NSW+JHEALTH Final Report of the Review of the Medical Practice Act 1992 December 1998 TABLE OF CONTENTS Executive summary and summary of recommendations 1. 1.1 1.2 1.3 1.4 2. 2.1 2.2 2.3 2.4 2.5 2.6 2.7 3. 3.1 3.2 3.3 3.4 4. 4.1 4.2 4.3 4.4 5. 5.1 5.2 5.3 5.4 Introduction Background and Review Conduct of the Review Other review processes The Final Report The regulation of medical practitioners and other service providers Introduction The Medical Practice Act 1992 Other legislation The role of professional associations Other service providers The regulation of medical practice in other jurisdictions Impact of legislation on competition The objectives of legislation regulating medical practice Objectives of the current Act Original rationale for the objectives of the Act Submissions Conclusions The registration of medical practitioners and competition Introduction Submissions Options for Government intervention to achieve the objectives Assessment of options for Government intervention Entry requirements Introduction General registration - qualifications and training Conditional registration at the discretion of the Board Competent to practise 5.4.1 Physical and mental capacity and medical skills 5.4.2 English language Good character Criminal convictions Conduct in another jurisdiction Medical students Registration inquiries -i- Page iv 1 1 1 1 2 3 3 3 5 6 6 6 7 9 9 9 9 10 12 12 12 13 14 19 19 19 20 22 5.5 5.6 5.7 5.8 6. 24 25 27 27 29 Rl..'l'il'W nlthe Mt'dical Practice A('I - Fillul ReporJ 6.1 6.2 Scope of registration applications Power of the HCCC to intervene Requirements for continuing registration 29 29 31 31 31 32 7. 7.1 7.2 7.3 7.4 8. 8.1 8.2 Introduction Routine performance assessments Power to assess performance on reasonable grounds Continuing medical education Disciplinary system 34 36 8.3 Introduction 36 Improving the disciplinary system 37 8.2.1 Grounds for making a complaint 8.2.2 Broadening the definition of unsatisfactory professional conduct 8.2.3 Definition of professional miscondu ct 8.2.4 Codes of conduct 8.2.5 Medical record keeping practices 8.2.6 Mandatory notification in cases of lack of competence and sexual misconduct 8.2.7 Notification of criminal convictions and charges of a serious nature that relate to conduct occurring in the course of practice 8.2.8 Information to be provided on renewal 8.2.9 Composition of Professional Standards Committees and the Medical Tribunal 8.2.10 Conduct of proceedings before Professional Standards Committees and the Medical Tribunal 8.2.11 Disciplinary sanction 8.2.12 Appeals Removal from the register 62 Impairment 9. 9.1 9.2 9.3 9.4 9.5 10. 11. 64 64 64 65 65 Introduction Mandatory reporting of impairment Impaired practitioner initiated requests for variation or removal of conditions on registration Power to direct medical examinations Disclosure of conditions by impaired practitioners Corporations engaged in the provision of medical services Regulation of conduct and market information 66 68 69 70 73 74 11 .1 Advertising 11.2 Access to medical records 11 .3 Recovery of fees by medical practitioners 11.4 Mandatory disclosure of fees 11 .5 Access to information on the register 75 76 - ii - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _--'C.R' '\·iew of fill! M('dical Pradin! Act - Final RCIH)'-! = 12. 12.1 12.2 12.3 Restrictions which impact on the practice of unregistered practitioners Introduction Recovery of fees Prohibition on advertising cures for a range of diseases and treating cancer Administration of the Medical Practice Act 78 78 78 79 13. 13.1 13.2 81 81 81 81 Application of the Anti-Discrimination Act Ministerial direction 13.3 Confidentiality and protection from disclosure 13.4 Composition of the Medical Board 13.5 Terms of Board members 13.6 Appointment of President and Deputy President 13.7 Fines 13.8 Offences by corporations 13.9 Staff of the Board 82 83 83 84 84 85 14. 14.1 14.2 14.3 14.4 Other issues Post Graduate Medical Council Professional indemnity insurance Deregistration of certain foreign practitioners National Board 86 86 86 86 87 88 92 93 95 97 Footnotes Appendix A Terms of Reference Appendix B Individuals and organisations who made submissions Appendix C Definition of unsatisfactory professional conduct Appendix 0 Complaints - Discipline Process Appendix E Features of Legislation Regulating Medical Practice in Other States and Territories 98 - iii - Rt't"it!u' {{ the Medi('al Practice.' Ael - Fillal Report EXECUTIVE SUMMARY AND SUMMARY OF RECOMMENDATIONS Introduction (Chapter 1) Section 199 of the Medical Practice Act 1992 requires the Minister for Health to review the Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain valid for securing those objectives. The Council of Australian Governments (COAG) Competition Principles Agreement provides that legislation should not restrict competition unless it can be demonstrated that the benefits to the community as a whole outweigh the costs of restricting competition and that the objectives of the legislation can only be achieved by restricting competition . The Review of the Act has been carried out by the Department's Legal Branch. The Department has prepared this Report for consideration by the Deputy Premier and Minister for Health, the Hon Andrew Refshauge, MP and the NSW Government in satisfaction of the review requirements under the Medical Practice Act and the Agreement. Regulation of Medical Practitioners (Chapter 2) The Medical Practice Act establishes a comprehensive system for the registration and disciplining of medical practitioners. The principle requirements of the Act which may have an impact on competition can be summarised as follows: • The restriction on the use of the title "medical practitioner" by unregistered persons may confer a competitive advantage on medical practitioners over other service providers. The requirements for registration may restrict competition where the number of persons that may gain registration (and hence use the title "medical practitioner") is limited beyond that which is necessary to ensure that the objectives of the Act can be achieved. Similarly, the power to impose conditions can, in certain cases limit competition. The complaints and disciplinary system or statutory restrictions on conduct, although generally directed at ensuring that high standards are adopted by practitioners, may inappropriately focus on the commercial conduct of medical practitioners thus limiting information to consumers on the difference services available. The Act contains a number of restrictions on the conduct of persons other than medical practitioners: (i) fees cannot be recovered for medical or surgical services provided by unregistered persons; (ii) unregistered persons are prohibited from advertising cures for certain diseases; and (iii) unregistered persons are not to give or offer cancer treatments. - iv - • • • Rel'jew of tile ,\fedicl.ll Practic£' A('/· Filial (( cfUW/ A range of new regulatory requirements were canvassed in the Issues Paper and these are also assessed to ensure that they accord with the review principles. Objectives of the legislation (Chapter 3) The Department is of the view that there is a continuing rationale for the intervention to minimise the risks of harm or injury to consumers of medical services. The objective of legislation regulating the medical profession has been identified as the minimisation of harm for consumers of medical services. Recommendation 1 That the Medical Practice Act be amended to provide that jts objective is to protect the health and safety of members of the public by providing mechanisms to ensure that medical practitioners are fit to practise. The Registration of Medical Practitioners (Chapter 4) The primary form of intervention by which the Medical Practice Act seeks to achieve this objective is through the establishment of the registration system and the placement of restrictions on who may use the title "medical practitioner". The restriction aims to achieve the objectives of the legislation by providing consumers with a simple and understandable means of identifying practitioners capable of providing the full range of medical services. The Department is of the view that this system is likely to produce an overall benefit to the community because it effectively and simply provides information to consumers about the competence and ethical standards of those holding themselves out as medical practitioners. The disciplinary system plays a role in regulating the conduct of medical practitioners. As titles legislation. other service providers continue to operate in competition with medical practitioners, minimiSing the costs for consumers. Other options have been considered , however, the Department has concluded that they are unlikely to meet the objectives of the legislation. ----~--------------------------~ I Recommendation 2 That medical practitioners continue to be registered by tltle. Entry requirements and registration inquiries (Chapters 5 and 6) The current Act creates two categories of registration (ie general registration and conditional registration at the discretion of the Board), each having slightly different criteria . Although most submissions were supportive of the current categories of registration , several proposals have been put forward by the Committee for the review of practices for the employment of medical practitioners in the NSW Health System which will require further consultation. A range of other amendments are also recommended to ensure that the registration criteria and the jurisdiction of the Medical Board over medical students adequately protects the public . . v· R!'l 'if!ll-' (J/ llil' Medical Practict' ..Ie/ - Final Reporl Recommendation 3 That the Act be amended to give the Medical Board tha power to refuse registration where a charge has been proven but no conviction recorded and the Board is of the opinion that it renders the applicant unfit in the public interest to practise medicine. Recommendation 4 That the Act be amended to give the Medical Board toe power to refuse a nonmutual recognition applicant where he or she has been suspended indefinitely from an inter-state register on account of professional misconduct Of any basis relating to the person's physical or mental capacity to practise medicine. Recommendation 5 That the Medicai Board continue to have jurisdiction over medical students in impairment matters and the definition of "medical student' in the Act be amended to more accurately cover medical students who are directly involved In patient care. RecoMmendation 6 That the Act should be amended to clarify that the Medical Board has the power to conduct inquiries into eligibllity for: • all re-registration applications; • all applicants transferring from internship/supervised training to general registration; and • all applicants transferring from conditionaVretlred or non-practising registration to general registration. Recon'lmendation 7 That the Medical Board notify the Heaith Care Complaints Commission of all registration inquiries (wito the exception of those which ~onoem impairment) and at the discretion of the inquiry be permitted to appear before the inquiry. Requirements for continuing registration (Chapter 7) Under the current Act the Medical Board is required to rely heavily on the initial registration criteria and the ongoing competence of practitioners. The power of the Medicai Board to protect the public would be enhanced if it had the power to assesses the performance of practitioners with broad based problems that warrant early intervention. The Medical Board has been developing such a model which is yet to be finalised. Recommendat1on 8 That \he Medical Board proposal for performance assessments be the subject of further consultation Disciplinary System (Chapter 8) Complaints and disciplinary systems playa central role in maintaining professional standards and protecting patients from harm. A number of recommendations have been made the object of which is to make the disciplinary system more effective. They include amendments to the types of conduct which can attract disciplinary action and improved - vi- access by the Medical Board to information which is relevant to its protective jurisdiction. Recommendation 9 That the grounds for complaint in the Act be amended to include not only convictions but instances where the charge has been proved but no conviction recorded. Recommendation 10 That the definition of "unsatisfactory professional conducr' in the Act should be amended to include: • both convictions and cases where a finding of guilt is made but no conviction recorded for the specified offences under the Mental Health. Children (Care and Protection), Guardianship, Private Hospitals and Day Procedure Centres, Nursing Homes and Health Insurance Acts; • failure to disclose a conflict of interest in a service; • conduct which involves: (a) providing a person with medical services of a kind that Is excessive, unnecessary or not reasonably required for that person's welt being; or (b) influencing or attempting to influence the conduct of a medical practice in such a way that patient care may be compromised; • failure to respond to a Board request for information without reasonable excuse. That the prohibition on the use of qualifications not recorded in the register be deleted from the definition of "unsatisfactory professional conduct" in the Medical Practlce Act. Recommendation 11 That the Medical Practice Act be amended to enable Codes of Conduct to be made by Regulation under the Act following consultation with the Board. Recommendation 12 That the Medical Board should review its strategies for encouraging practitioners to notify it when they obtain information which raises issues about a practitioner's competence or sexual misconduct. Recommendation 13 That the Medical Practice Act be amended to impose a positfve obligation on practitioners to notify the Medical Board if they are convicted of an offence (irrespeclive of whether It Is recorded or not) unless it is an o«ence of a type that is not required to be reported to the Medical Board. - vii - Rn;eu: oj the l\'fedkal Proctil'i' Ac:t - Fill"l UC'fJOr[ Recommendation 14 That the Medical Practice Act be amended to oblige a medioal practitioner to noltfy the Medical Board within seven days if charged With a "serious sex or violence offence" where the allegations relate to conduct occurring in the course of practice. A "serious sex or violence offence" means an offence involving sexual activity. acts of indecency, physical violence or the threat of physical violence that would be punishable by imprisonment for 12 months or more. Recommendation 15 That the Medical Practice Act be amended to require applicants for registration to make declarations on: • criminal convictions (recorded and unrecorded); • charges for serious sex or violence offences where the allegations relate to conduct occurring in the course of practice; • significant illness for the purpose of Identifying whether there may be issues of impairment; and • continuing medical education activities. The general view among submissions was that for a disciplinary system to be effective at monitoring and enforcing standards among the profession it must be independent, transparent, accountable to the public and fair to all parties. A number of recommendations are made about the processes for the conduct of disciplinary proceedings which are designed to further this objective. RecommendatIon 16 That the Medical Practice Act be amended to provide that members of ProfeSSional Standards Committees and the Medical Tribuna] should be drawn from a panel of persons appointed by the Minister for Health. !That the Medical Board arrange training in procedural faimess and the administration of inquiries for members of Professional Standards Committees and the Medical Tribunal. Recommendation 17 That the Medical Practice Act be amended to provide that: • if a Professional Standards Committee or the Medical Tribunal is proposing to make an order which will place an appreciable burden on a third party. prior to making the order the third party will be given an opportunity to be heard on the proposed order; and • a third party which is placed under an appreciable burden by a decision of a Professional Standards Committee or the Medical Tribunal will be provided wlth a copy of the decision within seven days of it being made, It will remain a matter for the third party as to whether it Is able to Implement the order. - viii - Review oFt/w Medical Practice Ac/ - Final Repol'I Recommendation 18 That in the interests of protecting the public, the emergency powers under the Medical Pracllce Act should be retained but reviewed to address: • the timing of the various actions; • the failure to include reference to an Impaired Registrants Panel as an outcome; • the interaction with time frames under the Health Care Complaints Act; and • the lack of a mechanism to review conditions pending a hearing. Recommendation 19 That section 63 of the Medical Practice Act be amended to confer a right of appeal to the Supreme Court. Recommendation 20 That the Medical Practice Act be amended to narrow the scope of review applications to preclude a person from challenging findings made by earlier Tribunals and to confer a right of appeal to the Supreme Court in circumstances where a substantial miscarriage of justice would arise from the discovery of fresh evidence. Impairment (Chapter 9) Most submissions have been supportive of the impairment system which enables the Medical Board to take action before the condition of a practitioner/student puts the public at risk and warrants disciplinary proceedings. A number of recommendations are proposed which will assist the Board to protect the public from the risk posed by practitioners and students who suffer from an impairment. Recommendation 21 That the Medical Practice Act be amended to provide that a practitioner who has agreed to have conditions imposed on his or her registration may only have them lifted with the agreement of the Medical Board which will receive a recommendation from an Impaired Registrants Panel, and with an accompanying right of appeal from the Medical Board's decision to the Medical Tribunal. Recommendation 22 That the Medical Practice Act be amended to give the Medical Board the power to direct a medical practitioner who is the subject of a matter referred or proposed to be referred to an Impaired Registrants Panel to undergo a medical examination. Corporations engaged in the provision of medical services (Chapter 10) An issue which emerged from consultation on the Issues paper was that unlike medical practitioners, essentially the Medical Practice Act does not regulate corporations providing medical services. There has been a proliferation of medical centres and specialised clinics where medical practitioners are retained as employees. Employers that are not medical practitioners are outside the scope of the disciplinary system. It can be argued that it is inequitable for an employer who influenced or attempted to influence a practitioner to engage in the offensive conduct to be beyond the reach of the law. Accordingly, the Department is - ix- recommending that this issue be the subject further consultation. Recommendation 23 That the Department undertake further consultation on whether legislative amendment is required to adequately address improper or unethical practices by corporations engaged in providing medical services and, if so, the form of such legislation. Regulation of conduct and market information (Chapter 11) Although the power to regulate advertising in the Medical Practice Act can constrain normal forms of competitive behaviour, the extent to which restrictions will impact on competition will depend on the precise terms of the regulation. The Department has concluded that the power to regulate advertising is linked to professional standards and is in the public interest. Amendments are also proposed which remove restrictions on when practitioners can initiate proceedings to recover fees and facilitate public access to information on the register. Recommendation 24 That the Medical Practice Act be amended to remove the restrictions on when practitioners may initiate proceedings to recover fees for sel'V1ces provided. Recommendation 25 That the Medical Practice Act be amended to clarify that orders of aU disciplinary and impairment proceedings with the exception of impairment related conditions which have been recommended by an Impaired Registrants Panel should be publicly available. Restrictions which impact on the practice of unregistered practitioners (Chapter 12) The Department considers that the restrictions in the Medical Practice Act which prevent unregistered persons from carrying out particular types of activities (e.g. advertising cures for a range of diseases) should be removed on the ground that they do not provide more effective protections than those afforded by the broader regulatory environment and have shown to be unenforceable. Recommendation 26 That the current restrictions on recovering fees for medical or surgical services, advertising cures for a range of diseases and providing cancer treatments be removed from the Medical Practice Act. Administration of the Medical Practice Act (Chapter 13) A number of other amendments are recommended which concern the administration of the Medical Practice Act and the turnover of the Medical Board. IRecommendation 27 . x· R('\'it'w o(the Met/inti Pnll'/ict' ,.leI - Fillal Rep(lrt That the Medical Practice Act be amended to give all medical reports which have been prepared at the request of the Board or pursuant to an order of a Professional Standards Committee or the Medical Tribunal the same protections which are currently given to reports of Impaired Registrants Panels. Recommendation 28 That the Medical Practice Act be amended to provide that a person may not hold office as a member of the Board for consecutive terms totaling more than eight years. Recommendation 29 That the Medical Practice Act be amended to provide that when a body corporate commits an offence, every director and person who takes part in the management of a body corporate is taken to have committed the same offence unless he or she proves that: • the offence was committed without his or her consent · f connivance; and o • he or she exercised all such due dmgence to prevent the commission of that offence as he or she ought to have exercised, having regard to the nature of his or her functions in that capacity and to all the circumstances. Other Issues (Chapter 14) The Department recommends that the proviSions in the Act which enabled the Medical Board to conduct an audit of its register in 1993 to identify those overseas trained practitioners who had not demonstrated a commitment to live in Australia be removed. Recommendation 30 L--.. _ _ _ _ _ That Part 3 of Schedule 5 of the Medical Practice Act be deleted. J - xi - Rl'l 'il'U' I)l lhe ,\Jet/ieal Pmc/jct' Act· Final Rej)ort 1. 