HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) - SCHEDULE 5B
HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) - SCHEDULE 5B
SCHEDULE 5B – Provisions relating to performance assessments [NSW[#93]
Note : This Schedule is an additional New South Wales provision.
Part 1 - Provisions relating to assessors [NSW[#93]
1 General [NSW[#93]
(1) An assessor may exercise the powers conferred by this Part only for the purpose of conducting a performance assessment when required by a Council or a Performance Review Panel.
(2) The performance assessment must be conducted in accordance with any directions given by the Council or the Performance Review Panel.
(3) If the Council or the Panel instructs the assessor to limit the performance assessment to a particular aspect or aspects of the registered health practitioner's professional performance, the assessment must be limited to that aspect or those aspects.
(4) However, the assessor may assess other aspects of the professional performance of the registered health practitioner if during the course of the performance assessment the assessor forms the opinion that other aspects of the professional performance of the practitioner may be unsatisfactory and should be assessed.
2 Entry to premises [NSW[#93]
(1) An assessor may at any reasonable time enter and inspect--(a) any premises that the assessor reasonably believes are used by a registered health practitioner in connection with his or her professional practice; and(b) any premises in or on which the assessor reasonably believes records relating to the carrying out of a professional practice by a registered health practitioner are kept.
(2) An assessor may enter premises only--(a) with the consent of the occupier and the health practitioner to whom the performance assessment relates; or(b) after having given the occupier of the premises, and the health practitioner to whom the performance assessment relates, at least 14 days notice of the assessor's intention to enter the premises.
(2A) The notice referred to in subclause (2) (b) may be given by the assessor or by another person on behalf of the assessor.
(3) On premises entered on the basis that they are used by a registered health practitioner in connection with his or her professional practice, an assessor has the following powers--(a) power to examine any equipment that the assessor reasonably believes is, has or may be used in connection with the professional practice;(b) power to take photographs of the premises, or of any equipment on the premises (being equipment that the assessor reasonably believes is, has or may be used in connection with the professional practice);(c) power to require the production of and inspect any stocks of any substance or drugs in or about those premises;(d) power to require any person on those premises to produce any records in the possession or under the control of that person relating to the carrying out of that professional practice;(e) power to take copies of, or extracts or notes from, the records;(f) power to ask questions of any person on those premises;(g) power to require the owner or occupier of those premises to provide the assessor with the assistance and facilities reasonably necessary to enable the assessor to exercise the functions of an assessor under this clause.
(4) On premises entered on the basis that records relating to the carrying out of professional practice by a registered health practitioner are kept there, an assessor has the following powers--(a) power to require any person on those premises to produce any records in the possession or under the control of that person and relating to the carrying out of that professional practice;(b) power to take copies of, or extracts or notes from, the records.
(5) This clause does not authorise an assessor to enter any part of premises that is being used for residential purposes except with the consent of the occupier.
(6) This clause does not authorise an assessor to require a person to answer any question, and a failure or refusal by a person to answer any question does not constitute an offence against clause 5.
(7) However, a failure or refusal by a registered health practitioner, without reasonable excuse, to answer any question asked by an assessor is evidence that the professional performance of the registered health practitioner is unsatisfactory.
3 Power to conduct assessment exercise [NSW[#93]
(1) A Council may, by notice given to a registered health practitioner who is the subject of a performance assessment, require the practitioner to take part in an assessment exercise.
(2) An assessment exercise is an exercise during which the assessor observes and assesses the professional performance of the registered health practitioner.
(3) If practicable an assessment exercise must be based on an actual clinical situation (that is, an actual consultation or examination or the giving or performance of any other treatment, by a registered health practitioner).
(4) However, an assessment exercise may be based on a simulated clinical situation (for example, a mock consultation) if an actual clinical situation is not practicable in the circumstances.
(5) The time and place for, and the length of, the assessment exercise must be reasonable.
(6) A failure or refusal by a registered health practitioner to take part in, or to continue with, an assessment exercise does not constitute an offence against clause 5.
(7) However, a failure or refusal by a registered health practitioner, without reasonable excuse, to take part in or to continue with an assessment exercise is evidence that the professional conduct of the registered health practitioner is unsatisfactory.
(8) This clause does not authorise an assessor to be present during any examination of a person, or at the giving or performance of any other health service or treatment by a registered health practitioner in respect of a person, without the consent of the person.
4 Answers to questions [NSW[#93]
(1) Any information furnished by a person in answering a question asked by an assessor for the purposes of a performance assessment is not admissible against the person in civil proceedings before a court except with the consent of the person.
(2) Subclause (1) does not extend to any information furnished by a person that is a record required to be kept by or under this Law or any other Act.
