Health Practitioner Acts (Further Amendments) Act 2002 (Vic)

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Health Practitioner Acts (Further Amendments)

Act 2002

Act No. 14/2002

TABLE OF PROVISIONS

Section Page

PART 1—PRELIMINARY 1

1. Purpose 1
2. Commencement 2

PART 2—MEDICAL PRACTICE ACT 1994 3

3. Principal Act 3
4. Amendment to purposes of Principal Act 3
5. Definitions 3
6. General registration 4
7. Non-practising registration 4
8. Renewal of registration 4
9. New Division 1 substituted in Part 3 5
Division 1—Notifications and commencement of
investigations 5

22. Notifications about practitioners 6
23. When notifications are to be dealt with by the Health
Services Commissioner as complaints 6
24. Board may deal with a health records complaint as a
notification 8
25. Commencement of investigations by the Board 9
26. Request for conditions, limitations, restrictions or
suspension 11

10. Repeal of heading to Division 2 12
11. New sections 27 and 28 substituted 13

27. Suspension of registration at any time 13
28. Agreements to amend, vary or revoke 14

12. Consequential amendments to section 29 15
13. Heading to new Division 2A inserted 16
14. New sections 33 and 34 substituted 16

33. Referral to a formal hearing 16
34. Findings and determinations of a formal hearing into
the ability of practitioner or student to practise or have
patient contact 17

i

Section Page

15. New Division 3 inserted 18
Division 3—Specific provisions relating to the professional
performance of medical practitioners 18

38A. Performance assessment 19
38B. Report of assessment 19
38C. Refusal to attend or co-operate 20
38D. Outcome of preliminary investigation into a
practitioner's professional performance 20
38E. Establishment and notice of a performance review panel 21
38F. Constitution of a performance review panel 21
38G. Conduct of a performance review panel 22
38H. Outcome of a performance review panel's review 22
38I. Referral to a medical examination or a formal hearing 23
38J. Request for a formal hearing by a practitioner 24

16. New heading to Division 3A and section 38K inserted 24
Division 3A—Specific provisions relating to the professional
conduct of medical practitioners 25

38K. Outcome of a preliminary investigation 25

17. Establishment and notice of an informal hearing 25
18. Persons not entitled to be members of panel for informal hearing 26
19. New sections 45A and 45B inserted 26

45A. Finding and determinations of a formal hearing into

conduct 26
45B. Investigation may continue even if a person is no

longer registered 28

20. New heading to Division 3B and section 45C inserted 29
Division 3B—General provisions relating to formal and
informal hearings 29

45C. Application of Division 29

21. Formal hearings 29
22. Persons not entitled to be members of a panel for a formal
hearing 30
23. New sections 48A and 48B inserted 31

48A. Preliminary conferences 31
48B. Personal attendance may be required 31

24. Conduct of a formal hearing 32
25. Repeal of sections 50, 51 and 51A 32
26. Consideration of performance assessment reports 32
27. Notice of determination 32
28. Offence to disclose information identifying notifier 33
29. Review by VCAT 33

ii

Section Page

30. New sections 63A to 63K inserted 34

63A. Prohibition against directing or inciting unprofessional

conduct 34
63B.

Extended concept of employment 35
63C.

Extended concept of carrying on business 35
63D. Convicted offenders may be prohibited from carrying

on business 36
63E.

Offence of operating business while prohibited 37
63F.

Effect of appeal against conviction 38
63G. Power to require information from convicted persons

and others 39
63H.

Meaning of management role and substantial interest 41
63I.

Register of prohibitions 41
63J.

Evidentiary certificate 42
63K.

Secretary to notify Board of prohibitions 42

31. Advertising guidelines 43
32. New section 64E inserted 43

64E. Extension of time 44

33. Powers, functions and consultation requirements 44
34. Prosecution of certain offences 44
35. New section 106 inserted 45

106. Further transitional provisions 45

PART 3—NURSES ACT 1993 46

36. Increased penalties for bodies corporate 46
37. New sections 63A to 63J inserted 46

63A. Prohibition against directing or inciting unprofessional

conduct 46
63B.

Extended concept of arranging the supply of services 47
63C. Convicted offenders may be prohibited from carrying on

business 47
63D. Offence of carrying on business or practice while

prohibited 49
63E.

Effect of appeal against conviction 50
63F. Power to require information from convicted persons

and others 50
63G.

Meaning of management role and substantial interest 52
63H.

Register of prohibitions 52
63I.

Evidentiary certificate 53
63J.

Secretary to notify Board of prohibitions 53

38. Advertising guidelines 54
39. New section 64E inserted 54

64E. Extension of time 55

40. Prosecution of certain offences 55
41. New section 102 substituted 55

102. Further transitional provisions 55

iii

Section Page
PART 4—AMENDMENTS TO OTHER HEALTH

PRACTITIONER ACTS 56
42. Chinese Medicine Registration Act 2000—period of

registration 56
43. Chinese Medicine Registration Act 2000—advertising

guidelines 56
44.

Chinese Medicine Registration Act 2000—transitional 57

112. Transitional—period of registration 57
45.

Amendments to Dental Practice Act 1999 57
46.

Amendments to Psychologists Registration Act 2000 58
47.

Repeal of redundant Act 58

PART 5—HEALTH RECORDS ACT 2001 59

48. News media 59
49. Transitional provision 59

═══════════════

ENDNOTES 60

iv

Victoria

No. 14 of 2002

Health Practitioner Acts (Further

Amendments) Act 2002†

[Assented to 7 May 2002]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The main purpose of this Act is—

(a)

to amend the Medical Practice Act 1994 to make further provision for regulating medical practitioners;

Health Practitioner Acts (Further Amendments) Act 2002

s. 2	Act No. 14/2002

(b)

to amend the Nurses Act 1993 to make further provision for regulating nurses and nurse's agents;

(c)

Chinese Medicine Registration Act 2000,
the Dental Practice Act 1999, the

to make miscellaneous amendments to the the Health Records Act 2001;

(d)

to repeal the Medical Practitioners (Private Hospitals) Act 1984.

2. Commencement
(1) This section and sections 1, 31, 38, 43, 45, 46, 47, 48 and 49 come into operation on the day after the day on which this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining

provisions of this Act come into operation on a
day or days to be proclaimed.

(3) If a provision of this Act does not come into operation before 30 June 2004, it comes into operation on that day.

__________________
Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 3

PART 2—MEDICAL PRACTICE ACT 1994

3. Principal Act

See:

In this Part, the Medical Practice Act 1994 is Act No.
called the Principal Act. 23/1994.
Reprint No. 3
as at
1 January
2002 and
amending Act
No. 2/2001.

LawToday:

dpc.vic. gov.au

4. Amendment to purposes of Principal Act
In section 1 of the Principal Act, for paragraph (a) substitute—
"(a) to protect the public by providing for the registration of medical practitioners and investigations into the professional conduct,
professional performance and ability to
practise of registered medical practitioners;
and

(ab) to protect the public by providing for the

registration of medical students and
investigations into the ability of registered
medical students to have direct patient
contact; and".

5. Definitions
(1) In section 3(1) of the Principal Act insert the

following definitions—
' "notifier" means a person who has made a

notification under section 22;

"professional performance" means the
knowledge, skill or care possessed and

Health Practitioner Acts (Further Amendments) Act 2002

s. 6	Act No. 14/2002

applied by a registered medical practitioner
in the practice of medicine;
"unsatisfactory professional performance" of a

registered medical practitioner means
professional performance which is of a lesser
standard than that which the medical
practitioner's peers might reasonably expect
of a medical practitioner.'.

(2) In section 3(1) of the Principal Act, in the
definition of "unprofessional conduct"—

(a)

in paragraph (i) for "this Act." substitute "this Act; or";
(b) after paragraph (i) insert—
"(j) the breach of an agreement made under

section 27(5), 32 or 38D between a
medical practitioner and the Board; or

(k) unsatisfactory professional
performance.".

6. General registration
After section 7(2)(i) of the Principal Act insert—
"(j) that the applicant is disqualified from
applying for registration under this Act.".

7. Non-practising registration

In section 8(1) of the Principal Act—

(a)

in paragraph (e) for "services." substitute "services; or";
(b) after paragraph (e) insert—
"(f) the applicant has satisfied the Board
that the applicant will not practise during the period of registration.".

