Medical Practice Amendment Act 2000 (NSW)
An Act to amend the Medical Practice Act 1992 to make further provision for the registration of medical practitioners and the professional practice of medical practitioners; to amend certain other Acts; and for other purposes.
This Act is the Medical Practice Amendment Act 2000.
This Act commences on a day or days to be appointed by proclamation.
The Medical Practice Act 1992 is amended as set out in Schedule 1.
The Acts specified in Schedule 2 are amended as set out in that Schedule.
(Section 3)
Insert after section 2:
The object of this Act is to protect the health and safety of the public by providing mechanisms designed to ensure that:
(a) medical practitioners are fit to practise medicine, and
(b) medical students are fit to undertake medical studies and clinical placements.
The Board must exercise its functions under this Act in a manner that is consistent with this object.
Insert at the end of section 3:
Notes included in this Act are explanatory notes and do not form part of this Act.
Omit “practise” from section 7 (2). Insert instead “practice”.
Omit section 10 (1). Insert instead:
The Board may impose conditions on a person’s registration, as an alternative to refusing to register the person, if the Board is satisfied that the person suffers from an impairment and the conditions are reasonably required having regard to the impairment.
Omit the section. Insert instead:
An entitlement to registration under this Act (including an entitlement to general registration) does not prevent conditions being imposed on that registration in accordance with this Act.
Omit section 15 (1). Insert instead:
The Board may refuse an application for registration if:
(a) the applicant has been convicted of or made the subject of a criminal finding for an offence (either in or outside the State), and
(b) the Board is of the opinion that the circumstances of the offence are such as to render the applicant unfit in the public interest to practise medicine.
Omit the section. Insert instead:
The Board may refuse an application for registration if the person has been deregistered under a foreign law:
(a) for any reason relating to the conduct of the applicant amounting to professional misconduct (within the meaning of this Act), or
(b) on any basis relating to the applicant’s physical or mental capacity to practise medicine.
For the purposes of this section, a person is
(a) the person’s name is removed from any register or roll established or kept under a foreign law, or
(b) the person’s entitlement to practise medicine is suspended under a foreign law (in the case of a person who is not entitled to registration under the Mutual Recognition laws).
In this section:
Insert at the end of the section:
This section does not apply if the Board removes a person’s name from the Register in accordance with an order of the Chairperson, a Deputy Chairperson, the Tribunal or the Supreme Court under this Act.
Omit section 32 (1). Insert instead:
This section applies when it is proved to the satisfaction of that Board that, after a person was registered under this Act, the person was deregistered under a foreign law:
(a) for any reason relating to conduct of the person amounting to professional misconduct (within the meaning of this Act), or
(b) for any reason relating to the person’s physical or mental capacity to practise medicine.
Insert after section 32 (3):
For the purposes of this section, a person is
(a) the person’s name is removed from any register or roll under a foreign law, or
(b) the person’s entitlement to practise medicine is suspended under a foreign law (in the case of a person who is not entitled to registration under the Mutual Recognition laws).
Insert “under this Division” after “Register” in section 35 (1).
Omit the section. Insert instead:
For the purposes of this Act,
(a) Lack of skill etc Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine.
(b) Contravention of Act or regulations Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations.
(c) Contravention of conditions of registration Any contravention by the practitioner (whether by act or omission) of a condition to which his or her registration is subject.
(d) Criminal convictions and criminal findings Any conduct that results in the practitioner being convicted of or being made the subject of a criminal finding for any of the following offences:
(i) an offence under section 204 of the Mental Health Act 1990,
(ii) an offence under section 20B of the Children (Care and Protection) Act 1987,
(iii) an offence under section 35 of the Guardianship Act 1987,
(iv) an offence under section 128A, 128B, 129, 129AA or 129AAA of the Health Insurance Act 1973 of the Commonwealth,
(v) an offence under section 46 of the Private Hospitals and Day Procedure Centres Act 1988,
(vi) an offence under section 43 of the Nursing Homes Act 1988.
(e) Accepting a benefit for a referral or recommendation to a health service provider Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for:
(i) referring another person to the health service provider, or
(ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter.
(f) Accepting a benefit for a recommendation of a health product Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product.
(g) Offering a benefit for a referral or recommendation Offering or giving any person a benefit as inducement, consideration or reward for the person:
(i) referring another person to the registered medical practitioner, or
(ii) recommending to another person that the person use any health service provided by the practitioner or consult the practitioner in relation to a health matter.
(h) Failure to disclose pecuniary interest in giving referral or recommendation Referring a person to, or recommending that a person use or consult:
(i) another health service provider, or
(ii) a health service, or
(iii) a health product,
when the practitioner has a pecuniary interest in giving that referral or recommendation (as provided by subsection (2)), unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.
(i) Engaging in overservicing Engaging in overservicing, as provided by subsection (3).
