Commonwealth Numbered Acts

HEALTH LEGISLATION (PROFESSIONAL SERVICES REVIEW) AMENDMENT ACT 1994 No. 22 of 1994 - SCHEDULE

SCHEDULE
FURTHER AMENDMENTS OF THE HEALTH INSURANCE ACT 1973
Subsection 19B(1) (definition of "partly disqualified"):
After "under", insert "a final determination under section 106T or".
Before subparagraph 19B(2)(a)(i):
Insert:

"(ia) who was fully disqualified under section 105; or

   (ib) in relation to whom a final determination under section 106T
        containing a direction under paragraph 106U(1)(h) that the
        practitioner be fully disqualified was in effect; or".
Before subparagraph 19B(2)(b)(i):
Insert:

"(ia) who was partly disqualified under section 92 in respect of that service;
or

   (ib) in relation to whom a final determination under section 106T
        containing a direction under paragraph 106U(1)(g) that the
        practitioner be partly disqualified was in effect in respect of that
        service; or".
Subsection 19B(2):
Add at the end:

"; or (c) the service was initiated by a person other than the person who
rendered the service, and the person who initiated the service, or the
practitioner on whose behalf the service was initiated, was a practitioner:

        (i)    who was fully disqualified under section 105; or

        (ii)   in relation to whom a final determination under section 106T
               containing a direction under paragraph 106U(1)(h) that the
               practitioner be fully disqualified was in effect; or

        (iii)  in relation to whom a determination under paragraph 124F(2)(e),
               124FAA(2)(e) or 124FF(2)(d) that the practitioner be fully
               disqualified was in effect; or

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

   (d)  the service was initiated by a person other than the person who
        rendered the service, and the person who initiated the service, or the
        practitioner on whose behalf the service was initiated, was a
        practitioner:

        (i)    who was partly disqualified under section 92 in respect of that
               service; or

        (ii)   in relation to whom a final determination under section 106T
               containing a direction under paragraph 106U(1)(g) that the
               practitioner be partly disqualified was in effect in respect of
               that service; or

        (iii)  in relation to whom a determination under paragraph 124F(2)(d),
               124FAA(2)(d) or 124FF(2)(d) that the practitioner be partly
               disqualified was in effect in respect of that service; or

        (iv)   who was taken to be partly disqualified because a determination
               under paragraph 124FF(2)(e) or (f) in relation to another
               person was in effect in respect of that service.".
Subsection 19D(1):
After "render" (wherever occurring) insert "or initiate".
Paragraph 19D(1)(a):
After "rendered" insert "or initiated".
After subsection 19D(1):
Insert:



"(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.".
Subsection 19D(11) (paragraph (a) of the definition of "disqualified
practitioner"):
After "paragraph 124F(2)(d) or (e)" insert ", 124FAA(2)(d) or (e)".
Subsection 19D(11) (definition of "patients"):
Omit the definition, substitute:

" `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;".
Paragraph 23B(1)(a):
Omit the paragraph, substitute:

"(a) unless paragraph (b) applies, on behalf of the Commonwealth accept the
undertaking; or".
Subsection 23B(2):
Omit the subsection.
Subsection 23B(4):
Omit "under subsection (2)".
Subparagraph 23B(7)(a)(ii):
Omit the subparagraph, substitute:

"(ii) a final determination under section 106T takes effect and that
determination contains a direction under paragraph 106U(1)(e) that the
Minister's acceptance of the undertaking is taken to be wholly revoked; and".
Subparagraph 23B(7)(b)(ii):
Omit the subparagraph, substitute:

"(ii) a final determination under section 106T takes effect and that
determination contains a direction under paragraph 106U(1)(e) that the
Minister's acceptance of the undertaking is revoked in so far as it covers
those premises.".
Subsection 23DA (paragraph (d) of the definition of "relevant person"):
Omit "subsection 95(1)", substitute "subsection 102(1)".
Subsection 23DA (paragraph (e) of the definition of "relevant person"):
Omit the paragraph, substitute:

"(e) to whom a final determination under section 106T relates;".
Subsection 23DA(1):
Insert:

" `Determining Officer' means the Determining Officer appointed under section
106Q;".
Paragraph 23DC(6)(d):
Omit the paragraph, substitute:

"(d) where the Determining Officer has made a final determination under
section 106T in relation to the person-the terms of that final
determination;".
Paragraph 23DF(7)(c):
Omit the paragraph, substitute:

"(c) where the Determining Officer has made a final determination under
section 106T in relation to the person-the terms of that final
determination;".
Section 23DM:
Repeal the section.
Division 4 of Part IIB:
Repeal the Division.
Section 106H:
Renumber the section as section 79.
Part VA (Heading):
Omit the heading, substitute:

"PART VA-PROFESSIONAL SERVICES REVIEW TRIBUNALS".
Section 107 (paragraph (b) of the definition of "determination"):
Omit the paragraph, substitute:

"(b) a final determination made under section 106T;".
Section 107 (definitions of "Committee" and "Tribunal"):
Omit the definitions, substitute:

" `Committee' means a Professional Services Review Committee empanelled under
section 93;
'Tribunal' means a Professional Services Review Tribunal established under
section 108;".
Section 107:
Insert:

" `Determining Officer' means the Determining Officer appointed under section
106Q;".
Section 107A:
Repeal the section.
Subsection 108(1):
Omit the subsection, substitute:



"(1) The Governor-General may establish one or more Professional Services
Review Tribunals.".
Subsections 108(3), (4) and (4A):
Omit the subsections, substitute:



"(3) The President of the Tribunal must be a person who holds or has held a
judicial office.



"(4) Before appointing a medical practitioner to be one of the other members
of the Tribunal, the Minister must consult the AMA. The Minister must make an
arrangement with the AMA under which the AMA consults other specified
organisations and associations before advising the Minister on the
appointment.



