Medical Act Amendment Act 1987 (Qld)

275 Qnecnstanb ANNO TRICESIMO SEXTO ELIZABETHAE SECUNDAE REGINAE No. 24 of Z.7 An Act to amend the Medical Act 1939- 1984 in certain particulars [ASSENTED TO 23RD APRIL, 1987]

276 Medical Act Amendment Act 1987, No. 24 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title and citation . (1) This Act may be cited as the Medical Act Amendment Act 1987. (2) In this Act, the Medical Act 1939-1984 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Medical Act 1939-1987. 2. Commencement . (1) Section 1 and this section shall commence on the date on which this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1), this Act or the provisions thereof specified in the Proclamation shall commence on the day or days appointed by Proclamation for the commencement of this Act or, as the case may be, those provisions. 3. Amendment of s. 2 . Parts of Act. Section 2 of the Principal Act is amended by- (a) omitting the words "Sections 11-13-Proceedings and Business," and substituting the following words:- "Section 11-Proceedings and Business, Sections 12-13C-Powers of Inquiry,"; (b) inserting after the words "Section 37A-Disciplinary Punishment by Board," the following words:- "Section 37B-Misconduct in respect of Inquiry, Section 37C-Requisitions,"; (c) inserting after the words "Section 41 -Disciplinary Punishment" the words "Section 41A-Extended definition of medical practitioner,"; (d) inserting after the words "Section 47-Prohibited Practices" the following words:- '' Section 47A - Unauth&rized advertising prohibited"; (e) inserting after the words " Section 59-Delivery of certificate of approval to Board ;" the following words:- "PART IXA-SUSPENSION PENDING PROSECUTION (Sections 60-66)- Section 60 - Application to Judge, Section 61-Procedure, Section 62 - Grant of application, Section 63 -Order, Section 64 - Restriction on publication,

Medical Act Amendment Act 1987, No. 24 277 Section 65 - Interpretation, Section 66 - Bail applications; PART IXB-MEDICAL RECORDS ( Sections 67-71 A)- Section 67 - Safeguarding of abandoned medical records, Section 68-Direction to hold medical records, Section 69 - Transfer of medical records, Section 70-Destruction of medical records, Section 71 - Rights to medical records preserved, Section 71A-Definitions;"; (f) inserting after the words " Section 76-Recovery of Penalties," the words " Section 76A - Person not to be dealt with twice,". 4. Amendment of s. 3. Repeal of The Medical Acts, 1925 to 1935. Section 3 of the Principal Act is amended by omitting from the proviso thereof provisions ( iv) to ( viii ) ( both inclusive), and provision (xi). 5. Amendment of s. 4 . Meanings of terms. Section 4 of the Principal Act is amended by- (a) inserting after the definition "Anatomy" the following definition:- "Australian Medical Council "-the body incorporated on and from the twenty- second day of February 1985, as the Australian Medical Council Incorporated, pursuant to the Associations Incorporation Ordinance 1953 as amended made under the Seat of Government ( Administration) Act 1910 of the Commonwealth as amended;"; (b) inserting after the definition "Certificate of Approval" the following definition:- " "complaints investigation committee "- A committee constituted by the Board under paragraph ( c) of subsection ( 3) of section 37;"; (c) in the definition " Minister " omitting the words "Secretary for Health and Home Affairs or other". 6. Amendment of s. 11. Section 11 of the Principal Act is amended by omitting from subsection (2) all words from and including the words "one of the representatives" to and including the words "Government representative" and substituting the words "one of the members of the board present at the meeting elected by the members present thereat (who shall be deemed to be the deputy president while he so acts) shall so preside. The fact that a member". 7. New heading. The Principal Act is amended by inserting after section 11 the heading "POWERS OF INQUIRY". 8. Repeal of s. 13 and new ss. 13-13C. The Principal Act is amended by repealing section 13 and substituting the following sections:- "13. Board a Commission of Inquiry . (1) For the purpose of hearing any application or making any investigation or holding

