Submission: October 2014

10 October 2014 Mr. Kim Snowball Review of the National Registration and Accreditation Scheme for health professions By email: nras.review@health.vic.gov.au Dear Mr. Snowball, RE: Response to the Consultation Paper on the Review of the National Registration and Accreditation Scheme for health professions The Australian Dental Association Victorian Branch represents around 3,600 members, or around 80% of Victorian Dentists. We are active in all dentistry-related policy, advocacy and oral health promotion matters in our State. We thank you for the opportunity to respond to the consultation paper on the review of the National Registration and Accreditation Scheme for health professions, our submission (Attachment A) responds to all 28 questions raised in this Consultation Paper. Further information about our organization can be found in Attachment B. We support the submission made by the Federal Australian Dental Association, and our further submission focusses on issues that specifically affect Victoria and Victorian-registered health professionals.

In this submission we raise concerns about the proposal to transition the AHPRA notification system to a co-regulatory system nationally. Undoubtedly, the AHPRA notification system is in need of improvement, particularly in the areas of effective and timely communication with health professionals and the public. However, there is no evidence that moving to a co-regulatory system would improve or solve any of these issues. The Queensland co-regulatory system has only just been established and there has not been sufficient time to review its progress. There have also been reports that the NSW co-regulatory system is over-burdened with complaints and has insufficient funding to meet this increased volume. Both of these systems involve considerable expense to their respective State Governments, with the NSW Health Care Complaints Commission annual budget being more than four times greater than that of the Victorian Office of the Health Services Commissioner.

Reflecting the recommendations of the recent Victorian Parliamentary Inquiry into the performance of AHPRA, AHPRA has already begun introducing changes to improve communication and timeliness. Furthermore, new legislation being debated in the Victorian Parliament seeks to change the way that health care complaints are managed in Victoria, which would address many of the concerns without the need to introduce the additional bureaucracy and expense of a co-regulatory system.

Our submission therefore urges that AHPRA be allowed the necessary time to address its shortcomings, rather than adopting another co-regulatory system that would only introduce further confusion and concerns.

Yours sincerely,

Dr Bob Cvetkovic ADAVB President

Attachment A

ADAVB responses to questions raised in the Consultation Paper on the Review of the National Registration and Accreditation Scheme for Health Professions 1. Should the Australian Health Workforce Advisory Council be reconstituted to provide independent reporting on the operation of the National Scheme?

Yes – provided this body is independent of Government, is not funded by registrants, and the new terms of reference are subject to public consultation.

2. Should the Health Workforce Advisory Council be the vehicle through which any unresolved cross professional issues are addressed?

Yes. 3. Should a single Health Professions Australia Board be established to manage the regulatory functions that oversee the nine low regulatory workload professions? Estimated cost saving $11m per annum

No - see also our response to Question 4 below.

Clinical knowledge and experience for each specific discipline is a critical and integral component of the expertise required to make high-level decisions affecting a profession and the public. Clinicians from each profession must be present on their respective Board to ensure that the decisions made are informed by clinical knowledge. There is also a large asymmetry of knowledge between health practitioners and the public, it is therefore important that the public interest is protected by ensuring that the individual Boards remain and are able to use clinical knowledge to inform their decisions.

Consumer representation is also important to ensure that the patient’s perspective is taken into account.

It seems counter-productive to impose a system whereby blanket decisions made by a central Board could have unanticipated or disproportionate effects on some professions, while having little impact on others. Possible unanticipated effects could include that some practitioners are unfairly burdened by new regulations, or that decisions made to reduce the risk to the public are effective for some disciplines and not for others. One decision may not fit all disciplines and so it is important that each Board remains independent and able to consider the factors important for their profession specifically, whilst ensuring that high-level common standards are applied across disciplines.

4. Alternatively, should the nine National Boards overseeing the low regulatory workload professions be required to share regulatory functions of notifications and registration through a single service? Estimated cost saving $7.4m pa.

Each Board should be permitted to make its own decision on whether or not to merge functions. Where joint management of notifications is agreed, the arrangements for investigations and decisions Page 1 of 17

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concerning appropriate outcomes would need to be carefully managed to ensure that people with relevant clinical knowledge are consulted during the investigation process. Clinicians trained in the relevant clinical areas must be the ones asked to judge whether or not Standards, Codes and Guidelines have been met.

Similarly, registration decisions and recognition of overseas-trained practitioners and their eligibility to be registered also requires clinical judgment, and could not be effectively addressed as a simple clerical task. These functions could be separated from notification processes however, where workload problems in handling large volumes of notifications require relief.

5. Should the savings achieved through shared regulation under options 1 or 2 be returned to registrants through lower fees?

Yes. 6. Should future proposals for professions to be included in the National Scheme continue to require achievement of a threshold based on risk to the public and an associated cost benefit analysis?

Yes. 7. Should the National Law be amended to recognise those professions that provide adequate public protection through other regulatory means?

No – for unregistered health professionals the, unregistered health practitioner National Code of Conduct should be used instead. Any decision to admit a new profession to the National Scheme must demonstrate that this would result in a significantly reduced risk to the public, and justify the economic expense.

On the subject of accountability and regulation of health professionals, the section on p. 11 of the NRAS review consultation paper, which discusses the background information relevant to Q 6-8, suggests that “… if the majority of practitioners are in employment – rather than self-employed – then an additional layer of regulation already exists.” We do not agree. Under the National Law, it is the registered practitioner who is held accountable for their actions, irrespective of their employment status. In certain employment situations, there may be an imbalance of power between the employer and the employee.

