Bills Digest no. 11 2009–10
Health Legislation Amendment (Midwives and Nurse
Practitioners) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 24 June
2009
House: House of Representatives
Portfolio: Health and Ageing
Commencement:
Formal provisions on Royal Assent. Schedule
1, dealing with the new Medicare benefits and Pharmaceutical
benefits arrangements, commences the day after Royal
Assent.
Schedule 2,
incorporating changes to indemnity arrangements, will commence when
the Midwife Professional Indemnity (Commonwealth Contribution)
Scheme Act commences (proposed for 1 July 2010).
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
To facilitate new arrangements:
- to expand the role of qualified, eligible nurse practitioners
and midwives to allow them to request appropriate diagnostic
imaging and pathology services for which Medicare benefits can be
paid
- to allow qualified, eligible nurse practitioners and midwives
to prescribe certain medicines on the Pharmaceutical Benefits
Scheme
Background
Medical workforce shortages have been a cause for concern in
Australia since the mid 1990s. More recently, however, it has been
acknowledged that shortages also exist throughout most of the
health professions. In 2005, the Productivity Commission released a
groundbreaking report which argued that there was no simple
solution to this problem. A multi-pronged national approach was
required. Such an approach was needed to deal with structural
pressures on the health system caused by a changing mix of disease
burdens, rising expectations of patients, ageing of the population
and the health workforce and various technological advances. The
Commission suggested that one aspect of the approach may be to
integrate new models of care and workforce practices into health
planning to accommodate and utilise the wider range of treatment
possibilities .[1]
The Commission s report was labelled by some as a wake-up call
which proposed radical changes that could embrace the full scope of
the health workforce, rather than focusing simply on
doctors.[2] In
contrast, certain critics saw the Commission s reform agenda as
advocating the substitution of highly trained medical practitioners
with other, lesser trained health workers.[3]
The Howard Government (1996 2007) did not respond to the
Commission s recommendations advocating the exploration of
alternative health workforce solutions. Throughout its term the
Howard Government s strategy in addressing health workforce
shortages focussed on increasing numbers of medical and nursing
students and support for traditional definitions of the scope of
practice for doctors and nurses.[4]
While the Labor Party also promised
to increase university places for nurses, prior to the 2007
election campaign, it indicated that it was equally prepared to
consider new approaches to workforce issues.[5] One such approach involved looking at
alternative ways to use the expertise of nurse practitioners,
mental health nurses and midwives.[6] (See box 1 for definition of these practitioners
by the Australian Nursing and Midwifery Council.)
Box 1: definition of nurse practitioners and
midwives
Nurse practitioners
The Australian Nursing and Midwifery Council definition of a
nurse practitioner is:
A nurse practitioner is a registered nurse, educated and
authorised to function autonomously and collaboratively in an
advanced and extended clinical role. The nurse practitioner role
includes assessment and management of clients, using nursing
knowledge and skills and may include, but is not limited to the
direct referral of patients to other health care professionals,
prescribing medications and ordering diagnostic
investigations.[7]
Nurse practitioners have proven an innovative means of
supplementing the services of doctors in a number of countries
including the United States and New Zealand. Nurse practitioners
were first introduced in New South Wales in 2000. There were 367
nurse practitioners in Australia in April 2009.[8]
Requirements to become an authorised nurse practitioner differ
in each state and territory but generally, nurse practitioners are
required to have completed a Masters degree and in some states, a
medication module for prescribing rights.
Midwives
The Australian Nursing and Midwifery Council describes a midwife
as a person who has completed a prescribed course of studies in
midwifery and is registered or legally licensed to practice
midwifery.
The midwife is recognised as a responsible and accountable
professional, who works in partnership with women to give the
necessary support, care and advice during pregnancy, labour and the
postpartum period, to conduct births on the midwife s own
responsibility and to provide care for the newborn and the infant.
This care includes preventative measures, the promotion of normal
birth, the detection of complications in mother and child, the
accessing of medical care or other appropriate assistance and the
carrying out of emergency measures.
The midwife has an important task in health counselling and
education, not only for the woman, but also within the family and
the community. This work involves antenatal education and
preparation for parenthood and may extend to women s health, sexual
or reproductive health and child care.
A midwife may practise in any setting including the home,
community, hospitals, clinics or health units.[9]
Following Labor s election victory, the Minister for Health and
Ageing, Nicola Roxon, raised the issue of the possible
re-allocation of tasks between general practitioners and other
health professionals in a number of instances. She considered that
many routine tasks currently performed by medical practitioners
could be better delivered by other health practitioners. This type
of greater involvement of allied health workers in the delivery of
care could particularly ease the workforce burden of general
practitioners by freeing up their time and skills, which could then
be more effectively used for the benefit of patients. In a
September 2008 speech she argued:
there needs to be an incentive for doctors to
eschew less complex work, and focus on the work that does require
their high level skills and expertise. Or if doctors don t want to
let go of [less complex work], to accept being paid less for
devoting their highly skilled and heavily trained selves to less
complex tasks than they might.[10]
Later in the year Minister Roxon encouraged nurse practitioners
to increase their numbers. She suggested that providing them with
access to the Medicare and Pharmaceutical Benefits Schedules would
represent a positive and opportunistic outcome for the health
system.[11]
In June 2008, the Minister directed the Commonwealth Chief Nurse
and Midwifery Officer, Rosemary Bryant, to conduct a Maternity
Services Review (the review). The review attracted more than 900
submissions from a range of stakeholders, including health
professionals, researchers, non-government organisations,
representative organisations and individuals.
