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PARLIAMENT OF VICTORIA
Health Practitioner Acts (Further Amendments)
Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
PART 2--MEDICAL PRACTICE ACT 1994 3
3. Principal Act 3
4. Amendment to purposes of Principal Act 3
5. Definitions 3
6. General registration 4
7. Non-practising registration 4
8. Renewal of registration 4
9. New Division 1 substituted in Part 3 5
Division 1--Notifications and commencement of
investigations 5
22. Notifications about practitioners 5
23. When notifications are to be dealt with by the Health
Services Commissioner as complaints 6
24. Board may deal with a health records complaint as a
notification 8
25. Commencement of investigations by the Board 9
26. Request for conditions, limitations, restrictions or
suspension 11
10. Repeal of heading to Division 2 12
11. New sections 27 and 28 substituted 13
27. Suspension of registration at any time 13
28. Agreements to amend, vary or revoke 14
12. Consequential amendments to section 29 15
13. Heading to new Division 2A inserted 16
14. New sections 33 and 34 substituted 16
33. Referral to a formal hearing 16
34. Findings and determinations of a formal hearing into
the ability of practitioner or student to practise or have
patient contact 17
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Clause Page
15. New Division 3 inserted 18
Division 3--Specific provisions relating to the professional
performance of medical practitioners 19
38A. Performance assessment 19
38B. Report of assessment 19
38C. Refusal to attend or co-operate 20
38D. Outcome of preliminary investigation into a
practitioner's professional performance 20
38E. Establishment and notice of a performance review panel 21
38F. Constitution of a performance review panel 21
38G. Conduct of a performance review panel 22
38H. Outcome of a performance review panel's review 23
38I. Referral to a medical examination or a formal hearing 23
38J. Request for a formal hearing by a practitioner 24
16. New heading to Division 3A and section 38K inserted 24
Division 3A--Specific provisions relating to the professional
conduct of medical practitioners 25
38K. Outcome of a preliminary investigation 25
17. Establishment and notice of an informal hearing 25
18. Persons not entitled to be members of panel for informal hearing 26
19. New sections 45A and 45B inserted 26
45A. Finding and determinations of a formal hearing into
conduct 26
45B. Investigation may continue even if a person is no
longer registered 28
20. New heading to Division 3B and section 45C inserted 29
Division 3B--General provisions relating to formal and
informal hearings 29
45C. Application of Division 29
21. Formal hearings 29
22. Persons not entitled to be members of a panel for a formal
hearing 30
23. New sections 48A and 48B inserted 31
48A. Preliminary conferences 31
48B. Personal attendance may be required 32
24. Conduct of a formal hearing 32
25. Repeal of sections 50, 51 and 51A 32
26. Consideration of performance assessment reports 32
27. Notice of determination 32
28. Offence to disclose information identifying notifier 33
29. Review by VCAT 33
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Clause Page
30. New sections 63A to 63K inserted 34
63A. Prohibition against directing or inciting unprofessional
conduct 34
63B. Extended concept of employment 35
63C. Extended concept of carrying on business 35
63D. Convicted offenders may be prohibited from carrying
on business 36
63E. Offence of operating business while prohibited 37
63F. Effect of appeal against conviction 38
63G. Power to require information from convicted persons
and others 38
63H. Meaning of management role and substantial interest 41
63I. Register of prohibitions 41
63J. Evidentiary certificate 42
63K. Secretary to notify Board of prohibitions 42
31. Advertising guidelines 43
32. New section 64E inserted 43
64E. Extension of time 43
33. Powers, functions and consultation requirements 44
34. Prosecution of certain offences 44
35. New section 106 inserted 44
106. Further transitional provisions 45
PART 3--NURSES ACT 1993 46
36. Increased penalties for bodies corporate 46
37. New sections 63A to 63J inserted 46
63A. Prohibition against directing or inciting unprofessional
conduct 46
63B. Extended concept of arranging the supply of services 47
63C. Convicted offenders may be prohibited from carrying on
business 47
63D. Offence of carrying on business or practice while
prohibited 49
63E. Effect of appeal against conviction 50
63F. Power to require information from convicted persons
and others 50
63G. Meaning of management role and substantial interest 52
63H. Register of prohibitions 52
63I. Evidentiary certificate 53
63J. Secretary to notify Board of prohibitions 53
38. Advertising guidelines 54
39. New section 64E inserted 54
64E. Extension of time 55
40. Prosecution of certain offences 55
41. New section 102 substituted 55
102. Further transitional provisions 55
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Clause Page
PART 4--AMENDMENTS TO OTHER HEALTH
PRACTITIONER ACTS 56
42. Chinese Medicine Registration Act 2000--period of
registration 56
43. Chinese Medicine Registration Act 2000--advertising
guidelines 56
44. Chinese Medicine Registration Act 2000--transitional 57
112. Transitional--period of registration 57
45. Amendments to Dental Practice Act 1999 57
46. Amendments to Psychologists Registration Act 2000 58
47. Repeal of redundant Act 58
PART 5--HEALTH RECORDS ACT 2001 59
48. News media 59
49. Transitional provision 59
ENDNOTES 60
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PARLIAMENT OF VICTORIA
Initiated in Assembly 20 March 2002
A BILL
to amend the Medical Practice Act 1994, the Nurses Act 1993 and
other Acts relating to health practitioners and for other purposes.
