DESIGN OF THE NATIONAL REGISTRATION AND ACCREDITATION SCHEME FOR DOCTORS
AND OTHER HEALTH WORKERS
Changes to the proposed Scheme arising from national consultation
As noted in Chapter 1, a national consultation on the national registration
and accreditation scheme (NRAS/the Scheme) has been undertaken through the
National Registration and Accreditation Implementation Project (NRAIP), as an
integral part of the process of implementing the Scheme.
The Committee notes that a number of changes to the NRAS, as proposed in
the NRAIP consultation papers, were contained in the exposure draft of the
Health Practitioner Regulation National Law (Bill Bill). The Australian Health
Workforce Ministerial Council (AHWMC) communiqué of 8 May 2009 acknowledged the
participation of the health professions in the consultative processes, and outlined
a number of changes to the Scheme as originally proposed. The changes included:
ensuring that accreditation functions are independent of
establishing both general and specialist registers for
professions, as well as separate registers for nurses and midwives;
requirements for continuing professional development in relation
to annual renewal of registration;
extension of the Scheme to three other professions from 1 July
2012 (Aboriginal and Torres Strait Islander health practitioners, Chinese
medicine practitioners and medical radiation practitioners);
a requirement that the larger jurisdictions each have at least
one representative on the National Boards; and that the smaller jurisdictions
between them have at least one representative
a requirement that National Boards be required to consider
applications for registration from practitioners seeking to work in a location
or position that has been declared as an area of need
adoption of the National Privacy Principles and privacy regime by
the Scheme; and
a number of changes to registration arrangements 'to improve the
quality and safety of health services being delivered to the public', including:
mandatory reporting by practitioners of registrants who are
placing the public at risk of harm;
mandatory criminal history and identity checks for first-time
registrants; and a power for National Boards to conduct ad hoc criminal history
and identity checks;
simplified complaints arrangements; and the ability of
jurisdictions to employ either national or state/territory law as the
legislative framework for investigations and prosecutions related to complaints;
registration of students in the health professions.
The Committee notes that the changes outlined above addressed many of
the concerns that had been raised in submissions to the inquiry and in the
Committee's hearing on 7 May 2009 (which preceded the release of Bill B).
Notwithstanding the issues discussed below, this point was generally
acknowledged by submitters and witnesses. The Royal Australasian College of
Surgeons (RACS), for example, commented that Bill B represented a 'considerable
improvement on the initial design for...[NRAS]'.
Mr Ian Frank, Chief Executive Officer, Australian Medical Council (AMC),
The AMC would like to commend the members of the...[NRAS] team
for their efforts in drawing together the complexities of health practitioner
regulation in Australia into a single piece of legislation. The AMC notes that
many of the issues raised in previous submissions...have been reflected in the
exposure draft of bill B.
The Australian Osteopathic Association (AOA) observed that Bill B showed
'clear signs that earlier concerns expressed by various professional
groups...have been given careful consideration'. Further, it noted that the Australian
Health Workforce Ministerial Council (AHWMC/the Ministerial Council) 'and those
advising it have been at clear pains to accommodate concerns where that has
been found possible'.
The following issues were identified as being of concern to stakeholders
Independence of accreditation
Directions on accreditation
standards by Ministerial Council
The independence of accreditation processes under NRAS was perhaps the major
issue raised throughout the inquiry. Submitters and witnesses generally acknowledged
that there had been significant improvements in this area, as reflected in Bill
B. The Optometrists Association of Australia (OAA), for example, noted that the
changes announced in the 8 May 2009 communiqué had 'largely removed governments
from inappropriate involvements in the accreditation function'.
In relation to outstanding concerns about the independence of accreditation
processes, Dr Louise Morauta, Project Director, NRAIP, confirmed that these had
been raised by a number of submissions to the national consultation, and would
be considered by minsters in due course.
A common view expressed by stakeholders was that the independence of
accreditation processes was still potentially threatened by a power granted to
the Ministerial Council to issue directions relating to accreditation standards.
This power is set out in clause 10 of Bill B:
Council may give directions to the National Agency about the policies to be
applied by the National Agency in exercising its functions under this Law.
Council may give directions to a National Board about the policies to be
applied by the National Board in exercising its functions under this Law.
subsections (1) and (2), a direction under this section may relate to:
accreditation standard for a health profession.
The power to give a direction in relation to a particular accreditation
standard, as proposed in Bill B, is restricted to circumstances where the
standard may have a negative effect on workforce supply:
...the Ministerial Council may give a National Board a
direction under subsection (3)(d) only if, in the Council’s opinion, the accreditation
standard will have a substantive and negative impact on the recruitment or
supply of health practitioners to the workforce.
The position of the Australasian Podiatry Council (APodC) was broadly
indicative of the professions' views. APodC submitted that that the power in
clause 10(4) was fundamentally inconsistent with the object of the Scheme to ensure
that health professionals are suitably qualified to ensure patient safety:
The need to ensure appropriately qualified and competent
health professionals and supply them in sufficient numbers across all of
Australia are competing demands, however...first and foremost, those persons
registered to work as health professionals must have the knowledge and
experience to provide quality health care, for the benefit of patients and the
health of the nation. APodC believes that this power of the Ministerial Council
to amend accreditation standards runs contrary to this objective.
APodC noted that the pursuit of workforce planning outcomes via the
clause 10(4) power could therefore be at the expense of public health and
This power, if used, 'may change standards, which may prove
incompatible with the objectives of protecting and improving public health and
Similarly, Mr Robert Boyd-Boland, Chief Executive Officer, Australian
Dental Association (ADA), observed:
Provision of a directive that might compromise safety and
quality yet meet an area of need demand would be inappropriate.
Mr Frank pointed to the inherent tension between public safety and
workforce planning issues in relation to accreditation:
...there is a very fine balance between workforce supply and
quality and safety issues. Unfortunately, if you look back in time then you
will see that whenever workforce has become an issue quality and safety tends
to sort of fall off the agenda a bit. There is a tension between those two. We
do not have to look back very far in time to realise that recently in our near
north this became a serious issue when existing established assessment
processes were bypassed in the interests of supplying a workforce to a
particular health service.
In addition to these concerns, the Australian Psychological Society (APS)
was concerned that the power could stifle the ongoing development of standards:
...if the ministerial council has the ability to intervene to
effectively veto proposed changes to standards in education and training, this
may limit the accrediting body’s power to stimulate change and reform in
education programs, with the potential risk that the Australian programs of
professional training and education may fail to keep pace with international
Submitters and witnesses emphasised that the proposed power 'clearly
contradicts the intention of there being independence from government in
In particular, it was observed that any such decision could be made 'without
involving discussion with the profession or the accreditation body':
...the arrangements as proposed leave open the possibility that
policy will be set without any practitioner involvement at all. This is a
radical departure from existing arrangements whereby Ministers can issue
directions to public servants administering state and territory boards but
cannot issue directions to board members on issues of policy.
Further, the RACS submitted that, in practice, the power could
potentially allow the Ministerial Council to intervene in nearly all cases:
Technically, the “recruitment or supply of health
practitioners to the workforce” is always an issue, so this clause could be
invoked at any time.
There was a variety of views amongst submitters and witnesses as to the
appropriate response to clause 10(4), ranging from calls for its removal to
suggestions for amendments to constrain and/or make more transparent any use of
The ADA recommended that clause 10(4) be deleted so as to remove
entirely the power of the Ministerial Council to give a direction in relation
to an accreditation standard.
In the alternative, the ADA suggested that exercise of the power be wholly
limited to cases involving a 'significant and negative impact upon ensuring
health services are provided safely and are of appropriate quality'.
The Royal Australian College of General Practitioners (RACGP) also supported an
amendment having the effect that 'it is the quality of health care and patient
safety rather than issues of workforce upon which the Ministerial Council will
Similarly, the APS submitted:
...such a power should be limited to situations in which the
standard in question might have a negative impact on the quality of training
and practice or on safety in providing care to the public. That is enshrined in
the bill as objectives and guiding principles of the scheme, which is clause
4(1). Under clause 4(1), if that was the reason for the ministerial council to
intrude into this, that is a legitimate reason, because it is protecting the
Other groups felt that the power for the Ministerial Council to issue
directions relating to accreditation standards in cases involving negative
impacts on workforce supply was legitimate, but should be constrained either by
public interest or safety considerations, or exceptional circumstances
requirements. The OAA submitted:
...the justification for the Ministerial Council being able to
issue a policy direction to a Board in respect of an accreditation standard
should be a public interest test as well as recruitment or supply of health
practitioners to the workforce. Quality, best practice and safety should be
considered as well as workforce shortage before issuing a policy direction in
respect of a standard.
