Health politics advocate/lawyer, founder of fightpharmacorruption.com to preserve and enhance natural therapies
The Victorian Health Complaints Bill failed to pass in the Upper House, the Legislative Council this week, after being passed in the Lower House on 25 February 2016.
So we have time to lobby hard given the next sitting day is 11 April 2016. So do something! Ring your local State politician and talk to your representative association if you have one. See link here for your local member at Victorian Legislative Council members.
The Health Complaints Bill can be found on this link Health Complaints Bill and Explanatory Memorandum. The compulsory Code of Conduct is listed in full at the end of this post.
Check out my first ever youtube video at dissection of the Health Complaints bill. Not too bad a start for my first nervous one.
So here are my first 13 reasons to trash this Health Complaints Bill
1. World first discriminatory attack upon Victorian natural medicine, health, wellness and spa practitioners, and their employers.
This legislation will not apply in any other Australian State.
2. Fundamental reversal of the regulatory culture from the current “Service, Conciliation and Review” framework to become only “Complaints”.
The current Health Services Commissioner administers the Health Services (Conciliation and Review) Act 1987, which will be repealed by the Health Complaints legislation, to be administered by a new Health Complaints Commissioner. If the new Commissioner requires legal qualifications, then no job left for Mr Grant Davies, the current boss, who has nursing and ethics qualifications.
3. Doctors get off the hook
Patients to be banned from complaining about doctors, dentists, surgeons and other AHPRA registered professionals, despite being the source of 99% of Victoria’s current complaints. Last year AHPRA registered practitioners were responsible for 1,429 complaints and natural medicine, health wellness and spa providers were subject to only 6 complaints – a huge public vote in confidence for this Bill’s target.
Mainstream medical and other AHPRA registered practitioners are excluded, despite the explanatory memorandum cautioning they will be covered in exceptional circumstances. The legislation is so obscure on this point, and so in conflict with the fundamental peer review embodied in the AHPRA legislation, you can safely ignore these statements.
4. 99% investigatory manpower freed up to politically target
Thus, the new Health Complaints Commissioner, and his bureaucratic army, will have an estimated 99% free time to personally pursue Victorian natural medicine, health, wellness and spa providers, who “get out of line”.
5. More parties can complain, including the Friends of Science in Medicine and the Commissioner
The range of parties who can lodge a complaint has been expanded to include third parties and the Commissioner. Good luck with the pencil sharpeners at the Friends of Science in Medicine. I say “people in glass houses should not throw stones”. So two can play at that game – see my post at Hot Seat for Professor Rowe, a Friend of Science in Medicine
6. Patients induced to complain
The Bill induces patients to make complaints about breaches of a new MANDATORY Code of Conduct, comprising approximately 45 conditions, because the patient must be advised each visit of the complaint form, together with the Code.
7. Why a Mandatory Code of Conduct enforced by Prohibition
What prompted this unprecedented use of the word “MUST”, or should I say who prompted this Mandatory Code. The word “MUST” never appears in the Medical Code of Conduct which is expressed to be a guide to doctors, as are the AHPRA Codes of Conduct for the other thirteen registered professions.
I am preparing an update of how this Bill significantly differs from the 2007 NSW Act which preceded the introduction of the AHPRA legislation in 2010, and which does feature a similar mandatory code of conduct. In fact, it is extraordinary that Victoria has been so sneaky in changing so many features from the NSW Act yet presenting the Bill without any comparison.
8. Complaints Commissioner becomes a disciplinary dictator
New Complaints Commissioner empowered personally with vast increases in investigatory powers and discretions to ban, shame and effectively jail practitioners. Most natural practitioners will not have the financial substance to legally defend themselves anyway. Sorry to inform the only appeal is to VCAT, an absolute nightmare experience for practitioners, as I know only too well from my involvement in Chiropractic Board of Australia v Hooper, probably the most bizarre decision in legal history. At least AHPRA were embarrassed enough to remove the summary of the Hooper case from their section detailing relevant cases to be noted by practitioners.
9. No Peer review or professional guidelines
The Bill is silent on professional peer review issues, unlike AHPRA registered practitioners, who have at least twelve adjudicators involved before you can be banned from practice.
Six peer group practitioners, and three community members, sit on each of the fourteen AHPRA professional boards, empowered to decide whether to refer a practitioner to the relevant Tribunal.
Each Tribunal hearing must have three decision makers, two of which must be peer group professionals, and one generally a senior lawyer or Judge.
