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1
Health Legislation Amendment
HEALTH LEGISLATION AMENDMENT
BILL 1999
EXPLANATORY NOTES
GENERAL OUTLINE
Policy Objectives of the Bill
The Bill makes amendments to the following Health portfolio Acts:
· Tobacco Products (Prevention of Supply to Children) Act 1998
· Medical Act 1939
· Health Services Act 1991.
The main policy objectives of the amendments contained in the Bill are
to:
· reduce the number of children who take up smoking by extending
the application of the Tobacco Products (Prevention of Supply to
Children) Act 1998 to restrict children's access to non-tobacco
smoking products such as herbal cigarettes and non-tobacco loose
smoking blends:
· facilitate the implementation of a scheme aimed at recruiting
overseas trained doctors to reduce the shortage of general
practitioners in rural and remote areas of the State; and
· remove obstacles in the Health Services Act 1991 that have
prevented the application of the legislation which provides a
statutory shield for approved quality assurance committee
members and committee information.
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Health Legislation Amendment
Means of Achieving Objectives
Amendment of Tobacco Products (Prevention of Supply to Children) Act
1998
The Queensland release of a new brand of non-tobacco herbal cigarettes,
"Ecstacy", has raised concerns regarding the health risks associated with
young people smoking non-tobacco smoking products as an alternative to
conventional tobacco products (e.g. cigarettes, roll your owns, pipe tobacco,
etc).
As a result of research that has been undertaken in Australia and
overseas, it has been established that the deliberate inhalation of smoke from
the combustion of any matter is injurious to health, whether or not the
smoking compound contains addictive substances such as nicotine.
Furthermore, the smoking of non-tobacco products, such as herbal
cigarettes, leads to at least a similar degree of exposure to carbon monoxide
and tar as conventional cigarettes. These substances have been linked to the
development of adverse health risks such as cancer, heart disease,
emphysema and other conditions affecting the respiratory system.
In recognition of the adverse health effects, and the apparent trend
towards the smoking of herbal cigarettes and other non-tobacco smoking
products by young people, the Bill amends the Tobacco Products
(Prevention of Supply to Children) Act 1998 by prohibiting:
· the supply of non-tobacco smoking products to a child by a
person who, as part of a business activity, supplies non-tobacco
smoking products to the public (eg. "over the counter" sales or
the distribution of herbal cigarettes as part of a marketing
campaign);
· the supply of non-tobacco smoking products through vending
machines;
· the supply of non-tobacco smoking products to a child by an
adult, other than by a responsible adult for the child (eg. in social
situations); and
· the sale of non-tobacco smoking products below a specified
minimum quantity.
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Health Legislation Amendment
Amendment of Medical Act 1939
A scheme known as Doctors for the Bush has been developed by
Queensland Health, in collaboration with the Commonwealth and peak
medical professional bodies, for the primary purpose of recruiting overseas
trained doctors to reduce the shortage of general practitioners in rural and
remote areas of the State. The scheme will operate on the basis that
practitioners who work in rural and remote communities for five years will
be entitled to various benefits including eligibility for permanent residency
status and the receipt of an unrestricted Medicare provider number.
For the scheme to be implemented, practitioners recruited under the
scheme will need to obtain conditional registration from the Medical Board
under s.17C(d) of the Medical Act 1939. Registration under that provision
may only be granted for the purpose of enabling the practitioner to practise
in an "unmet area of need".
The effect of s. 17C(d) is that the Medical Board must decide if an
"unmet area of need" exists. However, in relation to the registration of
practitioners recruited under the Doctors for the Bush scheme, the Medical
Board will have no involvement in deciding if an unmet area of need exists.
Under the scheme, the Minister will have the responsibility for identifying
the rural/remote communities in the State which have a shortage of general
practitioners. Therefore, to ensure that s.17C(d) can effectively operate and
enable appropriately qualified practitioners recruited under the scheme to be
registered under that provision, the Bill provides that the Minister may
decide there is an "unmet area of need".
