Thursday, 24 February 2022
Bills
Health Legislation Amendment (Quality and Safety) Bill 2021
Health Legislation Amendment (Quality and Safety) Bill 2021
Second reading
Debate resumed on motion of Ms SYMES:
That the bill be now read a second time.
Ms CROZIER (Southern Metropolitan) (15:52): I am very pleased to be able to finally get to speak to this bill, which is an important bill that we are debating this afternoon. It is important because it is around patient safety and quality within our health services. The bill does a number of things. It introduces a duty of candour. I want to go to that in a minute, but it also has been brought about because of the number of occurrences of sentinel events in our hospital system. I know of many issues—too many issues—but I do understand that some of these issues do occur from time to time and that the government is trying to address some of those issues by providing for the Secretary of the Department of Health to appoint a chief quality and safety officer. This new officer will be responsible for conducting quality and safety reviews of health and ambulance services. They will be looking at the systemic issues rather than any individual incident that might have occurred as a result of something adverse that has happened to a patient under a health service’s care.
The bill also provides that the health services may conduct a serious adverse patient safety event review—what is referred to as a SAPSE review—when one or more individuals are harmed and that harm falls under a class of events prescribed in the regulations that will be put in place. The bill protects members of review panels and those providing information to reviews against any liability, and I will have questions to the minister around this when we get to that. I thank the government for the briefing on this some time ago, but I do have some questions that I would like to ask in committee in relation to some of these aspects.
If I can just put on record that Mr Grimley unfortunately has had to leave the Parliament. He was very interested in this bill. We have spoken about it, and there are some issues that he also has in relation to the bill. I think it is fair to say that he is disappointed that he cannot be here to speak on it, but I will also put those questions that his office has provided to me in the committee stage when we get to that point. They are around some of those issues in relation to what a patient who has been adversely affected and their family can do.
The bill also introduces a new duty of candour that requires health and ambulance services to inform patients and/or their families when harm has occurred to a patient during their treatment. The health and ambulance services are therefore required to apologise to those who that harm has occurred to. The definition of ‘statutory duty of candour’ is:
… a legal obligation to ensure that consumers of healthcare and their families are apologised to, and communicated with, openly and honestly when things have gone wrong in their care.
Now, on the face of it that can look like, ‘Well, what happens when an adverse event happens? Where do people go? What recourse is there for patients who have had a tragic outcome, and where do their families go?’. We can talk about that further in the committee stage, and I think the government will be able to provide some assurances around those aspects.
When the government did speak to us in the briefing they actually referred to a case that I am familiar with because I spoke to the patient’s parents. They came to my office. It is a very sad case—it was a tragic case of events—and quite rightly the parents of Antoinette O’Brien were so concerned about what had happened to their daughter, and they felt that there was nowhere for them to go. I did have significant correspondence with them, and they have provided, I think, some very good information on the issues around Safer Care Victoria. The parents of Antoinette came to me—I think it was in 2019—and I did correspond with them. I said to them in a letter that I wrote to them after they came to see me in November of 2019 that Safer Care Victoria, in my understanding, did acknowledge that legislative changes were being considered by the government and it noted that private hospital regulations were to come into effect on 1 July 2018, so this was a year prior to when they had come to see me. The health services regulations were amended in 2018 specifically around the issue around compelling private hospitals to provide the Secretary of the Department of Health and Human Services with information relating to sentinel events, so I think there was some work being done by the department. And with some of those issues that have arisen out of that, hopefully this piece of legislation will address some of those issues. But this was, as I said, a tragic case. It was a very, very sad case of events that occurred. I do not need to go into those details, but I do think that a significant amount of work has been done off the back of what has been provided by those that were involved in that case.
The other thing that I wanted to raise was that this piece of legislation came out of a reform that came from Targeting Zero: Supporting the Victorian Hospital System to Eliminate Avoidable Harm and Strengthen Quality of Care, and recommendation 5.3 was the recommendation to bring in a statutory duty of candour. Now, that recommendation in that report states:
That a statutory Duty of Candour be introduced that requires all hospitals to ensure that any person harmed while receiving care is informed of this fact and apologised to by an appropriately trained professional in a manner consistent with the national Open Disclosure Framework.
