New South Wales Consolidated Acts

MEDICAL PRACTICE ACT 1992 - SECT 36

36 Meaning of “unsatisfactory professional conduct”

(1) For the purposes of this Act, "unsatisfactory professional conduct" of a registered medical practitioner includes each of the following:

(a) Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

(b) Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.

(c) Any contravention by the practitioner (whether by act or omission) of a condition to which his or her registration is subject.

(d) Any conduct that results in the practitioner being convicted of or being made the subject of a criminal finding for any of the following offences:

(i) an offence under section 204 of the Mental Health Act 1990 ,

(ii) an offence under section 175 of the Children and Young Persons (Care and Protection) Act 1998 ,

(iii) an offence under section 35 of the Guardianship Act 1987 ,

(iv) an offence under section 128A, 128B, 129, 129AA or 129AAA of the Health Insurance Act 1973 of the Commonwealth,

(v) an offence under section 46 of the Private Hospitals and Day Procedure Centres Act 1988 ,

(vi) an offence under section 43 of the Nursing Homes Act 1988 .

(d1) A contravention by the practitioner of section 34A (4) (Power of Commission to obtain information, records and evidence) of the Health Care Complaints Act 1993 .

(e) Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for:

(i) referring another person to the health service provider, or

(ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter.

(f) Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product.

(g) Offering or giving any person a benefit as inducement, consideration or reward for the person:

(i) referring another person to the registered medical practitioner, or

(ii) recommending to another person that the person use any health service provided by the practitioner or consult the practitioner in relation to a health matter.

(h) Referring a person to, or recommending that a person use or consult:

(i) another health service provider, or

(ii) a health service, or

(iii) a health product,

when the practitioner has a pecuniary interest in giving that referral or recommendation (as provided by subsection (2)), unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.

(i) Engaging in overservicing, as provided by subsection (3).

(j) Permitting an assistant employed by the practitioner (in connection with the practitioner’s professional practice) who is not a registered medical practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill.

(k) By the practitioner’s presence, countenance, advice, assistance or co-operation, knowingly enable a person who is not a registered medical practitioner (whether or not that person is described as an assistant) to:

(i) perform any act of operative surgery (as distinct from manipulative surgery) on a patient in respect of any matter requiring professional discretion or skill, or

(ii) issue or procure the issue of any certificate, notification, report or other like document, or to engage in professional practice, as if the person were a registered medical practitioner.

(l) Refusing or failing, without reasonable cause, to attend (within a reasonable time after being requested to do so) on a person for the purpose of rendering professional services in the capacity of a registered medical practitioner in any case where the practitioner has reasonable cause to believe that the person is in need of urgent attention by a registered medical practitioner, unless the practitioner has taken all reasonable steps to ensure that another registered medical practitioner attends instead within a reasonable time.

(m) Any other improper or unethical conduct relating to the practice or purported practice of medicine.

Note: Sections 37A and 38 provide for some exceptions to the above provisions.

(2) A registered medical practitioner has a "pecuniary interest" in giving a referral or recommendation:

(a) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a public company and the practitioner holds 5% or more of the issued share capital of the company, or

(b) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a private company and the practitioner has any interest in the company, or

(c) if the health service provider, or the supplier of the health product, to whom the referral or recommendation relates is a natural person who is a partner of the practitioner, or

(d) in any circumstances prescribed by the regulations.

(3) A registered medical practitioner engages in "overservicing" if the practitioner, in the course of professional practice:

(a) provides a service in circumstances in which provision of the service is unnecessary, not reasonably required or excessive, or

(b) engages in conduct prescribed by the regulations as constituting overservicing.

(4) For avoidance of doubt, a reference in this section to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class.

(5) In this section:
"benefit" means money, property or anything else of value.
"recommend" a health product includes supply or prescribe the health product.
"supply" includes sell.