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1
Health and Other Legislation Amendment Bill 2003
HEALTH AND OTHER LEGISLATION
AMENDMENT BILL 2003
EXPLANATORY NOTES
GENERAL OUTLINE
Policy Objectives of the Bill
The main policy objectives of the Bill are to:
· amend the Health Act 1937 to ensure that the disclosure of
information to registration bodies about conduct by health
practitioners or veterinary surgeons, involving suspected
offences against the Act or inappropriate use of drugs of
dependency, does not infringe Queensland Health's privacy
policy.
· amend the Health Practitioners (Professional Standards) Act
1999 to provide more flexible arrangements for the constitution
of the Health Practitioners Tribunal when conducting directions
conferences and hearings, and to enhance the ability of
Professional Conduct Review Panels to make decisions or issue
delegations in an expeditious and cost effective way.
· amend the Health Rights Commission Act 1991 to clarify that
health service complaints may be made on behalf of deceased
users of health services and that complaints can continue to be
dealt with after the complainant has died.
· amend the Health Services Act 1991 and the Freedom of
Information Act 1992 to encourage greater participation in the
activities of quality assurance committees and ensure that such
committees can effectively perform their functions.
· amend the Health Services Act 1991 to enable information about
a person who is receiving, or has received a public sector health
service to be given when it is in the public interest and authorised
by the chief executive.
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Health and Other Legislation Amendment Bill 2003
· amend the Hospitals Foundations Act 1982 to provide a more
streamlined and flexible process for appointing members of
bodies corporate established under the Act, and to reduce the
frequency of appointments.
· amend the Medical Practitioners Registration Act 2001 to allow
retired medical practitioners who obtain non-practising
registration to continue to use the title "doctor" and refer to their
medical qualifications, and to provide protection from liability
for certain bodies or persons who provide information to the
Medical Board of Queensland for the purposes of the Act.
· amend the Pest Management Act 2001 to clarify the scope of
certain provisions in the Act to ensure its effective operation.
· amend the Private Health Facilities Act 1999 and the Radiation
Safety Act 1999 to simplify the process for the notification of
standards made under those Acts and to ensure the validity of
notices about standards made under the Private Health Facilities
Act 1999.
· make miscellaneous amendments to various Health portfolio
Acts to correct minor errors, renumber provisions, update cross-
references to other legislation and reflect current drafting
practice.
Means of Achieving Objectives
Amendment of Health Act 1937
As part of its monitoring, investigation and enforcement responsibilities
in relation to the Health (Drugs & Poisons) Regulation 1996, Queensland
Health may need to investigate whether a health practitioner, nurse or
veterinary surgeon has engaged in conduct involving misappropriation,
self-administration or unauthorised prescribing of a controlled or restricted
drug. The investigation could result in proceedings being brought against
the person for an offence against the Regulation, or action taken to
suspend, cancel, or impose or vary conditions on, an approval or authority
held by the person under the Regulation.
Queensland Health provides information about investigations of this
nature to the person's registration body to assist the registration body to
identify and manage registrants who have an impairment resulting from the
use of drugs of dependency, and to take other appropriate action necessary
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Health and Other Legislation Amendment Bill 2003
to protect the public. The provision of such information is consistent with
the objective of public protection in Acts providing for registration of
health practitioners, nurses and veterinary surgeons.
However, it is possible that the giving of this information, to the extent
that it identifies an individual, may contravene Queensland Health's
privacy policy (contained in Information Standard No. 42A), unless the
disclosure is authorised by law.
The Bill therefore inserts a provision in the Health Act 1937 authorising
the chief executive to give information of this nature to the relevant
registration body.
Amendment of Health Practitioners (Professional Standards) Act 1999
Under the Health Practitioners (Professional Standards) Act 1999, when
a disciplinary matter concerning a health practitioner is referred to the
Health Practitioners Tribunal, the chairperson of the Tribunal must choose
a Tribunal member to be the constituting member for the purpose of
conducting directions conferences and the hearing of the matter.
The Act allows the Tribunal chairperson to, after a hearing has started,
choose another Tribunal member to replace a constituting member who is,
for any reason, unable to continue with the hearing. To provide greater
flexibility in the arrangements for holding directions conferences and
hearings, the Bill allows any Tribunal member to hold a directions
conference or issue practice directions and provides that the Tribunal
chairperson may choose a Tribunal member to replace the constituting
member at any time before the hearing has started.