Sitting suspended 4.00 pm until 4.18 pm.
Ms CROZIER: Now that we have resumed, as I was saying prior to that short adjournment, the recommendation from this task force committee was to have that statutory duty of candour. There were other aspects in that report, and it goes on to speak about how improved transparency will not just provide a greater ability to have accountability for the health services but foster an environment to enable people to come forward. I note that the Report of the Review of Hospital Safety and Quality Assurance in Victoria does say:
There is significant appetite in the hospital sector for greater transparency, and a strong belief that members of the public are entitled to it. Nevertheless, the transition is likely to be a difficult one.
I think that is an important aspect, because people will understandably want to understand what their rights are, what they can do, where they go to, whether an apology is enough and how that protects them if there is a serious event where they need to take out legal proceedings. And I want to tease that out in committee with the minister, who is aware that I will be asking those questions. I note this report that was provided also says:
In addition to these steps, the department should ensure that its own approach to hospital performance reflects a just culture.
It is looking at striking the balance between accountability and how it can be managed.
Now, I have no doubt that over the last two years there have been record numbers of sentinel events. I do not know what those numbers are—I would like to understand how many events have occurred—but I know from what I have heard from patients’ families and from nurses that have contacted me, concerned about what has happened, of very significant events where people have suicided in hospital. These are serious issues where those frontline workers have felt that they have not been supported, that they have not been able to be there for their patients. So I do feel that there are a number of these issues that have not been spoken about publicly. I do not know the details, so I cannot go into those events per se—I mean, only the details I have been told, of course—but what I am saying is: what recourse is there for those people that have these very adverse events and tragically end up dying in a health service? What recourse do their family members have in relation to that?
Now, as I mentioned previously, I know that Mr Grimley had some questions. He said that under the bill, if duty-of-candour documents, apart from the apology itself or other documents outlined in the bill, are given to a patient or their family, these cannot be used in legal proceedings, in FOIs or accessed from My Health Record, and that includes those SAPSE reports that I spoke about earlier. So what recourse will a family member or a patient have in those instances where this bill protects all of that? As I said, I want to have that teased out, and I will ask further questions around that.
What I do think is the intent here is that the government is trying to address some of those issues where family members have struggled to get answers out of Safer Care Victoria. I am certainly aware of family members who have had tragic outcomes who have felt very, very stifled by Safer Care Victoria. They have felt that they have not got the answers that they deserve, and they are still fighting to get the answers. This is years after a sentinel event and very sad circumstances. I do feel for those patients. I do want to understand what rights they will have and what the obligations of the health services are if an apology is given and a family member cannot access those health records. Equally I do understand that there are incidents in our hospitals and health services that do occur and are no-one’s fault. Some of these incidents just happen, and in those cases this bill will provide that ability to acknowledge that something has gone wrong, that there was a one-off issue, and the hospital or the health service can give that apology and hopefully give some closure to a patient or a family member. So I do understand where this is coming from with that balance, what this bill is trying to achieve. I do also think that there have been some other concerns that people need to have an ability to seek the redress that they want.
Now, there are cases, and I have got one case from a constituent who wrote to me after they were aware this bill was coming into the Parliament, and their claims are very serious. They want to know, ‘Well, where can I go?’, in relation to what they feel: that mistakes were made and that the events in the hospital—their issue, what happened to them—were not recorded properly or appropriately. And I do think that there are cases that are legitimate where this has occurred, and there are mechanisms through the Australian Health Practitioner Regulation Agency or the health complaints commissioner, if it is a patient, that people can go to; however, some of these do get dragged out for a very long time and people still do not have that experience that they feel that they deserve. So I do hope that this bill will allow those people to pursue avenues to get the answers that they need, is probably what I am saying.
And whilst I am on it, health services have been under enormous pressure over the last two years. We all know that. There has been a lack of planning and preparation for many of the issues that we are currently experiencing, and I have spoken in this place extensively around the suspension of elective surgeries and the pressure that is on patients. Some of the stories that I am hearing around basic care in our hospitals really quite horrify me, and there are issues in our hospitals. There is no denying it. I am hearing of where patients are not being attended to, they are not getting the necessary basic nursing care, because there are just not enough staff.
