Health Legislation Amendment and Repeal Act 2019 (Vic)
Health Legislation Amendment and Repeal Act 2019
No. 34 of 2019
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Repeal of Access to Medicinal Cannabis Act 2016 and related amendments
Division 1—Repeal
3Repeal of Access to Medicinal Cannabis Act 2016
Division 2—Amendment of Drugs, Poisons and Controlled Substances Act 1981
4Definitions
5Act not to derogate from provisions of certain other Acts
6Persons authorized to have possession etc. of poisons or controlled substances
7What a licence, permit or warrant can authorise
8Manufacture, sale and supply of poisons or controlled substances by wholesale
9Wholesaling of certain poisons
10Retailing of poisons or controlled substances
11Sale of poisons or controlled substances by persons other than manufacturers etc.
12Offences concerning labelling and other matters
13Sale of substances in unauthorised containers
14Section 31A repealed
15Effect of Division 10A of Part II
16Administration of drugs of dependence, Schedule 9 poisons, Schedule 8 poisons and Schedule 4 poisons in aged care services
17Inspections
18Duties of officers in relation to seized substances
19Persons who are liable for contravention of Act
20Section 61A repealed
21Trafficking in a drug or drugs of dependence—large commercial quantity
22Trafficking in a drug or drugs of dependence—commercial quantity
23Trafficking in a drug of dependence to a child
24Trafficking in a drug of dependence
25Possession of substance, material, documents or equipment for trafficking in a drug of dependence
26Supply of drug of dependence to a child
27Possession of tablet press
28Possession of precursor chemicals
29Possession of document containing information about trafficking or cultivating a drug of dependence
30Publication of document containing instructions
31Cultivation of narcotic plants—large commercial quantity
32Cultivation of narcotic plants—commercial quantity
33Cultivation of narcotic plants
34Permitting use of premises for trafficking or cultivation of drug of dependence
35Possession of a drug of dependence
36Introduction of a drug of dependence into the body of another person
37Use of drug of dependence
38Forging prescriptions and orders for drugs of dependence
39Obtaining a drug of dependence etc. by false representation
40Definitions—Part VC
41Section 80TA substituted
42List of licences and permits
43Proof that a substance is poison etc.
44Section 129A repealed
Division 3—Consequential amendment of Crimes Act 1958
45Definitions
46Effect of intoxication on reasonable belief
47Intoxication
Division 4—Consequential amendment of other Acts
48Definitions—Guardianship and Administration Act 1986
49Definitions—Health Records Act 2001
50Definitions—Medical Treatment Planning and Decisions Act 2016
51Definitions—Pharmacy Regulation Act 2010
52Disclosure of information to other agencies—Pharmacy Regulation Act 2010
53Cruelty—Prevention of Cruelty to Animals Act 1986
Part 3—Amendment of Health Services Act 1988—offences
54Section 111 substituted
Part 4—Amendment of Health Services Act 1988
55Definition of multi purpose service
56Amendment of Schedules
57Removal and resignation—public hospitals
58Removal and resignation—multi purpose services
59Terms and conditions
60Regulations
61Schedule 1—Public hospitals
62Schedule 1A inserted
63Schedule 4—Privately-operated hospitals
64Schedule 5—Public health services
Part 5—Amendment of Tobacco Act 1987
65Tobacco or e-cigarette advertisements
66Certain advertising prohibited
67Exemptions
Part 6—Amendment of Mental Health Act 2014
68Definitions
69Confidentiality obligations applying in respect of information from clinical practice audit or clinical review
70Functions of the Commissioner
71Referred complaints
72Complaint to which National Law may also apply
73Commissioner may accept complaints and undertakings
74Conciliation process
75Discontinuation of conciliation
76Section 247 repealed
77Conciliation agreements
78Section 249 substituted
79Secrecy
80Mental health service providers to report on complaints
81New Division 3 of Part 16A inserted
Part 7—Amendment of Health Complaints Act 2016
82Non-disclosure of information—investigations, complaint data reviews
83Non-disclosure of information—complaint resolution processes
84Non-disclosure of information given in conciliation
Part 8—Amendment of Health Services Act 1988—amendments relating to information sharing
Division 1—Amendment of Health Services Act 1988
85New Part 6B inserted
Division 2—Consequential amendments
86Amendment of Health Records Act 2001
87Amendment of Privacy and Data Protection Act 2014
Part 9—Repeal of this Act
88Repeal of this Act
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Endnotes
1 General information
Health Legislation Amendment and Repeal Act 2019
No. 34 of 2019
[Assented to 22 October 2019]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to repeal the Access to Medicinal Cannabis Act 2016; and
(b)to amend the Health Services Act 1988—
(i)to clarify the operation of certain offences; and
(ii)to make further provision in relation to the removal and resignation of directors of public hospitals and multi purpose services; and
(iii)to introduce term limits for the appointment of members of Health Purchasing Victoria; and
(iv)to provide a power to make regulations in relation to requirements, guidelines and standards for the governance of health service establishments; and
(v)to make further provision in relation to multi purpose services; and
(vi)to make minor technical amendments to reflect changes to the names of some hospitals and public health services; and
(vii)to provide for sharing of information for purposes relating to quality and safety of health service entities; and
(c)to amend the Mental Health Act 2014—
(i)to facilitate the sharing of information between the Mental Health Complaints Commissioner (within the meaning of that Act) and certain entities and the disclosure of information in certain circumstances; and
(ii)to facilitate the effective operation of the Mental Health Complaints Commissioner's functions in relation to the management, conciliation and resolution of complaints under that Act; and
(iii)to amend the provisions relating to timing and content of reports given by mental health service providers; and
(d)to amend the Tobacco Act 1987—
(i)to prohibit indirect advertising by tobacco manufacturers and e-cigarette manufacturers; and
(ii)to repeal exemptions for the display of tobacco or e-cigarette advertisements; and
(e)to make minor and consequential amendments to other Acts.