The Bill also amends the Act to allow Professional Conduct Review
Panels, when delegating the power to hold a directions conference, or
reaching a decision on a question before the Panel, to meet by any form of
communication.
Amendment of Health Rights Commission Act 1991
Section 61 of the Health Rights Commission Act 1991 allows a health
service complaint to be made by a person acting on behalf of the user if the
Health Rights Commissioner is satisfied that it would be difficult or
impossible for the user to choose anybody to make the complaint in the
user's place, and the person has a sufficient interest.
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Health and Other Legislation Amendment Bill 2003
Doubts have been raised whether this provision allows a representative
complaint to be made on behalf of a deceased user, or whether a complaint
can continue to be dealt with by the Commissioner after the complainant
dies. The Bill clarifies that a complaint may be made by a person on behalf
of a deceased user and that a substituted complainant may pursue the
complaint if the original complainant dies. In each case, the Commissioner
must be satisfied the person has a sufficient interest. The Bill also validates
past complaints made on behalf of deceased users or which were dealt with
after the original complainant died.
The Bill also makes minor consequential amendments to the Act and
corrects an error made when the wrong provision was amended by the
Guardianship and Administration Act 2000.
Amendment of Freedom of Information Act 1992
The Health Services Act 1991 enables quality assurance committees to
be declared by the Minister to be approved quality assurance committees.
The primary function of approved quality assurance committees is to
evaluate and assess the quality of health services with a view to
recommending how the quality of health care can be improved and the
incidence of adverse events reduced. For committees to effectively
perform this function, they need to have access to comprehensive
information from hospitals, health care providers and other sources and
must be able to have full and frank discussions about the issues under
consideration. In addition, information in a committee's working
documents which, for example, is incomplete or yet to be evaluated by a
committee, could be misinterpreted by the public if subject to disclosure.
Concerns about the possibility of the public disclosure of information
relating to their activities restrict the ability of quality assurance
committees to effectively perform their function and has acted as a major
deterrent to the establishment of such committees.
Documents in the possession or control of public sector quality
assurance committees are accessible under the Freedom of Information Act
1992 unless the documents contain exempt matter. There is no certainty
that such documents would be exempt from disclosure because the issue of
whether an exemption applies must be determined on a case by case basis.
In recognition of the strong public interest considerations in improving
the quality of health care through the activities of approved quality
assurance committees, the Bill amends the Act to exclude committees,
declared to be approved quality assurance committees, from its application.
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Health and Other Legislation Amendment Bill 2003
It should be noted that the amendment does not affect a quality assurance
committee's obligation under the Health Services Regulation 2002 to make
specified information available to the public.
Amendment of Health Services Act 1991
Quality assurance committees
As noted above, the Health Services Act 1991 enables quality assurance
committees to be declared by the Minister to be approved quality assurance
committees. Although the Act provides quality assurance committees with
certain protection from the disclosure of information created by, or given
to, committees, this protection is deficient in a number of respects.
In particular, the provisions prohibiting disclosure of such information
only apply to members and former members of a committee and not to
other persons authorised by a committee to receive information to enable
the committee to perform its functions (eg. support staff). The Act also
prohibits this information being disclosed in proceedings before a court,
tribunal, board or person. However, this protection does not prevent
disclosure being compelled in other situations eg. pursuant to a warrant or
an application for non-party disclosure in court proceedings. The Bill
addresses these deficiencies by extending the prohibition from disclosure to
also include persons authorised by a committee to receive information to
enable the committee to perform its functions and by providing that the
disclosure of information cannot be compelled by any statutory
requirement or legal process.
The Bill also inserts a head of power for a regulation to be made
requiring approved quality assurance committees to give specified
information to the chief health officer.
Confidentiality
Section 63(1) of the Health Services Act 1991 imposes a strict duty of
confidentiality on employees, officers and agents of Queensland Health.
The duty prohibits the giving of any information to another person if the
information would enable a person who is receiving, or has received, a
public sector health service to be identified.
Section 63(2) sets out a range of exceptions to the duty of confidentiality.