278 Medical Act Amendment Act 1987, No. 24 any inquiry into any matter under this Act, the Board shall be deemed to be a Commission of Inquiry within the meaning of The Commissions of Inquiry Acts, 1950 to 1954 and the provisions of those Acts, other than sections 4, 4A, 10 (3) and 13, shall apply accordingly. (2) For the purpose of applying the provisions of The Commissions of Inquiry Acts, 1950 to 1954, each member of the Board shall be deemed to be a commissioner, and the president shall be deemed to be the chairman, within the meaning of that Act. 13A. Stipendiary magistrate may take evidence on behalf of Board . (1) For any purpose for which the Board is deemed to be a Commission of Inquiry pursuant to section 13, the president may, by writing under his hand, summon a person to attend before a stipendiary magistrate at a time and place named in the summons, and then and there to give evidence in respect of any matter specified therein and may further require him to produce any books, documents, or writings in his custody or control, which he is required by the summons to produce. (2) The president shall not issue a summons under subsection (1) without first obtaining the approval of the Minister. (3) A stipendiary magistrate before whom a person is summoned pursuant to subsection (1) shall take his evidence and for that purpose the stipendiary magistrate shall be deemed to be a Commission of Inquiry within The Commissions of Inquiry Acts, 1950 to 1954 and the provisions of those Acts, other than sections 4, 4A, 10 (3) and 13, shall apply accordingly. (4) For the purpose of applying the provisions of The Commissions of Inquiry Acts, 1950 to 1954- (a) the stipendiary magistrate shall be deemed to be a commissioner and the chairman within the meaning of those Acts; (b) a person summoned pursuant to subsection (1) shall be deemed to have been summoned by the stipendiary magistrate in his capacity as the chairman within the meaning of those Acts. (5) After taking the evidence of a person summoned, the stipendiary magistrate shall forward it to the president. (6) Evidence taken by a stipendiary magistrate pursuant to this section shall have the same force and effect as if it were taken before the Board. 13B. Offences in respect of inquiry . A person who, without reasonable excuse- (a) having been served pursuant to this Act with a summons to attend before the Board or a stipendiary

Medical Act Amendment Act 1987, No. 24 279 magistrate as a witness , fails to attend in obedience to the summons; (b) having been served pursuant to this Act with a summons to attend before the Board or a stipendiary magistrate, fails to produce any book, document or writing in his custody or control, which he is required by the summons to produce; or (c) being called or examined pursuant to this Act as a witness before the Board or a stipendiary magistrate, refuses to be sworn or to make an affirmation or declaration or refuses or otherwise fails to answer any relevant question put to him by the Board or the stipendiary magistrate, commits an offence against this Act. 13C. Allowances to witness . (1) Subject to this section, a witness appearing before the Board, or before a stipendiary magistrate , when deemed, pursuant to this Act to be a Commission of Inquiry within the meaning of The Commissions of Inquiry Acts 1950 to 1954, shall be paid allowances in accordance with section 24 of that Act. (2) The claim to any such allowances of any witness, certified by the president, shall be paid by the Board out of its funds. (3) A witness who subsequently to an investigation carried out by the Board is found guilty by the Tribunal of misconduct in a professional respect shall not be paid by the Board any allowance, or further allowance, outstanding in respect of his appearance as a witness during the investigation.". 9. Amendment of s. 16. Power to make by - laws. Section 16 of the Principal Act is amended by- (a) in subsection (1)- (i) in paragraph (vii) omitting the word "form" and substituting the word "forms"; (ii) in paragraph (ix)- (A) inserting after the word "advertisements" where it twice occurs the expression and word ", signs"; (B) omitting the words "to be undertaken or given by" and substituting the word "of"; (b) renumbering subsection (2) as subsection (3) and inserting after subsection (1) the following subsection:- "(2) In paragraph (ix) of subsection (1) the term "advertising" includes giving, sanctioning, participating in or assisting in the preparation of a public television or radio interview or other broadcast, or public address or by providing , sanctioning, contributing to or assisting in the preparation of a newspaper or other written interview or other report that is calculated to