2Commencement
(1)This Act (except Parts 3, 7 and 8) comes into operation on the day after the day on which this Act receives the Royal Assent.
(2)Subject to subsection (3), Parts 3, 7 and 8 come into operation on a day or days to be proclaimed.
(3)If a provision referred to in subsection (2) does not come into operation before 27 August 2020, it comes into operation on that day.
Part 2—Repeal of Access to Medicinal Cannabis Act 2016 and related amendments
Division 1—Repeal
3Repeal of Access to Medicinal Cannabis Act 2016
The Access to Medicinal Cannabis Act 2016 is repealed.
Division 2—Amendment of Drugs, Poisons and Controlled Substances Act 1981
4Definitions
(1)In section 4(1) of the Drugs, Poisons and Controlled Substances Act 1981, the definitions of approved medicinal cannabis product, medicinal cannabis, medicinal cannabis cultivation licence, medicinal cannabis manufacturing licence, medicinal cannabis product, patient medicinal cannabis access authorisation and practitioner medicinal cannabis authorisation are repealed.
(2)In section 4(1) of the Drugs, Poisons and Controlled Substances Act 1981—
(a)in the definition of poison or controlled substance—
(i)in paragraph (j) omit "or";
(ii)paragraph (k) is repealed;
(b)in the definition of psychoactive substance, paragraph (g) is repealed;
(c)for the definitions of Schedule 8 Poison and Schedule 9 Poison substitute—
"Schedule 8 Poison means a substance in Schedule 8 of the Poisons Standard;
Schedule 9 Poison means a substance in Schedule 9 of the Poisons Standard;".
5Act not to derogate from provisions of certain other Acts
In section 7 of the Drugs, Poisons and Controlled Substances Act 1981 omit "the Access to Medicinal Cannabis Act 2016,".
6Persons authorized to have possession etc. of poisons or controlled substances
In section 13(1) of the Drugs, Poisons and Controlled Substances Act 1981, omit "and, in relation to medicinal cannabis, the Access to Medicinal Cannabis Act 2016 and the regulations under that Act".
7What a licence, permit or warrant can authorise
In section 20(3) of the Drugs, Poisons and Controlled Substances Act 1981, omit ", other than medicinal cannabis,".
8Manufacture, sale and supply of poisons or controlled substances by wholesale
(1)In section 23(1) of the Drugs, Poisons and Controlled Substances Act 1981, omit "or by or under the Access to Medicinal Cannabis Act 2016".
(2)In section 23(2) of the Drugs, Poisons and Controlled Substances Act 1981, omit "or by or under the Access to Medicinal Cannabis Act 2016".
9Wholesaling of certain poisons
In section 24 of the Drugs, Poisons and Controlled Substances Act 1981, omit "or by or under the Access to Medicinal Cannabis Act 2016".
10Retailing of poisons or controlled substances
(1)In section 26(1) of the Drugs, Poisons and Controlled Substances Act 1981, omit "or by or under the Access to Medicinal Cannabis Act 2016".
(2)In section 26(2) of the Drugs, Poisons and Controlled Substances Act 1981, omit "or by or under the Access to Medicinal Cannabis Act 2016".
11Sale of poisons or controlled substances by persons other than manufacturers etc.
In section 27 of the Drugs, Poisons and Controlled Substances Act 1981, omit "or by or under the Access to Medicinal Cannabis Act 2016".
12Offences concerning labelling and other matters
Section 27A(5) of the Drugs, Poisons and Controlled Substances Act 1981 is repealed.
13Sale of substances in unauthorised containers
Section 29(3) of the Drugs, Poisons and Controlled Substances Act 1981 is repealed.