1.1 INTRODUCTION Background to the Review Section 199 of the Medical Practice Act 1992 requires the Minister for Health to review the Act during the 1998 calendar year. The purpose of the review is to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain valid for securing those objectives. The Council of Australian Governments (COAG) Competition Principles Agreement provides that legislation should not restrict competition unless it can be demonstrated that the benefits to the community as a whole outweigh the costs of restricting competition and that the objectives of the legislation can only be achieved by restricting competition. In undertaking the Review. Governments agreed that: (i) (ii) (iii) (iv) (v) the objectives of the legislation will be clarified; the nature of the legislation will be identified; the likely effects of the restriction on competition and the economy generally will be analysed; the costs and benefits of the restriction will be assessed and balanced; and alternative means for achieving the same result will be considered . The Minister for Health requested that the Department of Health conduct a review in accordance with section 199 of the Medical Practice Act and to assess whether the Medical Practice Act accords with the principles outlined above. The requirements to be considered during a review are set out at Appendix A. 1.2 Conduct of the Review The Review of the Act has been carried out by the Departmenfs Legal Branch . An Issues Paper seeking public comment was released in September 1998. Approximately four hundred and twenty copies of the Paper were distributed to consumers, government bodies, medical practitioners, professional associations and other health care professionals. Approximately 50 submissions were received by the Department. A list of submissions is attached at Appendix B. 1.3 Other review processes A number of other inquiry and review processes have been occurring concurrently with this Review which have some relevance. These are: (i) (ii) (iii) the Ministerial Committee of Inquiry into Impotency Treatment Services in NSW; and the Ministerial Committee of Inquiry into Cosmetic Surgery Services; the Committee for the Review of Practices for the Employment of Medical Practitioners in the NSW Health System. This Report discusses a number of the recommendations of these reviews in so far as they are relevant to the Medical Practice Act. -1- Rt'\'iew of,,,,, Mt'dinrl Pradin' ...lei - Filial HI'I'lm 1.4 The Final Report The Department has prepared this Report for consideration by the Deputy Premier and Minister for Health, the Hon Andrew Refshauge, MP and the NSW Government in satisfaction of the review requirements under the Medical Practice Act and the Agreement. - 2- Rl'l'iew c,f the Medj(.'ul Pmcticc Act· Filial Report 2. 2.1 THE REGULATION OF MEDICAL PRACTITIONERS Introduction Workforce surveys' indicate that approximately 81 per cent of the registered medical practitioners in NSW are in paid employment in NSW. In 1996, almost 65 per cent of the total medical practitioner workforce were employed in the private sector (including private medical rooms/surgery, private acute care hospitals and other private facilities). The remaining 35 per cent were employed in the public sector. There has been a steady decline in medical practitioners employed in the private workforce, falling from 77.8 per cent in 1986 to 64 .8 per cent in 1996. As most practitioners are employed in the clinical field, patient care represents the bulk of their duties. Over 60 per cent of practitioners spend 40 hours or more per week attending to patient care as a result of their primary employment.. Roughly one third of all practitioners reported spending 50 hours or more per week on patient care. Medicare statistics indicate that in the financial year 1996/97, 72,614,045 medical services were performed in NSW (note that these are based on billed Medicare items, one patient may account for several items). This is approximately 11.6 services for each resident of NSW in that year. Over half of these services were performed by general medical practitioners and specialists. Of the total number of services performed , 75 per cent were direct billed to Medicare. Total services performed in 1996/97 in NSW attracted Medicare benefits of $ 2,260,262,510, or approximately $360 per capita. Nearly a third of these benefits were for services performed by general practitioners and vocationally registered practitioners. 2.2 The Medical Practice Act 1992 The Medical Practice Act 1992 which replaced the Medical Practitioners Act 1938 updated and streamlined the provisions governing the registration and discipline of medical practitioners in New South Wales. Restriction on title The Act provides that only those people meeting certain registration requirements can be registered as medical practitioners in NSW. Those who gain registration are entitled to use a tille or description from which it may be inferred that he or she is a registered medical practitioner (eg "medical practitioner", "general practitioner"). Although unregistered persons may not use these descriptions, the Medical Practice Act itself essentially does not preclude such persons from offering or providing types of services which are also provided by registered medical practitioners. The legislation is therefore a 'titles' or 'certification' Act. Registration requirements There are two categories of registration under the current Act. For a person to be entitled to general registration he or she must: -3- (i) (ii) (iii) possess recognised medical qualifications and have successfully completed a period of internship or supervised training as required by the Medical Boards or be entitled to registration under mutual recognition; be competent to practise medicine (ie adequate medical skills and command of the English language and sufficient physical and mental capacity to practise medicine); and be of good character. In circumstances where an applicant does not meet eligibility criteria for general registration he or she may apply for conditional registration at the discretion of the Medical Board. For the Medical Board to confer discretionary registration it must be satisfied that: (i) (ii) (iii) registration is appropriate having regard to the categories of discretionary registration set out in the Medical Practice Act; the applicant is competent to practise medicine (ie sufficient physical and mental capacity to practise medicine, adequate medical and English language skills); and the applicant is of good character. In addition, the Board can refuse to register a person otherwise entitled to be registered where: (i) (ii) the person has been convicted of a criminal offence which in the opinion of the Board renders the person unfit in the public interest to practise medicine; or the person's name has been removed from a register or roll in another jurisdiction, providing for the registration of medical practitioners, for misconduct or any basis relating to the person's physical or mental capacity to practise medicine. Regulation of the Conduct of Medical Practitioners The Act ensures that medical practitioners adopt appropriate standards of professional conduct. The primary means through which this is done is the complaints system. A complaint may be made to the Board (or the Health Care Complaints Commission) that a medical practitioner: (i) (ii) (iii) (iv) (v) has been convicted of an offence; has been guilty of unsatisfactory professional conduct or professional misconduct; is not competent to practise medicine; suffers from an impairment; or is not of good character The current Act contains a two tier disciplinary structure. Section 36 sets out the definition of "unsatisfactory professional conduct" and is attached at Appendix C. "Professional misconduct" is defined as unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or deregistration of the practitioner. While breaches of specific offence provisions of the Act can be pursued through criminal action in the Local Court, the definition of "unsatisfactory professional conduct" is such that breaches of the Medical Practice Act and regulations can be pursued through the Act's -4- Rc,\·it'l\· of /he Mt!dic'u/ Pracltn' Ad ~ Filial Re/JI)I"I disciplinary system. The Act currently contains a number of offence provisions (eg failure to appoint a person responsible for advertising by a corporation, the making of false entries in the register) A complaint can be made to the Medical Board under the Medical Practice Act 1992 or to the Health Care Complaints Commission (the "HCCC") in accordance with the provisions of the Health Care Complaints Act 1993. Under the two Acts processes are in place to ensure that complaints are handled in a co-ordinated manner. In the first instance, complaints made to one body are referred to the other. Action on a complaint is then determined through consultation between the Board and the HCCC. Matters can be referred to the Health Conciliation Registry for conciliation, referred to the HCCC for investigation or dismissed. Following an investigation, the HCCC can make a recommendation that diSciplinary action be taken . More serious complaints which may if substantiated provide grounds for suspension or deregistration must be referred to the Medical Tribunal. Less serious matters are referred to a professional standards committee (PSC). The PSC or the Medical Tribunal can inform itself of any matter as it sees fit, summons witnesses, take evidence and obtain documents. Neither body is bound by the rules of evidence. Legal representation is only permitted before the Medical Tribunal. A wide range of penalties can be imposed by a PSC if it is satisfied a complaint is proved after a hearing. These penalties include a caution, medical or psychiatric treatment or counselling, the imposition of conditions on registration, continuing education and a fine of up to $5,500. The Medical Tribunal may impose any of these penalties and in addition impose a fine of up to $27,500 and deregister the practitioner concerned. A diagram outlining the current complaints process is included at Appendix D. 2,3 Other Legislation It is important to note the broader regulatory environment in which medical services are provided . The Health Insurance Act 1973 provides for the national Medicare Scheme under which only practitioners who have a Medicare Billing number are able to bill or receive a refund from Medicare for professional services they have rendered. • Under State Poisons and Therapeutic Goods legislation the prescription of certain types of drugs for diagnostic or therapeutic use in humans is limited to registered medical practitioners and dentists. Consumer protection laws (ie the Commonwealth Trade Practices Act 1974 which is administered by the Australian Competition and Consumer Commission and the NSW Fair Trading Act 1987 which is administered by the NSW Department of Fair Trading) prohibit medical practitioners from making false and misleading representations in the course of providing a service, for example, falsely claiming to hold qualifications or membership of professional associations. -5- Rl'vieH' o/"lhe Medical Pft/din' Act· Filial Rl!J}cwl • The Health Care Complaints Commission has the power to investigate complaints about a person who provides a health service. The Public Health Regulation 1991 provides that no person with the exception of medical practitioners and dentists may carry out any procedures which penetrate the skin unless certain requirements the object of which is to avoid infection are met In the case of a dispute between a health professional and a consumer, either party could seek to resolve their differences through the civil court system, although it is recognised that this is generally an expensive process and is unsuitable for minor complaints . As an alternative such matters can also be heard before a Consumer Claims Tribunal which has the objective of providing a Simple low cost mechanism for dispute resolution. Complaints about fees may also be pursued before the Consumer Claims Tribunal. The Role of Professional Associations • • 2.4 In addition to the registration board, professional associations playa role in monitoring standards among medical practitioners. There is a significant number of Colleges in respect of specific areas of medical practice which play an active role in this area. In addition to requiring that applicants for membership meet certain entry criteria, Colleges are involved to varying degrees in continuing education, re-certification and a number of other initiatives which are performance related. In addition, groups like the Australian Medical Association also playa role in this area. The AMA which represents approximately forty per cent of practitioners has issued a Code of Ethics which deals with the broader issue of professionalism. It is important to note however that not all practitioners are members of professional associations. 2.5 Other Service Providers There are a number of health professionals or para-professionals that provide some of the services that are ordinarily provided by medical practitioners as noted above. This includes but is not limited to paramedics, pharmacists, nurses, physiotherapists, optometrists, dentists and psychologists. With the exception of paramedics, all of the other health professions listed above have statutory registration board. All persons providing health services, whether registered or not, are subject to the Health Care Complaints Act 1993 and the other consumer protection legislation outlined above. 2.6 The Regulation of Medical Practice in Other Jurisdictions Medical practitioners are registered in all Australian States and Territories. While all jurisdictions provide for the establishment of a registration board and academic requirements for registration are broadly similar, different arrangements apply for the disciplining of members and the handling of complaints. While NSW restricts the use of the title of "medical -6- practitioner", some jurisdictions prohibit specific practices from being carried out by persons other than a registered medical practitioner. A summary of the main features of legislation regulating medical practice in other jurisdictions is provided at Appendix E. 2.7 Impact of the Legislation on Competition Legislative controls imposed by Government often have positive outcomes for the community where they effectively address problems that arise from the provision of services in an unregulated environment. These problems are sometimes known as 'market failures'. An example of such a problem is where there is an imbalance of information between service providers and consumers, limiting the ability of the latter to make informed choices when seeking service providers. However, regulation may also restrict competition among service providers. This may result in new problems or costs for business, consumers and government which are not justified having regard to the nature of the problem which the intervention was seeking to address. Alternatively, regulation may not be effective in addressing the identified problems at all. The principal requirements of the Act which may have an impact on competition can be summarised as follows. • The restriction on the use of the title "medical practitioner" by unregistered persons may confer a competitive advantage on medical practitioners over other service providers, although this could be outweighed by the benefits to consumers of being able to identify competent and ethical service providers. The requirements for registration may restrict competition where the number of persons that may gain registration (and hence the right to use the title "medical practitioner") is limited beyond that which is necessary to ensure that the objectives of the Act can be achieved. Unjustified limitations on the number of practitioners, whether effected by requirements for academic qualifications and supervised practice or the imposition of specific requirements such as character, may result in a lessening of competition. Similarly, the power to impose conditions on registration can, in certain cases, limit competition. The complaints and disciplinary system or statutory restrictions on conduct, although generally directed at ensuring high standards are adopted by practitioners, may inappropriately focus on the commercial conduct of medical practitioners thus limiting information to consumers on the different services available. The Act contains a number of restrictions on the conduct of persons other than medical practitioners: (i) (ii) (iii) fees cannot be recovered for medical or surgical services provided by unregistered persons; unregistered persons are prohibited from advertising cures for certain diseases; and unregistered persons are not to give or offer cancer treatments. • • • One of the principles guiding this review in assessing the restrictions outlined above is whether the costs arising from the restrictions are outweighed by the benefits, and that the -7- Rel'iew oft/it' Medical Pral'lin' Act · FlIIa/ Rep(ll"/ objective of the legislation, as canvassed in Chapter 3, can only be met by restricting competition. A range of new regulatory requirements were canvassed in the Issues Paper and these are also assessed to ensure that they accord with the review principle. -8- Redell' fllthe :\/cdi(aJ Prtlc(ic£' Act - Fillal Report 3. THE OBJECTIVES OF LEGISLATION REGULATING MEDICAL PRACTICE Objectives of the Current Act 3.1 The Medical Practice Act does not contain a clear statement of its objectives. Notwithstanding this, the preamble to the Act and the functions of the NSW Medical are quite informative. The preamble to the Medical Practice Act states: "An Act to provide for the registration of medical practitioners and medical students and the making of complaints and the taking of disciplinary action against medical practitioners: to repeal the Medical Practitioner's Act 1938; to amend certain Acts: and for other purposes..' The functions of the Medical Board are set out in section 132. "132(1) The Board has and may exercise the functions conferred or imposed on it by or under this or any other Act. (2) In addition. the Board has the following functions: (a) to promote and maintain high standards of medical practice in New South Wales; (b) to advise the Minister on matters relating to the registration of medical practitioners, of medical practice and any other matter arising under or related to the Act or regulations; (c) to publish and distribute information concerning this Act and the regulations to registered medical practitioners and other interested persons; (d) to provide counselling services for registered medical practitioners and medical students. " 3.2 Original Rationale for the Objectives of the Act The problem that the legislation seeks to address is the potential risk of harm from unqualified, unscrupulous or sub-standard operators in the market for medical services. In other words, the primary objective of the legislation at the time it was introduced was to minimise risks to the public. The Act recognises consumers need assistance to identify registered practitioners because they may lack the specialised knowledge and ability to make such a judgement themselves. 3.3 Submissions Submissions overwhelmingly supported the view that the objectives of the legislation are protection of the public through the provision of information to patients. Professionals. their associations and consumers shared this view. "The objective of the Medical Practice Act is primarily to protect the public by ensuring that all applicants for registration as medical practitioners are adequately educated and trained, and that the highest standards of conduct and practice are maintained through the disciplinary, impairment and performance powers of the NSW Medical Board."2 "The Medical Practice Act should continue to protect the public."' -9- A number of submissions were particularly supportive of the Health Care Complaints Commission proposal which was canvassed in the Issues Paper. That is, any objects clause should include: "promotion and maintenance of professional standards of medical practice in New South Wales to facilitate public confidence in the profession and protect the community from unethical and incompetent practitioners'. 