health

Service

Dr Denise Robinson Administrator South Eastern Sydney/Illawarra Area Health

Service

Dr Diana Horvath Administrator South Western Sydney Area Health Service

Associate Professor

Steven Boyages

Administrator Western Sydney/Wentworth Area Health

Service

Dr Geoff Duggin Chair Medical Services Committee

Judge Kenneth Taylor

Commissioner Health Care Complaints Commission

Mr David Brown General Manager

Legal Services

United Medical Protection

Dr Geoff Duggin President Australian Salaried Medical Officers Federation

Dr John Gullota President AMA (NSW Branch)

Mr Laurie Pincott Executive Director

Australian Medical Association (NSW Branch)

Mr Si Banks NSW President

Pharmacy Guild of Australia (NSW)

Dr Matthew Fisher Chief Executive

Officer

Australian Dental Association (NSW)

Mr E G Butler Secretary

Guild of Dispensing Opticians

Ms Eve Sainsbury Executive Director

Australian Podiatry Association

Mr Brett Holmes General Secretary

New South Wales Nurses Association

Mr Brian Davey National Chairman

Australian Society of Practising

Physiotherapists

Mr Andrew McKinnon Executive Director

Optometrists Association Australia (NSW)

Ms Kerri Martin President

Orthoptic Association of Australia Inc

Ms Jan Axe General Manager

Australian Physiotherapy Association (NSW

Branch)

Mr Stephen Robbins Executive Director

Australian Osteopathic Association

Mr R Scott President

Dental Technician Association of NSW

Ms Mary

Papatheocharous

President Chiropractors Association of Australia (NSW

Branch)

Professor Paul Martin

President Australian Psychological Society

Mr Peter Werth President Chiropractic and Osteopathic College of

Australasia

The Registrar NSW Medical Board

The Registrar Dental Board of NSW

The Registrar Pharmacy Board of NSW

The Registrar Chiropractors Registration Board

The Registrar Dental Technicians Registration Board

The Registrar Nurses and Midwives Board

The Registrar Optical Dispensers Licensing Board

The Registrar Osteopaths Registration Board

The Registrar Optometrists Registration Board

The Registrar Physiotherapists Registration Board

The Registrar Podiatrists Registration Board

The Registrar Psychologists Registration Board

Mr Douglas Holmes Executive Officer NSW Consumer Advisory Group

Mr Gary Moore Director The Council of Social Service of NSW

(NCOSS)

Dr Robert D Wines

Mr Scott Chapman

Dr Diana Horvath Administrator South Western Sydney Area Health Service

Ms Annie Pettitt Policy Officer Public Interest Advocacy Centre

Mr Peter Kell Chief Executive

Officer

Australian Consumers’ Association

Ms Catherine Watson Committee Manager Joint Parliamentary Committee on Health Care

Complaints Commission

Mr Bruce Barbour NSW Ombudsman

Helen Hopkins Executive Director

Consumers’ Health Forum of Australia

Wendy McCarthy AO Chair Health Participation Council

APPENDIX 2

LIST OF SUBMISSIONS RECEIVED BY THE CABINET OFFICE

AMA, ASMOF and United Medical Protection (UMP) (joint submission)

Australian Dental Association (NSW Branch)

Australian Psychological Society

Australian Physiotherapy Association (NSW Branch)

Dr Robert Wines

Health Care Complaints Commission

Medical Board

Medical Services Committee

NSW Ombudsman

NSW Physiotherapists Registration Board

Nurses’ Association

Nurses and Midwives Board

Northern Rivers Area Health Service

Optometrists Association Australia (NSW Division)

Pharmacy Board of NSW

Parliamentary Joint Committee on the Health Care Complaints Commission

Psychologists Registration Board

Tim Smyth, Phillips Fox lawyers

Council of Social Service of NSW (NCOSS)

