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TASMANIA
__________
HEALTH SERVICE ESTABLISHMENTS BILL 2005
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Objects of Act
PART 2 LICENSING OF PREMISES
5. Requirement for licensing
PART 3 HEALTH SERVICE ESTABLISHMENTS ADVISORY
COMMITTEE
6. Constitution of Advisory Committee
7. Functions of Advisory Committee
8. Subcommittees of Advisory Committee
PART 4 LICENSING OF ESTABLISHMENTS
Division 1 Applications for and issue of licences
9. Application for licence
10. Approval in principle or refusal of application
11. Approval in principle to remain effective for one year
12. Issue of licence
13. Temporary licences
[Bill 53]-IV
Division 2 Provisions relating to licences
14. Classes of establishments
15. Form of licence
16. Conditions of licence
17. Duration of licence
18. Annual licence fees
19. Transfer of licence to another licensee
20. Notification of alterations or extensions to licensed
establishments
21. Provision for repairs, &c.
22. Amendment of licences
Division 3 General provisions relating to applications for licences, &c.
23. Additional information
24. Notice of reasons for refusal of application
25. Advertising of applications
26. Amendment of applications
Division 4 Review of decisions of Secretary
27. Interpretation of Division 4
28. Right of appeal to Magistrates Court (Administrative Appeals
Division)
Division 5 Cancellation of licences
29. Cancellation of licence without notice
30. Cancellation of licence with notice
PART 5 CONDUCT OF ESTABLISHMENTS
31. Duty to comply with Aged Care Act 1997 of Commonwealth
32. Unauthorised procedures
33. Unlicensed private hospitals
34. Unlicensed day-procedure centres
35. Unlicensed residential care service
36. Executor or administrator regarded as licensee
37. Purposes for which establishments may be used
2
38. Overcrowding
39. Chief nurse of establishment
40. Title of "matron" and "director of nursing"
41. Registered nurse to be on duty
42. Register of patients
43. Copy of Act and regulations to be available
PART 6 MISCELLANEOUS
44. Delegation
45. Disclosure of pecuniary interests to patients
46. Power to enter and inspect establishments
47. Power to inspect registers and records
48. Obstruction of officers
49. False or misleading statements, &c.
50. Evidentiary certificates
51. Service of notices by Secretary
52. Offences by corporations
53. Proceedings for offences
54. Provision of information
55. Confidentiality
56. Regulations
57. Savings and transitional provisions
58. Administration of Act
59. Consequential Amendments
60. Act repealed
SCHEDULE 1 MEMBERS AND PROCEDURE OF HEALTH
SERVICE ESTABLISHMENTS ADVISORY
COMMITTEE
SCHEDULE 2 SAVINGS AND TRANSITIONAL PROVISIONS
SCHEDULE 3 CONSEQUENTIAL AMENDMENTS
SCHEDULE 4 ACT REPEALED
3
4
HEALTH SERVICE ESTABLISHMENTS BILL 2005
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
8 November 2005
(Brought in by the Minister for Health and Human Services,
the Honourable David Edward Llewellyn)
A BILL FOR
An Act to provide for the licensing and control of health
service establishments and to repeal the Hospitals Act 1918
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Health Service
Establishments Act 2005.
2. Commencement
This Act commences on a day to be proclaimed.
[Bill 53] 5
s. 3 No. Health Service Establishments 2005
3. Interpretation
(1) In this Act, unless the contrary intention
appears
"Advisory Committee" means the Health
Service Establishments Advisory
Committee established under section 6;
"application" means
(a) an application for a licence under
section 9; or
(b) an application for transfer of a
licence under section 19; or
(c) an application to alter or extend
an establishment under
section 20; or
(d) an application for amendment of
a licence under section 22;
"chief nurse" means the chief nurse of an
establishment as referred to in section 39;
"commencement date" means the date fixed
by proclamation under section 2;
"day-procedure centre" means an
establishment at which any patient is
admitted and discharged on the same day
for medical, surgical or other treatment,
but does not include
(a) any such establishment conducted
by or on behalf of the State; or
(b) a public hospital or health service
under the control of a public
6
2005 Health Service Establishments No. s. 3
health organisation within the
meaning of the Health Act 1997;
or
(c) a private hospital licensed under
this Act; or
(d) a residential care service;
"establishment" means
(a) a day-procedure centre; or
(b) a private hospital; or
(c) a residential care service;
"former Act" means the Hospitals Act 1918;
"funded resident" means a resident of a
residential care service whose care is
partly or fully funded, either directly or
indirectly, by the Commonwealth or a
State or Territory of the Commonwealth;
"licence" means a licence issued under
section 12 and in force under this Act,
and includes a temporary licence;
"licensee" means the holder, or any one or
more of the holders, for the time being of
a licence;
"licensing standards" means the standards
prescribed by the regulations;
"member" means a member of an Advisory
Committee appointed under section 6;
"patient" means
7
s. 3 No. Health Service Establishments 2005
(a) in respect of a private hospital, a
person accommodated in the
private hospital for treatment; or
(b) in respect of a day-procedure
centre, a person admitted to the
day-procedure centre for
treatment; or
(c) a person for whom any residential
care service is provided;
"personal care" means
(a) assistance with one or more of
the following:
(i) bathing, showering or
personal hygiene;
(ii) dressing or undressing;
(iii) meals; or
(b) physical assistance or supervision
for persons subject to a disability;
or
(c) assistance or supervision in
dispensing medicine; or
(d) the provision of substantial
emotional support;
"practitioner" means a medical practitioner
or a dentist;
"premises" includes any land, building and
part of any building;
8
2005 Health Service Establishments No. s. 3
"private hospital" means premises at which
any patient is provided with
accommodation, medical, surgical or
other treatment and with ancillary
nursing care, for fee, gain or reward, but
does not include
(a) an establishment conducted by or
on behalf of the State; or
(b) a day-procedure centre; or
(c) a residential care service;
"professional attention" means
(a) medical or surgical treatment by
or under the supervision of a
registered medical practitioner; or
(b) obstetric treatment by or under
the supervision of a registered
medical practitioner or a
registered nurse with obstetric
qualifications; or
(c) dental treatment by or under the
supervision of a registered dental
practitioner; or
(d) podiatric treatment by a
registered podiatrist;
"public hospital" means a State-funded
hospital;
"register of patients" means the register that
is required by section 42 to be kept at an
establishment;
9
s. 3 No. Health Service Establishments 2005
"registered nurse" means a nurse registered
or enrolled under the Nursing Act 1995;
"residential care service" means premises
where accommodation and personal care
or nursing care are provided to an elderly
person who is not a member of the
immediate family of the proprietor of the
service, but does not include a service
providing accommodation for persons
otherwise living independently even
though the provision of accommodation
may or may not include domestic
services such as the preparation of meals,
cleaning and laundry services;
"Secretary" means the Secretary of the
Department;
"temporary licence" means a licence issued
under section 13 and in force under this
Act;
"type A procedure" means a procedure
involving professional attention normally
requiring admitted overnight hospital
stay;
"type B procedure" means a procedure
involving professional attention normally
requiring admitted hospital treatment that
does not include part of an overnight
stay;
"type C procedure" means a procedure
involving professional attention that does
not normally require admitted hospital
treatment.
10
2005 Health Service Establishments No. s. 4
(2) A reference in this Act to medical, surgical or
other treatment includes a reference to a
diagnosis for the purposes of any such treatment.