The Bill also inserts an additional category of conditional registration
under s.17C which will enable practitioners who have fulfilled their
obligations under the Doctors for the Bush scheme to be granted
registration conditional upon their continuation in general practice but
without any geographical limitations.
Amendment of Health Services Act 1991
The quality assurance committee provisions in the Health Services Act
1991 (ss.30-38) (the Act) are intended to provide the necessary regulatory
framework for restricting disclosure of committee information, and
providing immunity for committee members, in order to encourage frank
and open discussion and critical analysis of health services under review.
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Health Legislation Amendment
Such committees serve the public interest by facilitating improvements to
health services.
Weaknesses in the construction of the legislation have prevented its
application - no committees have ever been approved under the legislative
provisions. The proposed amendments are minor, but they will overcome
difficulties in three key aspects: the establishment of committees, mandatory
functions of committees, and authorising the disclosure of patient
identifying information to committees.
To obtain Ministerial approval under the Act currently, a committee must
be established by either a public sector health service or an establishment,
college, association or other body prescribed by regulations. There is
doubt as to whether this allows private hospitals to establish committees
under these provisions. To rectify this, the amendments provide for the
express inclusion of private hospitals in the list of entities eligible to
establish quality assurance committees under the Act.
The committee establishment provisions also exclude quality assurance
activities conducted by sections within Queensland Health's corporate office
that involve the collection and review of sensitive patient or practitioner data
from health facilities across the State. The amendments will extend the
scope of entities able to establish quality assurance committees to include
the chief executive of Queensland Health. The quality and extent of data
contributed by health practitioners to State-wide quality improvement
activities will be enhanced by this provision.
The Bill also provides for quality assurance committees to be established
by more than one entity. This provision is necessary to cater for the
diversity of partnerships that exist within the health sector, for example,
collocation of private and public sector hospitals.
The Act currently provides for the approval of quality assurance
committees that meet certain eligibility criteria--one of which requires the
review of clinical privileges to be included in a committee's functions. The
mandatory incorporation of the review of clinical privileges in the function
of a quality assurance committee creates two difficulties for the application
of the legislation. It limits the scope of committees able to be approved
under the Act. Secondly, the requirements for the review of clinical
privileges in relation to information disclosure and use differ from those
required for other quality assurance activities. The legislative provisions
relating to restrictions on committees, disclosure of committee information
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Health Legislation Amendment
and shielding the use of committee information, while appropriate for the
effective operation of quality assurance committees which have an advisory
and educative role, are not appropriate for committees reviewing clinical
privileges. The amendments resolve this difficulty by removing the
mandatory inclusion of the review of clinical practices and privileges from
the function of approved quality assurance committees.
Quality assurance committees that collect and use data that identify
recipients or providers of health services bear responsibility for ensuring
such information remains confidential. However, separate general
confidentiality provisions in the Act (s.63) impose a duty on officers,
employees or agents of the Department to not disclose information that
could identify a person who has received a public sector health service.
Quality assurance committees cannot operate without access to relevant
patient data. The amendments overcome this technical difficulty by
providing an exemption to the confidentiality duty in relation to the giving of
information to an approved quality assurance committee or to a person
authorised by the committee to enable the committee to perform its
functions.
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.
Liability of person for conduct of representatives
The application of section 25 of the Tobacco Products (Prevention of
Supply to Children) Act 1998 is to be extended to deal with the sale of
non-tobacco smoking products in contravention of the minimum quantities
specified under the legislation. Under this section, a person will be liable for
the actions of their employees or agents, where an employee or agent has
contravened those provisions of the Bill which make it an offence to sell
non-tobacco smoking products below a minimum specified quantity (see
clauses 29 and 31).
