NSW Code of Conduct For Non-Government Registered Healthcare Practitioners

HypnosisAustralia, November 2008

By Dr Tracie O'Keefe DCH, Clinical Hypnotherapist, Psychotherapist & Counsellor
Editorial Director of HypnosisAustralia Online.

The New South Wales Department of Health has for quite a few years announced that it would find ways of constraining the practices of professionals who were in the health industry but were not required to be registered with the government. This includes any healthcare practitioner who is not covered under the Health Professional Registration Act in NSW, which includes the nine statutory registered healthcare professions. Various newspapers, including the Sydney Morning Herald, have sensationalised and exaggerated the extent of danger to the public from such practitioners. The NSW Health Care Complaints Commission (HCCC), however, has stated that it gets about 3000 complaints a years about registered health professionals and investigated 300 of those; but only investigates around 10 complaints for non-government registered healthcare practitioners.

In Section 10AM of the Public Health Act 1991 it provides for the making of a code of conduct for the provision of health services by unregistered health practitioners. Prior to any such code of conduct being brought in by the Minister for Health a draft code of conduct and an impact assessment statement for the code must be placed on public exhibition for at least 21 days. The closing date for responses to that proposed Code of Conduct was the end of February 2008.

There is little doubt that some non-government registered, healthcare practitioners do pose a danger to the public, through incompetence or dangerous practices; but the figures of complaints made to the NSW Health Care Complaints Commission do not bear out the level of danger quoted in the newspapers. In fact complaints to the NSW HCCC about registered medical practitioners swamp the small number of complaints made about non-government registered practitioners which came in at 2% between 2002 to 2006.

At the beginning of January 08 the NSW DOH launched a proposed code of ethics for two months public consultation and there were many standard clauses in the first draft that would logically be expected in any health professional association's codes of ethics. The actual code of conduct published and made legally compulsory in July 2008 is at times, to say the least, conflicting in its approaches at times. It states that practitioners needed to make clinical judgments and treat based upon those clinical judgments. This means that each practitioner needs to practise to professional standards and continue to keep their level of practice up to date. There was, however, no stated standards which give rise to several legal loopholes such as:

What is a standard?
Who establishes such standards?
Who determines whether a practitioner is keeping up to standard?
How can anyone be in contravention of non-existing standard if no standards are stated?
How can the HCC find against a practitioner when they have no standards by which to measure their practice?
How can anyone be sued or prosecuted for contravening standards that do not exist in the first place?

It is obvious that the code of ethics is an attempt to regulate non-registered health practitioners by an indirect means, but evidently the final draft has many problems. The government has gone the cheapest route to showing a public face of monitoring the activities of non-government registered healthcare practitioners. They have rejected the expensive route of full registration, the secondary route of professional self-regulation and gone for the "wait until the bomb goes off before doing anything" route. In all fairness, however, this is the route that falls in with common law and the right to practice unfettered by state but it does not protect the public in many circumstances.

The Commissioner Kieran Pehm has said that the code covers hypnotherapists treating someone for a health-related matter, psychotherapists and counselors but not marriage counselling. So if as a practitioner you use hypnosis with someone who has problems with violence then you must abide by the code but if the spouse is present and the violence is related to the relationship then the code could not cover the session.

It comes back to the quesion that Richard Bandler would ask: When is a therapist not a therapist and when exactly is a practitioner doing hypnosis? He is famous for saying that when they would not let him practice hypnosis he called it NLP. Which gives rise to the question of NLP practitioners in NSW and do they come under this code when helping people with phobias because phobias are after all in the Diagnostic and Statistical manual of Mental Disorders (DSM)?

The upside is that should a stage hypnotist try to help people with stopping smoking or anything therapeutic after their shows they will be breaking the law. Many of them are not trained therapists or insured to carry out therapy. Whether they charge those people or not it would be classified as a therapeutic service.

The NSW DOH rejected a suggestion by the Australian Hypnotherapists Association in 2007 that a practitioner should belong to a professional body. This would have plugged these loopholes and obliged the professional bodies to set standards and regulate their members. If one is going to legally classify someone as a healthcare practitioner it is insanity not to insist that they are regulated by some body of experts in the field who can set standards and ensure that are maintained. Legally under the law, howeve, the NSW DOH cannot insist that anyone join a union or any such body so unless the law is altered the government is shooting itself in the foot before it is off the starting blocks.