14Section 31A repealed
Section 31A of the Drugs, Poisons and Controlled Substances Act 1981 is repealed.
15Effect of Division 10A of Part II
In section 36C of the Drugs, Poisons and Controlled Substances Act 1981, omit "or, in relation to medicinal cannabis, this Act, the Regulations, the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
16Administration of drugs of dependence, Schedule 9 poisons, Schedule 8 poisons and Schedule 4 poisons in aged care services
In section 36E of the Drugs, Poisons and Controlled Substances Act 1981—
(a)omit "(including any medicinal cannabis product)";
(b)for paragraph (b) substitute—
"(b)for whom that drug or poison has been supplied on prescription.".
17Inspections
(1)In section 42(1) of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 and the regulations under that Act (other than any provision that relates to a medicinal cannabis cultivation licence or a medicinal cannabis manufacturing licence)".
(2)Section 42(1)(ab) of the Drugs, Poisons and Controlled Substances Act 1981 is repealed.
(3)In section 42(1)(e) of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 (other than any provision that relates to a medicinal cannabis cultivation licence or a medicinal cannabis manufacturing licence)".
18Duties of officers in relation to seized substances
Section 43(5) of the Drugs, Poisons and Controlled Substances Act 1981 is repealed.
19Persons who are liable for contravention of Act
Section 44(6) of the Drugs, Poisons and Controlled Substances Act 1981 is repealed.
20Section 61A repealed
Section 61A of the Drugs, Poisons and Controlled Substances Act 1981 is repealed.
21Trafficking in a drug or drugs of dependence—large commercial quantity
In section 71(1) of the Drugs, Poisons and Controlled Substances Act 1981, omit ", the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
22Trafficking in a drug or drugs of dependence—commercial quantity
(1)In section 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981, omit ", the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
(2)In section 71AA(2) of the Drugs, Poisons and Controlled Substances Act 1981, omit ", the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
23Trafficking in a drug of dependence to a child
In section 71AB(1) and (2) of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
24Trafficking in a drug of dependence
In section 71AC(1) and (2) of the Drugs, Poisons and Controlled Substances Act 1981, omit ", the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
25Possession of substance, material, documents or equipment for trafficking in a drug of dependence
In section 71A(1) of the Drugs, Poisons and Controlled Substances Act 1981, omit ", the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
26Supply of drug of dependence to a child
In section 71B(1) and (1A) of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
27Possession of tablet press
In section 71C of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act (if any)".
28Possession of precursor chemicals
In section 71D of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act (if any)".
29Possession of document containing information about trafficking or cultivating a drug of dependence
In section 71E(1) of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
30Publication of document containing instructions
In section 71F(1) of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
31Cultivation of narcotic plants—large commercial quantity
In section 72 of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
32Cultivation of narcotic plants—commercial quantity
In section 72A of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
33Cultivation of narcotic plants
In section 72B of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
34Permitting use of premises for trafficking or cultivation of drug of dependence
(1)In section 72D(1) of the Drugs, Poisons and Controlled Substances Act 1981, omit ", the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
(2)In section 72D(2) of the Drugs, Poisons and Controlled Substances Act 1981, omit "or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
35Possession of a drug of dependence
In section 73(1) and (2) of the Drugs, Poisons and Controlled Substances Act 1981, omit ", the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
36Introduction of a drug of dependence into the body of another person
In section 74 of the Drugs, Poisons and Controlled Substances Act 1981, omit ", the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
37Use of drug of dependence
In section 75 of the Drugs, Poisons and Controlled Substances Act 1981, omit ", the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
38Forging prescriptions and orders for drugs of dependence
Section 77(2) of the Drugs, Poisons and Controlled Substances Act 1981 is repealed.
39Obtaining a drug of dependence etc. by false representation
In section 78 of the Drugs, Poisons and Controlled Substances Act 1981—
(a)in paragraphs (a) and (b) omit ", the Access to Medicinal Cannabis Act 2016 or the regulations under that Act";
(b)in paragraph (d)—
(i)omit ", the Access to Medicinal Cannabis Act 2016 or the regulations under that Act";
(ii)omit "or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act".
40Definitions—Part VC
In section 80T of the Drugs, Poisons and Controlled Substances Act 1981, in the definition of medicinal cannabis vaporiser, after "of a person a" insert "legal".
41Section 80TA substituted
For section 80TA of the Drugs, Poisons and Controlled Substances Act 1981 substitute—
"80TA Part not to apply in relation to pharmacist dealing with medicinal cannabis vaporiser
Nothing in this Part applies in relation to a pharmacist displaying, selling or supplying a medicinal cannabis vaporiser to a person for administration of a legal medicinal cannabis product.".