(j) Supervision of assistants Permitting an assistant employed by the practitioner (in connection with the practitioner’s professional practice) who is not a registered medical practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill.
(k) Assisting unregistered practitioners By the practitioner’s presence, countenance, advice, assistance or co-operation, knowingly enable a person who is not a registered medical practitioner (whether or not that person is described as an assistant) to:
(i) perform any act of operative surgery (as distinct from manipulative surgery) on a patient in respect of any matter requiring professional discretion or skill, or
(ii) issue or procure the issue of any certificate, notification, report or other like document, or to engage in professional practice, as if the person were a registered medical practitioner.
(l) Failing to render urgent attention Refusing or failing, without reasonable cause, to attend (within a reasonable time after being requested to do so) on a person for the purpose of rendering professional services in the capacity of a registered medical practitioner in any case where the practitioner has reasonable cause to believe that the person is in need of urgent attention by a registered medical practitioner, unless the practitioner has taken all reasonable steps to ensure that another registered medical practitioner attends instead within a reasonable time.
(m) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of medicine.
Sections 37A and 38 provide for some exceptions to the above provisions.
A registered medical practitioner has a
(a) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a public company and the practitioner holds 5% or more of the issued share capital of the company, or
(b) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a private company and the practitioner has any interest in the company, or
(c) if the health service provider, or the supplier of the health product, to whom the referral or recommendation relates is a natural person who is a partner of the practitioner, or
(d) in any circumstances prescribed by the regulations.
A registered medical practitioner engages in
(a) provides a service in circumstances in which provision of the service is unnecessary, not reasonably required or excessive, or
(b) engages in conduct prescribed by the regulations as constituting overservicing.
For avoidance of doubt, a reference in this section to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class.
In this section:
Insert after section 37:
A registered medical practitioner is not guilty of unsatisfactory professional conduct described in section 36 (1) (e), (f), (g) or (h):
(a) in respect of any recommendation made in a public advertisement, or
(b) in any circumstances prescribed by the regulations as not being a contravention of section 36 (1) (e), (f), (g) or (h).
Omit “under the heading ‘Supervision of assistants’ or ‘Assisting unregistered practitioners’ in section 36” from section 38.
Insert instead “in section 36 (1) (j) and (k)”.
Omit the paragraph with the heading “
Insert instead:
A complaint that the practitioner has, either in this State or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
Insert paragraph letters before each paragraph heading in section 39, in appropriate sequential order, as indicated by item [15].
Omit section 50 (1). Insert instead:
The following courses of action are available to the Board in respect of a complaint made to the Board, referred to the Board by the Commission or that the Board has decided to make:
(a) the Board may refer the complaint to the Commission for investigation, a Committee or the Tribunal, as the Board thinks fit,
(b) the Board may:
(i) refer the matter to an Impaired Registrants Panel, or
(ii) refer the professional performance of the practitioner concerned for assessment under Part 5A,
(c) the Board may direct the practitioner concerned to attend counselling,
(d) the Board may refer the complaint for conciliation in accordance with section 13 (2) of the Health Care Complaints Act 1993,
(e) the Board may determine that no further action should be taken in respect of the complaint.
Insert after section 50 (3):
If the Board makes a referral under subsection (1) (b), the matter ceases to be a complaint for the purposes of this Act and the Health Care Complaints Act 1993.
Subsection (4) ceases to apply in respect of any matter that the Board subsequently deals with as a complaint.
Omit section 51 (1). Insert instead:
The following courses of action are available to the Commission in respect of a complaint made to the Commission or that the Commission has decided to make:
(a) the Commission may refer the complaint to the Board or, after consultation with the Board, to a Committee or the Tribunal (but may not refer it to an Impaired Registrants Panel or refer the professional performance of the practitioner concerned for assessment under Part 5A),
(b) the Commission may refer the complaint for conciliation in accordance with section 13 (2) of the Health Care Complaints Act 1993,
(c) the Commission may determine that no further action should be taken in respect of the complaint,
(d) the Commission may take any other action that it can take under the Health Care Complaints Act 1993.
Omit “if of the opinion that” from section 52 (1).
Insert instead “if at any time either forms the opinion that”.
Insert after section 63 (1):
If the person is not registered, a recommendation can be made under this section that the person not be re-registered.
Omit “convicted of an offence (either in or outside New South Wales)” from section 64 (1) (c).
Insert instead “convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales,”.
Omit section 66. Insert instead:
The Board must, if at any time it is satisfied that such action is necessary for the purpose of protecting the life or physical or mental health of any person:
(a) by order suspend a registered medical practitioner from practising medicine for such period (not exceeding 8 weeks) as is specified in the order, or
(b) impose on a registered medical practitioner’s registration such conditions, relating to the practitioner’s practising medicine, as it considers appropriate.