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Health Legislation Amendment
While this provision effectively provides for the reversal of the onus of
proof, it is appropriate that those persons who are ultimately responsible for
the conduct of a business ensure that the requirements of the legislation are
not breached. As with most provisions of this type, where an individual or
corporation is presumed to be liable for the conduct of their representatives,
the individual or corporation will have a defence if they can prove that they
took reasonable steps to prevent the conduct.
Powers of Entry
Clause 33 of the Bill amends section 33 of the Tobacco Products
(Prevention of Supply to Children) Act 1998 to enable an authorised person
to enter, without the occupiers' consent or a warrant, an outlet where
non-tobacco smoking products are supplied to the public. While this
provision may be seen to have a negative impact on the rights and liberties
of certain individuals, this provision is warranted for the following reasons:
· The rights are the same as those a member of the public would
normally have (eg. enter a retail shop while it is open for
business).
· These powers of entry are essential to the effective monitoring
and enforcement of the legislation. An authorised person will not
be able to gain an accurate picture of a person's or a business's
compliance with the legislation, if those individuals who supply
non-tobacco smoking products to the public are aware that they
are being observed by an authorised person.
· The provision does not provide for unfettered access to an outlet,
as the powers of entry can only be exercised when the outlet is
open for carrying on business.
Power to require evidence of age, name and address
Clause 34 of the Bill amends section 39 of the Tobacco Products
(Prevention of Supply to Children) Act 1998 to enable an authorised person
to establish the age of a person being supplied with a non-tobacco smoking
product, who the authorised persons suspects on reasonable grounds to be a
child. Under these circumstances the authorised person can ask for
acceptable evidence of age. Where the person cannot provide such
evidence, or provides evidence which shows that the person is under 18, the
authorised person may require the person to state their name and address.
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Health Legislation Amendment
It is essential that an authorised person be able to establish the age of a
person he or she has observed being supplied with a non-tobacco smoking
product in order to determine whether the person supplying the product has
committed an offence. The amendment of section 39 is essential to the
effective enforcement of those measures provided for in the Bill to restrict
the supply of non-tobacco smoking products to children.
Consultation
The following key stakeholders were consulted in relation to the
amendment of the Tobacco Products (Prevention of Supply to Children)
Act 1998:
· Heart Foundation of Australia
· Queensland Cancer Fund
· Australian Medical Association (Queensland Branch)
· Queensland Retail Tobacco Traders' Association
· Queensland Retail Traders' and Shopkeepers' Association
· Retailer's Association of Queensland
· Queensland Newsagents' Association
· Motor Trades Association of Queensland
· Major retailers
The following stakeholders were consulted in relation to the amendments
to the Medical Act 1939:
· Medical Board of Queensland
· Australian Medical Association
· Queensland Rural Doctors' Association
· Royal Australian College of General Practitioners
· Australian College of Rural and Remote Medicine
· Queensland Rural Medical Support Agency
· Queensland Divisions of General Practice Association.
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Health Legislation Amendment
The following stakeholders were consulted in relation to the amendments
to the Health Services Act 1991:
· Australian Medical Association
· Royal Australian and New Zealand College of Radiologists
· Royal Australian College of General Practitioners
· Royal Australian and New Zealand College of Psychiatrists
· Royal Australasian College of Surgeons
· Private Hospitals' Association of Queensland
NOTES ON PROVISION
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Act.
Clause 2 provides for the commencement of the provisions of the Act.
PART 2--AMENDMENT OF HEALTH SERVICES ACT
1991
Clause 3 identifies this part of the Bill as amending the Health Services
Act 1991.
