Dental Practice Act 2001 (NSW)
An Act to provide for the registration of dentists and dental auxiliaries; to repeal the Dentists Act 1989; and for other purposes.
This Act is the Dental Practice Act 2001.
This Act commences on a day or days to be appointed by proclamation.
The object of this Act is to protect the health and safety of members of the public by providing mechanisms to ensure that:
(a) dentists are fit to practise dentistry, and
(b) dental auxiliaries are fit to carry out dental auxiliary activities, and
(c) dental students are fit to undertake dental studies and clinical placements.
In this Act:
Section 143 makes special provision with respect to the application for the purposes of this Act of the Criminal Records Act 1991 in respect of criminal findings.
Notes included in this Act are explanatory notes and do not form part of this Act.
This Act does not limit or otherwise affect the operation of the Mutual Recognition laws.
A person who is not a registered dentist must not indicate that the person practises dentistry or is qualified to practise dentistry.
Maximum penalty: 50 penalty units.
Without limiting the ways in which a person may be taken to have indicated that the person is qualified to practise dentistry or that the person practises dentistry, a person is taken to have so indicated if the person uses:
(a) any name, initials, word, title, symbol or description that (having regard to the circumstances in which it is used) indicates, or is capable of being understood to indicate, or is calculated to lead a person to infer, that the person is qualified to practise dentistry or that the person practises dentistry, or
(b) the titles “dentist”, “dental surgeon” or any other name, title or description prescribed by the regulations.
Section 10AF of the Public Health Act 1991 prohibits the carrying out of restricted dental practices by persons who are not registered dentists, medical practitioners or certain other persons in specified circumstances (including dental auxiliaries).
A person has the necessary qualifications for registration as a dentist if the person:
(a) has such qualifications as may be prescribed by the regulations for the purposes of this paragraph, or
(b) has successfully completed a course of study that is recognised by the Board as meeting criteria prescribed by the regulations for the purposes of this paragraph, or
(c) has such qualifications as may be approved by the Board on the recommendation of an accreditation body recognised by the Board for the purposes of this section, or
(d) has passed an examination arranged or approved by the Board to assess the person’s competence to practise dentistry.
An educational or training institution may apply to the Board for the recognition by the Board (under subsection (1) (b)) of a course of study offered by the institution. The institution may make application to the Administrative Decisions Tribunal for a review of the decision of the Board on the application.
In determining for the purposes of subsection (1) (b) whether a particular course of study meets the criteria prescribed by the regulations, the Board may have regard to and rely on any findings made on an assessment prepared for the Board in respect of the course of study.
In this section:
For the purposes of this Act, a person is competent to practise dentistry only if the person has sufficient physical capacity, mental capacity and skill to practise dentistry and has sufficient communication skills for the practice of dentistry, including an adequate command of the English language.
For the purposes of this Act, a person suffers from an impairment as a dentist if the person suffers from any physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the person’s physical or mental capacity to practise dentistry.
For the purposes of this Act, a person who habitually abuses alcohol or is addicted to a deleterious drug is taken to suffer from an impairment as a dentist.
A person is entitled to registration as a dentist if the Board is satisfied that the person has the necessary qualifications for registration as a dentist and is of good character.
Registration under this section is
An entitlement to full registration does not prevent conditions being imposed on that registration in accordance with this Act.
Schedule 1 (Registration procedures) has effect with respect to full registration.
Under section 20 of the Mutual Recognition Act 1992 of the Commonwealth a person is entitled to be registered as a dentist if the person is registered in another State or a Territory for an equivalent occupation (if that State or Territory participates in the mutual recognition scheme). The entitlement arises once the person lodges a notice under section 19 of that Act and, until registered under this Act, the person is then deemed (by section 25 of that Act) to be registered. See also the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.
Registration as a dentist may be granted:
(a) to a person entitled to full registration as a dentist, pending the Board’s determination of the person’s application for full registration, or
(b) to a person who will be entitled to full registration as a dentist when a degree, diploma, certificate or other academic award to which the person is entitled is granted or conferred, pending its grant or conferral.
Registration under this section is
Provisional registration is granted by the Board or the President. In the President’s absence it can be granted by any member of the Board authorised by the Board to do so. Provisional registration is granted by the grant of a certificate of provisional registration.
A person granted provisional registration is a registered dentist until the registration expires or is cancelled. Provisional registration expires on the date stated in the certificate or such later date as may be fixed by the Board.
The Board may impose such conditions as it thinks fit on a person’s provisional registration and may at any time remove, add to or vary those conditions by notice in writing to the registered person.
The Board may cancel a person’s provisional registration for any reason that the Board considers proper. Cancellation does not affect any application for registration by the person.
If a person granted provisional registration is granted full registration before the person’s provisional registration expires, the person’s full registration dates from the granting of provisional registration, unless the Board decides otherwise.
Registration for a limited period as a dentist may be granted to a person who is not normally resident in New South Wales, for the purpose of enabling the person to carry out educational or research activities or such other activities as the Board considers to be in the public interest.
Registration under this section is
Temporary registration as a dentist can only be granted to a person:
(a) who is registered as a dentist in accordance with a law in force in the person’s normal place of residence providing for the registration or certification of dentists, or
(b) who holds such qualifications or has such experience in the practice of dentistry as the Board considers satisfactory for the purposes of temporary registration.
Temporary registration is granted by the Board by the grant of a certificate of temporary registration.
A person granted temporary registration is a registered dentist until the temporary registration expires or is cancelled. Temporary registration expires on the date stated in the certificate unless the period of temporary registration is extended.
The Board may extend and further extend a period of temporary registration by the issue of a further certificate of temporary registration.
The Board may cancel a person’s temporary registration for any reason that the Board considers proper. Cancellation does not affect any application for full registration by the person.
The Board may impose such conditions as it thinks fit on the temporary registration of a person and may at any time remove, add to or vary those conditions by notice in writing to the registered person.
The Board may, with the concurrence of the Minister, grant registration as a dentist to a person who is not entitled to full registration as a dentist if the Board is satisfied that the person:
(a) is of good character, and
(b) has a qualification conferred or awarded for a course of training in dentistry of 4 years or more duration conducted by an educational institution in another jurisdiction outside the State, (either in Australia or elsewhere), and
(c) is or was entitled to be registered or to practise dentistry in that jurisdiction.
Registration under this section is
A person who has limited registration as a dentist may practise dentistry only:
(a) under the supervision of a registered dentist employed in an approved health institution, or
(b) in such part of the State or in the service of such an approved health institution as the Minister may direct.
Limited registration is granted by the grant of a certificate of limited registration. Limited registration is granted for the period, not exceeding 12 months, specified in the certificate.
A person granted limited registration is a registered dentist until the limited registration expires or is cancelled. Limited registration expires on the date specified in the certificate.
A certificate of limited registration may be renewed by the Board from time to time for a period not exceeding 12 months on the application of the person granted limited registration.
The Board may impose such conditions as it thinks fit on a person’s limited registration and may at any time remove, add to or vary those conditions by notice in writing to the registered person.
The Board may cancel a person’s limited registration for any reason that the Board considers proper. Cancellation does not affect any application for full registration by the person.
In this section:
(a) a public health organisation, or
(b) any other body or organisation, including a government department, approved by the Minister for the purposes of this section.
The Board may refuse to register a person who would otherwise be entitled to full registration as a dentist if:
(a) the Board is of the opinion, following an inquiry under Schedule 1, that the person is not competent to practise dentistry or suffers from an impairment, or
(b) the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside the State, and the Board is of the opinion that the circumstances of the offence are such as to render the person unfit in the public interest to practise dentistry, or
(c) the person’s registration under a health registration Act has been cancelled or suspended because of conduct that would (if the person were a registered dentist) authorise cancellation or suspension of the person’s registration under this Act, or
(d) the person’s registration or certification under a dentists registration law has been cancelled or suspended because of conduct that would (if it occurred in New South Wales and the person were a registered dentist) authorise cancellation or suspension of the person’s registration under this Act.
As an alternative to refusing to register a person under subsection (1), the Board may grant the person registration subject to conditions if the Board considers that refusal of registration is not warranted and that the person should be granted registration subject to appropriate conditions.
Conditions of registration may relate to the duration of registration, the aspects of the practice in which the person may be engaged, and any other matters, as the Board thinks appropriate.
The Mutual Recognition laws also provide for the imposition of conditions on registration. Conditions can also be imposed on a person’s registration as a result of disciplinary proceedings to which the person has been subject.
