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1
Health Legislation Amendment Bill 2003
HEALTH LEGISLATION AMENDMENT
BILL 2003
EXPLANATORY NOTES
GENERAL OUTLINE
Policy Objectives of the Bill
The main policy objectives of the Bill are to amend:
· the Chiropractors Registration Act 2001, the Optometrists
Registration Act 2001, the Physiotherapists Registration Act
2001 and the Podiatrists Registration Act 2001 to remove broad
statutory definitions restricting practices to particular professions
and to replace these with specific practice restrictions, to
implement the recommendations of the National Competition
Policy review of restricted core practices for health practitioners;
· the Dental Practitioners Registration Act 2001, the Dental
Practitioners Registration Regulation 2001, the Dental
Technicians and Dental Prosthetists Registration Act 2001 and
the Health Practitioners (Professional Standards) Act 1999 to
incorporate the recommendations of the National Competition
Policy review on the restrictions on the practice of dentistry;
· the Health Act 1937 to empower the Chief Executive of Health,
rather than the Governor in Council, to appoint medical
inspectors, health officers and other officers, consistent with
similar appointment provisions in the Act;
· the Health Practitioners (Professional Standards) Act 1999 to
give effect to the Health Practitioners Tribunal's decision from
the date it is delivered by the Tribunal, or as otherwise ordered;
· the Health Rights Commission Act 1991 to enable referral of
public interest issues to registration boards after successful
conciliation, to clarify the Commissioner's powers to decide not
to take action after unsuccessful conciliation, to enable a
conciliator to discuss confidential complaint matters with a
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Health Legislation Amendment Bill 2003
colleague and to clarify that a matter may be referred from
investigation to conciliation; and
· the Health Services Act 1991 to provide more flexible
membership requirements for District Health Councils to
accommodate periodic vacancies, and to ensure that the
functions of a council are not affected merely because of a
vacancy.
· the Nursing Act 1992 to provide a greater degree of public
protection, and to achieve greater consistency with the Health
Practitioners (Professional Standards) Act 1999 and Health
Practitioner Registration Acts by, for example, broadening the
grounds for complaint and disciplinary action against nurses.
Means of Achieving Objectives
Amendment of dental practitioners, dental technicians and dental
prosthetists legislation
The Bill amends the Dental Practitioners Registration Act 2001, the
Dental Practitioners Registration Regulation 2001, the Dental Technicians
and Dental Prosthetists Registration Act 2001 and the Health Practitioners
(Professional Standards) Act 1999 to incorporate the recommendations of
the National Competition Policy review on the restrictions on the practice
of dentistry. The amendments will:
· retain a statutory definition of dentistry to capture only those
facets of the practice which pose a high risk of harm to patients
· continue to restrict who may practice dentistry, namely registered
dentists, dental specialists and medical practitioners and, to the
extent that their duties fall within the definition of dentistry,
registered dental prosthetists and dental auxiliaries (dental
hygienists and dental therapists)
· retain a simplified statutory definition of dental prosthetic work
· restrict the provision of dental prosthetic services to dental
prosthetists, dentists and medical practitioners
· retain the current restriction on the provision of partial dentures
to dental prosthetists
· remove the restriction on the performance of dental technical
work to dental technicians
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Health Legislation Amendment Bill 2003
· provide for the registration of dental auxiliaries by the Dental
Board of Queensland
· remove the restriction on the employment of school dental
therapists to the public sector
· remove the requirement for dental hygienists to work in a one-to-
one ratio with a dentist
· enable the Dental Board to authorise a dental therapist, under the
supervision of a dentist, to perform additional functions, if the
therapist has the necessary qualifications or skills.
Amendment of health practitioner registration legislation restricted
core practices
The Bill amends the Chiropractors Registration Act 2001, the
Optometrists Registration Act 2001, the Physiotherapists Registration Act
2001 and the Podiatrists Registration Act 2001 to implement the
recommendations of the National Competition Policy review of restricted
core practices for health practitioners. The amendments will:
· remove broad statutory definitions restricting practices to
particular professions and replace these with restrictions on
practices which pose a high risk of harm to patients;
· restrict the practice of spinal manipulation to registered
chiropractors, medical practitioners, osteopaths and
physiotherapists; and
· restrict the practice of prescribing optical appliances for the
correction or relief of visual defects to registered optometrists
and medical practitioners.
Amendment of Health Act 1937
The Bill amends the Health Act to streamline the appointment of various
officers. The amendments will empower the Chief Executive of Health,
rather than the Governor in Council, to appoint medical inspectors, health
officers and other officers, consistent with similar appointment provisions
in the Act.
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Health Legislation Amendment Bill 2003
Amendment of Health Practitioners (Professional Standards) Act 1999
Health Practitioner Tribunals
The Bill amends the Health Practitioners (Professional Standards) Act to
give effect to the Health Practitioners Tribunal's decision from the date it is
delivered by the Tribunal, or as otherwise ordered.
Amendment of Health Rights Commission Act 1991
The Bill amends the Health Rights Commission Act to clarify the powers
of the Health Rights Commissioner and to ensure the effective operation of
the Health Rights Commission. The amendments will enable referral of
public interest issues to registration boards after successful conciliation;
clarify the Commissioner's powers to decide not to take action after
unsuccessful conciliation; enable a conciliator to discuss confidential
complaint matters with a colleague; and clarify that a matter may be
referred from investigation to conciliation.
Amendment of Health Services Act 1991
The Bill amends the Health Services Act 1991 to provide more flexible
membership requirements for District Health Councils by specifying that
councils should be comprised of not more than 10 members and that a
vacancy in the membership of a council does not affect the performance of
a council's functions or the exercise of its powers. In addition, the Bill
clarifies how a member of a council may resign their office and when the
resignation takes effect.
Amendment of Nursing Act 1992
The Bill amends the Nursing Act to provide greater consistency with the
model of occupational regulation adopted in Queensland through the
introduction of the Health Practitioner Registration Acts in 2001 and the
Health Practitioners (Professional Standards) Act 1999. The amendments
will:
· provide the Queensland Nursing Council (QNC) with the
capacity to access information about the criminal history of an
applicant for registration or enrolment as a nurse, or for an
authorisation to practise nursing. The amendments expressly
over-ride the protection provided by the Criminal Law
(Rehabilitation of Offenders) Act 1986;
· remove provisions of the Act which refer to a `code of conduct',
and insert new grounds for disciplinary action and processes for
the making of complaints similar to those in the Health
Practitioner (Professional Standards) Act 1999;
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Health Legislation Amendment Bill 2003
· require the QNC to provide the Health Rights Commissioner
with copies of all concerns raised regarding the health of a nurse,
midwife or person authorised to practise nursing; the action
taken by QNC in respect of such matters; and when the
immediate suspension powers under the Nursing Act are used.
This will ensure that the information available to the Health
Rights Commissioner about nurses is consistent with the
information provided about other registered health practitioners;
· change the name of the Professional Conduct Committee to the
`Nursing Tribunal';
· provide the QNC with powers to disclose any information
obtained about a person's affairs to an interstate or foreign
nursing regulatory authority;
· enable the Nursing Tribunal to issue cost orders;
· enable the District Court to order costs on appeals, as considered
appropriate; and
· insert an "undue influence" offence to make it an offence for a
person to aid, abet, counsel, procure or induce nurses, midwives
or other persons authorised to practise nursing, to engage in
conduct that may be the basis for disciplinary action.