3.4 Conclusions Submissions support the view that the objective of the Act is the minimisation of the risks of harm to those using or seeking to use the services of a medical practitioner. It is argued that the rationale underpinning this objective is that in the absence of government intervention, consumers will have difficulty identifying competent and ethical service providers. In short there is an imbalance of information which exposes consumers to harm. What are the risks of harm to consumers? A range of potential risks to consumers have been identified. The 'harm' that is sought to be addressed is not limited to acts of registered or unregistered persons that injure a patient, such as incompetent care, but includes the injury that may result if a patient is unable to obtain the services they need, or is discouraged from seeking those services. These can be summarised as follows: • Consumers (most of whom lack speCialised knowledge) have a limited ability to assess the need for medical services or the type of service required. There are a number of different service providers in the market for medical services not all of whom have the same training and skills or can offer the same service. The inability of consumers to identify competent service providers may result in a failure to detect chronic or severe illness. If an incompetent practitioner is consulted in the first instance, appropriate treatment may be delayed or inappropriate treatment administered. Consumers may be discouraged from seeking services. Unmanaged or untreated illness can result in reduced health, well-being and in some cases death. • The complaints history of the profeSSion suggests that there are risks of harm to patients from those qualified to practise as medical practitioners.' In 1996/9755 per cent of complaints received by the Medical Board concerned clinical competence. Do general consumer protection laws and membership of a professional association provide assistance to consumers? The prohibition on misleading and deceptive conduct contained in the Trade Practices Act 1974 (Cth) and the Fair Trading Act (NSW) does not provide sufficient protection to patients. While a consumer could clearly seek redress where a practitioner falsely claimed to hold qualifications, the provisions are unlikely to be effective in situations where qualifications are held but are not of sufficient standard for the services the consumer is seeking. While the Health Care Complaints Act 1993 enables consumers to make a complaint about any health service provider, registered or not, specific disciplinary action can only be taken - 10 - Revit'u o(rht! Medkaf Practiu.' Act· Filwl RC(lwl where the person is registered. Although complaints could be referred to a professional association for action, this may be inadequate as not all registered medical practitioners are members of a professional association. Further, a professional association may be unwilling to deal with a complaint and even where a complaint is properly dealt with it may lack appropriate sanctions. The Department is of the view that there is a continuing rationale for intervention to minimise the risks of serious harm or injury to patients. However, the precise form of intervention, that is, registration by title or alternative means, is considered in the next chapter. To ensure that the welfare of patients is the paramount consideration in administering the legislation, it is proposed that the Act be amended to include a specific statement of its objectives. This should be complemented by a full description of the Medical Board's functions in the Medical Practice Act. I I I I Recommendation 1 That the Medical Practice Act be amended to provide that its objective Is to protect , the health and safety of members of the public by providing mechanisms to ensure that medical practitioners are fit to practise. - 11 - Rct'it'w {!I the Medical Practice Act - Final Reporf 4. THE REGISTRATION OF MEDICAL PRACTITIONERS AND COMPETITION Introduction 4.1 The primary form of intervention by which the Medical Practice Act 1992 seeks to achieve the objectives outlined in the previous chapter is through the establishment of the registration system and the placement of restrictions on who may use the title 'medical practitioner'. The restriction aims to achieve the objectives of the legislation by providing consumers with a simple and understandable means of identifying practitioners capable of providing the full range of medical services. As consumers can identify such practitioners, risks of injury will be reduced along with costs to consumers of seeking qualified practitioners. Although the Issues Paper noted that the prohibition on the use of the title "medical practitioner" by unregistered persons could have benefits for consumers, it was also noted that this may have disadvantages or costs, primarily through its impact on competition. A restriction on title may confer a competitive advantage on registered medical practitioners because it indicates that medical practitioners are able to provide a superior service. This may result in unnecessary costs for consumers. Further, by restricting the number of practitioners who may be registered, competition among medical practitioners may be affected. If prices rise substantially, then consumers could be discouraged from using the services of medical practitioners. This chapter will focus on the impact of the restriction on the use of the title "medical practitioner", (the principal feature of the Act), and whether this form of intervention is necessary to achieve the objectives of the Act. Alternatives to these requirements are considered to determine whether they can achieve the objectives of the legislation. with less cost or adverse impacts on competition. Before turning to discuss these alternatives it is important to reiterate that the Medical Practice Act is not the only legislation which regulates the delivery of medical services. The Health Insurance Act. Poisons and Therapeutic Goods legislation, the Trade Practices Act. the Fair Trading Act and the Health Care Complaints Act are also relevant in this regard .5 4.2 Submissions Submissions were sought in regard to the effectiveness of the current Act. the costs and benefits of the current system and whether the objectives of the legislation could be achieved by other means. The overwhelming majority of submissions supported the continuation of restrictions on the use of the title. "The model provides an objective and non-discriminatory means of regulation of the profession. the cost of which is borne entirely by the profession."" "The medical profession has maintained the confidence of the public through maintaining its high standards and by being a regulated profession underpinned by a statutory framework which sets high entry standards, introduced restrictions such as those included in ss 108-109 of the Act and which has a transparent and effective disciplinary system for those practitioners who have failed to maintain appropriate standards.'" - 12 - RCI'jew I!! tlit' Mt'dint/ Pmc:rin' Ad - Filial RC/)(Wf 4.3 Options for Government intervention to achieve the objectives In view of the submissions received concerning the current Act and the impact on competition, the Department has given further consideration to the issue of whether the current arrangements produce the greatest overall benefit for the community, and are the most effective means for achieving the objectives of the Act. Alternatives that limit the impact on competition have been identified. Option 1 - Title restriction and registration of medical practitioners For the purposes of this analysis, the current system outlined in paragraph 2.2 is Option 1. Option 2 - Co-regulation Rather than providing for the registration of medical practitioners by title, an alternative approach could be to provide information directly to consumers of medical services to assist them in identifying competent and ethical service providers. The professional associations would administer the disciplinary system to ensure the maintenance of professional standards. The Government would assume an accreditation role which would include the Government publishing a list of accredited associations and promoting the benefits of dealing with a practitioner who is a member of one of those associations. A practitioner who is not a member of an accredited association would not be prevented from practising or from using the title "medical practitioner". Option 3 - Voluntary Certification by a Government Authority or Statutory Body This is essentially the same as Option 2 but instead individual practitioners are certified by a Government authority or statutory body such as a board. Certification would involve the authority or body making an independent assessment as to whether a practitioner has sufficient skills or competencies to practise as a medical practitioner. Although certification by the board is voluntary, certified practitioners may hold themselves out as such while those falsely claiming to be certified could be dealt with by general restrictions under the Trade Practices and Fair Trading Acts on misleading and deceptive conduct. There would be no restrictions on who may practise as a medical practitioner or use this title. Option 4 - Title and Core Practice Restriction This option would involve restrictions on who may use a particular title and certain "core practices" which have been identified as carrying significant risks if performed by unqualified persons. Not all techniques used by the profession would be restricted. Non-registered persons would be precluded from using the title but be able to compete with registered practitioners by providing services which are not harmful but fall within the scope of the practise of the registered profession. Option 5 - Title and Complete Practice Restrictions This is the most restrictive form of professional regulation. It is similar to Option 4 however, the entire scope of a profession's practice would be limited to a particular professional group. 4.4 Assessment of options for government intervention - 13 - RI!\inr t?! (Itt! Medj('cli Pl'tlclicC! Act· Final Rcport In assessing the five options, option one has been used as a benchmark against which other options are compared. However, it should be noted that it is not possible to quantify the benefits or costs of any of the options, including the current system due to a lack of comparative data. The Department is of the view that substantial benefits will arise where risks are averted. As a consequence, in carrying out a comparative assessment of the options, it is likely that the option which has the highest overall benefits or advantages for the community will be the one which most effectively and simply provides information to consumers to assist them in using the service of a qualified practitioner. The effectiveness of the system in providing this information can then be compared to the costs of the system, in particular the anticipated impact on competition . Option 1 - Title restriction and registration of medical practitioners The disadvantages or costs of the current system have been identified as follows • The costs of administering the legislation The administrative costs of the Board of approximately $3 million (1997 figures) are recovered through registration fees. A substantial proportion of the costs of administering the Health Care Complaints Commission also need to be considered, although they cannot be calculated with preCision as the Commission has jurisdiction to investigate providers of health services whether registered or not. In 1996/97 over three-quarters of complaints received by the Commission against professions concerned medical practitioners. The Commission's overall budget for that year was approximately $4.5 million. • Disadvantages or costs of restricting competition resulting in higher prices for consumers It can be argued that even where entry criteria are reasonable, registration of itself enables registered practitioners to attach a premium to their services resulting in higher prices for consumers. The presence of such a premium for any profession, including medical practice, would imply the presence of an additional cost to society from registration. If such a 'premium' for medical practitioners were to arise this may discourage consumers from seeking services from a registered professional. Isolating a premium for any profession is complicated. Even if a price premium were observed, it is not clear that this can be directly attributed to registration, even where registration has served to elevate the pubic perception of the standard of services on offer. • The costs associated with qualifications and experience There are costs associated with the qualifications and work experience which individuals must obtain for the purposes of registration. The advantages or benefits of the current Act that have been identified are as follows: most consumers who wish to access medical services are not easily able to judge the skill and competence of a medical practitioner before receiving treatment and a - 14 - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _R:.:;,:..;..,·::.it·.:.:."·.,, ()'-'ll.:.:./,,~.M=t'd=ical Practin' Act· Filial Rel/Ol"l • • • restriction on title is a means of providing a signal that a registered person meets at least a minimum level of competence;" character. qualifications and training requirements necessary for registration result in more fit to practise practitioners; reduced risk of harm to patients, their families and the community; greater use of appropriate health service providers by patients reducing the social costs of illness to both the community and the health system; monitoring of standards among the profession resulting in reduced injury; reduced transaction costs for patients in identifying registered medical practitioners and settling disputes with professionals. As noted above, these benefits could arise for the other options under consideration if they are effective in achieving the objectives of the Act. However, submissions attached a high degree of value to the title restriction, arguing it provides a simple and cost effective means of identifying practitioners, thus reducing risks of harm. Option 2 - Co - regulation Removal of registration of the profession would eliminate any impact on competition. However, this would reduce the amount of information available to consumers and increase the risk of harm and costs to consumers. Option 2 provides an alternative means of addressing the imbalance of information. The provision of information regarding qualifications could assist consumers in identifying practitioners with minimal competence to provide services. However. such a system would have disadvantages or costs, as outlined below: This system does not adequately address the risk of harm (or death) which is associated with the proviSion of medical services as there would be no restrictions on who may use the title "medical practitioner". Consumers may place unwarranted weight on the fact that a practitioner is a member of an accredited association. Accreditation may be of limited value for the purposes of assessing quality as government may not always be in the best position to adequately oversee the day to day operation of professional associations' A disciplinary system administered by professional associations may lack transparency, and the power to impose effective sanctions. • While there would be no cost associated with a registration board, costs would be incurred through the assessment of qualifications and the provision of information to consumers. If an active advertising campaign is undertaken to promote the system or provide information to consumers, it is likely that those costs would exceed substantially the administrative costs incurred under the current system. In the absence of an active advertising campaign, consumers would incur costs in contacting the information service to determine whether practitioners hold entry qualifications. • On balance, the risk of harm to patients and other transaction costs together with - 15 - R(.'\'il!w o(tht' Alec/ka! p,.m tin' l id - Final Rel'or1 administrative costs for Government would be higher under such a system. Realisation of the benefits of this system are highly dependent on the ability of the Government to provide information that can be easily understood by consumers. Consumers would also need to take an active role in seeking out such information to make it effective, otherwise substantial advertising and promotion costs would be incurred by Government. More importantly, such a system fails to acknowledge the risks to patients from 'qualified' practitioners that fail to maintain their skills overtime or engage in inappropriate conduct. The complaints history of the profession itself suggests a need for ongoing monitoring. While advice could be provided recommending consumers deal with members of certain professional associations, such an arrangement would have higher costs for government as such associations would need to be audited. Practitioners would also incur the costs of joining the recommended associations. Further, many associations have higher entry requirements than those under the current system thus increasing training costs and the level of restrictions on competition. The Health Care Complaints Commission could continue to receive complaints about practitioners under this option, its role being to investigate the complaints or refer them for conciliation or to a professional associations for action. On balance, therefore, the Department concludes that this option is unlikely to deliver substantial benefits to the community as occurs under option one. It is considered that this option would not meet the objective of the current legislation which is to minimise the potential risk of harm posed by unscrupulous, unqualified or substandard operators in the market for medical services. Option 3 - Voluntary certification by a government authority or statutory body This system would be broadly similar to the current system except there would be no restriction on title. The following points should be noted. • This system does not adequately address the risk of harm (or death) which is associated with the provision of medical services as there would be no restrictions on who may use the title "medical practitioner". Administrative costs would be marginally lower than under the current system because it would not be necessary to monitor a restriction on title. The potential exists for confusion among consumers. Consumers, may not understand the difference between certified and uncertified practitioners and as a result not be able to make informed decisions. To address this problem, an information campaign would be required to promote the benefits of dealing with an 'accredited medical practitioner' as opposed to a non-accredited provider. Given that those requiring medical services are likely to be in distress, it is questionable whether such a distinction, whether promoted or not would have any benefit. • • The Department is of the view that such a system would have an impact on competition comparable to option 1. However, it would not be effective in meeting the objectives of the current legislation. - 16 - Rl'\'ieH nrl/Ie! Medicul Praclile Act - Fillal Report Option 4 -Title and core practice restrictions This system is more restrictive that the current one as it would involve restrictions on who may provide certain services. Before turning to the advantages and disadvantages of this rnodel it is important to note the broader regulatory context in which medical practitioners operate. In particular, medical practitioners are conferred entitlements under the Health Insurance Act under which they can bill Medicare for professional services rendered and the Poisons and Therapeutic Goods legislation where the prescription of certain drugs for diagnostic or therapeutic use in humans is limited to registered medical practitioners and dentists. These measures alone limit the ability of unregistered practitioners to compete with medical practitioners in relation to a range of medical services. The advantages of a system in which the Medical Practice Act would be amended to prohibit unregistered persons from providing certain services would be as follows . Consumers and referring practitioners who require services which carry a significant risk of injury would be able to make informed decisions about treatment needs. • Non-registered practitioners would be able to compete with registered practitioners by providing services that do not carry significant risks but which nevertheless fall within the scope of the regulated profession. The disadvantages or costs of such a system would be as follows. • It provides a monopoly for the registered group in the practice of certain procedures. The experience with practice restrictions has been that greater activity has surrounded other registered groups entering into the restricted practice area than lay persons undertaking restricted practices. Practice restrictions are of limited effect in that they do not apply to instances of mernbers of the registered group who practice beyond their level of competence. The task of drafting workable definitions of prescribed practices which only registered medical practitioners may provide that do not unnecessarily overlap with the legitimate scope of practice of other professions is difficult. The enforcement of such restrictions which involves satisfying a court that a particular activity which is proscribed has occurred, can be onerous. Practice restrictions can have an adverse impact on competition by hindering innovation and improved techniques both within the registered group and by other professional groups with closely related areas of practice. This may result in increased costs because of a perception that they are able to provide a superior service when providing services that fall outside the scope of the practise restriction . • The costs associated with this option are comparable to the current system. • This option is unlikely to address the objectives of the legislation more than the current system but would lessen competition. Option 5 - Title and complete practice - 17 - Rl'dt!u' (II the Me'dietll Practice Act - Fillal RI.'