NSW Bill To Amend Health Complaints, Disclosures and Investigations

Tuesday 20 October 2020 @ 3.29 p.m. | Legal Research

On 23 September 2020, New South Wales Minister for Health and Medical Research Brad Hazzard introduced the Health Legislation (Miscellaneous Amendments) Bill 2020 (NSW) (“the Bill”) into the Legislative Assembly. The Bill has since passed the lower house, with no amendments, and has been introduced in the upper house.

The Bill seeks to implement a number of recommendations from the report into the processes of the Medical Council of NSW in respect to Dr Emil Gayed (“the Furness Review”), and the report of the joint parliamentary inquiry into cosmetic health service complaints in NSW (“the Inquiry”).

The Furness Review

On 29 June 2018, the NSW Medical Council requested Ms Gail Furness to inquire into the actions of the former Medical Council in response to concerns raised about the professional performance of obstetrician and gynaecologist, Dr Emil Gayed. In her report, submitted in October 2018, Ms Furness made three key recommendations:

  1. Review and improvement of the current incident management reporting systems in order to ensure ongoing monitoring at a district level
  2. Enhancement of current processes to ensure visiting medical officers provide the appropriate care for patients in public hospitals
  3. Additional required oversight for practitioners

The Joint Parliamentary Inquiry

On 13 February 2018, the Committee on the Health Care Complaints Commission (“the HCCC”) started an inquiry into the cosmetic health service complaints in NSW. The Committee investigated the role of the HCCC and other regulatory frameworks in improving outcomes for the public who use cosmetic health services. The final report was submitted in November 2018.

The Inquiry found that the cosmetic health services industry presented a number of challenges because:

  • There was no agreed definition of what constituted cosmetic health services (“CHS”)
  • Both medically registered and unregistered health practitioners could provide CHS,  depending on relevant regulation
  • Lack of public awareness in regards to licensed and unlicensed facilities
  • Corporatisation of the CHS industry
  • Under-reporting of complaints
  • Lack of public awareness of CHS in the industry’s target markets

The Inquiry made 16 recommendations in its report. The recommendations generally sought to:

  • Review and enhance the powers and functions of the HCCC
  • Define the title of cosmetic surgeon more clearly in order to avoid misleading the public
  • Raise public awareness of CHS issues
  • Regulate the use of laser and intense pulsed light devices for cosmetic purposes
  • Require greater disclosure of upselling and commission incentives
  • Increase the role of General Practitioners in the decision-making process for patients

Amendments proposed under the Bill

The Bill proposes a key amendment to the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), to require a health professional council to notify employers when the council suspends a practitioner. Whilst councils currently notify employers, there is no requirement to do so. The amendment will also allow a council to notify an employer if a practitioner is in breach of conditions on their registration. This amendment seeks to increase the awareness of employees of a pratctitioner's complaints history, and allow them to decide if workplace action is required in order to protect patients.

The Bill also proposes amendments that will extend the HCCC’s powers under the Health Care Complaints Act 1993 (NSW). One of the amendments seeks to allow the HCCC to receive, assess, and investigate complaints against an organisation, which is alleged to have breached a code of conduct (to be passed after this Bill). If the breach is found to have occurred, the HCCC will have the power to issue a prohibition order against the organisation. This order will stop the organisation from providing a health service, or will impose conditions in relation to the provision of these services. The amendments under the Bill seek to allow the HCCC to take on a more proactive role in ensuring compliance with orders and recommendations.

Other amendments proposed by the Bill include:

  • Requiring registered practitioners in private health facilities to notify the licensee if they have been charged with or convicted of a serious sex offence or violence offence, a finding of unsatisfactory professional conduct, or professional misconduct
  • Extension of the HCCC’s powers of entry, including no longer requiring the HCCC to obtain a warrant to enter non-residential premises
  • Giving the HCCC power to require production of documents and answering of questions, in their assessment of compliance with prohibition orders and recommendations
  • Extending existing protections against disclosure that applies to information held by the HCCC to information that is held by health professional councils, where the information was shared by the HCCC

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Health Legislation (Miscellaneous Amendments) Bill 2020 (NSW) and supplementary information available from TimeBase’s LawOne Service

Cosmetic health service complaints in NSW (Committee on the Health Care Complaints Commission, Parliament of NSW)

Report into Dr Gayed released (NSW Health, 7 February 2019)

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