The employer may place pressure on the employee to engage in practices to maximize the profit for the business or minimise costs, which may be at odds with Professional Standards and Guidelines. Although the National Law states that a person must not direct or incite a registered health practitioner to engage in unprofessional conduct, we have seen little evidence that this section of the National Law has been applied. We suggest that providing greater power under the National Law to hold non-registered persons accountable for their role in actions that lead to notifications would provide greater protection to the public.

Dental Bodies Corporate should be subject to a form of registration, which holds directors accountable to the same disciplinary processes applied to registered practitioners. This approach has been effectively

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used for many years in the UK, under the aegis of the General Dental Council, and a similar approach could be adapted here.

8. Should a reconstituted Australian Health Workforce Advisory Council be the vehicle to provide expert advice on threshold measures for entry to the National Scheme to the Health Workforce Ministerial Council?

It may be able to perform this role but we remain unclear about the structures proposed to replace the work previously done by Health Workforce Australia. It appears that the proposal is to reconstitute AHWAC to perform some of HWA’s functions but not others. We are concerned that this approach may result in a poorly informed decision making process, which could lead to adverse outcomes for the health workforce and the public. For example, information about workforce supply and demand and future workforce projections is critical to the decision making process around workforce planning, but it appears that AHWAC would not undertake these roles.

Conversely, it is also possible that political pressure to promote vertical competition between ancillary registered practitioners and registered professionals with higher qualifications could interfere with the objective regulation of the professions by watering down requirements for ancillary practitioners and imposing heavier burdens on high-level practitioners. We also note that vertical competition may even lead to higher costs to consumers in some circumstances, where more elaborate administrative arrangements are required to manage new professional relationships and seems at odds with an agreed patient centered approach to health care.

9. What changes are required to improve the existing complaints and notifications system under the National Scheme?

ADAVB suggests that a variation to option 1 is the preferred approach. 

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Clearer and more frequent feedback provided to notifiers. ADAVB supports this proposal, as communication with notifiers is likely to improve consumer satisfaction with the complaints handling process, regardless of the outcome. AHPRA has already committed to improving the language in its existing communications to notifiers. Additional changes to the National Law may be warranted to permit the provision of more information to notifiers about the progress of their complaint. Notifiers should be interviewed, or asked to provide evidence to support their complaint, as health practitioners are. However, we do not support that notifiers should further become active participants in the investigation of a notification concerning a breach of standards and Guidelines. If notifiers wish to be involved in settling a dispute then the complaint should be referred to the Health Complaints Entity (HCE) for alternative dispute resolution.

AHPRA processes need to objectively determine whether registration standards, codes and guidelines have been breached and whether the public is at risk.

Prescription of performance measures and timeframes for the management of notifications.

We support that this proposal is worthy of further discussion. The Nationally consistent application of reporting timeframes for notifications is welcomed as this is likely to improve the satisfaction of both consumers and practitioners with the notification handling process.

However, we are cautious of prescribing short timeframes in which a health practitioner may Page 3 of 17

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respond to provide requested information, through which they may defend themselves against a complaint. A health practitioner is obliged to inform their professional indemnity insurer (PII) and seek advice prior to responding to a complaint. If there are public holidays, for example around Christmas, the time taken to receive advice from a PII and mount a response to the request for information may exceed the two week period mandated by the complaints investigation process in Queensland. We also recognise that, from time to time, there may be an unusually large number of notifications to be addressed within a particular profession, and that allowance should be made for such workload variability. Taking shortcuts to meet legislated deadlines could lead to unsatisfactory outcomes, both for notifiers and practitioners. We therefore suggest that options to allow the extension of mandated deadlines under such circumstances be included in any revised legislation.

Providing AHPRA and the National Boards with the ability to utilise alternative dispute resolution (ADR) services. This proposal is not supported. It is not the role of AHPRA to manage alternative dispute resolution. We instead propose that, if the notifier prefers to pursue their complaint through ADR, then it should be referred to the State or Territory HCE for management. The use of ADR by these more relevant bodies is supported.

ADAVB is supportive of the proposal for a single entry point into the complaints management process. This need not require adoption of a co-regulatory regime however, and new legislation currently before the Victorian Parliament offers an alternative solution. The primary entry point for the complaint should explain to the complainant what the options for handling the complaint are and what the expected outcomes may be. This is also the most appropriate time to explain the different roles of AHPRA and the HCEs, and what their powers are under the law.

The complainant/notifier should then be able to decide if they wish to pursue alternative dispute resolution.

Further improvement of the existing complaints and notifications system under the National Scheme will also need to address inconsistencies in the way notifications are handled by each jurisdiction. Panel Hearings data on the AHPRA website indicate that the way AHPRA investigators interpret Standards and Guidelines in the different jurisdictions may vary greatly. For example, in Victoria, there has been a high number of panel hearing decisions reported about dental practitioners: 34 of 40 dental practitioner hearings between 2011 and 2014 occurred in Victoria (NSW was not included in this data). This data indicates that further work is needed to achieve a truly national notifications handling system.

We also suggest that AHPRA and the National Boards could further improve the complaints handling and notification process by demonstrating that they are working with professional bodies to identify areas in which there are patterns of behaviour exposing the public to risk of injury or to cause of complaint.