Clause 4 makes various amendments to section 31. Clause 4(1)
provides a minor change to terminology to increase specificity. Clause 4(2)
allows additional entities to establish quality assurance committees. They
are the chief executive and holders of a licence to use a private hospital
under the Health Act 1937. It also provides for a combination of entities to
establish a quality assurance committee. Clause 4(3) amends section
31(3)(a) by limiting its application to committees that are not established by
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Health Legislation Amendment
an individual. This amendment is consequential to the amendment to
section 31(2) which provided for individuals (the chief executive and
possibly, a private hospital licensee) to establish quality assurance
committees. The provision requiring a committee to be established under a
resolution or in accordance with the rules or official procedures of the
founding entity is not relevant in the case of a committee established by an
individual. Clause 4(4) amends section 31(3)(b) by removing the
mandatory inclusion of the `review of clinical practices and privileges' from
the functions of a committee eligible for approval by the Minister.
Clause 5 amends section 33(b)(i) by replacing the term `body' with the
term `entity' for the purposes of consistency with section 31. The term
`entity' encompasses reference to an individual as well as an incorporated or
unincorporated body.
Clause 6 amends section 36(3) by inserting provisions that clarify the
responsibility for indemnifying members of committees established by
different types of entities. The provision specifies that members of a
committee established by a public sector health service or the chief executive
are indemnified by the State and in all other cases indemnification is the
responsibility of the particular entity that established the committee. The
clause also provides for circumstances where a committee may be
established jointly by more than one entity. The provision separates the
responsibility for indemnifying particular members. It clarifies that the
relevant entity is to indemnify members that it appoints to the committee.
Clause 7 amends section 63(2) by inserting a provision that provides an
exemption to the duty of confidentiality imposed on officers, employees or
agents of Queensland Health in relation to information that may identify a
person who has received a public sector health service. The purpose of this
exemption is to provide identifying information to an approved quality
assurance committee or a person authorised by the committee to prepare
information for the committee. The exemption is qualified by the
requirement that the giving of the information is to enable the committee to
perform its functions.
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Health Legislation Amendment
Clause 8 provides for an amendment consequential to the
commencement of the Private Health Facilities Act 1999. Clause 8 will
amend section 31(2)(c) by removing the reference to a person who holds a
licence to use a private hospital under the Health Act 1937 and inserting a
reference to the equivalent term used under the Private Health Facilities Act
1999. This provision overcomes the need to make a separate amendment to
the Act in the future once the Private Health Facilities Bill 1999
commences.
Clause 9 replaces the heading for Division 2 of Part 9.
Clause 10 inserts a transitional provision as a consequence to the
amendment provided for in Clause 8. Clause 10 specifies that an approved
quality assurance committee, established by the holder of a licence to use a
private hospital under the Health Act 1937, will continue to be an approved
committee on commencement of the Private Health Facilities Act 1999.
This provision removes any doubt about the continuation of the Minister's
approval of these quality assurance committees.
PART 3--AMENDMENT OF MEDICAL ACT 1939
Clause 11 specifies that this part of the Bill amends the Medical Act
1939.
Clause 12 amends section 17C by inserting a provision to enable the
Medical Board to conditionally register a person as a medical practitioner if
the person has qualifications in general practice conferred by the Royal
Australian College of General Practitioners or another prescribed body and
registration is for the purpose of enabling the person to practise in general
practice. The clause also inserts new subsections (2) and (3) in section 17C
which:
· provide that the Minister may decide there is an unmet area of
need for the purpose of section 17C(1)(d) and specify in what
circumstances the Minister may make a decision in this regard;
and
· require the Minister to give the Medical Board written notice of
such a decision.
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Health Legislation Amendment
PART 4--AMENDMENT OF TOBACCO PRODUCTS
(PREVENTION OF SUPPLY TO CHILDREN) ACT 1998
Clause 13 specifies that this part of the Bill amends the Tobacco
Products (Prevention of Supply to Children) Act 1998.
Clause 14 amends the long title of the Tobacco Products (Prevention of
Supply to Children) Act 1998.
Clause 15 amends the short title of the Act.
Clause 16 amends the main object of the Act by extending the object
from "tobacco products" to "smoking products".1
Clause 17 replaces the heading for Part 2.
Clause 18 replaces the heading for Division 1 of Part 2.
