Medical Practice Bill

Extract from Hansard

Legislative Council
25 July 2001

Sandra Kanck
Deputy Leader Australian Democrats
Member of the Legislative Council

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The Hon. SANDRA KANCK: As a complete replacement for the Medical Practitioners Act 1983, my first observation is that this bill is an improvement on the current act. My second observation is that in order for this new bill to function best it needs legislation to cap medical malpractice payouts and also the passage of decent health complaints legislation. I will be making more detailed comments about medical malpractice payouts as I proceed, but I do note at this point that health complaints legislation was introduced into the House of Assembly in March but has made no progress since that time, and I suspect that that is because it is a flawed piece of legislation. Nevertheless, it is clear that this Medical Practice Bill is one-third of what ought to be a three pincer movement. Another one-third is the passage of some form of health complaints legislation, and the final one-third needs to be legislation to cap medical malpractice payouts.

A lot has changed in medical practice in the 18 years since the last major revision of this act. New drugs and medical technology are often driving medical practice and this, combined with the increasingly litigious nature of our society, can lead to overservicing. Overservicing has been demonstrated to occur not only for those reasons but also as a consequence of the emergence of entrepreneurial medicine. Destructive diseases such as poliomyelitis have become rarer, while new ravages, such as AIDS, have taken its place. Our understandings about infection control and treatment methodologies have altered. Over time we have seen doctor-patient relationships alter to become less paternalistic, more educative, more patient led and more preventative in nature. The changing demographic base of our society has seen an increase in the prevalence of the diseases of ageing, such as Alzheimer's. Similarly, surgical intervention, with operations such as hip replacements, are now relatively common. These are just some of the evolutions and revolutions in medical practice over the past 20 years. There is no doubt that the bar has been raised to a much higher standard, the consequence being that our medical practitioners have greater expectations placed on them, and the current act has become outdated.

With respect to this legislation, I am delighted to have been able to claim a victory before we ever began debate on the bill. In the lead-up to debate on the revamped Nurses Act last year, I expressed surprise to the Nurses Federation that it had accepted the presence of a doctor on the Nurses Board because it had always been there. I told the Nurses Federation and ministerial and departmental advisers, and I also put on the record in my second reading speech at that time, that I thought it was a bit paternalistic that a doctor should be a member of the Nurses Board but that there were no nurses on the Medical Board. Nevertheless, I said I would accept this in the knowledge that, when parliament dealt with an expected rewrite of the Medical Practitioners Act, I would move to amend the structure of the Medical Board to include a nurse.

I was surprised but pleased that I had obviously been heard, because this bill now incorporates what I saw was a necessary addition to the composition of the board. It makes sense. The people who most often work with doctors are nurses. They understand some of the pressures under which doctors sometimes work but are also able to bring a slightly different non-medical perspective to the situation. It is appropriate that nurses, as a professional group, should have a representative on the board.

The composition and the selection of the board appears to be the most controversial aspect of the bill. The current act has a board comprised of eight members, of which six are medical practitioners. The new one is proposed to have 12 members, seven of whom will be, and potentially up to 10 members could be, medical practitioners.

Of only two items of correspondence I have received on this bill, one was in regard to the structure of the Medical Board, particularly advocating the direct election of a greater number of board members rather than, as will be the case with the remaining 11 members, its being done by appointment. The article draws comparison with the British situation, where their General Medical Council ( the GMC), which is the equivalent of our Medical Board, has 104 members. Of interest to us in this debate is that, every five years, all those on the register are able to participate in an election to choose 54 of the 104 members of the GMC, and their Medical Act 1983 stipulates that the elected members must always be in the majority.

As currently worded, the bill before us provides for one member of the board to be elected, which is a 100 per cent increase on what exists under the current act. It therefore represents a great improvement. Unfortunately, this information about the British system has been provided to me at the eleventh hour. Had someone broached this with me at an earlier stage, I would have consulted with others to assess the level of support for a similar provision. I will read from an article in the June 2001 edition of the Australian Family Physician . The article states:

The lack of elections to medical boards so that they are representative of the doctors they register is a cause for concern. Of greater concern is the potential for ministers to influence the appointment of members. Ministers may appoint board members who enjoy the confidence of the profession. However, representation by invitation, rather than by election, can be manipulated.