8. Renewal of registration

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 9
For section 13(1A) of the Principal Act substitute—
"(1A) The Board may require an applicant to—

(a)
be covered by professional indemnity
insurance that meets the minimum
provide evidence that the applicant will guidelines of the Board;

(b) provide information about—

(i)
the applicant has been practising
the main areas of medicine that period;

(ii) any continuing medical education
undertaken during the existing
registration period;
(iii) whether or not the applicant intends to practise medicine during the period for which the
registration is to be renewed;

(iv)
medicine during that period, the
main areas of medicine that the
if the applicant intends to practise during that period;

(c)

provide a postal address that may be published in the register where the applicant can be contacted by mail.".

9. New Division 1 substituted in Part 3
For Division 1 of Part 3 of the Principal Act substitute—
"Division 1—Notifications and commencement
of investigations

Health Practitioner Acts (Further Amendments) Act 2002

s. 9	Act No. 14/2002

22. Notifications about practitioners
(1) A person may notify the Board about any

matter relating to a registered medical
practitioner if the person believes it indicates
that—

(a) the medical practitioner's ability to practise medicine may be affected because—
(i)  of the physical or mental health of the practitioner; or
(ii)  the practitioner has an incapacity; or
(iii)  the practitioner is an alcoholic or drug-dependent person; or

(b) the medical practitioner may have engaged in unprofessional conduct; or
(c)
the professional performance of the unsatisfactory.

(2) A person may notify the Board about a

person who was a registered medical
practitioner but has ceased to be a registered
medical practitioner if the notification relates
to the professional conduct of the other
person at a time when that other person was
a registered medical practitioner.

23. When notifications are to be dealt with by the Health Services Commissioner as complaints
(1) If the Board receives a notification about a registered medical practitioner or a person who was a registered medical practitioner referred to in section 22(2), and the
notification is about a matter that—

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 9

(a)

is set out in section 16 of the Health Services (Conciliation and Review) Act 1987; or

(b)

may be the subject of a complaint under the Health Records Act 2001—

(2) The Board, in consultation with the Health the Board must notify the Health Services notification to the Health Services Commissioner as soon as possible after it has received the notification.
Services Commissioner, must determine whether or not the notification is to be dealt with by the Commissioner or the Board.
(3) The Health Services (Conciliation and

Review) Act 1987 applies to a notification
made under this Part which is to be dealt
with by the Health Services Commissioner
under that Act as if the notification were a
complaint made under section 16 of that Act.

(4) The Health Records Act 2001 applies to a
be dealt with by the Health Services
notification made under this Part which is to notification were a complaint made under section 45(1) of that Act.
(5) The Board must not deal further with a

notification made under this Part that is to be
dealt with by the Health Services
Commissioner unless the Health Services
Commissioner refers the matter back to the
Board under section 19(6) of the Health
Services (Conciliation and Review) Act
1987 or section 52 of the Health Records
Act 2001.

Health Practitioner Acts (Further Amendments) Act 2002

s. 9	Act No. 14/2002

(6) If a notification has been referred to and is
being dealt with by the Health Services Commissioner, the Commissioner must advise the Board, when the matter is
completed, of the outcome of the matter. (7) This section does not apply in relation to—

(a) a request made by a practitioner about her or his ability to practise under section 26(1)(a); or
(b) a report about a registered medical practitioner under section 37.
24. Board may deal with a health records complaint as a notification
(1) The Board—

(a) may accept a complaint, or part of a complaint, relating to a registered medical practitioner that the Health Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and
(b)
complaint, referred to it under
must treat a complaint, or part of a 2001 as if it were a notification made under this Act.

(2) If a complaint has been referred to the Board by the Health Services Commissioner under section 52 of the Health Records Act 2001, the Board must advise the Health Services
Commissioner of the progress of the matter, when required by the Health Services Commissioner to do so, and, when the matter is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include any information that the Health Services

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 9
Commissioner specifies by written notice to the Board.
25. Commencement of investigations by the Board
(1) The Board must investigate a notification made under section 22 if—

(a) the notification is not to be dealt with by the Health Services Commissioner under section 23; and
(b)
the Board has not determined the vexatious.

(2) In order to determine whether or not it is

necessary to conduct an informal or formal
hearing or whether or not a performance
review should be carried out, the Board must
conduct a preliminary investigation into the
notification.

(3) The Board, of its own motion, may determine to conduct a preliminary investigation into a matter referred to in sub-
section (4).

(4) If the Board believes that—

(a)
the ability of a registered medical be affected because—
(i) of the physical or mental health of the practitioner; or
(ii) the practitioner has an incapacity; or

Health Practitioner Acts (Further Amendments) Act 2002

s. 9

Act No. 14/2002

(iii)

the practitioner is an alcoholic or drug-dependent person; or

(b) the ability of a medical student to have direct patient contact as part of her or his course of study may be affected because of—
(i) the physical or mental health of the student; or

(ii) the student has an incapacity; or
(iii) the student is an alcoholic or drug- dependent person—

the Board may, in writing, appoint one of its
members to conduct a preliminary
investigation into the matter and delegate to
the appointed member its power to conduct a
preliminary investigation, other than its
power to make determinations upon a
preliminary investigation.
(5) If the Board believes that the professional performance of a medical practitioner may be unsatisfactory, the Board may, in writing,
appoint a registered medical practitioner to conduct a preliminary investigation into the matter and delegate to the appointed
practitioner its power to conduct a
preliminary investigation, other than its
power to make determinations upon a
preliminary investigation.
(6) If the Board believes that a medical
practitioner may have engaged in
unprofessional conduct, the Board may, in
writing, appoint one or more of the
following—

(a) an officer of the Board;
Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 9

(b)

a lawyer or investigator retained by the Board;

(c)

a sub-committee of the Board consisting of not more than 3 members of the Board—
to conduct a preliminary investigation into
the matter and delegate to the appointed
person or the members of the sub-committee
its power to conduct a preliminary
investigation, other than its power to make
determinations upon a preliminary
investigation.
(7) The Board, of its own motion, may
determine to conduct (with or without
conducting a preliminary investigation)—

(a) a formal hearing into the ability of a registered medical practitioner to practise medicine; or
(b) a formal hearing into the ability of a registered medical student to have direct patient contact as part of her or his course of study; or
(c)
a review of the professional practitioner; or

(d)

an informal or formal hearing into the professional conduct of a registered medical practitioner.

26. Request for conditions, limitations,
restrictions or suspension
(1) A registered medical practitioner who
believes that—

(a)

her or his ability to practise medicine is affected because—

Health Practitioner Acts (Further Amendments) Act 2002

s. 10

Act No. 14/2002

(i) of her or his physical or mental health; or

(ii) she or he has an incapacity; or
(iii) she or he is an alcoholic or drug- dependent person; or

(b)

she or he has engaged in unprofessional conduct; or

(c)

her or his professional performance is unsatisfactory—
may ask the Board to suspend her or his
registration or to impose a condition,
limitation or restriction on the registration.
(2) A medical student who believes that her or

his ability to have direct patient contact is

affected because—

(a)

of her or his physical or mental health; or
(b) she or he has an incapacity; or

(c)

she or he is an alcoholic or drug- dependent person—
may ask the Board to suspend her or his
registration or to impose a condition,
limitation or restriction on the registration.
(3) If the Board and the practitioner or student

agree upon the condition, limitation or
restriction to be imposed, the Board may
impose it.

(4) If the Board and the practitioner or student

do not agree upon the condition, limitation or
restriction to be imposed, the Board must
refer the matter to a preliminary
investigation under section 25.".

10. Repeal of heading to Division 2

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 11
The heading to Division 2 of Part 3 of the
Principal Act is repealed.

11. New sections 27 and 28 substituted
For section 28 of the Principal Act substitute—
"27. Suspension of registration at any time

(1) The Board may, at any time, suspend the

registration of a medical practitioner if the do so because there is a serious risk that the health and safety of the public will be endangered because the Board believes that—

(a)

the medical practitioner's ability to practise medicine is affected; or
(b) the medical practitioner's professional
performance is unsatisfactory; or

(c)

the medical practitioner has engaged in unprofessional conduct.
(2) The Board may, at any time, suspend the
registration of a medical student if the Board is of the opinion that it is necessary to do so because there is a serious risk that the health and safety of the public will be endangered
because the Board believes that the medical
student's ability to have direct patient contact
is affected.
(3) If the Board has suspended the registration of a medical practitioner or medical student, the registration is suspended until any
investigation or any hearing into the matter is
completed and the Board is of the opinion
that there is no serious risk that the health
and safety of the public will be endangered
as a result of the medical practitioner
practising medicine or the medical student

Health Practitioner Acts (Further Amendments) Act 2002

s. 11

Act No. 14/2002

having direct patient contact, unless the
suspension is otherwise revoked.
(4) If the Board has suspended the registration of

a medical practitioner or medical student, it
must—

(a)

immediately notify the practitioner or student of that suspension; and

(b)

ensure that the matter is investigated or heard as soon as possible after that suspension.