280 Medical Act Amendment Act 1987, No. 24 provide publicity concerning the practice of a medical practitioner, and the term "advertisement" has a corresponding meaning."; (c) in subsection (3) as renumbered omitting the expression "$1000" and substituting the expression "30 penalty units". 10. Amendment of s. 19. Registration of medical practitioners. Section 19 of the Principal Act is amended by omitting paragraph (a) of subsection (1) and substituting the following paragraph:- "(a) he is the holder of a primary degree in medicine and surgery granted- (i) before the 1st day of January 1986 by any university in Australia; or (ii) on or after the 1st day of January 1986 by any medical school accredited by the Australian Medical Council, after due examination;". 11. Amendment of s. 20 . Registration for limited period . Section 20 of the Principal Act is amended, in subsection (1), by omitting from paragraph (d) the words "of the any" and substituting the words "of any" 12. Amendment of s. 26. Registers may be altered to. insert new or additional qualifications . Section 26 of the Principal Act is amended by inserting after the word "obtains" the words ", in the discipline of medicine,". 13. Amendment of s. 28. Removal from register . Section 28 of the Principal Act is amended by- (a) in subsection (1), omitting from provision (iv) the words "section 19 (1A)" and substituting the words "subsection (2) of section 19"; (b) adding at the end thereof the following subsection:- "(4) The Board is hereby authorized in its absolute discretion to publish a direction given by it to the Registrar pursuant to this section.". 14. Amendment of s. 35. Extension of meaning of term "misconduct in a professional respect". Section 35 of the Principal Act is amended by- (a) in the first paragraph- (i) omitting from provision (i) the words " guilty of addiction" and substituting the words " addicted"; (ii) in provision (vii)- (A) omitting the words "With a view to" and substituting the words " Otherwise than in accordance with the by-laws , with a view to";

Medical Act Amendment Act 1987, No. 24 281 (B) omitting all words from and including the words " procuring patients :" to and including the words " of practice " and substituting the words " procuring patients"; (iii) omitting provision ( viii ) and substituting the following provision:- "(viii ) is convicted of an offence defined in the following provisions:- section 64 of the HealthAct 1937-1986; section 38 of the NursingAct 1976-1986;"; (b) in the third paragraph omitting the words "or, for so long as the same remain in force, by-laws made under any enactment repealed by this Act"; (c) adding at the end thereof the following paragraph:- "In subparagraph (vii) of the first paragraph of this section, the terms "advertises" and "advertisements" have meanings that correspond to the meaning of the term "advertising" in paragraph (ix) of section 16 (1).". 15. Amendment of s. 37. Board to refer matters to Tribunal. Section 37 of the Principal Act is amended by- (a) in subsection (1)- (i) omitting from provision (i) the words ", or by the General Council of Medical Education and Registration of the United Kingdom"; (ii) omitting from provision (ii) the words "from the Register maintained by the General Council of Medical Education and Registration of the United Kingdom or" and substituting the words "or suspended"; (b) adding at the end of subsection (3) the following words:- 16 ; (c) in respect of the complaint, appoint 2 or more of its members to constitute a complaints investigation committee, one of whom shall be appointed by the Board to be chairman, and refer the complaint to it for investigation"; (c) inserting after subsection (3) the following subsection:- "(3A) Where the Board appoints a complaints investigation committee and refers a complaint to it under paragraph (c) of subsection (3), the following provisions shall apply:- (a) the Board may give such directions from time to time to the complaints investigation committee as it thinks fit concerning the exercise by the committee of its powers and the committee shall comply with the directions; (b) the complaints investigation committee shall have the same powers as the Board has to investigate the complaint as provided for in paragraphs (a) and (b) 10

