Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
Health and Other Legislation Amendment Bill 2009
Health and Other Legislation Amendment
Bill 2009
Explanatory Notes for Amendments to be
moved during consideration in detail by the
Honourable Paul Lucas MP
Title of the Bill
Health and Other Legislation Amendment Bill 2009
Objective of the Amendments
Nursing Tribunal
The objective of the amendments is to omit two references to the Nursing
Tribunal which the Bill inserts into the Health Practitioners (Professional
Standards) Act 1999 (the Professional Standards Act).
Limited Practice
The objectives of the amendments are to provide guidance on the practices
of the medical profession in which retired medical practitioners may
engage under the Medical Practitioner Registration Act 2001 (the Act), and
to formally recognise the arrangement for registering retired medical
practitioners to ensure appropriate transition to the National Registration
and Accreditation Scheme for Health Professions (the National Scheme).
Mandatory Reporting
The objective of the amendments is to ensure that the obligation on medical
practitioners under the Act to report `reportable misconduct' by other
medical practitioners is consistent with the reporting obligation for health
professionals proposed under the National Scheme.
Page 1
Health and Other Legislation Amendment Bill 2009
Achievement of the Objectives
Nursing Tribunal
Section 392 of the Professional Standards Act provides that a person must
not disclose information about another person's affairs acquired in
performing functions under the Act. Subsection (3) provides a range of
exemptions, including the circumstances in which disclosure may be
permitted and the bodies to which disclosure may be made. Information
may currently only be disclosed to the Queensland Nursing Council (QNC)
and the Nursing Tribunal, constituted under the Nursing Act 1992, if
authorised by the Minister on public interest grounds under subsection (j).
This has been found in practice to present an unnecessary impediment to
the swift and effective investigation and resolution of disciplinary matters
which fall under both the Professional Standards Act and the Nursing Act.
For example, where an investigation into suspected misconduct by a doctor
(governed in disciplinary matters by the Professional Standards Act) also
reveals suspected misconduct by a nurse (governed in these matters by the
Nursing Act), the investigator is currently required to obtain the Minister's
authorisation before disclosing the information to the QNC or Nursing
Tribunal.
Clause 42 of the Bill therefore amends section 392 of the Professional
Standards Act to allow confidential information obtained under that Act to
be disclosed to the Queensland Nursing Council and the Nursing Tribunal
if the disclosure is necessary to allow these bodies to perform their
functions under the Nursing Act. Clause 43 inserts definitions of `Nursing
Tribunal' and `Queensland Nursing Council'.
However, the Queensland Civil and Administrative Tribunal (QCAT),
created under the Queensland Civil and Administrative Tribunal Act 2009
and invested with jurisdiction in relation to disciplinary matters arising
under the Professional Standards Act and the Nursing Act through
amendments to these Acts effected by the Queensland Civil and
Administrative Tribunal (Jurisdiction Provisions) Act 2009, will replace the
Nursing Tribunal from its commencement on 1 December 2009. A head of
power authorising disclosure of confidential information to the Nursing
Tribunal will therefore not be necessary from that time.
As QCAT will be a disciplinary body in relation to matters arising under
both the Professional Standards Act and the Nursing Act, it has been
identified that confidential information may be disclosed to it under the
existing exemption in section 392(3)(b) of the Professional Standards to
Page 2
Health and Other Legislation Amendment Bill 2009
enable it to perform its disciplinary functions under either Act. No
additional head of power is therefore required to enable confidential
information to be disclosed to QCAT in performing its functions under the
Nursing Act.
The proposed amendments therefore omit the reference to the Nursing
Tribunal from clause 42 of the Bill and the definition of `Nursing Tribunal'
from clause 43 of the Bill.
Limited Practice
Section 10B of the Medical Practitioner Registration Regulation 2002 (the
Regulation) provides authority for the Medical Board of Queensland to
waive the registration and renewal fees for retired medical practitioners
who seek registration. The fee waiver may only be granted to retired
medical practitioners who hold a pensioner concession card or a seniors
card, and only where the Medical Board of Queensland is satisfied that the
registrant will not earn an income from the practice of the profession.
There are no conditions or limitations placed upon the scope of practice in
which a retired medical practitioner registered with a fee waiver may
engage.