42List of licences and permits
Section 118(7) of the Drugs, Poisons and Controlled Substances Act 1981 is repealed.
43Proof that a substance is poison etc.
In section 122(b) of the Drugs, Poisons and Controlled Substances Act 1981 omit 'or "medicinal cannabis product"'.
44Section 129A repealed
Section 129A of the Drugs, Poisons and Controlled Substances Act 1981 is repealed.
Division 3—Consequential amendment of Crimes Act 1958
45Definitions
In section 2A(1) of the Crimes Act 1958, the definitions of medicinal cannabis product and patient medicinal cannabis access authorisation are repealed.
46Effect of intoxication on reasonable belief
In section 36B(2) of the Crimes Act 1958—
(a)paragraph (ca) is repealed; and
(b)in paragraph (d), omit "(other than a medicinal cannabis product)".
47Intoxication
(1)In section 322T(5) of the Crimes Act 1958—
(a)paragraph (ca) is repealed;
(b)in paragraph (d) omit "(other than a medicinal cannabis product)".
(2)In section 322T(6) of the Crimes Act 1958 omit ", (ca)".
Division 4—Consequential amendment of other Acts
48Definitions—Guardianship and Administration Act 1986
In section 3(1) of the Guardianship and Administration Act 1986, the definition of approved medicinal cannabis product is repealed.
49Definitions—Health Records Act 2001
In section 3(1) of the Health Records Act 2001, in the definition of health service—
(a)paragraph (ca) is repealed;
(b)in paragraph (d) omit ", (ca)".
50Definitions—Medical Treatment Planning and Decisions Act 2016
In section 3(1) of the Medical Treatment Planning and Decisions Act 2016, in the definition of medical treatment, for paragraph (c) substitute—
"(c)treatment with prescription pharmaceuticals;".
51Definitions—Pharmacy Regulation Act 2010
In section 3(1) of the Pharmacy Regulation Act 2010—
(a)the definition of medicine is repealed;
(b)for the definition of prescription substitute—
"prescription includes a voluntary assisted dying permit within the meaning of the Voluntary Assisted Dying Act 2017;".
52Disclosure of information to other agencies—Pharmacy Regulation Act 2010
Section 107(1)(c)(ii) of the Pharmacy Regulation Act 2010 is repealed.
53Cruelty—Prevention of Cruelty to Animals Act 1986
In section 9(1)(j) of the Prevention of Cruelty to Animals Act 1986 omit ", the Access to Medicinal Cannabis Act 2016".
Part 3—Amendment of Health Services Act 1988—offences
54Section 111 substituted
For section 111 of the Health Services Act 1988 substitute—
"111 Offences relating to carrying on a health service establishment
(1)A person must not carry on a health service establishment at or from premises that are not registered as a health service establishment.
Penalty:In the case of an individual, 240 penalty units;
In the case of a body corporate, 1200 penalty units.
(2)A person must not carry on a health service establishment unless the person has a current certificate of registration or a current certificate of renewal for that health service establishment.
Penalty:In the case of an individual, 240 penalty units;
In the case of a body corporate, 1200 penalty units.
(3)In subsection (2)—
certificate of registration means a certificate of registration issued by the Secretary under section 85 that names a person as the proprietor of the health service establishment to which the registration relates;
certificate of renewal means a certificate of renewal issued by the Secretary under section 91 that names a person as the proprietor of the health service establishment to which the renewal of registration relates.
Note
See section 4 regarding the carrying on of a health service establishment. The term health service establishment is defined in section 3(1).".
Part 4—Amendment of Health Services Act 1988
55Definition of multi purpose service
In section 3(1) of the Health Services Act 1988, in the definition of multi purpose service—
(a)in paragraph (b), after "service;" insert "or";
(b)after paragraph (b) insert—
"(c)a body listed in Schedule 1A;".
56Amendment of Schedules
(1)In section 8(1) of the Health Services Act 1988—
(a)after "Schedule 1," insert "1A,";
(b)after "hospital" (wherever occurring) insert "or multi purpose service".
(2)In section 8(5) of the Health Services Act 1988—
(a)for "Schedule 1" substitute "Schedule 1,";
(b)before "or the name of a public health service" insert "the name of a multi purpose service listed in Schedule 1A".
(3)In section 8(5)(a) and (b) of the Health Services Act 1988—
(a)for "public hospital" substitute "public hospital," (wherever occurring);
(b)before "or public health service" insert "multi purpose service" (wherever occurring).
57Removal and resignation—public hospitals
(1)In section 35(2) of the Health Services Act 1988, after "director" insert ", or all directors,".
