Prisons Amendment Regulations 2020 (WA)

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4576

GOVERNMENT GAZETTE, WA

18 December 2020

JU302
Prisons Act 1981

Prisons Amendment Regulations 2020
SL 2020/251

Made by the Governor in Executive Council.
1. Citation
These regulations are the Prisons Amendment Regulations 2020.
2. Commencement
These regulations come into operation as follows —

(a) regulations 1 and 2 — on the day on which these
regulations are published in the Gazette;

(b) the rest of the regulations — on the day on which the
Prisons Amendment Act 2020 sections 4(1), 12, 19 and
23(1) come into operation.
3. Regulations amended
These regulations amend the Prisons Regulations 1982.
4. Part 3B inserted
After regulation 29 insert:
Part 3B — Inspection and disclosure of medical
records and mandatory taking of blood or other

body samples

Division 1 — Preliminary

29A. Terms used
In this Part —
affected prison officer means a prison officer to whom,
the chief executive officer suspects on reasonable
grounds, there has been a transfer of bodily fluid from
a prisoner;
qualified person means —
(a) a medical officer; or
(b) a medical practitioner; or

(c) a person who is registered under the Health
Practitioner Regulation National Law (Western
Australia) in the nursing profession; or

18 December 2020 GOVERNMENT GAZETTE, WA 4577
(d) the holder of —
(i) a Certificate III in Pathology Collection from a college as defined in the
Vocational Education and Training
Act 1996 section 5(1); or
(ii) an equivalent qualification from an institution based in another State or Territory or overseas;

test authorisation notice has the meaning given in
regulation 29F(2).

29B. COVID-19 prescribed as infectious disease
COVID-19 is prescribed for the purposes of
paragraph (d) of the definition of infectious disease in
section 3(1) of the Act.
Division 2 — Inspection and disclosure of medical
records

29C. Inspection and disclosure of prisoner’s medical
records

(1) This regulation applies if the chief executive officer
inspects a prisoner’s medical records under
section 46A(2)(a) of the Act.
(2) The chief executive officer must not disclose any
information in the prisoner’s medical records to any
person other than the affected prison officer.
(3) For the purposes of subregulation (2), the only
information that may be disclosed to the affected
prison officer is information relating to the presence of
an infectious disease.
(4) The affected prison officer must not disclose the
information disclosed to them under subregulation (2),
except in a manner that does not disclose the identity of
the prisoner or enable the identity of the prisoner to be
ascertained.
Penalty for this subregulation: a fine of $6 000.

29D. Chief executive officer may direct medical officer to
provide report on presence of infectious disease
For the purposes of assisting with an inspection under
section 46A(2)(a) of the Act, the chief executive officer
may direct a medical officer to —

(a) review a prisoner’s medical records to find out
whether the prisoner has an infectious disease;
and

(b)

provide a report to the chief executive officer on the results of the review.

4578

GOVERNMENT GAZETTE, WA

18 December 2020

Division 3 — Mandatory testing of blood or other body

samples

29E. Duty to notify of suspected transfer of bodily fluid
A prison officer who suspects on reasonable grounds
that there has been a transfer of bodily fluid from a
prisoner to a prison officer must notify the chief
executive officer.
29F. Test authorisation notice

(1) This regulation applies if the chief executive officer
requires a prisoner to submit themselves for the
purpose of having a blood or other body sample taken
under section 46A(2)(b) of the Act.

(2)

Before the sample is taken, the chief executive officer must give to the prisoner a notice (a test authorisation
notice), in an approved form, that contains —

(a) the name of the prisoner; and
(b) the type of sample to be taken; and
(c) the infectious disease for which the sample is to be tested; and
(d) a statement including the following —
(i)      the chief executive officer suspects on reasonable grounds that there has been a transfer of bodily fluid from the prisoner to a prison officer;
(ii)      that a prison officer may take the prisoner to a place (including a place within a prison) that the chief executive officer considers has appropriate facilities for the taking of the sample;
(iii)      that a qualified person at the place may take the sample;
(iv)      that such force as is reasonably necessary in the circumstances may be used to take the sample;

(v)
that the prisoner must submit sample taken;
(vi) that the prisoner commits an aggravated prison offence if the prisoner fails to submit themselves for the purpose of having the sample taken.