{lo/'l This is the most restrictive form of regulation. This option fails to recognise that there is some overlap between the legitimate scope of practice of most professions. The immediate impact of such a system would be to confer a monopoly over an entire professional area and substantially reduce competition. The disadvantages of this option would be similar to those outlined in option 4 but be exacerbated. Recommendation 2 That medical practitioners continue to be registered by tille. - 18 - Rl'\'icw oFrhe Medical Practice Ael * Fillal / Act - Final Repor! Submissions in favour of a system of mandatory notification argue practitioners have an inherent responsibility to protect the public, there is potential for medical practitioners to harm their patients, and patients are frequently unable to assert their rights One submission quoted from a report of the Task Force on Sexual Abuse of Patients commissioned by the College of Physicians and Surgeons of Ontario: "Patients seek the help of doctors when they are vulnerable -when they are sick, when they are needy, when they are uncertain about their physical or emotional health. The physicians has the knowledge, the skills and the expertise the patient needs to heal. The patient often suspends both judgment and personal power idealising the doctor in order to feel secure."" " Submissions opposed to a system of mandatory notification have raised a number of practical issues . • Making notification mandatory would be counterproductive in that it would be unlikely to lead to a significantly increased rate of notification but would be likely to deter people from making notifications andlor lead to evasive behaviour on the part of practitioners at risk. Effective enforcement of such a requirement would be difficult. For example, it would be necessary to establish that a practitioner was aware of a fellow practitioner's lack of competence. There are other methods available for increasing notifications which would be more effective. Programs conducted by the Medical Board, professional associations and universities which educate practitioners about the complaint process and identifies those practices which are not acceptable would be of assistance in this regard. For example, it is understood that the British General Medical Council has released a publication titled "Good Medical Practice" which says it is every practitioner's duty to "protect patients when you (sic) believe that a doctor's or other colleague's health, conduct or performance is a threat to them ... the safety of patients must come first at all times." • • Whilst the Department does not support the introduction of mandatory notification of cases of lack of competence and sexual misconduct, primarily because of the difficulties in meaningfully enforcing such a prOVision, non-statutory approaches which encourage practitioners should be pursued by the Medical Board. Recommendation 12 That the Medical 'Board should review its strategies for encouraging practitioners to notify it when they obtain information which raises issues about a practitioner's competence or sexual misconduct. 8.2.7 Notification of criminal convictions and charges of a serious nature that relate to conduct occurring in the course of practice - 47 - Rerh:w (I( rlte Medic:al Pradicl!.1c:1 - Finul Rt!pu1}. The criminal justice system can provide information which is relevant to whether a person is fit to practise medicine. The Issues Paper canvassed whether a positive obligation should be placed on practitioners to notify the Medical Board in the event that they are: • • cOllvicted of a criminal offence (which includes recorded and unrecorded convictions); or charged with an offence of a serious nature that relates to conduct occurring in the course of practice. Criminal convictions Section 71 of the Medical Practice Act already requires courts to notify the Medical Board if they are convicted of an offence (with the exception of several minor offences which are prescribed in the Medical Practice Regulation 199B). It is proposed that practitioners be under a positive obligation to notify the Medical Board if they are convicted of an offence which is of a type notifiable by courts. The definition of an offence would include cases where an offence is proven but no conviction is recorded." Failure to comply would be a breach of the Act and as such would come within the definition of ·unsatisfactory professional conduct" and provide prima facie grounds for disciplinary action. It is important to emphasise that under section 15 of the Medical Practice Act registration may only be refused where a person has been convicted of an offence and the Board is of the opinion that the conviction renders the person unfit in the public interest to practise medicine. There is already a statutory obligation on Courts to notify convictions sustained by medical practitioners. The proposed system of "self-notification" will provide an additional means for obtaining relevant information in a timely manner. It will also emphasise to practitioners the potential seriousness with which criminal convictions should be regarded. The majority of submissions to the Issues Paper have been supportive of practitioners being required to "self report" recorded convictions to the Board. Recommendation 13 That the Medical Practice Act be amended to impose a positive obligation on praotitioners to notify the Medical Board if they are convicted of an offence (irrespective of whether it is recorded or not) unless it is an offence of a type that is not required to be reported to the Medical Board. (i) (Ii) Charges of a serious nature that relate to conduct occurring in the course of practice The Issues Paper canvassed whether a limited range of charges should be reportable to the Medical Board; that is. should charges of a serious nature which relate to - 48- Ret'iew (~ /"I" e Mf!dical Prut'lic(' Ael . Final Rcport conduct occurring in the course of practice be reportable? Why should such charges be reportable? "The circumstances may be relevant to the practitioner's ability to practise and they may impact on the 'good character' requirement for practitioners and thus an obligation to notify is central to the protection function of the Board."45 The Department has not proposed that the charges per se would constitute the basis for disciplinary action. Rather, the charge and the circumstances surrounding it can be relevant to a practitioner's overall ability to practise and to questions of character. On notification of a charge there would be several options open to it. In very serious cases the Board would be able to suspend the practitioner's registration or impose conditions on his or her registration for a limited time if satisfied that such action is necessary to "protect the life or the physical or mental health of any person,,'6 Other options available would be to consider whether the charge warrants the practitioner being dealt with under the impairment system or immediate referral to the Health Care Complaints Commission for investigation and prosecution or whether profeSSional disciplinary action should await the outcome of the criminal trial. The introduction of a system which requires practitioners to self report charges is not without precedent. Under the Health Services Act Visiting practitioners apPOinted by a public health organisation who have been charged or convicted of a serious sex or violence offence are already under a positive obligation to report that information to the chief executive officer of the organisation. The term "serious sex or violence offence" is defined to mean an offence involving sexual activity, acts of indecency, physical violence or the threat of physical violence that would be punishable by imprisonment 4 for 12 months or more. ' Approximately half of all submissions to the Issues paper addressed the issue of reporting charges. Of those, just over half were supportive of the proposal on the ground that a charge may disclose information relevant to the protective function of the Medical Board. Submissions that opposed the proposal have suggested that it would compromise the practitioner's defence in any criminal proceedings. The purpose of disciplinary proceedings is "to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession" ,. A criminal court is not concerned with issues of professional standards. Its task is to ascertain whether the prosecution is able to prove beyond a reasonable doubt that the accused is guilty of the particular charges that have been laid. The differing functions of disciplinary and criminal proceedings is a recurring theme in this paper. This was noted in the discussion of section 556As (ie where a person has been proven guilty but no conviction recorded) in 5.6 but is considered in greater depth in 8.2.10(iii) where the sequence of criminal and disciplinary proceedings is discussed. In view of the differing roles of the disciplinary and criminal justice systems, the fact that a person can be subjected to the two types of proceedings in relation to the same conduct does not constitute double jeopardy. In the interests of enabling the Medical Board to carry out its protective function, the Department is recommending that all medical practitioners should be obliged to inform - 49 - RI!\'iew ,,(rhe Medical Praclin! :fct - Filial Rl'PO/'l the Medical Board if they are charged with a "serious sex or violence offence" where the allegations relate to conduct occurring in the course of practice. A "serious sex or violence offence" means an offence involving sexual activity, acts of indecency, physical violence or the threat of physical violence that would be punishable by imprisonment for 12 months or more. RecommendatIon 14 That the Medical Practice Act be amended to oblige a medical practitioner to notify the Medical Board within seven days if charged with a ·serious sex or violence offence" where the allegations relate to conduct occurring in the course of practice. A "serious sex or violence offence" means an offence involving sexual activity. acts of Indecency. physical violence or the threat of physical violence that would be punishable by imprisonment for 12 months or more. ----~ 8.2.8 Information to be provided on renewal , The Issues Paper canvassed whether the process for renewing registration should be more rigorous. Currently the Act requires applications to be accompanied by a fee. Should additional information be provided to the Medical Board to enable it to assess whether the practitioner continues to be competent to practise medicine and be of good character. Clearly the Medical Board can only take action to protect the public on information received. Relevant information may come from a range of sources and is not limited to complaints. The Department supports a more comprehensive process for renewing registration to enable the Board to be able to adequately assess whether a registered practitioner continues to be competent to practise medicine and of good character and therefore render renewal of registration a meaningful process, particularly for the public. Accordingly, the registration renewal form should include declarations on the following: • • • • criminal convictions (recorded and unrecorded); charges for serious sex or violence offences where the allegations relate to conduct occurring in the course of practice; significant illness for the purpose of identifying whether there may be issues of impairment; and continuing medical education activities 49 - 50- R,'\';ew olthe Medical Prat tin' Act - Filial Repol'/ Recommendation 15 That the Medical Practice Act be amended to require applicants for registration to make declarations on: • criminal convictions (recorded and unrecorded): • charges for serious sex or violence offences where the allegations relate to conduct occurring in the course of practice; • significant illness for the purpose of identifying whether there may be issues of impairment; and • continuing medical education activities. 8.2.9 Composition of Professional Standards Committees and the Medical Tribunal The Medical Practice Act contains a three tier disciplinary system involving the Medical Board. Professional Standards Committees and the Medical Tribunal. An effective disciplinary system plays a central role in securing the underlying objective of the Medical Practice Act which is to protect the public from incompetent and unethical practitioners. For the system to be effective it must be independent, transparent, accountable to the public and fair to all parties. A number of specific issues pertaining to the composition of Professional Standards Committees and the Medical Tribunal were canvassed in the Issues Paper. That is: (i) (ii) (iii) the establishment of a panel of lay persons to sit on Professional Standards Committees and the Medical Tribunal who are appointed by the Minister; chairpersons of Professional Standards Committees; and whether Board members should b permitted to sit on Professional Standards Committees and the Medical Tribunal. Lay persons on Professional Standards Committees and the Medical Tribunal A number of submissions have been complimentary of the contribution that lay persons make on these bodies . Specific issues raised in submissions include: • There should be a transparent process for the selection and appointment of the lay members in accordance with published guidelines. The Minister should seek nominations for selection from a range of stake holders.50 The proposal for the establishment of a panel of lay persons who are appointed by the Minister for three year terms would enable the suitability and availability of members to be reviewed on a regular basis and provide the opportunity for new lay persons to be appointed. The Health Care Complaints Commission has suggested that the terminology "lay persons" should be replaced with "public persons" in order to "better reflect the representational role of these members on behalf of the community. .. ,,51 The Medical Practice Act currently provides that a lay person for the purposes of - 51 - (i) • RC!vielV {Jn lte Medical Practice Ad - Filial Rel'or: Professional Standards Committees and the Medical Tribunal is a person other than a medical practitioner who is appointed from a panel nominated by the Minister. The Department does not support any narrowing of the range of persons who meet the definition of "lay person". Further, the role of lay persons is not one of direct representation of the community, but rather to provide a perspective as a member that is other than part of the medical profession. (ii) Board membership on Professional Standards Committees and the Medical Tribunal Submissions on the issue of whether Medical Board members should be precluded from sitting on Professional Standards Committees and the Medical Tribunal are divided. Some submissions have gone further to argue that all members of Professional Standards Committees and the Medical Tribunal should be drawn from a panel which has been approved by a third party like the Minister for Health. For a disciplinary system to be effective it must be independent and its processes transparent. It is against these criteria that the proposal must be assessed. A number of arguments have been made in support of the continued involvement of Board members in Professional Standards Committee and Medical Tribunal hearings. • The two disciplinary bodies are quite independent of the Medical Board. Only members of the relevant Committee are aware of individual cases and they are precluded from sitting on Professional Standards Committees. The Board believes that it is important for it to maintain a degree of contact and familiarity with the proceedings of Professional Standards Committees and the Medical Tribunal so that it has a direct feedback mechanism and can identify trends and issues. • A number of submissions have put forward a contrary view that Professional Standards Committees and the Medical Tribunal would be seen by the profession to be more impartial if members of the Medical Board were precluded from sitting on them and membership was drawn from a panel nominated by the Minister for Health. It can also be argued that Board membership of disciplinary bodies is by no means the only way in which the former can monitor trends and issues pertaining to the latter. This could be done in range of ways both formal and informal. (iii) Chairpersons of Professional Standards Committees The Issues Paper also sought comments on whether chairpersons of Professional Standards Committees should have any particular qualifications and/or experience. Professional Standards Committees are intended to be relatively informal peer review panels. To date while most Professional Standards Committees are chaired by one of the medical members lay members, with skills at chairing meetings or inquiries have been used . Professional Standards Committees should be conducted in a fair and efficient manner. In those cases involving difficult procedural issues it is particularly important for the Chairperson to have some awareness of the requirements of natural justice. - 52- R"t'iew l.!(the Medical Practice! Act - Filial Rl'/)I)1"f Accordingly, the Department is of the view that the most appropriate member of the Committee should be picked to be the Chairperson irrespective of whether they have any particular qualifications or experience. The Department also supports a proposal put forward in one of the submissions for members of Professional Standards Committees and the Medical Tribunal to receive training in procedural faimess and the administration of inquiries 52 Recommendation 16 That the Medical Practice Act be amended to provide that members of Professional Standards Committees and the Medical Tribunal should be drawn from a panel of persons appointed by the Minister for Health. That the Medical Board arrange training in procedural fairness and the administration of inquiries for members of Professional Standards Committees and the Medical Tribunal. 8.2.10 Conduct of proceedings before Professional Standards Committees and the Medical Tribunal As has already been stated the objective of the Medical Practice Act is to protect the public from incompetent and unethical practitioners. The disciplinary system should underpin the public protection function. For disciplinary proceedings to be effective they must be conducted in a manner which is independent, transparent and fair to all parties. The Issues Paper canvassed a number of specific matters on the conduct of disciplinary proceedings which were raised with the Department. (i) Legal representation before Professional Standards Committees Under the Medical Practice Act legal representation is permitted before the Medical Tribunal but not before hearings of Professional Standards Committees. The rationale given for this provision in the Second Reading Speech for the Medical Practice Bill was to "ensure that the hearings retain their informal character . Several submissions argued that legal representation should be permitted in view of the range of sanctions which a Professional Standards Committee may invoke (e.g. a fine of up to $5,500, ordering that a practitioner complete further education) and that the practitioner is at a disadvantage because the Health Care Complaints Commission's hearing officer is often an experienced advocate. Many more submissions supported the contrary view that legal representation before Professional Standards Committees would be detrimental to the overall process. The following reasons were cited. • Professional standards committee hearings would look less like inquiries by the practitioner's peers but become adversarial and legalistic. Hearings would need to be chaired by a legally qualified person. The aim of having a relatively informal hearing into professional issues could be undermined by resort to legal - 53- argument and the whole purpose of the two-tier structure would be defeated as more and more cases would have to be referred to the Medical Tribunal. • Practitioners appearing before Professional Standards Committees would incur legal expenses. The proceedings would be lengthier and there would be delays in the hearing of matters. There are appeal rights to the Medical Tribunal where legal representation is permitted. Hearings of Professional Standards Committees follow the inquisitorial system where Committee members are responsible for questioning witnesses. As a result the hearings officers of the Health Care Complaints Commission do not adopt the traditional prosecutorial role. The Health Care Complaints Commission in its submission quoted from a letter from the President of the Medical Board, Professor John Horvath which advised that the employment of hearing officers had • • • "been a singular success ... advantageous to all concerned with the Professional Standards Committee processes, as the level of professionalism has enabled the Committees to get on with the substance of the inquiry, rather than being distracted by procedural and technical issues which had been more common with less experienced presenters ... On balance, the Department supports the continued prohibition on legal representation before Professional Standards Committees. One submission was received which advocated representation at the Professional Standards Committee level by a person other than a legal practitioner 53 Under section 177 of the Medical Practice Act a Committee may grant leave for an advisor (other than a legal practitioner) to address the Committee or appear at the inquiry. The Committee must ensure that the practitioner is afforded procedural fairness. In view of this requirement, the likelihood of "representation" as of right resulting in inquiries becoming more adversarial and the existence of a right of appeal to the Medical Tribunal, the Department does not support practitioners being entitled to representation by an advisor before Professional Standards Committee hearings. (ii) Standard of proof Several submissions were received in support of the adoption of the criminal standard of proof in disciplinary proceedings. Currently the disciplinary body must satisfy itself on the balance of probabilities that the practitioner committed the conduct in question. The standard is not a static one. Rather, the more serious the charge the higher the degree to which the disciplinary body must satisfy itself that the subject matter of the complaint is proved. For example, in disciplinary cases where a practitioner's livelihood is in jeopardy a high standard of proof is applied. In criminal proceedings the - 54- R,'\'iew oflhe Medical Practice Act - Final Reporl guilt of an accused person must be proved beyond a reasonable doubt. Submissions have emphasised that this proposal cannot be assessed without giving due consideration to the purpose behind the two types of proceedings. • Criminal proceedings are inherently punitive in nature and involve the State seeking to remove fundamental liberties and rights of one of its citizens. Proof beyond reasonable doubt is required in such proceedings because of the paramount importance which the law places upon ensuring that innocent persons are not convicted and punished." A criminal court is not concerned with issues like competence. Its task is to ascertain whether the prosecution is able to prove beyond a reasonable doubt that the accused is guilty of the particular charges that have been laid. The purpose of disciplinary proceedings is "to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the public". 