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Health Practitioners Legislation Amendment Bill 2001
HEALTH PRACTITIONERS
LEGISLATION AMENDMENT BILL 2001
EXPLANATORY NOTES
GENERAL OUTLINE
Policy Objectives of the Bill
The principal policy objective of the Bill is to make consequential and
routine amendments to legislation administered by the Minister for Health
relating to the regulation of health practitioners.
Reasons why the legislation is necessary
The Bill is necessary to finalise the development of the new legislative
scheme for registered health practitioners. The scheme, which has been
introduced in two stages, comprises the 13 health practitioner registration
Bills1 (introduced in cognate with this Bill) and the Health Practitioners
(Professional Standards) Act 1999 and the Health Practitioner Registration
Boards (Administration) Act 1999.
The need for the routine amendments was identified during drafting of
the 13 health practitioner registration Bills and through feedback from those
involved in the administration of the Health Practitioners (Professional
Standards) Act.
1 In this document-- "13 health practitioner registration Bills" means:
Chiropractors Registration Bill 2001, Dental Practitioners Registration Bill
2001, Dental Technicians and Dental Prosthetists Registration Bill 2001,
Medical Practitioners Registration Bill 2001, Medical Radiation Technologists
Registration Bill 2001, Occupational Therapists Registration Bill 2001,
Optometrists Registration Bill 2001, Osteopaths Registration Bill 2001,
Pharmacists Registration Bill 2001, Physiotherapists Registration Bill 2001,
Podiatrists Registration Bill 2001, Psychologists Registration Bill 2001, Speech
Pathologists Registration Bill 2001.
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Health Practitioners Legislation Amendment Bill 2001
Means of achieving objectives
The Bill repeals the Medical Act and Other Acts (Administration) Act
1 9 6 6 and amends the Health Practitioner Registration Boards
(Administration) Act 1999, the Health Practitioners (Professional
Standards) Act 1999 and the Indy Car Grand Prix Act 1990.
Overall, the proposed amendments are--
· largely consequential to the two stage process for the introduction
of health practitioner legislation (ie. the amendments could not
have been made at the time the Health Practitioners (Professional
Standards) Bill and the Health Practitioner Registration Boards
(Administration) Bill were introduced)
· predominantly technical, machinery or drafting in nature.
Also, a substantial policy issue raised by the amendments is the insertion
of a duty, under the Health Practitioners (Professional Standards) Act, for
registrants to report to their board regarding convictions for indictable
offences and convictions under the registration Acts of other states or
countries; cancellations, suspensions or conditions imposed under
registration Acts of other states or countries; and judgements or settlement
of proceedings involving negligence. This duty will effectively increase the
degree of public protection afforded by the legislation.
The other amendments to the Health Practitioners (Professional
Standards) Act include:
· a reserve power for the Minister to appoint members of a
professional panel of assessors under limited circumstances
· clarification that where a registrant holds general registration and
specialist registration or registration as a dental technician and
registration as a dental prosthetist, action may be taken in respect
of one or both types of registration. However, where the
registrant's general registration or registration as a dental
technician is suspended or cancelled, the registrant's specialist
registration or registration as dental prosthetist is affected in the
same way
· a power for a board to disclose confidential information to a
foreign regulatory authority where this is necessary for that
authority to perform its functions (ie protection of the public in
another state or country)
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Health Practitioners Legislation Amendment Bill 2001
· a power for a panel to delegate the undertaking of a pre-hearing
conference to a panel member (currently the conference is
undertaken by the entire panel or responsibility for the conference
is delegated to the secretary)
· insertion of various evidentiary provisions (including recognition
of certain appointments and signatures) to facilitate the conduct of
proceedings under the Act
· insertion of a transitional provision to ensure that conditions
imposed under the repealed provisions of the Medical Act 1939
are able to be reviewed under the Health Practitioners
(Professional Standards) Act 1999.
Estimated cost for Government implementation
The Bill has no cost implications for Government.
Consistency with Fundamental Legislative Principles
With the exception of the issue discussed below, the Bill is consistent
with fundamental legislative principles.