282 Medical Act Amendment Act 1987, No. 24 - of subsection (3), and sections 12, 13 (1), 13B, 13C, 37B, 40 shall apply as if references therein to the Board were references to the complaints investigation committee; (c) for the purpose of applying the provisions of The Commissions of Inquiry Acts, 1950 to 1954, each member of the complaints investigation committee shall be deemed to be a commissioner, and the chairman of the complaints investigation committee shall be deemed to the chairman, within the meaning of those Acts; (d) without limiting the effect of paragraph (a), the complaints investigation committee shall investigate the complaint and shall deliver its findings and recommendations to the Board, which may act on the findings as if they were its own; and (e) the Board may continue to exercise all of its powers in the investigation of the complaint notwithstanding the reference, and it shall not be bound by the findings and recommendations of the complaints investigation committee.". 16. Amendment of s. 37A. When Board may impose disciplinary punishment . Section 37A of the Principal Act is amended by- (a) in subsection (1)- (i) omitting from provision (i) the expression "$1000" and substituting the expression "30 penalty units"; (ii) omitting the word "or" where it occurs between provision (i) and provision (ii); (iii) omitting the word "or" where it appears between provision (ii) and provision (iii); (iv) omitting from the end of provision (iii) the expression "." and substituting the expression ";"; (v) adding after provision (iii) the following words:- "(iv) give such counselling to the medical practitioner as the Board thinks fit."; (b) in subsection (2), inserting after the word "or". in paragraph (b) the words "a time not earlier than fourteen days after the date of that notice at which he may". 17. New sections 37B and 37C. The Principal Act is amended by inserting after section 37A the following words:- "MISCONDUCT IN RESPECT OF INQUIRY 37B. Certain contempts deemed misconduct in a professional respect. A medical practitioner who, without reasonable excuse,

Medical Act Amendment Act 1987, No. 24 283 in relation to an investigation by the Board under section 37 or section 37A- (a) having been served with a summons to attend before the Board or a stipendiary magistrate as a witness, fails to attend in obedience to the summons; (b) having been served with a summons to attend before the Board or a stipendiary magistrate, fails to produce any book, document or writing in his custody or control, which he is required by the summons to produce; or (c) being called or examined as a witness before the Board or a stipendiary magistrate, refuses to be sworn or to make an affirmation or declaration or refuses or otherwise fails to answer any relevant question put to him by the Board or the stipendiary magistrate (as the case may be), shall be guilty of misconduct in a professional respect. REQUISITIONS 37C. Power to obtain written information . (1) The Board, by written requisition signed by the president, for the purposes of an investigation by it pursuant to section 37 or section 37A, may require a medical practitioner in respect of whom the investigation is being undertaken, to furnish to the Board- (a) an answer in writing to any question put by the Board to him; (b) such information in writing as the Board requires. (2) A requisition made under subsection (1) may require that the written answer or information be delivered- (a) by or within a specified time; (b) to a specified place; (c) in person or by certified mail or in a specified manner. (3) A medical practitioner who fails to comply with a requisition made pursuant to this section shall be guilty of misconduct in a professional respect. (4) Subsection (3) shall not apply with respect to a failure to make an answer, or to furnish information, that would tend to incriminate the medical practitioner or that the medical practitioner would not be obliged to make or furnish, because of the provisions of section 14 of The Commissions of Inquiry Acts, 1950 to 1954, had the requisition been made orally by the Board at an inquiry conducted by it when deemed to be a Commission of Inquiry under those Acts. A claim by a medical practitioner pursuant to this subsection that he is not obliged to make the answer or to furnish the information required of him shall not be effectual unless it is substantiated in writing to the Board in accordance with directions