However, there is no capacity for information to be given in response to
unusual circumstances where the giving of the information is in the public
interest. The Bill therefore incorporates a new exception into section 63(2)
to enable information to be given where the chief executive has certified
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Health and Other Legislation Amendment Bill 2003
that the giving of information is justified in the public interest. As a
consequence of this proposal, it is also necessary to amend the exceptions
to the duty of confidentiality imposed on officials (ie auditors and
investigators) under section 57. In order to give effect to proposed public
interest exception under section 63, it may be necessary for officials (or
former officials) to give information to the chief executive or to another
officer, employee or agent of the department authorised, in writing, by the
chief executive to receive the information. For example, an official may
possess information that could supplement written records about a past
event that the official was required to investigate.
The chief executive will be required to report any public interest
disclosures made under section 63 in Queensland Health's annual report.
While this report will not include any patient-identifying information, it
will however document that a disclosure had occurred and explain why the
disclosure was considered to be in the public interest.
Amendment of Hospitals Foundations Act 1982
The Hospitals Foundations Act 1982 currently requires that the Minister
must, before nominating a person for appointment as a member of a body
corporate established under the Act, consult with specified entities which
must furnish a panel of names to the Minister. These processes have
proved to be administratively burdensome and have contributed to delays
occurring in the appointment and reappointment of members.
The Act also provides for members of a body corporate to be appointed
on a rotating basis, with one-third of initial appointments for 3, 4 and 5
year terms with subsequent appointments for 3 year terms. This effectively
means that appointments must be made every year, for one-third of the
members of the 12 bodies corporate established under the Act.
The Bill provides for a more streamlined and flexible process for the
appointment of members of bodies corporate, whilst ensuring that an
appropriate level of accountability is maintained. The amendments provide
that the Minister may nominate a person as a body corporate member if the
Minister is of the opinion that the person has an interest in, and is able to
assist in achieving, the body corporate's object. Before making the
nomination, the Minister must consult with entities the Minister considers
have an interest in the purposes or objects of the body corporate.
In addition, to reduce the frequency with which appointments must be
made, the Bill provides that all appointments may be for a term of up to 5
years.
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Health and Other Legislation Amendment Bill 2003
Amendment of Medical Practitioners Registration Act 2001
Under the Medical Practitioners Registration Act 2001, a person who is
not registered under the Act must not use a restricted title (eg. "medical
practitioner") or another title (eg "doctor"), name or description that
indicates, or could be reasonably understood to indicate, the person is a
medical practitioner or is authorised or qualified to practise the profession.
The Act also provides that a regulation may prescribe recency of practice
requirements and that renewal of registration is subject to the Medical
Board of Queensland ("the board") being satisfied that registrants have met
any relevant recency of practice requirements. Recency of practice
requirements have yet to be prescribed.
As a consequence, once recency of practice requirements are prescribed,
retired doctors who do not meet applicable recency of practice
requirements would not be entitled to have their registration renewed and
therefore would no longer be allowed to use the title "doctor" or other titles
restricted under the Act.
The Bill overcomes this difficulty by inserting a new Division 10A in
Part 3 of the Act to establish a category of non-practising registration. The
new Division provides for matters including:
· the eligibility criteria for non-practising registration;
· the procedural requirements about applications for non-
practising registration and the granting of applications;
· the standard condition on registration (ie. that the registrant must
not practise); and
· the grounds and processes for cancelling non-practising
registration.
A person will be eligible for non-practising registration if the person is,
or has been, registered as a medical practitioner and is a suitable person to
be a non-practising registrant. In deciding whether an applicant is a
suitable person, the board may have regard to the whether the applicant has
been convicted of any relevant offences, whether the applicant's
registration has been adversely effected, or any other issue relevant to the
applicant's suitability to be a non-practising registrant. Factors relating to a
person's fitness to competently and safely practise, which can be taken into
account for the other categories of registration under the Act, are not
relevant to suitability for non-practising registration. Non-practising
registration will not require renewal or be subject to recency of practice
requirements.
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Health and Other Legislation Amendment Bill 2003
The Bill also amends the provisions of the Act which restrict the use of
titles so that non-practising registrants will be permitted to use the title
"doctor" and refer to medical qualifications they hold. Consequential
amendments are also made to a number of other provisions of the Act to
specify that they do not apply to non-practising registrants.
Other significant amendments in the Bill are those which provide
protection from civil or criminal liability to bodies or persons who honestly
and on reasonable grounds:
· give advice or make recommendations to the board about the
standards of postgraduate medical education; or
· give information to the board about the practice of registrants
who are registered on the condition that they practise under
supervision.