I spoke to a gentleman on Sunday who said his daughter was delivering babies. Well, she has not delivered a baby for many, many years. She works in a highly specialised area, and she has been put into that area to deliver babies. Again, when we have got the government saying, ‘We’re training up staff in four days to work in intensive care’, these issues are going to happen. Sentinel events are going to happen. Tragic issues are going to arise, and I am concerned about that. So much has gone on, so much where our health services are struggling—and this is not just because of COVID, these issues were there bubbling along prior to COVID. COVID has exacerbated them. We know that there is pressure on the system. There is absolutely, and everyone will tell you that.
I am concerned about the amalgamations of our hospitals in country areas and taking away some local input, because that provides a very good overview in terms of local community members who can provide some expertise on their hospital boards, and what this government is doing is amalgamating some of those health services. I find that concerning—just getting a very big machine. We have got a big government. They love big government, and I think that we have got to be very, very careful about how we manage this. We saw the localised delivery of services through COVID in the first year in 2020 in Colac and how those local systems came into play, and it really actually helped Colac manage that outbreak when they had that in mid-2020. Having a broad-spread big machine I am not sure is quite the way to go in all of these aspects, but I will have more to say about that at some other opportunity.
To get back to this bill, this bill is an important bill because of what it is asking patients, their family members and hospital and health services to do to provide that we do have high-quality care in this state. It has slipped. I hate saying this, because I have come out of the system. I am a proud former clinician who thinks that we do have a fantastic health service, but it has slipped. There is no denying that the services are not as good as what they could be and should be, and that is not any reflection on those people that work in the health services—far from it. They are doing everything they can. It is because of policy decisions and underinvestment over many, many years, and that is what I am concerned about. I do not want the quality of our health services to fall any further. Equally, I want people to be able to be supported when they have got concerns and I want those that work in our health service to be able to speak out freely. I do not think they can at the moment. I think some of them are too afraid—too afraid to speak to me as the Shadow Minister for Health, because they are frightened they might lose their jobs because of what the government might think. I find it just extraordinary in this day and age that people feel so intimidated that they cannot come and speak to somebody like me as their shadow health minister or their local MP because of the intimidation and threats that are there.
In this report that I referred to earlier it says the department must invest in the measurement of safety culture. It talks about the People Matter survey of hospital staff, but the uptake is so poor. What this survey does is gauge staff opinion on a range of organisational issues, including management, retention and bullying, and it has a number of questions specific to safety culture, but as this report says, ‘Unfortunately, staff participation in the survey is often low’. We have to give support to those staff members to be able to speak freely and to speak out about the problems, because there are problems. It is not a bed of roses like the government continues to paint it. Of course there are challenges. Understandably there are challenges and there are failings. Some of those failings could have been avoided if there had been better decisions made and better and more investment in the right areas—not just now but years ago. That is what I am critical about, and I will continue to question and point those failings out. I will continue to do that. I make no bones about it. But if this bill does provide some clarity around identifying gaps and systemic issues and enabling our health services to improve the quality and safety of patient care, then I do hope that what this bill says it will do it does do exactly.
Ms WATT (Northern Metropolitan) (16:32): I too, like Ms Crozier, am keen to make my contribution to this bill, because we have seen very much that what is to be debated today is incredibly important. I myself have seen firsthand the difference that governments can make in people’s lives, and the Health Legislation Amendment (Quality and Safety) Bill 2021 we are debating today is just another example of the Andrews Labor government delivering on our commitment to improve the quality and safety of Victoria’s health system.
Since we were elected in 2014 the Andrews Labor government has worked tirelessly to invest in our health system at unprecedented levels. We are creating stronger nurse-to-patient ratios, building world-class hospitals, legislating free dental care in schools, and we commissioned Australia’s first royal commission into mental health. The global coronavirus pandemic has also shown the world just how valuable and important health workers are. I would like to just take a quick moment to acknowledge and thank everyone who has worked—and continues to work around the clock—to keep our community safe and well during these past couple of years.