(3) A reference in this Act to the conduct of an
establishment (however expressed) is a reference
to the carrying on of the business of the
establishment.
(4) A reference in this Act to a person who conducts
an establishment (however expressed) is a
reference
(a) to a corporation which conducts the
establishment, except where that
corporation is acting only in its capacity
as an agent; or
(b) to a natural person who conducts the
establishment (whether jointly with other
persons or alone), except where that
person is acting only in the person's
capacity as an employee or an agent.
(5) For the purposes of this Act, a corporation is not
a fit and proper person to be a licensee unless
each director and each person concerned in the
management of the corporation is a fit and
proper person to be a licensee.
4. Objects of Act
The objects of this Act are to ensure
(a) the quality and safety of services
provided at private health establishments
by specifying the standards to be met by
those establishments; and
11
s. 4 No. Health Service Establishments 2005
(b) that services are provided to meet
effectively the needs of Tasmanians in
accordance with clinical practice
guidelines as to the provision of services
and standards observed in Tasmania and
elsewhere in Australia.
12
2005 Health Service Establishments No. s. 5
PART 2 LICENSING OF PREMISES
5. Requirement for licensing
(1) Premises where type A procedures are
undertaken require licensing as a private
hospital.
(2) Premises where type B procedures but no type A
procedures are undertaken require licensing as a
day-procedure centre whether or not any type C
procedures are undertaken.
(3) Any premises where only type C procedures are
undertaken do not require licensing as a private
hospital or a day-procedure centre unless the
Secretary is satisfied that, having regard to
considerations of public safety and the quality of
service to be provided, the premises should be
licensed as a private hospital or a day-procedure
centre.
(4) Any premises where no type A, type B or type C
procedures are undertaken do not require
licensing as a private hospital or a day-procedure
centre unless the Secretary is satisfied that,
having regard to considerations of public safety
and the quality of service to be provided, the
premises should be licensed as a private hospital
or a day-procedure centre.
(5) A residential care service is required to be
licensed unless the services are provided only to
funded residents.
(6) The Secretary may exempt a residential care
service from the requirement to be licensed if the
Secretary is satisfied that
13
s. 5 No. Health Service Establishments 2005
(a) the residential care service does not
provide, or is unlikely to provide, nursing
care service for its residents; and
(b) a council has given approval for the
service to be provided; and
(c) there are plans for fire safety and
evacuation acceptable to the Tasmania
Fire Service; and
(d) there are appropriate arrangements to
facilitate access to any medical and
nursing services as may be required by
any resident; and
(e) there are acceptable guidelines to be
observed for the management of
medication for residents.
(7) The Secretary may, by order published in the
Gazette, declare that any premises where a
service is provided, for which funding is
provided by the State, is exempt from the
requirement to be licensed.
(8) The Secretary may not exempt a public hospital
from the requirement to be licensed unless he or
she is satisfied that administrative arrangements
are in place which will enable the public hospital
to provide substantially the same quality of
service as is required of private hospitals under
this Act.
14
2005 Health Service Establishments No. s. 6
PART 3 HEALTH SERVICE ESTABLISHMENTS
ADVISORY COMMITTEE
6. Constitution of Advisory Committee
(1) There is established by this Act the Health
Service Establishments Advisory Committee.
(2) The Advisory Committee is to consist of at least
3 and no more than 7 members, as the Minister
may determine.
(3) The members are to be appointed by the
Minister.
(4) Of the members
(a) at least one is to be a State Service
officer or a State Service employee; and
(b) at least one is to be a person nominated
by the private hospital industry; and
(c) one is to be a person who is not
concerned in the management of an
establishment and who is nominated by
the Minister to represent the interests of
the persons for whom services are
provided by establishments.
(5) Schedule 1 has effect with respect to the
members and procedure of the Advisory
Committee.
7. Functions of Advisory Committee
The functions of the Advisory Committee are
15
s. 8 No. Health Service Establishments 2005
(a) to provide advice to the Secretary in
respect of applications for approval for
new, altered or expanded private hospital
services or services to be provided by
other establishments taking account of
(i) any relevant hospital services
planning guidelines; and
(ii) the critical mass of patients to
comply with clinical practice and
guidelines, as to the provision of
services, recognised throughout
Australia and any other matter
that the committee considers to
be supported by expert opinion;
and
(iii) the current availability of services
in the local area; and
(iv) the suitability of the applicant to
provide any such services; and
(b) to prepare such reports for the Minister,
giving such advice, as may be required
by the Minister from time to time.
8. Subcommittees of Advisory Committee
(1) The Advisory Committee may establish
subcommittees to assist it in connection with the
performance of any of its functions, and any or
all of the members of a subcommittee need not
be members of the Advisory Committee.
(2) The procedure for the calling of meetings of a
subcommittee and for the conduct of business at
16
2005 Health Service Establishments No. s. 8
those meetings are to be as determined by the
Advisory Committee or, subject to any
determination of the Advisory Committee, by
the subcommittee.
17
s. 9 No. Health Service Establishments 2005
PART 4 LICENSING OF ESTABLISHMENTS
Division 1 Applications for and issue of licences
9. Application for licence
(1) An application for a licence for an establishment
may be made to the Secretary by a person who
intends to conduct the establishment.
(2) The application
(a) is to be in accordance with a form
approved by the Secretary; and
(b) is to specify the class or classes of
establishments in respect of which the
licence is sought; and
(c) in the case of a proposed private hospital,
is to specify the maximum number of
patients that it is proposed to
accommodate overnight at any one time
at the hospital; and
(d) in the case of a proposed day-procedure
centre, is to specify the number of
procedure rooms that are proposed to be
provided at the centre; and
(e) in the case of a proposed residential care
service, is to specify the maximum
number of residents to be
accommodated; and
(f) is to be accompanied by such particulars
as to the establishment and the conduct
of the establishment as the Secretary may
require; and
18
2005 Health Service Establishments No. s. 10
(g) is to be accompanied by the prescribed
application fee.
10. Approval in principle or refusal of application
(1) The Secretary must, after considering an
application for a licence under section 9
(a) approve the application in principle; or
(b) refuse the application.
(2) The Secretary may impose conditions on an
approval of an application in principle,
including, but not limited to
(a) conditions relating to the design and
construction of any building to be
constructed, altered or extended for the
purposes of the proposed establishment;
and
(b) the preparation and submission to the
Secretary of a development timetable for
any such building specifying the dates by
which it is proposed that different stages
in construction, alteration or extension
will be completed.
(3) The Secretary may refuse an application for a
licence only if
(a) the Secretary is of the opinion that the
applicant, or any of the applicants, is not
a fit and proper person to be a licensee;
or
(b) the Secretary is satisfied that the
proposed establishment is not capable of
19
s. 10 No. Health Service Establishments 2005
being conducted in accordance with the
licensing standards applicable to it; or
(c) the Secretary is of the opinion that the
application should be refused having
regard to such development guidelines as
may be prescribed by the regulations; or
(d) the Secretary is of the opinion that the
proposed establishment will have
insufficient patients to ensure a critical
mass for the maintenance of skills or the
recruitment and retention of specialist
staff.
(4) A decision on the limiting of specialty services is
to be based on clinical considerations relating to
service quality and is to be consistent with
established clinical practice and guidelines
relating to specialty service planning published
by the Australian Health Ministers Advisory
Committee, the Medicare Services Advisory
Committee, the National Health and Medical
Research Council, the Royal Colleges, any
health authority established in any other State or
a Territory or any other similar body or
authority.
