State Development and Regional Industries Committee

Health and Other Legislation Amendment Bill 2021

Briefing from Queensland Health

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State Development and Regional Industries Committee

Briefing from Queensland Health

On 1 December 2021, the Health and Other Legislation Amendment Bill 2021 (Bill) was introduced into the

Legislative Assembly. The State Development and Regional Industries Committee has requested

Queensland Health provide a written briefing about the Bill. This briefing follows an oral briefing by

Queensland Health, the Department of Environment and Science and the Department of State Development,

Infrastructure, Local Government and Planning to the Committee on 14 December 2021.

Background

The Bill amends the following 10 Acts to improve the practical operation of Queensland’s health portfolio

legislation:

Ambulance Service Act 1991

Hospital and Health Boards Act 2011

Mental Health Act 2016

Public Health (Infection Control for Personal Appearance Services) Act 2003

Radiation Safety Act 1999

Termination of Pregnancy Act 2018 and Criminal Code Act 1899

Transplantation and Anatomy Act 1979

Corrective Services Act 2006 and Water Supply (Safety and Reliability) Act 2008.

The health portfolio amendments in the Bill have been informed by both long-term and targeted consultation

with the medical, nursing, pharmaceutical, allied health, mental health, Aboriginal and Torres Strait Islander

health and legal sectors.

The Bill also amends the Environmental Protection Act 1994 to provide that essential community

infrastructure such as satellite hospitals, schools and emergency facilities may be constructed and operate

outside the environmental nuisance limits under the Environmental Protection Act, provided it is regulated by

an infrastructure designation made by the Planning Minister under the Planning Act 2016.

Amendments and policy objectives

This Bill aims to improve the operation of health portfolio legislation and support the provision of health

services in Queensland. Specific objectives and benefits of the amendments are listed by Act below.

Ambulance Service Act 1991

The Bill makes two key changes to the Ambulance Service Act. The first ensures that the framework for the

management of confidential information by the Queensland Ambulance Service (QAS) is robust and clear.

Since 2013, QAS has been subject to confidentiality provisions in both the Ambulance Service Act and the

Hospital and Health Boards Act. However, differences between the Acts – such as in relation to when

personal information can be disclosed and how confidential information is defined – create uncertainty for

QAS officers about which Act applies, whether they are authorised to disclose information in any presenting

situation, and what information they can disclose. This raises a risk of officers unintentionally disclosing

confidential information without proper authority.

The Bill addresses this by aligning the disclosure of confidential information under the Ambulance Service

Act with the Hospital and Health Boards Act. This provides clarity and creates consistency with the day-to-

day operations of QAS. The alignment of the two Acts also strengthens the framework for managing

confidential information within the Ambulance Service Act by increasing the maximum penalty for

unauthorised disclosure, expanding the definition of confidential information and extending obligations to

apply to all former and present staff of QAS.

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The Bill also amends the Ambulance Service Act to remove the requirement for the QAS Commissioner to

be no older than 65 years, because age is not relevant to the Commissioner’s ability to perform the role.

Hospital and Health Boards Act 2011

The Bill amends the Hospital and Health Boards Act to enable more allied health professionals to be given

access to health records on a system called The Viewer. This will improve patient care. The Viewer is

Queensland Health’s read-only web-based application that securely displays consolidated clinical and

demographic information about patients from Queensland Health clinical and administrative systems.

The Viewer enables continuity of care when transferring patients from acute care to community care settings.

However, The Viewer is currently only accessible by health practitioners registered under the Health

Practitioner Regulation National Law, such as doctors, physiotherapists, psychologists, and optometrists. It

cannot be accessed by allied health professionals who are not registered health practitioners.

The Bill allows for prescribed health professionals to access The Viewer. If the Bill is passed and enacted, it

is intended to prescribe by regulation professionals such as audiologists, social workers, dieticians, speech

pathologists, orthotists (who specialise in clinical services for splints and braces), prosthetists (who specialise

in clinical services for artificial limbs) and orthoptists (who specialise in eye disorders).

The Bill maintains strict safeguards to protect the privacy of patients. All access to patient records is recorded.

Patient searches can only be undertaken in The Viewer based on a set of unique patient identifiers, ensuring

the patient is known to the health professional in a healthcare context, before their information can be

accessed. Any unauthorised access or disclosure is an offence with a maximum penalty of 600 penalty units

(currently $82,710). Allied health professionals are also subject to legal, professional and ethical obligations

that cover confidentiality and privacy. Patients can also opt out of having their information on The Viewer

accessible to non-Queensland Health professionals. The process for opting out is to contact 13HEALTH and

Queensland Health will work with Health Consumers Queensland during the implementation of these

amendments to ensure consumers are aware of their choice to opt-out.