In this section:
A person ceases to be registered as a dentist if the person’s name is removed from the Dentists Register. A reference in this Act to the cancellation of a dentist’s registration is a reference to the removal of the dentist’s name from the Dentists Register.
A person whose registration as a dentist is suspended is taken not to be a registered dentist during the period of the suspension, except for the purposes of Part 5 (Complaints and disciplinary proceedings).
A person cannot apply for registration as a dentist (and any such application must be rejected) if:
(a) the person’s registration is cancelled pursuant to an order of the Chairperson or a Deputy Chairperson, the Tribunal or the Supreme Court, or
(b) the Chairperson or a Deputy Chairperson, the Tribunal or the Supreme Court orders that the person not be re-registered.
The only way such a person can again be registered is on a review under Division 3 of Part 7 of the order by which the person’s registration was cancelled.
A person who is aggrieved by any of the following decisions of the Board may appeal to the Tribunal against the decision:
(a) the Board’s refusal to grant the person full registration as a dentist,
(b) the Board’s refusal to grant the person temporary registration as a dentist,
(c) the Board’s refusal to grant the person limited registration as a dentist,
(d) the Board’s decision to refuse to register the person under section 15 or to grant the person registration subject to conditions under that section,
(e) the Board’s cancellation of the person’s provisional registration as a dentist, temporary registration as a dentist or limited registration as a dentist,
(f) the Board’s refusal to register the person under clause 28 (Entitlement to re-registration if fee paid) of Schedule 1.
An appeal must be made within 28 days (or such longer period as the Chairperson may allow in a particular case) after notice of the decision is given to the person. The appeal is to be lodged with the Registrar who is to refer it to the Tribunal.
If the decision in respect of which an appeal is made was made as a consequence of an inquiry held by the Board, the appeal is to be dealt with by way of rehearing and fresh evidence or evidence in addition to or in substitution for the evidence received at the inquiry may be given.
An appeal does not affect any determination with respect to which it is made until the appeal is determined.
When it determines an appeal, the Tribunal may dismiss the appeal or order that the decision of the Board be revoked and replaced by a different decision made by the Tribunal and specified in the order. The Tribunal may also make such ancillary orders as it thinks proper.
The Tribunal’s decision is taken to be a decision of the Board (but this does not confer a right of appeal under this section in respect of the Tribunal’s decision).
No appeal lies under this Act against a decision of the Board under the Mutual Recognition laws in relation to its functions under that Act.
The Mutual Recognition laws provide that a person may, subject to the Administrative Appeals Tribunal Act 1975 of the Commonwealth, apply to the Administrative Appeals Tribunal for a review of a decision of a local registration authority in relation to its functions under the Mutual Recognition laws. Those functions include registration, the imposition or waiver of conditions on registration and the postponement, refusal or reinstatement of registration.
There are to be the following classes of dental auxiliary:
(a) dental hygienists,
(b) dental therapists,
(c) such other classes as may be prescribed by the regulations.
A reference in this Act to registration as a dental auxiliary is a reference to registration as a dental auxiliary in one or more of the classes of dental auxiliary.
The regulations are to prescribe activities as authorised activities for each class of dental auxiliary. An activity can only be prescribed as such an authorised activity if it constitutes a restricted dental practice.
A person must not indicate that the person carries out dental auxiliary activities or is qualified to carry out dental auxiliary activities unless the person is registered as a dental auxiliary of a class for which those activities are prescribed by the regulations as authorised activities.
Maximum penalty: 50 penalty units.
Without limiting the ways in which a person may be taken to have indicated that the person is qualified to carry out dental auxiliary activities or that the person carries out dental auxiliary activities, a person is taken to have so indicated if the person uses:
(a) any name, initials, word, title, symbol or description that (having regard to the circumstances in which it is used) indicates, or is capable of being understood to indicate, or is calculated to lead a person to infer, that the person is qualified to carry out dental auxiliary activities or that the person carries out dental auxiliary activities, or
(b) the titles “dental therapist”, “dental hygienist”, “dental auxiliary” or any name, title or description prescribed by the regulations either generally or for a class of dental auxiliaries.
This section does not apply to a registered dentist.
Section 10AF of the Public Health Act 1991 prohibits the carrying out of restricted dental practices by persons who are not registered dentists, medical practitioners or certain other persons in specified circumstances (including dental auxiliaries).
A person has the necessary qualifications for registration as a dental auxiliary of a particular class if the person:
(a) has such qualifications as may be prescribed by the regulations for that class of dental auxiliaries, or
(b) has successfully completed a course of study that is recognised by the Board as meeting criteria prescribed by the regulations for that class of dental auxiliaries for the purposes of this paragraph, or
(c) has such qualifications as may be approved by the Board for that class of dental auxiliaries on the recommendation of an accreditation body recognised by the Board for the purposes of this section, or
(d) has passed an examination arranged or approved by the Board to assess the person’s competence to carry out dental auxiliary activities prescribed as authorised activities for that class of dental auxiliaries.
An educational or training institution may apply to the Board for the recognition by the Board (under subsection (1) (b)) of a course of study offered by the institution. The institution may make application to the Administrative Decisions Tribunal for a review of the decision of the Board on the application.
In determining for the purposes of subsection (1) (b) whether a particular course of study meets the criteria prescribed by the regulations, the Board may have regard to and rely on any findings made on an assessment prepared for the Board in respect of the course of study.
In this section:
For the purposes of this Act, a person is competent to carry out dental auxiliary activities only if the person has sufficient physical capacity, mental capacity and skill to carry out dental auxiliary activities and has sufficient communication skills for the carrying out of dental auxiliary activities, including an adequate command of the English language.
For the purposes of this Act, a person suffers from an impairment as a dental auxiliary if the person suffers from any physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the person’s physical or mental capacity to carry out dental auxiliary activities.
For the purposes of this Act, a person who habitually abuses alcohol or is addicted to a deleterious drug is taken to suffer from an impairment as a dental auxiliary.
A person is entitled to registration as a dental auxiliary if the Board is satisfied that the person has the necessary qualifications for registration as a dental auxiliary and is of good character.
Registration under this section is
An entitlement to full registration does not prevent conditions being imposed on that registration in accordance with this Act.
Schedule 1 (Registration procedures) has effect with respect to full registration.
Under section 20 of the Mutual Recognition Act 1992 of the Commonwealth a person is entitled to be registered as a dental auxiliary if the person is registered in another State or a Territory for an equivalent occupation (if that State or Territory participates in the mutual recognition scheme). The entitlement arises once the person lodges a notice under section 19 of that Act and, until registered under this Act, the person is then deemed (by section 25 of that Act) to be registered. See also the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.
Registration as a dental auxiliary may be granted:
(a) to a person entitled to full registration, pending the Board’s determination of the person’s application for full registration, or
(b) to a person who will be entitled to full registration when a degree, diploma, certificate or other academic award to which the person is entitled is granted or conferred, pending its grant or conferral.
Registration under this section is
Provisional registration is granted by the Board or the President. In the President’s absence it can be granted by any member of the Board authorised by the Board to do so. Provisional registration is granted by the grant of a certificate of provisional registration.
A person granted provisional registration is a registered dental auxiliary until the registration expires or is cancelled. Provisional registration expires on the date stated in the certificate or such later date as may be fixed by the Board.
The Board may impose such conditions as it thinks fit on a person’s provisional registration and may at any time remove, add to or vary those conditions by notice in writing to the registered person.
The Board may cancel a person’s provisional registration for any reason that the Board considers proper. Cancellation does not affect any application for registration by the person.
If a person granted provisional registration is granted full registration before the person’s provisional registration expires, the person’s full registration dates from the granting of provisional registration, unless the Board decides otherwise.
Registration as a dental auxiliary for a limited period may be granted to a person who is not normally resident in New South Wales, for the purpose of enabling the person to carry out educational or research activities or such other activities as the Board considers to be in the public interest.
Registration under this section is
Temporary registration can only be granted to a person:
(a) who is registered as a dental auxiliary in accordance with a law in force in the person’s normal place of residence providing for the registration or certification of dental auxiliaries, or
(b) who holds such qualifications or has such experience in the provision of dental auxiliary activities as the Board considers satisfactory for the purposes of temporary registration.
Temporary registration is granted by the Board by the grant of a certificate of temporary registration.