(5) In place of suspending a medical practitioner

or a medical student under this section, the writing—

(a)

from the medical practitioner to alter the way in which she or he practises medicine; or

(b)

from the medical student to alter the nature or extent of her or his direct patient contact.
28. Agreements to amend, vary or revoke
(1) The Board may, if the registered medical

practitioner or registered medical student so
agrees—

(a)
limitation or restriction imposed on the
medical practitioner's or medical
student's registration by the Board
amend, vary or revoke any condition, formal hearing; or

(b)
practitioner's or medical student's
registration and impose a condition,
revoke a suspension of the medical registration; or

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 12

(c) revoke a suspension of the medical practitioner's registration if the practitioner satisfies the Board that her or his ability to practise medicine is no longer affected; or
(d) revoke a suspension of the medical student's registration if the student satisfies the Board that her or his ability
to have direct patient contact is no
longer affected.
(2) If the Board and the registered medical

practitioner or registered medical student fail
to agree under sub-section (1), the Board
may refer the matter to a formal hearing.".

12. Consequential amendments to section 29
(1) Insert the following heading to section 29 of the Principal Act—
"29. Notice of preliminary investigation into

ability to practise or professional
performance".

(2) For section 29(1) of the Principal Act

substitute—
"(1) A person appointed to investigate—

(a)

a registered medical practitioner's ability to practise medicine or her or his professional performance; or

(b)

a medical student's ability to have direct patient contact—
must give notice of the preliminary
investigation to the medical practitioner or
medical student.".

Health Practitioner Acts (Further Amendments) Act 2002

s. 13

Act No. 14/2002

(3) In section 29(2)(b) of the Principal Act, after

"decision" insert "to conduct a preliminary
investigation".

(4) In section 29(2)(d) of the Principal Act, for "ask" substitute "in the case of an investigation into the ability of the medical practitioner to practise
medicine or the ability of the medical student to
have direct patient contact, ask".

(5) After section 29(2)(d) of the Principal Act

insert—
"(da) in the case of an investigation into the
professional performance of the medical practitioner, if the person conducting the preliminary investigation believes a
performance assessment of the medical
practitioner is necessary, ask the practitioner
to advise the Board as to whether or not she
or he will agree to undergo a performance
assessment within 28 days of receiving the
notice; and".

13. Heading to new Division 2A inserted
After section 29 of the Principal Act insert—
"Division 2A—Specific provisions relating to the ability to practise or have direct patient
contact".

14. New sections 33 and 34 substituted
For sections 33, 34, 35 and 36 of the Principal Act substitute—
"33. Referral to a formal hearing
If a registered medical practitioner or medical student who is the subject of a preliminary investigation under this Part does not agree to undergo a medical examination or does not abide by an

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 14
agreement to undergo a medical examination
the Board may refer the matter to a formal
hearing.
34. Findings and determinations of a formal hearing into the ability of practitioner or student to practise or have patient contact
(1) After considering all the submissions made

to a formal hearing into the ability of a
registered medical practitioner to practise
medicine or the ability of a registered
medical student to have direct patient
contact, the panel may find that—

(a) the ability of the practitioner to practise medicine is affected because—
(i)  of the physical or mental health of the practitioner; or
(ii)  the practitioner has an incapacity; or
(iii)  the practitioner is an alcoholic or drug-dependent person; or

(b) the ability of the practitioner to practise medicine is not affected; or
(c) the ability of the medical student to have direct patient contact is affected because—
(i) of the physical or mental health of the student; or

(ii) the student has an incapacity; or
(iii) the student is an alcoholic or drug- dependent person; or

(d)

the ability of the student to have direct patient contact is not affected.

Health Practitioner Acts (Further Amendments) Act 2002

s. 15

Act No. 14/2002

(2) If the panel makes a finding under sub-

section (1)(a), the panel may make one or
more of the following determinations—

(a) to impose any condition, limitation or restriction on the registration of the medical practitioner;
(b) to suspend the registration of the medical practitioner for the period and subject to the conditions, limitations and restrictions, if any, specified in the determination.
(3) If the panel makes a finding under sub-

section (1)(c), the panel may make one or
both of the following determinations—

(a) to impose any condition, limitation or restriction on direct patient contact by the student;
(b) to prohibit the student from having direct patient contact for the period specified.
(4) A determination of the Board under sub-

section (3) takes effect when notice of it is
served on the medical school where the
student is enrolled.

(5) A medical student is not permitted to have
direct patient contact contrary to the terms of a determination in force under this section.".

15. New Division 3 inserted
For the heading to Division 3 of Part 3 of the and sections—
"Division 3—Specific provisions relating to the professional performance of medical
practitioners

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 15
38A. Performance assessment
(1) If a registered medical practitioner agrees to undergo a performance assessment in accordance with section 29(2)(da), the practitioner's performance must be assessed
by one or two registered medical
practitioners (the number of which is to be
determined by the Board) who are not
members of the Board and who are agreed
upon by the Board and the practitioner
whose performance is to be assessed.
(2) If the Board and the practitioner whose
performance is to be assessed are unable to agree upon any practitioner to conduct the assessment, the Secretary must appoint one
or two registered medical practitioners (the number of which is to be determined by the Board) to perform the assessment.
(3) The Board must pay for the assessment.

38B. Report of assessment
(1) The assessing practitioner or practitioners must give a report of the assessment to the person appointed to investigate the matter and, not more than 7 days later, to the
practitioner being investigated.
(2) The person appointed to investigate the matter must discuss the report with the practitioner being investigated and, in the
case of an adverse finding in the report, the possible ways of dealing with that finding, including whether the practitioner is
prepared to alter the way in which she or he
practises medicine.
(3) After discussing the report with the
practitioner being investigated, the person
appointed to investigate the matter must

Health Practitioner Acts (Further Amendments) Act 2002

s. 15

Act No. 14/2002

report to the Board and make
recommendations.

38C. Refusal to attend or co-operate

If a registered medical practitioner who is the
subject of a preliminary investigation into
her or his professional performance—

(a)

does not agree to undergo a performance assessment; or

(b)

does not abide by an agreement to undergo a performance assessment—
the Board may refer the matter to a
performance review or an informal or formal
hearing.
38D. Outcome of preliminary investigation into a practitioner's professional performance
(1) If, after considering any report given under section 38B, the Board decides that further action should be taken, the Board may make
one or more of the following
determinations—

(a)

that the medical practitioner's performance be reviewed by a performance review panel;

(b)

that an informal or formal hearing be held under Division 3A;

(c)

that the medical practitioner undergo a medical examination;

(d)

that the medical practitioner undergo counselling;

(e)

that the medical practitioner alter the way in which she or he practises medicine;

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 15

(f)
that the medical practitioner undertake education within a specified period.

(2) Despite sub-section (1), the Board may, after

considering any report given under section
38B, enter into an agreement with the
practitioner to do any of the things referred
to in sub-section (1)(c), (d), (e) or (f).

38E. Establishment and notice of a performance
review panel
If the Board has determined that a medical practitioner's professional performance should be reviewed by a performance review panel under section 25(7)(c) or 38D(1)(a), the Board may—

(a)
appoint a performance review panel to professional performance; and

(b)

fix a time and place for the review of the performance to be conducted; and

(c)

serve a notice on the practitioner by registered post which complies with section 29; and

(d)

serve a notice on any notifier by registered post under section 57(4)(a) and (b).

38F. Constitution of a performance review panel
(1) A performance review panel appointed under

section 38E must consist of not less than
2 persons who must not be members of the
Board—

(a)

of whom 1 is to be a registered medical practitioner with extensive experience

Health Practitioner Acts (Further Amendments) Act 2002

s. 15	Act No. 14/2002
and qualifications in the area of medicine of the practitioner whose performance is under review; and

(b)

of whom at least 1 is to be a person who is not a medical practitioner.
(2) The following persons are not entitled to be
members of a performance review panel—

(a) a person who conducted a preliminary investigation of the practitioner whose performance is under review;
(b)
a person who conducted a performance performance is under review.