55 To require a degree of certainty indispensable to a criminal conviction in professional disciplinary cases would clearly entail placing the privileges enjoyed by the medical profession above the protection of the public from incompetent and unethical practitioner. 56 • • • The Department is of the view that the adoption of the criminal standard of proof (ie beyond a reasonable doubt) would be inconsistent with the objective of the Medical Practice Act which is the protection of the public and accordingly it is not supported. (iii) Sequence of disciplinary and criminal proceedings A course of conduct may give rise to both disciplinary and criminal proceedings. Section 56 of the Medical Practice Act provides that current civil or criminal proceedings relating to the subject matter of the complaint do not prevent disciplinary proceedings from being pursued It has been suggested that in such cases disciplinary proceedings should not take place until criminal proceedings have been finalised. Submissions advocating changes to section 56 of the current Act have made the following points. • Criminal and disciplinary proceedings are markedly different in nature with different standards of proof. The protection of the public from incompetent or unethical practitioners requires that disciplinary hearings not be delayed for the conduct of any other proceedings. Section 56 merely provides a discretion to the Professional Standards Committee or the Medical Tribunal to continue with an inquiry when there are civil or criminal proceedings on the same subject matter pending. In Edelsten v Richmond 57 the Court said: • "The discretion given to the tribunal involves balancing the public interest - 55- in the obselVance of the right to silence ... " • Professional Standards Committees and the Medical Tribunal are best placed to determine in any particular case whether the public interest requires the complaint be heard prior to the conclusion of related proceedings. 56 Another case cited in a submission 59 is Ibrahim v Walton 60 where the Court said: • "... in relation to complaints against a medical practitioner, there are matters other than his interest or the public interest in the right to silence to be considered, and those include the interest of the public in the proper performance by medical practitioners of the undoubted privileges and powers which they have in relation to their patients; and in the protection of members of the public who are patients from any abuse of those powers or privileges. In some cases it is obvious that the public interest in protecting patients should be given priority to that of the person complained about who is also subject to the criminal proceedings. " Several submissions have argued that the following sequence of hearings must be adhered to: criminal hearing, disciplinary hearing and then the civil hearing. The rationale given is that a practitioner's criminal trial will be prejudiced if he or she has to outline his or her defence in a disciplinary body prior to the criminal action 61 The discretion held by Professional Standards Committees and the Medical Tribunal to conduct inquiries notwithstanding that criminal or civil proceedings relating to the same subject matter are on foot is not unfettered but involves the balancing of the public interest in protecting patients and the public interest in the observance of the right to silence. The Department does not support the erosion of this discretion. (iv) Admission of evidence Nether a Professional Standards Committee nor the Medical Tribunal are bound to observe the rules of law governing the admission of evidence. Each may inform itself of any matter in such a manner as it sees fit. The Issues Paper canvassed whether the current rules for conducting Medical Tribunal hearings are unfair. Submissions were invited to cited specific examples of unfairness. Persons who come before the Medical Tribunal are entitled to a fair hearing. Subrnissions that argued the current system is fair have rnade the following points: • • • evidence can only be admitted in proceedings before the Tribunal if it is "rationally probative" of a fact in issue in the proceedings;62 the Chairperson of the Tribunal is a District Court Judge who is well placed to ensure that Tribunal proceedings are conducted in a fair manner; in practice, the substantive rules of evidence governing the admission of evidence are generally followed by the Tribunal but technical legal requirements relating to form and the like may be dispensed with; any suggestion that "hearsay evidence may be given inappropriate weight is unsustainable. The primary circumstance where hearsay evidence is admitted - 56- Review o(Jhr.: Medical Practice AC Filial R C I'IIOJ"! • in proceedings before the Medical Tribunal is where a patient makes contemporaneous complaints to relatives andlor friends concerning the conduct of a practitioner, most usually following a physical examination by the practitioner. Such evidence of recent complaint is of course admissible in any legal proceedings where the rules of evidence are strictly applied as one of the well established exceptions to the hearsay rule";63 and other quasi-judicial bodies such as the Administrative Appeals Tribunal which has only recently been established is not bound by the rules of evidence. Submissions which favour reform in this area have not addressed specific examples of unfairness. On balance, after giving due regard to the protective nature of the jurisdiction, the Department does not support any amendments being made to the way in which proceedings before Professional Standards Committees and the Medical Tribunal are conducted . 8.2.11 Disciplinary sanctions The Medical Practice Act contains a broad range of sanctions which should facilitate the achievement of the Act's underlying objectives. (i) Imposition of conditions on registration which adversely affect a third party Both Professional Standards Committees and the Medical Tribunal have the power to impose conditions on a practitioner's registration. For example, a condition could be imposed that a practitioner may only treat children in the presence of a chaperone. "Overly restrictive or impractical restrictions can greatly disrupt the efficient and effective functioning of a hospital and therefore pose a threat to patient care."64 The Department is aware of a number of instances of conditions being imposed where the public hospital concerned or the Department, in the case of conditions imposed on the public health system generally, has not been notified of the decision or given an opportunity to appear before the Committee or Tribunal to provide advice as to the practicality of conditions proposed. The Issues Paper sought submissions on the role of third parties on whom a burden is imposed through the imposition of conditions on registration. Although third parties cannot be compelled to comply with orders by these disciplinary bodies, for the most part public sector bodies do make great efforts to facilitate their implementation notwithstanding issues of cost or impracticality. The Board's view is that "if conditions cannot feasibly be met by a hospital, then the doctor is unable to practise medicine safely, and is effectively unemployable .',65 The Department acknowledges that it is the responsibility of Professional Standards Committees and the Medical Tribunal to make orders or impose conditions which - 57- ReI'iL'U' rJr the Medical Practice Act - Filial Ref/or! are consistent with the protective charter of the Medical Practice Act. However, as noted the conditions that a disciplinary body is proposing to make may be impractical to implement and/or impose an appreciable cost burden on a third party. In these circumstances, to ensure that the disciplinary body is fully informed, prior to making a decision, any third parties that may be placed under an appreciable burden by proposed orders should be given an opportunity to be heard by the disciplinary body. Ultimately it must remain a matter for the third party as to whether they are able to facilitate implementation of an order. In the case of a proposed order relating to the public health system generally, (eg that the registrant only work in the public system) the Director-General of the Department should be notified as the relevant third party. Recommendation 17 That the Medical Practice Act be amended to provide \hat: • if a Professional Standards Committee orthe Medical Tribunal is proposing to make an order which will place an appreciable burden on a third party, prior to making the order the third party Will be given an opportunity to be heard on the proposed order; and • a third party which is placed under an appreciable burden by a decision of a Professional Standards Committee or the Medical Tribunal will be provided with a copy of the decision within seven days of it being made. it will remain a matter for the third party as to whether it is able to implement the order. (Ii) Counselling "Counselling" is a term which is used in different parts of the Act. In addition to it being an outcome of an impairment process and an order made by a Professional Standards Committee and a Medical Tribunal, the Board has the power in respect of a complaint it has received to direct the practitioner to attend counselling. A practitioner who fails to attend counselling without reasonable cause is taken to lack physical and mental capacity to practise medicine. Most submissions have been positive of the role that counselling has played since its introduction. The Department does not consider any amendments to the provision are warranted but would encourage the Medical Board to play an active role in assisting parties to a complaint to understand the process. (iii) Emergency powers of the Medical Board The Medical Board has powers to suspend and impose conditions on registration where it is satisfied that such action is necessary for the purpose of protecting the life or the physical or mental health of any person. Since the introduction of these powers hearings have been held on approximately ten occasions to deal with an urgent matter that could not await the finalisation of an investigation and eventual hearing by a Professional Standards Committee or Medical Tribunal. The Medical Practice Act does not provide any guidance on the conduct of - 56 - Rl'riew o(tlll' Medic'al PI'tJcti('l' Act· Final Report proceedings for the exercise of emergency powers. Other problems with these powers which were identified in the Issues Paper include: • • • • the timing of the various actions; the failure to include reference to an Impaired Registrants Panel as an outcome; the interaction with time frames under the Health Care Complaints Act; and the lack of a mechanism to review conditions pending a hearing. An overwhelming numbers of submissions that addressed this issue supported the retention of the emergency powers and their review to overcome some of the problems that were identified in the Issues Paper. .. The AMA also acknowledges that there are strong public policy reasons for the Board having the power to take urgent action for the protection of the public in appropriate cases and agrees that the four dot points included under paragraph 8.9.4 fie the issues identified above] detailing some of the problems should be addressed". '" The Department supports the retention of the emergency powers on the ground that they are an important tool for protecting the public in cases where immediate action is warranted. However, the Department supports the powers being reviewed to address the shortcomings that have been identified with the current provisions. Recommendation 18 That in the interests of protecting the public, the emergency powers under the Medical Practice Act should be retained but reviewed to address: • the timing of the various actions; • the failure to include reference to an Impaired Registrants Panel as an outcome; • the interaction with time frames under the Health Care Complaints Act: and • the lack of a mechanism to review conditions pending a hearing. 8.2.12 Appeals Decisions of the Medical Board and Professional Standards Committees can be appealed to the Medical Tribunal and are dealt with by way of a rehearing with fresh evidence. The Medical Tribunal is a quasi-judicial body which is chaired by a senior judicial officer. Appeals from decisions of the Medical Tribunal are made to the Supreme Court and are limited to decisions on points of law. The Issues Paper canvassed several proposals for reform in this area. (I) Scope of Supreme Court appeals It has been suggested that appeals from decisions of the Medical Tribunal to the Supreme Court should be by way of rehearing. The Medical Tribunal consists of one Judge of the District Court. two registered medical practitioners and one lay person. - 59- Rl'\ 'j('U' o( the Medical Practict' Act· Final RI!/JO I'! Submissions that have argued there should be no extension to the current provisions in relation to the jurisdiction of the Supreme Court have put forward the following reasons; • the reason for the constitution of an expert body like the Medical Tribunal is so that it can bring its own expert resources to the determination of often complex factual issues pertaining to medical science;67 the Medical Tribunal is an expert tribunal with a legal chairperson; the argument that the systems under the Legal Profession Act (where appeals to the Supreme Court are by way of a rehearing) and the Medical Practice Act are analogous fails to acknowledge that the Legal Profession Act deals with issues concerning the conduct of members of the legal profession who have specific duties towards the Court and that the Supreme Court functions in a sense as an expert Tribunal in these matters; and any extension to the scope of the Supreme Court's jurisdiction could result in delays in the hearing of matters and, as once heard, the matters would be lengthier and the legal costs greater. • • • Submissions in favour of extending the jurisdiction have made the following points. "Full confidence can only be achieved if there are full appeal rights from hearings before the Medical Tribunal to the Court of Appeal ... Appeal rights on questions of fact are a safeguard against incorrect decisions and strengthen any system of justice: 68 On balance, the Department does not support any of the proposals canvassed on the grounds that the Department does not consider the scope of the current appeal rights to be unfair and that the proposals would increase costs and delays (ii) Standing of persons who can appeal against a decision of a Professional Standards Committee Appeals against decisions of a Professional Standards Committee can be made by a registered practitioner about whom a complaint has been referred to a Committee or the complainant. The term "complainant" has been interpreted by the courts to mean the person whose complaint was the subject of the Professional Standards Committee inquiry and not the original complainant to the Medical Board or the Health Care Complaints Commission. The Issues Paper canvassed whether the original complainant who provided the information which formed the basis for disciplinary proceedings should have a right of appeal. The Health Care Cornplaints Comrnission is responsible for both the investigation and prosecution of complaints before disCiplinary bodies. Public protection is facilitated by the interlinking of the Health Care Complaints and Medical Practice Acts under which there are formal consultative processes. It is understood that the Health Care Complaints Commission has a review committee to examine concerns of original complainants who are unhappy with the outcome of investigations and that the Medical Board frequently reviews matters to ensure that the initial action taken has been appropriate. - 60 - Re\'iew oj'the Medical Practice! Ad - Filial Reporl Submissions overwhelmingly opposed original complainants having rights of appeal against decisions of Professional Standards Committees. Allowing original complainants to occupy such a role would be contrary to the statutory functions of the Health Care Complaints Commission. Section BO(1)(c) of the Health Care Complaints Act states that the Commission's function is: "to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including registration authorities, professional standards committees and tribunals". The Department does not support any amendments being made to the Medical Practice Act to permit original complainants to appeal against decisions of Professional Standards Committees. (iii) Appeals against determinations of the Chairperson of the Medical Tribunal Currently, under section 63 a person in respect of whom the Chairperson of the Medical Tribunal has made a determination that he or she does not have sufficient physical or mental capacity to practise medicine does not have a right of appeal to the Supreme Court. This is out of step with analogous cases (ie a person about whom a complaint has been referred to the Tribunal) where a right of appeal to the Supreme Court does exist against a decision of the Tribunal on a point of law or the exercise of a power under Part 4 of Division 4. Nearly all submissions have been supportive of an appeal right to the Supreme Court being introduced in circumstances where a decision has been made under section 63(3). Recommendation 19 That section 63 of the Medical Practice Act be amended to confer a right of appeal to the Supreme Court. (iv) Scope of review applications Under section 92 a person may apply for review of orders of a Professional Standards Committee, the Chairperson or a Deputy Chairperson of the Medical Tribunal, the Medical Tribunal or the Supreme Court. The review body is the Medical Tribunal unless the order being reviewed requires that it be reviewed by the Medical Board. As a result of several court cases it is now possible for applicants to revisit the original findings which resulted in deregistration. This could potentially involve a rehearing and may prolong the length and increase the costs of inquiries. It has been suggested that there may be scope for seeking to define these limits so as to minimise misconceived attempts to broaden review applications to generalised inquiries into the original complaint which led to the deregistration or imposition of - 61 - Rt'l'if!W oftilf! M('diwl PraC'lict' Act - Final Re{Jori conditions . Prior to the introduction of the concept of "review" in 1987, under the former Medical Practitioners Act 1938 a practitioner whose name was removed from the register could apply to the disciplinary tribunal to be registered, after the expiry of any time which had been fixed preventing a re-application. In such applications the disciplinary tribunal followed the principles expressed by the Court of Appeal in dealing with applications for restoration by legal practitioners, namely that the findings of the initial Tribunal had to be accepted and that an applicant should not seek to go behind those findings nor seek to discredit them. 69 Accordingly, it can be argued that the introduction of the term "review" was not intended to permit for the first time challenges to earlier findings of the Tribunal but to permit a later Tribunal to change or lift orders if