(5) The Secretary, in approving a licence in
principle, is to state the type of specialty service
authorised to be provided under the licence and
any conditions for the provision of that service.
(6) If the Secretary approves an application in
principle, the Secretary is to give the applicant
written notice of that approval and any
conditions to which the approval is subject.
20
2005 Health Service Establishments No. s. 11
11. Approval in principle to remain effective for one
year
(1) An approval in principle of an application for a
licence is effective for a period of one year from
the date on which the applicant is given notice of
that approval under section 10(6) and for any
such further period or periods as the Secretary
may, at the request of the applicant, allow.
(2) More than one request may be made by an
applicant under subsection (1), but any such
request is to be made while the approval in
principle of the application is effective.
(3) If the Secretary has, as a condition of an
approval in principle of an application, required
the applicant to provide particulars of how the
establishment is to be conducted, the Secretary
may grant an extension of the period for which
that approval is effective only if the Secretary is
satisfied that the applicant has made a reasonable
attempt to comply with that condition.
12. Issue of licence
(1) If the Secretary has approved in principle an
application for a licence and any construction,
alteration or extension of any building to which
the application relates has been completed, the
Secretary is to either
(a) grant the application and issue a licence
to the applicant; or
(b) refuse the application.
21
s. 13 No. Health Service Establishments 2005
(2) In any such case, the Secretary may not refuse
the application for a licence unless
(a) the approval in principle of the
application expired before the
completion of the construction, alteration
or extension of any building to which the
application relates; or
(b) any such building was not constructed,
altered or extended in accordance with
the approval in principle; or
(c) any other condition to which the
approval in principle was subject has not
been complied with.
13. Temporary licences
(1) If an application is made for a licence in respect
of an existing building, the Secretary may,
pending the determination of the application,
issue to the applicant a temporary licence.
(2) A temporary licence remains in force until
(a) the date of its expiry; or
(b) the application for the licence is granted;
or
(c) the temporary licence is cancelled
whichever first occurs.
(3) The date of expiry of a temporary licence is
(a) except as provided by paragraph (b),
such date (not exceeding 2 months after
22
2005 Health Service Establishments No. s. 14
the date of issue of the temporary
licence) as may be specified in the
temporary licence; or
(b) such later date as the Secretary may, by
notice in writing served on the applicant,
direct.
Division 2 Provisions relating to licences
14. Classes of establishments
For the purposes of this Act, there are to be such
classes of establishments as may be prescribed
by the regulations.
15. Form of licence
Without limiting the particulars that may be
included in a licence, a licence is to specify
(a) the person to whom it is issued; and
(b) the address of the establishment for
which it is issued; and
(c) the class or classes of establishments in
respect of which it is issued; and
(d) in the case of a private hospital, the
maximum number of patients who may
be accommodated overnight at any one
time, as determined by the Secretary; and
(e) in the case of a residential care service,
the maximum number of residents who
23
s. 16 No. Health Service Establishments 2005
may be accommodated, as determined by
the Secretary; and
(f) in the case of a day-procedure centre, the
maximum number of rooms available for
day procedures.
16. Conditions of licence
(1) The Secretary may issue a licence subject to
such conditions as may be specified in the
licence.
(2) A licence is subject to the condition that the
licensee must, in respect of the conduct of the
establishment concerned, be insured under a
policy of insurance approved by the Secretary to
a prescribed minimum amount of cover.
17. Duration of licence
A licence (other than a temporary licence)
remains in force until it is cancelled under this
Act.
18. Annual licence fees
The licensee of an establishment must, on or
before 31 December in each year, pay to the
Secretary such annual licence fee as may be
prescribed by the regulations in respect of the
establishment.
24
2005 Health Service Establishments No. s. 19
19. Transfer of licence to another licensee
(1) The Secretary may, on application made in
accordance with this section, transfer the licence
for an establishment to another person who
intends to conduct the establishment
(a) by an appropriate endorsement on the
licence; or
(b) by cancelling the licence and issuing a
substitute licence to that person.
(2) An application under this section
(a) is to be in, or to the effect of, a form
approved by the Secretary; and
(b) is to be accompanied by such particulars
as to the establishment and the conduct
of the establishment as the Secretary may
require; and
(c) is to be accompanied by such fee as may
be prescribed by the regulations.
(3) The Secretary may refuse an application if, in
the Secretary's opinion, the proposed licensee, or
any of the proposed licensees, is not a fit and
proper person to be a licensee.
20. Notification of alterations or extensions to licensed
establishments
If the licensee of an establishment proposes to
make any material alteration to or extension of
the establishment, he or she must give notice in
writing to the Secretary at least 14 days before
25
s. 21 No. Health Service Establishments 2005
the proposed alteration or extension is proposed
to commence.
21. Provision for repairs, &c.
(1) The Secretary may, by notice in writing, require
the licensee of an establishment to carry out such
repairs, maintenance, alterations, extensions or
improvements to the establishment as may be
specified in the notice.
(2) A licensee must comply with the requirements of
any such notice within the time specified in the
notice or within such further time as the
Secretary may allow.
Penalty: Fine not exceeding 20 penalty units.
(3) Any such notice is not to take effect
(a) until the expiration of 14 days after the
notice has been given to the licensee; or
(b) if the licensee applies for a review of the
Secretary's decision under Division 4
before the expiration of the period
referred to in paragraph (a), until the
application for review is dealt with or
withdrawn.
22. Amendment of licences
(1) The Secretary may amend a licence in one or
more of the following ways:
(a) by specifying in the licence additional
classes of establishments;
26
2005 Health Service Establishments No. s. 22
(b) by omitting any class of establishments
specified in the licence;
(c) in the case of a private hospital, by
increasing or decreasing the number of
patients specified in the licence as the
number of patients who may be
accommodated overnight at any one time
in the hospital;
(d) in the case of a residential care service,
by increasing or decreasing the number
of residents specified in the licence as the
number of residents who may be
accommodated;
(e) in the case of a day-procedure centre, by
increasing or decreasing the number of
rooms available for day procedures;
(f) by amending or revoking any condition
to which the licence is subject, including
a condition relating to a type of specialty
service to be provided under the licence
but excluding the condition referred to in
section 16(2), or attaching further
conditions to the licence.
(2) The Secretary may amend a licence under this
section if
(a) the licensee applies in writing to the
Secretary to make the amendment and
pays the prescribed fee; or
(b) the Secretary considers that the licence
requires amendment.
(3) The amendment is to be based on clinical
considerations relating to service quality and is
27
s. 22 No. Health Service Establishments 2005
to be consistent with established clinical practice
and guidelines relating to specialty service
planning published by the Australian Health
Ministers Advisory Committee, the Medicare
Services Advisory Committee, the National
Health and Medical Research Council, the Royal
Colleges, any health authority established in any
other State or a Territory or any other similar
body or authority.
(4) A licence is amended under this section
(a) by an appropriate endorsement on the
licence; or
(b) by the cancellation of the licence and the
issue of a substitute licence incorporating
the amendment; or
(c) by giving notice in writing to the
licensee.
(5) A licensee must forward his or her licence to the
Secretary if the Secretary, by notice in writing,
requires the licensee to do so for the purposes of
this section.
Penalty: Fine not exceeding 5 penalty units.