Estimated Cost for Government Implementation
The Bill will not have any significant financial impact on Government.
Consistency with Fundamental Legislative Principles
Aspects of the Bill which raise possible fundamental legislative
principles issues are outlined below.
Amendment of Nursing Act 1992
Amendments to the Nursing Act to over-ride the protection provided by
the Criminal Law (Rehabilitation of Offenders) Act 1986 raises a
fundamental legislative principle issue, as the power to access a person's
criminal history may be regarded as adversely affecting an individual's
privacy.
When deciding whether a person is to be registered, enrolled or
authorised to practise nursing under the Act, the QNC must assess whether
the person is fit or suitable to practise nursing. The capacity of the QNC to
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Health Legislation Amendment Bill 2003
access information about a person's full criminal history will assist the
QNC to undertake this assessment. The QNC will have a more complete
picture of an applicant's criminal history, including information about `old'
convictions which may indicate a pattern of behaviour that could
compromise the applicant's ability to practise the profession safely and
competently.
Provisions of this kind are common in occupational registration
legislation where, for the purpose of protecting the public, the integrity of
industry participants must be ensured. Those aspects of the Bill that
provide for the amendment of the Act are consistent with the scope of
criminal history provisions in other legislation that deal with the
employment or registration of people who work primarily with children
and other vulnerable people. These include for example, legislation such
as the Medical Practitioners Registration Act 2001, other health
practitioner registration Acts, the Education (Teachers Registration) Act
1988 and Commission for Children and Young People Act 2000.
While the amendments make provision for an applicant's criminal
history to be taken into account by the QNC, the possession of a criminal
history does not necessarily make an applicant ineligible for registration,
enrolment or authorisation nor does it mean that the QNC must
automatically refuse to register, enrol or authorise the applicant to practise.
For example, the nature of a person's criminal history may be such that the
QNC is satisfied that the applicant is fit to practise, subject to certain
conditions on their registration; or that it has no bearing whatsoever on the
applicant's suitability to practise nursing. If a person is aggrieved by a
decision of the QNC to refuse an application for registration, the person
may appeal against the decision to a District Court Judge.
Amendment of Dental Practitioners Registration Act 2001
The amendment of the Dental Practitioners Registration Act will extend
the existing power of the Dental Board of Queensland to ask for and obtain
an applicant's full criminal history to applicants for registration as a dental
auxiliary. The Bill provides for dental auxiliaries to be registered. As a
result, over-riding the protection provided by the Criminal Law
(Rehabilitation of Offenders) Act 1986 in relation to dental auxiliaries
raises a fundamental legislative principle issue, as the power to access a
person's criminal history may be regarded as adversely affecting an
individual's privacy.
The provision currently exists in relation to registered dentists,
consistent with the scope of criminal history provisions in other legislation
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Health Legislation Amendment Bill 2003
dealing with the registration of people who work primarily with children
and other vulnerable people.
Similar to the reasons provided above in the case of amendments to the
Nursing Act, the capacity of the Dental Board of Queensland to access
information about a person's full criminal history will assist the Board to
undertake an assessment of an applicant's fitness to practise. The Board
will have a more complete picture of an applicant's criminal history,
including information about `old' convictions which may indicate a pattern
of behaviour that could compromise the applicant's ability to practise the
profession safely and competently.
While the amendments make provision for an applicant's criminal
history to be taken into account by the Board, the possession of a criminal
history does not necessarily make an applicant ineligible for registration
nor does it mean that the Board must automatically refuse to register, enrol
or authorise the applicant to practise. For example, the nature of a person's
criminal history may be such that the Board is satisfied that the applicant is
fit to practise, subject to certain conditions on their registration; or that it
has no bearing whatsoever on the applicant's suitability to practise nursing.
If a person is aggrieved by a decision of the Board to refuse an application
for registration, the person may appeal against the decision to a District
Court Judge.
Consultation
Amendment of dental practitioners, dental technicians and dental
prosthetists legislation
Public notification of the Terms of Reference and Public Benefit Test
Plan ("PBT") for the National Competition Policy Review on the
Restrictions of the Practice of Dentistry was made in the Courier Mail and
major regional newspapers in April 1999. A PBT Report, prepared by
external consultants, was released for stakeholder comment in June 2001.
Queensland Health conducted an information session in July 2001 for
key stakeholders to provide them with an overview of the regulatory model
proposed by the PBT Report and guidance about the issues to be addressed
in submissions.
Queensland Health conducted a workshop with key stakeholders in
August 2002 to consider issues relating to the appropriateness and
workability of the regulatory model detailed in the PBT Report.
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Health Legislation Amendment Bill 2003
Focused consultation on the workability of draft provisions was
conducted in May 2003 with key stakeholders including the Dental Board
of Queensland, the Dental Technicians and Dental Prosthetists Registration
Board, the Australian Dental Association, the Association of Dental
Prosthetists, the Dental Technicians Association, the Dental and Oral
Health Therapists Association and the Dental Hygienists Association.
Amendment of health practitioner registration legislation restricted
core practices
Consultation was conducted with the health professions and the
community over a number of years in conjunction with the review of health
practitioner registration Acts. As part of the review, a Draft Policy Paper
on the Review of the Medical and Health Practitioners Registration Acts
was released in 1996, which canvassed views on policy proposals for the
regulation of practice. In accordance with National Competition Policy,
the Review of Restricted Core Practices of Health Practitioners (the
Restricted Core Practices Review) was established to examine statutory
practice restrictions.
During the course of the Restricted Core Practices Review, professional
associations, registration boards and other key stakeholders participated in
focus groups during development of the Public Benefit Test Report. The
resulting Public Benefit Test Report was released for consultation in
August 2001. Focused consultation on the workability of draft provisions
was conducted in May 2003 with all health practitioner registration boards
and the Queensland branches of relevant professional associations,
including the Australian Medical Association, the Australian Orthopaedic
Association, the Australian Physiotherapy Association, the Australian
Osteopathic Association, the Australian Podiatrists Association, the
Chiropractors Association of Australia and the Optometrists Association
Australia.
Amendment of Health Practitioners (Professional Standards) Act 1999
Health Practitioner Tribunals
The District Court, the Health Rights Commissioner and the health
practitioner registration boards were consulted about the proposed
amendments.
Amendment of Health Rights Commission Act 1991
The Health Rights Commissioner and the health practitioner registration
boards were consulted about the proposed amendments.
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Health Legislation Amendment Bill 2003
Amendment of Health Services Act 1991
The Department of Justice and the Attorney-General were consulted
about the proposed amendments.
Amendment of Nursing Act 1992
The QNC, Queensland Nurses Union of Employees, Australian and New
Zealand College of Mental Health Nurses Inc (Qld), Australian College of
Midwives Inc (Qld), Royal College of Nursing Australian (Qld Chapter),
Directors of Nursing Association Qld Inc, Health Rights Commissioner,
Queensland Police and the Department of Justice and Attorney-General
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 commencement of the provisions of the Act.
Generally, matters dealing with the amendments to the Dental
Practitioners Registration Act 2001 (other than certain matters relating to
the membership of the Dental Board of Queensland and a transitional
provision), the Dental Technicians and Dental Prosthetists Registration
Act 2001, the Dental Technicians and Dental Prosthetists Registration
Regulation 2001 and certain amendments to the Nursing Act 1992 will
commence upon proclamation. The remaining provisions will commence
upon assent.