The National Scheme which is to be fully implemented by 1 July 2010 will
provide for the transition of retired general and specialist registrants with
specified conditions and limitations on scope of practice, to the category of
Limited Registration (public interest occasional practice). Only three
jurisdictions, Western Australia, Australian Capital Territory and New
South Wales, currently formally recognise and provide conditions on,
retired general and specialist registrants.
As the arrangement in Queensland does not formally provide for any
limitations on registration of retired medical practitioners, these registrants
will be required to either drop registration or transition to full general or
specialist registration when the National Scheme commences on 1 July
2010.
This disadvantages Queensland's retired medical practitioners significantly
and does not afford these registrants with the same rights at transition as
other registrants.
In addition, the lack of formal limitations on scopes of practice for retired
medical practitioners has the potential to place the public at risk should a
retired practitioner's competency and skills base not remain contemporary.
Page 3
Health and Other Legislation Amendment Bill 2009
The amendment rectifies this problem by formally implementing
limitations on scopes of practice for retired medical practitioners who have
been registered with a fee waiver under section 10B of the Regulation.
Mandatory Reporting
Clause 61 of the Bill amends the Act to require a registrant (ie. medical
practitioner) who reasonably suspects, or becomes aware, that another
registrant has engaged in `reportable misconduct', to give written notice of
the misconduct to the Medical Board of Queensland.
The provisions of clause 61 were drafted to be consistent with the national
approach to mandatory reporting for health professionals endorsed by the
Australian Health Ministers on 5 March 2009 as part of the implementation
of the National Scheme.
On 6 October 2009, the Health Practitioner Regulation National Law Bill
2009 (the National Law Bill), the second-stage legislation to implement the
National Scheme, was introduced into the Queensland Parliament.
The National Law Bill includes mandatory reporting provisions that vary
from the policy approach initially endorsed by Health Ministers by:
· exempting health practitioners from the reporting obligation in
specified circumstances where they obtain information about
reportable misconduct in connection with legal proceedings or the
provision of legal advice, or where they know, or reasonably believe,
that the reportable misconduct has previously been reported; and
· requiring only serious misconduct to be reported (ie. involving a
significant departure from accepted professional standards) by health
professionals.
The proposed amendments to clause 61 of the Bill ensure consistency with
the mandatory reporting provisions in the National Law Bill.
Consistency with Fundamental Legislative Principles
Nursing Tribunal
The amendments will not have the effect of authorising the disclosure of
confidential information to any additional bodies. The amendments are
therefore consistent with Fundamental Legislative Principles.
Page 4
Health and Other Legislation Amendment Bill 2009
Limited Practice
The amendment to introduce formal limitations on the scope of practice for
retired medical practitioners is to take effect on all existing registrants that
meet the description immediately upon commencement. That is, it may be
perceived that the limitations are being applied retrospectively.
However, this inconsistency with Fundamental Legislative Principles is
considered justified for three reasons:
1. the risk to a patient from a retired medical practitioner who engages in
significant medical practice, without appropriate competency and
without continuing professional development, can be extreme. The
fundamental principle of registration is to protect the public by
ensuring that health care is delivered by registrants in a `professional,
safe and competent way...';
2. ethical standards of the professional already impose limitations on
what is considered acceptable practice by retired medical
practitioners, that are similar to those proposed in the amendment; and
3. the amendment will ensure parity with medical practitioners in other
jurisdictions when the National Scheme commences on 1 July 2010.
This amendment may also be inconsistent with Fundamental Legislative
Principles as the new section specifically does not allow appeals or reviews
(other than under the Judicial Review Act 1991) for decisions concerning
conditions imposed by the board. However, the inconsistency is considered
justified because:
1. registrants subject to the limitations are not receiving an income from
the practice of the profession, and therefore conditions will not be
impacting on income;
2. the registrants do not pay a fee and therefore the costs of the board
defending a decision would be subsidised by practising registrants;
and
3. the amendment does not prevent these registrants from seeking full
general or specialist registration and resuming full practice.
Mandatory Reporting
The amendments to amend the mandatory reporting clauses in the Bill are
consistent with Fundamental Legislative Principles.
Page 5
Health and Other Legislation Amendment Bill 2009
Consultation
Nursing Tribunal
As this is a technical amendment only, consultation is not required.
Limited Practice
Detailed consultation on the amendment was undertaken with the
Australian Medical Association Queensland and the Medical Board of
Queensland.