(6) On the service of a notice referred to in
subsection (4)(c), the licence to which the notice
relates is taken to be amended in accordance
with the notice.
28
2005 Health Service Establishments No. s. 23
Division 3 General provisions relating to applications for
licences, &c.
23. Additional information
(1) The Secretary may, by notice in writing served
on an applicant for a licence, direct the applicant
to provide such information to the Secretary as
the Secretary may reasonably require for the
purpose of determining the application.
(2) The Secretary may refuse an application on the
ground that the applicant has failed to comply
with any such direction.
24. Notice of reasons for refusal of application
If the Secretary refuses an application for a
licence, the Secretary must immediately cause
the applicant to be notified in writing
(a) that the Secretary has refused the
application; and
(b) of the grounds on which the Secretary
has refused the application; and
(c) if the Secretary refuses the application on
the ground that the applicant is not a fit
and proper person to be a licensee, of the
reasons why the applicant is considered
not to be a fit and proper person to be a
licensee.
29
s. 25 No. Health Service Establishments 2005
25. Advertising of applications
Before
(a) approving in principle an application for
a licence, or refusing any such
application under section 12; or
(b) determining an application to transfer a
licence
the Secretary is to cause the application to be
publicly advertised in such manner as the
Secretary thinks fit and is to take into
consideration any representations made in
respect of the application within the time
specified in the advertisement.
26. Amendment of applications
An applicant may, with the approval of the
Secretary, amend an application for a licence.
Division 4 Review of decisions of Secretary
27. Interpretation of Division 4
In this Division
"decision of the Secretary" means
(a) a decision of the Secretary to
refuse an application; or
(b) a determination by the Secretary,
when issuing a licence, of the
class or classes of establishments
for which the licence is issued; or
30
2005 Health Service Establishments No. s. 28
(c) a determination by the Secretary,
when issuing a licence for a
private hospital, of the maximum
number of patients who may be
accommodated overnight at any
one time in the hospital; or
(d) a determination by the Secretary,
when issuing a licence for a
residential care service, of the
maximum number of residents
who may be accommodated
overnight; or
(e) a determination by the Secretary
of the conditions subject to which
a licence is issued; or
(f) a decision of the Secretary to
require the licensee of an
establishment to carry out repairs,
maintenance, alterations,
extensions or improvements to
the establishment; or
(g) a decision of the Secretary to
amend a licence (otherwise than
on the application of the
licensee); or
(h) a decision of the Secretary to
cancel a licence.
28. Right of appeal to Magistrates Court
(Administrative Appeals Division)
A person aggrieved by a decision of the
Secretary may appeal to the Magistrates Court
31
s. 29 No. Health Service Establishments 2005
(Administrative Appeals Division) in accordance
with the Magistrates Court (Administrative
Appeals Division) Act 2001.
Division 5 Cancellation of licences
29. Cancellation of licence without notice
The Secretary may cancel the licence for an
establishment without holding an inquiry or
giving any notice to the licensee
(a) if the licensee requests the Secretary in
writing to cancel the licence; or
(b) if the premises to which the licence
relates have ceased to be an
establishment of a class in respect of
which the licence was issued; or
(c) in the case of a temporary licence, if the
Secretary considers that it is appropriate
to do so.
30. Cancellation of licence with notice
(1) The Secretary may cancel the licence for an
establishment
(a) if the annual licence fee payable under
section 18 in respect of the establishment
has not been paid by the due date; or
(b) if the licensee is considered no longer to
be a fit and proper person to be a
licensee; or
32
2005 Health Service Establishments No. s. 30
(c) if the licensee or, where the licensee is a
corporation, any director or other person
concerned in the management of the
corporation is convicted of an offence
under this Act or the regulations; or
(d) if the licensee (or, where the licensee is a
corporation, any director or other person
concerned in the management of the
corporation) is convicted in Tasmania of
an offence punishable by imprisonment
for a period of 12 months or more, or is
convicted elsewhere than in Tasmania of
an offence which, if committed in
Tasmania, would be an offence so
punishable; or
(e) if the licensee commits a breach of any
condition to which the licence is subject;
or
(f) if the licensee, in the case of a natural
person, becomes bankrupt, applies to
take the benefit of any law for the relief
of bankrupt or insolvent debtors,
compounds with his or her creditors or
makes an assignment of his or her
remuneration for their benefit; or
(g) where the licensee is a corporation, if a
receiver or manager has been appointed
in respect of the property of the licensee
or if the licensee has commenced to be
wound up or is under official
management; or
(h) if the establishment has not been
conducted in accordance with the
licensing standards applicable to it; or
33
s. 30 No. Health Service Establishments 2005
(i) if the establishment is conducted in such
a manner
(i) that reasonable standards of
patient care have not been
maintained; or
(ii) that the cancellation of the
licence is otherwise, in the
Secretary's opinion, in the public
interest.
(2) The Secretary may, for the purpose of exercising
any of his or her powers under subsection (1),
cause an inquiry to be made by a person
appointed by the Secretary for the purpose.
(3) The Secretary is not to cancel a licence under
this section unless, before cancelling the licence,
the Secretary
(a) has given notice to the licensee that he or
she intends to cancel the licence; and
(b) has specified in that notice the reasons
for the Secretary's intention to cancel the
licence; and
(c) has given the licensee (whether in the
course of an inquiry under subsection (2)
or otherwise) a reasonable opportunity to
make submissions to the Secretary in
respect of the proposed cancellation; and
(d) has taken into consideration any such
submissions by the licensee.
(4) The cancellation of a licence under this section
does not take effect until the expiration of 14
days after notice of the Secretary's decision is
34
2005 Health Service Establishments No. s. 30
given to the licensee, subject to any order made
under the Magistrates Court (Administrative
Appeals Division) Act 2001.
35
s. 31 No. Health Service Establishments 2005
PART 5 CONDUCT OF ESTABLISHMENTS
31. Duty to comply with Aged Care Act 1997 of
Commonwealth
(1) In this section
"Commonwealth Act" means the Aged Care
Act 1997 of the Commonwealth.
(2) A licensee must provide for each resident of a
residential care service who is not a funded
resident a standard of accommodation and a
standard of care as required by any enactment or
under any guidelines published under any law of
the Commonwealth or Tasmania.
(3) Without limiting subsection (2), the Minister
may, by order published in the Gazette, declare
that any Quality of Care Principles in respect of
aged care that are in force under Chapter 4 of the
Commonwealth Act or any Principles made by
the Minister administering that Act in force
under Chapter 7 of that Act are to apply as a law
of Tasmania.
(4) It is the duty of the licensee of an establishment
to provide for the health, wellbeing, personal
care and social and cultural needs of all persons
for whom any health service is provided and, in
particular
(a) to maintain an adequate number of
appropriately skilled staff to ensure that
the needs of all such persons are met; and
36
2005 Health Service Establishments No. s. 32
(b) to provide care and services of a quality
that is consistent with any rights and
responsibilities of those persons; and
(c) to comply with the Accreditation
Standards, Residential Care Standards,
Community Care Standards and Flexible
Care Standards, as may be appropriate, in
force under the Commonwealth Act; and
(d) to provide access to an appropriate
complaints mechanism for those persons;
and
(e) to provide such care and services as are
required by any other Principles in
respect of aged care that are in force
under this section.
(5) A licensee who fails to discharge any of his or
her duties under this section is guilty of an
offence punishable on summary conviction by a
fine not exceeding 100 penalty units and, in the
case of a continuing offence, a further fine not
exceeding 10 penalty units for each day during
which the offence continues.