MEETINGS WITH STAKEHOLDERS

Australian Psychological Society

Australian Medical Association

Australian Salaried Medical Officers Federation

Health Care Complaints Commission

NSW Medical Board

Nurses Association

Parliamentary Joint Committee

United Medical Protection

DISCUSSIONS BY PHONE

Public Interest Advocacy Centre

APPENDIX 3

MINOR AMENDMENTS TO DRAFT EXPOSURE BILLS

Section 14 of the Health Care Complaints Act currently provides that a registration

authority must not take any action under a health registration Act concerning a

complaint while it is subject to conciliation. This provision has been amended to

make it clear that, similarly, a registration authority must not take action where a

complaint is subject to complaints resolution under Division 9 (response to issue

raised by HCCC). ). [Health Legislation Amendment (Complaints) Bill 2004,

Schedule 2 [5]]

The provision contained in exposure draft Health Legislation Amendment

(Complaints) Bill Schedule 1[11] enabled the HCCC to revise its assessment of a

complaint at any time and to take certain actions following that assessment (for

example refer it for conciliation or for alternative dispute resolution). It is proposed

to amend this provision to insert an additional action, namely investigation, which

may be taken by the HCCC after it revises its assessment of a complaint (response to

issue raised by the HCCC). [Health Legislation Amendment (Complain ts) Bill

2004, Schedule 1 [13]]

The provision contained in exposure draft Health Legislation Amendment

(Complaints) Bill Schedule 1[17] inserted a reference to the Health Records and

Information Privacy Act 2002 in the list of Acts contained in section 25 of the Health

Care Complaints Act. Section 25 requires the HCCC to notify the Director-General of

the Department of Health if it appears that a complaint involves a possible breach of

any of those Acts. It is proposed to refer specifically to the relevant sections of the

Health Records and Information Privacy Act 2002, being sections 68, 69, and 70 in order

to distinguish these sections from other breaches of the Act for which the Director-

General is not responsible for enforcing (response to issue raised by the NSW

Ombudsman). [Health Legislation Amendment (Complaints) Bill 2004, Schedule 1

[20]]

The provision contained in exposure draft Health Legislation Amendment

(Complaints) Bill Schedule 1[33] (s.103A(2) Health Care Complaints Act) has been

amended to extend s.103A(2) (which makes it clear that nothing in the Act prevents

information from being provided to the Ombudsman in an investigation by the

Ombudsman) to refer also to preliminary inquiries under s.13AA of the Ombudsman

Act. This is because the majority of the Ombudsman’s general work is done

pursuant to this power, not his formal investigation powers (response to issue raised

by the NSW Ombudsman). [Health Legislation Amendment (Complaints) Bill

2004, Schedule 1 [39]]

The savings provisions set out in exposure draft Health Legislation Amendment

(Complaints) Bill Schedule 1 [35] which provided that the new amendments do not

apply to complaints already referred to a Committee or Tribunal have been extended

to apply to complaints referred to a registration board for inquiry (response to issue

raised by HCCC). [Health Legislation Amendment (Complaints) Bill 2004,

Schedule 1 [41]]

The provision contained in exposure draft Health Registration Legislation

Amendment Bill Schedule 1.3[8] relating to section 66B(3) of the Medical Practice Act

has been amended to clarify that the HCCC is required to investigate a complaint

referred to it under this section if it considers it appropriate to do so (response to

issue raised by HCCC and Medical Board). [Health Registration Legislation

Amendment Bill, Schedule 1.3 [9]]

The provision contained in exposure draft Health Legislation Amendment

(Complaints) Bill Schedule 4.1[1] has been amended to extend the FOI exemption

which applies to documents held by the HCCC to deal with a possible gap in

coverage so that it applies to documents provided by the HCCC to registration

boards (response to issue raised by the Medical Board). ). [Health Legislation

Amendment (Complaints) Bill 2004, Schedule 4.1 [1]]

APPENDIX 4

Extract from response by the Health Care Complaints Commission (‘the

Commission’) to the exposure draft of the Health Legislation Amendment

(Complaints) Bill 2004 (‘the draft bill’) and related draft legislation.