Mandatory Reporting
Key stakeholders, including medical professional bodies and medical
indemnity insurers, were consulted about the issues addressed in the
proposed amendments for mandatory reporting, through the public release
of an exposure draft of the National Law Bill in June 2009.
Notes on Provisions
Amendment 1 amends clause 42 to omit the reference to the Nursing
Tribunal which that clause inserts into the section 392 of the Professional
Standards Act.
Amendment 2 amends clause 43 to omit the definition of `Nursing
Tribunal' which that clause inserts into the Schedule (Dictionary) to the
Professional Standards Act.
Amendment 3 inserts two new clauses, clause 60A and clause 60B.
Clause 60A amends the heading of Division 10A of the Act to reflect the
inclusion of a provision concerning limited registration into the division.
Clause 60B inserts a new subdivision 1AA and new section 150AD into the
Act to identify those registrants (limited registrants) that are registered with
a waiver of fee as provided for in the Regulation.
Subsection (2) applies limitations to the practice of the profession for
limited registrants. The limitations only permit limited registrants to refer
a person to another registrant or prescribe a scheduled medicine that has
been previously prescribed within the last 12 months, by another registrant
who is not a limited registrant.
Page 6
Health and Other Legislation Amendment Bill 2009
Scheduled medicine is defined in subsection (7) as meaning only a
restricted drug, that is not a restricted drug of dependency, a controlled
drug or a poison as defined in the Health (Drugs and Poisons) Regulation
1996. It is not considered appropriate that retired medical practitioners
registered as limited registrants should be able to prescribe restricted drugs
of dependency, controlled drugs or poisons.
Subsection (3) allows the board to impose further conditions on the limited
registrant's registration that the board considers necessary or desirable for
the registrant to competently and safely practise the profession. This is to
allow the board to impose any conditions necessary to protect the public
from harm through, for example, loss of competency or development of
impairment.
Subsection (4) provides that a limited registrant may apply to the board for
a review of a condition imposed under subsection (3).
Subsection (5) provides that a limited registrant may not seek appeal or
review of a decision of the board to impose a condition or a decision of the
board on an application for review under subsection (4).
Subsection (6) retains a right of review under the Judicial Review Act 1991.
Amendment 4 amends clause 61 by inserting new subsections 166(4), (5)
and (6) in the Act.
Subsection (4) specifies that the obligation under subsection (2) to give
written notice about reportable misconduct does not apply if the first
registrant knows, or reasonably believes, a notice has already been given to
the board.
Subsection (5) specifies the circumstances in which, for subsection (1), the
first registrant does not `form the relevant suspicion' about the second
registrant (ie. become aware, or reasonably suspect, the second registrant
has engaged in reportable misconduct) and therefore has no reporting
obligation under subsection (2). These circumstances exist where the first
registrant:
· is employed or otherwise engaged by a professional indemnity insurer
and suspects or becomes aware that the second registrant has engaged
in reportable misconduct as a result of a disclosure made during legal
proceedings or in the provision of legal advice arising from the
insurance policy; or
· suspects or becomes aware that the second registrant has engaged in
reportable misconduct when providing advice about the misconduct
Page 7
Health and Other Legislation Amendment Bill 2009
for the purposes of legal proceedings or the preparation of legal
advice; or
· is also a lawyer and suspects or becomes aware that the second
registrant has engaged in reportable misconduct when providing legal
services to the second registrant in relation to legal proceedings or the
preparation of legal advice in which the reportable conduct is an issue.
Subsection (6) defines the phrase `forms the relevant suspicion'. It also
inserts a replacement definition of `harm' which varies from the current
definition to the extent that a detrimental effect on a person's physical or
psychological wellbeing does not need to be `of a significant nature' to
constitute harm.
Amendment 5 amends paragraph (c)(ii) in the definition of `reportable
conduct' in section 166(4) by inserting a reference to `significant harm'.
The purpose of the amendment is to ensure that, despite the new definition
of `harm', paragraph (c) retains the same meaning and applies only to
practice of the profession that causes, or is likely to cause, significant harm.
Amendment 6 amends paragraph (d)(i) in the definition of `reportable
conduct' in section 166(4) so that paragraph (d) only applies to practice of
the profession that `significantly' departs from accepted professional
standards. The new definition of `harm' means that, in contrast to
paragraph (c), paragraph (d) applies to practice that causes, or is likely to
cause, any harm (whether significant or not).
© State of Queensland 2009
Page 8