The Committee of Presidents of Medical Colleges (CPMC) also called for
the power to be constrained by reference to 'public interest' or 'safety and
The RACS, while acknowledging that there 'may be some merit' in
retaining the power, suggested:
...[The words] ‘in exceptional circumstances in the public
interest’ could be added [to the clause]...[so] that a greater degree of public
interest must be determined and that it needs to be exceptional circumstances
[before the power may be used].
The RACGP felt that an even broader scope of operation for the power
than just simply a public good test might, in conjunction with greater
transparency, ensure that the exercise of the power was only done for proper
Dr Andrew Pesce, President, Australian Medical Association (AMA), called
for 'greater codification...of the circumstances in which the Ministerial Council
will be able to use this power'.
The AMA submission outlined a comprehensive set of amendments and additional
mechanisms to ensure greater certainty and accountability:
provide more specific codification in the Bill of the
parameters for how and when any Ministerial Council directions are made in
relation to accreditation standards under clauses 10(3)(d) and 10(4),
defining “substantive and
negative impact” in subclause 10(4);
requiring the Ministerial
Council to apply a public interest test that considers, amongst other things,
the potential impact on the quality and safety of patient care;
requiring the Ministerial
Council to consult with the relevant Learned Medical College and faculties on
require that Ministerial Council decisions to issue the
medical board a policy direction under clauses 10(3)(d) and 10(4) be unanimous;
provide for more transparency of policy directions made
under clauses 10(3)(d) and 10(4) by:
requiring directions to set
findings on material questions of fact;
to the evidence or other material on which those findings were based; and
the reasons for the decision to issue the policy direction;
requiring Ministerial Council
directions to the medical board made under clauses 10(3)(d) and 10(4) to be
provided in writing to peak medical organisations and Learned Medical College
and faculties, and to be published on National Agency’s website, within seven
working days of the direction being issued;
provide additional accountability for Ministerial Council
directions made under clauses 10(3)(d) and 10(4) through the inclusion of
specific provisions for reviewing any such directions.
A number of groups called for mandatory processes of review and
reporting around the exercise of the clause 10 power. The ADA considered that such
processes would be desirable if the power were to remain in the Scheme.
The RACGP called for the recommendations of health boards in relation to
accreditation standards, and the reasons for any rejection of any standards, to
be made public.
In relation to publication issues, Dr Morauta noted that the directions
of the ministerial council were required to be published. Further, if a direction
or an accreditation standard was refused by a national board then an
accrediting authority would have the right to publish its advice. The
ministerial council would also be required to place its policy directions on
the public record.
The Committee accepts that misuse of the powers proposed is
improbable—given that the maintenance of high professional standards is a
cornerstone of the Australian health system and in the mutual interest of every
stakeholder in that system. However, the Committee also believes that
safeguards against such misuse could enhance confidence in the new national
The Committee recommends that the Australian Health Workforce
Ministerial Council fully consider and evaluate the potential usefulness and
feasibility of the proposed amendments to clauses 10(3) and 10(4) of the Health
Practitioner Regulation National Law (Bill B), especially those proposed by the
Australian Medical Association (AMA).
Appointment of external accreditation
bodies by Ministerial Council
A number of groups expressed concern about the role of the Ministerial
Council in the appointment of external accreditation bodies. Clause 60 of Bill
Council may appoint an entity, other than a committee established by a National
Board, to exercise an accreditation function for a health profession under this
subsection (1), an entity that accredited courses for the purposes of
registration in a health profession under a corresponding prior Act may be
appointed to exercise an accreditation function for the profession under this
The OAA submitted that accreditation processes should in both appearance
and practice remain free of government:
...Ministerial Council alone should not appoint external
accreditation authorities. Further consideration should be given to a more arms
length process of appointing the external accreditation authorities which
ensures they are and are seen to be independent of governments, professions and
The APS warned that the proposed arrangements carried a risk of
politicisation of accreditation authorities:
...the draft bill gives the ministerial council the power to
appoint the accrediting entity. This power should be in the hands of the
national board to protect the process of setting training standards from the
influence of political concerns such as workforce issues and cost savings.
As this bill is drafted, a ministerial council in the future
may choose to appoint an accrediting agency which serves the government’s
political needs rather than the public’s interests in quality of training and
The CPMC was also concerned that the current arrangements could mean
that there remained potential for 'political interference in the accreditation process'.
The OAA was particularly concerned that, beyond the transitional
arrangements, there was no provision for how accreditation bodies would be appointed.
Mr John Beever, National Government Affairs Manager, advised:
Specifically, we are concerned about the power for the
ministerial council to appoint the accreditation agencies after the transition
period. We find that difficult to reconcile with the notion of a truly
independent authority. We would like to propose a number of improvements to the
accreditation arrangements, with the major one probably being that we think
there needs to be more work done on how accreditation authorities are
The APS called for 'clarification' around the composition of accreditation
bodies appointed by the Ministerial Council.
This approach was supported by the OAA, which wanted the 'composition of the
accreditation authority to be specified', along the lines of current
appointments processes. Mr Joe Chakman, Executive Director, explained:
One method of providing that independence is the one that is
currently used by most of the accreditation authorities where the actual
composition of the authorities is specified in some way. Usually...there are
nominees from education, from the professions, from the boards. So you have the
three central pillars of the professions represented there and making the
decisions on what standards and quality should be.
Alternatively, the APS called for the power to appoint accreditation
authorities to be devolved to the National Boards.
The RACS supported this approach:
The College can see no good reason for the Ministerial
Council to be involved in this process [of appointing accreditation entities],
as Section 60 currently proposes...
We do not support the involvement of the Ministerial Council
in the appointment of accreditation authorities.
The AMA also called for the National Boards to exclusively appoint
...given that national boards can establish accreditation
committees under clause 62, it would secure the independence of the
accreditation process if the national boards, and not the Ministerial Council,
were fully responsible for ongoing appointments of external accreditation
Further, the AMA sought an explicit guarantee that the AMC would continue,
over the transition period and beyond, as the external accrediting body for the
The AMA...seeks a guarantee that the AMC will be the external
accrediting body for the medical profession, and that it will have an ongoing
role, beyond an initial three-year period, as the external accrediting body for
medical education and training...We are concerned that the Ministerial Council
may seek to influence accreditation processes by appointing, and presumably
revoking appointments of, external accreditation entities under clause 60. The
medical profession has a high regard for the operation and activity of the AMC.
There is no reason why the AMC should not be appointed as the external
accrediting body for a period substantially longer than three years. 
The CPMC recommended that the Ministerial Council be required to act on
the recommendation of, or in consultation with, the National Boards in the appointment
of accreditation entities.
The AMC, however, felt that in practice, beyond the transitional phase, the
appointment of accreditation bodies by the Ministerial Council would be
adequately informed by the existing boards, and therefore would be unlikely to
be open to unwarranted influences. Mr Frank explained:
...if we read [clause] 290 under the transitional provisions,
we see that in...that three-year [transitional] period the national board will
undertake a review; and the national board will make recommendations to the
ministerial council about assigning the functions beyond that three-year
period. So we are comfortable with the way that mechanism, taken as a whole,
will operate at this point.
Further, Mr Frank observed that accreditation processes had historically
been subject to ministerial direction, without adverse consequences, and that
accreditation entities would need to continue to demonstrate and justify their
At any point in time governments...can make policy decisions
and change direction and follow all sorts of different lines of development.
But basically we have a robust, well-developed system. It is compliant with
World Federation for Medical Education guidelines. It has very great stakeholder
involvement and participation...[Along] with all the other health professions,
[the AMC will continue to] make our case and demonstrate the effectiveness of
our processes and the integrity of our processes, but that is something we have
been faced with since we were first established...
Other accreditation issues
Definition of 'accreditation
The AMC felt that the definition of 'accreditation standard' contained
in Bill B was 'too narrow'. Mr Frank advised that the definition should
'reflect learning and a continuous quality improvement of medical education'.
Mr Frank commented:
The concern we have got is that medical education is actually
a lifelong process. What you really need to do is ensure that the accreditation
standards are robust enough to ensure that there is a continuous educational
process inculcated in the graduates.
Mr Frank suggested that the definition should refer to the concept of
I think that the standard needs to refer to continuous
practice—not that a person is capable of practicing at the time of graduation
but that they can continue to develop and evolve their processes—and that the
systems that you build and the institutions that you look at have actually got
elements built into them that can sustain that process; they would have
elements of exposure to, say, innovation, research et cetera so that the trainees
do come out with a focus on lifelong learning and not just simply a skills set
that enables them to function on day 2 or day 3 of their entry into the
The AMA submitted:
The AMA asks that the draft Bill include the definition of
accreditation standard provided by the existing national accreditation agencies
for the health professions.
