Page 922 - Week 03 - Tuesday, 16 March 2010
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The New South Wales government, as I have already talked about, did give serious consideration to the adoption of the national scheme and was able to get agreement from COAG, at an early stage, that it would go ahead with its own complaints system and retain the role of its health services commissioner. It does seem that the ACT human rights legislation and the ACT health complaints process, or commissioner, were not adequately considered in terms of how this would interact with the national legislation until the process had moved to bill C.
So we have before us a bill that tries to retain the status quo of the ACT health complaints system while still meeting the COAG agreement, but the results in some places are unclear.
Until now, the investigation of health complaints about health practitioners has always largely been in the domain of the Health Services Commissioner, as prescribed under the Human Rights Commission Act. Yet the explanatory statement says:
It is intended that the National Board will deal with matters relating to health practitioners and their conduct and the health complaints entity will deal with matters that are systemic or administrative in nature.
Yet the legislation does not provide for this.
As a crossbench member, I am unable to change the explanatory statement; it is up to the government to do that. But I can propose amendments to the legislation.
Clause 150 of bill B, which we are looking to adopt into our law, goes to the heart of how boards and health complaints entities must work together. The manner in which this clause is presented, however, and how the government plans to amend it via bill C, means that instead of the status quo continuing in full, the commissioner will have to jointly consider with the board whether or not investigations should go ahead and the investigations the commissioner is responsible for under human rights legislation. In every case now the commissioner will have to argue, through the joint consideration process, that they wish to pursue the investigation. And given that the health complaints commissioner’s investigation of a case is more serious in hierarchy than a board investigating the matter, the commissioner will then continue with their investigation.
I am also proposing an amendment that allows the commissioner to refer a complaint to a board. This amendment was suggested by the health complaints commissioner. While I understand that such referral powers may already be possible under the legislation before us, the amendment would make the referral power more explicit and encourage greater trust between the boards and the commissioner.
It does have to be said that the process of implementation in the ACT could have been handled much better. Not adequately considering the current legislation and health complaints process we have in the ACT does seem to have led to a degree of misunderstanding about what has been proposed and resulting in a much more bureaucratic process than may have been necessary. And, as I already said, I think there has been a degree of misunderstanding about what has happened with the processes, and I believe this would clarify those.
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