Rights and liberties of individuals
Clause 26 inserts sections 385A-C into the Act. These sections make it
an offence for a registrant to fail to notify the board within 30 days of a
conviction of an indictable offence or an offence against a corresponding
law or the imposition of a disciplinary or other relevant action under a
corresponding law. Also, a registrant who is a respondent to proceedings in
court regarding negligence must not fail to notify the board within 30 days
of the judgement in relation to those proceedings or any settlement of the
proceedings.
It is arguable that a requirement upon a registrant to notify the board of
convictions, disciplinary orders and settlements and judgements
compromises the rights of the registrant in that this information could be
used by the board to take action against the registrant. However, the
provisions are appropriate given the objects of the Act and the purposes of
disciplinary action and disciplinary proceedings (ie to protect the public,
uphold standards of practice and maintain public confidence in the health
professions). The notification of these matters will enable a board to
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Health Practitioners Legislation Amendment Bill 2001
promptly identify potential patterns of sub-optimal practice with a view to
taking disciplinary or other remedial action in the public interest. The
provision, in so far as it deals with mandatory notification of indictable
offences and disciplinary action, is akin to section 44 of the Education
(Teacher Registration) Act 1988. Also, it should be noted that most of the
information at issue, excluding the settlement of negligence matters, would
already be in the public domain or would otherwise be accessible to boards
(eg recorded on a publicly accessible register or accessible under section 37
of the schedule to the Mutual Recognition (Queensland) Act 1992). The
requirement to notify the settlement of proceedings for negligence matters is
based on South Australian and Victorian legislation and was recommended
by the Commonwealth's Professional Indemnity Review. Overall, the
provisions will ensure that the professional standards of the State's health
practitioners are upheld to at least the same degree as occurs in other
jurisdictions.
Consultation
In general, the issues addressed by this Bill were the subject of
consultation as part of the Review of Medical and Health Practitioner
Registration Acts. That consultation process occurred over a number years
using multiple strategies detailed in the Explanatory Notes for the Health
Practitioners (Professional Standards) Bill 1999.
With respect to the substantial policy matter addressed by this Bill, key
stakeholders (ie health practitioner registration boards, peak health
professional associations, peak consumer organisations, the Health Rights
Commission, etc) were provided with an opportunity to comment on an
exposure draft of the provisions in March 2000.
Additional consultation occurred with the Secretary of the Professional
Conduct Review Panels, the Registrar of the Health Practitioner Tribunal
and the Medical Board of Queensland during the preparation of this Bill.
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Health Practitioners Legislation Amendment Bill 2001
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Act.
Clause 2 provides for the Act to commence on a day fixed by
proclamation.
PART 2--HEALTH PRACTITIONER REGISTRATION
BOARDS (ADMINISTRATION) ACT 1999
Clause 3 specifies that part 2 amends the Health Practitioner
Registration Boards (Administration) Act 1999.
Clause 4 omits the reference to the Medical Act and Other Acts
(Administration) Act 1966 from the description of the legislative scheme in
section 5. That Act is repealed by clause 37 of this Bill.
Clause 5 inserts a new paragraph (d) into section 23(2) to remove any
doubt that a board's duty to obtain all of its administrative and operational
support from the Office of Health Practitioner Registration Boards does not
affect the board's power under a health practitioner registration Act to
appoint an inspector or a person to conduct a health assessment.
PART 3--AMENDMENT OF HEALTH
PRACTITIONERS (PROFESSIONAL STANDARDS)
ACT 1999
Clause 6 specifies that part 3 amends the Health Practitioners
(Professional Standards) Act 1999.
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Health Practitioners Legislation Amendment Bill 2001
Clause 7 omits the reference to the Medical Act and Other Acts
Administration Act 1966 from the description of the legislative scheme in
section 4. That Act is repealed by clause 37 of this Bill.
Clause 8 amends section 9 consequent to the amendments of the
definition of the health practitioner registration Acts. The amendment
clarifies that former registrants under the repealed health practitioner
registration Acts will continue to be subject to the Act.
Clause 9 amends section 18 to provide that where a panel is to hear a
matter relating to a complaint by a user or a user's representative, the panel
must include at least 1 member who is the same gender as the user.
Clause 10 amends section 32 to provide that where the tribunal is to hear
a matter relating to a complaint by a user or a user's representative, either
the constituting member or at least 1 of the assessors must be the same
gender as the user.