Amendment of Pest Management Act 2001
The Bill amends the Pest Management Act 2001 to amend and relocate
the definition of "fumigant" to include a reference to substances capable of
producing a vapour and to clarify that household fumigants (eg. mothballs)
are not fumigants for the purposes of the Act. Other amendments correct
minor errors and ensure that certain notices to be given to the chief
executive must be given in writing.
Amendment of Private Health Facilities Act 1999 and Radiation Safety
Act 1999
The Private Health Facilities Act 1999 and the Radiation Safety Act
1999 allow for standards to be made by the chief health officer and the
chief executive respectively and provide that a standard has no effect unless
the Minister notifies its making by gazette notice. Both Acts specify that
the gazette notice is subordinate legislation.
The Bill removes the requirement that the notification of the making of
the standards under the Acts must be published in the gazette as this
requirement is superfluous as the notices are subordinate legislation and
therefore published as such. The Bill also inserts a provision to remove any
doubts about the validity of notices about standards made under the Private
Health Facilities Act 1999.
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Health and Other Legislation Amendment Bill 2003
Estimated Cost for Government Implementation
The Bill will not have any significant financial impact.
Consistency with Fundamental Legislative Principles
Aspects of the Bill which raise possible fundamental legislative
principles issues are outlined below.
Amendment of Medical Practitioners Registration Act 2001
Power to obtain criminal history reports
When deciding if an applicant for non-practising registration is a
suitable person to be registered, the board may have regard to the
applicant's criminal history including whether the applicant has been
convicted of an indictable offence, an offence against health practitioner
legislation, or an offence relating to the practice of the profession.
Clause 45 of the Bill (section 150D) specifies that the board may require
the police commissioner to provide a written report about the applicant's
criminal history. The exercise of this power may be regarded as adversely
affecting an individual's privacy.
The provision of this information will assist the board to decide whether
an applicant is a suitable person to be a non-practising registrant. As non-
practising registrants will be able to use the title "doctor" and refer to their
qualifications, it is important that the board has access to this information
to satisfy itself as to the integrity of non-practising registrants.
It is important to note that the Bill does not affect the operation of the
Criminal Law (Rehabilitation of Offenders) Act 1986. Unlike applications
for other categories of registration under the Act, the full criminal history
of the applicant will not be able to be obtained. The argument for
overriding the Criminal Law (Rehabilitation of Offenders) Act 1986, on the
grounds of protecting the public, does not apply in relation to the
registration of non-practising registrants.
Immunity from liability
Clause 47 affords protection from liability to bodies that give advice, or
make recommendations to the board, about the standards of postgraduate
medical education, for the purposes of the board's function of accrediting
intern training programs. The Post-Graduate Medical Education
Foundation of Queensland (the Foundation) is the only body that currently
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Health and Other Legislation Amendment Bill 2003
performs this role. In addition, clause 51 extends the protection from
liability conferred under section 272 of the Act to persons who give
information to the board about the practice of registrants who are registered
on the condition that they practise under supervision.
Under both of these provisions, the body or person is not liable civilly,
criminally or under an administrative process for giving information to the
board if it is given honestly and on reasonable grounds.
These provision are defensible on the grounds that bodies such as the
Foundation and persons reporting on the supervised practice of registrants
play key roles in protecting the public by ensuring that high standards of
intern training are maintained and that the board has a mechanism to
determine if a registrant is practising safely under supervision.
It is essential that concerns about the potential legal liability (eg. for
defamation) do not constrain the Foundation from providing the board with
full and frank assessments of intern training programs. In making such
assessments, the Foundation may need to comment on the skills and
abilities of persons who are involved with the management and
administration of the program. Similarly, if persons involved in the
supervised practice of registrants were liable to be sued for defamation
there is a risk that they would be less likely to provide candid and
comprehensive reports about those registrants. The board relies on these
reports to ensure that the registrant is practising safely and to assist it to
decide if the supervised practice condition should be lifted at the
conclusion of the supervised practice period.
Consultation
Amendment of Health Act 1937
All health practitioner registration boards, the Veterinary Surgeons
Board of Queensland, the Queensland Branch of the Australian Medical
Association (AMAQ), the Queensland Nursing Council and the
Queensland Nurses Union were consulted about the proposed amendments.
Amendment of Health Practitioners (Professional Standards) Act 1999
The Chief Judge of the District Court and the Secretary of Professional
Conduct Review Panels were consulted about the proposed amendments.
