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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Health Practitioner Regulation
Amendment Bill 2010
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to amend the Health Practitioner Regulation Act 2009 (the
2009 Act). The 2009 Act adopted as a law of New South Wales most of the Health
Practitioner Regulation National Law (the National Law) set out in the Schedule to
the Health Practitioner Regulation National Law Act 2009 of Queensland, but did
not adopt certain provisions of the National Law (relating to the health, conduct and
performance of registered health practitioners and students, including the complaints
and disciplinary scheme) that the NSW Government agreed to deal with separately.
(The National Law, as adopted by this State, is called the National Law (NSW) in
this explanatory note.)
This Bill:
(a) makes provision for the matters not previously adopted (by further modifying
the application of the National Law in this State) so as to establish a separate
system for dealing with:
(i) complaints about registered health practitioners and students, and
b2009-149-10.d27
Health Practitioner Regulation Amendment Bill 2010
Explanatory note
(ii) concerns about the possible impairment of health practitioners and
students, and
(iii) assessments of the professional performance of health practitioners, and
(b) provides for the regulation of the acquisition of interests in pharmacy
businesses, and
(c) declares that this State is not participating in the health, performance and
conduct processes provided by the National Law, and
(d) declares certain NSW bodies established by the National Law (NSW) to be
adjudication bodies, co-regulatory authorities and responsible tribunals for the
purposes of the application of the National Law (NSW) in NSW, and
(e) further deals with the application of other NSW legislation to the National
Law (NSW), and
(f) amends other legislation as a consequence of the proposed commencement of
the National Law (NSW), and
(g) repeals certain legislation that will be redundant when the National Law
(NSW) commences.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act. The amendments to
the 2009 Act commence on the date of assent to the proposed Act. The consequential
amendments to other legislation, and the consequential repeal of legislation,
commence on the day the 2009 Act commences (which is 1 July 2010 or a later date
appointed by proclamation made before 1 July 2010).
Schedule 1 Amendment of Health Practitioner
Regulation Act 2009 No 86
Modification of National Law (NSW)
Schedule 1 [2] provides that terms used in Part 2 of the 2009 Act and in the National
aw (NSW) have the same meaning in Part 2 as they have in that Law.
Schedule 1 [3] provides that the National Law (NSW) applies as a law of NSW with
the modifications set out in the Schedule of modifications inserted by this Bill.
Schedule 1 [4] provides (in proposed section 6) that New South Wales is not
participating in the health, performance and conduct process provided in the National
aw. Instead the National Law (NSW) establishes specific processes relating to the
health, performance and conduct of registered health practitioners and students in
New South Wales, including a complaints and disciplinary scheme (see
Schedule 1 [6]).
Explanatory note page 2
Health Practitioner Regulation Amendment Bill 2010
Explanatory note
Schedule 1 [6] inserts Schedule 1 into the 2009 Act, which contains the following
modifications to the National Law for the purposes of the application of that Law in
New South Wales.
Registration fees
The Schedule of modifications provides that, if the Ministerial Council gives a policy
direction about registration fees that provides that a registration fee is to separately
identify a registration and accreditation element and a complaints element, then the
amount of the complaints element for registration fees payable by NSW health
practitioners for a particular profession is to be decided by the relevant Council for
that profession (see proposed section 26A). The Ministerial Council gave a relevant
fees policy direction on 13 November 2009.
Establishment of Councils
The Schedule of modifications provides for the establishment of State Councils in
relation to each of the professions of chiropractic, dental, medical, nursing and
midwifery, optometry, osteopathy, pharmacy, physiotherapy, podiatry, and
psychology (see proposed Schedule 5C). Provision is made for the following:
(a) the powers and functions of the Councils (which include the handling of
complaints about registered health practitioners and students),
(b) the membership, proceedings, administration and finances of the Councils
(which are also dealt with in the modification made by inserting proposed
Schedule 5C to the National Law (NSW)),
(c) the preparation of annual reports by the Councils,
(d) the information concerning the imposition of conditions on health
practitioners, or certain other orders, that the Councils must make available to
the public,
(e) the matters that the Councils must take into account when dealing with a
complaint about a registered health practitioner or student.
Administration of anaesthesia or sedation on dental patients
The Schedule of modifications requires that the administration of a general
anaesthesia on patients of a registered dentist must be carried out by a registered
medical practitioner with qualifications in anaesthesia and that registered dentists
who administer simple sedation by the intravenous route must have special
qualifications and must be assisted by qualified persons (see proposed section 121A).
Professional indemnity insurance arrangements
The Schedule of modifications provides that a registered health practitioner must not
practise in New South Wales unless the practitioner is covered by approved
professional indemnity insurance arrangements under the Health Care Liability Act
2001 (in the case of a medical practitioner) or professional indemnity insurance
arrangements that comply with a registration standard approved by the Ministerial
Explanatory note page 3
Health Practitioner Regulation Amendment Bill 2010
Explanatory note
Council are in force in relation to the practitioner (in the case of any other health
practitioner). A contravention of this requirement does not constitute an offence but
is unsatisfactory professional conduct for which disciplinary action may be taken
under the National Law (NSW) (see proposed section 129 (1) and (4)).
Definitions and key concepts
The Schedule of modifications modifies Part 8 of the National Law (NSW)) by
defining key terms and concepts relating to professional competence and conduct
(see proposed Part 8, Division 1). The terms and concepts defined include the
following:
(a) competence to practise a health profession,
(b) confidential information,
(c) unsatisfactory professional conduct,
(d) professional misconduct.
Handling of complaints about registered health practitioners and
students
The Schedule of modifications sets out a procedure for the handling of complaints
about registered health practitioners, persons who were formerly registered health
practitioners and students (see proposed Part 8, Division 3).
Provision is made for the grounds on which complaints may be made about
registered health practitioners and students, who may make a complaint and the
procedure for making complaints (which can be made either to the relevant Council
or to the Health Care Complaints Commission (the Commission)).
A Council to whom a complaint has been made must notify the Commission, and the
National Board for the relevant health profession, about that complaint and must
before any further action is taken consult with the Commission. All serious
complaints must be referred to the relevant Tribunal.
The courses of action available to a Council on a complaint include making its own
inquiries about the complaint and conducting an inquiry or referring the complaint to
the Commission, the relevant Tribunal, a Professional Standards Committee or an
Assessment Committee or the relevant National Board, directing the practitioner or
student to attend counselling or taking no action in respect of the complaint. The
Council also has the power to require a practitioner or student to undergo a health
examination. Sanctions are provided in relation to a practitioner or student who fails
to do so.
The courses of action available to the Commission on a complaint include referring
the complaint to the relevant Council, Tribunal, Professional Standards Committee,
Assessment Committee or National Board, referring the complaint for conciliation or
taking no action.
Provision is made for how Professional Standards Committees (relating to the
medical profession and nursing and midwifery profession only) to whom complaints
Explanatory note page 4
Health Practitioner Regulation Amendment Bill 2010
Explanatory note
may be referred are to handle complaints and the disciplinary powers of the
Committees, which include cautioning or reprimanding the health practitioner,
imposing conditions on the person's practising of the person's profession, ordering
medical or psychiatric treatment, requiring the completion of educational courses,
requiring periodic reporting or the seeking of advice on management, imposing fines
and recommending suspension or cancellation of the health practitioner's
registration on the grounds of lack of physical or mental capacity.
If a complaint about a registered health practitioner is referred by a Council to an
Assessment Committee (relating to professions other than medical, nursing and
midwifery), the complaint is to be dealt with by investigating and endeavouring to
settle the complaint. The Committee has the power to direct the practitioner to
undergo skills testing and may make recommendations to the Council that the
Council deal with the complaint by inquiry, direct the health practitioner to attend
counselling or dismiss the complaint.
A complaint about a registered health practitioner or student may also be dealt with
by inquiry at a meeting of a Council. The Council may, after conducting the inquiry,
caution or reprimand the practitioner or student, make an order withholding or
refunding fees, impose conditions on the practitioner's or student's registration,
order the practitioner or student to seek and undergo medical or psychiatric treatment
or counselling, complete educational courses, report on his or her practice or seek
advice relating to management, impose fines on the practitioner or recommend
suspension or cancellation of the health practitioner's or student's registration on the
grounds of lack of physical or mental capacity. Provision is also made for the giving
of notice of the Council's decision.
The disciplinary powers of the Tribunals in relation to health practitioners or students
include cautioning or reprimanding the health practitioner or student, imposing
conditions on the practitioner's or student's registration, ordering the practitioner or
student to seek and undergo medical or psychiatric treatment or counselling,
complete educational courses, report on his or her practice or seek advice relating to
management, imposing fines or recommending suspension or cancellation of the
health practitioner's or student's registration on the grounds of incompetence or
being guilty of professional misconduct.
The Council also has powers to act where it is necessary to take urgent action for the
protection of the public. These emergency powers including the power to suspend,
or to impose conditions on, a registered health practitioner's or student's registration.
Provision is made for the review or reversal of the exercise of that power and the
referral of the matters that formed the basis for the exercise of the emergency powers
to the Commission, the requiring of the registered health practitioner or student to
undergo a performance assessment or the referral of the matter to an Impaired
Registrants Panel.
A duty is imposed on the management of a mental health facility to inform the
relevant Council if a registered health practitioner or student becomes a mentally
incapacitated person or is involuntarily admitted to a mental health facility. A duty is
also imposed on courts who convict registered health practitioners of certain offences
to refer the matter to the Executive Officer of the relevant Council.
Explanatory note page 5
Health Practitioner Regulation Amendment Bill 2010
Explanatory note
Handling of concerns about the impairment of registered health
practitioners or students
The Schedule of modifications sets out a procedure for dealing with a registered
health practitioner or student who has or may have an impairment (see proposed
Part 8, Division 4).
Provision is made for the giving of notice of impairment matters and the referral of
impairment matters by the Commission to the Council for the relevant health
profession. A Council that believes a registered health practitioner or student may be
impaired has the power to require the practitioner or student to undergo an
examination by a registered health practitioner or may refer the practitioner or
student to an Impaired Registrants Panel. Certain matters relating to impairment must
be dealt with as complaints.
The procedure for the conduct of an inquiry by an Impaired Registrants Panel is
specified, as is the requirement for the giving of notices relating to the inquiry. The
consequences of an inquiry by an Impaired Registrants Panel include the counselling
of the practitioner or student by the Panel, a recommendation that the practitioner or
student agree to the voluntary suspension of, or the imposition of conditions on, his
or her registration or the making of recommendations to the Council as to the actions
it should take. Any conditions imposed on registration as a result of a Panel's action
may subsequently be reviewed and any reports made by a Panel to a Council are
confidential.
Assessments of professional performance
The Schedule of modifications provides matters relating to the professional
performance of registered health practitioners (see proposed Part 8, Division 5).
Provision is made for the degree of professional performance that is considered
unsatisfactory and the power of a Council to have the professional performance of a
health practitioner assessed. Any person may notify a Council of concerns about the
professional performance of a registered health practitioner and the Commission may
also refer concerns to the relevant Council. If the matter is too serious to be referred
for assessment the Council must deal with the matter as a complaint.
The conduct of assessments of professional performance by an assessor is specified,
including how a Council obtains an assessment, the information to be given to the
health practitioner the subject of the assessment, the making of reports and
recommendations by the assessor and the action that may be taken by the Council
after receiving the report of an assessor, which includes requiring a Performance
Review Panel to conduct a review of the professional performance of the
practitioner, the making of a complaint, a referral to an Impaired Registrants Panel,
counselling the practitioner or taking no further action.
After receiving an assessor's report a Council may decide to refer the matter to a
Performance Review Panel for the conduct of a performance review. The action that
may be taken by a Panel includes recommending the imposition of conditions,
ordering further education, ordering a report on the practitioner's practise of the
relevant health profession or ordering the practitioner to seek and take advice.
Explanatory note page 6
Health Practitioner Regulation Amendment Bill 2010
Explanatory note
After a performance review is concluded, the relevant Council may monitor
compliance with any decisions or orders made by the Performance Review Panel and
evaluate the effectiveness of the orders in improving the professional performance of
the registered health practitioner.
Further provision is made in proposed Schedule 5B for matters relating to
performance assessments.
Appeals and reviews
The Schedule of modifications provides for the following appeals and reviews of
decisions:
(a) appeals to a Tribunal against actions of a Committee, Council or Performance
Review Panel (see proposed Division 6 of Part 8),
(b) appeals to the Supreme Court on points of law and against a Tribunal's
decisions and actions (see proposed Division 7 of Part 8),
(c) reviews by a Council, a National Board or Tribunal of prohibition orders or
orders of Committee or a Performance Review Panel (see proposed Division 8
of Part 8).
Enforcement
The Schedule of modifications makes provision for enforcement powers (see
proposed Part 8, Division 9) including the following:
(a) providing for the appointment of authorised persons and specifying their
powers,
(b) providing for the conduct of searches with the authority of a search warrant,
(c) creating offences relating to enforcement.
Establishment of Tribunals
The Schedule of modifications provides for the establishment of Tribunals for each
of the professions of chiropractic, dental, medical, nursing and midwifery,
optometry, osteopathy, pharmacy, physiotherapy, podiatry, and psychology (see
proposed Part 8, Division 10). The matters provided for include the following:
(a) the constitution and administration of the Tribunals,
(b) the membership of the Tribunals,
(c) the functions of the Tribunals, which include the handling of complaints,
(d) the proceedings of the Tribunals (which is also dealt with in proposed
Schedule 5C to the National Law (NSW)),
(e) the conduct of inquiries and appeals by the Tribunals.
Explanatory note page 7
Health Practitioner Regulation Amendment Bill 2010
Explanatory note
Establishment of Professional Standards Committees
The Schedule of modifications provides for the establishment of Professional
Standards Committee for the medical and nursing and midwifery professions (see
proposed Part 8, Division 11). The matters provided for include the following:
(a) the membership and administration of the Committees,
(b) functions of the Committees, which include the handling of complaints against
medical practitioners, nurses and midwives,
(c) the proceedings of the Committees (see also proposed Schedule 5C to the
National Law (NSW)),
(d) the conduct of inquiries before the Committees.
Establishment of Assessment Committees
The Schedule of modifications provides for the establishment of Assessment
Committees for professions other than the medical and nursing and midwifery
professions (see proposed Part 8, Division 12). Matters provided for include the
membership and administration of the Committees.
Establishment of Impaired Registrants Panels
The Schedule of modifications provides for the establishment of Impaired
Registrants Panels by a Council for a health profession and makes provision for
membership and decisions of the Panels (see proposed Part 8, Division 13).
Establishment of Performance Review Panels
The Schedule of modifications provides for the establishment, membership and
procedure of Performance Review Panels and the appointment of assessors (see
proposed Part 8, Division 14).
Regulation of pharmacy businesses
The Schedule of modifications provides for the regulation of pharmacy businesses
(see proposed Schedule 5F). In particular, provision is made for the following:
(a) a requirement for pharmacies to be approved by the Pharmacy Council,
(b) a requirement for the holders of pecuniary interests in approved pharmacies to
be registered,
(c) a requirement for the notification of the Pharmacy Council of any acquisition
of a pecuniary interest in a pharmacy business,
(d) a restriction on the persons who may have pecuniary interests in a pharmacy
business (with exemptions for certain friendly societies and bodies corporate),
(e) a limit on the corporations or firms that may indicate that they are pharmacy
businesses,
(f) a restriction on the number of pharmacy businesses in which pharmacists may
have a pecuniary interest,
Explanatory note page 8
Health Practitioner Regulation Amendment Bill 2010
Explanatory note
(g) the regulation of the provisions of leases or licences relating to pharmacy
businesses and certain arrangements that create a security interest in pharmacy
businesses,
(h) a requirement that a pharmacist be in charge of each pharmacy business,
(i) the procedures for the approval of premises as suitable for carrying on a
pharmacy business and the registration of pecuniary interests in pharmacy
businesses,
(j) a requirement that the Pharmacy Council keep a register containing particulars
of approved premises and registered holders of pecuniary interests,
(k) a requirement that annual returns be submitted by the holders of pecuniary
interests in pharmacy businesses,
(l) enabling the Pharmacy Council to require persons to supply information about
pecuniary interests in pharmacy businesses.
NSW regulations
The Schedule of modifications empowers the Governor to make regulations for or
with respect to any matter required or permitted by a NSW provision (that is, a
provision included in the Schedule of modifications). In particular, the regulations
may make provision for or with respect to the following:
(a) the standards applicable to premises used for pharmacy businesses,
(b) the infection control standards to be followed by health practitioners,
(c) the records to be kept by health practitioners,
(d) the reimbursement by the Councils of the costs incurred by the Department of
Health in establishing the national registration and accreditation scheme for
registered health practitioners and students.
The first regulations made for the purposes of the NSW provisions will not require a
regulatory impact statement under the Subordinate Legislation Act 1989.
Savings and transitional provisions
The Schedule of modifications provides for savings and transitional matters that are
specific to New South Wales (see proposed Schedule 5A).
Matters for which savings and transitional arrangements are made include:
(a) complaints and disciplinary proceedings, including complaints received by a
former board before the commencement of the National Law (NSW) but not
yet dealt with, and
(b) the continuation of appointments of Board members, Tribunal members,
members of Professional Standards Committees and other committees and
assessors appointed under repealed Acts in the equivalent offices under the
National Law (NSW), and
Explanatory note page 9
Health Practitioner Regulation Amendment Bill 2010
Explanatory note
(c) the employment of staff of certain former Boards and the Health Professional
Registration Boards Division of the Government Service, including
preserving the entitlements of those staff, and
(d) the transfer of amounts held in Education and Research Accounts under
repealed Acts to accounts established under the National Law (NSW), and
(e) matters relating to approvals, authorisations and consents given under the
repealed Pharmacy Practice Act 2006.
Miscellaneous modifications
In addition, the Schedule of modifications provides a number of other matters
including the following:
(a) protection from liability (including liability in defamation) for any publication
in good faith of a written statement of a decision made by a Council,
Committee, Panel or Tribunal (see proposed section 176E),
(b) the need for an adjudication body to consult with certain third parties if the
decision proposed to be made by the body will impose an appreciable burden
on the third party in connection with a registered health practitioner's practice
or the clinical training undertaken by a student (see proposed section 176C),
(c) by specifying the decisions of which notice is required to be given by an
adjudication body (see proposed section 176 (2)),
(d) by excluding the disclosure of information by a person exercising functions
under the National Law (NSW) to the National Agency or a National Board
from a provision about confidentiality (see proposed section 216 (2) (ba)),
(e) by providing that persons exercising functions under a NSW provision are not
personally liable for anything done or omitted to be done in good faith in the
exercise or purported exercise of a function under a NSW provision (see
proposed section 236A),
(f) by providing for the evidentiary value of certain certificates (see proposed
section 244A),
(g) by omitting transitional provisions that relate to the dissolution of local
registration authorities (see proposed omission of sections 295, 297 and 298 of
the National Law),
(h) by omitting a requirement for the keeping of certain records relating to
registration (see proposed modification of section 296 of the National Law),
(i) by making enforcement provisions relating to performance assessments and
performance reviews (see proposed Schedule 5B), including the following:
(i) entry to premises,
(ii) the power to conduct assessment exercises,
(iii) the conduct of performance reviews,
Explanatory note page 10
Health Practitioner Regulation Amendment Bill 2010
Explanatory note
(iv) the power to summon witnesses and take evidence and to obtain
documents,
(j) by making provision for matters relating to the membership and procedure of
Councils (see proposed Schedule 5C),
(k) by making provision for matters relating to proceedings before a Professional
Standards Committee or a Tribunal (see proposed Schedule 5D),
(l) by making provision for matters relating to Assessment Committees (see
proposed Schedule 5E).
Other amendments
Schedule 1 [1] changes the name of the 2009 Act to the Health Practitioner
Regulation (Adoption of National Law) Act 2009.
Schedule 1 [4] declares certain NSW entities established under the National Law
(NSW) to be adjudication bodies, co-regulatory authorities and responsible tribunals
for the purposes of the National Law.
Schedule 1 [5] deals with the application of other NSW legislation to the National
aw (NSW) by adding to the list of legislation that does not apply to the National
aw (NSW) at all, and specifies the NSW legislation that only applies to the NSW
provisions (which are the modifications made by Schedule 1 [6] to the proposed
Act).
Schedule 2 Amendments to other legislation
Schedule 2 makes amendments to the other Acts and instruments specified in that
Schedule. The amendments are generally consequential on the adoption of the
National Law and the commencement of the National Law (NSW). The amendments
fall into the following categories.
Amendments about health care complaints
Schedule 2.22 amends the Health Care Complaints Act 1993 as follows:
(a) to extend the power of seizure granted to an authorised officer by enabling a
search warrant to permit the taking of stocks of any substance or drugs,
(b) to extend the power of seizure granted to an authorised officer by enabling a
search warrant to permit the removal of records for the purpose of taking
copies or notes,
(c) to enable the Health Care Complaints Commission to issue an interim
prohibition order with respect to an unregistered health practitioner (which
may include prohibiting the practitioner from providing health services or
imposing conditions on the provision of health services by the practitioner),
(d) to update references to bodies established under legislation that is to be
repealed with references to new bodies established under the National Law
(NSW),
Explanatory note page 11
Health Practitioner Regulation Amendment Bill 2010
Explanatory note
(e) to update existing references to registered health practitioners to references to
newly defined terms for those practitioners in the Interpretation Act 1987,
(f) to update references to health registration Acts to references to the National
Law (NSW).
Miscellaneous amendments updating terms and references
Schedule 2.29 amends the Interpretation Act 1987 to insert definitions of words and
expressions used in any NSW Act or statutory rule to describe registered health
practitioners in the National Law (such as enrolled nurse, registered medical
practitioner and registered pharmacist).
The remaining amendments made by Schedule 2:
(a) update existing references to registered health practitioners in legislation by
reference to the newly defined terms in the Interpretation Act 1987, and
(b) update references to bodies established under legislation that is to be repealed
with references to new bodies established under the National Law (NSW), and
(c) update existing references to health registration Acts with references to the
National Law or National Law (NSW).
Schedule 3 Repeals
Schedule 3 repeals existing legislation that deals with the registration of health
practitioners. The legislation will be redundant when the National Law (NSW)
comes into force.
Explanatory note page 12
First print
New South Wales
Health Practitioner Regulation
Amendment Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Health Practitioner Regulation Act
2009 No 86 3
Schedule 2 Consequential amendments to other legislation 170
Schedule 3 Repeals 214
b2009-149-10.d27
New South Wales
Health Practitioner Regulation
Amendment Bill 2010
No , 2010
A Bill for
An Act to amend the Health Practitioner Regulation Act 2009 to modify the
application of the Health Practitioner Regulation National Law with respect to
matters relating to the health, conduct and performance of registered health
practitioners and students; and for other purposes.
Clause 1 Health Practitioner Regulation Amendment Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Health Practitioner Regulation Amendment Act 2010. 3
2 Commencement 4
(1) This Act, other than Schedules 2 and 3, commences on the date of assent 5
to this Act. 6
(2) Schedules 2 and 3 commence on the day the Health Practitioner 7
Regulation (Adoption of National Law) Act 2009 commences. 8
Page 2
Health Practitioner Regulation Amendment Bill 2010
Amendment of Health Practitioner Regulation Act 2009 No 86 Schedule 1
Schedule 1 Amendment of Health Practitioner 1
Regulation Act 2009 No 86 2
[1] Section 1 Name of Act 3
Omit the section. Insert instead: 4
1 Name of Act 5
This Act is the Health Practitioner Regulation (Adoption of 6
National Law) Act 2009. 7
[2] Section 3 Definitions 8
Omit section 3 (2). Insert instead: 9
(2) Terms used in Part 2 and also in the Health Practitioner 10
Regulation National Law (NSW) have the same meaning in Part 2 11
as they have in that Law. 12
[3] Section 4 Adoption of Health Practitioner Regulation National Law 13
Insert ", with the modifications set out in Schedule 1" after "jurisdiction" in 14
section 4 (a). 15
[4] Section 6 16
Omit the section. Insert instead: 17
6 Health, performance and conduct process not to apply: 18
co-regulatory jurisdiction 19
It is declared that this jurisdiction is not participating in the 20
health, performance and conduct process provided by 21
Divisions 312 of Part 8 of the Health Practitioner Regulation 22
National Law. 23
6A Adjudication body 24
Each of the following entities is declared to be an adjudication 25
body for the purposes of the Health Practitioner Regulation 26
National Law: 27
(a) a Professional Standards Committee, 28
(b) a Council, 29
(c) a Performance Review Panel, 30
(d) an Impaired Registrants Panel. 31
Page 3
Health Practitioner Regulation Amendment Bill 2010
Schedule 1 Amendment of Health Practitioner Regulation Act 2009 No 86
6B Co-regulatory authority 1
Each Council is declared to be a co-regulatory authority for the 2
purposes of the Health Practitioner Regulation National Law. 3
6C Responsible tribunal for Health Practitioner Regulation National 4
Law 5
Each Tribunal is declared to be a responsible tribunal for the 6
purposes of the Health Practitioner Regulation National Law. 7
[5] Section 7 8
Omit the section. Insert instead: 9
7 Application of legislation of this jurisdiction 10
(1) Subject to subsection (2), the following Acts of this jurisdiction 11
do not apply to the Health Practitioner Regulation National Law 12
(NSW) or to the instruments made under that Law: 13
(a) the Annual Reports (Statutory Bodies) Act 1984, 14
(b) the Freedom of Information Act 1989, 15
(c) the Government Information (Information Commissioner) 16
Act 2009, 17
(d) the Government Information (Public Access) Act 2009, 18
(e) the Health Records and Information Privacy Act 2002, 19
(f) the Interpretation Act 1987, 20
(g) the Ombudsman Act 1974, 21
(h) the Privacy and Personal Information Protection 22
Act 1998, 23
(i) the Public Finance and Audit Act 1983, 24
(j) the Public Sector Employment and Management Act 2002, 25
(k) the Subordinate Legislation Act 1989. 26
(2) The following Acts of this jurisdiction apply to the NSW 27
provisions of the Health Practitioner Regulation National Law 28
(NSW) and to the instruments made under the NSW provisions: 29
(a) the Annual Reports (Statutory Bodies) Act 1984, 30
(b) the Freedom of Information Act 1989, 31
(c) the Government Information (Information Commissioner) 32
Act 2009, 33
(d) the Government Information (Public Access) Act 2009, 34
(e) the Health Records and Information Privacy Act 2002, 35
Page 4
Health Practitioner Regulation Amendment Bill 2010
Amendment of Health Practitioner Regulation Act 2009 No 86 Schedule 1
(f) the Ombudsman Act 1974, 1
(g) the Privacy and Personal Information Protection Act 2
1998, 3
(h) the Public Finance and Audit Act 1983, 4
(i) the Subordinate Legislation Act 1989. 5
[6] Schedule 1 6
Insert after section 9-- 7
Schedule 1 Modification of Health Practitioner 8
Regulation National Law 9
[1] Section 5 Definitions 10
Omit the definitions of health panel, panel, performance and 11
professional standards panel, performance assessment, professional 12
misconduct, relevant action, unprofessional conduct, unsatisfactory 13
professional performance and voluntary notification. 14
[2] Section 5 15
Insert the following in alphabetical order: 16
health panel 17
Note. This definition is not applicable to New South Wales. 18
panel 19
Note. This definition is not applicable to New South Wales. 20
performance and professional standards panel 21
Note. This definition is not applicable to New South Wales. 22
performance assessment 23
Note. This definition is not applicable to New South Wales. 24
professional misconduct 25
Note. This definition is not applicable to New South Wales. 26
relevant action 27
Note. This definition is not applicable to New South Wales. 28
unprofessional conduct 29
Note. This definition is not applicable to New South Wales. 30
unsatisfactory professional performance 31
Note. This definition is not applicable to New South Wales. 32
voluntary notification means a complaint or other 33
notification made under Part 8, other than a mandatory 34
notification. 35
Page 5
Health Practitioner Regulation Amendment Bill 2010
Schedule 1 Amendment of Health Practitioner Regulation Act 2009 No 86
[3] Section 5, definition of "adjudication body" 1
Insert after the definition: 2
Note. See section 6A of the Health Practitioner Regulation (Adoption of 3
National Law) Act 2009 which declares that Professional Standards 4
Committees, Councils, Performance Review Panels and Impaired Registrants 5
Panels are all adjudication bodies for the purposes of the Health Practitioner 6
Regulation National Law. 7
[4] Section 5, definition of "co-regulatory authority" 8
Insert after the definition: 9
Note. See section 6B of the Health Practitioner Regulation (Adoption of 10
National Law) Act 2009 which declares that each Council is a co-regulatory 11
authority for the purposes of the Health Practitioner Regulation National Law. 12
[5] Section 5, definition of "co-regulatory jurisdiction" 13
Insert after the definition: 14
Note. See section 6 of the Health Practitioner Regulation (Adoption of National 15
Law) Act 2009 which declares that this jurisdiction is not participating in the 16
health, performance and conduct process provided by Divisions 3 to 12 of Part 8 17
of the Health Practitioner Regulation National Law. As a consequence, New 18
South Wales is a co-regulatory jurisdiction. 19
[6] Section 5, definition of "responsible tribunal" 20
Insert after the definition: 21
Note. See section 6C of the Health Practitioner Regulation (Adoption of 22
National Law) Act 2009 which declares that each Tribunal is a responsible 23
Tribunal for the purposes of the Health Practitioner Regulation National Law. 24
[7] Section 26A 25
Insert after section 26: 26
26A Setting of fees in health profession agreements [NSW] 27
(1) For the purposes of section 26, if the Ministerial Council 28
gives a fees policy direction that provides a registration fee 29
is to separately identify a registration and accreditation 30
element and a complaints element, the amount of the 31
complaints element for registration fees payable by NSW 32
health practitioners for a particular health profession is to 33
be decided by the Council established for that profession, 34
with the approval of the Minister. 35
Note. The Ministerial Council gave a fees policy direction on 36
13 November 2009 that provided that the registration fees 37
payable under this Law were to separately identify the 38
registration and accreditation elements and the complaints 39
element of the fees. 40
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(2) In this section-- 1
complaints element means a component for the costs of 2
operating the health, performance and conduct process 3
under Part 8. 4
fees policy direction means a direction given to the 5
National Agency and the National Boards about the 6
policies to be applied in entering into a health profession 7
agreement about registration fees. 8
NSW health practitioner means-- 9
(a) a registered health practitioner whose principal 10
place of practice is in this jurisdiction; or 11
(b) an applicant for registration whose application for 12
registration includes a declaration under 13
section 77(3) that-- 14
(i) the applicant will predominantly practise the 15
profession in this jurisdiction; or 16
(ii) the applicant's principal place of residence is 17
in this jurisdiction. 18
registration fee means a relevant fee payable by a health 19
practitioner for registration or renewal of registration 20
under this Law. 21
Note. This section is an additional New South Wales provision. 22
[8] Part 5A 23
Insert after Part 5-- 24
Part 5A New South Wales Councils [NSW] 25
Note. This Part is an additional New South Wales provision. 26
Division 1 Preliminary [NSW] 27
41A Definitions [NSW] 28
In this Part-- 29
Council means a Council established under section 41B. 30
Executive Officer means the Executive Officer of a 31
Council. 32
NSW regulation means a regulation made under 33
section 247A. 34
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Division 2 Councils [NSW] 1
41B Establishment of Councils [NSW] 2
(1) Each of the following Councils is established for the health 3
profession listed beside that Council in the following 4
Table-- 5
Table--State Councils 6
Name of Council Health profession
Chiropractic Council of New chiropractic
South Wales
Dental Council of New South dental (including the
Wales profession of a dentist, dental
hygienist, dental prosthetist,
dental therapist or oral health
therapist)
Medical Council of New medical
South Wales
Nursing and Midwifery nursing and midwifery
Council of New South Wales
Optometry Council of New optometry
South Wales
Osteopathy Council of New osteopathy
South Wales
Pharmacy Council of New pharmacy
South Wales
Physiotherapy Council of physiotherapy
New South Wales
Podiatry Council of New podiatry
South Wales
Psychology Council of New psychology
South Wales
(2) The Governor may, by order published on the NSW 7
legislation website, amend the Table to subsection (1) by 8
inserting, altering or omitting the name of a Council or 9
health profession. 10
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(3) A Council-- 1
(a) is a body corporate with perpetual succession; and 2
(b) has a common seal; and 3
(c) may sue and be sued. 4
41C General powers of Councils [NSW] 5
(1) A Council has all the powers of an individual and, in 6
particular, may do anything necessary or convenient to be 7
done in the exercise of its functions. 8
(2) However, a Council cannot employ staff. 9
41D Functions of Councils [NSW] 10
A Council has and may exercise the functions conferred or 11
imposed on it by or under this Law or another Act. 12
41E Membership of Councils [NSW] 13
(1) Each Council consists of the following members-- 14
(a) for a relevant Council-- 15
(i) the members prescribed by the NSW 16
regulations; or 17
(ii) if the members are not prescribed by the 18
NSW regulations, the members specified in 19
Part 1 of Schedule 5C for the relevant 20
Council; 21
(b) for a Council that is not a relevant Council, the 22
members prescribed by the NSW regulations. 23
(2) In this section-- 24
relevant Council means each of the following Councils-- 25
(a) the Dental Council of New South Wales; 26
(b) the Medical Council of New South Wales; 27
(c) the Nursing and Midwifery Council of New South 28
Wales; 29
(d) the Pharmacy Council of New South Wales; 30
(e) the Physiotherapy Council of New South Wales; 31
(f) the Psychology Council of New South Wales. 32
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41F Committees [NSW] 1
(1) A Council may establish committees to assist it in 2
connection with the exercise of any of its functions. 3
(2) The members of a committee need not be members of the 4
Council. 5
(3) The procedure for the calling of meetings of a committee 6
and for the conduct of business at the meetings is-- 7
(a) as decided by the Council; or 8
(b) subject to a decision of the Council, as decided by 9
the committee. 10
41G Councils' complaint functions may be exercised by 2 or 11
more members [NSW] 12
(1) A Council may appoint any 2 or more members of the 13
Council to exercise the functions of the Council under 14
Division 3 of Part 8. 15
(2) The referral of a complaint by the members appointed is 16
taken to be a referral by the Council. 17
41H Annual report [NSW] 18
(1) An annual report prepared by a Council under the Annual 19
Reports (Statutory Bodies) Act 1984 must include 20
particulars of the following for the year to which it 21
relates-- 22
(a) all complaints received by the Council during the 23
year or received by the Council before that year but 24
which, in the Council's opinion had not, at the start 25
of the year, been finally disposed of; 26
(b) the action taken during the year in relation to 27
complaints received by the Council and the results 28
of that action up to the end of that year; 29
(c) all matters referred to a Performance Review Panel 30
for performance review during the year, or referred 31
to a Panel before the year but which, in the 32
Council's opinion had not, at the start of the year, 33
been finally disposed of; 34
(d) the results of all performance reviews conducted by 35
Performance Review Panels that were finally 36
disposed of during the year. 37
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(2) Two or more Councils may decide to prepare a joint annual 1
report under the Annual Reports (Statutory Bodies) 2
Act 1984. 3
(3) This section does not require the identity of a complainant, 4
a person who notifies a professional performance matter to 5
a Council, a person about whom a complaint is made or 6
who is the subject of a performance review or any other 7
person to be disclosed in an annual report. 8
41I Information to be made available to public [NSW] 9
(1) A Council for a health profession must ensure the 10
following information, in relation to a registered health 11
practitioner registered in the profession, is made available 12
to the public on request-- 13
(a) any conditions imposed on the registration of the 14
practitioner; 15
(b) any other order made in respect of the practitioner 16
under this Law. 17
(2) Without limiting subsection (1), the Council is taken to 18
have complied with that subsection if the information is 19
available on the Register kept by the National Board for 20
the health profession. 21
(3) This section does not require a Council to disclose 22
anything the Council considers relates solely or principally 23
to the physical or mental capacity of a person to practise 24
the person's profession. 25
41J Delegation by Council and Executive Officer [NSW] 26
(1) A Council may delegate to a person the exercise of any of 27
its functions, other than this power of delegation. 28
(2) An Executive Officer of a Council may delegate to a 29
person the exercise of-- 30
(a) any of the functions of the Executive Officer under 31
this Law, other than this power of delegation; or 32
(b) any functions delegated to the Executive Officer by 33
the Council, unless the Council otherwise provides 34
in its instrument of delegation to the Executive 35
Officer. 36
(3) In this section, a reference to a person includes a reference 37
to a group of persons, including a committee. 38
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41K Service of documents on Councils [NSW] 1
(1) A document (other than a complaint made under Part 8) 2
may be served on a Council by leaving it at or sending it 3
by post to an office of the Council. 4
(2) This does not affect the operation of any provision of a law 5
or of the rules of a court authorising a document to be 6
served on a Council in another way. 7
41L Authentication of certain documents [NSW] 8
A certificate, summons, process, demand, order, notice, 9
statement, direction or other document requiring 10
authentication by a Council may be sufficiently 11
authenticated without the seal of the Council if signed 12
by-- 13
(a) the President or the Executive Officer of the 14
Council; or 15
(b) an officer of the Council authorised to do so by the 16
Executive Officer. 17
41M Recovery of charges, fines, fees and other money by 18
Councils [NSW] 19
A charge, fine, fee or other money due to a Council may be 20
recovered by the Council as a debt in a court of competent 21
jurisdiction. 22
41N Proof of certain matters not required [NSW] 23
In any legal proceedings, proof is not required (until 24
evidence is given to the contrary) of-- 25
(a) the establishment of a Council; or 26
(b) any resolution of a Council; or 27
(c) the appointment of, or the holding of office by, a 28
member of a Council; or 29
(d) the presence of a quorum at a meeting of a Council. 30
Division 3 Proceedings of Councils [NSW] 31
41O Other matters to be taken into account [NSW] 32
In the exercise of any of its functions under Subdivision 2 33
or 7 of Division 3 of Part 8 with respect to a complaint 34
about a registered health practitioner or a student, a 35
Council must have regard to any of the following matters, 36
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to the extent the Council reasonably considers the matter to 1
be relevant to the complaint-- 2
(a) another complaint or notification about the 3
practitioner or student made to the Council or the 4
National Agency, or made to a former Board under 5
a repealed Act, including a complaint-- 6
(i) in respect of which the Council, the 7
Commission or a National Board has decided 8
no further action should be taken; and 9
(ii) that is not required to be referred, or that the 10
Council or the Commission decides not to 11
refer, under Division 3 of Part 8; 12
(b) a previous finding or decision of a Council inquiry 13
in relation to the practitioner or student; 14
(c) a previous finding or decision of a board inquiry, 15
professional standards committee or a tribunal 16
established under a repealed Act in respect of the 17
practitioner or student; 18
(d) a written report made by an assessor following an 19
assessment of the practitioner's professional 20
performance; 21
(e) a recommendation made, or written statement of 22
decision on a performance review provided, by a 23
Performance Review Panel in relation to the 24
practitioner. 25
41P Exercise of functions with consent [NSW] 26
(1) A Council may exercise any of its functions under this Law 27
with respect to a registered health practitioner or student 28
with the written consent of the practitioner or student. 29
(2) A function exercised by the Council with the consent of the 30
registered health practitioner or student may be exercised 31
even though a condition otherwise required to be met or 32
procedures otherwise required to be followed before its 33
exercise have not been met or followed. 34
(3) If the registered health practitioner or student withdraws 35
the practitioner's or student's consent, the Council must 36
take the action necessary to give effect to the withdrawal. 37
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Division 4 Administration [NSW] 1
41Q Executive Officer [NSW] 2
(1) There is an Executive Officer of each Council. 3
(2) The Executive Officer-- 4
(a) is responsible, as the chief executive officer of the 5
Council, for the management of the affairs of the 6
Council subject to any directions of the Council; and 7
(b) has and may exercise other functions conferred or 8
imposed on the Executive Officer by or under this 9
Law or any other Act. 10
(3) The Executive Officer of a Council must keep a record 11
of-- 12
(a) all proceedings and decisions of Committees to 13
which the Council refers matters; and 14
(b) all proceedings and decisions of the Tribunal 15
established for the health profession for which the 16
Council is established; and 17
(c) all inquiries held by the Council. 18
Division 5 Finance [NSW] 19
41R Financial provisions [NSW] 20
The Executive Officer of a Council must give to the Health 21
Administration Corporation constituted under the Health 22
Administration Act 1982, for payment into an account 23
established under section 13A of that Act, all money 24
received by the Council. 25
41S Education and Research Account [NSW] 26
(1) A Council may establish an account named the `[name of 27
Council] Education and Research Account'. 28
(2) The Council must pay into its Education and Research 29
Account the amounts decided by the Minister from time to 30
time. 31
(3) The Minister may not decide an amount under this section 32
without first consulting with the Council. 33
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(4) Money in the Education and Research Account may be 1
expended by the Council for or towards the following 2
purposes-- 3
(a) any purpose relating to education and research about 4
the health, performance and conduct of registered 5
health practitioners or students registered in the 6
health profession for which the Council is 7
established; 8
(b) meeting administrative expenditure incurred with 9
respect to the Education and Research Account and 10
the purposes for which it is used. 11
(5) An expenditure of money under this section must not be 12