(3) The content of the test authorisation notice must, at the
time when the notice is given to the prisoner, be
explained to the prisoner in language most likely to be
understood by the prisoner.

18 December 2020 GOVERNMENT GAZETTE, WA 4579

29G. Effect of test authorisation notice
A test authorisation notice given to a prisoner under
regulation 29F(2) —

(a)

confers the power referred to in regulation 29F(2)(d)(ii); and
(b) authorises —
(i) a sample of a type specified in the notice to be taken from the prisoner; and
(ii) the sample to be tested for the presence of the infectious disease named in the notice.

29H. How samples are to be taken

(1) A prison officer executing a test authorisation notice
may ask a qualified person to take from the prisoner a
sample of a type specified in the notice.
(2) The qualified person must not take the sample under
subregulation (1) unless the qualified person is given a
copy of the test authorisation notice.
(3) Subject to section 46A(3) of the Act, in taking the
sample, the qualified person may ask another person to
give any reasonably necessary help.

29I. Samples to be sealed, labelled and delivered to
approved organisation

(1) A prison officer executing a test authorisation notice
must ensure that a sample taken under the notice is
sealed in a container marked or labelled in the presence
of the prisoner and the prison officer with —

(a) the name of the prisoner; and
(b) the type of sample taken; and

(c)

the infectious disease for which the sample is to be tested; and

(d)

the name of the qualified person who took the sample; and
(e) the time and date when the sample was taken.

(2) The chief executive officer may —

(a) approve an organisation to test the sample; and

(b)

authorise the delivery of the sample to the organisation.

4580

GOVERNMENT GAZETTE, WA

18 December 2020

29J. Testing of samples
The organisation referred to in regulation 29I(2)(a)
must —

(a)

test the sample for the presence of the infectious disease named in the test authorisation notice; and

(b)

notify the chief executive officer of the results of the test.

29K. Disclosure of results of test

(1)

The organisation referred to in regulation 29I(2)(a) must ensure that the results of any test done on the sample are not disclosed by the organisation or the employees of the organisation to any person other than
the chief executive officer.
(2) The chief executive officer must not disclose the test
results to any person other than —

(a) the affected prison officer; or

(b)

a medical officer responsible for the medical care and treatment of the prisoner.

(3)

The affected prison officer must not disclose the test results disclosed to them under subregulation (2)(a) except in a manner that does not disclose the identity of
the prisoner or enable the identity of the prisoner to be
ascertained.
Penalty for this subregulation: a fine of $6 000.
(4) The medical officer —

(a) must not disclose the test results disclosed to them under subregulation (2)(b) to any person other than the prisoner; and
(b) must record the test results on the prisoner’s
medical records held by the Department.

(5) This regulation does not prevent the disclosure of a test
result if the disclosure is authorised or required to be
made under a written law apart from this regulation.

29L. Admissibility of results of test
The results of any test done on a sample taken from a
prisoner under this Part is not admissible in evidence in
any criminal proceeding against the prisoner.
V. MOLAN, Clerk of the Executive Council.
———————————

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(b)	the rest of the regulations — on the day on which the
Prisons Amendment Act 2020 sections 4(1), 12, 19 and 23(1) come into operation.

29A.	Terms used
In this Part —
*affected prison officer* means a prison officer to whom, the chief executive officer suspects on reasonable grounds, there has been a transfer of bodily fluid from a prisoner;
*qualified person* means —

29B.	COVID-19 prescribed as infectious disease
COVID-19 is prescribed for the purposes of paragraph (d) of the definition of *infectious disease* in section 3(1) of the Act.