32. Unauthorised procedures
If
(a) any type A or type B procedures are
carried out without the authority of a
licence as required under section 5(1); or
(b) any type C procedures which require
licensing under section 5(3) are carried
out without the authority of a licence; or
37
s. 33 No. Health Service Establishments 2005
(c) any procedures are carried out in
premises which are required to be
licensed under section 5(4) but which are
not so licensed
the manager of the premises at which the
procedures are carried out is guilty of an offence
punishable on summary conviction by a fine not
exceeding 100 penalty units and, in the case of a
continuing offence, a further fine not exceeding
10 penalty units for each day during which the
offence continues.
33. Unlicensed private hospitals
(1) A person must not conduct a private hospital
unless
(a) the private hospital is licensed; and
(b) the person is the licensee.
Penalty: Fine not exceeding 100 penalty units
and, in the case of a continuing
offence, a further fine not exceeding
10 penalty units for each day during
which the offence continues.
(2) If, in any proceedings, it is shown that
(a) during any month, 2 or more persons
who are not members of the family of the
occupier of premises; or
(b) during any year, 6 or more persons who
are not members of that family
have been accommodated in the premises and
that those persons have been provided at the
38
2005 Health Service Establishments No. s. 34
premises with medical, surgical or other
treatment and with ancillary nursing care, that
fact is evidence that the premises are a private
hospital (whether or not there is any evidence
that a charge was made for the treatment).
34. Unlicensed day-procedure centres
(1) A person must not conduct a day-procedure
centre unless
(a) the day-procedure centre is licensed; and
(b) the person is the licensee.
Penalty: Fine not exceeding 100 penalty units
and, in the case of a continuing
offence, a further fine not exceeding
10 penalty units for each day during
which the offence continues.
(2) A day-procedure centre is not required to be
licensed if it is conducted in the same premises
as a licensed private hospital and by the same
person who conducts the private hospital.
35. Unlicensed residential care service
A person must not provide a residential care
service unless
(a) he or she holds a licence authorising the
residential care service; or
(b) residential care services are provided for
funded residents only; or
39
s. 36 No. Health Service Establishments 2005
(c) the Secretary has exempted under
section 5(6) the residential care service
from the requirement to be licensed.
Penalty: Fine not exceeding 100 penalty units
and, in the case of a continuing
offence, a further fine not exceeding
10 penalty units for each day during
which the offence continues.
36. Executor or administrator regarded as licensee
If the licensee of an establishment dies and he or
she was the only licensee of the establishment,
the executor of the will or administrator of the
estate of the licensee is taken to be the licensee
for a period not exceeding 2 months or such
longer period as the Secretary may, in writing,
approve.
37. Purposes for which establishments may be used
(1) The licensee of an establishment must not cause
or permit the licensed premises to be used for
any purpose other than the following purposes:
(a) the conduct of an establishment of the
class or classes specified in the licence;
(b) a purpose permitted by a condition to
which the licence is subject;
(c) a purpose which is prescribed by the
regulations for the purposes of this
paragraph.
40
2005 Health Service Establishments No. s. 38
Penalty: Fine not exceeding 20 penalty units
and, in the case of a continuing
offence, a further fine not exceeding 2
penalty units for each day during
which the offence continues.
(2) A reference in subsection (1)(a) to the conduct of
an establishment does not include a reference to
the conduct of a pharmacist's shop or dispensary
in the establishment.
38. Overcrowding
(1) The licensee of an establishment must not cause
or permit the number of patients accommodated
overnight at any one time in the establishment to
exceed the number of patients specified in the
licence.
Penalty: Fine not exceeding 20 penalty units.
(2) The licensee of an establishment is not guilty of
an offence under this section in respect of
anything done in an emergency.
39. Chief nurse of establishment
(1) The licensee of an establishment must not
conduct the establishment unless
(a) there is a person who carries out the
duties of chief nurse of the establishment
and who is responsible for the care of the
patients in the establishment as
prescribed by the regulations; and
41
s. 39 No. Health Service Establishments 2005
(b) that person is a registered nurse and has
such experience as the Secretary
considers necessary for the proper
conduct of the establishment.
Penalty: Fine not exceeding 20 penalty units.
(2) The licensee of an establishment is not guilty of
an offence under subsection (1) merely because,
from time to time (not exceeding at any one time
a period of 21 days), there is no person who is a
registered nurse with the experience referred to
in subsection (1)(b) carrying out the duties of
chief nurse of the establishment.
(3) Except as may be provided by the regulations,
the licensee of an establishment must notify the
Secretary in writing of the full name and the
qualifications of the person who carries out the
duties of chief nurse of the establishment.
Penalty: Fine not exceeding 5 penalty units.
(4) A notification under subsection (3)
(a) is to be given before the person to whom
it relates commences to carry out the
duties of chief nurse or, if that is not
practicable, immediately after that time;
and
(b) is to be accompanied by such particulars
as may be prescribed.
(5) Nothing in this Act prevents the licensee of an
establishment who is a natural person from
carrying out the duties of chief nurse of the
establishment if the licensee is qualified to carry
out those duties.
42
2005 Health Service Establishments No. s. 40
(6) It is a defence to a prosecution for an offence
under this section if the person charged proves
that he or she took all such steps as are
reasonable in the circumstances to avoid the
commission of the offence.
40. Title of "matron" and "director of nursing"
(1) The licensee of an establishment or a person
employed at the establishment must not use the
title "matron" or "director of nursing" unless the
licensee or person is the chief nurse of the
establishment.
Penalty: Fine not exceeding 20 penalty units.
(2) The licensee of an establishment must not permit
a person employed at the establishment to
contravene this section.
Penalty: Fine not exceeding 20 penalty units.
41. Registered nurse to be on duty
The licensee of an establishment must, at all
times while the establishment is being
conducted, cause a registered nurse to be on duty
in the establishment, unless the establishment is
exempt from this requirement under any
condition to which the licence is subject.
Penalty: Fine not exceeding 20 penalty units.
43
s. 42 No. Health Service Establishments 2005
42. Register of patients
(1) The licensee of an establishment must cause a
register of patients to be kept, in a form
approved by the Secretary, at the establishment.
(2) The following particulars are to be entered in the
register of patients:
(a) the name, age and residential address of
each patient at the establishment;
(b) the date when the patient was received at
the establishment;
(c) the date when the patient left the
establishment or, in the event of the
patient's death, the date of death;
(d) the name of the medical practitioner
attending the patient;
(e) such other particulars as may be
prescribed.
(3) The particulars referred to in subsection (2) are
to be entered in the register of patients by the
persons, at the time and in the manner, approved
by the Secretary for the purposes of this
subsection.
(4) A person must not
(a) enter in the register of patients any
particular that the person knows or has
reason to believe to be false or
misleading in a material particular; or
44
2005 Health Service Establishments No. s. 43
(b) wilfully fail to enter in the register of
patients any particular which the person
is required by subsection (2) to enter.
Penalty: Fine not exceeding 20 penalty units.
43. Copy of Act and regulations to be available
The licensee of an establishment must, at all
times while the establishment is being
conducted, cause a copy of this Act and the
regulations to be readily available at the
establishment for inspection by the chief nurse.
Penalty: Fine not exceeding 5 penalty units.
45
s. 44 No. Health Service Establishments 2005
PART 6 MISCELLANEOUS
44. Delegation
The Secretary may delegate any of his or her
functions or powers under this Act.
