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1
Health Practitioners (Professional Standards)
HEALTH PRACTITIONERS
(PROFESSIONAL STANDARDS) BILL
1999
EXPLANATORY NOTES
GENERAL OUTLINE
Policy objectives of the Bill
The principal policy objectives of the Bill are:
· to protect the public by ensuring health care is delivered by
registrants in a professional, safe and competent way
· to uphold the standards of practice within the health professions
· to maintain public confidence in the health professions
· to establish a uniform approach to the handling of complaints
about registrants, the investigation and discipline of registrants,
and the management of impaired registrants
· to provide a system to deal with complaints about registrants that
is complementary to that of the Health Rights Commission ("the
commission") established under the Health Rights Commission
Act 1991.
In addition, the Bill amends the Health Rights Commission Act 1991 to
address various operational issues with the administration of the Act raised
by the Health Rights Commissioner ("the commissioner").
Reasons why the proposed legislation is necessary
Currently, the discipline of registrants occurs under eleven separate health
practitioner registration Acts, namely:
· Chiropractors and Osteopaths Act 1979
· Dental Act 1971
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Health Practitioners (Professional Standards)
· Dental Technicians and Dental Prosthetists Act 1991
· Medical Act 1939
· Occupational Therapists Act 1979
· Optometrists Act 1974
· Pharmacy Act 1976
· Physiotherapists Act 1964
· Podiatrists Act 1969
· Psychologists Act 1977
· Speech Pathologists Act 1979
This legislation, which was enacted between 1939 and 1991, is not
uniform in respect of the grounds for disciplinary action, the adjudicative
processes or the sanctions which may be imposed where a registrant is
found guilty of misconduct.
Also, the disciplinary provisions of the existing Acts do not meet
community or professional expectations, nor do they conform with current
drafting practice or fundamental legislative principles (for example, all
boards rely on the application of the Commissions of Inquiry Act 1950 to
undertake disciplinary proceedings).
The disciplinary provisions of the existing Acts compromise the State's
ability to protect the public in that:
· the grounds for taking disciplinary action against registrants are
unreasonably narrow (in comparison with jurisdictions such as
Victoria--this issue is discussed below)
· the disciplinary actions which may be taken against registrants are
too limited (for example, there is currently no disciplinary power
to impose conditions on a registrant's registration)
· the boards' powers to investigate complaints and breaches of
professional standards are inadequate or non-existent
· the non-medical registration boards have no power to
immediately suspend or impose conditions on a registrant where
there is an imminent risk to the life, health or safety of a person
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Health Practitioners (Professional Standards)
· complainants have no statutory rights in the disciplinary process
(for example, there is no requirement to notify complainants of
disciplinary proceedings and no right for them to attend the
proceedings).
An additional concern is that the current disciplinary provisions are not
very detailed and, consequently, the rights of registrants during the
investigative and disciplinary processes are not comprehensively set out.
The existing disciplinary processes are, arguably, unfair to registrants in that
the non-medical boards both prosecute and adjudicate disciplinary matters.
The disciplinary provisions of the current Acts are also deficient in
respect of inadequate external accountabilities. For example, disciplinary
proceedings for the non-medical boards are not required to be open to the
public and disciplinary decisions and the reasons for decisions are not
required to be publicly accessible or otherwise reported. The Minister also
has no explicit power to require a board to investigate a complaint about a
registrant.
The existing Acts are inflexible in that they generally only provide one
process for dealing with disciplinary matters. With the exception of the
Medical Act 1939, which establishes the Medical Assessment Tribunal to
hear disciplinary matters regarding medical practitioners, registration boards
can currently only deal with disciplinary matters by way of an inquiry
(utilising the powers under the Commissions of Inquiry Act 1950). This
means that all disciplinary matters, regardless of their seriousness, are dealt
with in the same way.
The disciplinary provisions of the current Acts do not dovetail with the
Health Rights Commission Act 1991 and this creates the potential for delays
and increases the risk that professional standards issues will be overlooked.
Of particular concern are:
· the absence of parallel jurisdictions to accept complaints (the
commission's jurisdiction to accept complaints is broader than the
grounds for disciplinary action in some respects and narrower in
others)
· doubts about the admissibility of the commission's investigation
reports in board disciplinary proceedings and the inadequate
powers of the boards to investigate disciplinary matters (currently,
the commissioner may only refer a complaint where he or she is
satisfied the board has adequate functions and powers of
investigation)
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Health Practitioners (Professional Standards)
· deficiencies in the statutory consultation requirements (for
example, the commissioner is not required to consult a board
before making an "assessment" decision and a board is not
required to advise the commissioner when disciplinary
proceedings are being commenced); and inflexible referral
requirements (for example, boards must immediately refer all
complaints to the commissioner, including complaints which are
more appropriately dealt with through intervention by a board to
protect the public)
· also, the commissioner cannot refer complaints to a board without
assessment--which causes unnecessary delays in matters being
addressed.
The main operational problems with the Health Rights Commission Act
1991 addressed by this Bill are:
· inefficiencies related to the receipt and consideration, and
assessment phases of the Act
· the lack of power to refer complaints to other bodies at the
conclusion of assessment
· the inability to take more than one action on a complaint
· the inability to split complaints involving multiple issues or
respondents into component parts.
Means of achieving objectives
The objects of the legislation are primarily achieved in the following
ways:
· Uniform disciplinary arrangements
A uniform approach to the discipline of registrants is achieved through
the creation of a "generic" Bill which applies to all registrants (ie,
chiropractors, dentists, dental technicians, dental prosthetists, medical
practitioners, occupational therapists, optometrists, osteopaths, pharmacists,
physiotherapists, podiatrists, psychologists and speech pathologists). If
other health professions are registered in the future (for example, medical
radiation technologists), the Bill can easily be amended to accommodate
them and thereby ensure a uniform approach is maintained.
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Health Practitioners (Professional Standards)
· Complaints
Health complaints provide the main trigger for disciplinary proceedings
against registrants and, given that disciplinary proceedings are the principal
strategy for protecting the public and upholding professional standards, the
Bill establishes processes to facilitate complaints and provides increased
flexibility for the handling of complaints by the boards and the Health
Rights Commission. The Bill also incorporates strategies to ensure that
professional standards issues arising out of complaints are given statutory
priority and are not inadvertently overlooked.
Specifically, the Bill facilitates complaints by:
· providing the boards and the commission with the function of
receiving complaints--some complainants, particularly third
parties, have indicated that they would prefer to make complaints
directly to a board
· removing the requirement for third party complaints to be
immediately referred to the commission
· providing statutory protection for persons who honestly, and on
reasonable grounds, make complaints to boards
· the incorporation of various rights for complainants and
witnesses--for example, to be given notice of disciplinary
proceedings, to attend the proceedings, be accompanied and
advised of the outcome of proceedings, to have their identity
suppressed if mentioned in proceedings
· providing for increased public involvement in the discipline of
registrants (for example, all adjudicative bodies must include at
least one public member), and requiring all disciplinary bodies to
be constituted by at least one person of the same gender as the
complainant.
In addition, increased flexibility in complaint handling is achieved by:
· reducing the circumstances under which a board must
immediately refer a complaint to the commission (ie. to
complaints made by users or their representatives)
· enabling a board and the commissioner to agree that it is in the
public interest for the board to retain certain complaints rather than
refer them to the commission
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Health Practitioners (Professional Standards)
· enabling the commissioner and a board to agree that it is in the
public interest for the commissioner to refer a complaint directly
to a board without assessment
· enabling the commissioner to take multiple actions on complaints
and split complaints with multiple issues or multiple respondents
The Bill ensures that professional standards issues arising out of
complaints are not overlooked by requiring the most significant statutory
decisions under the Bill and the Health Rights Commission Act 1991 to be
informed by the views of both the boards and the commissioner.
Specifically, this is achieved by:
· requiring the boards and the commission to give each other copies
of all complaints received regarding registrants
· enabling boards to make submissions on complaints being
assessed by the commission
· requiring consultation between the commission and the boards at
the conclusion of assessment (and preventing the rejection of a
complaint where a board considers it should be investigated)
· requiring boards to provide the commissioner with a report at the
conclusion of all investigations and to have regard to any
comments, information or recommendations provided by the
commissioner in determining the action to be taken
· requiring the commissioner to be notified when a matter is
referred for disciplinary proceedings (as the commissioner retains
the power to intervene in disciplinary proceedings) and advised of
the decision of the disciplinary body and the reasons for the
decision.
The Bill ensures that priority will be given to professional standards
issues (that is, the public interest issues) because of the consultation and
decision-making processes described above. In addition, where the
commissioner and a board cannot agree on the action to be taken at the
conclusion of the assessment of a complaint about a registrant, the Minister
will determine if a matter should be referred to a board for investigation or
other action. The key considerations for the Minister will be the statutory
purposes of disciplinary proceedings and disciplinary action and the
grounds for disciplinary action under the Bill.
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Health Practitioners (Professional Standards)
· Immediate suspension and imposition of conditions
In order to effectively respond to imminent threats that a registrant may
pose to the life, health, safety or welfare of a person or class of persons,
including themselves, the Bill creates a reserve power for a board to
immediately suspend or impose conditions on their registration. Where a
board exercises this power it must immediately investigate the matter or
refer it to the Health Practitioner Tribunal ("the tribunal") for hearing. The
Bill limits the board to taking the least onerous action necessary to achieve
the objectives of the legislation, particularly protection of the public. A
registrant has a right of appeal to the tribunal regarding the exercise of this
power.
· Investigations
Effective investigation processes are essential to properly inform a
board's decision to pursue disciplinary proceedings to protect the public.
Accordingly, the Bill confers various powers upon investigators and board
investigation committees to investigate allegations about registrants. The
powers are standard investigation powers, although there is also an
additional power to require a registrant to undergo a health assessment and a
power to seek expert advice.
It should be noted that the Bill gives boards the power to commence
investigations on the basis of a complaint or where they suspect, on
reasonable grounds, that any aspect of the conduct or practice or another
matter concerning the registrant appears to constitute grounds for
disciplinary action against the registrant. This self-initiating power of
investigation provides an additional means of protecting the public.
At the conclusion of the investigation, the board must provide a report to
the commissioner. As mentioned above, this accountability mechanism
will maintain public confidence in the investigative decisions and provide an
additional means of ensuring professional standards issues are appropriately
dealt with. It should be noted that the commissioner has no power to veto a
board's decision regarding the action required following investigation but
the commissioner could alert the Minister to any concerns with the actions
taken or not taken.
· Disciplinary proceedings
The primary purpose of disciplinary proceedings is to determine whether
disciplinary action is required to protect the public. The taking of
disciplinary action is the principal public protection strategy under the Bill.
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Health Practitioners (Professional Standards)
The disciplinary process, and the information dissemination strategies
outlined below, uphold standards within the professions, deter misconduct
and maintain public confidence in the professions.
The Bill provides a flexible model for the discipline of registrants
involving a choice of three adjudicative bodies:
· registration boards (established under the health practitioner
registration Acts) which will deal with minor disciplinary matters.
Boards may undertake disciplinary proceedings by way of a
board hearing or correspondence with the registrant. Boards may
also establish disciplinary committees (comprising board
members) to adjudicate on disciplinary matters.
· professional conduct review panels (comprising 3 or 4
members, at least 2 of whom are members of the registrant's
profession and 1 is a public member; a panel may include 1
member of the registrant's board) which will deal with routine
disciplinary matters by way of an informal and, where possible,
collaborative and re-directive hearing process.
· health practitioner tribunal (constituted by a District Court
Judge who is assisted by 3 assessors, 2 of whom are members of
the registrant's profession and 1 is a public member) which will
generally deal with the most serious disciplinary matters (ie. those
which, if substantiated, may result in the cancellation or
suspension of a registrant's registration) and those cases where a
registrant elects to have a matter heard by the tribunal rather than a
board or panel.
In order to increase the degree of public protection provided by the
legislation, the grounds for taking disciplinary action against a registrant
under the Bill have been expanded. Currently, disciplinary action may be
taken where a registrant has been found guilty of "conduct discreditable to
the profession" or "misconduct in a professional respect". These terms
have been judicially interpreted to mean conduct which is substantially
below the standards of the profession as judged by members of the
profession. Under the Bill, disciplinary action will be able to be taken where
it is established that the registrant has engaged in "unsatisfactory
professional conduct". The Bill provides an inclusive definition of this term
based on recent Victorian and New South Wales legislation (see clause 124
in the Notes on Provisions section of these Explanatory Notes).
Importantly, this term includes professional conduct that is of a lesser
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Health Practitioners (Professional Standards)
standard than that which might reasonably be expected of the registrant by
the public or the registrant's professional peers.
The Bill also expands the disciplinary actions which may be taken where
a case against a registrant is established. The following table sets out the
actions which may be imposed by each of the adjudicative bodies:
TABLE 1: Disciplinary actions which may be taken by adjudicative
bodies
Disciplinary action Board Panel Tribunal
Advise, caution, reprimand X X X
Undertaking with registrant X X X
Conditions on registration X X
Require attendance for further health assessments, X X
etc
Undertaking with financial assurance X
Require the registrant to do, or refrain from doing, X
any thing
Fine X
Suspend registration X
Cancel registration X
Order suspension of disciplinary action X
Expanding the types of actions which may be taken by adjudicative
bodies creates increased opportunities to ensure that disciplinary orders are
made which achieve the objects of the legislation, in particular, the
protection of the public. The power to impose a fine is considered an
important tool to deter misconduct by other registrants and thereby maintain
standards within the profession. The power to suspend disciplinary orders,
subject to the registrant's satisfactory professional conduct or practice is also
likely to be a powerful tool for maintaining standards and protecting the
public.
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Health Practitioners (Professional Standards)
Where possible, the provisions of the Bill dealing with the adjudicative
bodies are uniform. For example, all bodies are required to comply with
natural justice but are not bound by the rules of evidence. Also, the notice
requirements and the rights of complainants are the same in each case. The
major differences between the adjudicative bodies are:
· the extent of independence from the boards--panels are largely
independent, the tribunal is totally independent
· the formality of the processes to be used--which increases in
accordance with the seriousness of the disciplinary matter (ie.
proceedings are most formal before the tribunal)
· responsibility for decision making--board and panel decisions are
majority vote; the judge constituting the tribunal decides all
questions of fact and law in tribunal proceedings
· the involvement of lawyers in proceedings--parties may only be
represented before the tribunal
· a registrant has the right to elect to have a matter to be dealt with
by the tribunal rather than a panel or the board
· whether the proceedings are open to the public--only tribunal
proceedings are open
· the disciplinary action that may be taken--refer Table 1
· the enforcement of non-compliance with hearing powers--the
tribunal deals with such matters as contempt, boards and panels
deal with such matters as statutory offences
· appeal processes
The principal strategies for maintaining public confidence in the
professions and the disciplinary processes are:
· statutory clarification of the purpose of the disciplinary process
· the involvement of the District Court in the hearing of the most
serious disciplinary matters
· the requirement for tribunal proceedings to be open to the public
· the new statutory rights conferred on complainants with respect to
the disciplinary process discussed above
· the various information dissemination strategies discussed below.
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Health Practitioners (Professional Standards)
· Dissemination of information regarding disciplinary proceedings
The Bill contains a range of strategies to ensure the public, the profession
and other relevant entities are informed about the outcome of disciplinary
proceedings. Specifically:
· the proceedings of the tribunal are open to the public except for
impairment matters or where the constituting member determines
that there are special circumstances which require the proceedings,
or part of the proceedings, to be closed in the public interest
· the Executive Officer of the Office of Health Practitioner
Registration Boards is required to maintain a publicly accessible
record of the decisions and reasons for decisions of all
disciplinary bodies
· at the conclusion of disciplinary proceedings, the registrant, the
board, the commissioner and the complainant (if any) must be
informed of the decision and the reasons for the decision. The
disciplinary body also has a discretion to notify any other person
given an attendance notice in respect of the proceeding
· at the conclusion of disciplinary proceedings, the board must
notify all interstate regulatory authorities with which the person is
registered of the outcome and may notify various other prescribed
entities where it is satisfied that the entity needs to know and that
doing so will achieve the objectives of the legislation
· where a disciplinary body takes disciplinary action (for other than
impairment matters), any conditions or undertakings must be
noted on a publicly accessible register and the details of the
conditions or undertakings must also be recorded (except where it
is not in the interests of the users of the registrant's services or the
public to know the details of the conditions). Suspensions must
also be recorded for the period in which they apply and
disciplinary bodies have a discretion to require other disciplinary
actions to be recorded
· the boards' annual reports must include certain information
regarding complaints, investigations and disciplinary proceedings
undertaken under the Bill
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Health Practitioners (Professional Standards)
· boards also have a general power under the Bill, subject to the
statutory duty of confidentiality, to inform registrants of the nature
and outcome of disciplinary proceedings in newsletters and
reports.
The purposes of informing registrants, the public and other entities (in the
ways described above) are to:
· inform and educate registrants about professional conduct issues
in order to promote high standards of practice and deter
unsatisfactory professional conduct and practice;
· maintain public confidence in the disciplinary processes and the
health professions; and
· to enable the public to make informed choices regarding
registrants.
· Management of impaired registrants
The Bill provides an alternative to the disciplinary process to manage
registrants who are impaired (that is, have a physical or mental impairment,
disability, condition or disorder that detrimentally affects, or is likely to
detrimentally affect, their physical or mental capacity to practise). However,
the impairment provisions do not prevent boards from using the
investigative and disciplinary provisions of the Bill to deal with impaired
registrants, if this is considered more appropriate. It is intended that where a
registrant's impairment manifests in conduct which gives rise to serious
complaints from users or their representatives, the investigative and
disciplinary provisions of the legislation will be utilised to protect the public.
A two-stage process is available under the Bill to deal with impaired
registrants. The first stage involves the board informally negotiating an
undertaking with the registrant to manage the impairment. Where the
registrant is unwilling to cooperate with the board or an undertaking cannot
be made, the second stage is triggered. The key feature of the second stage
is the establishment of a health assessment committee, with coercive
powers, to assess the nature and extent of any impairment suffered by the
registrant and advise the board as to any conditions which should be
imposed on the registrant's registration to protect the public.
Importantly, under the Bill, all matters which may, if substantiated,
provide grounds for cancellation or suspension of a registrant's registration
must be referred to the tribunal for disciplinary proceedings. To deal with
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Health Practitioners (Professional Standards)
those situations where a registrant's health may be an issue, the tribunal has
a power to require a board to establish a health assessment committee to
advise the tribunal as to whether the registrant is impaired. This approach is
essential to maintain public confidence in the model as it provides an
assurance that the most serious allegations of misconduct, even if caused by
an impairment, will be dealt with by an independent adjudicator.
In order to protect the privacy of the registrant, the impairment process is
conducted in private (although in the case of matters referred to the tribunal,
the tribunal has the discretion to open the proceedings to the public where it
is in the public interest to do so) and the complainant is not advised of the
details of any conditions or undertakings entered into. Also, the details of
any conditions or undertakings pertaining to impaired registrants are
generally not recorded on the publicly accessible register. Finally, in order
to encourage self/peer reporting to boards, the information provided to the
commissioner at the conclusion of impairment processes is limited.
Estimated cost for Government implementation
As the Health Practitioner Tribunal is a new jurisdiction for the District
Court, it will have resource implications for the Department of Justice and
Attorney-General. The tribunal will deal with the most serious disciplinary
matters from all registered health practitioners and will replace the Medical
Assessment Tribunal (in the Supreme Court) which currently hears
disciplinary matters regarding medical practitioners. It is estimated that this
will entail an extra 15 sitting days per annum to deal with disciplinary
matters, plus a further 5-10 days per annum to deal with appeals and
applications for review/reinstatement of registration.
Queensland Health will meet the structural costs related to the
independent adjudicative bodies (ie. non-judicial meeting fees and expenses,
registry/secretariat costs). It is estimated that the structural costs will be
approximately $245,000 per annum, including the provision of registry
support to the tribunal.
The legislation will have a minor effect on board costs (for example,
boards may need to engage an additional investigator) but these will be
more that offset by Queensland Health funding the non-judicial structural
costs related to the independent adjudicative bodies.
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Health Practitioners (Professional Standards)
Consistency with Fundamental Legislative Principles
Aspects of the Bill which raise possible fundamental legislative principles
issues are outlined below:
· Immediate suspension
Clause 59, which confers on a registration board the power to suspend or
impose conditions on the registration of a registrant where it reasonably
believes the registrant poses an imminent risk to the life, health, safety or
welfare of a person and it is necessary to take the action to protect the
person, raises Fundamental Legislative Principles (FLP) issues.