The Board may take such action:
(a) whether or not a complaint has been made or referred to the Board about the practitioner, and
(b) whether or not proceedings in respect of such a complaint are before the Tribunal or a Committee.
The Board is to give written notice of any action taken under this section to the practitioner concerned.
The Board may at any time alter or remove conditions imposed under this Division.
The Board is to give written notice of any action taken under this section to the practitioner concerned.
The Board must, as soon as practicable after taking any action under section 66 and, in any event, within 7 days after taking that action, refer the matter to the Commission for investigation.
The matter is to be dealt with by the Commission as a complaint made to the Commission against the practitioner concerned.
The Commission is to investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation, refer the complaint to the Tribunal or a Committee.
Section 52 (Serious complaints must be referred to Tribunal) applies in respect of any such action by the Commission.
This section does not apply if the Board imposes conditions on the registration of a registered medical practitioner under section 66 because the Board is of the opinion that the practitioner suffers from an impairment.
This section applies if the Board imposes conditions on the registration of a registered medical practitioner under section 66 because the Board is of the opinion that the practitioner suffers from an impairment.
The Board must, as soon as practicable after taking that action and, in any event, within 7 days after taking that action, notify the Commission that it has taken that action.
The Board is to consult with the Commission to see if agreement can be reached as to whether the matter should be:
(a) dealt with as a complaint against the practitioner, or
(b) referred to an Impaired Registrants Panel.
The matter is to be dealt with as a complaint against the practitioner only if, following that consultation:
(a) the Board and the Commission agree that it should be dealt with as a complaint, or
(b) either the Board or the Commission is of the opinion that the matter should be dealt with as a complaint.
In such a case, the Board is to refer the matter to the Commission and the matter is to be dealt with by the Commission as a complaint made to the Commission against the practitioner concerned.
The Commission is to investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation, refer the complaint to the Tribunal or a Committee.
Section 52 (Serious complaints must be referred to Tribunal) applies in respect of any such action by the Commission.
If subsection (4) does not apply, the Board is to refer the matter to an Impaired Registrants Panel.
If the Board suspends a registered medical practitioner from practising medicine under section 66, the Board must notify the Chairperson that it has taken that action as soon as practicable after making the order and, in any event, within 7 days.
Omit “30 days” from section 67.
Insert instead “8 weeks”.
Omit section 69. Insert instead:
This section applies if the Board imposes conditions on the registration of a registered medical practitioner under section 66 and the matter is dealt with as a complaint against the practitioner.
The conditions imposed by the Board have effect until the complaint about the practitioner is disposed of, or the conditions are removed by the Board, whichever happens first.
This section:
(a) does not prevent conditions being imposed under another provision of this Act, and
(b) is subject to anything done by the Tribunal on an appeal under section 95.
This section applies if the Board imposes conditions on the registration of a registered medical practitioner under section 66 and the matter is referred to an Impaired Registrants Panel.
The conditions imposed by the Board have effect as follows:
(a) if the matter is subsequently dealt with by the Board as a complaint (see section 82), until the complaint about the practitioner is disposed of, or
(b) until the conditions are removed by the Board,
whichever happens first.
The Board is not required to alter or remove conditions imposed under this Division merely because a practitioner agrees to conditions being imposed on the practitioner’s registration in accordance with the recommendations of an Impaired Registrants Panel (as referred to in section 81).
A registered medical practitioner who agrees to conditions being imposed on his or her registration in accordance with the recommendations of an Impaired Registrants Panel may, by notice in writing to the Board, request that the conditions imposed under this Division be altered or removed.
On receipt of such a request, the Board is to review the matter, and may:
(a) refuse to alter or remove any of the conditions, or
(b) alter or remove the conditions.
The Board is to give the practitioner concerned notice in writing of its decision in respect of the request.
The Board may specify in the notice a period in which a further request by the practitioner under this section is not permitted. The Board may reject a request that the conditions be altered or removed if it is made during that period.
This section:
(a) does not prevent conditions being imposed under another provision of this Act, and
(b) is subject to anything done by the Tribunal on an appeal under section 95.
Omit section 71 (1). Insert instead:
A court in New South Wales before which a person is convicted of an offence, or is made the subject of a criminal finding for a sex or violence offence, other than an offence prescribed by the regulations, is to cause notice of the conviction or criminal finding, and of any penalty imposed on the person, to be sent to the Registrar if the court has reasonable grounds to believe that the person is or was, at the time the offence was committed, a registered medical practitioner.
Omit the subsection. Insert instead:
If a notice or a transcript of evidence is furnished to the Registrar under this section, a complaint is taken to have been made to the Board about the person to whom the notice or transcript relates.
Omit “
Insert instead “
Omit “a Panel” wherever occurring in sections 72 (2), 78, 79 (1) and 82 (3).
Insert instead “an Impaired Registrants Panel”.
Omit “A Panel” wherever occurring in sections 75 (1), 76 and 80 (1).
