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New South Wales
Medical Practice Amendment Bill 2008
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Medical Practice Act 1992 No 94 2
4 Amendment of Health Care Complaints Act 1993 No 105 2
5 Repeal of Act 2
Schedule 1 Amendment of Medical Practice Act 1992 3
Schedule 2 Amendment of Health Care Complaints Act 1993 19
Medical Practice Amendment Bill 2008
Contents
Page
Contents page 2
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2008
New South Wales
Medical Practice Amendment Bill 2008
Act No , 2008
An Act to amend the Medical Practice Act 1992 and the Health Care Complaints Act
1993 with respect to the principles of administration of and the exercise of
disciplinary powers under those Acts; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Medical Practice Amendment Bill 2008
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Medical Practice Amendment Act 2008.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Medical Practice Act 1992 No 94
The Medical Practice Act 1992 is amended as set out in Schedule 1.
4 Amendment of Health Care Complaints Act 1993 No 105
The Health Care Complaints Act 1993 is amended as set out in
Schedule 2.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Medical Practice Amendment Bill 2008
Amendment of Medical Practice Act 1992 Schedule 1
Schedule 1 Amendment of Medical Practice Act 1992
(Section 3)
[1] Section 2A
Omit the section. Insert instead:
2A Object and principle of administration of Act
(1) The object of this Act is to protect the health and safety of the
public.
(2) The object of this Act is achieved by providing mechanisms
designed to ensure that:
(a) medical practitioners are fit to practise medicine, and
(b) medical students are fit to undertake medical studies and
clinical placements.
(3) In the exercise of functions under this Act the protection of the
health and safety of the public is to be the paramount
consideration.
[2] Section 36 Meaning of "unsatisfactory professional conduct"
Insert ", whether or not the practitioner has been prosecuted for or convicted
of an offence in respect of the contravention" after "regulations" in
section 36 (1) (b).
[3] Section 37
Omit the section. Insert instead:
37 Meaning of "professional misconduct"
For the purposes of this Act, professional misconduct of a
registered medical practitioner means:
(a) unsatisfactory professional conduct, or
(b) more than one instance of unsatisfactory professional
conduct that, when the instances are considered together,
amount to conduct,
of a sufficiently serious nature to justify suspension of the
practitioner from practising medicine or the removal of the
practitioner's name from the Register.
Page 3
Medical Practice Amendment Bill 2008
Schedule 1 Amendment of Medical Practice Act 1992
[4] Section 47
Insert after section 46:
47 Protection of complainants and other persons
(1) If a person makes a complaint, and does so in good faith:
(a) the making of the complaint does not constitute a breach of
professional etiquette or ethics or a departure from
accepted standards of professional conduct, and
(b) no liability for defamation is incurred because of the
complaint, and
(c) the making of the complaint does not constitute a ground
for civil proceedings for malicious prosecution or for
conspiracy.
(2) The protections given to a complainant by this section extend to:
(a) any person who, in good faith, provided the complainant
with any information on the basis of which the complaint
was made, and
(b) any person who, in good faith, was otherwise concerned in
the making of the complaint.
(3) This section does not limit or otherwise affect the operation of
section 96 of the Health Care Complaints Act 1993.
[5] Section 61 General powers to caution, reprimand, counsel etc
Insert after section 61 (2):
(3) When a Committee or the Tribunal acting under this section
makes an order or directs that any condition be imposed on a
person's registration, the Committee or Tribunal may order that
a contravention of the order or condition will result in the person
being deregistered. The order or condition concerned is then a
critical compliance order or condition under this section.
[6] Section 64 Tribunal can suspend or deregister in certain cases
Insert after section 64 (1):
(1A) The Tribunal must by order direct that a person be deregistered if
the Tribunal is satisfied (when it finds on a complaint about the
person) that the person has contravened an order or condition of
the person's registration that is a critical compliance order or
condition under section 61.
Page 4
Medical Practice Amendment Bill 2008
Amendment of Medical Practice Act 1992 Schedule 1
[7] Section 64 (2A)
Omit "order under subsection (1)".