There is nothing in the current legislation to prevent ministers from acting out of political expediency. Even where representatives are appointed from the AMA or medical royal colleges, many doctors who are not members of these organisations remain excluded. If boards are to be truly representative, all doctors on the register should have the right to vote for medical members of the board.

That has a certain level of personal attraction for me but, with the lateness of the lobbying, I have had to confine myself to working with what we have before us rather than taking on any grand plans for reform. However, I am a little worried about the openness to interpretation in the existing clause 6(1)(a)(v), which provides that, of the 12 members of the board, one is to be chosen at an election conducted in accordance with the regulations.

That leaves the situation somewhat open, as I see it. It does not specify, for instance, who would be entitled to vote. It has been suggested to me, for instance, that it could be interpreted to mean that only AMA members would get to vote. I do not think that those who are designing the regulations associated with this clause would do such a silly thing. Nevertheless, the opening is there if someone wanted to take it. So, I indicate, so that there will be no doubt, that I will be moving an amendment to make clear that all those who are on the register will be entitled to vote.

The AMA also left their lobbying until the last minute, meeting with me just yesterday to advocate their position that the composition of the board should not be played around with any further. They have expressed a concern that the AMA as an organisation should have the right to have a representative on the board because they have a specific representation in other clauses. Clause 6 presently allows the AMA to nominate one person to the board.

I find the argument that the AMA makes in that regard, however, somewhat circular. An argument that you should be on the board because you are mentioned elsewhere in the act could be turned around the other way and could be argued as a justification that, `We are on the board and, therefore, we should be mentioned elsewhere in the act.' So, I will listen carefully to what the opposition says on this point. I gave no undertaking to the AMA in my discussions with them yesterday. I will reserve my judgment until the committee stage and any in-depth discussion we have at that point.

Last month, we passed the Dental Practice Bill which brought dental students under its ambit. This bill has a similar provision to include medical students. I consider this to be an important provision, because medical students are interacting with the public, particularly in our teaching hospitals.

Doctors have a great deal of power. For my parents' generation they had an almost God-like status. I can remember the reverence with which my parents referred to penicillin, with which my sister was being treated at the time, using the term that the doctor used to call it, which was `the wonder drug'. Most people do not have the medical expertise to question, let alone argue about, their diagnosis and treatment. For the most part, we are dependent on the medical profession getting it right, and when the patient is weak-for instance, through illness or psychological instability-the power of the medical profession can be greatly increased.

I recognise that the vast majority of doctors are dedicated professional people, but there is a small number who make mistakes or, worse still, deliberately take advantage of the patient's relative powerlessness. I recall an instance in New South Wales some 25 years ago where a friend of mine was involved in a boating accident and seriously burned. She was hospitalised in a completely different part of town from where she lived. She was in a vulnerable position because she had just broken up with her boyfriend and was estranged from her family. A doctor who was doing rounds in the hospital befriended her. She came under the influence of that doctor. He was a doctor who used hypnosis for healing, and the chances are that he probably used hypnosis for his own ends. He ultimately took control of her personal life. I had a run-in with that doctor in regard to the interference in the patient's personal life. It was a quite traumatic event for all concerned, and within days-or it might have been the next day-I phoned the New South Wales Medical Board about the doctor's behaviour. I provided information to the board I had uncovered that he had previously been barred from practice for a short time in Tasmania when he was practising there.

I pursued the matter no further, but this friend of mine contacted me about two years later and told me that, as a consequence of that phone call, this doctor had his rights of practice restricted for a 12-month period. What was of interest in that case was that, until I informed the New South Wales Medical Board, it did not know anything at all about the restrictions that had previously been placed on this man's practice in Tasmania. With that example in mind, is there any provision for exchange of information between different jurisdictions so that the boards in one state are provided with information about medical practitioners who have been deregistered or had limitations placed on their practice?