The review report, released in
February 2009, noted that Australia is one of the safest countries
in the world in which to give birth or to be born. At the same
time, maternity care was seen not to be meeting the needs of all
women.[12]
Issues raised in submissions to the
review reflected the different perspectives of stakeholders. These
included:
- consumer concern about the limited choices in models of care
available
- midwives and nurses concerns about a lack of recognition for
the services they provide and constraints on their practice caused
by funding and lack of indemnity
- the medical profession s concern that changes to maternity care
could result in the loss of specialist expertise. Medical
practitioners expressed particular concern about the safety
repercussions of home birthing as a possible endorsed maternity
services option for women.
The review made a number of recommendations in what it
identified as key areas:
- safety and quality
- access to a range of models of care
- inequality of outcomes and access
- information and support for women and their families
- maternity workforce and
- financing arrangements.
Expanding the role of midwives to deliver greater access to a
range of models of maternity care within a collaborative
multidisciplinary care environment was central to the review s
recommendations. Supplementary to this fundamental recommendation
were proposals that the Government consider changes to funding
arrangements for midwives and support for the provision of
professional indemnity insurance. The review also recommended the
introduction of cross-professional guidelines, which could support
collaborative care arrangements, collection of data and the
monitoring of new models.
While the review report argued that women needed comprehensive
and reliable information about the range of antenatal, birthing and
postnatal care, one omission in the area of birthing options that
some consider it did not address in detail home birthing has become
the subject of considerable debate.
Response to the Maternity Services Review was mixed, and
arguably, based on preconceived perceptions of what should be a
legitimate role for the nursing profession. The Royal Australian
College of General Practitioners (RACGP) was tentative in its
reaction. On the one hand, the college was supportive of the
teamwork approach to maternity services the review recommended.
However, it was concerned about possible fragmentation of care
created by new silos of care delivery , which it believed would be
created by increasing the responsibility and scope of nursing
practice.[13]
Similarly, while the Rural Doctors Association of Australia
welcomed the review s recommendations, at the same time, it noted
its belief that medical practitioners are the key to improving
access to maternity services in rural Australia .[14] Nursing bodies on the other
hand, were enthusiastic about the review s conclusions; the
Australian Nursing Federation(ANF) labelled it a good beginning and
the college of midwives applauded its intentions.[15]
From a consumer perspective, the Consumers Health Forum (CHF)
concluded that overall, the review s recommendations would deliver
a more people-centred, flexible, team-centred health
system.[16] But on
the negative side, CHF was disappointed that the review did not
recommend professional indemnity coverage for midwives in private
practice.[17]
Associate Professor of Midwifery at the University of Western
Sydney, Hannah Dahlen, was also generally positive about the
review. But she expressed concern that more consideration was not
given to creating an effective homebirth model. She warned that if
homebirth was pushed underground and its skills lost, safety would
ultimately be compromised, not improved .[18] The homebirth issue has gathered
momentum since the introduction of this legislation and the release
of an exposure draft of legislation which is intended to accompany
the national registration and accreditation scheme for health
professionals.
In response to the Maternity Services Review the Government
announced a $120.5 million package of maternity measures in the
2009 10 Budget. It claimed the package not only recognised the role
played by midwives in the birthing experience of many Australian
women, but that it also gave families a greater choice in the type
of care they wish to receive when having a baby .[19]
The package was to give access to Medicare Benefits Schedule
(MBS) and Pharmaceutical Benefits Scheme (PBS) benefits for
services provided by midwives defined as eligible under
legislation:
- to provide a government-supported professional indemnity
insurance scheme for eligible midwives
- to deliver more midwifery services to rural and remote
communities
- to provide more scholarships for general practitioners and
midwives and
- to initiate a 24 hour, seven days a week telephone helpline and
information service to provide greater access to maternity
information and support before and after birth.
The Health Legislation Amendment (Midwives and Nurse
Practitioners) Bill 2009 defines the meaning of eligible midwife
and nurse practitioner (see the definitions table in Main
Provisions below).
Nurse practitioners defined as eligible under legislation were
also to gain access to the MBS and PBS through funding in the 2009
10 Budget. This achieved a goal that nursing organisations had
sought since the first trials of nurse practitioners were begun in
the 1990s. The ANF had often made the point, as it did in its
submission to the Productivity Commission, that nurse practitioners
are educationally prepared and have the clinical experience needed
to deliver quality and safe health care in collaboration with other
health care providers.[20] However, constant and vigorous opposition by the
medical profession to their gaining access to the rights to
initiate diagnostic investigations, prescribe medicines and
directly refer patients for specialist medical care has seriously
limited their scope of practice.[21]
Response to the Budget package from most stakeholders was
similar to that which greeted the Maternity Services Review. The
Australian Nursing Federation considered that the proposed rebates
would help break down the barriers that prevent Australians
accessing equitable health care .[22] It would also provide real incentives for nurses
to undertake nurse practitioner training as that career pathway
would be seen as a challenging and attractive option.[23]
On the other hand, the Royal Australian College of General
Practitioners (RACGP) argued that, unlike funding for practice
nurses, $59.7 million provided to support the expansion of the role
of nurse practitioners does not meet the workforce needs of
Australian general practice .[24] One view of this response was that it was most
likely based on the fact that unlike practice nurses, nurse
practitioners work independently, and not as part of teams
supervised by medical practitioners.[25]
According to some commentators, while the AMA was not happy with
the Budget announcement and with the introduction of legislation to
extend benefits to nurse practitioners, it acknowledged that the
writing was on the wall .[26] However, soon after the Budget the AMA elected a new
President, Andrew Pesce, who, to date, has adopted a more
conciliatory approach to dealing with government overall. As a
result, when this Bill and accompanying legislation was introduced
in June 2009, the AMA pledged to work with the Government to ensure
patients benefit from the introduction of new prescribing rights
.[27] This
cooperative approach could be interpreted in a number of ways. It
may be that it is a first step away from the medical profession s
traditional stance that it should be the sole gatekeeper of health
services. On the other hand, it may be that the AMA has determined
a conciliatory approach which is more likely to ensure that its
views continue to be heard and, more importantly, that they
influence policy development to the advantage of the medical
profession.