284 Medical Act Amendment Act 1987, No. 24 given by the Board under subsection (4) in relation to the requisition in question. (5) An answer made or information furnished by a medical practitioner under this section shall not be admissible against him in any proceedings except proceedings under this Part and any proceedings in which it may be admissible by reason of the application of The Commissions of Inquiry Acts, 1950 to 1954 to the Board.". 18. Repeal of and new s. 40. The Principal Act is amended by repealing section 40 and substituting the following section:- "40. Evidence in proceedings before Tribunal. (1) Notwithstanding any other Act or rule of law or practice, the Medical Assessment Tribunal may, in proceedings before it, admit as evidence for all purposes a record of proceedings, or part thereof, of a court of law either in Queensland or elsewhere where it appears to it that the record or, as the case may be, part thereof, is a reliable record, and the evidence thereby introduced is relevant to any matter before it. Where the Medical Assessment Tribunal admits before it a record of proceedings or part thereof under this subsection it shall not be necessary for a witness whose evidence is thereby admitted, to be present at the proceedings before the Medical Assessment Tribunal , unless it determines otherwise. In this subsection, the term "record of proceedings" includes a reference to the evidence of a witness, any other evidence, and a judgment, verdict, finding, sentence or other dealing. (2) Subsection (2) of section 14 of The Commissions of Inquiry Acts, 1950 to 1954 shall not apply in relation to the admission before the Tribunal in proceedings concerning a charge against a medical practitioner of a statement or disclosure made by him under this Act to the Board or a stipendiary magistrate when deemed to be a Commission of Inquiry under The Commissions of Inquiry Acts, 1950 to 1954.". 19. Amendment of s. 41. Disciplinary punishment . Section 41 of the Principal Act is amended by omitting from provision (iii) of subsection (1) the expression "$1500" and substituting the expression "40 penalty units". 20. New section 41A. The Principal Act is amended by inserting after section 41 the following words:- "EXTENDED DEFINITION OF MEDICAL PRACTITIONER 41A. Extended definition of medical practitioner. (1) In sections 34 (1), 36, 37, 37A, 37B, 37C, 40 (2) and 41, the term "medical practitioner" includes a person who was a medical practitioner at the time that the matter arose that is the subject of the charge or investigation referred to in those provisions and

Medical Act Amendment Act 1987, No. 24 285 whose name is subsequently erased from the Register pursuant to section 25. (2) Where the Tribunal, pursuant to paragraph (i) of section 41 (1), orders a name to be erased from the Register of Medical Practitioners and the name was previously erased pursuant to section 25, from the time of the order made by the Tribunal it shall be deemed that the name is erased by reason of the order made by the Tribunal. (3) Where the Tribunal, pursuant to paragraph (ii) of section 41 (1) orders that the registration of a person as a medical practitioner be suspended for a specified time and the name of that person has previously been erased pursuant to section 25, from the time of the order made by the Tribunal and during the period of suspension, it shall be deemed that the name is erased by reason of the order made by the Tribunal.". 21. Amendment of s. 47. Prohibited practices . Section 47 of the Principal Act is amended by- (a) in subsection (4C), inserting after the words "to use the same" the words "or he is a person authorized by the by-laws to use the thing in question"; (b) in subsection (5), omitting the words "$50 nor more than $1000" and substituting the words "1 penalty unit nor more than 30 penalty units"; (c) in subsection (6), omitting the words "$50 nor more than $1000" and substituting the words "1 penalty unit nor more than 30 penalty units". 22. New s. 47A. The Principal Act is amended by inserting after section 47 the following words:- "UNAUTHORIZED ADVERTISING PROHIBITED 47A. Unauthorized advertising prohibited . A person shall not- (a) advertise in Queensland; or (b) in Queensland, do any act or take any step to cause to be advertised outside Queensland, the availability in Queensland of a medical service from another person who is a medical practitioner, specialist or medical company otherwise than in accordance with an authorization obtained from the other person and, if a form of authorization is prescribed by regulation, in accordance with an authorization in the form so prescribed. Penalty: 30 penalty units.".