Insert instead “An Impaired Registrants Panel”.
Omit “the Panel” from section 77.
Insert instead “an Impaired Registrants Panel”.
Insert at the end of section 78:
This section does not prevent the Panel from conducting an inquiry in the absence of the registered medical practitioner or medical student to whom it relates, as long as the practitioner or student has been given notice of the inquiry under section 77.
Insert after section 78:
The Board may by notice given to a registered medical practitioner who is the subject of a matter referred or proposed to be referred to an Impaired Registrants Panel direct the practitioner to undergo a medical examination by a specified registered medical practitioner at a specified time and place.
A practitioner must not be directed to undergo a medical examination unless it is reasonable to require the examination, given the nature of the matter that is the subject of the referral or proposed referral. The time and place specified for the examination must be reasonable and the examination is to be at the expense of the Board.
If a registered medical practitioner refuses, without reasonable excuse, to comply with a direction to undergo a medical examination, that refusal is, for the purposes of this Act and any inquiry or appeal under this Act, evidence that the practitioner does not have sufficient physical and mental capacity to practise medicine.
Omit section 79 (3)–(5). Insert instead:
If a medical student fails, without reasonable excuse, to comply with a direction to undergo a medical examination, the Board may by order in writing prohibit the student undertaking clinical studies, or undertaking a clinical placement in a public hospital, until the student complies with the direction.
The Board’s order takes effect when a copy of it is served on the educational institution responsible for the clinical studies or clinical placement of the student.
A medical student is not permitted to undertake clinical studies or a clinical placement in a public hospital contrary to the terms of the order.
Omit “consent” from section 80 (2) (b). Insert instead “agree”.
Omit section 81. Insert instead:
The Board may impose conditions on a registered medical practitioner’s registration or suspend the practitioner from practising medicine if:
(a) an Impaired Registrants Panel has recommended that the Board do so, and
(b) the Board is satisfied that the practitioner has voluntarily agreed to the conditions.
A registered medical practitioner who agrees to conditions being imposed on his or her registration, or to being suspended from practising medicine, may, by notice in writing to the Board, request:
(a) that those conditions be altered or removed, or
(b) that the suspension be terminated or shortened.
On receipt of such a request, the Board is to require an Impaired Registrants Panel to review the matter and report in writing to the Board on the results of its review.
If the Panel recommends that the Board refuse to alter or remove any of the conditions, or refuse to terminate or shorten the suspension, the Board may do so.
The Board is to give the practitioner concerned notice in writing of its decision in respect of the request.
The Board may specify in the notice a period in which a further request by the practitioner under this section is not permitted. The Board may reject a request that the conditions be altered or removed, or that the suspension be terminated or shortened, if it is made during that period.
Omit section 82 (1). Insert instead:
If an Impaired Registrants Panel recommends that a registered medical practitioner agree to conditions being imposed on his or her registration or to being suspended from practising medicine and the practitioner fails to agree with the recommendation, the Board is to deal with the matter that was the subject of the referral to the Panel as a complaint against the practitioner.
Omit the section. Insert instead:
An Impaired Registrants Panel that investigates a matter concerning a medical student may recommend to the Board that is it in the public interest that the Board:
(a) prohibit the student from undertaking clinical studies or from undertaking a clinical placement in a public hospital, or
(b) impose specified conditions on the undertaking of clinical studies or a clinical placement by the student.
If the Panel makes such a recommendation and the Board is satisfied that it is in the public interest to do so, the Board may by order in writing:
(a) prohibit the student undertaking clinical studies or a clinical placement in a public hospital, or
(b) impose specified conditions on the undertaking of clinical studies or a clinical placement by the student.
An order under this section takes effect when notice of it is served on the educational institution responsible for the conduct of the clinical studies or the patronage of the clinical placement of the student.
A medical student is not to be permitted to undertake clinical studies or a clinical placement in a public hospital contrary to the terms of an order in force under this section.
An order remains in force for the period (up to 2 years) specified in the order unless it is revoked by the Board. The Board may issue further orders in respect of a student but only on the recommendation of an Impaired Registrants Panel.
Omit section 84 (1). Insert instead:
A person may appeal to the Tribunal against a decision of the Board to issue an order:
(a) prohibiting the person from undertaking clinical studies or a clinical placement in a public hospital, or
(b) imposing conditions on the undertaking of clinical studies or a clinical placement by the person.
Omit the section. Insert instead:
A report by an Impaired Registrants Panel to the Board may not be admitted or used in any civil proceedings before a court.
A person may not be compelled to produce the report or to give evidence in relation to the report or its contents in any such civil proceedings.
A report referred to in this section is a
In this section:
Omit “a Panel” wherever occurring in section 86 (1).
Insert instead “an Impaired Registrants Panel”.