The Budget package had consequences that were probably
unforeseen, in that it prompted pharmacists to demand access to the
PBS, because of their detailed knowledge of medications and their
face-to-face interaction with consumers .[28] This reaction will no doubt raise
questions about whether extending rights to one group of
practitioners does indeed open a Pandora s Box. There will be some
who conclude that it does. They will argue that it is better to
persist with the existing model of doctor-centric health service
delivery, not only to ensure patient safety, but also to limit
costs to the system, which may result from multiple consultations
and claims. Others will disagree. They will point to successful
overseas applications of nurse and alternative practitioner
prescribing, which has been proven to be effective, both in terms
of cost and patient outcomes.[29] This question is likely to be posed frequently as
this and other health workforce reforms are suggested, considered
and either rejected and/or trialled.
In 2008, the Council of Australian Governments agreed to
establish a national registration scheme for certain health
professionals (see Box 2 for background on the scheme). The scheme
is due to be implemented in July 2010 and is intended to provide
more flexible and accountable arrangements for these health
professionals.[30]
The first stage of legislation to implement the scheme was passed
in 2008, following extensive consultation processes, on 12 June
2009 the Australian Health Workforce Ministerial Council released
an exposure draft of the second stage of legislation. The
legislation will continue administrative arrangements already
established under first stage legislation, but it deals also with
other matters, including registration and accreditation. Under the
proposed legislation, practitioners will be required to have
suitable professional indemnity insurance during the period of
their registration .[31] According to Australia s home birthing movement, this
requirement will effectively make home birthing illegal, as home
birthing midwives will not be eligible for indemnity insurance once
the national scheme is introduced.[32]
Homebirth Australia considers that the Maternity Services Review
was dismissive generally of the home birth movement, and that it
labelled women who choose home birth as a trivial minority
.[33] Homebirth
Australia considers that while the review adopted this approach to
home birthing it failed to explore the reasons for the current
small numbers of home births. Nor did the review compare home birth
statistics with other minority birthing choices, such as caesarean
section on request. And it argues that there is certainly no
consideration of banning these choices .[34] Homebirth Australia believes the
review is a response to those who wish to limit women s birthing
choices. It claims this is illustrated by the review s reluctance
to support a home birthing model because that model risks
polarising the [health] professions rather than allowing the
expansion of collaborative approaches to improving choice and
services for Australian women and their babies .[35]
Homebirth Australia expresses its most serious concern, however,
about the review s observations about indemnity for home birthing
midwives:
For privately practising midwives, it is not
currently a requirement in most jurisdictions to have professional
indemnity cover in place before registration is granted. However,
this situation is expected to change under the proposed new
National Registration and Accreditation Scheme.[36]
This is indeed most likely to be the case when the scheme is
introduced and as Homebirth Australia notes, this will mean that
midwives working in private home birth practice will be working
illegally. They add that this situation may force more women to opt
for unattended home birthing.
Homebirth Australia concludes that the maternity services
legislation package will
reinforce a subordinate position for midwives
relative to doctors by proposing to restrict midwifery practice in
line with the prejudices of less collaborative doctors. This
undermines the relationships [the review hopes] to enhance. The
Government must make it clear that the needs, interests and
autonomy of women come first.[37]
While this Bill is not the underlying legislation which will
criminalise home birthing midwifery, it appears that aspects of the
Bill may reinforce legislation associated with the introduction of
the national registration and accreditation scheme which is
currently in exposure draft form as noted above. For example this
Bill includes proposed paragraph 21A (3)(b) of the
Health Insurance Act 1973, which provides the Minister
with a capacity to specify the types of premises at which eligible
midwives can provide services. It may be that the provisions in
these regulations will exclude private homes.
The issue of homebirths is covered in greater depth in the
cognate Bills Digest for the Midwife
Professional Indemnity (Commonwealth Contribution) Scheme Bill
2009.[38]
Box 2: National registration and accreditation scheme
for health professionals
In its 2005 report on the health workforce, the Productivity
Commission recommended the establishment of a single national
registration board for health professionals, as well as a single
national accreditation board for health professional education and
training. The Commission considered this system would increase the
flexibility, responsiveness, sustainability and mobility of the
health workforce.[39]
In response to the Commission s recommendations, the Council of
Australian Governments (COAG) decided in March 2008 to establish a
national scheme covering both registration and accreditation
functions which will commence operation in July 2010. Under the
scheme each state and territory is to pass legislation to allow for
the establishment of national boards for nine health professions.
This is to have the effect of abolishing current registration
boards for those professions.[40]
Queensland was given responsibility for the legislative
development of the national scheme. It passed initial legislation
to this end in November 2008.[41] This legislation dealt with matters such as the
establishment of an agency and boards to administer the national
scheme.