Clause 11 amends section 41 to provide that a person who ceases to be a
registrant is disqualified from being a member of a professional panel of
assessors. The amendment also disqualifies persons whose registration is
cancelled or suspended in another State or subject to conditions or
undertakings from being members of a professional panel of assessors.
Clause 12 amends section 42 to provide a reserve power for the Minister
to appoint members of a professional panel of assessors without publicly
advertising the vacancy or consulting with the board or the profession. This
power may only be exercised where the secretary of the professional
conduct review panels or the registrar of the tribunal advises the Minister
that there is an urgent need to appoint another panel member because the
matter is one which is likely to raise issues of a specialist or technical nature
and none of the existing members have the appropriate background or skills
or those members who do so are not available for a particular hearing.
Clause 13 amends section 176 to provide a power for a panel to delegate
the undertaking of a pre-hearing conference to a panel member. This
amendment provides for greater flexibility in undertaking pre-hearing
conferences.
Clause 14 amends section 190 to clarify that the test for determining
whether an order is the least onerous in the circumstances is a subjective
one.
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Health Practitioners Legislation Amendment Bill 2001
Clause 15 amends section 191 to provide that the panel may give a thing
produced at a hearing to the secretary to keep pending an appeal related to
the hearing. This amendment is necessary because a panel ceases to exist
once the hearing is concluded and, consequently, cannot keep the thing
itself.
Clause 16 amends section 219 to require the tribunal to advise a
registrant who is the subject of disciplinary proceedings of the effect of
section 381C or section 381G where relevant (see clause 24, below, for a
discussion of the effect of these sections).
Clause 17 amends section 231 to clarify that the test for determining
whether an order is the least onerous in the circumstances is a subjective
one.
Clause 18 amends section 262 to clarify that the mere fact that the
tribunal hears part of a matter in camera does not, of itself, prohibit a board
from identifying the registrant concerned in any information it provides to
other registrants.
Clause 19 amends section 264 to clarify that the mere fact that the
tribunal hears part of a matter in camera does not, of itself, prohibit a board
from identifying the registrant concerned in any information it provides in
its annual report.
Clause 20 amends section 310 to clarify that the provision applies to laws
made by jurisdictions within foreign countries as well as by the country
itself.
Clause 21 amends section 311 to provide for consistency with section
312(5). This clause also modifies the minimum timeframes for making
submissions under this section.
Clause 22 inserts a new division 1 (sections 367A367D) into part 11
and a division 2 heading. Division 1 is concerned with routine evidentiary
matters to facilitate proceedings under the Act (for example--removing the
necessity to prove certain appointments and authorities).
Clause 23 amends section 371 to provide for consistency with the 13
health practitioner Bills in respect of the limitations for starting summary
proceedings.
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Health Practitioners Legislation Amendment Bill 2001
Clause 24 amends section 381 to provide for consistency of terminology
with the 13 health practitioner Bills. This clause also inserts a requirement
for a board to return a registrant's certificate of registration (or issue a new
certificate) immediately after a suspension ends.
Clause 25 inserts a Division 2A (sections 381A381I) and Division 2B
(381J381K).
Division 2A clarifies that where a registrant holds general registration and
specialist registration or registration as a dental technician and registration as
a dental prosthetist, action may be taken under the Act in respect of one or
both types of registration. In general, different actions may be taken in
respect of different types of registration, however, where the registrant's
general registration or registration as a dental technician is suspended or
cancelled under an Act other than a health practitioner registration Act (eg
the Health Practitioners (Professional Standards) Act 1999 or the Mutual
Recognition (Queensland) Act 1992), the registrant's specialist registration
or registration as dental prosthetist is, in the absence of a contrary decision
on appeal, affected in the same way. The mandatory suspension or
cancellation of specialist and dental prosthetist registration under these
limited circumstances is appropriate because general registration and
registration as a dental technician are prerequisites for these types of
registration and the approach is consistent with that taken under the relevant
health practitioner registration Bills.
Division 2A also specifies additional matters to be included in the notice
given where a registrant's general registration or registration as a dental
technician is cancelled or suspended and the registrant also holds specialist
registration or registration as a dental prosthetist. The notices required by
sections 381D and 381H must specify that there is no appeal in respect of
the suspension of specialist registration or registration as a dental prosthetist
where the suspension occurs pursuant to this Division. It should be noted
that there is a right of appeal in respect of the decision to take action against
a registrant's general registration or registration as a dental technician and, if
such an appeal by a registrant is upheld, the registrant's specialist
registration or registration as a dental prosthetist is affected in the same way.