AHPRA notifications data are not presently analysed for opportunities to mount educational or informational programs designed to improve practitioner behaviours, or reduce public risk. We have urged AHPRA and the Dental Board seek to adopt a more educational, rather than punitive approach to notifications. For example, Victorian Dental Practitioners are often the target of panel hearings due to notifications about insufficient standards of record keeping. Between 2011 and 2014, 13 of 40 Dental panel hearings cited inadequate record keeping, all of these were for Victorian practitioners. These notifications may be listed as ‘documentation – health record – inadequate or inaccurate or misleading’, Page 4 of 17

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‘inadequate records’, ‘health record – inadequate or inaccurate or misleading’, ‘health record – inadequate’, ‘poor documentation’ or ‘poor documentation, maintenance of health records’. ADAVB has been advised that many of these citations occurred secondary to another matter, and were added to the charges during the course of the investigation.

Given that inadequate record keeping was cited in one third of dental practitioner panel hearings, we have urged AHPRA and the Dental Board to further educate practitioners on the requirements for record keeping standards, rather than penalise practitioners for inadequate record keeping without first providing appropriate education.

On the matter of notification and registration handling by the States and Territories, we are aware that there can be large variations in workload between jurisdictions and between different Boards. We urge that this be taken into account when considering mandated maximum complaint investigation time frames. Members who serve on Registration and Notification Committees are essentially volunteers, who are only compensated for their Committee sitting time. However, we have been advised that the Victorian Dental Practitioner Registration and Notification Committee is subject to large workloads, with up to 3000 pages, or about 20 hours, of additional reading required per month, for which Committee members are not compensated. We support consideration of means by which to address these workload problems, including the suggestion that the Dental Board separate Notification and Registration functions. We further urge that AHPRA and the Boards consider appropriately compensating Committee members for their out of session work. Without such changes it will become difficult to attract and retain the most qualified and appropriate Committee members for these positions.

10. Should the co-regulatory approach in Queensland, where complaints are managed by an independent commissioner, be adopted across all States and Territories?

No. We expect this approach to founder, with similar problems to those encountered in NSW, where the Sydney Morning Herald reported that “Forecasts in this week's NSW budget papers suggest the commission is no longer fulfilling its duties as the state's health watchdog. By the end of the year the HCCC is on course to receive a record 5185 complaints – 25 per cent more than four years ago. Yet referrals for disciplinary action or prosecution will have dropped 20 per cent to 110 – with actual disciplinary or appeal cases falling by one-third.”

Read more: http://www.smh.com.au/nsw/health-care-complaints-commission-in-crisis-20140619zsem0.html#ixzz3Et3XYyUS The inconsistencies established, where different processes are employed and variable resource levels are applied to investigations and hearings in response to notifications, lead to the opposite outcomes to those intended when the National Registration and Accreditation Scheme was established.

Inconsistencies between jurisdictional responses to the same Standards, Codes and Guidelines create inequity and confusion amongst practitioners and the public. This approach undermines the original intention of the National Scheme to provide a single streamlined approach to the registration and regulation of registered health practitioners. The goal of this approach was to provide a more flexible

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system in which a mobile workforce may operate, e.g. across State and Territory boarders, while continuing to protect the public from risk.

The Queensland model has only just been introduced, and this was done on a fast track timeline, which did not permit the orderly planning of service delivery. We respectfully suggest that it is far too early to be recommending the adoption of an untried model. Modification of the current AHPPRA system is therefore preferred to its replacement with a co-regulatory approach.

11. Should there be a single entry point for complaints and notifications in each State and Territory?

Yes. This would help to avoid some of the obvious confusion in the minds of consumers. Clear and simple communications are required to explain the differences between professional standards requirements and consumer dispute resolution arrangements. The central entry point needs to ask consumers and notifiers what outcome they are seeking, and be guided by that, rather than expanding a complaint into a notification without reference to the complainant. In establishing this process it would also be important to ensure that the staff in each State and Territory who are the first point of contact for a complainant receive consistent and adequate training, to improve consumer satisfaction with the notifications process, to achieve consistent application of the National Law, and to improve the timeliness of complaint handling. According to the recently released AHPRA/Health Issues Centre report on improving the consumer experience1, the need to provide suitable training to people who act as point of first contact for notifiers has been proposed as recommendation 3 (p55), and AHPRA has stated this is already being addressed.

12. Should performance measures and prescribed timeframes for dealing with complaints and notifications be adopted nationally?

Only if common and centrally administered processes are adopted, otherwise with unequal resource allocation, common performance measures would be virtually impossible to achieve across a number of jurisdictions. There also needs to be provision for some flexibility due to peak load demands and levels of notifications between professions.

13. Is there sufficient transparency for the public and for notifiers about the process and outcomes of disciplinary processes? If not, how can this be improved?

Notifiers are really witnesses who have reported a matter for investigation, and so should not be treated as if they are party to a dispute, entitled to feedback on the progress of a case as if they are the principal audience determining whether the investigation and hearing were satisfactory. There should be objective standards for this judgment rather than the subjective view of a party to a dispute. Consumer disputes need to be settled by health complaint entities or the courts rather than AHPRA notification processes.

1

Health Issues Centre (June 2014), ‘Setting things right. Improving the consumer experience of AHPRA including the joint notification process between AHPRA and the OHSC, final report’, available at http://www.ahpra.gov.au/documents/default.aspx?record=WD14%2F14878&dbid=AP&chksum=W2gI6oC7RToLyp %2FtQ59blg%3D%3D

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The review has not asked the question as to whether there is sufficient transparency for more than 590,000 registered health practitioners, who are expected to have faith in the notification system and to support it. This is important, as adherence to Standards, Codes and Guidelines requires the good will and commitment of practitioners and they must have confidence in the structures and processes if regulatory measures are to be effective.