made unless it is authorised by a resolution of the Council 13
supported by two-thirds of the members of the Council. 14
41T Medical Council to pay expenses of Medical Services 15
Committee [NSW] 16
The reasonable expenses of the Medical Services 17
Committee established under the Health Administration 18
Act 1982 are to be paid out of the account established 19
under section 13A of that Act for the Medical Council of 20
New South Wales. 21
[9] Part 7, Division 10, Subdivision 2 22
Insert after the heading to the Subdivision: 23
Note. See also Schedule 5F which contains New South Wales 24
provisions providing for specific restrictions in relation to the 25
control of pharmacies. 26
[10] Section 121A 27
Insert after section 121-- 28
121A General anaesthesia and simple sedation in dentistry [NSW] 29
(1) A dentist must not carry out any procedure forming part of 30
the practice of dentistry on a patient to whom a general 31
anaesthetic has been administered unless the general 32
anaesthetic has been administered by a registered medical 33
practitioner who-- 34
(a) holds specialist registration in anaesthesia; or 35
(b) is accredited for the purposes of administering any 36
general anaesthetic at a public or private hospital at 37
which surgery may lawfully be carried out. 38
Maximum penalty--200 penalty units. 39
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(2) A dentist must not administer simple sedation by the 1
intravenous route unless the dentist-- 2
(a) has been endorsed by the Dental Board of Australia 3
to administer sedation; and 4
(b) is assisted by another person who is either-- 5
(i) a registered nurse who has received training 6
in intensive care or anaesthesia; or 7
(ii) a dentist, appropriately trained in the 8
observation and monitoring of sedated 9
patients and in resuscitation, whose sole 10
responsibility in assisting is to monitor the 11
level of consciousness and cardio-respiratory 12
function of the patient and to administer 13
resuscitation if necessary. 14
Maximum penalty--200 penalty units. 15
(3) In this section-- 16
general anaesthetic means a drug or other substance that, 17
when administered to a patient, will render the patient-- 18
(a) unaware of the patient's surroundings; and 19
(b) unable to retain reflex control of the airway; and 20
(c) incapable of understanding and obeying a spoken 21
command. 22
simple sedation means a technique in which the use of a 23
drug produces a state of depression of the central nervous 24
system enabling treatment to be carried out, and in 25
which-- 26
(a) the patient does not lose consciousness; and 27
(b) the drug and techniques used have a margin of 28
safety wide enough to render unintended loss of 29
consciousness unlikely. 30
Note. This section is an additional New South Wales provision. 31
[11] Section 129 Professional indemnity insurance arrangements 32
Insert after section 129 (1): 33
Note. See also the Health Care Liability Act 2001 which provides 34
that medical practitioners practising in New South Wales must be 35
covered by approved professional indemnity insurance within the 36
meaning of that Act. 37
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[12] Part 8 Health, performance and conduct 1
Insert after the heading to the Part: 2
Note. This Part, other than Division 2, is a substituted New South Wales 3
provision. 4
[13] Part 8, Division 1 5
Omit the Division. Insert instead: 6
Division 1 Preliminary [NSW] 7
138 Definitions [NSW] 8
(1) In this Part-- 9
Assessment Committee means an Assessment Committee 10
established under section 172A. 11
assessor means a person appointed as an assessor under 12
section 174D. 13
authorised person means a person appointed as an 14
authorised person under section 164. 15
Australian lawyer has the same meaning as it has in the 16
Legal Profession Act 2004. 17
Commission means the Health Care Complaints 18
Commission constituted under the Health Care 19
Complaints Act 1993. 20
Committee means-- 21
(a) an Assessment Committee; or 22
(b) a Professional Standards Committee. 23
competent has the meaning given by section 139. 24
complainant includes a person acting as a nominal 25
complainant in accordance with this Law. 26
conduct means any act or omission. 27
confidential information has the meaning given by 28
section 139A. 29
confidential information notice means a notice that-- 30
(a) indicates that-- 31
(i) confidential information is not included in a 32
statement required to be given to a person 33
under this Law; or 34
(ii) a statement required to be given to a person 35
under this Law will not be provided; and 36
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(b) gives the reason the confidential information is not 1
included or the statement will not be provided. 2
Council means a Council established under section 41B. 3
court includes a tribunal, authority or person having power 4
to require the production of documents or the answering of 5
questions but does not include-- 6
(a) a Tribunal established under section 165; or 7
(b) a Council; or 8
(c) a Performance Review Panel; or 9
(d) a Professional Standards Committee. 10
criminal finding means-- 11
(a) a finding that an offence has been proved without 12
proceeding to a conviction; or 13
(b) a finding that an offence has been proved and the 14
discharging of, or the making of an order releasing, 15
the offender conditionally on entering into a good 16
behaviour bond for a specified period or on other 17
conditions decided by the court. 18
critical compliance order or condition means an order or 19
condition of a registered health practitioner's or student's 20
registration that is a critical compliance order or condition 21
under section 146B, 149A or 163B. 22
Director-General means the Director-General of the 23
Department of Health. 24
drug related offence means an offence under-- 25
(a) the Drug Misuse and Trafficking Act 1985 or 26
regulations under that Act; or 27
(b) the Poisons and Therapeutic Goods Act 1966 or 28
regulations under that Act. 29
Executive Officer means the Executive Officer of a 30
Council. 31
former Board means a Board established under a repealed 32
Act. 33
health product means a pharmaceutical product or other 34
product used for health purposes. 35
health service has the meaning given by the Health Care 36
Complaints Act 1993. 37
health service provider has the meaning given by the 38
Health Care Complaints Act 1993. 39
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Impaired Registrants Panel means an Impaired 1
Registrants Panel established under section 173. 2
Minister means-- 3
(a) the Minister administering this Law; or 4
(b) if different Ministers are administering the Law in 5
different respects or different portions of the Law, 6
the Ministering administering the Law in the 7
relevant respect or administering the relevant 8
portion of the Law. 9
NSW provision means-- 10
(a) any of the following provisions-- 11
(i) section 26A; 12
(ii) Part 5A; 13
(iii) section 121A; 14
(iv) section 129(1) and (4); 15
(v) Divisions 1 and 314B of Part 8; 16
(vi) section 216(2)(ba); 17
(vii) section 236A; 18
(viii) section 244A; 19
(ix) section 247A; 20
(x) Schedules 5A5F; or 21
(b) a NSW regulation. 22
NSW regulation means a regulation made under 23
section 247A. 24
overservicing, by a registered health practitioner, means 25
the practitioner, in the course of practising the 26
practitioner's profession-- 27
(a) provides a service in circumstances in which 28
provision of the service is unnecessary, not 29
reasonably required or excessive; or 30
(b) engages in conduct prescribed by the NSW 31
regulations as constituting overservicing. 32
performance assessment means an assessment of a 33
registered health practitioner's professional performance 34
conducted by an assessor under Subdivision 3 of 35
Division 5 of Part 8. 36
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performance review means a review of a registered health 1
practitioner's professional performance conducted by a 2
Performance Review Panel under Subdivision 4 of 3
Division 5 of Part 8. 4
Performance Review Panel means a Performance Review 5
Panel established under section 174. 6
pharmacist means a person registered under this Law in 7
the pharmacy profession. 8
President means the President of a Council. 9
professional misconduct has the meaning given by 10
section 139E. 11
Professional Standards Committee means a Professional 12
Standards Committee established under section 169. 13
prohibition order has the meaning given by 14
section 149C(5). 15
protected report means any of the following reports-- 16
(a) a report prepared by an Impaired Registrants Panel 17
for a Council; 18
(b) a report prepared by an assessor for a Council or 19
Performance Review Panel; 20
(c) a report prepared by a registered health practitioner 21
about an examination conducted under section 145E 22
or 152C; 23
(d) a report prepared by a registered health practitioner 24
for a Council in connection with an examination of 25
a person by the health practitioner as required by a 26
condition of registration or an order imposed by an 27
adjudication body on the person; 28
(e) a report prepared by a registered health practitioner 29
for a Council under a request made by a person to 30
the health practitioner in connection with a matter 31
being dealt with by an Impaired Registrants Panel; 32
(f) a report prepared, under clause 12 of Schedule 5B, 33
by a person giving expert advice to a Performance 34
Review Panel. 35
repealed Act means any of the following Acts-- 36
(a) Chiropractors Act 2001; 37
(b) Dental Practice Act 2001; 38
(c) Medical Practice Act 1992; 39
(d) Nurses and Midwives Act 1991; 40
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(e) Optometrists Act 2002; 1
(f) Osteopaths Act 2001; 2
(g) Pharmacy Practice Act 2006; 3
(h) Physiotherapists Act 2001; 4
(i) Podiatrists Act 2003; 5
(j) Psychologists Act 2001. 6
sex or violence offence means an offence involving any of 7
the following, other than an offence prescribed by the 8
NSW regulations-- 9
(a) sexual activity; 10
(b) acts of indecency; 11
(c) child pornography or child abuse material (within 12
the meaning of the Crimes Act 1900); 13
(d) physical violence or the threat of physical violence. 14
Tribunal means a Tribunal established under section 165. 15
unsatisfactory professional conduct has the meaning 16
given by sections 139B139D. 17
(2) A term defined in subsection (1) for this Part and also used 18
in another NSW provision has the same meaning in the 19
other NSW provision as it has in this Part. 20
139 Competence to practise health profession [NSW] 21
A person is competent to practise a health profession only 22
if the person-- 23
(a) has sufficient physical capacity, mental capacity, 24
knowledge and skill to practise the profession; and 25
(b) has sufficient communication skills for the practice 26
of the profession, including an adequate command 27
of the English language. 28
139A Confidential information [NSW] 29
Information is confidential information for the purposes 30
of a statement of a decision under this Law if it falls into 31
any of the following categories-- 32
(a) it has not previously been published or made 33
available to the public when the statement of the 34
decision to which it is or may be relevant is being 35
prepared; 36
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(b) it relates to the personal or business affairs of a 1
person other than a person to whom the statement is 2
required to be provided or would be required to be 3
provided but for the fact that it contains confidential 4
information; 5
(c) it was supplied in confidence; 6
(d) its publication would reveal a trade secret; 7
(e) it was provided in compliance with a duty imposed 8
by or under an Act; 9
(f) its inclusion in the statement would be a 10
contravention of an Act; 11
(g) it is a protected report or would reveal the contents 12
of a protected report. 13
139B Meaning of "unsatisfactory professional conduct" of 14
registered health practitioner generally [NSW] 15
(1) Unsatisfactory professional conduct of a registered health 16
practitioner includes each of the following-- 17
(a) Conduct significantly below reasonable 18
standard 19
Conduct that demonstrates the knowledge, skill or 20
judgment possessed, or care exercised, by the 21
practitioner in the practice of the practitioner's 22
profession is significantly below the standard 23
reasonably expected of a practitioner of an 24
equivalent level of training or experience. 25
(b) Contravention of this Law or regulations 26
A contravention by the practitioner (whether by act 27
or omission) of a provision of this Law, or the 28
regulations under this Law or under the NSW 29
regulations, whether or not the practitioner has been 30
prosecuted for or convicted of an offence in respect 31
of the contravention. 32
(c) Contravention of conditions of registration or 33
undertaking 34
A contravention by the practitioner (whether by act 35
or omission) of-- 36
(i) a condition to which the practitioner's 37
registration is subject; or 38
(ii) an undertaking given to a National Board. 39
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(d) Failure to comply with decision or order of 1
Committee or Tribunal 2
A contravention by the practitioner (whether by act 3
or omission) of a decision or order made by a 4
Committee or Tribunal in relation to the 5
practitioner. 6
(e) Contravention of requirement under Health Care 7
Complaints Act 1993 8
A contravention by the practitioner of section 9
34A(4) of the Health Care Complaints Act 1993. 10
(f) Accepting benefit for referral or 11
recommendation to health service provider 12
Accepting from a health service provider (or from 13
another person on behalf of the health service 14
provider) a benefit as inducement, consideration or 15
reward for-- 16
(i) referring another person to the health service 17
provider; or 18
(ii) recommending another person use any health 19
service provided by the health service 20
provider or consult with the health service 21
provider in relation to a health matter. 22
(g) Accepting benefit for recommendation of health 23
product 24
Accepting from a person who supplies a health 25
product (or from another person on behalf of the 26
supplier) a benefit as inducement, consideration or 27
reward for recommending that another person use 28
the health product, but does not include accepting a 29
benefit that consists of ordinary retail conduct. 30
(h) Offering a benefit for a referral or 31
recommendation 32
Offering or giving a person a benefit as inducement, 33
consideration or reward for the person-- 34
(i) referring another person to the registered 35
health practitioner; or 36
(ii) recommending to another person that the 37
person use a health service provided by the 38
practitioner or consult the practitioner in 39
relation to a health matter. 40
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(i) Failure to disclose pecuniary interest in giving 1
referral or recommendation 2
Referring a person to, or recommending that a 3
person use or consult-- 4
(i) another health service provider; or 5
(ii) a health service; or 6
(iii) a health product; 7
if the practitioner has a pecuniary interest in giving 8
that referral or recommendation, unless the 9
practitioner discloses the nature of the interest to the 10
person before or at the time of giving the referral or 11
recommendation. 12
(j) Engaging in overservicing 13
Engaging in overservicing. 14
(k) Supervision of assistants 15
Permitting an assistant employed by the practitioner 16
(in connection with the practitioner's professional 17
practice) who is not a registered health practitioner 18
to attend, treat or perform operations on patients in 19
respect of matters requiring professional discretion 20
or skill. 21
(l) Other improper or unethical conduct 22
Any other improper or unethical conduct relating to 23
the practice or purported practice of the 24
practitioner's profession. 25
(2) For the purposes of subsection (1)(i), a registered health 26
practitioner has a pecuniary interest in giving a referral or 27
recommendation-- 28
(a) if the health service provider, or the supplier of the 29
health product, to which the referral or 30
recommendation relates is a public company and the 31
practitioner holds 5% or more of the issued share 32
capital of the company; or 33
(b) if the health service provider, or the supplier of the 34
health product, to which the referral or 35
recommendation relates is a private company and 36
the practitioner has any interest in the company; or 37
(c) if the health service provider, or the supplier of the 38
health product, to whom the referral or 39
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Amendment of Health Practitioner Regulation Act 2009 No 86 Schedule 1
recommendation relates is a natural person who is a 1
partner of the practitioner; or 2
(d) in any circumstances prescribed by the NSW 3
regulations. 4
(3) For avoidance of doubt, a reference in this section to a 5
referral or recommendation that is given to a person 6
includes a referral or recommendation that is given to more 7
than one person or to persons of a particular class. 8
(4) In this section-- 9
benefit means money, property or anything else of value. 10
recommend a health product includes supply or prescribe 11
the health product. 12
supply includes sell. 13
139C Additional matters that constitute unsatisfactory 14
professional conduct of medical practitioners [NSW] 15
In addition to the matters referred to in section 139B, 16
unsatisfactory professional conduct of a medical 17
practitioner also includes each of the following-- 18
(a) Criminal convictions and criminal findings 19
Conduct that results in the medical practitioner 20
being convicted of or being made the subject of a 21
criminal finding for any of the following offences-- 22
(i) an offence under section 102 of the Mental 23
Health Act 2007; 24
(ii) an offence under section 175 of the Children 25
and Young Persons (Care and Protection) 26
Act 1998; 27
(iii) an offence under section 35 of the 28
Guardianship Act 1987; 29
(iv) an offence under section 128A, 128B, 129 or 30
129AA of the Health Insurance Act 1973 of 31
the Commonwealth; 32
(v) an offence under section 58 of the Private 33
Health Facilities Act 2007. 34
(b) Assisting unregistered practitioners 35
By the medical practitioner's presence, 36
countenance, advice, assistance or co-operation, 37
knowingly enable a person who is not a medical 38
practitioner (whether or not that person is described 39
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Schedule 1 Amendment of Health Practitioner Regulation Act 2009 No 86
as an assistant) or is not otherwise authorised by a 1
National Board to-- 2
(i) perform operative surgery (as distinct from 3
manipulative surgery) on a patient in respect 4
of any matter requiring professional 5
discretion or skill; or 6
(ii) issue or procure the issue of a certificate, 7
notification, report or other like document, or 8
to engage in professional practice, as if the 9
person were a medical practitioner. 10
(c) Failing to render urgent attention 11
Refusing or failing, without reasonable cause, to 12
attend (within a reasonable time after being 13
requested to do so) on a person for the purpose of 14
rendering professional services in the capacity of a 15
medical practitioner if the practitioner has 16
reasonable cause to believe the person is in need of 17
urgent attention by a medical practitioner, unless the 18
practitioner has taken all reasonable steps to ensure 19
that another medical practitioner attends instead 20
within a reasonable time. 21
139D Additional matters that constitute unsatisfactory 22
professional conduct of pharmacists [NSW] 23
(1) In addition to the matters referred to in section 139B, 24
unsatisfactory professional conduct of a pharmacist also 25
includes each of the following-- 26
(a) practising pharmacy for remuneration at a pharmacy 27
in the course of employment by, or in association 28
with, a non-pharmacist; 29
(b) the supply of precursor drugs, or preparations, 30
admixtures, extracts or other substances containing 31
a proportion of precursor drugs, by the pharmacist in 32
circumstances in which the supply of the drugs, 33
preparations, admixtures, extracts or other 34
substances is unnecessary, not reasonably required, 35
or excessive; 36
(c) if the pharmacist is the owner of, or otherwise has a 37
pecuniary interest in, a pharmacy business, failing 38
to display at or near the main entrance of each 39
premises in which the business is carried on the 40
owner's name; 41
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(d) if the pharmacist is the pharmacist in charge of a 1
pharmacy, failing to display adjacent to the area 2
where dispensing is carried on in the pharmacy the 3
name of the pharmacist in charge followed by the 4
words "PHARMACIST IN CHARGE"; 5
(e) if the pharmacist is the owner of, or otherwise has a 6
pecuniary interest in, a pharmacy business, failing 7
to ensure drug price information displayed in 8
premises in which the business is carried on does not 9
contravene the Price Information Code of Practice 10
(within the meaning of Schedule 5F). 11
(2) For the purposes of subsection (1)(c) and (e), the owner of 12
a pharmacy business includes-- 13
(a) a pharmacist who has a pecuniary interest in the 14
pharmacy business; and 15
(b) a pharmacist who is nominated by the owner of the 16
pharmacy business as being responsible for the 17
matters referred to in clause 6(2)(c) or 7(2) of 18
Schedule 5F. 19
(3) In this section-- 20
non-pharmacist means an entity that is not a pharmacist, 21
but does not include any of the following-- 22
(a) the Crown; 23
(b) a public health organisation or a charitable or 24
philanthropic institution; 25
(c) a pharmacists' partnership or pharmacists' body 26
corporate; 27
(d) a friendly or other society that owns a pharmacy 28
business as permitted by clause 6 of Schedule 5F; 29
(e) a body corporate that owns or carries on a pharmacy 30
business under clause 7 of Schedule 5F; 31
(f) a person who has a pecuniary interest in a pharmacy 32
business as referred to in clause 5(4) or (5) of 33
Schedule 5F and who carries on that business; 34
(g) a person who, in assuming the administration of the 35
property of another person under a security interest 36
granted in respect of that other person's pharmacy 37
business, carries on that pharmacy business. 38
precursor drug has the same meaning as precursor has in 39
section 24A of the Drug Misuse and Trafficking Act 1985. 40
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139E Meaning of "professional misconduct" [NSW] 1
For the purposes of this Law, professional misconduct of 2
a registered health practitioner means-- 3
(a) unsatisfactory professional conduct of a sufficiently 4
serious nature to justify suspension or cancellation 5
of the practitioner's registration; or 6
(b) more than one instance of unsatisfactory 7
professional conduct that, when the instances are 8
considered together, amount to conduct of a 9
sufficiently serious nature to justify suspension or 10
cancellation of the practitioner's registration. 11
139F References to "complaint" [NSW] 12
In Subdivisions 16 of Division 3 and in Subdivisions 1 13
and 2 of Division 6, a reference to a complaint includes a 14
reference to a matter arising out of the investigation of a 15
complaint in accordance with this Law or another Act. 16
139G Part applicable to persons formerly registered under this 17
Law 18
(1) This section applies if a person was, but is no longer, 19
registered in a health profession under this Law. 20
(2) A notification may be made, and proceedings may be 21
taken, under this Part in relation to the person's behaviour 22
while registered as if the person were still registered under 23
this Law by the National Board established for the health 24
profession. 25
(3) For the purposes of subsection (2), this Part (other than 26
Division 2) applies, with any necessary changes, to the 27
person as if a reference to a registered health practitioner 28
included that person. 29
Note. This section is a Health Practitioner Regulation National 30
Law provision. 31
139H Part applicable to persons formerly registered under 32
corresponding prior Act in certain circumstances 33
(1) This section applies if a person-- 34
(a) was registered in a health profession under a 35
corresponding prior Act; and 36
(b) is not, and has not been, registered in the health 37
profession under this Law. 38
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(2) A notification may be made, and proceedings may be 1
taken, under this Part in relation to the person's behaviour 2
while registered under the corresponding prior Act as if the 3
person were registered under this Law by the National 4
Board established for the health profession. 5
(3) However, subsection (2) applies only to the extent-- 6
(a) a notification about the person's behaviour could 7
have been made under the corresponding prior Act; 8
and 9
(b) proceedings of that type could have been taken 10
under the corresponding prior Act. 11
(4) For the purposes of subsection (2), this Part (other than 12
Division 2) applies, with any necessary changes, to the 13
person as if a reference to a registered health practitioner 14
included that person. 15
Note. This section is a Health Practitioner Regulation National 16
Law provision. 17
[14] Part 8, Division 2 18
Insert after the heading to the Division: 19
Note. This Division is a Health Practitioner Regulation National Law 20
provision. 21
[15] Part 8, Divisions 314B 22
Omit Divisions 314. Insert instead-- 23
Division 3 Complaints [NSW] 24
Subdivision 1 Making complaints [NSW] 25
144 Grounds for complaint about registered health practitioner 26
[NSW] 27
The following complaints may be made about a registered 28
health practitioner-- 29
(a) Criminal conviction or criminal finding 30
A complaint the practitioner has, either in this 31
jurisdiction or elsewhere, been convicted of or made 32
the subject of a criminal finding for an offence. 33
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(b) Unsatisfactory professional conduct or 1
professional misconduct 2
A complaint the practitioner has been guilty of 3
unsatisfactory professional conduct or professional 4
misconduct. 5
(c) Lack of competence 6
A complaint the practitioner is not competent to 7
practise the practitioner's profession. 8
(d) Impairment 9
A complaint the practitioner has an impairment. 10
(e) Suitable person 11
A complaint the practitioner is otherwise not a 12
suitable person to hold registration in the 13
practitioner's profession. 14
144A Grounds for complaint about student [NSW] 15
The following complaints may be made about a student-- 16
(a) Offences 17
A complaint the student has, either in this 18
jurisdiction or elsewhere, been charged with an 19
offence, or has been convicted of or made the 20
subject of a criminal finding for an offence, that is 21
punishable by 12 months imprisonment or more. 22
(b) Impairment 23
A complaint the student has an impairment. 24
(c) Contravention of conditions 25
A complaint that the student has contravened a 26
condition of the student's registration or an 27
undertaking given by the student to a National 28
Board. 29
144B Who can make complaint [NSW] 30
(1) Any person can make a complaint. 31
(2) A complaint may also be made by a Council or the 32
Director-General. 33
144C Complaints may be made to Council or Health Care 34
Complaints Commission [NSW] 35
A complaint may be made to a Council or the Commission. 36
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144D Complaints to be in writing [NSW] 1
(1) A complaint, other than a complaint made by a Council or 2
the Director-General, must-- 3
(a) be in writing; and 4
(b) contain particulars of the allegations on which it is 5
founded. 6
(2) A complaint need not be made in terms that are strictly 7
consistent with the terminology of section 144 or 144A. 8
(3) A Council or the Commission may consider and 9
investigate a complaint that does not comply with the 10
requirements of subsection (1) but must not refer the 11
complaint under Subdivision 2 until the requirements are 12
complied with. 13
144E Where to lodge complaints [NSW] 14
(1) A complaint made to a Council must be lodged with the 15
Executive Officer of the Council. 16
(2) A complaint made to the Commission is, in accordance 17
with section 9 of the Health Care Complaints Act 1993, to 18
be lodged with the Commission. 19
144F Further particulars may be required from complainant [NSW] 20
A Council or the Commission may require the complainant 21
to provide further particulars of a complaint. 22
144G Council to notify Commission and National Boards of 23
complaints [NSW] 24
A Council must, as soon as practicable after a complaint is 25
made to or by the Council about a registered health 26
practitioner or student, notify the following persons about 27
the complaint or matter-- 28
(a) the Commission; 29
(b) the National Board for the health profession in 30
which the registered health practitioner or student is 31
registered. 32
Subdivision 2 How complaints are to be dealt with 33
[NSW] 34
145 Complaints to be dealt with expeditiously [NSW] 35
All complaints are to be dealt with expeditiously. 36
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145A Council and Commission to consult on complaint [NSW] 1
(1) Before any action is taken on a complaint, a Council and 2
the Commission must consult to see if agreement can be 3
reached between them as to the course of action to be taken 4
concerning the complaint. 5
(2) Division 2 of Part 2 of the Health Care Complaints 6
Act 1993 applies to the consultation, despite the other 7
provisions of this Subdivision. 8
145B Courses of action available to Council on complaint [NSW] 9
(1) The following courses of action are available to a Council 10
in respect of a complaint-- 11
(a) the Council may make any inquiries about the 12
complaint the Council thinks appropriate; 13
(b) the Council may refer the complaint to the 14
Commission for investigation; 15
(c) the Council may refer the complaint to a Tribunal; 16
(d) the Council may refer the complaint to a 17
Committee; 18
(e) for a complaint about a health practitioner or student 19
who is registered in a health profession other than 20
the medical or nursing and midwifery profession, 21
the Council may deal with the complaint by inquiry 22
at a meeting of the Council; 23
(f) the Council may-- 24
(i) refer the practitioner or student for a health 25
assessment; or 26
(ii) refer the matter to an Impaired Registrants 27
Panel; or 28
(iii) refer the professional performance of the 29
practitioner concerned for a performance 30
assessment; 31
(g) the Council may direct the practitioner or student 32
concerned to attend counselling; 33
(h) the Council may refer the complaint to the 34
Commission for conciliation or to be dealt with 35
under Division 9 of Part 2 of the Health Care 36
Complaints Act 1993; 37
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(i) the Council may refer the complaint to another 1
entity, including, for example, a National Board; 2
(j) the Council may determine that no further action 3
should be taken in respect of the complaint. 4
(2) The Commission must, on receipt of a complaint referred 5
by a Council for investigation, investigate the complaint or 6
cause it to be investigated. 7
(3) If a Council makes a referral under subsection (1)(f), the 8
matter ceases to be a complaint for the purposes of this 9
Law and the Health Care Complaints Act 1993. 10
(4) Subsection (3) ceases to apply in respect of any matter that 11
a Council subsequently deals with as a complaint. 12
145C Courses of action available to the Commission on complaint 13
[NSW] 14
(1) The following courses of action are available to the 15
Commission in respect of a complaint made to the 16
Commission, or that the Commission has decided to make, 17
about a registered health practitioner or student-- 18
(a) the Commission may refer the complaint to the 19
Council for the health profession in which the 20
practitioner or student is registered or, after 21
consultation with a Council, to a Committee or the 22
Tribunal; 23
(b) the Commission may refer the complaint for 24
conciliation or deal with the complaint under 25
Division 9 of Part 2 of the Health Care Complaints 26
Act 1993; 27
(c) the Commission may refer the complaint to another 28
entity, including, for example, a National Board; 29
(d) the Commission may determine that no further 30
action should be taken in respect of the complaint; 31
(e) the Commission may take any other action that it 32
can take under the Health Care Complaints 33
Act 1993. 34
(2) If the Commission refers a complaint to a Committee or 35
the Tribunal, the Commission must inform the Council 36
accordingly. 37
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145D Serious complaints must be referred to Tribunal [NSW] 1
(1) Both a Council for a health profession and the Commission 2
are under a duty to refer a complaint to the Tribunal for the 3
health profession if, at any time, either forms the opinion 4
that it may, if substantiated, provide grounds for the 5
suspension or cancellation of a registered health 6
practitioner's or student's registration. 7
(2) However, either the Council or the Commission may 8
decide not to refer the complaint to the Tribunal if of the 9
opinion the allegations on which the complaint is founded 10
(and on which any other pending complaint against the 11
registered health practitioner or student is founded) relate 12
solely or principally to-- 13
(a) for a practitioner, the physical or mental capacity of 14
the practitioner to practise the practitioner's 15
profession; or 16
(b) for a student, the physical or mental capacity of the 17
student to undertake clinical training in the health 18
profession in which the student is registered. 19
(3) If the Council decides not to refer the complaint to the 20
Tribunal, the Council must instead refer the complaint to a 21
Committee or Impaired Registrants Panel. 22
(4) If the Commission decides not to refer the complaint to the 23
Tribunal, the Commission must instead refer the complaint 24
to the Council. 25
(5) This section does not require the Council or the 26
Commission to refer a complaint the Council or 27
Commission thinks is frivolous or vexatious. 28
145E Council may require health practitioner or student to 29
undergo examination [NSW] 30
(1) A Council may, by written notice given to a registered 31
health practitioner or student against whom a complaint 32
has been made, direct the practitioner or student to undergo 33
an examination by a specified registered health 34
practitioner at a specified reasonable time and place. 35
(2) A registered health practitioner or student must not be 36
directed to undergo an examination under subsection (1) 37
unless it is reasonable to require the examination, given the 38
nature of the complaint against the practitioner or student. 39
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(3) The fee charged by the specified registered health 1
practitioner for the examination is at the expense of the 2
Council. 3
145F Result of failure to attend counselling or examination [NSW] 4
A failure by a registered health practitioner or student, 5
without reasonable excuse, to comply with a direction 6
under section 145B to attend counselling or under section 7
145E to undergo an examination is, for the purposes of this 8
Law and any inquiry or appeal under this Law, evidence 9
that the practitioner or student-- 10
(a) for a registered health practitioner, does not have 11
sufficient physical and mental capacity to practise 12
the health profession in which the practitioner is 13
registered; or 14
(b) for a student, does not have sufficient physical and 15
mental capacity to undertake clinical training in the 16
health profession in which the student is registered. 17
145G Inquiries etc not prevented by other proceedings [NSW] 18
A complaint can be referred to a Committee or the 19
Tribunal, and dealt with by the Committee or Tribunal, 20
even though the practitioner or student concerned is the 21
subject of proposed or current criminal or civil 22
proceedings relating to the subject-matter of the 23
complaint. 24
145H Complaint not to be referred if health practitioner or student 25
dead [NSW] 26
A complaint is not to be referred under this Subdivision if 27
the registered health practitioner or student concerned is 28
dead. 29
145I Complaint need not be referred if health practitioner or 30
student no longer registered [NSW] 31
A Council or the Commission may decide not to refer a 32
complaint under this Subdivision if the registered health 33
practitioner or student concerned has ceased to be 34
registered. 35
145J Complaint need not be referred if complainant fails to 36
provide further particulars [NSW] 37
A Council or the Commission may decide not to refer a 38
complaint under this Subdivision if the complainant has 39
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failed to provide further particulars in response to a request 1
by the Council or the Commission. 2
Subdivision 3 Disciplinary powers of Professional 3
Standards Committees [NSW] 4
146 Definitions [NSW] 5
In this Subdivision-- 6
Committee means a Professional Standards Committee. 7
relevant health practitioner means a health practitioner 8
registered under this Law in the-- 9
(a) medical profession; or 10
(b) nursing and midwifery profession. 11
146A Powers may be exercised if complaint proved or admitted 12
[NSW] 13
A Committee may exercise any power conferred on it by 14
this Subdivision if it finds the subject-matter of a 15
complaint against a relevant health practitioner to have 16
been proved or the relevant health practitioner who is the 17
subject of the complaint admits to it in writing to the 18
Committee. 19
146B General powers to caution, reprimand, counsel etc [NSW] 20
(1) A Committee may do one or more of the following in 21
relation to a relevant health practitioner the subject of a 22
complaint referred to it-- 23
(a) caution or reprimand the practitioner; 24
(b) direct that the conditions, relating to the 25
practitioner's practising of the practitioner's 26
profession, it considers appropriate be imposed on 27
the practitioner's registration; 28
(c) order that the practitioner seek and undergo medical 29
or psychiatric treatment or counselling; 30
(d) order that the practitioner complete an educational 31
course specified by the Committee; 32
(e) order that the practitioner report on the 33
practitioner's practice at the times, in the way and to 34
the persons specified by the Committee; 35
(f) order that the practitioner seek and take advice, in 36
relation to the management of the practitioner's 37
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practice, from the persons specified by the 1
Committee. 2
(2) If the relevant health practitioner is not registered, a 3
direction may still be given under this section but has 4
effect only so as to require the conditions concerned to be 5
imposed when the health practitioner is registered. 6
(3) If a Committee acting under this section makes an order or 7
directs that any condition be imposed on a health 8
practitioner's registration, the Committee may order that a 9
contravention of the order or condition will result in the 10
health practitioner's registration in the health profession 11
being cancelled. 12
(4) The order or condition concerned is then a critical 13
compliance order or condition. 14
146C Power to fine in certain cases [NSW] 15
(1) A Committee may by order impose a fine of an amount of 16
not more than 50 penalty units on a relevant health 17
practitioner the subject of a complaint referred to the 18
committee. 19
(2) A fine is not to be imposed unless-- 20
(a) the Committee finds the relevant health practitioner 21
to have been guilty of unsatisfactory professional 22
conduct; and 23
(b) the Committee is satisfied there is no other order, or 24
combination of orders, that is appropriate in the 25
public interest. 26
(3) A fine is not to be imposed if a fine or other penalty has 27
already been imposed by a court in respect of the conduct. 28
(4) A fine must be paid within the time specified in the order 29
imposing the fine and must be paid to the Council. 30
146D Committee can recommend suspension or cancellation on 31
grounds of lack of physical or mental capacity [NSW] 32
(1) A Committee may recommend that a relevant health 33
practitioner's registration be suspended for a specified 34
period or that the practitioner's registration be cancelled if 35
the Committee is satisfied the practitioner does not have 36
sufficient physical and mental capacity to practise the 37
practitioner's profession. 38
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(2) If the relevant health practitioner is no longer registered, a 1
recommendation may be made under this section that the 2
person be disqualified from being registered. 3
(3) The Committee makes its recommendation by referring 4
the matter, with its recommendation and the material on 5
which it relied in making its recommendation, to the 6
Chairperson of the Tribunal or to a Deputy Chairperson 7
nominated by the Chairperson. 8
(4) The Chairperson or Deputy Chairperson may-- 9
(a) make an order in the terms recommended; or 10
(b) may make another order about the suspension or 11
cancellation of the registration of the relevant health 12
practitioner as the Chairperson or Deputy 13
Chairperson thinks proper based on the findings of 14
the Committee. 15
(5) An order under this section may also provide that an 16
application for review of the order under Division 8 may 17
not be made until after a specified time. 18
(6) Instead of making an order under this section, the 19
Chairperson or Deputy Chairperson may exercise any 20
power of a Committee under this Subdivision. 21
146E Council may refer contravention of conditions to Tribunal 22
[NSW] 23
(1) If a Council for a health profession reasonably believes a 24
relevant health practitioner has contravened any 25
conditions imposed under a direction made by a 26
Committee under this Subdivision, it may refer the matter 27
to the Tribunal for the profession. 28
(2) If the Tribunal finds the failure proved, it may exercise any 29
power conferred on it or a Committee by this Subdivision. 30
Subdivision 4 Dealing with complaints by 31
Assessment Committee [NSW] 32
147 Definitions [NSW] 33
In this Subdivision-- 34
Committee means an Assessment Committee. 35
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relevant health practitioner means a health practitioner 1
registered under this Law other than a health practitioner 2
registered in the-- 3
(a) medical profession; or 4
(b) nursing and midwifery profession. 5
147A Complaints that may be referred to Committee [NSW] 6
(1) A Council may refer a complaint to a Committee only if-- 7
(a) the complaint is about a relevant health practitioner; 8
and 9
(b) the Commission has decided not to investigate the 10
complaint or following an investigation has decided 11
not to refer the complaint to a Tribunal. 12
(2) A complaint may not be referred to a Committee if it is a 13
complaint that-- 14
(a) the relevant health practitioner is not of good 15
character; or 16
(b) the relevant health practitioner has been convicted 17
of or made the subject of a criminal finding for an 18
offence. 19
(3) This section does not limit the Committee in the exercise 20
of its functions under this Subdivision in relation to any 21
matter that arises in the course of the Committee's 22
investigation of a complaint. 23
147B How complaints are dealt with [NSW] 24
(1) If a complaint is referred to a Committee, the Committee 25
must-- 26
(a) investigate the complaint; and 27
(b) encourage the complainant and the relevant health 28
practitioner the subject of the complaint to settle the 29
complaint by consent. 30
(2) A Committee may obtain the medical, legal, financial or 31
other advice it thinks necessary or desirable to enable it to 32
exercise its functions. 33
(3) Advice obtained by a Committee under subsection (2) may 34
not, unless otherwise ordered by the Council, be admitted 35
or used in civil proceedings before a court and a person 36
may not be compelled to produce the advice or to give 37
evidence in relation to the advice in civil proceedings. 38
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(4) A Committee may not decide a complaint referred to it 1
other than by settlement by consent. 2
(5) A Committee must give to the Council a written report 3
about whether or not it is able to effect settlement of the 4
complaint by consent. 5
147C Skills testing of relevant health practitioner [NSW] 6
(1) A Council may direct a Committee to require the relevant 7
health practitioner the subject of the complaint referred to 8
the Committee to undergo skills testing. 9
(2) The Committee must, by written notice given to the 10
relevant health practitioner, require the health practitioner 11
to undergo skills testing by an appropriately qualified 12
person specified in the notice, at the reasonable time and 13
place specified in the notice. 14
(3) A failure by the relevant health practitioner, without 15
reasonable excuse, to comply with the notice is, for the 16
purposes of this Part or any inquiry or appeal under this 17
Law, evidence the health practitioner does not have 18
sufficient skill to practise the health profession in which 19
the health practitioner is registered. 20
(4) A person who conducts skills testing for the purposes of 21
this section must report to the Committee on the results of 22
the testing. 23
(5) The Committee must give a copy of the report to the 24
relevant health practitioner. 25
(6) A person must not, directly or indirectly, make a record of 26
or divulge to any person any information contained in a 27
report to a Committee under this section that has come to 28
the person's notice in the exercise of the person's functions 29
under this Law, other than for the purpose of exercising the 30
person's functions under this Law. 31
Maximum penalty--50 penalty units. 32
(7) A person cannot be required in civil proceedings in any 33
court to produce or permit access to a report made to a 34
Committee under this section or to divulge the contents of 35
the report. 36
(8) In this section-- 37
report includes a copy, reproduction and duplicate of the 38
report or any part of the report, copy, reproduction or 39
duplicate. 40
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147D Recommendations of Committee [NSW] 1
(1) A Committee's report to a Council may include the 2
recommendations about the complaint the Committee 3
considers appropriate, including any of the following-- 4
(a) a recommendation that the Council deal with the 5
complaint by inquiry at a meeting of the Council as 6
a complaint of unsatisfactory professional conduct; 7
(b) a recommendation that the Council direct the 8
relevant health practitioner to attend counselling; 9
(c) a recommendation that the Council dismiss the 10
complaint. 11
(2) The Council must give the relevant health practitioner and 12
the Commission a copy of the Committee's report as soon 13
as practicable after the report is made. 14
(3) The Council must-- 15
(a) if the Committee recommends that the Council deal 16
with the complaint by inquiry at a meeting of the 17
Council as a complaint of unsatisfactory 18
professional conduct, comply with the 19
recommendation; or 20
(b) otherwise, allow the Commission and the relevant 21
health practitioner, not less than 21 days after they 22
have been given a copy of the Committee's report 23
and recommendations, to make submissions about 24
the report and recommendations. 25
(4) After considering the Committee's report and 26
recommendations and any submissions made by the 27
Commission or relevant health practitioner, the Council 28
must proceed to deal with the complaint as provided by 29
section 145B. 30
Note. See section 145D which provides that both Council and the 31
Commission have a duty to refer a complaint to the Tribunal if, at 32
any time, either of them is of the opinion that the complaint, if 33
substantiated, would provide grounds for the suspension or 34
cancellation of the relevant health practitioner's registration. 35
147E No representation for parties appearing before Committee 36
[NSW] 37
A complainant and the relevant health practitioner the 38
subject of the complaint are not entitled to be legally 39
represented at an appearance before a Committee. 40
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Subdivision 5 Dealing with complaint by inquiry at 1
meeting of Council [NSW] 2
148 Application of Subdivision [NSW] 3
This Subdivision does not apply to a complaint about a 4
health practitioner or student registered in-- 5
(a) the medical profession; or 6
(b) the nursing and midwifery profession. 7
148A Procedures for dealing with complaint at meeting [NSW] 8
(1) If a Council decides to deal with a complaint about a 9
registered health practitioner or student by inquiry at a 10
meeting of the Council, the meeting must be held in 11
accordance with Part 3 of Schedule 5C and this 12
Subdivision. 13
(2) The Council may be assisted by a legal practitioner when 14
dealing with the complaint at a meeting of the Council. 15
(3) The Council must give the Commission a copy of any 16
submission made to the Council by the registered health 17
practitioner or student in respect of the complaint or in 18
respect of any recommendation of the Committee 19
concerning the complaint. 20
148B General procedure [NSW] 21
The procedure for the calling of a meeting to deal with a 22
complaint and for the conduct of the meeting is, subject to 23
this Law and the NSW regulations, to be decided by the 24
Council. 25
148C Conduct of meeting [NSW] 26
At the meeting to deal with the complaint, the Council-- 27
(a) may inform itself on any matter in the way it thinks 28
fit; and 29
(b) may receive written or oral submissions; and 30
(c) must proceed with as little formality and 31
technicality, and as much expedition, as the 32
requirements of this Law and the proper 33
consideration of the complaint permit; and 34
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(d) is not bound by rules of evidence; and 1
(e) may proceed to deal with the complaint in the 2
absence of the registered health practitioner or 3
student. 4
148D Making submissions to inquiry [NSW] 5
(1) The registered health practitioner or student is entitled to 6
attend the meeting at which the complaint is dealt with and 7
to make submissions to the Council. 8