38G. Conduct of a performance review panel
(1) The procedure of a performance review

panel is in its discretion and the
proceedings—

(a) must be conducted with as little formality and technicality as the requirements of this Act and the proper
consideration of the matter permit; and

(b) must not be open to the public.
(2) A performance review panel must cease
reviewing a practitioner's professional performance and refer the matter to the Board if the panel is of the opinion that—

(a)
the practitioner's performance raises a safety; or

(b)
the practitioner may have engaged in nature.

38H. Outcome of a performance review panel's
review

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 15

(1) Upon completing a review of the

professional performance of a registered
medical practitioner, the performance review
panel must give to the Board a report with its
recommendations.
(2) After considering the report given under sub- section (1), the Board may make one or more of the following determinations—
(a) that no further action be taken;

(b) that the matter be referred to a formal hearing;
(c) that the medical practitioner undergo a medical examination;
(d) that the medical practitioner undergo counselling;
(e)
that any condition, limitation or practitioner's registration;

(f) that the medical practitioner alter the way in which she or he practises medicine;
(g)
that the medical practitioner undertake education within a specified period.

38I. Referral to a medical examination or a
formal hearing
(1) The Board may, at any time during the

assessment of a medical practitioner's
professional performance by a registered
medical practitioner or the review of a
medical practitioner's professional
performance by a performance review panel,
direct the practitioner to undergo a medical
examination, if the Board is of the opinion

Health Practitioner Acts (Further Amendments) Act 2002

s. 16

Act No. 14/2002

that the ability of the practitioner to practise
medicine is affected.
(2) The Board must refer a matter arising out of

an investigation of a medical practitioner's
professional performance to a formal hearing
if the Board is of the opinion that—

(a) the matter raises a significant issue of public health or safety; or
(b)
the practitioner may have engaged in nature.

(3) If a matter is referred to a hearing under this section, any assessment of the practitioner's professional performance by a registered
medical practitioner or any review of the
practitioner's professional performance by a
performance review panel must be
abandoned.

38J. Request for a formal hearing by a

practitioner
If, before the end of an assessment of a medical practitioner's professional performance by a registered medical practitioner or a review by a performance review panel, the practitioner requests that a formal hearing be held—

(a)

the performance assessment or review must be abandoned; and

(b)

the Board must refer the matter to a formal hearing.".

16. New heading to Division 3A and section 38K inserted
Before section 39 of the Principal Act insert the following heading and section—

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 17
"Division 3A—Specific provisions relating to
the professional conduct of medical
practitioners

38K. Outcome of a preliminary investigation
(1) Upon completing a preliminary investigation

into the professional conduct of a registered
medical practitioner, the person or sub-
committee appointed by the Board to
conduct the investigation may make one of
the following recommendations—

(a) that the investigation into the matter not proceed further;
(b) that an informal or formal hearing be held into the matter;
(c) that the medical practitioner undergo a medical examination;
(d) that the medical practitioner's
performance be assessed by a medical
practitioner or reviewed by a
performance review panel.
(2) The Board must determine whether or not to act on the recommendations of the person or sub-committee appointed by the Board to
conduct the preliminary investigation.".

17. Establishment and notice of an informal hearing

(1) Insert the following heading to section 39 of the Principal Act—
"39. Establishment and notice of an informal
hearing".

(2) In section 39 of the Principal Act—
(a) for "section 25 or 26" substitute "this Part";

(b)

in paragraph (d), for "complainant" substitute "notifier".

Health Practitioner Acts (Further Amendments) Act 2002

s. 19

Act No. 14/2002

18. Persons not entitled to be members of panel for informal hearing
For section 40(3) of the Principal Act substitute—
"(3) A person is not entitled to be a member of the panel if the person—

(a) has undertaken a preliminary investigation of the matter; or
(b)
was appointed under section 38A to professional performance; or

(c)
panel appointed under section 38E to
was a member of a performance review performance; or

(d)

was appointed to conduct a preliminary conference under section 48A.".

19. New sections 45A and 45B inserted
After section 45 of the Principal Act insert—
"45A. Finding and determinations of a formal

hearing into conduct

(1) After considering all the submissions made

to a formal hearing into the professional
conduct of a registered medical practitioner
the panel may find that—

(a)
the practitioner has, whether by act or conduct of a serious nature; or

(b)

the practitioner has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 19

(c) the practitioner has not engaged in unprofessional conduct.
(2) If the panel finds that the practitioner has,

whether by act or omission, engaged in
unprofessional conduct of a serious nature,
the panel may make one or more of the
following determinations—

(a)

require the practitioner to undergo counselling;
(b) caution the practitioner;
(c) reprimand the practitioner;

(d)
require the practitioner to undertake education within a specified period;

(e) impose any condition, limitation or restriction on the registration of the practitioner;
(f) impose a fine on the practitioner of not more than $2000;
(g)

suspend the registration of the the determination;

(h) cancel the registration of the practitioner;
(i) disqualify the practitioner from applying for registration under section 5 within a specified period if

the practitioner's registration is
cancelled by the Board or by a medical
registration authority of another State
or Territory of the Commonwealth or of
New Zealand.

(3) If the panel finds under sub-section (1)(b)
that the practitioner has, whether by act or

Health Practitioner Acts (Further Amendments) Act 2002

s. 19

Act No. 14/2002

omission, engaged in unprofessional conduct
which is not of a serious nature, the panel
may make any determination which a panel
at an informal hearing is able to make upon
such a finding.
(4) The panel must not impose a fine if the

conduct which is the subject of the finding
has resulted in a fine being imposed by
another tribunal or court of law.

(5) If the panel has made a determination under sub-section (2)(a) or (d) and the practitioner has not complied with the determination
within the time specified in the
determination, the Board may suspend the
practitioner's registration until the
determination is complied with.
45B. Investigation may continue even if a person is no longer registered
(1) The Board may—

(a)
conduct an investigation into a and make a finding or determination under this Part;

(b)

conduct a hearing and make a finding or determination under this Part in relation to a notification referred to in section 22(2)—
as if the person referred to in that notification
were a registered medical practitioner.
(2) The Board may—

(a) conduct or continue to conduct an investigation into the professional conduct of a person who has ceased to
be a registered medical practitioner but

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 20
who was a registered medical
practitioner at the time a notification
was made or the Board had determined
to conduct an investigation into the
conduct and make a finding or
determination under this Part;

(b)

conduct or continue to conduct a hearing and make a finding or determination under this Part in relation to a person who has ceased to be a registered medical practitioner but who was a registered medical practitioner at the time the Board had determined to conduct the hearing—
as if the person were a registered medical
practitioner.".

20. New heading to Division 3B and section 45C inserted
Before section 46 of the Principal Act insert the following heading and section—
"Division 3B—General provisions relating to
formal and informal hearings

45C. Application of Division
This Division applies to hearings in relation to—

(a)

the ability of registered medical practitioners to practise medicine;

(b)

the ability of medical students to have direct patient contact; and

(c)

the professional conduct of medical practitioners.".

21. Formal hearings
(1) Insert the following heading to section 46 of the Principal Act—

Health Practitioner Acts (Further Amendments) Act 2002

s. 22

Act No. 14/2002

"46. Establishment and notice of formal
hearing".

(2) In section 46 of the Principal Act—

(a) in paragraph (a), for "section 25 or 26 or has referred a matter to a formal hearing under section 33" substitute "this Part or has referred a matter to a formal hearing under this Part";
(b) in paragraph (c) for "section 44" substitute "this Part";
(c) in paragraph (g), for "complainant" substitute "notifier".

22. Persons not entitled to be members of a panel for a formal hearing
For section 47(3) of the Principal Act substitute—
"(3) The following persons are not entitled to be
members of a panel for a formal hearing—

(a)
a person who has undertaken a which is the subject of the hearing;

(b) a person who has been a member of a panel which held an informal hearing into the matter;
(c)
a person appointed under section 38A professional performance; or

(d)

a person who was a member of a performance review panel appointed under section 38E to review the medical practitioner's performance; or

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002

(e)
a person appointed to conduct a 48A.".

23. New sections 48A and 48B inserted
After section 48 of the Principal Act insert—
"48A. Preliminary conferences
(1) The Board may, at any time before a formal hearing, require the medical practitioner or medical student to attend one or more
preliminary conferences with a person
appointed by the Board.
(2) The Board must not appoint a person who is a member of the Board or a hearing panel to conduct a preliminary conference.
(3) The functions of a preliminary conference
are to—

(a)

identify and clarify the nature of the issues in dispute in the matter;

(b)

identify the issues to be considered or determined by the panel;

(c)

allow guidance to be given concerning the conduct of the matter.
(4) The Board must give notice of the
preliminary conference to the medical
practitioner or medical student.
(5) A preliminary conference must be held in private unless the person presiding directs otherwise.
(6) Subject to this Act, the procedure for a

preliminary conference is at the discretion of
the person presiding.