PART 2--AMENDMENT OF CHIROPRACTORS
REGISTRATION ACT 2001
Clause 3 specifies that this part amends the Chiropractors Registration
Act 2001.
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Health Legislation Amendment Bill 2003
Clause 4 inserts a new division 1A in part 4 to establish the restricted
practice of spinal manipulation. The objective of this clause is to protect
health consumers by making it an offence for a person who is not a
registered chiropractor, medical practitioner, osteopath or physiotherapist
to perform spinal manipulation on a person in the course of providing a
health service. A maximum penalty of 1000 penalty units applies for a
contravention of this restriction.
The clause clarifies that a student of one of these professions may, in the
course of their training, perform spinal manipulation under the immediate
supervision of registered chiropractor, medical practitioner, osteopath or
physiotherapist.
The clause also defines the term `spinal manipulation' for the purposes
of this provision.
Clause 5 replaces the existing heading to part 10 of the Act to reflect the
nature of the amendments to that part, that is, the omission of the savings
provisions (see clause 6 below).
Clause 6 amends the Act by omitting part 10, division 3, consistent with
the objective of removing the broad restriction on the practice of
chiropractic.
PART 3--AMENDMENT OF DENTAL PRACTITIONERS
REGISTRATION ACT 2001
Clause 7 specifies that this part amends the Dental Practitioners
Registration Act 2001 ("the Act").
Explanation of key terms used in part 3
· "category" is defined in clause 31 to identify the different
occupational groups falling within the generic description of
`dental auxiliary'.
· "dental auxiliary" is defined in clause 31 to mean a person who is
qualified for dental auxiliary registration in 1 or more of the
following categories: dental therapy, dental hygiene or another
category prescribed by regulation. The primary difference
between the categories is the qualifications required to perform
the functions for each category of dental auxiliary.
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Health Legislation Amendment Bill 2003
· "dental auxiliary registrant" is defined in clause 31 to mean a
person registered under Part 3 of the Act as a dental auxiliary
registrant but does not include a provisional dental auxiliary
registrant.
· "general registrant" is currently defined to mean a person
registered, under Part 3 of the Act, as a general registrant, but
does not include a provisional general registrant (see Schedule 4
of the Act)
· "profession" is currently defined for the purposes of the Act to
mean the dental profession. However, in order to clarify that this
term includes dental auxiliaries, the term has been redefined to
include dental auxiliaries.
· "restricted title" is to be defined in Schedule 4 to mean either a
restricted general registrant title or a restricted dental auxiliary
registrant title. Both of these generic restricted titles are further
defined. A `restricted dental auxiliary registrant title' is defined to
mean a title that consists of or includes the words `dental
therapist', `dental hygienist' or words that refer to a category of
dental auxiliary prescribed by regulation. `Restricted general
registrant title' means a title that consists of or includes the words
`dentist', `dental practitioner', `dental surgeon' or `surgeon
dentist'.
Clause 8 amends section 15, which sets out the membership for the
Dental Board of Queensland ("the board") established by section 9 of the
Act. The membership requirements for the board are amended to provide
for dental auxiliary representation and, as a consequence, the minimum
size of the board (currently seven) is to be increased to nine to include
dental auxiliary members.
Clause 9 amends section 16, which sets out the minimum requirements
for the appointment of registrant members to the board. The amendment
provides for at least two dental auxiliary registrants to be nominated by
bodies representing the interests of dental auxiliaries, as is currently the
case for general registrants.
Clause 10 amends section 18, which sets out the process by which
professional bodies, educational institutions and community organisations
are to provide nominations for appointment to the Dental Board. The
amendments update references to those provisions of section 16 that are
amended by the Bill.
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Health Legislation Amendment Bill 2003
Clause 11 amends section 22, which clarifies when a member of the
board is taken to have vacated his or her office as a member of the board.
The amendment updates the section to include a reference to dental
auxiliary registrants.
Clause 12 inserts a new division 9A into Part 3 of the Act to provide for
the registration of dental auxiliaries.
Generally, the provisions allow for a person to apply to the board for
registration as a dental auxiliary in the category or categories of dental
auxiliary stated on his or her application. If the person is eligible for
registration as a dental auxiliary, the board may register the person as a
dental auxiliary in the category or categories of dental auxiliary to which
the application relates. The categories, defined in clause 31, include dental
therapy and dental hygiene. This approach is similar to that adopted for
specialist registration where the board, subject to eligibility requirements,
may register a person as a specialist registrant, in a prescribed specialty.
The provisions dealing with applications, eligibility, conditions and
decisions on registration of dental auxiliaries are closely modelled on the
general registration provisions. Accordingly, the sections dealing with
dental auxiliary registration, 133A 133C, mirror (with necessary
adaptations), the general registration provisions, sections 42 44 of the
Act. Likewise, other provisions dealing with dental auxiliary registration,
sections 133D, 133E and 133F mirror (with necessary adaptations) sections
51, 55 and 57 of the Act which deal with general registration.
It is important to note the following points in regard to dental auxiliary
registration:
· Section 133A provides that the approved application form for
registration as a dental auxiliary may require the disclosure of the
applicant's criminal history. The section further provides that the
Criminal Law (Rehabilitation of Offenders) Act 1986 does not
apply to the disclosure. This is consistent with the approach
taken for general registration (section 42 of the Act) and
generally consistent with other occupational regulation
legislation where, for the purpose of protecting public health and
safety, the integrity of registrants must be ensured. It should be
noted that any information obtained under this provision by the
board will be protected by the confidentiality obligations under
section 218 of the Act.
· Section 133F empowers the board to register an applicant for
dental auxiliary registration, subject to conditions the board
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Health Legislation Amendment Bill 2003
considers are necessary or desirable for the applicant to practise
competently and safely. If a registrant is registered in more than
one category, different conditions may be imposed for each
category. It will be an offence for a registrant to contravene a
condition, including a recency of practice condition, imposed on
his or her registration (see section 57 of the Act).
Section 133G `cross-applies' relevant provisions from part 3, divisions 1
- 7 for the purpose of applying for dental auxiliary registration and
registering a person as a dental auxiliary under this part. This cross -
application avoids unnecessary duplication of provisions that have general
application for all registrants. A similar approach was taken in the Act for
specialist registration (see section 113) and special purpose registration
(see sections 120, 127 and 131). The cross application under section
133G means that:
· the board's powers for dealing with applications for dental
auxiliary registration are the same as those for dealing with
applications for general registration;
· the matters that the board may have regard to in deciding whether
a dental auxiliary is fit to practice the profession are the same as
those used to determine whether a general registrant is fit to
practice the profession;
· the process and timeframes for deciding an application for dental
auxiliary registration are the same as those for deciding an
application for general registration and registering a general
registrant;
· an authorised person or the board has the power to provisionally
register an applicant for dental auxiliary registration;
· the board's powers for dealing with applications for renewal of
dental auxiliary registration, including recency of practice
requirements, are the same as those for dealing with applications
for renewal of general registration;
· the board's powers for dealing with applications for restoration
of dental auxiliary registration are the same as those for dealing
with applications for restoration of general registration;
· the decision to cancel and the process for cancelling a dental
auxiliary registration are the same as those for cancelling a
general registration; and
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Health Legislation Amendment Bill 2003
· avenues of appeal against decisions made by the board, for
example a decision to refuse to register an applicant for general
registration, apply equally to dental auxiliary registration.