The APS was concerned that the NRAS as proposed did not make provision
for conditional accreditation. 'Conditional accreditation' allows an
accrediting body to grant accreditation on condition that an entity satisfy
specified requirements within a certain timeframe. This could be, for example,
a requirement that an education or training body establish a specified teaching
ratio within 12 months, to ensure an adequate staff- to-student ratio.
The capacity to grant conditional accreditation was desirable as it meant that
a training program, for example, would not have to lose accreditation for
failing to meet a single requirement.
Dr Morauta advised that this issue had been raised by 'several
stakeholders' in the course of national consultations, and particularly in
meetings with accreditation authorities.
Composition of National Boards
Under the current form of Bill B it is proposed that National Boards will
be comprised of nine people. A formula is contained in clause 45 which provides,
A National Board is to consist of members appointed in
writing by the Ministerial Council.
Members of a National Board are to be appointed as
practitioner members or community members.
Subject to this section, the Ministerial Council may
decide the size and composition of a National Board.
At least half, but not more than two-thirds, of the
members of a National Board must be persons appointed as practitioner members.
The practitioner members of a National Board must consist
at least one member from each
large participating jurisdiction, and
at least one member from a
small participating jurisdiction.
At least 2 of the members of a National Board must be
persons appointed as community members.
At least one of the members of a National Board must live
in a regional or rural area.
For the purposes of clause 45(5), the large participating jurisdictions
New South Wales;
South Australia; and
For the purposes of clause 45(5), rhe small participating jurisdictions
Representation of small jurisdictions
A number of professions indicated concern that the small participating
jurisdictions would not be adequately represented on the National Boards.
The AMC, for example, submitted:
We have some concerns that the composition of the national
board, as set out in section 45, which allows all of the larger states but only
one of the three smaller states to be involved in the national board, is
probably a retrograde step.
Mr Frank observed that historically the smaller jurisdictions tended to
have circumstances that were quite different from those of the larger
jurisdictions. It was therefore necessary that smaller jurisdictions were
represented on the National Boards, to enable local knowledge of those
conditions to be properly recognised through national forums:
Certainly our experience with input from the smaller states
and territories in Australia in relation to things like area of need
registration and the very heavy reliance on overseas-trained practitioners is
that they have a unique set of circumstances and problems, particularly in
relation to supervision, monitoring, setting of conditions et cetera.
Dr Kay Sorimachi, Director, Policy and Regulatory Affairs,
Pharmaceutical Society of Australia (PSA), advised :
Because of...the importance of having representation of state
and territory boards we believe that the national board must have a
representative from every jurisdiction in order to accommodate any
state-specific or territory-specific issues. Therefore, the current proposed
composition whereby the smaller participating jurisdictions would be allowed
only a combined nomination is not adequate for the pharmacy profession.
The Australasian Conference of Chiropractic Registration Boards (ACCRB)
was also concerned about the proposed representation of small jurisdictions,
and called for additional members on its National Board:
The Chiropractors Registration Boards strongly support a
Chiropractors Registration Board of Australia with an additional two members to
allow for representation from all Australian jurisdictions.
The AMA submitted:
We note that the membership of the national boards will
comprise at least one member from the smaller participating jurisdictions. This
may be an issue of concern for members of the health professions in those smaller
jurisdictions who may consider their interests will not be adequately
represented at the National level. Over time, there is a real risk that
registration and complaints handling functions for registrants in smaller
jurisdictions may be carried out outside the jurisdiction. There could be
implications for patient safety if local issues are unable to be taken into
account because there is no local knowledge.
Dr Morauta advised that there was scope for individual representation of
smaller jurisdictions in the Scheme as currently proposed:
The size and composition of the board are determined from
time to time by the ministerial council both under the existing act and under
bill B. If ministers said that the board was going to be, say, 12, then it
would be perfectly possible for the three smaller jurisdictions each to have a
practitioner member on a particular occasion if ministers wished to do it that
Composition of National Boards of
The Committee heard a variety of views on the preferred composition of
the respective National Boards, largely reflecting individual characteristics
of the professions.
The APS commented that it did not believe the current formula's
requirements for mandatory representation of jurisdictions would result in the
best representation for the psychological profession:
[The proposed formula] means that the best people cannot go
up because, for instance, we would have had two or three people in New South
Wales, a couple in Victoria and, in some states...there was no-one we thought had
the level of expertise of these other people. Our concern is the board will not
have the best people on it because of the formula.
APS was concerned with ensuring representation by people with relevant
accreditation and registration experience, as well as non-health psychology,
over and above concerns about ensuring state representation per se.
Accordingly, it proposed increasing the number of representatives on its
National Board to 12:
We put in a formula of 12, way back in one of our
submissions. There could be eight of the profession and four community members.
That eight would actually allow you to get two more really good people on the
board who are perhaps not representative of a particular state. I understand
what is behind it with the state health ministers wanting someone from each
state. I understand the rationale, but I just think it is a great pity not to
get the best people, particularly in the establishment phase.
The ADA commented that the current formula for the composition of
national boards would not allow for sufficient representation of the four types
of practitioners that make up the dentistry profession as a whole: dentists,
dental hygienists, dental prosthetists and dental therapists.
We...have problems with the make up of the board, particularly
given the special nature of dentistry...Given that [the profession has] more than
one type of practitioner...we believe there should be more dentists on the board...We
fully support all of the other professions being represented on the board.
The ADA also called for a larger national board for dentistry to ensure
that the four dentist professions could be represented for each jurisdiction.
Dr Neil Hewson, President, advised:
We think the board will have to be bigger because we do not
think it is appropriate for the other professions not to be represented with
one of each.
Mr Robert Boyd-Boland, Chief Executive Officer, explained:
[The Dental Board]...is going to be looking after four
professions...The bill...[provides] that half to two-thirds—but no more than
two-thirds—of the board will be professionals. We certainly think that, in view
of the need for representation of four dental professionals, that needs to be
adjusted accordingly to enable a group of, say, at least eight practitioners to
be on the board and then the two community members.
Accordingly, the ADA called for its National Board to be extended to
include 'at least two additional dentists 'to ensure that the...[Board] can
suitably carry out its functions including determining standards for all of
The ADA also called for the position of chair of the National Board to
be a dentist. The ADA submission explained:
The dentist is the team leader in the practice of dentistry
and is the only practitioner with the knowledge and skills to practice all of
dentistry. While dental hygienists, dental therapists and dental prosthetists
have appropriate knowledge and skills for their limited areas of practice, these
are confined to limited specific areas of dentistry.
The AOA submitted that the proposal for mandatory geographic
representation on its National Board would result in 'the vast majority of
osteopaths [effectively being prevented]...from nominating for the National
Board', due to the fact that around 80 per cent of all practitioners were
located in NSW and Victoria. Accordingly, the AOA called for the NRAS to
contain provisions allowing the smaller professions to appoint alternatives
when no suitably experienced or qualified practitioner is available from
In respect of the composition of National Boards for particular
professions, Dr Morauta noted:
What it says, both in this bill and the one under which the
current appointments are being made, which is the first act, is that the
composition and mix of the board is as determined from time to time by the
ministerial council. That has always been regarded as important, because if you
had a new sub profession come up you might want to have a different sized board
or a differently composed board. What this bill and the first act do is say
that there are some rules around this. We have to have no more than two-thirds
of practitioners—no less than half and no more than two-thirds. The chair must
be a practitioner member. In this draft of the bill, the five large
jurisdictions are guaranteed a member and the three smaller ones have to share.
That is the minimum requirement. What happens is that ministers can certainly
play with the size of the board on any occasion that they want. Or they might
want various bits represented on it—dental is a good example, because it has
prosthetists, hygienists and therapists in it. How many of those do you want on
the board? Ministers can at any time decide what they want there. That is the
flexibility in the current act, which enables them to decide. That is also in
this draft bill.
Clauses 156 and 157 of Bill B introduce for health practitioners and
employers requirements for the mandatory reporting of 'reportable conduct by
health professionals. 'Reportable conduct' is defined as instances where a health
practised the health practitioner’s profession while
intoxicated by drugs or alcohol, or
engaged in sexual misconduct in connection with the
practice of the health practitioner’s profession, or
placed the public at risk of substantial harm in the
health practitioner’s practice of the profession because the health practitioner
has an impairment, or
placed the public at risk of substantial harm because
the health practitioner has practised the profession in a way that constitutes a
departure from accepted professional standards.
The Medical Indemnity Industry Association of Australia (MIIAA) was
opposed to the proposed system of mandatory reporting, arguing that it would
create a 'punitive atmosphere' and a 'culture of fear' among practitioners that
would inhibit the open disclosure of otherwise reportable conduct.