With regard to dental notifications, the Consultation Paper prepared by Mr. Kim Snowball and his review team indicates that dentists appear to have the highest rate of notifications of any registered health profession.

The ADAVB has been keen to obtain more detailed notification data so that we can implement appropriate risk management measures to assist the profession to avoid notification triggers, and we have found it difficult to progress this. A data request process is in train, which may assist in this undertaking. However, we note that published data has been of limited value to date.

We have seen the detailed tables provided in AHPRA’s 2012/13 Annual Report, and anticipate that similar information may soon be published about the period ending 30 June 2014 via AHPRA’s 2014 Annual Report. The 2012/13 data includes the following noteworthy elements:   

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There was a total of 1052 dental practitioner notifications (comprising 586 from National Schemes and 466 from NSW) Of the 586 notifications from the National Schemes, 346 related to clinical care, 86 were not recorded, 39 were about billing and 22 related to communication. Of the 466 notifications in NSW, 338 were related to clinical care and 36 to billing.

With 684 out of 1052 notifications related to clinical care, it is disappointing that no details are available to indicate what proportion of these notifications related to each of the divisions of the register, nor is there detail about the nature of the clinical care issues, which might be helpful to practitioners in paying closer attention to identified risks.

Table 27 in the 2013 AHPRA Annual Report indicates that of 522 notifications closed in 2012/13, there were 225 on which no further action was indicated. This raises questions as to whether the notifications were warranted in the first place, and whether there may need to be improved guidance offered to consumers about the grounds for notification.

AHPRA and the HCEs, such as the Office of the Victorian Health Services Commissioner, publish data on notifications and complaints without setting this information into the broader context. At June 2013 there were 19,912 registered dental practitioners in Australia, 15,020 of these were dentists2. Previous research from 2009 tells us that dentists saw a mean of 2419 patients per annum3. We can reasonably estimate therefore, that there were over 36 million dental visits in Australia in 2012-13.

2

Dental Board of Australia. Dental Practitioner Registrant Data June: 2013. Available at http://www.dentalboard.gov.au/documents/default.aspx?record=WD13%2f11444&dbid=AP&chksum=tTA5srz7TA FaaiPEcno5Hg%3d%3d 3 Australian Institute of Health and Welfare 2011. Visits supplied in dental practice in Australia. Research report series no. 55. Cat. no. DEN 212. Canberra: AIHW.

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In 2012-13 there were 1052 notifications about dental practitioners. This is a very small minority of the approximately 36 million services that were provided, and the percentage of services resulting in notifications was 0.003%. It is therefore clear that the vast majority of dental services are delivered in a high quality, safe and compliant manner. However, this message is not delivered to the public by AHPRA and the HCEs, as these organizations concentrate on the very small proportion of dental visits that result in notifications.

This is a disservice to the public as it undermines their confidence in the competency and professionalism of dental practitioners. Perversely, it also undermines confidence in AHPRA and the National Boards, as it focuses public attention solely on the outliers, whose treatment results in notifications, rather than highlighting the high level of compliance by practitioners and the ‘uneventful’ healthcare services they delivered. A relationship of trust and respect between patients and practitioners is essential to delivering high quality and safe health care and we suggest that AHPRA and the HCEs may have the opportunity to positively contribute to this through their public communications.

14. Should there be more flexible powers for National Boards to adopt alternative dispute resolution, for instance to settle matters by consent between the Board, the practitioner and the notifier?

No. This proposal blurs the distinction between professional standards, as prescribed by the Registration Standards and Guidelines of each Board and within the National Law, and resolution of other disputes and complaints, which are outside AHPRA's jurisdiction. It is important to determine early on in the process whether or not the complainant's case is a candidate for compensation as this may inform the complainant's decisions as to whether or not to seek ADR. Any offer of ADR should not be handled by AHPRA as this is not one of its functions under the National Law. In Victoria the Office of the Health Services Commissioner (OHSC) already offers this service.

15. At what point should an adverse finding and the associated intervention recorded against a practitioner be removed?

The point at which an adverse finding and associated intervention recorded against a practitioner should be removed depends on the nature of the offence. If the offence was relatively minor and did not pose a great risk to the public, then it seems reasonable that this finding be removed within a short period, taking into account the practitioner's track record, any previous adverse finding, and what actions have been taken to remedy the problem.

If the offence was serious and resulted in serious harm or the risk of serious harm to the public then it is reasonable to expect this finding to remain on the register for a period of time proportionate to the offence, and/or until such time as the risk to the public has been addressed.

16. Are the legislative provisions on advertising working effectively or do they require change?

On the subject of the advertising of regulated health services and the use of testimonials, ADAVB supports Option 1, that no changes to the National Law be made. AHPRA and the boards have already made efforts to clarify that practitioners will not be held responsible for testimonials posted in online, over which they have no control. Further, it has already been clarified that it is not the intention of the Page 8 of 17

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National Law to restrict consumer discussions on social media. It is therefore unnecessary to make changes to the National Law to accommodate the use of testimonials.

On the subject of the advertising of regulated health services, we believe that AHPRA does not appear to have the resources to investigate the multitude of advertising breaches clearly in evidence in print and online. Advertising Guidelines are considered suggestions rather than regulations, and a lack of visible action against those who have breached these Guidelines suggests to other practitioners that there will be no negative consequences for such actions. The way society has moved to demand rating information via social media was not adequately recognised in the initial AHPRA Social Media guidance, and so it was appropriate that the guidance was updated to take some account of society’s changing expectations.