Insert instead "order under this section".
[8] Section 66
Omit the section. Insert instead:
66 Suspension or conditions to protect the public
(1) The Board must, if at any time it is satisfied that it is appropriate
to do so for the protection of the health or safety of any person or
persons (whether or not a particular person or persons) or if
satisfied that the action is otherwise in the public interest:
(a) by order, suspend a registered medical practitioner from
practising medicine for such period (not exceeding
8 weeks) as is specified in the order, or
(b) impose on a registered medical practitioner's registration
such conditions relating to the practitioner's practising
medicine as the Board considers appropriate.
(2) If at any time the Board is satisfied that a registered medical
practitioner has contravened an order or condition of the
practitioner's registration that is a critical compliance order or
condition under section 61, the Board must:
(a) by order suspend the practitioner from practising medicine
until a complaint concerning the matter is dealt with by the
Tribunal, and
(b) refer the matter to the Tribunal as a complaint.
(3) The Board may take action under this section:
(a) whether or not a complaint has been made or referred to
the Board about the practitioner, and
(b) whether or not proceedings in respect of such a complaint
are before a Committee or the Tribunal.
(4) Without limiting the conditions that may be imposed under
subsection (1) (b), the Board may (for the purpose of having the
professional performance of a registered medical practitioner
assessed under Part 5A) impose a condition requiring the
practitioner to take part in the assessment, but such a condition
has no effect unless and until the Commission concurs with the
imposition of the condition.
(5) The Board is to give written notice of any action taken under this
section to the practitioner concerned.
Page 5
Medical Practice Amendment Bill 2008
Schedule 1 Amendment of Medical Practice Act 1992
(6) If the Board delegates any function of the Board under this
section to a group of 2 or more persons, at least one of those
persons must be a person who is not a registered medical
practitioner.
[9] Section 66AA
Insert after section 66:
66AA Audio recording of meeting
(1) The Board must cause an audio recording to be made of any
proceedings of the Board in connection with the consideration by
the Board of the exercise (including proposed exercise) of any
function under this Division in respect of a registered medical
practitioner:
(a) during which the practitioner (or the practitioner's adviser)
is present, or
(b) during which a person other than a member of the Board or
a staff member of the Board is present and gives the Board
oral information relevant to the Board's consideration.
(2) A recording under this section is not admissible in evidence in
any civil or criminal proceedings in a court of law (other than
proceedings for an offence under this Act) or in an inquest or
inquiry under the Coroners Act 1980.
[10] Section 66A Power to remove or alter conditions or terminate
suspension
Omit section 66A (1). Insert instead:
(1) The Board may, at any time:
(a) by order, shorten or terminate a period of suspension
imposed by the Board under this Division, or
(b) alter or remove conditions imposed under this Division.
(1A) The Board may, at any time after taking action under section 66
with respect to a registered medical practitioner (the original
action), take any other action it could have taken under that
section at the time of taking the original action.
Page 6
Medical Practice Amendment Bill 2008
Amendment of Medical Practice Act 1992 Schedule 1
[11] Section 66AB
Insert before section 66B:
66AB Review of certain decisions
(1) A registered medical practitioner may apply to the Board for the
review of a decision of the Board under section 66 or 66A to:
(a) suspend the practitioner from practising medicine, or
(b) impose conditions on the practitioner's registration or alter
any such conditions.
(2) On receiving an application for review, the Board:
(a) may refuse to reconsider its decision if, in the opinion of
the Board, the application is frivolous or vexatious, or
(b) must otherwise reconsider its decision, and in so doing is
to consider any new evidence or material submitted by the
practitioner or that the Board reasonably considers is
relevant.
(3) Following its reconsideration of a decision, the Board may affirm
or vary the decision or set it aside and take any action the Board
has the power to take under section 66.