Clause 13 extends the application of section 139 of the Act to dental
auxiliary registrants. Section 139 of the Act applies when a person's
registration (other than provisional registration) is affected under this Act
either by cancellation, the imposition of conditions or removal of those
conditions. In these circumstances the board must notify all Australian and
New Zealand regulatory authorities with which the board knows the person
is registered, of the event. This provision also gives the board discretion to
notify other entities, specified in subsection 120(3), of these events.
However, the board may only exercise this discretion if it believes that the
entity needs to know about the event and that notifying the entity will assist
in achieving the objectives of this Act.
Clause 14 inserts a new division 1A in Part 4. The purpose of division
1A is to restrict the practice of dentistry to specified persons and provides a
limited range of exemptions to that restriction. The term `dentistry' is
defined in section 139A(4). Section 139A restricts the practice of dentistry
to general registrants, provisional general registrants or medical
practitioners. A maximum penalty of 1000 penalty units applies for a
contravention of this restriction. Section 139A exempts the following from
this restriction:
· the emergency extraction of a tooth undertaken by an unqualified
person without the use of anaesthetic;
· first aid dental treatment,
Example
The replacement of a footballer's tooth in its socket after it has been dislodged
in a football match;
· the application of a dressing to a tooth, as a temporary measure,
under the direction of a general registrant, provisional general
registrant or medical practitioner. The term 'direction' is defined
in section 139A(4) to mean direction by phone or other
technology allowing reasonably contemporaneous and
continuous oral communication
Example
The application of a dressing to a tooth by a remote area nurse
where a dentist is not available. A dentist gives instructions by
phone to the remote area nurse applying the dressing;
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Health Legislation Amendment Bill 2003
· dentistry by a dental auxiliary, under the supervision of a
supervising registrant, performing the general or other authorised
functions of a dental auxiliary. The term `supervising registrant'
is separately defined in section 139A(4);
· dentistry by special purpose registrants or provisional special
purpose registrants; and
· dentistry by student dentists and student dental auxiliaries under
the supervision of a supervising registrant
The restriction does not apply to registered dental prosthetists providing
`dental prosthetic services' within the meaning of that term in the Dental
Technicians and Dental Prosthetists Registration Act 2001 as the definition
of `dentistry', incorporates dental prosthetic services (see paragraph (b),
definition of `dentistry' in clause 14).
Clause 15 inserts new 140, 140A 140B and 140C in Part 4 Division 1 of
the Act (Restricted titles and holding out). The provisions adapt the
existing provisions under division 1 as a consequence of the registration of
dental auxiliaries under the Act. The policy objective of the provisions is to
protect health consumers, in relation to the taking and use of restricted
titles, by enabling consumers to distinguish between the different types of
registrants and between registrants and other persons who are not
registered under the Act.
Section 140 replaces the existing section 140. Section 140(1) now
prohibits persons who are not dental auxiliary registrants or provisional
dental auxiliary registrants from taking or using a restricted dental auxiliary
registrant title. Clause 31 defines the term `restricted dental auxiliary
registrant title' to mean words that consist of or includes the words `dental
therapist', dental hygienist' or words that refer to a category of dental
auxiliary prescribed under a regulation.
The prohibition under section 140(1) extends to registrants (for example,
general registrants who are not also registered as dental auxiliaries), as well
as non-registrants. However, subsection 140(2) allows persons, who are not
dental auxiliary registrants, to use a restricted dental auxiliary registration
title in limited circumstances. This provision essentially allows a person
who has a business that employs, or otherwise engages, dental auxiliary
registrants to provide professional services to use a restricted dental
auxiliary registrant title in its business name. In addition, subsection 140(3)
allows a person undergoing study or training to obtain a qualification for
dental auxiliary registration in a category to, for example, wear a `student
dental therapist' badge.
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Health Legislation Amendment Bill 2003
Section 140(4) prohibits, for example, a business owner, using a
restricted dental auxiliary registrant title in relation to his or her employees
who are not registered as dental auxiliaries. Section 140(5) is a corollary to
section 140(3) and provides an exemption to the offence under subsection
140(4) for persons `holding out' dental auxiliary students in limited
circumstances.
Section 140(6) covers other circumstances where a person may mislead
health consumers into believing the person is a registered dental auxiliary
by using words or symbols to indicate that the person is a dental auxiliary
for a category. The provision also covers circumstances where a person
claims to be authorised or qualified to practise the profession as a dental
auxiliary for a category. Section 140(7) is a corollary to section 140(6) and
applies, for example, to an owner or manager of a business in relation to his
or her employees or staff.
Section 140(8) provides that the section does not apply in relation to
special purpose or provisional special purpose registrants. Section 140C
deals with these registrants.
Section 140A is a corollary to section 140 as it applies to persons and
registrants who are not general registrants or provisional general
registrants.
Section 140B is a corollary to section 140 as it applies to dental auxiliary
registrants in a category of dental auxiliary registration. Generally, the
provision prohibits a dental auxiliary registered in one category from
taking or using a restricted dental auxiliary registrant title for another
category unless the person is registered in that other category. The
exemptions to this prohibition are similar to those under section 140, which
allow:
· business persons who employ, or otherwise engage, dental
auxiliary registrants of a particular category to provide
professional services to use a restricted dental auxiliary registrant
title relating to the category in its business name; and,
· student auxiliaries in a category to take or use the restricted
dental auxiliary registrant title for the category.
Section 140C is a corollary to section 140 as it applies to special purpose
and provisional special purpose registrants.
Clause 16 amends subsection 141(3) of the Act to correct a drafting
error. The subsection currently provides a penalty which does not relate to
an offence.
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Health Legislation Amendment Bill 2003
Clause 17 amends section 144 of the Act by prohibiting persons holding
out other persons as general registrants, dental auxiliary registrants or
dental auxiliary registrants for a category.
Clause 18 replaces sections 145 and 146, with a new section 145 to
make it an offence for a registrant to:
· claim or hold out to be, or to be eligible to be, another type of
registrant under this Act; or
· allow himself or herself to be held out as being another type of
registrant; or
· claim or hold out to be eligible to be another type of registrant.
Example
(a) A dental auxiliary registered under the Act only in the category of dental
therapy can not claim or hold out to be registered as a dental auxiliary in the
category of dental hygiene.
(b) A general registrant who is not registered under the Act as a dental auxiliary in
the category of dental therapy can not claim or hold out to be registered as a
dental auxiliary in the category of dental therapy.
Clause 19 amends section 153 of the Act to update section references in
the section as a result of the amendments brought about by clause 14.
Clause 20 amends section 154 of the Act to similarly update section
references in the section as a result of the amendments brought about by
clause 14.
Clause 21 extends the application of section 201 to dental auxiliary
registration. Section 201 sets out the powers available to the District Court
to deal with an appeal against a decision made under this Act.
Clause 22 extends the application of section 215 to dental auxiliary
registrants. Section 215 requires the board to maintain a current register
about registrants, which must contain, at a minimum, the information
specified in subsection 215(3).
Clause 23 amends section 223 of the Act to update section references in
the section as a result of the amendments brought about by clause 14.
