Health Insurance Legislation Amendment (Transparent Patient Outcomes) Bill 2021

29 November 2021

The Health Insurance Legislation Amendment (Transparent Patient Outcomes) Bill 2021 will improve health outcomes: the outcome of surgery, and, most importantly, the outcome for the patient. For the very first time, patients who are facing surgery will be able to make an informed choice about their practitioner and their hospital rather than flying blind by accepting without question the surgeon and the hospital selected by their GP. This bill does this by allowing the health minister to create public-facing databases that will detail the performance record of individual surgeons. These databases will also detail the surgical outcomes of the hospitals and clinics in which surgery occurs.

Too regularly, we hear horror stories of patients who are scarred for life and left in agony; of patients who have had to undergo numerous corrective surgeries, otherwise known as 'revisions', and whose lives are forever impacted by the careless knife of a cocky or inexperienced surgeon.

As many in this place would know, the slow-moving regulator often seems close to useless in this space. You only have look at the most recent media story of surgical incompetence to see this—that of cosmetic surgeon Daniel Lanzer, who has reportedly agreed to stop practising in Australia after a joint Four Corners and Fairfax investigation. It took the media to uncover his appalling practices and put an end to him. Where was the regulator, the medical board, the college? How did valid patient complaints not result in the outcome that one media investigation did? This is not an unfamiliar story. We've all read harrowing stories of patients who've undergone a botched procedure and then found themselves in a traumatic battle with the hospital, their surgeon and the system in their often hopeless attempt to get answers and ensure that others don't suffer the exact same fate.

Consumers need more power in their hands to make informed decisions, and that is the sole reason I am proposing the Health Insurance Legislation Amendment (Transparent Patient Outcomes) Bill 2021. This bill will empower the health minister to make rules to create and maintain a transparent patient outcomes register for a range of medical specialties. Each register will be a public-facing database that will give patients information on the number and types of procedures performed by each surgeon, their surgical revision rates, their mortality rates, their patient demographics, the type and class of prosthesis used if that is relevant, and perhaps even their fees. It is intended that these registers would also detail the performance standards of each facility and for each surgical specialty, because where the surgery happens also influences surgical outcomes.

This bill will also require the minister to consult with the Information Commissioner to ensure that the rules don't breach any privacy rules. Ultimately the information included on these registers would be determined by the minister, but the aim is to include the relevant information for each specialty that would allow patients to make an informed choice about the skill of their prospective practitioner and the standards of each particular facility. The rules in this bill are not prescriptive. The bill gives the minister flexibility about how a transparent patient outcome register would deal with newly minted surgeons who are still building up their bank of experience and how to deal with complaints about incorrect information. This bill is not about creating 'gotcha' databases that undermine professionals. It will ensure that registers are not used in unintended ways and it specifies that information collected for or held on the registries cannot be used in criminal proceedings.

Even so, I know many of the medical colleges won't support it at all. They like to have a closed shop. We found that recently with the IVF industry, but I'll talk a little bit more about that later. They will claim that the bill will create perverse incentives and penalise average performers. I absolutely disagree. Patients want to know whether their surgeon is competent. High fees are no guarantee of this. Neither are framed certificates on a surgeon's wall or the letters after his or her name. Results speak for themselves. Where there is transparency there is always improvement—every single time. Bringing this performance information into the light will ensure that surgeons persist with their ongoing education and keep their skills up to date. It will likely root out complacency and may even help ensure that those who charge the highest fees do in fact earn them. The successful collaboration and launch of the YourIVFSucess website earlier this year demonstrated the value of and public interest in public disclosure of surgical performance outcomes. That first step improved medical transparency significantly, and it should be the model for all surgical specialties. The process of building such databases does not need to be complicated. I know that this data already exists for some specialties. For instance, orthopaedics has absolutely outstanding data going back well over 20 years.