[12] Section 66B Referral of matter to Commission
Insert after section 66B (1):
(1A) The Board may (despite any other Act or law) provide to the
Commission any information obtained by the Board in
connection with the exercise of functions under section 66
(including any information, copies of documents or evidence
obtained under section 69B and a copy of any recording made
under section 66AA) in respect of a matter that the Board refers
to the Commission under this section.
[13] Section 66B (5)
Omit the subsection. Insert instead:
(5) This section does not apply if the Board takes action against a
registered medical practitioner under section 66:
(a) because the Board is of the opinion that the practitioner
suffers from an impairment, or
(b) that is action of a kind referred to in section 66 (4).
Page 7
Medical Practice Amendment Bill 2008
Schedule 1 Amendment of Medical Practice Act 1992
[14] Section 66BA
Insert after section 66B:
66BA Special provision--performance assessment
(1) If the Commission concurs with the proposed imposition by the
Board under section 66 (4) of a condition on a registered medical
practitioner's registration requiring the practitioner to take part in
a performance assessment under Part 5A, the matter giving rise
to the proposal:
(a) is to be dealt with by way of performance assessment
under Part 5A, and
(b) may, if the Board and the Commission agree, also be dealt
with by the Commission as a complaint against the
practitioner.
(2) If the Commission does not concur with the imposition of such a
condition, the matter giving rise to the proposal is to be dealt with
by the Commission as a complaint against the practitioner.
(3) The Board may (despite any other Act or law) provide to the
Commission any information obtained by the Board in
connection with the exercise of functions under section 66
(including any information, copies of documents or evidence
obtained under section 69B and a copy of any recording made
under section 66AA) in respect of a matter to be dealt with by the
Commission under this section.
(4) If a matter is to be dealt with under this section by way of
performance assessment under Part 5A, it may be so dealt with
despite anything to the contrary in section 86D.
(5) If a matter is to be dealt with under this section as a complaint,
the Board is to refer the matter to the Commission and the matter
is to be dealt with by the Commission as a complaint made to the
Commission against the practitioner concerned.
(6) The Commission is to investigate the complaint or cause it to be
investigated and, as soon as practicable after it has completed its
investigation, refer the complaint to a Committee or the Tribunal.
(7) Section 52 (Serious complaints must be referred to Tribunal)
applies in respect of any such action by the Commission.
Page 8
Medical Practice Amendment Bill 2008
Amendment of Medical Practice Act 1992 Schedule 1
[15] Section 67 Extension of suspension
Omit section 67 (a). Insert instead:
(a) the Chairperson or a Deputy Chairperson is satisfied, on
the basis of information provided by the Board, that there
is no material change in the circumstances that gave rise to
the making of the order imposing the suspension and has
approved the extension in writing, and
[16] Section 68
Omit the section. Insert instead:
68 Expiry or termination of suspension
On the expiry or termination of a period of suspension imposed
under this Division, the person's rights and privileges as a
registered medical practitioner are revived, subject to any other
action taken by the Board under this Division or any order of the
Tribunal on a complaint that is referred to the Tribunal.
[17] Section 69B
Insert after section 69A:
69B Powers of Board to obtain information, records and evidence
(1) If the Board is of the opinion that a person is capable of giving
information, producing documents (including medical records)
or giving evidence that would assist the Board in making a
determination with respect to any action taken or proposed to be
taken by the Board under this Division, the Board may, by notice
in writing given to the person, require the person to do any one or
more of the following:
(a) to give the Board, in writing signed by the person (or, in
the case of a corporation, by a competent officer of the
corporation), within the time and in the manner specified
in the notice, any such information of which the person has
knowledge,
(b) to produce to the Board, in accordance with the notice, any
such documents,
(c) to appear before the Board or a member of staff of the
Board authorised by the President or Deputy President of
the Board at a time and place specified in the notice that is
reasonable and give any such evidence, either orally or in
writing, and produce any such documents.
Page 9
Medical Practice Amendment Bill 2008
Schedule 1 Amendment of Medical Practice Act 1992
(2) Information and documents may be given or provided to the
Board in compliance with this section despite any other Act or
law.
