No longer in the shadowlands: regulation of unregistered health service providers

As of 1 February 2017, Victoria has a new health complaints system with the commencement of the Health Complaints Act 2016 (Act) and the appointment of the inaugural Victorian Health Complaints Commissioner, Karen Cusack. This new role replaces the former Health Services Commissioner.

It has been almost 30 years since the Victorian health complaints scheme was designed. In this time, the number and diversity of health services available have increased significantly.

Media reports over a number of years have highlighted the stories of vulnerable and unwell people, who have obtained health services from unregistered health service providers based on what they later realised were false or misleading claims about the efficacy of the treatment. In a number of cases, the treatment received has been experimental, costly, and provided to the potential detriment of the patient’s health in cases where other treatment options have been ignored or discouraged.

Previously, there was only limited recourse under consumer protection and trade practices legislation in situations where a person complained about an unregistered health service provider.

The new Act seeks to address the previous ‘shadowlands’ of unregistered health providers to better protect members of the public from receiving unsafe or non-efficacious health services.

Many providers of, what are often described as, 'alternative' or 'non-mainstream' health services are not subject to professional registration and, therefore, lie beyond the regulation of the 14 health profession boards and the Australian Health Practitioner Regulation Agency (AHPRA). The Health Practitioner Regulation National Law (Victoria) Act 2009 is also not directed at preventing a registered health practitioner from providing unsafe, non-efficacious or unethical health services where such treatment is outside the scope of their professional registration.

The Act applies to all providers of a 'health service'. This term is defined broadly in the Act and focuses on the purpose of the activity. For example, any activity intended or claimed to 'assess, predict, maintain or improve [a] person's physical, mental or psychological health or status', as well as therapeutic counselling services. Importantly, the Act introduces a Code of Conduct that sets standards for the provision of safe and ethical health services.

The Act seeks to promote the efficient and effective management of complaints with a focus on conciliation. However, where a complaint cannot be resolved, the Act provides the Commissioner with significant powers to investigate complaints and take action against unsafe or unethical health service providers.

Powers of the Health Complaints Commissioner

The Health Complaints Commissioner has power under the Act to:

• investigate complaints about the provision of 'health services', including by:
• unregistered practitioners
• registered practitioners providing health services outside the scope of their professional registration
• formerly registered practitioners
• conduct own motion investigations where no specific complaint has been received
• accept complaints from affected individuals and third parties, including carers, health practitioners or other healthcare providers
• make prohibition orders to prevent unsafe or unethical services or products 
• enter and search premises, order the production of documents, and call persons to give evidence at an investigation hearing before the Commissioner 
• set penalties for failing to comply with investigation hearing notices and interim prohibition orders of the Commissioner (including up to two years' imprisonment)
• ban unregulated healthcare providers from providing health services in Victoria where they are prohibited from practising in other states
• publish public health warnings and publicly name providers

The new Health Complaints Act is a welcome step to fill the regulatory gap that existed between unregistered healthcare providers and registered health practitioners to ensure better protection for the health and wellbeing of the public.

Links
Health Complaints Commissioner
Code of conduct

Joanne Kummrow
Special Counsel
03 8684 0462

Andrew Field
Managing Principal Solicitor
03 8684 0889

Michele Rowland
Principal Solicitor
03 8684 0413

This blog was prepared with the assistance of Mary Quinn, Solicitor, and Milli Allan, Trainee Lawyer.

Enterprise bargaining - proposed changes to the Referral Act

Last week the Victorian Government introduced into Parliament proposed legislation to expand the referral of industrial relations matters to the Commonwealth under the Fair Work (Commonwealth Powers) Act 2009 (the Referral Act).

The Fair Work (Commonwealth Powers) Amendment Bill 2017 (the Bill) proposes to enable public sector employers and employees (excluding law enforcement officers) to bargain over, and reach agreement on, matters relating to the number, identity or appointment of employees.

Background

Australia's federal workplace relations laws rely primarily on the Commonwealth's power to legislate with respect to constitutional corporations.

Under the Referral Act, the Victorian Government referred certain industrial relations matters to the Commonwealth to bring other Victorians into the federal industrial relations system. However, the Government excluded from the Referral Act certain matters relating to public sector employees.

This exclusion was based on an understanding of the implied limits on Commonwealth legislative power. In Re Australian Education Union, the High Court held that certain matters relating to State employees were critical to a State's capacity to function as a government and therefore beyond the Commonwealth's legislative power. These matters included a State's right to determine:

• the number and identity of its employees;
• the length of employees' employment; and
• the number and identity of those whom it wishes to dismiss on redundancy grounds.

In 2015, however, the Full Federal Court held in United Firefighters' Union of Australia v Country Fire Authority that, where there was voluntary agreement about such matters, there was no practical impairment of the State's capacity to function as a government. As a result of this decision, such matters may be included in enterprise agreements that cover constitutional corporations and their employees.

The Bill

The Bill proposes to refer to the Commonwealth certain matters concerning the number, identity and appointment of public sector employees (excluding law enforcement officers). The Bill is relevant for those employees in the public sector (excluding law enforcement officers) who are not employed by constitutional corporations and, accordingly, is relevant for the employers of such employees.

The proposed changes will enable those public sector employees and their employers to include in enterprise agreements enforceable terms dealing with matters such as minimum staffing levels, staffing ratios, or the number of casual, seasonal or fixed term employees.

The Bill also proposes to empower the Fair Work Commission to make workplace determinations in respect of those public sector employees and their employers which include agreed terms dealing with these matters.

However, the Bill does not propose to:

• empower the Fair Work Commission to arbitrate bargaining disputes about these matters, or make an award including these matters in relation to public sector employers and employees; or
• permit these matters to form part of an enterprise agreement, workplace determination, or other transferable instrument that applies to public sector employers and employees as a result of a transfer of business.

Accordingly, terms dealing with the number, identity and appointment of public sector employees may only be included in an instrument by agreement. As is the case with all terms to be included in enterprise agreements, employers will need to carefully consider the long-term implications.

Jacqueline Parker
Assistant Victorian Government Solicitor
03 90323011

This blog was prepared with the assistance of Jack Maxwell, Trainee Lawyer, and Emma Buckley Lennox, Seasonal Clerk.

Native Title Agreements: All registered native title claimants must sign, says Full Federal Court

The McGlade decision is of national significance and goes to which particular individuals must sign certain agreements under the Native Title Act. The case relates to the $1.3 billion Noongar settlement over the greater Perth area and WA's south west. The decision means that four of the six agreements in the settlement will not be indigenous land use agreements (ILUAs) because of the way they were signed and will not have the full force and effect that the signatories expected them to have under the Native Title Act.

While the case underlines the importance of strictly following the Act's requirements on agreement making, the Commonwealth is presently seeking to legislate to address situations where agreements may now be invalid following the Full Court's decision. A Bill for this purpose passed the lower house on 16 February.

The Bill's primary objectives include ensuring that ILUAs which do not contain the signatures of all members of the registered native title claimants can still be registered and enforceable. The Bill is also intended to apply retrospectively. Importantly though, it is yet to take effect as law. The Senate Legal and Constitutional Affairs Legislation Committee is expected to report on the Bill by 17 March 2017.

VGSO will be working closely with our clients who need assistance in making ILUAs to determine the impacts of these developments. The VGSO is Government's exclusive provider of legal services on native title.

We will bring you further updates as they come to hand.

James Stephens
Principal Solicitor