What this bill represents is the final stage of legislative reform arising from the 2016 report Targeting Zero, the review of hospital safety and quality assurance in Victoria led by Professor Stephen Duckett. Targeting Zero was commissioned by the then Minister for Health following the discovery of a cluster of tragically avoidable perinatal deaths in Djerriwarrh Health Services. The Targeting Zero review provided us with a detailed and extensive analysis of how the Department of Health oversees and supports quality and safety of care across the Victorian health system. It captured the views and experiences of patients, clinicians, hospital managers and boards about how to make Victoria’s healthcare system safer. Gaps and failings in quality and safety systems were highlighted as well as the need for action and leadership to achieve change and prioritise the safety of patients.
On 14 October 2016 the then Minister for Health committed in principle to adopting all the recommendations of the Targeting Zero report, including those which require legislative change. These reforms are the most significant overhaul of Victoria’s health system in decades. An extensive consultation process has been undertaken with relevant stakeholders and 43 key organisations in the field, including health service providers, regulators, unions and professional associations, insurers, legal firms, ombudsmen, commissioners and peak bodies representing both providers and consumers. The expert working group appointed by the then Minister for Health to advise on legislative reforms arising from the Targeting Zero report recommended a high-level duty-of-candour law where health services must apologise to any person seriously harmed while receiving care and explain what has gone wrong and what actions will be taken, complementing existing requirements under the Australian Commission on Safety and Quality in Health Care’s open disclosure framework and statutory protections for apologies and serious adverse patient safety event (SAPSE) reviews, as are currently in place in New South Wales, South Australia and Queensland.
The Targeting Zero report has also helped improve the Victorian health system with quality and safety monitoring, clinical governance and also reporting, and of the 179 recommendations well over 70 per cent have been fully completed. Previous legislative changes arising from the report were implemented in the Health Legislation Amendment (Quality and Safety) Act 2017, and information-sharing provisions were implemented in the Health Legislation Amendment and Repeal Act 2019. What this bill does is help to improve the quality and safety of health services in Victoria and facilitate more patient-focused and accountable service provision by increasing Safer Care Victoria’s ability to identify and assess quality and safety risks and support remediation, mitigation and improvement where risks are found; encouraging and facilitating full and frank participation in candour and SAPSE review processes to drive continuous improvement of quality and safety; helping to foster an open and honest culture in health services by elevating obligations for open disclosure, candour and apologies; and ensuring the Victorian Perioperative Consultative Council has prerequisite independent powers and protections to operate effectively to reduce perioperative mortality.
There is indeed strong evidence of sector support for this bill, with public consultation in 2020–21 demonstrating 86 per cent support for the proposal for Victorian candour and open disclosure guidelines and 90 per cent support for the proposal to implement legal protections for serious adverse patient safety reviews. Our hardworking nurses, doctors, paramedics and other healthcare workers provide all Victorians with high-quality care, but there is always more that can be done. This bill will help to ensure that in those few instances where something does go wrong patients will always get the answers they need and lessons are always learned.
I am glad to see included in this bill a strengthening of the role of Safer Care Victoria. The Andrews Labor government created Safer Care Victoria in 2017 to improve the oversight of quality and safety in Victoria’s hospitals and health services. Since it commenced, Safer Care Victoria has played a significant role in championing world-class quality and safety systems. Their work has included monitoring patient safety risks, overseeing health service reviews of sentinel events, conducting complex safety reviews and issuing high-level alerts to mitigate safety risks in Victorian health care. As someone who has undertaken significant training delivered by Safer Care Victoria as a member of various clinical governance committees across Victorian health services, for health services across our state I speak with much respect for the clinical governance specialists in both health service operations and also on our boards. So thank you to them for all that they have done. Some names particularly come to mind, but I will not share them here today without their express permission. There are some real champions of clinical governance reform in our state, and I thank them for their continued leadership.
This bill will amend the Health Services Act 1988 to strengthen Safer Care Victoria’s functions, including establishing the statutory office of chief quality and safety officer and creating the authorising environment required for them to conduct quality and safety reviews of health services, including authorisation to inspect and audit hospitals—something which I indeed welcome. Despite what might be claimed by those opposite, the amendments in this bill do not create a new government agency; rather they formalise and strengthen the current working arrangements between the Department of Health, Safer Care Victoria and health service entities, with greater oversight and requirements for quality and safety review processes. The amendments in this bill are in line with the intent that Safer Care Victoria be viewed as an independent leader in clinical expertise. The need to increase transparency underpins many of the amendments in this bill, and as such Safer Care Victoria will continue to publish their annual sentinel events report, and a summary and high-level overview of the quality and safety reviews conducted by the chief quality and safety officer will also be included in the Safer Care Victoria annual report.