(3) A person who is subject to a requirement made under
subsection (1) must not:
(a) without reasonable excuse, fail to comply with the
requirement, or
(b) in purported compliance with the requirement, provide
information, documents or evidence knowing the
information, documents or evidence to be false or
misleading in a material particular.
Maximum penalty: 20 penalty units.
[18] Part 4, Division 7
Insert after Division 6 of Part 4:
Division 7 Reportable misconduct
71A Reportable misconduct
(1) A registered medical practitioner commits reportable
misconduct in the following circumstances:
(a) if he or she practises medicine while intoxicated by drugs
(whether lawfully or unlawfully administered) or alcohol,
(b) if he or she practises medicine in a manner that constitutes
a flagrant departure from accepted standards of
professional practice or competence and risks harm to
some other person,
(c) if he or she engages in sexual misconduct in connection
with the practice of medicine.
(2) A registered medical practitioner who believes, or ought
reasonably to believe, that some other registered medical
practitioner has committed reportable misconduct must, as soon
as practicable, report the conduct to the Board.
Note. Pursuant to sections 36 (1) (b) and 37, failure to comply with this
section will constitute either unsatisfactory professional conduct or
professional misconduct.
(3) A report under this section:
(a) is to be made and dealt with in the same way as a
complaint, and
Page 10
Medical Practice Amendment Bill 2008
Amendment of Medical Practice Act 1992 Schedule 1
(b) is taken to be a complaint, both for the purposes of this Part
and for the purposes of sections 96 and 98 of the Health
Care Complaints Act 1993.
[19] Section 94A Inquiry into review application
Insert after section 94A (2):
(3) In addition to any other matter that the review may take into
account, the review must take into account any complaint made
or notified to the Board about the person, whether the complaint
was made or notified before or after the making of the order that
is the subject of the review and whether or not the complaint was
referred under Division 3 of Part 4 or any other action was taken
on the complaint.
[20] Section 95A
Insert after section 95:
95A Appeal on point of law
(1) Without affecting any right of appeal under section 95, a
registered medical practitioner who is the subject of action taken
by the Board under section 66, 66A or 66AB may appeal with
respect to a point of law to the Chairperson of the Tribunal or a
Deputy Chairperson nominated by the Chairperson.
(2) An appeal under this section does not operate to stay the effect of
the Board's decision unless the Chairperson or Deputy
Chairperson otherwise orders.
(3) The Board must not make any decision that is inconsistent with
the Chairperson's or Deputy Chairperson's determination with
respect to a point of law under this section.
(4) A registered medical practitioner may not make an application to
the Supreme Court for judicial review of action taken by the
Board under section 66, 66A or 66AB, being an application
alleging any error of law, until an appeal under this section in
respect of the point of law concerned has been made and disposed
of.
[21] Section 127A Practitioners to submit annual return
Insert after section 127A (1):
(1A) A registered medical practitioner must include with each return
furnished to the Board under this section such of the following
documents as may be necessary for the purpose of demonstrating
that the medical practitioner has complied with section 19
Page 11
Medical Practice Amendment Bill 2008
Schedule 1 Amendment of Medical Practice Act 1992
(Medical practitioners must be covered by approved professional
indemnity insurance) of the Health Care Liability Act 2001 in
respect of medical practice during the return period or was not
required to comply with that section:
(a) a copy of a certificate or policy of insurance for
professional indemnity insurance cover held by the
practitioner,
(b) such documents as the Board indicates (by guidelines
published by the Board) will be accepted by the Board as
demonstrating that the practitioner is not required to
comply with that section.
[22] Section 127C
Omit the section. Insert instead:
127C Board may require further information from practitioner
(1) The Board may, by written notice to a registered medical
practitioner, require the practitioner to provide to the Board,
within a reasonable period specified in the notice, further
information about any complaint or other matter concerning the
practitioner that has come to the attention of the Board.