45. Disclosure of pecuniary interests to patients
(1) If a practitioner has a pecuniary interest in an
establishment, the practitioner must not
(a) advise a person to be admitted to the
establishment; or
(b) arrange the admission of a person to the
establishment; or
(c) provide medical, surgical or other
treatment to, or arrange the provision of
any such treatment to, any patient in the
establishment
unless, before so doing, the practitioner has
notified the person or patient, in the prescribed
manner, that the practitioner has a pecuniary
interest in the establishment.
Penalty: Fine not exceeding 20 penalty units.
(2) The regulations may provide, for the purposes of
subsection (1), that the manner of notification is
to be any one or more of the following:
(a) a statement made by the practitioner;
(b) a written notification given by the
practitioner and, if so required by the
46
2005 Health Service Establishments No. s. 46
regulations, signed by the person to
whom it is given;
(c) a notice displayed prominently at the
establishment;
(d) a notice displayed prominently in any
surgery or other premises of the
practitioner.
(3) A person is not guilty of an offence under
subsection (1) if the person proves that he or
she
(a) contravened that subsection in the course
of providing emergency medical, surgical
or other treatment to a person; or
(b) was not, at the time the contravention
occurred, aware that he or she had a
pecuniary interest in the establishment
concerned.
(4) For the purposes of this section, a practitioner
has a pecuniary interest in an establishment only
if the practitioner has an interest in the
establishment of a kind which is prescribed by
the regulations as a pecuniary interest in the
establishment.
(5) The regulations may provide that an interest of a
relative or associate of a practitioner is taken to
be a pecuniary interest of the practitioner.
46. Power to enter and inspect establishments
(1) A person authorised by the Secretary to do so
may, at any time, enter and inspect
47
s. 47 No. Health Service Establishments 2005
(a) any licensed establishment; or
(b) any premises which are the subject of an
application for a licence.
(2) Every person so authorised is to be provided by
the Secretary with a certificate of authority, and
on applying for admission to any premises which
the person is empowered by this section to enter
must, if requested to do so, produce the
certificate to the person apparently in charge of
the premises.
Penalty: Fine not exceeding 10 penalty units.
47. Power to inspect registers and records
(1) In this section
"prescribed records", in respect of an
establishment, means the register of
patients or any other records required by
or under this Act to be kept at the
establishment.
(2) A person authorised by the Secretary under
section 46
(a) may inspect and take copies of, or
extracts from, any prescribed records of
an establishment; or
(b) may take and retain possession of any
prescribed records of an establishment
for such period as is necessary to enable
those records to be inspected and copies
of, or extracts from, those records to be
taken.
48
2005 Health Service Establishments No. s. 47
(3) Where a person retains possession of any
prescribed records of an establishment under
subsection (2)(b), the person must, during the
period for which he or she retains possession of
them
(a) permit a person who is entitled to inspect
any one or more of those records to
inspect at all reasonable times such of the
records as he or she is entitled to inspect;
and
(b) permit a person who is required by or
under this Act to make an entry in those
records to make the entry at any
reasonable time.
(4) Subsection (2)(b) does not authorise a person
who takes possession of any prescribed records
of an establishment to remove those records
from the establishment if those records
(a) relate to a person who is then a patient of
the establishment; and
(b) may be required to be referred to for the
purposes of providing the patient with
nursing care or medical, surgical or other
treatment.
(5) Subject to subsections (6) and (7), in any legal
proceedings (whether or not proceedings under
this Act) a copy of or extract from a prescribed
record is admissible in evidence as if it were the
original record or the relevant part of the original
record.
(6) A copy of or extract from a prescribed record is
not admissible in evidence under subsection (5)
49
s. 48 No. Health Service Establishments 2005
unless it is proved that the copy or extract is a
true copy of the record or of the relevant part of
the record.
(7) For the purposes of subsection (6), evidence that
a copy of or extract from a prescribed record is a
true copy of the record or of a part of the record
may be given by a person who has compared the
copy or extract with the record or the relevant
part of the record and may be given either orally
or by an affidavit sworn, or by a declaration
made, before a person authorised to take
affidavits or statutory declarations.
48. Obstruction of officers
A person must not wilfully hinder, obstruct or
delay any person in the performance of any
function under this Act.
Penalty: Fine not exceeding 20 penalty units.
49. False or misleading statements, &c.
A person must not, in any application under this
Act (including an application for review), or in
support of any such application, or for the
purposes of any inquiry under this Act
(a) make a statement knowing it to be false
or misleading; or
(b) omit any matter from a statement
knowing that without that matter the
statement is false or misleading.
Penalty: Fine not exceeding 20 penalty units.
50
2005 Health Service Establishments No. s. 50
50. Evidentiary certificates
A certificate which purports to be signed by the
Secretary and which states that, on a date
specified in the certificate
(a) a person so specified was or was not the
licensee of an establishment so specified;
or
(b) any premises so specified were or were
not licensed; or
(c) the licence for an establishment so
specified was cancelled; or
(d) any particulars so specified were the
particulars specified in the licence for an
establishment so specified; or
(e) the licence for an establishment so
specified was subject to any condition so
specified
is admissible in evidence in any legal
proceedings as evidence of the matters stated in
the certificate.
51. Service of notices by Secretary
(1) If, under this Act, a notice or other document is
required to be or may be given or served by the
Secretary, that notice may be given to or served
on
(a) a natural person
(i) by delivering it to the person
personally; or
51
s. 51 No. Health Service Establishments 2005
(ii) by leaving it at his or her place of
residence last known to the
Secretary with a person who
apparently resides there or, if the
person is a licensee, by leaving it
at the establishment to which the
licence relates with a person
apparently employed at the
establishment (if in either case
the person is apparently 16 years
of age or more); or
(iii) by sending it by post addressed to
the person at that place of
residence or that establishment;
or
(b) a corporation
(i) by delivering it to a person who is
apparently engaged in the control
or management of the
corporation; or
(ii) by leaving it at the registered
office of the corporation with a
person who is apparently
employed at that office or, if the
corporation is a licensee, by
leaving it at the establishment to
which the licence relates with a
person who is apparently
employed at the establishment (if
in either case the person is
apparently 16 years of age or
more); or
52
2005 Health Service Establishments No. s. 52
(iii) by sending it by post addressed to
the corporation at that registered
office or that establishment.
(2) A notice or other document that is sent by post in
accordance with subsection (1) must, in the
absence of evidence to the contrary, be taken to
have been given or served when it would have
been delivered in the ordinary course of post.
52. Offences by corporations
(1) If a corporation contravenes any provision of
this Act or the regulations, each person who is a
director of the corporation or who is concerned
in the management of the corporation is taken to
have contravened the same provision if the
person knowingly authorised or permitted the
contravention.
(2) A person may be proceeded against and
convicted under a provision under subsection (1)
whether or not the corporation has been
proceeded against or been convicted under that
provision.
(3) Nothing in this section affects any liability
imposed on a corporation for an offence
committed by the corporation against this Act or
the regulations.
53. Proceedings for offences
Proceedings for offences against this Act or the
regulations are to be dealt with summarily by a
magistrate sitting alone.
53
s. 54 No. Health Service Establishments 2005
54. Provision of information
A person who conducts an establishment must
provide the Secretary with any information that
in the opinion of the Secretary is required for the
purposes of this Act.