Director of Prosecutions

There exists among health service providers a strong perception of bias in the

manner in which the Commission has performed its functions. It has become clear in

consultations with the representative groups of health professionals that this

perception is deeply held. The concentration of powers in the Commissioner fuels

this perception.

The suspicion that information volunteered in conciliation, for example, might be

used in an investigation against a respondent to a complaint led to the creation of a

Health Conciliation Registry administered separately.

Another area of the Commission’s practice in which this perception of bias is

manifest, is the lack of clear separation between the investigation and prosecution of

complaints. The Joint Parliamentary Committee on the Health Care Complaints

Commission, in its report of December 2003

noted at page 16:

Most submissions argued that a greater separation, if not a complete separation, between

investigations and prosecutions was necessary to ensure objectivity and due process. Some

suggested that the current proximity of the two functions serves to ensure that the

Commission remains more adversarial than it is investigative.

The Commission proposes a more effective method of separating investigations from

prosecutions than that recommended by the Parliamentary Committee – the creation

of a statutory office of an independent Director of Prosecutions within the

Commission.

The model currently operating in the New Zealand Health and Disability Commissioner

Act 1984 is broadly applicable. The NZ Act creates a Director of Proceedings that acts

independently in respect of decisions regarding the prosecution of complaints before

the relevant disciplinary body. The position is, however, responsible to the

Commissioner for the “efficient, effective and economical management of the

activities of the Director of Proceedings” – section 15 of the NZ Act.

At the end of an investigation, the NZ Commissioner may refer a matter to the

Director of Proceedings for the purpose of deciding whether disciplinary

proceedings should be taken (section 45(f) of the NZ Act). It is then entirely a matter

for the Director, independently of the Commissioner, to determine whether such

Report of the Inquiry into Procedures followed during investigations and prosecutions undertaken by

the Health Care Complaints Commission, Report No 2, December 2003

proceedings should be instituted. The Director is obliged to give any proposed

subject of disciplinary proceedings the right to be heard before taking any

proceedings (section 49(2) of the NZ Act) and, in reaching a decision, must take into

account the wishes of the complainant and public health and safety (section 48(3)).

In order to separate the Commission function of prosecution and to ensure that it is

not disproportionately affected by views formed during the conduct of the

Commission’s investigation, the Commission proposes the creation of a position of

Director of Prosecutions within the Commission.

The independence of the Director of Proceedings would mirror the relationship

between the Commission and the Minister and that between the proposed Registrar

of Conciliation and the Commission. The Director of Prosecutions would be

independently responsible for decisions made with respect to individual

prosecutions but responsible to the Commission for the efficient and effective

management of prosecutions. A provision similar to the proposed section 57 of the

exposure draft of the Health Legislation Amendment (Complaints) Bill 2004 with

respect to the independence of conciliation would be applicable.

At the end of an investigation, instead of the current option in section 39(1)(a) of the

Health Care Complaints Act 1993 (“the Act”) that the Commissioner, after consultation,

prosecute the complaint as a complaint before a disciplinary body, the Commissioner

would be given the option of referring the complaint to the Director of Prosecutions

for consideration of whether or not the complaint should be prosecuted before a

disciplinary body.

A new Division of the Act, perhaps Division 6A, would need to be inserted setting

out the role and responsibilities of the Director of Prosecutions. The Commission

considers that providing the person the subject of complaint with the right to make

representations to the Director of Prosecutions before any decision is made and the

public interest criteria on which any decision to prosecute should be based, should

also be included in the Act. Relevant criteria to be taken into account in determining

whether or not prosecution is warranted should include:

- the protection of the health and safety of the public;

- the seriousness of the alleged conduct; and

- the likelihood of proving the alleged conduct.