A person granted temporary registration is a registered dental auxiliary until the temporary registration expires or is cancelled. Temporary registration expires on the date stated in the certificate unless the period of temporary registration is extended.
The Board may extend and further extend a period of temporary registration by the issue of a further certificate of temporary registration.
The Board may cancel a person’s temporary registration for any reason that the Board considers proper. Cancellation does not affect any application for full registration by the person.
The Board may impose such conditions as it thinks fit on the temporary registration of a person and may at any time remove, add to or vary those conditions by notice in writing to the registered person.
The Board may refuse to register a person who would otherwise be entitled to full registration if:
(a) the Board is of the opinion, following an inquiry under Schedule 1, that the person is not competent to carry out dental auxiliary activities or suffers from an impairment, or
(b) the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside the State, and the Board is of the opinion that the circumstances of the offence are such as to render the person unfit in the public interest to carry out dental auxiliary activities, or
(c) the person’s registration under a health registration Act has been cancelled or suspended because of conduct that would (if the person were a registered dental auxiliary) authorise cancellation or suspension of the person’s registration under this Act, or
(d) the person’s registration or certification under a dental auxiliaries registration law has been cancelled or suspended because of conduct that would (if it occurred in New South Wales and the person were a registered dental auxiliary) authorise cancellation or suspension of the person’s registration under this Act.
As an alternative to refusing to register a person under subsection (1), the Board may grant the person registration subject to conditions if the Board considers that refusal of registration is not warranted and that the person should be granted registration subject to appropriate conditions.
Conditions of registration may relate to the duration of registration, the aspects of the practice in which the person may be engaged, and any other matters, as the Board thinks appropriate.
The Mutual Recognition laws also provide for the imposition of conditions on registration. Conditions can also be imposed on a person’s registration as a result of disciplinary proceedings to which the person has been subject.
In this section:
A person ceases to be registered as a dental auxiliary if the person’s name is removed from the Dental Auxiliaries Register. A reference in this Act to the cancellation of a dental auxiliary’s registration is a reference to the removal of the dental auxiliary’s name from the Dental Auxiliaries Register.
A person whose registration as a dental auxiliary is suspended is taken not to be a registered dental auxiliary during the period of the suspension, except for the purposes of Part 5 (Complaints and disciplinary proceedings).
A person cannot apply for registration as a dental auxiliary (and any such application must be rejected) if:
(a) the person’s registration as a dental auxiliary is cancelled pursuant to an order of the Chairperson or a Deputy Chairperson, the Tribunal or the Supreme Court, or
(b) the Chairperson or a Deputy Chairperson, the Tribunal or the Supreme Court orders that the person not be re-registered.
The only way such a person can again be registered is on a review under Division 3 of Part 7 of the order by which the person’s registration was cancelled.
A person who is aggrieved by any of the following decisions of the Board may appeal to the Tribunal against the decision:
(a) the Board’s refusal to grant the person full registration as a dental auxiliary,
(b) the Board’s refusal to grant the person temporary registration as a dental auxiliary,
(c) the Board’s decision to refuse to register the person under section 27 or to grant the person registration subject to conditions under that section,
(d) the Board’s cancellation of the person’s provisional registration or temporary registration,
(e) the Board’s refusal to register the person under clause 28 (Entitlement to re-registration if fee paid) of Schedule 1.
An appeal must be made within 28 days (or such longer period as the Chairperson may allow in a particular case) after notice of the decision is given to the person. The appeal is to be lodged with the Registrar who is to refer it to the Tribunal.
If the decision in respect of which an appeal is made was made as a consequence of an inquiry held by the Board, the appeal is to be dealt with by way of rehearing and fresh evidence or evidence in addition to or in substitution for the evidence received at the inquiry may be given.
An appeal does not affect any determination with respect to which it is made until the appeal is determined.
When it determines an appeal, the Tribunal may dismiss the appeal or order that the decision of the Board be revoked and replaced by a different decision made by the Tribunal and specified in the order. The Tribunal may also make such ancillary orders as it thinks proper.
The Tribunal’s decision is taken to be a decision of the Board (but this does not confer a right of appeal under this section in respect of the Tribunal’s decision).
No appeal lies under this Act against a decision of the Board under the Mutual Recognition laws in relation to its functions under that Act.
The Mutual Recognition laws provide that a person may, subject to the Administrative Appeals Tribunal Act 1975 of the Commonwealth, apply to the Administrative Appeals Tribunal for a review of a decision of a local registration authority in relation to its functions under the Mutual Recognition laws. Those functions include registration, the imposition or waiver of conditions on registration and the postponement, refusal or reinstatement of registration.
Section 10AF of the Public Health Act 1991 prohibits the carrying out of restricted dental practices by persons who are not registered dentists, medical practitioners, or certain other persons in specified circumstances (including dental auxiliaries).
A registered dentist must not use any certificate, diploma, membership, degree, licence, letters, testimonial or other title, status, document or description in relation to himself or herself as a dentist or the practice of dentistry other than those (if any) that the Board from time to time authorises the dentist to use.
Maximum penalty: 10 penalty units.
A registered dental auxiliary must not use the title “doctor” in the course of carrying out dental auxiliary activities unless the dental auxiliary is the holder of a qualification conferred by a university that entitles the dental auxiliary to use that title and that qualification is a recognised qualification at the time the dental auxiliary uses the title.
Maximum penalty: 10 penalty units.
A registered dental auxiliary must not use the title of a particular class of dental auxiliary unless the person is registered as a dental auxiliary of that class.
In this section:
(a) a qualification that is prescribed by the regulations as a recognised qualification, or
(b) when no qualification is prescribed under paragraph (a), a qualification that is for the time being recognised by the Board for the purposes of this section.
See also section 105 (Use of misleading titles etc) of the Medical Practice Act 1992.
A registered dental auxiliary must not carry out a dental auxiliary activity unless the person:
(a) is a registered dental auxiliary of a class for which the activity is prescribed by the regulations as an authorised activity, and
(b) carries out the activity subject to the practice oversight of a registered dentist in accordance with guidelines approved by the Director-General from time to time.
(Repealed)
Nothing in this Act (except section 137D) prevents a registered dentist from practising dentistry as the director or employee of any corporation or in the course of employment by, or in association with, any body or person.
The Board may establish codes of professional conduct setting out guidelines that should be observed by registered dentists or registered dental auxiliaries in their professional practice. The Board may from time to time amend or replace a code of professional conduct.
The Minister may require the Board to develop guidelines relating to any conduct of registered dentists or registered dental auxiliaries that the Minister considers should be the subject of a code of professional conduct.
For that purpose, the Minister may:
(a) direct the Board to establish a code of professional conduct, or
(b) direct the Board to amend or replace a code of professional conduct,
so that the code includes guidelines relating to that conduct.
The Board is to comply with any such direction of the Minister.
The provisions of a code of professional conduct are a relevant consideration in determining for the purposes of this Act what constitutes proper and ethical conduct by a dentist or dental auxiliary.
The procedure for the establishment of a code of professional conduct is as follows:
(a) the Board is to prepare a proposed code in draft form and is to prepare an impact assessment statement for the proposed code in accordance with such requirements as the Minister may from time to time determine,
(b) the draft code and impact assessment statement are to be publicly exhibited for a period of at least 21 days,
(c) the Board is to seek public comment on the draft code during the period of public exhibition and public comment may be made during the period of public exhibition and for 21 days (or such longer period as the Board may determine) after the end of that period,
(d) the Board is to submit the draft code to the Minister for approval together with a report by the Board giving details of public comment received during the period allowed for public comment and the Board’s response to it,
(e) the Board is not to establish the draft code as a code of professional conduct unless the Minister approves the draft.
The procedure for the amendment or replacement of a code of professional conduct is the same as for the establishment of the code unless the Minister otherwise directs in respect of a particular amendment.