Clause 24 extends the application of section 230 to dental auxiliary
registrants. Section 230 provides deemed general or specialist registration
under this Act to interstate registered practitioners who are engaged to
provide dental, dental specialist or dental auxiliary services to persons
participating in, or preparing for, declared sporting, cultural or other events
in Queensland.
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Health Legislation Amendment Bill 2003
Clause 25 replaces the heading for division 2 of part 10 of the Act to
reflect the nature of the amendments to that part, that is, the omission of the
savings provisions (see clause 26 below).
Clause 26 omits sections 262 and 263. Section 262 is to be omitted as
the terms defined under this section become redundant upon the omission
of sections 263 and 264. Section 263 is to be omitted as the prohibited
practices in this section have been updated and relocated to section 139A
(see clause 14).
Clause 27 omits section 264. Section 264 of the Act provides the head of
power for the regulations to prescribe the designation and duties of dental
auxiliaries. As the term `dental auxiliary' is defined in the Bill and the Bill
makes provision for the registration of dental auxiliaries, the prescription
of the designation of dental auxiliaries in a regulation is now redundant.
The duties of dental auxiliaries will no longer be a matter for prescription
by regulation. This will bring dental auxiliaries in line with other
occupational groups who do not have their duties prescribed by regulation.
Clause 28 inserts a new division 4 in part 10 comprised of sections 267
and 268. Section 267 is a transitional provision allowing the Minister to
immediately appoint unregistered dental auxiliaries to the board as
registrant members (see clauses 8 and 9). The provision deems the
appointees as registrant members for the purposes of taking and holding
office as a registrant member of the board pending their registration as
dental auxiliaries under the Act. Section 267(3) and (4) provide that where
a deemed registrant does not become registered as a dental auxiliary within
6 months of the commencement of the provisions dealing with dental
auxiliary registration (see clause 12), the deemed registrant is taken to have
vacated his or her membership of the board.
Clause 29 inserts a new section 268 into the Act. Section 268 provides
for the current practice restriction under section 263 of the Dental
Practitioners Registration Act 2001 to be applied to dental auxiliary
registrants until such time as the new practice restriction under clause 14
comes into effect. The new section 139A, among other matters, sets out
the circumstances under which dental auxiliary registrants are exempt from
the restriction on the practice of dentistry. The transitional arrangements
under section 268 will ensure that there is sufficient `lead in time' for
dental auxiliaries to be registered by the board, prior to the new practice
restriction coming into effect.
Clause 30 amends Schedule 1, which lists, for information purposes,
those decisions made under this Act for which information notices must be
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Health Legislation Amendment Bill 2003
given and against which an appeal may be made to the District Court under
Part 6 of the Act.
Clause 31 amends the dictionary in Schedule 4 of the Act. This clause:
· inserts a number of new definitions for those terms used in
relation to the registration of dental auxiliaries;
· inserts a definition for the term "restricted dental auxiliary
registrant title" and "restricted general registrant title". As a
consequence of these amendments it was necessary to omit the
definition of "restricted title" from the dictionary;
· replaces the definitions "professional service" to include a dental
auxiliary service and the definition "renewable registration" to
include dental auxiliary registration; and
· amends the terms "certificate of registration", "information
notice" and "review period" to encompass dental auxiliary
registration.
PART 4--AMENDMENT OF DENTAL TECHNICIANS
AND DENTAL PROSTHETISTS REGISTRATION ACT
2001
Clause 32 specifies that this part amends the Dental Technicians and
Dental Prosthetists Registration Act 2001.
Clause 33 inserts a new part 4 division 1A (sections 124A 124B) into
the Act to restrict the provision of dental prosthetic services to certain
persons. The term `dental prosthetic service' is defined in Clause 36.
Section 124A(1) restricts the provision of dental prosthetic services to
dental prosthetists, dentists or medical practitioners. A maximum penalty
of 1000 penalty units applies for a contravention of this restriction.
Section 124A(2) restricts the employment of persons for the purposes of
providing dental prosthetic services unless the employee is a dental
prosthetist, dentist or medical practitioner. A maximum penalty of 100
penalty units applies for a contravention of this restriction.
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Health Legislation Amendment Bill 2003
Section 124A(3) exempts student dental prosthetists, under the
immediate supervision of a dental prosthetist or dentist, from the restriction
on the provision of dental prosthetic services.
Section 124B(1) restricts the provision of partial artificial dentures by
dental prosthetists unless the dental prosthetist has:
· received from a dentist or a medical practitioner a certificate as to
the oral health of the patient; or
· successfully completed an approved dental prosthetic course or
an approved oral pathology course.
A maximum penalty of 100 penalty units applies for a contravention of
this restriction.
Section 124B(2) defines the terms `approved dental prosthetic course'
and `approved oral pathology course' as used in 124B(1).
Clause 34 replaces the existing heading to part 10 of the Act to reflect
the nature of the amendments to that part, that is, the omission of the
savings provisions (see clause 35 below).
Clause 35 repeals sections 240 244 of the Act. Sections 240 - 244 are
saved provisions under the Act which are now incorporated into the body
of the Act or have been made redundant by provisions of this Bill.
Section 240 of the Act defines certain terms used in the savings
provisions of the Act. Some of the definitions in this saved provision have
been incorporated into the Act whilst other terms have been omitted. In line
with the policy objective of removing all current restrictions on the
provision of dental technical work, the definition of `dental technical work'
has been omitted from the Act. The term `fitting', as it is used to describe a
dental prosthetic process, has likewise been omitted on the basis that it has
an accepted meaning within the industry and need not be further defined.
Section 241 which exempts medical practitioners and dentists from the
restriction on the provision of dental prosthetic services has been omitted
as the exemption is now contained within section 124A of the Act.
Section 242 requires the Dental Technicians and Dental Prosthetists
Registration Board ("the board") to enter, in the register kept by the board,
details of the successful completion of any approved course by a dental
prosthetist. This provision is redundant given the board's present
obligations, under section 197 of the Act, with regard to what matters need
to be recorded in the register. Accordingly, section 242 is to be omitted.
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Health Legislation Amendment Bill 2003
Section 243 specifies the practise restrictions for the performance of
dental technical work and the provision of dental prosthetic services. The
restriction on the provision of dental prosthetic services has been
incorporated into the Bill (see Clause 27, section 124A(1) discussed
above). The restriction on the performance of dental technical work is to be
removed from the Act. As this Bill currently has otherwise dealt with these
restrictions, section 243 is to be omitted.
Similar to section 243, section 244 imposes restrictions on the
performance of dental technical work and restricts the provision of partial
dentures by dental prosthetists. As both of these matters have been
addressed in the Bill, section 244 is to be omitted.
Clause 36 amends Schedule 4 of the Act by inserting definitions of
`artificial denture', `dental prosthetic service', `dentist' and `healthy
mouth'.
PART 5--AMENDMENT OF HEALTH ACT 1937
Clauses 37 - 40 amend the Health Act 1937 by empowering the Chief
Executive of Health, rather than the Governor in Council, to appoint an
officer under section 27. Consequential amendments are also made to the
definition of `officer' in section 5 of the Act, and to a reference to officers
appointed under section 27 which is contained in section 27B.
PART 6--AMENDMENT OF HEALTH PRACTITIONERS
(PROFESSIONAL STANDARDS) ACT 1999
Clause 41 specifies that this part amends the Health Practitioners
(Professional Standards) Act 1999.
Clause 42 inserts a new section 13A into division 3 of Part 2 of the Act.