What the Targeting Zero report also makes clear is that discouraging disclosure and honest discussion of errors and other health system safety issues can result in dangerous outcomes that extend harm on to patients. It creates an environment that disrupts mitigation of risks and acts as a barrier to continuous improvement, thereby perpetrating and extending harm to patients. As quoted in the report:
… ‘the open, honest, and timely disclosure of medical error to patients … is ethically, morally, and professionally expected of clinicians … [it] should be a “no brainer”’ …
There was extensive consultation undertaken, which revealed a significant appetite in the health sector for greater transparency and a strong belief that members of the Victorian public are entitled to it.
The Targeting Zero report found a lack of open disclosure with patients, and almost half of hospital board members were not familiar with the national framework. To restore the community’s trust in the Victorian health system, health services will now have a legislated duty, regardless of whether a complaint has been made or a patient has made inquiries, to issue an apology, a description of their response and steps taken to prevent recurrence, provided that the patient has not opted out of receiving this information.
The fundamental purpose of a statutory duty of candour and open disclosure in general is to engender a culture of honesty and openness in our hospitals and to improve the quality of health care, with the focus on safety and person-centredness. Open and honest communication with consumers and their families and carers following healthcare incidents ensures a patient-centred approach, thereby improving patient experience, patient outcomes and the quality of service provision. The provisions in this bill complement health services’ existing non-legislative obligation to conduct an open disclosure process with patients.
The advantage of establishing a duty of candour in statute is that it elevates the importance of open disclosure practice to all those involved in health care, most particularly to boards and managers of health services. In Victoria the duty of candour will apply to public health services, public hospitals, multipurpose services, denominational hospitals, private hospitals, day procedure hospitals, ambulance services, non-emergency patient transport services, the Victorian Institute of Forensic Mental Health and other entities as set out in regulations that provide health services. In making their recommendations for a statutory duty the expert working group recognised, as did the authors of Targeting Zero, the influence of organisational culture and the need to establish a just culture within the health service environment. Elevating responsibility for candour to the board level will help us drive this cultural change.
To meet the objectives of providing certainty and supporting good practice while at the same time avoiding unnecessary inflexibility, the statutory duty of candour in this bill is purposely high level. Safer Care Victoria will undertake further consultation with the sector to develop the Victorian candour and open disclosure guidelines over the coming months to support practical implementation, providing clear guidance and support to health services to understand how they can comply with their obligations under the new reforms.
The statutory duty of candour will ensure accountability across Victoria, drive cultural change in health services and enable greater transparency. This transparency around sharing information with patients will allow health services to further recognise the value of and incorporate the perspectives and experiences of patients. We will continue to engage with Victorian health service entities to encourage transparency through making metrics on the number of apologies and SAPSE reviews conducted available to the public. Victorian health services will continue to report sentinel events to Safer Care Victoria, and high-level insights and metrics will be available to the public in Safer Care Victoria’s annual sentinel events report and online public databases.
Another amendment in this bill is encouraging and facilitating full and frank participation in service reviews. We know that most errors are committed by good, hardworking people trying to do the right thing. Therefore the traditional focus on identifying who is at fault is a distraction. It is far more productive to identify error-prone situations and settings and to implement systems that prevent errors, catch errors, before they cause harm or mitigate harm from errors that do reach patients.
As I mentioned earlier, this bill ensures that the Victorian Perioperative Consultative Council has prerequisite independent powers and protections to operate effectively to reduce perioperative mortality. These changes will ensure a high level of legal protection for case and event analysis and review, strengthen escalation processes for mandatory rather than voluntary public interest reporting of avoidable harm and require a report to be provided to the Secretary of the Department of Health any time the council determines an event of perioperative mortality or severe morbidity is likely to have been preventable. Importantly, the Victorian Perioperative Consultative Council will now be able to engage in two-way feedback with health services who report morbidity and mortality cases to them. This will improve the publication of guidelines and the prevention and response to adverse perioperative quality and safety events in Victoria, another important step in Victoria in creating a culture in our health system that prioritises the sharing of learnings to create systemic change and minimise any future harm. The Victorian Perioperative Consultative Council was established in response to the identified need for an independent, coherent and unified system for hospital safety reporting and mortality review, specifically in perioperative settings, and this bill helps the council to continue to do just that. This bill will endow the Victorian Perioperative Consultative Council with similar provisions to those that apply to the Consultative Council on Obstetric and Paediatric Mortality and Morbidity, for which amendments were made in 2019 to the Public Health and Wellbeing Act 2008.