286 Medical Act Amendment Act 1987, No. 24 23. New Part . The Principal Act is amended by inserting after section 59 the following words:- "PART IXA-SUSPENSION PENDING PROSECUTION 60. Application to Judge. Where a medical practitioner- (a) has been charged in Queensland with, and is awaiting the completion of proceedings with respect to, an indictable offence, or has been charged elsewhere with, and is awaiting the completion of proceedings with respect to, an offence which if committed in Queensland , would be an indictable offence; and (b) is the subject of an investigation, or a charge made, by the Board pursuant to section 36 or 37 in relation to matters that include the act or omission in respect of which he has been charged in the proceedings referred to in paragraph (a), the Board may by originating summons pursuant to the Rules of the Supreme Court make an application to a Judge of the Supreme Court for an order that the medical practitioner's registration under this Act be suspended. 61. Procedure . In a proceeding with respect to an application- (a) the Judge may, subject to paragraph (b), make such investigations on oath or otherwise of and concerning the medical practitioner as the Judge thinks fit; (b) the medical practitioner shall not be examined or cross-examined by the Judge or any other person as to the offence referred to in paragraph (a) of section 60 and no inquiry shall be made of him as to that offence; (c) the Board may submit, in addition to other relevant evidence, evidence by affidavit or otherwise- (i) to prove that the medical practitioner- (A) is the subject of the proceedings referred to in paragraphs (a) and (b) of section 60; (B) has been previously convicted in Queensland of an indictable offence or elsewhere of an offence which, if committed in Queensland, would be an indictable offence; (C) has been dealt with in Queensland for misconduct in a professional respect by the Board or Tribunal, or has been dealt with elsewhere for misconduct in a professional respect by a body that, in that respect, has a jurisdiction corresponding to the

Medical Act Amendment Act 1987, No. 24 287 jurisdiction of the Board or Tribunal under this Act; (ii) to show the circumstances of the offence referred to in paragraph (a) of section 60 particularly as they relate to the probability of the erasure of the name of the medical practitioner from the Register of Medical Practitioners, or the suspension of his registration, under this Act, subsequently to the completion of the proceedings referred to in that paragraph; (d) the Judge may take into consideration such relevant matters as are agreed upon by the Medical Board and the medical practitioner; (e) the Judge may receive and take into account evidence of any kind that he considers credible or trustworthy in the circumstances. 62. Grant of application . A Judge shall grant the application of the Board if he is satisfied that there is an unacceptable risk that the medical practitioner, if his name is not suspended under this Part from the Register of Medical Practitioners, would endanger the safety or welfare of members of the public, or if he is satisfied that it is otherwise necessary in the public interest that the medical practitioner's name be suspended from the Register of Medical Practitioners under this Part. 63. Order. (1) Where a Judge grants the application, he shall make an order that the registration of the medical practitioner be suspended. (2) When the registration of a medical practitioner who is also a specialist is suspended under subsection (1), the order shall also be deemed to order the suspension of his registration as a specialist. (3) A suspension ordered under this section shall be deemed to commence forthwith upon the order being made, and subject to subsections (4) and (5), shall continue until the expiration of 28 days after the completion of the proceedings referred to in paragraph (a) of section 60, whereupon it shall be removed. (4) A Judge of the Supreme Court may at any time during the continuance of a suspension provided for by subsection (3), upon the application of the Board or the person suspended, revoke the order of suspension if he is satisfied that it is no longer necessary in the public interest that the order should continue, whereupon the suspension shall be removed. (5) Where at the expiration of 28 days after the completion of the proceedings referred to in paragraph (a) of section 60, the suspension has not been previously removed and the medical practitioner has been charged pursuant to section 37 before the Tribunal, the suspension shall continue until the Tribunal (which is hereby authorized to do so) orders that it be removed or