(2) The Committee may, if the Council so requires, make a 9
submission to the Council with respect to the complaint 10
and may for that purpose attend the meeting at which the 11
complaint is dealt with. 12
(3) The Council must give the Commission the opportunity to 13
make a submission to the Council with respect to the 14
complaint and the Commission may for that purpose attend 15
the meeting at which the complaint is dealt with. 16
(4) The Committee or the Commission may not be present at 17
the meeting except while actually making a submission, 18
unless the Council otherwise decides. 19
(5) Despite subsection (4), the Commission may be present 20
throughout the Council's inquiry if the complaint is the 21
subject of a recommendation of the Commission that it be 22
dealt with by inquiry at a meeting of the Council under this 23
Subdivision. 24
(6) The registered health practitioner or student is not entitled 25
to be legally represented at the inquiry but may be 26
accompanied by a support person. The support person can 27
be an Australian lawyer. 28
(7) The Commission is not entitled to be legally represented at 29
the inquiry. 30
148E General powers of Council [NSW] 31
(1) The Council may do any one or more of the following in 32
relation to the health practitioner the subject of the 33
inquiry-- 34
(a) caution or reprimand the practitioner; 35
(b) make an order for the withholding or refunding of 36
part or all of the payment with respect to the fees to 37
be charged or paid for the services that are the 38
subject of the complaint; 39
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(c) direct that specified conditions relating to the 1
practitioner's practice of the health profession be 2
imposed on the practitioner's registration; 3
(d) order that the practitioner seek and undergo medical 4
or psychiatric treatment or counselling; 5
(e) order that the practitioner complete an educational 6
course specified by the Council; 7
(f) order that the practitioner report on his or her 8
practice at the times, in the way and to the persons 9
specified by the Council; 10
(g) order that the practitioner seek and take advice, in 11
relation to the management of his or her practice, 12
from persons specified by the Council. 13
(2) The Council may do any one or more of the following in 14
relation to the student the subject of the inquiry-- 15
(a) caution or reprimand the student; 16
(b) direct that specified conditions be imposed on the 17
student's registration; 18
(c) order that the student seek and undergo medical or 19
psychiatric treatment or counselling; 20
(d) order that the student complete an educational 21
course specified by the Council. 22
(3) If the person is not registered, an order or direction can still 23
be given under this section but has effect only so as to 24
prevent the person being registered unless the order is 25
complied with or to require the conditions concerned to be 26
imposed when the person is registered, as appropriate. 27
148F Power to fine in certain cases [NSW] 28
(1) The Council may by order impose a fine, of an amount of 29
not more than 50 penalty units, on the health practitioner 30
the subject of the inquiry. 31
(2) A fine is not to be imposed unless-- 32
(a) the Council finds the health practitioner to have 33
been guilty of unsatisfactory professional conduct; 34
and 35
(b) the Council is satisfied there is no other order, or 36
combination of orders, that is appropriate in the 37
public interest. 38
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(3) A fine is not to be imposed if a fine or other penalty has 1
already been imposed by a court in respect of the conduct. 2
(4) A fine must be paid within the time specified in the order 3
imposing the fine and must be paid to the Council. 4
148G Power of Council to recommend suspension or cancellation 5
of registration [NSW] 6
(1) The Council may recommend that the registration of the 7
registered health practitioner or student be suspended for a 8
specified period or cancelled if the Council is satisfied the 9
health practitioner or student-- 10
(a) for a health practitioner, does not have sufficient 11
physical and mental capacity to practise the 12
practitioner's profession; or 13
(b) for a student, has an impairment. 14
(2) If the health practitioner is not registered, a 15
recommendation can be made under this section that the 16
health practitioner not be registered. 17
(3) The Council makes its recommendation by referring the 18
matter with its recommendation to the Chairperson or to a 19
Deputy Chairperson nominated by the Chairperson. 20
(4) The Chairperson or Deputy Chairperson may-- 21
(a) make an order in the terms recommended; or 22
(b) make another order about the suspension or 23
cancellation of the health practitioner's or student's 24
registration as the Chairperson or Deputy 25
Chairperson thinks proper based on the Council's 26
findings. 27
(5) An order may also provide that an application for review 28
of the order under Division 8 may not be made until after 29
a specified time. 30
(6) Instead of making an order under this section, the 31
Chairperson or Deputy Chairperson may exercise any 32
power or combination of powers of the Council under this 33
Subdivision. 34
148H Decision of the Council [NSW] 35
(1) The Council must, within 30 days of making its decision 36
on the complaint, make available to the complainant, the 37
registered health practitioner or student concerned, the 38
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National Board and any other persons it thinks fit, a written 1
statement of the decision. 2
(2) If the Commission made a submission to the Council with 3
respect to the complaint, the Council must provide the 4
Commission with a copy of the written statement of the 5
decision. 6
(3) The written statement of a decision must give the reasons 7
for the decision. 8
(4) The Council is not required to include confidential 9
information in the statement. 10
(5) If the statement would be false or misleading if it did not 11
include the confidential information, the Council is not 12
required to provide the statement. 13
(6) If confidential information is not included in the statement 14
given to a person or the statement is not given to a person 15
because of subsection (5), the Council must give a 16
confidential information notice to the person. 17
(7) A confidential information notice must be given within 18
one month after the decision is made. 19
(8) This section does not affect the power of a court to make 20
an order for the discovery of documents or to require the 21
giving of evidence or the production of documents to a 22
court. 23
148I Admissibility of Council's findings [NSW] 24
A finding of a Council under this Subdivision is admissible 25
as evidence in any legal proceedings. 26
Subdivision 6 Disciplinary powers of Tribunals 27
[NSW] 28
149 Powers may be exercised if complaint proved or admitted 29
[NSW] 30
A Tribunal may exercise any power conferred on it by this 31
Subdivision in relation to a registered health practitioner or 32
student if-- 33
(a) it finds the subject-matter of a complaint against the 34
practitioner or student to have been proved; or 35
(b) the practitioner or student admits to it in writing to 36
the Tribunal. 37
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149A General powers to caution, reprimand, counsel etc [NSW] 1
(1) The Tribunal may do any one or more of the following in 2
relation to the registered health practitioner-- 3
(a) caution or reprimand the practitioner; 4
(b) impose the conditions it considers appropriate on 5
the practitioner's registration; 6
(c) order the practitioner to seek and undergo medical 7
or psychiatric treatment or counselling; 8
(d) order the practitioner to complete an educational 9
course specified by the Tribunal; 10
(e) order the practitioner to report on the practitioner's 11
practice at the times, in the way and to the persons 12
specified by the Tribunal; 13
(f) order the practitioner to seek and take advice, in 14
relation to the management of the practitioner's 15
practice, from persons specified by the Tribunal. 16
(2) The Tribunal may do any one or more of the following in 17
relation to the student-- 18
(a) caution or reprimand the student; 19
(b) impose the conditions it considers appropriate on 20
the student's registration; 21
(c) order the student to seek and undergo medical or 22
psychiatric treatment or counselling; 23
(d) order the student to complete an educational course 24
specified by the Tribunal. 25
(3) If the health practitioner is no longer registered, an order or 26
direction may still be given under this section but has 27
effect only-- 28
(a) to prevent the practitioner being registered unless 29
the order is complied with; or 30
(b) to require the conditions concerned to be imposed 31
when the practitioner is registered. 32
(4) If the Tribunal makes an order or imposes a condition on 33
the registered health practitioner's or student's 34
registration, the Tribunal may order that a contravention of 35
the order or condition will result in the practitioner's or 36
student's registration being cancelled. 37
(5) The order or condition concerned is then a critical 38
compliance order or condition. 39
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149B Power to fine registered health practitioner in certain cases 1
[NSW] 2
(1) The Tribunal may by order impose a fine on the registered 3
health practitioner of an amount of not more than 4
250 penalty units. 5
(2) A fine is not to be imposed unless-- 6
(a) the Tribunal finds the registered health practitioner 7
to have been guilty of unsatisfactory professional 8
conduct or professional misconduct; and 9
(b) the Tribunal is satisfied there is no other order, or 10
combination of orders, that is appropriate in the 11
public interest. 12
(3) A fine is not to be imposed if a fine or other penalty has 13
already been imposed by a court in respect of the conduct. 14
(4) A fine must be paid within the time specified in the order 15
imposing the fine and must be paid to the Council for the 16
health profession. 17
149C Tribunals may suspend or cancel registration in certain 18
cases [NSW] 19
(1) A Tribunal may suspend a registered health practitioner's 20
registration for a specified period or cancel the registered 21
health practitioner's registration if the Tribunal is 22
satisfied-- 23
(a) the practitioner is not competent to practise the 24
practitioner's profession; or 25
(b) the practitioner is guilty of professional misconduct; 26
or 27
(c) the practitioner has been convicted of or made the 28
subject of a criminal finding for an offence, either in 29
or outside this jurisdiction, and the circumstances of 30
the offence render the practitioner unfit in the public 31
interest to practise the practitioner's profession; or 32
(d) the practitioner is not a suitable person for 33
registration in the practitioner's profession. 34
(2) A Tribunal may suspend a student's registration for a 35
specified period or cancel the student's registration if the 36
Tribunal is satisfied-- 37
(a) the student has been convicted of or made the 38
subject of a criminal finding for an offence, either in 39
or outside this jurisdiction, and the circumstances of 40
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the offence render the student unfit in the public 1
interest to undertake clinical training in the health 2
profession; or 3
(b) the student is otherwise not a suitable person to 4
undertake clinical training in the health profession. 5
(3) The Tribunal must cancel a registered health practitioner's 6
or student's registration if the Tribunal is satisfied the 7
practitioner or student has contravened a critical 8
compliance order or condition. 9
(4) If the person is no longer registered, the Tribunal may-- 10
(a) decide that if the person were still registered the 11
Tribunal would have suspended or cancelled the 12
person's registration; and 13
(b) if the Tribunal would have cancelled the person's 14
registration, decide that the person is disqualified 15
from being registered in the health profession for a 16
specified period or until specified conditions have 17
been complied with; and 18
(c) require the National Board with which the person 19
was registered to record the fact that the Tribunal 20
would have suspended or cancelled the person's 21
registration in the National Register kept by the 22
Board. 23
(5) If the Tribunal suspends or cancels a registered health 24
practitioner's or student's registration and it is satisfied the 25
person poses a substantial risk to the health of members of 26
the public, it may by order (a prohibition order) do any 27
one or more of the following-- 28
(a) prohibit the person from providing health services 29
or specified health services for the period specified 30
in the order or permanently; 31
(b) place specified conditions on the provision of health 32
services or specified health services by the person 33
for the period specified in the order or permanently. 34
Note. Section 10AK(1) of the Public Health Act 1991 provides 35
that it is an offence for a person to provide a health service in 36
contravention of a prohibition order. 37
(6) If the Tribunal is aware a registered health practitioner or 38
student in respect of whom it is proposing to make a 39
prohibition order is registered in a health profession other 40
than the health profession in respect of which the Tribunal 41
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is making the order, the Tribunal must, before making the 1
prohibition order-- 2
(a) notify the Council and the National Board for that 3
health profession, and the Commission, of the 4
proposed order; and 5
(b) give the Council, National Board and Commission 6
an opportunity to make a submission. 7
(7) An order may also provide that an application for review 8
of the order under Division 8 may not be made until after 9
a specified time. 10
149D Council may refer contravention of disciplinary order to 11
Tribunal [NSW] 12
(1) If a Council for a health profession reasonably believes a 13
person has failed to comply with an order (or conditions 14
imposed under an order) made by the Tribunal for the 15
profession under this Subdivision, it may refer the matter 16
to the Tribunal. 17
(2) If the Tribunal finds the failure proved, it may exercise any 18
power conferred on it by this Subdivision. 19
Subdivision 7 Powers of a Council for protection of 20
public [NSW] 21
150 Suspension or conditions of registration to protect public 22
[NSW] 23
(1) A Council must, if at any time it is satisfied it is 24
appropriate to do so for the protection of the health or 25
safety of any person or persons (whether or not a particular 26
person or persons) or if satisfied the action is otherwise in 27
the public interest-- 28
(a) by order suspend a registered health practitioner's or 29
student's registration; or 30
(b) by order impose on a registered health practitioner's 31
registration the conditions relating to the 32
practitioner's practising the health profession the 33
Council considers appropriate; or 34
(c) by order impose on a student's registration the 35
conditions the Council considers appropriate. 36
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(2) A suspension of a registered health practitioner's or 1
student's registration under subsection (1) has effect until 2
the first of the following happens-- 3
(a) the complaint about the practitioner or student is 4
disposed of; 5
(b) the suspension is ended by the Council. 6
(3) If a Council for a health profession is satisfied a health 7
practitioner or student registered in the profession has 8
contravened a critical compliance order or condition, the 9
Council must-- 10
(a) suspend the practitioner's or student's registration 11
until a complaint concerning the matter is dealt with 12
by the Tribunal for the health profession for which 13
the Council is established; and 14
(b) refer the matter to the Tribunal as a complaint. 15
(4) A Council for a health profession may take action under 16
this section-- 17
(a) whether or not a complaint has been made or 18
referred to the Council about the practitioner or 19
student; and 20
(b) whether or not proceedings in respect of a complaint 21
about the practitioner or student are before a 22
Committee or the Tribunal for the profession. 23
(5) Without limiting the conditions that may be imposed under 24
subsection (1)(b), a Council may impose a condition 25
requiring the registered health practitioner to undergo a 26
performance assessment, but the condition has no effect 27
unless the Commission agrees with the imposition of the 28
condition. 29
(6) A Council must give written notice of action taken under 30
this section to the registered health practitioner or student 31
concerned. 32
(7) If a Council delegates any function of the Council under 33
this section to a group of 2 or more persons, at least one of 34
those persons must be a person who is not a registered 35
health practitioner or student. 36
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150A Review of certain decisions [NSW] 1
(1) A registered health practitioner or student may apply to a 2
Council for the review of a decision of the Council under 3
section 150 to-- 4
(a) suspend the practitioner's or student's registration; 5
or 6
(b) impose conditions on the practitioner's or student's 7
registration or alter conditions imposed on the 8
practitioner's or student's registration. 9
(2) On receiving an application for review, a Council-- 10
(a) may refuse to reconsider its decision if, in the 11
Council's opinion, the application is frivolous or 12
vexatious; or 13
(b) must otherwise reconsider its decision, and in so 14
doing must consider any new evidence or material 15
submitted by the practitioner or student that the 16
Council reasonably considers is relevant. 17
(3) Following its reconsideration of a decision, a Council 18
may-- 19
(a) affirm or vary the decision; or 20
(b) set it aside and take any action the Council has the 21
power to take under section 150. 22
(4) A Council may vary or set aside a decision only if the 23
Council is satisfied there has been a change in the 24
registered health practitioner's or student's circumstances 25
that justifies the variation or setting aside of the decision. 26
150B Audio recording of meeting [NSW] 27
(1) A Council must cause an audio recording to be made of 28
any proceedings of the Council in connection with the 29
consideration by the Council of the exercise or proposed 30
exercise of a function under this Subdivision in respect of 31
a registered health practitioner or student-- 32
(a) during which the practitioner or student, or the 33
practitioner's or student's adviser, is present; or 34
(b) during which a person other than a member of the 35
Council or a staff member of the Council is present 36
and gives the Council oral information relevant to 37
the Council's consideration. 38
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(2) A recording under this section is not admissible in 1
evidence in-- 2
(a) civil or criminal proceedings in a court of law (other 3
than proceedings under this Law); or 4
(b) an inquest or inquiry under the Coroners Act 2009. 5
150C Power to remove or alter conditions or end suspension 6
[NSW] 7
(1) A Council may, at any time-- 8
(a) end a period of suspension imposed by the Council 9
under this Subdivision; or 10
(b) alter or remove conditions imposed under this 11
Subdivision. 12
(2) A Council may, at any time after taking action under 13
section 150 with respect to a registered health practitioner 14
or student (the original action), take any other action it 15
could have taken under that section at the time of taking 16
the original action. 17
(3) The Council must give written notice of the action it takes 18
under this section to the registered health practitioner or 19
student concerned. 20
150D Referral of matter to Commission [NSW] 21
(1) A Council must, as soon as practicable but no later than 22
7 days after taking action under section 150, refer the 23
matter to the Commission for investigation. 24
(2) The Council may (despite any other Act or law) give to the 25
Commission information obtained by the Council in 26
connection with the exercise of functions under 27
section 150 (including information, copies of documents 28
or evidence obtained under section 150J and a copy of a 29
recording made under section 150B) in respect of the 30
matter. 31
(3) The matter must be dealt with by the Commission as a 32
complaint made to the Commission against the registered 33
health practitioner or student concerned. 34
(4) The Commission must investigate the complaint or cause 35
it to be investigated and, as soon as practicable after it has 36
completed its investigation and if it considers it 37
appropriate to do so, refer the complaint to the Tribunal or 38
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a Committee for the health profession in which the health 1
practitioner or student is registered. 2
Note. See section 145D which provides that both Council and the 3
Commission have a duty to refer a complaint to the Tribunal if, at 4
any time, either of them is of the opinion that the complaint, if 5
substantiated, would provide grounds for the suspension or 6
cancellation of the registered health practitioner's or student's 7
registration. 8
(5) This section does not apply if a Council takes action 9
against a registered health practitioner or student under 10
section 150-- 11
(a) because, in the Council's opinion, the practitioner or 12
student has an impairment; or 13
(b) that is action of a kind referred to in section 150(5). 14
150E Special provision--performance assessment [NSW] 15
(1) If the Commission agrees with the proposed imposition by 16
a Council under section 150 of a condition on a registered 17
health practitioner's registration requiring the practitioner 18
to take part in a performance assessment, the matter giving 19
rise to the proposal-- 20
(a) must be dealt with by way of a performance 21
assessment; and 22
(b) may, if the Council and the Commission agree, also 23
be dealt with by the Commission as a complaint 24
against the practitioner. 25
(2) If the Commission does not agree with the imposition of 26
the condition, the matter must be dealt with by the 27
Commission as a complaint against the registered health 28
practitioner. 29
(3) The Council may (despite any other Act or law) provide to 30
the Commission any information obtained by the Council 31
in connection with the exercise of functions under section 32
150 (including any information, copies of documents or 33
evidence obtained under section 150J and a copy of any 34
recording made under section 150B) in respect of the 35
matter. 36
(4) If a matter is to be dealt with under this section by way of 37
a performance assessment, it may be so dealt with despite 38
anything to the contrary in section 154A. 39
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(5) If the matter is to be dealt with as a complaint, the Council 1
must refer the matter to the Commission and the matter 2
must be dealt with by the Commission as a complaint made 3
to the Commission against the practitioner concerned. 4
(6) The Commission must investigate the complaint or cause 5
it to be investigated and, as soon as practicable after the 6
investigation is completed, refer the complaint to a 7
Committee or the Tribunal for the health profession. 8
Note. See section 145D which provides that both Council and the 9
Commission have a duty to refer a complaint to the Tribunal if, at 10
any time, either of them is of the opinion the complaint, if 11
substantiated, would provide grounds for the suspension or 12
cancellation of the health practitioner's registration. 13
150F Special provisions--impairment [NSW] 14
(1) This section applies if a Council takes action against a 15
registered health practitioner or student under section 150 16
because, in the Council's opinion, the practitioner or 17
student has an impairment. 18
(2) The Council must, as soon as practicable after taking that 19
action and, in any event, within 7 days after taking that 20
action, notify the Commission that it has taken that action. 21
(3) The Council must consult with the Commission to see if 22
agreement can be reached as to whether the matter should 23
be-- 24
(a) dealt with as a complaint against the registered 25
health practitioner or student; or 26
(b) referred to an Impaired Registrants Panel. 27
(4) The matter is to be dealt with as a complaint against the 28
registered health practitioner or student only if, following 29
the consultation-- 30
(a) the Council and the Commission agree it should be 31
dealt with as a complaint; or 32
(b) either the Council or the Commission is of the 33
opinion the matter should be dealt with as a 34
complaint. 35
(5) If the matter is to be dealt with as a complaint, the Council 36
must refer the matter to the Commission and the matter 37
must be dealt with by the Commission as a complaint made 38
to the Commission against the registered health 39
practitioner or student. 40
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(6) The Commission must investigate the complaint or cause 1
it to be investigated and, as soon as practicable after the 2
investigation is completed, consult with the Council about 3
how the matter is to be dealt with, including, for example, 4
by referring the complaint to the Tribunal or a Committee 5
for the health profession in which the health practitioner or 6
student is registered. 7
Note. See section 145D which provides that both Council and the 8
Commission have a duty to refer a complaint to the Tribunal if, at 9
any time, either of them is of the opinion the complaint, if 10
substantiated, would provide grounds for the suspension or 11
cancellation of the health practitioner's or student's registration. 12
(7) If the matter is not to be dealt with as a complaint, the 13
Council must refer the matter to an Impaired Registrants 14
Panel. 15
150G Ending suspension [NSW] 16
When a suspension imposed under this Subdivision ends, 17
the person's rights and privileges as a registered health 18
practitioner or student in the health profession are revived, 19
subject to-- 20
(a) any other action taken by the Council for the 21
profession under this Subdivision; or 22
(b) any order of the Tribunal for the health profession 23
on a complaint referred to the Tribunal. 24
150H Duration of conditions--complaint matters [NSW] 25
(1) This section applies if-- 26
(a) a Council for a health profession imposes conditions 27
on the registration of a registered health practitioner 28
or student under section 150; and 29
(b) the matter is dealt with as a complaint against the 30
practitioner or student. 31
(2) The conditions imposed by the Council have effect until 32
the first of the following happens-- 33
(a) the complaint about the registered health 34
practitioner or student is disposed of; 35
(b) the conditions are removed by the Council. 36
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(3) This section-- 1
(a) does not prevent conditions being imposed under 2
another provision of this Law; and 3
(b) is subject to anything done by the Tribunal for the 4
health profession on an appeal. 5
150I Duration of conditions--impairment matters [NSW] 6
(1) This section applies if-- 7
(a) a Council for a health profession imposes conditions 8
on the registration of a registered health practitioner 9
or student under section 150; and 10
(b) the matter is referred to an Impaired Registrants 11
Panel. 12
(2) The conditions imposed by the Council have effect until 13
the first of the following happens-- 14
(a) if the matter is subsequently dealt with by the 15
Council as a complaint, the complaint about the 16
registered health practitioner or student is disposed 17
of; 18
(b) the conditions are removed by the Council. 19
(3) The Council is not required to alter or remove the 20
conditions merely because the registered health 21
practitioner or student agrees to conditions being imposed 22
on the practitioner's or student's registration in accordance 23
with the recommendations of an Impaired Registrants 24
Panel. 25
(4) If the registered health practitioner or student agrees to 26
conditions being imposed on the practitioner's or student's 27
registration in accordance with the recommendations of an 28
Impaired Registrants Panel, the practitioner or student 29
may, by written notice to the Council, ask for the 30
conditions imposed under this Subdivision to be altered or 31
removed. 32
(5) On receipt of the request, the Council must review the 33
matter, and may-- 34
(a) refuse to alter or remove the conditions; or 35
(b) alter or remove the conditions. 36
(6) The Council must give the registered health practitioner or 37
student written notice of its decision. 38
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(7) The Council may specify in the notice a period during 1
which a further request by the registered health practitioner 2
or student for the conditions to be altered or removed is not 3
permitted. 4
(8) The Council may reject a request that the conditions be 5
altered or removed if it is made during that period. 6
(9) This section-- 7
(a) does not prevent conditions being imposed under 8
another provision of this Law; and 9
(b) is subject to anything done by the Tribunal for the 10
health profession on an appeal. 11
150J Powers of Council to obtain information, records and 12
evidence [NSW] 13
(1) If, in a Council's opinion, a person is capable of giving 14
information, documents (including medical records) or 15
evidence that would assist the Council in making a 16
decision about action taken or proposed to be taken by the 17
Council under this Subdivision, the Council may, by 18
written notice given to the person, require the person to do 19
one or more of the following-- 20
(a) to give the Council, in writing signed by the person 21
(or, in the case of a corporation, by a competent 22
officer of the corporation), within the time and in the 23
way specified in the notice, information of which 24
the person has knowledge; 25
(b) to produce to the Council, in accordance with the 26
notice, documents; 27
(c) to appear before the Council or a member of staff of 28
the Council authorised by the President or Deputy 29
President of the Council at a specified reasonable 30
time and place and give evidence, either orally or in 31
writing, and produce documents. 32
(2) Information and documents may be given to a Council in 33
compliance with this section despite any other Act or law. 34
(3) A person who is subject to a requirement made under 35
subsection (1) must not-- 36
(a) without reasonable excuse, fail to comply with the 37
requirement; or 38
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(b) in purported compliance with the requirement, 1
provide information, documents or evidence 2
knowing the information, documents or evidence to 3
be false or misleading in a material particular. 4
Maximum penalty--20 penalty units. 5
Subdivision 8 Duty of courts etc to refer matters to 6
Executive Officer [NSW] 7
151 Referral of mental health matters to Executive Officer [NSW] 8
(1) If a registered health practitioner or student becomes a 9
mentally incapacitated person or is involuntarily admitted 10
to a mental health facility, the person prescribed by the 11
NSW regulations must cause notice of that fact to be given 12
to-- 13
(a) the Executive Officer of the Council for the health 14
profession in which the registered health 15
practitioner or student is registered; and 16
(b) the National Board for the health profession in 17
which the registered health practitioner or student is 18
registered. 19
(2) The notice, and the way in which the notice is given, must 20
comply with any requirements prescribed by the NSW 21
regulations. 22
151A Referral of matters by courts [NSW] 23
(1) A court in this jurisdiction before which a person is 24
convicted of an offence, or is made the subject of a 25
criminal finding for a sex or violence offence or a drug 26
related offence, must cause notice of the conviction or 27
criminal finding, and of any penalty imposed on the 28
person, to be given to the Executive Officer of a Council 29
for a health profession if the court has reasonable grounds 30
to believe that the person is or was, at the time the offence 31
was committed, registered in the health profession. 32
(2) If a coroner has reasonable grounds to believe the evidence 33
given or to be given in proceedings conducted or to be 34
conducted before the coroner may indicate a complaint 35
could be made about a person who is or was registered in 36
a health profession, the coroner may give a transcript of 37
that evidence to the Executive Officer of the Council for 38
the health profession. 39
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(3) If a notice or a transcript of evidence is given to the 1
Executive Officer under this section-- 2
(a) a complaint is taken to have been made to a Council 3
about the person to whom the notice or transcript 4
relates; and 5
(b) the Executive Officer must give written notice of the 6
notice or transcript of evidence to the National 7
Board for the health profession in which the person 8
is or was registered. 9
(4) The coroner is not the complainant in relation to a 10
complaint taken to have been made under subsection (3) 11
and sections 144D(1), 144E and 144F do not apply to the 12
complaint. 13
Division 4 Impairment [NSW] 14
152 Persons may notify Council of impairment matters 15
concerning practitioners or students [NSW] 16
A person may notify a Council of a matter the person 17
thinks indicates a registered health practitioner or student 18
has or may have an impairment. 19
152A Commission may refer impairment matters to Council [NSW] 20
(1) If the Commission becomes aware of a matter the 21
Commission considers indicates a registered health 22
practitioner or student has or may have an impairment, the 23
Commission may refer the matter to the Council for the 24
health profession in which the practitioner or student is 25
registered. 26
(2) This section does not affect the functions of a Council in 27
relation to a complaint made to the Commission or a matter 28
referred to the Commission for investigation. 29
152B Council may require registered health practitioner to 30
undergo examination [NSW] 31
(1) If a Council reasonably believes a registered health 32
practitioner has or may have an impairment, the Council 33
may, by written notice given to the practitioner, require the 34
practitioner to undergo an examination by another 35
registered health practitioner. 36
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(2) The notice must state-- 1
(a) that the registered health practitioner is required to 2
undergo an examination by a registered health 3
practitioner; and 4
(b) the name of the registered health practitioner who is 5
to conduct the examination; and 6
(c) if the examination is to be conducted at a particular 7
time and place, the time and the place at which the 8
examination is to be conducted; and 9
(d) that if the registered health practitioner fails to 10
undergo the examination as required by the notice, 11
the failure may constitute evidence that the 12
practitioner does not have sufficient physical and 13
mental capacity to practise the practitioner's health 14
profession. 15
(3) The fee charged by the registered health practitioner for 16
conducting the examination must be at the expense of the 17
Council. 18
(4) If the registered health practitioner fails, without 19
reasonable excuse, to comply with the notice, the failure is 20
evidence the practitioner does not have sufficient physical 21
and mental capacity to practise the practitioner's health 22
profession. 23
152C Council may require student to undergo examination [NSW] 24
(1) If a Council reasonably believes a student has or may have 25
an impairment, the Council may, by written notice given to 26
the student, require the student to undergo an examination 27
by a registered health practitioner. 28
(2) The notice must state-- 29
(a) that the student is required to undergo an 30
examination by a registered health practitioner; and 31
(b) the name of the registered health practitioner who is 32
to conduct the examination; and 33
(c) if the examination is to be conducted at a particular 34
time and place, the time and the place at which the 35
examination is to be conducted; and 36
(d) that if the student fails to undergo the examination 37
as required by the notice the Council may suspend 38
the student's registration until the student undergoes 39
the examination. 40
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(3) The fee charged by the registered health practitioner for 1
conducting the examination is at the expense of the 2
Council. 3
(4) If the student fails, without reasonable excuse, to comply 4
with the notice, the Council may suspend the student's 5
registration until the student undergoes the examination. 6
(5) The suspension takes effect when written notice of it is 7
served on the educational provider with which the student 8
is undertaking the approved program of study or that 9
arranged the clinical training for the student. 10
152D Referral of impairment matters concerning practitioners or 11
students [NSW] 12
(1) A Council may decide to refer a matter to an Impaired 13
Registrants Panel if the Council considers the matter 14
indicates a registered health practitioner or student has or 15
may have an impairment. 16
(2) Subsection (1) applies whether or not the matter is the 17
subject of a complaint to the Council. 18
(3) If the Council is aware a complaint has been made to the 19
Commission about a registered health practitioner or 20
student who is the subject of a referral to an Impaired 21
Registrants Panel, the Council must notify the 22
Commission of the referral. 23
152E Panel must inquire into matters referred to it [NSW] 24
(1) An Impaired Registrants Panel must inquire into any 25
matter referred to it and may obtain reports and other 26
information concerning the matter from any source it 27
considers appropriate. 28
(2) The Panel may ask the registered health practitioner or 29
student who is the subject of the referral, to attend before 30
the Panel for the purpose of enabling the Panel to obtain 31
information on the matter and make an assessment. 32
152F Panel not to take action while Commission investigating 33
[NSW] 34
An Impaired Registrants Panel is not to investigate or take 35
any other action in relation to a matter if the Panel is aware 36
the matter is the subject of an investigation by the 37
Commission, while the investigation is being conducted. 38
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152G Council to give notice of proposed inquiry [NSW] 1
(1) A Council must give notice to a registered health 2
practitioner or student of any proposed inquiry by an 3
Impaired Registrants Panel concerning the practitioner or 4
student. 5
(2) The notice must include sufficient details of the matters to 6
which the inquiry is to relate. 7
152H Practitioner or student entitled to make representations 8
[NSW] 9
(1) A registered health practitioner or student who is the 10
subject of an inquiry by an Impaired Registrants Panel is 11
entitled to make oral or written representations to the Panel 12
about the matters being or to be the subject of the inquiry. 13
(2) This section does not prevent the Panel from conducting an 14
inquiry in the absence of the registered health practitioner 15
or student to whom it relates, if the practitioner or student 16
has been given notice of the inquiry. 17
152I Assessment, report and recommendations by Panel [NSW] 18
(1) An Impaired Registrants Panel must make an assessment 19
about a matter referred to it, based on the results of its 20
inquiry into the matter. 21
(2) On the basis of its assessment, the Panel may do any one 22
or more of the following-- 23
(a) counsel the practitioner or student concerned or 24
recommend the practitioner or student undertake 25
specified counselling; 26
(b) recommend the practitioner or student concerned to 27
agree to conditions being placed on the 28
practitioner's or student's registration or to having 29
the practitioner's or student's registration 30
suspended for a specified period; 31
(c) make recommendations to the Council that referred 32
the matter to it as to action that the Panel considers 33
should be taken in relation to the matter. 34
(3) The Panel must give a written report about the matter to the 35
Council that referred the matter to it. 36
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(4) The report must detail-- 1
(a) the results of the Panel's inquiries and assessment in 2
respect of the referral; and 3
(b) any action taken by the Panel in relation to it. 4
152J Voluntary suspension or conditions on registration [NSW] 5
A Council may impose conditions on a registered health 6
practitioner's or student's registration, or suspend the 7
practitioner's or student's registration, if-- 8
(a) an Impaired Registrants Panel has recommended the 9
Council do so; and 10
(b) the Council is satisfied the practitioner or student 11
has voluntarily agreed to the conditions. 12
152K Review of conditions [NSW] 13
(1) A registered health practitioner or student who agrees to 14
conditions being imposed on the practitioner's or student's 15
registration, or to have the registration suspended, may by 16
written notice to the Council ask-- 17
(a) that the conditions be altered or removed; or 18
(b) that the suspension be terminated or shortened. 19
(2) On receipt of the request, the Council must require an 20
Impaired Registrants Panel to review the matter and give a 21
written report to the Council on the results of its review. 22
(3) If the Panel recommends that the Council refuse to alter or 23
remove any of the conditions, or refuse to terminate or 24
shorten the suspension, the Council may do so. 25
(4) The Council must give the health practitioner or student 26
written notice of its decision. 27
(5) The Council may specify in the notice a period in which a 28
further request by the practitioner or student under this 29
section is not permitted. 30
(6) The Council may refuse a request that the conditions be 31
altered or removed, or that the suspension be terminated or 32
shortened, if it is made during that period. 33
152L Some matters to be dealt with as complaints [NSW] 34
(1) If an Impaired Registrants Panel recommends that a 35
registered health practitioner or student agree to conditions 36
being imposed on the practitioner's or student's 37
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registration or to having the practitioner's or student's 1
registration suspended and the practitioner or student fails 2
to agree with the recommendation, the Council must deal 3
with the matter that was the subject of the referral to the 4
Panel as a complaint against the practitioner or student. 5
(2) If the Panel recommends that a matter referred to it be dealt 6
with as a complaint, the Council must deal with the matter 7
as a complaint against the health practitioner or student 8
concerned. 9
(3) In any other case that the Council thinks it appropriate to 10
do so, the Council may treat a matter that has been referred 11
to an Impaired Registrants Panel as grounds for a 12
complaint under this Law and may deal with the matter 13
accordingly. 14
152M Prohibition or conditions on student [NSW] 15
(1) An Impaired Registrants Panel that investigates a matter 16
about a student may recommend to the Council that 17
referred the matter to the Panel that it is in the public 18
interest for the Council-- 19
(a) to suspend the student's registration; or 20
(b) to impose specified conditions on the student's 21
registration. 22
(2) If the Council is satisfied it is in the public interest to do so, 23
the Council may by written order take the action 24
recommended by the Panel. 25
(3) The order takes effect when notice of it is served on the 26
education provider with which the student is undertaking 27
the approved program of study or who arranged clinical 28
training for the student. 29
(4) An order remains in force for the period, not more than 30
2 years, specified in the order unless it is sooner revoked 31
by the Council. 32
(5) The Council may issue further orders in respect of a 33
student but only on the recommendation of an Impaired 34
Registrants Panel. 35
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Division 5 Performance assessment [NSW] 1
Subdivision 1 Preliminary [NSW] 2
153 Meaning of "professional performance" [NSW] 3
For the purposes of this Division, a reference to the 4
professional performance of a registered health 5
practitioner is a reference to the knowledge, skill or 6
judgment possessed and applied by the practitioner in the 7
practice of the practitioner's health profession. 8
153A Meaning of "unsatisfactory" in relation to professional 9
performance [NSW] 10
For the purposes of this Division, the professional 11
performance of a registered health practitioner is 12
unsatisfactory if it is below the standard reasonably 13
expected of a practitioner of an equivalent level of training 14
or experience. 15
Subdivision 2 Council may obtain performance 16
assessment [NSW] 17
154 Power to obtain assessment [NSW] 18
(1) A Council may decide to have the professional 19
performance of a registered health practitioner assessed 20
under this Division if a matter comes to its attention that 21
indicates the professional performance of the registered 22
health practitioner, or any aspect of the practitioner's 23
professional performance, is or may be unsatisfactory. 24
(2) Subsection (1) is not limited to matters that are the subject 25
of a complaint or notification to the Council and may 26
include a pattern of complaints about a registered health 27
practitioner's practice. 28
154A Serious matters not to be referred for assessment [NSW] 29
(1) A Council must not have the professional performance of 30
a registered health practitioner assessed if a matter giving 31
rise to the proposed assessment-- 32
(a) raises a significant issue of public health or safety 33
that, in the Council's opinion, requires investigation 34
by the Commission; or 35
(b) raises a prima facie case of professional misconduct 36
by the registered health practitioner, or 37
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unsatisfactory professional conduct by the 1
registered health practitioner. 2
(2) The matter must be dealt with as a complaint. 3
154B Persons may notify Council of professional performance 4
matters [NSW] 5
(1) A person may notify the Council for a health profession of 6
a matter the person thinks indicates the professional 7
performance of a health practitioner registered in the 8
profession is unsatisfactory. 9
(2) The Council must not have the professional performance 10
of the practitioner assessed on the basis of a notification if 11
it is made anonymously. 12
154C Commission may refer professional performance matters to 13
Council [NSW] 14
(1) If the Commission becomes aware of a matter the 15
Commission considers indicates the professional 16
performance of a health practitioner registered in a health 17
profession is unsatisfactory, the Commission may refer the 18
matter to a Council for the profession. 19
(2) This section does not affect the functions of a Council in 20
relation to a complaint made to the Commission or a matter 21
referred to the Commission for investigation. 22
Subdivision 3 Assessment of professional 23
performance by assessor [NSW] 24
155 How Council obtains an assessment [NSW] 25
A Council has the professional performance of a registered 26
health practitioner assessed by having one or more 27
assessors conduct an assessment of the practitioner's 28
professional performance, or of any particular aspect or 29
aspects of the practitioner's professional performance. 30
155A Information to be given to health practitioner [NSW] 31
(1) As soon as practicable after deciding to have the 32
professional performance of a registered health 33
practitioner assessed, a Council must give the practitioner 34
written notice of the decision. 35
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(2) The notice must include the following-- 1
(a) details of the matter that gave rise to the assessment; 2
(b) information about how the performance assessment 3
process works. 4
155B Report and recommendations by assessor [NSW] 5
(1) An assessor who is required by a Council to conduct a 6
performance assessment in relation to a registered health 7
practitioner must-- 8
(a) conduct an assessment of the practitioner's 9
professional performance; and 10
(b) give a written report about the assessment to the 11
Council. 12
(2) The report must include the recommendations the assessor 13
considers appropriate. 14
(3) If more than one assessor is appointed to conduct a 15
performance assessment in relation to a registered health 16
practitioner, the report may be made jointly or separately, 17
but in any case must be made in the way directed by the 18
Council. 19
155C Action that may be taken by Council [NSW] 20
(1) After receiving the report of an assessor about a 21
performance assessment, a Council may-- 22
(a) decide that no further action should be taken in 23
respect of the registered health practitioner the 24
subject of the report; or 25
(b) require a Performance Review Panel to conduct a 26
performance review in relation to the practitioner; or 27
(c) make a complaint against the practitioner; or 28
(d) refer the matter to an Impaired Registrants Panel; or 29
(e) counsel the practitioner or direct the practitioner to 30
attend counselling. 31
(2) A Council must make a complaint against the practitioner 32
concerned if the assessment-- 33
(a) raises a significant issue of public health or safety 34
that, in the opinion of the Council, requires 35
investigation by the Commission; or 36
(b) raises a prima facie case of professional misconduct 37
by a registered health practitioner, or unsatisfactory 38
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professional conduct by a registered health 1
practitioner. 2
(3) This section does not limit a Council's powers under 3
section 150. 4
Subdivision 4 Performance review by Performance 5
Review Panel [NSW] 6
156 Panel to conduct performance review [NSW] 7
(1) If required by a Council, a Performance Review Panel 8
must conduct a review of the professional performance of 9
a registered health practitioner. 10
(2) The chairperson of the Panel must inform the registered 11