Subsequent legislation, which in July 2009 is in exposure draft
form, and follows consultation by a group set up by Australian
Health Ministers Advisory Council, is intended to deal with matters
relating to registration and accreditation arrangements,
complaints, privacy and other relevant matters.[42]
The Australian Medical Association (AMA), the Committee of
Presidents of Medical Colleges (CPMC) and the Royal Australian
College of General Practitioners (RACGP) have expressed various
concerns about the national registration scheme. They argue firstly
that it may not enhance patient safety as it may result in the
lowering of professional standards.[43] They argue also that the scheme may
be subject to government interference in the setting of
professional standards and that it is too bureaucratised.[44]
Tellingly, the AMA and the majority of Australia s specialist
medical colleges also believe that the scheme could provide a
vehicle for other health professionals to take on tasks
traditionally performed by doctors without consulting the medical
profession .[45]
Along with two cognate Bills, the Health Legislation Amendment
(Midwives and Nurse Practitioners) Bill 2009 and the Midwife
Professional Indemnity (Commonwealth Contribution) Scheme Bill
2009, this Bill has been referred to the Senate Community Affairs
Committee for inquiry and was due to report by 7 August 2009. On
that date the Committee issued an interim report pointing to the
1880 submissions received and suggesting that more time was
necessary to give due consideration to the submissions. The new
reporting date is 17 August 2009. Details of the inquiry are at
http://www.aph.gov.au/Senate/committee/clac_ctte/health_leg_midwives_nurse_practitioners_09/index.htm
The Australian Medical Association (AMA) has consistently
criticised the idea of other health professionals taking over some
of the tasks traditionally undertaken by medical practitioners,
derisively labelling the concept as task substitution . In 2004 AMA
Vice-President Mukesh Haikerwal dismissed a suggestion that
provider numbers could be issued to nurses to help overcome general
practice workforce shortages, arguing that if people wanted to
deliver medical services, they should get a medical degree.
In 2005, the Australian Medical Association Council of General
Practice (AMACGP) argued in similar terms that independent nurse
practitioners could not replace the expertise of general
practitioners and that attempts to do so had resulted in the
delivery of vastly inferior services.[46] Continuing in this vein, the AMA in
its response to the Productivity Commission report, primarily
interpreted the Commission s proposals for reform as task
substitution which it argued inevitably leads to poorer health
outcomes for patients.[47] According to the AMA, task substitution produces a
competitive regimen of overlapping clinical roles ; it calls
instead for reforms to the health system that synergise the
different skills of doctors, nurses and other health professionals
.[48] In effect,
the AMA view has been that when Australians are sick, they want to
see a doctor, they do not want to be directed to a lesser
professional.[49]
The initial response to the Maternity Services Review report
from the AMA reflected an antagonistic relationship that had
developed between government and the AMA during the tenure of its
immediate past President, Rosanna Capolingua. Dr Capolingua saw the
review as reinforcing existing practice where midwives work in
collaborative teams with obstetricians and general practitioner
obstetricians. She accused Minister Roxon of interpreting the
review s findings in a gung ho manner, and appeared to refuse to
concede the collaborative approach to maternity service delivery
that it had emphasised. [50]
In September 2008 a Medical Observer survey reported
that approximately 70 per cent of general practitioners were
opposed to allowing allied health workers rights to prescribe, even
under supervision and thought that increasing the role of allied
health professionals would compromise patient safety.[51]
The AMA made it clear in its submission to the Maternity
Services Review that any support for expanded funding arrangements
for midwives (and by implication nurse practitioners) would be
premised on the restriction that it was made available within a
medically supervised model. It noted emphatically:
Highly interventionist government agendas to
advance an ideological cause are likely to create problems in the
delivery of maternity services and exacerbate tensions in
interprofessional relationships, not improve them. Actions by the
government which favour one particular new model of care over
another will generally not be in the interests of patients, will
restrict real choice and will be inequitable.
