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Wednesday, 22 August 2001
Page: 30058


Mr GRIFFIN (11:33 AM) —The Health and Aged Care Legislation Amendment (Application of Criminal Code) Bill 2001 makes a series of amendments to 15 pieces of legislation in the Health and Aged Care portfolio. Like several similar bills for other portfolios, the purpose of the bill is to harmonise a number of offence creating and related provisions with the general principles of criminal responsibility, as codified in chapter 2 of the Criminal Code.

The Criminal Code, which is contained in the schedules to the Criminal Code Act 1995, will alter the way in which Commonwealth criminal offence provisions are interpreted regarding offences contained in the legislation in the Health and Aged Care portfolio. If the legislation containing offence provisions is not amended by the end of this year to conform with chapter 2 of the code, the code may alter the interpretation of existing offence provisions. The opposition supports the concept of applying a standard test of criminal responsibility across similar legislation, and therefore supports the general intent of this measure.

Expressed simply, it means that it will be necessary to show both the physical element of the offence and the fault element. In situations where there is a strict liability, it is not necessary to show the fault element, and the defendant has the defence of being able to show they acted under a reasonable but mistaken belief about certain facts. These are not obscure legal points, but important questions in the growing area of medical litigation. Patients have every right to expect that they get quality health care, in whatever setting they seek treatment. We have known since 1996 that the rate of medical injuries in Australia is at very high levels by international comparisons and that much needs to be done to improve the quality and safety of medical practice.

It is a matter of regret that the current minister has wasted five years before taking action on these issues. He recently boasted about the newly established Council on Safety and Quality in Health Care and the National Institute on Clinical Effectiveness, but if he had not been so slow these organisations could now be celebrating their fifth birthday instead of just starting out. Labor will actively drive the health quality agenda through our proposed national health commission and we will tackle the root causes of medical injuries.

I think everyone involved in this issue would prefer that Australia does not go down the American road, where every event in a hospital runs the risk of ending up in a courtroom. The TV dramas ER and The Practice are entertaining, but they demonstrate to Australians why we are much better off here than in the USA. We should focus on ensuring that medical injuries are minimised and that doctors do not live in fear of having to justify every action in a criminal court. This bill will set a standard that has an appropriate balance between ensuring that doctors are accountable for criminal negligence and that they have appropriate defences for actions which are taken on reasonable grounds. Labor want Australia to enjoy quality medicine and to do this we need to establish the right mechanism for accountability and to ensure there are not perverse incentives for excessively defensive medicine.

In closing, I would like to mention another area where Labor has adopted groundbreaking policy that will encourage better quality medical practice and actions within the profession to reduce the frequency of adverse events. Medical indemnity insurance has been spinning out of control in recent years because the current government has been unwilling to tackle the underlying pressures which are making professional indemnity insurance unaffordable for many doctors—in particular, obstetricians and GPs in rural areas. Recently the Leader of the Opposition and the member for Jagajaga released a detailed package of reforms which is intended to restore stability to insurance premiums, increase the security for patients that they will be covered by insurance should they suffer a medical injury and make clearer to doctors what they need to do to ensure they are practising in accordance with the best current medical practices.

Labor's reform package for medical indemnity will: reduce the frequency of medical injuries by setting national benchmarks and guidelines, and promoting the use of information technologies to help doctors decide on the best treatment and avoid misdiagnosis or incorrect treatment; promote structured settlements by changing the tax treatment of periodic payments to ensure injured patients have adequate regular payments to cover their health care costs for the rest of their lives; establish a national database on health care litigation to target the problem areas and to ensure that adequate support mechanisms are in place; seek consistent state reforms to legislation covering court procedures, the calculation of damages and the regulation of medical indemnity organisations; tighten the prudential regulation of medical indemnity insurance to ensure that all funds operate soundly and have transparent accounts, while the open discretion held by some medical defence mutuals to decline coverage will be removed; require all doctors to hold the appropriate insurance for the work they undertake, while red tape will be reduced by harmonising requirements for doctor registration; improve risk management by medical indemnity funds, including working with the royal colleges to reduce the rate of medical injuries and provide incentives for quality practice; and seek to refer the current problems with indemnity insurance for midwives to the Senate inquiry into nursing to look at options to ensure that home births remain an option for expectant mothers. The bottom line is that patients must have confidence that when they seek medical treatment they will get the best quality care with minimal risk of something going wrong. They also must be confident that, if they suffer through negligence, they will be properly cared for.

Labor supports the bill, which will put in place another element in the broad picture of the legal framework under which people in the health sector will work. I hope the government will make suitable arrangements to implement the changes and to educate people about the implications of the changes and the test of proof of criminal negligence as part of the necessary broader education of health professionals about the legal implications of their actions in delivering services to the Australian public.