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Health and Other Legislation Amendment Bill 2003
Amendment of Health Rights Commission Act 1991
The Health Rights Commissioner was consulted about the proposed
amendments.
Amendment of Freedom of Information Act 1992
The Department of Justice and Attorney-General was consulted about
the proposed amendment.
Amendment of Hospitals Foundations Act 1982
All hospital foundations established under the Act were consulted about
the proposed amendments.
Amendment of Medical Practitioners Registration Act 2001
The Medical Board of Queensland and the AMAQ were consulted about
the proposed amendments.
NOTES ON PROVISIONS
PART 1 - PRELIMINARY
Clause 1 sets out the short title of the Act.
Clause 2 provides for the retrospective commencement of certain
provisions of the Act. This is necessary to ensure that an error in the
Pharmacists Registration Act 2001 is corrected with effect from the
commencement date of that Act.
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Health and Other Legislation Amendment Bill 2003
PART 2 - AMENDMENT OF FREEDOM OF
INFORMATION ACT 1992
Clause 3 specifies that this part of the Bill amends the Freedom of
Information Act 1992.
Clause 4 amends section 11(1) to exclude, from the application of the
Act, committees declared to be approved quality assurance committees
under the Health Services Act 1991. The rationale for this provision is
explained in the General Outline section of these Notes.
PART 3 - AMENDMENT OF HEALTH ACT 1937
Clause 5 specifies that this part of the Bill amends the Health Act 1937.
Clause 6 amends section 5(1) to refer to the new definition of "nurse"
inserted by clause 7.
Clause 7 inserts a definition of "nurse" for Division 1 of Part 2.
Clause 8 inserts a new section 18B which authorises the chief executive
to give information to relevant registration bodies if the chief executive
reasonably believes a registrant, nurse or veterinary surgeon has committed
an offence against the Act, or a ground exists for the chief executive to take
action against such persons under the Health (Drugs and Poisons)
Regulation 1996. The purpose of this provision is discussed in the General
Outline section of these Notes.
Clauses 9 and 10 amends sections 153Y and 153ZD to ensure that those
sections do not apply to seized things.
PART 4 - AMENDMENT OF HEALTH PRACTITIONERS
(PROFESSIONAL STANDARDS) ACT 1999
Clause 11 specifies that this part of the Bill amends the Health
Practitioners (Professional Standards) Act 1999.
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Health and Other Legislation Amendment Bill 2003
Clause 12 amends section 176 to allow a professional conduct review
panel to delegate the holding of a pre-hearing conference to the secretary of
professional conduct review panels by any form of communication. For
example, the delegation could be given by telephone or by email.
Clause 13 amends section 188 to allow a professional conduct review
panel to vote on questions before the panel by any form of communication.
Clause 14 amends section 217 to ensure that the powers under that
section in relation to the holding of directions conferences may be
exercised by any member of the Health Practitioners Tribunal.
Clause 15 inserts a new section 227A to ensure that the constituting
member of the Tribunal may be substituted by another Tribunal member,
before the Tribunal starts to hear disciplinary proceedings, if the
constituting member ceases to be qualified to be a Tribunal member or, for
any other reason, is unable to take part in the proceedings.
Clause 16 amends section 259(3) to ensure that any Tribunal member
may issue directions about a matter before the Tribunal.
PART 5 - AMENDMENT OF HEALTH RIGHTS
COMMISSION ACT 1991
Clause 17 specifies that this part of the Bill amends the Health Rights
Commission Act 1991.
Clause 18 amends section 3 by inserting a new definition of
"complainant" which extends the meaning of that term to include persons
substituted under section 61(5 ) which is inserted by clause 21.
Clause 19 amends section 59(1)(b) to include a reference to the specific
provisions in section 61 about representative complainants.
Clause 20 inserts a new section 60(3) to correct an error made when a
consequential amendment to the Act made by the Guardianship and
Administration Act 2000 substituted section 60(3) instead of section 61(3).
The original section 60(3) is reinstated in a form that accords with current
drafting practice.
Clause 21 inserts new subsections (3) to (5) in section 61. The insertion
of subsection (3) complements the amendment in clause 20 to correct the
error referred to in that clause. Subsections (4) and (5) clarify that a health
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Health and Other Legislation Amendment Bill 2003
service complaint may be made on behalf of a deceased user and that a
person may be substituted as complainant if the original complainant dies.