In hearing cases against practitioners the NSW HCCC will need to legally consult an expert in the field of practice as to whether the practitioner was within their field of knowledge (an expert witness). The difficulty that arises in validating any such experts is how can there be an expert in field with no stated standards? The government refuses to recognise the need for professional associations therefore highly endangering any case brought against a practitioner for the lack of quality of their practice.

The NSW DOH also rejected the idea from the Australian Counselling Association in 2007 that practitioners should get clients to sign contracts. Whilst this is more a fair trading issue there could be much merit in the concept, ensuring that clients are fully aware of the expectations and limitations of the services they are contracting.

Another major problem with the NCCC COC is it requires practitioners to urge their clients to inform their family physician that they are receiving treatment or services. In other words an attempt to medicalise the field of non-government registered healthcare practitioners and bring those professions under the authority of family physician. In a situation where the patient is being treated for an ailment by a medical practitioner then it is appropriate for any practitioner to be in contact with the GP or specialist themselves, with the client's permission. Many people, however, come to hypnotherapists for non-healthcare related matters such as driving test nerves, ability to focus during studies, past life therapy. What exactly would these services have to do with the family doctor?

Patients also often consult hypnotherapists as a last resort when other treatments administered by their family doctor or psychiatrist have failed miserably. In this case they often do not want their GPs to know that they are having hypnotherapy and as hypnotherapists we are ethically bound to respect their wishes. At times people visit hypnotherapists to get over a range of addictions that their GP does not know about and the client may not wish that information to go on their medical records because it would affect their future and they seek the help in absolute confidence.

The whole ethos that non-government registered healthcare practitioners should be constantly badgering their clients to report treatment to GPs undermines the professionalism of those practitioners. It is impractical and will not be enforceable in any practical terms but is simply window dressing by the NSW Health Care Complaints Commission just to make them look as if they are being responsible.

In working out the applications of this compulsory Code of Conduct there will be many bugs and trapdoors and will throw up questions such as: When is health service not a health service? Is treating someone for agorophobia a health service if the GST tax office will not give GST relief for that service as a health-related service to hynotherapist? The government cannot have it both ways. Either those providing hypnotherapy are health practitioners and must abide by the NSW COC for non-government registered healthcare practitioners or they are not and must charge GST tax because they are not recognised as healthcare practitioners.

The formation of this code of ethics is, however, important because its ethos could spread through Australia as a formula to deal with non-government registered healthcare practitioners. Those found in contravention of that code of ethics could be banned from practising in any healthcare profession or have restrictions placed on their practices. That would mean they could lose their livelihood and businesses.

How enforceable in law this code of ethics will be remains in due course to be seen. At the moment the NSW HCCC does not even have procedures in how to hear such a complaint and this all needs to be worked out first. Furthermore under the judicial system such processes may be contestable if they do not allow the practitioners sufficient representation. Closed door hearings are notorious for turning into quangos and hanging rooms. Let us remember the fates of Wilhelm Reich and Marie Stopes and how they were sent to prison for what was then considered outrageous treatment but are now normal medical practices. Also in Australia Blackmore was threatened with ruin by the medical establishment when he introduced his mineral therapy.

At a meeting on the COC at the NSW HCCC in their offices in Sydney in September 2008 for the professional association leaders, representatives of the department explained they are not out to harass the ordinary practitioner, but to catch the outrageous flagrant abusers such as sexual abuse cases and practitioners charging tens of thousands of dollars for bogus cancer treatments. Whilst that is very noble, no professional association would get away with a Code of Ethics that was so vague as the NSW Code of Conduct for Unregistered Health Care Practitioners.

It is now the law that all non-government registered healthcare practitioners must have a copy of the code displayed in their treatment rooms along with contact details for the NSW HCCC. It seems, from the Journal's sources, that many practitioners are not only not doing that but also not even aware of the change in the law. All associations also need to require their members to display that document in NSW as a condition of membership to discharge liability from the association should a practitioner be in contravention. Go to http://www.health.nsw.gov.au for your downloadable copy or contact the NSW Health Care Complaints Commission. To view the code online, go to http://www.hccc.nsw.gov.au/html/Code_Contuct_Unregistered_page.htm

©HypnosisAustralia, November 2008