(2)After section 35(2) of the Health Services Act 1988 insert—
"(3)The Minister must recommend the removal of a director of a board from office if the Minister is satisfied that—
(a)the director is physically or mentally unable to fulfil the role of a director of a board; or
(b)the director has been convicted or found guilty of an offence, the commission of which, in the opinion of the Minister, makes the director unsuitable to be a director of a board; or
(c)the director has been absent, without leave of the board, from all meetings of the board held during a period of 6 months; or
(d)the director is an insolvent under administration.".
58Removal and resignation—multi purpose services
(1)In section 115G(2) of the Health Services Act 1988, after "director" insert ", or all directors,".
(2)After section 115G(2) of the Health Services Act 1988 insert—
"(3)The Minister must recommend the removal of a director of a board from office if the Minister is satisfied that—
(a)the director is physically or mentally unable to fulfil the role of a director of a board; or
(b)the director has been convicted or found guilty of an offence, the commission of which, in the opinion of the Minister, makes the director unsuitable to be a director of a board; or
(c)the director has been absent, without leave of the board, from all meetings of the board held during a period of 6 months; or
(d)the director is an insolvent under administration.".
59Terms and conditions
After section 134E(1) of the Health Services Act 1988 insert—
"(1A)A member of HPV must not serve more than 9 consecutive years as a member of HPV unless the Minister is satisfied that exceptional circumstances exist that justify a further re-appointment of the member.".
60Regulations
After section 158(1)(c) of the Health Services Act 1988 insert—
"(ca)requirements, guidelines and standards to be complied with by health service establishments in relation to governance of these establishments;".
61Schedule 1—Public hospitals
In Schedule 1 to the Health Services Act 1988, for "Kyabram and District Health Services" substitute "Kyabram District Health Service".
62Schedule 1A inserted
After Schedule 1 to the Health Services Act 1988 insert—
"Schedule 1A—Multi purpose services
Alpine Health
Corryong Health
Mallee Track Health and Community Service
Orbost Regional Health
Otway Health
Robinvale District Health Services
Timboon and District Healthcare Service".
63Schedule 4—Privately-operated hospitals
In Schedule 4 to the Health Services Act 1988—
(a)omit "New Latrobe Regional Hospital";
(b)for "New Mildura Base Hospital" substitute "Mildura Base Hospital".
64Schedule 5—Public health services
In Schedule 5 to the Health Services Act 1988, for "Bendigo Health Care Group" substitute "Bendigo Health".
Part 5—Amendment of Tobacco Act 1987
65Tobacco or e-cigarette advertisements
(1)After section 3B(1)(e) of the Tobacco Act 1987 insert—
"(ea)any other words or designs, or a combination of words and designs, that are closely associated with a person described in paragraph (e); or".
(2)After section 3B(3) of the Tobacco Act 1987 insert—
"(3A)Without limiting subsection (1)(ea), words or designs, or a combination of words and designs, are closely associated with a manufacturer of tobacco products or e‑cigarette products if that manufacturer enters into a contract, agreement, partnership, sponsorship, undertaking or understanding with a person for that person to give publicity to, or otherwise promote or intend to promote, the words or designs, or a combination of words and designs.".
66Certain advertising prohibited
Section 6(3)(e) of the Tobacco Act 1987 is repealed.
67Exemptions
Section 10 of the Tobacco Act 1987 is repealed.
Part 6—Amendment of Mental Health Act 2014
68Definitions
In section 3(1) of the Mental Health Act 2014 insert the following definitions—
"Health Complaints Commissioner means the person appointed under section 111 of the Health Complaints Act 2016;
National Board has the same meaning as in the Health Practitioner Regulation National Law;".
69Confidentiality obligations applying in respect of information from clinical practice audit or clinical review
In section 140(3) of the Mental Health Act 2014 omit "and imminent".
70Functions of the Commissioner
After section 228(j)(vi) of the Mental Health Act 2014 insert—
"(vii)the Health Complaints Commissioner;
(viii)the Australian Health Practitioner Regulation Agency;
(ix)a prescribed person or body;".
71Referred complaints
In section 233(1)(e) of the Mental Health Act 2014 omit "within the meaning of the Health Complaints Act 2016".
72Complaint to which National Law may also apply
After section 242 of the Mental Health Act 2014 insert—
"242A Complaint to which National Law may also apply
(1)To avoid doubt, the Commissioner is a health complaints entity within the meaning of the Health Practitioner Regulation National Law.
Note
See Division 5 of Part 8 of the Health Practitioner Regulation National Law, in particular section 150 of that Law, for the Commissioner's duties if a complaint is made that may be the subject of a notification under section 150(2) of that Law.
(2)If it is agreed under section 150 of the Health Practitioner Regulation National Law to deal with the complaint or a part of the complaint under that Law, the Commissioner must refer the complaint to the Australian Health Practitioner Regulation Agency or the relevant National Board.".