288 Medical Act Amendment Act 1987, No. 24 makes an order pursuant to paragraph (i) or (ii) of section 41 (1). Without limiting the power of the Tribunal under the next preceeding paragraph to order the removal of the suspension, the Tribunal shall order its removal if it dismisses the charge before it or the charge before it is discontinued or if upon finding the medical practitioner guilty of the charge, it makes an order under paragraph (iii) of section 41 (1). (6) During the period of suspension, the name of the medical practitioner shall be deemed to be erased from the Register of Medical Pracitioners, and also, if he is a specialist, from the Register of Specialists and the medical practitioner during the period of suspension shall be deemed to be not registered under this Act. (7) The Board shall give to the registrar all directions necessary to ensure that the suspensions of registration and removals thereof provided for by this section are carried out forthwith. 64. Restriction on publication . (1) The Judge, during the hearing of an application, may make an order directing that the evidence taken, the information furnished, the representations made by or on behalf of either party, or the reasons given by the Judge for granting or refusing to grant the application or any part thereof or any of them, shall not be published by any means until the proceedings referred to in paragraph (a) of section 60 are completed. (2) A person who fails without lawful excuse, the proof of which lies upon him, to comply with an order made under subsection (1) commits an offence against this Act. 65. Interpretation . For the purposes of this Part- (a) proceedings in respect of a charge for an offence shall be deemed to be completed when the charge is withdrawn, dismissed or otherwise discontinued or when the person charged is acquitted or convicted of the charge (whether or not he takes steps to appeal against the conviction); (b) a person shall be deemed to be convicted of an offence if a court determines that he is guilty of the offence (whether or not he is dealt with for committing the offence by means of a sentence or order that is a conviction for any other purpose) or if he is found not guilty of the offence by reason of unsoundness of mind. 66. Bail applications . The provisions of this Part shall not be taken as a limitation upon the power of a court or member of the police force to impose special conditions for a grant of bail pursuant to section 11 of the Bail Act 1980-1986.

Medical Act Amendment Act 1987, No. 24 289 PART IXB-MEDICAL RECORDS 67. Safeguarding of abandoned medical records. (1) Where the Board receives information that a medical practitioner or any other person has abandoned medical records, the Board may investigate the matter and, where it is satisfied that the medical records have been abandoned and that such an order is necessary to safeguard them, it may order that the records be taken into the possession of the Board. (2) Where medical records in the possession of a person form part of his estate upon his death, the Board may, with the written consent of the person entitled to possession of the medical records for the time being, make an order that the records be taken into the possession of the Board. (3) Upon an order being made under this section, the Board shall be entitled to immediate possession of the medical records and may take them into its possession. (4) A person given notice by the Board of an order made by it pursuant to this section who fails to deliver to the Board in accordance with requirements set forth in the notice, (which requirements the Board is hereby authorised to make) medical records in his possession that are the subject of the order commits an offence against this Act. (5) An inspector appointed under the Medical Act and OtherActs (Administration) Act 1966-1980 may, with such assistants as he considers necessary enter any place and seize and take into the possession of the Board any medical records that the Board has ordered to be taken into its possession under this section. (6) Before an inspector enters a dwelling house for the purpose of exercising the powers conferred upon him by subsection (5), save where he has the permission of the occupier to enter, he shall obtain from a justice a warrant to enter. A justice who is satisfied on the complaint of an inspector that there is reasonable cause to suspect that the medical records are in the dwelling house may issue his warrant directed to an inspector to enter the place specified in the warrant to exercise the powers conferred upon him pursuant to subsection (5). The warrant shall be, for a period of 28 days from the date of its issue, sufficient authority for the inspector and all persons assisting him to enter the place specified in the warrant and for the inspector to exercise therein the powers conferred upon him by subsection (5). In this subsection the term "dwelling house" includes a part of any place which part is used exclusively as a dwelling and does not include the curtilage of a dwelling house. (7) The Board may exercise its powers of investigation for the purpose of taking possession of and safeguarding medical records in respect of which it has made an order under this section.