In view of the need for action to be taken immediately, a board is not
required to provide the registrant with an opportunity to be heard before
making its decision under this provision. It is arguable that the absence of a
requirement to seek submissions is a breach of natural justice. The
provision is defensible on the ground that action may only be taken if there
is an imminent risk to persons. In these circumstances, seeking
submissions from the registrant will result in an unreasonable delay and
increase the risk of harm to a person or persons. It should be noted that a
board must immediately notify the registrant of its decision under this
provision.
Also, this power has the potential to impact significantly on the livelihood
of a registrant (who could effectively be prohibited from practising).
However, the circumstances under which the power may be used are tightly
defined and the power is essential to ensure the public is protected from
dangerous registrants (or to protect registrants from themselves). It should
also be noted that a board is required to impose the least onerous action
necessary to protect the public.
It should be noted that the registrant has a right of appeal to the tribunal
(constituted by a District Court Judge) and clause 330 specifies that the
tribunal must hear and determine the matter as quickly as possible. In
effect, this means that a registrant could file an appeal immediately after
being issued with a notice under this clause.
· Consequences of non-cooperation with health assessment
committee
Clause 289 of the Bill specifies that if a registrant fails, without
reasonable excuse, to attend or cooperate with a health assessment when
required to do so, the board may suspend the registrant's registration until
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Health Practitioners (Professional Standards)
(i) they attend and cooperate or (ii) the registrant requires the matter to be
referred to the tribunal and the tribunal stays the suspension or decides the
matter.
While the imposition of a suspension under these circumstances could
impact adversely on the livelihood of a registrant for an unspecified period,
the provision is defensible on the grounds that a registrant is forewarned of
the consequences of non-compliance and the registrant can elect to have the
matter immediately referred to the tribunal.
This power is necessary as a registrant who is impaired (for example,
through a drug addiction) may be a risk to themselves and their patients. It
is essential for a health assessment to be undertaken on such persons to
determine the extent of their impairment.
· Board adjudication of disciplinary matters
Division 4 of part 6 of the Bill establishes a scheme which provides
registration boards with responsibility for adjudication of disciplinary
matters regarding registrants. The board also has responsibility under the
Bill for investigating disciplinary matters and determining whether
disciplinary proceedings should be taken. If a board, on hearing a matter,
finds the grounds for disciplinary action have been established, it may
advise, caution, reprimand or enter into an undertaking with the practitioner.
It is arguable that conferring upon the board responsibility for
investigation, prosecution and determination of disciplinary matters is a
breach of natural justice in that the board, as a party to the disciplinary
proceeding, cannot be an unbiased adjudicator. The approach to this issue is
defensible on the grounds that the actions which may be taken by the board
are relatively minor in nature and the registrant may elect to have the matter
heard by the tribunal.
· Board involvement on Professional Conduct Review Panels
Clause 18 provides that, subject to certain limitations, a board member
may be a member of a professional conduct review panel. Under division 5
of part 6, panels have the power to adjudicate on disciplinary matters
regarding registrants. Panels have all the disciplinary powers of a board
(discussed above) and an additional power to order the imposition of
conditions on a registrant's registration. Such conditions could significantly
impact on the livelihood of the registrant.
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Health Practitioners (Professional Standards)
For the reasons outlined above, it is arguable that the involvement of a
board member on a panel is a breach of natural justice (because the board is
a party to the disciplinary proceedings before the panel and the board
member who is on the panel will not be totally disinterested in the
outcome). The approach to this issue is defensible on the grounds that the
majority of panel members are independent of the board; a board member is
ineligible for appointment to a panel if they have previously been involved
in the investigation of the matter or privy to board deliberations or decisions
about the matter; a board member cannot be appointed as panel chairperson
and the registrant has the right to opt to have the matter heard by the Health
Practitioner Tribunal--an independent tribunal chaired by a District Court
Judge.
· Immunity for complainants and others
Clause 387 effectively confers an immunity upon any person who,
honestly and on reasonable grounds, gives information for the purpose of
this Bill (for example, a complainant).
As the boards rely upon complaints and information to trigger the
processes which are used to protect the public, it is essential to remove any
significant deterrents to the making of complaints. It is important to
acknowledge that persons who make complaints under this legislation do
not receive any personal advantage from doing so (for example, they do not
receive compensation for damages). The provision is defensible on the
grounds that if complainants could be sued for defamation or breach of
confidence it is unlikely that complaints would be made and, consequently,
the public protection objectives of the legislation would be frustrated.
Further, clause 387 provides a restricted immunity. The immunity is
only available for persons giving information to relevant entities for the
purposes of making a complaint or in the course of an investigation or
another purpose under the Bill.
Also, this provision is standard for legislation of this kind and effectively
mirrors section 135 of the Health Rights Commission Act 1991.
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Health Practitioners (Professional Standards)
Consultation
The issues addressed by this Bill have been the subject of consultation as
part of the Review of Medical and Health Practitioner Registration Acts.
The Review has involved an unprecedented degree of public consultation
over a 6 year period. The major consultation strategies used by the Review
include:
· Public consultation documents
The following public consultation documents have been released:
· Medical Act Information Paper (1993)
· Medical Act Discussion Paper (1994)
· Health Practitioner Registration Acts Discussion Paper (1994)
· Review of Medical and Health Practitioners Registration
Acts--Draft Policy Paper (1996)
In total, over 5000 copies of these consultation documents were
distributed and over 450 submissions were made to the Review. In
addition, the Draft Policy Paper was made available on the Internet and
attracted over 6000 "hits".
· Public meetings
Public meetings were held in Brisbane, Toowoomba, Maroochydore,
Southport, Cairns and Townsville to discuss issues raised in the Discussion
Papers (1994).
· Stakeholder advisory groups
The following groups contributed to the research and policy development
phase of the Review:
· Medical Act Steering Committee (comprising senior public and
private sector medical practitioners, Medical Board members,
representatives of the Australian Medical
Association--Queensland Branch and the Health Rights
Commissioner)
· Departmental Advisory Group (comprising registration board
members employed by Queensland Health and the Health Rights
Commissioner)
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Health Practitioners (Professional Standards)
In addition, during the research and policy development phase,
consultation was undertaken with:
· public members of the registration boards and the Health Rights
Advisory Council; and
· nominees of all registration boards and peak professional
associations.
· Intensive consultation with key stakeholders
During 1997, 31 key stakeholders (including registration boards, peak
professional associations and consumer groups) were consulted regarding
issues raised in their submissions on the Draft Policy Paper.
· Exposure draft of the Bill
In February 1999, nominees of the following key stakeholders were
provided with an Exposure Draft of the Bill to comment on the workability
issues:
· health practitioner registration boards
· peak health professional associations
· Queensland Consumers Association
· Brisbane Consumers Association
· Queensland Council of Social Service
· Health Rights Commission
· Medical Assessment Tribunal
· District Court
· Office of Health Professional Registration Boards
· Queensland Nursing Council
· Queensland Nurses Union
· United Medical Protection.
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Health Practitioners (Professional Standards)
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Division 1--Introduction
Clause 1 sets out the short title of the Act.
Clause 2 provides for the Act to commence on a day fixed by
proclamation.
Clause 3 provides for a dictionary of certain terms used in the Bill to be
included as a schedule to the Act.
Clause 4 specifies that the Act is part of a legislative scheme consisting
of:
· the health practitioner registration Acts--Chiropractors and
Osteopaths Act 1979, Dental Act 1971, Dental Technicians and
Prosthetists Act 1991, Medical Act 1939, Occupational
Therapists Act 1979, Optometrists Act 1974, Pharmacy Act 1976,
Physiotherapists Act 1964, Podiatrists Act 1969, Physchologists
Act 1977, Speech Pathologists Act 1979--these Acts provide, in
part, for the establishment of registration boards to regulate the
professions. The boards have significant additional functions
under the Health Practitioners (Professional Standards) Act (see
clause 11).
· the Health Practitioner Registration Boards (Administration) Act
1999 which is concerned with the establishment of mechanisms
for the provision of administrative support to the registration
boards, including the appointment of the Executive Officer.
· the Medical Act and Other Acts (Administration) Act
1966--which provides, in part, for the appointment of inspectors
to enforce the health practitioner registration Acts and various
other matters related to the administration of those Acts.
Clause 5 specifies that the Act is to be read in conjunction with the
Health Rights Commission Act 1991. That Act provides, in part, for
complaints to be made about registered health practitioners; the assessment
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Health Practitioners (Professional Standards)
of complaints by the commissioner; consultation between registration
boards and the commissioner in certain circumstances; and the referral of
complaints to boards under certain circumstances.
Division 2--Objects
· Clause 6 sets out the objects of the Act.
As detailed in the General Outline section of these Explanatory Notes, the
primary focus of the Bill is the protection of the public. These objects are
very important for guiding those administering the legislation.
Clause 7 sets out the ways in which the objects of the Act are primarily
achieved. The matters listed under this clause are the principal functions,
processes or mechanisms, which enable the objects of the legislation to be
met.
Division 3--Operation of Act
Clause 8 specifies that all persons, including the State, are bound by the
Act. However, the State may not be prosecuted for an offence against the
Act.
Division 4--Application of Act to former registrants
Clause 9 provides for the application of certain parts of the Act to former
registrants (in respect of conduct which occurred while they were
registered). For example, complaints may be made, investigated and
disciplinary proceedings undertaken in respect of former registrants. The
policy objective of this provision is to discourage registrants withdrawing
their registration in order to avoid disciplinary proceedings. An adverse
finding against a former registrant would be a relevant consideration in any
future applications for registration in Queensland or elsewhere.
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Health Practitioners (Professional Standards)
PART 2--ADMINISTRATION
Division 1--Preliminary
Clause 10 summarises the purposes of part 2 of the Act.
Division 2--Boards
Clause 11 specifies the boards' functions under this Act. The key
functions are:
· the receipt of complaints regarding its registrants
· the carrying out of investigations into the professional conduct
and practice of its registrants
· bringing disciplinary proceedings against its registrants before the
panel or tribunal
· the adjudication of the least serious types of disciplinary matters
· the management of its impaired registrants
· consultation and co-operation with the Health Rights
Commissioner, foreign regulatory authorities (including interstate
regulatory authorities) and other relevant entities in relation to
actions taken against its registrants under this Act
· monitoring compliance with the Act (including conditions and
undertakings).
An explanation of these functions is provided under the clause of the Act
which deals with the particular function or in the General Outline section of
the Explanatory Notes.
Clause 12 provides that a board may delegate powers under this Act,
other than certain specified powers, to a board member; to the Executive
Officer; or, with the agreement of the Executive Officer, another
appropriately qualified member of the staff of the office.
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Health Practitioners (Professional Standards)
Clause 13 confers on the Minister a reserve power to give a board a
direction in the public interest. However, the provision expressly excludes
the giving of a direction about taking disciplinary action, the suspension of a
registrant's registration or the imposition of conditions on registration. This
provision provides a means for the Minister to seek reports to ensure that
the legislation is being administered appropriately and to give directions as
to how the legislation should be administered. The Minister could also use
this power to require a matter to be investigated. In order to ensure the
Minister exercises the powers under this section appropriately, information
about any direction given to a board must be included in the board's annual
report.
Division 3--Professional conduct review panels
Clause 14 specifies that the functions of professional conduct review
panels are to hear and determine disciplinary matters regarding registrants,
excluding those disciplinary matters which may, if proven, result in the
suspension or cancellation of a registrant's registration (such matters must
be dealt with by the health practitioner tribunal). It is intended that a panel
will hear routine disciplinary matters (with minor matters being heard by the
board itself and the most serious matters being heard by the tribunal).
Clause 15 specifies that a panel is to be established by the secretary
giving written notification to the panel members when a disciplinary matter
is referred by a board. A panel is not a permanent or ongoing entity, rather
it is established for the hearing of a particular disciplinary matter and it
ceases to exist at the conclusion of the proceedings regarding that matter.
Clause 16 specifies that a panel ceases to exist when it has performed its
functions or is no longer able to perform the functions for which it was
established. For example, a panel would cease to exist when it decides the
matter referred to it (clauses 200 and 324), when it directs the referral of a
matter to the tribunal or board (clause 178), when a registrant elects to have
a matter referred to the tribunal (clause 177), when a panel member is
absent and the registrant who is the subject of the proceedings does not
consent to the remaining members continuing to hear the matter (clause
189).
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Health Practitioners (Professional Standards)
Clause 17, which must be read in conjunction with clauses 18, 19 and
20, specifies that a panel must comprise at least 3 and not more than 4
members. Whether a panel has 3 or 4 members will be determined by the
secretary having regard to the nature of the disciplinary matter concerned.
In general, it is anticipated that the majority of panels will be comprised of 3
members.
For all panels, at least 2 members must be members of the registrant's
profession (ie. a member of the relevant professional panel of assessors or a
registrant member of the relevant board) and at least 1 member must be a
member of the public panel of assessors.
Where a panel is comprised of 4 members, the fourth person may be a
member of the relevant board (including a member who is a registrant, a
member appointed to represent the interests of users or a lawyer), or the
public panel of assessors, or relevant professional panel of assessors. This
approach provides flexibility to enable, for example, an additional member
of the profession to be involved in the hearing of matters related to clinical
practice issues; an additional member of the public to be involved in the
hearing of matters related to a registrant's professional conduct; or a legally
qualified person (ie. board member) to be involved in the hearing of matters
raising complex legal issues.
Within the parameters of these provisions, including such issues as
gender and personal or professional interest, the secretary will choose panel
members on the basis of considerations such as the board's advice, the
curricula vitae provided by the members of the relevant panels of assessors,
the availability and interest of the members and the experience of the
members.
Clause 18 specifies certain restrictions upon membership of the panel,
namely:
· if the registrant is registered in more than one profession, the
relevant professional panel of assessors from which members are
to be selected is the one which corresponds to the board which
commenced the proceedings (for example, if a person is
registered as both a podiatrist and a chiropractor and disciplinary
proceedings are commenced by the Podiatrists Board of
Queensland, the relevant professional panel of assessors would be
the Podiatrists Panel of Assessors)
· if the proceeding is the result of a complaint, at least 1 member of
the panel must be the same gender as the complainant
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Health Practitioners (Professional Standards)
· the secretary must be satisfied that the members of the panel do
not have a personal or professional connection with the registrant
that may prejudice the fair hearing of the matter.
Clause 19 provides that, in order to facilitate the selection of members of
the panel, a board is to indicate to the secretary whether the matter raises
issues of a specialist or technical nature and, if so, the desirable professional
background or skills of the professional members of the panel. The
secretary must have regard to the board's advice in selecting the members
of the panel. It is anticipated that, in referring a disciplinary matter regarding
a specialist, a board will recommend a panel comprise at least one member
of the registrant's speciality. Also, in referring a matter about a general
practitioner, a board will generally recommend that at least 1 general
practitioner be included on the panel.
Clause 20 specifies that a board may nominate only one of its members
for appointment to a panel and, if it does so, the secretary must appoint that
person. This section prohibits the nomination of a board member who has
been directly involved in the investigation of the matter (for example, as an
investigator), in order to ensure that the registrant's right to a fair hearing is
not prejudiced by the appointment of a person who may have a pre-existing
view of the matter. Importantly, a board is not required to nominate a board
member for appointment to the panel and, in many cases, may choose not
to do so.
Clause 21 specifies that the panel is to be chaired by a member of the
professional panel of assessors chosen by the secretary. The requirement
for a member of the registrant's profession to chair the panel ensures that
there will be, in effect, a majority of registrants for panel decisions (ie. in a 4
person panel the chair has the casting vote--see clause 145).
Clause 22 creates an entitlement for members of the panel to be paid.
The provision is cast in such a way as to enable members to waive
payment.
Clause 23 provides for the Governor in Council to appoint a public
service employee as secretary of the professional conduct review panels. In
order to ensure the independence of the secretary, this provision prohibits
certain persons from being appointed (for example, board members). The
Executive Officer of the Office of Health Practitioner Registration Boards is
not a public service officer and, consequently, is not qualified for
appointment as secretary.
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Health Practitioners (Professional Standards)
Clause 24 specifies the conditions of appointment of the secretary,
including the circumstances under which a person ceases to hold office as
secretary.
Clause 25 provides an inclusive list of the secretary's functions under
this Act.
Division 4--Health Practitioners Tribunal
Clause 26 establishes the Health Practitioners Tribunal.
Clause 27 specifies that all judges of the District Court are, by virtue of
their office, members of the tribunal. This provision also specifies that, for
each matter to be heard, the tribunal is constituted by one of the judges. The
appointment of all judges of the District Court to the tribunal is intended to
ensure matters can be heard expeditiously throughout the entire State. It is
anticipated that, in practice, some, but not all, of the judges will specialise in
this jurisdiction. Clause 213 specifies that the chairperson (ie. the Chief
Judge of the District Courts) is to allocate cases.
Clause 28 provides that the tribunal may sit in more than 1 place at the
same time. This provision enables a number of matters to be heard
concurrently. The term "constituting member" (which is defined in the
dictionary) is used throughout the Act to refer to the Judge constituting the
tribunal for a particular matter. Where a number of matters are being dealt
with concurrently there will be a number of constituting members.
Clause 29 specifies that the Chief Judge of the District Courts is the
chairperson of the tribunal. The chairperson has responsibility for allocation
of matters among the members of the tribunal (clause 213), consenting to
rules regarding the tribunal made by the Governor in Council (clause 258),
the issuing of practice directions regarding the procedures of the tribunal
(clause 259) and approval of forms pertaining to the tribunal (clause 397).
Clause 30 specifies the functions of the tribunal. The primary function of
the tribunal is to conduct hearings and make decisions in relation to
disciplinary matters about registrants, including the hearing of appeals from
decisions of a panel and applications for review of tribunal decisions. The
tribunal will also hear appeals from decisions to immediately suspend or
impose conditions on registrants under part 4, board decisions under part 7
and certain decisions to suspend, cancel or impose conditions on registration
under part 8. It is anticipated that, in practice, the major work of the tribunal
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Health Practitioners (Professional Standards)
will involve the adjudication of the most serious disciplinary matters
involving registrants (ie. those which warrant cancellation or suspension of
registration).
Clause 31 specifies that, for the purpose of conducting hearings under
this Act, the tribunal is to be assisted by 3 assessors (1 member of the
public panel of assessors and 2 members of the professional panel of
assessors) chosen by the registrar. It should be noted that the assessors do
not need to be involved in directions hearings (clause 217) or where the
tribunal considers it necessary to conduct an urgent hearing and it is not
practicable to involve the assessors.
Within the parameters of clauses 32 and 33, including such issues as
gender and personal or professional interest, the registrar will choose the
assessors on the basis of considerations such as the board's advice, the
curricula vitae provided by the members of the relevant panels of assessors,
the availability and interest of the members and the experience of the
members.
Clause 32. This provision specifies certain restrictions upon the selection
of assessors, namely:
· if the registrant is registered in more than 1 profession, the
relevant professional panel of assessors from which members are
to be selected is the one which corresponds to the board which
commenced the proceedings (for example, if a person is
registered as a podiatrist and a chiropractor, and disciplinary
proceedings are commenced against the person by the Podiatrists
Board of Queensland, the relevant professional panel of assessors
would be the Podiatrists Panel of Assessors)
· a person cannot be appointed as an assessor if they were a
member of a panel that made a decision in relation to the matter
being heard by the tribunal (this includes a matter where a panel
directs a board to refer it to the tribunal)
· if the proceeding is the result of a complaint, at least 1 assessor or
the constituting member must be the same gender as the
complainant
· the registrar must be satisfied that the assessors do not have a
personal or professional connection with the registrant that may
prejudice the assessor in assisting the tribunal.
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Health Practitioners (Professional Standards)
Clause 33 requires the board to indicate to the registrar of the tribunal
whether a matter which has been referred raises issues of a specialist or
technical nature and, if so, the desirable professional background or skills of
the assessors to be selected from the professional panel of assessors. The
registrar must have regard to the board's advice in selecting the assessors.
It is anticipated that, in referring a disciplinary matter regarding a specialist,
a board will recommend that at least one of the assessors be a member of
the registrant's speciality. Also, in referring a matter about a general
practitioner, a board will generally recommend that at least 1 general
practitioner be selected as an assessor.