(2) The Board may, for the purpose of facilitating the exercise of its
functions under section 191B, by written notice to a registered
medical practitioner, require the practitioner to provide to the
Board, within a reasonable period specified in the notice, any of
the following:
(a) details of any employer of the practitioner during the
period or periods specified in the notice,
(b) details of the chief executive officer (however described)
of any public health organisation in respect of which the
practitioner is or was a visiting practitioner or is or was
otherwise accredited during the period or periods specified
in the notice,
(c) details of the chief executive officer (however described)
of any private hospital or day procedure centre in respect
of which the practitioner is or was accredited during the
period or periods specified in the notice,
(d) details of the chief executive officer (however described)
of any nursing home (within the meaning of the Public
Health Act 1991) in respect of which the practitioner is or
was accredited during the period or periods specified in the
notice.
Page 12
Medical Practice Amendment Bill 2008
Amendment of Medical Practice Act 1992 Schedule 1
(3) A registered medical practitioner must not:
(a) without reasonable excuse, fail to comply with a
requirement under this section, or
(b) in purported compliance with a requirement under this
section, provide information knowing it to be false or
misleading in a material particular.
Maximum penalty: 20 penalty units.
[23] Part 10, Division 1A
Insert after section 140:
Division 1A Proceedings of the Board
140A Other matters to be taken into account
In the exercise of any of its functions under Division 3 or 5 of
Part 4 with respect to a complaint about a registered medical
practitioner, the Board is to have regard to any of the following
matters, to the extent the Board reasonably considers the matter
to be relevant to the complaint:
(a) any other complaint about the practitioner that has been
made or notified to the Board, including a complaint:
(i) in respect of which the Board or the Commission
has determined no further action should be taken,
and
(ii) that is not required to be referred, or that the Board
or the Commission decides not to refer, under
Division 3 of Part 4,
(b) any previous finding or determination of a professional
standards committee or a tribunal constituted under a
health registration Act in respect of the practitioner,
(c) any written report made by an assessor following an
assessment of the practitioner's professional performance
under Part 5A,
(d) any recommendation made, or written statement of
decision on a performance review provided, by a
Performance Review Panel following a review of the
practitioner's professional performance under that Part.
140B Exercise of functions with consent
(1) The Board may exercise any of its functions under this Act with
respect to a registered medical practitioner with the consent in
writing of the practitioner concerned.
Page 13
Medical Practice Amendment Bill 2008
Schedule 1 Amendment of Medical Practice Act 1992
(2) A function exercised by the Board with the consent of the
registered medical practitioner concerned may be exercised even
though any conditions otherwise required to be met or procedures
otherwise required to be followed before its exercise have not
been met or followed.
(3) If a registered medical practitioner withdraws his or her consent
under this section the Board must take such action as is necessary
to give effect to the withdrawal of consent.
[24] Section 164 Adjournments and interlocutory orders
Insert after section 164 (2):
(3) The Tribunal may, in respect of an appeal under section 95A,
make an order staying the decision of the Board appealed against
until the appeal has been disposed of.
[25] Section 168 Board to constitute Committee when required
Omit "3 persons" from section 168 (2). Insert instead "4 persons".
[26] Section 169 Membership of Committee
Omit section 169 (1) and (2). Insert instead:
(1) A Committee is to consist of:
(a) 2 registered medical practitioners having such
qualifications as may be prescribed, and
(b) one person who is legally qualified and not a registered
medical practitioner and who is to be appointed by the
Board as chairperson of the Committee, and
(c) one lay person (that is, a person who is not a registered
medical practitioner) appointed from among a panel of lay
persons for the time being nominated by the Minister.
[27] Section 171 How a Committee decides
Omit "2 members". Insert instead "3 members".
[28] Section 176 Procedure for inquiry
Omit section 176 (1) and (2). Insert instead:
(1) A Committee is to conduct proceedings on an inquiry as it thinks
fit. Proceedings of a Committee are to be open to the public
except when the Committee otherwise directs.