Clause 19 provides that Division 1 of Part 2 does not apply to the supply
of smoking products from coin-operated vending machines.
Clauses 20 to 23 extend the application of sections 9 to 12 of the Act to
the supply of herbal cigarettes and loose smoking blends to children.
Clause 24 extends the application of section 13 of the Act to suppliers of
herbal cigarettes and loose smoking blends.
Clause 25 inserts a new Division 3 into Part 2 of the Act. This division
bans the use of coin-operated vending machines to supply herbal cigarettes
or loose smoking blends to any person. The penalty for breaching this
requirement is 13 penalty units for a first offence and 26 penalty units for a
second or later offence.
1 In order to extend the application of the Act to restrict the supply of non-tobacco smoking
products to children, a number of the key terms used throughout the legislation have been amended.
For example, where appropriate:
· the term "tobacco product" is replaced with the broader term "smoking product", which is
defined as meaning a tobacco product, herbal cigarette, or loose smoking blend (ie. a herb or
other plant, or a blend thereof, that is prepared for smoking as a roll your own cigarette or in
a pipe); and
· the term "tobacco product supplier" is replaced with the broader term "supplier", which
is defined as meaning a person who, as part of a business activity, supplies smoking
products to the public, but does not include a person who supplies smoking products to
the public as an employee of another person (see clause 36).
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Health Legislation Amendment
As a consequence of the new Division 3 being inserted into Part 2, the
clause also provides for:
· the renumbering of the existing Division 3 as "Division 3A -
Supply of smoking products by adults to children"; and
· the insertion of a new application provision for this division
(section 18A). This provision specifies that Division 3A does not
apply to the supply of smoking products by suppliers or their
employees, in the ordinary course of employment; or the supply
of smoking products from coin-operated vending machines.
Clause 26 extends the application of section 19 of the Act to make it an
offence for an adult, other than the responsible adult for a child, to supply a
child with herbal cigarettes or a loose smoking blend. A "responsible
adult" is defined as meaning an adult who is the child's parent, step-parent,
guardian, or who has parental rights and responsibilities for the child.
Clause 27 amends section 20 of the Act in accordance with the omission
of the term "tobacco product supplier" in favour of the broader term
"supplier".
Clause 28 replaces the heading for Division 5 of Part 2.
Clause 29 makes it an offence to sell herbal cigarettes other than in a
package or in a package containing less than 20 cigarettes.
Clause 30 amends section 23 of the Act in accordance with the omission
of the term "tobacco product supplier" in favour of the broader term
"supplier".
Clause 31 inserts a new section into Division 5 of Part 2 to make it an
offence for a supplier to sell a prepackaged loose smoking blend in a
quantity of less than 15 g. A prepackaged loose smoking blend is defined
under clause 37 as meaning a loose smoking blend that is packaged for
retail sale.
Clause 32 extends the application of section 25 of the Act to deal with
those circumstances where a person may be liable for a breach of the
legislation in relation to the sale of a prepackaged loose smoking blend in a
quantity below the prescribed minimum quantity for this type of smoking
product.
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Health Legislation Amendment
Clause 33 amends section 33(2)(b) of the Act in accordance with the
omission of the term "tobacco product supplier" in favour of the broader
term "supplier".
Clauses 34 and 35 amend section 39(1) and 40 respectively, to replace
the term "tobacco product" with the broader term "smoking product".
Clause 36 replaces the existing section 51 and sets out the circumstances
under which evidence of a thing labelled as a tobacco product, herbal
cigarette or loose smoking blend is evidence that the thing is or contains
such a product.
Clause 37 amends the Schedule to the Act by omitting the definitions for
the terms "package" and "tobacco product supplier"; and inserting
definitions for the terms herbal cigarette, loose smoking blend, package (for
cigarettes and herbal cigarettes), prepackaged loose smoking blend,
smoking product and supplier.