Clause 34 sets out the function and powers of assessors. The function of
an assessor is to advise the constituting member about questions of fact
arising during the hearing. By virtue of clause 227, the assessors do not
decide matters before the tribunal. In order to enable the assessors to
perform their function, the assessors have the power to ask questions of
witnesses and discuss questions of fact with the parties. In practice, the
assessors may also be requested to advise the tribunal on the practicability
of disciplinary orders and review draft decisions prepared by the
constituting member, etc.
Clause 35 creates an entitlement for assessors to be paid. The provision
is cast in such a way as to enable members to waive payment.
Clause 36 provides that the registrar of the tribunal is the registrar of the
District Court at Brisbane.
Clause 37 provides an inclusive list of the registrar's functions under this
Act.
Clause 38 allows the registrar of the tribunal to delegate the registrar's
powers to another registrar or deputy registrar of the District Court who is
not a judicial registrar.
Division 5--Panels of assessors
Clause 39 establishes 1 public panel of assessors and 13 professional
panels of assessors (one for each profession which is subject to this Act).
The members of the panels of assessors are eligible to be appointed as the
assessors assisting the tribunal and the members of professional conduct
review panels.
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Health Practitioners (Professional Standards)
Clause 40 specifies that the Governor in Council may, by gazette notice,
appoint individuals as members of the panels of assessors. This provision
also specifies that the size of the panel of assessors is to be determined by
the Minister having regard to the likely demand for members and, for the
professional panels, the diversity of the profession. It is anticipated that, in
practice, there will be considerable variation in the size of the professional
panels of assessors reflecting the relative sizes of the professions and the
extent of disciplinary activity.
Clauses 40-41 set out the criteria for appointment to the panels of
assessors, including the circumstances under which a person is ineligible for
appointment or disqualified from being a member of a panel. In practice, it
is anticipated that only well regarded members of the professions will be
appointed to the professional panels of assessors and that appointees to the
public panels of assessors will also be of high standing within the
community.
Clause 42 specifies that the Minister must invite nominations from the
public, registrants and various entities for appointees to the panels of
assessors. Applicants will be required to demonstrate that they meet the
criteria for appointment and advise of any special skills or experience they
have which is relevant to the functions of the assessors. The applications of
the persons appointed to the panels of assessors will be used by the
secretary and the registrar in the selection process for panel members and
assessors assisting the tribunal.
Clause 43 specifies that members of the panels of assessors are
appointed for up to 5 years.
Clause 44 specifies that members of the panels of assessors are
appointed on conditions decided by Governor in Council, except where
otherwise provided for by the Act.
Clause 45 specifies the circumstances under which the office of a
member of a panel of assessors is vacated.
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Health Practitioners (Professional Standards)
PART 3--COMPLAINTS
Division 1--Preliminary
Clause 46 sets out the purposes of part 3, namely:
· to provide for complaints to be made to boards about registrants
and former registrants
· to state how a complaint must be made
· to state how complaints must be dealt with under this Act.
Division 2--Making a complaint
Clause 47 specifies that any entity may make a complaint regarding a
registrant. 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.
Clause 48 specifies that a complaint may be made to a board about any
aspect of the conduct or practice of a registrant or another matter which
appears to constitute grounds for disciplinary action under clause 124. This
includes unsatisfactory professional conduct and impairment (as defined in
the dictionary), non-compliance with this Act or a health practitioner
registration Act or other Act related to the practice of the profession and a
conviction of an indictable offence.
Also, this provision specifies that a complaint may be made to a board
about any matter for which a complaint may be made under section 58 of
the Health Rights Commission Act 1991. By virtue of clause 434, which
amends section 58 of the Health Rights Commission Act 1991, the grounds
for complaint to a board and the commission will effectively be the same.
Clause 49 specifies that complaints must be made in writing and contain
the particulars of the allegations. It should be noted that the boards have a
general power under clause 63 to undertake an investigation without a
complaint. If information was provided orally to a board or board member,
the board could carry out an investigation under that section.
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Health Practitioners (Professional Standards)
Clause 50 specifies that an entity making a complaint must provide the
board with their name and address and other identifying information
required by the board. However, the board may accept a complaint which
does not meet these requirements where it believes it is in the public interest
to do so. If the board accepts a complaint in the public interest, the board
must disclose the reasons for accepting the complaint to the registrant. The
disclosure to the registrant will generally occur when the registrant is
informed of the action taken (for example, a decision to investigate, notice
of hearing, etc).
Division 3--How complaints are dealt with
Clause 51 specifies how complaints made by users or entities acting on
behalf of users are to be dealt with by a board. In general, complaints made
by users or their representatives are to be immediately referred to the
commissioner. However, where a board considers it is in the public interest
to do so, it may seek the commissioner's agreement to retain the complaint
and take a prescribed statutory action (for example, investigate the
complaint, start disciplinary proceedings). If the board retains the complaint
it must provide the commissioner with a copy of the complaint. It should
also be noted that section 144 of the Health Rights Commission Act
prohibits the commission from accepting complaints regarding incidents
which arose before the commencement of the Health Rights Commission
Act on 1 July 1992 (unless the complainant became aware of the subject
matter of the complaint within the preceding 12 months). Consequently, the
board does not have to refer such complaints to the commissioner.
Clause 52 specifies the effect of referring a complaint to the
commissioner. This provision also authorises a board to give the
commissioner information, comments and recommendations relating to the
complaint and the registrant against whom the complaint was made.
Clause 53 specifies how third party complaints (ie. complaints other than
those made by users or entities acting on behalf of users), user complaints
about incidents before the commencement of the Health Rights
Commission Act 1991, and complaints referred by the Health Rights
Commissioner, are to be dealt with by a board. This provision requires the
board to consider the complaint and take a prescribed statutory action (for
example, investigate the complaint, start disciplinary proceedings). In order
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Health Practitioners (Professional Standards)
to ensure that the commissioner can fulfil the function of overseeing the
health system, copies of these complaints must also be provided to the
commissioner.
Clause 54 specifies the circumstances under which a complaint
mentioned in clause 53 must or may be rejected by a board. These include
complaints that:
· are too old to be investigated or otherwise dealt with (however,
complaints which the board believes may provide grounds for
cancellation or suspension of registration cannot be rejected under
this section)
· are frivolous, vexatious or trivial
· have already been adequately dealt with by the board or another
appropriate entity
· relate to a person who is no longer registered.
This provision also specifies that, despite rejecting a complaint, the
complaint may, if substantiated, be taken into account at a later time as part
of a pattern of conduct or practice that may result in disciplinary action. It is
important to emphasise that only complaints which can be substantiated will
form the basis for disciplinary proceedings.
Section 74 of the Health Rights Commission Act 1991 provides the
criteria for the rejection of complaints referred to the commissioner under
clause 51 of this Bill.
Clause 55 specifies that the board must notify the complainant, registrant
and the commissioner of a decision to reject a complaint within 14 days and
state the reasons for the decision.
Clause 56 provides that a board may seek further information from the
complainant or require a complaint or further information to be confirmed
by statutory declaration. However, this power cannot be used where the
complaint is required to be referred to the commissioner under clause 51
because such complaints must be referred without delay and the
commissioner has an equivalent power under sections 64 and 65 of the
Health Rights Commission Act 1991.
Clause 57 provides a board with a discretion to continue to deal with a
complaint which has been withdrawn by the complainant. In deciding
whether to start or continue to deal with a complaint which has been
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Health Practitioners (Professional Standards)
withdrawn, the board must have regard to the objects of the Act and the
grounds for disciplinary action. It is anticipated that, subject to clause 54
(which sets out the circumstances for rejection of complaints), a board will
continue to deal with all complaints which suggest grounds for disciplinary
action.
PART 4--IMMEDIATE SUSPENSION OF
REGISTRANTS OR IMPOSITION OF CONDITIONS
ON THEIR REGISTRATION
Clause 58 specifies that the purpose of this part is to give boards the
power to effectively respond to imminent threats posed by registrants to the
life, health, safety or welfare of a person or class of persons.
Clause 59 provides a board with the power to suspend or impose
conditions on a registrant at any time where it reasonably believes it is
necessary to do so to protect the life, physical or psychological health, safety
or welfare of a person or class of persons. This power also applies where a
registrant poses a risk to themselves. Where a board acts under this
provision, it must immediately give notice to the registrant and investigate
the matter or refer it to the tribunal for hearing. If the board investigates the
matter and decides to take action it must, under clause 118, refer it to the
tribunal for hearing. This provision also sets out the circumstances under
which the order ceases to apply.
The powers available under this section are reserve powers which will
only be invoked where a board reasonably suspects there is a need to take
immediate action to protect a person. However, it is not necessary for a
board to have conclusive evidence of imminent risk to exercise this power.
The power may be invoked at any time (for example, on receipt of a
complaint, during an investigation or while the registrant is being dealt with
under part 7). The inclusion of a power to act where the registrant poses a
risk to themselves is intended to deal with registrants who are seriously
impaired and who may, for example, self-prescribe and administer
medication and, consequently, harm themselves.
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Health Practitioners (Professional Standards)
A registrant may appeal an order under this provision (see clause 325),
however the appeal is limited to the decision to immediately impose the
order. Disciplinary proceedings will address the registrant's conduct or
practice which formed the basis of the decision to act under this part.
Clause 60 requires a board which immediately suspends or imposes
conditions on a registrant to record the details of the action in the board's
register for the period the suspension or conditions are in force.
PART 5--INVESTIGATIONS
Division 1--Preliminary
Clause 61 sets out the purposes of part 5, namely to:
· outline the circumstances when an investigation may or must be
conducted;
· to specify that a board may undertake investigation without first
receiving a complaint;
· outline the boards' investigation powers; and
· to specify the actions which may be taken at the conclusion of an
investigation.
Division 2--General provisions about investigation
Clause 62 specifies the circumstances under which a board must carry
out an investigation. This provision summarises the duties to investigate
under other provisions of the Act and the Health Rights Commission Act
1991.
Clause 63 provides a board with a self initiating power of investigation.
The provision specifies that the board may undertake an investigation where
it suspects, on reasonable grounds, that an aspect of the conduct or practice,
or other matter, concerning the registrant appears to constitute grounds for
disciplinary action. The purpose of this provision is to enable the board to
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Health Practitioners (Professional Standards)
promptly respond to any issues which come to its attention other than by
way of complaint. For example, a board may consider that there are
grounds to investigate a registrant where it is alerted to a report of a criminal
matter involving a registrant. In practice, the provision is most likely to be
used where the board or a board member is approached by a registrant with
concerns about another registrant. The board is duty bound in such
circumstances to give consideration to such concerns but will probably only
invoke the investigative powers where it is satisfied that doing so is
appropriate. The key considerations will be the reliability of the person
making the approach and also the relative seriousness of the concerns
raised.
Sub-clause (3) of this clause clarifies that a board may not concurrently
deal with a matter under parts 5 and 7. The provision is a linking one that
clarifies that either the investigative processes or the impairment processes
are to be used and that both cannot be used concurrently in respect of the
same matter. However, a board could concurrently investigate one matter
regarding a registrant and deal with a second matter through the impairment
processes. This particular scenario is specifically authorised by sub-clause
(4).
Clause 64 specifies who may investigate a complaint and prohibits the
selection of certain persons to carry out investigations.
There are two ways an investigation may be carried out--an investigation
committee comprised of some or all of the board members or, alternatively,
appropriately qualified individuals appointed as investigators. This clause
needs to be in read in conjunction with divisions 3, 4 and 5 of this part
(which provide for the functions and powers of investigators and
investigation committees). It is anticipated that, in practice, most
investigations will be undertaken by investigators, rather than investigation
committees. However, the legislation provides both options so that, where
appropriate, all or a number of board members may carry out the
investigation.
Clause 65 specifies that investigations must be carried out as quickly as
possible. This clause also assigns a statutory priority to the investigation of
complaints from people who are seriously ill and registrants who have been
the subject of action under part 4 (which deals with immediate suspension,
etc).
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Health Practitioners (Professional Standards)
Clause 66 specifies that a registrant needs to be given notice of an
investigation. It also specifies the contents of the notice and the
circumstances under which a notice is not required. The notice must specify
the manner in which the registrant may make submissions (either verbally
or in writing or both).
Clause 67 specifies that a registrant may make submissions in response
to the notice in the way stated in the notice.
Division 3--Investigation committees
Clause 68 specifies that an investigation committee has the function of
conducting the particular investigation for which the committee is
established by the board. It is to be noted that investigation committees are
established on an ad hoc basis to deal with particular investigations and are
not permanent or legal entities.
Clause 69 specifies that an investigation committee has the powers
assigned to it under the Act. This provision needs to be read in conjunction
with the clauses 78 and 81 which provide that an investigation committee
may compel attendance, information, things (including documents) and that
the committee may inspect, make copies of, or take extracts from
documents or things. An investigation committee may also retain
possession of a document or thing if it's necessary for the purposes of the
investigation.
There is an important distinction between the powers of investigation
committees and the powers of investigators under this Bill. Investigation
committees are limited to the powers described. Investigators have a
broader range of powers (ie. entry, search and seizure). This will be
relevant for boards in deciding who is to conduct investigations.
Division 4--Investigators
Clause 70 specifies that an investigator has the function of conducting an
investigation as directed by the board.
Clause 71 specifies that an investigator has the powers provided for
under this Act.
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Health Practitioners (Professional Standards)
Clause 72 clarifies that the powers of the investigator may be limited by
condition of appointment or as part of the direction to conduct the
investigation. The purpose of this section is to enable the board to
appropriately limit the powers available to the investigator having regard to
the nature of the matter to be investigated.
Clause 73 specifies who may be appointed as an investigator. Paragraph
(c) which is a standard provision in the health practitioners legislation
scheme, clarifies that the appointment of a member of the staff of the Office
of Health Practitioner Registration Boards as investigator cannot occur
without the approval of the Executive Officer.
Clause 74 specifies that an investigator holds office on the condition
stated in the instrument of appointment and provides for investigators to
resign by notice given to the board.
Clause 75 requires the board to provide each investigator with an identity
card containing a recent photograph of the person and other relevant
particulars. The provision allows for a single identity card to be issued for
this Act and another Act.
Clause 76 sets out the circumstances under which an identity card issued
to an investigator must be returned to the board.
Clause 77 requires an investigator to first produce or display the
investigator's identity card before exercising any powers under the Act. The
provision also creates an exception to the general duty where it is not
practicable to comply; in which case the investigator must produce the
identity card at the first reasonable opportunity.
Division 5--Investigation powers
Clause 78 specifies the powers of investigators and investigation
committees to require information and things (including documents). The
provision also enables investigators or investigation committees to require
persons to attend for the purpose of answering questions or producing
things (including documents).
Clause 79 specifies that it is an offence not to comply with a requirement
under clause 78 without reasonable excuse.
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Health Practitioners (Professional Standards)
Clause 80 specifies that it is a reasonable excuse not to comply with
clause 78 if the giving of information, the answering of a question, or the
production of a document or thing, might incriminate the individual.
Clause 81 specifies the powers of an investigation committee in respect
of things (including documents) which are produced.
Clause 82 outlines the circumstances under which an investigator may
enter a place for the purpose of an investigation. For the purpose of this
provision, a "public place" would include a registrant's waiting room.
Clause 83 outlines the procedures an investigator must follow when
seeking consent to enter any place.
Clause 84 makes provision for any investigator to apply to a magistrate
for a warrant to enter a place. Under this provision a magistrate may refuse
to consider an application until the investigator provides the magistrate with
the information he or she has requested.
Clause 85 sets out the conditions under which the magistrate may issue a
warrant and specifies the information that must be stated in a warrant.
Clause 86 makes provision for an investigator to apply for a warrant by
phone, fax, radio or other form of communication because of urgent or
other special circumstances.
Clause 87 outlines the procedures that must be followed by an inspector
prior to entering a place under a warrant.
Clause 88 specifies the powers that are available to an investigator who
has entered a place.
Clause 89 makes it an offence for a person to fail to help an investigator
unless the person has a reasonable excuse.
Clause 90 makes it an offence for a person to fail to give information to
an investigator when directed to do so unless the person has a reasonable
excuse.
Clause 91 provides an investigator with the power to seize the thing at a
public place if the investigator reasonably believes the thing is relevant to the
investigation. Neither a warrant nor consent is required to seize such
evidence.
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Health Practitioners (Professional Standards)
Clause 92 deals with the investigator's power to seek evidence at places,
other than public places, with consent or warrant. Where the investigator
enters a place with a warrant the investigator may seize evidence for which
the warrant was issued. If the investigator enters with the occupier's
consent, the investigator's powers to seize things are limited to evidence that
is relevant to the investigation but consent is not required to seize such
things. The provision also includes a power to seize other things relevant to
the investigation under certain circumstances.
Clause 93 authorises an investigator to secure a seized thing either by
moving it to another place or taking reasonable action to restrict access to it.
This provision is most likely to be used where a piece of equipment is
implicated in an investigation and it is necessary to secure it to preserve its
evidentiary value.
Clause 94 makes it an offence for a person to tamper, or attempt to
tamper, with the thing which has been seized.
Clause 95 makes provision for an investigator to require the person in
control of the thing to be seized to take it to a stated reasonable place by a
stated reasonable time and, if necessary, to remain in control of it at this
place for a reasonable time. It is an offence for a person to fail to comply
with the requirement or a further requirement made under this clause unless
the person has a reasonable excuse. This provision is most likely to be used
where it is not practicable for the investigator to seize the thing on the spot
(for example, a large piece of equipment).
Clause 96 requires an investigator to issue a receipt for any seized thing
and give the receipt to the person from whom it was seized. This clause
also creates some exceptions to the duty to provide a receipt.
Clause 97 sets out the circumstances under which a seized thing will be
forfeited to the State, for example, if the owner cannot be found after
reasonable inquiries or if it cannot be returned to the owner after making
reasonable efforts.
Clause 98 enables the Executive Officer, Office of Health Practitioner
Registration Boards, to deal with the thing which has been forfeited to the
State as he or she considers appropriate, including destruction or disposal of
the thing.
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Health Practitioners (Professional Standards)
Clause 99 sets out the circumstances under which an investigator must
return a thing which has been seized but not forfeited to the State, for
example, at the conclusion of disciplinary proceedings and any appeal from
those proceedings.
Clause 100 provides for the owner of any seized thing to have access to it
for inspection or, if it is a document, copying, until it is forfeited or returned.
Clause 101 requires an investigator to give written notice if an
investigator damages property when exercising or purporting to exercise a
power, or a person acting under the direction of the authority of an
investigator, damages the property. The notice must set out the particulars
of the damage and be given to the person who appears to be the owner of
the property. The provision also creates certain exceptions to this
requirement.
Clause 102 creates a right for a person to claim compensation from a
board where a person incurs loss or expense because of powers exercised
by an investigator under specified sub- divisions of this Act.
Clause 103 makes it an offence for a person to provide an investigation
committee or investigator with information that the person knows is false or
misleading in a material particular.
Clause 104 makes it an offence for a person to give an investigation
committee or an investigator a document which the person knows is false or
misleading in a material particular. The provision also specifies the
circumstances under which an offence is not committed.
Clause 105 makes it an offence for a person to obstruct an investigator
unless the person has a reasonable excuse.
Clause 106 makes it an offence to impersonate an investigator.
Clause 107 creates a power for a board to require a registrant to undergo
a health assessment in certain circumstances. The board must give the
registrant notice of the requirement and the registrant must comply with the
notice unless they have a reasonable excuse. The circumstances under
which the board may exercise this power are restricted to those where there
appear to be grounds for disciplinary action against the registrant and the
nature of those grounds is such that it is reasonable to require the registrants
undergo an assessment.
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Health Practitioners (Professional Standards)
Clause 108 provides for a board to appoint an appropriately qualified
medical practitioner(s), registrant or other person to conduct a health
assessment under clause 107. This provision also prohibits the board
obtaining this report from an individual who has a personal or professional
connection with the registrant.
Clause 109 specifies that the report of the health assessment is to be
provided to the board and except under specified circumstances, also given
to the registrant or a medical practitioner nominated by the registrant. If the
report is given to a medical practitioner nominated by the registrant, that
practitioner must advise the board about the information they have given the
registrant. The provision also specifies the matters the report must include.
Clause 110 provides a registrant with the right to make submissions on
the assessment report (or the information provided to the registrant under
clause 109). The submissions must be made within a prescribed period.
Clause 111 creates a power for the board to obtain a report from a
relevant expert about a matter which is the subject of an investigation. It is
anticipated that, in practice, these reports will be obtained where there is an
issue of a specialist or technical nature and the board is of the view that there
is a need for independent opinion as to the appropriateness of the
registrant's clinical practice. This provision also prohibits the board
obtaining this report from an individual who has a personal or professional
connection with the registrant.