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Medical Practice Amendment Bill 2008
Amendment of Medical Practice Act 1992 Schedule 1
(2) A Committee is not to direct that proceedings are to be closed to
the public unless satisfied that it is desirable to do so in the public
interest for reasons connected with the subject-matter of the
inquiry or the nature of the evidence to be given.
[29] Section 180 Committee to provide details of its decision
Omit section 180 (4). Insert instead:
(4) The Board:
(a) must make publicly available a statement of a decision
provided to it under this section if the decision is in respect
of a complaint that has been proved or admitted in whole
or in part, and
(b) may disseminate any other statement of a decision as the
Board thinks fit,
unless the Committee that provided the statement has ordered
otherwise.
[30] Section 191B Notification of orders to practitioner's employer and others
Insert after section 191B (1):
(1A) Without limiting subsection (1), the Board may give notice of any
action taken under Division 5 of Part 4 to any person or body the
Board reasonably considers it appropriate to notify.
[31] Section 191B (2)
Omit "The notice". Insert instead "A notice under subsection (1)".
[32] Section 191B (3)
Omit "The notice". Insert instead "A notice under this section".
[33] Schedule 2 Proceedings before a Committee or the Tribunal
Insert "any of the following" after "on production" in clause 4.
[34] Schedule 2, clause 4
Insert after clause 4 (b):
(b1) a finding, decision or determination of a professional
standards committee constituted under a health
registration Act,
[35] Schedule 2, clause 4 (c)
Omit "or" where secondly occurring.
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Medical Practice Amendment Bill 2008
Schedule 1 Amendment of Medical Practice Act 1992
[36] Schedule 2, clause 4
Insert ", decision, determination" after "certificate" where secondly occurring.
[37] Schedule 2, clause 4 (2)
Insert at the end of clause 4:
(2) If the Committee or Tribunal is of the opinion that evidence so
admitted is capable of establishing that a registered medical
practitioner has engaged in conduct that is sufficiently similar to
the conduct alleged against the practitioner in the proceedings, it
may rely on the evidence in:
(a) making a finding that a registered medical practitioner is
guilty of unsatisfactory professional conduct or
professional misconduct, or
(b) exercising any of its powers under Division 4 of Part 4.
[38] Schedule 2, clause 5 (2A)
Insert after clause 5 (2):
(2A) In proceedings in which a Committee or the Tribunal is dealing
with more than one complaint about a registered medical
practitioner, the Committee or Tribunal may have regard to all
the evidence before it (whether the evidence arose in relation to a
complaint in respect of which the Committee or Tribunal is
making a finding or any other complaint or complaints in the
proceedings) when making any of the following findings:
(a) a finding on a question of fact in relation to the conduct of
a registered medical practitioner,
(b) a finding that a registered medical practitioner is guilty of
unsatisfactory professional conduct or professional
misconduct.
[39] Schedule 2, clause 10 (2)
Omit the subclause. Insert instead:
(2) Without affecting the generality of subclause (1):
(a) an inquiry or appeal related to action taken by the Board
under section 66 is to be listed for hearing by a Committee
or the Tribunal as soon as practicable, and
(b) a Committee or the Tribunal may postpone or adjourn
proceedings before it as it thinks fit.
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Medical Practice Amendment Bill 2008
Amendment of Medical Practice Act 1992 Schedule 1
[40] Schedule 5 Savings and transitional provisions
Insert at the end of clause 2 (1):
Medical Practice Amendment Act 2008 (but only to the extent
that it amends this Act)
[41] Schedule 5, Part 8
Insert after Part 7:
Part 8 Provisions consequent on enactment of
Medical Practice Amendment Act 2008
37 Definition
In this Part:
amending Act means the Medical Practice Amendment Act 2008.
38 Definition of "professional misconduct"
Section 37, as substituted by the amending Act, extends to
instances of unsatisfactory professional conduct occurring before
the section is substituted.
39 Changes to conditions or suspension of registration
An amendment made by the amending Act to section 66A
extends to action taken by the Board before the commencement
of the amendment.