A registered dental care provider must, on or before the return date in each year, furnish in writing to the Board in a form approved by the Board a return for the return period specifying the following information:
(a) details of any conviction of the dental care provider for an offence in this State or elsewhere during the return period (together with details of any penalty imposed for the offence),
(b) details of the making of a sex/violence criminal finding against the dental care provider for an offence, in this State or elsewhere, during the return period (together with details of any penalty imposed for the offence),
(c) details of the making of a criminal finding against the dental care provider for an offence committed in the course of the practice or purported practice of dentistry, or the carrying out or purported carrying out of dental auxiliary activities, in this State or elsewhere, during the return period (together with details of any penalty imposed for the offence),
(d) details of any criminal proceedings pending against the dental care provider at the end of the return period, in this State or elsewhere, for a sex/violence offence alleged to have been committed in the course of the practice or purported practice of dentistry, or the carrying out or purported carrying out of dental auxiliary activities,
(e) details of any criminal proceedings pending against the dental care provider at the end of the return period, in this State or elsewhere, for a sex/violence offence alleged to have been committed against a minor or to involve child pornography (whether or not alleged to have been committed in the course of the practice or purported practice of dentistry, or the carrying out or purported carrying out of dental auxiliary activities),
(f) details of any significant illness (physical or mental) from which the dental care provider suffered at any time during the return period and that may reasonably be thought likely to detrimentally affect the dental care provider’s physical or mental capacity to practise dentistry or to carry out dental auxiliary activities,
(g) details of any suspension of, cancellation of, or imposition of conditions on, the registration of the dental care provider as a dentist or a dental auxiliary in another jurisdiction (either within Australia or elsewhere) during the return period,
(h) details of any suspension of, cancellation of, or imposition of conditions on, any registration of the dental care provider under a health registration Act during the return period,
(i) a statement as to whether the dental care provider is registered under a health registration Act as at the date of the return,
(j) a statement as to whether the dental care provider has been refused registration as a dentist or dental auxiliary in another jurisdiction (either within Australia or elsewhere) during the return period,
(k) details of any continuing professional education and development undertaken by the dental care provider during the return period,
(l) such other information as may be prescribed by the regulations.
The Board may require a return under this section to be verified by statutory declaration.
The regulations may provide that subsection (1) (a) does not apply in respect of particular offences.
In this section:
A registered dental care provider must notify the Board in writing within 7 days after:
(a) the dental care provider is convicted of an offence or made the subject of a sex/violence criminal finding for an offence, in this State or elsewhere, giving details of the conviction or criminal finding and any penalty imposed for the offence, or
(b) criminal proceedings are commenced against the dental care provider, in this State or elsewhere, in respect of a sex/violence offence alleged to have been committed in the course of the practice or purported practice of dentistry, or the carrying out or purported carrying out of dental auxiliary activities, or
(c) criminal proceedings are commenced against the dental care provider, in this State or elsewhere, in respect of a sex/violence offence alleged to have been committed against a minor or to involve child pornography (whether or not alleged to have been committed in the course of the practice or purported practice of dentistry, or the carrying out or purported carrying out of dental auxiliary activities).
The regulations may provide that subsection (1) (a) does not apply in respect of particular offences.
As soon as practicable after a registered dental care provider is convicted of an offence or a sex/violence criminal finding is made against a registered dental care provider, the Clerk or other proper officer of the court must (if the court is aware that the person is a registered dental care provider) notify the Board of the conviction or criminal finding together with details of any penalty imposed for the offence.
The regulations may provide that this section does not apply in respect of particular offences.
If a registered dental care provider or dental student becomes a mentally incapacitated person, the person prescribed by the regulations must cause notice of that fact to be given to the Registrar in accordance with the regulations.
For the purposes of this Act,
For the purposes of this Act,
(a) any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the dentist in the practice of dentistry is significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience,
(a1) engaging in overservicing as provided by subsection (2),
(b) a contravention by the dentist of a provision of this Act or the regulations or of a condition of the dentist’s registration,
(c) (Repealed)
(d) a failure without reasonable excuse by the dentist to comply with a direction by the Board to provide information with respect to a complaint under this Part against the dentist,
(e) a failure by the dentist to comply with an order made or a direction given by the Board or the Tribunal under this Act,
(f) a contravention by the dentist of section 34A (4) (Power of Commission to obtain information, records and evidence) of the Health Care Complaints Act 1993,
(g) (Repealed)
(h) any other improper or unethical conduct by a dentist in the course of the practice or purported practice of dentistry.
A dentist engages in overservicing if the dentist, in the course of professional practice:
(a) provides a service in circumstances in which provision of the service is unnecessary, not reasonably required or excessive, or
(b) engages in conduct that is prescribed by the regulations as constituting overservicing.
For the purposes of this Act,
(a) any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the dental auxiliary in the carrying out of dental auxiliary activities is significantly below the standard reasonably expected of a dental auxiliary of an equivalent level of training or experience,
(b) a contravention by the dental auxiliary of a provision of this Act or the regulations or of a condition of the dental auxiliary’s registration,
(c) a failure without reasonable excuse by the dental auxiliary to comply with a direction by the Board to provide information with respect to a complaint under this Part against the dental auxiliary,
(d) a failure by the dental auxiliary to comply with an order made or a direction given by the Board or the Tribunal under this Act,
(d1) a contravention by the dental auxiliary of section 34A (4) (Power of Commission to obtain information, records and evidence) of the Health Care Complaints Act 1993,
(e) any other improper or unethical conduct by a dental auxiliary in the course of the carrying out or purported carrying out of dental auxiliary activities.
In section 54, Divisions 3, 4 and 5 of this Part and Divisions 1 and 2 of Part 7 (Appeals and review of disciplinary action), a reference to a complaint includes a reference to a matter arising out of the investigation of a complaint in accordance with this or any other Act.
A complaint may be made under this Act concerning:
(a) the professional conduct of a registered dental care provider, or
(b) the provision of a dentistry service by a registered dentist, or
(c) the provision of a dental auxiliary service by a registered dental auxiliary.
Subsection (1) ensures consistency between this Act and the Health Care Complaints Act 1993 with respect to the kinds of complaints that can be made about registered dental care providers.
Without limiting the generality of subsection (1), a complaint may be made that a registered dental care provider:
(a) has, either in or outside New South Wales, been convicted of or made the subject of a criminal finding for an offence, and the circumstances of the offence are such as to render the dental care provider unfit in the public interest to be registered as a dental care provider, or
(b) is guilty of unsatisfactory professional conduct or professional misconduct, or
(c) in the case of a dentist—is not competent to practise dentistry, or
(d) in the case of a dental auxiliary—is not competent to carry out dental auxiliary activities, or
(e) suffers from an impairment, or
(f) is not of good character.
A complaint need not be made in terms that are strictly in accordance with the terminology of this section.
In determining for the purposes of this Act whether a dental care provider is of good character regard may be had to conduct of the dental care provider before becoming registered as a dental care provider.
A complaint about a registered dental care provider may be made and dealt with even though the dental care provider has ceased to be registered. For that purpose, a reference in this Part to a dental care provider or registered dental care provider includes a reference to a person who has ceased to be registered or whose registration is suspended.
Any person (including the Board) can make a complaint.
Complaints are to be made to the Board and are to be lodged with the Registrar.
Complaints may also be made to the Commission.
A complaint must be in writing, must identify the complainant and must contain particulars of the allegations on which it is founded.
(Repealed)
The Board may consider and investigate a complaint even if it does not comply with the requirements of this section (except the requirement that it identify the complainant) but must not proceed to deal with the complaint under this Part until they are complied with.
The Board may require the complainant to provide further particulars of a complaint.
The Board must notify the Commission of any complaint made under this Part and this is to be done as soon as practicable after the complaint is made.
(Repealed)
The Board may make such inquiries concerning a complaint as it thinks fit.
Before the Board deals with or refers a complaint under this Part, the Board and the Commission must consult in order to see if agreement can be reached between them as to the course of action to be taken concerning a complaint.
Division 2 of Part 2 of the Health Care Complaints Act 1993 applies to the consultation and the outcomes of the consultation.
When a complaint is made, the Board may at any time decide:
(a) to refer the complaint for investigation by the Commission, or
(b) to refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the Health Care Complaints Act 1993, or
(c) to refer the complaint to the Dental Care Assessment Committee under Division 3, or
(d) to refer the matter to an Impaired Registrants Panel under Part 6, or
(e) to deal with the complaint by inquiry at a meeting of the Board under Division 4, or
(f) to refer the complaint to the Tribunal, or
(g) to deal with the complaint by directing the dental care provider to attend counselling, or
(h) to deal with the complaint by providing advice or making recommendations to the dental care provider, or
(i) to decline to deal with or dismiss the complaint.
If the Commission recommends to the Board in accordance with the Health Care Complaints Act 1993 that a complaint (whether made under that Act or this Act) be dealt with by inquiry at a meeting of the Board under Division 4, the Board must comply with that recommendation (but only if the complaint is of a kind that can be made under this Act).