Penalty: Fine not exceeding 100 penalty units.
55. Confidentiality
(1) A person who is, or has been, employed in
performing functions related to the
administration of this Act must not disclose
confidential information acquired in the course,
or as a result, of performing those functions
except
(a) in the course of carrying out official
duties; or
(b) as authorised by the person to whom the
duty of confidentiality is owed; or
(c) as authorised by the regulations; or
(d) as required by a court or other lawfully
constituted authority; or
(e) as authorised by the Secretary after
consultation, where practicable, with the
person to whom the duty of
confidentiality is owed.
Penalty: Fine not exceeding 200 penalty units.
(2) No civil liability attaches to any person for a
disclosure of confidential information made as
authorised under subsection (1).
54
2005 Health Service Establishments No. s. 56
56. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may make provision for, or with
respect to, the following:
(a) fees payable to the Secretary for the
administration of this Act;
(b) the display of licences at establishments;
(c) the supply by the licensee of an
establishment to the Secretary of
information relating to
(i) any particulars that are required
to be provided when an
application for a licence is made;
and
(ii) the number of patients, and the
length of stay of patients, at the
establishment and the provision
of health services to those
patients; and
(iii) staffing at the establishment;
(d) the supply by the licensee of an
establishment to the Secretary of a copy
of the register of patients for the
establishment or a copy of a part of that
register;
(e) the safety, care or quality of life of
patients at establishments, including the
following matters:
55
s. 56 No. Health Service Establishments 2005
(i) design and construction of
premises;
(ii) facilities and equipment;
(iii) clinical standards, including
accreditation of practitioners to
provide services at the
establishment, delineation of
clinical privileges of practitioners
and quality assurance;
(iv) staffing, including qualifications
of staff members, number of staff
and duties;
(v) operational matters, including
administration and support
services;
(vi) clinical records, including access
by patients to, and confidentiality
of, those records;
(vii) management of private hospitals
and other establishments which
are funded by the State;
(f) the requirement that any information
submitted for the purposes of this Act is
to be supported by a statutory
declaration.
(3) The regulations may contain provisions of a
savings or transitional nature consequent on the
enactment of this Act.
(4) Any such provision may, if the regulations so
provide, take effect from the commencement
date or a later day.
56
2005 Health Service Establishments No. s. 57
(5) To the extent to which any such provision takes
effect from a date that is earlier than the date of
its publication in the Gazette, the provision does
not operate so as
(a) to affect, in a manner prejudicial to any
person (other than the State or a statutory
authority), the rights of that person
existing before the date of its publication;
or
(b) to impose liabilities on any person (other
than the State or a statutory authority) in
respect of anything done or omitted to be
done before the date of its publication.
(6) A regulation (including a regulation prescribing
a licensing standard) may create an offence
punishable by a penalty not exceeding 5 penalty
units.
57. Savings and transitional provisions
The savings and transitional provisions specified
in Schedule 2 have effect.
58. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Health and Human
Services; and
57
s. 59 No. Health Service Establishments 2005
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Health
and Human Services.
59. Consequential Amendments
The legislation specified in Schedule 3 is
amended as specified in that Schedule.
60. Act repealed
The Act specified in Schedule 4 is repealed.
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2005 Health Service Establishments No. sch. 1
SCHEDULE 1 MEMBERS AND PROCEDURE OF
HEALTH SERVICE ESTABLISHMENTS ADVISORY
COMMITTEE
Section 6(5)
1. Chairperson of Advisory Committee
(1) One of the members is to be appointed, in the
member's instrument of appointment or a
subsequent instrument executed by the
Secretary, as Chairperson of the Advisory
Committee.
(2) The Secretary may remove a member from the
office of Chairperson.
(3) A person who is a member and Chairperson is
taken to have vacated office as Chairperson if
the person
(a) is removed from that office by the
Secretary under this clause; or
(b) resigns that office by instrument in
writing addressed to the Secretary; or
(c) ceases to be a member.
2. Deputies for members
(1) The Secretary may, from time to time, appoint a
person to be the deputy of a member of the
Advisory Committee (including the
Chairperson).
59
sch. 1 No. Health Service Establishments 2005
(2) A person must not be appointed as a deputy of
any member unless the person has the same
qualifications as that member for appointment.
(3) A deputy may act in the office of the member for
whom he or she is the deputy during the illness
or absence of that member and, while so acting,
has all the functions of the member.
(4) The Secretary may remove at any time a deputy
from any office to which the deputy was
appointed under this clause.
(5) A deputy while acting in the office of a member
is entitled to be paid such remuneration
(including travelling and subsistence allowances)
as the Secretary may from time to time
determine in respect of the deputy.
(6) For the purposes of this clause, a vacancy in the
office of a member is taken to be an absence of
the member.
3. Term of office
A member is to, subject to this Schedule, hold
office for such term, not exceeding 3 years, as is
specified in the member's instrument of
appointment, but is eligible (if otherwise
qualified) for reappointment.
4. Remuneration
A member is entitled to be paid such
remuneration (including travelling and
subsistence allowances) as the Secretary may
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2005 Health Service Establishments No. sch. 1
from time to time determine in respect of the
member.
5. Vacation of office
(1) A member is taken to have vacated office if the
member
(a) dies; or
(b) absents himself or herself from 4
consecutive meetings of the Advisory
Committee of which reasonable notice
has been given to the member personally
or in the ordinary course of post, except
on leave granted by the Committee or
unless, before the expiration of a period
of 4 weeks after the last of those
meetings, the member is excused by the
Committee for being absent from those
meetings; or
(c) becomes bankrupt, applies to take the
benefit of any law for the relief of
bankrupt or insolvent debtors,
compounds with his or her creditors or
makes an assignment of his or her
remuneration for their benefit; or
(d) is being treated for a mental health
condition or under guardianship; or
(e) is convicted in Tasmania of an offence
which is punishable by imprisonment for
12 months or more or is convicted
elsewhere than in Tasmania of an offence
which if committed in Tasmania would
be an offence so punishable; or
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(f) resigns the office by instrument in
writing addressed to the Secretary; or
(g) is removed from office by the Secretary
under subclause (2).
(2) The Secretary may remove a member from
office at any time.
6. Filling of vacancy in office of member
If the office of any member becomes vacant, a
person must, subject to this Act, be appointed to
fill the vacancy.
7. Effect of certain other Acts
(1) The State Service Act 2000 does not apply to or
in respect of the appointment of a member and a
member is not, as a member, subject to that Act.
(2) If by or under any other Act provision is made
(a) requiring a person who is the holder of a
specified office to devote the whole of
his or her time to the duties of that office;
or
(b) prohibiting the person from engaging in
employment outside the duties of that
office
that provision does not operate to disqualify the
person from holding that office and also the
office of a member or from accepting and
retaining any remuneration payable to the person
under this Act as a member.
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2005 Health Service Establishments No. sch. 1
(3) The office of a member is not for the purposes of
any Act to be taken not to be an office or place
of profit under the Crown.
8. Liability of members, &c.
Any matter or thing done by the Advisory
Committee, or by any member or person acting
under the direction of the Committee, if the
matter or thing was done in good faith for the
purpose of executing this or any other Act, does
not subject a member or a person so acting
personally to any action, liability, claim or
demand.
9. General procedure
The procedure for the calling of meetings of the
Advisory Committee and for the conduct of
business at those meetings must, subject to this
Act, be as determined by the Committee.