health practitioner in writing that a performance review 12
will be conducted not less than 14 days before the time and 13
place appointed for the performance review. 14
156A Panel not to take action while Commission investigating 15
[NSW] 16
(1) The Performance Review Panel is not to take any action in 17
relation to the registered health practitioner if the Panel 18
becomes aware the practitioner is the subject of a 19
complaint that is being investigated by the Commission. 20
(2) Subsection (1) does not apply if the Commission agrees to 21
the continuation of the performance review. 22
156B Panel must refer certain matters to Council [NSW] 23
(1) The Performance Review Panel must terminate the 24
performance review if, before or during the performance 25
review, the Panel forms the opinion that-- 26
(a) the performance review raises a significant issue of 27
public health or safety that, in the Panel's opinion, 28
requires investigation by the Commission; or 29
(b) the performance review raises a prima facie case of 30
professional misconduct by the registered health 31
practitioner, or unsatisfactory professional conduct 32
by the registered health practitioner. 33
(2) If the Panel terminates the performance review, it must 34
refer the issue or case back to the Council with a 35
recommendation that a complaint be made against the 36
registered health practitioner. 37
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(3) The Council must deal with the matter in accordance with 1
the recommendation. 2
156C Actions by Panel [NSW] 3
(1) At the completion of the performance review, the 4
Performance Review Panel may make the 5
recommendations to the Council about the registered 6
health practitioner the Panel considers appropriate. 7
(2) Without limiting subsection (1), if the Panel finds the 8
professional performance of the registered health 9
practitioner, or a particular aspect of the professional 10
performance of the practitioner, is unsatisfactory, the 11
Panel may do any one or more of the following things-- 12
(a) impose the conditions, relating to the practitioner's 13
practise of the health profession, it considers 14
appropriate on the practitioner's registration; 15
(b) order the practitioner to complete an educational 16
course specified by the Panel; 17
(c) order the practitioner to report on the practitioner's 18
practise of the health profession at the times, in the 19
way and to the persons specified by the Panel; 20
(d) order the practitioner to seek and take advice, in 21
relation to the management of the practitioner's 22
practice, from the persons specified by the Panel. 23
(3) The Panel must recommend to the Council that a 24
complaint be made against the registered health 25
practitioner if the Panel finds the matter-- 26
(a) raises a significant issue of public health or safety 27
that requires investigation by the Commission; or 28
(b) raises a prima facie case of professional misconduct 29
by the practitioner, or unsatisfactory professional 30
conduct by the health practitioner. 31
(4) If the Panel makes a recommendation that a complaint be 32
made against the registered health practitioner, the Council 33
must act in accordance with the recommendation. 34
(5) In any other case that the Council thinks it appropriate to 35
do so, the Council may make a complaint in respect of a 36
matter that has been considered by a Performance Review 37
Panel, after consulting with the Commission. 38
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156D Re-assessment [NSW] 1
(1) Without limiting section 156C, a Performance Review 2
Panel may direct that a registered health practitioner's 3
professional performance be re-assessed at a future date. 4
(2) A Council must have one or more assessors conduct that 5
assessment, when it is required, and report to the Council 6
on the assessment. 7
(3) The Council may take any action in respect of that 8
assessment that is available to the Council under 9
section 155C, including requiring a Performance Review 10
Panel to conduct a further performance review in relation 11
to the practitioner. 12
156E Decision [NSW] 13
(1) A Performance Review Panel must give a written 14
statement of a decision on a performance review of a 15
registered health practitioner to-- 16
(a) the registered health practitioner; and 17
(b) the Council. 18
(2) The statement of the decision must-- 19
(a) include reasons for the decision; and 20
(b) be given to the registered health practitioner and the 21
Council within one month after the decision is 22
made. 23
(3) The Council may provide a copy of the statement of 24
decision to the persons the Council or Panel thinks fit. 25
156F Statement need not contain confidential information [NSW] 26
(1) A Performance Review Panel is not required to include 27
confidential information in the statement of a decision. 28
(2) If the statement would be false or misleading if it did not 29
include the confidential information, the Panel is not 30
required to provide the statement. 31
(3) If confidential information is not included in the statement 32
given to a person or the statement is not given to a person 33
because of subsection (2), the Panel must give a 34
confidential information notice to the person. 35
(4) A confidential information notice must be given within 36
one month after the decision is made. 37
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(5) This section does not affect the power of a court to make 1
an order for the discovery of documents or to require the 2
giving of evidence or the production of documents to a 3
court, subject to the provisions of this Law relating to 4
protected reports. 5
Subdivision 5 Miscellaneous [NSW] 6
157 Monitoring by Council [NSW] 7
(1) Following a performance review, the Council must-- 8
(a) monitor compliance with any decisions or orders 9
made by the Performance Review Panel; and 10
(b) from time to time, evaluate the effectiveness of 11
those orders in improving the professional 12
performance of the registered health practitioner 13
concerned to a standard that is commensurate with 14
other practitioners of an equivalent level of training 15
or experience. 16
(2) The Council may take any action under this Law in respect 17
of a registered health practitioner that it considers 18
appropriate as a result of the exercise of its functions under 19
subsection (1). 20
Division 6 Appeals to Tribunal [NSW] 21
Subdivision 1 Appeals against actions of 22
Committee [NSW] 23
158 Appeals against decisions of Committee [NSW] 24
(1) If a complaint about a registered health practitioner or 25
student is referred to a Committee, the practitioner or 26
student or the complainant, may appeal against any of the 27
following to the Tribunal for the health profession-- 28
(a) a finding of the Committee; 29
(b) the exercise of a power by the Committee under 30
Subdivision 3 of Division 3; 31
(c) the exercise by the Chairperson or a Deputy 32
Chairperson of the Tribunal of a power under that 33
Subdivision. 34
(2) The appeal is to be dealt with by way of rehearing and 35
fresh evidence, or evidence in addition to or in substitution 36
for the evidence received at the inquiry, may be given. 37
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(3) The Tribunal may-- 1
(a) dismiss the appeal; or 2
(b) make any finding or exercise any power the 3
Tribunal could have made or exercised if the 4
complaint had been originally referred to the 5
Tribunal. 6
(4) An appeal under this section does not affect any finding or 7
exercise of power with respect to which it has been made 8
until the Tribunal makes an order on the appeal. 9
158A Appeals on points of law [NSW] 10
(1) A registered health practitioner or student about whom a 11
complaint is referred to a Committee or the complainant 12
may appeal with respect to a point of law to the 13
Chairperson of the Tribunal or a Deputy Chairperson 14
nominated by the Chairperson. 15
(2) An appeal may be made-- 16
(a) during an inquiry--within 28 days after the date of 17
the Committee's decision on the point of law which 18
is the subject of the appeal; or 19
(b) before the commencement of an inquiry but after the 20
date of giving notice of the inquiry. 21
(3) If an inquiry conducted by a Committee has not been 22
completed when an appeal is made, the inquiry must not 23
continue until the appeal has been disposed of. 24
(4) The Committee must not make any decision that is 25
inconsistent with the Chairperson's or Deputy 26
Chairperson's determination with respect to the point of 27
law. 28
Subdivision 2 Appeal against actions by Council 29
[NSW] 30
159 Right of appeal [NSW] 31
(1) A person may appeal to the Tribunal for a health 32
profession-- 33
(a) against a suspension by the Council for the health 34
profession under Division 3 or a refusal to end a 35
suspension; or 36
(b) against conditions imposed by the Council for the 37
health profession on the person's registration under 38
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Division 3 or 4 or the alteration of the conditions by 1
the Council; or 2
(c) against a refusal by the Council for the health 3
profession to alter or remove conditions imposed by 4
the Council under Division 3 in accordance with a 5
request made by the person under section 150I; or 6
(d) against a decision by the Council for the health 7
profession to give a direction or make an order in 8
relation to the person under section 148E; or 9
(e) against a refusal by the Council for the health 10
profession to alter or remove conditions imposed on 11
the person's registration, or to end a suspension, 12
imposed under Division 4 in accordance with a 13
request made by the person under section 152K. 14
(2) An appeal may not be made in respect of a request by a 15
person that is rejected by a Council because it was made 16
during a period in which the request was not permitted 17
under section 150I or 152K. 18
159A Appeal by student against order [NSW] 19
(1) A student may appeal to the Tribunal for a health 20
profession against a decision of the Council for the health 21
profession to issue an order-- 22
(a) suspending the student's registration; or 23
(b) imposing conditions on the student's registration. 24
(2) The appeal must be lodged with the Executive Officer who 25
must refer it to the Tribunal. 26
(3) The appeal must be made within 28 days, or the longer 27
period as the Executive Officer may allow in a particular 28
case, after notice of the Council's decision is given to the 29
student. 30
(4) On an appeal, the Tribunal may by order terminate, vary or 31
confirm the order, as it thinks proper. 32
159B Appeal on point of law [NSW] 33
(1) A registered health practitioner or student who is the 34
subject of action taken by the Council for the health 35
profession under section 150, 150A or 150C may appeal, 36
with respect to a point of law, to the Chairperson or a 37
Deputy Chairperson of the Tribunal for the health 38
profession. 39
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(2) Subsection (1) does not limit a right of appeal under 1
section 159. 2
(3) The Council must not make a decision that is inconsistent 3
with the Tribunal's decision with respect to a point of law 4
under this section. 5
(4) A registered health practitioner or student may not make 6
an application to the Supreme Court for judicial review of 7
action taken by a Council under section 150, 150A or 8
150C, being an application alleging any error of law, until 9
an appeal under this section in respect of the point of law 10
concerned has been made and disposed of. 11
159C Tribunal's powers on appeal [NSW] 12
(1) On an appeal, a Tribunal may by order terminate, vary or 13
confirm a period of suspension or revoke, vary or confirm 14
the conditions, as it thinks proper. 15
(2) A Tribunal's order must not cause a suspension or 16
conditions imposed by a Council to have effect beyond the 17
day on which a related complaint about the person is 18
disposed of. 19
Subdivision 3 Appeal against actions of 20
Performance Review Panel [NSW] 21
160 Appeals against decisions of Panel [NSW] 22
(1) A registered health practitioner who is the subject of a 23
performance review may appeal to the Tribunal against a 24
decision of the Performance Review Panel or any order or 25
direction made by the Panel under Division 5. 26
(2) The appeal is to be dealt with by way of rehearing and 27
fresh evidence, or evidence in addition to or in substitution 28
for the evidence received at the performance review, may 29
be given. 30
(3) The Tribunal may, as it thinks appropriate-- 31
(a) dismiss the appeal; or 32
(b) make any finding or exercise any power or 33
combination of powers that the Performance 34
Review Panel could have made or exercised. 35
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160A Appeals on points of law [NSW] 1
(1) A registered health practitioner who is the subject of a 2
performance review may appeal with respect to a point of 3
law to the Tribunal for the health profession in which the 4
practitioner is registered. 5
(2) An appeal may be made-- 6
(a) during a performance review--within 28 days after 7
the date of the Performance Review Panel's 8
decision on the point of law that is the subject of the 9
appeal; or 10
(b) before the commencement of a performance review 11
but after the date the practitioner is informed of the 12
performance review. 13
(3) If a performance review has not been completed when an 14
appeal is made, the Performance Review Panel must not 15
continue with the performance review until the appeal has 16
been disposed of. 17
(4) The Performance Review Panel must not make any 18
decision that is inconsistent with the Tribunal's 19
determination with respect to the point of law. 20
Subdivision 4 Miscellaneous [NSW] 21
161 When appeal must be made [NSW] 22
An appeal under this Division or Division 13, other than an 23
appeal on a point of law, must be made-- 24
(a) within 28 days after the day the person making the 25
appeal was given notice of the decision being 26
appealed against; or 27
(b) within the longer period allowed by the Executive 28
Officer. 29
161A Lodgment of appeal [NSW] 30
The appeal must be lodged with the Executive Officer who 31
must refer it to the Tribunal. 32
161B Appeal does not stay decision [NSW] 33
An appeal under this Division does not operate to stay the 34
effect of the decision being appealed against unless the 35
Chairperson or a Deputy Chairperson of the Tribunal 36
otherwise orders. 37
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Division 7 Appeals to Supreme Court [NSW] 1
162 Appeal against Tribunal's decisions and actions [NSW] 2
(1) A person about whom a complaint is referred to the 3
Tribunal, or the complainant, may appeal to the Supreme 4
Court against-- 5
(a) a decision of the Tribunal with respect to a point of 6
law; or 7
(b) the exercise of a power by the Tribunal under 8
Subdivision 6 of Division 3. 9
(2) A person who is a party to an appeal to the Tribunal against 10
the exercise by the Chairperson or a Deputy Chairperson 11
of the Tribunal of any power under Subdivision 6 of 12
Division 3 (including the complainant in respect of the 13
matter), may appeal to the Supreme Court against-- 14
(a) a decision of the Tribunal with respect to a point of 15
law; or 16
(b) the exercise of any power by the Tribunal under 17
section 158. 18
(3) An appeal under this section must be made within 28 days 19
(or the longer period allowed by the Supreme Court in a 20
particular case) after the handing down of the decision or 21
the exercise of power against which the appeal is made. 22
(4) The Supreme Court may stay any order made by the 23
Tribunal, on the terms the Court sees fit, until the time the 24
Court decides the appeal. 25
162A Powers of Supreme Court on appeal [NSW] 26
(1) In deciding the appeal, the Supreme Court may-- 27
(a) dismiss the appeal; or 28
(b) make the order it thinks proper having regard to the 29
merits of the case and the public welfare, and in 30
doing so may exercise any one or more of the 31
powers of the Tribunal under this Law. 32
(2) If the Supreme Court dismisses an appeal against an order 33
of the Tribunal, the Court may by order direct that the 34
Tribunal's order is to be taken to include provision that an 35
application for its review under Subdivision 3 of 36
Division 6 may not be made until after a specified time. 37
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Division 8 Reviews [NSW] 1
163 Appropriate review body [NSW] 2
(1) For the purposes of this Division, the appropriate review 3
body is-- 4
(a) if the order being reviewed provides that it may be 5
reviewed by a Council, the Council; or 6
(b) if the Chairperson of the Tribunal decides, on 7
application by the person the subject of the review, 8
that a National Board is the appropriate review 9
body, the National Board; or 10
(c) otherwise, the Tribunal. 11
(2) An application for review by a person must be lodged with 12
the Executive Officer of the Council for the health 13
profession in which the person is or was registered. 14
(3) The Executive Officer must refer the application to the 15
appropriate review body. 16
163A Right of review [NSW] 17
(1) A person may apply to the appropriate review body for a 18
review of-- 19
(a) a prohibition order made in relation to the person; or 20
(b) a relevant order made in relation to the person. 21
(2) A person may also apply to the appropriate review body 22
for a review of an order made under this Division. 23
(3) An application for review of an order may not be made-- 24
(a) while the terms of the order provide that an 25
application for review may not be made; or 26
(b) while an appeal to a Tribunal or the Supreme Court 27
in respect of the same matter is pending. 28
(4) In this section-- 29
decision-making entity means the following-- 30
(a) a Committee; 31
(b) a Performance Review Panel; 32
(c) the Chairperson or Deputy Chairperson of a 33
Tribunal; 34
(d) a Tribunal; 35
(e) the Supreme Court. 36
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relevant order, in relation to a person, means any of the 1
following orders made by a decision-making entity-- 2
(a) an order that the person's registration as a registered 3
health practitioner or student is suspended; or 4
(b) an order that the person's registration be cancelled 5
or that the person is disqualified from being 6
registered in a particular health profession; or 7
(c) an order that conditions be imposed on the person's 8
registration in a health profession. 9
163B Powers on review [NSW] 10
(1) The appropriate review body must conduct an inquiry into 11
an application for review and may then do any of the 12
following-- 13
(a) dismiss the application; 14
(b) make an order ending or shortening the period of the 15
suspension concerned; 16
(c) make a reinstatement order; 17
(d) make an order altering or removing the conditions to 18
which the person's registration is subject, including 19
by imposing new conditions; 20
(e) make an order-- 21
(i) ending or shortening the period of a 22
prohibition order; or 23
(ii) altering or removing the conditions to which 24
the person is subject under a prohibition 25
order, including by imposing new conditions. 26
(2) If the appropriate review body makes an order altering a 27
critical compliance condition, or removing a critical 28
compliance condition and imposing a new condition, the 29
altered condition or new condition is a critical compliance 30
condition unless the body orders otherwise. 31
(3) A reinstatement order is an order that the person be 32
registered subject to the same conditions and limitations (if 33
any) to which the person's registration was subject 34
immediately before the person ceased to be registered. 35
(4) The appropriate review body may also impose conditions 36
on the person's registration or alter the conditions to which 37
the person's registration is to be subject under the 38
reinstatement order. 39
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(5) The order on a review under this section may also provide 1
that the order is not to be reviewed under this Division 2
until after a specified time. 3
163C Inquiry into review application [NSW] 4
(1) A review under this Division is a review to determine the 5
appropriateness, at the time of the review, of the order 6
concerned. 7
(2) The review is not to review the decision to make the order, 8
or any findings made in connection with the making of that 9
decision. 10
(3) In addition to any other matter the review may take into 11
account, the review must take into account any complaint 12
made or notified to a Council or a National Board, or a 13
former Board under a repealed Act, about the person, 14
whether the complaint was made or notified before or after 15
the making of the order that is the subject of the review and 16
whether or not the complaint was referred under 17
Subdivision 2 of Division 3 or any other action was taken 18
on the complaint. 19
Division 9 Enforcement powers [NSW] 20
164 Appointment of authorised persons [NSW] 21
(1) The Director-General may appoint a person as an 22
authorised person for the purposes of this Division. 23
(2) The Director-General must provide an authorised person 24
with a certificate of authority. 25
164A Powers of authorised persons [NSW] 26
(1) An authorised person may exercise the powers conferred 27
by this section for the purpose of-- 28
(a) ascertaining whether the NSW provisions or the 29
NSW regulations are being complied with or have 30
been contravened; or 31
(b) investigating a complaint made or intended to be 32
made under Division 3. 33
(2) An authorised person may, with the approval of the 34
Council for a health profession, given on the particular 35
occasion, enter and inspect at any reasonable time 36
premises that the authorised person believes on reasonable 37
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grounds are being used for the carrying on of the practice 1
of the health profession. 2
(3) While on premises entered under this section 3
or under the authority of a search warrant under section 4
164B, an authorised person may do any one or more of the 5
following-- 6
(a) require any person on the premises to produce any 7
records in the possession or under the control of that 8
person relating to the carrying on of the practice of 9
the health profession; 10
(b) inspect, take copies of, or extracts or notes from, the 11
records and, if the authorised person considers it 12
necessary to do so for the purpose of obtaining 13
evidence, seize the records; 14
(c) examine and inspect any apparatus or equipment 15
used or apparently used in the course of the practice 16
of the health profession; 17
(d) take photographs, films and audio, video and other 18
recordings as the authorised person considers 19
necessary; 20
(e) require any person on the premises to answer 21
questions or otherwise furnish information in 22
relation to the carrying on of the practice of a health 23
profession or a contravention of a NSW provision or 24
the NSW regulations; 25
(f) require the owner or occupier of the premises to give 26
the authorised person the assistance and facilities as 27
is or are reasonably necessary to enable the 28
authorised person to exercise the functions of an 29
authorised person under this section. 30
(4) An authorised person is not entitled to enter a part of 31
premises used for residential purposes, except-- 32
(a) with the consent of the occupier of the part; or 33
(b) under the authority of a search warrant. 34
(5) An authorised person must, when exercising on any 35
premises any function of the authorised person under this 36
section, produce the authorised person's certificate of 37
authority to any person apparently in charge of the 38
premises who requests its production. 39
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(6) If an authorised person seizes any records under this 1
section, they may be kept by the authorised person until the 2
completion of any proceedings (including proceedings on 3
appeal) in which they may be evidence but only if the 4
person from whom the records were seized is given, within 5
a reasonable time after the seizure, a copy of the records 6
certified by an authorised person as a true copy. 7
(7) A copy of a record given under subsection (6) is, as 8
evidence, of equal validity to the record of which it is 9
certified to be a copy. 10
164B Search warrants [NSW] 11
(1) A person appointed under this Division as an authorised 12
person may apply to an authorised officer for the issue of 13
a search warrant for premises if the authorised person 14
believes on reasonable grounds-- 15
(a) a NSW provision or the NSW regulations is being 16
contravened on the premises; or 17
(b) there is on the premises evidence of a contravention 18
of a provision of this Law or the NSW regulations. 19
(2) The authorised officer may, if satisfied there are 20
reasonable grounds for doing so, issue a search warrant 21
authorising an authorised person named in the warrant-- 22
(a) to enter and inspect the premises; and 23
(b) to exercise on the premises any function of an 24
authorised person under section 164A. 25
(3) Division 4 of Part 5 of the Law Enforcement (Powers and 26
Responsibilities) Act 2002 applies to a search warrant 27
issued under this section. 28
(4) In this section-- 29
authorised officer has the same meaning as it has in the 30
Law Enforcement (Powers and Responsibilities) Act 2002. 31
164C Offences [NSW] 32
(1) A person must not-- 33
(a) prevent an authorised person from exercising any 34
function conferred or imposed on the authorised 35
person under this Division; or 36
(b) hinder or obstruct an authorised person in the 37
exercise of a function conferred or imposed on the 38
authorised person under this Division; or 39
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(c) without reasonable excuse, refuse or fail to comply 1
with any requirement made or to answer any 2
question asked by an authorised person under this 3
Division; or 4
(d) give an authorised person information knowing it to 5
be false or misleading in a material particular. 6
Maximum penalty-- 7
(a) for an offence under paragraph (a) or (b)-- 8
50 penalty units; or 9
(b) for an offence under paragraph (c) or (d)-- 10
20 penalty units. 11
(2) It is a sufficient defence to a prosecution for the offence 12
under paragraph (c) of failing to answer a question asked 13
by an authorised person if the defendant satisfies the court 14
that the defendant did not know, and could not with 15
reasonable diligence have ascertained, the answer to the 16
question. 17
164D Self-incrimination [NSW] 18
(1) A person is not excused from answering a question asked 19
by an authorised person under this Division on the ground 20
the answer might tend to incriminate the person. 21
(2) However, information furnished by an individual in 22
answering a question asked by an authorised person under 23
this Division is not admissible against the individual in 24
criminal proceedings (except proceedings for an offence 25
against section 164C) if-- 26
(a) the individual objected at the time of doing so on the 27
ground it might incriminate the individual; or 28
(b) the individual was not warned on that occasion that 29
the individual may object to furnishing the 30
information on the ground it might incriminate the 31
individual. 32
(3) A person is not excused from producing a record to an 33
authorised person under this Division on the ground the 34
record might tend to incriminate the person, and the record 35
is not inadmissible in evidence against the person in 36
criminal proceedings on the ground the record might 37
incriminate the person. 38
Note. Section 187 of the Evidence Act 1995 provides that the 39
privilege against self-incrimination does not apply to bodies 40
corporate. 41
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164E Offence of impersonating authorised person [NSW] 1
A person must not-- 2
(a) impersonate an authorised person; or 3
(b) falsely represent the person is an authorised person. 4
Maximum penalty--50 penalty units. 5
164F Authorised persons to produce certificate of authority 6
[NSW] 7
An authorised person must, on exercising in a place a 8
function of the authorised person under this Division, 9
produce the person's certificate of authority to any person 10
apparently in charge of the place who requests its 11
production. 12
164G Council may require further information from practitioner or 13
student [NSW] 14
(1) A Council for a health profession may, by written notice 15
given to a registered health practitioner or student 16
registered in the profession, require the practitioner or 17
student to give to the Council, within a reasonable period 18
specified in the notice, further information about any 19
complaint or other matter concerning the practitioner or 20
student. 21
(2) A registered health practitioner or student must not-- 22
(a) without reasonable excuse, fail to comply with a 23
requirement under this section; or 24
(b) in purported compliance with a requirement under 25
this section, provide information knowing it to be 26
false or misleading in a material particular. 27
Maximum penalty--20 penalty units. 28
Division 10 Tribunals [NSW] 29
Subdivision 1 Establishment of Tribunals [NSW] 30
165 Establishment of Tribunals [NSW] 31
(1) Each of the following Tribunals is established for the 32
health profession listed beside that Tribunal in the 33
following Table-- 34
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Table--Tribunals 1
Name of Tribunals Health profession
Chiropractic Tribunal of New chiropractic
South Wales
Dental Tribunal of New South dental (including the
Wales profession of a dentist, dental
hygienist, dental prosthetist,
dental therapist or oral health
therapist)
Medical Tribunal of New medical
South Wales
Nursing and Midwifery nursing and midwifery
Tribunal of New South Wales
Optometry Tribunal of New optometry
South Wales
Osteopathy Tribunal of New osteopathy
South Wales
Pharmacy Tribunal of New pharmacy
South Wales
Physiotherapy Tribunal of physiotherapy
New South Wales
Podiatry Tribunal of New podiatry
South Wales
Psychology Tribunal of New psychology
South Wales
(2) The Governor may, by order published on the NSW 2
legislation website, amend the Table to subsection (1) by 3
inserting, altering or omitting the name of a Tribunal or 4
health profession. 5
(3) A Tribunal is to be constituted in accordance with this Law 6
to deal with a matter referred to it or an appeal or 7
application made to it under this Law. 8
(4) A Tribunal has and may exercise the jurisdiction and 9
functions conferred or imposed on it by or under this Law 10
or any other Act. 11
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165A Tribunal to be constituted to deal with complaints, 1
applications and appeals [NSW] 2
(1) If a complaint is referred to a Tribunal for a health 3
profession or an application or appeal is made to the 4
Tribunal, the Council for the health profession must-- 5
(a) inform the Chairperson of the Tribunal of the 6
referral, application or appeal; and 7
(b) appoint 3 other persons to sit on the Tribunal. 8
(2) For the purpose of conducting an inquiry or hearing an 9
appeal, the Tribunal is to consist of-- 10
(a) the Chairperson or a Deputy Chairperson, as 11
nominated by the Chairperson; and 12
(b) 2 health practitioners registered in the same health 13
profession as the health practitioner or student the 14
subject of the inquiry or appeal and having the 15
qualifications prescribed by the NSW regulations; 16
and 17
(c) one lay person (that is, a person who is not 18
registered in the health profession) appointed by the 19
Council from among a panel of lay persons for the 20
time being nominated by the Minister. 21
(3) If the health profession has divisions, at least one and, if 22
practicable, both, of the members appointed under 23
subsection (2)(b) must be registered in the same division of 24
the health profession as the health practitioner or student 25
the subject of the inquiry or hearing. 26
(4) A person is not to be appointed to sit on the Tribunal if the 27
person is a member of the Council. 28
(5) A Tribunal, as constituted by different persons or the same 29
persons, may conduct or hear more than one inquiry or 30
appeal at the same time. 31
(6) An inquiry or appeal conducted or heard by a Tribunal may 32
relate to more than one health practitioner or student if the 33
complaint or complaints the subject of the inquiry or 34
appeal arise from the same conduct. 35
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165B Chairperson and Deputy Chairpersons of Tribunals [NSW] 1
(1) The Governor may appoint-- 2
(a) a qualified person as Chairperson of a Tribunal; and 3
(b) one or more qualified persons as Deputy 4
Chairpersons of a Tribunal. 5
(2) The Chairperson and each Deputy Chairperson hold office 6
for the period, not more than 7 years, specified in the 7
instrument of appointment as Chairperson or Deputy 8
Chairperson, but is eligible (if otherwise qualified) for 9
re-appointment. 10
(3) A Deputy Chairperson may be appointed by the Governor 11
for the purpose only of conducting or hearing a particular 12
inquiry or appeal described in the instrument of 13
appointment of the Deputy Chairperson. 14
(4) A Deputy Chairperson, while sitting on a Tribunal, has and 15
may exercise all the functions conferred or imposed on a 16
Chairperson by this Law. 17
(5) If the period of a person's appointment as Chairperson or 18
Deputy Chairperson expires while the person is sitting on 19
a Tribunal for the purposes of an inquiry or an appeal, the 20
person may, despite that expiry, continue to sit on the 21
Tribunal for the purpose of that inquiry or appeal (the 22
continuing inquiry or appeal). 23
(6) For the purposes of the conduct or hearing of the 24
continuing inquiry or appeal (and any provision of this 25
Law or the regulations with respect to the inquiry or 26
appeal), the person referred to in subsection (5)-- 27
(a) is taken to be a Deputy Chairperson; and 28
(b) has and may exercise only the functions conferred 29
or imposed on a Deputy Chairperson under this 30
Law; and 31
(c) may exercise the functions only in respect of the 32
continuing inquiry or appeal. 33
(7) A Chairperson or Deputy Chairperson sitting on a Tribunal 34
is entitled to be paid the remuneration (including travelling 35
and subsistence allowances) decided by the Minister from 36
time to time. 37
(8) The Governor may appoint a Deputy Chairperson to act in 38
the office of Chairperson during the illness or absence of a 39
Chairperson and the Deputy Chairperson, while so acting, 40
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has and may exercise all the functions of the Chairperson 1
and is taken to be the Chairperson. 2
(9) If a person who is a Chairperson or Deputy Chairperson 3
ceases to be a qualified person, the person also ceases to 4
hold office as Chairperson or Deputy Chairperson. 5
(10) In this section, qualified person means-- 6
(a) for the Medical Tribunal of New South Wales, a 7
Judge of the Supreme Court (or a Judge or other 8
person having the same status as a Judge of the 9
Supreme Court) or a Judge of the District Court; and 10
(b) for another Tribunal, an Australian lawyer of at least 11
7 years' standing. 12
165C Effect of vacancy on Tribunal [NSW] 13
(1) If one of the members (other than a Chairperson or Deputy 14
Chairperson) constituting a Tribunal for the purpose of 15
conducting a hearing vacates office for any reason before 16
an inquiry or appeal is completed or a decision is made in 17
respect of an inquiry or appeal, the inquiry or appeal may 18
be continued and a determination made by the remaining 19
members of the Tribunal. 20
(2) If more than one of the members vacate office or the 21
Chairperson or Deputy Chairperson vacates office for any 22
reason before a Tribunal has completed an inquiry or 23
appeal or made a determination in respect of an inquiry or 24
appeal, the inquiry or appeal is terminated. 25
(3) When an inquiry or appeal is terminated, a Tribunal may 26
be reconstituted in accordance with this Division for the 27
purposes of conducting a new inquiry or appeal in respect 28
of the matter concerned. 29
165D Payment of non-judicial and non-legal Tribunal members 30
[NSW] 31
A member of a Tribunal (other than a Chairperson or a 32
Deputy Chairperson) is, while sitting on the Tribunal, 33
entitled to be paid by the Council at a rate decided by the 34
Minister in consultation with the Council. 35
165E Protections and immunities of judicial members [NSW] 36
A judicial member of a Tribunal has, in the exercise of his 37
or her functions under this Division, the same protection 38
and immunity as a Judge of the Supreme Court. 39
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165F Seal of Tribunal [NSW] 1
A Tribunal is to have a seal of which all courts and persons 2
acting judicially are to take judicial notice. 3
165G Medical Tribunal Registry [NSW] 4
There is to be established in the Registry of the District 5
Court at Sydney a Registry for the Medical Tribunal of 6
New South Wales to provide registry services for the 7
Tribunal. 8
Subdivision 2 Proceedings of Tribunals [NSW] 9
166 Decisions of Tribunals [NSW] 10
(1) The decision of a Chairperson or a Deputy Chairperson of 11
a Tribunal on a question of law or procedure arising during 12
an inquiry or appeal at which the Chairperson or Deputy 13
Chairperson presides is the decision of the Tribunal for the 14
purposes of the inquiry or appeal. 15
(2) A decision supported by at least 3 members of a Tribunal 16
with respect to a question (other than with respect to a 17
point of law or procedure) arising during an inquiry or 18
appeal before the Tribunal is the decision of the Tribunal. 19
(3) If 2 members of a Tribunal support a decision and 20
2 members oppose the decision, the decision of the 21
Chairperson or Deputy Chairperson presiding is the 22
decision of the Tribunal. 23
166A Time when orders take effect [NSW] 24
An order of a Tribunal takes effect on-- 25
(a) the day on which the order is made; or 26
(b) the later day specified in the order. 27
166B Powers of Tribunal exercised by Supreme Court [NSW] 28
A power of a Tribunal exercised under this Law by the 29
Supreme Court is, except for the purposes of an appeal, 30
taken to have been exercised by the Tribunal. 31
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166C Executive Officer to be informed of disciplinary action 1
[NSW] 2
A Tribunal for a health profession must inform the 3
Executive Officer of the Council for the health profession 4
of the exercise of any power under this Part by the 5
Tribunal. 6
166D Rules of practice and procedure for the Medical Tribunal 7
[NSW] 8
A rule committee consisting of the Chairperson and 9
Deputy Chairperson of the Medical Tribunal of New South 10
Wales may make rules, not inconsistent with this Law, 11
governing the practice and procedure of the Tribunal. 12
Subdivision 3 Inquiries and appeals before Tribunal 13
[NSW] 14
167 Jurisdiction [NSW] 15
(1) A Tribunal must-- 16
(a) conduct an inquiry into a complaint, matter or 17
application referred to it; and 18
(b) hear any appeal referred to it. 19
(2) No inquiry need be conducted into a complaint referred to 20
a Tribunal if the registered health practitioner or student 21
who is the subject of the complaint admits the 22
subject-matter of the complaint in writing to the Tribunal. 23
167A Notice of time and place of inquiry or appeal [NSW] 24
(1) A Chairperson or Deputy Chairperson nominated to sit on 25
a Tribunal for a health profession must fix a time and place 26
for the conducting of the inquiry or the hearing of the 27
appeal by the Tribunal. 28
(2) The Chairperson or Deputy Chairperson must give not less 29
than 14 days' notice of the inquiry or appeal to each of the 30
following-- 31
(a) the registered health practitioner or student the 32
subject of the inquiry or appeal; 33
(b) the complainant, if any; 34
(c) the Director-General; 35
(d) the Council for the health profession; 36
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(e) for an inquiry into a complaint, the Commission; 1
(f) the Chairperson of the relevant Committee, if 2
appropriate. 3
167B Conduct of proceedings [NSW] 4
(1) A Tribunal may conduct proceedings on an inquiry or 5
appeal as it thinks fit. 6
(2) Proceedings of a Tribunal are to be open to the public 7
except when the Tribunal otherwise directs. 8
(3) A Tribunal is not to direct that proceedings are to be closed 9
to the public unless satisfied that it is desirable to do so in 10
the public interest for reasons connected with the 11
subject-matter of the inquiry or appeal or the nature of the 12
evidence to be given. 13
167C Representation before Tribunals [NSW] 14
(1) At an inquiry conducted or appeal heard by a Tribunal, the 15
registered health practitioner or student and any 16
complainant concerned are entitled to attend and to be 17
represented by-- 18
(a) an Australian legal practitioner; or 19
(b) with the leave of the Chairperson or Deputy 20
Chairperson presiding, another adviser. 21
(2) A Tribunal may grant leave for another person to appear 22
(whether in person or by an Australian legal practitioner or 23
another adviser) at an inquiry or appeal if the Tribunal is 24
satisfied that it is appropriate for the person to appear. 25
(3) This section does not prevent a Tribunal from proceeding 26
in the absence of the registered health practitioner or 27
student concerned, as long as the practitioner or student 28
has been given notice of the inquiry or appeal. 29
167D Chairperson or Deputy Chairperson not to review own 30
decisions [NSW] 31
A Chairperson or Deputy Chairperson must not sit on a 32
Tribunal for the purpose of conducting any inquiry or 33
hearing any appeal relating to a particular matter before the 34
Tribunal if a decision has been made by the Chairperson or 35
Deputy Chairperson in relation to the matter. 36
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167E Adjournments and interlocutory orders [NSW] 1
(1) A Tribunal may adjourn proceedings for any reason it 2
thinks fit. 3
(2) A Tribunal may, during any proceedings, exercise any 4
power or combination of powers conferred on the Tribunal 5
by section 149A, except the power to caution or 6
reprimand. 7
(3) A Tribunal may, in respect of an appeal under 8
section 159B, make an order staying the decision of the 9
Council appealed against until the appeal has been 10
disposed of. 11
167F Tribunals to provide details of decisions [NSW] 12
(1) As soon as practicable after making a decision on an 13
inquiry or an appeal (bearing in mind the public welfare 14
and seriousness of the matter), a Tribunal must give a 15
written statement of the decision to-- 16
(a) the complainant; and 17
(b) the registered health practitioner or student the 18
subject of the inquiry or appeal; and 19
(c) the Council for the health profession in which the 20
practitioner or student is registered. 21
(2) The statement of a decision must-- 22
(a) set out any findings on material questions of fact; 23
and 24
(b) refer to any evidence or other material on which the 25
findings were based; and 26
(c) give the reasons for the decision. 27
(3) The Tribunal may also provide the statement of a decision 28
to the persons the Tribunal thinks fit. 29
(4) Unless the Tribunal has ordered otherwise, a Council-- 30
(a) must make publicly available a statement of a 31
decision given to it under this section if the decision 32
is in respect of a complaint that has been proved or 33
admitted in whole or in part; and 34
(b) may disseminate any other statement of a decision 35
as the Council thinks fit. 36
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167G Statement need not contain confidential information [NSW] 1
(1) A Tribunal is not required to include confidential 2
information in the statement of a decision. 3
(2) If the statement would be false or misleading if it did not 4
include the confidential information, the Tribunal is not 5
required to provide the statement. 6
(3) If confidential information is not included in the statement 7
given to a person or the statement is not given to a person 8
because of subsection (2), the Tribunal must give a 9
confidential information notice to the person. 10
(4) A confidential information notice must be given within 11
one month after the decision is made. 12
(5) This section does not affect the power of a court to make 13
an order for the discovery of documents or to require the 14
giving of evidence or the production of documents to a 15
court, subject to the provisions of this Law relating to 16
protected reports. 17
Division 11 Professional Standards Committees 18
[NSW] 19
Subdivision 1 Preliminary [NSW] 20
168 Definitions [NSW] 21
In this Division-- 22
Committee means a Professional Standards Committee. 23
relevant health practitioner means a health practitioner 24
registered under this Law in the-- 25
(a) medical profession; or 26
(b) nursing and midwifery profession. 27
Subdivision 2 Establishment and membership of 28
Committees [NSW] 29
169 Establishment of Committees [NSW] 30
(1) There are to be Professional Standards Committees 31
established for the purposes of this Law. 32
(2) A Committee has and may exercise the jurisdiction and 33
functions conferred or imposed on it by or under this Law. 34
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169A Council to establish Committee when required [NSW] 1
(1) A Council must establish a Committee when a complaint 2
about a relevant health practitioner is referred to a 3
Committee. 4
(2) A Council establishes a Committee by appointing 5
4 persons to sit as the Committee for the purpose of 6
conducting an inquiry into the complaint. 7
169B Membership of Committee [NSW] 8
(1) A Committee consists of-- 9
(a) 2 registered health practitioners who-- 10
(i) are registered in the same health profession as 11
the relevant health practitioner the subject of 12
the proceedings before the Committee; and 13
(ii) have the qualifications, if any, prescribed by 14
the NSW regulations for that profession; and 15
(b) one person who is an Australian lawyer and not a 16
registered health practitioner and who is to be 17
appointed by the Council as Chairperson of the 18
Committee; and 19
(c) one person who is not a registered health 20
practitioner appointed from among a panel of 21
persons for the time being nominated by the 22
Minister. 23
(2) A person who is a member of the Council may not be 24
appointed to sit on a Committee. 25
(3) A member of a Committee, while sitting on the 26
Committee, is entitled to be paid by the Council at a rate 27
decided by the Minister. 28
(4) The rate must be decided by the Minister in consultation 29
with the Council. 30
Subdivision 3 Proceedings of Committees [NSW] 31
170 Multiple inquiries [NSW] 32
One or more Committees may conduct more than one 33
inquiry at the same time. 34
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170A How a Committee decides [NSW] 1
A decision supported by at least 3 members of a 2
Committee on any question arising during an inquiry is the 3
decision of the Committee. 4
170B Time when orders take effect [NSW] 5
An order of a Committee takes effect on-- 6
(a) the day the order is made; or 7
(b) if a later day is specified in the order, that day. 8
170C Committee to inform Executive Officer of its actions under 9
disciplinary provisions [NSW] 10
A Committee must inform the Executive Officer of the 11
exercise of any power by the Committee under 12
Subdivision 3 of Division 3. 13
170D Chairperson may exercise certain powers of Committee 14
[NSW] 15
(1) The Chairperson of a Committee may exercise the 16
following powers of the Committee-- 17
(a) the power to terminate an inquiry; 18
(b) the power to hand down a decision of the Committee 19
on an inquiry. 20
(2) A power of the Committee exercised by the Chairperson of 21
the Committee is taken to have been exercised by the 22
Committee. 23
Subdivision 4 Inquiries before Committees [NSW] 24
171 Committee to hold inquiry into complaint [NSW] 25
(1) A Committee must hold an inquiry into a complaint about 26
a relevant health practitioner that is referred to it. 27
(2) No inquiry need be held into the complaint if the relevant 28
health practitioner admits the subject-matter of the 29
complaint in writing to the Committee. 30
(3) On appointment, the Chairperson of the Committee must 31
fix a time and place for the holding of an inquiry by the 32
Committee into the complaint. 33
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(4) The Chairperson must give not less than 14 days' notice of 1
the inquiry to-- 2
(a) the relevant health practitioner; and 3
(b) the complainant, if any; and 4
(c) the Director-General; and 5
(d) the Council for the health profession in which the 6
practitioner is registered; and 7
(e) the Commission. 8
171A Procedure for inquiry [NSW] 9
(1) Subject to this section, the Committee may conduct 10
proceedings on the inquiry as it thinks fit. 11
(2) Proceedings of the Committee are to be open to the public 12
unless the Committee directs otherwise. 13
(3) The Committee is not to direct that proceedings are to be 14
closed to the public unless satisfied it is desirable to do so 15
in the public interest because of-- 16
(a) the subject-matter of the inquiry; or 17
(b) the nature of the evidence to be given. 18
(4) The Committee may be assisted by an Australian lawyer 19
appointed, at the request of the Committee, by the 20
Executive Officer of the Council. 21
171B Representation at inquiry [NSW] 22
(1) At the inquiry held by the Committee, the relevant health 23
practitioner and any complainant are entitled to attend and 24
to be represented by-- 25
(a) an Australian legal practitioner; or 26
(b) with the leave of the Chairperson of the Committee, 27
another adviser. 28
(2) Subsection (1) does not prevent the Committee from 29
addressing questions directly to the relevant health 30
practitioner. 31
(3) The Committee may grant leave for any other person to 32
appear at the inquiry if the Committee is satisfied it is 33
appropriate for the person to appear. 34
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(4) This section does not prevent the Committee from 1
proceeding in the absence of the relevant health 2
practitioner or the complainant, if the practitioner or 3
complainant has been given notice of the inquiry. 4
171C Adjournments and interlocutory orders [NSW] 5
(1) The Committee may adjourn proceedings for any reason it 6
thinks fit. 7
(2) The Committee may, during any proceedings, exercise any 8