Advertising regulations - Lack of complaint information reporting data According to the Review Discussion Paper, 60% of the 804 complaints about breaches of National Law in 2013-14 were due to advertising. We suggest that this data could also be further analysed to show how many notifications were lodged by the public versus registered practitioners.

Reporting clearer information about the handling of advertising-related complaints could result in better practices for the advertising of regulated health services. If de-identified information about how breaches of advertising guidelines were assessed and investigated this would allow further development of best practice guidelines – with the potential to significantly reduce the number of complaints about breaches of advertising guidelines in future. This could result in a cost saving for AHPRA and the National Boards, as well as the benefit of greater clarity for expectations of registered health practitioners and improved communication to the public about registered health services.

Inconsistent application of the National Law and interpretation of the Advertising Guidelines While health funds advertise their services (including regulated health services) broadly, practitioners feel restricted in the advertisements they can use, particularly in the area of discounts and time-limited offers. Many practitioners feel that, while health funds may breach the Guidelines in advertising such an offer and suffer no apparent consequences, registered health practitioners are an easier target for investigation, so their advertising practices are more closely regulated. This creates an anticompetitive environment for small businesses, as compared to large corporations and health fund-owned practices.

Indeed, p26 of the discussion paper, states that, regarding breaches of the Advertising Guidelines, “AHPRA also advised the Review that a very low percentage of complaints regarding offences under the National Law are prosecuted due to the effectiveness of the warnings issued to practitioners in the first instance”, such warnings appear to be restricted to practitioners, who have been the subject of a notification. Although AHPRA reports information about notifications received about registered health practitioners, no information about complaints concerning breaches of the National Law by Bodies Corporate or health funds is reported.

17. How should the National Scheme respond to differences in States and Territories in protected practices?

The only difference of note we are aware of that affects Dentists concerns different mandatory reporting requirements in WA and Queensland. Every effort should be made to achieve National Page 9 of 17

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consistency in the area of protected practices. Variation in protected practices legislation between States and Territories could lead to confusion among practitioners, and local regulations can lead to limitations in scope of practice in some States and not others.

18. In the context of the expected introduction of a National Code of Conduct for unregistered health practitioners, are other mechanisms or provisions in the National Law required to effectively protect the public from demonstrated harm?

Codes of conduct for registered health practitioners need to be reviewed in the light of the National Code of Conduct for unregistered health practitioners, to ensure a broadly consistent approach to protection of public health and safety.

The final version of the National Code is not yet available. Provided that a set of standards for unregistered practitioners and non-regulated practices are made, and appropriate negative licensing arrangements can be made consistently across the States and Territories, then there does not appear to be a need to expand the National Law into this area. The additional level of regulation that would be involved is not justified, provided that suitable alternative mechanisms are in place.

This raises the question: if a registered practitioner acts outside of their scope of practice, in an area not regulated by the National Law, who would have jurisdiction and how would an adverse finding be recorded? Would it be appropriate that this adverse finding be publicly available through the AHPRA website, against that practitioner's registration record? It seems that this would be unlikely and the adverse finding would only be recorded in a national database for unregistered practitioners. We therefore urge that careful consideration be undertaken on how to manage such situations so that any risk to the public is effectively managed.

19. Should the mandatory notification provisions be revised to reflect the exemptions included in the Western Australian and Queensland legislation covering health practitioners under active treatment?

Yes. Mandatory notification provisions are in place to protect the public from the most serious of risks. It is also recognised that mandatory notification requirements for treating practitioners may deter impaired practitioners from seeking treatment and may fail to protect their privacy.

We support the introduction of provisions of the Queensland Health Ombudsman Act 2013, which changes the way mandatory reporting operates in that State, and introduces an exemption from mandatory notification requirements for treating practitioners. According to this law, an exemption to this requirement only applies if the matter relates to an impairment, does not relate to professional misconduct, and the treating practitioner forms the reasonable view that the impaired practitioner does not pose a serious threat to the public. ADAVB suggests that this provision would most effectively balance the need to minimise public risk, while still encouraging impaired practitioners to seek help.

We further note that, following investigation of a complaint, the NSW health care complaints legislation allows for the option of referring a practitioner for counseling, rather than a reprimand. We also suggest that treating practitioners should have a mandatory requirement to refer an impaired practitioners into

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a counselling and monitoring system. This would satisfy the need to reduce the risk to the public, while being less of a deterrent to practitioners who may wish to seek help and treatment.

Where a notification relates to the health of a registered practitioner, a more pastoral approach should be taken. This needs to be consistently applied across all professions. The Doctors’ Health Advisory Service and the Nursing and Midwifery Health Program Victoria offers commendable support for Doctors and Nurses. Such programs should be extended nationally, to all registered professions.

20. To what extent are National Boards and Accrediting Authorities meeting the statutory objectives and guiding principles of the National Law, particularly with respect to facilitating access to services, the development of a flexible, responsive and sustainable health workforce, and innovation in education and service delivery?

National Boards are not equipped to assess the extent to which a market is oversupplied or undersupplied, which could have a significant impact on the question of whether to permit another school to open or another course to commence. These matters were being addressed by Health Workforce Australia and their provision of data for use by Government planning personnel. Such responsibilities cannot be imposed on National Boards and Accrediting Authorities. In fact it is vital that Accrediting Authorities are not involved in this as it conflicts with their assessment duties, which should made on their standards, irrespective of the over or under supply of practitioners.