Insert after Part 5:
For the purposes of this Part, a reference to the
For the purposes of this Part, the professional performance of a registered medical practitioner is
The Board may have the professional performance of a registered medical practitioner assessed under this Part if any matter comes to its attention that indicates that the professional performance of the registered medical practitioner, or any aspect of the practitioner’s professional performance, is unsatisfactory. This is not limited to matters that are the subject of a complaint or notification to the Board.
The Board must not have the professional performance of a registered medical practitioner assessed under this Part if a matter giving rise to the proposed assessment:
(a) raises a significant issue of public health or safety, or
(b) raises a prima facie case of professional misconduct by the registered medical practitioner, or unsatisfactory professional conduct by the registered medical practitioner of a significant nature.
Any such matter is to be dealt with as a complaint.
A person may notify the Board of any matter that the person thinks indicates that the professional performance of a registered medical practitioner is unsatisfactory.
The Board is not to have the professional performance of the practitioner concerned assessed on the basis of that notification if it is made anonymously.
A complaint can be made by any person (see section 41). The complaint must be in writing and contain particulars of the allegations on which it is founded (see section 43). A complaint can be treated by the Board as a performance assessment matter (see section 50), but the Board must consult with the Commission before taking any action with respect to the complaint (see section 49).
If the Commission becomes aware of any matter that the Commission considers indicates that the professional performance of a registered medical practitioner is unsatisfactory, the Commission may refer the matter to the Board.
This section does not affect the functions of the Board in relation to a complaint made to the Commission or a matter referred to the Commission for investigation.
The Board has the professional performance of a registered medical practitioner assessed by having one or more assessors conduct an assessment of the practitioner’s professional performance, or of any particular aspect or aspects of the practitioner’s professional performance.
As soon as practicable after deciding to have the professional performance of a registered medical practitioner assessed, the Board is to inform the practitioner in writing of that decision.
The information given to the practitioner is to include the following:
(a) details of the matter or matters that gave rise to the assessment,
(b) information about how the performance assessment process under this Part works.
An assessor who is required by the Board to conduct an assessment of a registered medical practitioner’s professional performance is to:
(a) conduct an assessment of the practitioner’s professional performance, and
(b) report in writing on that assessment to the Board.
The report is to include such recommendations as the assessor considers appropriate.
If more than one assessor is appointed to assess the professional performance of a registered medical practitioner, the report may be made jointly or separately, but in any case is to be made in the manner directed by the Board.
After receiving the report of an assessor, the Board may:
(a) determine that no further action should be taken in respect of the practitioner concerned, or
(b) require a Performance Review Panel to conduct a review of the professional performance of the practitioner, or
(c) make a complaint against the practitioner in accordance with Division 2 of Part 4, or
(d) refer the matter to an Impaired Registrants Panel, or
(e) counsel the practitioner concerned or direct the practitioner concerned to attend counselling.
The Board must make a complaint against the practitioner concerned if the assessment:
(a) raises a significant issue of public health or safety, or
(b) raises a prima facie case of professional misconduct by a registered medical practitioner, or unsatisfactory professional conduct by a registered medical practitioner of a significant nature.
This section does not limit the Board’s powers under section 66.
A Performance Review Panel is to conduct a review (referred to in this Part as a
The chairperson of the Panel is to inform the registered medical practitioner concerned in writing that a performance review will be conducted not less than 14 days before the time and place appointed for the performance review.
A Performance Review Panel is not to take any action in relation to a registered medical practitioner if the Panel becomes aware that the practitioner is the subject of a complaint that is being investigated by the Commission, unless the Commission agrees to the continuation of the performance review.
A Performance Review Panel must terminate a performance review if before or during the performance review the Panel forms an opinion that:
(a) the performance review raises a significant issue of public health or safety, or
(b) the performance review raises a prima facie case of professional misconduct by a registered medical practitioner, or unsatisfactory professional conduct by a registered medical practitioner of a significant nature.
When the Panel terminates a performance review because of subsection (1), it must refer the issue or case back to the Board with a recommendation that a complaint be made against the registered medical practitioner concerned.
The Board is to deal with the matter accordingly.
At the completion of a performance review, a Performance Review Panel may make such recommendations to the Board in respect of the registered medical practitioner concerned as the Panel considers appropriate.
Without limiting subsection (1), if the Panel finds that the professional performance of the practitioner, or a particular aspect of the professional performance of the practitioner, is unsatisfactory, the Panel may do any one or more of the following things:
(a) direct that such conditions, relating to the person’s practising medicine, as it considers appropriate be imposed on the person’s registration,
(b) order that the practitioner complete such educational courses as are specified by the Panel,
(c) order that the practitioner report on his or her medical practice at the times, in the manner and to the persons specified by the Panel,
(d) order that the practitioner seek and take advice, in relation to the management of his or her medical practice, from such persons as are specified by the Panel.