Section 13A will define certain terms used in that division by reference to
the meaning given to those terms under the Dental Practitioners
Registration Act 2001.
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Health Legislation Amendment Bill 2003
Clause 43 amends section 18 of the Act to specify that a professional
conduct review panel established to hear a disciplinary matter relating to a
dental auxiliary registrant, must consist of 2 members who are dental
auxiliaries in the same category as the dental auxiliary appearing before the
hearing. For example, a person may be registered in the categories of
dental hygiene as well as dental therapy. If the disciplinary proceedings
relate to an act or omission that occurred when the person was performing
the normal functions of a dental hygienist, the two members of the
professional panel of assessors who are to sit on the panel must be dental
auxiliaries in the category of dental hygiene.
This is a corollary to section 18(1) of the Act as it applies to registrants
who are registered in more than one profession as a respondent in a
disciplinary matter.
Clause 44 amends section 39 of the Act by providing for a dental
auxiliary professional panel of assessors.
Clause 45 amends section 245 of the Act to specify that a decision of the
Health Practitioners Tribunal is to take effect when it is delivered by the
Tribunal, or as otherwise ordered. However, the clause specifies an
alternate timeframe for the decision to take effect if the registrant to whom
a decision relates, or their representative, is not present when the Tribunal
gives the decision.
Clause 46 similarly amends the Act in the case of suspended decision.
Clause 47 makes a consequential amendment to section 383 of the Act,
consistent with the amendment to section 85 of the Health Rights
Commission Act 1991.
Clause 48 amends the Dictionary of the Act to remove the reference to
`school' dental therapist and replace it with the term `dental therapist' in
line with the policy objective of removing the employment restriction on
dental therapists to the public sector.
PART 7--AMENDMENT OF HEALTH RIGHTS
COMMISSION ACT 1991
Clause 49 specifies that this part amends the Health Rights Commission
Act 1991.
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Health Legislation Amendment Bill 2003
Clause 50 amends section 79 of the Act to clarify the Health Rights
Commissioner's power to decide not to take action on a health service
complaint that has been conciliated. For example, the Commissioner may
decide to take no further action on a health service complaint where no
agreement was reached in conciliation or where the Commissioner ended
conciliation.
Clause 51 amends section 85 of the Act to clarify that the Health Rights
Commissioner may refer a public interest issue to a registration board, or
another entity in the case of a non-registered provider. The objective of
the clause is to enable the referral of a public interest issue before, during
or at the end of conciliation.
The clause also clarifies that conciliation of the health service complaint
is suspended pending the outcome of the referral to the board or other
entity. However, conciliation may continue in the circumstances specified.
Clause 52 amends section 92 of the Act to clarify that a conciliator may
discuss information gained during conciliation with another conciliator or
the Health Rights Commissioner.
Clause 53 inserts a new section 127A to clarify that the Health Rights
Commissioner may decide to conciliate a health service complaint that has
been investigated.
PART 8--AMENDMENT OF HEALTH SERVICES ACT
1991
Clause 54 specifies that this part amends the Health Services Act 1991.
Clause 55 amends section 10, which sets out the membership
requirements for District Health Councils. The amendment provides for
councils to consist of not more than 10 members appointed by Governor in
Council.
Clause 56 amends section 14, which sets out the circumstances in which
a member of a council is taken to have vacated office. The amendment
clarifies that if a member resigns from office, the resignation must be made
by way of a signed notice given to the Minister.
Clause 57 inserts new sections 14A and 14B. Section 14A specifies
when a notice of resignation tendered to the Minister by a member of a
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Health Legislation Amendment Bill 2003
council takes effect. Section 14B clarifies that a vacancy in the
membership of a council does not affect the performance of a council's
functions or the exercise of its powers.
Clause 58 amends the heading of part 9.
Clause 59 inserts a new division 4 in part 9, comprised of new section
81. Section 81 removes any doubt that the performance of a function or the
exercise of a power was valid, should the membership of a council have
been less than the minimum number required under section 10 at the time
the function was carried out or the power exercised.
PART 9--AMENDMENT OF NURSING ACT 1992
Clause 60 specifies that this part amends the Nursing Act 1992.
Clause 61 amends section 4 by omitting the definition for the terms
`code of conduct' and `committee' and inserting definitions for the
following terms: approved code of practice, convicted, corresponding law,
criminal history, disciplinary action, disciplinary matter, disciplinary
proceedings, entity acting on behalf of user, foreign regulatory authority,
ground for disciplinary action, interstate regulatory authority, Nursing
Tribunal and tribunal.
Clause 62 amends section 7, which outlines the functions of the
Queensland Nursing Council (QNC). Amendments to section 7 are
necessary as a consequence of the amendments made to the Act about the
grounds for disciplinary action and the Council's ability to provide
information to other nursing regulatory authorities.
Clause 63 amends section 10, which sets out the head of power in the
Act to make by-laws. Amendments to section 10 are necessary as a
consequence of the amendments made to the Act about the grounds for
disciplinary action and the change of title for the Professional Conduct
Committee to the Nursing Tribunal. It should be noted that clause 61
provides for the term `tribunal' to be defined as meaning the Nursing
Tribunal and clause 77 provides for the Professional Conduct Committee
to continue in existence under the new title of Nursing Tribunal.
Clauses 64 and 65 amend sections 43 and 47 respectively, to accord with
current drafting practice.
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Health Legislation Amendment Bill 2003
Clause 66 inserts new subsections (3A), (3B), (3C) and (3D) in section
54 to enable the QNC to have regard to a person's criminal history when
deciding whether a person is competent and fit to practise as either a
registered nurse or enrolled nurse. The QNC will be able to ask for, and be
provided with, a written report about an applicant's criminal history by the
commissioner of the police service. The Criminal Law (Rehabilitation of
Offenders) Act 1986 will not apply to the asking for, or giving of this
report. The term `criminal history' is defined for the purposes of the Act so
that information about, and consideration of, a person's criminal history
will encompass all convictions and charges, regardless of when they may
have occurred (see clause 61).
Clause 67 inserts new subsections (2) and (3) in section 55, which sets
out the application requirements for registration or enrolment as a nurse.
Subsection (2) enables the QNC to require the disclosure of a person's
criminal history as part of the application process. Subsection (3) specifies
that the Criminal Law (Rehabilitation of Offenders) Act 1986 does not
apply to the disclosure.
Clause 68 inserts new provisions in section 64, which provides for the
temporary registration of appropriately qualified interstate or overseas
nurses (eg to enable a person to undertake post graduate study in nursing).
A new criterion has been inserted in subsection 64(1)(c) to enable the QNC
to have regard to a person's criminal history when deciding whether the
person is a suitable person to be temporarily registered (see clause 69).
Subsection (1A) enables the QNC to require the disclosure of a person's
criminal history. Subsection (1B) specifies that the Criminal Law
(Rehabilitation of Offenders) Act 1986 does not apply to the disclosure.
Clause 69 inserts a new section 64A, which sets out the matters the QNC
may have regard to when deciding a person is a suitable person to be
temporarily registered as a nurse - including the person's criminal history.
This section also enables the QNC to ask for, and be provided with, a
written report about a person's criminal history by the commissioner of the
police service. The Criminal Law (Rehabilitation of Offenders) Act 1986
will not apply to the asking for, or giving of this report.