Health Practitioner Acts (Further
Amendments) Act 2002
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is--
(a) to amend the Medical Practice Act 1994 to
5 make further provision for regulating
medical practitioners;
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 1--preliminary
s. 2
(b) to amend the Nurses Act 1993 to make
further provision for regulating nurses and
nurse's agents;
(c) to make miscellaneous amendments to the
5 Chinese Medicine Registration Act 2000,
the Dental Practice Act 1999, the
Psychologists Registration Act 2000 and
the Health Records Act 2001;
(d) to repeal the Medical Practitioners (Private
10 Hospitals) Act 1984.
2. Commencement
(1) This section and sections 1, 31, 38, 43, 45, 46, 47,
48 and 49 come into operation on the day after the
day on which this Act receives the Royal Assent.
15 (2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision of this Act does not come into
operation before 30 June 2004, it comes into
20 operation on that day.
__________________
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
part 2--Medical Practice Act 1994
s. 3
PART 2--MEDICAL PRACTICE ACT 1994
3. Principal Act
See:
In this Part, the Medical Practice Act 1994 is Act No.
called the Principal Act. 23/1994.
Reprint No. 3
5 4. Amendment to purposes of Principal Act as at
1 January
In section 1 of the Principal Act, for paragraph (a) 2002 and
amending Act
substitute-- No. 2/2001.
LawToday:
"(a) to protect the public by providing for the www.dms.
dpc.vic.
registration of medical practitioners and
gov.au
10 investigations into the professional conduct,
professional performance and ability to
practise of registered medical practitioners;
and
(ab) to protect the public by providing for the
15 registration of medical students and
investigations into the ability of registered
medical students to have direct patient
contact; and".
5. Definitions
20 (1) In section 3(1) of the Principal Act insert the
following definitions--
' "notifier" means a person who has made a
notification under section 22;
"professional performance" means the
25 knowledge, skill or care possessed and
applied by a registered medical practitioner
in the practice of medicine;
"unsatisfactory professional performance" of a
registered medical practitioner means
30 professional performance which is of a lesser
standard than that which the medical
practitioner's peers might reasonably expect
of a medical practitioner.'.
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s. 6
(2) In section 3(1) of the Principal Act, in the
definition of "unprofessional conduct"--
(a) in paragraph (i) for "this Act." substitute
"this Act; or";
5 (b) after paragraph (i) insert--
"(j) the breach of an agreement made under
section 27(5), 32 or 38D between a
medical practitioner and the Board; or
(k) unsatisfactory professional
10 performance.".
6. General registration
After section 7(2)(i) of the Principal Act insert--
"(j) that the applicant is disqualified from
applying for registration under this Act.".
15 7. Non-practising registration
In section 8(1) of the Principal Act--
(a) in paragraph (e) for "services." substitute
"services; or";
(b) after paragraph (e) insert--
20 "(f) the applicant has satisfied the Board
that the applicant will not practise
during the period of registration.".