Clause 112 limits the way in which the health assessment reports and
expert reports provided under clauses 109 and 111 may be used. This
provision prevents such reports being used in court proceedings.
Clause 113 specifies that persons who provide health assessments or
expert assistance are entitled to be paid. This provision does not prevent
waiver of payment by the persons concerned.
Division 6--Action following investigation
Clause 114 specifies that where an investigation is undertaken by an
investigator or an investigation committee (other than a committee
comprised of all the members of the board), the investigator or the
committee must prepare, for the board, a preliminary report regarding the
investigation.
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Health Practitioners (Professional Standards)
Clause 115 requires a board to prepare an investigation report and sets
out the matters which must be included in that report. This section also
clarifies that a board may adopt without amendment, the preliminary
investigation report prepared by the investigator or investigation committee.
Clause 116 specifies that, where a board undertakes an investigation it
must, if asked to do so by the commissioner, provide the commissioner
with reasonable reports about the investigation. This section also requires
the board to provide the commissioner with a report at the conclusion of the
investigation. This provision specifies the minimum matters which must be
included in the report given to the commissioner. In practice, a board may
give the commissioner the report prepared under clause 115 or a different
report. This provision also enables the commissioner to make comment or
recommendations or provide information regarding the investigation report.
A board cannot make a decision regarding the action to be taken until the
commissioner provides comments, indicates comments will not be
provided or the timeframe for comments (generally 14 days) has passed.
It is anticipated that in practice the commissioner will generally provide
comment only on those investigations where the commissioner has some
concerns about the investigative process or the boards' recommendations.
It is likely that in many cases the commissioner will not have comments to
make regarding the investigation report. The commissioner's role in
considering the boards' investigation report provides an important
accountability upon the boards' investigative process and provides an
opportunity for the decision as to the action to be taken to be informed by an
independent perspective.
Clause 117 clarifies that the commissioner may, at any time, give the
Minister a report about investigations conducted by the boards or about a
particular investigation. This is a reserve power designed to reinforce the
accountability of the registration boards for the quality and appropriateness
of the investigations undertaken and acknowledges the Minister's
responsibility for administration of the Act.
Clause 118 specifies the actions a board must take at the conclusion of an
investigation (after considering the commissioner's comments, if any, about
the matter). This clause obliges the board to refer the most serious
disciplinary matters (ie. those which would, in the board's view, provide
grounds for suspension or cancellation of a registrant's registration) to the
tribunal and also requires those matters which were commenced by way of
an immediate suspension or other action under part 4 to be referred to the
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Health Practitioners (Professional Standards)
tribunal. For all other circumstances, the board has the discretion to
determine the action to be taken. Importantly, this provision specifies that
even though a board may decide under this section to take no action on a
complaint, the board is not prevented from taking the matter into account as
part of a pattern of conduct or practice that may provide grounds for
disciplinary action against the registrant. This provision is particularly
important in ensuring that disciplinary proceedings regarding registrants are
fully informed by any relevant past history. However, disciplinary action
will only be taken where allegations have been proven before the
disciplinary body.
Clause 119 specifies that as soon as making a decision as to the action to
be taken under clause 118, the board must take the action.
Clause 120 specifies that on completion of investigation, the board must
provide notice of its decision as to the action to be taken to the registrant
and, if the investigation was the result of a complaint, to the complainant.
Importantly, this clause confers upon the registrant a right to elect to have a
disciplinary matter heard by the tribunal rather than by another disciplinary
body (ie. the board or a panel). The registrant must make this decision
within fourteen days.
Clause 121 specifies that if a board enters into an undertaking with a
registrant under clause 118 (at the conclusion of an investigation), the
undertaking and the details of the undertaking must be recorded on the
register except under certain circumstances.
PART 6--DISCIPLINARY PROCEEDINGS
Division 1--Preliminary
Clause 122 specifies the purposes of part 6, namely to:
· set out the purposes of disciplinary proceedings and disciplinary
action;
· states the circumstances under which disciplinary proceedings
may commence;
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Health Practitioners (Professional Standards)
· provide the grounds for disciplinary action and processes for
adjudication of disciplinary matters regarding registrants.
A further purpose of this part is to enable disciplinary proceedings to be
taken against former registrants.
A distinction is made under this Act between "disciplinary proceedings"
(which are the processes from filing a notice of referral to determining
disciplinary matters, including certain appeals and reviews), "hearing"
(which is the actual hearing of the matter) and "disciplinary action" (which
is the outcome of the disciplinary proceedings when the case against the
registrant has been proved).
Clause 123 specifies the purposes of disciplinary proceedings and
disciplinary action, namely to:
· protect the public;
· uphold the standards of practice within the health professions; and
· maintain public confidence in the health professions.
The purposes of disciplinary proceedings and disciplinary action are
relevant considerations for the disciplinary bodies making decisions as to
the disciplinary action which should be imposed upon a registrant. It should
be noted that there are no other purposes for taking disciplinary proceedings
or imposing disciplinary action under this Bill.
Division 2--Grounds for disciplinary action
Clause 124 specifies each of the grounds for taking disciplinary action
against a registrant. It should be noted that only one ground needs to be met
for disciplinary action to be taken but that proceedings may be taken on the
basis of more than one ground.
· "Unsatisfactory Professional Conduct"
In practice it is likely that the majority of disciplinary proceedings will be
taken on the basis that the registrant has behaved in a way which constitutes
"unsatisfactory professional conduct". This term is defined in the
dictionary in the schedule to the Act. "Unsatisfactory professional conduct"
is defined to include professional conduct that is of a lesser standard than
that which might reasonably be expected of the registrant by the public or by
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Health Practitioners (Professional Standards)
the registrant's professional peers. Under current health practitioner
legislation, disciplinary action may only be taken against a registrant where
the practitioner's conduct is substantially below the standards considered
acceptable to the profession. This new definition broadens the
circumstances under which disciplinary action may be taken. This
definition, which is based on recent Victorian legislation concerning health
practitioners, is designed to afford a higher degree of public protection.
To remove any doubt, the definition of "unsatisfactory professional
conduct" also includes "infamous conduct in a professional respect",
"misconduct in a professional respect" and "conduct discreditable to the
profession". These terms have been subject to judicial interpretation and
they have been included in this definition in order to remove any doubt that
conduct which has previously been found to come within the meaning of
those particular terms is, explicitly, "unsatisfactory professional conduct"
for the purpose of this Act. However, "unsatisfactory professional
conduct" clearly includes a broader range of matters than those covered by
these terms.
Paragraph (b) of the definition of "unsatisfactory professional conduct"
reflects recent New South Wales legislation concerning registered health
practitioners. It has been incorporated to remove any doubt that
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.
· Other grounds for taking disciplinary action
The other grounds for taking disciplinary action against a registrant
include contraventions of a provision of this Act or a health practitioner
registration Act, including a failure to comply with conditions or
undertakings imposed on the registrant's registration. In addition,
disciplinary action may be taken if the registrant does not meet, or no longer
meets, the criteria for registration under the health practitioner registration
Act under which they were registered. Finally, disciplinary action may be
taken if a registrant has been convicted of an indictable offence or a finding
of inappropriate practice has been made under the Health Insurance Act
1973 (Commonwealth). An important distinction is to be made in respect
of disciplinary action on the basis of a conviction of an indictable offence.
While all the other grounds for disciplinary action (except impairment--see
below) are concerned with the professional conduct or practice of a
registrant, this ground is not limited to a registrant's conduct in a
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Health Practitioners (Professional Standards)
professional capacity, that is, a conviction of any indictable offence in
Queensland (or, by virtue of the Acts Interpretation Act 1954 or conviction
of an equivalent offence in another jurisdiction) is, itself, grounds for
disciplinary action. It should be noted that the professional conduct of a
registrant who is an owner or manager of a health practitioner business or a
supervisor of a registrant is also within the reach of the disciplinary
provisions of the Bill.
This provision also specifies that, if a registrant is impaired, the
registrant's impairment is taken to be a ground for disciplinary action
against the registrant. It is not necessary for the registrant's 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 registrant's professional
conduct.
Division 3--Starting disciplinary proceedings
Clause 125 specifies that a board may commence disciplinary
proceedings against a registrant if it is reasonably believes there are grounds
for disciplinary action to be taken. This provision also clarifies that
proceedings may be started on the basis of one or more complaints,
including complaints suggesting a pattern of conduct or practice that may
result in disciplinary action. It is not necessary for a complaint to have been
investigated under part 5 for a board to commence disciplinary proceedings
against a registrant. In cases where disciplinary proceedings are on the basis
of a conviction of an indictable offence, for example, the board may
determine that the investigative process is unnecessary and that the matter
can be dealt with by proceeding directly to disciplinary proceedings.
This provision also clarifies that a board may start disciplinary
proceedings on the basis of more than one disciplinary matter.
Clause 126 specifies that disciplinary proceedings start when a notice is
filed with the secretary of the panels or the registrar of the tribunal, or by
provision of notice to the registrant and other specified persons where the
matter is being dealt with by the board itself (including a disciplinary
committee). This provision also specifies the contents of the referral notice.
This provision is used for all referrals for disciplinary proceedings (other
than appeals and reviews).
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Health Practitioners (Professional Standards)
Division 4--Disciplinary proceedings conducted by board
Clause 127 specifies that a board has jurisdiction to conduct proceedings
relating to any disciplinary matter involving a registrant. This provision
needs to be read in conjunction with clauses 118 and 133 (which provide
registrants with the right to elect to have a matter dealt with by the tribunal)
and clause 134 which specifies that those matters which, in the board's
view, appear to provide grounds for cancellation or suspension of a
registrant's registration must be dealt with by the tribunal.
Clause 128 clarifies that a board or disciplinary committee appointed by
the board (comprised of some or all board members) may undertake
disciplinary proceedings through either a hearing process or written
correspondence with the registrant.
Clause 129 allows the board or disciplinary committee to deal with other
matters which arise during the proceedings in addition to the disciplinary
matter which is the initial subject of the proceeding. Where additional
matters are introduced the proceedings may or must be adjourned under
certain circumstances. It is not necessary for the additional matter to arise
during the hearing for this provision to be triggered. For example, if the
board received an additional complaint about a registrant after proceedings
had commenced, it could, if considered it appropriate, utilise this provision
to ensure the additional matter was taken into account during the
proceedings.
Clause 130 specifies that subdivision 2 applies if disciplinary
proceedings by the board or disciplinary committee take the form of a
hearing.
Clause 131 specifies that a board or disciplinary committee must give the
registrant and various other entities at least 14 days notice of an intention to
conduct a hearing. The provision also specifies the contents of the notice.
Clause 132 provides for substituted service of a notice under certain
circumstances.
Clause 133 confers on a registrant who is to be the subject of disciplinary
proceedings before a board or disciplinary committee a right to choose to
have the matter heard by the tribunal. This provision is necessary to fully
protect the rights of registrants (ie. to ensure that a registrant has the
opportunity to a hearing before a judge and to be legally represented). This
provision does not apply if the registrant was the subject of an investigation,
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Health Practitioners (Professional Standards)
because at the conclusion of the investigation the registrant is given the same
opportunity to require the matter to be referred to the tribunal for hearing
(see clause 120).
Clause 134 enables a board to refer a disciplinary matter to a panel or the
tribunal if issues arise during the hearing which indicate that a referral is
appropriate. This provision also requires a board, except under certain
circumstances, to refer a matter to the tribunal if issues arise which indicate
that the matter may, if substantiated, provide grounds for cancellation or
suspension of the registrant's registration. Under this provision a board or
committee may decide that a matter should be dealt with under the
impairment part. In practice, this will only occur where the issues relate
solely or principally to impairment, rather than the other grounds for
disciplinary action. The notice requirements associated with the referral are
also set out in this provision.
Clause 135 enables a disciplinary committee to require a board to refer a
disciplinary matter to a panel or the tribunal (or deal with it under the
impairment part) under certain circumstances. The notice requirements
associated with the referral are also set out in this provision.
Clause 136 sets out the procedural requirements for the hearing (ie.
complying with natural justice and acting quickly and with as little formality
and technicality as is consistent with a fair and proper consideration of the
matter) and other powers and duties in respect of the proceedings.
Clause 137 specifies that a hearing is to be conducted at the times and
places the board or disciplinary committee decides.
Clause 138 specifies that the hearing is not open to the public.
Clause 139 requires a registrant to appear at the hearing in person and
allow a registrant to be accompanied by a person, including a lawyer. The
provision enables the board or disciplinary committee to allow a person,
other than a lawyer, to speak on behalf of the registrant. The prohibition on
legal representation is considered essential to ensure an informal and
non-legalistic approach to the hearing. Importantly, a registrant may
choose, under clauses 120, 133 and 155, to have a disciplinary matter dealt
with by the tribunal and be represented by a lawyer during that hearing. The
provision also confers a right upon the complainant to attend the hearing and
be accompanied by a lawyer or other person.
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Health Practitioners (Professional Standards)
Clause 140 enables a board to exclude the complainant from all or part of
the hearing before giving evidence if their attendance would seriously
prejudice the fair hearing of the matter. In practice, the complainant will
only be excluded to the extent necessary to prevent any serious prejudice.
Clause 141 enables a board or disciplinary committee to direct a person
attending the hearing (other than the registrant) to leave the hearing if they
are causing a disruption.
Clause 142 provides a board or disciplinary committee with the power to
engage a lawyer or other person to assist at the hearing. However, this
person's role is restricted to advising the board or disciplinary committee
and they are explicitly prevented for asking questions of the registrant and
other persons appearing at the hearing.
Clause 143 provides that witnesses may be compelled to attend the
hearing to give answers, evidence and things (including documents).
Important additional hearing powers conferred by section 27 of the Acts
Interpretation Act 1954 are the power to receive evidence, examine
witnesses and administer oaths to witnesses.
Clause 144 clarifies that proceedings may be adjourned or may proceed
in the absence of the registrant.
Clause 145 specifies that questions are determined by a majority vote and
that, in the event of a tied vote, the chairperson has a casting vote.
Clause 146 specifies the way in which a matter is to be dealt with if a
board member ceases to be a board member or is otherwise unable to take
further part in the proceedings.
Clause 147 specifies the way in which a matter is to be dealt with if a
disciplinary committee member ceases to be a disciplinary committee
member or is otherwise unable to take further part in the proceedings.
Clause 148 provides a power for things (including documents) produced
at a hearing to be inspected, copied, photographed and, where necessary,
retained.
Clause 149 specifies that the adjudicative body may receive in evidence a
transcript of evidence taken in a proceeding before a disciplinary body, court
or tribunal constituted in Australia or a foreign country and may draw
conclusions of fact from the evidence. The provision also clarifies that the
tribunal may adopt decisions, findings, judgements or reasons for
judgement of the disciplinary body, court or tribunal.
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Health Practitioners (Professional Standards)
Clause 150 creates an entitlement for witnesses who attend a hearing to
be paid an amount prescribed by regulation by the party who calls them.
The provision is cast in such a way as to enable the witness to waive
payment.
Clause 151 requires a board or disciplinary committee to keep, in a way
it considers appropriate, a record of evidence given to it in relation to
disciplinary proceedings. It is not anticipated that a transcript will be kept of
the proceedings.
Clause 152 specifies that subdivision 3 applies if disciplinary
proceedings by a board or disciplinary committee take the form of
correspondence between the board or disciplinary committee and a
registrant.
Clause 153 requires a board or disciplinary committee to give the
registrant and other entities at least 14 days notice of an intention to conduct
disciplinary proceedings by correspondence. The provision also specifies
the contents of the notice.
Clause 154 provides for substituted service of a notice under certain
circumstances.
Clause 155 confers on a registrant who is to be the subject of
adjudication by a board or disciplinary committee a right to elect to have the
matter heard by the tribunal. This provision is necessary to fully protect the
rights of registrants (ie. to ensure that a registrant has the opportunity to a
hearing before a judge and to be legally represented). This provision does
not apply if the registrant was the subject of an investigation, because at the
conclusion of the investigation the registrant is given the same opportunity
to require the matter to be referred to the tribunal for hearing.
Clause 156 provides a board or disciplinary committee with the power to
require information relevant to disciplinary proceedings (being dealt with by
correspondence) from the registrant or another person.
Clause 157 clarifies that even if a registrant does not make a submission,
the board or disciplinary committee may continue to deal with the matter
and make a decision regarding disciplinary action.
Clause 158 makes it an offence for a person to fail to attend or continue
to attend the hearing, take an oath or affirmation, answer a question or
produce a document or thing unless the person has a reasonable excuse.
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Health Practitioners (Professional Standards)
Clause 159 makes it an offence for a person to fail to give information as
required under clause 156 unless the person has a reasonable excuse.
Clause 160 specifies that it is reasonable excuse to fail to answer a
question or produce a document or thing if doing so might tend to
incriminate the individual.
Clause 161 makes it an offence for a person to knowingly provide
information at a hearing which is false or misleading in a material particular.
Clause 162 makes it an offence for a person to give a document which is
false or misleading in a material particular. The provision also specifies the
circumstances under which the provision of such a document does not
constitute an offence.
Clause 163 makes various types of conduct at a hearing by a board or
disciplinary committee an offence, including any matter which would be
contempt of court in a court of record.
Clause 164 specifies that a decision must be made as to whether the
grounds for disciplinary action against the registrant have been established
as soon as practicable after completing the hearing (or within 14 days from
receipt of submissions if the matter is being dealt with by correspondence).
The provision includes matters which must be taken into account in
determining if the registrant has engaged in "unsatisfactory professional
conduct". The requirement to have regard to previous relevant decisions of
a disciplinary body or the Medical Assessment Tribunal is a reference to
precedent generally and is not intended to imply that a finding in respect of
the appropriateness of a clinical procedure regarding one profession (for
example, medicine) must automatically apply to another (for example,
chiropractic). For the purpose of considering previous decisions, the
provision creates an entitlement to access decisions of other disciplinary
bodies (including the decisions of boards before the commencement of this
Act) and the former Medical Assessment Tribunal.
Clause 165 prescribes the actions that must be taken if the grounds for
disciplinary action against the registrant are established. The provision also
specifies the circumstances under which disciplinary action may or must be
recorded on the register.
Clause 166 prescribes the actions that must be taken if the grounds for
disciplinary action are established against a former registrant.
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Health Practitioners (Professional Standards)
Clause 167 sets out some of the matters which must or may be
considered in making a decision as to the disciplinary action to be imposed.
Other considerations may include the seriousness of the conduct, the
likelihood the conduct will recur, the registrant's attitude toward the conduct
(including any remorse demonstrated) and any decisions made by other
disciplinary bodies regarding the registrant. For the purpose of considering
previous decisions, the provision creates an entitlement to access decisions
of other disciplinary bodies (including the decisions of boards before the
commencement of this Act) and the former Medical Assessment Tribunal.
Clause 168 specifies the persons who must be given notice of a board's
or committee's decisions as to whether the grounds for disciplinary action
have been established in respect of a registrant or former registrant, the
disciplinary action (if any) to be imposed and the nature of any action to be
recorded on the register. The provision also specifies the contents of the
notice.
Clause 169 specifies additional information to be included in the notice
provided under clause 168.
Clause 170 specifies what may or must be recorded in the board's
register if disciplinary action is taken.
Division 5--Professional conduct review panels
Clause 171 specifies a panel's jurisdiction to conduct disciplinary
proceedings against registrants. This provision needs to be read in
conjunction with clauses 120 and 177 which enable registrants to elect to
have matters dealt with by the tribunal and clause 178 which require matters
which indicate grounds for cancellation or suspension of a registrant's
registration to be referred to the tribunal.
This provision also clarifies that a panel may deal with one or more
disciplinary matters in disciplinary proceedings regarding a registrant.
Clause 172 allows the panel to deal with other matters which arise during
the proceedings in addition to the disciplinary matter which is the initial
subject of the proceeding. Where additional matters are introduced, the
proceedings may or must be adjourned under certain circumstances. It is
not necessary for the additional matter to arise during the hearing for this
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Health Practitioners (Professional Standards)
provision to be triggered. For example, if the board received an additional
complaint about a registrant after proceedings had commenced, it could, if
the panel considered it appropriate, utilise this provision to ensure the
additional matter was taken into account during the proceedings.
Clause 173 specifies that the parties to a disciplinary proceeding before a
panel are the registrant to whom the proceeding relates and the board that
referred the matter to the panel. Where the Health Rights Commissioner
exercises his or her power under section 130 of the Health Rights
Commission Act 1991 to intervene in the proceedings, the commissioner
also becomes a party.