The Government should not introduce any
publicly funded arrangement which is based on independent midwife
care for mothers and babies in Australia or use public funds to
encourage separate streams of midwife led maternal care on the one
hand and medical maternal care on the other. This will create two
separate streams of care and the gulf between these will be
detrimental to good patient care. The gulf cannot be addressed
through protocols and other ameliorating initiatives and will
ultimately lead to less safe care for mothers and babies.[52]
In
particular, as has been noted elsewhere in this digest, the AMA was
strongly opposed to publicly funded midwife led home birth . It
cited a 1998 Australian Study published in the British Medical
Journal which showed that in-home birthing by midwives is
three times more likely to lead to perinatal mortality than
conventional options, even for lowest risk pregnancies. It
noted:
evidence for increased perinatal death rates is
compelling and the difference is so substantial that the Federal
Government could not reasonably nor responsibly introduce payment
arrangements which encourage and sanction such activities. If the
Government did sanction such practices, it is likely that
independent midwives would be encouraged by this action to extend
their practice into riskier patient selection areas and this could
well see an escalation of an already very significant risk
differential.[53]
Further information regarding this issue, with a critique of the
study and analysis of other studies is available in the cognate
Bills Digest for the Midwife Professional Indemnity (Commonwealth
Contribution) Scheme Bill 2009. While the AMA s new President
appears to have taken a less antagonistic approach to health
workforce in general, it does not appear that its stance on this
particular issue has changed.[54]
It remains also that the AMA is uncomfortable with aspects of
the Government s health workforce reform agenda that seek to expand
the roles of other health practitioners. And while Dr Pesce does
not condemn the direction outright, in a recent speech to the
National Press Club, he labelled this Bill and associated
legislation as risky because it may lead to the fragmentation of
care, increased risks of poor health outcomes and rising health
costs.[55] Of
particular concern to Pesce is how team care will function in the
future. He argues:
Further discussion and debate is needed around
the concepts of team care as opposed to independent care as opposed
to autonomous care as opposed to clinical leadership. These are all
very different concepts but they are used interchangeably by the
Government at different times to different audiences. More
information is needed on how the proposed collaborative care
models, that are supposed to be in place soon, will work. But I
will make one point very clear the AMA will continue to promote the
central role of the GP in patient care
The GP-led system works. When people are sick,
they want to and have a right to see a doctor. That is why the AMA
must be involved in developing and implementing any changes to
ensure that any new arrangements result in safe, quality outcomes,
and that patient care is not fragmented. So, I am pleased to report
that the Prime Minister s Office has invited the AMA to be part of
the implementation process. We will be involved in consultation and
providing advice in developing the regulations that will underpin
the new legislation on nurse practitioners and midwives. We
certainly have strong views about the safeguards that are required
to protect the quality and safety of health care. And we will be
making sure that these views are put clearly to the
Government.[56]
In contrast to the stance generally taken by the AMA, many other
organisations have been supportive of increasing the roles and
responsibilities of other health professionals. The Australian
Nursing Federation (ANF) has long stressed that the skills of
nurses are underused. The ANF has, however, been sceptical in the
past about the extent to which this type of reform can succeed,
given the considerable influence on government policy it believes
the medical profession has traditionally wielded.[57] In its response to the
Productivity Commission report the ANF claimed:
government's track record is not good in
confronting doctors [it] panders to doctors as a sectional interest
group rather than looking at what is best for the health sector as
a whole doctors appear to consider that, while health reform is
essential, it should not apply to them.[58]
Despite its scepticism about reform, the ANF in welcoming this
legislation, congratulated the Government for recognising the
benefits that highly skilled and educated nurse practitioners and
midwives bring to the health of all Australians .[59]
The issues of home birthing and indemnity for midwives have
prompted a number of media and stakeholder responses to this
package of bills. One report cited a coroner s warning of
disastrous consequences if midwives working outside hospitals are
not covered by indemnity insurance. Anther commentator warned that
rogue operators will replace the qualified professionals who are
unable to be registered to practice.[60]
It was predicted in the press in March 2009 that the indemnity
issue could create obstacles to achieving maternity services
reform. One health commentator surmised that indemnity insurance
payments could cost taxpayers between $12 and $24 million annually
in subsidies, as premiums for private practice could be similar to
those paid by obstetricians (between $60 000 and $100 000 for
individual policies).[61] One insurer suggested that even if the Government did
subsidise indemnity insurance for midwives, insurance companies may
be reluctant to fill the void for fear of alienating their own
members, many of whom are at best cautious about independent
midwifery .[62]
A significant number of responses to the Maternity Services
Review were from the general public and it appears the same may be
the case for the Senate inquiry being conducted into the
registration and accreditation scheme and the Senate review of this
legislation. Public submissions to the Maternity Services Review
overwhelmingly argued for increasing the number of birthing options
and many criticised the intention to exclude private midwives from
indemnity insurance. The tone of submissions received to date by
the Senate Committee into registration and accreditation appears to
indicate that similar support for private midwives will be promoted
to the inquiry.[63]
Once again this issue is dealt with in more detail in the cognate
Bills Digest for the Midwife Professional Indemnity (Commonwealth
Contribution) Scheme Bill 2009.
There appears to have been no official comment on the Maternity
Services Review and recommendations arising from the review from
political parties or independent members. However, Senator Rachel
Siewert noted on 31 July 2009 the Australian Greens objections to
legislation that would make it illegal for midwives to attend home
births. While the Greens expressed support for the Government s
proposals to modernise maternity services overall they intended to
move amendments to protect the rights of women to choose safe
homebirths .[64]
They argued that preventing private midwives from providing this
service
will be dangerous for mothers and babies. It
flies in the face of international trends in maternity care and
appears completely inconsistent with the Governments stated policy
of providing pregnant women with greater choice and less
interventionist maternity care.[65]
The Liberal Member for Mitchell, Alex Hawke had also previously
raised the issue of home birthing in the Main Committee of the
House of Representatives in June. Mr Hawke expressed his support
for the women who had approached him concerned that their birthing
choices would be denied following the introduction of the national
accreditation and registration scheme for health professionals. He
noted:
since 1993 the UK s official policy has been
that women should have more choice in the place of birth, and this
is a position which the coalition supports. We certainly support
the choice of childbirth options for women. The government has not
resolved this situation despite it being noted in the maternity
services review, and from listening to the experiences of these
midwives and mothers within my electorate I can understand their
concern The shadow minister for health has written personally to
the Minister for Health and Ageing raising these concerns and
requesting that the government act and resolve this
situation.[66]
Family First Senator Steve Fielding, who attended a rally
outside the Health Minister s office electorate office on 4 August,
also noted his opposition to this package of legislation. Senator
Fielding condemned it as outrageous and inconsistent with what
occurred in other health systems around the world, adding that it
was another example of the Government telling people what to do. It
was a woman s right to decide where and how she should give birth,
according to the Senator.[67]
This legislation has reignited a long-standing debate over the
issue of task substitution. The fundamental argument against task
substitution has been that it inevitably compromises health
outcomes, but it is further claimed that task substitution does not
take into account that patients prefer and expect a doctor to
provide their care.
