HEALTH INSURANCE ACT 1973 - SECT 19D Offences in relation to disqualification of practitioner

HEALTH INSURANCE ACT 1973 - SECT 19D

  (1)   Subject to this section, the Minister may, by instrument in writing served on a disqualified practitioner, direct that, with effect from and including such day as the Minister specifies in the direction, being a day not earlier than the day on which the instrument is served on the practitioner, the practitioner, or a person acting on behalf of the practitioner, shall not render or initiate a specified professional service or a professional service included in a specified class of professional services, being a professional service or professional services for which, under section   19B or 106ZPM, a medicare benefit is not payable, unless, before commencing to render or initiate that professional service:

  (a)   in a case to which paragraph   (b) does not apply--the practitioner or the person acting on his or her behalf causes to be given to the person to whom the professional service is to be rendered or initiated a copy of such notice as is furnished to the practitioner with the instrument, being a notice setting out particulars of the disqualification of the practitioner and explaining such of the effects of that disqualification as the Minister considers appropriate; or

  (b)   in a case where the practitioner or the person acting on his or her behalf has reasonable grounds for believing that the person to whom the service is to be rendered or initiated is, or may be, unable to read and understand the notice referred to in paragraph   (a)--the practitioner or the person acting on his or her behalf causes to be taken such steps as are reasonable in all the circumstances to inform the person, or, if that person is in the care of another person, to inform that other person, of the particulars of the disqualification set out in that notice, and to explain to the person or to that other person, as the case requires, such of the effects of the disqualification as are set out in that notice.

  (1A)   The Minister may include in the instrument a direction that, with effect from and including the day specified under subsection   (1), the practitioner, or a person acting on behalf of the practitioner, must not request another practitioner, or a person acting on behalf of another practitioner to render the professional service without first causing the other practitioner, or person acting on his or her behalf, to be given a copy of a notice, furnished with the additional direction, that:

  (a)   sets out particulars of the disqualification; and

  (b)   explains such of the effects of the disqualification as the Minister considers appropriate.

  (2)   A practitioner who:

  (a)   refuses or fails to comply with a direction contained in an instrument served on him or her under subsection   (1); or

  (b)   causes or permits a person acting on his or her behalf to refuse or fail to comply with such a direction;

commits an offence punishable upon conviction by a fine not exceeding 1 penalty unit.

  (2A)   Subsection   (2) does not apply if the practitioner has a reasonable excuse.

Note:   The defendant bears an evidential burden in relation to the matter in subsection   (2A). See subsection   13.3(3) of the Criminal Code .

  (2B)   An offence under subsection   (2) is an offence of strict liability.

Note:   For strict liability, see section   6.1 of the Criminal Code .

  (3)   Subject to this section, the Minister may, by instrument in writing served on a disqualified practitioner, direct the practitioner to display in such place as is, or such places as are, and in such manner and during such period as is, specified in the instrument, such notice as is, or such notices as are, furnished to the practitioner with that instrument for the purpose of being displayed by him or her.

  (4)   The Minister shall not exercise his or her powers under subsection   (3) except for the purpose of publishing to the patients of a disqualified practitioner a statement setting out particulars of the disqualification of the practitioner and explaining the effects of that disqualification.

  (5)   Where a direction under subsection   (3) is in force, the Minister shall not give a further direction under that subsection that specifies a period that includes the whole or any part of the period specified in that first - mentioned direction unless he or she revokes the first - mentioned direction with effect from the expiration of the day immediately preceding the first - mentioned period.

  (6)   Unless sooner revoked, a direction given under subsection   (1) or (3) in relation to a disqualified practitioner continues in force until the practitioner ceases to be a disqualified practitioner.

  (7)   A practitioner who refuses or fails to comply with a direction contained in an instrument served on him or her under subsection   (3) commits, in respect of each day during which he or she so refuses or fails to comply with the direction (including the day of a conviction under this subsection or any subsequent day), an offence punishable on conviction by a fine not exceeding 1 penalty unit.

  (7A)   Subsection   (7) does not apply if the practitioner has a reasonable excuse.

Note:   The defendant bears an evidential burden in relation to the matter in subsection   (7A). See subsection   13.3(3) of the Criminal Code .

  (7B)   An offence under subsection   (7) is an offence of strict liability.

Note:   For strict liability, see section   6.1 of the Criminal Code .

  (8)   Where, under subsection   (3), an act or thing is required to be done within a particular period or before a particular time, the obligation to do that act or thing continues, notwithstanding that that period has expired or that time has passed, until that act or thing is done.

  (9)   Charges against the same person for any number of offences against subsection   (7) may be joined in the same information or complaint if those offences relate to a failure to do the same act or thing.

  (10)   If a person is convicted of 2 or more offences referred to in subsection   (9), being offences related to a refusal or failure to do the same act or thing, the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a penalty were imposed in respect of each offence separately.

  (11)   In this section:

"disqualified practitioner" means a practitioner:

  (a)   in relation to whom a determination under paragraph   124F(2)(d) or (e) or 124FF(2)(d) is in effect; or

  (b)   who is taken to be disqualified because a determination under paragraph   124F(2)(f) or 124FF(2)(e) or (f) in relation to another person is in effect; or

  (c)   who is disqualified under an agreement that is in effect under section   92; or

  (d)   who is fully disqualified under section   105; or

  (e)   in relation to whom a final determination under section   106TA containing a direction under paragraph   106U(1)(g) or (h) is in effect; or

  (f)   who is fully disqualified for the purposes of this section under section   106ZPM.

"patients" , in relation to a practitioner, means:

  (a)   the persons to whom the practitioner or a person acting on behalf of the practitioner has rendered, or in the Minister's opinion may render, professional services; and

  (b)   the persons in respect of whom the practitioner or a person acting on behalf of the practitioner has initiated, or in the Minister's opinion may initiate, professional services.

"practitioner" has the same meaning as in section   124B.

  (12)   In this section, a reference to the effects of the disqualification of a practitioner is a reference to the effects of the disqualification on the financial relationships (if any) between all or any of the following, namely, the practitioner, any other practitioner, the Chief Executive Medicare and the patients of the practitioner.