Dr Sara Bird, Medico-legal Manager; and Advisory Services Coordinator, MDA
National Insurance, explained:
...mandatory reporting...[is] a retrograde step. It is going back
to that naming, blaming and shaming of individual practitioners. The literature
and research show that a lot of the errors and adverse events that occur in
medicine are the result of systemic issues and, unless we are able to bring
them out into the open, we are unable to address those issues within our health
system. If you just individually take out a doctor who you label as a bad
doctor, often you just remove somebody who could be practising at a high level.
That is the concern: that you are introducing this very punitive atmosphere for
the profession, which has, I think, over the last 10 years tried to develop a
just culture and bring those issues into the open.
The MIIAA argued that existing ethical codes in the medical profession
were adequate to ensure sufficient public protection; as such, mandatory
reporting should not be included in the NRAS. It preferred that the mandatory
reporting provisions be removed in favour of a 'code or guideline', such as the
AMC code of conduct.
There was widespread support for the view amongst the professions that
the mandatory reporting provisions must include exemptions for 'therapeutic
relationships' between medical professionals. The RACS, for example, submitted:
While the mandatory reporting provisions of the legislation,
contained in Sections 161 and 162, are supported, the College believes there
should in addition be an exemption for those health practitioners who become
aware of reportable conduct outside the workplace as the result of therapeutic
or personal relationships.
The College maintains its view that arrangements should not
be such as to discourage a health practitioner from seeking assistance and
opting instead to continue practising in an impaired state for fear that his or
her treating practitioner would be obliged to report them.
Dr David Hillis, Chief Executive Officer, RACS, explained:
Bill B has already incorporated medicolegal issues such that
if a practitioner becomes aware of this through a legal case they are
protected. We think that also needs to be reflected in therapeutic situations.
If a doctor, because they have a problem, is actually seeking help then they should
not be penalised by mandatory reporting. In other words, if they have insight
to the fact they have a problem and are actually seeking assistance for the
problem, there should not be mandatory reporting of that, with all the issues
being portrayed publicly, and they should be treated therapeutically first.
On the issue of workplace relationships more generally, the APS
...the whole notion of collegiate support, mentoring and even
supervision are undermined by the provisions that have been made about
Even worse are the mandatory reporting requirements for
employers...[For] many of our members their employer has nothing to do with the
health system. Here we have a situation where an employer is threatened with
sanctions if they do not report an employee who in their mind has a conduct or
a performance problem. So...you would never have mentoring and supervision in a
context where that threat hung over the employer. There is grounds for a
vexatious employer to misuse those powers and certainly over reporting is
likely to be a consequence. All of that is probably more damaging than the
risks that are suggested by not having mandatory employer reporting..
The ADA noted that the system of mandatory reporting as currently
proposed could also have an impact on complaints resolution processes:
For example, as written...[the NRAS] may preclude organisations
such as professional associations undertaking and providing valuable assistance
in the resolution of many complaints made by the public against health
professionals. Often members of the public contact professional associations
and raise issues of concern on a range of topics relating to treatment
received. Such matters are regularly adjudicated or arbitrated upon to the
satisfaction of all parties. The current wording of Section 156 may make it
mandatory for the person (if they are a health practitioner) dealing with that
matter to report on the issue. Persons fulfilling this valuable role for both
the public and profession need to be excluded from the obligation to report on
A number of groups were also concerned that both formal and informal
avenues of peer support would be undermined by mandatory reporting requirements
unless appropriate exemptions were put into place. In relation to informal peer
support, the PSA commented:
Consideration must be given to encourage practitioners to
seek early peer or medical support without fear of immediate mandatory
reporting and to allow other practitioners, colleagues and employers to provide
or support remedial action without being penalised.
The RACGP commented:
The legislation as it currently exists will cause medical and
health practitioners to hide their impairments and professional issues from
their colleagues, driving the issues underground and increasing rather than
decreasing the risk to patients, the public, the practitioners themselves and
their colleagues. We strongly believe that it is important to strengthen
patient safety and improved standards; however, the mandatory reporting system
as currently proposed is not, we believe, the solution.
In relation to formal peer support services or networks, the MIIAA
registered its concern that such services could be affected:
Our concern is that doctors will not seek advice when they
need it, that they will continue to operate without any supporting mechanism,
and patients’ safety could potentially be compromised by that. Whereas, if they
had sought assistance from the Doctors’ Health Advisory Service or a similar
service, they would have obtained assistance and addressed those issues and
either had advice that said, ‘You should report yourself’, as insurers
recommend, or had actually sought treatment for their problem.
The ADA noted that the operation of its existing peer support service
could be threatened:
In most states the Australian Dental Association runs a
complaints system for patients who have concerns with our members. They can
have an easy and non-legalistic way of trying to resolve their problems...The
people acting in that capacity would be covered by this mandatory reporting,
and we believe they should not because they need to not be inhibited in that
The PSA noted the success of the Pharmacist Support Service, which was a
confidential peer support 24-hour phone service operating in Victoria since
1995. This service, providing information, support and referral to other
services, provided valuable support to the profession, and was a model being
considered as a national service, and by other professions. PSA submitted:
PSA believes any mandatory reporting provisions under the
NRAS must allow services such as PSS to continue its operations and therefore
the impact on callers to the service and the volunteers must be clarified.
Beyond the question of exemptions, the RACGP also felt that Bill B did
not provide enough guidance on the scope of the requirement for mandatory
reporting, particularly in relation to cases in which the issue of reportable
behaviour was less clear.
The AMA shared this view:
The definition of reportable conduct requires further
consultation with the health professions. In effect, the relevant provisions in
the draft Bill represent new mandatory reporting requirements across the health
professions, as well as for the medical profession who are subject to existing
state/territory laws. The draft definition in the Bill has a very broad
application and there are considerable risks that health professionals will
over-report, or not know when to report. We support suggestions by other health
profession groups for educative scenarios to be provided to registrants so they
have some certainty of what would be considered in scope as reportable conduct,
before case law is established.
Dr Morauta advised that the mandatory proposal had been on the agenda throughout
the consultation process on the NRAS; and noted that the NRAIP had received a
'largely positive response' on its inclusion in the legislation,
notwithstanding the issues raised before the Committee.
Separation of complaints management
and performance management
The AMC submitted that the proposed complaints process was a 'retrograde
step' in that it did not adequately separate performance management from
complaints management. Mr Frank highlighted that performance issues should be
clearly distinguished from complaints processes:
Performance assessment...[is based on the] notion that if you
could identify suboptimal performance before it became a problem and then put
people through remediation programs or, if there is an impairment issue, into
the appropriate impairment program then you could head off the potential
problem down the track. It is really a risk minimisation and mitigation type of
process, and it operates differently from the normal complaints process.
Given this distinction, Mr Frank observed that performance assessment
and management properly involved proactive processes, as opposed to the more
reactive nature of complaints management.
The proposed Scheme did not adequately allow for these separate processes:
...[In] the current wording of bill B there is a lack of
flexibility in the complaints-handling process; in particular, the fact that it
appears as though a case has to proceed to the end of one pathway before it can
be shifted across to another pathway. If, for example, a case is identified,
perhaps from a complaint, which really relates to a performance or impairment
issue, it does not appear to be very simple to move it across into that other
area. You have to progress all the way through to the end of the conduct or complaints
process before you can move it across into the other areas. Again, we think
that would slow the process down and add to the time it takes to process these
The AMC called for performance assessment to be separated from the
complaints system, as per the current NSW and Victorian systems.
Public Interest Assessor
Many groups commented on the proposed Public Interest Assessor (PIA).
The functions of the PIA are outlined in clause 36 of Bill B:
assessing complaints made to the National Agency about
health practitioners who are, or were, registered under this Law or a corresponding
in conjunction with National Boards, deciding what action
is to be taken in relation to complaints received by the National Agency,
any other function given to the Public Interest Assessor
by or under this Law or by written instrument of the Ministerial Council.
The PIA was not originally proposed as part of the NRAS, and was
included on the basis of the NRAIP consultations. A number of submitters and
witnesses felt that there has been insufficient explanation of, or consultation
over, the intended role of the PIA in the Scheme. The AMA submitted:
...[The PIA concept] has been introduced at a very late stage
of the implementation. As such there has been very little explanation about how
the role and functions of the Public Interest Assessor will work in practice.
Further, the PIA was not sufficiently well-defined in Bill B to allow a
proper consideration of the likely effect or role of such an agency.
PIAC, although it supported in principle the role of the PIA, submitted that it
...whether in states and territories other than NSW and the
ACT, there will be independent assessment, investigation and prosecution of
health complaints about health professionals.
The role of the Public Interest Assessor is crucial to answer
this question. Clear information on how this body or person will be funded, the
resources available to carry out their functions, and how their independence
will be maintained appears not to be available at this time.