290 Medical Act Amendment Act 1987, No. 24 (8) The Board shall give such directions as are necessary to safeguard the medical records whilst they are in its possession. (9) A person who contravenes or fails to comply with a direction made by the Board under subsection (8) commits an offence against this Act. 68. Direction to hold medical records . (1) Instead of taking medical records into its actual possession following an order made under section 67 in respect of them, the Board may, by notice in writing given to him, order a person who has actual possession of the medical records to hold them on its behalf subject to such conditions as the Board thinks fit, which shall include conditions necessary to safeguard the records and a condition that the person shall deliver them as and when required to the Board or to a person nominated by the Board. The Board may from time to time, by notice in writing given to the person holding the medical records, add to or vary the conditions of an order made under this subsection. (2) Where the Board makes an order under this section it shall be deemed to be in possession of the medical records concerned pursuant to this Part. (3) A person who fails to comply with an order made under this section commits an offence against this Act. 69. Transfer of medical records. (1) The Board may, in respect of medical records in its possession pursuant to this Part, from time to time, make an order that they be delivered to a medical practitioner or other person named therein subject to such conditions binding upon the person to whom they are delivered as the Board thinks fit, which shall include conditions necessary to safeguard the medical records and a condition that the medical practitioner or other person shall deliver them as and when required to the Board, or to another person nominated by the Board. The Board may from time to time, by notice in writing given to the person holding the medical records, add to or vary the conditions of an order made under this subsection. (2) Medical records delivered to a person pursuant to an order made under this section shall be deemed to be in the possession of the Board pursuant to this Part. (3) A person to whom medical records are delivered pursuant to an order made under this section who fails to comply with a condition of the order commits an offence against this Act. 70. Destruction of medical records. (1) Where the Board is satisfied that it is no longer necessary to preserve medical records that are in its possession pursuant to this Part because the information thereon has been recorded by other means or because of the time that has elapsed since the information thereon was recorded it may authorize the destruction of the medical records.

Medical Act Amendment Act 1987, No. 24 291 (2) No action shall lie against the Board or any person in respect of the destruction of medical records pursuant to an authorization under this section. 71. Rights to medical records preserved . (1) The Board may, on application by a claimant of the medical records in its possession pursuant to this Part, cancel any order that it has made in respect thereof and order them to be delivered to the claimant if it is satisfied that he is the owner of or otherwise entitled to the records, whereupon the medical records shall be delivered to the claimant. (2) Subject to this subsection, an order made by the Board in relation to medical records under this Part shall not affect the rights of the owner thereof or any person otherwise entitled to the medical records, which owner or person may lawfully refuse to deliver the medical records to the Board or an inspector. Upon the Board making an order under section 67 that medical records be taken into its possession , all rights had therein by any person by reason only that the medical records were abandoned property that he had found or by reason only that the medical records were abandoned property in his actual possession shall forthwith terminate. 71A. Definitions. In this Part the term- "medical records" means records recording the medical history, condition and treatment of patients of a medical practitioner made in the course of his practice and it does not include financial records relating to a medical practice; "safeguard" includes ensuring the confidentiality of the medical records concerned.". 24. Amendment of s. 73 . Evidence . Section 73 of the Principal Act is amended by omitting subsection (3) and substituting the following subsection:- "(3) Any requisition, order, notice or other document under this Act required or authorized to be given or served to or upon any person for which no manner of service is specifically provided by this Act, may be served- (a) by delivering it or a copy to that person; (b) by leaving it or a copy at his usual or last known place of residence or business; or (c) by forwarding it or a copy by post addressed to that person at his usual or last known place of residence or business.". 25. Repeal of and new s. 75. The Principal Act is amended by repealing section 75 and substituting the following section:- "75. General offence and penalty. A person who contravenes or fails to comply with a provision of this Act commits an

292 Medical Act Amendment Act 1987, No. 24 offence against this Act and is liable, unless a specific penalty is otherwise provided, to a penalty not exceeding 30 penalty units.". 26. Amendment of s. 76. Recovery of penalties . Section 76 of the Principal Act is amended by omitting the word "four" in subsection (3) and substituting the word "twelve". 27. New s. 76A. The Principal Act is amended by inserting after section 76 the following section:- "76A. Person not to be dealt with twice. Where an act or omission by a person constitutes contempt as defined in section 9 of The Commissions of Inquiry Acts, 1950 to 1954, and is also an offence as defined in section 13B of this Act, or is also misconduct in a professional respect as defined in section 37B of this Act, or each of these, proceedings may be taken against the person under section 10 of The Commissions of Inquiry Acts, 1950 to 1954, or under section 13B, or under sections 37 or 37A, but so that nothing in this Act renders a person liable to be dealt with twice under those provisions in respect of the same act or omission.".