48B. Personal attendance may be required

Health Practitioner Acts (Further Amendments) Act 2002

s. 24

s. 25

Act No. 14/2002

The Board may require a medical practitioner or medical student to attend a preliminary conference personally or by a representative.".

24. Conduct of a formal hearing
In section 49(c) of the Principal Act, for "complaint, the identity of the complainant is not to be published or broadcast and the complainant" substitute "notification made under section 22, the identity of the notifier is not to be published or broadcast and the notifier".

25. Repeal of sections 50, 51 and 51A
Sections 50, 51 and 51A of the Principal Act are repealed.

26. Consideration of performance assessment reports

At the end of section 52 of the Principal Act insert—
"(2) Despite sub-section (1)(d), a panel may,

when conducting a hearing into a
practitioner's ability to practise medicine or a
practitioner's professional conduct, consider
any report about the practitioner's
professional performance made for the
purposes of a performance assessment or
performance review under Division 3.".

27. Notice of determination
(1) Insert the following heading to section 57 of the Principal Act—
"57. Notice of determination".

(2) In section 57(4) of the Principal Act—
Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 29

(a) for "complaint" (wherever occurring)
substitute "notification";
(b) for "complainant" (wherever occurring)
substitute "notifier";
(c) for "complainant's" substitute "notifier's".

28. Offence to disclose information identifying notifier

(1) Insert the following heading to section 58 of the Principal Act—
"58. Offence to disclose information identifying
a notifier".

(2) In section 58 of the Principal Act, for

"complainant" (wherever occurring) substitute
"notifier".

29. Review by VCAT

In section 60(1) of the Principal Act—

(a)

in paragraph (c), for "conduct" substitute "conduct, professional performance";

(b)

in paragraph (d), for "Part 3." substitute "Part 3; or";
(c) after paragraph (d) insert—
"(e) a decision of the Board to accept under

section 27(5) an agreement by a
medical practitioner to alter the way in
which she or he practises medicine if
the Board has not instituted an
investigation into the practitioner's
professional conduct or ability
to practise within a reasonable time
after having accepted the agreement;
or

(f)

a decision of the Board to accept under section 27(5) an agreement by a medical student to alter the nature or

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002
extent of her or his direct patient
contact if the Board has not instituted
an investigation into the student's
ability to have direct patient contact
within a reasonable time after having
accepted the agreement.".

30. New sections 63A to 63K inserted
After section 63 of the Principal Act insert—
'63A. Prohibition against directing or inciting unprofessional conduct
(1) A person ("the employer") who employs a
registered medical practitioner must not direct or incite the practitioner to do any thing, in the course of professional practice,
that would constitute unprofessional conduct.

Penalty: For a natural person, 200 penalty
units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
subsequent offence.
(2) If a court convicts or finds a person guilty of an offence against this section, the Clerk or other proper officer of the court must notify the Secretary in writing of the conviction or finding.
(3) This section does not apply in respect of the employment of a medical practitioner by a community health centre, a denominational hospital, a health service establishment, a
multi purpose service, a privately operated
hospital or a public hospital within the
meaning of the Health Services Act 1988.

Health Practitioner Acts (Further Amendments) Act 2002

s. 30
s. 30

Act No. 14/2002

63B. Extended concept of employment

(1) If a registered medical practitioner engages in the practice of medicine in the course of the carrying on of a business, any person
who owns, manages, controls or operates
that business is for the purposes of this Part
to be treated as employing the practitioner
(in addition to any person who actually
employs the practitioner).
(2) If a registered medical practitioner is
employed by a body corporate, each of the
following persons is to be treated as
employing the practitioner (in addition to the
body corporate)—

(a) a person who has (within the meaning of section 63H) a management role or a substantial interest in the body corporate;
(b)
corporate in accordance with whose
any other employee of the body expected to act.

63C. Extended concept of carrying on business
(1) If a medical practitioner engaged in the practice of medicine is provided, in the course of the carrying on of a business, with
services that facilitate that practice and the
operator of the business is entitled, in
connection with the provision of those
services, to a share or interest in the profits
or income arising from the practice of
medicine by the practitioner—

(a)

that business is to be treated as being a business that provides the medical services that are provided by the

Health Practitioner Acts (Further Amendments) Act 2002

s. 30	Act No. 14/2002
practitioner in the course of that practice; and

(b) the practitioner is taken for the purposes of this Part to be engaged in the practice of medicine in the course of the carrying on of that business.
(2) For the purposes of this Part, a person is to

be treated as carrying on a business if the
person—

(a) owns, manages, controls, conducts or operates the business; or
(b) has (within the meaning of section 63H) a management role or substantial interest in a body corporate that operates the business or a substantial interest in a trust under which the business is operated.
63D. Convicted offenders may be prohibited from carrying on business
(1) The Secretary may by notice in writing given
to a person who has been convicted of or found guilty of an offence against section 63A prohibit the person from operating a business that provides medical services.
(2) The prohibition may be expressed to be—

(a)

for a fixed period (in which case the prohibition remains in force only for that fixed period); or

(b)

for an unlimited period subject to an entitlement to apply after a specified time for the lifting of the prohibition (in
which case the prohibition remains in
force until it is lifted).
(3) A prohibition may not be imposed under this
section unless the Secretary is of the opinion

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 30
that the person is not a fit and proper person
to operate a business that provides medical
services.
(4) The Secretary is entitled to presume, in the absence of evidence to the contrary, that a person who has been convicted of or found guilty of an offence against section 63A on 2 or more occasions in any period of
10 years is not a fit and proper person to
operate such a business.
(5) A prohibition under this section may be limited in its operation in the following ways—

(a) it may be limited to specified premises, but only if the person concerned operates a business that provides medical services at those premises and at other premises;
(b) it may be limited to premises within a specified area;
(c) it may be limited in any other way specified by the Secretary.
(6) If a prohibition under this section is subject

to an entitlement to apply after a specified
time for the prohibition to be lifted, the
application may be made to the Secretary
after that time.

(7) The Secretary may lift the prohibition or confirm the prohibition and set a further period after which an application for the prohibition to be lifted can be made under
this section.
63E. Offence of operating business while
prohibited

Health Practitioner Acts (Further Amendments) Act 2002

s. 30

Act No. 14/2002

(1) A person must not in contravention of a

prohibition under this Part operate a business
that provides medical services.

Penalty: For a natural person, 200 penalty
units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
subsequent offence.
(2) For a continuing offence against this section the offender is liable to a maximum penalty of—
(a) 50 penalty units for a natural person; or

(b) 100 penalty units for a body corporate—
in respect of each day on which that offence continues after conviction under sub-section (1) or after a notice is given under section
63D, in addition to the penalty specified in
sub-section (1).
(3) If medical services are provided on premises

on which a business is carried on, it is to be
presumed for the purposes of this section,
unless the contrary is established, that the
business provided those medical services.

63F. Effect of appeal against conviction
A prohibition under this Part has no effect while an appeal is pending against the conviction or finding of guilt for the offence on which the prohibition is based.

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 30

63G. Power to require information from
convicted persons and others

(1) If a body corporate or the trustee of a trust is convicted of or found guilty of an offence against section 63A or 63E in connection with the operation of a business operated by
the body corporate or under the trust the Secretary may require certain persons to provide specified information to the
Secretary, as provided by this section.
(2) The body corporate or trustee may be
required to provide information that the
Secretary may reasonably require to
ascertain the identity of each person who has
a management role or substantial interest in
the body corporate or a substantial interest in
the trust.
(3) A person whom the Secretary reasonably

believes has a management role or
substantial interest in the body corporate or a
substantial interest in the trust may be
required to provide information that the
Secretary may reasonably require to
ascertain—

(a) the identity of each body corporate in which that person has a management role or substantial interest; or
(b) the identity of the trustee and any manager of a trust in which that person has a substantial interest.
(4) A requirement to provide information is to

be imposed by direction in writing served on
the person, body corporate or trustee
concerned.

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002

(5) The direction must specify a period of not
less than 7 days as the period within which
the required information must be provided.
(6) A person must not fail without reasonable

excuse to comply with a requirement under
this section.