The following case studies demonstrate the positive impact that increased access to The Viewer could

contribute to patients, their families and an efficient health system. Without access to The Viewer, the health

professionals would have to go through manual, paper-based processes for requesting documents, which

are time consuming and create delays in treatment and care.

Case study 1: Dietician

An elderly woman is admitted to a private palliative care facility following surgery, radiation and chemotherapy for

stage four breast cancer. She is finding maintaining her oral food intake challenging and is becoming malnourished.

She sees a dietician who works at the facility. The dietitian looks at The Viewer to check prescribed medications and

results of pathology investigations to help determine the best way to manage the woman’s nutritional requirements.

Case study 2: Speech pathologist

A young child is taken by their family to see a speech pathologist who is employed in private practice. The speech

pathologist suspects childhood apraxia of speech (CAS). The child’s family reports that the child was previously

assessed by a speech pathologist, but the family disengaged before receiving the results. The speech pathologist

looks at The Viewer for child development service encounters and discovers that the child already has a provisional

diagnosis of CAS pending further assessment. They also learn that an application for the childhood intervention

stream of the National Disability Insurance Scheme (NDIS) was started but is incomplete. The speech pathologist

completes the assessment required to confirm the diagnosis. They also progress the application for NDIS funding

and support the family with interim strategies.

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Example 3: Exercise physiologist

A man has an acquired brain injury associated with tumour removal, and moves into a private rehabilitation service

after being discharged from hospital. Soon after, he suffers a fall, fractures his tibia and attends emergency and a

fracture clinic. An exercise physiologist working for the rehabilitation service looks at The Viewer to clarify the recent

encounters and x-ray results to ensure their interventions aimed at reconditioning are appropriate and safe.

Mental Health Act 2016

The Bill makes several amendments to the Mental Health Act to improve processes for patients and continue

to deliver rights-based approaches in mental health care in Queensland.

Mental Health Court matters

The Mental Health Court is an inquisitorial court and does not test the facts of a matter. Its primary role is to

make findings about whether a person was of unsound mind or of diminished responsibility when an offence

was allegedly committed, make findings about current fitness for trial, and make orders for their treatment or

care.

Under the current Act, the Court may determine unsoundness of mind or diminished responsibility even where

the facts on which an expert witness, such as a psychiatrist, have based their opinion, are disputed.

The Bill inserts a provision into the Mental Health Act that prevents the Court from making a decision about

whether a person was of unsound mind or of diminished responsibility where there is a substantial dispute

about a fact that an expert has relied on in formulating their opinion. The Bill allows the Mental Health Court

to return a matter to the criminal courts if the person is fit for trial. If the matter is returned to the criminal

courts, the disputed facts can be tested and determined.

The amendment is comparable to section 269 of the repealed Mental Health Act 2000.

Process for approving electroconvulsive therapy (ECT)

ECT is an evidence-based treatment that can be effective for some types of mental illness, such as severe

depressive illness. Its use is supported by the Royal Australian and New Zealand College of Psychiatrists.

Use of ECT is regulated by the Mental Health Act, however the majority of patients who receive ECT do so

voluntarily.

Some patients are unable to give informed consent to the use of ECT. In these cases, the Mental Health

Review Tribunal (MHRT) must approve the use of ECT in accordance with the criteria under the Mental

Health Act. While this process has been assessed as compatible with the Human Rights Act 2019, the Bill

introduces additional safeguards to promote the rights of people with mental illness, and better supports

decision makers to comply with human rights obligations. It does this by inserting new rights-based criteria,

requiring specific consideration of whether adults are able to give informed consent and requiring that regard

be had to the views, wishes and preferences of adults to the greatest extent practicable.

The Bill also inserts new safeguards for people on treatment authorities, forensic orders or treatment support

orders who are consenting to ECT by requiring the MHRT to be satisfied that the person has provided

informed consent prior to the person accessing the treatment voluntarily. This is a new requirement and

an important independent safeguard for these patients.

Apprehension and transfer of patients

The Bill ensures that provisions about apprehension and transfer of patients absent from a mental health

service are effective and align with least restrictive practice. It clarifies the requirements for the interstate

transfer of patients who have been placed under a forensic or treatment support order. The Bill promotes a

stronger rights-based approach for decisions about patient transfers between services, and allows the MHRT

to approve requests for international transfers of patients who have been placed under a forensic or treatment

support order.

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Other amendments

The Bill also:

• strengthens the confidentiality provisions and ensures the confidentiality obligations for all people performing functions under the Mental Health Act are clear and consistent;

• improves support for victims of unlawful acts; and

• makes other technical amendments to improve the operation of the Mental Health Act.

Public Health (Infection Control for Personal Appearance Services) Act 2003

The Bill amends the Public Health (Infection Control for Personal Appearance Services) Act to extend the

timeframe within which a person may apply for renewal of a licence for a business providing higher risk

personal appearance services (such as body piercing and tattoo services), and to allow expired licences to

be restored. The amendments will increase flexibility and efficiency in the licensing process for both

businesses and local governments. The infection control requirements for these businesses are not changing

and they will still be required to comply with the same standards.

