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Health Complaints (Code of Conduct) Amendment Bill 2018


Rosalie Woodruff MP

Rosalie Woodruff MP  -  Tuesday, 28 August 2018

Tags: Legislation

Dr WOODRUFF (Franklin) - Mr Deputy Speaker, the Greens will be supporting the bill.  It has had a long history at the federal level and is the result of extensive work by COAG to tidy up an area where the law has been silent.  For many of the cases that are provided in the background material from the COAG consultation paper and the ultimate recommendations it is manifestly important that a code of conduct be created so that penalties for prohibition to practice could be the result.

We have concerns about some of the cases mentioned in the COAG case studies of harm associated with unregistered health care workers and the potential grey area within which this code of conduct could be applied.  We are concerned at some of the wording around the point that the commissioner must be satisfied it is necessary to make a prohibition order to avoid an immediate risk to the health, safety or welfare of the public.  That is a very wide term and we seek the minister's comments on what that is intended to encompass.

I want to talk about the case studies that were discussed in the final report on the national code of conduct for healthcare workers on which this bill has been drafted and the recommendation it seeks to enact.  About 15 case studies were provided as evidence to that report.  A number of them are about matters of sexual assault, rape or sexual harassment, intimidation or other inappropriate relationships that have been conducted by a healthcare practitioner and their client.  These are clearly cases which undisputedly ought to be condemned.  There needs to be a mechanism in place to make sure people do not do what has been done in a number of these cases, which is either jump state and operate in another state or jump profession and operate under another healthcare classification.

There was an example of a chiropractor who, despite being deregistered as a chiropractor, set up as a naturopath, was investigated and prohibited from working for three years but moved to another state and established themselves in that state and undertook meditation classes and so on.  There are serious, egregious, condemnable acts that have occurred by people who have to date been outside of a code of conduct that would bring them to account.

There are a number of other cases outlined as examples of why we need a code of conduct that requires more investigation.  They raise concerns about the nature of evidence in the medical treatment and therapeutic profession and a requirement to refer.  This is the grey area I am referring to.  There were two cases relating to the treatment of cancer.  In one case a Victorian-based cancer care provider was successfully prosecuted in 2008 by the Australian Competition and Consumer Commission for a range of breaches of the Trade Practices Act associated with his clinics.  The court found that the practitioner and his company engaged in misleading or deceptive conduct and made false or misleading representations by representing two people suffering terminal illnesses including cancer to their families that this person's system of care could cure their cancer, reverse, stop or slow its progress and prolong the life of the person.  Also, the system of care he provided was based on generally accepted science which the court found was not correct.

The court also found that the practitioner had engaged in unconscionable conduct towards highly vulnerable consumers when signing them to pay up for treatment and significant sums of money were extracted from those people and their families on the basis of false hopes that the sufferers could be cured or their lives prolonged.  What a nasty example of a human being that person was.  What a clearly awful person to take advantage of people suffering at the end stage of their life and to offer that false hope.  There is no doubt in that instance that that is an action to be condemned.

The other case raises some other issues for me.  The Western Australian Coroner, investigating the death of a woman in June 2010, found that her death five years beforehand was a result of complications of metastatic rectal cancer.  The coroner found while the deceased may have been receptive to alternative approaches to medicine, she was not ideologically opposed to mainstream medicine.  However, she decided not to undertake the surgery recommended by her medical specialist and relied on the treatment offered by her homeopath.  The coroner noted that this case highlighted the importance of patients suffering from cancer making informed, sound decisions about their treatment.  In this case, the deceased paid a terrible price for poor decision-making and the coroner noted she was surrounded by misinformation and poor science.

Although her treating surgeon and mainstream general practitioner provided clear and reliable information, she received mixed messages from a number of different sources which caused her to initially delay necessary surgery and ultimately decided not to have surgery until it was too late.  The coroner found her homeopath was not a competent health professional and she had minimal understanding of the relevant health issues but unfortunately, that had not prevented her from treating the deceased as a patient.