Penalty: For a natural person, 200 penalty
units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
subsequent offence.
(7) A person must not provide information that

the person believes is false or misleading in a
material particular.

Penalty: For a natural person, 200 penalty
units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
subsequent offence.
(8) It is a reasonable excuse for a natural person

to refuse or fail to give information that the
person is required to do by or under this
section, if the giving of the information
would tend to incriminate the person.

Health Practitioner Acts (Further Amendments) Act 2002

s. 30
s. 30

Act No. 14/2002

(9) Despite sub-section (8), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is
required to produce by or under this section, if the production of the document would tend to incriminate the person.

63H. Meaning of management role and

substantial interest
(1) For the purposes of sections 63A to 63G a

person is to be treated as having a
management role or substantial interest in a
body corporate if—

(a) the person is a director, secretary or executive officer of the body corporate; or
(b) in the case of a body corporate that is incorporated as a corporation limited by shares, the person is entitled to more than 10% of the issued share capital of the corporation (with the shares to which a person is entitled including shares in which the person or an associate of the person has a relevant interest within the meaning of the Corporations Act).
(2) For the purposes of sections 63A to 63G a

person is to be treated as having a substantial
interest in a trust if the person (whether or
not as the trustee of another trust) is the
beneficiary in respect of more than 10% of
the value of the interests in the trust.

63I. Register of prohibitions
(1) The Secretary must cause to be kept a
register of all persons who are prohibited
under section 63D from operating a business
that provides medical services.

Health Practitioner Acts (Further Amendments) Act 2002
Act No. 14/2002

(2) The following particulars must be included

on the register against the name of the person
to whom they apply—

(a) any current prohibition under section 63D;
(b) the period for which the prohibition is in force;
(c) if the prohibition is limited to specified premises, the address or a description of those premises;
(d) if the prohibition is limited to premises in a specified area, a description of the area;
(e) if the prohibition is limited in any other way by the Secretary, a description of that limitation.
(3) The register may be inspected at the head

office of the Secretary by any person during

ordinary office hours without charge.

(4) A person may obtain a copy of or an extract from the register without charge.
63J. Evidentiary certificate
A certificate purporting to be signed by the
Secretary to the effect that the person
specified in the certificate is or was
prohibited under this Part from operating a
business that provides medical services
during a period specified in the certificate is
evidence, and, in the absence of evidence to
the contrary, is proof of the matters stated in
it.

63K. Secretary to notify Board of prohibitions

Health Practitioner Acts (Further Amendments) Act 2002

s. 31
s. 32

Act No. 14/2002

If the Secretary has given notice of a prohibition under section 63D, the Secretary must advise the following of that prohibition—
(a) the Board; and

(b)
establishments, privately operated
hospitals and public hospitals within
denominational hospitals, health service Act 1988.'.

31. Advertising guidelines

In section 64B of the Principal Act—

(a) in sub-section (1)—
(i) for "Board" substitute "Minister";
(ii) for "acceptable to the Board" substitute "formulated by the Board and approved by the Minister";

(b)

in sub-section (2), for "purposes of this section" substitute "consideration of the Minister";
(c) in sub-section (3)—

(i)
for "recommendation to the Governor Minister";

(ii)
Governor in Council" substitute
for "recommendation is given to the Minister for consideration";

(d)

in sub-section (4), for "making a recommendation to the Governor in Council" substitute " formulating guidelines for the approval of the Minister".

32. New section 64E inserted

Health Practitioner Acts (Further Amendments) Act 2002

s. 34

Act No. 14/2002

(1) After section 64D of the Principal Act insert—
"64E. Extension of time
Despite section 26 of the Magistrates'
Court Act 1989, proceedings for an offence
under this Act may be commenced within
3 years after the commission of the alleged
offence.".

(2) Section 64(4) of the Principal Act is repealed.

33. Powers, functions and consultation requirements

In section 66(1) of the Principal Act—

(a)

in paragraph (c), after "conduct" insert ", professional performance";

(b)

in paragraph (da), after "medicine" insert "and about professional performance";
(c) after paragraph (e) insert—

"(ea) to report to the Minister any concern
system in Victoria that arises from the

that the Board has about the health this Act;".

34. Prosecution of certain offences
After section 92(2) of the Principal Act insert—
"(3) A person authorised by the Secretary under

the Health Act 1958 may, in addition to any
other person referred to in sub-section (1),
take proceedings for an offence against
section 63A, 63E or 63G.

(4) A person authorised by the Secretary under

the Health Act 1958, in relation to a
contravention of section 63A, 63E or 63G,

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 35
may carry out the functions and may exercise
the powers of a person authorised or
appointed by the Board for the purposes of
this Part.".

35. New section 106 inserted
After section 105 of the Principal Act insert—

"106. Further transitional provisions

(1) Part 3 as amended by the Health

Practitioner Acts (Further Amendments)
Act 2002 applies to—

(a) the activities or conduct of a registered medical practitioner (except conduct or activities that may be the subject of an investigation under Part 3 into the
professional performance of a
registered medical practitioner) and the
activities or conduct of a registered
medical student which occurred before
the commencement of section 9 of that
Act;
(b) a complaint that was made to the Board before that date as if that complaint were a notification made under Part 3 as amended by that Act;
(c) any investigation, examination or
hearing that was commenced before
that date.
(2) Section 64E does not apply to an offence under this Act (except an offence under section 64) that is alleged to have been committed before the commencement of
section 32 of the Health Practitioner Acts
(Further Amendments) Act 2002.".

__________________
Health Practitioner Acts (Further Amendments) Act 2002

s. 36

Act No. 14/2002

PART 3—NURSES ACT 1993

36. Increased penalties for bodies corporate

See:

Act No.

For the penalties at the foot of section 63(1), (2),

111/1993.

(3) and (4) of the Nurses Act 1993 substitute—

Reprint No. 3

as at

"Penalty:

For a natural person, 50 penalty units.

1 January

2002 and

For a body corporate, 100 penalty

amending Act

units.".

No. 2/2001.

LawToday:

dpc.vic. gov.au

37. New sections 63A to 63J inserted
After section 63 of the Nurses Act 1993 insert—
"63A. Prohibition against directing or inciting unprofessional conduct
(1) A nurse's agent who arranges for the supply of the services of a registered nurse must not direct or incite the nurse to engage in
conduct, in the course of professional
practice, that would constitute unprofessional

conduct. Penalty: For a natural person, 200 penalty
units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
subsequent offence.
(2) If a court convicts or finds a person guilty of an offence against this section, the Clerk or other proper officer of the court must notify

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 37
the Secretary in writing of the conviction or
finding.

63B. Extended concept of arranging the supply
of services
(1) If the supply of the services of registered

nurses is arranged for in the carrying out of a
business or practice of a nurse's agent, any
person who owns, manages, controls or
operates that business is for the purposes of
this Part to be treated as arranging for the
supply of those services (in addition to any
person who actually arranges for the supply
of those services).

(2) If a supply of the services of a registered

nurse is arranged for in the carrying out of a
business or practice of a nurse's agent by a
body corporate, each of the following
persons is for the purposes of this Part also
to be treated as being the nurse's agent who
arranges for the supply of the services of a
registered nurse (in addition to the body
corporate)—

(a) a person who has (within the meaning of section 63G) a management role or a substantial interest in the body corporate;
(b)
corporate in accordance with whose
any other employee of the body required or expected to act.

63C. Convicted offenders may be prohibited from carrying on business
(1) The Secretary may by notice in writing given
to a person who has been convicted of or found guilty of an offence against section

Health Practitioner Acts (Further Amendments) Act 2002

s. 37

Act No. 14/2002

63A prohibit the person from carrying on the
business or practice of a nurse's agent.
(2) The prohibition may be expressed to be—

(a) for a fixed period (in which case the prohibition remains in force only for that fixed period); or
(b) for an unlimited period subject to an entitlement to apply after a specified time for the lifting of the prohibition (in
which case the prohibition remains in
force until it is lifted).
(3) A prohibition may not be imposed under this section unless the Secretary is of the opinion that the person is not a fit and proper person to carry on the business or practice of a
nurse's agent.
(4) The Secretary is entitled to presume, in the absence of evidence to the contrary, that a person who has been convicted of or found guilty of an offence against section 63A on 2
or more occasions in any period of 10 years is not a fit and proper person to carry on the business or practice of a nurse's agent.
(5) A prohibition under this section may be

limited in its operation in any of the
following ways—

(a) it may be limited to specified premises, but only where the person concerned is carrying on the business or practice of a nurse's agent at those premises and at
other premises;

(b)

it may be limited to premises within a specified area;

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 37

(c) it may be limited in any other way specified by the Secretary.
(6) If a prohibition under this section is subject

to an entitlement to apply after a specified
time for the prohibition to be lifted, the
application may be made to the Secretary
after that time.