73Commissioner may accept complaints and undertakings
In section 243(4)(e) of the Mental Health Act 2014—
(a)omit "in a response given to the Commissioner under subsection (2)(b)";
(b)after "complaint" insert ", at any time before the complaint is closed by the Commissioner".
74Conciliation process
In section 244(4) and (5) of the Mental Health Act 2014, for "conciliator" (wherever occurring) substitute "Commissioner".
75Discontinuation of conciliation
(1)In section 246(1) and (2) of the Mental Health Act 2014, for "conciliator" substitute "Commissioner".
(2)In section 246(3) of the Mental Health Act 2014—
(a)for "a conciliator" substitute "the Commissioner".
(b)for "the conciliator" substitute "the Commissioner".
76Section 247 repealed
Section 247 of the Mental Health Act 2014 is repealed.
77Conciliation agreements
In section 248 of the Mental Health Act 2014, for "conciliator" substitute "Commissioner".
78Section 249 substituted
For section 249 of the Mental Health Act 2014 substitute—
"249 Non-disclosure of information given in conciliation
(1)A person who is or has been the Commissioner or a person employed or engaged under section 230 must not disclose outside a conciliation process any information gained by the person in the conciliation process, other than information relating to an undertaking given under section 243(4)(e) during the course of a conciliation process.
Penalty:60 penalty units.
(2)Despite subsection (1), a person referred to in subsection (1) is authorised to disclose information to which subsection (1) applies if—
(a)the disclosure is made with the written consent of the person to whom the information relates; or
(b)the Commissioner reasonably believes that the disclosure is necessary to lessen or prevent a serious risk to—
(i)the life, health, safety or welfare of a person; or
(ii)the health, safety or welfare of the public.
(3)Evidence of anything said or done during a conciliation process is not admissible in any proceeding before a court or tribunal unless the parties to the conciliation process consent to the admission.
(4)Subsection (3) does not apply to an undertaking given under section 243(4)(e) during the course of a conciliation process.".
79Secrecy
(1)For the heading to section 265 of the Mental Health Act 2014 substitute—
"Disclosure of information".
(2)After section 265(1) of the Mental Health Act 2014 insert—
"(1A)Despite subsection (1), a person referred to in subsection (1) is authorised to disclose or communicate information to which that subsection applies—
(a)to the Australian Health Practitioner Regulation Agency or any relevant National Board, if that information is or may be the subject of, or relevant to, a complaint, investigation or inquiry under the Health Practitioner Regulation National Law; or
(b)if the person reasonably believes that the disclosure is necessary to lessen or prevent a serious risk to—
(i)the life, health, safety or welfare of a person; or
(ii)the health, safety or welfare of the public.".
80Mental health service providers to report on complaints
For section 267 of the Mental Health Act 2014 substitute—
"267 Mental health service providers to provide reports on complaints
(1)A mental health service provider must provide a report to the Commissioner about complaints received by the mental health service provider at the intervals specified by the Commissioner.
(2)A report under subsection (1) must—
(a)be in a form specified by the Commissioner; and
(b)contain the information required by the Commissioner.".
81New Division 3 of Part 16A inserted
After Division 2 of Part 16A of the Mental Health Act 2014 insert—
"Division 3—Health Legislation Amendment and Repeal Act 2019
433Definitions
In this Division—
amending Act means the Health Legislation Amendment and Repeal Act 2019;
commencement day means the day on which section 74 of the amending Act comes into operation.
434Transfer of conciliation process to Commissioner
If, immediately before the commencement day, a conciliation process had commenced under Division 3 of Part 10 but had not been completed or discontinued under that Division—
(a)on and from the commencement day the conciliation process is to be conciliated by the Commissioner as if the conciliation process had commenced under Division 3 of Part 10 as amended by the amending Act; and
(b)despite sections 249(1) (as amended by the amending Act) and 265(1), the person who was the conciliator of the conciliation process may disclose to the Commissioner any information gained by the person that is necessary to enable the Commissioner to conciliate the matter.".
Part 7—Amendment of Health Complaints Act 2016
82Non-disclosure of information—investigations, complaint data reviews
In section 150(3) of the Health Complaints Act 2016 omit "and imminent".
83Non-disclosure of information—complaint resolution processes
In section 151(2)(f) of the Health Complaints Act 2016 omit "and imminent".
84Non-disclosure of information given in conciliation
In section 152(2)(d) of the Health Complaints Act 2016 omit "and imminent".
