Implementation of the National Code of Conduct for Health Care Workers in Tasmania

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Consultation Paper - March 2017

Contents

Consultation Process

This consultation paper outlines the Government’s preferred position around the implementation of the National Code of Conduct for Health Care Workers in Tasmania.

The Department of Health and Human Services is seeking submissions from interested stakeholders and the general public on the issues identified in the consultation paper and the preferred actions in relation to these issues.

Respondents may choose to answer the questions included in the paper and/or provide general comments on the issues raised.

Written submissions should be sent to:

Consultation Paper – National Code of Conduct for Health Care Workers
Department of Health and Human Services
Attention: Mr Paul Geeves
GPO Box 125
HOBART TAS 7001

Or

Email: paul.geeves@dhhs.tas.gov.au with subject heading: Consultation Paper – National Code of Conduct

Submissions must be received by close of business 17 March 2017.

Code of Conduct for Health Care Workers

Background

In 2011, the Australian Health Ministers’ Advisory Council (AHMAC) undertook a national consultation on Options for the regulation of unregistered health practitioners. The term ‘unregistered health practitioner’ was used in that consultation paper to describe any person who provides a health service and who is not registered in one of the 14 professions regulated under the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law).

The Final Report on the National Code of Conduct for Health Care Workers (the Final Report) of the 2011 consultation, was released in August 2013.

The Final Report found the option of a single national code of conduct for unregistered health practitioners, with enforcement powers for breach of the code was likely to deliver the greatest net public benefit to the community. The consultation found strong community and health sector support for this option. A statutory code of conduct scheme (described in the Final Report as a ‘code-regulation regime’) already operates in New South Wales (NSW) and South Australia (SA), and commenced in Queensland (Qld) in July 2014.

In response to the Final Report of the 2011 consultation, on 14 June 2013 Health Ministers agreed in principle to strengthen state and territory health complaints mechanisms via a single national code of conduct to be made by regulation in each state and territory, and statutory powers to enforce the code by investigating breaches and issuing prohibition orders. Health Ministers also agreed in principle to a nationally accessible register of prohibition orders and mutual recognition arrangements between states and territories to support national enforcement of the code.

To give effect to these decisions, Health Ministers asked AHMAC to undertake a public consultation on the terms of the first national code of conduct and proposed policy parameters to underpin nationally consistent implementation of the national code of conduct. A consultation paper, A National Code of Conduct for Health Care Workers, (the Code) was released publicly on 7 March 2014. The paper presented for comment a draft national code of conduct, based on the statutory Codes of Conduct already applying in NSW and South Australia, using the term ‘health care worker’ in place of ‘unregistered health practitioner’.

Following the assessment of responses on the consultation a Final Report was prepared for consideration by Health Ministers through the COAG Health Council. Health Ministers noted the Final Report on the National Code of Conduct for Health Care Workers at their meeting of 17 April 2015.  (A summary of the Recommendations can found at Appendix 1). Ministers endorsed the Code and agreed jurisdictions should examine the implementation of the Code regulation regime and how it should apply in their jurisdiction. Ministers also noted Recommendations 4-6 of the Final Report form the policy framework to underpin a nationally consistent implementation of the Code.

The Code is intended to operate alongside the Health Practitioner National Law, setting minimum standards of conduct and practice for all health care workers in professions apart from the 14 professions currently regulated under the National Law.

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Preferred Model for Implementation of the National Code of Conduct in Tasmania

At the Health Ministers Meeting of 17 April 2015 Tasmania joined other jurisdictions in endorsing the Code and agreed to examine implementation of the Code and how it should apply in Tasmania consistent with Recommendation 1 of the Final Report on the National Code of Conduct for Health Care Workers (the Final Report).

Tasmania has considered legislative and non-legislative options including self-regulation, stand‑alone legislation and the incorporation of the Code within existing Tasmanian legislation.

While the Code could be implemented by a self-regulation approach, the Code would be not be binding in this form as there would be no mechanism to issue temporary or permanent prohibition orders.  This would not be consistent with Recommendations 1 and 2 of the Final Report as it would not result in the implementation of a nationally consistent code-regulation regime for all health care workers.

Legislation is required to make binding prohibition orders and to enforce penalties and to permit sharing of information with other jurisdictions on prohibited persons.  The Code itself will need to be adopted in legislation so the Code can be referenced in relation to binding prohibition orders for breaches.

The preferred model for Tasmania is to incorporate the Code within the Health Complaints Act 1995 rather than by stand-alone legislation.  This provides a simple legislative model where the Health Complaints Commissioner will be provided with additional functions to administer and enforce the Code.  This avoids the creation of a separate statutory position and enforcement regime.

The national policy framework notes each jurisdiction is responsible for determining the entity or entities empowered to hear matters and issue prohibition orders.  In Tasmania, by placing the Code within the Health Complaints Act 1995 the Health Complaints Commissioner would be the relevant entity for Tasmania.