Similarly, the RACGP commented:
Whilst there is clear merit in such a position, we strongly
believe that the public interest assessors’ role should be better defined in
the legislation, including the extent of their powers.
The PSA, however, did not support the appointment of the PIA:
We also regard the PIA to be unnecessarily duplicating the
boards’ tasks and role by having a parallel process in order to ‘compare
outcomes’ at the end. The establishment of a PIA would certainly also require
the scheme to allocate funding and resources in order to establish a team of
APodC expressed a similar view:
...[The PIA] will inhibit the process of natural justice and
produce unnecessary delays in the review and handling of matters, thus
increasing costs to the profession and the community and duplication of similar
services handled by peer review through the process of a professional board and
supported by the relevant health complaints commission.
The AOA also rejected the need for the PIA, on the basis that the
position was open to influence form either the Ministerial Council and/or the
In response to the concerns outlined above, Dr Morauta provided a fuller
account of the role of the PIA:
...when the board first look at a complaint—the first time the
complaint is there—they have to decide what to do with it...At that stage the
public interest assessor would come in, look at what the board had done and
have the option of saying, ‘I think we need to have another look at this one.
We need to do some more work on this one...’
Similarly if the PIA says, ‘I think that we should not take
that one further,’ but the board thinks that it should go further then the
board takes it further. So it is a presumption that whoever thinks it needs a
bit more looking at wins the argument. But then the board handles...[the
complaint]; it is not given to somebody else to handle.
In the second stage after an investigation...[a complaint] can
either go to a tribunal...or it can be handled as a conduct matter by the board...Once
again the public interest assessor...would come in and look at it with the board.
If they wanted it treated more seriously...[and] the board did not then that
would view would prevail.
Dr Morauta explained that the PIA had been introduced to the Scheme on
the basis of feedback to the NRAIP from community groups, which wanted
complaints to be subject to an independent source of assessment, as per the
current approach in New South Wales.
There was a widespread view amongst the professions that the cost of
funding the PIA should be borne by governments rather than by the regulated
professions (via registration fees). The ADA submitted:
It has been indicated that the cost of this new scheme is to
be borne by the professions. The ADA objects to the creation of this new office
and particularly on this basis. If this office is to be created then it should
be at the cost of the Government concerned and not the profession.
Dr Sorimachi commented:
We understand that there will need to be a team of staff to
support the public interest assessor, which will add to additional costs in
terms of funding the operations and the resources.
The OAA commented:
...We believe, as...[the PIA] is a consumer complaints
protection mechanism, it is more appropriately resident in a Health Consumer
Complaints Commission type of agency, which exist in every one of the states
and territories in one form or another. Naturally, the cost of that office
would be borne by the consumer complaints agency of each state and territory
and not necessarily NRAS.
On the issue of costs, Dr Morauta expected that jurisdictions may take
different approaches, according to whether the PIA was purely an officer of the
NRAS or connected to another entity:
...[The question of funding will depend] on which way the
individual jurisdictions go. So in the ACT you would expect them to say, ‘Our
PIA under this law is the HCC because it is exactly the same thing.’ Some
jurisdictions are looking at giving this role to their healthcare complaints
commissioner, in which case it will be funded by government. It may not be a
great deal of extra work in some jurisdictions; and in other jurisdictions it
might be quite a lot of extra work for the healthcare complaints commissioner.
So there is flexibility in the legislation for the role to be
performed in different places, and some of those might be more efficiently done
with the healthcare complaints commissioner, but it is up to the jurisdiction
to decide that. Until the jurisdictions have decided, it is a bit difficult to
see how much would actually come back to the registrants in terms of cost. We
cannot anticipate that at this stage
Protection of titles
Bill B provides for the protection of certain titles used by health
professionals. Protection of titles through restricting their use to suitably
qualified and recognised practitioners is necessary to ensure the integrity of
accreditation registration processes.
A number of groups were concerned that the use of the term 'specialist'
was to be available to practitioners with only limited registration—that is,
practitioners who are registered to practise in only a limited area.
The AMA submitted:
The draft Bill requires amendment to clarify that only
medical practitioners who meet the requirements...[registration as a specialist
in a recognised area of specialty for a health profession] are eligible for
specialist registration and therefore entitled to use the title medical
specialist...[Bill B] should be amended to remove the provision that permits a
person who holds limited registration to use the title medical specialist.
Dr Hillis explained:
...there is...confusion in the terminology put against people who
are registered as area of need practitioners. It has been suggested that they would
then be able to use the word ‘specialist’. The college would like to clearly
state that they have not gone through the comparable or equivalent training
program to be understood as a general medical practitioner. Consequently, they
should not be using the words ‘specialist medical practitioner’. What they have
got is limited registration. An area of need position is limited geographically
to a particular hospital that has the appropriate support for a practitioner
who is not broadly trained or comparable.
The RACS commented that the ability of practitioners with only limited
registration to use the term 'specialist' had potential to cause 'substantial
confusion in the mind of the public'.
The RACGP submitted:
...the RACGP believes that it is imperative that the public can
identify the difference between a qualified medical specialist who has passed
the assessment requirements for their medical speciality and a medical
practitioner who is working in an area of need whose qualifications have not
yet been determined to be substantially comparable. Therefore, we recommend
either that all medical specialists use the title ‘specialist’ or that medical
practitioners working in an area of need clearly define themselves, in a
non-derogatory fashion, as not being a specialist—for example ‘area of need
The CPMC also called for the title of 'specialist' to be permitted to be
used only by those practitioners who hold full specialist registration and are
entitled to practise independently'.
Dr Morauta acknowledged that the national consultation was considering
submissions on this issue:
At the moment, it is actually quite muddled out there. They
are called all kinds of things, including specialists. But, when you have
created a specialist register, you have created something whereby in the public
domain you need to be able to distinguish between specialists who have the full
qualifications for a specialist and specialists who have narrower
qualifications. There is still quite a lot of discussion going on about how to
A number of professions advised that they were seeking protection of
Professor Lyn Littlefield, Executive Director, APS, advised that the APS
was seeking protection of a number of forms of the term 'psychologist':
...protection of...[the term psychologist] alone is insufficient
to protect the title of the profession and that it is necessary to add other
variations and derivatives to protect the public from being induced to believe
that a person is a psychologist. For instance, the title ‘psychologist’ and all
adjectival derivatives such as ‘psychological’, ‘in psychological services’,
‘psychological assessment’ and ‘psychological treatment’ should be protected
and reserved for the use by registered psychologists, whether they work in
health or other fields of psychology and whether they provide direct service to
individual clients or to groups and organisations, because the term
‘psychological services’ implies that the service is being delivered by a
psychologist. We believe it is misleading to the public to use those terms
where services are not delivered by a psychologist, as is currently the case.
There are other professions which do deliver, particularly under things like
Medicare, psychological services when they are not psychologists. We think that
The RACS was seeking protection of the terms 'surgeon' and 'specialist
surgeon'. Dr Hillis explained:
The main thing is to have an understanding that if a person
is deemed to be a specialist surgeon they have gone through the appropriate
degree of training, they have actually reached the required standards that a
specialist surgeon should have. There is no doubt that other people will be
practising minor surgery, but we believe that the title ‘specialist surgeon’
should be put into legislation.
Bill B provides:
A person must not perform manipulation of the cervical
spine unless the person:
is registered in an appropriate health profession,
is a student who performs manipulation of the
cervical spine in the course of activities undertaken as part of an approved
program of study in an appropriate health profession, or
is a person, or a member of a class of persons,
prescribed under a regulation as being authorised to perform manipulation of
the cervical spine.
Maximum penalty: $30,000.
In this section:
appropriate health profession means any of the
following health professions:
manipulation of the cervical spine means moving the
joints of the cervical spine beyond a person’s usual physiological range of
motion using a high velocity, low amplitude thrust.
There was agreement among the various bodies representing the
chiropractic profession that the proposed restriction on spinal manipulation
was inadequate, because it applied a restriction only to manipulation of the
cervical spine. Ms Krystina Brown, Chief Executive Officer, Chiropractors
Association of Australia (CAA), explained:
This regulation restricts the performance of manipulation of
the cervical spine, commonly the neck, to chiropractors, osteopaths, medical
practitioners and physiotherapists. Whole spine manipulation—that is, complete
spinal manipulation—is not restricted under the draft bill in any way and
therefore under the proposed legislation spinal manipulation could be performed
by any person. The Chiropractors Association of Australia, or CAA, is of the
opinion that the proposed legislation has seriously compromised patient safety
and quality of care and as a result will permit unnecessarily increased risks
The CAA submitted that spinal manipulation procedures performed by
unqualified persons carried the risk of 'serious injury'.