10. Quorum
The quorum for a meeting of the Advisory
Committee is a majority of the members for the
time being appointed by the Secretary.
11. Presiding member
(1) The Chairperson or, in the absence of the
Chairperson, another member elected to chair
the meeting by the members present must
preside at a meeting of the Advisory Committee.
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(2) The person presiding at any meeting of the
Advisory Committee has a deliberative vote and,
in the event of an equality of votes, has a second
or casting vote.
12. Voting
A decision supported by a majority of the votes
cast at a meeting of the Advisory Committee at
which a quorum is present is taken to be the
decision of the Advisory Committee.
13. First meeting of Advisory Committee
The Secretary must call the first meeting of the
Advisory Committee in such manner as the
Secretary thinks fit.
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2005 Health Service Establishments No. sch. 2
SCHEDULE 2 SAVINGS AND TRANSITIONAL
PROVISIONS
Section 57
1. Existing licences
(1) A licence for an establishment that was in force
under the former Act immediately before the
commencement date is taken to have been issued
under this Act.
(2) The licence is taken to be subject to the
conditions specified in the licence immediately
before the commencement date.
(3) Nothing in subclause (2) affects the operation of
section 22.
2. Pending applications for licences
(1) An application for a licence for an establishment
made under the former Act that has not been
determined before the repeal of section 61 of the
former Act is taken to be an application for a
licence under section 9.
(2) If the Secretary has, under section 61 of the
former Act, approved (whether or not subject to
conditions) the plans and specifications relating
to any building to be constructed, altered or
extended that accompany an application for a
licence for an establishment, the Secretary
(a) may not, under section 10 of this Act,
impose a condition relating to the
construction or design of the building on
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an approval of the application in
principle; and
(b) may, without limiting the operation of
Division 2 of Part 4, refuse an
application if the building is not
constructed, altered or extended in
accordance with those plans and
specifications or if a condition to which
the approval of the plans and
specifications was subject has not been
complied with.
3. Pending applications to transfer licences
An application to transfer a licence for an
establishment made under section 61 of the
former Act that has not been determined before
the commencement date is taken to have been
made under this Act and is to be dealt with in
accordance with this Act.
4. Pending applications to alter establishments
An application to alter or extend an
establishment made under section 65 of the
former Act that has not been determined before
the commencement date is taken to have been
made under this Act and is to be dealt with in
accordance with this Act.
5. Notice
(1) A notice given to a licensee of an establishment
under the former Act and in force immediately
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2005 Health Service Establishments No. sch. 2
before the commencement date is taken to have
been given under section 21 and is to have effect
accordingly.
(2) If a notice was given to a licensee of an
establishment under the former Act less than 14
days before the commencement date
(a) the licensee may apply to the Secretary
for a review of the decision of the
Secretary to issue the notice; and
(b) the notice does not take effect until the
expiration of 14 days after the notice has
been given to the licensee.
6. Pending applications to amend licences
An application for amendment of a licence for an
establishment made under the former Act that
has not been determined before the
commencement date is taken to have been made
under this Act and is to be dealt with in
accordance with the provisions of this Act.
7. Requests for review
A request for review of a decision of the
Secretary relating to an establishment that was
made under the former Act and that has not been
determined by the Secretary immediately before
the commencement date is taken to be an
application for review made under this Act and
must be dealt with in accordance with the
provisions of this Act.
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8. Inquiry
Where, immediately before the commencement
date, an inquiry relating to the cancellation of a
licence for an establishment was being made (or
continued by the former Act), the inquiry may
continue as if it were made under section 30(2)
of this Act.
9. Cancellation
If, immediately before the commencement date,
the licensee or manager of a private medical
establishment, within the meaning of the former
Act, is disqualified from holding a licence or
being a manager under section 68 or 70A of that
Act, he or she is taken to be disqualified from
holding a licence under this Act.
10. Appeal
Any appeal against a decision of the Minister
under section 70I of the former Act that was
pending immediately before the commencement
date is taken to be pending under section 28 of
this Act and may be heard and determined
accordingly.
11. Authority to enter and inspect premises
Any person who, immediately before the
commencement date, was authorised under the
former Act to perform any functions specified in
that Act (in respect of any licensed establishment
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2005 Health Service Establishments No. sch. 2
or any premises of a proposed establishment) is
taken to be a person authorised under this Act.
12. References to former Act
A reference in any other Act, in any instrument
made under any Act or in any other instrument
of any kind to, or required (immediately before
the commencement date) to be construed as a
reference to, the Hospitals Act 1918, in so far as
the reference relates to establishments, is to be
read as a reference to this Act.
13. Saving for type B procedures
Where, during the period of 12 months
immediately before the commencement date,
type B procedures but no type A procedures
were undertaken in any premises, those premises
are not required to be licensed until 6 months
after that date.
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SCHEDULE 3 CONSEQUENTIAL AMENDMENTS
Section 59
Ambulance Service Act 1982
1. Section 3 is amended by omitting the definition
of "private medical establishment".
2. Section 36(2) is amended by omitting paragraph
(c) and substituting the following paragraph:
(c) a private hospital within the meaning of
the Health Service Establishments Act
2005; or
Approvals (Deadlines) Act 1993
1. Schedule 1 is amended by omitting
Hospitals Act 1918
Approval of alteration or 60 days from the day on
addition to private medical which plans, specifications
establishments and descriptions under
section 65 (1) of the
Hospitals Act 1918 are
received by the responsible
Minister.
Duties Act 2001
1. Section 227(1)(a) is amended by omitting
"Hospitals Act 1918" and substituting "Health
Service Establishments Act 2005".
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2005 Health Service Establishments No. sch. 3
Health Act 1997
1. Section 3 is amended by omitting "a private
medical establishment within the meaning of the
Hospitals Act 1918" from the definition of
"health service establishment" and substituting
"an establishment within the meaning of the
Health Service Establishments Act 2005".
Perinatal Registry Act 1994
1. Section 16 is amended as follows:
(a) by omitting "a private medical" from
paragraph (a) of the definition of
"attendant" in subsection (1) and
substituting "an";
(b) by omitting "a private medical" first
occurring from paragraph (c) of the
definition of "attendant" in subsection
(1) and substituting "an";
(c) by omitting "a private medical" from
paragraph (c)(iii)(A) of the definition of
"attendant" in subsection (1) and
substituting "an";
(d) by omitting "a private medical" from
paragraph (d) of the definition of
"attendant" in subsection (1) and
substituting "an";
(e) by inserting the following definition after
the definition of "attendant" in
subsection (1):
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sch. 3 No. Health Service Establishments 2005
"establishment" has the same
meaning as in the Health Service
Establishments Act 2005;
(f) by omitting the definition of "private
medical establishment" from subsection
(1);
(g) by omitting from subsection (3)(a) "a
private medical" and substituting "an".
Public Health Act 1997
1. Section 94(2) is amended by omitting paragraph
(c) and substituting the following paragraph:
(c) Health Service Establishments Act 2005;
Public Trustee Act 1930
1. Section 61(2) is amended by omitting "private
medical establishment within the meaning of the
Hospitals Act 1918" from the definition of
"charges for medical treatment" and substituting
"establishment within the meaning of the Health
Service Establishments Act 2005".
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2005 Health Service Establishments No. sch. 4
SCHEDULE 4 ACT REPEALED
Section 60
Hospitals Act 1918 (No. 70 of 1918)
Government Printer, Tasmania 73