HEALTH LEGISLATION AMENDMENT BILL 2005 Explanatory Statement

The Health Professionals Act 2004 was modified last year to bring within its scope health professionals who had been registered under an Act repealed by the Health Professionals Act 2004 but whose registration was not current at the date of commencement of the Health Professionals Act 2004. The purpose of this was to allow action to be taken by the Health Professions Tribunal in regard to conduct of the professional when he or she was registered under a repealed Act. Where the professional remains unregistered after the commencement of the Health Professionals Act 2004, an order suspending or cancelling their registration would not be possible. Section 64(1)(l) of the Health Professionals Act 2004 recognises this by providing that the Tribunal might make a declaration of unsuitability to practice in respect of the professional. The modifications made last year also recognised that it was necessary to amend the Health Professionals Act 2004 to allow a board to bring a matter to the attention of the Tribunal. Amendments were accordingly made to s 26(3), 37(5)(c), 86(3)(b) and 122(2)(i). Unfortunately, these modifications were all directed to the position of proceedings involving a professional who was registered. The position of a person who was not registered but was registered under a repealed Act when the alleged misconduct occurred had not been dealt with. Consequently amendments have now been drafted to accommodate this situation and are proposed as government amendments to the Health Legislation Amendment Bill. The amendments also provide for the appointment of Deputy Presidents to the Health Professions Tribunal to accommodate the hearing of matters in a timely manner in situations where the President is engaged on other important matters.

Amendment 1 – Amendment 1.5 Page 4, line 1 – substitutes a new subparagraph 37(5)(c) to allow a declaration to be made under section 64(1)(l) about a person who is not registered but was registered under a repealed Act at the time the misconduct occurred..

Amendment 2 – Proposed new amendment 1.5A Page 4, line 5 – amendment 1.5A omits for the purposes of section 37(6) the reference to subsection (2) and substitutes subsection (5) in order to correct a drafting error.

Amendment 3 – Proposed new amendment 1.6A Page 4, line 7 – amendment 1.6A inserts for the purposes of Part 7 a definition of presidential member which means either the President or the Deputy President of the Tribunal.

Amendment 4 – Proposed new amendments 1.7A and 1.7G Page 4, line 13 – amendment 1.7A inserts seven new sections 40A, 41, 41A, 41B, 41C, 41D and 41E into Part 7 dealing with the Health Professions Tribunal including membership, appointment of presidential members, terms of appointment and matters to be included in the instrument of appointment, the role of the President of the Tribunal and presiding members and the grounds on which the appointment of a presidential members can be ended by the Executive. Amendments 1.7B, 1.7C, 1.7D and 1.7E make amendments to sections 42(1), 43(2) and (5) and 44 to accommodate the move from a single President to presidential member which includes Deputy Presidents. Amendment 1.7F substitutes a new section 45 to accommodate Registrars as well as Deputy Registrars to make it consistent with the appointment of Deputy Presidents. Amendment 1.7G inserts a new section 46A to allow Health Profession Boards to bring applications to the Health Professions Tribunal in respect of the three matters referred to in the section.

Amendment 5 – Amendment 1.8 Proposed new section 48(3) and (4) Page 5, line 5 – inserts two new subsections into section 48 to specify who the parties are to an application seeking a declaration that if the person had been registered the Health Professions Tribunal would have found that the person had contravened the required standard of practice or did not satisfy the suitability to practice requirements.

Amendment 6 – Proposed new amendments 1.9A and 1.9L Page 5, line 17 – Amendment 1.9A substitutes registrar for president in section 51(1) to indicate that the registrar rather than the president is the most appropriate person to issue a written notice about the time and place of hearings. Amendments 1.9B, 1.9C, 1.9D, 1.9E, 1.9F, 1.9G, 1.9H 1.9I and 1.9L are consequential on the change from a single President to presidential member which includes the provision of Deputy Presidents. Amendment 1.9J substitutes the words ‘registered health professional’ for the words ‘health professional’ in subparagraph 62(1)(a) to accommodate the new definition of registered health professional which includes a person who was registered under a repealed Act or the Health Professionals Act 2004 at the time the act or omission was reported or complained about. Amendment 1.9K substitutes a new section 63 to accommodate the move from a single president to presidential member but also to make it clear that the presidential member is to decide questions of law arising from proceedings.

Amendment 7 – Proposed new amendments 1.10A Page 5, line 22 – This amendment substitutes the words ‘registered health professional’ for the words ‘health professional’ in subparagraph 86(3)(a) to accommodate the new definition of registered health professional which includes a person who was registered under a repealed Act or the Health Professionals Act 2004 at the time the act or omission was reported or complained about.

Amendment 8 – Amendment 1.11 Page 6, line 1 – substitutes a new subparagraph 86(3)(b) to allow as one of the actions that can be taken in respect of a matter by a health professional board an application to the Health Professions Tribunal for a declaration under section 64(1)(l) to be made in relation to a health professional who is not registered but was registered under a repealed Act at the time the misconduct occurred.

Amendment 9 – Proposed new amendments 1.11A and 1.11B Page 6, line 5 – inserts two new sections 94A and 119A to allow for a health professional board to appoint a lawyer to assist a personnel assessment panel and/or a professionals standards panel in an inquiry.

Amendment 10 – Amendment 1.12 Proposed new paragraph (ia) Page 6, line 12 – substitutes a new subparagraph 122(2)(ia) to allow as one of the actions that can be taken by a health professional standards panel after an inquiry is the referral of a matter to the health profession board with a recommendation that an application be made to the Health Professions Tribunal that a declaration be made under section 64(1)(l) in relation to a health professional who was not registered but was registered under a repealed Act at the time the misconduct occurred.

Amendment 11 – Proposed new amendment 1.12A Page 6, line 14 – inserts a new heading to accommodate the change made above and provides that the paragraphs be renumbered when next republished under the Legislation Act 2001.

Amendment 12 – Amendment 1.13 Proposed new section 122(3) Page 6, line 18 – inserts after paragraph (i) the words ‘or (ia)’ to accommodate the change made above in amendment 8.

Amendment 13 – Proposed new amendment 1.13A Page 6, line 19 – substitutes a new paragraph (f) in section 125 to include Registrars and Deputy Registrars within the definition of informed person.

Amendment 14 – Amendment 1.19 Proposed new section 150A heading Page 7, line 21 – substitutes a new heading for section 150A.

Amendment 15 – Amendment 1.19 Proposed new section 150B Page 8, line 1 – substitutes a new section 150B to make it clear that the Health Professionals Act 2004 applies to health professionals registered under repealed Acts.

Amendment 16 –Proposed new amendment 1.9A Page 9, line 14 – inserts a new definition of presidential member in the dictionary to accommodate the inclusion of Deputy Presidents.

Amendment 17 –Proposed new amendment 1.20A Page 9, line 18 – inserts a new definition of registered health professional in the dictionary to make it clear that the Health Professionals Act 2004 applies to a person who was registered under the Health Professionals Act 2004 or a repealed Act at the time the act or omission was reported or complained about.

Australian Capital Territory Bills Explanatory Statements

HEALTH LEGISLATION AMENDMENT BILL 2005

Australian Capital Territory

Outline

Revenue/Cost Implications

Government Amendments