Victoria should also always strive to be at the forefront of health care in Australia and internationally. Many prerequisites for high-quality and safe care are already in place here, but we know that we can do better. Inherent complexity and risk in health is why our healthcare system needs strong mechanisms to prevent, detect and address adverse events and to improve the baseline level of care. The goal of zero avoidable harm is an ambitious target but one we must have an obligation to do everything we can to achieve. World-class care must be matched by a world-class quality and safety system, and that is exactly what the reforms in this bill will deliver. I commend them.
Dr KIEU (South Eastern Metropolitan) (16:47): I rise to speak to and support the Health Legislation Amendment (Quality and Safety) Bill 2021. This is yet another example of our government delivering on our commitment to improve the quality and also the safety of our state health system. We have strived and have been at the forefront of health care in Australia and internationally, but it is not always that honest mistakes and adverse events are avoidable. However, they are rarely the result of individual incompetence or malice. This bill is a step towards the goal of zero avoidable harm, which is a very ambitious target but one that we have an obligation to do everything we can to achieve.
I just want to emphasise the key message of the bill, which is to foster an open and honest culture in the health services via the duty of candour. It has been reported and highlighted that discouraging disclosure and honest discussion of errors, mistakes and other health system safety issues is very dangerous. It could create an environment that disrupts the mitigation of risk and could act as a barrier to continuous improvement and as a result perpetuate and extend harm to patients. This bill will create a statutory duty of candour that will (1) apply to incidents of a high severity rating, (2) complement existing obligations under the Australian open disclosure framework and (3) be supported by the Victorian candour and open disclosure guidelines that will offer detailed instructions to the health services on apologies, explanations and also details of preventative action to be taken.
The advantage of establishing the duty of candour is that it elevates the importance of open disclosure practice to all those involved in health care, particularly toward managers of the health services. An apology will be a mandatory requirement of the statutory duty of candour. This bill will create protections so that an apology does not necessarily constitute an admission of fault and that the health services will be protected from respective litigations. In the health service context that means that an apology will be an expression of sympathy, of regret and of compassion, but I want to emphasise that immunity protections in this bill do not extend to professional misconduct and criminal offences. The compliance and enforcement actions for these offences of course will be available and still be managed by appropriate law enforcement agencies and regulatory bodies.
Following the discovery of a cluster of tragically avoidable perinatal deaths at the Djerriwarrh Health Services the Minister for Health commissioned the Targeting Zero inquiry, and since the report of Targeting Zero the health system has improved on quality and safety monitoring, clinical governance and reporting. Previous legislative changes arising from the report were implemented in the Health Legislation Amendment (Quality and Safety) Act 2017 and the information-sharing provisions implemented by the Health Legislation Amendment and Repeal Act 2019. I am proud that this bill will result in the further implementation of the recommendations from the Targeting Zero report, strengthening the role of Safer Care Victoria to drive statewide improvement and achieving the important balance between transparency, accountability and protections to prevent harm through robust quality and safety reviews. These reforms will also make Victoria the first jurisdiction in Australia to introduce a duty-of-candour law as well as introduce protection for patient safety reviews, which are based on models already in existence in Queensland, New South Wales and South Australia.
Our hardworking nurses, doctors, paramedics and other healthcare workers provide all Victorians with high-quality care, but there is always more that we can do. This bill will ensure that in these few instances when something does go wrong the patient will always get the answer they need and lessons are always learned from those adverse events. In Victoria to restore community trust in the health system and the health services now we have a legislated duty, regardless of whether a complaint has been made or not or a patient has made an inquiry or not, that the issuance of an apology is mandatory as well as a description of the response and steps taken to prevent the reoccurrences, provided that the patient has not opted out of this information.