Part 8—Amendment of Health Services Act 1988—amendments relating to information sharing
Division 1—Amendment of Health Services Act 1988
85New Part 6B inserted
After Part 6A of the Health Services Act 1988 insert—
"Part 6B—Information sharing for quality and safety purposes
134VDefinitions
In this Part—
confidential information means—
(a)health information within the meaning of the Health Records Act 2001; or
(b)personal information within the meaning of the Privacy and Data Protection Act 2014; or
(c)sensitive information within the meaning set out in Schedule 1 to the Privacy and Data Protection Act 2014; or
(d)unique identifiers within the meaning set out in Schedule 1 to the Privacy and Data Protection Act 2014; or
(e)identifiers within the meaning of the Health Records Act 2001;
health service entity means—
(a)a public health service; or
(b)a public hospital; or
(c)a multi purpose service; or
(d)a denominational hospital; or
(e)a private hospital; or
(f)a day procedure centre; or
(g)an ambulance service within the meaning of the Ambulance Services Act 1986; or
(h)a non-emergency patient transport service within the meaning of the Non-Emergency Patient Transport Act 2003 that is licensed under that Act; or
(i)the Victorian Institute of Forensic Mental Health established by section 328 of the Mental Health Act 2014; or
(j)a prescribed entity that provides health services;
quality and safety body means a prescribed entity that has functions relating to quality and safety of health service entities;
quality and safety purpose has the meaning set out in section 134W;
special adviser means an entity appointed as a special adviser by the Secretary or a quality and safety body under section 134Z.
134WMeaning of quality and safety purpose
For the purposes of this Part, each of the following is a quality and safety purpose—
(a)collecting and analysing information relating to the quality and safety of health service entities;
(b)monitoring and review of the quality and safety of health service entities and associated risks;
(c)reporting to the Secretary or to a quality and safety body in relation to the—
(i)performance of a health service entity; or
(ii)risk to an individual or the community associated with the performance of a health service entity;
(d)incident reporting and performance reporting in relation to health service entities;
(e)incident response, including case review, in relation to health service entities.
134XDisclosure of confidential information to Secretary or quality and safety body for a quality and safety purpose
(1)The Secretary may disclose confidential information to a quality and safety body for a quality and safety purpose.
(2)A quality and safety body may disclose confidential information for a quality and safety purpose—
(a)to the Secretary; or
(b)to another quality and safety body.
(3)A health service entity may disclose confidential information for a quality and safety purpose—
(a)to the Secretary; or
(b)to a quality and safety body.
(4)If the Secretary or a quality and safety body requests a health service entity to disclose confidential information for a quality and safety purpose, the Secretary or quality and safety body may disclose any confidential information to the health service entity that may assist it to identify the confidential information it holds that is relevant to a purpose specified in the request.
134YSecretary or quality and safety body may collect and use confidential information for a quality and safety purpose
(1)The Secretary may collect and use for any quality and safety purpose any confidential information disclosed to the Secretary under this Part.
(2)A quality and safety body may collect and use for any quality and safety purpose any confidential information disclosed to the quality and safety body under this Part.
134ZSecretary or quality and safety body may appoint entity as special adviser for quality and safety purposes
(1)The Secretary or a quality and safety body may appoint an entity as a special adviser for one or more specified quality and safety purposes in relation to a specified health service entity or class of health service entity.
(2)The appointment may include conditions relating to—
(a)the kind of confidential information that may be collected, used or disclosed; and
(b)how confidential information is to be collected, used or disclosed.
134ZACollection, use and disclosure of confidential information if special adviser appointed
(1)A special adviser may do any of the following for a quality and safety purpose specified in the special adviser's appointment—
(a)collect and use confidential information from—
(i)a health service entity or a health service entity in a class of health service entity specified in the appointment; and
(ii)the Secretary or quality and safety body (whichever of them appointed the special adviser); and
(iii)if the special adviser is appointed jointly with another special adviser, that other special adviser;
(b)disclose confidential information—
(i)to the Secretary or quality and safety body (whichever of them appointed the special adviser); and
(ii)if the special adviser is appointed jointly with another special adviser, that other special adviser.
(2)If a special adviser requests a health service entity to disclose confidential information for a quality and safety purpose specified in the appointment, the special adviser may disclose any confidential information to the health service entity that may assist it to identify the confidential information it holds that is relevant to a purpose specified in the request.
(3)Each of the following may disclose confidential information to a special adviser for a quality and safety purpose specified in the special adviser's appointment—
(a)the Secretary or quality and safety body (whichever of them appointed the special adviser);
(b)a health service entity or health service entity in a class of health service entity specified in the appointment.
134ZBMinister may authorise collection, use and disclosure of confidential information between health service entities
(1)The Minister, by instrument, may authorise a health service entity or a health service entity in a class of health service entity to do any of the following for one or more specified quality and safety purposes—
(a)collect and use confidential information from another health service entity or a health service entity in a class of health service entity specified in the instrument;
(b)disclose confidential information to another health service entity or a health service entity in a class of health service entity specified in the instrument.
(2)The instrument must specify—
(a)the health service entities or class or classes of health service entity to which it applies; and
(b)the quality and safety purposes for which the health service entity may disclose confidential information.