The suggestion that National Boards or Accrediting Authorities should use Accreditation Standards and processes to dictate changes to courses based purely on economic problems in supplying particular health practitioners into the workforce fails to recognize the structure of health disciplines and the complexity of the health problems practitioners are faced with. It also suggests an approach to course accreditation which would be offensive to universities, and which misapprehends their educational role.

They are not TAFE training programs for particular employers looking for a worker with a narrowly defined set of skills. Universities educate health practitioners to solve problems where no text book solution exists. These critical thinking and clinical judgment skills are not amenable to a simplistic competency based approach as in a TAFE training course.

21. Should the proposed reconstituted AHWAC carry responsibility for informing regulators about health workforce reform priorities and key health service access gaps?

The implication of this suggestion is that regulators will be expected to modify safety standards and accreditation criteria to soften protections embodied in those standards to achieve workforce reform goals. This undermines the key role of regulators, which is to protect public health and safety. Much of the pressure for workplace reform was related to workforce shortages, and sought to create vertical competition to fill a service need. In dentistry we now have an oversupply, and insufficient funds to employ all of the graduates who are seeking full time engagement.

ADAVB is concerned that with the winding up of Health Workforce Australia, and the transfer of only a few of the previous employees of that body into the Department of Health, the availability of timely and relevant workforce planning data will be compromised. The Health Workforce 2025 – Oral Health report was completed by HWA last year, but has not been released to confirm that the dental workforce is in Page 11 of 17

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serious oversupply. While HWA briefed dental stakeholders on this in late 2013, their report has not been published to date.

AHWAC would need to have access to timely data to be able to perform a role which was sensitive to either shortages or oversupply problems. Where oversupply has occurred, it is not within the power of the National Boards or the Accrediting Authorities to close a dental school, impose caps on training places or restrict immigration. These are matters that would need to be addressed by the Government.

22. To what extent are Accrediting Authorities accommodating multidisciplinary education and training environments with coordinated accreditation processes or considering future health practitioner skills and competencies to address changes in technology, models of care and changing health needs?

To our knowledge the accrediting teams visiting dental schools do take account of these emergent and future needs. Not all dental schools are co-located with medical and other professional courses, so this could not be a mandated requirement.

23. What relationship, if any, is required between regulators and educational institutions to ensure the minimum qualification for entry to professions remains available?

The accreditation relationship may need to be adjusted to take account of the multiple accreditation systems and processes that academics are expected to address. Tertiary Education Quality Standards Agency (TEQSA) and institutional accreditation processes are already onerous, and perhaps these should be reviewed in relation to courses leading to registration as a health practitioner, to ensure they take account of the regulator’s requirements. Approaching the problem this way may allow the regulators to state that TEQSA accreditation is acceptable in meeting registration requirements or even better vice versa, and so offer efficiencies to educational bodies.

24. How effective are the current processes with respect to assessment and supervision of overseas trained practitioners?

It is ADAVB’s view that the processes for the assessment and supervision of overseas-trained dental practitioners is effective. We note that a new exam process has just been introduced by the Australian Dental Council (ADC).

24/25. Should the appointment of Chairperson of a National Board be on the basis of merit?

Yes – including their knowledge and experience in the health discipline concerned. The asymmetry of knowledge in complex health care disciplines between highly qualified practitioners and non-clinicians is substantial and the Board would be at risk of making decisions which would put the public at risk if it were led by a person without clinical insight.

25/26. Is there an effective division of roles and functions between National Boards and accrediting authorities to meet the objectives of the National Law? If not, what changes are required?

The separation of roles and functions generally appears to work well. Questions regarding mutual recognition arrangements and international relations may require attention so that both agencies play Page 12 of 17

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appropriate roles in discussions about alignment of accreditation standards and processes, and the trust which Australian and overseas bodies can place in each other.

We note that AHPRA has recently established a resource to assist accrediting authorities to review the consistency of their processes and the educational validity of their assessment measures. This is a welcome development.

26/27. Is there sufficient oversight for decisions made by accrediting authorities? If not, what changes are required?

Current oversight arrangements appear appropriate. Our information indicates that accreditation of dental practitioner courses is a collaborative process that actively involves the course provider, therefore there has been no need for an appeal or complaint process.

However, the cost of accreditation processes, and in particular the unfunded participation of academics from other institutions (apart from travel and accommodation costs) is not well recognised. Who should pay for accreditation on a full cost recovery basis is a key question here. The ADC is currently subsidising the dental schools, who are under extreme financial pressure as they cannot afford to pay the full costs.

This is unsustainable and, given course accreditation is intended to protect the public, it is reasonable that Governments should make a contribution.

27/28. The Review seeks comment on the proposed amendments to the National Law.

Proposed amendments to the National Law are listed below and individually commented on: 1.

Commonwealth Reforms to Freedom of Information Legislation

ADAVB agrees that the National Law should be changed to reflect post-2010 amendments to Freedom of Information legislation.

2.

Tabling of Regulations

We agree that the National Law should be amended to reflect proposed changes, such that procedures for passing/disallowing new regulations relevant to the National Law are consistent with the way legislation is usually managed in that jurisdiction. The provision for majority disallowance should be retained.

3.

Statutory protection for health practitioners reporting serious offences to police

Agree that this provision should be included in the National Law. 4.

COAG Standing Council on Health

Agree with this proposed change to the National Law 5.