However, considerable evidence from countries such as the United
States, Britain, Canada and New Zealand amongst others, suggests
the opposite is the case alternative health practitioners can
improve health outcomes by supplementing the work of medical
practitioners.[68]
In addition, overseas experience highlights that employing
competent nursing and other professionals to deal with routine care
lightens the work load of doctors. Additionally, it allows them to
use their skills more effectively in treating complex
conditions. This, in turn can help to increase
medical practitioners job satisfaction.[69]
But as noted earlier in this digest, it has been argued that a
fundamental objection by the medical profession to task
substitution is based on its desire to ensure that its position of
prominence in the health system remains intact. For this reason,
sections of the profession have continually dismissed suggestions
that task substitution by other practitioners adds to the quality
of health care. They argue instead for workforce changes that focus
on delegation/partnership outcomes, a key requirement of which is
medical practitioner supervision and involvement. That is, a team
work approach wherein medical practitioners are the natural and
appropriate leaders.[70] To paraphrase one practitioner, this approach is the
best protection for the medical profession .[71]
On the other hand, task substitution has been promoted as a
means through which a more flexible workforce can be achieved a mix
of skills, rather than concentrating on the skill one or other type
of health worker can deliver.[72] According to this argument, this flexibility is
better able to deliver the right patient outcomes.
One early study in the United Kingdom for example noted that
patients were more satisfied with nurse practitioner consultations
than general practice consultations. This study noted also that
there were few differences in clinical care and no difference in
clinical outcome between nurse practitioner and general
practitioner consultations. In addition, health service costs were
not significantly different between nurses and general
practitioners.[73]
Other studies have presented similar results, finding that patients
approve of, and accept task substitution. They are also happy with
nurse prescribing which some commentators have found improves
patient outcomes, because it promotes people-centredness, quality
of care and accountability .[74] Nurse prescribing has been seen to increase the
competency of nurses and to foster better communications between
health teams. Overall, it has been praised for fostering more
timely interventions, more effective supervision of chronic
conditions and a maximisation of health resources.[75]
From an Australian perspective, there is some evidence which
points to the value of task substitution. Ten years ago the
Victorian Nurse Practitioner project concluded that granting
prescribing rights to nurse practitioners had improved patient
care. In addition, it fostered relationships between patients and
nurses and within the health delivery team. Additionally, it had
the potential to reduce health costs.[76]
This legislation may be a step towards promoting a new concept
of the health team ; one that abandons long-standing notions that
nurses are subservient to doctors, rather than cooperative
professionals.[77]
While nurse practitioners have previously had limited
and varied prescribing rights under state and territory
legislation, granting access to Medicare and the PBS challenges the
medical practitioner centric focus of health care and promotes a
move towards the more collaborative model to which all
professionals at least pay lip service.[78] It need not devalue the doctor s
role, as some medical practitioners have argued, but instead places
more value on the role of nurses and midwives.
In the
context of task substitution, it needs to be noted that any new
spirit of team collaboration that it may foster can only be
effective if there are adequate numbers of practitioners available.
There have long been concerns that this may not be the case in the
future, despite Government commitments to increase the numbers of
doctors and nurses. It has been suggested that existing strategies
will only serve to replace practitioners due to retire and
compensate for changes in working practices.[79] There must be questions also
about whether there will be sufficient numbers of nurses, even in
the short term, to undertake the enhanced roles this legislation
proposes for them.
Peak nursing organisations in Australia have expressed concern
since the late 1990s that not enough has been done to address the
shortages of nurses generally. Between 2001 and 2005 a number of
reports were commissioned examining the entry level and specialist
nursing and midwifery workforces. Estimations were that a 120 per
cent increase in nursing numbers was required to balance workforce
needs by 2020.[80]
And granting access to Medicare and the PBS for a limited number
of nurses does not address other fundamental issues such as the
overall status of the nursing profession. Nor does it take into
account the complexity of the problems in nursing workforce supply,
which range from a lack of academic staff to the crucial issues of
wages and conditions. A number of surveys have indicated that a
lack of career path for experienced nurses, overwork, staff
shortages, frustration, physical and emotional exhaustion and
perceptions that their work continues to be undervalued and
unappreciated and that they are not respected by doctors, may
contribute more to attrition than pay.[81] At the same time, this legislation
may make some progress not only towards improving the status of
nursing in general but also, as noted earlier in this Digest,
towards providing greater career opportunities and improved
morale.
The Explanatory Memorandum provides detail on the financial
implications of this Bill. According to the Explanatory Memorandum,
MBS and PBS components of the measures that this Bill will enable
through delegated legislation will cost $111.3 million over four
years. Costs include administrative and Department of Health and
Ageing costs as well as administrative costs allocated to Medicare
Australia to introduce the necessary systems changes and to manage
the program. These are set out in the table below:
| 2009-10 ($ million) |
2010-11 ($ million) |
2011-12 ($ million) |
2012-13 ($ million) |
Total ($ million) |
| 14.8 |
17.5 |
32.3 |
46.7 |
111.3 |
Definitions and other matters
The Bill inserts various new definitions governing midwives and
nurse practitioners into the Health Insurance Act 1973
(the HIA) so that they can be regulated by the Commonwealth and
incorporated in to various aspects of the Medicare system. There
are three new types of definition proposed in the Bill:
|
Basic Criteria
|
Eligible
|
Participating
|
|
Midwife (definition introduced in item 4)
Nurse practitioner (item 5)
|
Eligible midwife
(items 1 and 25)
Eligible nurse practitioner
(item 2)
|
Participating midwife (item 6, 21A and 21B)
Participating nurse practitioner
(item 7, 22 and 22A)
|
|
Both definitions require the person to have satisfied the
relevant State or Territory requirements.
|
Both definitions depend on the person meeting the basic criteria
and requirements in the relevant regulations which may be
made by the Minister (for instance particular qualifications,
experience or having credentials from a particular body).