5 Offences [NSW[#93]
A person must not--
(a) prevent an assessor from exercising a function conferred or imposed on the assessor under this Schedule; or
(b) hinder or obstruct an assessor in the exercise of a function conferred or imposed on the assessor under this Schedule; or
(c) furnish an assessor with information knowing it to be false or misleading in a material particular.
: Maximum penalty--(a) for an offence under paragraph (a) or (b)--50 penalty units; or(b) for an offence under paragraph (c)--20 penalty units.
6 Offence of impersonating assessor [NSW[#93]
A person must not impersonate or falsely represent that the person is an assessor.
: Maximum penalty--50 penalty units.
7 Certificates of authority [NSW[#93]
(1) An assessor must be provided with a certificate of authority in a form approved by the Council that appointed the assessor.
(2) An assessor must, on exercising in any place any function of the assessor under this Schedule, produce the assessor's certificate of authority to any person apparently in charge of the place who requests its production.
Part 2 - Provisions relating to performance reviews [NSW[#93]
8 Conduct of performance review [NSW[#93]
(1) A performance review must be conducted in the way decided by the Performance Review Panel.
(2) The performance review must be conducted--(a) with as little formality and technicality, and as much expedition, as the requirements of this Law and the proper consideration of the matter permit; and(b) in the absence of the public.
(3) In conducting a performance review a Performance Review Panel is not bound by the rules of evidence but may inform itself on any matter in any way it thinks appropriate.
9 Power to summon witnesses and take evidence [NSW[#93]
(1) The Chairperson of a Performance Review Panel may summon a person to appear at a performance review and to produce the documents (if any) referred to in the summons.
(2) The Chairperson of the Panel may require a person appearing at the performance review to produce a document.
(3) A person served with a summons to appear at a performance review to give evidence must not, without reasonable excuse--(a) fail to attend as required by the summons; or(b) fail to attend from day to day unless excused, or released from further attendance, by a member of the Panel.: Maximum penalty--20 penalty units.
(4) A person appearing at a performance review to give evidence must not, without reasonable excuse--(a) fail to answer a question that the person is required to answer by the Chairperson of the Panel; or(b) fail to produce a document that the person is required to produce by this clause.: Maximum penalty--20 penalty units.
10 Power to obtain documents [NSW[#93]
(1) A member of a Performance Review Panel may, by notice in writing served on a person, require the person--(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being a member of the Performance Review Panel or a person authorised by the Panel in that behalf; and(b) to produce, at that time and place, to the person so specified a document specified in the notice.
(2) A person who fails, without reasonable excuse, to comply with a notice served on the person under this clause is guilty of an offence.: Maximum penalty--20 penalty units.
11 Practitioner entitled to make representations [NSW[#93]
(1) A registered health practitioner who is the subject of a performance review is entitled to attend at the performance review and make oral or written representations to the Performance Review Panel with respect to the subject matter of the performance review.
(2) The registered health practitioner is entitled to be accompanied by an Australian legal practitioner or other adviser, but is not entitled to be represented by the Australian legal practitioner or other adviser.
(3) This clause does not prevent a Performance Review Panel from conducting a performance review in the absence of the registered health practitioner, as long as the practitioner has been informed of the performance review.
12 Panel may obtain reports [NSW[#93]
A Performance Review Panel may, for the purpose of conducting a performance review, obtain a report from a person who, in the Panel's opinion, is sufficiently qualified or experienced to give expert advice on the matter that is the subject of the performance review.
13 Assessors may assist Panel [NSW[#93]
(1) The Council that established a Performance Review Panel may appoint one or more assessors to assist the Panel with the performance review.
(2) The Panel may direct an assessor--(a) to conduct an assessment of the professional performance of a registered health practitioner, and report on that assessment to the Panel; and(b) to provide the other assistance in connection with the performance review the Panel directs.
14 Release of information [NSW[#93]
(1) The Chairperson of a Performance Review Panel may, if the Chairperson thinks it appropriate in the particular circumstances of the case (and whether or not on the request of the practitioner concerned or any other person)--(a) direct that the name of any witness is not to be disclosed in the performance review; or(b) direct that all or any of the following matters are not to be published--(i) the name and address of any witness;(ii) the name and address of a registered health practitioner;(iii) any specified evidence;(iv) the subject-matter of the performance review.
(2) A direction may be amended or revoked at any time by the Chairperson of the Panel.
(3) A direction may be given before or during a performance review, but must not be given before the performance review unless notice is given of the time and place appointed by the Chairperson of the Panel for consideration of the matter to the following persons--(a) a person who requested the direction;(b) the practitioner concerned;(c) another person the person presiding thinks fit.
(4) A person who contravenes a direction given under this clause is guilty of an offence.: Maximum penalty--(a) in the case of a corporation, 150 penalty units; or(b) in any other case, 20 penalty units.