(3)The instrument may include conditions relating to—
(a)the kind of confidential information that may be collected, used or disclosed; and
(b)how the confidential information is to be collected, used or disclosed.
(4)The instrument takes effect on the date specified in the instrument.
(5)The instrument must be published in the Government Gazette as soon as practicable after the day on which it is made, unless the instrument identifies or would enable the identification of an individual to whom the confidential information relates.
134ZCCollection, use or disclosure authorised to extent necessary for purpose
A person or entity who is authorised under this Part to collect, use or disclose confidential information for a quality and safety purpose must not collect, use or disclose the information except to the extent necessary to achieve that purpose.
134ZDCollection, use or disclosure in good faith protected
The collection, use or disclosure of confidential information under this Part in good faith and with reasonable care—
(a)does not for any purpose constitute unprofessional conduct or a breach of professional ethics on the part of the individual by whom it was made; and
(b)does not make the individual by whom it was made subject to any liability in respect of it.".
Division 2—Consequential amendments
86Amendment of Health Records Act 2001
After section 14C of the Health Records Act 2001 insert—
"14D Information sharing for quality and safety purposes under the Health Services Act 1988
(1)Nothing in HPP 1.3, or any applicable code of practice modifying the application of HPP 1.3 or prescribing how HPP 1.3 is to be applied or complied with, applies to the collection of health information for the purposes of Part 6B of the Health Services Act 1988 by any of the following—
(a)the Secretary;
(b)a quality and safety body;
(c)a health service entity;
(d)a special adviser.
(2)Nothing in HPP 1.5, or any applicable code of practice modifying the application of HPP 1.5 or prescribing how HPP 1.5 is to be applied or complied with, applies to the collection of health information for the purposes of Part 6B of the Health Services Act 1988 by any of the following—
(a)the Secretary;
(b)a quality and safety body;
(c)a health service entity;
(d)a special adviser.
(3)Nothing in an HPP, or any applicable code of practice modifying the application of an HPP or prescribing how an HPP is to be applied or complied with, applies to the collection, use or disclosure of health information for the purposes of Part 6B of the Health Services Act 1988 by—
(a)the Secretary; or
(b)a quality and safety body; or
(c)a health service entity; or
(d)a special adviser—
to the extent that the HPP requires the consent of the person to whom the health information relates for the collection, use or disclosure of that information.
(4)In this section—
health service entity has the same meaning as in section 134V of the Health Services Act 1988;
quality and safety body has the same meaning as in section 134V of the Health Services Act 1988;
special adviser has the same meaning as in section 134V of the Health Services Act 1988.".
87Amendment of Privacy and Data Protection Act 2014
After section 15B of the Privacy and Data Protection Act 2014 insert—
"15C Exemption—information sharing for quality and safety purposes under the Health Services Act 1988
(1)Nothing in IPP 1.4, or any applicable code of practice modifying the application of IPP 1.4 or prescribing how IPP 1.4 is to be applied or complied with, applies to the collection of personal information for the purposes of Part 6B of the Health Services Act 1988 by any of the following—
(a)the Secretary to the Department of Health and Human Services;
(b)a quality and safety body;
(c)a health service entity;
(d)a special adviser.
(2)Nothing in IPP 1.5, or any applicable code of practice modifying the application of IPP 1.5 or prescribing how IPP 1.5 is to be applied or complied with, applies to the collection of personal information for the purposes of Part 6B of the Health Services Act 1988 by any of the following—
(a)the Secretary to the Department of Health and Human Services;
(b)a quality and safety body;
(c)a health service entity;
(d)a special adviser.
(3)Nothing in an IPP, or any applicable code of practice modifying the application of an IPP or prescribing how an IPP is to be applied or complied with, applies to the collection of personal or sensitive information for the purposes of Part 6B of the Health Services Act 1988 by—
(a)the Secretary; or
(b)a quality and safety body; or
(c)a health service entity; or
(d)a special adviser—
to the extent that the IPP requires the consent of the person to whom the information relates for the collection of that information.
(4)In this section—
health service entity has the same meaning as in section 134V of the Health Services Act 1988;
quality and safety body has the same meaning as in section 134V of the Health Services Act 1988;
special adviser has the same meaning as in section 134V of the Health Services Act 1988.".
Part 9—Repeal of this Act
88Repeal of this Act
This Act is repealed on 27 August 2021.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 29 August 2019
Legislative Council: 15 October 2019
The long title for the Bill for this Act was "A Bill for an Act to amend the Health Services Act 1988, the Mental Health Act 2014 and the Tobacco Act 1987, to repeal the Access to Medicinal Cannabis Act 2016, to consequentially amend other Acts as a result of that repeal and for other purposes."
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