power or combination of powers conferred on a 9
Committee by section 146B, except the power to caution 10
or reprimand. 11
171D Committee must refer certain matters to Tribunal [NSW] 12
(1) The Committee must immediately terminate the inquiry if, 13
before or during the inquiry, the Committee-- 14
(a) forms the opinion the complaint, if substantiated, 15
may provide grounds for the suspension or 16
cancellation of the registration of the relevant health 17
practitioner; or 18
(b) becomes aware the Council or the Commission has 19
referred the complaint or another complaint about 20
the practitioner to the Tribunal. 21
(2) Subsection (1)(a) does not apply to a complaint that the 22
Council decided not to refer to the Tribunal because the 23
allegations on which it, and any other pending complaint 24
against the practitioner, was founded related solely or 25
principally to the practitioner's physical or mental capacity 26
to practise the practitioner's profession. 27
(3) If the Committee terminates an inquiry, it must refer the 28
complaint to the Tribunal unless it has already been 29
referred to the Tribunal. 30
(4) The Tribunal to which the complaint is referred may be the 31
Tribunal as already constituted to deal with another 32
complaint or the Tribunal as constituted to deal with the 33
referred complaint. 34
(5) The Committee must inform the Council when it takes any 35
action under this section. 36
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171E Committee to provide details of decision [NSW] 1
(1) The Committee must give a written statement of its 2
decision on the inquiry to the following within one month 3
after the decision is made-- 4
(a) the complainant; 5
(b) the relevant health practitioner; 6
(c) the Council. 7
(2) The statement of decision must-- 8
(a) set out any findings on material questions of fact; 9
and 10
(b) refer to any evidence or other material on which the 11
findings were based; and 12
(c) give reasons for the decision. 13
(3) The Committee may also give the statement of decision to 14
any other person the Committee thinks fit. 15
(4) The Council-- 16
(a) must make publicly available the statement of 17
decision if the decision is in respect of a complaint 18
that has been proved or admitted in whole or in part; 19
and 20
(b) may disseminate any other statement of decision as 21
the Council thinks fit. 22
(5) Subsection (4) does not apply if the Committee has 23
ordered that the statement is not to be made publicly 24
available. 25
171F Statement need not contain confidential information [NSW] 26
(1) A Committee is not required to include confidential 27
information in a statement of a decision given to a person. 28
(2) If the statement would be false or misleading if it did not 29
include the confidential information, the Committee is not 30
required to provide the statement. 31
(3) If confidential information is not included in the statement 32
of a decision given to a person, or a statement is not given 33
to a person because of subsection (2), the Committee must 34
give the person a confidential information notice. 35
(4) A confidential information notice must be given within 36
one month of the decision. 37
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(5) This section does not affect the power of a court to make 1
an order for the discovery of documents or to require the 2
giving of evidence or the production of documents to a 3
court, subject to the provisions of this Law relating to 4
protected reports. 5
Division 12 Assessment Committees [NSW] 6
172 Definitions [NSW] 7
In this Division-- 8
Committee means an Assessment Committee. 9
relevant health practitioner means a health practitioner 10
registered under this Law other than a health practitioner 11
registered in the-- 12
(a) medical profession; or 13
(b) nursing and midwifery profession. 14
172A Establishment of Committees [NSW] 15
(1) There are to be Assessment Committees established for the 16
purposes of this Law. 17
(2) A Committee has and may exercise the jurisdiction and 18
functions conferred or imposed on it by or under this Law. 19
172B Membership of Committee [NSW] 20
(1) A Committee consists of the following members appointed 21
by the Minister-- 22
(a) 3 registered health practitioners who-- 23
(i) are registered in the same health profession as 24
the relevant health practitioner the subject of 25
the proceedings before the Committee; and 26
(ii) have the qualifications, if any, prescribed by 27
the NSW regulations for that profession; and 28
(b) one person who is not a registered health 29
practitioner appointed from among a panel of 30
persons for the time being nominated by the 31
Minister. 32
(2) If the health profession has divisions, at least one and, if 33
practicable, all, of the members appointed under 34
subsection (1)(a) must be registered in the same division of 35
the health profession as the health practitioner the subject 36
of the complaint. 37
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(3) A person who is a member of the Council may not be 1
appointed to sit on a Committee. 2
(4) A member of a Committee, while sitting on the 3
Committee, is entitled to be paid by the Council at a rate 4
decided by the Minister. 5
(5) The rate must be decided by the Minister in consultation 6
with the Council. 7
172C Multiple inquiries [NSW] 8
One or more Committees may conduct more than one 9
assessment at the same time. 10
Division 13 Impaired Registrants Panels [NSW] 11
173 Establishment of Impaired Registrants Panels [NSW] 12
(1) There are to be Impaired Registrants Panels established for 13
the purposes of this Law. 14
(2) A Panel has and may exercise the jurisdiction and 15
functions conferred or imposed on it by or under this Law 16
or any other Act. 17
173A Council to establish Panel when required [NSW] 18
(1) If a Council decides to refer a matter to an Impaired 19
Registrants Panel, it must appoint 2 or 3 persons to sit as 20
the Panel for the purpose of dealing with the matter. 21
(2) A panel must include-- 22
(a) at least one person who is registered in the same 23
health profession as the registered health 24
practitioner or student who is the subject of the 25
Panel's proceedings; and 26
(b) at least one medical practitioner. 27
(3) If the health profession has divisions, the member 28
appointed under subsection (2)(a) must be registered in the 29
same division of the health profession as the registered 30
health practitioner or student the subject of the complaint. 31
(4) A person may be appointed to sit on a Panel whether or not 32
the person is a member of the Council, but not if the person 33
has previously dealt with the particular matter before the 34
Panel in the person's capacity as a member of the Council. 35
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(5) A member of a Panel, while sitting on the Panel, is entitled 1
to be paid at the rate decided by the Minister in 2
consultation with the Council. 3
173B Decisions of Panel [NSW] 4
(1) If an Impaired Registrants Panel consists of 2 members-- 5
(a) a decision supported by both members of the Panel 6
is the decision of the Panel; and 7
(b) if the members of the Panel disagree as to any matter 8
dealt with by the Panel, the Panel's report to the 9
Council must include details of the disagreement 10
and the reasons for it. 11
(2) If a Panel consists of 3 members-- 12
(a) a decision supported by a majority of the members 13
of the Panel is the decision of the Panel; and 14
(b) the Panel's report to the Council must include any 15
minority decision. 16
Division 14 Performance Review Panels and 17
assessors [NSW] 18
174 Establishment of Performance Review Panels [NSW] 19
(1) There are to be Performance Review Panels established for 20
the purposes of this Law. 21
(2) A Panel has and may exercise the jurisdiction and 22
functions conferred or imposed on it by or under this Law 23
or any other Act. 24
174A Membership of Performance Review Panels [NSW] 25
(1) If a Council decides to require a Performance Review 26
Panel to conduct a performance review of the professional 27
performance of a registered health practitioner, the 28
Council must appoint 3 persons to sit as the Panel for the 29
purpose of that performance review. 30
(2) Of those 3 persons-- 31
(a) 2 are to be registered health practitioners registered 32
in the same health profession as the health 33
practitioner to whom the proceedings relate; and 34
(b) one is to be a person who is not a registered health 35
practitioner. 36
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(3) If the health profession has divisions, at least one and, if 1
practicable, both, of the members appointed under 2
subsection (2)(a) must be registered in the same division of 3
the health profession as the health practitioner the subject 4
of the complaint. 5
(4) One of the members of the Panel must be appointed by the 6
Council as Chairperson of the Panel. 7
(5) A person may be appointed to sit on a Panel whether or not 8
the person is a member of the Council, but not if the person 9
has previously dealt with the particular matter before the 10
Panel in the person's capacity as a member of the Council. 11
(6) A member of a Panel, while sitting on the Panel, is entitled 12
to be paid by the Council at a rate decided by the Minister 13
in consultation with the Council. 14
174B Decisions of Panel [NSW] 15
A decision supported by a majority of members of a 16
Performance Review Panel is the decision of the Panel. 17
174C Certain powers may be exercised by Chairperson [NSW] 18
(1) The Chairperson of a Performance Review Panel may 19
exercise the following functions of a Panel-- 20
(a) the power to terminate a performance review; 21
(b) the power to hand down a decision of the Panel on a 22
performance review. 23
(2) A power of a Performance Review Panel that is exercised 24
by the Chairperson of the Panel under this Law is taken to 25
have been exercised by the Panel. 26
174D Assessors [NSW] 27
(1) A Council may appoint suitably qualified persons to be 28
assessors for the purposes of this Law. 29
(2) Assessors are to be appointed on the terms and conditions 30
decided by the Council. 31
(3) An assessor has the functions conferred on an assessor by 32
this Law and any other functions, in connection with 33
Division 5, conferred on the assessor by the Council. 34
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Division 14A Appeals [NSW] 1
175 Appellable decisions [NSW] 2
(1) A person who is the subject of any of the following 3
decisions (an appellable decision) may appeal against the 4
decision to the appropriate responsible tribunal for the 5
appellable decision-- 6
(a) a decision by a National Board to refuse to register 7
the person; 8
(b) a decision by a National Board to refuse to endorse 9
the person's registration; 10
(c) a decision by a National Board to refuse to renew 11
the person's registration; 12
(d) a decision by a National Board to refuse to renew 13
the endorsement of the person's registration; 14
(e) a decision by a National Board to impose or change 15
a condition on a person's registration or the 16
endorsement of the person's registration, other 17
than-- 18
(i) a condition relating to the person's 19
qualification for general registration in the 20
health profession; and 21
(ii) a condition imposed by section 112(3)(a); 22
(f) a decision by a National Board to refuse to change 23
or remove a condition imposed on the person's 24
registration or the endorsement of the person's 25
registration; 26
(g) a decision by a National Board to refuse to change 27
or revoke an undertaking given by the person to the 28
Board. 29
(2) For the purposes of subsection (1), the appropriate 30
responsible tribunal for an appellable decision is-- 31
(a) for a decision in relation to a registered health 32
practitioner, the responsible tribunal for the 33
participating jurisdiction in which the practitioner's 34
principal place of practice is located; or 35
(b) for a decision in relation to a student, the responsible 36
tribunal for the participating jurisdiction in which 37
the student is undertaking the approved program of 38
study or clinical training; or 39
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(c) for a decision in relation to another person-- 1
(i) the responsible tribunal for the participating 2
jurisdiction in which the person lives; or 3
(ii) if the person does not live in a participating 4
jurisdiction, the responsible tribunal for the 5
participating jurisdiction nominated by the 6
National Board that made the appellable 7
decision and specified in the notice given to 8
the person of the appellable decision. 9
Note. This section is a substituted New South Wales provision. 10
175A Parties to the proceedings [NSW] 11
The parties to proceedings relating to an appellable 12
decision being heard by a responsible tribunal are-- 13
(a) the person who is the subject of the appellable 14
decision; and 15
(b) the National Board that made the appellable 16
decision. 17
Note. This section is a substituted New South Wales provision. 18
175B Costs 19
The responsible tribunal may make any order about costs 20
it considers appropriate for the proceedings. 21
Note. This section is a Health Practitioner Regulation National 22
Law provision (see section 201 of the National Law). 23
175C Decision 24
(1) After hearing the matter, the responsible tribunal may-- 25
(a) confirm the appellable decision; or 26
(b) amend the appellable decision; or 27
(c) substitute another decision for the appellable 28
decision. 29
(2) In substituting another decision for the appellable 30
decision, the responsible tribunal has the same powers as 31
the entity that made the appellable decision. 32
Note. This section is a Health Practitioner Regulation National 33
Law provision (see section 202 of the National Law). 34
Note. Section 203 of the Health Practitioner Regulation National 35
Law is not applicable to New South Wales. 36
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Division 14B Miscellaneous [NSW] 1
176 Notice from adjudication body [NSW] 2
(1) If an adjudication body, other than a court, makes a 3
decision in relation to a health practitioner or student 4
registered in a health profession, it must give written notice 5
of the decision to the National Board for the profession. 6
(2) For the purposes of subsection (1), in this jurisdiction a 7
decision by an adjudication body is any of the following-- 8
(a) a decision by the adjudication body to impose or 9
agree to conditions on a registered health 10
practitioner's or student's registration; 11
(b) a decision by the adjudication body to suspend a 12
registered health practitioner's or student's 13
registration; 14
(c) a decision by the adjudication body to cancel a 15
registered health practitioner's or student's 16
registration. 17
Note. This subsection is an additional New South Wales 18
provision. 19
(3) The notice must state-- 20
(a) the decision made by the adjudication body; and 21
(b) the reasons for the decision; and 22
(c) the date the decision takes effect; and 23
(d) any action the National Board must take to give 24
effect to the decision. 25
176A Implementation of decisions 26
(1) A National Board must give effect to a decision of an 27
adjudication body unless the decision is stayed on appeal. 28
(2) Without limiting subsection (1), the National Board must, 29
if the notice given to the Board states that a health 30
practitioner's or student's registration is cancelled, remove 31
the practitioner's or student's name from the appropriate 32
register kept by the Board. 33
Note. This section is a Health Practitioner Regulation National 34
Law provision (see section 205 of the National Law). 35
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176B National Board to give notice to registered health 1
practitioner's employer 2
(1) This section applies if-- 3
(a) a National Board-- 4
(i) decides to take health, conduct or 5
performance action against a registered 6
health practitioner; or 7
(ii) receives notice from an adjudication body 8
that the adjudication body has decided to take 9
health, conduct or performance action against 10
a registered health practitioner; or 11
(iii) receives notice from a co-regulatory authority 12
that an adjudication body in the co-regulatory 13
jurisdiction has decided to take health, 14
conduct or performance action against a 15
registered health practitioner; and 16
(b) the National Board has been advised by the 17
registered health practitioner that the practitioner is 18
employed by another entity. 19
Note. Under section 132, a National Board may ask a registered 20
health practitioner to give the Board information about whether or 21
not the practitioner is employed by another entity and, if so, for 22
the employer's details. 23
(2) The National Board must, as soon as practicable after 24
making the decision or receiving the notice, give written 25
notice of the decision to take health, conduct or 26
performance action against the registered health 27
practitioner to the practitioner's employer. 28
Note. This section is a Health Practitioner Regulation National 29
Law provision (see section 206 of the National Law). 30
176C Adjudication body to consider impact of decision on third 31
parties [NSW] 32
(1) If an adjudication body proposes to make a decision that, 33
in the body's opinion, will impose an appreciable burden 34
on an identifiable third party in connection with a 35
registered health practitioner's practice or clinical training 36
undertaken by a student, the body-- 37
(a) must give the third party an opportunity to make 38
submission to the body with respect to the decision; 39
and 40
(b) must take the submission into account before giving 41
the direction or making the order. 42
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(2) If an adjudication body makes a decision that will, in the 1
body's opinion, impose an appreciable burden on an 2
identifiable third party in connection with a registered 3
health practitioner's practice or clinical training 4
undertaken by a student, the body must give the third party 5
notice of the decision as soon as practicable after it is 6
made. 7
(3) An example of a decision that may impose an appreciable 8
burden on an identifiable third party in connection with a 9
registered health practitioner's practice is a decision that 10
has the effect of requiring the practice of a registered 11
health practitioner to be supervised by an identified third 12
party. 13
(4) In this section-- 14
adjudication body means-- 15
(a) a Committee; 16
(b) a Council; 17
(c) a Panel; 18
(d) a Tribunal. 19
third party means a health service provider other than the 20
registered health practitioner to whom an inquiry relates, 21
but does not include a person or body exercising functions 22
conferred by this Law or the Health Care Complaints 23
Act 1993. 24
Note. This section is a New South Wales provision. 25
176D Effect of suspension 26
If a person's registration as a health practitioner or student 27
is suspended under this Law the person is taken during the 28
period of suspension not to be registered under this Law, 29
other than for the purposes of this Part. 30
Note. This section is a Health Practitioner Regulation National 31
Law provision (see section 207 of the National Law). 32
176E Protection from liability for certain publications [NSW] 33
(1) A publication in good faith of a written statement of a 34
decision made by a Council, a Committee, a Panel or a 35
Tribunal does not subject a protected person to any 36
liability (including liability in defamation). 37
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(2) In this section-- 1
protected person means-- 2
(a) a Council, a Committee, a Panel or a Tribunal or a 3
member of a Council, a Committee, a Panel or a 4
Tribunal; or 5
(b) the proprietor, editor or publisher of a newspaper; or 6
(c) the proprietor or broadcaster of a radio or television 7
station or the producer of a radio or television show; 8
or 9
(d) an Internet service provider or Internet content host; 10
or 11
(e) a member of staff of, or a person acting at the 12
direction of, a person or entity referred to in this 13
definition; or 14
(f) a person, or a person belonging to a class of persons, 15
prescribed by the NSW regulations for the purposes 16
of this section. 17
Note. This section is a New South Wales provision. 18
176F Confidentiality of protected reports 19
(1) A person must not, directly or indirectly-- 20
(a) disclose a protected report to another person that the 21
person has obtained in the exercise of the person's 22
functions under this Law; or 23
(b) make a record of, or disclose to another person, 24
information contained in a protected report that the 25
person has obtained in the exercise of the person's 26
functions under this Law 27
Maximum penalty: 50 penalty units. 28
(2) Subsection (1) does not apply to the disclosure by a person 29
of a protected report or information contained in a 30
protected report-- 31
(a) for the purpose of exercising functions under this 32
Law; or 33
(b) to the Commission. 34
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(3) A protected report may not be admitted or used in civil 1
proceedings before a court other than with the consent 2
of-- 3
(a) the person giving the report; and 4
(b) the person the subject of the report. 5
(4) A person may not be compelled to produce a protected 6
report, or to give evidence in relation to the report or its 7
contents, in civil proceedings before a court. 8
[16] Section 216 Duty of confidentiality 9
Insert after section 216 (2) (b)-- 10
(ba) for a person exercising functions under a NSW 11
provision, the disclosure is to the National Agency 12
or a National Board; or 13
Note. See also section 176F which provides for the 14
confidentiality of protected reports. 15
Note. This paragraph is an additional New South Wales 16
provision. 17
[17] Section 236A 18
Insert after section 236: 19
236A Protection from personal liability for persons exercising 20
functions under NSW provisions [NSW] 21
(1) A protected person is not personally liable for anything 22
done or omitted to be done in good faith-- 23
(a) in the exercise of a function under this Law; or 24
(b) in the reasonable belief that the act or omission was 25
the exercise of a function under this Law. 26
(2) Any liability resulting from an act or omission that would, 27
but for subsection (1), attach to a protected person attaches 28
instead to the Council for the health profession on whose 29
behalf, or in relation to which, the protected person was 30
exercising functions. 31
(3) In this section-- 32
protected person means a person exercising functions 33
under a NSW provision. 34
Note. This section is an additional New South Wales provision. 35
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[18] Section 244A 1
Insert after section 244-- 2
244A Evidentiary certificates for NSW provisions [NSW] 3
A certificate purporting to be signed by the Executive 4
Officer of a Council and stating any of the following 5
matters is prima facie evidence of the matter-- 6
(a) a stated document is one of the following things 7
made, given, issued or kept under a NSW 8
provision-- 9
(i) an appointment, approval or decision; 10
(ii) a notice, direction or requirement; 11
(iii) a record, or an extract from a record; 12
(b) a stated document is another document kept under a 13
NSW provision; 14
(c) on a stated day, or during a stated period, an 15
appointment as an authorised person was, or was 16
not, in force for a stated person; 17
(d) on a stated day, a stated person was given a stated 18
notice or direction under a NSW provision; 19
(e) on a stated day, a stated requirement was made of a 20
stated person under a NSW provision. 21
Note. This section is an additional New South Wales provision. 22
[19] Section 247A 23
Insert after section 247: 24
247A NSW regulations [NSW] 25
(1) The Governor may make regulations, not inconsistent with 26
this Law, for or with respect to any matter that by a NSW 27
provision of this Law is required or permitted to be 28
prescribed or that is necessary or convenient to be 29
prescribed for carrying out or giving effect to a NSW 30
provision of this Law. 31
(2) Without limiting subsection (1), the regulations may make 32
provision for or with respect to the following matters-- 33
(a) standards applicable to premises used for pharmacy 34
businesses for or with respect to the safe and 35
competent delivery of pharmacy services; 36
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(b) the inspection by or on behalf of the Pharmacy 1
Council of New South Wales of pharmacy 2
businesses; 3
(c) the infection control standards to be followed by 4
health practitioners practising in this jurisdiction; 5
(d) the records to be kept by health practitioners 6
practising in this jurisdiction; 7
(e) the reimbursement by the Councils of the costs 8
incurred by the Department of Health in 9
establishing the national registration and 10
accreditation scheme. 11
(3) A matter for which the first regulations made under this 12
section make provision is taken to be a matter for which a 13
regulatory impact statement is not required for the 14
purposes of the Subordinate Legislation Act 1989. 15
(4) In this section and Schedule 5C-- 16
Governor means the Governor with the advice of the 17
Executive Council, and includes a reference to a person for 18
the time being lawfully administering the Government. 19
Note. This section is an additional New South Wales provision. 20
[20] Section 293 21
Omit the section. Insert instead: 22
293 Note. This section is not applicable to New South Wales. 23
[21] Section 295 24
Omit the section. Insert instead: 25
295 Note. This section is not applicable to New South Wales. 26
[22] Section 296 Records relating to registration and accreditation 27
Omit section 296 (1) (b). Insert instead: 28
(b) Note. This paragraph is not applicable to New South 29
Wales. 30
[23] Section 297 31
Omit the section. Insert instead: 32
297 Note. This section is not applicable to New South Wales. 33
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[24] Section 298 1
Omit the section. Insert instead: 2
298 Note. This section is not applicable to New South Wales. 3
[25] Schedules 5A5F 4
Insert after Schedule 5-- 5
Schedule 5A Savings and transitional 6
provisions [NSW] 7
Note. This Schedule is an additional New South Wales provision. 8
Part 1 NSW Regulations [NSW] 9
1 Savings and transitional regulations [NSW] 10
(1) The NSW regulations may contain provisions of a savings 11
or transitional nature consequent on the enactment of the 12
following Acts-- 13
the Health Practitioner Regulation (Adoption of National 14
Law) Act 2009 15
the Health Practitioner Regulation Amendment Act 2010 16
(2) Any such provision may, if the NSW regulations so 17
provide, take effect from the date of assent to the Act 18
concerned or a later date. 19
(3) To the extent to which any such provision takes effect from 20
a date that is earlier than the date of its publication on the 21
NSW legislation website, the provision does not operate so 22
as-- 23
(a) to affect, in a manner prejudicial to any person 24
(other than the State or an authority of the State), the 25
rights of that person existing before the date of its 26
publication; or 27
(b) to impose liabilities on any person (other than the 28
State or an authority of the State) in respect of 29
anything done or omitted to be done before the date 30
of its publication. 31
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Part 2 Provisions consequent on enactment 1
of Health Practitioner Regulation 2
Amendment Act 2010 [NSW] 3
Division 1 Preliminary [NSW] 4
2 Definitions [NSW] 5
In this Part-- 6
commencement means commencement of this Part. 7
Division 2 Complaints and disciplinary 8
proceedings [NSW] 9
3 Complaints made but not being dealt with on 10
commencement [NSW] 11
(1) This clause applies if, immediately before the 12
commencement, a former Board had received but not 13
started dealing with a complaint about a person registered 14
in a health profession by the Board. 15
(2) From the commencement, the complaint is taken to have 16
been made to the Council established for the profession. 17
4 Relevant matters still being dealt with on participation day 18
[NSW] 19
(1) This clause applies if, immediately before the 20
commencement, any of the following referrals, actions, 21
applications or appeals (relevant matters) had been started 22
but not completed under a repealed Act-- 23
(a) the referral of a matter to an Impaired Registrants 24
Panel; 25
(b) the referral of the professional performance of a 26
health practitioner for assessment; 27
(c) the referral of a complaint to a Committee; 28
(d) the referral of a matter to a Performance Review 29
Panel; 30
(e) an application for a review; 31
(f) action by a former Board to suspend, or impose 32
conditions on, a registered health practitioner's 33
registration under public protection provision; 34
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(g) the referral of a complaint or another matter to a 1
Tribunal; 2
(h) an appeal or application to a Tribunal; 3
(i) an appeal to the Supreme Court. 4
(2) From the commencement, the relevant matter is to 5
continue to be dealt with under the repealed Act under 6
which it was made. 7
(3) After the relevant matter has been decided under the 8
repealed Act, any further proceedings or appeal in relation 9
to the matter the subject of the relevant matter is to be dealt 10
with under this Law as if the relevant matter had been 11
decided under this Law. 12
(4) For the purposes of this clause, the repealed Act applies-- 13
(a) as if a reference to the former Board were a 14
reference to the Council; and 15
(b) with any other changes that are necessary or 16
convenient. 17
(5) The National Board for the health profession must give 18
effect to a decision made in relation to a relevant matter 19
under a repealed Act, and the decision continues to apply, 20
as if it were a decision made under this Law. 21
(6) In this clause-- 22
public protection provision means any of the following 23
provisions-- 24
(a) section 54 of the Chiropractors Act 2001; 25
(b) section 72 of the Dental Practice Act 2001; 26
(c) section 66 of the Medical Practice Act 1992; 27
(d) section 48 of the Nurses and Midwives Act 1991; 28
(e) section 58 of the Optometrists Act 2002; 29
(f) section 54 of the Osteopaths Act 2001; 30
(g) section 67 of the Pharmacy Practice Act 2006; 31
(h) section 55 of the Physiotherapists Act 2001; 32
(i) section 54 of the Podiatrists Act 2003; 33
(j) section 54 of the Psychologists Act 2001. 34
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5 Complaints about dental prosthetists [NSW] 1
(1) This clause applies if, immediately before the 2
commencement, the Dental Technicians Registration 3
Board under the Dental Technicians Registration 4
Act 1975-- 5
(a) had received but not started dealing with a 6
complaint about a dental prosthetist; or 7
(b) had started but not completed dealing with a 8
complaint about a dental prosthetist. 9
(2) From the commencement, the complaint is-- 10
(a) taken to have been made to the Dental Council of 11
New South Wales; and 12
(b) to be dealt with under this Law in the way agreed 13
between the Dental Council of New South Wales 14
and the Commission. 15
6 Complaints about dental technicians [NSW] 16
(1) This clause applies if, immediately before the 17
commencement, the Dental Technicians Registration 18
Board under the Dental Technicians Registration 19
Act 1975-- 20
(a) had received but not started dealing with a 21
complaint about a dental technician; or 22
(b) had started but not completed dealing with a 23
complaint about a dental technician. 24
(2) From the commencement, the complaint is taken to be a 25
complaint made to the Commission about the professional 26
conduct of the dental technician. 27
(3) For the purposes of subclause (2), a code of conduct 28
prescribed under section 10AM of the Public Health 29
Act 1991 is taken to have applied to the dental technician's 30
practice of the profession before the commencement as if 31
the dental technician had not been required to be registered 32
under a health registration Act. 33
(4) If, after the complaint is dealt with, an order is made in 34
relation to the dental technician that does either or both of 35
the following, the order is taken to be a prohibition order 36
for the purposes of Division 3 of Part 2A of the Public 37
Health Act 1991-- 38
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(a) prohibits the dental technician from providing 1
health services or specified health services for the 2
period specified in the order or permanently; 3
(b) places conditions on the provision of health services 4
by the dental technician for the period specified in 5
the order or permanently. 6
7 Existing orders in relation to dental technicians' registration 7
[NSW] 8
(1) This clause applies if, immediately before the 9
commencement, an order was in force in relation to a 10
dental technician that did either or both of the following: 11
(a) prohibited the dental technician from providing 12
health services or specified health services for the 13
period specified in the order or permanently; 14
(b) placed conditions on the provision of health services 15
by the dental technician for the period specified in 16
the order or permanently. 17
(2) From the commencement, the order is taken to be a 18
prohibition order for the purposes of Division 3 of Part 2A 19
of the Public Health Act 1991. 20
Division 3 Appointments [NSW] 21
8 Board members [NSW] 22
(1) A person who, immediately before the commencement, 23
was a member of a former Board for a health profession is 24
taken, after the commencement, to be a member of the 25
Council for that profession as if the person had been 26
appointed under this Law. 27
(2) The person holds office as a member of the Council until 28
the earlier of the following days-- 29
(a) the day that is 2 years after the commencement; 30
(b) the day a NSW regulation made for section 41E in 31
relation to the membership of that Council 32
commences; 33
(c) the day the person otherwise vacates office under 34
this Law. 35
(3) For the purposes of clause 12(2) of Schedule 5C, the 36
period for which the person held consecutive terms of 37
office as a member of a former Board immediately before 38
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the commencement is to be taken into account in 1
calculating the total period for which the person has held 2
office. 3
(4) However, the person may be appointed for one more term 4
of office under this Law even if the person has held office 5
for consecutive terms of office totalling more than 9 years. 6
(5) Subclauses (2) and (4) apply despite-- 7
(a) anything in clause 12 of Schedule 5C; or 8
(b) anything in the member's instrument of 9
appointment as in force immediately before the 10
commencement. 11
9 President and Deputy President of former Board [NSW] 12
(1) If a person referred to in clause 8 was, immediately before 13
the commencement, the President of a former Board for a 14
health profession the person is taken, after the 15
commencement, to be the President of the Council for the 16
health profession under this Law. 17
(2) If a person referred to in clause 8 was, immediately before 18
the commencement, the Deputy President of a former 19
Board for a health profession the person is taken, after the 20
commencement, to be the Deputy President of the Council 21
for the health profession under this Law. 22
10 Tribunals [NSW] 23
(1) A person who, immediately before the commencement, 24
was the Chairperson of a Tribunal for a health profession 25
under a repealed Act is taken, after the commencement, to 26
be the Chairperson of the Tribunal for that profession 27
under this Law as if the person had been appointed under 28
this Law. 29
(2) A person who, immediately before the commencement, 30
was a Deputy Chairperson of a Tribunal for a health 31
profession under a repealed Act is taken, after the 32
commencement, to be the Deputy Chairperson of the 33
Tribunal for that profession under this Law as if the person 34
had been appointed under this Law. 35
(3) A person who, immediately before the commencement, 36
was a member of a panel of lay persons for a Tribunal for 37
a health profession under a repealed Act is taken, after the 38
commencement, to be a member of a panel of lay persons 39
for the Tribunal for that profession under this Law. 40
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(4) A person to whom this clause applies continues to hold 1
office until the earlier of the following-- 2
(a) the day the person's term of appointment under the 3
repealed Act would have ended if that Act had not 4
been repealed; 5
(b) the day the person otherwise vacates office under 6
this Law. 7
11 Professional Standards Committees [NSW] 8
(1) A person who, immediately before the commencement, 9
was a member of a panel of lay persons for Professional 10
Standards Committees for a health profession under a 11
repealed Act is taken, after the commencement, to be a 12
member of a panel of lay persons for Professional 13
Standards Committees for that profession under this Law. 14
(2) The person continues to be a member of the panel until the 15
earlier of the following-- 16
(a) the day that is 2 years after the commencement; 17
(b) the person resigns or is removed from the panel by 18
the Minister. 19
12 Committees [NSW] 20
(1) A person who, immediately before the commencement, 21
was a member of a Committee for a health profession is 22
taken, after the commencement, to be a member of the 23
Assessment Committee for that profession under this Law 24
as if the person had been appointed under this Law. 25
(2) The person continues to hold office until the earlier of the 26
following-- 27
(a) the day that is 2 years after the commencement; 28
(b) the person otherwise vacates office under this Law. 29
(3) In this clause-- 30
Committee means the following-- 31
(a) the Chiropractic Care Assessment Committee 32
constituted under the Chiropractors Act 2001; 33
(b) the Dental Care Assessment Committee constituted 34
under the Dental Practice Act 2001; 35
(c) the Optometry Care Assessment Committee 36
constituted under the Optometrists Act 2002; 37
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(d) the Osteopathy Care Assessment Committee 1
constituted under the Osteopaths Act 2001; 2
(e) the Pharmacy Care Assessment Committee 3
constituted under the Pharmacy Practice Act 2006; 4
(f) the Physiotherapy Standards Advisory Committee 5
constituted under the Physiotherapists Act 2001; 6
(g) the Podiatry Standards Advisory Committee 7
constituted under the Podiatrists Act 2003; 8
(h) the Psychological Care Assessment Committee 9
constituted under the Psychologists Act 2001. 10
13 Assessors [NSW] 11
A person who was, immediately before the 12
commencement, appointed as an assessor under a repealed 13
Act by a former Board constituted for a health profession 14
is taken after the commencement to have been appointed 15
as an assessor under this Law by the Council established 16
for that profession. 17
Division 4 Staff [NSW] 18
14 Definitions [NSW] 19
In this Division-- 20
HPCA Division means the Health Professional Councils 21
Authority Division of the Government Service. 22
HPRB Division means Health Professional Registration 23
Boards Division of the Government Service. 24
new employer means an employer to whom a person's 25
employment is transferred under this Division. 26
relevant former board means the following-- 27
(a) the Dental Board of New South Wales; 28
(b) the New South Wales Medical Board; 29
(c) the Pharmacy Board of New South Wales. 30
transferred employee means a person whose employment 31
is transferred under this Division. 32
15 Staff employed by HPRB Division [NSW] 33
(1) A person who was, immediately before the 34
commencement, a member of staff of the HPRB Division 35
is, from the commencement, taken to be a member of staff 36
of the HPCA Division employed on the same terms and 37
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conditions that applied to the member immediately before 1
the commencement. 2
(2) Subclause (1) does not prevent the terms and conditions on 3
which a member of staff is employed being varied. 4
(3) The Minister may, by written order, transfer the 5
employment of a member of staff of the HPCA Division to 6
the employment of the National Agency. 7
(4) A member of staff may decline to be transferred to the 8
National Agency. 9
16 Staff employed by relevant former board [NSW] 10
(1) The Minister may, by written order, transfer the 11
employment of a member of staff of a relevant former 12
board to the employment of the National Agency or the 13
HPCA Division. 14
(2) A member of staff of a relevant former board may decline 15
to be transferred to the National Agency or the HPCA 16
Division. 17
17 Continuity of employment [NSW] 18
The continuity of a transferred employee's employment is 19
taken not to have been broken by the transfer of 20
employment, and service with the Government Service or 21
relevant former board that is continuous service up to the 22
time of transfer is deemed for all purposes to be service 23
with the new employer. 24
18 Accrued leave entitlements [NSW] 25
A transferred employee retains any rights to sick leave, 26
annual leave or long service leave accrued or accruing 27
immediately before the transfer of employment (other than 28
accrued leave for which the employee has, on ceasing to be 29
an employee of the Government Service or relevant former 30
board, been paid the monetary value under any other 31
entitlement of the employee). 32
19 Transfer payments [NSW] 33
A transferred employee is not entitled to receive any 34
payment or other benefit (including in the nature of 35
severance pay or redundancy or other compensation) 36
merely because the employee ceased to be an employee of 37
the Government Service or relevant former board, or the 38
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employee's contract of employment with the Government 1
Service or relevant former board was terminated, as a 2
result of the transfer of employment. 3
Division 5 Financial matters [NSW] 4
20 Education and research account [NSW] 5
(1) An amount in an Education and Research Account 6
established by a former Board for a health profession 7
under a repealed Act is taken to be transferred to the 8
Education and Research Account established by the 9
Council for that profession under this Law. 10
(2) An amount that had been appropriated from the Education 11
and Research Account under the repealed Act for or 12
towards a purpose specified under that Act but not paid 13
before the commencement is to be paid by the Council for 14
the health profession under this Law. 15
21 Education Account for dental technicians [NSW] 16
(1) As soon as practicable after the commencement, the 17
Dental Council of New South Wales must establish an 18
account named the Dental Technicians Education 19
Account. 20
(2) The Council must pay into the Education Account the 21
amounts decided in accordance with the NSW regulations. 22
(3) Money in the Education Account may be expended by the 23
Council only for purposes relating to the education of 24
dental technicians. 25
(4) An expenditure of money in the Education Account must 26
not be made unless it is authorised by a committee of the 27
Council consisting of 5 members. 28
(5) The committee must consist of-- 29
(a) at least 2 members who are dental technicians; and 30
(b) no more than 2 members who are dentists. 31
(6) An expenditure of money in the Education Account may 32
be authorised by the committee only if 4 of the members of 33
the committee support the expenditure. 34
(7) All the money in the Education Account must be expended 35
within 3 years after the Account is established. 36
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(8) When all the money in the Education Account has been 1
expended the Council must close the Account. 2
(9) In this clause-- 3
dental technician means a person, other than a dentist or 4
dental prosthetist, who is engaged in the mechanical 5
construction, or renewal or repair, of artificial dentures or 6
restorative dental appliances. 7
Division 6 Pharmacy businesses [NSW] 8
22 Approval, authorisation or consent given under Pharmacy 9
Practice Act 2006 continues [NSW] 10
(1) An approval, authorisation or consent in force under 11
Division 2 of Part 3 of the Pharmacy Practice Act 2006 12
immediately before the commencement continues after the 13
commencement as if it had been given under Schedule 5F. 14
(2) Without limiting subclause (1), the approval, authorisation 15
or consent continues subject to any conditions that applied 16
to it immediately before the commencement. 17
23 Application for approval, authorisation or consent [NSW] 18
An application for an approval, authorisation or consent 19
made under Part 3 of the Pharmacy Practice Act 2006 but 20
not decided immediately before the commencement is 21
taken, after the commencement, to be an application made 22
to the Pharmacy Council of New South Wales under 23
Schedule 5F. 24
24 Appointment of responsible pharmacist continues [NSW] 25
An appointment under clause 9 of the Pharmacy Practice 26
Regulation 2008 in force immediately before the 27
commencement continues after the commencement as if it 28
had been made under this Law. 29
25 Register of Pharmacies [NSW] 30
The Register of Pharmacies kept under the Pharmacy 31
Practice Act 2006 immediately before the commencement 32
is taken, from the commencement, to be the Register of 33
Pharmacies kept by the Pharmacy Council of New South 34
Wales under this Law. 35
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26 Inspectors [NSW] 1
A person who immediately before the commencement was 2
an inspector under the Pharmacy Practice Act 2006 is 3
taken, from the commencement, to be an authorised person 4
appointed under this Law. 5
Division 7 Miscellaneous [NSW] 6
27 Principal place of practice [NSW] 7
A person who was, immediately before the 8
commencement, registered as a health practitioner under a 9
repealed Act is taken on the commencement to have 10
declared the address recorded for the person in the Register 11
kept under that Act as being the person's principal place of 12
practice. 13
28 References to former Boards in conditions [NSW] 14
(1) This clause applies if-- 15
(a) a registered health practitioner's or student's 16
registration is subject to a condition under 17
section 279; and 18
(b) the condition includes a reference to a former Board. 19
(2) From the commencement, the reference to the former 20
Board is taken to be a reference to-- 21
(a) the Council established for the same health 22
profession as the profession for which the former 23
Board was established; or 24
(b) if the Council gives the registered health 25
practitioner or student written notice that the 26
reference is taken to be a reference to the National 27
Board for the profession, the National Board. 28
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Schedule 5B Provisions relating to 1
performance assessments 2
[NSW] 3
Note. This Schedule is an additional New South Wales provision. 4
Part 1 Provisions relating to assessors 5
[NSW] 6
1 General [NSW] 7
(1) An assessor may exercise the powers conferred by this Part 8
only for the purpose of conducting a performance 9
assessment when required by a Council or a Performance 10
Review Panel. 11
(2) The performance assessment must be conducted in 12
accordance with any directions given by the Council or the 13
Performance Review Panel. 14
(3) If the Council or the Panel instructs the assessor to limit the 15
performance assessment to a particular aspect or aspects of 16
the registered health practitioner's professional 17
performance, the assessment must be limited to that aspect 18
or those aspects. 19
(4) However, the assessor may assess other aspects of the 20
professional performance of the registered health 21
practitioner if during the course of the performance 22
assessment the assessor forms the opinion that other 23
aspects of the professional performance of the practitioner 24
may be unsatisfactory and should be assessed. 25
2 Entry to premises [NSW] 26
(1) An assessor may at any reasonable time enter and 27
inspect-- 28
(a) any premises that the assessor reasonably believes 29
are used by a registered health practitioner in 30
connection with his or her professional practice; and 31
(b) any premises in or on which the assessor reasonably 32
believes records relating to the carrying out of a 33
professional practice by a registered health 34
practitioner are kept. 35
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(2) An assessor may enter premises only-- 1
(a) with the consent of the occupier and the health 2
practitioner to whom the performance assessment 3
relates; or 4
(b) after having given the occupier of the premises, and 5
the health practitioner to whom the performance 6
assessment relates, at least 14 days notice of the 7
assessor's intention to enter the premises. 8
(3) On premises entered on the basis that they are used by a 9
registered health practitioner in connection with his or her 10
professional practice, an assessor has the following 11
powers-- 12
(a) power to examine any equipment that the assessor 13
reasonably believes is, has or may be used in 14
connection with the professional practice; 15
(b) power to take photographs of the premises, or of any 16
equipment on the premises (being equipment that 17
the assessor reasonably believes is, has or may be 18
used in connection with the professional practice); 19
(c) power to require the production of and inspect any 20
stocks of any substance or drugs in or about those 21
premises; 22
(d) power to require any person on those premises to 23
produce any records in the possession or under the 24
control of that person relating to the carrying out of 25
that professional practice; 26
(e) power to take copies of, or extracts or notes from, 27
the records; 28
(f) power to ask questions of any person on those 29
premises; 30
(g) power to require the owner or occupier of those 31
premises to provide the assessor with the assistance 32
and facilities reasonably necessary to enable the 33
assessor to exercise the functions of an assessor 34
under this clause. 35
(4) On premises entered on the basis that records relating to 36
the carrying out of professional practice by a registered 37
health practitioner are kept there, an assessor has the 38
following powers-- 39
(a) power to require any person on those premises to 40