The provisions governing midwives are more extensive, specifying
that if there are no regulations there can be no eligible midwives.
Nurse practitioners must only comply with the regulations if they
exist.
|
Both definitions require the assent of the eligible professional
to a common form of undertaking if it has been promulgated by the
Minister, which is effective once the Minister has accepted the
undertaking.
Examples of the provisions in a common form of undertaking
include a specification of where the practice must take place, the
kinds of service offered or arrangements regarding the fees
charged.
In the absence of a common form of undertaking an eligible
midwife or nurse practitioner is a participating midwife or nurse
practitioner.
|
The Bill also incorporates midwives and nurse practitioners into
the National Health Act 1953 (NHA) as pharmaceutical
benefits scheme (PBS) prescribers. The definitions used in the NHA
are very similar to the HIA definitions, with some context specific
variations. Rather than repeating the provisions a comparative
table is provided:
|
Basic
Criteria
|
Eligible
|
Authorised
|
|
Midwife (item 67)
Nurse practitioner (item 68)
|
Eligible midwife
(items 72 and 79)
Eligible nurse practitioner
(items 73 and 79)
|
Authorised midwife
(item 70 and 79)
Authorised nurse practitioner (item 71 and
79)
|
|
These are the same as for the HIA
|
Similar to the HIA, however it is the Secretary rather than the
Minister who allows the application (but the Minister who sets the
conditions).
Once again a midwife s eligibility is contingent on there being
conditions established, whereas a nurse practitioner can, in the
absence of conditions, be recognised as eligible.
|
Comparable to the participating midwife or nurse
practitioner.
There are criteria and conditions which must be met by an
eligible midwife or nurse practitioner who applies to become
authorised. It is allocated to the Secretary to make these
decisions, although the Ministerial legislative instrument
establishing the conditions and criteria will be disallowable.
|
Another definition provided in the Bill with respect to the HIA
is that of a relevant midwife or nurse practitioner. This is a
midwife or nurse practitioner who has in some way breached the HIA
s provisions and has had a determination made against them which
has either partially or fully disqualified them (or who the
Minister believes is liable to receive such a determination). It is
proposed in the Bill that the Minister should not accept an
undertaking from an eligible midwife or nurse practitioner who
would take over the practice or business of a relevant midwife or
nurse practitioner if it would mean the financial consequences of
such a determination is undermined (items 21B and
22A). The Minister would not accept an undertaking from a
relevant midwife or nurse practitioner, in part because they would
not have been able to meet the criteria for an eligible
midwife.
Both the HIA and the NHA make provisions for recognitions given
under the Acts to be withdrawn, either by revocation or suspension.
These actions, along with a refusal to extend recognition (either
as an eligible, participating or authorised midwife or nurse
practitioner) can be challenged under the arrangements contained in
the Administrative Appeals Tribunal Act 1975.
Item 25 sets out the process under the HIA and
provides for review of the initial decision to refuse to accept an
undertaking, and also the processes that occur if the Minister
revokes or suspends the acceptance of the undertaking
(proposed sections 21B and 21C (midwives)
and 22A and 22B (nurse practitioners)).
Administrative appeal rights are available at various stages.
For the NHA item 79 sets out the grounds on
which suspension or revocation may occur and also the conditions
which must be observed before giving notice (for instance an
intention to suspend or revoke must be in writing, give reasons and
invite a written response, (proposed sections 84AAG and
84AAK) and after giving notice (for instance notice must
be given of the right to appeal). If someone has been charged but
not convicted of an offence they are subject to suspension of their
rights, but once convicted a revocation can apply (items 98
and 99). There are various administrative protections put
into place for those refused recognition or whose recognition is
suspended or revoked. These apply to both professions, and reflect
the protections already in the Act.
It is proposed that the Bill s regulatory framework for midwives
and nurse practitioners will be used to extend pre-existing
arrangements covering other health professionals. So, for example,
an extended definition of medical entrepreneur is given in the HIA
which will cover midwives and nurse practitioners. A medical
entrepreneur is someone who employs, controls, is landlord to or is
in charge of [82] a
practitioner or participating midwife or nurse practitioner
(items 3 and 9). This definition is used in the
HIA to allow pathology specimens to be collected by other employees
of a medical entrepreneur (section 16A, Medicare benefits in
relation to pathology services ) and to ensure a broader operation
of the prohibition on bribery in private hospitals (section
129AA).
The Bill also proposes an amendment which would include
participating nurses and midwives in the assumption that
professional attendances subsequent on post-operative treatment in
which professional services were rendered are assumed to be covered
by the particular item in the general medical services table
(item 8).
There is an array of Medicare covered services that
participating midwives and nurse practitioners will also be able to
offer:
- Medicare benefits may be payable for pathology services when a
participating midwife or nurse practitioner has ordered them for
their patient (and they have been listed in the regulations), or
when they offer the service themselves (item 10,
12, 13 and 14)
- Medicare benefits may be payable for R-type diagnostic imaging
services when a participating midwife or nurse practitioner has
ordered them for their patient (and they have been listed in the
regulations) (items 16, 17, 19 & 20)
- A participating midwife or nurse practitioner will be able to
write medicare effective [83] referrals to a consultant physician or a specialist
(item 23). The drafting technique to broaden the
field of who is allowed to make such referrals is quite broad. The
Bill proposes to delete the reference to a practitioner so that the
section simply says that a person can make such a referral.