Clause 174 specifies that the secretary must give the registrant and
various other entities at least 14 days notice of an intention to conduct a
hearing. The provision also specifies the contents of the notice.
Clause 175 provides for substituted service of a notice under certain
circumstances.
Clause 176 specifies that a panel may, on its own initiative or at the
request of a party, hold a pre-hearing conference for the purpose of
considering or giving directions in respect of any matter or proceeding
within its jurisdiction (for example, establishing the persons to whom
attendance notices are to be issued and the timetable for calling of
witnesses). The provision enables a panel to delegate the power to hold a
conference to the secretary and also specifies the way in which the
conference may be conducted. A panel may require a party to attend a
pre-hearing conference.
Clause 177 confers on a registrant who is to be the subject of
adjudication by a panel a right to elect to have the matter heard by the
tribunal. This provision is necessary to fully protect the rights of registrants
(ie. to ensure that a registrant has the opportunity to a hearing before a judge
and to be legally represented). This provision does not apply if the registrant
was the subject of an investigation because, at the conclusion of the
investigation, the registrant is given the same opportunity (under clause 120)
to require the matter to be referred to the tribunal for hearing.
Clause 178 enables a panel to require a board to refer a disciplinary
matter to the tribunal if issues arise during the hearing which indicate that a
referral is appropriate. This provision also requires a panel, except under
certain circumstances, to direct a board refer a matter to the tribunal if issues
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arise which indicate that the matter may, if substantiated, provide grounds
for cancellation or suspension of the registrant's registration. Under this
provision a panel may also refer a matter back to the board to deal with
under the impairment part. In practice, the panel will only refer matters
back to the board where the issues relate solely or principally to impairment,
rather than the other grounds for disciplinary action. The notice
requirements associated with the referral are also set out in this provision.
Clause 179 sets out the procedural requirements for the hearing (ie.
complying with natural justice and acting quickly and with as little formality
and technicality as is consistent with a fair and proper consideration of the
matter) and other powers and duties in respect of the proceedings.
Clause 180 specifies that the panel is to sit at the times and places decided
by the chairperson of the panel.
Clause 181 specifies that the hearing by the panel is not open to the
public.
Clause 182 requires a registrant to appear at the hearing in person and
allows the registrant to be accompanied by a person, including a lawyer.
The provision enables the panel to allow a person, other than a lawyer, to
speak on behalf of the registrant. The board may also nominate a person,
other than a lawyer, to appear on its behalf at the hearing. The provision
also confers a right to attend (and by accompanied by a lawyer or other
person) on the complainant. The prohibition on legal representation is
considered essential to ensure an informal and non-legalistic approach to the
hearing. Importantly, a registrant may choose, under clauses 120 and 177,
to have a disciplinary matter dealt with by the tribunal and be represented by
a lawyer during that hearing.
Clause 183 enables a panel to exclude the complainant from all or part of
the hearing before giving evidence if their attendance would seriously
prejudice the fair hearing of the matter. In practice, the complainant will
only be excluded to the extent necessary to prevent any serious prejudice.
Clause 184 enables a panel to direct a person attending the hearing (other
than the registrant) to leave the hearing if they are causing a disruption. This
provision is in addition to clause 199 (which deals with contempt). Clause
199 also applies to registrants.
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Clause 185 provides that a panel may also be assisted at the hearing by
the secretary or a person (including a lawyer) appointed by the Secretary.
However, the assisting person's role is restricted to advising the panel and
they are explicitly prevented for asking questions of the registrant and other
persons appearing at the hearing. In practice, it is anticipated that this role
will be largely undertaken by the secretary.
Clause 186 provides that witnesses may be compelled to attend the
hearing to give answers, evidence and things (including documents). A
party may also apply for an attendance notice to be given to a person and the
notice must be issued except where it is considered unnecessary or
inappropriate by the secretary. Important additional hearing powers
conferred by section 27 of the Acts Interpretation Act 1954 are the power to
receive evidence, examine witnesses and administer oaths to witnesses.
Clause 187 clarifies that proceedings may be adjourned or may proceed
in the absence of a party.
Clause 188 provides that a question before the panel must be decided by
a majority of votes and that in the event of a tied vote, the chairperson of the
panel (who must be a member of the relevant professional panel of
assessors) has the casting vote.
Clause 189 specifies the way in which a matter is to be dealt with if a
panel member ceases to be a panel member or is otherwise unable to take
part in the proceedings.
Clause 190 enables a panel to, at any time, make an interim order of the
kind it could make at the conclusion of disciplinary proceedings. An
interim order will be made where the panel considers it necessary to ensure
the objectives of the Act are being achieved in the period between the
commencement of proceedings and the determination of the matter. An
interim order is most likely to be made where it is necessary to adjourn the
proceedings and the panel is concerned that public protection may be
compromised if an order is not made.
Where a panel imposes an interim order it much also decide whether the
details of the order are to be recorded on the register.
Clause 191 provides a power for things (including documents) produced
at a hearing to be inspected, copied, photographed and, where necessary,
retained.
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Health Practitioners (Professional Standards)
Clause 192 specifies that the adjudicative body may receive in evidence a
transcript of evidence taken in a proceeding before a disciplinary body, court
or tribunal constituted in Australia or a foreign country and may draw
conclusions of fact from the evidence. The provision also clarifies that the
tribunal may adopt decisions, findings, judgements or reasons for
judgement of the disciplinary body, court or tribunal.
Clause 193 creates an entitlement for witnesses who attend a hearing to
be paid an amount prescribed by regulation by the party who calls them.
The provision is cast in such a way as to enable the witness to waive
payment.
Clause 194 requires a panel to keep, in a way it considers appropriate, a
record of evidence given to it in relation to disciplinary proceedings as this
material may be required for the purpose of an appeal. While it is not
anticipated that transcripts will be routinely kept of the proceedings, this
provision specifies responsibility for payment if the proceedings are
transcribed. In the event that proceedings are transcribed, a copy of the
transcript will be retained by the secretary.
Clause 195 makes it an offence for a person to fail to attend or continue
to attend the hearing, take an oath or affirmation, answer a question or
produce a thing unless the person has a reasonable excuse.
Clause 196 specifies that it is a reasonable excuse to fail to answer a
question or produce a document or thing if doing so might tend to
incriminate the individual.
Clause 197 makes it an offence for a person to knowingly provide
information at a hearing which is false or misleading in a material particular.
Clause 198 makes it an offence for a person to give a document which is
false or misleading in a material particular. The provision also specifies the
circumstances under which the provision of such a document does not
constitute an offence.
Clause 199 makes various types of conduct at a hearing an offence,
including any matter which would be contempt of court in a court of record.
Clause 200 specifies that a decision must be made as to whether the
grounds for disciplinary action against the registrant have been established
as soon as practicable after completing the hearing. The provision includes
matters which must be taken into account in determining if the registrant has
engaged in "unsatisfactory professional conduct". The requirement to have
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regard to previous relevant decisions of a disciplinary body or the Medical
Assessment Tribunal is a reference to precedent generally and is not
intended to imply that a finding in respect of the appropriateness of a clinical
procedure regarding one profession (for example, medicine) must
automatically apply to another (for example, chiropractic). For the purpose
of considering previous decisions, the provision creates an entitlement to
access decisions of other disciplinary bodies (including the decisions of
boards before the commencement of this Act) and the former Medical
Assessment Tribunal.
Clause 201 prescribes the actions that must be taken if the grounds for
disciplinary action against the registrant are established. If a panel imposes
conditions on a registrant under this provision, the panel may also determine
the period within which the registrant may apply for a review of the decision
(refer clause 315).
Clause 202 specifies the circumstances under which disciplinary action
taken by a panel may or must be recorded on the register.
Clause 203 prescribes the actions that must be taken if the grounds for
disciplinary action are established against a former registrant. The provision
also enables a panel to decide on conditions that are to be imposed on any
future registration of the person as a registrant.
Clause 204 sets out some of the matters which must or may be
considered in making a decision as to the disciplinary action to be imposed.
Other considerations may include the seriousness of the conduct, the
likelihood the conduct will recur, the registrant's attitude toward the conduct
(including any remorse demonstrated) and any decisions made by other
disciplinary bodies regarding the registrant. For the purpose of considering
previous decisions, the provision creates an entitlement to access decisions
of other disciplinary bodies (including the decisions of boards before the
commencement of this Act) and the former Medical Assessment Tribunal.
Clause 205 specifies the persons who must be given notice of a panel's
decisions as to whether the grounds for disciplinary action have been
established in respect of a registrant, the disciplinary action (if any) to be
imposed and the nature of any action to be recorded on the register. The
provision also specifies the contents of the notice.
Clause 206 specifies additional information to be included in the notice
provided under clause 205.
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Clause 207 specifies that a panel's decision is binding on all parties.
However, this provision needs to be read in conjunction with division 3 of
part 9 which provides a right of appeal to the tribunal in respect of panel
decisions.
Clause 208 requires a board to give effect to and implement a decision of
a panel, unless the decision is stayed by the tribunal under clause 325. This
provision also requires a board to amend the board's register in the way
specified in the notice of the panel's decision.
Clause 209 clarifies that a document relating to a proceeding requiring
authentication by a panel is sufficiently authenticated if it is signed by the
chairperson of the panel, a panel member or the secretary.
Clause 210 specifies that judicial notice must be taken of the signature of
the chairperson of the panel, a panel member or the secretary if it appears on
a document issued by the panel.
Division 6--Health Practitioners Tribunal
Clause 211 sets out the tribunal's jurisdiction (for example, to hear
disciplinary matters regarding registrants, including appeals and applications
for review).
This provision also clarifies that the tribunal may deal with one or more
disciplinary matters in disciplinary proceedings regarding a registrant.
Clause 210 allows the tribunal to deal with other matters which arise
during the proceedings in addition to the disciplinary matter which is the
initial subject of the proceeding. Where additional matters are introduced the
proceedings may or must be adjourned under certain circumstances. It is
not necessary for the additional matter to arise during the hearing for this
provision to be triggered. For example, if the board received an additional
complaint about a registrant after proceedings had commenced, it could, if
the tribunal considered it appropriate, utilise this provision to ensure the
additional matter was taken into account during the proceedings.
Clause 213 provides that, as soon as practicable after a matter is referred
to the registrar, he chairperson of the tribunal must choose a tribunal
member to hear the matter (ie. "the constituting member"). In addition, the
registrar is to choose the assessors to assist the tribunal for that matter. The
process for choosing assessors is discussed under clause 31 above.
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Clause 214 specifies that the parties to a disciplinary proceeding before
the tribunal are the registrant to whom the proceeding relates and the board
that referred the matter to the tribunal. Where the Health Rights
Commissioner exercises his or her power under section 130 of the Health
Rights Commission Act 1991 to intervene in the proceedings, the
commissioner also becomes a party.
Clause 215 specifies that the registrar must give the registrant and
various other entities at least 14 days notice of an intention to conduct a
hearing. The provision also specifies the contents of the notice.
Clause 216 provides for substituted service of a notice under certain
circumstances.
Clause 217 specifies that the tribunal may, on its own initiative or at the
request of a party, hold a directions conference for the purpose of
considering or giving directions in respect of any matter or proceeding
within its jurisdiction. The provision enables the tribunal to delegate the
power to hold a conference to the registrar and also specifies the way in
which the conference may be conducted. As a directions conference deals
principally with procedural issues, it is not likely that the assessors will be
involved, however, the provision enables them to participate where the
tribunal considers it necessary or desirable. The tribunal may require a
person to attend a directions conference.
Clause 218 specifies the tribunal's power to require a board to establish a
health assessment committee to assess the health of a registrant whom the
tribunal believes may be impaired. The tribunal may exercise this power at
any time (and, in practice, may be exercised before the hearing commences)
and the committee's findings and recommendations are a relevant
consideration for deciding whether the registrant is impaired. In practice,
where a registrant's impairment manifests in misconduct, the tribunal will
generally decide if the registrant is impaired and whether another ground for
disciplinary action has been established.
This provision also specifies that where a registrant has been suspended
under clause 289 (and the matter has been referred to the tribunal), the
tribunal may stay the suspension.
Clause 219 sets out the procedural requirements for the hearing (ie.
observing natural justice and acting quickly and with as little formality and
technicality as is consistent with a fair and proper consideration of the
matter) and other powers and duties in respect of the proceedings.
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Clause 220 specifies that the tribunal is to sit at the times and places
decided by the tribunal.
Clause 221 provides that the tribunal may decide to receive evidence or
submissions by telephone, videolink or another form of communication.
Clause 222 specifies that a hearing by the tribunal (other than a hearing
dealing solely with an allegation of impairment) is open to the public except
under certain circumstances. However, the hearing of an impairment matter
is closed to the public except under certain circumstances.
Clause 223 empowers the tribunal to suppress the name of the registrant
to whom the proceeding relates. The tribunal would only make an order
under this section where doing so was consistent with the purposes of the
disciplinary proceedings set out in clause 123.
Clause 224 provides the tribunal with the power to make various orders
relating to the procedures for the giving of evidence by special witnesses
(for example, children).
Clause 225 specifies that the tribunal may excuse the registrant attending
all or part of the hearing. The provision also provides that the parties may
be represented by a lawyer or other person.
Clause 226 enables the tribunal to exclude the complainant and other
witnesses from all or part of the hearing before giving evidence if their
attendance would seriously prejudice the fair hearing of the matter. In
practice, the complainant will only be excluded to the extent necessary to
prevent any serious prejudice.
Clause 227 provides that all questions of law or fact before the tribunal
are to be decided by the constituting member (ie. the judge allocated
responsibility for hearing the matter). However, the judge may have regard
to the views of the assessors in determining questions of fact.
Clause 228 specifies the way in which a matter is to be dealt with if the
constituting member or an assessor ceases to be a tribunal member or
assessor or is otherwise unable to take part in the proceedings.
Clause 229 provides that witnesses may be compelled to attend the
hearing to give answers, evidence and things (including documents). A
party may also apply for an attendance notice to be given to a person and the
notice must be issued except where it is considered unnecessary or
inappropriate. Important additional hearing powers conferred by section 27
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of the Acts Interpretation Act 1954 are the power to receive evidence,
examine witnesses and administer oaths to witnesses.
Clause 230 clarifies that proceedings may be adjourned or proceed in the
absence of a party.
Clause 231 enables the tribunal to, at any time, make an interim order of
the kind it could make at the conclusion of disciplinary proceedings. An
interim order will be made where the tribunal considers it necessary to
ensure the objectives of the Act are being achieved in the period between the
commencement of proceedings and the determination of the matter. An
interim order is most likely to be made where it is necessary to adjourn the
proceedings and the tribunal is concerned that public protection may be
compromised if an order is not made.
Where the tribunal imposes an interim order it must also decide whether
the details of the order are to be recorded on the register.
Clause 232 provides a power for things (including documents) produced
at a hearing to be inspected, copied, photographed and, where necessary,
retained.
Clause 233 specifies that the adjudicative body may receive in evidence a
transcript of evidence taken in a proceeding before a disciplinary body, court
or tribunal constituted in Australia or a foreign country and may draw
conclusions of fact from the evidence. The provision also clarifies that the
tribunal may adopt decisions, findings, judgements or reasons for
judgement of the disciplinary body, court or tribunal.
Clause 234 creates an entitlement for witnesses who attend a hearing to
be paid an amount prescribed by regulation by the party who calls them.
The provision is cast in such a way as to enable the witness to waive
payment. The tribunal may decide not to compel a witness to give evidence
until the party has paid the witnesses expenses and allowance or given a
security for them.
Clause 235 requires the tribunal to keep, in a way it considers
appropriate, a record of evidence given to it in relation to disciplinary
proceedings. The Recording of Evidence Act 1962 applies to the tribunal.
Clause 236, which must be read in conjunction with clause 238, sets out
the conduct which constitutes contempt of the tribunal. Contempt includes
any matter which would be contempt of court if the tribunal were a court of
record.
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Also, it is contempt of the tribunal to publish, in a public way,
information which identifies a witness or other individual mentioned or
otherwise involved in the proceedings (excluding a party) or a registrant
about whom a suppression order is made. Clause 238 authorises
publication where the tribunal or individual concerned consents.
Clause 237 specifies that it is reasonable excuse for a person to fail to
answer a question or produce a document or thing when required to do so
by the tribunal if answering the question or producing the document or thing
might tend to incriminate the individual.
Clause 238 specifies certain conduct which is not contempt.
Clause 239 sets out the tribunal's power to punish contempt, the
procedures to be followed by the tribunal and the penalties which may be
imposed (ie. up to 167 penalty units or 2 years imprisonment). This
provision also provides for a financial assurance provided for an
undertaking to be forfeited where the registrant has not complied with the
undertaking.
Clause 240 specifies that a decision must be made as to whether the
grounds for disciplinary action against the registrant have been established
as soon as practicable after completing the hearing. The provision includes
matters which must be taken into account in determining if the registrant has
engaged in "unsatisfactory professional conduct" or is "impaired". The
requirement to have regard to previous relevant decisions of a disciplinary
body or the Medical Assessment Tribunal is a reference to precedent
generally and is not intended to imply that a finding in respect of the
appropriateness of a clinical procedure regarding one profession (for
example, medicine) must automatically apply to another (for example,
chiropractic). For the purpose of considering previous decisions, the
provision creates an entitlement to access decisions of other disciplinary
bodies (including the decisions of boards before the commencement of this
Act) and the former Medical Assessment Tribunal.
Clause 241 prescribes the actions that must be taken if the grounds for
disciplinary action against the registrant are established. If the tribunal
imposes conditions on a registrant under this provision, the tribunal may
also determine a period within which the registrant may apply for a review
of the decision (refer part 9).
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Clause 242 requires the tribunal to make a decision as to recording
disciplinary action in the register. The provision specifies the circumstances
under which disciplinary action may or must be recorded. This provision
makes a distinction between impairment and other grounds for disciplinary
action in respect of the circumstances under which the details of any
conditions imposed must be recorded. The general requirement for
conditions to be imposed is reversed in the case of registrants disciplined
solely on the basis of impairment.
Clause 243 prescribes the actions that must be taken if the grounds for
disciplinary action are established against a former registrant. The provision
also enables the tribunal to decide on conditions that are to be imposed on
any future registration of the person as a registrant. In addition, if the
tribunal decides that it would have cancelled the registrant's registration, the
tribunal must decide the period during which the person must not be
registered in the future.
Clause 244 sets out some of the matters which must or may be
considered in making a decision as to the disciplinary action to be imposed.
Other considerations may include the seriousness of the conduct, the
likelihood the conduct will recur, the registrant's attitude toward the conduct
(including any remorse demonstrated) and any decisions made by other
disciplinary bodies regarding the registrant. For the purpose of considering
previous decisions, the provision creates an entitlement to access decisions
of other disciplinary bodies (including the decisions of boards before the
commencement of this Act) and the former Medical Assessment Tribunal.
Clause 245 specifies the persons who must be given notice of the
tribunal's decisions as to whether the grounds for disciplinary action have
been established in respect of a registrant and the disciplinary action (if any)
to be imposed. The provision also specifies the contents of the notice.
Clause 246 specifies additional matters which must be included in the
notice provided under clause 245.
Clause 247 enables the tribunal to make an order under clause 241 to
suspend a decision to take certain disciplinary actions. The provision also
requires the tribunal to determine the period, of up to 5 years, within which
the registrant must not be the subject of disciplinary action by the tribunal in
order to avoid the application of suspended decision. This provision is
intended to encourage proper practice and conduct by registrants, as any
adverse finding by a panel or the tribunal is sufficient to trigger action under
this subdivision.
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Clause 248 specifies that the registrant is not required to comply with the
decision which was suspended unless the tribunal makes a decision under
clause 250.
Clause 249 specifies that where a board refers a matter to the tribunal
and, the referral notice specifies that the conduct at issue occurred during the
period in which the registrant was subject to a suspended order (made under
clause 247), the chairperson of the tribunal must nominate a tribunal
member to deal with the matter (including the fact that the matter occurred
during the period of the suspended order).
Clause 250 specifies the tribunal's powers to deal with the breach of a
suspended order following consideration of submissions from the parties.
The provision specifies the actions the tribunal must take where it is
satisfied that disciplinary action has been taken during the period of the
suspended decision. The tribunal must impose the suspended decision, or
part of the suspended decision, unless the tribunal considers it would be
unjust to do so (in which case the tribunal is to extend the period of the
suspended decision for up to 1 year). The provision also sets out various
matters for the tribunal to have regard to in determining if it would be
unjust.