Clause 70 amends section 65 to replace references to the Professional
Conduct Committee (and committee) with tribunal.
Clause 71 amends section 66, which enables the QNC to require an
applicant for registration or enrolment to be referred to the Health
Assessment Advisory Panel for assessment and to impose conditions on
the person's registration or enrolment if recommended by the Panel. New
subsections (2A) and (7) require the QNC to give the Health Rights
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Health Legislation Amendment Bill 2003
Commissioner written notice of the following: a referral to the Panel; any
recommendation made by the Panel; and the action to be taken by the QNC
in response to the recommendation.
Clause 71 also inserts a new subsection (2B), which enables the QNC, if
considered relevant, to disclose an applicant's criminal history to the panel.
For example, an applicant may have a series of charges and convictions that
indicate a pattern of behaviour that affects the applicant's ability to practise
nursing safely and competently. The Criminal Law (Rehabilitation of
Offenders) Act 1986 will not apply to the disclosure.
Clause 72 inserts new subsection (3A) in section 67 to require the QNC
to notify the Health Rights Commissioner, in writing, where the council
has utilised its powers to immediately suspend the registration or
enrolment of a nurse.
Clause 72 also amends section 67 as a consequence of the changes made
to the Act about the grounds for disciplinary action.
Clause 73 inserts a new subsection (3) in section 68, which sets out the
means by which the executive officer of the QNC can immediately suspend
the registration or enrolment of a nurse. Under this subsection, the
executive officer must give the nurse and the Health Rights Commissioner
written notice of the suspension (including the reasons for the suspension),
if the executive officer suspends the nurse's registration or enrolment.
Clause 74 amends subsection (1) and replaces subsection (4) in section
77 to enable the QNC to have regard to a person's criminal history when
deciding whether the person is a suitable person to be authorised to practise
midwifery or authorised to practise nursing.
In relation to the authorisations that may be granted under section 77, it
should be noted that access to a person's criminal history will only be
required in relation to a person seeking authorisation as a midwife under
section 77(1) or a person seeking authorisation to practise nursing under
section 77(4) who is not a registered nurse. Authorisations granted under
section 77(2) to practise mental health nursing, and section 77(3) to
practise an area of nursing, are only granted to persons who are also
registered nurses.
Clause 75 inserts a new section 77A which sets out matters the QNC
may have regard to when deciding a person is a suitable person to be
authorised to practise midwifery or nursing. This section also enables the
QNC to ask the applicant for details of their criminal history and to be
provided with a written report about an applicant's criminal history by the
commissioner of the police service. Subsection (5) specifies that the
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Health Legislation Amendment Bill 2003
Criminal Law (Rehabilitation of Offenders) Act 1986 will not apply to the
disclosure.
Clause 76 amends the division heading for part 5, division 1 to replace
the reference to the Professional Conduct Committee with Nursing
Tribunal.
Clause 77 replaces section 84. The new section 84 provides for the
Professional Conduct Committee to continue in existence under the title of
Nursing Tribunal.
Clause 78 amends section 85, which sets out the functions of the
Professional Conduct Committee. The amendments are necessary as a
consequence of the amendments made to the Act about the grounds for
disciplinary action and to replace references to the Professional Conduct
Committee (and committee) with tribunal.
Clause 79 replaces the heading for part 5, division 2.
Clause 80 omits sections 99 and 100, that provide for the making of a
code of conduct by the QNC and for action to be taken against a nurse who
contravenes the code of conduct. The grounds for disciplinary action
under the Nursing Act are considered to be too narrow when compared
with the grounds applicable to other registered health practitioners in
Queensland and nurses in other jurisdictions. In order to achieve greater
consistency, the basis upon which disciplinary action may be taken has
been revised. The grounds for disciplinary action have been expanded to
not only take account of behaviour that may constitute unsatisfactory
professional conduct but an impairment (such as substance abuse or
dependence) which may affect the ability of a nurse or midwife to practise
nursing.
Clause 81 inserts new sections 101A, 101B and 101C. Section 101A
enables the QNC to develop, or adopt another entity's, code of practice to
provide guidance to nurses, midwives and other persons authorised to
practise nursing as to appropriate professional conduct or nursing practice.
This provision also specifies that before making, amending or adopting a
code the council must consult with an appropriately wide range of
prescribed entities. This provision also specifies that a code of practice
must be approved by the Minister by gazette notice and must be regularly
reviewed by the board. The provision is cast in a broad way to enable the
QNC to take a range of approaches to the content of codes of practice. For
example, a code may be issued in respect of a single topic like the use of a
particular diagnostic procedure or it may address broader issues of
professional conduct and nursing practice. It would be possible for the
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council to issue a number of codes of practice using the powers under this
provision.
Section 101B requires any approved code to be available for public
inspection and also imposes duties on the council to ensure that nurses,
midwives and other persons authorised to practise nursing are notified of
the approval of the code and any changes to the code.
Section 101C clarifies that a code of practice approved under this part is
admissible as evidence in disciplinary proceedings brought against a nurse,
midwife or other person authorised to practise nursing under the Act.
Clause 82 replaces the heading for part 5, division 3 to reflect the
changes made to the Act about the grounds for disciplinary action.
Clause 83 omits section 102 and replaces it with new sections 102 to
102AC. As a consequence of the changes made to the Act about the
grounds for disciplinary action, it has also been necessary to amend those
provisions of the Act about the making of complaints. The amendments
provide for complaints to be made about conduct or practice or another
matter that appears to provide grounds for disciplinary action or a matter
for which a complaint could be made under section 57 of the Health Rights
Commission Act 1991. Currently, complaints may only be made by
aggrieved persons about the conduct of a nurse.
The new section 102 specifies that any entity may make a complaint
regarding a nurse, midwife or a person authorised to practise nursing.
Section 36 of the Acts Interpretation Act 1954 defines "entity" to include a
person and an unincorporated body. "Person" is defined to include an
individual and a corporation.
Section 102AA specifies that a complaint may be made to the QNC
about the conduct, practice or another matter that appears to provide a
ground for disciplinary action (see clause 90 which inserts new section
104A). This includes, for example, unsatisfactory professional conduct and
impairment (as defined in section 104A), non-compliance with the Nursing
Act or a conviction for an indictable offence. This section also specifies
that a complaint may be made about a matter provided for under section 57
of the Health Rights Commission Act 1991. The grounds for complaint to
the council and the commission will effectively be the same.
Section 102AB requires that a complaint be made in writing and contain
the particulars of the allegation.
Section 102AC requires a complainant to give their name, address and
other identifying information required by the QNC. However, the QNC
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Health Legislation Amendment Bill 2003
may accept a complaint that does not meet these requirements, if the
council considers it is in the public interest to do so. Under these
circumstances the QNC must notify, in writing, the person who is the
subject of the complaint, of its reasons for accepting the complaint.
Clauses 84 to 89 amend sections 102A, 102C, 102D, 103, 103A and 104
as a consequence of the amendments made to the Act about the grounds for
disciplinary action and to replace the references to the Professional
Conduct Committee (and committee) with tribunal.
Clause 84 also amends subsections 102A(3) and (4) as a result of the
amendments made to the Act about who may make a complaint.