(7) The Secretary may lift the prohibition or confirm the prohibition and set a further period after which an application for the prohibition to be lifted can be made under
this section.
63D. Offence of carrying on business or practice
while prohibited
(1) A person must not in contravention of a
prohibition under this Part carry on the
business or practice of a nurse's agent.

Penalty: For a natural person, 200 penalty
units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
subsequent offence.
(2) For a continuing offence against this section the offender is liable to a maximum penalty of—
(a) 50 penalty units for a natural person; or

(b) 100 penalty units for a body corporate—
in respect of each day on which that offence continues after conviction under sub-section (1) or a notice is given under section 63C, in

Health Practitioner Acts (Further Amendments) Act 2002

s. 37

Act No. 14/2002

addition to the penalty specified in sub-
section (1).
(3) If the services of a nurse's agent are provided

on premises on which a business or practice
is carried on, it is to be presumed for the
purposes of this section, unless the contrary
is established, that the business or practice
carried on or provided is the business or
practice of a nurse's agent.

63E. Effect of appeal against conviction
A prohibition under this Part has no effect while an appeal is pending against the conviction or finding of guilt for the offence on which the prohibition is based.

63F. Power to require information from

convicted persons and others

(1) If a body corporate is convicted of or made
the subject of a finding of guilt for an offence against section 63A or 63D in connection with the carrying on of the business or practice by the body corporate
the Secretary may require certain persons to
provide specified information to the
Secretary, as provided by this section.
(2) The body corporate may be required to

provide information that the Secretary may
reasonably require to ascertain the identity of
each person who has a management role or
substantial interest in the body corporate.

(3) A person whom the Secretary reasonably

believes has a management role or
substantial interest in the body corporate
may be required to provide information that
the Secretary may reasonably require to
ascertain the identity of each body corporate

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 37
in which that person has a management role
or substantial interest.
(4) A requirement to provide information is to

be imposed by direction in writing served on
the person or body corporate concerned.

(5) The direction must specify a period of not
less than 7 days as the period within which
the required information must be provided.
(6) A person must not fail without reasonable

excuse to comply with a requirement under
this section.

Penalty: For a natural person, 200 penalty
units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
subsequent offence.
(7) A person must not provide information that

the person believes is false or misleading in a
material particular.

Penalty: For a natural person, 200 penalty
units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
subsequent offence.
(8) It is a reasonable excuse for a natural person

to refuse or fail to give information that the
person is required to do by or under this
section, if the giving of the information
would tend to incriminate the person.

Health Practitioner Acts (Further Amendments) Act 2002

s. 37

Act No. 14/2002

(9) Despite sub-section (8), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is
required to produce by or under this section, if the production of the document would tend to incriminate the person.

63G. Meaning of management role and

substantial interest
For the purposes of sections 63A to 63F a person is to be treated as having a management role or substantial interest in a body corporate if—

(a)

the person is a director, secretary or executive officer of the body corporate; or

(b)

in the case of a body corporate that is incorporated as a corporation limited by shares, the person is entitled to more than 10% of the issued share capital of the corporation (with the shares to which a person is entitled including shares in which the person or an associate of the person has a relevant interest within the meaning of the

Corporations Act).
63H. Register of prohibitions
(1) The Secretary must cause to be kept a
register of all persons who are prohibited
under section 63C from carrying on the
business or practice of a nurse's agent.
(2) The following particulars must be included

on the register against the name of the person
to whom they apply—

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 37

(a) any current prohibition under section 63C;
(b) the period for which the prohibition is in force;
(c) if the prohibition is limited to specified premises, the address or a description of those premises;
(d) if the prohibition is limited to premises in a specified area, a description of the area;
(e) if the prohibition is limited in any other way by the Secretary, a description of that limitation.
(3) The register may be inspected at the head

office of the Secretary by any person during
ordinary office hours without charge.

(4) A person may obtain a copy of or an extract from the register without charge.
63I. Evidentiary certificate
A certificate purporting to be signed by the
Secretary to the effect that the person
specified in the certificate is or was
prohibited under this Part from carrying on
the business or practice of a nurse's agent
during a period specified in the certificate is
evidence, and, in the absence of evidence to
the contrary, is proof of the matters stated in
it.

63J. Secretary to notify Board of prohibitions
If the Secretary has given notice of a prohibition under section 63C, the Secretary must advise the following of that prohibition—

(a) the Board; and
Health Practitioner Acts (Further Amendments) Act 2002

s. 38

Act No. 14/2002

(b)
establishments, private hospitals,
privately operated hospitals and public
denominational hospitals, health service Health Services Act 1988.".

38. Advertising guidelines
In section 64B of the Nurses Act 1993—
(a) in sub-section (1)—
(i) for "Board" substitute "Minister";
(ii) for "acceptable to the Board" substitute "formulated by the Board and approved by the Minister";

(b)

in sub-section (2), for "purposes of this section" substitute "consideration of the Minister";
(c) in sub-section (3)—

(i)
for "recommendation to the Governor Minister";

(ii)
Governor in Council" substitute
for "recommendation is given to the Minister for consideration";

(d)
recommendation to the Governor in Council"
in sub-section (4), for "making a approval of the Minister".

39. New section 64E inserted

(1) After section 64D of the Nurses Act 1993

insert—

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 40
"64E. Extension of time
Despite section 26 of the Magistrates'
Court Act 1989, proceedings for an offence
under this Act may be commenced within
3 years after the commission of the alleged
offence.".

(2) Section 64A(4) of the Nurses Act 1993 is

repealed.

40. Prosecution of certain offences
After section 87(2) of the Nurses Act 1993 insert—
"(3) A person authorised by the Secretary under

the Health Act 1958 may, in addition to any
other person referred to in sub-section (1),
take proceedings for an offence against
section 63A, 63D or 63F.

(4) A person authorised by the Secretary under

the Health Act 1958, in relation to a
contravention of section 63A, 63D or 63F,
may carry out the functions and may exercise
the powers of a person authorised or
appointed by the Board for the purposes of
this Part.".

41. New section 102 substituted
For section 102 of the Nurses Act 1993 substitute—

"102. Further transitional provisions

Section 64E does not apply to an offence under this Act (except an offence under section 64A) that is alleged to have been committed before the commencement of section 39 of the Health Practitioner Acts (Further Amendments) Act 2002.".

__________________
Health Practitioner Acts (Further Amendments) Act 2002

s. 42

Act No. 14/2002

PART 4—AMENDMENTS TO OTHER HEALTH
PRACTITIONER ACTS

42. Chinese Medicine Registration Act 2000—period of registration

See:

Act No.	In section 11 of the Chinese Medicine
18/2000	Registration Act 2000 for "31 December"
and
amending Act	substitute "30 June".
Nos 94/2000, 2/2001 and 33/2001. LawToday: dpc.vic. gov.au

43. Chinese Medicine Registration Act 2000—advertising guidelines
In section 64 of the Chinese Medicine
Registration Act 2000—
(a) in sub-section (1)—
(i) for "Board" substitute "Minister";
(ii) omit "acceptable to the Board";

(b)

in sub-section (2), for "purposes of this section" substitute "consideration of the Minister";
(c) in sub-section (3)—

(i)
for "recommendation to the Governor Minister";

(ii)
Governor in Council" substitute
for "recommendation is given to the Minister for consideration";

Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 44

(d)
recommendation to the Governor in Council"
in sub-section (4), for "making a approval of the Minister".

44. Chinese Medicine Registration Act 2000—transitional
After section 111 of the Chinese Medicine
Registration Act 2000 insert—
"112. Transitional—period of registration
Despite section 11, if a person was registered
under section 6 immediately before the
commencement of section 42 of the Health
Practitioner Acts (Further Amendments)
Act 2002, the registration continues in force
until 30 June in the year next following the
registration and the Board may charge the
person a fee for that period of registration
not exceeding half the annual registration fee
fixed by the Board for the purposes of
section 6.".

45. Amendments to Dental Practice Act 1999

See:

In section 66 of the Dental Practice Act 1999—

Act No. 26/1999.

