2nd July, 2007
Update:
New health professional registration arrangements came into place in Victoria on 1 July 2007.
What's changed?
• 11 registration Acts, including the Medical Practice Act 1994, repealed.
• Medical Practitioner Board of Victoria continues
• disciplinary changes
• formal hearings in matters of serious unprofessional misconduct to VCAT
• board may set up an investigations committee
• power to settle complaints ‘by consent’ between the medical practitioner, the complainant and the board
• complainants right to written reasons for decisions
• complainants right of review
• Minister has power to approve codes and guidelines, and approve qualifications required for registration.
• Podiatrists able to prescribe schedule four drugs
Three different regulatory schemes
Despite a vigorous campaign by the AMA and other health professional associations, medical practitioners will now have to deal with three different regulatory schemes in a few years.
The Health Professions Registration Act 2005 repeals 11 existing registration acts — including the Medical Practice Act — in favour of a common system of registration for all registered health professions. There will still be a Medical Practice Board of Victoria, and most provisions of the new legislation echo the old, but there are some changes. In particular, disciplinary processes will be different, and complainants will now have a right of appeal.
AMA Victoria had asked the government and the Parliament to delay the implementation of the new legislation, until we had a better idea of what national registration will look like. National registration is due to come into effect from 1 July 2008. We and other professional associations argued that two major changes in two years would be costly and confusing.
We were effective in putting pressure on the Minister and her department. Justifications for going ahead with the new legislation were changed on the run, government speakers fluffed their lines in Parliament, and a number of MPs seemed surprised that they were being asked to defend the Government’s position.
The Liberal and National Parties supported the AMA Victoria position, as did the Democratic Labor Party in the upper house. However, the numbers of the Government, supported by the Greens in the upper house, held sway.
The Parliamentary debate gave some interesting insights into the Government’s thinking. For example, the timetable for national registration seemed to grow a lot more flexible over time. Remember, just two months ago, Premier Steve Bracks said that national registration would come into effect on 1 July 2008. In the lower house in early June, this was described as a “very ambitious timetable” by Minister Bronwyn Pike. Two weeks later in the upper house, government MPs were saying “we do not believe that the 1 July 2008 date is achievable” (Adem Somyurek MLC), with Minister Gavin Jennings, who represents the Health portfolio in the upper house, saying “Indeed we anticipate it being as long as two or three [years].”
AMA supports a national registration scheme, and we are disappointed that the key Ministers in the Victorian Government are so pessimistic. We have written to the Premier asking that he recommit his Government and his Ministers to the earliest possible implementation of national registration.
The roving justification for the need for the new legislation was also interesting, if not very illuminating. The Government said on a number of occasions that the new legislation was a stepping stone to national registration. They also said that there was urgency for having a new system in place now, regardless of what national registration looks like. Minister Pike also claimed that Victoria is providing model legislation that other jurisdictions may find appealing and may want to replicate. Yet many of the amendments were sold as making the transition to a national scheme easier.
None of us knows what the national registration scheme will look like. Even Minister Pike said in the Parliament she did not have a crystal ball. As Queensland is the lead jurisdiction in legislating for national registration, it seems odd that Victoria thinks it is providing a template, or saying that this new legislation is a stepping stone to an unknown destination.
One point is very clear — two transitions will be necessary. This will add to cost, and to confusion. The government has said that costs will go up by five per cent in the lower house, but also said that, “The government’s view is that the implementation costs will by and large be able to be absorbed within the operating cost structures of the board” (Minister Jennings, 20 June 2007). These contradictory statements cause concern about what the Medical Board fees will end up being in September — particularly with the great unknown of the cost of complainant appeals.
AMA Victoria is pleased that both the Liberal Party and the Nationals MPs appeared to understand the complex issue and vigorously made the case. They were effective in putting pressure on the Government and the Minister, and we expect that Members of Parliament on both sides of the house are still confused as to the reason for forcing this new legislation through.
The battle now moves to the Federal arena, where the AMAs across the country will lobby for a sensible national regulatory scheme that protects the community and observes the rights of medical practitioners. We will also keep a keen eye on the implementation of the new Victorian legislation, in particular, how the new disciplinary system is working.
7 June Update: Parliament debates professions' call for deferment
Single health professions' board abandonned The Medical Practitioners Board and the other 11 registration boards will continue to exist, but the new Act endeavours to provide uniform administrative and regulatory processes across all boards. The single Act purportedly will allow for legislative efficiency, although there are of necessity a number of clauses specific to each profession. AMA Victoria successfully opposed the abolishing of the Medical Practitioners Board and the establishment of a single health Professionals Board, which was originally mooted.