Clause 251 specifies the entities to whom the tribunal must give notice if
it makes a decision under clause 250.
Clause 252 specifies the tribunal's decision is binding on the parties.
Clause 253 requires a board to give effect to and implement a decision of
the tribunal, unless the decision is stayed by the Court of Appeal under
clause 329. This provision also requires a board to amend the board's
register in the way specified in the notice from the tribunal under clause 245
Clause 254 specifies that a fine imposed by the tribunal is a debt due to
the board to which the matter relates and that it may be recovered by the
board in a court of competent jurisdiction.
Clause 255 sets out the tribunal's power to make an order for costs. The
provision also specifies the matters which must (for example, the costs of
investigations) and must not (for example, whether a fine has been
imposed) be taken into account in making a decision about an order for
costs. It is not intended that the tribunal's decision regarding costs will be
influenced by whether the matter could have been heard by a panel or board.
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Clause 256 clarifies that a document relating to a proceedings requiring
authentication by the tribunal is sufficiently authenticated if it is signed by
the constituting member (ie. the judge) for the proceeding.
Clause 257 specifies that judicial notice must be taken of the signature of
a constituting member if it appears on a document issued by the tribunal.
Clause 258 allows the Governor-in-Council, with the consent of the
chairperson of the tribunal, to make rules, not inconsistent with the Act,
about the practice and procedure of the tribunal.
Clause 259 allows the chairperson to issue practice directions of a general
nature and allows the constituting member to issue practice directions in
respect of a particular case.
Division 7--Dissemination of information
Clause 260 specifies the purpose of this division, namely to provide
information to registrants, the public and other relevant entities about
decisions in relation to disciplinary proceedings about registrants. This
provision also specifies the purpose of providing the information. The
dissemination of information regarding disciplinary proceedings is an
important pro-active strategy to inform and educate registrants about
acceptable professional conduct and practice and to assure the community
that registrants who engage in unsatisfactory conduct are being appropriately
disciplined.
Clause 261 specifies where disciplinary action is taken against a
registrant, a board must notify all interstate regulatory authorities with which
the registrant is registered of the action. This provision also provides the
board with the discretion to notify various other entities about the outcome
of the disciplinary proceedings. However, the board may only notify other
entities of the outcome of disciplinary proceedings where the board is
satisfied, on reasonable grounds, that the entity needs to know about the
decision and that notifying them will assist in achieving the objects of the
Act.
Clause 262 provides a board with the power to notify registrants as to the
nature and outcome of disciplinary proceedings taken. In practice it is
anticipated that this will occur by way of the boards' annual report and
newsletters to registrants. A board may not disclose the name of a
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registrant under this section unless the proceedings have been heard by the
tribunal in public and a suppression order has not been made in respect of
the registrant's identity.
Clause 263 requires records of the decisions and reasons for the
decisions of each of the disciplinary bodies to be kept and a copy provided
to the Executive Officer. The Executive Officer must maintain a publicly
accessible collection of these matters and has the discretion to keep the
records in a form that he or she considers appropriate. This provision also
includes special provisions to protect the confidentiality of registrants dealt
with by a board, panel and, under certain circumstances, the tribunal. The
purpose of this provision is to establish within a single location a
comprehensive collection of decisions related to disciplinary proceedings.
This will be particularly useful for research purposes and the development
or refinement of standards of practice. It is anticipated that, in practice, the
records will be kept in an electronic form and it would be desirable for them
to also be available through the Internet.
Clause 264 specifies various matters which must be included in a
board's annual report. Specifically, boards are required to report on the
number and type of complaints received and the number, the type of
investigations and disciplinary proceedings undertaken in the reporting
period and various other matters. It is particularly important for the reports
to identify the conduct or practice forming the basis of complaints,
investigations and disciplinary proceedings.
Clause 265 requires the secretary to give the Minister a report on an
annual basis regarding the activities of the panels. Specifically the report is
to include information regarding the number of disciplinary proceedings
heard by the panel for each profession, the amount of funds expended on
the panels in the reporting period and any other information required by the
Minister.
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PART 7--MANAGEMENT OF IMPAIRED
REGISTRANTS BY BOARDS
Division 1--Preliminary
Clause 266 specifies that the purpose of this part is to provide an
alternative to disciplinary proceedings for dealing with impaired registrants.
"Impairment of a registrant" is defined in the dictionary as "a physical or
mental impairment disability condition or disorder that detrimentally affects
or is likely to detrimentally affect the person's physical or mental capacity to
perform the registrant's profession and includes substance abuse or
dependence". The definition is concerned with issues regarding the
registrant's health only.
Clause 267 specifies how the purpose of part 7 is to be
achieved--namely by specifying the process to deal with impaired
registrants and providing for the establishment of health assessment
committees.
Clause 268 specifies that a board may take action under this part where it
suspects a registrant is impaired. However, if, at any time, a board suspects
that there may be grounds for cancellation or suspension of a registrant's
registration, the board must cease dealing with the matter under this part and
refer it to the tribunal or investigate it.
The board does not need to receive a complaint to exercise powers under
this part and a board may go directly to this part in some circumstances (ie.
no complaint received and the matter is not one which requires referral to
the tribunal or action under part 4). It is anticipated that, in practice, this part
will be most often used where a registrant approaches a board with concerns
about their own impairment or where a registrant informally alerts the board
(or a board member) to concerns about another registrant.
This provision also clarifies that, subject to the duty to refer the most
serious matters to the tribunal, a board has two options for dealing with
registrants who are impaired. It may deal with them under part 7 or
alternatively deal with them under part 5 (Investigation) and/or part 6
(Disciplinary Proceedings). The major considerations impacting upon the
way in which matters involving impaired registrants are dealt with will be
whether the impairment has manifest in conduct by the registrant which
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would provide grounds for disciplinary action (and, if so, the seriousness of
the conduct) and the types of powers that may be necessary to assess the
matter. It is not anticipated that part 7 will be used frequently where a
suspected impairment has been identified through complaints alleging
unsatisfactory professional conduct (except where the tribunal requires a
health assessment committee to be established under clause 218).
While some coercive powers are available to health assessment
committees under this Act (for example, the power to compel information
and things), the committees do not have an investigative function and,
consequently, are not given coercive powers to enter premises, search and
seize things. However, health assessment powers and full investigative
powers (including entry, search and seizure) are available under part 5 and,
if such powers are necessary, a board could deal with a matter under that
part.
It should be noted that this part cannot be used to deal with matters
regarding former registrants.
Division 2--Informal management of impaired registrants
Clause 269 specifies the purpose of division 2 of part 7, namely to
provide for the informal management of impaired registrants.
Clause 270 clarifies that a board may, without the use of any coercive
powers, request information from any person about a registrant it believes is
impaired.
Clause 271 requires a board, if it chooses to deal with a matter under this
part, to issue a notice to a registrant who is, or may be, impaired, seeking
the registrant's agreement to undergo a health assessment. The provision
also specifies the contents of the notice.
Clause 272 specifies the consequences if the registrant does not cooperate
with the voluntary health assessment process under this division.
Specifically, a board may investigate the matter, initiate disciplinary
proceedings, or refer the matter to a health assessment committee. In
addition, a board can exercise its powers under part 4 at any time.
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Clause 273 specifies the procedure for a health assessment under this
division. Specifically, the assessment is to be carried out at the board's
expense and as soon as practicable after the registrant agrees to undergo an
assessment. A copy of the assessment report is to be given to the board and
except under specified circumstances, also given to the registrant or a
medical practitioner nominated by the registrant. If the report is given to a
medical practitioner nominated by the registrant, that practitioner must
advise the board about the information they have given the registrant.
Clause 274 enables a registrant to make submissions to a board on the
health assessment report prepared under clause 273. This provision also
allows the registrant to provide the board with other recent relevant health
assessment reports.
Clause 275 specifies that, after considering the health assessment report
and any submissions or other reports provided by the registrant, the board
must make a decision as to whether the registrant is impaired.
Clause 276 requires a board which decides, under clause 275, that a
registrant is impaired to determine the action that is appropriate in the
circumstances (including no action). If the registrant is impaired, the board
may, with the registrant's agreement, enter into an undertaking with the
registrant. However, if the board and the registrant are unable to agree on an
undertaking or the registrant is not competent to enter into an undertaking,
the board must refer the matter to a health assessment committee.
Alternatively, a board may investigate the matter or refer it for disciplinary
proceedings by a panel or tribunal.
Clause 277 allows a board which decides, under clause 275, that a
registrant is not impaired but against whom there are grounds for
disciplinary action, to conduct an investigation of the matter or start
disciplinary proceedings.
Clause 278 requires the board to give a registrant notice of its decision
under clauses 275-277 as to whether the registrant is impaired and the action
to be taken.
Clause 279 specifies additional information to be included in the notice
given under clause 278.
Clause 280 creates an entitlement for persons who carry out health
assessments and prepare health assessment reports to be paid by the board.
The provision is cast in such a way as to enable these persons to waive
payment.
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Clause 281 shields a health assessment report prepared for the purpose
of division 2 from use in any proceedings before a court (except disciplinary
proceedings). The purpose of shielding these reports to ensure that they are
used only for the purpose for which they were created and not for any other
kind of actions.
Division 3--Health assessment committees
Clause 282 specifies the circumstances under which a health assessment
committee is to be established, namely--at the direction of the tribunal,
where a registrant makes a request for a further health assessment under
clause 306 (subject to any orders in respect of the period within which the
registrant may apply) or where the board decides one is appropriate under
clauses 272 or 276.
Clause 283 specifies the composition of the health assessment
committee. A committee must include at least one medical practitioner and
one practitioner of the same profession as the registrant. The principal
reason for including a person of the same profession as the registrant is to
ensure that the committee is appropriately alerted to any nexus between the
requirements of day to day practice of the profession and the registrant's
health. This will be particularly relevant where the committee needs to
make a recommendation to a board as to the types of conditions that are
appropriate for the registrant.
Clause 284 creates an entitlement for members of the health assessment
committee to be paid by the board. The provision is cast in such a way to
enable members to waive payment. Importantly, this provision also
requires any costs related to the health assessment (for example, diagnostic
tests) to also be paid by the board.
Clause 285 specifies the functions of the health assessment committee,
namely, to:
· assess whether the registrant is impaired;
· to advise as to the nature and extent of the impairment and make
recommendations about the appropriate course of action to be
taken in order to protect the public.
Importantly, neither the board nor the tribunal are bound by the
committee's recommendations.
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Clause 286 requires the board to give the registrant notice as soon as a
health assessment committee is established. This provision specifies the
matters to be addressed in the notice.
Clause 287 specifies that a registrant may make submissions to a health
assessment committee and may provide the committee with a copy of any
recent relevant health assessments undergone by the registrant.
Clause 288 specifies the powers of a health assessment committee to
require a registrant to undergo a health assessment (including answer
questions) or to produce a stated thing (including a document).
Clause 289 specifies that if a registrant fails to attend or cooperate with
the health assessment, the board may--suspend the registrant's registration,
investigate the matter, or refer the matter to a tribunal or panel for
disciplinary proceedings. If the board suspends the registrant, the
suspension remains in place until the registrant attends and cooperates in
undergoing the health assessment or the matter is stayed or decided by the
tribunal. In addition, a failure to comply with a direction of the tribunal to
undergo a health assessment is contempt.
Clause 290 provides the committee with the power to require persons
other than the registrant to give information to the committee or attend
before the committee to answer questions or produce things (including
documents).
Clause 291 makes it an offence to fail to comply with a requirement
made under clause 290 without reasonable excuse.
Clause 292 clarifies that it is reasonable excuse to not comply with a
direction if it might tend to incriminate the individual.
Clause 293 specifies the committee's powers in respect of things
(including documents) produced to the committee.
Clause 294 makes it an offence for a person to say anything or give
information to a health assessment committee that the person knows is false
or misleading in a material particular.
Clause 295 makes it an offence for a person to give a health assessment
committee a document containing information the person knows is false or
misleading in a material particular (except under certain circumstances).
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Clause 296 requires the health assessment committee to prepare a report
regarding the health assessment. The provision specifies the contents of the
report. In particular, if the findings or recommendations are not unanimous,
the report must include the different views of the committee members and
the basis for the committee members' views. This provision also specifies
that a copy of the report must be provided to the body which referred the
matter to the committee (ie. either the board or the tribunal) and to the
registrant or a medical practitioner nominated by the registrant except under
certain circumstances. A medical practitioner who is given a health
assessment committee report on behalf of a registrant must give written
notice of the information from the report provided to the registrant.
Clause 297 enables the registrant to make a submission regarding the
health assessment committee's report or the information provided by the
medical practitioner nominated by the registrant within a prescribed period.
Division 4 Decision by board about impairment
Clause 298 specifies that upon receipt of a health assessment
committee's report and any submissions made by the registrant, the board
must make a decision as to whether or not the registrant is impaired.
Clause 299 specifies the various actions that the board may take if it
finds, under clause 298, that a registrant is impaired. This includes the
power to require the registrant to attend for further health assessments or
tests, including, for example, random urine drug screening blood tests or
hair tests. It should be noted that the registrant is responsible for meeting the
costs of any further health assessments or tests which are required by the
board under this section.
Clause 300 specifies that if a board decides, under clause 298, that a
registrant is not impaired but that grounds for disciplinary action exist, the
board may investigate the matter or start disciplinary proceedings.
Division 5--Action after decision about impairment
Clause 301 specifies that, as soon as practicable after making a decision
under clauses 298-300, a board must give the registrant notice of its
decision. The provision also specifies the contents of the notice.
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Clause 302 specifies additional information which must be included in
the notice issued under clause 301.
Clause 303 specifies the board's obligations in respect of the recording of
conditions and undertakings entered into under clauses 276 and 299.
Clause 304 specifies that as soon as practicable after making a decision
about impairment under this part, a board must, under certain
circumstances, give notice to the commissioner and the complainant. The
provision also sets out the contents of the notices. The provision requires
the complainant to be notified in general terms as to the outcome of the
impairment processes. The limitations on the provision of information to
complainants and the commissioner are considered essential by the
professions to encourage registrants to notify the board of impaired
colleagues and to self-notify impairment. The information given to the
commissioner is the minimum necessary for accountability purposes.
Division 6--Miscellaneous
Clause 305 specifies that any conditions or orders which are imposed
under clause 299(2) remain in force until the registrant asks for a further
assessment and the board makes a decision in respect of the matter.
Clause 306 provides a registrant whose registration is the subject of
conditions or an order under clause 299(2) with a right to apply for a further
health assessment (subject to any order under clause 299 regarding the
period within which the registrant may not ask for a further assessment).
Clause 307 shields a health assessment report prepared for the purpose
of division 3 from use in any proceedings before a court (except disciplinary
proceedings). The purpose of shielding these reports is to ensure that they
are used only for the purpose for which they were created and not for any
other kind of actions.
Clause 308 clarifies that if a board establishes a health assessment
committee the board is responsible for paying the costs of the committee.
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PART 8--POWERS RESULTING FROM ACTION
UNDER FOREIGN LAW
Division 1--Preliminary
Clause 309 specifies the purpose of part 8, namely to protect the public
by enabling disciplinary action taken under foreign law to be applied to a
registrant's registration without disciplinary proceedings taken under this
Act.
This part complements section 32 of the Trans-Tasman Mutual
Recognition (Queensland) Act 1999 which provides for the automatic
application of disciplinary decisions by New Zealand regulatory authorities,
other than the Medical Council of New Zealand, to a registrant's registration
in an equivalent occupation within Queensland (regardless of whether the
registrant's registration is obtained pursuant to mutual recognition law).
Given the reach of the Trans-Tasman Mutual Recognition (Queensland)
Act 1999, the decisions of New Zealand regulatory authorities, except the
Medical Council of New Zealand, are excluded from the application of this
part.
Clause 310 sets out the definition of "foreign law" for the purpose of this
part.
Division 3--Action taken by board on basis of foreign law
Clause 311 applies where disciplinary action has been taken against a
registrant under a foreign law and the board believes it is necessary for
equivalent action to be taken in Queensland in order to achieve the objectives
of the Act.
The board is required to ask a registrant whose registration has been
cancelled, suspended or subjected to conditions under a foreign law to show
cause why an equivalent action should not be taken in Queensland. The
board must consider any submissions made by the registrant and make a
decision. The registrant and the commissioner must be notified of the
decision and the provision sets out the contents of the notice.
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Clause 312 specifies that if the cancellation, suspension or conditions end
under the foreign law, the registrant's registration in Queensland is (subject
to other disciplinary action taken under this Act) affected in the same way.
The provision also specified when the registrant's registration is affected
and sets out the notice requirements.
Subclause (2)(d) applies where the conditions under the foreign law are
changed for a reason relating to the matter for which the conditions where
initially imposed under the foreign law.
Division 4--Miscellaneous
Clause 313 specifies that where a board takes action against a registrant
under this part the nature of the action must be recorded on the register.
PART 9--REVIEWS AND APPEALS
Division 1--Preliminary
Clause 314 sets out the purposes of this part.
Division 2--Review of conditions imposed under decision of panel
Clause 315 sets out the panel decisions which may be reviewed (ie. a
decision to impose or vary conditions on a registrant's registration under
clauses 201(2)(b) or 324). The purpose of the review process is to create a
mechanism to remove or vary panel decisions in those cases where the
registrant's circumstances have changed since the original decision was
made. The object of the review is to determine whether the conditions are
still appropriate, not to review whether the original decision was correct.
Clause 316 provides that a registrant has a right of review of a panel
decision to impose conditions except under certain circumstances.
Clause 317 sets out how a review is started.
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Clause 318 requires the secretary to give notice of the review to the board
and the commissioner and sets out the contents of the notice.
Clause 319 requires the secretary to establish a panel on receipt of a
notice of review. The provisions of the Act dealing with the establishment
of a panel for disciplinary proceedings apply. It should be noted that the
panel which is established to hear the application for review need not be the
same panel which imposed the conditions.
Clause 320 specifies that the review may, at the discretion of the panel,
be dealt with by hearing or written submission.
Clause 321 requires the secretary to give the registrant, the registrant's
board and the commissioner notice of an intention to conduct a review
hearing. The provision also sets out the contents of the notice.
Clause 322 states the procedures to be followed in conducting a hearing
for a review by a review panel. By virtue of the definition of "disciplinary
matter" and "disciplinary proceedings", part 6, division 5 of the Act applies,
where appropriate, to matters dealt with by a review panel. Clause 322(1) is
included to assist in the understanding of this division. This sub-clause
does not affect the application of other provisions of part 6 as provided for
in that part.
Clause 323 sets out the procedures for review in the form of written
submissions. The provision also specified matters which may be
considered in the review.
Clause 324 sets out a panel's powers on review. By application of
provisions from the disciplinary proceedings part, a review panel is required
to take the same matters into account as a panel in making a review
decision. In order to prevent the review process from being abused, the
panel may determine the period of time within which further applications
for review may not be made. In addition, provisions about deciding to
record conditions on the register and the issuing of notices and the effect of
the decision are applied by this clause.
Division 3--Appeals to tribunal
Clause 325 sets out the decisions under this Act that are appealable to the
tribunal. These include board decisions (in respect of immediate suspension
or imposition of conditions, impairment and the application of foreign
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disciplinary decisions) and panel decisions (in respect of disciplinary action
and reviews of conditions). Decisions to record undertakings and
disciplinary action on the register are also appealable.
Clause 326 specifies who may appeal an appealable decision (ie. the
registrant or the registrant's board). The parties to the appeal are the
registrant, the registrant's board and, if the commissioner intervenes, the
commissioner.
Clause 327 sets out how an appeal is commenced.
Clause 328 requires the registrar to give notice of appeal to the parties to
the appeal. The provision also sets out the contents of the notice.
Clause 329 enables the tribunal to grant a stay of an appealable decision.
However, the tribunal may not stay a decision to immediately suspend or
impose conditions on a registrant under part 4.
Clause 330 provides for an appeal against an immediate suspension to be
decided as quickly as possible.
Clause 331 specifies that the appeal is by way of rehearing on the
evidence or other material before the original decision making body,
however, the tribunal may give leave for new evidence to be introduced.
Clause 332 requires the registrar to give the parties notice of the
tribunal's intention to conduct a hearing for an appeal. The provision also
sets out the contents of the notice.