40 Review of Board decisions
Section 66AB extends to decisions of the Board made before the
commencement of that section.
41 Provision of information to Commission
Sections 66B (1A) and 66BA (3) extend to information obtained
by the Board before the commencement of those subsections.
42 Extension of suspension
The amendment of section 67 by the amending Act applies to the
extension (after the commencement of the amendment) of the
period of a suspension even if the suspension was imposed before
the commencement of the amendment.
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Medical Practice Amendment Bill 2008
Schedule 1 Amendment of Medical Practice Act 1992
43 Appeal on point of law
Section 95A extends to action taken by the Board before the
commencement of that section.
44 Matters to be taken into account by Board
Section 140A extends to authorise the Board to have regard to
matters occurring before the commencement of that section.
45 Notification of orders to employers etc
An amendment of section 191B by the amending Act extends to
the giving of notice of action taken before the commencement of
the amendment.
46 Matters to be taken into account by Committee or Tribunal
An amendment made by the amending Act to Schedule 2 extends
to:
(a) any judgment, finding, decision, determination, verdict,
certificate or evidence made or given before the
commencement of the amendment, and
(b) proceedings pending before the Committee or the Tribunal
on the commencement of the amendment.
47 Matters to be taken into account on inquiry into review application
Section 94A (3) as inserted by the amending Act extends to any
complaint made or notified to the Board before the
commencement of that subsection.
48 Delegation by Board
Section 66 (6) as inserted by the amending Act does not extend
to a delegation made before the commencement of that
subsection.
49 Professional Standards Committees
(1) An amendment made to section 168, 169 or 171 by the amending
Act does not apply to a Professional Standards Committee
constituted before the commencement of the amendment.
(2) Section 180 (4) as substituted by the amending Act does not
apply to a statement of a decision provided to the Board before
the substitution of the subsection.
Page 18
Medical Practice Amendment Bill 2008
Amendment of Health Care Complaints Act 1993 Schedule 2
Schedule 2 Amendment of Health Care Complaints
Act 1993
(Section 4)
[1] Section 3 Object and principle of administration of Act
Omit section 3 (2). Insert instead:
(2) In the exercise of functions under this Act the protection of the
health and safety of the public must be the paramount
consideration.
[2] Section 4 Definitions
Insert in alphabetical order:
associated complaint means a complaint made or referred to the
Commission in respect of a health practitioner who is, or a health
organisation that is, the subject of another complaint being
assessed or investigated by the Commission or being prosecuted
by the Commission before a disciplinary body, and includes:
(a) a complaint made at any time prior to the completion of the
assessment, investigation or prosecution of that other
complaint, and
(b) a complaint that has been discontinued or terminated.
disciplinary body means a person or body (including a
professional standards committee) established under a health
registration Act that has the power to discipline a health
practitioner or to suspend or cancel (by whatever means) the
registration of a health practitioner.
[3] Section 12 Consultation between the Commission, a registration
authority and the Registrar
Insert after section 12 (2):
(3) Consultation under this section is to include consultation about
any associated complaint, to the extent the Commission and the
appropriate registration authority or the Registrar consider the
associated complaint to be relevant.
[4] Section 13 The outcomes of consultation
Insert after section 13 (2):
(2A) If either the Commission or the appropriate registration authority
is of the opinion that an associated complaint that has been
Page 19
Medical Practice Amendment Bill 2008
Schedule 2 Amendment of Health Care Complaints Act 1993
discontinued or terminated and to which regard was given during
consultation:
(a) should be reopened or investigated--the complaint must
be reopened and investigated in accordance with
Division 5, or
(b) should be referred to the appropriate registration authority
for consideration as to whether the registration authority
should take any action under the relevant health
registration Act--the complaint must be so referred,
as if it had not been discontinued or terminated.