produce any records in the possession or under the 41
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control of that person and relating to the carrying out 1
of that professional practice; 2
(b) power to take copies of, or extracts or notes from, 3
the records. 4
(5) This clause does not authorise an assessor to enter any part 5
of premises that is being used for residential purposes 6
except with the consent of the occupier. 7
(6) This clause does not authorise an assessor to require a 8
person to answer any question, and a failure or refusal by 9
a person to answer any question does not constitute an 10
offence against clause 5. 11
(7) However, a failure or refusal by a registered health 12
practitioner, without reasonable excuse, to answer any 13
question asked by an assessor is evidence that the 14
professional performance of the registered health 15
practitioner is unsatisfactory. 16
3 Power to conduct assessment exercise [NSW] 17
(1) A Council may, by notice given to a registered health 18
practitioner who is the subject of a performance 19
assessment, require the practitioner to take part in an 20
assessment exercise. 21
(2) An assessment exercise is an exercise during which the 22
assessor observes and assesses the professional 23
performance of the registered health practitioner. 24
(3) If practicable an assessment exercise must be based on an 25
actual clinical situation (that is, an actual consultation or 26
examination or the giving or performance of any other 27
treatment, by a registered health practitioner). 28
(4) However, an assessment exercise may be based on a 29
simulated clinical situation (for example, a mock 30
consultation) if an actual clinical situation is not 31
practicable in the circumstances. 32
(5) The time and place for, and the length of, the assessment 33
exercise must be reasonable. 34
(6) A failure or refusal by a registered health practitioner to 35
take part in, or to continue with, an assessment exercise 36
does not constitute an offence against clause 5. 37
(7) However, a failure or refusal by a registered health 38
practitioner, without reasonable excuse, to take part in or 39
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to continue with an assessment exercise is evidence that 1
the professional conduct of the registered health 2
practitioner is unsatisfactory. 3
(8) This clause does not authorise an assessor to be present 4
during any examination of a person, or at the giving or 5
performance of any other health service or treatment by a 6
registered health practitioner in respect of a person, 7
without the consent of the person. 8
4 Answers to questions [NSW] 9
(1) Any information furnished by a person in answering a 10
question asked by an assessor for the purposes of a 11
performance assessment is not admissible against the 12
person in civil proceedings before a court except with the 13
consent of the person. 14
(2) Subclause (1) does not extend to any information furnished 15
by a person that is a record required to be kept by or under 16
this Law or any other Act. 17
5 Offences [NSW] 18
A person must not-- 19
(a) prevent an assessor from exercising a function 20
conferred or imposed on the assessor under this 21
Schedule; or 22
(b) hinder or obstruct an assessor in the exercise of a 23
function conferred or imposed on the assessor under 24
this Schedule; or 25
(c) furnish an assessor with information knowing it to 26
be false or misleading in a material particular. 27
Maximum penalty-- 28
(a) for an offence under paragraph (a) or (b)-- 29
50 penalty units; or 30
(b) for an offence under paragraph (c)--20 penalty 31
units. 32
6 Offence of impersonating assessor [NSW] 33
A person must not impersonate or falsely represent that the 34
person is an assessor. 35
Maximum penalty--50 penalty units. 36
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7 Certificates of authority [NSW] 1
(1) An assessor must be provided with a certificate of 2
authority in a form approved by the Council that appointed 3
the assessor. 4
(2) An assessor must, on exercising in any place any function 5
of the assessor under this Schedule, produce the assessor's 6
certificate of authority to any person apparently in charge 7
of the place who requests its production. 8
Part 2 Provisions relating to performance 9
reviews [NSW] 10
8 Conduct of performance review [NSW] 11
(1) A performance review must be conducted in the way 12
decided by the Performance Review Panel. 13
(2) The performance review must be conducted-- 14
(a) with as little formality and technicality, and as much 15
expedition, as the requirements of this Law and the 16
proper consideration of the matter permit; and 17
(b) in the absence of the public. 18
(3) In conducting a performance review a Performance 19
Review Panel is not bound by the rules of evidence but 20
may inform itself on any matter in any way it thinks 21
appropriate. 22
9 Power to summon witnesses and take evidence [NSW] 23
(1) The Chairperson of a Performance Review Panel may 24
summon a person to appear at a performance review and to 25
produce the documents (if any) referred to in the summons. 26
(2) The Chairperson of the Panel may require a person 27
appearing at the performance review to produce a 28
document. 29
(3) A person served with a summons to appear at a 30
performance review to give evidence must not, without 31
reasonable excuse-- 32
(a) fail to attend as required by the summons; or 33
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(b) fail to attend from day to day unless excused, or 1
released from further attendance, by a member of 2
the Panel. 3
Maximum penalty--20 penalty units. 4
(4) A person appearing at a performance review to give 5
evidence must not, without reasonable excuse-- 6
(a) fail to answer a question that the person is required 7
to answer by the Chairperson of the Panel; or 8
(b) fail to produce a document that the person is 9
required to produce by this clause. 10
Maximum penalty--20 penalty units. 11
10 Power to obtain documents [NSW] 12
(1) A member of a Performance Review Panel may, by notice 13
in writing served on a person, require the person-- 14
(a) to attend, at a time and place specified in the notice, 15
before a person specified in the notice, being a 16
member of the Performance Review Panel or a 17
person authorised by the Panel in that behalf; and 18
(b) to produce, at that time and place, to the person so 19
specified a document specified in the notice. 20
(2) A person who fails, without reasonable excuse, to comply 21
with a notice served on the person under this clause is 22
guilty of an offence. 23
Maximum penalty--20 penalty units. 24
11 Practitioner entitled to make representations [NSW] 25
(1) A registered health practitioner who is the subject of a 26
performance review is entitled to attend at the performance 27
review and make oral or written representations to the 28
Performance Review Panel with respect to the subject 29
matter of the performance review. 30
(2) The registered health practitioner is entitled to be 31
accompanied by an Australian legal practitioner or other 32
adviser, but is not entitled to be represented by the 33
Australian legal practitioner or other adviser. 34
(3) This clause does not prevent a Performance Review Panel 35
from conducting a performance review in the absence of 36
the registered health practitioner, as long as the 37
practitioner has been informed of the performance review. 38
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12 Panel may obtain reports [NSW] 1
A Performance Review Panel may, for the purpose of 2
conducting a performance review, obtain a report from a 3
person who, in the Panel's opinion, is sufficiently qualified 4
or experienced to give expert advice on the matter that is 5
the subject of the performance review. 6
13 Assessors may assist Panel [NSW] 7
(1) The Council that established a Performance Review Panel 8
may appoint one or more assessors to assist the Panel with 9
the performance review. 10
(2) The Panel may direct an assessor-- 11
(a) to conduct an assessment of the professional 12
performance of a registered health practitioner, and 13
report on that assessment to the Panel; and 14
(b) to provide the other assistance in connection with 15
the performance review the Panel directs. 16
14 Release of information [NSW] 17
(1) The Chairperson of a Performance Review Panel may, if 18
the Chairperson thinks it appropriate in the particular 19
circumstances of the case (and whether or not on the 20
request of the practitioner concerned or any other 21
person)-- 22
(a) direct that the name of any witness is not to be 23
disclosed in the performance review; or 24
(b) direct that all or any of the following matters are not 25
to be published-- 26
(i) the name and address of any witness; 27
(ii) the name and address of a registered health 28
practitioner; 29
(iii) any specified evidence; 30
(iv) the subject-matter of the performance review. 31
(2) A direction may be amended or revoked at any time by the 32
Chairperson of the Panel. 33
(3) A direction may be given before or during a performance 34
review, but must not be given before the performance 35
review unless notice is given of the time and place 36
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appointed by the Chairperson of the Panel for 1
consideration of the matter to the following persons-- 2
(a) a person who requested the direction; 3
(b) the practitioner concerned; 4
(c) another person the person presiding thinks fit. 5
(4) A person who contravenes a direction given under this 6
clause is guilty of an offence. 7
Maximum penalty-- 8
(a) in the case of a corporation, 150 penalty units; or 9
(b) in any other case, 20 penalty units. 10
Schedule 5C Provisions relating to the 11
members and procedure of 12
Councils [NSW] 13
Note. This Schedule is an additional New South Wales provision. 14
Part 1 Membership of Councils [NSW] 15
Division 1 Dental Council of New South Wales 16
[NSW] 17
1 Definitions [NSW] 18
In this Division-- 19
dental auxiliary means a person-- 20
(a) who is registered under this Law in the dental 21
profession; and 22
(b) whose name is included in one of the following 23
divisions of the Register of Dental Practitioners kept 24
under this Law-- 25
(i) dental therapists; 26
(ii) dental hygienists; 27
(iii) oral health therapists. 28
dental prosthetist means a person-- 29
(a) who is registered under this Law in the dental 30
profession; and 31
(b) whose name is included in the Dental Prosthetists 32
Division of the Register of Dental Practitioners kept 33
under this Law. 34
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dentist means a person-- 1
(a) who is registered under this Law in the dental 2
profession; and 3
(b) whose name is included in the Dentists Division of 4
the Register of Dental Practitioners kept under this 5
Law. 6
local dentists means dentists whose principal places of 7
practice are in the State. 8
2 Membership of Dental Council [NSW] 9
(1) The Dental Council of New South Wales consists of 10
13 members appointed by the Governor, of whom-- 11
(a) 5 are to be local dentists elected, in accordance with 12
the NSW regulations, by local dentists; and 13
(b) 8 are to be appointed by the Governor in accordance 14
with subclause (2). 15
(2) The appointed members are to be-- 16
(a) one person nominated by the Minister, being an 17
officer of the Department of Health or an employee 18
of a public health organisation; and 19
(b) one dentist nominated by the Minister, being a 20
registered dentist involved in conducting approved 21
programs of study for the dental profession; and 22
(c) one dentist nominated by the Minister; and 23
(d) one dental prosthetist nominated by the Minister; 24
and 25
(e) one dental auxiliary nominated by the Minister; and 26
(f) 2 persons, who are not registered under this Law in 27
the dental profession, nominated by the Minister to 28
represent the community; and 29
(g) one Australian lawyer nominated by the Minister. 30
Division 2 Medical Council of New South Wales 31
[NSW] 32
3 Membership of Medical Council [NSW] 33
(1) The Medical Council of New South Wales consists of 34
20 members who are to be appointed by the Governor. 35
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(2) Of the members-- 1
(a) one is to be a medical practitioner who is an officer 2
of the Department of Health or an employee of a 3
public health organisation within the meaning of the 4
Health Services Act 1997 (not being a person 5
nominated under any other paragraph); and 6
(b) one is to be an Australian lawyer nominated by the 7
Minister; and 8
(c) 2 are to be medical practitioners nominated by the 9
Australian Medical Association (NSW) Limited; 10
and 11
(d) one is to be a person nominated by the Community 12
Relations Commission; and 13
(e) one is to be a medical practitioner nominated jointly 14
by the Senate of the University of Sydney, the 15
Council of the University of New South Wales and 16
the Council of the University of Newcastle; and 17
(f) 8 are to be medical practitioners nominated 18
respectively by the following bodies-- 19
(i) the Royal Australasian College of Physicians, 20
New South Wales State Committee; 21
(ii) the Royal Australian and New Zealand 22
College of Obstetricians and Gynaecologists, 23
New South Wales Regional Committee; 24
(iii) the Royal Australasian College of Surgeons, 25
New South Wales State Committee; 26
(iv) the Royal Australian College of General 27
Practitioners, New South Wales and 28
Australian Capital Territory Faculty; 29
(v) the Royal Australasian College of Medical 30
Administrators, New South Wales State 31
Committee; 32
(vi) the Royal Australian and New Zealand 33
College of Psychiatrists, New South Wales 34
Branch; 35
(vii) the Royal College of Pathologists of 36
Australasia; 37
(viii) the Royal College of Australian and New 38
Zealand Radiologists; and 39
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(g) 6 are to be persons nominated by the Minister, not 1
less than 4 of whom are to be persons who, in the 2
Minister's opinion, are conversant with the interests 3
of patients as consumers of medical services. 4
4 Nominations for membership [NSW] 5
(1) If a body from whom a nomination is required under 6
clause 3 does not nominate a medical practitioner within 7
the time and in the way specified by the Minister by 8
written notice given to the body, the Governor may instead 9
appoint as a member a medical practitioner nominated by 10
the Minister. 11
(2) A medical practitioner is not eligible to be nominated by 12
the Minister under this clause instead of a practitioner 13
nominated by a body unless the practitioner nominated by 14
the Minister is a member of that body. 15
Division 3 Nursing and Midwifery Council of New 16
South Wales [NSW] 17
5 Definitions [NSW] 18
In this Division-- 19
enrolled nurse means a person-- 20
(a) who is registered under this Law in the nursing and 21
midwifery profession; and 22
(b) whose name is included in the enrolled nurses 23
(Division 2) division of the Register of Nurses kept 24
under this Law. 25
local enrolled nurse means an enrolled nurse whose 26
principal place of practice is in the State. 27
local midwives means midwives whose principal places of 28
practice are in the State. 29
local registered nurses means registered nurses whose 30
principal places of practice are in the State. 31
midwife means a person-- 32
(a) who is registered under this Law in the nursing and 33
midwifery profession; and 34
(b) whose name is included in the Register of Midwives 35
kept under this Law. 36
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registered nurse means a person-- 1
(a) who is registered under this Law in the nursing and 2
midwifery profession; and 3
(b) whose name is included in the registered nurses 4
(Division 1) division of the Register of Nurses kept 5
under this Law. 6
6 Membership of Nursing and Midwifery Council [NSW] 7
(1) The Nursing and Midwifery Council of New South Wales 8
consists of 16 members appointed by the Governor. 9
(2) Of the members-- 10
(a) 3 are to be local registered nurses elected, in 11
accordance with the NSW regulations, by local 12
registered nurses; and 13
(b) one is to be a local midwife elected, in accordance 14
with the NSW regulations, by local midwives; and 15
(c) one is to be a local enrolled nurse elected, in 16
accordance with the NSW regulations, by local 17
enrolled nurses; and 18
(d) 2 are to be nurses or midwives engaged in the 19
tertiary or pre-enrolment education of nurses or 20
midwives in this jurisdiction nominated by the 21
Minister, at least one of whom is a registered nurse; 22
and 23
(e) one is to be a registered nurse or midwife nominated 24
by the New South Wales Nurses' Association; and 25
(f) one is to be a registered nurse or midwife nominated 26
by the College of Nursing; and 27
(g) one is to be a registered nurse who is nominated by 28
the Minister and who practises nursing in the area of 29
mental health; and 30
(h) one is to be an enrolled nurse nominated by the 31
Minister; and 32
(i) one is to be a registered nurse nominated by the 33
Minister who is an officer of the Department of 34
Health, an area health service, the Ambulance 35
Service of New South Wales or the Health 36
Administration Corporation (constituted under the 37
Health Administration Act 1982); and 38
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(j) one is to be an Australian lawyer nominated by the 1
Minister; and 2
(k) 3 are to be persons nominated by the Minister as 3
representatives of the community. 4
(3) If the New South Wales Nurses' Association or the 5
College of Nursing does not nominate a registered nurse or 6
midwife within the time or in the way specified by the 7
Minister by written notice to the Association or College, 8
the Governor may instead appoint as a member a person 9
nominated by the Minister. 10
Division 4 Pharmacy Council of New South Wales 11
[NSW] 12
7 Membership of Pharmacy Council [NSW] 13
(1) The Pharmacy Council of New South Wales consists of 14
10 members, of whom-- 15
(a) 5 are to be local pharmacists elected by local 16
pharmacists in accordance with the NSW 17
regulations; and 18
(b) 5 are to be appointed by the Governor in accordance 19
with subclause (2). 20
(2) The appointed members are to be-- 21
(a) one person nominated by the Minister, being an 22
officer of the Department of Health or an employee 23
of an area health service, statutory health 24
corporation or affiliated health organisation within 25
the meaning of the Health Services Act 1997; and 26
(b) one pharmacist nominated by the Minister, being a 27
pharmacist involved in conducting approved 28
programs of study for the pharmacy profession; and 29
(c) 2 persons, who are not pharmacists, nominated by 30
the Minister to represent the community; and 31
(d) one Australian lawyer nominated by the Minister. 32
(3) In this clause-- 33
local pharmacists means pharmacists whose principal 34
places of practice are in the State. 35
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Division 5 Physiotherapy Council of New South 1
Wales [NSW] 2
8 Membership of Physiotherapy Council [NSW] 3
(1) The Physiotherapy Council of New South Wales consists 4
of 11 members, of whom-- 5
(a) 3 are to be local physiotherapists elected by local 6
physiotherapists in accordance with the NSW 7
regulations; and 8
(b) 8 are to be appointed by the Governor in accordance 9
with subclause (2). 10
(2) The appointed members are to be-- 11
(a) one person nominated by the Minister, being an 12
officer of the Department of Health or an employee 13
of an area health service, statutory health 14
corporation or affiliated health organisation within 15
the meaning of the Health Services Act 1997; and 16
(b) one physiotherapist nominated by the Minister from 17
a panel of physiotherapists nominated by the 18
Australian Physiotherapy Association New South 19
Wales Branch, and any other body representing 20
physiotherapists decided by the Minister; and 21
(c) one physiotherapist nominated by the Minister, 22
being a physiotherapist involved in conducting 23
approved programs of study for the physiotherapy 24
profession; and 25
(d) one physiotherapist nominated by the Minister; and 26
(e) 3 persons nominated by the Minister, at least 2 of 27
whom are not physiotherapists and are nominated to 28
represent the community; and 29
(f) one Australian lawyer nominated by the Minister. 30
(3) If the panel of physiotherapists required to be nominated 31
for the purposes of subclause (2)(b) is not nominated 32
within the time or in the way specified by the Minister by 33
written notice to the Association or body concerned, the 34
Governor may instead appoint as a member a person 35
nominated by the Minister. 36
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(4) In this clause-- 1
local physiotherapists mean physiotherapists whose 2
principal places of practice are in the State. 3
physiotherapist means a person registered under this Law 4
in the physiotherapy profession. 5
Division 6 Psychology Council of New South 6
Wales [NSW] 7
9 Membership of Psychology Council [NSW] 8
(1) The Psychology Council of New South Wales consists of 9
9 members appointed by the Governor. 10
(2) The members are to be-- 11
(a) one person nominated by the Minister, being an 12
officer of the Department of Health or an employee 13
of an area health service, statutory health 14
corporation or affiliated health organisation within 15
the meaning of the Health Services Act 1997; and 16
(b) 3 psychologists nominated by the Minister from a 17
panel of psychologists nominated by the Australian 18
Psychological Society Limited and other bodies the 19
Minister may decide; and 20
(c) one psychologist nominated by the Minister, being 21
a member of the teaching staff of an educational 22
institution that is involved in conducting approved 23
programs of study for the psychology profession in 24
this jurisdiction; and 25
(d) one psychologist nominated by the Minister; and 26
(e) 2 persons, who are not psychologists, nominated by 27
the Minister to represent the community; and 28
(f) one Australian lawyer nominated by the Minister. 29
(3) If the panel of psychologists required to be nominated for 30
the purposes of subclause (2)(b) is not nominated within 31
the time or in the way specified by the Minister by notice 32
to the Society or body concerned, the Governor may 33
instead appoint as a member a person nominated by the 34
Minister. 35
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Part 2 Members of Councils [NSW] 1
10 President and Deputy President of Council [NSW] 2
(1) Of the members of a Council-- 3
(a) one who is registered in the health profession for 4
which the Council is established must be appointed 5
as President of the Council; and 6
(b) one must be appointed as Deputy President of the 7
Council. 8
(2) The appointments are to be made in and by the relevant 9
instrument of appointment as a member of the Council, or 10
by another instrument executed by the Governor. 11
(3) A person who is the President or Deputy President vacates 12
office as President or Deputy President if the person-- 13
(a) is removed from that office by the Governor under 14
subclause (4); or 15
(b) resigns that office by instrument in writing 16
addressed to the Minister; or 17
(c) ceases to be a member. 18
(4) The Governor may remove a member from the office of 19
President or Deputy President. 20
11 Acting members and acting President [NSW] 21
(1) The Governor may, from time to time, appoint a person to 22
act in the office of a member of a Council during the illness 23
or absence of the member, and the person, while so acting, 24
has and may exercise all the functions of the member and 25
is taken to be a member. 26
(2) The Deputy President may act in the office of President 27
during the illness or absence of the President, and while so 28
acting has and may exercise all the functions of the 29
President and is taken to be the President. 30
(3) The Governor may, from time to time, appoint a member 31
to act in the office of President during the illness or 32
absence of both the President and Deputy President, and 33
the member, while so acting, has and may exercise all the 34
functions of the President and is taken to be the President. 35
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(4) A person is not eligible to be appointed under subclause (1) 1
to act in the office of a member of the Council required to 2
be a registered health practitioner nominated by a 3
particular body unless the person is a member of that body. 4
(5) The Governor may remove any person from any office to 5
which the person was appointed under this clause. 6
(6) A person while acting in the office of a member is entitled 7
to be paid the remuneration (including travelling and 8
subsistence allowances) decided by the Minister from time 9
to time. 10
(7) For the purposes of this clause, a vacancy in the office of a 11
member, the President or the Deputy President is taken to 12
be an absence from office of the member, President or 13
Deputy President. 14
12 Terms of office [NSW] 15
(1) Subject to this Schedule, a member of a Council holds 16
office for the period, not exceeding 3 years, specified in the 17
instrument of appointment of the member, but is eligible 18
(if otherwise qualified) for re-appointment. 19
(2) A person may not hold office as a member of a Council for 20
consecutive terms of office totalling more than 9 years. 21
13 Remuneration [NSW] 22
(1) A member of a Council is entitled to be paid the 23
remuneration (including travelling and subsistence 24
allowances) decided by the Minister from time to time. 25
(2) A member of a Council is, while sitting on an inquiry, 26
entitled to be paid at a rate decided by the Minister. 27
(3) A Council may pay a member of the Council who performs 28
any service for the Council the amount the Minister 29
considers appropriate. 30
14 Filling of vacancy in office of member [NSW] 31
If the office of any member of a Council becomes vacant, 32
a person must be nominated by the Minister to fill the 33
vacancy. 34
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15 Casual vacancies [NSW] 1
(1) A member of a Council vacates office if the member-- 2
(a) dies; or 3
(b) absents himself or herself from 4 consecutive 4
meetings of the Council of which reasonable notice 5
has been given to the member personally or in the 6
ordinary course of post, except on leave granted by 7
the Minister or unless, before the expiration of 8
4 weeks after the last of those meetings, the member 9
is excused by the Minister for being absent from 10
those meetings; or 11
(c) becomes bankrupt, applies to take the benefit of any 12
law for the relief of bankrupt or insolvent debtors, 13
compounds with his or her creditors or makes an 14
assignment of his or her remuneration for their 15
benefit; or 16
(d) becomes a mentally incapacitated person; or 17
(e) is convicted in this jurisdiction of an offence that is 18
punishable by imprisonment for 12 months or more 19
or is convicted elsewhere than in this jurisdiction of 20
an offence that, if committed in this jurisdiction, 21
would be an offence so punishable; or 22
(f) ceases to have any qualification necessary for his or 23
her appointment as a member, other than the 24
nomination of a particular person or body; or 25
(g) resigns the office by instrument in writing addressed 26
to the Minister; or 27
(h) is removed from office by the Governor under 28
subclause (2) or (3). 29
(2) The Governor may remove a member from office. 30
(3) Without limiting subclause (2), the Governor may remove 31
from office a member who contravenes the provisions of 32
clause 16. 33
16 Disclosure of pecuniary interests [NSW] 34
(1) A member of a Council who has a direct or indirect 35
pecuniary interest-- 36
(a) in a matter that is being considered, or is about to be 37
considered, at a meeting of the Council; or 38
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(b) in a thing being done or about to be done by the 1
Council; 2
must, as soon as possible after the relevant facts have come 3
to the member's knowledge, disclose the nature of the 4
interest at a meeting of the Council. 5
(2) A disclosure by a member at a meeting of a Council that 6
the member-- 7
(a) is a member, or is in the employment, of a specified 8
company or other body; or 9
(b) is a partner, or is in the employment, of a specified 10
person; or 11
(c) has some other specified interest relating to a 12
specified company or other body or a specified 13
person; 14
is taken to be a sufficient disclosure of the nature of the 15
interest in any matter or thing relating to that company or 16
other body or to that person which may arise after the date 17
of the disclosure. 18
(3) A Council must cause particulars of any disclosure made 19
under this clause to be recorded in a book kept for the 20
purpose and that book must be open at all reasonable hours 21
for inspection by any person on payment of the fee decided 22
by the Council from time to time. 23
(4) After a member has, or is taken to have, disclosed the 24
nature of an interest in any matter or thing pursuant to this 25
clause, the member must not, unless the Council otherwise 26
determines-- 27
(a) be present during any deliberation of the Council, or 28
take part in any decision of the Council, with respect 29
to that matter; or 30
(b) exercise any functions under this Law with respect 31
to that thing. 32
(5) Even if a member contravenes the provisions of this 33
clause, the contravention does not invalidate any decision 34
of the Council or the exercise of any function under this 35
Law. 36
(6) This clause does not apply to or in respect of an interest of 37
a member in a matter or thing which arises merely because 38
the member is a registered health practitioner. 39
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(7) A reference in this clause to a meeting of the Council 1
includes a reference to a meeting of a committee of the 2
Council. 3
17 Effect of certain other Acts [NSW] 4
(1) Chapter 2 of the Public Sector Employment and 5
Management Act 2002 does not apply to or in respect of 6
the appointment of a member of a Council and a member 7
is not, as a member, subject to that Act. 8
(2) If by or under any other Act provision is made-- 9
(a) requiring a person who is the holder of a specified 10
office to devote the whole of his or her time to the 11
duties of that office; or 12
(b) prohibiting the person from engaging in 13
employment outside the duties of that office; 14
that provision does not operate to disqualify the person 15
from holding that office and also the office of a member or 16
from accepting and retaining any remuneration payable to 17
the person under this Law as a member. 18
(3) The office of a member is not for the purposes of any Act, 19
an office or place of profit under the Crown. 20
Part 3 Procedure of Councils [NSW] 21
18 General procedure [NSW] 22
The procedure for the calling of meetings of a Council and 23
for the conduct of business at those meetings is, subject to 24
this Law, as decided by the Council. 25
19 Quorum [NSW] 26
Except as otherwise provided by this Law, the quorum for 27
a meeting of the Council is the number equal to half of the 28
number of its members or, if half is not a whole number, 29
the next highest whole number. 30
20 Presiding member [NSW] 31
(1) The President or, in the absence of the President, the 32
Deputy President or in the absence of both of them, 33
another member of a Council elected to chair the meeting 34
by the members present, must preside at a meeting of the 35
Council. 36
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(2) The person presiding at any meeting of a Council has a 1
deliberative vote and, in the event of an equality of votes, 2
has a second or casting vote. 3
21 Voting [NSW] 4
A decision supported by a majority of the votes cast at a 5
meeting of a Council at which a quorum is present is the 6
decision of the Council. 7
22 Minutes [NSW] 8
A Council must cause full and accurate minutes to be kept 9
of the proceedings of each meeting of the Council. 10
Schedule 5D Proceedings before 11
Professional Standards 12
Committees or Tribunals [NSW] 13
Note. This Schedule is an additional New South Wales provision. 14
1 Definition [NSW] 15
In this Schedule-- 16
Committee means a Professional Standards Committee. 17
2 Proceedings generally [NSW] 18
In proceedings before it, a Committee or Tribunal is not 19
bound to observe the rules of law governing the admission 20
of evidence, but may inform itself of any matter in the way 21
it thinks fit. 22
3 Power to summon witnesses and take evidence [NSW] 23
(1) The Chairperson or Deputy Chairperson of a Committee or 24
Tribunal may summon a person to appear in proceedings 25
before the Committee or Tribunal to give evidence and to 26
produce the documents (if any) referred to in the summons. 27
(2) The person presiding at the proceedings may require a 28
person appearing in the proceedings to produce a 29
document. 30
(3) A Committee or Tribunal may, in proceedings before it, 31
take evidence on oath or affirmation and, for that purpose 32
a member of the Committee or Tribunal-- 33
(a) may require a person appearing in the proceedings 34
to give evidence either to take an oath or to make an 35
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affirmation in a form approved by the person 1
presiding; and 2
(b) may administer an oath to or take an affirmation 3
from a person so appearing in the proceedings. 4
(4) A person served with a summons to appear in proceedings 5
before a Committee or Tribunal proceedings and to give 6
evidence must not, without reasonable excuse-- 7
(a) fail to attend as required by the summons; or 8
(b) fail to attend from day to day unless excused, or 9
released from further attendance, by a member of 10
the Committee or Tribunal. 11
(5) A person appearing in proceedings to give evidence must 12
not, without reasonable excuse-- 13
(a) when required to be sworn or affirm--fail to comply 14
with the requirement; or 15
(b) fail to answer a question that the person is required 16
to answer by the person presiding; or 17
(c) fail to produce a document that the person is 18
required to produce by this clause. 19
Maximum penalty--20 penalty units. 20
4 Power to obtain documents [NSW] 21
(1) A member of a Committee or Tribunal may, by notice in 22
writing served on a person, require the person-- 23
(a) to attend, at a time and place specified in the notice, 24
before a person specified in the notice, being a 25
member of the Committee or Tribunal or a person 26
authorised by the Committee or Tribunal in that 27
behalf; and 28
(b) to produce, at that time and place, to the person so 29
specified a document specified in the notice. 30
(2) A person who fails, without reasonable excuse, to comply 31
with a notice served on the person under this clause is 32
guilty of an offence. 33
Maximum penalty--20 penalty units. 34
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5 Evidence of other proceedings [NSW] 1
(1) A Committee or Tribunal may receive and admit on 2
production any of the following, as evidence in any 3
proceedings-- 4
(a) the judgment and findings of a court (whether civil 5
or criminal and whether or not of this jurisdiction); 6
(b) the verdict or findings of a jury of a court (whether 7
civil or criminal and whether or not of this 8
jurisdiction); 9
(c) the judgment and findings of a tribunal (whether or 10
not of this jurisdiction); 11
(d) a finding, decision or determination of a 12
Professional Standards Committee established 13
under this Law or a corresponding prior Act; 14
(e) a decision of a performance and professional 15
standards panel established under the Health 16
Practitioner Regulation National Law; 17
(f) a certificate of the conviction of or the making of a 18
criminal finding in respect of any person; 19
(g) a transcript of the depositions or of shorthand notes, 20
duly certified by the Registrar or clerk of the court 21
or tribunal as correct, of the evidence of witnesses 22
taken in a court or tribunal referred to in 23
paragraphs (a)(c); 24
where the Committee or Tribunal is of the opinion that the 25
judgment, findings, verdict, certificate, decision, 26
determination or evidence is relevant to the proceedings. 27
(2) If the Committee or Tribunal is of the opinion that 28
evidence so admitted is capable of establishing that a 29
registered health practitioner has engaged in conduct that 30
is sufficiently similar to the conduct alleged against the 31
practitioner in the proceedings, it may rely on the evidence 32
in-- 33
(a) making a finding that a registered health practitioner 34
is guilty of unsatisfactory professional conduct or 35
professional misconduct; or 36
(b) exercising any of its powers under Subdivision 3 37
or 6 of Division 3 of Part 8. 38
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6 Additional complaints [NSW] 1
(1) A Committee or Tribunal may in proceedings before it 2
deal with one or more complaints about a registered health 3
practitioner or student. 4
(2) If, during the proceedings, it appears to the Committee or 5
Tribunal that, having regard to any matters that have 6
arisen, another complaint could have been made against 7
the practitioner or student concerned-- 8
(a) whether instead of or in addition to the complaint 9
which was made; and 10
(b) whether or not by the same complainant; 11
the Committee or Tribunal may take that other complaint 12
to have been referred to it and may deal with it in the same 13
proceedings. 14
(3) In proceedings in which a Committee or Tribunal is 15
dealing with more than one complaint about a registered 16
health practitioner or student, the Committee or Tribunal 17
may have regard to all the evidence before it (whether the 18
evidence arose in relation to a complaint in respect of 19
which the Committee or Tribunal is making a finding or 20
any other complaint or complaints in the proceedings) 21
when making any of the following findings-- 22
(a) a finding on a question of fact in relation to the 23
conduct of a registered health practitioner or 24
student; 25
(b) a finding that a registered health practitioner is 26
guilty of unsatisfactory professional conduct or 27
professional misconduct. 28
(4) If another complaint is taken to have been referred to a 29
Committee or Tribunal under subclause (2), the complaint 30
may be dealt with the adjournment (if any) that, in the 31
Committee's or Tribunal's opinion, is just and equitable in 32
the circumstances. 33
7 Release of information [NSW] 34
(1) The person presiding in proceedings before a Committee 35
or Tribunal may, if the person presiding thinks it 36
appropriate in the particular circumstances of the case (and 37
whether or not on the request of a complainant, the 38
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registered health practitioner or student concerned or any 1
other person)-- 2
(a) direct that the name of any witness is not to be 3
disclosed in the proceedings; or 4
(b) direct that all or any of the following matters are not 5
to be published-- 6
(i) the name and address of any witness; 7
(ii) the name and address of a complainant; 8
(iii) the name and address of a registered health 9
practitioner or student; 10
(iv) any specified evidence; 11
(v) the subject-matter of a complaint. 12
(2) A direction may be amended or revoked at any time by the 13
person presiding. 14
(3) A direction may be given before or during proceedings, but 15
must not be given before the proceedings unless notice is 16
given of the time and place appointed by the person 17
presiding for consideration of the matter to-- 18
(a) a person who requested the direction; and 19
(b) the complainant or the registered health practitioner 20
or student concerned, as appropriate; and 21
(c) another person the person presiding thinks fit. 22
(4) For the purposes of this clause, a reference to the name of 23
any person includes a reference to any information, picture 24
or other material that identifies the person or is likely to 25
lead to the identification of the person. 26
(5) A person who contravenes a direction given under this 27
clause is guilty of an offence. 28
Maximum penalty-- 29
(a) in the case of a corporation, 150 penalty units; or 30
(b) in any other case, 20 penalty units. 31
8 Authentication of documents by Committee or Tribunal 32
[NSW] 33
Every document requiring authentication by a Committee 34
or Tribunal may be sufficiently authenticated if signed by 35
the Chairperson or Deputy Chairperson of that Committee 36
or Tribunal or by a member of that Committee or Tribunal 37
authorised to do so by the Chairperson. 38
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9 Nominal complainant [NSW] 1
(1) In any proceedings before a Committee or Tribunal, a 2
person appointed by the Commission-- 3
(a) may act as nominal complainant in place of the 4
actual complainant; and 5
(b) when so acting, is, for the purposes of this Law and 6
the NSW regulations, to be taken to be the person 7
who made the complaint. 8
(2) A reference in this Law to a complainant includes a 9
reference to a nominal complainant. 10
10 Intervention by Director-General and Commission [NSW] 11
Without limiting the operation of clause 9, the 12
Director-General personally (or an officer of the 13
Department of Health appointed by the Director-General) 14
or a person appointed by the Commission may intervene, 15
and has a right to be heard, in any proceedings before a 16
Committee or Tribunal. 17
11 Expedition of inquiries and appeals [NSW] 18
(1) It is the duty of a Committee or Tribunal to hear inquiries 19
and appeals under this Law and to determine those 20
inquiries and appeals expeditiously. 21
(2) Without limiting subclause (1)-- 22
(a) an inquiry or appeal related to action taken by the 23
Council under section 150 must be listed for hearing 24
by a Committee or Tribunal as soon as practicable; 25
and 26
(b) a Committee or Tribunal may postpone or adjourn 27
proceedings before it as it thinks fit. 28
12 Certain complaints may not be heard [NSW] 29
(1) A Committee or Tribunal may decide not to conduct an 30
inquiry, or at any time to terminate an inquiry or appeal, 31
if-- 32
(a) any of the following circumstances apply-- 33
(i) a complainant fails to comply with a 34
requirement made of the complainant by the 35
Committee or Tribunal; 36
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(ii) the person about whom the complaint is made 1
ceases to be a registered health practitioner or 2
student; 3
(iii) the complaint before the Committee or 4
Tribunal is withdrawn; and 5
(b) in the opinion of the Committee or Tribunal it is not 6
in the public interest for the inquiry or appeal to 7
continue. 8
(2) A Committee or Tribunal must not conduct or continue 9
any inquiry or any appeal if the registered health 10
practitioner or student concerned dies. 11
(3) The power conferred on a Committee or Tribunal by this 12
clause may be exercised by the Chairperson of the 13
Committee or Tribunal and, if exercised by the 14
Chairperson, is taken to have been exercised by the 15
Committee or Tribunal. 16
13 Tribunal may award costs [NSW] 17
(1) A Tribunal may order the complainant (if any), the 18
registered health practitioner or student concerned, or any 19
other person entitled to appear (whether as of right or 20
because leave to appear has been granted) at an inquiry or 21
appeal before the Tribunal to pay costs to another person 22
as decided by the Tribunal. 23
(2) When an order for costs has taken effect, the Tribunal is, 24
on application by the person to whom the costs have been 25
awarded, to issue a certificate setting out the terms of the 26
order and stating that the order has taken effect. 27
(3) The person in whose favour costs are awarded may file the 28
certificate in the District Court, together with an affidavit 29
by the person as to the amount of the costs unpaid, and the 30
Registrar of the District Court must enter judgment for the 31
amount unpaid together with any fees paid for filing the 32
certificate. 33
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Schedule 5E Provisions relating to 1
Assessment Committee [NSW] 2
Note. This Schedule is an additional New South Wales provision. 3
Part 1 Preliminary [NSW] 4
1 Definition [NSW] 5
In this Schedule-- 6
Committee means an Assessment Committee. 7
Part 2 Members [NSW] 8
2 Chairperson of Committee [NSW] 9
One of the members referred to in section 172B(1)(a) must 10
be appointed by the Minister as the Chairperson of the 11
Committee. 12
3 Term of office [NSW] 13
Subject to this Schedule, a member of a Committee holds 14
office for the period, not exceeding 4 years, specified in the 15
instrument of appointment of the member, but is eligible 16
(if otherwise qualified) for re-appointment. 17
4 Remuneration [NSW] 18
A member of a Committee is entitled to be paid the 19
remuneration (including travelling and subsistence 20
allowances) decided by the Minister from time to time. 21
5 Filling of vacancy in office of member [NSW] 22
If the office of any member of a Committee becomes 23
vacant, a person is, subject to this Law, to be appointed to 24
fill the vacancy. 25
6 Casual vacancies [NSW] 26
(1) A member of a Committee is taken to have vacated office 27
if the member-- 28
(a) dies; or 29
(b) absents himself or herself from 4 consecutive 30
meetings of the Committee of which reasonable 31
notice has been given to the member personally or 32
in the ordinary course of post, except on leave 33
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granted by the Minister or unless, before the 1
expiration of 4 weeks after the last of those 2
meetings, the member is excused by the Minister for 3
being absent from those meetings; or 4
(c) becomes bankrupt, applies to take the benefit of any 5
law for the relief of bankrupt or insolvent debtors, 6
compounds with his or her creditors or makes an 7
assignment of his or her remuneration for their 8
benefit; or 9
(d) becomes a mentally incapacitated person; or 10
(e) is convicted in this jurisdiction of an offence that is 11
punishable by imprisonment for 12 months or more 12
or is convicted elsewhere than in this jurisdiction of 13
an offence that, if committed in this jurisdiction, 14
would be an offence so punishable; or 15
(f) resigns the office by instrument in writing addressed 16
to the Minister; or 17
(g) is removed from office by the Minister under 18
subclause (3). 19
(2) Without limiting subclause (1), a member who is 20
appointed under section 172B(1)(a) and who ceases to be 21
a registered health practitioner is taken to have vacated 22
office. 23
(3) The Minister may remove a member from office. 24
Part 3 Procedure of the Committee [NSW] 25
7 General procedure [NSW] 26
The procedure for the calling of meetings of a Committee 27
and for the conduct of business at those meetings is, 28
subject to this Law, to be as decided by the Committee. 29
8 Quorum [NSW] 30
The quorum for a meeting of a Committee is 3 members. 31
9 Voting [NSW] 32
A decision supported by a majority of the votes cast at a 33
meeting of a Committee at which a quorum is present is the 34
decision of the Committee. 35
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10 Presiding member [NSW] 1
(1) The Chairperson of a Committee or, in the absence of the 2
Chairperson, another member of the Committee elected to 3
chair the meeting by the members present, presides at a 4
meeting of the Committee. 5
(2) The person presiding at any meeting of a Committee has a 6
deliberative vote and, in the event of an equality of votes, 7
has a second or casting vote. 8
Schedule 5F Pharmacies [NSW] 9
Note. This Schedule is an additional New South Wales provision. 10
Part 1 Preliminary [NSW] 11
1 Definitions [NSW] 12
In this Schedule-- 13
approved premises means premises approved under 14
clause 12. 15
associated professional services room, in relation to a 16
pharmacy business, means a professional services room 17
specified as being associated with the pharmacy business 18
in an approval in force under clause 3. 19
Council means the Pharmacy Council of New South 20
Wales. 21
exempted body corporate means a body corporate that 22
carries on, or has a pecuniary interest in, a pharmacy 23
business under clause 7. 24
firm means a partnership or other unincorporated 25
association of persons. 26
holding company has the same meaning as it has in the 27
Corporations Act 2001 of the Commonwealth. 28
listed corporation has the same meaning as it has in the 29
Corporations Act 2001 of the Commonwealth. 30
pecuniary interest has the meaning given by clause 2. 31
pharmacists' body corporate means a body corporate all 32
the shareholders and directors of which are pharmacists. 33
pharmacists' partnership means a partnership consisting 34
only of pharmacists. 35
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pharmacy means premises in or on which a person carries 1
on a pharmacy business and includes-- 2
(a) the portion (if any) of the premises in or on which 3
the person sells or offers for sale goods of any kind; 4
and 5
(b) a professional services room; 6
but does not include premises located in a public hospital 7
controlled by a public health organisation (within the 8
meaning of the Health Services Act 1997). 9
pharmacy business means the business of a pharmacist or 10
pharmaceutical chemist in which the dispensing and 11
compounding of prescriptions for any substance specified 12
in the Poisons List proclaimed under section 8 of the 13
Poisons and Therapeutic Goods Act 1966 occurs. 14
Price Information Code of Practice means the Price 15
Information Code of Practice published by the 16
Therapeutic Goods Administration of the Commonwealth, 17
as in force on 25 February 2008. 18
professional services room means premises in or on which 19
a person carries on a pharmacy business that involves 20
only-- 21
(a) the preparation and packaging of drugs, or the 22
packaging of drugs, by or under the personal 23
supervision of a pharmacist, for supply to individual 24
patients or to a health care facility for supply to 25
patients or residents of that facility; and 26
(b) the storage of those drugs. 27
public hospital has the meaning given by the Health 28
Services Act 1997. 29
Register of Pharmacies means the Register of Pharmacies 30
kept by the Council under clause 14. 31
security interest, in respect of a pharmacy business, means 32
a mortgage, bill of sale or charge over, or other 33
arrangement of a kind prescribed by the NSW regulations 34
in respect of, a pharmacy business, that secures the 35