(a) in sub-section (1)— Reprint No. 1
as at 1 July

(i) for "Board" substitute "Minister"; 2000 and
amending Act

(ii) omit "acceptable to the Board";

Nos 18/2000 and 2/2001.

(b) in sub-section (2), for "purposes of this section" substitute "consideration of the

LawToday:
dpc.vic.

Minister"; gov.au

(c) in sub-section (3)—

(i)
for "recommendation to the Governor Minister";

Health Practitioner Acts (Further Amendments) Act 2002

s. 46

Act No. 14/2002

(iii)
Governor in Council" substitute
for "recommendation is given to the Minister for consideration";

(d)

in sub-section (4), for "making a recommendation to the Governor in Council" substitute "in formulating guidelines for the approval of the Minister".

46. Amendments to Psychologists Registration Act 2000

See:

Act No.	In section 64 of the Psychologists Registration
41/2000	Act 2000—
amending Act Nos 74/2000 and 2/2001. LawToday: dpc.vic.	(a) in sub-section (1)—

(i) for "Board" substitute "Minister";
(ii) omit "acceptable to the Board";

gov.au

(b)

in sub-section (2), for "purposes of this section" substitute "consideration of the Minister";
(c) in sub-section (3)—

(i)
for "recommendation to the Governor Minister";

(ii)
Governor in Council" substitute
for "recommendation is given to the Minister for consideration";

(d)
recommendation to the Governor in Council"
in sub-section (4), for "making a approval of the Minister".

47. Repeal of redundant Act

See:

Act No.	The Medical Practitioners (Private Hospitals)
10032.	Act 1984 is repealed.

__________________
Health Practitioner Acts (Further Amendments) Act 2002

Act No. 14/2002 s. 48

PART 5—HEALTH RECORDS ACT 2001

48. News media

See:

In section 17(1) of the Health Records Act Act No.
2001— 2/2001
and

(a) for "or HPP 2" substitute ", HPP 2 or amending
Act No.

HPP 9"; 27/2001.
LawToday:

(b) for "or disclosure" substitute ", disclosure or

transfer". dpc.vic.
gov.au

49. Transitional provision
In section 20 of the Health Records Act 2001, after sub-section (5) insert—
"(6) To avoid doubt it is declared that, despite the commencement of section 19 and Schedule 1 on 1 March 2002, an act or practice that
occurs at any time before the commencement
of Part 6 does not constitute an interference
with the privacy of an individual—

(a)

about which a complaint may be made under section 45(1); or

(b)

that may be dealt with in any way by the Health Services Commissioner under this Act, including by the service of a compliance notice under section 66(1)—
whether before or after the commencement
of that Part.".

═══════════════
Health Practitioner Acts (Further Amendments) Act 2002

Endnotes

Act No. 14/2002

ENDNOTES

†
Minister's second reading speech—
Legislative Assembly: 21 March 2002
Legislative Council: 19 April 2002
The long title for the Bill for this Act was "to amend the Medical
Practice Act 1994, the Nurses Act 1993 and other Acts relating to health
practitioners and for other purposes."

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Health Practitioner Acts (Further Amendments) Act 2002 (Vic)

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3.	Principal Act	3
4.	Amendment to purposes of Principal Act	3
5.	Definitions	3
6.	General registration	4
7.	Non-practising registration	4
8.	Renewal of registration	4
9.	New Division 1 substituted in Part 3	5
Division 1—Notifications and commencement of
investigations	5

22.	Notifications about practitioners	6
23.	When notifications are to be dealt with by the Health
Services Commissioner as complaints	6
24.	Board may deal with a health records complaint as a
notification	8
25.	Commencement of investigations by the Board	9
26.	Request for conditions, limitations, restrictions or
suspension	11

10.	Repeal of heading to Division 2	12
11.	New sections 27 and 28 substituted	13

27.	Suspension of registration at any time	13
28.	Agreements to amend, vary or revoke	14

12.	Consequential amendments to section 29	15
13.	Heading to new Division 2A inserted	16
14.	New sections 33 and 34 substituted	16

33.	Referral to a formal hearing	16
34.	Findings and determinations of a formal hearing into
the ability of practitioner or student to practise or have
patient contact	17

15.	New Division 3 inserted	18
Division 3—Specific provisions relating to the professional
performance of medical practitioners	18

38A.	Performance assessment	19
38B.	Report of assessment	19
38C.	Refusal to attend or co-operate	20
38D.	Outcome of preliminary investigation into a
practitioner's professional performance	20
38E.	Establishment and notice of a performance review panel	21
38F.	Constitution of a performance review panel	21
38G.	Conduct of a performance review panel	22
38H.	Outcome of a performance review panel's review	22
38I.	Referral to a medical examination or a formal hearing	23
38J.	Request for a formal hearing by a practitioner	24

16.	New heading to Division 3A and section 38K inserted	24
Division 3A—Specific provisions relating to the professional
conduct of medical practitioners	25

17.	Establishment and notice of an informal hearing	25
18.	Persons not entitled to be members of panel for informal hearing	26
19.	New sections 45A and 45B inserted	26

20.	New heading to Division 3B and section 45C inserted	29
Division 3B—General provisions relating to formal and
informal hearings	29

21.	Formal hearings	29
22.	Persons not entitled to be members of a panel for a formal
hearing	30
23.	New sections 48A and 48B inserted	31

48A.	Preliminary conferences	31
48B.	Personal attendance may be required	31

24.	Conduct of a formal hearing	32
25.	Repeal of sections 50, 51 and 51A	32
26.	Consideration of performance assessment reports	32
27.	Notice of determination	32
28.	Offence to disclose information identifying notifier	33
29.	Review by VCAT	33

33.	Powers, functions and consultation requirements	44
34.	Prosecution of certain offences	44
35.	New section 106 inserted	45

36.	Increased penalties for bodies corporate	46
37.	New sections 63A to 63J inserted	46

40.	Prosecution of certain offences	55
41.	New section 102 substituted	55

Section	Page
PART 4—AMENDMENTS TO OTHER HEALTH
PRACTITIONER ACTS	56

In this Part, the Medical Practice Act 1994 is	Act No.
called the Principal Act.	23/1994. Reprint No. 3
as at 1 January
2002 and
amending Act
No. 2/2001.
LawToday:
dpc.vic. gov.au

(b)	the medical practitioner may have engaged in unprofessional conduct; or
(c)

(a)	is set out in section 16 of the Health Services (Conciliation and Review) Act 1987; or
(b)	may be the subject of a complaint under the Health Records Act 2001—
(2) The Board, in consultation with the Health	the Board must notify the Health Services notification to the Health Services Commissioner as soon as possible after it has received the notification.
Services Commissioner, must determine whether or not the notification is to be dealt with by the Commissioner or the Board.

(a)	a request made by a practitioner about her or his ability to practise under section 26(1)(a); or
(b)	a report about a registered medical practitioner under section 37.

(a)	may accept a complaint, or part of a complaint, relating to a registered medical practitioner that the Health Services Commissioner proposes to refer to the Board under section 52 of the Health Records Act 2001; and
(b)	complaint, referred to it under

(a)	the notification is not to be dealt with by the Health Services Commissioner under section 23; and
(b)

(b)	a lawyer or investigator retained by the Board;
(c)	a sub-committee of the Board consisting of not more than 3 members of the Board—

(a)	a formal hearing into the ability of a registered medical practitioner to practise medicine; or
(b)	a formal hearing into the ability of a registered medical student to have direct patient contact as part of her or his course of study; or
(c)

(d)	an informal or formal hearing into the professional conduct of a registered medical practitioner.
26.	Request for conditions, limitations, restrictions or suspension

(b)	she or he has engaged in unprofessional conduct; or
(c)	her or his professional performance is unsatisfactory—

(1) The Board may, at any time, suspend the	registration of a medical practitioner if the do so because there is a serious risk that the health and safety of the public will be endangered because the Board believes that—
(a)	the medical practitioner's ability to practise medicine is affected; or
(b)	the medical practitioner's professional performance is unsatisfactory; or
(c)	the medical practitioner has engaged in unprofessional conduct.

(a)	immediately notify the practitioner or student of that suspension; and
(b)	ensure that the matter is investigated or heard as soon as possible after that suspension.
(5) In place of suspending a medical practitioner	or a medical student under this section, the writing—
(a)	from the medical practitioner to alter the way in which she or he practises medicine; or
(b)	from the medical student to alter the nature or extent of her or his direct patient contact.