Definition

The national policy framework suggests the scope of health services to which the Code would apply should be broad and include counselling and advice, and health support services.

The current definition of health service in the Health Complaints Act 1995 is too broad for Code of Conduct services as it includes administrative support services and non-health care services such as laundry, dry cleaning, catering or other support service provided in a health institution.

As the definition in the Health Complaints Act 1995 would provide too broad a definition of health care worker consistent with the requirements of the Code it is recommended that a new definition of health care service be incorporated for Code purposes.

It is proposed that in Tasmania the Code should apply to any health related service and so it is proposed to exclude general administrative services and support services such as a laundry, dry cleaning, catering or other support services that are not health related services but would include health advice services and health related support services.

It is proposed Tasmania adopt the suggested definition of health care service included in Recommendation 4 of the Final Report that a health service is defined as:

(a)

an activity performed in relation to an individual that is intended or claimed (expressly or otherwise) by the individual or the service provider to:

(i) assess, predict, maintain or improve the individual’s physical, mental or psychological health or status;

(ii) diagnose the individual’s illness, injury or disability; or

(iii) prevent or treat the individual’s illness, injury or disability or suspected illness, injury or disability;

(b) a health-related disability, palliative care or aged care service; or
(c) a surgical or related service; or
(d) the prescribing or dispensing of a drug or medicinal preparation;
(e) the prescribing or dispensing of an aid or piece of equipment for therapeutic use; or
(f) support services necessary to implement any services referred to in paragraphs (a) to (e). 


Do you agree with the proposed definition of ‘health service as proposed in Recommendation 4 of the Final Report?

Are there any particular health related services that should be excluded/included?

Scope

The national policy framework provides guidance on the classes of persons to be covered to be the Code:

  • any person who provides a health service and is not a registered health practitioner under the National Registration and Accreditation Scheme (NRAS),
  • any person who is a registered health practitioner under the NRAS but provides health services unrelated to their registration,
  • any person who provides a health service as part of a program of study qualifying the person as a health care worker (i.e. a student in training to become a health care worker), and;
  • any person providing a health service in their role as a volunteer recruited and supervised by an organisation providing health services.

It is intended for the implementation of the Code in Tasmania, these classes of persons be included consistent with Recommendation 5 of the Final Report.

Amendments the Health Complaints Act 1995 may be required to include specific references to health workers in training and volunteer health workers to ensure the scope of the Tasmanian legislation is consistent with the requirements of the National Code.

Do you agree with the inclusion of these classes of persons?

Are there other classes of persons who need to be included?

Who can make a complaint

The national policy framework provides that any person is able to make a complaint about breach of the Code, not just service users and their representatives.

It is intended the implementation of the Code in Tasmania will enable any person to make a complaint about a breach of the Code consistent with Recommendation 5 of the Final Report.

This would require an amendment to Section 22 of the Health Complaints Act 1995 as currently only affected persons have an automatic right to complain.  Tasmania intends that the extension of section 22 could be confined to breaches of the Code only and not be extended to general complaints which could still only be made by affected persons.

Do you agree with the intention for any person to be able to make a complaint about a breach of the National Code of Conduct?

Own motion powers

The national policy framework suggests health complaints entities administering the code-regulation regime have ‘own motion’ powers to initiate an investigation of a possible breach of the code, with or without a complaint.  Tasmania supports own motion powers consistent with Recommendation 5 of the Final Report.

The current Health Complaints Act 1995 provides for a general own motion inquiry power by listing a function of the Commissioner as:

“to inquire into and report on any matter relating to health services at his or her own discretion or on the direction of the Health Minister”

This statement will need some amendment to permit own motion investigation of possible breaches of the Code and allow the Commissioner to take action following an own motion investigation.

Do you agree with the amended wording to enable ‘own motion’ powers of the Commissioner?

Grounds for making a complaint

The national policy framework notes each jurisdiction is responsible for determining its own arrangements with respect to the grounds for making a complaint, the preferred approach being that of New South Wales (a complaint may be about the professional conduct of a health practitioner) or Queensland (a health service complaint is a complaint about a health service provided by a health service provider, including ‘the health, conduct or performance of a health care worker while providing a health service’).