payment of a debt or performance of some other obligation 36
under a contract or other legally enforceable arrangement. 37
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2 Meaning of "pecuniary interest" [NSW] 1
(1) A pecuniary interest means a direct or indirect monetary 2
or financial interest and includes-- 3
(a) a proprietary interest, including a proprietary 4
interest as a sole proprietor, partner, director, 5
member or shareholder, or trustee or beneficiary; 6
and 7
(b) an interest, whether proprietary or otherwise, in a 8
pharmacy business that a person has because the 9
person is a member or shareholder of-- 10
(i) an exempted body corporate; or 11
(ii) a holding company, whether a listed 12
corporation or not, of an exempted body 13
corporate that is not a listed corporation; and 14
(c) an interest, whether proprietary or otherwise, in a 15
pharmacy business that a person has because the 16
person is a trustee or beneficiary of a trust, the trust 17
property of which includes shares in-- 18
(i) an exempted body corporate; or 19
(ii) a holding company, whether a listed 20
corporation or not, of an exempted body 21
corporate that is not a listed corporation; and 22
(d) an interest, whether proprietary or otherwise, in a 23
pharmacy business that a person has because the 24
person is a trustee or beneficiary of a trust, being a 25
trust the trustees of which, in their capacity as the 26
trustees of that trust, carry on or have a pecuniary 27
interest in the business. 28
(2) However, a pecuniary interest does not include-- 29
(a) an interest in a pharmacy business that a person has 30
because the person is-- 31
(i) a member of a friendly or other society that 32
has a pecuniary interest in a pharmacy 33
business permitted by clause 6; or 34
(ii) a member of a listed corporation that is an 35
exempted body corporate; or 36
(b) an interest in a pharmacy business that a person has 37
because the person is a member of an exempted 38
body corporate (other than a listed corporation 39
referred to in subclause (1)(b)(ii)), but only if the 40
person was a member of the body corporate before 41
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the commencement of Schedule 7.12 to the 1
Pharmacy Practice Act 2006; or 2
(c) an interest a person has in the profits of a pharmacy 3
business because the person is an employee 4
employed in that business, other than an interest 5
constituted by legal or beneficial ownership of 6
shares or other securities of a body corporate (issued 7
as part of an employee share scheme or otherwise); 8
or 9
(d) an interest that is prescribed by the NSW regulations 10
as not constituting a pecuniary interest for the 11
purposes of this Schedule. 12
Part 2 Control of pharmacies [NSW] 13
3 Pharmacies to be approved and holders of pecuniary 14
interests registered [NSW] 15
(1) A person must not carry on a pharmacy business unless-- 16
(a) the premises on which the pharmacy business is 17
carried on are the subject of a current approval of the 18
Council; and 19
(b) all holders of a pecuniary interest in the pharmacy 20
business are registered in the Register of 21
Pharmacies. 22
Maximum penalty--50 penalty units. 23
(2) Despite subclause (1)(b), a person who has lodged an 24
application under clause 12(1)(b) may carry on the 25
pharmacy business to which the application relates until 26
the Council decides the application if-- 27
(a) the premises at which the business is carried on are 28
the subject of a current approval of the Council; and 29
(b) a holder of a pecuniary interest in the business who 30
is not the subject of the application is registered in 31
the Register of Pharmacies. 32
4 Notification of pecuniary interests in pharmacy businesses 33
[NSW] 34
(1) A person who intends to acquire a pecuniary interest in a 35
pharmacy business (other than an interest referred to in 36
clause 5(4)) must, at least 14 days before acquiring the 37
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interest, give written notice to the Council of the following 1
matters-- 2
(a) the nature of the interest and the date on which it is 3
intended to be acquired; 4
(b) the basis on which the person is entitled to hold the 5
interest under this Schedule (for example, as a 6
pharmacist, a pharmacists' body corporate or a 7
friendly or other society); 8
(c) a copy of any bill of sale in relation to the 9
acquisition; 10
(d) a copy of any sale agreement for the business; 11
(e) a copy of any partnership agreement for the 12
business; 13
(f) a copy of any lease for the pharmacy; 14
(g) a copy of any agreement under which any other 15
person has a pecuniary interest in the business; 16
(h) a copy of any agreement, between persons who have 17
pecuniary interests in the business, that makes 18
provision for any rights the persons possess because 19
of having the pecuniary interests; 20
(i) a copy of any agreement for the provision of 21
management services to the business or to any 22
pharmacists' body corporate that owns an interest in 23
the business; 24
(j) a copy of any agreement (except a contract of 25
employment) between any person who has a 26
pecuniary interest in the business and any entity in 27
respect of the provision of accounting, information 28
technology, human resources or other support 29
services to the business; 30
(k) if a pharmacists' body corporate or a pharmacist is 31
acting as a trustee (whether of a fixed trust, unit 32
trust, discretionary trust or other kind of trust), a 33
copy of any relevant trust deed; 34
(l) a copy of any security interest in respect of the 35
business. 36
Maximum penalty--50 penalty units. 37
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(2) A person who acquires a pecuniary interest in a pharmacy 1
business as referred to in clause 5(4) must, within 28 days 2
after acquiring the interest, give written notice to the 3
Council of that fact, the nature of the interest concerned 4
and the date on which it was acquired. 5
Maximum penalty--50 penalty units. 6
(3) A person who ceases to have a pecuniary interest in a 7
pharmacy business must, within 14 days after doing so, 8
give written notice to the Council of that fact and the 9
nature of the interest concerned. 10
Maximum penalty--50 penalty units. 11
(4) The NSW regulations may prescribe additional matters to 12
be included in a notice under this clause. 13
5 Restrictions on who may have pecuniary interest in 14
pharmacy business [NSW] 15
(1) A person must not own or otherwise have a pecuniary 16
interest in a pharmacy business (including as a partner or 17
member of a firm) unless as one of the following-- 18
(a) a pharmacist; 19
(b) a partner in a pharmacists' partnership; 20
(c) a pharmacists' body corporate or a member of a 21
pharmacists' body corporate. 22
Maximum penalty--100 penalty units. 23
(2) Subclause (1) does not prevent a person from having a 24
pecuniary interest in a pharmacy business-- 25
(a) if the person-- 26
(i) comes into possession of the business or any 27
assets of the business as a result of a default 28
on an obligation secured by a security 29
interest; and 30
(ii) does not have the pecuniary interest for more 31
than 6 months (or the longer period specified 32
by the Council by written notice given to the 33
person) from the date the person comes into 34
possession of the pharmacy business or 35
assets; or 36
(b) if the person has the interest for a period of not more 37
than 6 months (or the longer period specified by the 38
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Council by written notice given to the person) and 1
the person has the interest because the person-- 2
(i) is the executor, administrator or trustee of the 3
estate of a deceased person who carried on the 4
pharmacy business on the day of his or her 5
death; or 6
(ii) is appointed or authorised under the laws 7
relating to bankruptcy to administer the 8
property of the person who carried on a 9
pharmacy business and who has become 10
bankrupt; or 11
(c) if the person-- 12
(i) is a pharmacist whose registration is 13
cancelled or suspended; and 14
(ii) owned or otherwise had a pecuniary interest 15
in a pharmacy business immediately before 16
the cancellation or suspension took effect; 17
and 18
(iii) does not have the pecuniary interest for a 19
period of more than 6 months immediately 20
following the day on which the cancellation 21
or suspension took effect; or 22
(d) in circumstances prescribed by the NSW 23
regulations. 24
(3) Despite subclause (2)(b) and (c), a person may have a 25
pecuniary interest in a pharmacy business under those 26
paragraphs only if the business is in the charge of a 27
pharmacist who personally supervises the carrying on of 28
that business. 29
(4) A person who has a pecuniary interest in a pharmacy 30
business under subclause (2)(c) must not, during the period 31
during which the person holds the interest, enter or be in 32
premises in which that business is carried on unless the 33
person-- 34
(a) has the Council's consent; and 35
(b) complies with any conditions imposed by the 36
Council in giving its consent. 37
(5) The Council may, at any time-- 38
(a) vary or revoke a consent; or 39
(b) vary or revoke a condition imposed on a consent. 40
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(6) A person who holds provisional, limited or non-practising 1
registration in the pharmacy profession is taken not to be a 2
pharmacist for the purposes of subclause (1) during the 3
period of that registration. 4
Note. Clauses 6 and 7 provide for the exemption from 5
subclause (1) of friendly and other societies and certain bodies 6
corporate, respectively, in the circumstances set out in those 7
clauses. 8
6 Exemption for friendly societies [NSW] 9
(1) Clause 5 does not prevent a friendly society from owning 10
or otherwise having a pecuniary interest in a pharmacy 11
business in accordance with a written approval given by 12
the Minister. 13
(2) An approval must not be given unless-- 14
(a) the Minister is satisfied the net profits arising from 15
the operation of the pharmacy business will be 16
applied solely to the provision of benefits (other 17
than benefits in the form of dividends or shares) to 18
members of the friendly society; and 19
(b) the Minister is satisfied the operation of the 20
pharmacy business is justified in the interests of 21
members of the friendly society or of members of 22
the public, or both; and 23
(c) the friendly society has nominated a pharmacist to 24
be responsible for-- 25
(i) ensuring there is displayed at or near the main 26
entrance of each premises in which the 27
business is carried on the owner's name; and 28
(ii) ensuring drug price information displayed in 29
premises in which the business is carried on 30
does not contravene the Price Information 31
Code of Practice. 32
(3) The Minister may-- 33
(a) give an approval unconditionally or subject to 34
conditions; or 35
(b) at any time, vary or revoke an approval. 36
(4) The Minister must revoke an approval given to a friendly 37
society if the Minister is satisfied. 38
(a) the net profits arising from the operation of the 39
pharmacy business will no longer be applied solely 40
to the provision of benefits to members of the 41
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friendly society in accordance with subclause (2)(a); 1
or 2
(b) there is no longer a pharmacist nominated as being 3
responsible for the matters specified in 4
subclause (2)(c). 5
(5) Clause 5 does not prevent a friendly or other society that 6
was, immediately before the repeal of section 27A(1) of 7
the Pharmacy Act 1964, lawfully carrying on a pharmacy 8
business under that provision, from owning or otherwise 9
having a pecuniary interest in a pharmacy business. 10
(6) An approval granted to a friendly or other society under 11
section 27A(2) of the Pharmacy Act 1964 and in force 12
immediately before the repeal of that Act is taken to be an 13
approval granted to the friendly society or other society (as 14
if it were a friendly society), and in force, under 15
subclause (1). 16
(7) Subclause (4) does not apply in relation to a society 17
referred to in subclause (6) that, immediately before the 18
repeal of section 27A of the Pharmacy Act 1964, no longer 19
satisfied the criteria referred to in section 27A(3)(a) of that 20
Act. 21
(8) A friendly or other society to which subclause (1), (5) 22
or (6) applies must not own or otherwise have a pecuniary 23
interest in more than 6 pharmacy businesses. 24
Maximum penalty--100 penalty units. 25
(9) A pharmacy business and an associated professional 26
services room are counted as one pharmacy business for 27
the purposes of subclause (8). 28
7 Exemption for certain bodies corporate [NSW] 29
(1) Clause 5 does not prevent an existing body corporate from 30
continuing to carry on a pharmacy business or continuing 31
to have a pecuniary interest in a pharmacy business in 32
accordance with-- 33
(a) clause 21 of the Pharmacy (General) Regulation 34
1998 as in force immediately before its repeal; and 35
(b) subclause (2). 36
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(2) The existing body corporate must nominate a pharmacist 1
to be responsible for-- 2
(a) ensuring there is displayed at or near the main 3
entrance of each premises in which the business is 4
carried on the owner's name; and 5
(b) ensuring drug price information displayed in 6
premises in which the business is carried on does not 7
contravene the Price Information Code of Practice. 8
(3) In this clause-- 9
existing body corporate means a body corporate that, 10
immediately before the repeal of the Pharmacy (General) 11
Regulation 1998, lawfully carried on a pharmacy business 12
or had a pecuniary interest in a pharmacy business under 13
clause 21 of that Regulation. 14
Note. The definition of pecuniary interest in clause 2 operates 15
to prohibit a person (other than a pharmacist, a partner in a 16
pharmacists' partnership or a pharmacists' body corporate or a 17
member of a pharmacists' body corporate) from having a 18
pecuniary interest (including as a shareholder) in a body 19
corporate to which this clause applies (other than a listed 20
corporation). That prohibition, however, does not apply where the 21
person was a member of the body corporate before the 22
commencement of Schedule 7.12 to the Pharmacy Practice 23
Act 2006. 24
8 Indicating a corporation or firm to be a pharmacy business 25
[NSW] 26
(1) A corporation must not indicate it is a pharmacy business 27
unless it is-- 28
(a) a pharmacists' body corporate that carries on a 29
pharmacy business; or 30
(b) a friendly or other society that has a pecuniary 31
interest in a pharmacy business permitted by 32
clause 6 and that carries on that business; or 33
(c) an exempted body corporate that carries on a 34
pharmacy business. 35
Maximum penalty--50 penalty units. 36
(2) A person must not indicate a corporation is a pharmacy 37
business if the person knows, or ought reasonably to know, 38
an indication by the corporation itself would be a 39
contravention of subclause (1). 40
Maximum penalty--50 penalty units. 41
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(3) A partner or member of a firm must not indicate the firm is 1
a pharmacy business unless the firm is a pharmacists' 2
partnership that carries on a pharmacy business. 3
Maximum penalty--50 penalty units. 4
(4) This clause does not apply to a person who has a pecuniary 5
interest in a pharmacy business as referred to in 6
clause 5(5), but only in relation to indications made in the 7
course of, and in relation to, carrying on that business. 8
9 Restriction on number of pharmacy businesses in which 9
pharmacists may have a pecuniary interest [NSW] 10
(1) A pharmacist must not (whether as an individual or as a 11
partner in a pharmacists' partnership or a member of a 12
body corporate) own or otherwise have a pecuniary 13
interest in more than 5 pharmacy businesses in this 14
jurisdiction. 15
Maximum penalty--100 penalty units. 16
(2) A pharmacy business and an associated professional 17
services room are counted as one pharmacy business for 18
the purposes of subclause (1). 19
10 Certain provisions in certain instruments to be void [NSW] 20
(1) Any of the following provisions in a lease or a licence, or 21
an arrangement that creates a security interest, in respect of 22
a pharmacy business is void-- 23
(a) a provision that requires the lessee or the licensee, or 24
the grantor of the security interest (as the case may 25
be), to purchase or otherwise obtain goods or 26
services in connection with the business from the 27
lessor or the licensor, or the grantee of the security 28
interest; 29
(b) a provision that gives to the lessor, the licensor or 30
the grantee power to control the way in which the 31
business is to be carried on (including power to 32
decide whether or not the pharmacy may participate 33
in any public health programs); 34
(c) a provision that gives to the lessor, the licensor or 35
the grantee access to the books of account kept for 36
the business, other than for the purposes of 37
determining whether or not the lessee, the licensee 38
or grantor is complying with the terms and 39
conditions of the lease, licence or arrangement; 40
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(d) a provision that provides that the lessor, the licensor 1
or the grantee is to receive consideration that varies 2
according to the profits or takings of the business. 3
(2) Subclause (1)(b) does not affect a provision relating to the 4
opening or closing hours of a pharmacy business that is 5
located in a retail shopping centre. 6
11 Pharmacist to be in charge of every pharmacy business 7
[NSW] 8
(1) A pharmacy business carried on in approved premises 9
must be in the charge of a pharmacist who must personally 10
supervise the carrying on of the business. 11
(2) If a pharmacy business is carried on in approved premises 12
in contravention of subclause (1), the following persons 13
are guilty of an offence-- 14
(a) the owner of the pharmacy business; 15
(b) the pharmacist in charge of the approved premises, 16
if the pharmacist is required under the terms of the 17
pharmacist's employment to be in charge of the 18
approved premises at the time of the contravention. 19
Maximum penalty--100 penalty units. 20
(3) It is a defence in proceedings against an owner for a 21
contravention of subclause (1) if the owner proves to the 22
satisfaction of the court that the owner used all due 23
diligence to prevent the contravention. 24
(4) To avoid doubt, during a period in which a pharmacy 25
business carried on in an associated professional services 26
room, and the pharmacy business with which the premises 27
are associated, operate simultaneously, subclause (1) 28
requires each business to be in the charge of a separate 29
pharmacist who must personally supervise the carrying on 30
of each business. 31
(5) A person who holds provisional, limited or non-practising 32
registration in the pharmacy profession is taken not to be a 33
pharmacist for the purposes of this clause during the period 34
of that registration. 35
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Part 3 Approval of premises and registration 1
of pecuniary interests [NSW] 2
12 Application for approval of premises or registration of 3
pecuniary interest [NSW] 4
(1) An application for either of the following may be made to 5
the Executive Officer of the Council-- 6
(a) an approval of premises as suitable for carrying on a 7
pharmacy business by a pharmacist; 8
(b) registration of the holder of a pecuniary interest in a 9
pharmacy business. 10
(2) An application for an approval of premises must be 11
made-- 12
(a) in the form approved by the Council; and 13
(b) by the owner, or one of the owners, of the pharmacy 14
business. 15
(3) An application for registration of the holder of a pecuniary 16
interest must be made-- 17
(a) in the form approved by the Council; and 18
(b) by the following person-- 19
(i) the owner, or one of the owners, of the 20
pharmacy business; 21
(ii) if required to be made during any period in 22
which a person referred to in clause 5(4)(a) or 23
(b) assumes the administration of the 24
pharmacy business, that person; 25
(iii) if required to be made during a period in 26
which a person assumes the administration of 27
the pharmacy business under a security 28
interest granted in respect of the pharmacy 29
business, that person. 30
(4) A person who is the owner of a pharmacy business to be 31
carried on in a professional services room may apply for 32
approval of the premises only if-- 33
(a) the person is the owner of a pharmacy business that 34
is carried on in approved premises other than a 35
professional services room; and 36
(b) in the application, the person nominates the 37
pharmacy business (or, if the owner of more than 38
one such pharmacy business, nominates one of the 39
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businesses) as the business with which the 1
professional services room is associated. 2
(5) The application must be accompanied by the fee decided 3
by the Council. 4
(6) The Council may require the application to be verified by 5
a statutory declaration. 6
(7) The Council may decide to-- 7
(a) refuse the application; or 8
(b) approve the premises or register the holder of the 9
pecuniary interest. 10
(8) The Council must not approve premises-- 11
(a) that fail to comply with a standard prescribed for the 12
premises by the NSW regulations; or 13
(b) that are within or partly within, or adjacent or 14
connected to, a supermarket and that the public can 15
directly access from within the premises of the 16
supermarket. 17
(9) The NSW regulations may prescribe standards for the 18
purposes of subclause (8)(a) only for or with respect to the 19
safe and competent delivery of pharmacy services. 20
(10) The Council may revoke an approval of premises if-- 21
(a) the premises do not comply with a standard 22
prescribed for the premises by the NSW regulations; 23
or 24
(b) the premises become premises of a type described in 25
subclause (8)(b); or 26
(c) the Council becomes aware the premises are no 27
longer being used for the purposes of carrying on a 28
pharmacy business. 29
(11) In this clause-- 30
supermarket means any retail store, or market, selling 31
food and other domestic goods, whether or not by 32
self-service operation and regardless of size, but does not 33
include a retail store or market-- 34
(a) commonly known as a department store; or 35
(b) in which food or produce is sold only in a cafe, 36
coffee shop, restaurant or other prepared food or 37
beverage counter. 38
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13 Appeals against refusal to approve pharmacy or to register 1
holder of pecuniary interest [NSW] 2
(1) A person aggrieved by any of the following decisions of 3
the Council may apply to the Administrative Decisions 4
Tribunal for a review of the decision-- 5
(a) a decision relating to an application for the approval 6
of premises; 7
(b) a decision relating to an application for the approval 8
of the registration of the holder of a pecuniary 9
interest; 10
(c) a decision to revoke an approval of premises. 11
(2) For the purposes of a review, an application for an 12
approval or for registration that has not been dealt with by 13
the Council is taken to have been refused on-- 14
(a) the day that is one month after the application was 15
lodged; or 16
(b) if a later day was decided by the Council and 17
notified to the applicant before the day referred to in 18
paragraph (a), that day. 19
14 Council to keep register [NSW] 20
(1) The Council must keep a register (a Register of 21
Pharmacies) containing particulars of-- 22
(a) approved premises; and 23
(b) registered holders of pecuniary interests. 24
(2) The Register of Pharmacies must be kept in the form 25
decided by the Council. 26
(3) The Register of Pharmacies must be available for 27
inspection-- 28
(a) at the office of the Council at all reasonable times; 29
and 30
(b) in the other ways (for example, by Internet access) 31
and at the times decided by the Council. 32
(4) The Council may charge a fee for an inspection of the 33
Register of Pharmacies, not exceeding the amount 34
prescribed by the NSW regulations. 35
(5) The Council may make the alterations and additions to the 36
Register of Pharmacies that are necessary to ensure the 37
information recorded in the Register is accurate. 38
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Part 4 Returns and information [NSW] 1
15 Annual return to be submitted [NSW] 2
(1) A person who holds a pecuniary interest in a pharmacy 3
business must, on or before the return date in each year, 4
give to the Council, in the form approved by the Council, 5
a return for the return period specifying the following 6
information-- 7
(a) the nature of the interest; 8
(b) the basis on which the person is entitled to hold the 9
interest under this Law (for example, as a 10
pharmacist, a member of a pharmacists' body 11
corporate, a friendly or other society under clause 6 12
or a body corporate under clause 7); 13
(c) the number of pharmacy businesses in which the 14
person has a pecuniary interest; 15
(d) in relation to each pharmacy business the person 16
owns, a description of the policies or systems in 17
place to ensure safe and competent delivery of 18
pharmacy services; 19
(e) any other information prescribed by the NSW 20
regulations. 21
Maximum penalty--20 penalty units. 22
(2) The Council may require the return to be verified by 23
statutory declaration. 24
(3) In this clause-- 25
return date means a date notified to pharmacy owners by 26
the Council in writing at least one month in advance. 27
return period means the period of 12 months ending 28
2 months before the return date. 29
16 Direction to supply information about pecuniary interests 30
[NSW] 31
(1) The Council may, by written notice given to a person, 32
require the person to give the Council, within the time 33
specified in the notice, specified information or a specified 34
document relating to a pecuniary interest the person has in 35
a pharmacy business. 36
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(2) The person must not-- 1
(a) fail or refuse to comply with the notice to the extent 2
the person is capable of complying with it; or 3
(b) in purported compliance with the notice, knowingly 4
give information or produce a document that is false 5
or misleading. 6
Maximum penalty--50 penalty units. 7
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Schedule 2 Consequential amendments to other legislation
Schedule 2 Consequential amendments to other 1
legislation 2
2.1 Births, Deaths and Marriages Registration Act 1995 No 62 3
Section 4 Definitions 4
Omit the definition of doctor from section 4 (1). Insert instead: 5
doctor means a registered medical practitioner. 6
2.2 Casino Control Regulation 2009 7
Schedule 6 Applied provisions of Liquor Act 2007 as modified 8
Omit section 6 (1) (c) (ii) and (iii). Insert instead: 9
(ii) a registered nurse whose registration is endorsed 10
under the Health Practitioner Regulation National 11
Law as being qualified to practise as a nurse 12
practitioner, or 13
(iii) a registered midwife whose registration is endorsed 14
under the Health Practitioner Regulation National 15
Law as being qualified to practise as a midwife 16
practitioner, or 17
2.3 Children and Young Persons (Care and Protection--Child 18
Employment) Regulation 2005 19
Clause 3 Definitions 20
Omit the definitions of registered nurse and registered midwife from 21
clause 3 (1). 22
2.4 Children (Detention Centres) Regulation 2005 23
Clause 3 Definitions 24
Omit the definition of registered nurse from clause 3 (1). 25
2.5 Children's Services Regulation 2004 26
Clause 52 Qualified staff 27
Omit clause 52 (2) (a) and (b). Insert instead: 28
(a) is an enrolled nurse who has obtained: 29
(i) a Certificate IV from a TAFE establishment on completion 30
of a course in Parenthood, or 31
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Consequential amendments to other legislation Schedule 2
(ii) a Certificate III from a registered training organisation on 1
completion of a course in Children's Services, or 2
(b) is a registered nurse who has had previous work experience in 3
providing a children's service or has another approved 4
qualification, or 5
2.6 Coal Mine Health and Safety Regulation 2006 6
Clause 203 Meaning of "workplace injury" 7
Omit the definition of medical treatment. Insert instead: 8
medical treatment means treatment by a registered medical 9
practitioner, by a nurse or by a person qualified to give first aid. 10
2.7 Crimes Act 1900 No 40 11
[1] Section 45 Prohibition of female genital mutilation 12
Omit the definitions of authorised professional, medical practitioner and 13
medical student from section 45 (7). Insert instead: 14
authorised professional means: 15
(a) a registered midwife, or 16
(b) a midwifery student, or 17
(c) in relation to an operation performed in a place outside 18
Australia--a person authorised to practise midwifery by a 19
body established under the law of that place having 20
functions similar to the functions of the Nursing and 21
Midwifery Board of Australia, or 22
(d) a medical student. 23
medical practitioner, in relation to an operation performed in a 24
place outside Australia, includes a person authorised to practise 25
medicine by a body established under the law of that place having 26
functions similar to the Medical Board of Australia. 27
medical student means: 28
(a) a person registered as a student in the medical profession 29
under the Health Practitioner Regulation National Law, or 30
(b) in relation to an operation performed in a place outside 31
Australia--a person undergoing a course of training with a 32
view to being authorised to be a medical practitioner in that 33
place. 34
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Schedule 2 Consequential amendments to other legislation
midwifery student means: 1
(a) a person registered as a student in the nursing and 2
midwifery profession under the Health Practitioner 3
Regulation National Law, or 4
(b) in relation to an operation performed in a place outside 5
Australia--a person undergoing a course of training with a 6
view to being authorised to be a midwife practitioner in 7
that place. 8
[2] Section 428A Definitions 9
Omit "a person authorised under the Nurses and Midwives Act 1991 to practise 10
as a nurse practitioner or a midwife practitioner" from paragraph (c) of the 11
definition of self-induced intoxication. 12
Insert instead "a registered nurse whose registration is endorsed under the 13
Health Practitioner Regulation National Law as being qualified to practise as 14
a nurse practitioner, a registered midwife whose registration is endorsed under 15
the Health Practitioner Regulation National Law as being qualified to practise 16
as a midwife practitioner". 17
2.8 Crimes (Administration of Sentences) Regulation 2008 18
Dictionary 19
Omit "(within the meaning of the Nurses and Midwives Act 1991)" from the 20
definition of nursing officer. 21
2.9 Crimes (Forensic Procedures) Act 2000 No 59 22
[1] Section 3 Interpretation 23
Omit the definitions of dentist and nurse from section 3 (1). 24
Insert instead in alphabetical order: 25
dental prosthetist means a person registered under the Health 26
Practitioner Regulation National Law: 27
(a) to practise in the dental profession as a dental prosthetist 28
(other than as a student), and 29
(b) in the dental prosthetists division of that profession. 30
[2] Sections 50 and 108 31
Omit "dental technician" wherever occurring. 32
Insert instead "dental prosthetist". 33
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2.10 Crimes (Serious Sex Offenders) Act 2006 No 7 1
Section 4 Definitions 2
Omit the definition of registered psychologist. 3
2.11 Criminal Procedure Regulation 2005 4
Clause 20 5
Omit the clause. Insert instead: 6
20 Public officers 7
The following bodies are declared to be public bodies for the 8
purposes of paragraph (f) of the definition of public officer in 9
section 3 (1) of the Act: 10
(a) the Independent Commission Against Corruption, 11
(b) the Office of the Director of Public Prosecutions of the 12
Commonwealth, 13
(c) the Police Integrity Commission, 14
(d) the Australian Federal Police, 15
(e) the Australian Securities and Investments Commission, 16
(f) the Royal Society for the Prevention of Cruelty to 17
Animals, New South Wales, 18
(g) the Animal Welfare League NSW, 19
(h) the Chiropractic Board of Australia, 20
(i) the Chiropractic Council of New South Wales, 21
(j) the Dental Board of Australia, 22
(k) the Dental Council of New South Wales, 23
(l) the Medical Board of Australia, 24
(m) the Medical Council of New South Wales, 25
(n) the Nursing and Midwifery Board of Australia, 26
(o) the Nursing and Midwifery Council of New South Wales, 27
(p) the Optometry Board of Australia, 28
(q) the Optometry Council of New South Wales, 29
(r) the Osteopathy Board of Australia, 30
(s) the Osteopathy Council of New South Wales, 31
(t) the Pharmacy Board of Australia, 32
(u) the Pharmacy Council of New South Wales, 33
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(v) the Physiotherapy Board of Australia, 1
(w) the Physiotherapy Council of New South Wales, 2
(x) the Podiatry Board of Australia, 3
(y) the Podiatry Council of New South Wales, 4
(z) the Psychology Board of Australia, 5
(aa) the Psychology Council of New South Wales. 6
2.12 Defamation Act 2005 No 77 7
[1] Schedule 1 Additional publications to which absolute privilege applies 8
Omit clause 15. Insert instead: 9
15 Matters arising under Health Practitioner Regulation National Law 10
in relation to medical practitioners 11
(1) Without limiting section 27 (2) (a)(c), matter that is published: 12
(a) to or by any of the following for the purpose of the 13
assessment or referral of a complaint against a medical 14
practitioner or other matter or the holding of any inquiry, 15
performance review, investigation or appeal in respect of a 16
medical practitioner under the Health Practitioner 17
Regulation National Law: 18
(i) the Medical Council of New South Wales, 19
(ii) the Medical Board of Australia, 20
(iii) an Impaired Registrants Panel, 21
(iv) a Performance Review Panel, 22
(v) a Professional Standards Committee, 23
(vi) the Medical Tribunal, 24
(vii) a member of any of the bodies referred to above, 25
(viii) an assessor, or 26
(b) by a body or person referred to in paragraph (a) where the 27
matter published is a report of a decision or determination 28
in respect of a complaint against a medical practitioner or 29
other matter or any inquiry, performance review, 30
investigation or appeal in respect of a medical practitioner, 31
or the reasons for such a decision or determination. 32
(2) In this clause: 33
(a) a reference to the Medical Board of Australia includes a 34
reference to a committee of the Board, and 35
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Consequential amendments to other legislation Schedule 2
(b) a reference to a member of the Board includes a reference 1
to a member of any such committee, and 2
(c) a reference to the Medical Council of New South Wales 3
includes a reference to a committee of the Council, and 4
(d) a reference to a member of the Council includes a 5
reference to a member of any such committee. 6
[2] Schedule 2 Additional kinds of public documents 7
Omit clause 1. Insert instead: 8
1 Documents arising under Health Practitioner Regulation National 9
Law in relation to medical practitioners 10
Without limiting section 28 (4) (a)(f), a document that consists 11
of a report made by: 12
(a) the Medical Board of Australia, or 13
(b) the Medical Council of New South Wales, or 14
(c) a Professional Standards Committee, or 15
(d) the Medical Tribunal, 16
of its decision or determination in respect of a complaint against 17
a medical practitioner or an inquiry or appeal in respect of a 18
medical practitioner, and of the reasons for that decision or 19
determination, under the Health Practitioner Regulation 20
National Law. 21
[3] Schedule 3 Additional proceedings of public concern 22
Omit clause 7. Insert instead: 23
7 Proceedings under Health Practitioner Regulation National Law in 24
relation to medical practitioners 25
Without limiting section 29 (4) (a)(o), proceedings under the 26
Health Practitioner Regulation National Law in respect of a 27
medical practitioner of any of the following: 28
(a) the Medical Board of Australia, 29
(b) the Medical Council of New South Wales, 30
(c) a Professional Standards Committee, 31
(d) the Medical Tribunal. 32
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2.13 Drug and Alcohol Treatment Act 2007 No 7 1
Section 49 Liability of police officers and health care professionals 2
exercising functions under this Act 3
Omit "a health registration Act within the meaning of the Health Care 4
Complaints Act 1993" from section 49 (4). 5
Insert instead "the Health Practitioner Regulation National Law". 6
2.14 Drug Misuse and Trafficking Act 1985 No 226 7
[1] Section 3 Definitions 8
Omit the definitions of dentist, midwife, midwife practitioner, nurse, nurse 9
practitioner and pharmacist from section 3 (1). 10
Insert instead in alphabetical order: 11
midwife practitioner means a registered midwife whose 12
registration is endorsed under the Health Practitioner Regulation 13
National Law as being qualified to practise as a midwife 14
practitioner. 15
nurse practitioner means a registered nurse whose registration is 16
endorsed under the Health Practitioner Regulation National Law 17
as being qualified to practise as a nurse practitioner. 18
[2] Sections 11 (2) (a) and 36D (definition of "qualified health professional") 19
Insert "registered" before "nurse" wherever occurring. 20
[3] Section 11 (2) (a) 21
Insert "registered" before "midwife". 22
2.15 Electricity (Consumer Safety) Act 2004 No 4 23
Section 3 Definitions 24
Omit "a health registration Act within the meaning of the Health Care 25
Complaints Act 1993" from the definition of health care professional in 26
section 3 (1). 27
Insert instead "the Health Practitioner Regulation National Law". 28
Page 176
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
2.16 Electricity Supply Act 1995 No 94 1
Dictionary 2
Omit "a health registration Act within the meaning of the Health Care 3
Complaints Act 1993" from the definition of health care professional. 4
Insert instead "the Health Practitioner Regulation National Law". 5
2.17 Fines Act 1996 No 99 6
Section 99A Definitions 7
Omit "within the meaning of the Nurses and Midwives Act 1991" from 8
paragraph (c) of the definition of health practitioner. 9
2.18 Freedom of Information Act 1989 No 5 10
Schedule 1 Exempt documents 11
Insert "or a professional council" after "registration authority" in clause 26. 12
2.19 Freedom of Information Regulation 2005 13
[1] Schedule 1 Principal offices 14
Omit the following: 15
Dental Board Registrar
Dental Care Assessment Committee Registrar, Dental Board
Medical Tribunal Registrar, NSW Medical Board
New South Wales Medical Board Registrar
Pharmacy Board Registrar
Professional Standards Committee constituted Registrar, NSW Medical Board
under the Medical Practice Act 1992
Pharmacy Care Assessment Committee Registrar, Pharmacy Board
constituted by the Pharmacy Practice Act 2006
Page 177
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Schedule 2 Consequential amendments to other legislation
[2] Schedule 3 Public authorities 1
Omit the following from Part 3: 2
Chiropractic Care Assessment Committee Department of Health
Chiropractors Registration Board Department of Health
Dental Technicians Registration Board Department of Health
Nurses and Midwives Board Department of Health
Optical Dispensers Licensing Board Department of Health
Optometrists Registration Board Department of Health
Osteopaths Registration Board Department of Health
Physiotherapists Registration Board Department of Health
Physiotherapy Standards Advisory Committee Department of Health
Podiatrists Registration Board Department of Health
Professional Standards Committee constituted under Department of Health
the Nurses and Midwives Act 1991
Psychological Care Assessment Committee Department of Health
Psychologists Registration Board Department of Health
Insert instead in alphabetical order: 3
Chiropractic Council of New South Wales Department of Health
Dental Council of New South Wales Department of Health
Dental Tribunal Department of Health
Medical Council of New South Wales Department of Health
Medical Tribunal Department of Health
Nursing and Midwifery Council of New South Wales Department of Health
Optometrists Tribunal Department of Health
Optometry Council of New South Wales Department of Health
Osteopathy Council of New South Wales Department of Health
Pharmacy Council of New South Wales Department of Health
Pharmacy Tribunal Department of Health
Physiotherapists Tribunal Department of Health
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Physiotherapy Council of New South Wales Department of Health
Podiatrists Tribunal Department of Health
Podiatry Council of New South Wales Department of Health
Professional Standards Committee for medical Department of Health
practitioners
Professional Standards Committee for nurses and Department of Health
midwives
Psychologists Tribunal Department of Health
Psychology Council of New South Wales Department of Health
2.20 Government Information (Public Access) Act 2009 No 52 1
Schedule 2 Excluded information of particular agencies 2
Insert "or a professional council" after "registration authority" in the matter 3
relating to the Health Care Complaints Commission in clause 2. 4
2.21 Health Administration Act 1982 No 135 5
[1] Section 13A Corporation to manage accounts of health professional 6
councils 7
Omit "board" and "boards" wherever occurring in section 13A (1), (3) (b) 8
and (3A). 9
Insert instead "council" and "councils", respectively. 10
[2] Section 13A (2) (a) and (3) (a) 11
Omit "Act establishing the board in respect of which the account is kept" 12
wherever occurring. 13
Insert instead "Health Practitioner Regulation National Law (NSW)". 14
[3] Section 13A (3) (a) 15
Omit "that Act". Insert instead "that Law". 16
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Schedule 2 Consequential amendments to other legislation
[4] Schedule 2A 1
Omit the Schedule. Insert instead: 2
Schedule 2A Health professional councils 3
(Section 13A) 4
Chiropractic Council of New South Wales established under the Health 5
Practitioner Regulation National Law (NSW) 6
Dental Council of New South Wales established under the Health Practitioner 7
Regulation National Law (NSW) 8
Medical Council of New South Wales established under the Health 9
Practitioner Regulation National Law (NSW) 10
Nursing and Midwifery Council of New South Wales established under the 11
Health Practitioner Regulation National Law (NSW) 12
Optometry Council of New South Wales established under the Health 13
Practitioner Regulation National Law (NSW) 14
Osteopathy Council of New South Wales established under the Health 15
Practitioner Regulation National Law (NSW) 16
Pharmacy Council of New South Wales established under the Health 17
Practitioner Regulation National Law (NSW) 18
Physiotherapy Council of New South Wales established under the Health 19
Practitioner Regulation National Law (NSW) 20
Podiatry Council of New South Wales established under the Health 21
Practitioner Regulation National Law (NSW) 22
Psychology Council of New South Wales established under the Health 23
Practitioner Regulation National Law (NSW) 24
2.22 Health Care Complaints Act 1993 No 105 25
[1] Section 3A Outline of role of Commission and related government 26
agencies in health care system 27
Omit "registration authorities" wherever occurring in section 3A (2) and (4). 28
Insert instead "professional councils". 29
[2] Section 3A (5) and (5A) 30
Omit section 3A (5). Insert instead: 31
(5) Registration authorities 32
Registration authorities are responsible for the registration of 33
health professionals. 34
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Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
(5A) Professional councils 1
Professional councils are responsible for the management of 2
complaints in conjunction with the Commission and protecting 3
the public through promoting and maintaining professional 4
standards. 5
[3] Section 4 Definitions 6
Omit the definitions of health registration Act and registration authority. 7
Insert instead in alphabetical order: 8
chiropractor means a person registered under the Health 9
Practitioner Regulation National Law to practise in the 10
chiropractic profession (other than as a student). 11
dental hygienist means a person registered under the Health 12
Practitioner Regulation National Law: 13
(a) to practise in the dental profession as a dental hygienist 14
(other than as a student), and 15
(b) in the dental hygienists division of that profession. 16
dental prosthetist means a person registered under the Health 17
Practitioner Regulation National Law: 18
(a) to practise in the dental profession as a dental prosthetist 19
(other than as a student), and 20
(b) in the dental prosthetists division of that profession. 21
dental therapist means a person registered under the Health 22
Practitioner Regulation National Law: 23
(a) to practise in the dental profession as a dental therapist 24
(other than as a student), and 25
(b) in the dental therapists division of that profession. 26
oral health therapist means a person registered under the Health 27
Practitioner Regulation National Law: 28
(a) to practise in the dental profession as an oral health 29
therapist (other than as a student), and 30
(b) in the oral health therapists division of that profession. 31
osteopath means a person registered under the Health 32
Practitioner Regulation National Law to practise in the 33
osteopathy profession (other than as a student). 34
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Schedule 2 Consequential amendments to other legislation
professional council means: 1
(a) in relation to a chiropractor, the Chiropractic Council of 2
New South Wales, or 3
(b) in relation to a dentist, dental hygienist, dental prosthetist, 4
dental therapist or an oral health therapist, the Dental 5
Council of New South Wales, or 6
(c) in relation to a medical practitioner, the Medical Council 7
of New South Wales, or 8
(d) in relation to a nurse or midwife, the Nursing and 9
Midwifery Council of New South Wales, or 10
(e) in relation to an optometrist, the Optometry Council of 11
New South Wales, or 12
(f) in relation to an osteopath, the Osteopathy Council of New 13
South Wales, or 14
(g) in relation to a pharmacist, the Pharmacy Council of New 15
South Wales, or 16
(h) in relation to a physiotherapist, the Physiotherapy Council 17
of New South Wales, or 18
(i) in relation to a podiatrist, the Podiatry Council of New 19
South Wales, or 20
(j) in relation to a psychologist, the Psychology Council of 21
New South Wales. 22
registration authority means: 23
(a) in relation to a chiropractor, the Chiropractic Board of 24
Australia, or 25
(b) in relation to a dentist, dental hygienist, dental prosthetist, 26
dental therapist or an oral health therapist, the Dental 27
Board of Australia, or 28
(c) in relation to a medical practitioner, the Medical Board of 29
Australia, or 30
(d) in relation to a nurse or midwife, the Nursing and 31
Midwifery Board of Australia, or 32
(e) in relation to an optometrist, the Optometry Board of 33
Australia, or 34
(f) in relation to an osteopath, the Osteopathy Board of 35
Australia, or 36
(g) in relation to a pharmacist, the Pharmacy Board of 37
Australia, or 38
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Consequential amendments to other legislation Schedule 2
(h) in relation to a physiotherapist, the Physiotherapy Board of 1
Australia, or 2
(i) in relation to a podiatrist, the Podiatry Board of Australia, 3
or 4
(j) in relation to a psychologist, the Psychology Board of 5
Australia. 6
[4] Section 4, definition of "disciplinary body" 7
Omit "a health registration Act". 8
Insert instead "the Health Practitioner Regulation National Law (NSW)". 9
[5] Section 4, definition of "health practitioner" 10
Omit "a health registration Act". 11
Insert instead "the Health Practitioner Regulation National Law". 12
[6] Part 2, Division 2, heading 13
Omit the heading. Insert instead: 14
Division 2 Liaising with registration authorities and 15
professional councils 16
[7] Sections 10 (1), 14 (1) and (2), 30 (1), 34 (2), 41A (3) and 94B (3) 17
Omit "a health registration Act" wherever occurring. 18
Insert instead "the Health Practitioner Regulation National Law". 19
[8] Sections 10, 12, 13, 14, 20A (2), 23 (1) (a), 24 (2)(4), 25B, 26 (1) (b), 34 (2), 20
38, 39 (1) (c) and (2), 40 (3) (b), 41 (1) and (2) (a), 53 (3), 55, 56 (2), 90B (3), 21
90CA (b), 96 (2) and 98 22
Omit "registration authority" wherever occurring. 23
Insert instead "professional council". 24
[9] Section 11 25
Omit the section. Insert instead: 26
11 Complaints made to professional councils 27
If, in accordance with the Health Practitioner Regulation 28
National Law (NSW), a professional council notifies the 29
Commission of a complaint made under that Law, the complaint 30
is taken to have been made in accordance with this Act to the 31
Commission. 32
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[10] Section 13 The outcomes of consultation 1
Omit "relevant health registration Act" wherever occurring in 2
section 13 (2) (b) and (2A) (b). 3
Insert instead "Health Practitioner Regulation National Law (NSW)". 4
[11] Section 13, note 5
Omit the note. 6
[12] Section 15 Provision of information to professional councils 7
Omit section 15 (1). Insert instead: 8
(1) A professional council for a particular health profession may, at 9
any time, request information from the Commission concerning 10
a specified complaint that is made against or directly involves a 11
health practitioner who is or has been registered in that health 12
profession. 13
[13] Section 15, note 14
Omit "health professional registration boards" and "the registration 15
authority". 16
Insert instead "professional councils" and "the relevant professional council", 17
respectively. 18
[14] Section 22A Associated complaints to be taken into account 19
Omit section 22A (b). Insert instead: 20
(b) if the complaint relates to a health practitioner: 21
(i) any decision made in respect of the practitioner by 22
an adjudication body within the meaning of the 23
Health Practitioner Regulation National Law, and 24
(ii) any previous finding, determination, 25