Clause 333 states the procedures to be followed in conducting a hearing
for an appeal. By virtue of the definition of "disciplinary matter" and
"disciplinary proceedings", part 6, division 6 of the Act applies, where
appropriate, to matters dealt with by the tribunal for an appeal. Clause
333(1) is included to assist in the understanding of this division. This
sub-clause does not affect the application of other provisions of part 6 as
provided for in that part.
Clause 334 enables the tribunal to deal with an appeal by way of written
submissions.
Clause 335 sets out the procedures for appeals dealt with by way of
written submissions.
Clause 336 sets out the powers of the tribunal on hearing appeals and
details the decisions the tribunal may make. The provision distinguishes
between decisions under part 4 and other appeals.
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Division 4--Review of certain tribunal decisions
Clause 337 sets out the tribunal decisions which may be reviewed (ie.
certain disciplinary actions and decisions on review of disciplinary action).
The purpose of the review process is to create a mechanism to remove or
vary tribunal decisions in those cases where the registrant's circumstances
have changed since the original tribunal decision was made. The object of
the review is to determine whether the conditions are still appropriate, not to
review whether the original decision was correct.
Clause 338 provides that a registrant has a right to a review of a tribunal
decision mentioned in clause 337 except under certain circumstances.
Clause 339 provides that a review is started by filing a notice with the
registrar. The contents of the notice are also specified.
Clause 340 requires the registrar to give notice of the application for
review to the board and the commissioner. The contents of the notice are
also specified.
Clause 341 specifies that the review may be dealt with by way of hearing
or written submissions.
Clause 342 requires the registrar to give the registrant, the registrant's
board and the commissioner notice of the tribunal's intention to conduct a
review. The provision sets out the contents of the notice.
Clause 343 states the procedures to be followed in conducting a hearing
for a review by the tribunal. By virtue of the definition of "disciplinary
matter" and "disciplinary proceedings", part 6, division 6 of the Act applies,
where appropriate, to matters dealt with by the tribunal for a review. Clause
343(1) is included to assist in the understanding of this division. This
sub-clause does not affect the application of other provisions of part 6 as
provided for in that part.
Clause 344 sets out the procedures for review in the form of written
submissions.
Clause 345 sets out the considerations for the tribunal in deciding the
review tribunal's powers on completing the review. In order to prevent the
review process from being abused, the tribunal may determine the period of
time within which further applications for review may not be made.
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Division 5--Appeals to Court of Appeal from decisions of tribunal
Clause 346 sets out the decisions of the tribunal which are appealable to
the Court of Appeal (ie. decisions regarding disciplinary action and
applications for review of tribunal decisions).
Clause 347 specifies who may appeal a tribunal decision.
Clause 348 clarifies that appeals against tribunal decisions are limited to
questions of law only.
Clause 349 provides that an appeal is started by filing an application with
the registrar of the Court of Appeal.
Clause 350 requires the appellant to serve notice of the appeal on the
other parties within 14 days of filing the application with the registrar of the
Court of Appeal.
Clause 351 provides for tribunal decisions to be stayed to secure the
effectiveness of the appeal.
Clause 352 specifies that the procedures for hearing appeals are to be in
accordance with the rules of court applicable to the appeal or, if the rules
make no provision or insufficient provision, in accordance with the
directions of the Court.
Clause 353 sets out the powers of the Court of Appeal in making a
decision in respect of an appeal.
PART 10--INSPECTORS
Division 1--Preliminary
Clause 354 specifies the purposes of part 10 namely to provide for the
appointment of inspectors to enforce compliance with this Act and to
specify the functions and powers of inspectors.
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Division 2--Inspectors' functions and powers
Clause 355 specifies that an inspector has the function of conducting an
investigation to enforce compliance of this Act. An important distinction
needs to be made between investigators appointed under part 5 and
inspectors appointed under this part for the purpose of enforcement.
Investigators are involved in the gathering of information related to potential
disciplinary matters whereas inspectors are concerned with gathering
information to prove breaches of the provisions of this Act.
Clause 356 specifies that an inspector has the powers given to that person
under this Act.
Clause 357 provides for the powers of an inspector to be limited under
an instrument of appointment. In practice, it is intended that an inspector
appointed by a board may only exercise powers in respect of matters related
to that board's activities.
Division 3 Appointment of inspectors and other matters
Clause 358 specifies the persons who may be appointed as inspectors. It
should be noted that the secretary of the Professional Conduct Review
Panels is, ex officio, an inspector for the purpose of this Act. This
provision also clarifies that it is possible to appoint a person both as an
investigator and inspector.
Clause 359 specifies that an inspector holds office on the condition stated
in the instrument of appointment and deals with other matters related to the
appointment conditions of an inspector.
Clause 360 requires an identity card to be provided to an inspector,
including a recent photograph of the person plus other relevant particulars.
Clause 361 requires a person who ceases to be an inspector to return the
person's identity card.
Clause 362 requires an inspector to first produce or display the
inspector's identity card before exercising any power s under the Act.
However, provision is also made for the inspector to produce the card at the
first reasonable opportunity where it is not immediately practicable to do so.
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Division 4 Particular powers of inspectors
Clause 363 sets out the powers of an inspector to require a person to give
information (including documents) where the inspector reasonably believes
an offence has been committed and the person may be able to give
information about the offence. This provision also makes in an offence to
fail, without reasonable excuse, to give information required by an
inspector.
Clause 364 clarifies that it is a reasonable excuse to fail to comply with
the direction of an inspector under clause 363 if doing so might tend to
incriminate the individual.
Clause 365 makes it an offence for a person to give information to an
inspector that the person knows is false or misleading in a material
particular except under certain circumstances.
Clause 366 specifies the powers of an inspector to keep documents
compelled under clause 363 for the purpose of the investigation.
Division 5--Impersonation of inspectors
Clause 367 makes it an offence for a person to pretend to be an inspector.
PART 11--LEGAL PROCEEDINGS
Clause 368 clarifies that all offences against this Act are summary
offences except those pertaining to clauses 391 (which deals with false
complaints and information) and clause 389 (which deals with reprisal)
which are indictable offences. It should be noted that proceedings for an
offence may be taken by any person.
Clauses 369-370 set out the procedures and limitations for dealing with
indictable offences under this Act.
Clause 371 specifies the time frame within which proceedings must start.
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Clause 372 provides that, in a proceeding or an offence relating to false
or misleading information or a statement, it is enough for the charge to state
that the information or statement was false or misleading.
Clause 373 specifies that where a board initiates proceedings for an
offence against this Act and a penalty is imposed, a Court must order the
penalty to be paid to the board. Where proceedings are initiated by anyone
other than the board, section 43 of the Acts Interpretation Act 1954 will
apply in respect of the issue of the payment of penalties.
PART 12--GENERAL
Division 1--Codes of Practice
Clause 374 provides boards with the power to develop or adopt codes of
practice to provide guidance to registrants as to appropriate professional
conduct in the practice of the profession. This provision also specifies that
before making, amending or adopting a code the board 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.
This provision is cast in a broad way to enable boards 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
practice. It would be possible for registration boards to issue a number of
codes of practice using the powers under this provision. In view of the fact
that many professional associations already have codes of conduct, this
provision enables those codes to be adopted or modified for adoption as a
board code of practice.
Clause 375 requires any approved code to be available for public
inspection and also imposes duties on the board to ensure that registrants are
notified of the approval of the code, any changes to the code.
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Clause 376 clarifies that a code of practice approved under this part is
admissible as evidence in disciplinary proceedings brought against a
registrant under this Act.
Division 2--Investigations and certain disciplinary proceedings and
disciplinary action
Clause 377 provides a board with the discretion to end an investigation
where a person ceases to be a registrant and obliges the cessation of an
investigation if the registrant is deceased. The provision also sets the
considerations for the board in exercising a discretion under this section.
Clause 378 provides disciplinary bodies with the discretion to end
disciplinary proceedings regarding a registrant who has ceased to be
registered and obliges the cessation of disciplinary proceedings if the
registrant is deceased.
Clause 379 specifies that if a board enters into an undertaking with the
registrant, then a copy of the undertaking must be provided to the
commissioner except in certain circumstances. A copy is not to be provided
where the registrant is impaired and the actions taken under part 7 are not
the result of a complaint made by a user or entity acting on behalf of a user,
or a complaint made to the commissioner.
The provision also requires any undertaking entered into to specify the
period, not greater than 3 years, for which it is in force.
Clause 380 specifies that it is an offence for a registrant to fail to comply
with conditions imposed on the registrant's registration. It should also be
noted that a failure to comply with a provision of this Act and a conviction
for an offence against this Act are, of themselves, grounds for disciplinary
action to be taken against a registrant under clause 124.
Clause 381 specifies the effect of a suspension of a registrants
registration under this Act. The provision also specifies that, at the
conclusion of the suspension a person is registered on the same conditions
and in the same type of registration that applied before the person's
registration was suspended. This is subject to certain qualifications spelt out
in the provision.
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Division 3--Giving information and notices
Clause 382 authorises a board member or the Executive Officer, Office
of Health Practitioner Registration Boards to disclose to the Chief Executive
of the Department of Health, information acquired under this Act which is
relevant to the suitability of a person to hold an authority or approval under
the Health (Drugs and Poisons) Regulation 1996. The purpose of any
such disclosure would be to assist the Chief Executive to make a decision as
to whether a registrant's authority or approval should be changed or
withdrawn in order to protect the public.
Clause 383 requires a board to give the commissioner notice when the
matter is no longer being dealt with under this Act (in order to enable the
commissioner to commence conciliation of a complaint which is the subject
of multiple actions under the Health Rights Commission Act 1991). In
practice, this notice will be issued in conjunction with other notices provided
to the commissioner (for example, notices regarding disciplinary action).
Clause 384 requires a board to give all interstate regulatory authorities
with which the registrant is registered notice of certain decisions under this
Act. This provision also provides a board with the discretion to notify other
prescribed entities under certain circumstances.
Clause 385 authorises a Court to provide a board with a certificate of
conviction where a registrant is convicted of an indictable offence. Also this
clause authorises a coroner who makes a finding about a matter relevant to a
registrant's practice to give a transcript of evidence to the registrant's board.
Division 4--Protections
Clause 386 confers upon tribunal members, panel members and board
members involved in adjudicative activities, the same protection and
immunity that they would have as District Court Judges performing the
functions of a Judge. A similar protection and immunity is conferred on
assessors. The provision also confers upon parties appearing before
disciplinary bodies, the same protections and immunities they would have
as parties before a proceeding within the District Court. Similarly, persons
required to attend or appear before a disciplinary body as witnesses are
given the same protections and immunities as witnesses attending before the
District Court.
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Clause 387 protects a person who, honestly and on reasonable grounds,
gives information to certain prescribed entities for the purpose of this Act.
By virtue of this provision the person is not liable civilly, criminally or
under an administrative process for giving information.
Clause 388, which is based on section 41 of the Whistleblowers
Protection Act 1994, establishes that it is unlawful for anyone to take
reprisal against a person for making a complaint to a board or assisting
various entities involved in the administration of the Act. The provision
also establishes a test for determining when unlawful reprisal has taken
place.
Clause 389, which is based on section 42 of the Whistleblowers
Protection Act 1994 and section 139 of the Health Rights Commission Act
1991, establishes that a person who takes an unlawful reprisal against
anyone who makes a complaint or assists an entity involved in the
administration of the Act commits a criminal offence. The provision also
sets out a defence in proceedings relevant to a reprisal.
Clause 390, which is based on section 43 of the Whistleblowers
Protection Act 1994, enables any person who suffers reprisal for making a
complaint or assisting an entity involved in the administration of the Act to
sue for damages, including pain and suffering. The provision also specifies
the powers of the Court to grant an appropriate remedy and specifies that if
the matter is to go to trial in the Supreme Court or the District Court, it must
be decided by a Judge sitting without a jury. This limitation is because
Judges are better placed to determine the public interest in assessing the
extent of liability, including the effect on persons should excessive damages
claims be upheld.
Division 5--False information and confidentiality
Clause 391 makes it an offence for a complainant or a person who gives
information for the purpose of an investigation, to intentionally provide a
statement or other information that is false or misleading in a material
particular. It should be noted that this clause mirrors Section 135A of the
Health Rights Commission Act 1991.
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Clause 392 creates a duty of confidentiality upon specified persons
involved in the administration of the Act. This provision also creates
exceptions to the duty of confidentiality.
Clause 393 specifies that where the Minister authorises the disclosure of
confidential information under clause 392 a statement containing prescribed
information must be included in the board's annual report.
Division 6--Miscellaneous
Clause 394 provides for a combined notice to be issued where a board,
the secretary or the registrar is required to issue more than one notice to a
person under this Act.
Clause 395 specifies that it is not necessary to provide notices to certain
complainants under certain circumstances.
Clause 396 provides for board meetings to be held by distance
communication and for board decisions to be made by flying minutes. The
current health practitioner registration Acts do not contain provisions
allowing for this form of decision making and it is intended that this
provision will ultimately be relocated to the new health practitioner
registration Acts. The provision is required immediately to facilitate the
making of decisions under part 4, in particular.
Clause 397 enables the chairperson of the tribunal to approve forms for
use by the tribunal under this Act. Also, the provision enables the secretary
to approve forms for the panels.
Clause 398 specifies that Governor in Council may make regulations
under the Act.
PART 13--TRANSITIONAL PROVISIONS
Clause 399 provides a definition of "commencement day" for the
purpose of this part.
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Clause 400 specifies that certain types of matters which were not
finalised before the commencement day (and appeals subsequently arising
out of these matters), may be dealt with under the provisions of the existing
health practitioner registration Acts.
The provision also specifies that a person's appeal rights under the
previous legislation are preserved. This ensures that if a registrant had a
right of appeal from a disciplinary decision, but had not started the appeal on
the commencement day, the registrant may still appeal (subject to statutory
time limits).
Clause 401 specifies that if a board receives a complaint or other
information about a registrant which occurred before the commencement
day, the board may only take action on the matter if the board could have
taken disciplinary action under the previous legislation. The purpose of this
provision is to ensure that registrants are not disciplined for conduct which
occurred prior to the commencement of this Act where, at the time it
occurred, disciplinary proceedings could not have been taken. This
provision acknowledges that the grounds for disciplinary proceedings under
this Bill are broader than those which currently exist.
Clause 402 specifies that, for the purpose of deciding whether there is a
pattern of conduct or practice, a board may only consider the conduct or
practice of a registrant prior to the commencement of this Act, if
disciplinary action could have been taken against the registrant under the
health practitioner registration Act.
Clause 403 clarifies that all existing orders of the registration boards and
the Medical Assessment Tribunal are saved and continue to have affect as if
they were an order of a disciplinary body under this Act.
This provision also specifies that final orders under clause 401 are taken
to be orders of the tribunal.
Clause 404 vests custody of the records of the Medical Assessment
Tribunal (MAT) in the registrar of the Health Practitioner Tribunal.
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PART 14--CONSEQUENTIAL AND OTHER
AMENDMENTS
Division 1--Amendment of Chiropractors and Osteopaths Act 1979
Division 2--Amendment of Dental Act 1971
Division 3--Amendment of Dental Technicians and Dental Prosthetists
Act 1991
Clauses 405-427 make consequential amendments to the Chiropractors
and Osteopaths Act 1979, Dental Act 1971 and Dental Technicians and
Dental Prosthetists Act 1991 by removing all provisions under those Acts
concerned with the discipline of registrants. The disciplinary powers
contained in these Acts are consolidated under the Health Practitioners
(Professional Standards) Act 1999. The Acts are further amended to clarify
the notice requirements of the respective boards upon refusal of an
application for registration and the right of appeal of the applicant.
Division 4--Amendment of Health Act 1937
Clause 428 specifies that division 4 amends the Health Act 1937.
Clause 429 inserts a definition of a "health practitioner registration Act",
"registrant" and "registrant's board" into the Health Act 1937.
Clause 430 inserts a new section 18A into the Health Act 1937 which
specifies that where an action is commenced against a registrant or nurse for
an offence against an Act administered by the Minister, or where there is an
alteration to the prescribing rights or authority of a registrant, nurse or
veterinary surgeon under the Health (Drugs and Poisons) Regulation 1996,
the chief executive is to give notice to:
· for a registrant--the registrant's board
· for a nurse--the Queensland Nursing Council
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Health Practitioners (Professional Standards)
· for a veterinary surgeon--the Veterinary Surgeons Board of
Queensland
The purpose of this provision is to ensure that the entities responsible for
the registration of the professions can, where appropriate, take action to
protect the public from such persons.
Division 5--Amendment of the Health Rights Commission Act 1991
Clause 431 specifies that division 5 of the Health Practitioners
(Professional Standards) Act 1999 amends the Health Rights Commission
Act 1991.
Clause 432 changes the heading of section 3 of the Health Rights
Commission Act 1991 from "Definitions" to "Interpretation" and inserts a
new definition for the term "disciplinary body".
Clause 433 inserts the new division heading of "Division 1--Health
service complaints" into part 5 of the Health Rights Commission Act 1991
before section 58.
Clause 434 amends section 58 of the Health Rights Commission Act
1991 by expanding the grounds of complaint to the Health Rights
Commission. The purpose of this provision is to ensure that a complaint
may be made to the commission about any matter which would provide
grounds for disciplinary action against the provider under the Health
Practitioners (Professional Standards) Act 1999 or the Nursing Act 1992.
Clause 435 inserts a new section 58A into the Health Rights
Commission Act 1991 which enables the commissioner to split a complaint
into two or more complaints under certain circumstances (for example,
where the complaint concerns more than 1 provider). Thus each aspect of
the complaint may be dealt with separately. In order to ensure that
proceedings are not compromised by the disclosure of confidential
information provided within the privileged environment of conciliation, the
provision prohibits concurrent conciliation and other action on the separated
complaints except under specified circumstances.
Clause 436 inserts a new section 59A into the Health Rights
Commission Act 1991 which provides that where the commissioner
receives a complaint about a person who is no longer registered and the
complaint concerns their professional conduct at a time when they were
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registered, the commissioner is to deal with the complaint as if it were a
complaint against a registered provider. This is consistent with the Health
Practitioners (Professional Standards) Act 1999 and the Nursing Act 1992
which enable boards to deal with matters regarding former registrants.
Clause 437 amends section 60(3) of the Health Rights Commission Act
1991 by clarifying that a health service complaint may be made to the
commissioner by an attorney appointed under the Powers of Attorney Act
1998 or the adult guardian under that Act, on behalf of a person with
impaired capacity.
Clause 438 omits section 66 to section 68A of the Health Rights
Commission Act 1991 and inserts a division heading, "Division
2--Assessment of health service complaints" and new sections 66 to 68A.
As a consequence:
· the current receipt and consideration and assessment phases have
been combined into one assessment phase
· the commissioner is to assess a health service complaint when
certain threshold tests have been satisfied (for example, that the
complainant is eligible to make the complaint under sections 59 or
60)
· the commissioner has the discretion to refer a complaint about a
registered provider to the relevant registration board without
assessing it if it is in the public interest to do so and the relevant
registration board agrees to the referral
· the commissioner must provide notice that a complaint is to be
assessed to the complainant and the provider and, where the
provider is a registered provider, the provider's registration board
· the commissioner may invite submissions on the complaint from
the complainant and the provider and must seek submissions
from a registered provider's registration board. Time frames for
the receipt of submissions are stipulated.
The purpose of these amendments is to consolidate the processes for
receipt and consideration and assessment of complaints in order to improve
the efficiency and effectiveness of the operations of the Commission.
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The introduction of various threshold tests for assessment will facilitate
compliance with statutory timeframes and enable the Commission to direct
resources to other statutory functions (for example, considering
investigation reports by registration boards, etc).
The capacity to refer complaints directly to registration boards without
assessment is designed to expedite action being taken on serious public
interest matters. It should be noted that the statutory prohibition upon the
commission taking any further action on such complaints does not prevent
the commissioner dealing with complaints separated from the complaint
referred to the board.
It is anticipated that the commissioner will routinely seek submissions
from providers who are the subject of complaints being assessed, except
where the commissioner clearly intends to reject the complaint. Where the
complaint is sufficiently comprehensive, it will not be necessary for the
commissioner to seek submissions from the complainant. The requirement
to seek submissions from relevant registration boards is to ensure
professional standards issues are identified early.
Clause 439 amends section 69 of the Health Rights Commission Act
1991 by specifying that the commissioner must consult with a registered
provider's registration board before deciding whether or not to take action
on a complaint at the conclusion of assessment. The purpose of the
consultation is to inform the commissioner's decision under section 71A
about the action to be taken and, in particular, to ensure that professional
standards issues (ie. those issues which may provide grounds for
disciplinary action) are not overlooked. Any comments the board makes in
relation to the complaint must be provided to the commissioner within a
specified time frame. The provision also specifies that the commissioner
must not decide to take no action on a complaint where the registration
board considers it warrants investigation or other action by the board.