In Victoria the duty of candour will apply to public health services, public hospitals, multipurpose services, denominational hospitals, private hospitals, day procedure services, ambulance services, non-emergency patient transport services, the Victorian Institute of Forensic Mental Health and other entities that are set out in the regulations that provide health services.
So we are committing to our commitment to improve the quality and also the safety of our health system and make this apology mandatory so that we can have a change of culture and also make it clear that cases of malpractice or malice, if this is the case, will still be pursued by the compliance and other agencies as required by law. I therefore commend the bill to the house.
Motion agreed to.
Read second time.
Committed.
Committee
Clause 1 (16:57)
Ms CROZIER: Minister, could you explain to the committee: is this bill an admission that policies and procedures in place at health services and across the health sector are insufficient to deal with patient treatment problems?
Ms SYMES: Ms Crozier, it is fair to say that we anticipate that these changes will improve the complaint-making processes for patients, for families and for people who want to question health practices. As you would appreciate, the duty of candour is a particularly facilitative process that will ensure that people can have candid conversations about incidents to provide full information. The more information a patient or family has about an incident, the more likely it is that they will have a full understanding of what has happened and therefore be able to either be comfortable with the advice they are given or consider perhaps what further action may need to be taken.
Ms CROZIER: Thank you for that response. Could I ask, Attorney: I know that there are a number of complaints and reports that go to Safer Care Victoria or the health complaints commissioner, so do you think that that will also assist in the process? Have they been so bogged down with complaints that the government feels that this bill, like you just explained, will hopefully prevent some of those complaints coming forward? Or have they not been able to complete all of the complaints—Safer Care Victoria and the health complaints commissioner? Have they had difficulty in completing those reports around complaints?
Ms SYMES: Ms Crozier, demand has remained stable in relation to the complaints that go into those bodies. This is not in order to prevent complaints being made because of too many complaints being made, but it is fair to say that some complaints that are made could be avoided at the pointy end if more people were provided with more information at the start of the process. We anticipate that there will be a reduction in complaints, but the motivation for it is to provide people with more information, to be fully aware of the circumstances and to make determinations about whether they want to proceed with any complaints or other actions once they are in receipt of that information.
Ms CROZIER: Thank you for that response. That is helpful. You can take this on notice because I do not know that you will have it: how many sentinel events have there been at public health services across Victoria in the past year? We do have some of those in the annual reports, but as I said in my debate I have been aware of some very significant ones, so I am just wanting to understand what those numbers are and how many of those sentinel events have actually ended up in patients dying. So I am happy for you to take those questions on notice.
With the ability to have that frank discussion—and I will come to the reference in clause 5, but if I can just get this on the record for Mr Grimley; he is not here but he asked me to ask you—are there any provisions in the bill that require a representative of the health service, including their legal representatives, to inform a patient or their families about legal ramifications of a duty of candour?
Ms SYMES: Yes. Thanks, Ms Crozier, for that question from Mr Grimley. It is the guidelines that will include a requirement for health services to provide information about consumer rights prior to the issuing of an apology—for example, that a complaint could be made to a health complaints commissioner or to a notification to the Australian Health Practitioner Regulation Agency (AHPRA) and/or any legal redress.
Ms CROZIER: Thank you for that. I know that we are sort of going into clause 5 where I wanted to go with some of my questions around this. That will be in the guidelines. So will that be mandated that a health service will be required to do that? Will that be part of what will be in the guidelines? When the health service is providing that information to the patient or the patient’s family around the duty of candour and the representatives, will that be in the guidelines? Will it be automatic that the health service must provide that information around legal representation and the ability for a patient to pursue different avenues? That is where I am going to.
Ms SYMES: Yes.
Ms CROZIER: I know that you said that you were hoping for better outcomes for patients. I made reference to the report that talked about the people matters survey in which the uptake by staff is often low—that was in that report. Does the government think with this bill that there will be a reduced number of sentinel events, that the staff will also have an ability to speak frankly and to get to what the bill aims to do, to have better quality and safety measures in place?
Ms SYMES: Yes, that would be an anticipated benefit of a new process involving a duty of candour, because a lot of the experiences of people who seek information in relation to an adverse or sentinel event are that they want to make sure that such things do not happen to anyone else. So being able to have an open discussion, free-flowing sharing of information from a health service and the ability to learn from past incidents are certainly things that you would anticipate would bring out better outcomes overall.