10. Fundamental breach of natural justice
How can a Commissioner be the complaint gatherer, the prosecutor of the case, the Judge, and the public relations consultant, all behind closed doors with no rules of evidence, using a Mandatory Code of Conduct?
11. Lameduck Advisory Council
Even the proposed Health Complaints Advisory Committee has no rights to advise the Health Complaints Commissioner. The “Dictator” MAY ask for advice.
12. Lack of consultation with industry associations of natural medicine, health, wellness and spa providers
I have raised the matter with a large number of affected associations and am not aware of any being consulted prior to the introduction of this Bill, and certainly none that have informed their members prior to its introduction.
13. Your indemnity insurance premiums will have to rise significantly, as will your legal costs of compliance.
Ring your professional indemnity insurer and provide my posts and ask him for a fee estimate if this Bill gets up.
So why does Victoria need a tough new Health Complaints “Dictator” to be a global leader in attacking the natural health and wellness sector, clearly a centre of excellence from a patient viewpoint with the minimal six complaints lodged in 2014/2015 for the entire natural medicine, health, wellness and spa sector?
Answer: Another win for mainstream medical practitioners and their lobby group, the Friends of Science in Medicine, and their globally corrupt bankers, Big Pharma.
The Mandatory Code of Conduct can be found at Schedule 2 on page 134 of the Bill, but I reproduce it below.
Schedule 2—General code of conduct in respect of general health services
1 General health service providers to provide services in a safe and ethical manner
(1) A general health service provider must provide general health services in a safe and ethical manner.
(2) Without limiting subclause (1), general health service providers must comply with the following—
(a) a general health service provider must maintain the necessary competence in the provider’s field of practice;
(b) a general health service provider must not provide a health service of a type that is outside the provider’s experience or training, or provide services that the provider is not qualified to provide;
(c) a general health service provider must only prescribe or recommend treatments or appliances that serve the needs of clients;
(d) a general health service provider must recognise the limitations of the treatment the provider can provide and refer clients to other competent health service providers in appropriate circumstances;
(e) a general health service provider must recommend to clients that additional opinions and services be sought, where appropriate;
(f) a general health service provider must assist a client to find other appropriate health care services, if required and practicable;
(g) a general health service provider must encourage clients to inform their treating medical practitioner (if any) of the treatments or care being provided;
(h) a general health service provider must have a sound understanding of any possible adverse interactions between the therapies and treatments being provided or prescribed and any other medications or treatments, whether prescribed or not, that the provider is, or should be, aware that a client is taking or receiving, and advise the client of these interactions;
(i) a general health service provider must provide general health services in a manner that is culturally sensitive to the needs of the provider’s clients.
2 General health service providers to obtain consent
Prior to commencing a treatment or service, a general health service provider must ensure that consent appropriate to that treatment or service has been obtained and complies with the laws applying in Victoria.
3 Appropriate conduct in relation to treatment advice
(1) A general health service provider must accept the right of the provider’s clients to make informed choices in relation to the health services the client seeks or receives.
(2) A general health service provider must not attempt to dissuade a client from seeking or continuing medical treatment.
(3) A general health service provider must communicate and co-operate with colleagues and other health service providers and agencies in the best interests of their clients.
4 General health service providers to report concerns about the conduct of other health service providers
A general health service provider who, in the course of providing treatment or care, forms the reasonable belief that another health service provider has placed or is placing clients at serious risk of harm must refer the matter to the Commissioner.
5 General health service providers to take appropriate action in response to adverse events
(1) A general health service provider must take appropriate and timely measures to minimise harm to clients when an adverse event occurs in the course of providing treatment or care.
(2) Without limiting subclause (1), a general health service provider must—
(a) ensure that appropriate first aid is available to deal with any adverse event; and
(b) obtain appropriate emergency assistance in the event of any serious adverse event; and
(c) promptly disclose the adverse event to the client and take appropriate remedial steps to reduce the risk of recurrence; and
(d) report the adverse event to the relevant authority, where appropriate.
6 General health service providers to adopt standard precautions for infection control
(1) A general health service provider must adopt standard precautions for the control of infection in the course of providing treatment or care.
(2) Without limiting subclause (1), a general health service provider who carries out skin penetration or other invasive procedures must comply with the laws applying in Victoria.
7 General health service providers diagnosed with infectious medical conditions
(1) A general health service provider who has been diagnosed with a medical condition that can be passed on to clients must practise in a manner that does not put clients at risk.