The Australian Orthopaedic Association National Joint Replacement Registry contains information on all hip, knee, shoulder, elbow, wrist, ankle and spinal disc replacement surgery performed in public and private hospitals throughout Australia. It also collects what they call 'patient reported outcome measures' pre and post surgery regarding pain and surgery outcomes. This data exists. It is shared with surgeons but not the public. Individual performance data is available for each surgeon to view to see how their performance tracks against unidentified peers. They can see whether they plot above or below their fellow orthopaedic surgeons and how many of them are in the low or high ranges. Wouldn't that be valuable information if you were about to undergo a hip replacement or a knee replacement?

This database has existed since 2002. One intention of this disclosure and ranking process and one of the great benefits is that it encourages poor performers to lift their game. The registry shows that a few surgeons continue to use poorly performing prostheses. It also shows a small but significant number of surgeons perform well below expected standards, with much higher revision or repeat operation rates for joint replacement than their peers. Currently, the public only get a small window to see the wealth of orthopaedic surgery data and have no idea whether their surgeon—the surgeon that they are seeing—is a good or poor performer.

Orthopaedic surgeons perform a significant proportion of all surgeries. This means they affect a significant proportion of patients. In fact, 15 per cent of all hospital admissions in 2017-18 were for orthopaedic surgery, including knee and hip replacements—a massive number.

Given the life impacts of poor prosthesis and surgical revisions, I would argue that these thousands of people in households who have been orthopaedic patients should be able to get objective performance data about their surgeon before they go under the knife. Every patient who undergoes any invasive surgery should have this information available to them. It's their money and their health at stake. They shouldn't just have to rely on the reassurances of their surgeon or referring GP that everything will be fine.

This is a bill for consumers. It's not a bill to protect people that are not doing the right thing, that are not up to scratch. It is a bill for consumers, who are often sidelined or feel ignored when things go wrong as surgeries sometimes do. The transparent patient outcomes register, created through the Health Insurance Legislation Amendment (Transparent Patient Outcomes) Bill 2021, can alleviate some of this needless suffering by helping guide patients before they set off down a road that they may well regret. The databases could also serve to reassure an anxious patient. Those considering surgery will be able to look up the performance record of their intended surgeon and know whether their doctor is well versed in their particular operation or just a dabbler.

Research shows that surgeons who perform fewer surgeries of particular types compared to their peers have increased revision rates—which, again, are repeat operations to go back in to likely fix a problem—and they have poorer patient outcomes overall. A 2014 study that looked at complications arising from hip replacement surgery found that patients whose surgeons had performed 35 or fewer hip surgeries in the previous year had an increased risk of dislocation and early revision. If you are about to have a hip operation, wouldn't you want to know whether your surgeon of choice represented a greater or lower risk? I would; I think everyone here would, but currently that information is unavailable to you.

The bill also deals with an administrative hurdle that would otherwise require data from a minority of specialties, including orthopaedic surgery, to be collected twice from hospitals. The Orthopaedic Association National Joint Replacement Registry is deemed a quality assurance activity under the Health Insurance Act 1973. Identifying data collected for the purpose of a quality assurance activity currently cannot be disclosed to another person or a court without consent, at the risk of serious penalty.

The intention behind the provisions in the act is to provide protection from civil liberty claims. This bill seeks to retain this protection by doing two things: first, it will prohibit data collected for or held on a transparent patient outcomes register from being used in court; second, it creates an exemption for disclosure of quality assurance activity data if it is in accordance with the rules set by the minister. The bill intentionally prevents data collected for or held on a transparent patient outcomes register from being used in unintended ways that cannot be supported by health facilities and practitioners, such as to sue surgeons or to bring criminal proceedings against them. That is not what this is about.

As I say stated previously, the intention of this bill is to provide objective and useful performance data that will help patients make an informed choice about their doctor and hospital before they proceed to surgery. If patients have a clearer view of their surgeon's performance and revision rates, it will help them steer clear of surgeons who aren't experienced in their procedure or who have higher than average revision or repeat operation rates. Without doubt, it would mean fewer complications and surgical trauma for the patient. That is a most worthy outcome.

In an environment where we can't rely always on the regulator, the colleges and the hospitals to rally around patients, we should help them help themselves. This is a most important bill—a very important bill to me—and I hope all senators here will support it.

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