If the Panel finds that a matter:
(a) raises a significant issue of public health or safety, or
(b) raises a prima facie case of professional misconduct by a registered medical practitioner, or unsatisfactory professional conduct by a registered medical practitioner of a significant nature,
the Panel must recommend to the Board that a complaint be made against the practitioner concerned, in which case the Board is to deal with the matter accordingly.
In any other case that the Board thinks it appropriate to do so, the Board may make a complaint in respect of a matter that has been considered by a Performance Review Panel, after consulting with the Commission.
Without limiting section 86N, a Performance Review Panel may direct that a registered medical practitioner’s professional performance be re-assessed at a future date.
The Board is to have one or more assessors conduct that assessment, when it is required, and report to the Board on the assessment.
The Board may take any action in respect of that assessment that is available to the Board under section 86J, including requiring a Performance Review Panel to conduct a further performance review in relation to the practitioner.
A Performance Review Panel must provide a written statement of a decision on a performance review to the registered medical practitioner concerned and to the Board, and must do so within one month after the decision is made.
The statement of the decision must include reasons for the decision.
The Board may provide a copy of the statement of decision to such other persons as the Board thinks fit.
A Performance Review Panel is not required to include confidential information in the statement of a decision. If a statement would be false or misleading if it did not include the confidential information, the Panel is not required to provide the statement.
When confidential information is not included in the statement of a decision provided to a person or the statement is not provided to a person because of subsection (1), the Panel must give a confidential information notice to the person.
A confidential information notice is a notice that indicates that confidential information is not included or that the statement will not be provided (as appropriate) and gives the reasons for this. The notice must be in writing and must be given within one month after the decision is made.
This section does not affect the power of a court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to a court, subject to the provisions of this Act relating to protected reports.
Following a performance review by a Performance Review Panel, the Board is to:
(a) monitor compliance with any orders made by the Panel, and
(b) from time to time evaluate the effectiveness of those orders in improving the professional performance of the registered medical practitioner concerned to a standard that is commensurate with other practitioners of an equivalent level of training or experience.
The Board may take any action under this Act in respect of a registered medical practitioner that it considers appropriate as a result of the exercise of its functions under subsection (1).
Schedule 3A has effect.
Omit “
Omit section 88 (2). Insert instead:
An appeal may be made:
(a) during an inquiry—within 28 days after the date of the Committee’s decision on the point of law which is the subject of the appeal, or
(b) before the commencement of an inquiry but after the date of giving notice of the inquiry.
Omit the section. Insert instead:
An appeal with respect to a point of law may be made to the Supreme Court:
(a) during an inquiry conducted by the Tribunal, or after a complaint is referred to the Tribunal and before the commencement of the inquiry by the Tribunal, or
(b) during an appeal conducted by the Tribunal against the exercise by the Chairperson or Deputy Chairperson of the Tribunal of any power under Division 4 of Part 4, or after an appeal is made to the Tribunal against the exercise of such a power and before the commencement of the appeal before the Tribunal.
An appeal under this section can be made only with the leave of the Chairperson or a Deputy Chairperson of the Tribunal.
If the inquiry or appeal conducted by the Tribunal has not been completed when an appeal with respect to a point of law is made to the Supreme Court, the inquiry or appeal before the Tribunal is not to continue until the appeal to the Supreme Court has been disposed of.
The Tribunal must not make any decision that is inconsistent with the Supreme Court’s determination with respect to the point of law when it recommences the inquiry or appeal.
Insert after section 90 (1):
A person who is a party to an appeal to the Tribunal against the exercise by the Chairperson or a Deputy Chairperson of the Tribunal of any power under Division 4 of Part 4 (including the complainant in respect of the matter), may appeal to the Supreme Court against:
(a) a decision of the Tribunal with respect to a point of law, or
(b) the exercise of any power by the Tribunal under section 87.
Omit “The appeal”. Insert instead “An appeal under this section”.
Insert “a Performance Review Panel,” after “a Committee,” in section 92 (1).
Omit “Registrar” from section 93 (2).
Insert instead “Registrar of the Tribunal”.
Insert after section 94:
A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned.
The review is not to review the decision to make the order, or any findings made in connection with the making of that decision, unless significant fresh evidence is produced that was not previously available for consideration, and the appropriate review body is of the opinion that, in the circumstances of the case, the decision to make the order, or any finding on which the decision was based, should be reconsidered.
Omit the section. Insert instead:
A person may appeal to the Tribunal:
(a) against a suspension or extension of a suspension by the Board under Part 4, or
(b) against conditions imposed by the Board on the person’s registration under Part 4 or Part 5 or any alteration of those conditions by the Board, or
(c) against a refusal by the Board to alter or remove conditions imposed by the Board under Part 4 in accordance with a request made by the person under section 69A, or
(d) against a refusal by the Board to alter or remove conditions imposed on the person’s registration, or to terminate or shorten a suspension, imposed under Part 5 in accordance with a request made by the person under section 81A.