Ms CROZIER: Thank you, Attorney. I referenced in my debate some of the assistance I was providing in the outcome of a very sad case of some parents whose daughter tragically died. The bill briefing referenced those events. I am very familiar with that. When I wrote to the parents I actually did say that the regulations that were amended in July 2018 around the Health Services (Health Service Establishments) Regulations compel private hospitals to provide the Secretary of the Department of Health with information relating to sentinel events. Is that happening?
Ms SYMES: Ms Crozier, my advice from the experts in the box is that the answer to that is yes.
Ms CROZIER: Thank you very much, and I am pleased that that is happening because I actually do think that will give confidence to consumers—patients and their families—but also to those providers. So that is very good.
Clause agreed to; clauses 2 to 4 agreed to.
Clause 5 (17:06)
Ms CROZIER: Attorney, new part 5A, division 3, section 128G—this clause concerns protected quality and safety reviews. It provides that:
The Chief Quality and Safety Officer may prepare a summary of a protected quality and safety review report prepared under section 128D(1).
Why is ‘may’ used as a term instead of ‘must’?
Ms SYMES: Because of the privacy or public safety concerns from release.
Ms CROZIER: Okay. So they then determine what information is then released to the patient or the patient’s family based on that? Am I right in saying that—or to the health services rather?
Ms SYMES: The family or the person requesting it can get a summary report.
Ms CROZIER: Thank you, Attorney, for that response. If I could move to sections 128I and 128J. Proposed section 128I prevents the current or former chief quality and safety officers and the current or former authorised quality and safety officers from disclosing information pertaining to a protected quality and safety review, including to any court or tribunal, board, agency or any other person. It also exempts such reviews from freedom-of-information requests, and these provisions are also in section 128J. I am just wondering: what is the government’s rationale for prohibiting such information from being disclosed?
Ms SYMES: Ms Crozier, protected reviews are the exception, and it is to promote openness, accountability and candour, coming back to our earlier conversation about the benefits of having a system that enables people to freely talk about incidents, the factors that perhaps led up to outcomes, so that families and patients can be fully apprised of all of the information and there is no hindrance on health services to provide such information.
Ms CROZIER: And in our previous discussion you actually said there was an obligation through those guidelines that a hospital or health service had to provide the legal rights for the patient, so I think that covers off that. Could I then ask: are there any legal proceedings underway against the Department of Health concerning systemic issues that you are aware of at present?
Ms SYMES: Ms Crozier, I am not aware of any cases involving Safer Care Victoria that have come against the department, no.
Ms CROZIER: Thank you—that is good to know. So there are no systemic issues at Victorian health services that are currently being dealt with—very good. Could I move to new section 128ZD, which prevents an apology made as part of the duty of candour being used in civil proceedings as an admission of liability. Does this section prevent a patient or their family from using documents produced as part of the duty of candour in civil proceedings?
Ms SYMES: Yes. Isn’t that what you said? You said ‘civil’ twice, in both examples.
Ms CROZIER: This prevents an apology made as part of the duty of candour being used in civil proceedings as an admission of liability, so I am just getting on the record that this prevents a patient or family member from using any documents that—
Ms SYMES: Oh, sorry. While an apology will be a mandatory requirement of the statutory duty of candour, the bill will create protections so an apology does not constitute an admission of fault and health services will be protected from retrospective litigation. In a health service context this means that an apology will be an expression of sympathy, regret or compassion. We know that there may be concerns that consumers will be restricted in seeking legal redress for harm that they have experienced; however, factual explanations of what has occurred, which will not be required to be provided in writing under the duty of candour, will not be protected and can be used as evidence in any legal proceedings—so factual information. Consumers will also have access to information on what occurred during the course of their treatment in a number of other ways—personal health records and the like—and changes to apology protections do not restrict the use of that information in any medicolegal claim.
Clause agreed to; clauses 6 to 33 agreed to.
Reported to house without amendment.
That the report be now adopted.
Motion agreed to.
Report adopted.
Third reading
That the bill be now read a third time.
Motion agreed to.
Read third time.
The DEPUTY PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.