In both cases, the Health Rights Commissioner must be satisfied the person
has a sufficient interest.
Clauses 22 and 23 amend sections 64 and 65 to insert the defined term
"complainant".
Clause 24 amends section 66 to correct a grammatical error.
Clause 25 amends section 67(2)(d) to ensure that the provision also
applies to representative complainants.
Clause 26 amends section 79(5)(b) to clarify that the provision does not
apply to a person substituted as complainant under section 67(5).
Clause 27 inserts a new heading for Part 10.
Clause 28 inserts a new section 151 to validate complaints that have
been made on behalf of a deceased user or where a complaint has been
pursued by a person substituted as complainant after the original
complainant dies. While clause 21, by inserting section 61(4) and (5),
clarifies that such complaints may be made or dealt with, the validating
provision is necessary to remove any doubt about the validity of past
complaints made or dealt with in these circumstances.
PART 6 - AMENDMENT OF HEALTH SERVICES ACT
1991
Clause 29 specifies that this part of the Bill amends the Health Services
Act 1991.
Clause 30 amends section 2 by including a reference to the definitions in
section 30.
Clause 31 amends section 30 by inserting a definition of "relevant
person". This term is used in the amendments made by clause 32 and
means a person authorised by a quality assurance committee to receive
information to enable the committee to perform its functions.
Clause 32 inserts new sections 33 and 34. Section 33(1) duplicates the
existing section 33 with the exception that subparagraph (b) clarifies that
the requirements about the publication of information obtained by quality
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Health and Other Legislation Amendment Bill 2003
assurance committees would be specified in a regulation made, or direction
given, under section 37 and not by way of standards established by the
Minister.
Section 33(2) prohibits relevant persons from disclosing information
they receive in that capacity except for the purpose of enabling the
committee to perform its functions.
The new section 34 extends its application to relevant persons and also
widens its scope by prohibiting persons to whom the section applies from
being compelled to produce documents or divulge information in
compliance with a requirement under an Act, or legal process.
Clause 33 amends section 36 by extending the protection from liability
and right to indemnity conferred by the section to include persons acting at
the request of the committee. This clause also amends section 36(2) to
clarify that the protection from liability and right to indemnity applies to all
or each of the committee members.
Clause 34 amends section 37 by omitting the regulation-making power
in subsection (1)(d) and inserting a head of power for a regulation to be
made requiring approved quality assurance committees to give specified
information to the chief health officer.
Clause 35 inserts a new subsection (4) in section 57, which imposes a
duty of confidentiality on officials and former officials (eg. auditors and
investigators). Subsection (4) sets out a new exception to the duty of
confidentiality as a consequence of the new section 63(2)(gb). Under this
provision, an official (or former official) will be able to give information to
the chief executive, or an officer, employee or agent of the department
authorised by the chief executive to receive the information, if the chief
executive considers the giving (and receipt) of the information is in the
public interest under section 63(2)(gb).
Clause 36 inserts new provisions 63(2)(ga), 63(2)(gb) 63(4A), 63(4B)
and 63(4C) in section 63, which prohibits the giving of any information, if
the information would enable a person who is receiving, or has received, a
public sector health service to be identified.
The new paragraph 63(2)(gb) specifies that the duty of confidentiality
imposed on an officer, employee or agent under section 63(1) does not
apply, if the chief executive considers the giving of the information is in the
public interest. Under this exception, information that would normally be
treated as being confidential may be given to another person by the chief
executive or an officer, employee or agent of the department authorised, in
writing, by the chief executive.
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Health and Other Legislation Amendment Bill 2003
Paragraph 63(2)(ga) provides for an officer, employee or agent of the
department to give the chief executive information to allow the chief
executive to act under paragraph 63(2)(gb).
Subsection 64(3) also gives effect to paragraph 63(2)(gb) by enabling a
former officer, employee or agent of the department to give information to
the chief executive or an officer, employee or agent of the department
authorised, in writing, by the chief executive to receive the information.
Former officers, employees and agents would otherwise be bound by the
duty of confidentiality imposed on them under subsection 63(4).
Subsection 63(4B) and (4C) require the chief executive to include
information (other than information that may identify a person) in the
department's annual report about the giving of information under
paragraph 63(2)(gb). The information must include details about the
nature of information given and the purpose for which the information was
given.