The draft bill should also contain a provision to the effect that the Director of

Prosecutions may consult with the various Registration Boards at any time. This

provision will provide for appropriate consultation with respect to any orders that it

may be appropriate to request from the relevant Tribunal or other disciplinary body.

In some cases, relevant orders may include the imposition of conditions that are to be

supervised by the relevant Registration Board.

APPENDIX 5

List of Recommendations of the Parliamentary Joint Committee on the Health

Care Complaints Commission relating to the draft amendments to the Health

Care Complaints Act 1993 and related legislation

1. The Committee recommends that the proposed section 34A(1)(a) and (c) be

amended to specify that the time period for compliance must be reasonable.

Similarly, so should the place of attendance be reasonable.

2. The Committee recommends that consideration be given to also providing for

a disciplinary sanction under the relevant health professional registration acts

for non compliance with section 34A. Alternatively a note could be included

to refer the reader back to the related sanctions in the relevant acts.

3. The Committee recommends that proposed sections 37A(2) and (3) be

amended to more clearly define and differentiate between “information” and

“document” for the purposes of these sections.

4. The Committee recommends that proposed section 46(2) should be amended

to read that The Registrar may appoint more than one conciliator to conciliate the

complaint if the Registrar considers that is desirable to do so.

5. The Committee recommends that proposed section 87 should be amended to

provide that the position of Registrar should be appointed as a result of an

external competitive recruiting process.

6. The Committee recommends that proposed section 88 be amended to provide

that at least the more senior staff of the Registry should be appointed

following an external competitive recruiting process.

7. If a Director of Prosecutions is to be created, consultation between the Director

of Prosecutions and the relevant health professional registration board

concerning each case received by the Director should be mandatory.

Recommendations relating to Report into Alternative Dispute Resolution of

Health Care Complaints in NSW

If the Registry remains a separate body

1 The Health Conciliation Registry should be given the legislative power to

obtain the consent of the parties to participate in conciliation.

2 All Area Health Services should be allowed direct access to the Health

Conciliation Registry for resolution of any complaints they receive which they

would not normally refer to the Health Care Complaints Commission under

the existing guidelines and legislation.

3 The Health Conciliation Registry should be required to produce its own

annual report in accordance with the annual reporting legislation and

Treasury Guidelines

4 The Health Care Complaints Act 1993 should be amended to allow for the

splitting of complaints, where possible, between investigation and

conciliation.

If the Registry is amalgamated with the Commission

5 The Health Conciliation Registrar position should be given equivalency to the

proposed Director of Prosecutions position in terms of its importance within

the organisation and its fiscal remuneration.

6 The Health Conciliation Registrar should not be subject to the direction of the

Health Care Complaints Commissioner in performing his or her functions but

should be responsible to the Commissioner for the efficient, effective and

economical management in the carrying out of the Registry’s functions.

7 All forms of complaint resolution within the Commission other than

investigations should come under the functions of the Health Conciliation

Registrar.

8 The Commission should adequately resource the Registry to enable it to

effectively carry out all its functions.

9 The Health Conciliation Registrar should be given a separate budget which

will be allocated by the Commissioner each year and separately accounted for

in each annual report of the Health Care Complaints Commission.

10 The activities of the Health Conciliation Registrar and the proposed Director

of Prosecutions should be reported in their own separate sections of each

annual report of the Health Care Complaints Commission.

11 The Health Conciliation Registrar should be responsible for the appointment

of his or her staff, including conciliators.

12 The Health Conciliation Registrar should meet on an annual basis with the

Joint Parliamentary Committee independently of the Health Care Complaints

Commissioner to discuss issues arising from each Health Care Complaints

Commission annual report which relate to his or her functions.

13 The Minister for Health should fund an external performance review of the

Registry’s operations within the first three years of its amalgamation with the

Commission. The Review should be overseen by the Joint Parliamentary

Committee.

14 The Health Conciliation Registry should be required to conduct regular

external performance reviews.

15 The Registry’s premises should be separate from those of the Commission, if

feasible.