Radiation Safety Act 1999

Under the Radiation Safety Act, a person who applies for an Act instrument, such as a licence to possess a

radiation source, must provide evidence of their identity or, for certain applications where the applicant is a

corporation, a nominated person’s identity. The chief executive must consider the application and either grant

or refuse the application.

Under the existing provisions of the Act, an application must be accompanied by proof of identity documents

prescribed under the Radiation Safety Regulation 2021 (for example, a passport and a bank statement). The

Bill removes the requirement for proof of identity documents to be prescribed in regulation. Instead, an

applicant will be required to prove their, or their nominated person’s, identity to the satisfaction of the

chief executive.

If the amendments in the Bill are passed and enacted, high standards of identity assessment will remain. An

applicant will still be required to prove their identity when they apply. The chief executive will publish guidance

on the Queensland Health website to advise applicants which documents may be accepted to prove their

identity or the identity of a nominated person. This will be informed by the National Identity Proofing

Guidelines, which are published by the Australian Government Department of Home Affairs.

Termination of Pregnancy Act 2018 and Criminal Code Act 1899

The Bill amends the Termination of Pregnancy Act and the Criminal Code to allow students on a clinical

placement to assist with terminations. The Bill provides that in order to lawfully assist with a termination, a

student must be registered under the Health Practitioner Regulation National Law, be under the supervision

of a medical practitioner, another prescribed practitioner assisting lawfully, or the student’s primary clinical

supervisor, and assist only to the extent necessary to complete their program of study for, or clinical training

in, the student’s health profession. In practice, a student would observe the process for a termination and

would not physically assist in the procedure.

The amendments will ensure students have lawful opportunities to gain knowledge and training in

terminations in preparation for their entry to the professional workforce. The Bill will support capacity building

and safe access to terminations in regional and rural areas. As is already the case for practitioners authorised

to assist with terminations, no student will be required to assist if they have a conscientious objection to doing

so. In other words, it will not be compulsory for students to assist with or observe terminations to complete

their qualifications.

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Queensland Health maintains comprehensive resources on termination of pregnancy for health practitioners

and health services, including about how to raise conscientious objection. Available materials include clinical

guidelines, documents in support of the guidelines, information about legal obligations and educational tools.

There will be further engagement with stakeholders if the Bill passes, and implementation activities to update

Queensland Health resources on student involvement and their right to conscientiously object.

Transplantation and Anatomy Act 1979

In Queensland, two human milk banks supply pasteurised human milk to neonatal intensive care units in

Queensland hospitals. Human milk banks collect, screen, process, and distribute donated human milk. Sick

and pre-term infants in hospital are sometimes provided donated human milk to prevent or treat serious

health conditions. One of the banks also provides donated human milk to mothers in the community who are

unable to breastfeed and who have vulnerable infants.

The Bill amends the Transplantation and Anatomy Act to clarify that human milk is excluded from the definition

of tissue in the Act. This will make it abundantly clear that restrictions in the Transplantation and Anatomy

Act on buying and selling tissue – intended to prevent trafficking in human organs and tissue for

transplantation – do not apply to donated human milk. This will remove any doubt that hospitals can purchase

human milk to provide essential treatment to unwell or pre-term infants and reduce the risk of any delays in

doing so. Donated milk will continue to be regulated by the Food Act 2006.

Corrective Services Act 2006 and Water Supply (Safety and Reliability Act) Act 2008

The Bill makes minor amendments to these Acts to reflect commencement of the Medicines and Poisons Act

2019 and remove references to repealed legislation.

Environmental Protection Act 1994

The amendment adds a new exemption to schedule 1 of the Environmental Protection Act to provide an

exclusion to environmental nuisance that applies to the extent that the nuisance has been assessed and is

specifically regulated by a requirement of an infrastructure designation by the Planning Minister under the

Planning Act (Ministerial infrastructure designations).

Ministerial infrastructure designation proposals must undergo a process of environmental assessment and

public consultation. The Planning Minister sets requirements on the Ministerial infrastructure designation

about the works for the infrastructure and use of premises that act in a similar way to conditions under a

development approval.

The process for assessment is set out in the statutory instrument known as the Minister’s Rules and

Guidelines. The proposed amendment will not change these obligations. Assessment of an infrastructure

designation requires having regard to all the matters an assessment manager would be required to assess a

development application against or have regard to (for example, planning instruments, State Development

Assessment Provisions, public submissions).

Where the Planning Minister’s requirements, imposed through an infrastructure designation, vary from those

required by the Environmental Protection Act, the proposed amendment ensures that environmental

nuisance provisions of the Environmental Protection Act do not apply.