(2) Without limiting subclause (1), a general health service provider who has been diagnosed with a medical condition that can be passed on to clients must take and follow advice from a suitably qualified registered health practitioner on the necessary steps to be taken to modify the provider’s practice to avoid the possibility of transmitting that condition to clients.
8 General health service providers not to make claims to cure certain serious illnesses
(1) A general health service provider must not claim or represent that the provider is qualified, able or willing to cure cancer or other terminal illnesses.
(2) A general health service provider who claims to be able to treat or alleviate the symptoms of cancer or other terminal illnesses must be able to substantiate such claims.
9 General health service providers not to misinform their clients
(1) A general health service provider must not engage in any form of misinformation or misrepresentation in relation to the products or services the provider provides or the qualifications, training or professional affiliations the provider holds.
(2) Without limiting subclause (1)—
(a) a general health service provider must not use the provider’s possession of a particular qualification to mislead or deceive clients or the public as to the provider’s competence in a field of practice or ability to provide treatment; and
(b) a general health service provider must provide truthful information as to the provider’s qualifications, training or professional affiliations; and
(c) a general health service provider must not make claims either directly to clients or in advertising or promotional materials about the efficacy of treatment or services the provider provides if those claims cannot be substantiated.
10 General health service providers not to practise under the influence of alcohol or unlawful substances
(1) A general health service provider must not provide treatment or care to clients while under the influence of alcohol or unlawful substances.
(2) A general health service provider who is taking prescribed medication must obtain advice from the prescribing health practitioner or dispensing pharmacist on the impact of the medication on the provider’s ability to practise and must refrain from treating or caring for clients in circumstances where the provider’s capacity is or may be impaired.
11 General health service providers with certain mental or physical impairment
(1) A general health service provider must not provide treatment or care to clients while suffering from a physical or mental impairment, disability, condition or disorder (including an addiction to alcohol or a drug, whether or not prescribed) that places or is likely to place clients at risk of harm.
(2) Without limiting subclause (1), if a general health service provider has a mental or physical impairment that could place clients at risk, the general health service provider must seek advice from a suitably qualified health practitioner to determine whether, and in what ways, the provider should modify the provider’s practice, including stopping practice if necessary.
12 General health service providers not to financially exploit clients
(1) A general health service provider must not financially exploit the provider’s clients.
(2) Without limiting subclause (1)—
(a) a general health service provider must only provide services or treatments to clients that are designed to maintain or improve clients’ health or wellbeing; and
(b) a general health service provider must not accept or offer financial inducements or gifts as a part of client referral arrangements with other health service providers; and
(c) a general health service provider must not ask clients to give, lend or bequeath money or gifts that will benefit the general health service provider directly or indirectly.
13 General health service providers not to engage in sexual misconduct
(1) A general health service provider must not engage in behaviour of a sexual or close personal nature with a client.
(2) A general health service provider must not engage in a sexual or other inappropriate close personal, physical or emotional relationship with a client.
(3) A general health service provider should ensure that a reasonable period of time has elapsed since the conclusion of the therapeutic relationship before engaging in a sexual relationship with a client.
14 General health service providers to comply with relevant privacy laws
A general health service provider must comply with the relevant privacy laws that apply to clients’ health information, including—
(a) the Health Records Act 2001; and
(b) the Privacy and Data Protection Act 2014; and
(c) the Privacy Act 1988 of the Commonwealth.
15 General health service providers to keep appropriate records
(1) A general health service provider must maintain accurate, legible and up-to-date clinical records for each client consultation and ensure that these are held securely and not subject to unauthorised access.
(2) A general health service provider must take necessary steps to facilitate clients’ access to information contained in their health records if requested.
(3) A general health service provider must facilitate the transfer of a client’s health record in a timely manner when requested to do so by the client or the client’s legal representative.
16 General health service providers to be covered by appropriate insurance
A general health service provider should ensure that appropriate indemnity insurance arrangements are in place in relation to the provider’s practice.
17 General health service providers to provide access to code of conduct and other information
(1) A general health service provider must bring each of the following documents to the attention of, or make available a copy of each of the following documents to, the clients of the general health service provider when providing or offering to provide a general health service—
(a) a copy of this code of conduct;
(b) a document that gives information about the way in which clients may make a complaint to the Commissioner.
(2) Copies of these documents must be made available in a manner that makes them easily accessible to clients.