Other Amendments Section 149 (Preliminary assessment)

Agree that the National Law should be amended to clarify that a National Board must, in all instances, decide whether or not a notification received by a Board could be made to a health complaints entity (HCE). We further propose that, where a matter is eligible to be dealt with Page 13 of 17

Attachment A

through a number of vehicles, for example both by a Board and by a HCE, that the other entities be notified of the matter and that the body most appropriate to first deal with the issue be determined.

Section 151 (When a National Board may decide to take no further action)

Agree that Section 151 of the National Law should be amended as proposed.

Section 167 (Decision by National Board), 177 (Decision by National Board) and Section 180 (Notice to be given to health practitioner or student and notifier)

Agree to proposed changes to these sections.

Section 180 (Notice to be given to health practitioner or student and notifier) is to apply to all decisions made under Division 10 (Action by National Board), which requires a notice to be given to the practitioner or student or, if the decision resulted from a notification, the notifier.

Agree to support proposed changes to Section 180 of the National Law. ADAVB responses to further proposed legislative amendments:

Issue

Amendment proposal

Commencement of registration

At this time, registration commences on the date of the decision by the Board or the delegate (e.g. s 56(2)(a) however, the point is relevant for all registration types). There are a number of instances when it would be of value for the Board to commence registration on a date to be determined. Such an amendment would be of particular value in the event that further professions were registerable under the National Law At this stage, it is not possible to obtain limited registration in a different sub-type within the same profession (s. 65 (1). This has a negative effect on individuals who are registered, for example, as a dental hygienist but who then want to undertake limited registration, for example, for the purpose of undertaking examinations to progress to become eligible for registration as a dentist.

Multiple registration subtypes including limited registration

Contravention of undertakings

s.112(2)(b) makes the failure to comply with conditions on registration a basis on which the Board may refuse to renew an applicant’s registration.

We consider that undertakings should have similar weight and suggest Section 112(2)(b) – and ‘or undertaking’ to … ‘any condition or undertaking to which …’

ADAVB response Agree

Agree

Agree

Page 14 of 17

Attachment A

Actions following suspension

Information on the Register

Conditions on registration

There is no avenue for ending a suspension imposed under section 156 (immediate action). This is problematic as a National Board may want to end a suspension or revoke an undertaking not to practice; and impose conditions.

In addition, if a health panel suspends a practitioner under section 191 (3)(b), there is no requirement under the National Law for the panel to set a review period. We think that this would be of benefit.

When a renewal date arrives during a period of suspension of the practitioner, the National Law does not currently import a clear process for management of practitioner’s registration and the subsequent application for registration/ reinstatement after the conclusion of a period of suspension.

Under the National Law practitioners who are suspended over a renewal period are not eligible for renewal – section 207 provides that during a period of suspension a practitioner is taken not to be registered and section 107 provides that renewal is only available to registered practitioners. As a consequence, the practitioner will cease to appear on the register and needs to make a new application for registration.

Section 226 of the National Law sets out when the National Board may decide to exclude certain information from publication on the National Register. The section contemplates that conditions or undertakings entered into by impaired practitioners may be excluded for privacy reasons (s226(1)). The section also contemplates practitioners requesting information not be published where the inclusion of the information in the register would present a serious risk to the practitioner’s health or safety s226(2)).The section does not provide for the National Board to consider the exclusion of information where a third party may be adversely affected nor does it allow for the National Board to consider such applications other than on the application of the practitioner.

This concern could be addressed by the inclusion of ‘or any other affected person’ after ‘the practitioner’ in both s226(2)(a) and (b). registration is first granted, when someone is reapplying for registration and

Agree

Agree

Agree

Page 15 of 17

Attachment A

Abrogation of right against selfincrimination

Notice requirement at section 180

when it is renewed.

Consideration could be given to giving a Board the power to accept an undertaking from a registrant to achieve the same purpose, rather than achieving this only by imposing conditions. This would align with the provisions of Part 8 that provide for either conditions or undertakings on registration.

Where conditions are amended under sections 125 and 126, there is no requirement for a review period to be set and we think that this would be of benefit to practitioners.

Co-regulatory issues – under sections 125(2)(b), 126(3)(b) and 127(3)(b), there is no equivalent section in the National Law (NSW) to allow a co-regulatory jurisdiction to change a condition imposed by an adjudication body in a National Board jurisdiction (Part 8) if the adjudication body decided, when imposing the condition, that the subdivision applied. An equivalent section be added to the legislation in all co-regulatory jurisdictions (including NSW and QLD).

The Health Practitioner Regulation National Law (ACT) has a variant to Clause 2 of Schedule 5 that abrogates the right against self-incrimination. It provides that any information, answer or document required to be given, answered or provided is not admissible in evidence against the individual in a criminal proceeding. The same provision applies in NSW under section The Medical Defence Organisations have advised that they consider such an approach as desirable, as their members wish to cooperate with the Boards without fear that any information provided could be used against them in criminal proceedings.

From a practical perspective, an amendment with application across the scheme would notifications timeframes where there are extant criminal processes. Further, it may enable practitioners to better defend immediate action proposals as they will be able to freely give their version of events.

Section 179 of the National law sets out the requirements for a show cause process to be applied, if a Board proposes to rely on its powers to caution, accept an undertaking or impose conditions under section 178 of the National Law. Section 179(3) provides that a show cause process is not required when a Board has investigated the practitioner under Division 8 of Part 8, or conducted a health or performance assessment under Division 9 of Part 8.

Agree

Agree

Page 16 of 17

Attachment A

Section 180(1) provides that a National Board must give written notice of a decision made under section 179(2). If the Board is not required, because of section 179(3), to use a show cause process, then the effect of section 180(1) is that a notice of the decision to take action is not required.