The Board may decline to deal with a complaint if the dental care provider concerned has ceased to be registered.
The Board may decline to deal with a complaint if the complainant fails to provide further particulars required by the Board.
A complaint may be withdrawn by the complainant at any time. The Board and the Commission are to consult as to whether the complaint should be proceeded with in the public interest.
The Board is to notify the dental care provider of any action taken by the Board under this section.
Both the Board and the Commission are under a duty to refer a complaint to the Tribunal if at any time either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of the dental care provider’s registration.
However, either the Board or the Commission may decide not to refer the complaint to the Tribunal if of the opinion that the allegations on which the complaint is founded (and on which any other pending complaint against the dental care provider is founded) relate solely or principally to the physical or mental capacity of the dental care provider:
(a) in the case of a dentist—to practise dentistry, or
(b) in the case of a dental auxiliary—to carry out dental auxiliary activities.
If the Board decides not to refer the complaint to the Tribunal, the Board must instead deal with the complaint at a meeting of the Board under Division 4. If the Commission decides not to refer the complaint to the Tribunal, the Commission must instead refer the complaint to the Board.
This section does not require the Board or the Commission to refer a complaint that the Board or Commission thinks is frivolous or vexatious.
The Board may, before or while taking any action under this Part or Part 6 (Impairment), by notice to the dental care provider concerned, require the dental care provider to undergo an examination at the Board’s expense by a medical practitioner, or other appropriate health professional, specified in the notice, at any reasonable time and place specified in the notice.
A failure by a dental care provider, without reasonable cause, to comply with a notice given under this section to undergo an examination is, for the purposes of this Part or any inquiry or appeal under this Part, evidence that the dental care provider does not have sufficient physical and mental capacity:
(a) in the case of a dentist—to practise dentistry, or
(b) in the case of a dental auxiliary—to carry out dental auxiliary activities.
A medical practitioner or other health professional who conducts an examination under this section is to report to the Board on the results of the examination. The Board is to provide a copy of the report to the dental care provider.
A person must not directly or indirectly make a record of or divulge to any person any information contained in a report to the Board under this section that has come to the person’s notice in the exercise of the person’s functions under this Act, except for the purpose of exercising functions under this Act.
Maximum penalty: 50 penalty units.
A person cannot be required in civil proceedings in any court to produce or permit access to any report made to the Board under this section or to divulge the contents of any such report.
In this section:
The Board is required to give notice of any order made in respect of a registered dental care provider under this Act, or the placing of conditions on the registration of a registered dental care provider, to the following persons:
(a) the employer (if any) of the dental care provider concerned,
(b) the chief executive officer (however described) of any public health organisation in respect of which the dental care provider concerned is a visiting practitioner or is otherwise accredited,
(c) the chief executive officer (however described) of any private health facility (within the meaning of the Private Health Facilities Act 2007) in respect of which the dental care provider concerned is accredited,
(d) the chief executive officer (however described) of any nursing home (within the meaning of the Public Health Act 1991) in respect of which the dental care provider concerned is accredited.
The notice is to be given within 7 days after:
(a) in the case of an order made or conditions imposed by the Board—the date the order is made or the conditions are imposed, or
(b) in any other case—the date the Board is given a copy of the decision of the body that made the order or imposed the conditions.
The notice is to include such information as the Board considers appropriate.
The Board may refer a complaint to the Committee only if the Commission has decided not to investigate the complaint.
A complaint may not be referred to the Committee if it is a complaint that the dental care provider is not of good character or has been convicted of or made the subject of a criminal finding for an offence.
This section does not operate to limit the Committee in the exercise of its functions under this Division in respect of any matter that arises in the course of the Committee’s investigation of a complaint.
When a complaint is referred to the Committee, the Committee is to investigate the complaint and may in any particular case encourage the complainant and the dental care provider against whom the complaint is made to settle the complaint by consent.
The Committee may obtain such dental, medical, legal, financial or other advice as it thinks necessary or desirable to enable it to exercise its functions.
Any such advice obtained by the Committee may not, unless otherwise ordered by the Board, be admitted or used in any civil proceedings before a court and a person may not be compelled to produce the advice or to give evidence in relation to the advice in any such civil proceedings.
The Committee may not determine a complaint referred to it except by settlement by consent.
The Committee is to make a report to the Board on a complaint referred to it whether or not it is able to effect settlement of the complaint by consent.
The Committee is to, at the request of the Board, by notice to the dental care provider who is the subject of a complaint referred to the Committee, require the dental care provider to undergo skills testing at the Board’s expense by an appropriately qualified person specified in the notice, at any reasonable time and place specified in the notice.
A failure by a dental care provider, without reasonable cause, to comply with a notice given under this section to undergo skills testing is, for the purposes of this Part or any inquiry or appeal under this Part, evidence that the dental care provider does not have sufficient skill:
(a) in the case of a dentist—to practise dentistry, or
(b) in the case of a dental auxiliary—to carry out dental auxiliary activities.
The person who conducts skills testing under this section is to report to the Committee on the results of the examination. The Committee is to provide a copy of the report to the dental care provider.
A person must not directly or indirectly make a record of or divulge to any person any information contained in a report to the Committee under this section that has come to the person’s notice in the exercise of the person’s functions under this Act, except for the purpose of exercising functions under this Act.
Maximum penalty: 50 penalty units.
A person cannot be required in civil proceedings in any court to produce or permit access to any report made to the Committee under this section or to divulge the contents of any such report.
In this section:
The Committee’s report to the Board may include such recommendations with respect to the complaint as the Committee considers appropriate, including (without being limited to) any of the following recommendations:
(a) a recommendation that the Board deal with the complaint by inquiry at a meeting of the Board as a complaint of unsatisfactory professional conduct,
(b) a recommendation that the Board direct the dental care provider to attend counselling,
(c) a recommendation that the Board dismiss the complaint.
The Board is to provide the dental care provider and the Commission with a copy of the Committee’s report and recommendations as soon as practicable after the report is made.
The Board must comply with a recommendation of the Committee that the Board deal with the complaint by inquiry at a meeting of the Board as a complaint of unsatisfactory professional conduct.
Otherwise the Board is to allow the Commission and the dental care provider at least 21 days after they have been provided with a copy of the Committee’s report and recommendations to make submissions in respect of the report and recommendations.
After considering the Committee’s report and recommendations and any submissions made by the dental care provider or the Commission in respect of the report or recommendations, the Board is to proceed to deal with the complaint as provided by section 53.
This section is subject to section 54 (Serious complaints must be referred to Tribunal).
A complainant and the dental care provider against whom the complaint is made are not entitled to be legally represented at any appearance before the Committee.
If the Board decides to deal with a complaint by inquiry at a meeting of the Board, the meeting is to be held in accordance with Schedule 3 and this Division.
The Board may be assisted by an Australian lawyer when dealing with a complaint at a meeting of the Board.
The Board is to provide the Commission with a copy of any submission made to the Board by the dental care provider in respect of the complaint or in respect of any recommendation of the Committee concerning the complaint.
The procedure for the calling of a meeting to deal with a complaint and for the conduct of the meeting is, subject to this Act and the regulations, to be as determined by the Board.
At a meeting to deal with a complaint, the Board:
(a) may inform itself on any matter in such manner as it thinks fit, and
(b) may receive written or oral submissions, and
(c) is to proceed with as little formality and technicality, and as much expedition, as the requirements of this Act and the proper consideration of the complaint permit, and
(d) is not bound by rules of evidence, and
(e) may proceed to deal with the complaint in the absence of the dental care provider.
The dental care provider is entitled to attend the meeting during the course of the Board’s inquiry and to make submissions to the Board.
The Committee may, if the Board so requires, make a submission to the Board with respect to the complaint and may for that purpose attend the meeting during the course of the Board’s inquiry.
The Board is to afford the Commission the opportunity to make a submission to the Board with respect to the complaint and the Commission may for that purpose attend the meeting during the course of the Board’s inquiry.
The Committee or the Commission may not be present at the meeting except while actually making a submission in accordance with this section, unless the Board otherwise determines.
Despite subsection (4), the Commission is to be present throughout the Board’s inquiry where the complaint is the subject of a recommendation of the Commission under section 53 (2) that it be dealt with by inquiry at a meeting of the Board under this Division.
The dental care provider is not entitled to be legally represented at the inquiry but may be accompanied by a support person. The support person can be an Australian lawyer.