I refer to another case, a South Australian case this time, where a psychiatrist had his own health crisis which resulted in a dramatic personality change. As a result of some complaints, the board placed some limitations on his practice, but he ignored them over a period of 12 months during which further allegations emerged about his behaviour towards patients. I ask the minister: when the board has made some determination of this nature, what is its value; who gets to know about it; who enforces it; and is there anything in this bill that would prevent something like that happening in the future?

I cannot see that this current bill will be any more effective than the present act in dealing with a future case where a doctor uses the legal system to ensure his or her own economic and professional survival against the protection of patients from harm. I would be delighted if the minister could tell me that what we propose in this bill gives any greater peace of mind for the public, but I doubt that she will be able to do this. As I said earlier, the bar has been set higher in terms of the standards required for medical practitioners. Some of them might feel that what is required of them under this legislation-especially the information required of them in terms of what they must provide with their registration-is somewhat intrusive but, given the power and influence that doctors wield, such provisions are necessary.

I know that this bill is not the place to cap medical malpractice payouts but, as I have already stated, it is one of the three parts of legislation that the Democrats believe is necessary to ensure high quality and accessible health care in this state. In the absence of such legislation, I must take the opportunity to look at the way lawyers are driving costs up in our medical system. Members will recall that the Social Development Committee's inquiry into rural health recommended the capping of medical malpractice payouts. Anaesthetists and obstetricians are two specialist groups that must pay thousands of dollars each year in premiums for their medical indemnity.

Most doctors in South Australia are covered by the scheme which the South Australian government underwrote a few years ago. However, we should be very much aware that it is a financial cost that the taxpayer at large is bearing and having the coverage is only part of the problem for doctors: it does not stop their being sued. The AMA has told me that, of students who are currently undertaking specialist training in obstetrics and gynaecology, 26 per cent have already decided that they will practise in gynaecology and not obstetrics. The costs that arise from our increasingly litigious society are not just financial: they are beginning to include GPs bailing out of country areas and specialist doctors bailing out of certain areas of medical practice.

It is a huge cost to pay and it is proof of the need for us to take action to rein in those costs. New South Wales is progressing such legislation now and we should be following this example. For a number of years I, on behalf of the Democrats, have been advocating the capping of medical malpractice payouts. Earlier today in question time I asked a question of the Minister for Human Services about this same topic, and I use my second reading contribution to again seek some sort of commitment from the government in this regard.

The AMA has expressed concerns to me that the bill could result in compulsory testing of doctors and medical students. The bill provides that the board may order testing and, obviously, we are dependent on the board's using that power judiciously and not taking a blanket approach. Whenever we have new legislation or, as we have here, a complete replacement of an act, a close eye must be kept to ensure that the new act does what the parliament wants it to do. I have been party to debate on quite a number of bills that have included a requirement for a review of the act. I consider that this bill should be subject to such a requirement and, if we are able to incorporate provision for such a review, I believe that the AMA's concerns could be addressed.

If a review was conducted and it was found that the board was overstepping the mark, parliament could then take action to amend the act. So, I will be moving an amendment to require such a review and, if the amendment is passed, two years after the act comes into force, the minister would be required to table in parliament a report into the operation of the act. I am pleased with the requirement in the bill for medical practitioners to declare an interest in a prescribed business. Earlier, I observed the capacity for over-servicing that entrepreneurial medicine has brought with it. An ownership in such a business ought, therefore, to be revealed. So also should any ownership of related businesses such as pathology or medical imaging. Such ownership could well lead to over-servicing. However, I am not sure whether clause 75(5) gives an out for medical practitioners. I will explore this with questions in the committee stage. Just as we MPs have to fill out a register of interests each year so that we can be observed to have acted fairly and not out of personal interest, so should medical practitioners. In conclusion, I observe that there is no doubt that this bill is an improvement on the current act and I indicate the Democrats' support for the bill.