changed circumstances warranted such a course. This would appear to be at odds with the result of the Rohatgi 70 decision where the Court of Appeal determined that the word "review" had a wide meaning capable of permitting challenges to findings made by earlier Tribunals. One submission has identified several practical problems with the Rohatgi interpretation. • In circumstances where a review body considers on evidence placed before it that a former practitioner was not guilty of professional misconduct, the review body would be powerless to set aside or quash a finding of professional misconduct. The powers of a review body which are set out in section 94 would only permit an order to be made for reinstatement. If as a result of the review an error was shown in the original Tribunal's judgment the public interest would require that the complaints be re-heard. However, the review Tribunal has no such power.71 • Although the Department supports limits being imposed on the scope of review proceedings under section 92 it is acknowledged that such limits may in exceptional circumstances cause injustice. For example, re-consideration of initial findings may be warranted where a crucial witness has retracted his or her evidence. The Department recommends that the scope of review applications (under section 92) be narrowed to preclude a person from challenging findings made by earlier Tribunals and to confer a right of appeal to the Supreme Court in circumstances where a substantial miscarriage of justice would arise from the discovery of fresh evidence. Recommendation 20 That the Medical Practice Act be amended to narrow the scope of review applications to preclude a person from challenging findings made by earlier Tribunals and to confer a right of appeal to the Supreme Court in circumstances where a substantial miscarriage of justice would arise from the discovery of fresh evidence. - 62 - Rl"view i!f"the Medical Practice ACI· Final Report 8.3 Removal from the register The Medical Board is currently required to remove the name of a practitioner at his or her own request. This can present difficulties under mutual recognition as the register will show that the practitioner's name was removed at his or her own request notwithstanding that disciplinary action has been taken. A number of submissions have been received which support limits being imposed on the power of a practitioner to compel the Medical Board to remove his or her name from the register in circumstances where health or disciplinary proceedings have been contemplated or are in progress. This would ensure that in the case of mutual recognition applicants the information upon which those applications are assessed is more accurate. The Medical Practice Act already provides that a complaint about a registered medical practitioner may be made and dealt with even though the practitioner has ceased to be registered. Several submissions have argued that the proposal would impose continuing financial, legal and ethical obligations on a practitioner for no benefit to the public. On balance, the Department does not support the introduction of measures which would fetter a person's right to have his or her name removed from the register. ·63 - Rcdl'W ,,(the Medrcul Practice A('t - Filial Re"ort 9. 9.1 IMPAIRMENT Introduction The Medical Practice Act contains a non-disciplinary system for managing impaired practitioners and medical students. The definition of impairment makes it quite clear that a condition will render a person impaired in circumstances where it detrimentally affects or is likely to detrimentally affect the person's physical or mental capacity to practise medicine. In certain circumstances the impairment process enables the Medical Board to take action before the practitioner/student's condition puts the public at risk. Specific benefits of the system which have been identified include: • the non-punitive nature of the system encourages practitioners to self report or report others before patients are injured; and benefits for patients because they have an assurance that practitioners have sufficient physical and mental capacity to practise medicine. One submission raised concerns about the application of the impairment process to persons with physical disabilities and in particular those with permanent non-progressive physical disabilities. The tremendous range of conditions which affect, or have the potential to detrimentally affect, a person's physical or mental capacity to practise medicine and the requirements of medical practice demand that the Medical Board have a broad discretion in this area in the interests of public health and safety The Issues Paper canvassed a number of proposals for improving the impairment process. 9.2 Mandatory reporting of impairment Should medical practitioners and health institutions be compelled to report practitioners and students who are suspected of being impaired? Submissions in favour of mandatory reporting of impairment have argued that it is essential for the adequate and effective protection of the public. Numerous submissions have argued that reporting should not be mandatory. The following reasons have been cited. • To date the impairment program has been approached in a co-operative manner. There is a concern that this approach which has facilitated the making of notifications would be jeopardised if mandatory notification was introduced. The introduction of a system of mandatory notification may not result in an increased number of notifications as impaired practitioners may be more likely to cover up their condition and not self report. To date a significant number of impaired practitioners with insight into their problems have of their own accord informed the Board of their impairment. Effective enforcement of mandatory notification may be difficult as it would be necessary to establish that the practitioner was aware that his or her colleague was - 64- • • Review oj the Medical Pradice Act - Filial Uceon impaired. • Non-statutory approaches which publicise the impairment program and encourage practitioners to make notifications may be more effective. It is noted with interest that a recent Victorian study on practitioners impaired by opioid abuse found that community pharmacists were the primary source of notifications, followed by inspections of pharmacy records by Departmental officers. 72 On balance, the Department does not support the introduction of a statutory obligation which compels medical practitioners and health institutions to report practitioners and students who are impaired. The Department does however support the Medical Board's activities in this area to publicise the impairment program. 9.3 Impaired practitioner initiated requests for variation or removal of conditions on registration Currently, the Medical Practice Act provides that a practitioner who has been suspended or had a condition imposed on his or her registration as a result of the impairment process is entitled to have the protective measures lifted at his or her request. It has been suggested that a request for removal or variations of conditions be referred to the Impaired Registrants Panel for a recommendation which would be provided to the Medical Board for a determination. Not all practitioners who are put through the impairment program have insight into their impairment. The current requirement that protective measures be lifted at the practitioner's request raises serious issues of concern in these cases. Many submissions have supported the introduction of a system which gives the practitioner the opportunity to present arguments as to why there should be a variation of conditions, with proper consideration being given to that request. on the ground that it will help to protect the public. To do otherwise, it has been said may put the public at risk by impaired practitioners returning to practice without restrictions .73 The Department supports the proposed system with the proviso that it should be accompanied by a right of appeal to the Medical Tribunal Recommendation 21 That the Medical Practice Act be amended to provide that a practitioner who has agreed to have conditions imposed on his or her registration may only have them lifted with the agreement of the Medical Board which will receive a recommendalion from an Impaired Registrants Panel, and with an accompanying right of appeal from the Medical Board's decision to the Medical Tribunal. 9.4 Power to direct medical examinations The Medical Practice Act currently contains no power to direct a practitioner to undergo a - 65 - Review 01 rhe ""kdical Practin' Act - Final Neporl medical examination unless a complaint has been lodged under Part 4 (ie disciplinary proceedings). The Medical Board has the power to direct a medical student who is the subject of a matter referred or proposed to be referred to an Impaired Registrants Panel to undergo a medical examination. The Issues Paper canvassed whether the Medical Board should have a parallel power to compel medical practitioners to undergo medical examinations. Numerous submissions supported the Medical Board having a parallel power to direct that a medical practitioner undergo a medical examination. The same issues of public protection it is argued arise irrespective of whether a person is a medical student or a medical practitioner. The Department supports the Medical Board having the power to direct a medical practitioner to undergo a medical examination in circumstances where a practitioner has been or is proposed to be referred to an Impaired Registrants Panel. This is subject to the condition that a practitioner must not be directed to undergo a medical examination unless it is reasonable to require the examination given the nature of the notification, Failure to attend a medical examination without reasonable cause should constitute lack of sufficient physical and mental capacity to practise medicine. These amendments will give the Medical Board uniform powers to act irrespective of whether a complaint or notification has been received. The Issues Paper also canvassed whether a broader power to direct a medical practitioner to undergo a medical examination should be included in circumstances where it might be helpful to determine if a complaint should be made or whether the practitioner should be referred to an Impaired Registrants Panel. The need for such an extensive power has not been supported by any evidence to the review. The Department considers that the existing power to direct a practitioner to undergo a medical examination where a complaint has been lodged and the proposed amendments in relation to practitioners about whom there are impairment concerns will be adequate, Recommendation 22 That the Medical Practice Act be amended to give the Medical Board the power to direct a medical practitioner who is the subject of a matter referred or proposed to be referred to an Impaired Registrants Panel to undergo a medical examination. 9.5 Disclosure of conditions by impaired practitioners The Issues Paper considered the question of whether practitioners should be compelled to disclose conditions that have been imposed on them as part of the impairment process. It is understood that notification of the practitioner's employer is a common outcome of the impairment process. The Medical Board takes the view that it should be responsible for informing employers of any conditions imposed. It is understood that orders are generally made in such a way that they encompass whoever the employer may be. For example, the doctor may only work in a position approved by the Board and that the employer shall be provided with a copy of the orders, - 66- Rt·\,it'w of Ihe 1 \.lt'dicaf Practice.' ;leI - Final Jkpor/ Many submissions have argued that in the interests of enabling employers to playa role in ensuring that the practitioner is providing safe and appropriate care, the employer should be informed of any conditions that have been imposed "It is essential that impaired practitioners who have agreed to conditions being imposed on their registration disclose such conditions to their employer so that their employer can adequately assess their skills and competence and place them in an appropriate role." Submissions have not focused on who should be responsible for informing an employer - the Medical Board or the practitioner. The Department considers that the Medical Board should continue to be primarily responsible for informing a practitioner's employer where impairment related conditions have been imposed. - 67- RI.!\,;ew o(the Medin r/ Practice Act - Final Reporf 10. CORPORATIONS ENGAGED IN THE PROVISION OF MEDICAL SERVICES An issue which emerged from consultation on the Issues Paper was that unlike medical practitioners who are subject to a complex web of obligations, the Medical Practice Act does not regulate corporations providing medical services.74 Corporate medicine has become increasingly widespread with practitioners in private practice no longer confined to operating as sole practitioners or in partnership. There has been a proliferation of medical centres and specialised clinics where medical practitioners are retained as employees. The "Report of the Ministerial Committee of Inquiry into Impotency Treatment Services in N.S.W." raised serious issues of concern about a number of clinic practices and their potential to be contrary to the interests of patients. Some of the practices identified include: short and ineffective consultation with treatment by injections and minimal after-care t, patients; potential for abuse of patients with significant psychological vulnerability due to ~h,: ? targeting of the condition through widespread advertising; . high costs for patients (eg clinics charging over ten times tne eSlImated wholesale costs for injections and for syringes) and large financial gains for practitioners (eg medical practitioners being paid a fixed per centage of their gross takings which were made up of the sales of medication and Medicare charges); the manner of oreparation and the contents of each dosage rrlay not,.be disclosea to patients and,may be inappropriately labelled; and practitioners ~mlnimal specialist experience or training in the area of treatment. • • • • As was noted in 8.2.2 there may be circumstances where an employer places pressure on a medical practitioner to provide medical services that are excessive, unnecessary or not reasonably required for a person's well being or such that patient care may be compromised. Specifically, a practitioner's continued employment or remuneration may be contingent on the practitioner following particular prescribing or treatment patterns. Clearly, employers that are not medical practitioners are outside the scope of the disciplinary system which is only concerned with the conduct of medical practitioners. It can be argued that it is inequitable for an employer who influenced or attempted to influence a practitioner to engage in the offensive conduct to be beyond the reach of the law. In New South Wales private hospitals and day procedure centres are required to be licensed. An applicant for a day procedure centre must satisfy a number of criteria including that he or she is a fit and proper person. Recommendation 23 That the Department undertake further consultation on whether legislative amendment is required to adequately address improper or unethical practices by corporations engaged in providing medical services and, if so, the form of such legislation. - 68- Rl!l'iew u/ the: Medical Practice Ae/· Findl RepO!'t - 69- Rt'\'h'lI' oFthe Medical Prm'(h'e At'( . Filial Rtport 11. 11.1 REGULATION OF CONDUCT AND MARKET INFORMATION Advertising The current Act contains a regulation making power over advertising. The restrictions on advertising in the Medical Practice Regulation 1998 are closely modelled on consumer protection legislation (ie the Trade Practices and Fair Trading Acts). The Regulation prohibits the advertisement of medical services which : "(a) (b) (c) is false misleading or deceptive, or creates an unjustified expectation of beneficial treatment, or promotes the unnecessary or inappropriate use of medical services." The prohibition applies to both corporations providing medical services and to individuals. Corporations advertising medical services are required to nominate a medical practitioner who is responsible for any advertising. The maximum penalty is $27,500. In addition, it is important to note that any breach of the regulation constitutes unsatisfactory professional conduct. The Issues Paper sought submissions on whether the regulation making power should be deleted from the Medical Practice Act. If the power was deleted advertising would be controlled by the Trade Practices and Fair Trading Acts which prohibit misleading and deceptive conduct. It is noted with interest that as a result of recent amendments to the Trade Practices Act there is now scope for the introduction of enforceable industry codes of practice. Restrictions on advertising can exacerbate the fundamental disparities in market information by denying consumers access to information about the availability, quality and price of services provided by competing practitioners. Restrictions can eliminate or constrain normal forms of competitive behaviour. Obviously the extent to which restrictions will impact on competition will depend on the precise terms of the regulation. It should be noted that the restrictions in the Medical Practice Regulation are very closely modeled on consumer protection legislation (ie the Trade Practices and Fair Trading Acts). The Australian Competition and Consumer Commission in its submission to the review made the following points . • Although advertising can contribute to the ability of consumers to make informed choices, the Commission does not "support or condone an 'anything goes' approach to advertising in the medical sector" nor advocate the dissemination of "information that is inaccurate, misleading or deceptive. For example, the Commission would be concerned if medical practitioners incorrectly advertised that a certain procedure would provide results that are in fact unproven. This type of information does not promote competition and nor does it benefit patients". The Commission's concerns in this area are focused on restrictions on advertising that extend beyond consumer protection legislation. "[I}f medical professionals can demonstrate that additional restrictions on . 70· • R~vjl'W 01 tlie },,feciica[ Practice Act - Final Repo/,I advertising are necessary to prevent undue risks to consumer welfare, and are therefore in the public interest, then they may have a case for the reintroduction of some (limited) restrictions. However a demonstrated case needs to be made for each example of concern .,,75 Most submissions to the Issues Paper supported the retention of the power to regulate advertising under the Medical Practice Act. Submissions in favour of the retention of the power to regulate advertising raised the following points. • The Commission expressed the view that consumer protection legislation does not adequately protect the public and that advertising is not merely about the dissemination of information but is also: "inherently linked to the promotion of sales of a particular product or service, and this may be through the dissemination of information (or whatever quality or accuracy) or through the mere promotion in the public arena of the existence of a service or product without providing any information regarding its characteristics or uses."76 • Standard of care issues are not considered in any prosecution of a complaint regarding misleading or deceptive advertising." Consumer protection legislation is generally inaccessible to most health care consumers. As advertising becomes more popular and competition becomes stronger (particularly in areas like cosmetic surgery and laser eye surgery) there is a temptation to make claims for a procedure which are unjustified or do not present a balanced picture of a procedure. 7s Removal of the power to regulate advertising could have an adverse impact on the WorkCover scheme as it could allow medical practitioners to actively tout for business in the area of workers compensation and result in cost increases for the scheme. Removal of restrictions on advertising by lawyers had a significant cost impact on the scheme. 79 In an environment where there is a heavy dependence on government funding, the removal of the power to regulate advertiSing must result in more advertising which seeks to increase demand for services in one area which will have a negative overall impact on the total amount of funds available for other areas which may be less glamorous or marketable ( eg treatment of major psychiatric illnesses)." • "Information asymmetry between consumers and providers of medical services renders consumers less able to assess claims made by health care providers. Education of consumers to overcome this information asymmetry is not a realistic option given the range and complexity of health services. NCOSS also considers it to be in the public interest to reduce the extent of over servicing or provision of - 71 - • • • RL'\';{'W orllll.! Mt'dk al Praclit'e ACI- F ilial RefJul'f inappropriate services"·' "False and misleading advertising by medical practitioners cannot be divorced from the delivery of health care. Medical advertising inherently occurs within the context of medical treatment and affects (or has the potential to affect) the health of a consumer. Maintaining high standards of medical advertising should therefore remain linked to monitoring professional health standards."