Section 23 of the Health Complaints Act 1995 already provides broad grounds for a complaint as follows:

(a) a health service provider acted unreasonably by not providing a health service;
(b) the provision of a health service or of part of a health service was not necessary;
(c) a health service provider acted unreasonably in the manner of providing a health service;
(d) a health service provider failed to exercise due skill;
(e) a health service provider failed to treat a health service user in an appropriate professional manner;
(f) a health service provider failed to respect a health service user's privacy or dignity;
(g)

a health service user was not provided –

(i) in language and terms understandable to the user, with sufficient information on the treatment and health services available to enable the user to make an informed decision; or

(ii) with a reasonable opportunity to make an informed choice of the treatment or services available; or

(iii) with adequate information on the availability of further advice on the user's condition or of relevant education programmes; or

(iv) with adequate information on the treatment or services received; or

(v) with any prognosis that it would have been reasonable for the user to be provided with;

(h)

a health service provider acted unreasonably by–

(i) denying a health service user access to, or restricting the user's access to, records relating to the user that were in the provider's possession; or

(ii) not making available to a health service user information about the user's condition that the health service provider was able to make available;

(i) a health service provider acted unreasonably in disclosing information in relation to a health service user;
(k) a health service provider acted in any other manner that was inconsistent with the Charter.


It is not expected this section will require amendment to meet the requirements of the Code other than ensuring that any person is able to make a complaint about breach of the Code rather than just a person directly affected by the breach.


Do you agree with the grounds for complaint?

Timeframe within which a complaint must be lodged

Under the national policy framework each jurisdiction is responsible for determining the timeframe within which a complaint must be lodged.  Tasmania does not currently have a legislated timeframe in the Health Complaints Act 1995.

It is proposed that Tasmania should follow the South Australian model and specify a period of two years from the date the service was provided for complaints concerning the Code but with broad discretion for the Commissioner to accept complaints outside this timeframe.

Do you agree with this approach?

Grounds for issuing a prohibition order (including interim orders)

The national policy framework notes each jurisdiction is responsible for determining the grounds for issuing a prohibition order.  The preferred approach is to include cancellation of registration, where the practitioner is registered under the National Registration and Accreditation Scheme, as a ground for issuing a prohibition order and also to include in the grounds for prohibition the commission of a “prescribed offence” whether or not a breach of the Code has occurred, with prescribed offences to include certain breaches of that jurisdiction’s criminal code or another jurisdictions criminal code.

A prohibition order should be conditional on there being a risk of harm to the community from the practitioner.

Interim orders could be issued in cases where there was a perceived risk of immediate harm to the community but a full investigation of the matter had not yet been completed.

Do you agree with this approach?

The maximum duration of interim prohibition orders

The national policy framework notes the preferred maximum duration for interim orders is 12 weeks.

Tasmania would need to set a maximum length for interim orders in legislation.

Tasmania intends to adopt the preferred maximum duration for interim orders of 12 weeks.

Do you agree with the proposed maximum length of an interim prohibition order?

Penalties for breach of a prohibition order

South Australia has a maximum penalty of $10 000 or imprisonment for two years or both for the breach of a prohibition order (including interim orders).  Queensland and New South Wales have penalties of 200 penalty units (around $22 000) while NSW also provides for imprisonment for one year as an alternative or in addition to the financial penalty.

Penalties in Tasmania would need to be sufficient to act as a deterrent to breaching a prohibition order and as prohibition orders will only be issued where there is a risk of harm to patients, maximum penalties should be substantial.

The preferred position for Tasmania is a maximum penalty commensurate with NSW and Qld.  Given that Tasmania has a higher value for a penalty unit it is recommended that Tasmanian penalties be 150 penalty units or imprisonment for one year as an alternative to the financial penalty.

Do you agree with this approach?

Powers of health complaints entities to monitor compliance

The national policy framework notes each jurisdiction is responsible for determining its own arrangements with respect to the powers of health complaints entities to monitor the compliance of persons who are subject to a prohibition order.

The Health Complaints Commissioner does not currently have a monitoring function under the Health Complaints Act 1995.

Amendments would need to be introduced to give the Health Complaints Commissioner a monitoring function in relation to prohibition orders.

The intention is to list this as a general function of the Commissioner and permit the Commissioner to determine what monitoring may be required in relation to prohibition orders, given the expected small number of orders for Tasmania.

Do you support this approach?

Mutual recognition of prohibition orders

The national policy framework notes there should be mutual recognition of prohibition orders in other jurisdictions.

Tasmania would introduce specific legislative provisions to recognise prohibition orders issued in other jurisdictions.

Do you agree with the mutual recognition of prohibition orders across jurisdictions?

Publication of prohibition orders and public statements

The national policy framework notes each jurisdiction is responsible for determining its own arrangements with respect to the publication of prohibition orders and public statements; the preferred approach being broadly framed and flexible powers.

Tasmania’s preference is for broad powers to enable the Commissioner to publish a prohibition order or make a public statement on prohibition as appropriate and to include an explicit power for the Commissioner to share information on prohibition orders with other jurisdictions.

Do you agree with this approach?

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Appendix 1 - Final Report on the National Code of Conduct for Health Care Workers

List of Recommendations:

Recommendation 1:

That a National Code of Conduct for health care workers be approved as the basis for enactment of a nationally consistent code-regulation regime for all health care workers.