PART 7 - AMENDMENT OF HOSPITALS FOUNDATIONS
ACT 1982
Clause 37 specifies that this part of the Bill amends the Hospitals
Foundations Act 1982.
Clause 38 amends section 18 by omitting the requirement that the
Minister must, before nominating a person for appointment as a member of
a body corporate established under the Act, consult with specified entities
which must furnish a panel of names to the Minister. The clause inserts
provisions that specify that the Minister may nominate a person as a body
corporate member if the Minister is of the opinion the person has an
interest in, and is able to assist in achieving, the body corporate's object.
Before making the nomination, the Minister must consult with entities the
Minister considers have an interest in the purposes or objects of the body
corporate. The clause also omits section 18(2) which is redundant.
Clause 39 omits an unnecessary provision.
Clause 40 omits unnecessary provisions and specifies that an appointed
member of a body corporate established under the Act is to be appointed
for a term of not more than 5 years.
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Health and Other Legislation Amendment Bill 2003
PART 8 - AMENDMENT OF MEDICAL PRACTITIONERS
REGISTRATION ACT 2001
Clause 41 specifies that this part of the Bill amends the Medical
Practitioners Registration Act 2001.
Clause 42 amends section 111(2) to ensure that specialist registration
under that provision is only available to persons who are not qualified for
general registration.
Clause 43 inserts a new section 121A that specifies that, if a person is
registered as a specialist on the condition that the registrant carry out the
registrant's practise under supervision, the board may ask a person
involved in the supervision to give information to the board about the
supervised practice. This section operates in conjunction with clause 51
which confers protection from liability on persons who give information to
the board in response to a request made under this section or section 141A.
Clause 44 inserts a new section 141A that mirrors section 121A but
applies to special purpose registrants.
Clause 45 inserts new Division 10A of Part 3 (sections 150B to150J).
Section 150B specifies that to be eligible for non-practising registration
a person must be a registrant or have been previously registered, and be a
suitable person to be a non-practising registrant.
A number of the processes for applying for, and deciding applications
for, non-practising registration are the same as the general registration
processes under Part 3, Division 2. To avoid unnecessary duplication of
provisions, section 150C "cross-applies" relevant provisions in Part 3,
Division 2 so that they will apply to non-practising registration.
Section 150D(1) sets out the issues the board may have regard to when
considering whether an applicant for non-practising registration is a
suitable person to be a non-practising registrant. These issues include:
· whether the applicant has been convicted of an indictable
offence, an offence against health practitioner legislation or
another practice-related offence in any jurisdiction;
· if the applicant is or was previously registered in any jurisdiction
(including previous registration in Queensland) and the
registration was subject to conditions, suspended or cancelled or
affected in another way, and the reasons why; and
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Health and Other Legislation Amendment Bill 2003
· any other issue relevant to the applicant's suitability to be a non-
practising registrant.
Section 150D(2) specifies that a conviction mentioned in section
150D(1) does not include convictions that are not part of the applicant's
criminal history. Section 150D(3) and (4) give the board power to obtain
an applicant's criminal history. Section 150D(5) defines the term "criminal
history" for the purposes of the section.
Section 150E specifies that the board may, before deciding an
application for non-practising registration, investigate the applicant and
require the applicant to provide further information or documentation
within a reasonable time of at least 30 days. An applicant who fails to
comply with this requirement is taken to have withdrawn the application.
Section 150F sets out the timeframes within which the board must
decide an application for non-practising registration and specifies that if the
application is not decided within these timeframes, the application is taken
to have been refused.
Section 150G requires a certificate of non-practising registration to be in
the approved form, which must include at least the information specified in
section 150G(2).
Section 150H specifies that a non-practising registration is subject to the
condition that the registrant does not practise the profession and makes it
an offence for a registrant to contravene this condition.
Although the term "practise" is not defined in the Act, it would be an
offence for non-practising registrants to provide any type of medical
service (eg. writing prescriptions or referring patients) whether or not they
receive remuneration for such service.
Sections 150I and J gives the board power to cancel a non-practising
registration. The process for cancelling a non-practising registration
mirrors the process for cancelling a general registration under of Part 3,
Division 6. To avoid unnecessary duplication of provisions, section 150I
"cross-applies" relevant provisions for the purpose of cancelling a non-
practising registration. With the exception of the grounds for cancellation,
this means that:
· the same show cause process applies as for general registration;
and
· the board's decision to cancel a non-practising registration is a
decision that may be appealed under Part 7 of the Act.