"(4A) Before appointing a practitioner other than a medical practitioner to be
one of the other members of the Tribunal, the Minister must consult such
organisations and associations, representing the interests of the profession
to which the practitioner belongs, as the Minister thinks appropriate.".
Subsections 108(6) and (7):
Omit the subsections, substitute:



"(6) The following persons are not eligible for appointment as a member of a
Tribunal:

   (a)  a member of the Professional Services Review Panel;

   (b)  the Director of Professional Services Review;

   (c)  the Determining Officer.".
Section 114:
Insert at the beginning:



"(1) The person to whom a determination relates may request the Minister to
refer the determination to a Tribunal for review.".
Subsection 114(2):
Omit "A request", substitute "The request".
Paragraph 114(2)(c):
Omit "him", substitute "the person making the request".
Section 115:

   (a)  Omit "a Medical Services Review Tribunal or of an Optometrical
        Services Review Tribunal, as the case requires", substitute
        "Tribunal".

   (b)  Add at the end:



"(2) The Tribunal to which the request is forwarded must be a Tribunal whose
members (other than its President):

   (a)  if the determination consists of a refusal by the Minister, under
        paragraph 23B(1)(b), to accept an undertaking-are optometrists; or

   (b)  if the determination consists of a final determination under section
        106T-belong to the same profession (within the meaning of section 81)
        as the practitioner who rendered or initiated the referred services
        (within the meaning of section 81) to which the determination relates.



"(3) If the determination consists of a final determination under section
106T, the Tribunal to which the request is forwarded must not be a Tribunal
one or more of the members of which was a member of a Panel whose report under
section 106L led to the final determination being made.".
Paragraph 116(b):
Omit the paragraph, substitute:

"(b) if the determination consists of a refusal by the Minister, under
paragraph 23B(1)(b), to accept an undertaking-give the Minister and the person
to whom the determination relates a written notice setting out the time and
place so arranged; and

   (c)  if the determination consists of a final determination under section
        106T-give to the Determining Officer and the person to whom the
        determination relates a written notice setting out the time and place
        so arranged.".
Subsection 117(2):
Omit the subsection, substitute:



"(2) If the determination consists of a refusal by the Minister, under
paragraph 23B(1)(b), to accept an undertaking, the Minister may be represented
at the proceedings. If the Minister is represented, his or her representative
must be given the opportunity to address the Tribunal.



"(3) If the determination consists of a final determination under section
106T, the Determining Officer may be represented at the proceedings. If the
Determining Officer is represented, his or her representative must be given
the opportunity to address the Tribunal.".
Subsection 118(1):
Omit the subsection, substitute:



"(1) Proceedings before a Tribunal must be conducted with as little formality
and technicality as a proper consideration of the matter before the Tribunal
permits.''.
Subsection 118(3):
Omit the subsection, substitute:



"(3) The parties to the proceedings are the person who requested the review
and:

   (a)  if the determination consists of a refusal by the Minister, under
        paragraph 23B(1)(b), to accept an undertaking-the Minister; or

   (b)  if the determination consists of a final determination under section
        106T-the Determining Officer.".
Subsection 119(1):
Omit "a tribunal", substitute "a Tribunal".
Subparagraphs 119(1)(b)(i), (ii) and (iii):
Omit the subparagraphs, substitute:

"(i) if the determination consists of a refusal by the Minister, under
paragraph 23B(1)(b), to accept an undertaking-affirm or set aside the
determination; or

        (ii)   if the determination consists of a final determination under
               section 106T-affirm or set aside the determination, or set
               aside the determination and make any other determination that
               the Determining Officer is empowered to make under that
               section.".
Subsection 119(2):
Omit the subsection, substitute:



"(2) If the determination consists of a refusal by the Minister, under
paragraph 23B(1)(b), to accept an undertaking, the decision of a Tribunal on a
review is, for all purposes (except for the purposes of this Part), taken to
be a determination of the Determining Officer.



"(3) If the determination consists of a final determination under section
106T, the decision of a Tribunal on a review is, for all purposes (except for
the purposes of this Part), taken to be a determination of the Determining
Officer.".
Subsection 124B(1) (paragraphs (a), (b) and (c) of the definition of
"practitioner"):
Add at the end "or".
Subsection 124B(1) (paragraph (c) of the definition of "practitioner")
After "a State," insert "the Australian Capital Territory,".
Subsection 124B(1) (paragraph (e) of the definition of "practitioner"):
Omit the paragraph, substitute:

"(e) a chiropractor; or

   (f)  a physiotherapist; or

   (g)  a podiatrist;".
Section 124DA:
Repeal the section.
Subsection 124E(2A):
Omit "section 124DA", substitute "section 106X".
Subsection 124E(5):
Omit "section 124D or 124DA", substitute "section 106X or 124D".
Subsection 124FAA(1):
Omit the subsection.
Paragraphs 124FAA(2)(a), (b) and (c):
Omit the paragraphs, substitute:

"(a) that no action should be taken against the practitioner in addition to
the action taken under the final determinations under section 106T that gave
rise to the Committee being established under subsection 124E(2A);".
Paragraph 124FAA(2)(d):
Omit "except in the case of an employee-practitioner,".
Section 124FAA:
Add at the end:



"(6) A determination that a practitioner is disqualified has the effect of
replacing any period of disqualification, under a final determination under
section 106T, that is still in force at the time the determination under this
section is made.".
Paragraph 124T(2)(b):
Omit "or 124FAA(2)(b) or (c)".
Section 129AD:
Omit "a determination by the Minister under subsection 106(1) or 106FK(1), or
", substitute "a final determination under section 106T, or a determination".