Health Practitioner Regulation National Law (South Australia) (Amendment of Law) Regulations 2020 (SA)

South Australia

Health Practitioner Regulation National Law (South Australia) (Amendment of Law) Regulations 2020

under the Health Practitioner Regulation National Law (South Australia) Act 2010

Contents

Preamble

Part 1—Preliminary

1            Short title

2            Commencement

3            Amendment provisions

Part 2—Variation of Health Practitioner Regulation National Law (South Australia)

4            Amendment of section 140—Definition of notifiable conduct

5            Amendment of section 141—Mandatory notifications by health practitioners

6            Insertion of sections 141A to 141C

141A       Mandatory notifications by treating practitioners of sexual misconduct

141B        Mandatory notifications by treating practitioners of substantial risk of harm to public

141C        When practitioner does not form reasonable belief in course of providing health service

Preamble

1. Section 4 of the Health Practitioner Regulation National Law (South Australia) Act 2010 provides that if the Parliament of Queensland enacts an amendment to the Health Practitioner National Law set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland (the Queensland Act), the Governor may, by regulation, modify the Health Practitioner Regulation National Law (South Australia) text to give effect to that amendment as a law of South Australia.

2. The Parliament of Queensland has enacted the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2019 to amend the Queensland Act and the amendments set out in Part 2 of these regulations to the Health Practitioner Regulation National Law (South Australia) text give effect to those Queensland amendments.

Part 1—Preliminary

1—Short title

These regulations may be cited as the Health Practitioner Regulation National Law (South Australia) (Amendment of Law) Regulations 2020.

2—Commencement

These regulations come into operation on 1 March 2020.

3—Amendment provisions

Pursuant to section 4(4) of the Health Practitioner Regulation National Law (South Australia) Act 2010, the Health Practitioner Regulation National Law (South Australia) text is amended as specified in Part 2 of these regulations.

Part 2—Variation of Health Practitioner Regulation National Law (South Australia)

4—Amendment of section 140—Definition of notifiable conduct

1. Section 140, definition of notifiable conduct—delete "the practitioner has" first occurring

2. Section 140, definition of notifiable conduct, (a)—delete "practised" and substitute:

   practising

3. Section 140, definition of notifiable conduct, (b)—delete "engaged" and substitute:

   engaging

4. Section 140, definition of notifiable conduct, (c)—delete "placed" and substitute:

   placing

5. Section 140, definition of notifiable conduct, (d)—delete "placed the public at risk of harm because the practitioner has practised" and substitute:

   placing the public at risk of harm by practising

5—Amendment of section 141—Mandatory notifications by health practitioners

Section 141—after subsection (2) insert:

(2A)However, subsection (2) does not apply if the first health practitioner forms the reasonable belief in the course of providing a health service to the second health practitioner or student.

Note—

The heading to section 141 will be amended to "Mandatory notifications by health practitioners other than treating practitioners" when this section comes into operation.

6—Insertion of sections 141A to 141C

After section 141 insert:

141A—Mandatory notifications by treating practitioners of sexual misconduct

(1)This section applies to a registered health practitioner (the treating practitioner) who, in the course of providing a health service to another registered health practitioner (the second health practitioner), forms a reasonable belief that the second health practitioner has engaged, is engaging, or is at risk of engaging, in sexual misconduct in connection with the practice of the practitioner’s profession.

(2)The treating practitioner must, as soon as practicable after forming the reasonable belief, notify the National Agency of the second health practitioner’s conduct that forms the basis of the reasonable belief.

Note—

See section 237 which provides protection from civil, criminal and administrative liability for persons who, in good faith, make a notification under this Law.

(3)A contravention of subsection (2) by the treating practitioner does not constitute an offence but may constitute behaviour for which action may be taken under this Part.

(4)This section applies subject to section 141C.

141B—Mandatory notifications by treating practitioners of substantial risk of harm to public

(1)Subsection (2) applies to a registered health practitioner (the treating practitioner) who, in the course of providing a health service to another registered health practitioner (the second health practitioner), forms a reasonable belief that the second health practitioner is placing the public at substantial risk of harm by practising the profession—

(a)while the practitioner has an impairment; or

(b)while intoxicated by alcohol or drugs; or

(c)in a way that constitutes a significant departure from accepted professional standards.

(2)The treating practitioner must, as soon as practicable after forming the reasonable belief, notify the National Agency of the second health practitioner’s conduct that forms the basis of the reasonable belief.

Note—

See section 237 which provides protection from civil, criminal and administrative liability for persons who, in good faith, make a notification under this Law.

(3)Subsection (4) applies to a registered health practitioner (also the treating practitioner) who, in the course of providing a health service to a student, forms a reasonable belief that the student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm.

(4)The treating practitioner must, as soon as practicable after forming the reasonable belief, notify the National Agency of the student’s impairment.

Note—

See section 237 which provides protection from civil, criminal and administrative liability for persons who, in good faith, make a notification under this Law.

(5)In considering whether the public is being, or may be, placed at substantial risk of harm, the treating practitioner may consider the following matters relating to an impairment of the second health practitioner or student—

(a)the nature, extent and severity of the impairment;

(b)the extent to which the second health practitioner or student is taking, or is willing to take, steps to manage the impairment;

(c)the extent to which the impairment can be managed with appropriate treatment;

(d)any other matter the treating practitioner considers is relevant to the risk of harm the impairment poses to the public.

(6)A contravention of subsection (2) or (4) by the treating practitioner does not constitute an offence but may constitute behaviour for which action may be taken under this Part.

(7)This section applies subject to section 141C.

141C—When practitioner does not form reasonable belief in course of providing health service

(1)This section applies if a registered health practitioner (the first health practitioner) forms a reasonable belief about—

(a)a matter, relating to another registered health practitioner (the second health practitioner), mentioned in section 141A(1) or 141B(1); or

(b)a matter, relating to a student, mentioned in section 141B(3).

(2)For this Division, the first health practitioner is taken not to form the reasonable belief in the course of providing a health service to the second health practitioner or student if—

(a)the first health practitioner—

(i)is employed or otherwise engaged by an insurer that provides professional indemnity insurance that relates to the second health practitioner or student; and

(ii)forms the reasonable belief about the matter as a result of a disclosure made by a person to the first health practitioner in the course of a legal proceeding or the provision of legal advice arising from the insurance policy; or

(b)the first health practitioner forms the reasonable belief in the course of providing advice in relation to the matter for the purposes of a legal proceeding or the preparation of legal advice; or

(c)the first health practitioner is a legal practitioner and forms the reasonable belief in the course of providing legal services to the second health practitioner or student in relation to a legal proceeding or the preparation of legal advice in which the matter is an issue; or

(d)the first health practitioner—

(i)forms the reasonable belief in the course of exercising functions as a member of a quality assurance committee, council or other body approved or authorised under an Act of a participating jurisdiction; and

(ii)is unable to disclose the information that forms the basis of the reasonable belief because a provision of that Act prohibits the disclosure of the information; or

(e)the first health practitioner knows, or reasonably believes, the National Agency has been notified of the matter that forms the basis of the reasonable belief.

Note—

As required by section 10AA(2) of the Subordinate Legislation Act 1978, the Minister has certified that, in the Minister's opinion, it is necessary or appropriate that these regulations come into operation as set out in these regulations.

Made by the Governor

with the advice and consent of the Executive Council

on 27 February 2020

No 20 of 2020