...the CAA does not support the separation of cervical
manipulation from the term spinal manipulation in regard to restriction of
practice, as serious injury may result from manipulation of all areas of the
spine, including cervical, lumbar and low back.
Appearing before the Committee, the CAA representatives described
numerous potential risks for patients undergoing spinal manipulation in the
lumbar and thoracic regions.
This view of the CAA was supported by the ACCRB, which submitted that
the removal of the restriction amounted to the removal of a protection to the
public, and was therefore in breach of the first objective of the NRAS.
The AOA also supported these views.
Chiropractor groups understood that the lesser restriction on spinal
manipulation as contained in Bill B was based on the conclusion that there was 'insufficient
evidence that restricting spinal manipulation reduces public risk'.
This position was based on the experiences of jurisdictions which did not have
the broader restriction on spinal manipulation (currently, six of the eight
state and territory jurisdictions restrict the manipulation of the spine or
spine and pelvis).
All parties agreed that there was little statistical or formal evidence of
higher rates of spinal injury in these jurisdictions.
However, the CAA observed:
It is not unreasonable to assume that there would be little
evidence available as injuries to citizens resulting from care provided from
unregulated practitioners performing unrestricted practices would not
necessarily be reported to a regulating authority. In many cases too, such
practitioners would not be covered by professional indemnity insurance.
Although there is little evidence available to suggest that
the community is more vulnerable in those jurisdictions where no restrictions
apply, compared with those where restrictions do apply, the CAA asserts
strongly that the public should be legally protected from persons who are
unskilled, unqualified, insufficiently trained and not competent to undertake
manipulation of the spine.
The CAA submission referred to 'considerable information in the
literature relating to injuries or other adverse events that have occurred in
jurisdictions where spinal manipulation is not restricted'.
The ACCRB submitted:
The Boards contend that, in the six jurisdictions where it
has been illegal for unqualified people to manipulate the spine for the last 30
years, instances of spinal manipulation by people without legitimate training
have been minimal due to the restrictions.
A recent review of complaints made to the NSW Chiropractors
Board over a period of thirty years revealed numerous complaints about
unregistered people in the first 5 – 10 years but only rare instances in the
last 20 years.
Chiropractor groups also called for the restriction on spinal
manipulation to be broadened to exclude health practitioners that were not
specifically registered and/or suitably qualified to perform spinal
manipulation. The CAA submitted:
...the CAA strongly...[advocates] that manipulation of the spine
and extremities be restricted to registered chiropractors and osteopaths, or
those other registered health practitioners who can demonstrate equivalency of
competence by appropriate, accredited, prescribed and clearly identified
post-graduate training – eg musculo-skeletal physiotherapists. Medical
practitioners have no relevant training for spinal manipulation in their
undergraduate training and should also be required to demonstrate equivalency
of competence via appropriate prescribed post-graduate training.
Accordingly, the CAA recommended:
To ensure that this happens the CAA believes that Bill B
should be amended to reflect that:
manipulation of the spine and extremities be restricted to
registered chiropractors and osteopaths, or those other registered health practitioners
who can demonstrate equivalency of competence by appropriate, accredited,
prescribed and clearly identified post-graduate training.
Similarly, the ACCRB called for completion of an accredited course in
spinal manipulation to be a requirement attached to the restriction on spinal
manipulation in Bill B.
Consultation on the NRAS
PIAC submitted that the time allowed for consultation on the NRAS was insufficient:
PIAC has previously called for extensive public consultation,
in all states and territories, including consultation outside the capital
cities, on all aspects of the scheme for national registration of health
professionals. Sadly PIAC has seen no evidence that this is planned, and fears
that legislation will be passed without adequate public debate, in order to
meet the timetable to have the changes in place by 2010.
The AMC was concerned that the present timetable would not allow for the
changes to Bill B arising from consultation on the exposure draft to be
considered by the professions, particularly those relating to the complaints
process. Mr Frank commented:
The one concern we have...[is] that once we and all health
professionals and other stakeholders have made their submissions we will not
actually get to see another version of this bill. It will go straight to the
Queensland parliament and enter into that process for debate. The concern we
have is that the complaints process in particular is a really critical part of
this exercise. If it were at all possible to at least have that section of the
bill viewed by the people who actually operate the complaints processes, it
would be very valuable in ensuring that when the thing is finally implemented
it actually does work in the field. We have some concerns that, as currently
written, that may not be the case.
The Pharmacy Guild of Australia (PGA) was also critical of the timing of
the consultation/implementation processes around Bill B, noting that there was
just five weeks allowed for the public consideration of the exposure draft
legislation. The PGA submission noted:
As the legislation is endorsed by the Australian Health
Workforce Ministerial Council, the Guild understands that comments received on
the exposure draft will be presented to the Queensland Parliament for
processing, without any particular opportunity by the professions for
amendment.. It is highly undesirable for legislation to be put through a
parliamentary process without a quality assessment of the policy of a
proposition and any legislation giving effect to policy.
The following issues were raised as particular issues in relation to
APodC and the Australasian College of Podiatric Surgeons (ACPS) were
concerned about specialist areas of practice in podiatry that were not to be
recognised in the Scheme as proposed in Bill B, notably:
sports podiatry (with specialists having attained a qualification
of Fellow of the Australasian Academy of Podiatric Sports Medicine); and
podiatric surgery (with specialists having attained a
qualification of Fellow of the Australasian College of Podiatric Surgeons).
The Committee notes that Bill B proposes recognition of specialist
health areas only in relation to the medical and dental professions.
The January 2009 consultation paper notes:
For the purposes of transition [to the Scheme], from July 1
2010, initial regulation of specialists in any profession will be by an
endorsement on the public register...In the absence of such a standard being in
existence at the time of transition to the scheme, the registrant will only be
granted general registration without specialist endorsement.
Mr Peter Lazzarini, Vice President, APodC, advised that the original
consultation paper on specialist registration had indicated that podiatry would
be included amongst the professions recognised as specialist professions from
the inception of the Scheme:
[The] consultation paper clearly stated, under ‘Registration
arrangements for registered podiatrists’, proposal 10.1.3, that there be an
offence for a person who is not a registered podiatrist with endorsement as a
podiatric surgeon to hold himself out as a podiatric specialist. However, the
exposure draft for bill B does not include podiatric surgeons as a specialist
category. This is of great concern to the APodC and many within the profession...
Dr Mark Gilheaney, President, ACPS, noted that there had been no formal
or official justification provided as to the reason(s) for the omission of
podiatric surgery from the specialist professions. However, there had been
informal indications that its omission was due to perceptions that it did not
have 'a fully functioning AMC-style of accreditation'.
Podiatrists identified a number of issues arising from the failure to
recognise podiatry as a specialist profession. Primarily, it was argued that
this approach was not in the public interest, as it might place the public at
risk. Dr Gilheaney explained:
If the law is open, any podiatrist under an act of parliament
could operate on you tomorrow if they get informed consent from you. There is
no law that says any podiatrist cannot perform surgery right now, but all
registration boards at the moment only allow you to do so if you are an
accredited podiatric surgeon/specialist podiatric surgeon...The podiatry
profession has an existing, long-held framework for control and regulation of
specialist practice. You might argue that it is not as strongly accredited as
the AMC style of accreditation, but I would suggest to you that it is a long
way...Do not throw out what is there. Leave it in place and improve on what is
there, because the bottom line is protection of the public.
In addition, it was claimed that the failure to extend specialist
recognition to podiatry could impact on the functions of the National Board,
which might be unwilling or reluctant to allow general registration for
podiatric surgeons where it would 'not have the ability to identify whether
those surgeons had taken part in ongoing collegiate activity for peer review,
standards review [and] ongoing education'.
Lastly, the failure to provide a specialist register for podiatric
surgery could also reinforce barriers to podiatrists contributing to
competition and therefore efficiency in the 'surgical marketplace', an outcome
that would ultimately be against the spirit of the Intergovernmental Agreement.
The podiatry groups called for the profession to be 're-included' as a
profession eligible for specialist registration from 1 July 2010 on a number of
grounds. These were summarised in the APodC supplementary submission:
In the area of podiatry, a number of recognised, well
established specialisations already exist with podiatric surgery and sports
podiatry. These professions have professional organisations, qualifications for
acceptance and recognition as a Fellow, conduct research and hold scientific
conferences...Podiatric surgeons currently have specialist registration in South
Australia and Western Australia, with all podiatry registration boards
recognising the specialist training and qualifications of podiatric surgeons.
Whilst podiatric physicians have specialist registration on the Podiatry Board
of Western Australia, both podiatric physicians and podiatric surgeons are on
similar specialist registers in most other states.