Clause 90 inserts a new division 3A in part 5 comprised of new section
104A. This section specifies each of the grounds for taking disciplinary
action against a nurse, midwife or other person authorised to practise
nursing. It should be noted that only one ground needs to be met for
disciplinary action to be taken, but proceedings may be taken on the basis
of more than one ground. The grounds for disciplinary action include:
· unsatisfactory professional conduct, which is defined in section
104A, to include professional conduct that is of a lesser standard
than that which might reasonably be expected by the public or
professional peers. This new definition broadens the
circumstances under which disciplinary action may be taken.
Professional conduct which demonstrates a lack of adequate
knowledge, skills, judgement or care, or which demonstrates
incompetence is, explicitly, "unsatisfactory professional
conduct" for the purposes of this Act.
· if a nurse, midwife or person authorised to practise nursing is
impaired, the impairment is taken to be a ground for disciplinary
action against the registrant. It is not necessary for the
impairment to have resulted in misconduct in a professional
context in order to provide grounds for action. This is because
some impairments, for example drug dependency, have the
potential to impact on a person's professional conduct.
· contravention of a provision of the Nursing Act, including a
failure to comply with conditions imposed on a person's
registration, enrolment or authorisation.
· where a person does not meet, or no longer meets, the
requirements to be a nurse, midwife or other person authorised to
practise nursing.
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Health Legislation Amendment Bill 2003
· where a nurse, midwife or person authorised to practise nursing
has been convicted of an indictable offence.
Clause 91 replaces the heading for part 5, division 4.
Clause 92 amends section 116 to reflect the changes made to the Act
about the grounds for disciplinary action. In addition, this clause replaces
subsection 116(4) to enable the Nursing Tribunal to make an order for
costs it considers appropriate to a maximum amount equivalent to 135
penalty units (ie approximately $10,000).
Clause 93 amends section 118A as a consequence of the change of title
of the Professional Conduct Committee to Nursing Tribunal and to include
a reference to section 85(5) of the Health Rights Commission Act 1991.
Clause 94 inserts a new division 6 in part 5 comprised of new section
121A. This section makes it an offence for a person to aid, abet, counsel,
procure or induce (including by threats or promises) a nurse, midwife or
person authorised to practise nursing to engage in conduct which could
result in them being disciplined under the Nursing Act. This offence is
targeted at nurses, midwives and persons authorised to practise nursing as
well as other persons who may be in a position to influence, interfere or
compromise the professional independence or clinical activities of a nurse,
midwife or other person. Having regard to the potential for the behaviour
targeted by this provision to seriously compromise public health and
safety, this offence is punishable by a maximum penalty of 1000 penalty
units.
Clause 95 amends section 129, which sets out the entry and search
powers of inspectors to collect evidence in relation to matters considered to
be offences against the Act, as a consequence of the changes made to the
Act about the grounds for disciplinary action.
Clauses 96 to 98 amend sections 133 and 136 and the heading of part 7,
division 3 to reflect the changes made to the Act about the grounds for
disciplinary action.
Clauses 99 to 101 amend sections 137 to 139 to replace the references to
the Professional Conduct Committee (the committee) with the Nursing
Tribunal (the tribunal).
Clause 99 also replaces subsection 137(10) to enable the District Court
to order costs on appeals, as considered appropriate.
In addition, clause 101 inserts a new subsection (2A) in section 139.
This provision creates an exception to the duty of confidentiality to enable
information to be provided to a foreign regulatory authority (which is
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defined in clause 61), if the information is necessary for the authority to
perform its functions. This would include, for example, where the QNC has
information that a nurse's health or competency interferes with his or her
ability to carry out the functions of a nurse.
Clause 102 inserts new sections 140A to 140C. Section 140A requires a
nurse, midwife or person authorised to practise nursing who has been
convicted of an indictable offence or an offence against a corresponding
law (as defined in clause 61) to give the council notice of the details of the
conviction within a specified period. By virtue of section 36 of the Acts
Interpretation Act 1954, this provision also requires notification of
convictions of offences in other jurisdictions, which would be indictable
offences in Queensland.
Section 140B requires a nurse, midwife or person authorised to practise
nursing who is a party to certain proceedings in court to notify the council
of the judgement in relation to those proceedings or any settlement of the
proceedings (or part of the proceedings) within a specified period. So far as
proceedings in a Queensland Court are concerned, the provision needs to
be read in conjunction with the Uniform Civil Procedure Rules 1999 which
specify when proceedings start.
Section 140C requires a nurse, midwife or person authorised to practise
nursing who is subject to disciplinary or other action under a corresponding
law to notify the council of the details within the specified timeframe.
Clause 103 inserts a new division 4 in part 9 comprised of section 154 to
specify that the renaming of the Professional Conduct Committee as the
Nursing Tribunal does not affect anything done by or in relation to the
committee before the name change was given effect.
PART 10--AMENDMENT OF OPTOMETRISTS
REGISTRATION ACT 2001
Clause 104 specifies that this part amends the Optometrists Registration
Act 2001.
Clause 105 inserts a new division 1A in part 4 to establish the restricted
practice of prescribing an optical appliance. The objective of this clause is
to protect health consumers by making it an offence for a person who is not
a registered medical practitioner or optometrist to prescribe an optical
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Health Legislation Amendment Bill 2003
appliance. A maximum penalty of 1000 penalty units applies for a
contravention of this restriction.
The clause also defines the term `optical appliance' for the purposes of
this provision.
Clause 106 replaces the existing heading to part 10 of the Act to reflect
the nature of the amendments to that part, that is, the omission of the
savings provisions (see clause 107 below).
Clause 107 amends the Act by omitting part 10, division 3, consistent
with the objective of removing the broad restriction on the practice of
optometry.
PART 11--AMENDMENT OF PHYSIOTHERAPISTS
REGISTRATION ACT 2001
Clause 108 specifies that this part amends the Physiotherapists
Registration Act 2001.
Clause 109 replaces the existing heading to part 10 of the Act to reflect
the nature of the amendments to that part, that is, the omission of the
savings provisions (see clause 110 below).
Clause 110 amends the Act by omitting part 10, division 3, consistent
with the objective of removing the broad restriction on the practice of
physiotherapy.
PART 12--AMENDMENT OF PODIATRISTS
REGISTRATION ACT 2001
Clause 111 specifies that this part amends the Podiatrists Registration
Act 2001.
Clause 112 replaces the existing heading to part 10 of the Act to reflect
the nature of the amendments to that part, that is, the omission of the
savings provisions (see clause 113 below).
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Health Legislation Amendment Bill 2003
Clause 113 amends the Act by omitting part 10, division 3, consistent
with the objective of removing the broad restriction on the practice of
podiatry.
PART 13--AMENDMENT OF ACT AND REGULATIONS
Clause 114 provides for the amendment of the Act and Regulations
mentioned in the schedule. The clause also clarifies the powers of the
Governor in Council to further amend the Regulation or repeal it.
SCHEDULE
The amendments to the Nursing Act 1992 listed in the schedule replace
the references to the Professional Conduct Committee (the committee)
with the Nursing Tribunal (the tribunal).
The amendments to Dental Practitioners Registration Regulation 2001
amends the Regulation by omitting the provisions which restrict the
employment of dental therapists to the public sector, and which restrict
dentists from employing more than one dental hygienist at the same time
without the approval of the Dental Board of Queensland.
The amendments to the Dental Technicians and Dental Prosthetists
Registration Regulation 2001 updates the section references to the head of
power for the prescription of approved dental prosthetics course and
approved oral pathology course.
© State of Queensland 2003