recommendation or decision made in respect of the 26
practitioner by a committee, tribunal or panel under 27
a repealed Act. 28
[15] Section 22A (2) 29
Insert at the end of section 22A: 30
(2) In this section, repealed Act means any of the following Acts: 31
(a) Chiropractors Act 2001, 32
(b) Dental Practice Act 2001, 33
(c) Dental Technicians Registration Act 1975, 34
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Consequential amendments to other legislation Schedule 2
(d) Medical Practice Act 1992, 1
(e) Nurses and Midwives Act 1991, 2
(f) Optometrists Act 2002, 3
(g) Osteopaths Act 2001, 4
(h) Pharmacy Practice Act 2006, 5
(i) Physiotherapists Act 2001, 6
(j) Podiatrists Act 2003, 7
(k) Psychologists Act 2001. 8
[16] Sections 25B (1), 34A (4) (note) and 39 (1) (c) 9
Omit "relevant health registration Act" wherever occurring. 10
Insert instead "Health Practitioner Regulation National Law (NSW)". 11
[17] Section 25B (1) 12
Omit "that authority". Insert instead "that council". 13
[18] Section 25B (2), note 14
Omit the note. 15
[19] Sections 27 (1) (d), 30 (4), 40 (3) (a) and 94B (1) (a) 16
Omit "a health registration Act" wherever occurring. 17
Insert instead "the Health Practitioner Regulation National Law (NSW)". 18
[20] Part 2, Division 5 19
Omit "health registration Acts" from the note. 20
Insert instead "the Health Practitioner Regulation National Law (NSW)". 21
[21] Section 33 Powers of entry, search and seizure 22
Insert after section 33 (c): 23
(c1) if authorised to do so under a search warrant, seize any 24
stocks of any substance or drugs in or about those 25
premises, 26
[22] Section 33 (f1) 27
Insert after section 33 (f): 28
(f1) if authorised to do so under a search warrant, remove any 29
such records for the purposes of taking copies of, or notes 30
from, those records. 31
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Schedule 2 Consequential amendments to other legislation
[23] Section 33 (2) 1
Insert at the end of the section: 2
(2) If an authorised person removes any records under the authority 3
of a search warrant for the purposes of taking copies of, or notes 4
from, those records, the authorised person must return the records 5
to the owner of the records as soon as practicable. 6
[24] Section 40 Opportunity for persons investigated to make submissions 7
Omit the note to section 40 (3). Insert instead: 8
Note. Section 40 (3) will ensure that professional councils can act to deal 9
with impaired practitioners pursuant to any powers they may have under 10
the Health Practitioner Regulation National Law (NSW), without awaiting 11
advice from the Commission. 12
[25] Section 41AA 13
Insert before section 41A: 14
41AA Interim prohibition orders 15
(1) The Commission may, during any investigation of a complaint 16
against an unregistered health practitioner, make an order (an 17
interim prohibition order) in respect of the unregistered health 18
practitioner. 19
(2) The Commission may make an interim prohibition order only if: 20
(a) it has a reasonable belief that the health practitioner has 21
breached a code of conduct for unregistered health 22
practitioners, and 23
(b) it is of the opinion that: 24
(i) the health practitioner poses a serious risk to the 25
health or safety of members of the public, and 26
(ii) the making of an interim prohibition order is 27
necessary to protect the health or safety of members 28
of the public. 29
(3) An interim prohibition order may do one or both of the following: 30
(a) prohibit the health practitioner from providing health 31
services or specified health services, 32
(b) place such conditions as the Commission thinks 33
appropriate on the provision of health services or specified 34
health services by the health practitioner. 35
(4) An interim prohibition order remains in force for a period of 36
8 weeks or such shorter period as may be specified in the order. 37
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Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
(5) The Commission must notify the health practitioner of its 1
decision to make an interim prohibition order and provide the 2
health practitioner with a written statement of the decision that 3
sets out the grounds on which the decision was made as soon as 4
practicable after the decision is made. 5
(6) In this section, code of conduct for unregistered health 6
practitioners means a code of conduct prescribed by regulations 7
under section 10AM of the Public Health Act 1991. 8
[26] Section 41A Prohibition orders and public statements 9
Omit "the board constituted under that other Act of the proposed order and 10
give that board" from section 41A (3). 11
Insert instead "the relevant professional council of the proposed order and give 12
that council". 13
[27] Section 41B Commission to provide details of its decision 14
Insert "to make prohibition order" after "decision" in the heading to the 15
section. 16
[28] Section 41C Appeals to the Administrative Decisions Tribunal 17
Omit "section 41A" from section 41C (1). 18
Insert instead "section 41AA or 41A". 19
[29] Section 41C (1) (b) 20
Insert "an interim prohibition order or" before "a prohibition order". 21
[30] Section 41D 22
Omit the section. Insert instead: 23
41D Commission to provide registration authorities and professional 24
councils with details of interim prohibition orders and prohibition 25
orders 26
If the Commission makes an interim prohibition order under 27
section 41AA or a prohibition order under section 41A in respect 28
of a health practitioner, it is to provide a copy of the statement of 29
the decision in respect of that order to each registration authority 30
and professional council. 31
[31] Section 55 Six-monthly reports to professional councils 32
Omit "who are registered by it" from section 55 (3). 33
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[32] Section 80 Functions of Commission 1
Omit "a registration authority under a health registration Act" from 2
section 80 (1) (a). 3
Insert instead "a professional council under the Health Practitioner 4
Regulation National Law (NSW)". 5
[33] Section 80 (1) (c) 6
Omit "registration authorities". Insert instead "professional councils". 7
[34] Section 92A 8
Omit section 92A. Insert instead: 9
92A Expedition of certain matters 10
The Commission is to assess, investigate and, if appropriate, 11
prosecute as quickly as practicable matters referred to it 12
following action under section 149C of the Health Practitioner 13
Regulation National Law (NSW) by a professional council. 14
[35] Section 93 15
Omit the section. Insert instead: 16
93 Inconsistency between this Act and the Health Practitioner 17
Regulation National Law (NSW) 18
This Act prevails over the Health Practitioner Regulation 19
National Law (NSW) to the extent of any inconsistency between 20
them. 21
[36] Section 94B Tribunal decisions and names of de-registered practitioners 22
to be publicly available 23
Omit section 94B (1) (b). 24
[37] Section 94B (1) (c) 25
Omit the paragraph. Insert instead: 26
(c) may disseminate any other statement of a decision 27
provided to it under the Health Practitioner Regulation 28
National Law as the Commission thinks fit, 29
[38] Section 94B (1) 30
Omit "relevant tribunal or board". 31
Insert instead "relevant tribunal, professional council or registration 32
authority". 33
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Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
[39] Section 94B (2) 1
Omit "a health registration Act about a person whose registration as a health 2
practitioner under a health registration Act". 3
Insert instead "the Health Practitioner Regulation National Law about a 4
person whose registration as a health practitioner under that Law". 5
[40] Section 94B (3) 6
Omit "registration board, tribunal or court under that Act". 7
Insert instead "professional council, registration authority, tribunal or court 8
under that Law". 9
[41] Section 94C Protection from liability for certain publications 10
Omit paragraph (b) from the definition of protected person in section 94C (2). 11
Insert instead: 12
(b) a professional council, assessment committee or tribunal 13
established under the Health Practitioner Regulation 14
National Law (NSW) or a member of any such council, 15
committee or tribunal, or 16
[42] Section 105 Special provisions relating to Walker Special Commission of 17
Inquiry 18
Omit the section. 19
[43] Schedule 4 Savings, transitional and other provisions 20
Insert at the end of the Schedule: 21
Part 8 Provision consequent on enactment of 22
Health Practitioner Regulation Amendment 23
Act 2010 24
22 Complaints to registration authorities 25
A reference in sections 10 (1) and 34 (2) to the Health 26
Practitioner Regulation National Law includes a reference to a 27
repealed Act within the meaning of section 22A. 28
[44] Schedule 5 Special provisions relating to Walker Special Commission of 29
Inquiry 30
Omit the Schedule. 31
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2.23 Health Care Liability Act 2001 No 42 1
[1] Section 4 Definitions 2
Omit the definitions of claimant, court, damages, fault, health practitioner, 3
injury, insurance approval order, licensed facility, public health 4
organisation and registration from section 4 (1). 5
[2] Section 4 (1), definition of "practice company" 6
Omit the definition. Insert instead: 7
practice company means a corporation (however incorporated) 8
that is controlled or conducted by a medical practitioner and by 9
means of which the medical practitioner conducts his or her 10
medical practice. 11
[3] Section 4 (2) 12
Omit the subsection. 13
[4] Section 4 (3) (b)(d) 14
Omit the paragraphs. 15
[5] Section 19 Medical practitioners must be covered by approved 16
professional indemnity insurance 17
Insert "in NSW" after "medical practitioner" in section 19 (1) and (3) 18
wherever occurring. 19
[6] Section 19 (2) 20
Omit the subsection. 21
[7] Section 19 (3) 22
Omit "Medical Practice Act 1992". 23
Insert instead "Health Practitioner Regulation National Law (NSW)". 24
[8] Section 19 (4) 25
Omit section 19 (4) and (5). Insert instead: 26
(4) This section does not apply to or in respect of a medical 27
practitioner who is not required under the Health Practitioner 28
Regulation National Law to be covered by professional 29
indemnity insurance. 30
Page 190
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
[9] Section 24 Minister may prohibit person from providing approved 1
professional indemnity insurance 2
Omit section 24 (8). Insert instead: 3
(8) If a prohibition order is made, the Minister is to notify the 4
Medical Council of New South Wales of the making of the order. 5
[10] Section 25 Professional indemnity insurance for certain other health 6
practitioners 7
Omit the section. 8
2.24 Health Care Liability Regulation 2007 9
[1] Clause 3 Definitions 10
Omit the definitions of dental auxiliary, dental prosthetist and pharmacist 11
from clause 3 (1). 12
[2] Clause 4 Exemption from approved insurance requirement 13
Omit the clause. 14
[3] Part 3 Health practitioners 15
Omit the Part. 16
2.25 Health Professionals (Special Events Exemption) Act 1997 17
No 90 18
[1] Section 3 Definitions 19
Omit the definitions of health care services and Health Registration Act. 20
Insert instead in alphabetical order: 21
chiropractor means a person registered under the Health 22
Practitioner Regulation National Law to practise in the 23
chiropractic profession (other than as a student). 24
dental hygienist means a person registered under the Health 25
Practitioner Regulation National Law: 26
(a) to practise in the dental profession as a dental hygienist 27
(other than as a student), and 28
(b) in the dental hygienists division of that profession. 29
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dental prosthetist means a person registered under the Health 1
Practitioner Regulation National Law: 2
(a) to practise in the dental profession as a dental prosthetist 3
(other than as a student), and 4
(b) in the dental prosthetists division of that profession. 5
dental therapist means a person registered under the Health 6
Practitioner Regulation National Law: 7
(a) to practise in the dental profession as a dental therapist 8
(other than as a student), and 9
(b) in the dental therapists division of that profession. 10
health care services means: 11
(a) services ordinarily provided by medical practitioners, 12
nurses, midwives, dentists, dental hygienists, dental 13
prosthetists, dental therapists, oral health therapists, 14
pharmacists, podiatrists, chiropractors, osteopaths, 15
optometrists, physiotherapists and psychologists, and 16
(b) any other service prescribed by the regulations. 17
oral health therapist means a person registered under the Health 18
Practitioner Regulation National Law: 19
(a) to practise in the dental profession as an oral health 20
therapist (other than as a student), and 21
(b) in the oral health therapists division of that profession. 22
osteopath means a person registered under the Health 23
Practitioner Regulation National Law to practise in the 24
osteopathy profession (other than as a student). 25
[2] Sections 9 (5), 12 and 14 26
Omit "a Health Registration Act" wherever occurring. 27
Insert instead "the Health Practitioner Regulation National Law". 28
[3] Section 11 Exemptions relating to offences 29
Omit "a Health Registration Act" from section 11 (1). 30
Insert instead "the Health Practitioner Regulation National Law (NSW), the 31
Health Practitioner Regulation National Law". 32
[4] Section 11 (1) 33
Insert "or Laws" after "those Acts". 34
Page 192
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Consequential amendments to other legislation Schedule 2
[5] Section 11, note 1
Omit "Health Registration Acts". 2
Insert instead "Health Practitioner Regulation National Law". 3
[6] Section 12 Complaints about visiting health professionals 4
Omit "any of those Acts" wherever occurring in section 12 (1). 5
Insert instead "that Act or that Law". 6
2.26 Health Records and Information Privacy Act 2002 No 71 7
[1] Section 4 Definitions 8
Insert in alphabetical order in section 4 (1): 9
chiropractor means a person registered under the Health 10
Practitioner Regulation National Law to practise in the 11
chiropractic profession (other than as a student). 12
osteopath means a person registered under the Health 13
Practitioner Regulation National Law to practise in the 14
osteopathy profession (other than as a student). 15
[2] Section 4 (1), definition of "health registration Act" 16
Omit the definition. 17
[3] Section 23 When non-compliance authorised 18
Omit the note. 19
[4] Schedule 1 Health Privacy Principles 20
Omit "a health registration Act" wherever occurring in clauses 10 (1) (h) 21
and 11 (1) (i). 22
Insert instead "the Health Practitioner Regulation National Law (NSW)". 23
2.27 Health Services Act 1997 No 154 24
[1] Chapter 8 Visiting practitioners 25
Omit "Medical Practice Act 1992 or the Dentists Act 1989" from the 26
Introduction. 27
Insert instead "Health Practitioner Regulation National Law (NSW)". 28
Page 193
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Schedule 2 Consequential amendments to other legislation
[2] Section 85 When can medical practitioners elect to provide their 1
services through their practice companies? 2
Omit "medical indemnity insurance" from section 85 (2) (b). 3
Insert instead "professional indemnity insurance". 4
[3] Section 85 (3) and (4) 5
Omit the subsections. 6
[4] Section 99 Duty to report certain criminal and disciplinary matters 7
Omit "Medical Practice Act 1992 (in the case of a medical practitioner) or 8
professional misconduct under the Dentists Act 1989 (in the case of a dentist)" 9
from section 99 (2). 10
Insert instead "Health Practitioner Regulation National Law (NSW)". 11
[5] Section 99A Duty of chief executive to report certain conduct of visiting 12
practitioner 13
Omit "a registration authority" from section 99A (1). 14
Insert instead "the relevant professional council". 15
[6] Section 99A (1) 16
Omit "health registration Act by which the registration authority is 17
constituted". 18
Insert instead "Health Practitioner Regulation National Law (NSW)". 19
[7] Section 99A (2) 20
Omit the subsection. Insert instead: 21
(2) In this section, relevant professional council means: 22
(a) in relation to a visiting practitioner who is a medical 23
practitioner, the Medical Council of New South Wales, or 24
(b) in relation to a visiting practitioner who is a dentist, the 25
Dental Council of New South Wales. 26
[8] Section 112 Determination of appeal 27
Omit "health registration Act under which the appellant is registered" from 28
section 112 (1A) (b). 29
Insert instead "Health Practitioner Regulation National Law (NSW)". 30
Page 194
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
[9] Section 112 (1A) (c) and (d) 1
Omit the paragraphs. Insert instead: 2
(c) the appellant may have an impairment under the Health 3
Practitioner Regulation National Law (NSW), 4
[10] Section 112 (1A) 5
Omit "New South Wales Medical Board to be dealt with as a complaint under 6
Part 4 of the Medical Practice Act 1992 (in the case of a medical practitioner) 7
or to the Dental Board to be dealt with as a complaint under Part 5 of the 8
Dental Practice Act 2001 (in the case of a dentist)". 9
Insert instead "Medical Council of New South Wales (in the case of a medical 10
practitioner) or the Dental Council of New South Wales (in the case of a 11
dentist) to be dealt with as a complaint under Part 8 of the Health Practitioner 12
Regulation National Law (NSW)". 13
[11] Section 117 Duty to report certain criminal conduct and disciplinary 14
matters 15
Omit "any relevant health professional registration Act" from section 117 (2). 16
Insert instead "the Health Practitioner Regulation National Law (NSW)". 17
[12] Section 117 (3), definition of "relevant health professional registration 18
Act" 19
Omit the definition. 20
[13] Section 117, note 21
Insert at the end of the section: 22
Note. Section 142 of the Health Practitioner Regulation National Law 23
imposes obligations on employers to notify the Australian Health 24
Practitioner Regulation Agency of misconduct by health practitioners. 25
[14] Section 117A Duty of chief executive to report certain conduct 26
Omit "a registration authority" from section 117A (1). 27
Insert instead "the relevant professional council". 28
[15] Section 117A (1) 29
Omit "the health registration Act by which the registration authority is 30
constituted". 31
Insert instead "the Health Practitioner Regulation National Law (NSW)". 32
Page 195
Health Practitioner Regulation Amendment Bill 2010
Schedule 2 Consequential amendments to other legislation
[16] Section 117A (2) 1
Omit the subsection. Insert instead: 2
(2) In this section, relevant professional council means: 3
(a) in relation to a chiropractor, the Chiropractic Council of 4
New South Wales, or 5
(b) in relation to a dentist, dental hygienist, dental prosthetist, 6
dental therapist or an oral health therapist, the Dental 7
Council of New South Wales, or 8
(c) in relation to a medical practitioner, the Medical Council 9
of New South Wales, or 10
(d) in relation to a nurse or midwife, the Nursing and 11
Midwifery Council of New South Wales, or 12
(e) in relation to an optometrist, the Optometry Council of 13
New South Wales, or 14
(f) in relation to an osteopath, the Osteopathy Council of New 15
South Wales, or 16
(g) in relation to a pharmacist, the Pharmacy Council of New 17
South Wales, or 18
(h) in relation to a physiotherapist, the Physiotherapy Council 19
of New South Wales, or 20
(i) in relation to a podiatrist, the Podiatry Council of New 21
South Wales, or 22
(j) in relation to a psychologist, the Psychology Council of 23
New South Wales. 24
[17] Schedule 7 Savings and transitional provisions 25
Insert at the end of the Schedule: 26
Part 6 Provision consequent on enactment of 27
Health Practitioner Regulation Amendment 28
Act 2010 29
74 Service contracts 30
Despite its repeal by the Health Practitioner Regulation 31
Amendment Act 2010, section 85 (3) continues to apply to a 32
service contract between a public health organisation and a 33
medical practitioner's practice company that was entered into 34
and in force immediately before its repeal. 35
Page 196
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
[18] Dictionary 1
Omit definition of dentist. 2
2.28 Human Tissue Act 1983 No 164 3
Section 4 Definitions 4
Omit the definition of nurse from section 4 (1). 5
2.29 Interpretation Act 1987 No 15 6
Section 21 Meanings of commonly used words and expressions 7
Omit the definitions of registered chiropractor, registered dentist, registered 8
medical practitioner, registered optometrist, registered osteopath, registered 9
pharmacist, registered physiotherapist, registered podiatrist and registered 10
psychologist from section 21 (1). 11
Insert instead in alphabetical order: 12
enrolled nurse means a person registered under the Health 13
Practitioner Regulation National Law: 14
(a) to practise in the nursing and midwifery profession as a 15
nurse (other than as a student), and 16
(b) in the enrolled nurses division of that profession. 17
Health Practitioner Regulation National Law means: 18
(a) the Health Practitioner Regulation National Law: 19
(i) as in force from time to time, set out in the Schedule 20
to the Health Practitioner Regulation National Law 21
Act 2009 of Queensland, and 22
(ii) as it applies as a law of New South Wales or another 23
State or a Territory, or 24
(b) the law of another State or a Territory that substantially 25
corresponds to the law referred to in paragraph (a). 26
nurse means an enrolled nurse or a registered nurse. 27
registered dentist or dentist means a person registered under the 28
Health Practitioner Regulation National Law: 29
(a) to practise in the dental profession as a dentist (other than 30
as a student), and 31
(b) in the dentists division of that profession. 32
registered medical practitioner or medical practitioner means a 33
person registered under the Health Practitioner Regulation 34
National Law to practise as a medical practitioner (other than as 35
a student). 36
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Schedule 2 Consequential amendments to other legislation
registered midwife or midwife means a person registered under 1
the Health Practitioner Regulation National Law to practise as a 2
midwife (other than as a student). 3
registered nurse means a person registered under the Health 4
Practitioner Regulation National Law: 5
(a) to practise in the nursing and midwifery profession as a 6
nurse (other than as a student), and 7
(b) in the registered nurses division of that profession. 8
registered optometrist or optometrist means a person registered 9
under the Health Practitioner Regulation National Law to 10
practise in the optometry profession (other than as a student). 11
registered pharmacist or pharmacist means a person registered 12
under the Health Practitioner Regulation National Law to 13
practise as a pharmacist (other than as a student). 14
registered physiotherapist or physiotherapist means a person 15
registered under the Health Practitioner Regulation National 16
Law to practise in the physiotherapy profession (other than as a 17
student). 18
registered podiatrist or podiatrist means a person registered 19
under the Health Practitioner Regulation National Law to 20
practise in the podiatry profession (other than as a student). 21
registered psychologist or psychologist means a person 22
registered under the Health Practitioner Regulation National 23
Law to practise as a psychologist (other than as a student). 24
2.30 Law Enforcement (Powers and Responsibilities) Act 2002 25
No 103 26
Schedule 2 Search warrants under other Acts 27
Omit the following: 28
Chiropractors Act 2001, section 128 29
Dental Practice Act 2001, section 154 30
Dental Technicians Registration Act 1975, section 25 31
Dentists Act 1989, section 59 32
Medical Practice Act 1992, section 125 33
Nurses and Midwives Act 1991, section 77B 34
Optometrists Act 2002, section 132 35
Osteopaths Act 2001, section 128 36
Pharmacy Practice Act 2006, section 151 37
Physiotherapists Act 2001, section 129 38
Page 198
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
Podiatrists Act 2003, section 128 1
Psychologists Act 2001, section 128 2
Insert instead in alphabetical order: 3
Health Practitioner Regulation National Law (NSW), 4
section 164B 5
2.31 Licensing and Registration (Uniform Procedures) Act 2002 6
No 28 7
[1] Part 4 Uniform registration procedures for health professionals 8
Omit the Part. 9
[2] Schedule 3 Registration to which Part 4 of Act applies 10
Omit the Schedule. 11
[3] Schedule 4 Amendment of other Acts and statutory rules 12
Omit Part 3 and Schedule 4.28. 13
2.32 Liquor Act 2007 No 90 14
Section 6 Exemptions from Act 15
Omit section 6 (1) (c) (ii) and (iii). Insert instead: 16
(ii) a registered nurse whose registration is endorsed 17
under the Health Practitioner Regulation National 18
Law as being qualified to practise as a nurse 19
practitioner, or 20
(iii) a registered midwife whose registration is endorsed 21
under the Health Practitioner Regulation National 22
Law as being qualified to practise as a midwife 23
practitioner, or 24
2.33 Mental Health Act 2007 No 8 25
[1] Section 129 Official visitors 26
Omit "psychologist registered under the Psychologists Act 2001" from 27
section 129 (2) (b). 28
Insert instead "registered psychologist". 29
Page 199
Health Practitioner Regulation Amendment Bill 2010
Schedule 2 Consequential amendments to other legislation
[2] Section 191 Liability of police officers and health care professionals 1
exercising functions under this Act or the Mental Health (Forensic 2
Provisions) Act 1990 3
Omit "a health registration Act within the meaning of the Health Care 4
Complaints Act 1993" from section 191 (4). 5
Insert instead "the Health Practitioner Regulation National Law". 6
2.34 Mental Health Regulation 2007 7
Clause 19 Additional qualified persons 8
Omit "under the Nurses and Midwives Act 1991" from clause 19 (a). 9
2.35 Minors (Property and Contracts) Act 1970 No 60 10
Section 49 Medical and dental treatment 11
Omit the definition of dental treatment in section 49 (4). Insert instead: 12
dental treatment means: 13
(a) treatment by a dentist in the course of the practice of 14
dentistry, or 15
(b) treatment by any person pursuant to directions given in the 16
course of the practice of dentistry by a dentist. 17
2.36 Parliamentary Electorates and Elections Amendment Act 18
2006 No 68 19
Schedule 19 Amendment of other legislation 20
Omit Schedule 19.5, 19.14 and 19.16. 21
2.37 Poisons and Therapeutic Goods Act 1966 No 31 22
[1] Section 4 Definitions 23
Omit the definitions of Dentist, midwife, midwife practitioner, nurse, nurse 24
practitioner, optometrist, Pharmacist and podiatrist from section 4 (1). 25
Insert instead in alphabetical order: 26
midwife practitioner means a registered midwife whose 27
registration is endorsed under the Health Practitioner Regulation 28
National Law as being qualified to practise as a midwife 29
practitioner. 30
nurse practitioner means a registered nurse whose registration is 31
endorsed under the Health Practitioner Regulation National Law 32
as being qualified to practise as a nurse practitioner. 33
Page 200
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
[2] Sections 17A17C 1
Omit sections 17A and 17B. Insert instead: 2
17A Authorisation of possession, use, supply or prescription of 3
substances by nurses and midwives 4
(1) A nurse is authorised to possess, use, supply or prescribe a 5
poison, restricted substance or drug of addiction for the purposes 6
of the practice of nursing, if: 7
(a) the nurse's registration is endorsed under section 94 of the 8
Health Practitioner Regulation National Law as being 9
qualified to possess, use, supply or prescribe that poison, 10
restricted substance or drug of addiction, or 11
(b) the nurse is a nurse practitioner who is authorised in 12
writing by the Director-General to possess, use, supply or 13
prescribe that poison, restricted substance or drug of 14
addiction. 15
(2) A midwife is authorised to possess, use, supply or prescribe a 16
poison, restricted substance or drug of addiction for the purposes 17
of the practice of midwifery, if: 18
(a) the midwife's registration is endorsed under section 94 of 19
the Health Practitioner Regulation National Law as being 20
qualified to possess, use, supply or prescribe that poison, 21
restricted substance or drug of addiction, or 22
(b) the midwife is a midwife practitioner who is authorised in 23
writing by the Director-General to possess, use, supply or 24
prescribe that poison, restricted substance or drug of 25
addiction. 26
17B Authorisation of possession, use, supply or prescription of 27
substances by optometrists 28
An optometrist whose registration is endorsed under section 94 of 29
the Health Practitioner Regulation National Law as being 30
qualified to possess, use, supply or prescribe a poison or 31
restricted substance is authorised to possess, use, supply or 32
prescribe that poison or restricted substance for the purposes of 33
the practice of optometry. 34
17C Authorisation of possession, use, supply or prescription of 35
substances by podiatrist 36
A podiatrist whose registration is endorsed under section 94 of 37
the Health Practitioner Regulation National Law as being 38
qualified to possess, use, supply or prescribe a poison or 39
restricted substance is authorised to possess, use, supply or 40
Page 201
Health Practitioner Regulation Amendment Bill 2010
Schedule 2 Consequential amendments to other legislation
prescribe that poison or restricted substance for the purposes of 1
the practice of podiatry. 2
[3] Section 30AA Power of Medical Committee to obtain information 3
Omit "New South Wales Medical Board or Nurses and Midwives Board" from 4
section 30AA (2). 5
Insert instead "the Medical Council of New South Wales, the Medical Board 6
of Australia, the Nursing and Midwifery Council of New South Wales or the 7
Nursing and Midwifery Board of Australia". 8
[4] Section 30AA (2) 9
Insert ", Council's" after "Commission's". 10
[5] Section 30AA (4) 11
Omit "New South Wales Medical Board or Nurses and Midwives Board". 12
Insert instead "the Medical Council of New South Wales, the Medical Board 13
of Australia, the Nursing and Midwifery Council of New South Wales and the 14
Nursing and Midwifery Board of Australia". 15
[6] Section 30AA (4) 16
Insert ", Council" after "the Commission". 17
[7] Section 30AA (5) 18
Omit section 30AA (5) and (6). Insert instead: 19
(5) This section applies despite any provision of the Health Care 20
Complaints Act 1993 or the Health Practitioner Regulation 21
National Law. 22
[8] Schedule 2A Provisions relating to Optometrists Drug Authority 23
Committee 24
Omit the Schedule. 25
2.38 Poisons and Therapeutic Goods Regulation 2008 26
[1] Clause 3 Definitions 27
Omit "nurse practitioner, midwife practitioner" wherever occurring in the 28
definition of authorised practitioner in clause 3 (1). 29
Insert instead "nurse or midwife authorised under section 17A of the Act". 30
Page 202
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
[2] Clause 3 (1), definition of "retail pharmacy" 1
Omit the definition. Insert instead: 2
retail pharmacy means premises included in the Register of 3
Pharmacies kept under Schedule 5F of the Health Practitioner 4
Regulation National Law (NSW). 5
[3] Clauses 46 6
Omit the clauses. 7
[4] Clause 32 Prescriptions for restricted substances 8
Omit the note to the clause. 9
[5] Appendix C Persons authorised to possess and use substances 10
Omit clause 2. 11
[6] Appendix C, clause 4 12
Omit clause 4 (2). Insert instead: 13
(2) In this clause: 14
dental therapist means a person registered under the Health 15
Practitioner Regulation National Law: 16
(a) to practise in the dental profession as a dental therapist 17
(other than as a student), and 18
(b) in the dental therapists division of that profession. 19
oral health therapist means a person registered under the Health 20
Practitioner Regulation National Law: 21
(a) to practise in the dental profession as an oral health 22
therapist (other than as a student), and 23
(b) in the oral health therapists division of that profession. 24
[7] Appendix C, clause 5 25
Omit the clause. Insert instead: 26
5 Dental hygienists 27
(1) A dental hygienist is authorised to possess and use the following 28
substances if required for use in connection with his or her 29
practice as a dental hygienist: 30
(a) benzocaine, 31
(b) lignocaine, 32
(c) mepivacaine, 33
Page 203
Health Practitioner Regulation Amendment Bill 2010
Schedule 2 Consequential amendments to other legislation
(d) prilocaine, 1
(e) procaine. 2
(2) In this clause: 3
dental hygienist means a person registered under the Health 4
Practitioner Regulation National Law: 5
(a) to practise in the dental profession as a dental hygienist 6
(other than as a student), and 7
(b) in the dental hygienists division of that profession. 8
2.39 Privacy Code of Practice (General) 2003 9
Schedule 2 Modification of Part 6 of the Act 10
Omit items 718. 11
2.40 Private Health Facilities Act 2007 No 9 12
[1] Section 4 Definitions 13
Omit the definition of registered nurse from section 4 (1). 14
[2] Section 39 Medical advisory committee 15
Omit "is registered under section 4 or 7 (1) E of the Medical Practice 16
Act 1992" from section 39 (1). 17
Insert instead "holds general or specialist registration in the medical 18
profession under Part 7 of the Health Practitioner Regulation National Law". 19
2.41 Private Health Facilities Regulation 2010 20
Clause 13 Qualifications for director of nursing of facility 21
Omit clause 13 (a). 22
2.42 Public Finance and Audit Act 1983 No 152 23
Schedule 2 Statutory bodies 24
Omit the following: 25
Chiropractors Registration Board 26
Dental Board 27
Dental Technicians Registration Board 28
New South Wales Medical Board 29
Nurses and Midwives Board 30
Optometrists Registration Board 31
Osteopaths Registration Board 32
Page 204
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
Pharmacy Board of New South Wales 1
Physiotherapists Registration Board 2
Podiatrists Registration Board 3
Psychologists Registration Board 4
Insert instead in alphabetical order: 5
Chiropractic Council of New South Wales 6
Dental Council of New South Wales 7
Medical Council of New South Wales 8
Nursing and Midwifery Council of New South Wales 9
Optometry Council of New South Wales 10
Osteopathy Council of New South Wales 11
Pharmacy Council of New South Wales 12
Physiotherapy Council of New South Wales 13
Podiatry Council of New South Wales 14
Psychology Council of New South Wales 15
2.43 Public Health Act 1991 No 10 16
[1] Section 10AA 17
Omit the section. Insert instead: 18
10AA Definitions 19
In this Part, health practitioner, health service, professional 20
council and registration authority have the same meanings as in 21
the Health Care Complaints Act 1993. 22
Note. The Health Care Complaints Act 1993 defines those terms as 23
follows: 24
health practitioner means a natural person who provides a health 25
service (whether or not the person is registered under the Health 26
Practitioner Regulation National Law). 27
health service includes the following services, whether provided as 28
public or private services: 29
(a) medical, hospital and nursing services, 30
(b) dental services, 31
(c) mental health services, 32
(d) pharmaceutical services, 33
(e) ambulance services, 34
(f) community health services, 35
(g) health education services, 36
(h) welfare services necessary to implement any services referred to 37
in paragraphs (a)(g), 38
(i) services provided by podiatrists, chiropractors, osteopaths, 39
optometrists, physiotherapists and psychologists, 40
Page 205
Health Practitioner Regulation Amendment Bill 2010
Schedule 2 Consequential amendments to other legislation
(j) services provided by optical dispensers, dietitians, masseurs, 1
naturopaths, acupuncturists, occupational therapists, speech 2
therapists, audiologists, audiometrists and radiographers, 3
(k) services provided in other alternative health care fields, 4
(l) forensic pathology services, 5
(m) a service prescribed by the regulations as a health service for the 6
purposes of the Health Care Complaints Act 1993. 7
professional council means: 8
(a) in relation to a chiropractor, the Chiropractic Council of New 9
South Wales, or 10
(b) in relation to a dentist, dental hygienist, dental prosthetist, dental 11
therapist or an oral health therapist, the Dental Council of New 12
South Wales, or 13
(c) in relation to a medical practitioner, the Medical Council of New 14
South Wales, or 15
(d) in relation to a nurse or midwife, the Nursing and Midwifery 16
Council of New South Wales, or 17
(e) in relation to an optometrist, the Optometry Council of New South 18
Wales, or 19
(f) in relation to an osteopath, the Osteopathy Council of New South 20
Wales, or 21
(g) in relation to a pharmacist, the Pharmacy Council of New South 22
Wales, or 23
(h) in relation to a physiotherapist, the Physiotherapy Council of New 24
South Wales, or 25
(i) in relation to a podiatrist, the Podiatry Council of New South 26
Wales, or 27
(j) in relation to a psychologist, the Psychology Council of New 28
South Wales. 29
registration authority means: 30
(a) in relation to a chiropractor, the Chiropractic Board of Australia, or 31
(b) in relation to a dentist, dental hygienist, dental prosthetist, dental 32
therapist or an oral health therapist, the Dental Board of Australia, 33
or 34
(c) in relation to a medical practitioner, the Medical Board of 35
Australia, or 36
(d) in relation to a nurse or midwife, the Nursing and Midwifery Board 37
of Australia, or 38
(e) in relation to an optometrist, the Optometry Board of Australia, or 39
(f) in relation to an osteopath, the Osteopathy Board of Australia, or 40
(g) in relation to a pharmacist, the Pharmacy Board of Australia, or 41
(h) in relation to a physiotherapist, the Physiotherapy Board of 42
Australia, or 43
(i) in relation to a podiatrist, the Podiatry Board of Australia, or 44
(j) in relation to a psychologist, the Psychology Board of Australia. 45
Page 206
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
[2] Part 2A, Division 2 1
Omit the Division. 2
[3] Section 10AJ 3
Omit the section. Insert instead: 4
10AJ Definitions 5
(1) In this Division: 6
de-registered health practitioner means a health practitioner 7
whose registration as a health practitioner under the Health 8
Practitioner Regulation National Law or interstate health 9
registration legislation is cancelled or suspended as a result of 10
disciplinary proceedings under the Health Practitioner 11
Regulation National Law, the Health Practitioner Regulation 12
National Law (NSW) or interstate health registration legislation. 13
interstate health registration legislation means legislation of 14
another State or Territory (other than the Health Practitioner 15
Regulation National Law) that provides for the registration of 16
health practitioners. 17
prohibition order means a prohibition order made under the 18
Health Practitioner Regulation National Law (NSW) or section 19
41A of the Health Care Complaints Act 1993 and includes an 20
interim prohibition order made under section 41AA of the Health 21
Care Complaints Act 1993. 22
(2) For the purposes of this Division, a person's registration as a 23
health practitioner under the Health Practitioner Regulation 24
National Law or interstate health registration legislation is 25
cancelled if any of the following happen as a result of an action, 26
decision, determination or order of a registration authority, 27
tribunal or court under that Law or legislation: 28
(a) the person's registration is cancelled, 29
(b) the person is de-registered, 30
(c) the person's name is removed from, or struck off, a register 31
or a roll, 32
(d) the person's practising certificate is cancelled. 33
(3) For the purposes of this Division, a health practitioner is subject 34
to a prohibition order if the health practitioner is, because of the 35
order, subject to conditions when providing health services or is 36
prohibited from providing some or all health services. 37
Page 207
Health Practitioner Regulation Amendment Bill 2010
Schedule 2 Consequential amendments to other legislation
[4] Sections 10AK (2) and 10AL (1) 1
Omit "a particular health registration Act or corresponding health registration 2
legislation" and "that Act" wherever occurring. 3
Insert instead "the Health Practitioner Regulation National Law or interstate 4
health registration legislation" and "that Law", respectively. 5
[5] Section 10AM Codes of conduct for unregistered health practitioners 6
Omit "a health registration Act" wherever occurring in section 10AM (1) (a) 7
and (b). 8
Insert instead "the Health Practitioner Regulation National Law". 9
[6] Section 42E Definitions 10
Omit paragraph (b) of the definition of health practitioner. Insert instead: 11
(b) a registered nurse or a registered midwife; or 12
[7] Section 51 Skin penetration procedures--power of environmental health 13
officers to enter and inspect premises 14
Omit paragraph (g) of the definition of skin penetration procedure from 15
section 51 (3). 16
Insert instead: 17
(g) a procedure carried out in the practice of a health 18
profession by: 19
(i) a health practitioner registered under the Health 20
Practitioner Regulation National Law, or 21
(ii) a person acting under the direction or supervision of 22
such a health practitioner, or 23
[8] Section 52 Nursing requirements for nursing homes 24
Omit the definition of registered nurse from section 52 (3). 25
2.44 Public Health (General) Regulation 2002 26
[1] Clauses 20A and 20C 27
Omit the clauses. 28
[2] Clause 25A (a) and (b) and clause 2 (a) and (b) of Schedule 3 29
Omit "a health registration Act" wherever occurring. 30
Insert instead "the Health Practitioner Regulation National Law". 31
Page 208
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
[3] Schedule 3 Code of Conduct 1
Omit clause 1. Insert instead: 2
1 Definitions 3
In this code of conduct: 4
health practitioner and health service have the same meaning as 5
in the Health Care Complaints Act 1993. 6
Note. The Health Care Complaints Act 1993 defines those terms as 7
follows: 8
health practitioner means a natural person who provides a health 9
service (whether or not the person is registered under the Health 10
Practitioner Regulation National Law). 11
health service includes the following services, whether provided as 12
public or private services: 13
(a) medical, hospital and nursing services, 14
(b) dental services, 15
(c) mental health services, 16
(d) pharmaceutical services, 17
(e) ambulance services, 18
(f) community health services, 19
(g) health education services, 20
(h) welfare services necessary to implement any services referred to 21
in paragraphs (a)(g), 22
(i) services provided by podiatrists, chiropractors, osteopaths, 23
optometrists, physiotherapists, and psychologists, 24
(j) services provided by optical dispensers, dietitians, masseurs, 25
naturopaths, acupuncturists, occupational therapists, speech 26
therapists, audiologists, audiometrists and radiographers, 27
(k) services provided in other alternative health care fields, 28
(l) forensic pathology services, 29
(m) a service prescribed by the regulations as a health service for the 30
purposes of the Health Care Complaints Act 1993. 31
[4] Schedule 3, clause 3 32
Insert after clause 3 (2) (b): 33
(b1) a health practitioner must not provide services that he or 34
she is not qualified to provide, 35
(b2) a health practitioner must not use his or her possession of 36
particular qualifications to mislead or deceive his or her 37
clients as to his or her competence in his or her field of 38
practice or ability to provide treatment, 39
Page 209
Health Practitioner Regulation Amendment Bill 2010
Schedule 2 Consequential amendments to other legislation
[5] Schedule 3, clause 18 1
Insert at the end of the Schedule: 2
18 Sale and supply of optical appliances 3
(1) A health practitioner must not sell or supply an optical appliance 4
(other than cosmetic contact lenses) to a person unless he or she 5
does so in accordance with a prescription from a person 6
authorised to prescribe the optical appliance under section 122 of 7
the Health Practitioner Regulation National Law. 8
(2) A health practitioner must not sell or supply contact lenses to a 9
person unless he or she: 10
(a) was licensed under the Optical Dispensers Act 1963 11
immediately before its repeal, or 12
(b) has a Certificate IV in optical dispensing or an equivalent 13
qualification. 14
(3) A health practitioner who sells or supplies contact lenses to a 15
person must provide the person with written information about 16
the care, handling and wearing of contact lenses, including advice 17
about possible adverse reactions to wearing contact lenses. 18
(4) This clause does not apply to the sale or supply of the following: 19
(a) hand-held magnifiers, 20
(b) corrective lenses designed for use only in diving masks or 21
swimming goggles, 22
(c) ready made spectacles that: 23
(i) are designed to alleviate the effects of presbyopia 24
only, and 25
(ii) comprise 2 lenses of equal power, being a power of 26
plus one dioptre or more but not exceeding plus 27
3.5 dioptres. 28
(5) In this clause: 29
cosmetic contact lenses means contact lenses that are not 30
designed to correct, remedy or relieve any refractive abnormality 31
or defect of sight. 32
optical appliance has the same meaning as it has in section 122 33
of the Health Practitioner Regulation National Law. 34
Page 210
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
2.45 Public Health (Skin Penetration) Regulation 2000 1
Clause 4 Skin penetration procedure powers of environmental health 2
officers to enter and inspect premises 3
Omit clause 4 (2) and the note. 4
2.46 Public Sector Employment and Management Act 2002 No 43 5
Schedule 1 Divisions of the Government Service 6
Insert the following in Columns 1 and 2 respectively in Part 2 before the matter 7
relating to the "Health Professional Registration Boards Division": 8
Health Professional Councils Authority Director-General of the Department of
Division Health
2.47 Radiation Control Regulation 2003 9
[1] Clause 8A Exemptions from section 6 licensing requirements for dental 10
profession in relation to use of certain radiation apparatus 11
Omit clause 8A (1) (a). Insert instead: 12
(a) is registered under the Health Practitioner Regulation 13
National Law to practise in the dental profession (other 14
than as a student) as a dentist, a dental therapist, a dental 15
hygienist or an oral health therapist, and is registered in the 16
corresponding division of that profession, and 17
[2] Clause 8A (2) (a) 18
Omit the paragraph. Insert instead: 19
(a) is registered as a student in the dental profession under the 20
Health Practitioner Regulation National Law, and 21
2.48 Road Transport (Driver Licensing) Regulation 2008 22
[1] Clause 4 Definitions 23
Omit the definition of allied professional practitioner from clause 4 (1). 24
Insert instead: 25
allied professional practitioner means a psychologist, an 26
optometrist or an occupational therapist. 27
Page 211
Health Practitioner Regulation Amendment Bill 2010
Schedule 2 Consequential amendments to other legislation
[2] Clause 4 (1), definition of "medical practitioner" 1
Omit the definition. 2
2.49 Stock Medicines Act 1989 No 182 3
Section 3 Definitions 4
Omit the definition of pharmacist from section 3 (1). 5
2.50 Supreme Court Rules 1970 6
Part 1, rule 8 Interpretation 7
Omit the definition of medical practitioner. 8
2.51 Uniform Civil Procedure Rules 2005 9
Schedule 8 Assignment of business in the Supreme Court 10
Omit the following from Part 1: 11
Nurses and Midwives Act 1991 Section 67 Common Law
2.52 Workers Compensation Act 1987 No 70 12
[1] Section 59 Definitions 13
Omit the definitions of dental prosthetist and medical practitioner. 14
Insert instead in alphabetical order: 15
chiropractor means a person registered under the Health 16
Practitioner Regulation National Law to practise in the 17
chiropractic profession (other than as a student). 18
dental prosthetist means a person registered under the Health 19
Practitioner Regulation National Law: 20
(a) to practise in the dental profession as a dental prosthetist 21
(other than as a student), and 22
(b) in the dental prosthetists division of that profession. 23
osteopath means a person registered under the Health 24
Practitioner Regulation National Law to practise in the 25
osteopathy profession (other than as a student). 26
Page 212
Health Practitioner Regulation Amendment Bill 2010
Consequential amendments to other legislation Schedule 2
[2] Section 59, definition of "medical or related treatment" 1
Omit "a registered chiropractor or osteopath" from paragraph (a). 2
Insert instead "a chiropractor, an osteopath". 3
2.53 Workers Compensation Regulation 2003 4
[1] Clause 195A Disclosure of information for complaint about health 5
practitioners (s 243 (2) (d) of the 1998 Act) 6
Omit "the registration authority under a relevant health registration Act" from 7
clause 195A (1). 8
Insert instead "a professional council or registration authority under the Health 9
Practitioner Regulation National Law". 10
[2] Clause 195A (2) (a) and (b) 11
Omit "relevant health registration Act" wherever occurring. 12
Insert instead "Health Practitioner Regulation National Law". 13
[3] Clause 195A (3) 14
Omit "health registration Act,". 15
[4] Clause 195A (3), definition of "relevant health registration Act" 16
Omit the definition. 17
Page 213
Health Practitioner Regulation Amendment Bill 2010
Schedule 3 Repeals
Schedule 3 Repeals 1
1 Repeal of legislation 2
The following Acts and Regulations are repealed: 3
Chiropractors Act 2001 No 15 4
Chiropractors Regulation 2007 5
Dental Practice Act 2001 No 64 6
Dental Practice Regulation 2004 7
Dental Technicians Registration Act 1975 No 40 8
Dental Technicians Registration Regulation 2008 9
Medical Practice Act 1992 No 94 10
Medical Practice Regulation 2008 11
Nurses and Midwives Act 1991 No 9 12
Nurses and Midwives Regulation 2008 13
Optometrists Act 2002 No 30 14
Optometrists Regulation 2004 15
Osteopaths Act 2001 No 16 16
Osteopaths Regulation 2007 17
Pharmacy Practice Act 2006 No 59 18
Pharmacy Practice Regulation 2008 19
Physiotherapists Act 2001 No 67 20
Physiotherapists Regulation 2008 21
Podiatrists Act 2003 No 69 22
Podiatrists Regulation 2005 23
Psychologists Act 2001 No 69 24
Psychologists Regulation 2008 25
Page 214
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