·2 • The Medical Practice Act contains a broad range of sanctions which range from counselling to deregistration. The penalties which are provided for under the Fair Trading and Trade Practices Acts are numerous but do not include the power to order deregistration of a practitioner. "The disciplinary bodies established under the MPA have strong representation by medical practitioners. This is appropriate where public health issues are under examination. This Department considers the conduct of health practitioners in relation to advertising and other matters is likely to have a public health dimension. Accordingly, medical bodies are better positioned to assess the health risks associated with such conduct, and continued regulation of medical advertising by medical bodies is supported. ,,83 • A substantially smaller number of submissions advocated the dropping of the power to regulate advertising under the Medical Practice Act. The following points were raised . • The Medical Practice Regulation duplicates consumer protection legislation which adequately protects the public. Restrictions on advertising are not rightly within the province of the Medical Practice Act and can be interpreted as entering an anti-competitive arena. An appropriate consumer information campaign could accompany the removal of the Board's jurisdiction in this area." "Given that complaints are rarely received by consumers, and more likely to be received from competitors, the Medical Board's involvement in business to business competition issues is not appropriate and suggests that it already plays little part in actual consumer protection:as "Removing advertising restrictions from the Act may encourage practitioners to more widely advertise their services and spend time and effort on advertising that provides consumers with the knowledge required to select a location, range of services and style of practice that suits their needs.-88 The issue of professional standards which the Medical Board has an active role in maintaining and monitoring (through the registration, disciplinary and proposed performance assessment systems) is much broader in scope than the issue of advertising. Placing restrictions on advertising will not necessarily impact on the maintenance of professional standards. • • • • On balance, the Department supports the Medical Board continuing to have a role in the area of advertising for the following reasons . - 72 - Review of the Medical Pmclict' Act ~ Filial R{'{'0rl • The maintenance of high standards of advertising is fundamentally linked to high professional standards which is in the public interest. It can be said that medical advertising is one aspect of the overall issue of medical treatment. It is noted that breach of the advertising regulation is "unsatisfactory professional conduct" under the Act. The restrictions in the Medical Practice Regulation 1998 are closely modelled on consumer protection legislation and do not unduly restrict competition in the area of advertising. Their existence however sends a powerful message to practitioners that advertising is a professional matter which is of interest to the Board in view of its public protection function. In addition the range of sanctions available in a disciplinary context are more comprehensive than those under consumer protection legislation and include deregistration and the imposition of conditions on registration . Removal of the power to regulate advertising would mean that in circumstances where evidence was available of advertiSing that was false, misleading or deceptive and there was direct evidence of an adverse patient outcome that warranted disciplinary action, the matter would have to be dealt with in two different forums. In addition, the advertising issue would involve an assessment of the veracity of claims made. The Medical Board is well placed to undertake this task. The Medical Practice Regulation prohibits the advertiSing of medical services which "promote the unnecessary or inappropriate use of medical services". Without this restriction in place there would be greater scope for resources to be used unnecessarily, potentially at the expense of more beneficial uses. • • • The Medical Practice Act provides that a corporation that wishes to advertise medical services is required to nominate to the Board a medical practitioner who is to be responsible for advertising. Both that individual and the corporation can be proceeded against for any breach of the advertising requirements . Two submissions argued that persons eligible for this position should not be confined to medical practitioners. The Department notes however that as advertising is a professional matter, it is only appropriate that a medical practitioner against whom disciplinary action can be taken should be held accountable for the quality and content of the advertising of medical services. 11 .2 Access to medical records Another issue identified for consideration in the Issues Paper was whether the Medical Practice Act should be amended to give patients a right to access their medical records . Submissions were divided on the issue of whether a statutory right of access should be included in the Act. The Issues Paper noted that as a general rule patients in public hospitals, private hospitals, day procedure centres and nursing homes may already access their medical records. Submissions from consumer groups expressed a particular interest in this issue. In addition to a right of access to a patient's own record, many advocated consumers being provided with information on what records exist about them, how they can be accessed, the process for correcting errors in a record and where they can go to have a practitioner's decision to refuse access to a record reviewed. - 73 - Revil!w urthe Medical Practice Act - Finul Report Only one submission from a professional body was supportive of patients having a right of access. The Royal Australian and New Zealand College of Psychiatrists expressed the view that patient access is a good idea but that sensitive aspects of a record should remain confidential in certain circumstances such as where access would put the safety of third parties at risk. Most professional bodies did not support patients having a right of access to their medical records. Listed below are some of the reasons given. • Access may be inappropriately used by a legal practitioner to build a case against a medical practitioner (ie fishing expedition). In some cases patients will need counselling and advice on the contents of notes and unrestricted access would not ensure that these support mechanisms are in place. With psychological and emotional problems unrestricted access could be harmful (eg child sexual abuse cases). Notes are an aide memoir only and remain the practitioner's intellectual property. • • • Although the inclusion of a right of access in the Medical Practice Act would ensure consistency of approach between the different sectors in which medical practitioners treat patients, the Department is of the view that the issue of access to records should be dealt with in a consistent manner for all professions. This is more appropriately considered separately from any review of legislation covering a particular profession. 11,3 Recovery of fees by medical practitioners The Medical Practice Act currently provides that proceedings cannot be commenced for the recovery of fees for profeSSional services until three months have expired since the bill was served personally or by post on the person to be charged with the amount. This prOVision would inhibit a registered medical practitioner's ability to recover the amount concerned in circumstances where there was evidence that the person charged would leave the jurisdiction before the expiry of the three months. No other health professional registration Acts in New South Wales contain restrictions on when a practitioner may commence proceedings for unpaid fees. No submissions were able to identify a reason for the retention of the restriction on the recovery of fees. A number of submissions argued that the recovery of fees is a strictly commercial issue that is not relevant to professional standards and accordingly should not be dealt with in the Medical Practice Act. The only comparable provision (in the context of registered health professionals) which has been identified is section 12A(3) of the Dentists Act 1934 which was not carried over into the Dentists Act 1989 The Department supports the removal of the restrictions on when a practitioner is able to recover fees for services provided. - 74 - R('\'it'w ort/w Medical Pmctic(' Ael - Fillal Rcport Recommendation 24 That the Medical Practice Act be amended to remove the restrictions on when practitioners may initiate proceedings to recover fees for services provided. ---------------------------------------------------------~ 11.4 Mandatory disclosure of fees The issue of whether the Medical Practice Act should be amended to compel practitioners to disclose their scale of fees to patients prior to commencing treatment was canvassed in the Issues Paper. Several consumer groups have in submissions expressed the view that practitioners should provide as much information as is relevant to a consumer in relation to their treatment and care. An estimate of all costs associated with treatment is essential information for consumers and should be required to be provided in advance of treatment. .7 Several submissions have put forward the contrary view. "Mandatory disclosure of fees prior to a service would often be impossible due to various situations or complications incurred in the practice of medicine. Making disclosure mandatory would be likely to increase the level of proposed fees in order to cover contingencies. The Board's responsibility should be to protect the public from unsatisfactory practitioners, not to direct practitioners in the manner in which they run their practices."·· One submission noted that a patient's clinical condition may be such that he or she is not in a position to comprehend a disclosure about fees before receiving treatment. That is a patient may be unconscious and in need of urgent medical attention in circumstances where the only health facility available is a private one. The Code of Ethics of the Australian Medical Association is informative as it states that: "Where possible, ensure that your patient is aware of your fees. Be prepared to discuss fees with your patient." It is also understood that medical practitioners who have been disqualified by the Health Insurance Commission are obliged to tell their patients that no Medicare benefit will be payable in respect of any services rendered. Whilst the Department supports the concept of practitioners providing information to patients on the cost of any proposed care. it is appreciated that there may be practical difficulties with enforcing a duty to provide full fee disclosure to patients prior to the commencement of treatment and that this is not the only strategy for achieving the desired outcome. For example. this is an issue which could be addressed in a Code of Conduct which encourages practitioners to disclose their fees or through a publicity campaign directed at consumers which encourages them to be more proactive about such matters. - 75- Review (! I the Jfedical Practice Act - Filial Repor l 11.5 Access to information on the register To date there have been few requests from consumers for information on the register. It is understood that the Medical Board has been responding positively to requests for the following types of information: names, qualifications that have given rise to an entitlement to registration, additional qualifications that are recorded in the register and general registration status. The Issues Paper canvassed whether other types of information like conditions imposed as a disciplinary or non-disciplinary process should be publicly available. Before turning to discuss submissions on this issue, it should be noted that the Medical Board is bound by the Freedom of Information Act 1969. This means that there is a presumption in favour of the Board giving access to documents unless they fall within one of the categories of exempt documents which are set out in the Freedom of Information Act. Submissions on the issue of consumer access to information on the register were divided with most professional bodies arguing that there should be no increase in the level of information which is made available to consumers. Numerous consumer groups have advocated that with the exception of a practitioner's residential address, all other information should be accessible to the public . .. NCOSS finds it extraordinary that consumers do not at present have access to full information about a practitioner's history of disciplinary actions and their outcomes, or current conditions placed upon their registration and any evidence of noncompliance. NCOSS notes that competitive markets are premised upon full information being made available to consumers, and strongly argued that this barrier to consumers accessing information cannot be justified." The Medical Board in its submission has expressed the view that: ..... conditions on registration should be available to members ofthe public in request, in keeping with the Board's public protection function. However, it does note that some conditions imposed as a result of impairment disclose confidential issues in relation to a practitioner's health which should not be of relevance to a member of the public. Although requests for information concerning conditions are very rarely received from members of the public, granting a statutory right to this information might be detrimental to the impairment program, and therefore in the longer term, to the public." As has been noted above, both consumers and practitioners already have a right to seek access to information held by the Medical Board under the Freedom of Information Act. In this context and in the interests of balancing the public interest in consumers being able to access information on practitioners and any detriment to the impairment program which may be caused by impairment conditions being made available, the Department supports information on the orders of all disciplinary and impairment proceedings with the exception of impairment related conditions which have been recommended by an Impaired - 76- Rt'vielV of the M"ciical Pmctice Act ~ Final R Cf!()/'f Registrants Panel being readily publicly available. Recommendation 25 That the Medical Practice Act be amended to clarify that orders of all disciplinary and impairment proceedings with the exception of impairment related conditions which have been recommended by an Impaired Registrants Panel should be publlclyavailable. - 77 - Rt.'Vit'lV of the Medical Pradicc Ad - Final Rcport 12. RESTRICTIONS WHICH IMPACT ON THE PRACTICE OF UNREGISTERED PRACTITIONERS Introduction 12.1 Unregistered persons are prohibited under the Medical Practice Act from holding themselves out to be registered medical practitioners. In addition, there are three other restrictions which impact directly on the practice of unregistered persons and can be viewed as anti-competitive. 89 Essentially, these restrictions prevent unregistered persons from: • • • recovering fees for medical or surgical services they have provided; holding themselves out as qualified, willing or able to cure a range of specified diseases (eg AIDS, HIV, cancer, epilepsy); and providing cancer treatments for certain purposes. Most submissions grouped the three restrictions together arguing that notwithstanding their anti-competitive effect, there are paramount considerations of public health which dictate the retention of the provisions. A number of submissions have even advocated the scope of the restrictions being increased. Before turning to each of these restrictions it is important to note the broader regulatory environment in which these activities occur. As discussed previously, consumer protection legislation prohibits any provider of a service from engaging in false and misleading conduct. In addition, it should be noted that: • • the Health Care Complaints Commission has the power to investigate complaints about unregistered practitioners; the Poisons and Therapeutic Goods legislation limits access to certain drugs to medical practitioners; and the Public Health Regulation 1991 provides that unregistered persons (with the exception of dentists) must not carry out any procedures which penetrate the skin unless certain requirements the object of which is to avoid infection are met. 12.2 Recovery offees This restriction prevents unregistered persons from initiating legal proceedings to recover fees for medical and surgical services. The Department has identified a number of concerns with this restriction. • The Medical Practice Act already prohibits unregistered persons from holding themselves out to be medical practitioners. The provision does not prohibit unregistered persons from charging for medical and surgical services per se but prohibits them from initiating legal proceedings to recover fees for services rendered . The scope of the provision would appear to be somewhat imprecise as the terms ' medical and surgical" are not defined in the Act. - 78- • • Rel'icw O/ thl' Medical Praclicf! Act - Final Rep()rl No submissions have identified with any precision how this restriction protects the public. On balance, the Department supports the removal of this restriction from the Medical Practice Act. 12.3 Prohibition on advertising cures for a range of diseases and treating cancer Whilst there is a prohibition in the Act on advertising cures for a range of diseases, it does not preclude unregistered persons from treating people with one of the specified diseases but simply prohibits them from advertising that they can cure a person so afflicted . The majority of these diseases can be classified as ones for which there is no generally accepted cure.(eg HIV, AIDS, epilepsy) It is interesting to note that the prohibition does not apply to medical practitioners. There is also a provision in the Act which is more restrictive than the prohibition on advertising cures for certain diseases. This provision prohibits an unregistered person from giving a person a substance which it is claimed is likely to prevent cancer or have curative or alleviating powers in the treatment of cancer. This restriction seems to purport to exclude unregistered practitioners from providing treatment to people with cancer. Several submissions have noted that alternative practitioners can be of benefit to those who are suffering from cancer.(eg naturopaths, herbalists, aromatherapists. acupuncturists) Again, this restriction impedes the development of new and innovative services which may be of assistance to patients with the specified conditions and lirnits consumer choice . The rationale for the provisions according to the Australian Medical Association is "One must accept that the diseaseslconditions mentioned within the Act at the moment would involve perhaps the most vulnerable group of patients in the community. Their vulnerability must be protected at law from unscrupulous purveyors of "quick cures". The AMA would strongly promote that the current section be extended to preclude unregistered persons from treating patients for one of the specified diseases mentioned within the Act." The Medical Board in its submission has expressed a different view. "... it was inappropriate for it [the Board] to attempt to police the activities of unregistered persons offering to provide health care, provided that they do not purport to be registered medical practitioners when they do so. It [the Board] did not believe there is any justification for expanding its jurisdiction in relation to alternative therapy. Its [the Board] experience in seeking to enforce the provisions of section 108 and 109 has been singularly unsuccessful, even where serious consequences including death have resulted from the unregistered person's activities. This has been due to a number of factors, including evidentiary and burden of proof issues arising when matters are pursued in the local courts." · 79 · Red!!\\" f!( tht! ,"fediC:rJl Practice Act· Fillul Rel )(}rI Several submissions have argued that the current restrictions prevent the development of new and innovative services which may be of assistance to patients with the specified conditions. If the restrictions were removed, the following regulatory framework would apply. • Consumer protection legislation would continue to prohibit claims about a product or service which are misleading and deceptive. All unregistered practitioners would continue to be prohibited from holding themselves out to be medical practitioners. The Health Care Complaints Commission would be able to investigate the activities of unregistered practitioners. Controls on access to certain drugs under Poisons and Therapeutic Goods legislation and in the area of skin penetration under the Public Health Regulation would continue to apply. • • • On balance, the Department considers that the current restrictions do not provide more effective protection for consumers than that offered by the above regulatory framework. The provisions are difficult to enforce and represent a piecemeal approach to the regulation of unregistered practitioners. The Department therefore recommends their removal. The Department is currently considering the issue of the development of an effective framework for minimum standards for the conduct and safety of alternative practitioners under the auspices of the Australian Health Ministers Council. A number of factors are informing that process including the Council of Australian Governments "Principles and Guidelines for National Standard Setting and Regulatory Action by Ministerial Councils and Standard-Setting Bodies". Recommendation 26 That the current restrictions: (i) on recovering fees for medical or surgical services; (ii) advertising cures for a range of diseases; and (iii) providing cancer treatments, be removed from the Medical Practice Acl - 80- Rt!vin1 of /he Medical Pmctic(' Act - Final Report 13. 