More generally, APodC observed that, by recognising only the medical and
dental professions, the Scheme would fail to encompass both established and
emerging areas of specialty practice:
The national scheme is missing the opportunity to fully
recognise the established, developing and evolving nature of health care by not
recognising any specialist health professions other than those in the medical
and dental professions. Health care, like many skilled professions across a
wide range of areas, is becoming more complex and involved and therefore has
undergone and is undergoing greater specialisation amongst members of the
In the event that podiatry was not recognised as a specialist profession
from the inception of NRAS, podiatrists asked whether podiatric surgeons would
not be able to practise in this area until their inclusion on a specialist
register. Dr Gilheaney observed:
There can be no logic in making us wait to go through the
bureaucratic process over the next two to five years. The current standards of
national recognition and accreditation of podiatric surgery should be
maintained and built upon, not stripped back, in a process that will be mapped
to ensure compliance with the new principles of national registration and
Mr Lazzarini also questioned the necessity of podiatric surgery being
required to undertake the process of approval for a specialist register once
the new scheme commences:
...why we should go back through the processes that have
already been through the states to get back to point 1 to move on from point A
to point B again...[We] are asking why we should start that process again when it
has already been through most of the states to have a specialist register.
However, Dr Morauta noted that Bill B provided for states or territories
with areas of specialist registration prior to 1 July 2010 to retain those
areas 'until such time as the consideration of the specialist registration in
that profession has run its course'.
Exemption of orthoptists from optometrist
Optometrists were concerned that, under the proposed Scheme, orthoptists
would be able to prescribe 'optical appliances', namely spectacles. Orthoptists
are allied health professional who diagnose and treats patients with eye
alignment and eye movement disorders as well as binocular vision disorders.
The exemption in question is contained in clause 136(1)(b) of Bill B:
A person must not prescribe an optical appliance unless:
the person is registered in the optometry or medical
the appliance is spectacles and the person is an
orthoptist who prescribes the spectacles:
in the course of carrying out
duties at a public health facility, or
under the supervision of, or
at the request of or on referral from, a person registered in the optometry
profession or medical profession,
The OAA noted:
...the Intergovernmental Agreement signed by the Australian
Government and all States and Territories last year specified that the practice
of optometry would be restricted in the National Law to prevent practice by
unregistered or unauthorized persons...[Clause] 136 as it is now undermines that
Further, the OAA was concerned that the exemption would:
reduce the protection presently provided to the public by current
regulation of optometric practice.
impose deregulation on jurisdictions which have previously decided
be contrary to Australian Government policy as well as the
Intergovernmental Agreement which established the national registration and
allow orthoptists to operate in an area of restricted practice without
the obligations required of registered professions such as independent
accreditation, mandatory insurance and continuing education or government
Specifically, the OAA noted that three states currently allow
orthoptists to prescribe spectacles: Victoria, South Australia and New South
Wales. However, each of these states imposed restrictions or protections, such
a requirement that this is only done on recent referral by an
optometrist or ophthalmologist (Victoria and South Australia); or
a requirement that this is only done by an orthoptist employed in
a public health facility or by an opthalmologists (Victoria and South
a requirement that an orthoptist may only prescribe within six
months of an ocular health examination by an optometrist or ophthalmologist and
then only on written referral by the examining optometrist or ophthalmologist
The ACT, Queensland, Tasmania, Western Australia and the Northern
Territory did not allow orthoptists to prescribe spectacles.
Mr Chakman explained the public health policy rationale for the
restriction on the prescribing of spectacles:
...the restricted area of practice for optometry is the
prescription of spectacles. No-one can prescribe spectacles apart from an
optometrist or a medical practitioner. It is not that prescribing spectacles is
dangerous; nobody makes that claim. The reason for the prohibition is that before
prescribing a pair of spectacles one has to actually ascertain what is leading
to the loss of vision, so it is actually a public health measure.
Mr Chakman observed that orthoptists did not practise under systems that
would necessarily ensure such public health goals:
Orthoptists currently are not registered in any jurisdiction
in Australia. They would be given rights to practise that only optometrists
have without all the responsibilities that the optometrists would have. There
is no requirement that they be registered. There is no requirement that they
have insurance. There is no requirement they maintain their educational
standards and quality of service. There is no way of actually penalising them
or disciplining them if they behave in the wrong sort of way.
The OAA noted that the requirements in states that currently allowed
orthoptists to prescribe spectacles were designed to ensure a proper assessment
of whether vision loss in a given case was caused by an underlying disease:
States and Territory governments restrict prescribing of
optical appliances to optometrists and medical practitioners to ensure that
disease is excluded as a cause of vision loss. To illustrate, diabetes can
cause shortsightedness and an inadequately trained person may successfully
prescribe to solve the shortsightedness without recognising that diabetes is
As noted above, even the three States which allow orthoptists
to prescribe do so with the implicit or explicit requirement that full ocular
examinations by optometrists or ophthalmologists will have first excluded eye
disease as a possible cause of vision loss.
The OAA objected that Bill B as currently proposed would 'impose [on all
states] the weaker of the protections for patients now in place in the three states
which permit orthoptists to prescribe'.
If the lowering of the restriction were to proceed, the OAA felt that the more
stringent requirements imposed by NSW, outlined above, should apply.
However, the OAA recommended that clause 136(1)(a) be deleted on the
basis that 'early detection and prevention are best served by encouraging
regular ocular health examinations rather than facilitating ways by which such
examinations will be avoided'.
The National Board would still retain the ability to allow orthoptists to
The proposed S 136 (1) (d) could enable the new Optometry
Board of Australia to allow restricted prescribing by orthoptists if after
proper consideration of the issue it concludes that such exemption is
Dr Morauta noted that this issue had been raised in the course of the national
Uniformity of state and territory
laws outside NRAS
The OAA identified a number of areas falling outside NRAS in which it
was desirable to ensure national uniformity. These are:
The OAA advised that, because prescription of drugs and poisons is
covered by state regimes, differences in those regimes could mean that
practitioners working across jurisdictions could inadvertently breach different
requirements. Such breaches could see the National Board involved in
disciplinary actions in relation to conduct which was allowed in one
jurisdiction but not in another.
Mr Andrew Harris, President, called for uniformity in this area to be
'encouraged to ensure that there is a consistent drug list across the nation'.
Supply of optical appliances (as opposed to prescription) is not covered
by the national law. The OAA submitted:
The supply of contact lenses in particular by unqualified
people is a health risk in that contact lenses can damage vision and even cause
blindness. SA and Tasmania presently restrict the supply of contact lenses to
registered persons. Optometrists Association urges all States and Territories
to consider uniform legislation which requires that a valid prescription from a
registered practitioner with an expiry date should be required before
spectacles and contact lenses can be supplied.
OAA acknowledged that these areas fell outside the proposed national
scheme, but noted that the operation of NRAS could be impacted on by
inconsistent state and territory regimes governing areas closely related to
The OAA felt that the development of the national scheme should be taken as an
opportunity to also address any such inconsistencies.
Adequate recognition of
The Australasian Psychological Society of Organisational Psychologists
(APSOP) expressed concern that the move to 'generic health practitioner
legislation' under NRAS would undermine recognition of organisational
psychologists as a specific branch of practising psychology.
APSOP noted that health services represented 'but one aspect of
professional psychological practice'.
Accordingly, the NRAS should recognise and accommodate psychology services more
broadly in respect to complaints, specialist tertiary training and continuing
professional development. Equally, APSOP was concerned that future workforce
planning should take into account the workforce needs of organisational
psychologists as part of psychologists more broadly.
Professor John O'Gorman, Member, APSOP, outlined a number of 'distortions' that
might arising from Bill B's failure to distinguish organisational psychology
from health delivery:
You may ask: is there any harm in continuing, for
administrative convenience, the fiction that professional psychology can be
taken to mean health delivery, as bill B seeks to do? We consider there is. We
have already seen in some state jurisdictions the distortions that arise when
all psychologists are considered to be health practitioners. The distortions
result from the training placements probationary psychologists are required to
undertake and the competencies they are expected to demonstrate, requirements
that are appropriate for clinical work but limit the time and sap the interest
in training for those not wanting to assess abnormal personality or mental
dysfunction or to engage in long-term mental health treatment.
In relation to complaints, APSOP was concerned that people might be denied
access to the NRAS complaints system where they were users of psychological
services that were not health related.
Professor O'Gorman explained:
... a client who has sought career or vocational guidance or
has undergone a process of employment testing and assessment, or an employer
who has sought the services of a psychologist to deal with conflict in a work
team or to assist in the management of change in an organisation, has not been
rendered a health service or even a health related service but has been
provided a service which nonetheless has serious implications for people’s
lives and livelihoods.
Although Bill B defined all services provided by psychologists as
'health services', APSOP was concerned that other complaints bodies, such as
tribunals and health complaints bodies, might not be able to hear complaints
that can not be strictly defined as health matters.