Recommendation 2:

That jurisdictions use their best endeavours to enact or amend legislation to give effect to the National Code of Conduct and a nationally consistent code-regulation regime for health care workers.

Recommendation 3:

That those jurisdictions with already existing codes and code-regulation regimes examine provisions in the National Code of Conduct and the recommendations of this report and consider legislative amendments where appropriate to their jurisdiction.

Recommendation 4:

That jurisdictions note the strong support from stakeholders for a nationally consistent definition of ‘health service’ for the purposes of application of the National Code of Conduct and nationally consistent code-regulation regime, and give consideration to adopting the following definition:

A health service is defined as:

(a)

an activity performed in relation to an individual that is intended or claimed (expressly or otherwise) by the individual or the service provider to:

(i) assess, predict, maintain or improve the individual’s physical, mental or psychological health or status;

(ii) diagnose the individual’s illness, injury or disability; or

(iii) prevent or treat the individual’s illness, injury or disability or suspected illness, injury or disability;

(b) a health-related disability, palliative care or aged care service; or
(c) a surgical or related service; or
(d) the prescribing or dispensing of a drug or medicinal preparation;
(e) the prescribing or dispensing of an aid or piece of equipment for therapeutic use; or
(f) support services necessary to implement any services referred to in paragraphs (a) to (e).

Recommendation 5:

That the nationally consistent code-regulation regime include the following features

  • application of the National Code of Conduct to the following classes of person:
    • any person who provides a health service and is not a registered health practitioner under the National Registration and Accreditation Scheme (NRAS);
    • any person who is a registered health practitioner under the NRAS but who provides health services that are unrelated to their registration;
    • any person who provides a health service as part of a program of study that qualifies the person as a health care worker;
    • any person who provides a health service in their role as a volunteer recruited and supervised by an organisation that provides health services;
  • any person is able to make a complaint about breach of the National Code of Conduct, not just service users and their representatives;
  • health complaints entities that administer the code-regulation regime have ‘own motion’ powers to initiate an investigation of a possible breach of the code, with or without a complaint;
  • the grounds for issuing a prohibition order include the commission of a ‘prescribed offence’ (or equivalent), whether or not a breach of the National Code has occurred, with the definition of a prescribed offence to include offences under the applicable criminal code (as already applies in the Health and Community Services Complaints Act 2004 (SA)) or another jurisdiction’s criminal code.
  • provision for mutual recognition of interstate issued prohibition orders.
Recommendation 6:

That each jurisdiction be responsible for determining its own arrangements with respect to the following matters, noting that as far as possible, national consistency is preferred:

  • the grounds for making a complaint, the preferred approach being that of NSW (a complaint may be about the professional conduct of a health practitioner) or QLD (a health service complaint is a complaint about a health service provided by a health service provider, including ‘the health, conduct or performance of a health care worker while providing a health service’);
  • the timeframe within which a complaint must be lodged;
  • the grounds for issuing an interim prohibition order and the maximum duration of such orders, the preferred maximum duration for interim orders being 12 weeks;
  • the entity or entities empowered to hear matters and issue prohibition orders;
  • the grounds for issuing prohibition orders, the preferred approach to include cancellation of registration under the Health Practitioner Regulation National Law as a ground for issuing a prohibition order;
  • the publication of prohibition orders and public statements, the preferred approach being broadly framed and flexible powers as in NSW and South Australia;
  • the powers of health complaints entities to monitor the compliance of persons who are subject to a prohibition order;
  • the level and type of penalties for breach of a prohibition order.
Recommendation 7:

That in implementing the nationally consistent code-regulation regime, jurisdictions agree to:

  • enact nationally consistent legislative provisions that enable the sharing information between health complaints entities and between health complaints entities and other regulators, along the lines of the information sharing powers contained in sections 216 and 219-221 of the Health Practitioner Regulation National Law.
  • undertake joint work to:
    • establish a common web portal, to be hosted on the server of a state or territory health complaints entity, to enable public access to all decisions and prohibition orders made by health complaints entities or tribunals in participating states and territories and that each health complaints entity provide a link to the portal from its own website;
    • develop and maintain a suite of nationally consistent explanatory materials for key target groups, and that these explanatory materials be made available in accessible formats (e.g. Plain Language, Easy English) on the websites of all health complaints entities.
  • establish a common framework for the collection and reporting of nationally consistent data on the performance of state and territory code-regulation regimes to enable a joint report on the performance of code-regulation regimes to be provided annually to the Council of Australian Governments Health Council (the COAG Health Council).
Recommendation 8:

That an independent review of the national code-regulation regime be initiated by Health Ministers following five years of the regime’s operation or an earlier review if requested by Health Ministers.

The full Final Report can be accessed at A National Code of Conduct for health care workers on the COAG Health Council website

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