The Commission is not entitled to be legally represented at the inquiry.
The Board must, within 30 days of making its decision on a complaint, make available to the complainant, the dental care provider concerned and such other persons as it thinks fit, a written statement of the decision.
If the Commission made a submission to the Board with respect to the complaint, the Board is to provide the Commission with a copy of the written statement of the decision.
The written statement of a decision must give the reasons for the decision.
The Board is not required to include confidential information in any such statement. If a statement would be false or misleading if it did not include the confidential information, the Board is not required to provide the statement.
When confidential information is not included in the statement of a decision provided to a person or the statement is not provided to a person because of subsection (4), the Board must give a confidential information notice to the person.
A
This section does not affect the power of a court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to a court.
In this section:
(a) has not previously been published or made available to the public when a written statement of a decision to which it is or may be relevant is being prepared, and
(b) relates to the personal or business affairs of a person, other than a person to whom the Board is required (or would, but for subsection (4), be required) to provide a written statement of a decision, and
(c) is information:
(i) that was supplied in confidence, or
(ii) the publication of which would reveal a trade secret, or
(iii) that was provided in compliance with a duty imposed by an enactment, or
(iv) the provision of which by the Board would be in breach of any enactment.
A finding of the Board under this Division is admissible as evidence in any legal proceedings.
The Board or the Tribunal may exercise any power or combination of powers conferred on it by this Division if the Board (pursuant to an inquiry at a meeting of the Board under Division 4) or the Tribunal finds the subject-matter of a complaint of a kind referred to in section 44 (2) to have been proved or the person admits to it in writing to the Board or the Tribunal.
In addition, the Board may exercise any power conferred on it by section 69 (1) (b) if the Board (after considering a report from the Committee) finds the subject-matter of a complaint to have been proved or the person admits to it in writing to the Board, whether or not the complaint is of a kind referred to in section 44 (2).
The Board may do any one or more of the following:
(a) caution or reprimand the person,
(b) make an order for the withholding or refunding of part or all of the payment with respect to the fees to be charged or paid for the dental care services that are the subject of the complaint,
(c) order that the person seek and undergo medical or psychiatric treatment or counselling,
(d) direct that such conditions relating to the person’s practice of dentistry or carrying out of dental auxiliary activities as it considers appropriate be imposed on the person’s registration,
(e) order that the person complete a specified educational course or courses,
(f) order that the person report on his or her dentistry practice or dental auxiliary practice at specified times, in a specified manner and to specified persons,
(g) order that the person seek and take advice, in relation to the management of his or her dentistry practice or dental auxiliary practice, from a specified person or persons.
If the person is not registered, an order or direction can still be given under this section but has effect only so as to prevent the person being registered unless the order is complied with or to require the conditions concerned to be imposed when the person is registered, as appropriate.
The Board may recommend that the registration of a dental care provider be suspended for a specified period or cancelled if the Board is satisfied (when it finds on a complaint about the dental care provider) that the dental care provider does not have sufficient physical and mental capacity:
(a) in the case of a dentist—to practise dentistry, or
(b) in the case of a dental auxiliary—to carry out dental auxiliary activities.
If the dental care provider is not registered, a recommendation can be made under this section that the dental care provider not be re-registered.
The Board makes its recommendation by referring the matter with its recommendation to the Chairperson or to a Deputy Chairperson nominated by the Chairperson.
The Chairperson or Deputy Chairperson may then make an order in the terms recommended or may make such other order as to the suspension or registration of the dental care provider as the Chairperson or Deputy Chairperson thinks proper based on the findings of the Board.
An order may also provide that an application for review of the order under Division 3 of Part 7 may not be made until after a specified time.
Instead of making an order under this section, the Chairperson or Deputy Chairperson may exercise any power or combination of powers of the Board under this Division.
The Tribunal may exercise any power that the Board can exercise under this Division, except a power conferred on the Board by section 68 (2).
The Tribunal may by order suspend a person’s registration for a specified period or direct that a person’s registration be cancelled if the Tribunal is satisfied (when it finds on a complaint about the person):
(a) that the person is not competent:
(i) in the case of a dentist—to practise dentistry, or
(ii) in the case of a dental auxiliary—to carry out dental auxiliary activities, or
(b) that the person is guilty of professional misconduct, or
(c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence are such as to render the person unfit in the public interest:
(i) in the case of a dentist—to practise dentistry, or
(ii) in the case of a dental auxiliary—to carry out dental auxiliary activities, or
(d) that the person is not of good character.
An order that a person’s registration be cancelled is an order that the person’s name be removed from the Dentists Register or the Dental Auxiliaries Register or (if the person has already ceased to be registered) that the person not be re-registered.
If the Tribunal makes an order under subsection (2) in respect of a person and it is satisfied that the person poses a substantial risk to the health of members of the public, it may by order (a
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently,
(b) place such conditions as the Tribunal thinks appropriate on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Section 10AK (1) of the Public Health Act 1991 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
If the Tribunal is aware that a person in respect of whom it is proposing to make a prohibition order is registered under a health registration Act other than this Act, the Tribunal is, before making the prohibition order, to notify the board constituted under that other Act of the proposed order and give that board an opportunity to make a submission.
An order may also provide that an application for review of the order under Division 3 of Part 7 may not be made until after a specified time.
The Board must, if at any time it is satisfied that such action is necessary for the purpose of protecting the life or physical or mental health of any person:
(a) by order suspend the registration of a registered dental care provider for such period (not exceeding 8 weeks) as is specified in the order, or
(b) impose on:
(i) a registered dentist’s registration such conditions, relating to the dentist’s practising dentistry, as it considers appropriate, or
(ii) a registered dental auxiliary’s registration such conditions, relating to the dental auxiliary’s carrying out of dental auxiliary activities, as it considers appropriate.
The Board may take such action:
(a) whether or not a complaint has been made or referred to the Board about the dental care provider, and
(b) whether or not proceedings in respect of such a complaint are before the Tribunal.
The Board may at any time alter or remove conditions imposed under this Division.
The Board must, as soon as practicable after taking any action under section 72 and, in any event, within 7 days after taking that action, refer the matter to the Commission for investigation.
The matter is to be dealt with by the Commission as a complaint made to the Commission against the dental care provider concerned.
The Commission is to investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation, refer the complaint to the Tribunal or to the Board to be dealt with by inquiry at a meeting of the Board under Division 4.
Section 54 (Serious complaints must be referred to Tribunal) applies in respect of any such action by the Commission.
This section does not apply if the Board takes action against a registered dental care provider under section 72 because the Board is of the opinion that the dental care provider suffers from an impairment.
This section applies if the Board takes action against a registered dental care provider under section 72 because the Board is of the opinion that the dental care provider suffers from an impairment.
The Board must, as soon as practicable after taking that action and, in any event, within 7 days after taking that action, notify the Commission that it has taken that action.
The Board is to consult with the Commission to see if agreement can be reached as to whether the matter should be:
(a) dealt with as a complaint against the dental care provider, or
(b) referred to an Impaired Registrants Panel.
The matter is to be dealt with as a complaint against the dental care provider only if, following that consultation:
(a) the Board and the Commission agree that it should be dealt with as a complaint, or
(b) either the Board or the Commission is of the opinion that the matter should be dealt with as a complaint.
In such a case, the Board is to refer the matter to the Commission and the matter is to be dealt with by the Commission as a complaint made to the Commission against the dental care provider concerned.
The Commission is to investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation, refer the complaint to the Tribunal or to the Board to be dealt with by inquiry at a meeting of the Board under Division 4.
Section 54 (Serious complaints must be referred to Tribunal) applies in respect of any such action by the Commission.
If subsection (4) does not apply, the Board is to refer the matter to an Impaired Registrants Panel.
A matter may be referred to an Impaired Registrants Panel under this section even though the dental care provider has been suspended under section 72. Part 6 applies in respect of such a referral as if the dental care provider were a registered dental care provider.
If the Board suspends the registration of a registered dental care provider under section 72, the Board must notify the Chairperson that it has taken that action as soon as practicable after making the order and, in any event, within 7 days.
A period of suspension imposed by the Board under this Division may be extended, from time to time, by the Board by order for a further period or further periods, each of not more than 8 weeks, but only if:
(a) the extension has been approved in writing by the Chairperson or a Deputy Chairperson, and
(b) the complaint about the dental care provider has not been disposed of.
