Andrew McLachlan (SA, Liberal Party) Share this | Hansard source

I rise to speak on the Health Insurance Legislation Amendment (Transparent Patient Outcomes) Bill 2021. The bill, if it finds favour with the Senate, will allow the Minister for Health to establish public databases of surgical procedures and patient outcomes, to allow consumers who are considering a particular procedure to make an informed choice about their practitioner. The mover of the bill, my South Australian colleague Senator Griff, argues in debate that such information in the public domain will allow Australian patients to objectively assess skills and outcomes of individual practitioners and that the bill will repair a lack of transparency that currently exists in what I suppose I could describe as the consumer market for medical services.

The bill technically seeks to amend the Health Insurance Act 1973 to enable the minister to make rules to establish and maintain a transparent patient outcomes register or registers, as the case may be, that contain data such as the number and type of surgical procedures performed at a facility, the number and type of procedures performed by a practitioner, surgical revision rates and patient mortality rates for each facility and practitioner, as well as any prosthesis device used, patient demographics or any other information set out in the rules by the minister. The bill, in effect, gives the minister wide discretion to effectively construct or structure the nature of the register or registers. Registers can be for particular surgical interventions and can also relate to particular medical professions, so there is a degree of flexibility and empowerment of the minister to do so. As we've heard from Senator Askew, the government's intention through its Minister for Health is to consult widely in relation to this bill and to share those findings with the mover of the bill to see the best way forward or whether this bill may require further refinement.

This bill raises two interesting issues. First, around privacy, which the bill takes great pains to protect and, second—and this was touched upon by Senator Kitching—the nature of the presentation of that data, which we hope will empower the consumer and not confuse the consumer. I'm also interested in, in relation to this bill, how that will impact on the performance of the medical profession as a profession—that is, the interplay between the delivery of information and how the profession, both as individuals in the profession and the profession as a whole, will respond—we hope positively—if this bill is passed.

On the issue of privacy, Hippocrates, the Ancient Greek physician, pledged to keep information about patients private and confidential, so this is not a new concept. In fact, the Hippocratic oath states:

What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself …

So it is not a new concept, and it is one which we've grappled with in the past. This bill aims to keep the balance—that is, to collect the data for the societal benefit whilst protecting the individual. But, to gather the data, it has to be protected; otherwise, it will be used for a variety of other purposes, which could prevent its ultimate collection or affect the ability to rely on that data and undermine its validity. This is an old trade-off which has occurred in health, and the trade-off is being extended to allow the creation of these registers. Senator Griff stated in his second reading speech:

The bill endeavours to strike a balance between providing useful information to guide patients, providing ongoing protections to those who, in good faith, provide, collect and manage performance and outcomes data, and also endeavours to ensure registry information is not appropriated in unintended ways, such as for court proceedings.

As I've said, this is not a new concept. Protections of personal privacy are always used to protect the interests of individuals, while the primary justification for collecting personally identifiable health information for health research is for the benefit of society. It's an old balance and one which I think is maintained in the bill.

In preparing for the debate today, I would like to thank Senator Griff for including in the explanatory memorandum to the bill a statement of compatibility with human rights, which I found informative and which also alleviated potential concerns that I or others may have had in relation to privacy. The conclusion to that statement says:

This Bill aims to assist individuals to access information about a healthcare provider and exercise informed choice before proceeding with surgery, and so is compatible with human rights as it promotes the right to a high standard of health, the right to control one's health and the right to information accessibility.

From my own perspective, I do not find fault with those assertions, and I have considered the arguments of the mover carefully.

What has particularly interested me about the issues raised by this bill is their interplay with the profession. Historically, we have relied on the medical profession to self-regulate. In effect, we have placed our trust in the medical profession and the doctors and surgeons within it, and we have not sought to question their counsel or their wisdom.

Society has moved on apace. Individuals in our community want to have a dialogue with their doctors and specialists, and in that dialogue they want to be informed. That is why the seed of this bill has great attraction, because it empowers the consumer to have a dialogue with their medical professional—not necessarily on equal terms, because in a doctor-patient relationship there is a lack of power: one has great knowledge, and one is ill and concerned for recovery. So, the relationship has never been equal, which is why the profession was created—to create some balance and self-responsibility on those providing the care.

When discussing professions I always come back to an Australian Bar Gazette article, a reprint of part of a presidential address delivered by Mr Hilton to the English Law Society titled 'The nature of a profession.' He says that one of the really attractive arguments about professions—he's referring to both the medical and the legal profession, the latter of which I'm a member—is that before a group of individuals can be called a profession they must follow their trade or craft in the spirit of public service. That doesn't rule out the need for fair reward. The point is that the first priority is to apply all the person's knowledge, energy and abilities in doing the job, and earning a reward is incidental to that, But, as the mover of the bill has indicated, that is not always the case—in any profession—and there have been considerable failings in the medical profession to clean up its own dirty linen, might I say.

Senator Kitching also indicated that there may be different behaviours as a result of the data. For example, because it's aggregated, it may result in a debate with a patient who is not necessarily as informed. I don't really want to speak for the mover, but as I understand his contribution here, he wants an empowerment conversation. That does not necessarily mean that this data will inform the patient to the nth degree, because they are not data experts. But it will allow them to come to the surgeon's desk or the doctor's surgery and say: 'This is the public data. Please explain to me why you think this surgeon is the best.' I think that's the attractiveness of this legislation, because no legislation like this can generate perfection.

One of the interesting things—and I don't profess to have a crystal ball in relation to this—is how the profession will respond. It could be that the less-noble members of the profession—those who do not put societal benefit as one of their primary drivers in the profession; remuneration is higher to them—might reduce their scope of practice and operate only on those they think are going to have a greater chance of recovery. One would like not to think so. My point in raising the interplay with the profession is that the profession will have to do more work on this to ensure that their members do not respond in a base way to this sort of data being held by the patient.

It will also, I think, have positive knock-on effects for the procurement process, particularly with prosthetics. We know that there are very hard sales techniques around prosthetics, and the patient needs to know whether they are getting the one that is used in majority or in specialist cases and then raise the question. It may also drive increased specialisation in the profession and more attention to those being apprenticed, with their apprenticeships taking longer. I don't raise those issues to negate the positive intentions of this bill but to promote the debate about how this register will be structured. As my honourable friend Senator Askew has indicated, the government finds favour with the intentions of this bill and is seeking to consult to better understand how the registers will be constructed. I congratulate the mover of the bill for his dedication to advancing the interests of patients in Australia. I seek leave to continue my remarks later.

Leave granted; debate adjourned.