29C.	Inspection and disclosure of prisoner’s medical
records
(1)	This regulation applies if the chief executive officer
inspects a prisoner’s medical records under
section 46A(2)(a) of the Act.
(2)	The chief executive officer must not disclose any
information in the prisoner’s medical records to any
person other than the affected prison officer.
(3)	For the purposes of subregulation (2), the only information that may be disclosed to the affected prison officer is information relating to the presence of an infectious disease.
(4)	The affected prison officer must not disclose the information disclosed to them under subregulation (2), except in a manner that does not disclose the identity of the prisoner or enable the identity of the prisoner to be ascertained.
Penalty for this subregulation: a fine of $6 000.
29D.	Chief executive officer may direct medical officer to provide report on presence of infectious disease
For the purposes of assisting with an inspection under section 46A(2)(a) of the Act, the chief executive officer
may direct a medical officer to —

(a)	review a prisoner’s medical records to find out
whether the prisoner has an infectious disease; and
(b)	provide a report to the chief executive officer on the results of the review.

29E.	Duty to notify of suspected transfer of bodily fluid
A prison officer who suspects on reasonable grounds that there has been a transfer of bodily fluid from a prisoner to a prison officer must notify the chief executive officer.
29F.	Test authorisation notice
(1)	This regulation applies if the chief executive officer requires a prisoner to submit themselves for the purpose of having a blood or other body sample taken under section 46A(2)(b) of the Act.
(2)	Before the sample is taken, the chief executive officer must give to the prisoner a notice (a *test authorisation*
*notice*), in an approved form, that contains —

(a)	the name of the prisoner; and
(b)	the type of sample to be taken; and
(c)	the infectious disease for which the sample is to be tested; and
(d)	a statement including the following —

29G.	Effect of test authorisation notice
A test authorisation notice given to a prisoner under
regulation 29F(2) —

29H.	How samples are to be taken
(1)	A prison officer executing a test authorisation notice may ask a qualified person to take from the prisoner a sample of a type specified in the notice.
(2)	The qualified person must not take the sample under subregulation (1) unless the qualified person is given a copy of the test authorisation notice.
(3)	Subject to section 46A(3) of the Act, in taking the sample, the qualified person may ask another person to give any reasonably necessary help.
29I.	Samples to be sealed, labelled and delivered to approved organisation
(1)	A prison officer executing a test authorisation notice must ensure that a sample taken under the notice is sealed in a container marked or labelled in the presence
of the prisoner and the prison officer with —

(a)	the name of the prisoner; and
(b)	the type of sample taken; and
(c)	the infectious disease for which the sample is to be tested; and
(d)	the name of the qualified person who took the sample; and
(e)	the time and date when the sample was taken.

(a)	approve an organisation to test the sample; and
(b)	authorise the delivery of the sample to the organisation.

29J.	Testing of samples
The organisation referred to in regulation 29I(2)(a)
must —

(a)	test the sample for the presence of the infectious disease named in the test authorisation notice; and
(b)	notify the chief executive officer of the results of the test.

29K.	Disclosure of results of test
(1)	The organisation referred to in regulation 29I(2)(a) must ensure that the results of any test done on the sample are not disclosed by the organisation or the employees of the organisation to any person other than
the chief executive officer.
(2)	The chief executive officer must not disclose the test
results to any person other than —

(a)	the affected prison officer; or
(b)	a medical officer responsible for the medical care and treatment of the prisoner.

(3)	The affected prison officer must not disclose the test results disclosed to them under subregulation (2)(a) except in a manner that does not disclose the identity of
the prisoner or enable the identity of the prisoner to be ascertained.
Penalty for this subregulation: a fine of $6 000.

(a)	must not disclose the test results disclosed to them under subregulation (2)(b) to any person other than the prisoner; and
(b)	must record the test results on the prisoner’s

(5)	This regulation does not prevent the disclosure of a test result if the disclosure is authorised or required to be made under a written law apart from this regulation.
29L.	Admissibility of results of test
The results of any test done on a sample taken from a prisoner under this Part is not admissible in evidence in any criminal proceeding against the prisoner.