To address its concerns APSOP called for broad representation of psychologists
on all boards established under NRAS and a transparent complaints procedure
that will allow the hearing of all complaints against psychologists.
Scope of practice in psychological
The APS called for protections or restrictions on the administering of
psychological tests, on the basis that misdiagnosis or otherwise incorrect
diagnosis can have lasting negative effects on a person's life and prospects.
Registration of pharmacy premises
The PGA supported national registration of health practitioners.
However, the Guild recommended that the NRAS, as envisaged, not proceed. The
PGA supported instead a co-regulatory model which:
...creates a national Pharmacy Board comprised of
representatives from each jurisdiction’s pharmacy board and appropriate
representatives from relevant pharmacy organisations and consumers to approve
(after full consultation with stakeholders) national registration and
accreditation standards following policies developed by the Australian Health
Workforce Ministerial Council; but retains State and Territory registration
boards to perform the initial registration, and subsequent discipline of,
practitioners as well as any other powers of functions conferred on the board
by legislation of the jurisdiction...
The Guild argued that the company-regulatory approach was better suited
to pharmacy profession, given that the regulation of pharmacy premises was to
remain outside the national Scheme:
...the guild believes that it is important to keep the current
pharmacy boards in each state and territory in place both because of their
significant knowledge as to how pharmacy operates in those jurisdictions but
also because they are responsible for administering in the interests of the
public the state and territory pharmacy acts. Under these acts, pharmacy boards
are responsible for ensuring that pharmacies are only owned by properly
qualified pharmacists and in most states that pharmacies are properly
registered and meet the standards required by law. The most important point that
we want to make is that the professional practice of community pharmacists is
inextricably linked with the pharmacy premises in which they handle and
dispense medicines to the public.
Ms Wendy Phillips, Executive Director of the PGA, was concerned that
under the new Scheme there would be no financial provision in relation to administration
and oversight of registration of pharmacy premises:
The point is that boards at the moment receive fees both for
registration of pharmacists and registration of premises. That enables them to
have enough money to operate with one staff member, perhaps, looking after both
functions. Once you split it and the funding is taken away for this scheme, to
try to set up some new body to look after registration of premises is probably
Ms Phillips advised that there was considerable uncertainty as to how
registration of pharmacies would be continue to be overseen by the profession
once the new Scheme commenced:
...[Ongoing oversight will depend] on what is extracted from
the existing acts to become part of this scheme and then what is left behind
and how that is housed in state and territory legislation. In the case of
states where there is a separate pharmacy act, that act could just be left
there. But then we are not sure who would administer it, because the board
would have been abolished. In the bigger states they could probably set up a
statutory authority of some sort. We have tried to look at developing business
plans about setting these kinds of bodies up. We know from looking at it that
it would not be financially viable in the smaller states unless you charged the
pharmacists very high fees, which would be unfair.
Both the PGA and the PSA observed that under NRAS the National Board
would be able determine whether a state or territory board was required. Where
a state or territory board was not required, the question of how the pharmacy
ownership and registration issues would be overseen was even more acute. Dr
...our main concern is that, because under the national
registration scheme it is left up to the national board to determine whether a
state or territory board is required, there could be scope for those bodies to
be no longer present in the jurisdictions. We believe that pharmacy ownership
issues and premises registration issues are fundamental to the practice of
community pharmacy and therefore we do have perhaps a greater interest in
maintaining the state and territory bodies.
Accreditation of specialist
The PSA submitted:
The legislation needs to take account of details around the
accreditation (credentialing) of specialist pharmacist practitioners (as
distinct from the accreditation of programs of study). In this regard, the role
of the Australian Association of Consultant Pharmacy (a body which currently
accredits pharmacists in specialist areas of pharmacy practice) under the new
scheme requires clarification.
Provision of chiropractic services
about the jaw
The CAA submitted:
There is a concern that the Dental restricted practice in
Bill B “Subdivision Practice Protections 135 Restricted dental acts” needs to
be clarified so that the normal scope of chiropractic practice is not
Chiropractors provide services where the chiropractor
examines, diagnoses, provides treatment in/around/to the mouth, jaw,
musculature of the jaw, TMJ, and cranial regions.
The ACCRB and AOA were also concerned that the proposed restricted dental
practice in Bill B impinges on the normal scope of chiropractic practice.
Issues relating to registration and
Clause 69 of Bill B sets out the eligibility requirements for general
registration in a health profession. These include, inter alia, that a practitioner
or their employer is covered by 'appropriate professional indemnity insurance
The Committee received a considerable number of submissions from
midwifery groups, midwives and individuals commenting on the potential effect
of the requirement for professional indemnity insurance on midwives,
particularly those in independent or private practice.
This and related issues will be addressed by the Committee in its report
on the Inquiry into the Health Legislation Amendment (Midwives and Nurse
Practitioners) Bill 2009 and two related Bills, as these Bills interrelate on
this critical issue. The Committee is concerned that the impacts of this
legislation on midwives and the options for home birth in Australia are taken
The evidence received by the inquiry indicated general support for the
NRAS across the health professions to be regulated under the Scheme.
The Committee notes that the there was a considerable reduction in the
objections or concerns about the design of the Scheme between the initial
consultations and the release of the exposure draft of the Health Practitioner
Regulation National Law (Bill B). The Committee congratulates the
implementation team and the Ministerial Council on the success of the national
consultation to date in identifying and responding to a large number stakeholder
The Committee observes that, across the course of the inquiry, the issue
of greatest concern to the regulated professions was to ensure the independence
of the accreditation processes and entities under the NRAS. Stakeholders noted
that the majority of these issues were addressed in the design of Bill B.
However, the majority of submitters and witnesses expressed concern that
there remained the potential for government interference or influence in
accreditation processes, through the power given to the Ministerial Council to
issue directions to the National Agency and/or National Boards in relation to
accreditation standards, in circumstances where a standard 'may have a
substantive and negative impact on the recruitment or supply of health
practitioners to the workforce'.
In general, stakeholders agreed that the proposed power was
inappropriate to the extent that it could ultimately lead to a lowering of
standards in order to increase the recruitment and/or supply of health
practitioners to the workforce. There was a range of recommendations put
forward as to how to constrain or amend the proposed power.
While the Committee acknowledges the importance of the issue of
workforce supply in the area of heath—particularly for regional and remote
areas—the Committee notes that, on the face of the proposed provision, there is
a lack of clarity around both the scope of the power in practice, and the
extent to which its exercise will take into account, or be constrained by,
public health and safety considerations.
For these reasons the Committee commends Recommendation 1 above to the
Australian Health Workforce Ministerial Council.
Further, the Committee considers that, given the importance of issues
relating to accreditation standards and workforce supply, the operation of the
Scheme and the public interest would benefit if the reasons of the Ministerial
Council in issuing any such direction were required to be made public.
The Committee recommends that the Australian Health Workforce
Ministerial Council introduce a requirement into the proposed national
registration and accreditation scheme (NRAS) that the reasons for issuing a
direction in relation to an accreditation standard be made public.
The Committee notes that many of the regulated professions were
concerned about the composition of the National Boards which would result from
the formula provided in Bill B. In particular, there were concerns that (a) mandatory
requirements for representation of jurisdictions could exclude appropriate
expertise and (b) that smaller jurisdictions would not be adequately
represented. The Committee notes that a one-size-fits-all approach to the
formation of the National Boards is unlikely to deal satisfactorily with the
individual characteristics of the individual professions. Given this, the
Committee considered that the power given to the Ministerial Council to decide
the size and composition of a National Board should not be overly constrained by
the formula provided in Bill B concerning the composition of the Boards. The
Committee therefore urges the Ministerial Council to ensure there is sufficient
flexibility in the NRAS to ensure that the representation of National Boards
properly reflects the characteristics and needs of the individual professions.
The Committee recommends that the Australian Health Workforce
Ministerial Council ensure that the national registration and accreditation
scheme (NRAS) contains sufficient flexibility for the composition of National
Boards to properly reflect the characteristics and needs of the individual
Evidence from psychology associations indicated that that profession is
unique to the extent that it might be considered to have health and non-health
streams; and that the NRAS as proposed needs to better accommodate these
different streams in the design of its accreditation, registration and
complaints processes. While the Committee did not consider it appropriate to
make a particular recommendation on this issue, it draws attention to the issue
as one that should have further consideration in the final stages of the
Evidence from the pharmacy profession revealed a widespread concern
about the funding and administration and oversight of pharmacy premises
registration following the start of the NRAS. The Committee also draws
attention to this issue as one that merits serious attention from the
Ministerial Council to ensure that appropriate and detailed transition plans
are in place for the various jurisdictions.
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