[5] Section 22A
Insert after section 22:
22A Associated complaints to be taken into account
In assessing, and reviewing its assessment of, a complaint
relating to a health practitioner or a health organisation, the
Commission is to have regard to any of the following matters, to
the extent the Commission reasonably considers the matter to be
relevant to the complaint:
(a) any associated complaint,
(b) if the complaint relates to a health practitioner:
(i) any previous finding or determination of a
professional standards committee or a tribunal
constituted under a health registration Act in respect
of the practitioner, and
(ii) any recommendation made, or written statement of
decision on a performance review provided, by a
Performance Review Panel following a review of
the practitioner's professional performance under
Part 5A of the Medical Practice Act 1992 and that is
provided to the Commission by the New South
Wales Medical Board.
[6] Section 29 The purpose of investigation
Omit section 29 (2).
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Medical Practice Amendment Bill 2008
Amendment of Health Care Complaints Act 1993 Schedule 2
[7] Section 29A
Insert after section 29:
29A Conduct of investigations
(1) Without affecting the generality of section 92A, the investigation
of a complaint is to be conducted as expeditiously as the proper
investigation of the complaint permits. Expedition is particularly
appropriate if the complainant or the person on whose behalf the
complaint is made is seriously ill.
(2) Before investigating a complaint, the Commission is to consider
conducting a concurrent investigation into any associated
complaint (other than one that has been discontinued or
terminated and not reopened).
(3) In investigating a complaint, the Commission is to have regard to
any associated complaint that is not being investigated
concurrently, to the extent the Commission considers the
associated complaint to be relevant.
[8] Section 90C Criteria relevant to determinations of Director of
Proceedings
Insert after section 90C (1):
(1A) When determining whether a complaint should be prosecuted by
the Commission before a disciplinary body, the Director of
Proceedings is to consider making a determination with respect
to any associated complaint that has been referred to the Director
of Proceedings (other than an associated complaint that is a
complaint that has been discontinued or terminated and not
reopened) so that the complaints are prosecuted concurrently.
[9] Section 92A
Insert after section 92:
92A Expedition of certain matters
The Commission is to assess, investigate and, where appropriate,
prosecute as quickly as practicable matters referred to it
following action by:
(a) the Chiropractors Registration Board under section 54 of
the Chiropractors Act 2001, or
(b) the Dental Board under section 72 of the Dental Practice
Act 2001, or
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Medical Practice Amendment Bill 2008
Schedule 2 Amendment of Health Care Complaints Act 1993
(c) the Dental Technicians Registration Board under
section 19B of the Dental Technicians Registration Act
1975, or
(d) the New South Wales Medical Board under section 66 of
the Medical Practice Act 1992, or
(e) the Nurses and Midwives Board under section 48 of the
Nurses and Midwives Act 1991, or
(f) the Optometrists Registration Board under section 58 of
the Optometrists Act 2002, or
(g) the Osteopaths Registration Board under section 54 of the
Osteopaths Act 2001, or
(h) the Pharmacy Board under section 67 of the Pharmacy
Practice Act 2006, or
(i) the Physiotherapists Registration Board under section 55
of the Physiotherapists Act 2001, or
(j) the Podiatrists Registration Board under section 54 of the
Podiatrists Act 2003, or
(k) the Psychologists Registration Board under section 54 of
the Psychologists Act 2001.
[10] Schedule 4 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Medical Practice Amendment Act 2008 (but only to the extent
that it amends this Act)
[11] Schedule 4, Part 7
Insert as Part 7:
Part 7 Provisions consequent on enactment of
Medical Practice Amendment Act 2008
19 Definition
In this Part:
amending Act means the Medical Practice Amendment Act 2008.
20 Associated complaints
An amendment made by the amending Act in relation to
associated complaints extends to associated complaints made or
referred before the commencement of the amendment.
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Medical Practice Amendment Bill 2008
Amendment of Health Care Complaints Act 1993 Schedule 2
21 Concurrent investigation of associated complaints
Section 29A extends to the investigation of a complaint made or
referred to the Commission before the commencement of that
section.
[12] Schedule 5 Special provisions relating to Walker Special Commission of
Inquiry
Omit the definition of disciplinary body from clause 1.
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