Clause 440 amends section 70(2) of the Health Rights Commission Act
1991 by inserting references to the new section 71A. The effect of this
consequential amendment is to require the commissioner to give notice of
assessment decisions regarding registered providers and non-registered
providers.
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Clause 441 omits the existing section 71 and inserts new sections 71,
71A and 71B into the Health Rights Commission Act 1991. These
provisions distinguish the actions the commissioner may take on
complaints about registered providers from those about non-registered
providers.
In the case of non-registered providers, the commissioner may take
multiple actions on a complaint. Thus, in addition to the power to conciliate
and/or investigate a complaint, the commissioner has the discretion to refer
a complaint to another entity at the conclusion of assessment, for example,
the Queensland Police Service. The commissioner may also take multiple
actions on a complaint about a registered provider. These are, conciliation,
referral to the relevant registration board for investigation, or, referral to
another entity. Where the commissioner refers a complaint to another entity
or a board, conciliation will generally not commence until the entity or board
has concluded dealing with the matter.
The purpose of these provisions is to increase the options for taking
action on complaints at the conclusion of assessment. The provisions
acknowledge the desirability of conciliation to resolve disputes between
users and providers, but clarify that, except under certain circumstances,
conciliation must not commence until disciplinary or other proceedings have
concluded. The restriction on concurrent conciliation and other action is
necessary to protect the integrity of the board's or entity's processes
(particularly disciplinary and enforcement processes) and remove any
grounds for challenge on the basis of disclosure of information which is
protected by the conciliation process.
In order to ensure that professional standards issues are not overlooked,
section 71A provides for Ministerial adjudication where either the
commissioner or the board, but not both, consider a complaint requires
investigation or other action by a board.
The provision also sets out certain notice requirements upon a board or
other entity which has a complaint referred to it by the commissioner.
Clause 442 amends and inserts new provisions into section 72 of the
Health Rights Commission Act 1991, which stipulate that the commissioner
must assess a complaint within 60 days after commencing the assessment.
The commissioner may extend that time limit by 30 days if certain criteria
are established. Furthermore, if the commissioner is obliged to consult with
a registration board, the period of assessment is extended by an amount of
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time equivalent to the time taken to undertake the consultation (ie. 14 days
or the longer period determined by the commissioner under section 69).
Consequent to the consolidation of the current receipt and consideration and
assessment phases into a single statutory "assessment" phase, an additional
6 days will be available to the commissioner for the assessment of
complaints.
Clause 443 inserts section 72A into the Health Rights Commission Act
1991 which obliges the commissioner to immediately refer a complaint
about a registered provider to the provider's registration board, where the
complaint indicates that immediate action should be taken by the board to
protect a person or persons from imminent risk. Subject to section 133 of
the Act, the commissioner must give notice of the referral to the
complainant and the provider.
Clause 444 amends section 73 of the Health Rights Commission Act
1991 by inserting a new section heading, "Commissioner's powers during
assessment", and clarifying that these powers may be exercised during the
assessment phase.
Clause 445 amends section 74 of the Health Rights Commission Act
1991 by inserting a new section 74(5A). The provision qualifies section
74(5) which states that the commissioner is not to take action on a
complaint that is made outside the statutory time limit of 12 months. The
qualification is that where the matter of the complaint concerns a registered
provider and may, in the commissioner's opinion, warrant the suspension
or cancellation of the provider, subsection (5) does not apply. This allows
serious complaints about registered providers to be addressed without
regard to the general limitations period for making complaints. This clause
also amends the definition of the term "appropriate tribunal" to reflect
changes to the disciplinary bodies under the Health Practitioners
(Professional Standards) Act 1999.
Clause 446 inserts a new division heading, "Division 3--General", and
new section 74A into the Health Rights Commission Act 1991. This
provision, which is based on the previous section 74, clarifies the
commissioner's powers to gather information at any time in relation to a
health service complaint and to endeavour to resolve a complaint by
whatever means the commissioner considered appropriate. It should be
noted that the legislation does not mandate an active role for the commission
in the local resolution of complaints.
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Clauses 447-448 amend section 82 and section 84 of the Health Rights
Commission Act 1991 (consequent to the amendments made by clause 441)
to distinguish the actions that may be taken by the commissioner in respect
of complaints about registered providers and other providers on ending
conciliation.
Clause 449 amends section 85 of the Health Rights Commission Act
1991 to clarify that documents prepared for conciliation are privileged. This
provision removes any doubt as to the protections available and,
consequently, removes a potential deterrent to conciliation.
Clause 450 amends section 89(5) of the Health Rights Commission Act
1991 by stating that information obtained pursuant to a notice under section
89 is admissible in a disciplinary proceeding before a board. While the
investigation of complaints regarding registered providers will be
undertaken by boards (rather than the commissioner), it is possible that
professional standards issues regarding registered providers will arise in the
course of the commissioner's investigations of complaints regarding other
providers (for example, hospitals). This provision removes any doubt that
information compelled during a commission investigation is admissible in
disciplinary proceedings under the Health Practitioners (Professional
Standards) Act 1999 and the Nursing Act.
Clause 451 omits section 94 and inserts a new section 94 of the Health
Rights Commission Act 1991. The new provision clarifies that the
commissioner may refer a matter raised in the course of investigating a
complaint to another entity to take appropriate action. This is in addition to
the commissioner's power to refer a matter to another entity after assessing
a complaint and the provision could be used when professional standards
issues regarding a registered provider arise in the course of the
commissioner investigating a complaint about a non-registered provider.
Clause 452 makes amendments to section 95 of the Health Rights
Commission Act 1991 to clarify that the entity to which a matter is referred
by the commissioner under section 94 is to deal with it in the most
appropriate manner (not just by way of investigation).
Clause 453 amends section 119(d) of the Health Rights Commission Act
1991 by enabling the commissioner to provide a copy of investigation
reports to registration boards, regardless of whether the investigation
concerned a registered provider. This provision is required to deal with
situations where investigations raise issues about registrants.
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Clause 454 omits sections 121 to 123 of the Health Rights Commission
Act 1991 consequent to the insertion of new provisions in part 5, division 2
of the Act concerning the referral of complaints about registered providers
to registration boards by the commissioner.
Clause 455 omits sections 125 to 129 of the Health Rights Commission
Act 1991 and inserts a new section 125 which clarifies that a registration
board may ask the commissioner for information about any complaints the
commissioner has received that relate to the particular board's registrants.
The omitted provisions, where appropriate, have been relocated to elsewhere
in the Health Rights Commission Act 1991 or are addressed by the Health
Practitioners (Professional Standards) Act 1999.
Clause 456 makes amendments to section 130 of the Health Rights
Commission Act 1991 to clarify that the commissioner may intervene in a
matter before various disciplinary bodies (to reflect the new disciplinary
arrangements established under the Health Practitioners (Professional
Standards) Act 1999) or in an appeal from a disciplinary proceeding.
Furthermore, the provision states that the commissioner may be represented
by a lawyer before the Tribunal or a Professional Conduct Committee but
not before a panel. Before a panel, the commissioner may only be
represented by a person other than a lawyer. Consistent with the approach
to legal representation used under the Health Practitioners (Professional
Standards) Act 1999 and the Nursing Act 1992, the commissioner's rights
to representation before disciplinary bodies mirror those available to other
parties.
Clause 457 inserts new sections 133A and 133B into the Health Rights
Commission Act 1991. Section 133A clarifies that the commissioner may
issue a combined notice in circumstances where the commissioner is
required to give a person more than one notice, to reduce the number of
notices being sent to complainants and providers.
Section 133B specifies that the commissioner may provide information
gathered in the course of an assessment or investigation to a registration
board or other entity when a complaint is referred to such board or entity.
The provision of this information will inform the investigation and any
proceedings taken regarding registered providers.
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Health Practitioners (Professional Standards)
Clause 458 amends section 138 of the Health Rights Commission Act
1991 by clarifying that information gathered by the commissioner that
concerns a registered provider may be disclosed to a disciplinary body or
for the purposes of the Health Practitioners (Professional Standards) Act
1999.
Clause 459 omits the heading of section 144 of the Health Rights
Commission Act 1991 and inserts the new heading, "Transitional for Health
Rights Commission Act 1991 (Act No. 88 of 1991)" in order to distinguish
the original transitional provision under this Act and the transitional
provision inserted at section 145 by the Health Practitioners (Professional
Standards) Act 1999.
Clause 460 inserts a new transitional provision into the Health Rights
Commission Act 1991 at section 145 to allow the commission to continue to
deal with complaints received prior to the commencement of part 14,
division 5 of the Health Practitioners (Professional Standards) Act 1999 as
though that part had not commenced.
This clause also inserts a new section 146 which provides for the Act to
be numbered and renumbered when it is next reprinted.
Clause 461 amends Schedule 1 part 1 item 10 of the Health Rights
Commission Act 1991 to remove any doubt that hypnosis is a declared
health service for the purpose of that Act.
Clause 462 makes a consequential amendment to Schedule 2, item 5 of
the Health Rights Commission Act 1991 to insert the correct title of the
"Queensland Nursing Council" into the list of declared registration boards.
Division 6--Amendment of Health Services Act 1991
Clause 463 specifies that division 6 amends the Health Services Act
1991.
Clause 464 specifies that the confidentiality obligations of section 63(1)
of the Health Services Act 1991 do not apply to the giving of information to
a registration board or the Queensland Nursing Council for the purpose of
making a complaint or giving information about a complaint, or for the
purpose of answering questions or giving information in an investigation or
disciplinary proceeding. This will enable the giving of information to certain
disciplinary bodies without the possibility of breaching the Health Services
Act 1991.
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Division 7--Amendment of Medical Act 1939
Clause 465 specifies that division 7 amends the Medical Act 1939.
Clause 466 repeals the definitions of "complaints investigation
committee" and "impairment" from the Medical Act 1939. The definition
of "tribunal" is amended to refer to the Health Practitioners Tribunal under
the Health Practitioners (Professional Standards) Act 1999. A definition
of the terms "panel" and "unsatisfactory professional conduct" is also
inserted. These changes give effect to the consolidation of disciplinary
powers under the Health Practitioners (Professional Standards) Act 1999.
Clause 467 omits section 4B of the Medical Act 1939 which defines
"impairment".
Clause 468 omits part 2 of the Medical Act 1939. As all powers in
relation to disciplining registered health practitioners are found in the Health
Practitioners (Professional Standards) Act 1999, the power of the
Governor in Council to refer matters to the Medical Assessment Tribunal is
unnecessary. Accordingly, those powers are removed with the omission of
part 2.
Clauses 469-471 repeal sections 12(2), 13(1) and 13C(3) of the Medical
Act 1939 regarding inquiries by the board. Powers in relation to discipline
of medical practitioners are now consolidated under the Health
Practitioners (Professional Standards) Act 1999.
Clause 472 amends section 16 of the Medical Act 1939 by removing
sections 16(1C)(p) and (q) which deal with the power to make by-laws
concerning suspended registrants. Matters concerning suspended
registrants are now dealt with under the Health Practitioners (Professional
Standards) Act 1999.
Clause 473 omits section 17F of the Medical Act 1939, which deals with
the power of the board to impose conditions on the registration of impaired
practitioners. Such powers are now consolidated in the Health
Practitioners (Professional Standards) Act 1999.
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Health Practitioners (Professional Standards)
Clause 474 omits the term "misconduct in a professional respect" from
section 19D of the Medical Act 1939 consequent to the new ground for
disciplinary action under the Health Practitioners (Professional Standards)
Act 1999. Section 19D enables the board to refuse to register a person who
has been deregistered for a reason that would be a ground for disciplinary
action to be taken under the Health Practitioners (Professional Standards)
Act 1999.
Clause 475 omits part 4, division 4 of the Medical Act 1939 which
concerns the suspension of a registrant's registration for the protection of
the public. These powers are now consolidated in the Health Practitioners
(Professional Standards) Act 1999.
Clause 476 omits references in sections 21(1)(c), (d) and (e) of the
Medical Act 1939 to appeals against disciplinary actions of the board. A
registrant's right of appeal regarding disciplinary action taken under the
Health Practitioners (Professional Standards) Act 1999 is contained in that
Act.
Clause 477 amends section 21B of the Medical Act 1939 by inserting a
reference to part 4A, division 3 of that Act to clarify that this section (which
deals with hearing of appeals) applies only to board inquiries into
applications for registration. This change is consequent to the relocation of
the power to hold inquiries into disciplinary matters to the Health
Practitioners (Professional Standards) Act 1999.
Clause 478 omits part 4, division 6 of the Medical Act 1939 which deals
with notification of complaints and disciplinary matters to medical
registration authorities in other states. Notification of such matters is now
dealt with by the Health Practitioners (Professional Standards) Act 1999.
Clauses 479-480 amend the headings of part 4A, division 3 and section
25 of the Medical Act 1939 to reflect that the specific purpose of the part is
to empower the Board to hold inquiries into applications for registration.
Clauses 481-486 amend the Medical Act 1939 by removing or amending
references to disciplinary issues under that Act. In particular, part 5 of the
Act, which refers to the Medical Assessment Tribunal, is omitted.
Provisions dealing with disciplinary powers and the establishment of the
Health Practitioner Tribunal are now consolidated under the Health
Practitioners (Professional Standards) Act 1999.
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It should be noted that clause 400 provides that complaints and
disciplinary matters being dealt with before the commencement of the
Health Practitioners (Professional Standards) Act 1999 are to be dealt with
as if this Act has not commenced. Accordingly, the Medical Assessment
Tribunal will continue to exist until all existing matters being dealt with by
the tribunal or eligible for referral to the tribunal are concluded.
Clause 487 inserts new provisions into the Medical Act 1939 that:
· make it an offence for a medical practitioner to provide a
certificate (for example, a medical certificate), notice or report (for
example, a medico-legal report for the purposes of litigation) that
is false or misleading
· make it an offence for a medical practitioner to fail to notify police
of information that comes to hand in the course of acting in the
medical practitioner's professional capacity that indicates the
commission of a crime
· prohibit a medical practitioner from paying or giving any other
benefit to a person for referring a patient to that medical
practitioner and prohibit a medical practitioner from accepting a
payment or other benefit in exchange for referring a patient to
another person.
These matters were previously included in the extended meaning of
"misconduct in a professional respect", however, this definition has been
omitted consequent to the Health Practitioners (Professional Standards)
Act 1999. It is more appropriate for these matters to be statutory offences.
It should be noted that under clause 124 disciplinary action may be taken on
the basis of a conviction of an offence against the Medical Act 1939.
Clause 488 amends section 58(1)(a)(iv) of the Medical Act 1939
consequent to the new grounds for disciplinary action under the Health
Practitioners (Professional Standards) Act 1999.
Clause 489 omits part 9A of the Medical Act 1939. This removes the
powers of a board to apply to the Supreme Court of Queensland to have a
medical practitioners registration suspended pending the outcome of a
criminal proceeding. Such matters are now dealt with under the Health
Practitioners (Professional Standards) Act 1999.
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Health Practitioners (Professional Standards)
Clause 490 amends section 67(7) of the Medical Act 1939 by clarifying
that the Medical Board may exercise the powers of investigation under the
Health Practitioners (Professional Standards) Act 1999 in order to take
possession of or safeguard medical records. It is intended that these powers
will be available for this purpose, on a temporary basis, until new health
practitioner legislation is enacted and specific powers are included for this
purpose.
Clause 491 omits references to disciplinary action in relation to
"misconduct in a professional respect" (and sections 37 and 37A) in section
76A of the Medical Act 1939 consequent to the use of the disciplinary
provisions of the Health Practitioners (Professional Standards) Act 1999.
Clause 492 omits section 79(2) and 79(2A) of the Medical Act 1939
consequent to the use of the disciplinary provisions of the Health
Practitioners (Professional Standards) Act 1999.
Clause 493, consequent to the repeal of the provisions dealing with the
Medical Assessment Tribunal discussed above, omits section 86(2) from
the Medical Act 1939 and thus removes the power of the Governor in
Council to make regulations in relation to the Medical Assessment Tribunal.
Division 8--Amendment of Nursing Act 1992
Clause 494 states that division 8 amends the Nursing Act 1992.
Clause 495 inserts into section 4 of the Nursing Act 1992 the term
"commissioner".
Clause 496 omits section 102 of the Nursing Act 1992 and inserts
various new provisions (102-102D) concerning the interaction between the
Health Rights Commission and the Queensland Nursing Council and
complaints about the conduct of nurses and other persons authorised to
practise nursing. In particular, this provision specifies:
· a person may complain in writing to the Queensland Nursing
Council if they are aggrieved by the conduct of a nurse. If the
complaint is by a user of nursing services it must be referred to
the Health Rights Commission except under certain
circumstances
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Health Practitioners (Professional Standards)
· where a complaint is referred to the Health Rights Commission it
is deemed to be a health services complaint made under the
Health Rights Commission Act 1991 and the Council must not
take action on the matter unless it is referred back by the
commissioner
· the Council must investigate a complaint if the Minister decides
under the Health Rights Commission Act 1991 that the Council
should investigate, or if the Council and the commission agree
that the Council should investigate
· the Council may take action against former registrants for
breaching the code of conduct when they were practising.
Clause 497 inserts into section 103(1) of the Nursing Act 1992 a new
paragraph. This clarifies that the Council is to undertake an investigation of
a complaint referred by Health Rights Commissioner. This amendment
means that the relationship between the Council and the Health Rights
Commission mirrors the relationship between other health practitioner
registration boards and the commission that is established under the Health
Practitioners (Professional Standards) Act 1999.
Clauses 498-501 amend the Nursing Act 1992 by clarifying the
interaction of the Council with the Health Rights Commission and other
entities, in relation to complaints about nurses. These changes mean that the
Council interacts with the commission and other entities in the same way
that other health professional registration boards do under the Health
Practitioners (Professional Standards) Act 1999. In particular:
· the Council is to keep the commissioner informed about its
investigations
· the Council may, in addition to any other action taken, refer a
complaint to another entity, such as the Police, where that entity
has powers or functions that enable it to take action on the matter
referred
· the Council is to give the commissioner notice of referral of a
charge to the professional conduct committee
· the professional conduct committee is to give the commissioner a
copy of the written reasons for findings and orders made by it
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Health Practitioners (Professional Standards)
· the Council is to give the commissioner notice when it ceases
dealing with a matter which the commissioner has advised is to
be conciliated.
Clause 502 inserts a new section 142A to provide the Council with the
power to issue combined notices under the Act.
Clause 503 inserts a new section 153 into the Nursing Act 1992. The
purpose of this provision is to ensure that where a complaint about a nurse
is made to the Council before the commencement of part 14 of the Health
Practitioners (Professional Standards) Act 1999 (ie. the amendments to the
Nursing Act 1992) and the Council has not finally dealt with it, the Council
may continue to deal with the matter as if part 14 had not commenced.
Division 9--Amendment of Occupational Therapists Act 1979
Division 10--Amendment of Optometrists Act 1974
Division 11--Amendment of Pharmacy Act 1976
Division 12--Amendment of Physiotherapists Act 1964
Division 13--Amendment of Podiatrists Act 1969
Division 15--Amendment of Psychologists Act 1977
Division 16--Amendment of Speech Pathologists Act 1979
Clauses 504-544 (excluding clauses 531-532) make consequential
amendments to the Occupational Therapists Act 1979, Optometrists Act
1974, Pharmacy Act 1976, Physiotherapists Act 1964, Podiatrists Act
1969, Psychologists Act 1977 and Speech Pathologists Act 1979 by
removing all provisions under those Acts concerned with the discipline of
registrants. The disciplinary powers contained in these Acts are
consolidated under the Health Practitioners (Professional Standards) Act
1999. The Occupational Therapists Act 1979, Podiatrist Act 1977,
Psychologists Act 1977 and Speech Pathologists Act 1979 are further
amended to clarify the notice requirements of the respective boards upon
refusal of an application for registration and the right of appeal of the
applicant.
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Division 14--Amendment of Police Powers and Responsibilities Act
1997
Clauses 531-532 clarify that an investigator appointed under the Health
Practitioners (Professional Standards) Act 1999 is a public official for the
purpose of the Police Powers and Responsibilities Act 1997. This
provision enables an investigator to obtain police assistance.
Schedule
Schedule sets out the dictionary of terms used in the Act.
© The State of Queensland 1999