The Bill specifies that pathology and diagnostic imaging
services will only attract Medicare benefits on or after 1 November
2010 and a participating midwife or nurse practitioner s capacity
to write referrals to specialists and consultant physicians will
also only be effective at that time (items 11, 15, 21 &
24).[84]
A series of amendments incorporate the participating midwife or
nurse practitioner into the pre-existing regulatory framework for
the making of pathology and diagnostic imaging requests and the
bureaucratic arrangements contained therein (for instance record
keeping requirements and lost form arrangements) (items
26-41).
There is a broad range of administrative arrangements in place
in the HIA which include bodies designed to oversee the
professions. The Bill incorporates midwives and nurse practitioners
into these arrangements. Thus the Professional Services Review
Scheme will include midwifery and the practice of a nurse
practitioner into its definitions of professions, practitioners and
service (items 42-44); the Determining Authority
will be expanded from 8 to 10 to accept an additional member who is
a midwife and a nurse practitioner (items 49 &
50) and the Medicare Participation Review Committee will
recognise the two professions and incorporate a member of each onto
a Committee when it is convened in relation to a member of their
profession (items 51 and 52).
There is also a wide range of penalties and prohibitions in the
HIA and items 54-57 incorporate midwives and nurse
practitioners into the prohibition in section 128C against charging
fees for the provision of a service to a public patient at a public
hospital. Items 58-61 incorporate midwives and
nurse practitioners into section 129AA which prohibits bribery in
public hospitals (the section addresses issues that could arise,
for instance, if a reward was offered to obtain a place for a
patient, or a practitioner could be tempted to order unnecessary
services for a reward).
Item 62 seeks to provide a protection for
evidence given to a Medicare officer by a midwife or nurse
practitioner (inter alia). This evidence cannot be led in
proceedings unless contradictory evidence is first led by the
individual being scrutinised or they have agreed to the evidence
being used.
The Bill preserves the State and Territory s roles not only in
providing for the registration of midwives and nurse practitioners
but also taking disciplinary action when necessary, with
item 63-66 providing for regulated information
sharing between Commonwealth officers acting under this Act (and
others, such as the Medicare Australia Act 1973 or the
Dental Benefits Act 2008) and the relevant State/Territory
authority with disciplinary power over the relevant professionals
and/or those responsible for the administration of laws providing
for their registration. Similarly in the NHA items
108-111 which deal with the need for secrecy when issues
are investigated under that Act but recognises that such secrecy
need not apply between the Commonwealth officials and the State and
Territory authorities charged with regulating the registration of
midwives or nurse practitioners and taking the necessary
disciplinary action.
Item 75 takes the central step of recognising
authorised midwives and nurse practitioners as PBS prescribers
under section 84 of the NHA, thereby incorporating them into the
complex systems in place regulating prescribers, while item
84 gives them the authority under section 88 of the Act to
actually write prescriptions for drugs that have been determined by
the Minister through a legislative instrument. Item
85 amends subsection 88(3) so that the prescription power
is limited to drugs required within the parameters of the relevant
treatment.
Once incorporated into the framework around prescribing rights,
midwives and nurse practitioners have a variety of right and
obligations. So, for instance the regulations governing the amounts
prescribed, what form the prescription takes and when it is
possible to prescribe a more significant amount of a drug than a
standard issue are dealt with (item 81, 84, 86)
and authorised midwives and nurse practitioners are incorporated
into arrangements which allow a prescriber to authorise drugs being
carried or sent out of the country (when it is for personal use),
(items 91, 92, 95 and 96).
If a midwife or nurse practitioner has their authority to
prescribe revoked then their scripts cannot be filled
(proposed paragraph 134(1)(c), item 103) and they
are required to return the drugs they currently have on hand
(proposed subsection 134(1), item 105).
The amendments in this Schedule are consequential changes made
as a result of the coming into operation of the Midwife
Professional Indemnity (Commonwealth Contribution) Scheme Bill 2009
and the Midwife Professional Indemnity (Run-off Covrer Support
Payment) Bill 2009. These changes to the Acts[85], while important, are technical
and are matters of drafting. They are adequately covered in the
Explanatory Memorandum.
Concluding comments
The Bill s extension of the MBS and PBS to more health
professionals represents a significant change in a society which
has been very focussed on the delivery of medical care through
doctors. This may not be universally seen as a good thing, but it
is likely to improve a range of choices. Giving midwives and nurse
practitioners an independent standing within these frameworks is
likely to have interesting flow on effects. Concerns regarding the
future of homebirths have tended to overshadow the significance of
these changes, but in another context they might be recognised as
more significant.
It can be seen from the definitional tables above that the
regulatory framework leaves many issues to be resolved in the form
of regulations or the common form undertakings (which will be
legislative instruments, and therefore disallowable by the
Parliament according to the procedures in the Legislative
Instruments Act 2003). Those who have been concerned about the
effect of this legislation on midwives availability might
contemplate the clich that while the devil may be in the detail, in
this case the detail is not in the Bill.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 .
Dr Rhonda Jolly
Kirsty Magarey
Paula Pyburne
11 August 2009
Bills Digest Service
Parliamentary Library
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