Division 2A further specifies that any decision made about the recording
of a suspension of a registrant's general registration or registration as a
dental technician also applies to the registrant's specialist registration or
registration as a dental prosthetist.
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Health Practitioners Legislation Amendment Bill 2001
Division 2B specifies the requirements for amendment or replacement of
certificates of registration where certain actions are taken under the Act.
Clause 26 inserts new sections 385A-C.
Section 385A requires a registrant who has been convicted of an
indictable offence or an offence against a corresponding law (as defined) to
give the board 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 385B requires a registrant who is a party to certain proceedings in
court to notify the board 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 385C requires a registrant who is subject to disciplinary or other
action under a corresponding law to notify the board of the details within the
specified timeframe.
Clause 27 inserts a new section 386A which provides that the persons
specified in subclause (3) are not civilly liable for an act or omission, made
honestly and without negligence, under this Act. Instead the liability
attaches to the board. It should be noted that to the extent that board
members are involved in disciplinary proceedings they have an immunity
under section 386 of the Act.
Clause 28 amends section 392 to authorise disclosure of confidential
information to a foreign regulatory authority in order for the authority to
perform its functions.
Clause 29 omits section 396. The 13 health practitioner Bills provide for
meetings by distance or flying minute. It is intended that those provisions
may be utilised for board meetings for the purpose of the Health
Practitioners (Professional Standards) Act 1999.
Clause 30 amends section 397 to ensure that boards have the power to
approve forms for use under the Health Practitioners (Professional
Standards) Act 1999. This amendment enables the operation of sections
385B and 385C of the Health Practitioners (Professional Standards) Act
1999 [see clause 26], which requires a registrant to give notice to the board
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Health Practitioners Legislation Amendment Bill 2001
of certain convictions, judgements and settlements, and if their registration
is affected in another jurisdiction. All such notices must be in the approved
form.
Clause 31 inserts a division heading before section 399.
Clause 32 amends section 403 to provide for the review of certain
conditions imposed under repealed provisions of the Medical Act 1939.
Clause 33 inserts a division heading and a new section 405. The
purpose of section 405 is to deal with transitional matters arising out of the
repeal of the health practitioner registration Acts and the consequent effect
on definitions contained in the Act. Section 405 provides that despite the
repeal of the health practitioner registration Acts, the Act continues to apply
to persons who were registered under a repealed health practitioner
registration Act and continue, after repeal, to be a registrant withing the
meaning of the Act. For example, if disciplinary proceedings had been
started against a person who was a registrant under a repealed health
practitioner registration Act, and continued to be a registrant withing the
meaning of the Act, the proceedings may continue. Section 405 also
provides that the Act continues to apply to an act or omission by the
registrant before the repeal of the repealed Act. For example, if the
registrant failed to comply with a provision of a repealed health practitioner
registration Act before the repeal of that Act, the failure continues to be a
ground for disciplinary action under the Health Practitioners (Professional
Standards) Act 1999. (It should also be noted that the amendments to
section 9, above, allow a complaint against a currently unregistered person
to be made and dealt with under the Act where the matter the subject of the
complaint occurred when the person was registered under a repealed health
practitioner registration Act).
Clause 34 amends the definition of "approved form", "foreign
disciplinary body" and "foreign regulatory authority", replaces the
definition of "chairperson" and inserts new definitions of "certificate of
registration", "certificate of specialist registration", "corresponding law"
and "repealed registration Act" in the Dictionary.
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Health Practitioners Legislation Amendment Bill 2001
PART 4--AMENDMENT OF INDY CAR GRAND PRIX
ACT 1990
Clause 35 specifies that part 4 amends the Indy Car Grand Prix Act
1990.
Clause 36 ensures the wording of this paragraph is consistent with the
approach taken elsewhere in this provision.
PART 5--REPEAL OF MEDICAL ACT AND OTHER
ACTS (ADMINISTRATION) ACT 1966
Clause 37 repeals the Medical Act and Other Acts (Administration) Act
1966.
State of Queensland 2001