Board structure - Doctor representation The Bill establishes that at least half the Board must be medical practitioners. The President and Deputy President must also be practitioners, unless the Minister ‘considers that it is necessary for the good operation of the board to recommend a member who is not a registered medical practitioner.’ Vigorous lobbying by AMA Victoria led to a change by the Minister on an earlier plan to not preserve the practitioner status of the President and Deputy President. In addition, as the person presiding at a meeting has both a deliberative and casting vote, there will in effect be a practitioner majority.
In her second reading speech the Minister also recognised that there is a need to appoint sufficient practitioner members to provide a breadth of skill and experience, and therefore it is expected that in most boards, including the Medical Board, there will be an absolute majority of practitioner members. There will be at least one extra lay person appointed to the Medical Board.
VCAT takes over formal hearings A new tribunal structure will be established as a Division of the Victorian Civil and Administrative Tribunal (VCAT), to take over the formal hearing role previously addressed by each of the 12 health practitioner registration boards. VCAT will have power to impose sanctions from a range of 15 options including fines of up to $50,000 a very significant increase over the $2000 which currently applies. The fines would be appropriated by the Board into its Board fund.
The Tribunal would have at least three members, two of whom would be practitioners of the relevant profession. However, despite all discussions with the bureaucracy and the minister being predicated upon the third member being a legal if not judicial member, no reference is made to such an appointment.
AMA Victoria has some concerns regarding the potential for increased cost associated with hearings by VCAT but acknowledges that there should be benefits for both doctors and patients in the hearing of serious allegations by VCAT if there is indeed a higher level of judicial input to the hearing and decision making process. The Department has assured us that its modelling of costs demonstrates only a marginal (less than 5 per cent) increase in overall operational costs for the Board.
Panels replace Informal hearings The current ‘informal’ hearing has been replaced by two panels, one to deal with professional standards and the other to handle health issues. We believe this is likely to be a positive change, which will ensure effective and fair management of impaired practitioners.
Qualification for registration We are somewhat bemused, if not rather confused about changes to the requirements for qualification for general registration. In the current legislation there is explicit reference to graduates of medical schools accredited by the Australian Medical Council or to persons who have passed the exams set by the Council. This terminology has been generally agreed by all the other State Medical Boards to ensure some national consistency. However these provisions have been swept away and been replaced by the requirement of ‘a course of study approved by the responsible Board’, which to the best of our knowledge is not an activity undertaken by the Medical Board. So it is not clear how anyone would qualify for general registration.
Increased Ministerial influence on registration issues Of related concern is the potential for unprecedented influence by the Minister in registration issues, as a new provision s119(2) provides that the board must not issue any code or guideline that relates to qualifications, supervised practice or examinations for registration or the scope of practice of registration unless the Minister approves the code or guideline. According to the second reading speech, it is intended that these powers ‘be used where a code has the potential to adversely impact on the work force and its capacity to deliver effective health services in times of changing demand’, that is to prevent what may be perceived by the government as anti-competitive behaviour by the Board.
Consumer conciliation role for Board One of the Minister’s main imperatives has been to address ‘consumer concerns’ about the processes of the Medical and other boards. The Board has been given the power to try to resolve less serious matters through a conciliation and counselling process, including, possibly conciliation with a consumer. This may allow for sensible resolutions but indicates a substantial misunderstanding of the board’s role, which is to maintain standards not to resolve consumer complaints.
Flaws relating to procedural fairness The Bill also contains some limited rights of ‘review’ of decisions for notifiers. We are relieved that full review rights have not been accorded to notifiers, which would essentially have given them party status in a proceeding in which they legally are classed as witnesses. However, we are concerned as to what is proposed in view of the right of the practitioner to procedural fairness. We are seeking legal advice on this matter, and can only assume that the undue haste in the lead up to the drafting of the Bill has meant the Department were unable to examine properly the anomalous legal processes which are proposed in the Bill.
Muddled role of the Board Disappointingly, the Minister and the Department have not heeded our warnings about the folly of muddling the role of the Boards with consumer dispute resolution processes, which is properly the responsibility of the Health Services Commission. We may assume that the legal problems will be sorted out in the lead up to the passing of the Bill, but will watch for the first signs that the new regime isn’t working.
Implementation of the new Act is not expected to occur until 1 July 2007 . The registration year is likely to move to a financial year cycle (July to June) and a six-month registration period will therefore apply at the point of transition.
We will keep members informed as to the details of the impact on members of the new arrangements and will continue to argue against any moves to downgrade the quality of healthcare being provided to Victorians. – Dr Mark Yates, President