An appeal may not be made in respect of a request by a person that is rejected by the Board because it was made during a period in which the request was not permitted under section 69A or 81A.
An appeal must be made within 28 days (or such longer period as the Registrar may allow in a particular case) after notice of the action taken by the Board, or the Board’s refusal, is given to the person.
Insert after Division 4 of Part 6:
A registered medical practitioner who is the subject of a performance review by a Performance Review Panel may appeal to the Tribunal against a decision of the Panel or any order or direction made by the Panel under Part 5A.
An appeal must be made within 28 days (or such longer period as the Registrar may allow in a particular case) after notice of the decision or the making of the order or direction is given to the registered medical practitioner.
The appeal must be lodged with the Registrar who is to refer it to the Tribunal.
The appeal is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the performance review, may be given.
The Tribunal may, as it thinks appropriate:
(a) dismiss the appeal, or
(b) make any finding or exercise any power or combination of powers that the Performance Review Panel could have made or exercised.
An appeal under this section does not affect any finding or exercise of power with respect to which it has been made until the Tribunal makes an order on the appeal.
A registered medical practitioner who is the subject of a performance review by a Performance Review Panel may appeal with respect to a point of law to the Chairperson of the Tribunal or a Deputy Chairperson nominated by the Chairperson.
An appeal may be made:
(a) during a performance review—within 28 days after the date of the Panel’s decision on the point of law that is the subject of the appeal, or
(b) before the commencement of a performance review by a Panel but after the date the practitioner is informed of the performance review.
If a performance review has not been completed when an appeal is made, the Performance Review Panel must not continue with the performance review until the appeal has been disposed of.
The Performance Review Panel must not make any decision that is inconsistent with the Chairperson’s or Deputy Chairperson’s determination with respect to the point of law.
Insert after section 99:
The Board may establish a code of professional conduct setting out guidelines that should be observed by registered medical practitioners in the conduct of their professional practice. The Board may from time to time amend or replace a code of professional conduct.
The Minister may require the Board to develop guidelines relating to any conduct of registered medical practitioners that the Minister considers should be the subject of a code of professional conduct. For that purpose, the Minister may:
(a) direct the Board to establish a code of professional conduct, or
(b) direct the Board to amend or replace a code of professional conduct,
so that the code includes guidelines relating to that conduct.
The Board is to comply with any such direction of the Minister.
The provisions of a code of professional conduct are a relevant consideration in determining for the purposes of this Act what constitutes proper and ethical conduct by a registered medical practitioner.
The procedure for the establishment of a code of professional conduct is as follows:
(a) the Board is to prepare a proposed code in draft form and is to prepare an impact assessment statement for the proposed code in accordance with such requirements as the Minister may from time to time determine,
(b) the draft code and impact assessment statement are to be publicly exhibited for a period of at least 21 days,
(c) the Board is to seek public comment on the draft code during the period of public exhibition and public comment may be made during the period of public exhibition and for 21 days (or such longer period as the Board may determine) after the end of that period,
(d) the Board is to submit the draft code to the Minister for approval together with a report by the Board giving details of public comment received during the period allowed for public comment and the Board’s response to it,
(e) the Board is not to establish the draft code as a code of professional conduct unless the Minister approves the draft.
The procedure for the amendment or replacement of a code of professional conduct is the same as for the establishment of the code unless the Minister otherwise directs in respect of a particular amendment.
Omit the section.
Omit the section.
Omit the section.
Omit the section.
Insert after Division 2 of Part 7:
A person must not accept from a registered medical practitioner, or the employer of a registered medical practitioner, a benefit as inducement, consideration or reward for the person:
(a) referring another person to the registered medical practitioner, or
(b) recommending to another person that the other person use any health service provided by the registered medical practitioner or consult with the registered medical practitioner in relation to a health matter.
Maximum penalty:
(a) in the case of a corporation, 200 penalty units for a first offence or 400 penalty units for a second or subsequent offence, or
(b) in any other case, 100 penalty units for a first offence or 200 penalty units for a second or subsequent offence.
A person (
(a) referring another person to the offeror, or
(b) recommending to another person that the other person use any health service provided by the offeror or consult with the offeror in relation to a health matter, or
(c) recommending to another person that the other person use any health product supplied by the offeror.
Maximum penalty:
(a) in the case of a corporation, 200 penalty units for a first offence or 400 penalty units for a second or subsequent offence, or
(b) in any other case, 100 penalty units for a first offence or 200 penalty units for a second or subsequent offence.
Sections 112A and 112B do not apply:
(a) to any recommendation that is made in a public advertisement, or
(b) in any circumstances prescribed by the regulations as not being a contravention of section 112A or 112B.
In this Division:
For avoidance of doubt, a reference in this Division to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class.