13.1 ADMINISTRATION OF THE MEDICAL PRACTICE ACT Application of the Anti-Discrimination Act The Committee which reviewed practices for the employment of medical practitioners in the NSW Health System has proposed that "To acknowledge the social and cultural diversity of New South Wales, the State's Medical Practice Act should be amended to require the NSW Medical Board, and any other bodies operating under the Act, to conform in their policies and processes with the requirements of the New South Wales Anti-Discrimination Act." There is available the view that the Anti-Discrimination Act already applies to the policies of the Medical Board which is the only administrative body established under the Medical Practice Act 9 0 The Department proposes that this recommendation be the subject of further consultation with interested groups. 13.2 Ministerial direction The Committee which reviewed practices for the employment of medical practitioners in the NSW Health System has proposed that: "[T]he New South Wales Minister for Health should be given legislative power to direct the Board on matters of policy, but this power should not include issuing directions on matters pertaining to the registration of individual medical practitioners or the setting of medical standards: In relation to the proposal for the Minister for Health to have a statutory power to direct the Board on matters of policy, it should be noted that this type of control in a health professional registration Act is not unprecedented. Under the Nurses Act 1991, the Nurses Registration Board is subject to the direction and control of the Minister. The Department recommends that this proposal be the subject of further consultation with interested stakeholders. 13.3 Confidentiality and protection from disclosure Currently, the only documents which cannot be compelled to be produced to a court in civil proceedings are reports made by an Impaired Registrants Panel to the Medical Board. The Issues Paper canvassed whether there is adequate protection from disclosure for other documentation in civil proceedings. Under section 30 of the Health Care Complaints Act 1993 expert reports obtained as part of the investigation of a complaint may only be used in disciplinary or related proceedings under a health registration Act and in other legal proceedings where the person who gave the report, the complainant and the person against whom the complaint is made agree. In the interests of protecting "the supply of expert reports and the candour with which opinions are expressed'9' . the Department supports all medical reports which have been prepared at the request of the Board or pursuant to an order of a Professional Standards Committee or the Medical Tribunal being afforded the same protections which are currently - 81 - Review oftlu: Medical Practice Act - Filial Rt'porJ afforded to reports made by Impaired Registrants Panels. Recommendation 27 That the Medical Practice Act be amended to give all medical reports which have been prepared at the request of the Board or pursuant to an order of a Professional Standards Committee or the Medical Tribunal the same protections which are currently given to reports of Impaired Registrants Panels. 13.4 Composition of the Medical Board The Medical Practice Act provides that there are to be 18 members on the Medical Board of which: • • • • • • • 1 is a medical practitioner who is an officer of the Department of Health or the public health system; 1 barrister or solicitor; 2 medical practitioners nominated by the N.S.W. Branch of the Australian Medical Association; 1 medical practitioner nominated by the Ethnic Affairs Commission; 1 medical practitioner jointly nominated by Sydney. N.S.W. and Newcastle Universities; 8 medical practitioners are nominated by Colleges; and 4 persons nominated by the Minister not less than 2 of whom are to be persons who are conversant with the interests of patients as consumers of medical services. It is understood that the Board has worked very hard to ensure that all Board members understand that they have been nominated by their respective organisation but do not represent them. That is. Board members must act in the interests of the Board. Submissions on the composition of the Board have suggested the foHowing changes: • the Royal Australian College of Medical Administrators should be removed; and the number of nominees of the Australian Medical Association should be reduced from twO.92 Other suggestions for improving the composition of the Board that have been made include student representation and greater community representation . Given the current size of the Board, the Department is of the view that it should not be increased and any change in composition should be accommodated within the overall size of the Board. The Department supports an increase in the number of members conversant with consumer interests and recommends consideration be given to all four persons nominated by the Minister being conversant with consumer interests. The Committee which reviewed practices for the employment of medical practitioners in the NSW Health System has proposed the following amendments to the composition of the Medical Board. · 82· Rc.'view o{the Medical Prat'tict' Act - Fiflal Rl:'llOrt • The registered medical practitioner nominated by the Ethnic Affairs Commission should be replaced with the Chair of the Ethnic Affairs Commission or his/her nominee. The President of the Anti-Discrimination Board or his/her nominee should have a position on the Board."' • Minister should nominate one representative of overseas trained doctors. The Department recommends that further consultation be undertaken with interested stakeholders on the Committee's proposals. 13.5 Terms of Board members The Medical Practice Act provides that a person may not hold office as a Board member for consecutive terms totaling more than 12 years. Comments were sought on whether the current arrangement achieves the right balance of retaining expertise and adding new members who can bring fresh views to Board deliberations. Although very few submissions addressed this issue, those that did tended to favour a reduction in the number of years a person may serve from 12 to 8 years on the ground that it would "freshen the views of the organisation".94 On balance, the Department considers that by reducing the number of years a person may serve from 12 to 8 years, the Board's ability to benefit from fresh perspectives that new members can bring to an organisation would be enhanced but at the same time provide sufficient scope for the retention of the corporate memory of the organisation. Accordingly, the Department supports this proposal. Recommendation 28 That the Medical Practice Act be amended to provide that a person may not hold office as a member of the Board for consecutive terms totalling more than eight years. 13.6 Appointment of President and Deputy-President Currently the President and the Deputy President of the Board are selected by the Minister and appointed by the Governor. The Issues Paper canvassed whether the two positions should be elected by Board members. Very few submissions have addressed this issue. Given the concern which has been raised that an election may result in factionalism within the Board and inappropriate campaigning and that no submissions have identified how this proposal will further protect the public, it is not supported by the Department. The Committee which reviewed the practices for the employment of medical practitioners in the NSW Health System has proposed that the Medical Board should have: "An independent chairperson, to ensure consistency of approach and total independence. Ideally, the person should not be a member of any decision making - 83- Ret'jew of Ilze Mt'dlCal Pradicc! Ift'l ~ Final R l'lJ (}rf body in the medical profession associated with education, registration, assessment and the medica workforce. Consideration should be given to a member of the judiciary being the chairperson." As this proposal has not been the subject of consultation , the Department recommends that it be the subject of further discussion with interested groups. 13.7 Fines The Issues Paper canvassed whether the Medical Board should have the power to withhold registration where fines are overdue. Very few submissions addressed this issue. Those that did focused on the fact that the Medical Board is not without redress when practitioners fail to pay their fines by the due date. The Medical Board is able to initiate proceedings for the monies owing. The Department does not support giving the Medical Board the power to withhold registration when fines are overdue. 13.8 Offences by corporations The Medical Practice Act provides that where a corporation contravenes a prOVision of the Act or regulation each person who is a director of the corporation or person concerned in the management of the corporation is taken to have contravened the same provision if the "person knowingly authorised or permitted the contravention d5 It has been suggested to the Department that it is very difficult to prosecute a director or person concerned in the management of a corporation because a court must be satisfied that the person "knowingly authorised or permitted the contravention". A different approach has been taken to the concept of corporate responsibility in the Tobacco Advertising Prohibition Act 1991 . That Act provides that when a body corporate commits an offence every director and person who takes part in the management of the body corporate is taken to have committed the same offence unless he or she proves that: • • the offence was committed without his or her consent or connivance; and he or she exercised all such due diligence to prevent the commission of that offence as he or she ought to have exercised, having regard to the nature of his or her functions in that capacity and to all the circumstances. The Department supports the provision in the Medical Practice Act concerning offences by corporations being amended to make it consistent with the Tobacco Advertising Prohibition Act 1991 to ensure that directors and those involved in the management of corporations can be held accountable for contraventions of the Medical Practice Act and the regulation. - 84- RC!l'iew of rile Medical Prtlcth'(! Ad - Final Rep(!/"! Recommendation 29 Thai the Medical Practice Act be amended to provide that when a body corporate commits an off.. nc",. 'l\I~ly director and person who takes part In the management of a body corporate is taken to have committed the same offence unless he or she proves that: • the offence was committed without his or her consent of connivance; and • he or she eXercised all such due diligence to prevent the commission of that offence as he or she ought to have exercfsed, having regard to the nature of his or her functions in that capacity and to all the circumstances. 13.9 Staff of the Board The Medical Practice Act currently provides that the Board may with the concurrence of the Health Administration Corporation (which is the Director-General of the Department of Health) fix the salaries, wages, allowances and conditions of employment of the Board's staff in so far as they are not fixed by or under another Act or law. The Medical Board is one of the three registration boards that operate independently of the Health Administration Corporation which employs the staff of the remaining health professional registration boards. The other two registration boards which operate independently are the Dental and Pharmacy Boards. They are similarly required to obtain the concurrence of the Corporation to fix salaries and conditions of employment. The Department considers that in view of the fact that the Medical Board is a public sector organisation there is a public interest in the Health Administration Corporation continuing to playa role in determining the salaries and conditions of Board staff. - 85- Re~'iew o(the Aff!dical Practice! .k/- Final Rcpol'r 14. 14.1 OTHER ISSUES Post Graduate Medical Council The Post Graduate Medical Council was established in 1988 by the then Minister for Health. Its objective is to ensure that medical graduates meet agreed minimum standards of safety. clinical skill and professional competence over the first two years of their postgraduate medical training. Specifically, it is responsible for intern and junior medical resident education and training, accrediting training positions for junior doctors and for the allocation of interns to training posts with public hospitals in NSW. It is understood that the Post Graduate Medical Council is principally funded by the Department of Health. The Health Administration Act provides that the Minister for Health may have constituted such councils , committees and advisory bodies as he or she may consider appropriate. The Minister is responsible for determining the terms of reference and the membership of such bodies . The Department considers that this mechanism under the Health Administration Act provides sufficient scope for recognising the activities of the Post Graduate Medical Council. 14.2 Professional indemnity insurance A number of submissions have acknowledged that although professional indemnity insurance if made a condition of registration would be anti-competitive, there would be significant public benefits as consumers would be able to obtain compensation for injury caused by a practitioner. 96 This Department is currently considering in conjunction with the Attorney-General's Department a range of issues concerning health professional indemnity. 14.3 Deregistration of certain foreign practitioners There are provisions in the Medical Practice Act which enabled the Medical Board to conduct an audit of the register in 1993 to remove from the names of certain overseas trained practitioners who had not shown a commitment to live and practise in Australia for prescribed periods ending in 1992. It is important to note that deregistration was based on a failure to practise in Australia and was not based on competence. The Medical Board has advised that it will not be auditing its register again. The only practitioners to whom the provisions continue to apply are those who would have been deregistered because they prima facie met the requirements for de registration but whose registration had already lapsed due to the non-payment of fees at the time the Medical Board did its audit. That is. the names of these practitioners were not on the register at the time of the audit in 1993 and therefore could not be removed. With the passage of time since the audit. the Department considers the likelihood of practitioners seeking to re-register after so many years is remote and accordingly the provisions should be deleted. - 86- Rf.'\,·ji!W of the Medical Praf.:tic£' Act - Filial ReeorL Recommendation 30 That Part 3 of Schedule 5 of the Medical Practice Act be deleted. 14.4 National Board Several submissions have suggested that there should be a national board for registering medical practitioners. In a climate where practitioners are becoming increasingly mobile, the Department can see some benefit in a consistent approach being taken in registration matters throughout the country. Any progressing of a national board would need to take place at a Commonwealth/State level and it is arguable that the development of mutual recognition over recent years achieves this consistency. - 87- Re~';('w or/be MeJkul PnK/in' .,kl . Filldl Report FOOTNOTES l.N.S.W. Department of Heallh. Profile of the Medical Workforce in N.S.W .. 1996. 2.Submission - N.S.W. Medical Board 3.Submission - Australian Association of Surgeons 4.Appendix C. Issues Paper on the Medical Practice Act 1992, September 1998 S.See 2.3 6.Submission - New South Wales Medical Board 7.Submission - Health Care Complaints Commission 8.Submission - Australian Competition and Consumer Commission 9.Submission - Australian Competition and Consumer Commission IO.Submission - Royal Australasian College of Physicians Il.Submission - N.S.W. Medical Board 12.Submission - Health Care Complaints Commission 13.Submission - N.S.W. Medical Board 14.Submission - Health Care Complaints Commission IS.Submission - N.S.W. Medical Board 16.Submission - N.S.W. Medical Board 17.Submission - Royal Australasian College of Physicians 18.Submission - N.S.W. Medical Board 19.5uhmission - Health Care Complaints Commission 20.Submission - United Medical Protection 21.Submission - Royal Australasian College of Surgeons 22.Submission - Health Care Complaints Commission 23.Section 15 of the Medical Practice Act 24.Submission - Health Care Complaints Commission 2S.V. Waymouth, Deputy Registrar, College of Physicians and Surgeon of British Columbia - 88- R('\'iew of the M('tiical Prat'lin' Act ~ FilIal RCfl(W/ 26.Submission - Health Care Complaints Commission 27.Submission - NSW Medical Board 28.See also 8.2.X 29.Submissions - United Medical Protection and Royal Australasian College of Surgeons 30.Submission - Australian Medical Association 31.Mental Heallh Act (performance of special medical treatment), Children (Care and Protection) Act (performance of special medical treatment), Guardianship Act (performance of special medical treatment), Private Hospitals and Dny Procedure Centres Act (disclosure of pecuniary interests), Nursing Homes Act (disclosure of pecuniary interests) and Health Insurance Act (disclosure of pecuniary interests) 32.See Health Care Complaints Commission v Litchfield 33.Submission - Australian Association of Surgeon 34.Submission - Health Care Complaints Commission 35. 1998 Report of the Ministerial Committee of Inquiry into Impotency Treatment Services in N.S.W. 36.Submission - Australian Medical Association 37.Submission - Australian Medical Association 38.Submission - Australian Association of Surgeons 39.Submission - Health Care Complaints Commission 40.Submission - Council on the Ageing 41.Dr J Vinen, Head, Depm1ment of Emergency Medicine, Royal North Shore Hospital 42.Mr B Mewes, Phamlaceutical Services Branch 43.Submission - Health Care Complaints Commission 44.The issue of recorded and unrecorded convictions is discussed in 5.6 45.Submission - Council on the Ageing 46.Section 66, Medical Practice Act 1992 47.Scction 99, Health Services Act 1997 48.HL'IIlth Care Complaints Commission v Bruce Litchfield, Clyne v NSW Bar Association (1960) 104 CLR 186, NSW Bar Association v Evatt (1968) 117 CLR 177 - 89- Review oFfill' Medical Practice Ael - Final Reporl 49.Sce 7.4 50.Submission - Health Care Complaints Commission 51.Submission - Health Care Complaints Commission 52. Submission - United Medical Protection 53.Submission - United Medical Protection 54.Submission - Health Care Complaints Commission 55.Health Care Complaints Commission v Bruce Litchfield, Clyne v NSW Bar Association (1960) 104 CLR 186, NSW Bar Association v Evatt (1968) 117 CLR 177 56.Submission - Health Care Complaints Commission 57.(1987) 11 NSWLR 51 al 61 58.Submission - Health Care Complaints Commission 59. Submission - Health Care Complaints Commission 60.Unreporled, 23 April 1991 61.Submission - United Medical Protection 62.Bowen-James v Walton, NSW CA, unreported, 5 August 1991 63.Submission - Health Care Complaints Commission 64.Submission -Northern Rivers Area Health Service 65.Submission - NSW Medical Board 66.Submission - Australian Medical Association 67.Submission - Health Care Complaints Commission 68.Submission - United Medical Protection 69.Ex part Evatt; Re N.S.W. Bar Association (1969) 71 SR 158 70.Rohatgi v Health Care Complaints Commission, Court of AppeaL unreported, 26 July 1996 71.Submission - Health Care Complaints Commission 72.Medical Joumal of Australia Vol 169, 1998 73.Submission - Royal Australian and New Zealand College of Psychiatrists 74.The only regulation of corporations in the Medical Practice Act is in the area of advertising and medical record keeping. - 90- RC\'iew of(he Medical Pral"licc Al'( - F;nal RcporJ 75.Submission - Australian Competilion and Consumer Commission 76.Submission - Health Care Complaints Commission 77.Submission - Health Care Complaints Commission 78.Submission - Australian Plaintiff Lawyers Association 79.Submission - WorkCover 80.Submission - Royal Australasian College of Physicians 81.Submission - NCOSS 82.Submission - Departmenl of Fair Trading 83.Submission - Deparlment of Fair Trading 84.Submission - Royal Australian and New Zealand College of Psychiatrists 85.Submission - Pacific Medical Centres Pty Limiled 86.Submission - Pacific Medical Centres Pty Limited 87.Submissiol1 - llcalth Care Complaints Commission 88.Submission - Australian Association of Surgeons 89.These restrictions do not apply to ambulance ollicers or other registered health professionals. 90.Although the Medical Practice Act also the Medical Tribunal and Professional Standards Committees those are disciplinary bodies of a quasi judicial nature. The Medical Board is responsible for formulating policies and considering applications for registration. 91.Sccond Reading Speech for the Health Care Complaints BilL 28 October 1993 92.Submission - Health Care Complaints Commission 93.Submission - Ethnic Affairs Commission 94.Submission - New South Wales College of NUfsing 95.Section I R7. Medical Practice Act 96.Submission - NCOSS - 91 -