This strikes me as a completely different example and goes to the responsibility of a healthcare practitioner to provide a range of health options to a person and the willingness of the patient to take them up.  I can speak from personal experience, knowing a person in this situation right now, and it is a really difficult space.  This person was diagnosed with breast cancer and offered standard breast cancer treatment and decided not to take that path but to pursue a range of other therapeutic options.  This person receives care from other therapeutic practitioners but I am quite confident they are not unreasonably directing her in her decision not to take up standard allopathic medicine.  It is her determination, for a whole range of reasons she has in herself, that she will not take up chemical or radiology treatment, despite the fact the prognosis, according to the statistics, would be very good for her.  Her family and friends are in a really difficult situation, not wanting to undermine her decision, which is a very personal one, and here she is going down the path, and has been for a number of years, where the options for standard medical treatment are diminishingly small, if they are there at all.

I hope the best for her, but in these situations we can never be confident of what causes a person to survive or to die.  We can have the statistics, the population average, the mean and standard deviations for any treatment, but for every individual we cannot be confident of exactly what has led to a successful recovery or not.  Likewise, it is a dangerous space to assume that people ought not have the right to make the decisions that feel correct for them in their own life about the form of treatment they take or do not take when they have a diagnosis of a terminal illness such as cancer.

I also want to raise the point that the Coroner found in the case presented as part of the final report, the national code of conduct for healthcare workers, as an example of why we need this code of conduct.  Let us remember that the bill before us would enable a commissioner effectively to strike off a person if they do not behave according to the code of conduct.  It gives a lot of power to a commissioner to remove the licence to operate as a healthcare worker.  The example provided is used because there was a failure by this practitioner to refer to standard medical treatment.  I do not understand if the same code of conduct operates for general practitioners or to conventional medical treatments.  Perhaps the Minister for Health minister could provide some advice.  It is concerning when the same code of conduct refers to other forms of treatment therapies which we now know to be highly effective.  You could mount a case that there has been has been a failure to refer general practitioners to meditation and mindfulness, for example, for people with mental health anxieties.

We know there has been a huge increase in prescription medications for people with emotional and mental health distress.  There is a huge pharmacological industry in SSRIs and that is now an area of prescription medicine that has become highly controversial.  The reason it has become highly controversial is because of the history of the research undertaken on SSRIs, the involvement of pharmaceutical companies in supporting that research and the lack of extensive and best practice peer review of that research.  What we have is a referral approach or a treatment approach prescribed now for 10 to 15 years - 20 years - for people with mental health issues, particularly anxiety, that now has a big question mark over the top of it.  Meanwhile we have had an approach, a therapy of mindfulness and meditation, which has been quietly building.  It was much criticised as a 'Mickey Mouse' therapy for a long time by some people in traditional medical circles.  Increasingly, it is now understood to have value for certain people.  It is not a one‑size‑fits all prescription; it is rarely the case in medicine and treatment that there is a one‑size-fits all pill, intervention or therapy.

There is a whole field of work around herbal remedies that will never have an evidence base, at least never in the sort of society we live in at the moment.  Research into remedies, therapies and drugs can only be done by very large, hugely funded trials undertaken at universities and research schools that cost a lot of money.  It is only spent by companies when they feel that they can recoup the costs.  Just because there is a lack of evidence does not necessarily imply a lack of efficacy.

I suppose in reading through these cases I was concerned at that example because it is quite different to clearly encouraging or dissuading a person from seeking medical treatment.  In my mind it is really unclear from that example that there was anything concerning in that behaviour.  It is hard to read it into that case that that was concerning.  It may have been very active and possibly might have made her family very unhappy at the choice that woman made.  That does not necessarily mean she did not have agency and it was not her decision to make that choice.

I do not need to labour the point.  I would like to ask a few more questions in committee about the details of the clauses, but in principle having everybody who makes claims about the human health benefits of a therapy or an intervention covered by a code of conduct is a manifestly important step, and we support that.  The details of exactly who will be covered and the ability to appeal a prohibition are questions we want to raise in committee.