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Health and Other Legislation Amendment Bill 2003
Section 150J sets out the grounds for cancelling a non-practising
registration, namely that the registrant:
· has been convicted of an indictable offence, an offence against
health practitioner legislation or a corresponding law; or
· has contravened the condition of registration mentioned section
150H; or
· was registered because of a materially false or misleading
representation or declaration.
Clause 46 amends section 157 to permit a non-practising registrant to
take or use the title "doctor" or a title, name, symbol, word or description
indicating a medical qualification held by the registrant. This clause also
provides that the term "registrant" in section 157 does not include a non-
practising registrant. This means that a non-practising registrant, although
permitted to use the title "doctor" and refer to qualifications held, is
prohibited from taking or using the restricted title "medical practitioner" or
any other title or description indicating the registrant is a medical
practitioner or authorised or qualified to practise the profession.
Clause 47 inserts a new section 180A which protects a body that
honestly and on reasonable grounds, gives advice or makes a
recommendation to the board under section 180(2)(d). By virtue of this
provision, the body and its members are not liable civilly, criminally or
under an administrative process for giving information contained in the
advice or recommendation. The rationale for this provision is explained in
the General Outline section of these Notes.
Clauses 48 to 50 amend various provisions of the Act to ensure they do
not apply to non-practising registrants.
Clause 51 amends section 272 to extend the protection under that section
to persons who honestly and on reasonable grounds, give information to
the board in response to a request made under section 121A or 141A. This
means that such persons are not liable civilly, criminally or under an
administrative process for giving the information. The rationale for this
provision is explained in the General Outline section of these Notes.
Clause 52 amends Schedule 1 to include decisions about non-practising
registration for which information notices must be given.
Clause 53 amends Schedule 3 (Dictionary) to insert new definitions of
terms used in Part 3, Division 10A and amend a number of existing
definitions.
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Health and Other Legislation Amendment Bill 2003
PART 9 - AMENDMENT OF PEST MANAGEMENT ACT
2001
Clause 54 specifies that this part of the Bill amends the Pest
Management Act 2001.
Clause 55 inserts a new section 5A that contains a new definition of the
term "fumigant". The purpose of the new definition is to clarify that
fumigants are substances that are capable of producing a vapour as well as
a gas and that the Act does not apply to fumigation activities involving the
use of fumigants ordinarily used for household purposes.
Clause 56 amends section 54 to ensure that notices required to be given
under that section must be in writing.
Clauses 57 and 58 amend sections 96 and 101 to ensure that those
sections do not apply to seized things.
Clause 59 amends section 111 to correct a minor drafting error.
Clause 60 amends Schedule 3 to include a reference to the definition of
"fumigant" in section 5A.
PART 10 - AMENDMENT OF PRIVATE HEALTH
FACILTIES ACT 1999
Clause 61 specifies that this part of the Bill amends the Private Health
Facilities Act 1999.
Clause 62 amends section 12 by omitting the requirement that the
Minister's notification of the making of standards made under section 12(1)
must be by way of gazette notice. This clause also omits section 12(4)
which is superfluous because of the operation of section 32 of the Statutory
Instruments Act 1992.
Clause 63 corrects an error in section 143A.
Clause 64 inserts a new Part 13 to validate certain notices made under
section 12(3). This is necessary because such notices were not published in
the gazette as required by section 12(3).
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Health and Other Legislation Amendment Bill 2003
PART 11 - AMENDMENT OF RADIATION SAFETY ACT
1999
Clause 65 specifies that this part of the Bill amends the Radiation Safety
Act 1999.
Clause 66 amends section 16 by omitting the requirement that the
Minister's notification of the making of radiation safety standards made
under section 16(1) must be by way of gazette notice. This clause also
omits section 16(5) which is superfluous because of the operation of
section 32 of the Statutory Instruments Act 1992.
PART 12 - AMENDMENT OF ACTS
Clause 67 provides for the amendment of the Acts mentioned in the
Schedule.
SCHEDULE
The Schedule lists the Act and the minor amendments made to them
under clause 67. The amendments update cross-references in other
legislation, renumber certain provisions, correct minor drafting errors and
make minor changes to reflect current drafting practice.
© State of Queensland 2003