Insert after Part 8:
A person (
(a) engage in overservicing,
(b) engage in conduct that would constitute unsatisfactory professional conduct or professional misconduct.
Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first offence or 800 penalty units for a second or subsequent offence, or
(b) in any other case, 200 penalty units for a first offence or 400 penalty units for a second or subsequent offence.
For the purposes of this section, any actions of an agent or employee of the employer are taken to be actions of the employer unless the employer establishes:
(a) that the employer had no knowledge of those actions, and
(b) that the employer could not, by the exercise of due diligence, have prevented those actions.
If a person is convicted of or made the subject of a criminal finding for an offence against this section in respect of the actions of an agent or employee of the person, the agent or employee is for the purposes of this Part taken to have been convicted of or made the subject of a criminal finding for the offence also.
When a court convicts or makes a criminal finding against a person for an offence against this section, the Clerk or other proper officer of the court must notify the Director-General in writing of the conviction or criminal finding.
This section does not apply in respect of the employment of a medical practitioner by any of the following:
(a) a public health organisation within the meaning of the Health Services Act 1997,
(b) a private hospital or day procedure centre,
(c) a nursing home within the meaning of the Nursing Homes Act 1988.
In this section:
(a) provide a service in circumstances in which provision of the service is unnecessary, not reasonably required or excessive, or
(b) engage in conduct prescribed by the regulations as constituting overservicing.
When 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, conducts or operates that business is for the purposes of this Part taken to employ the practitioner (in addition to any person who actually employs the practitioner).
When a registered medical practitioner is employed by a corporation, each of the following persons is for the purposes of this Part also considered to be the employer of the practitioner (in addition to the corporation):
(a) a person who is a director, secretary or executive officer (as defined in the Corporations Law) of the corporation or is concerned in the management of the corporation, or
(b) any other employee of the corporation in accordance with whose directions the practitioner is required or expected to act.
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 taken for the purposes of this Part to be a business that provides the medical services that are provided by the 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.
Subsection (1) does not apply in respect of the practice of medicine by a medical practitioner in such circumstances as may be prescribed by the regulations as exempt from that subsection.
For the purposes of this Part, a person is considered to operate a business if the person:
(a) owns, manages, controls, conducts or operates the business, or
(b) has (within the meaning of section 116G) a management role or substantial interest in a corporation that operates the business or a substantial interest in a trust under which the business is operated.
The Director-General may by notice in writing given to a person who has been convicted of or made the subject of a criminal finding for an offence against this Part prohibit the person from operating a business that provides medical services.
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).
A prohibition may not be imposed under this section unless the Director-General is of the opinion that the person is not a fit and proper person to operate a business that provides medical services. The Director-General is entitled to presume, in the absence of evidence to the contrary, that a person who has been convicted of or made the subject of a criminal finding for an offence against this Part on 2 or more occasions in any period of 10 years is not a fit and proper person to operate such a business.
A prohibition under this section may be limited in its operation in either or both of the following ways:
(a) it may be limited to specified premises, but only where 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.
If a prohibition under this section is subject to an entitlement to apply after a specified time for the prohibition to be lifted, such an application may be made to the Director-General after that time. The Director-General 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 subsection.
A person who in contravention of a prohibition under this Part operates a business that provides medical services is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first offence or 800 penalty units for a second or subsequent offence, or
(b) in any other case, 200 penalty units for a first offence or 400 penalty units for a second or subsequent offence.
If a continuing state of affairs is created by an offence against this section the offender is liable to a maximum penalty of:
(a) 100 penalty units in the case of a corporation, or
(b) 50 penalty units in any other case,
in respect of each day on which that offence continues, in addition to the penalty specified in subsection (1).
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 provides those medical services.
(iii) a Performance Review Panel, or
(iv) a Professional Standards Committee, or
(v) the Medical Tribunal, or
(vi) a member of any of the bodies referred to in subparagraphs (i)–(v), or
(vii) an assessor,
for the purpose of the assessment or referral of a complaint or other matter or the holding of any inquiry, performance review, investigation or appeal under the Medical Practice Act 1992, and
(b) for a publication by a body or person referred to in paragraph (a) of a report of a decision or determination in respect of a complaint or other matter or any inquiry, performance review, investigation or appeal, and of the reasons for that decision or determination.
Renumber Part 2A as Part 2B.
Insert after Part 2:
Proceedings for an offence against this Part may be instituted by the Director-General of the Department of Health, a registration authority (within the meaning of the Health Care Complaints Act 1993), the Health Care Complaints Commission or by any other person.
A person must not advertise or otherwise promote a health service in a manner that:
(a) is false, misleading or deceptive, or
(b) creates an unjustified expectation of beneficial treatment.
Maximum penalty:
(a) for a first offence—100 penalty units, or
(b) for a second or subsequent offence—200 penalty units.
In this section:
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