Section 180(1) could be amended to read, ‘As soon as practicable after making a decision under this Division, the National Board must give written notice of the decision to …’

It should be noted that an equivalent provision to section 180.

Appellable decisions

Obtaining information from other government agencies

Notice of a decision to take action

Division 13 of Part 8 of the National Law (sections 199 to 203) sets out provisions dealing with appeals against certain decisions made under the National Law. Appeals made under the National Law are made to the responsible tribunal in each of the participating jurisdictions.

There are no consistent provisions about the length of time that a person affected by a Board decision has to make an appeal to each responsible Tribunal.

While some jurisdictions have time limits in place because of their respective tribunal legislation, it is submitted that single, nationally consistent time limit ought to be included in the legislation.

A new subsection (3) could to be inserted at section 199, so that an appeal made under this section is to be made within 28 days from the date that the person making the appeal receives notice of the reasons for the Board’s or Panel’s decision, unless the appropriate responsible tribunal otherwise orders.

Consideration should be given to the addition of a section in Part 8 that mirrors Part 4 section 27, to remove any doubt about the ability of investigators to obtain information from other government agencies. s.206 requires that notice of a decision to take action against a registered health practitioner is communicated to the practitioner’s employer. This definition might be expanded to require notice to all places of practice – making it clear that s.206 applies equally to contractual arrangements.

Agree

Agree

Agree

Page 17 of 17

Attachment B

INFORMATION SUMMARY 2014/15 ABOUT THE ADAVB INC.

The ADAVB is the professional association of Victorian dentists which aims to  improve the dental health of all Victorians  promote the art and science of dentistry  promote the highest standards of professional dental care  enhance the professional lives of members

MEMBERSHIP



Over 3500 Members in private and public practice, along with students and international dental graduates

MEMBER SERVICES & FUNCTIONS

 

Continuing Professional Development Program Dental health education (e.g. Dental Health Week and Facebook page ‘Caring for your kids’ teeth’) Community Relations – dispute resolution Code of Ethics (Conduct) Recent and Overseas Graduates’ support Practice staff Training seminars Practice+ (Consulting Services) and PracAdmin Network Member Benefits(eg Professional Insurances; preferred suppliers) IR advice and representation (via the ADA HR Advisory Service on 1300ADAINC) Defence and legal support eviDent Dental Practice Based Research Network (in partnership with the Oral Health CRC) Quality Assurance (including Member Assistance Program) Benevolent Fund Reading Room and resource collection Advocacy and representations to Government bodies Superannuation (Professional Provident Fund) Sports, social functions and community and charitable activities Publications – Newsletter, Journal, Manuals etc.

Website, including many members’ only resources e.g. employment register (find us at www.adavb.net)

                 DISPUTE RESOLUTION SERVICES

The Branch provides information to the public on dental matters, and offers a conciliation service to assist patients to resolve disputes with members.

Information on treatments, facilities, dental issues and careers is available.

PRESIDENT Dr Bob Cvetkovic BDSc

Bob is a general dentist in Camberwell.

CEO Director, eviDent DPBRN Mr Garry Pearson MEdSt, HDT (SAC) FAIM, MAICD Garry joined the ADAVB in 1991 after senior executive roles in the Victorian Education Ministry

www.adavb.net AUSTRALIAN DENTAL ASSOCIATION VICTORIAN BRANCH INC. LEVEL 3, 10 YARRA ST. (P.O.BOX 9015) SOUTH YARRA 3141 TEL: (03) 8825 4600 FAX: (03) 8825 4644 ask@adavb.org ABN 80 263 088 594 ARBN 152 948 680 Reg’d Assoc. No. A0022649E

ADAVB INC. 2014/15 PAGE 2 _____________________________________________________________________________________ HISTORY

The ADAVB was formed in 1928 through the amalgamation of the Odontological Society of Victoria (est. 1884) and the Australian College of Dentistry Alumni Society (est. 1915).

The ADAVB was formally incorporated in 1991.

In April 2008, the ADAVB office relocated to Level 3, 10 Yarra St. South Yarra (opposite the South Yarra Station).

LEGAL STATUS

The ADAVB is incorporated under the Associations Incorporation Act (Vic) and as such, it is a not for profit organisation.

AFFILIATIONS

The Branch is a member of the national organisation, the Australian Dental Association Inc., and thus provides automatic membership of the Federal association.

The Branch is also a member of:  Australian Industry Group  Australian Taxpayers Association, and  Australian Institute of Management.

AFFILIATED SOCIETIES/ GROUPS

     

Australian Society of Orthodontists Australian Society of Periodontology Australian Society of Endodontology Australian Prosthodontic Society Australian and New Zealand Society of Pediatric Dentistry Various other societies and Dental Study Groups

REPRESENTATION ON STATUTORY AND OTHER BODIES

   

Cancer Council of Victoria Department of Health reference and working groups Department of Oral Health, La Trobe University Faculty of Medicine, Dentistry and Health Sciences, The University of Melbourne RMIT University

 COMMUNICATIONS ADVISORS

Porter Novelli

BANK

Westpac, South Yarra Branch

AUDITORS

Advantage Advisors (previously known as Bentleys)

SOLICITORS

Health Legal

STAFF

The Branch employs 21 staff (17.6 EFT), including four senior dentists (each of whom works part time) to provide advice to the public and members

June 2014 ABOUT ADAVB 2014-15 Jun 14.doc