On the expiration of a period of suspension imposed under this Division, the person’s rights and privileges as a registered dental care provider are revived, subject to any order of the Tribunal on the complaint that is referred to the Tribunal.
This section applies if the Board imposes conditions on the registration of a registered dental care provider under section 72 and the matter is dealt with as a complaint against the dental care provider.
The conditions imposed by the Board have effect until the complaint about the dental care provider is disposed of, or the conditions are removed by the Board, whichever happens first.
This section:
(a) does not prevent conditions being imposed under another provision of this Act, and
(b) is subject to anything done by the Tribunal on an appeal under section 97.
This section applies if the Board imposes conditions on the registration of a registered dental care provider under section 72 and the matter is referred to an Impaired Registrants Panel.
The conditions imposed by the Board have effect until:
(a) the complaint about the dental care provider is disposed of if the matter is subsequently dealt with by the Board as a complaint, or
(a) be present during any deliberation of the Board for the purpose of making the determination, or
(b) take part in the making by the Board of the determination.
A contravention of this clause does not invalidate any decision of the Board.
This clause does not apply to or in respect of an interest of a member in a matter that arises merely because the member is a dental care provider.
A reference in this clause to a meeting of the Board includes a reference to a meeting of a committee of the Board.
Part 2 of the Public Sector Management Act 1988 does not apply to or in respect of the appointment of a member.
If by or under any other Act provision is made:
(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or
(b) prohibiting the person from engaging in employment outside the duties of that office,
that provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member.
(Section 112)
The Minister may call the first meeting of the Board in such manner as the Minister thinks fit.
The procedure for the calling of meetings of the Board and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Board.
The quorum for a meeting of the Board is 7 members.
The President or, in the absence of the President, the Deputy President or, in the absence of both of them, another member of the Board elected to chair the meeting by the members present, is to preside at a meeting of the Board.
The person presiding at any meeting of the Board has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
A decision supported by a majority of the votes cast at a meeting of the Board at which a quorum is present is the decision of the Board.
The Board must cause full and accurate minutes to be kept of the proceedings of each meeting of the Board.
In any legal proceedings, proof is not required (until evidence is given to the contrary) of:
(a) the constitution of the Board, or
(b) any resolution of the Board, or
(c) the appointment of, or the holding of office by, any member of the Board, or
(d) the presence of a quorum at any meeting of the Board.
(Section 116)
One of the members referred to in section 115 (2) (a) is to be appointed by the Minister as the Chairperson of the Committee.
Subject to this Schedule, a member of the Committee holds office for such period, not exceeding 4 years, as may be specified in the instrument of appointment of the member, but is eligible (if otherwise qualified) for re-appointment.
A member of the Committee is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.
If the office of any member of the Committee becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
A member of the Committee is to be taken to have vacated office if the member:
(a) dies, or
(b) absents himself or herself from 4 consecutive meetings of the Committee of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the Minister or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the Minister for being absent from those meetings, or
(c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(d) becomes a mentally incapacitated person, or
(e) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(f) resigns the office by instrument in writing addressed to the Minister, or
(g) is removed from office by the Minister under subclause (3).
Without limiting the generality of subclause (1), a member who is appointed under section 115 (2) (a) or (b) and who ceases to be a registered dentist is to be taken to have vacated office.
The Minister may remove a member from office.
The procedure for the calling of meetings of the Committee and for the conduct of business at those meetings is, subject to this Act, to be as determined by the Committee.
The quorum for a meeting of the Committee is 3 members.
A decision supported by a majority of the votes cast at a meeting of the Committee at which a quorum is present is the decision of the Committee.
The Chairperson of the Committee or, in the absence of the Chairperson, another member of the Committee elected to chair the meeting by the members present, is to preside at a meeting of the Committee.
The person presiding at any meeting of the Committee has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
(Section 132)
In proceedings before it, the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit.
The Chairperson or Deputy Chairperson may summon a person to appear in proceedings before the Tribunal, to give evidence and to produce such documents (if any) as are referred to in the summons.
The person presiding at the proceedings may require a person appearing in the proceedings to produce a document.
The Tribunal may, in proceedings before it, take evidence on oath or affirmation and, for that purpose a member of the Tribunal:
(a) may require a person appearing in the proceedings to give evidence either to take an oath or to make an affirmation in a form approved by the person presiding, and
(b) may administer an oath to or take an affirmation from a person so appearing in the proceedings.
A person served with a summons to appear in any such proceedings and to give evidence must not, without reasonable excuse:
(a) fail to attend as required by the summons, or
(b) fail to attend from day to day unless excused, or released from further attendance, by a member of the Tribunal.
A person appearing in proceedings to give evidence must not, without reasonable excuse:
(a) when required to be sworn or to affirm—fail to comply with the requirement, or
(b) fail to answer a question that the person is required to answer by the person presiding, or
(c) fail to produce a document that the person is required to produce by this clause.
Maximum penalty: 20 penalty units.
A member of the Tribunal may, by notice in writing served on a person, require the person:
(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being a member of the Tribunal or a person authorised by the Tribunal in that behalf, and
(b) to produce, at that time and place, to the person so specified a document specified in the notice.
A person who fails, without reasonable excuse, to comply with a notice served on the person under this clause is guilty of an offence.
Maximum penalty: 20 penalty units.
The Tribunal may receive and admit on production, as evidence in any proceedings, such of the following as the Tribunal considers relevant to the proceedings:
(a) the judgment and findings of any court (whether civil or criminal and whether or not of New South Wales) or tribunal,
(b) the verdict or findings of a jury of any such court,
(c) a certificate of the conviction of or the making of a criminal finding in respect of any person,
(d) a transcript of the depositions or of shorthand notes, duly certified by the Registrar or clerk of the court or tribunal as correct, of the evidence of witnesses taken in any such court or tribunal.
The Tribunal may in proceedings before it deal with one or more complaints about a registered dental care provider.
If, during any such proceedings, it appears to the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the dental care provider concerned:
(a) whether instead of or in addition to the complaint that was made, and
(b) whether or not by the same complainant,
the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.
If another complaint is taken to have been referred to the Tribunal under subclause (2), the complaint may be dealt with after such an adjournment (if any) as is, in the opinion of the Tribunal, just and equitable in the circumstances.
The person presiding in proceedings before the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the dental care provider concerned or any other person):
(a) direct that the name of any witness is not to be disclosed in the proceedings, or
(b) direct that all or any of the following matters are not to be published:
(i) the name and address of any witness,
(ii) the name and address of a complainant,
(iii) the name and address of a dental care provider,
(iv) any specified evidence,
(v) the subject-matter of a complaint.
A direction may be amended or revoked at any time by the person presiding.
A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to:
(a) a person who requested the direction, and
(b) the complainant or the dental care provider concerned, as appropriate, and
(c) such other persons as the person presiding thinks fit.
For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
A person who contravenes a direction given under this clause is guilty of an offence.
Maximum penalty: 150 penalty units in the case of a body corporate and 20 penalty units in any other case.
Every document requiring authentication by the Tribunal may be sufficiently authenticated without the seal of the Tribunal, if signed by the Chairperson or by a member of the Tribunal authorised to do so by the Chairperson.
In any proceedings before the Tribunal, a person appointed by the Commission:
(a) may act as nominal complainant in place of the actual complainant, and
(b) when so acting, is, for the purposes of this Act and the regulations, to be taken to be the person who made the complaint.
A reference in this Act to a complainant includes a reference to a nominal complainant.
Without limiting the operation of clause 8, the Director-General personally (or an officer of the Department of Health appointed by the Director-General) or a person appointed by the Commission may intervene, and has a right to be heard, in any proceedings before the Tribunal.
The Director-General and the Commission may be represented by an Australian lawyer.
It is the duty of the Tribunal to hear inquiries and appeals under this Act and to determine those inquiries and appeals expeditiously.
Without affecting the generality of subclause (1), the Tribunal may postpone or adjourn proceedings before it as it thinks fit.
A certificate, purporting to have been signed by the Registrar, to the effect that:
(a) a person specified in the certificate was or was not a registered dental care provider at a time or during a period so specified, or
(b) the name of a person specified in the certificate was removed from the Dentists Register or the Dental Auxiliaries Register at a time so specified, or
(c) the registration of a person specified in the certificate was suspended from a time so specified and for a period so specified, or
(d) a condition, particulars of which are set out in the certificate, was, at a time or during a period so specified, imposed on the registration of a person so specified or revoked or not in force,
is, without proof of the signature of the person by whom the certificate purports to have been signed, to be received by the Tribunal and all courts as evidence of that fact.
The Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if:
(a) a complainant fails to comply with a requirement made of the complainant by the Tribunal, or
(b) the person about whom the complaint is made ceases to be a registered dental care provider.
The Tribunal must not conduct or continue any inquiry or any appeal if the dental care provider concerned dies.
The Tribunal may order the complainant, if any, the registered dental care provider concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at any inquiry or appeal before the Tribunal to pay such costs to such person as the Tribunal may determine.
When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect.
The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court is to enter judgment for the amount unpaid together with any fees paid for filing the certificate.
(Repealed)
(Section 161)
In this Schedule:
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• this Act
• National Competition Policy Health and Other Amendments (Commonwealth Financial Penalties) Act 2004, to the extent that it amends this Act
• Health Legislation Amendment (Unregistered Health Practitioners) Act 2006 (but only to the extent that it amends this Act)
Such a provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.
To the extent to which such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication.
A person who, immediately before the repeal of the 1989 Act, held office as a member of the old Board:
(a) ceases to hold office as such on that repeal, and
(b) is eligible (if otherwise qualified) to be appointed as a member of the new Board.
A person who ceases to hold office as a member of the old Board because of the operation of this Act is not entitled to be paid any remuneration or compensation because of ceasing to hold that office.
Despite subclause (1), a person who, immediately before the commencement of section 106, held office as an elected member of the old Board commences a new term of office, on the commencement of that section, as an elected member of the new Board (being a term that is, despite clause 4 (1) (b) of Schedule 2, equivalent to the balance of his or her term as an elected member of the old Board).
Nothing in subclause (3) prevents a member who holds office as an elected member of the new Board as a result of the operation of that subclause from being removed from office under clause 6 of Schedule 2.
Unless the regulations otherwise provide, anything done by or in relation to the old Board and having effect immediately before the dissolution of the old Board is taken to have been done by or in relation to the new Board.
For the purpose only of enabling the new Board to be constituted in accordance with this Act on or after (but not before) the commencement of section 106 (Constitution of the Board), elections may be held and appointments may be made under this Act, and anything else may be done, before that commencement, as if the whole of this Act commenced on the date of assent, but so that no appointment as a member of the new Board as so constituted takes effect before the commencement of section 106.
As soon as practicable after the commencement of this clause, the new Board is to compile the Register of Dentists from the relevant information and particulars entered in the Register kept under section 12 of the 1989 Act in respect of persons registered as dentists immediately before that commencement.
As soon as practicable after the commencement of this clause, the new Board is to compile the Register of Dental Auxiliaries.
For this purpose, the Board may obtain such information as is necessary to compile the Register.
A person who is a registered dentist under the 1989 Act immediately before the commencement of this clause is on that commencement taken to be a registered dentist under this Act. Registration under this Act is subject to the same conditions (if any) as the person’s registration under the 1989 Act was subject immediately before that commencement.
A certificate of provisional registration as a dentist in force under the 1989 Act immediately before the commencement of this clause is taken, on that commencement, to have been granted under this Act.
A licence to practise dentistry in force under the 1989 Act immediately before the commencement of this clause is taken, on that commencement, to be a certificate of limited registration granted under this Act.
A person who, immediately before the commencement of this clause, had the prescribed training referred to in section 57 (4) (c) or (e) of the 1989 Act is taken to be registered as a dental therapist under this Act during the transition period applicable to the person.
A person who, immediately before the commencement of this clause, had the prescribed training referred to in section 57 (4) (f) of the 1989 Act is taken to be registered as a dental hygienist under this Act during the transition period applicable to the person.
The transition period applicable to a person is the period that begins on the commencement of this clause and ends when the person actually becomes registered as a dental auxiliary under this Act or 6 months (or such longer period as may be prescribed by the regulations) after that commencement, whichever is sooner.
A person who, immediately before the commencement of this clause, was undertaking a course of study referred to in section 138 (1) (a) is taken to be registered as a dentistry student under this Act during the transition period applicable to the person.
A person who, immediately before the commencement of this clause, was undertaking a course of study referred to in section 138 (1) (b) is taken to be registered as a dental auxiliary student under this Act during the transition period applicable to the person.
The transition period applicable to a person is the period that begins on the commencement of this clause and ends when the person actually becomes registered as a dental student under this Act or 12 months after that commencement, whichever is sooner.
Any certificate, diploma, membership, degree, licence, letters, testimonial or other title, status, document or description that was, immediately before the commencement of this clause, authorised to be entered in connection with a dentist’s name in the Register under the 1989 Act is taken to be authorised for use by the dentist under section 31 of this Act (until the Board ceases to authorise its use by the dentist).
A fee paid or which remains unpaid under a provision of the 1989 Act immediately before its repeal is taken, on commencement of the relevant provision of this Act, to have been paid or to remain unpaid under the provision of this Act that corresponds to that provision and is taken to have been so paid or to so remain unpaid for or in relation to the same period as that which applied to the fee under the 1989 Act.
An application for registration as a dentist under the 1989 Act which had not been determined by the old Board before the repeal of that Act is taken to be an application for registration under this Act.
An appeal to the District Court under section 51 of the 1989 Act relating to a registered dentist that was pending immediately before the repeal of that Act is to be continued and disposed of as if, except as provided by subclause (2), this Act had not been enacted.
The decision of the Court on any such appeal is final, and binding on the new Board and the appellant and for the purposes of this Act is taken to be the final decision of the new Board.
A complaint made to the old Board concerning the conduct of a registered dentist under the 1989 Act and pending immediately before the repeal of that Act is, to the extent that the conduct concerned could be the subject of a complaint under this Act, to be dealt with as a complaint under this Act, except as provided by this clause.
If a complaint pending under the 1989 Act on the commencement of this clause is the subject of an inquiry by or appeal before the old Board immediately before that commencement:
(a) the complaint or appeal is to continue to be dealt with and determined under the 1989 Act as if the 1989 Act had not been repealed, and
(b) any finding, order, direction, decision or determination arising from or in connection with the determination of the complaint or appeal under the 1989 Act has effect for the purposes of the corresponding provision of this Act, and
(c) the 1989 Act continues to apply as if it had not been repealed for the purposes of any appeal against any such order, direction, decision or determination.
This clause applies for the purposes of this Act and for the purposes of the Health Care Complaints Act 1993 (including any conciliation under that Act) in its application to any complaint or investigation pending under the 1989 Act immediately before the repeal of the 1989 Act.
A complaint or investigation may be made under this Act with respect to conduct or any other matter or thing that occurred before, or partly before and partly after, the commencement of the provisions of this Act under which the complaint or investigation is made.
An approval under section 5 (4) (f) of the 1989 Act in force immediately before the commencement of this clause is taken, on that commencement, to be an approval under paragraph (g) of the definition of
Any finding, order, direction, decision or determination under Part 6 (Complaints and disciplinary proceedings) of the 1989 Act is, to the extent that it had any operation immediately before the commencement of this clause, taken to have been made under the corresponding provision of this Act and is to be given effect to accordingly.
Money standing to the credit of the Education and Research Account under the 1989 Act immediately before the commencement of this clause is to be paid to the credit of the Dental Education and Research Account under this Act.
Unless the regulations otherwise provide, on and from the commencement of this clause, a reference in any other Act, in any instrument made under any Act or in any other instrument of any kind:
(a) to the old Board is to be read as a reference to the new Board, and
(b) to the Registrar under the 1989 Act is to be read as a reference to the Registrar under this Act, and
(c) to the Register referred to in section 12 of the 1989 Act is to be read as a reference to the Register of Dentists under this Act, and
(d) to the registration of a person as a registered dentist under the 1989 Act is to be read as a reference to the registration of the person as a dentist under this Act.
In this Part:
The Tribunal may make a prohibition order under section 71 (3A) with respect to either or both of the following:
(a) conduct or any other matter or thing that occurred before, or partly before and partly after, that subsection was inserted by the amending Act,
(b) a complaint that has been made but not fully dealt with before that subsection was inserted by the amending Act.
Section 136 (4), as substituted by the amending Act, applies only in respect of a statement of a decision that is given after the commencement of that subsection.
Section 147A, as inserted by the amending Act, extends to a person who was, immediately before the commencement of that section, subject to an order of the Tribunal or the Supreme Court that the person’s registration be cancelled or that the person not be re-registered.
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