8. Renewal of registration
For section 13(1A) of the Principal Act
25 substitute--
"(1A) The Board may require an applicant to--
(a) provide evidence that the applicant will
be covered by professional indemnity
insurance that meets the minimum
30 terms and conditions set out in
guidelines of the Board;
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s. 9
(b) provide information about--
(i) the main areas of medicine that
the applicant has been practising
in during the existing registration
5 period;
(ii) any continuing medical education
undertaken during the existing
registration period;
(iii) whether or not the applicant
10 intends to practise medicine
during the period for which the
registration is to be renewed;
(iv) if the applicant intends to practise
medicine during that period, the
15 main areas of medicine that the
applicant intends to practise in
during that period;
(c) provide a postal address that may be
published in the register where the
20 applicant can be contacted by mail.".
9. New Division 1 substituted in Part 3
For Division 1 of Part 3 of the Principal Act
substitute--
"Division 1--Notifications and commencement
25 of investigations
22. Notifications about practitioners
(1) A person may notify the Board about any
matter relating to a registered medical
practitioner if the person believes it indicates
30 that--
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s. 9
(a) the medical practitioner's ability to
practise medicine may be affected
because--
(i) of the physical or mental health of
5 the practitioner; or
(ii) the practitioner has an incapacity;
or
(iii) the practitioner is an alcoholic or
drug-dependent person; or
10 (b) the medical practitioner may have
engaged in unprofessional conduct; or
(c) the professional performance of the
medical practitioner may be
unsatisfactory.
15 (2) A person may notify the Board about a
person who was a registered medical
practitioner but has ceased to be a registered
medical practitioner if the notification relates
to the professional conduct of the other
20 person at a time when that other person was
a registered medical practitioner.
23. When notifications are to be dealt with by
the Health Services Commissioner as
complaints
25 (1) If the Board receives a notification about a
registered medical practitioner or a person
who was a registered medical practitioner
referred to in section 22(2), and the
notification is about a matter that--
30 (a) is set out in section 16 of the Health
Services (Conciliation and Review)
Act 1987; or
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Act No.
part 2--Medical Practice Act 1994
s. 9
(b) may be the subject of a complaint under
the Health Records Act 2001--
the Board must notify the Health Services
Commissioner and give a copy of the
5 notification to the Health Services
Commissioner as soon as possible after it has
received the notification.
(2) The Board, in consultation with the Health
Services Commissioner, must determine
10 whether or not the notification is to be dealt
with by the Commissioner or the Board.
(3) The Health Services (Conciliation and
Review) Act 1987 applies to a notification
made under this Part which is to be dealt
15 with by the Health Services Commissioner
under that Act as if the notification were a
complaint made under section 16 of that Act.
(4) The Health Records Act 2001 applies to a
notification made under this Part which is to
20 be dealt with by the Health Services
Commissioner under that Act as if the
notification were a complaint made under
section 45(1) of that Act.
(5) The Board must not deal further with a
25 notification made under this Part that is to be
dealt with by the Health Services
Commissioner unless the Health Services
Commissioner refers the matter back to the
Board under section 19(6) of the Health
30 Services (Conciliation and Review) Act
1987 or section 52 of the Health Records
Act 2001.
(6) If a notification has been referred to and is
being dealt with by the Health Services
35 Commissioner, the Commissioner must
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part 2--Medical Practice Act 1994
s. 9
advise the Board, when the matter is
completed, of the outcome of the matter.
(7) This section does not apply in relation to--
(a) a request made by a practitioner about
5 her or his ability to practise under
section 26(1)(a); or
(b) a report about a registered medical
practitioner under section 37.
24. Board may deal with a health records
10 complaint as a notification
(1) The Board--
(a) may accept a complaint, or part of a
complaint, relating to a registered
medical practitioner that the Health
15 Services Commissioner proposes to
refer to the Board under section 52 of
the Health Records Act 2001; and
(b) must treat a complaint, or part of a
complaint, referred to it under
20 section 52 of the Health Records Act
2001 as if it were a notification made
under this Act.
(2) If a complaint has been referred to the Board
by the Health Services Commissioner under
25 section 52 of the Health Records Act 2001,
the Board must advise the Health Services
Commissioner of the progress of the matter,
when required by the Health Services
Commissioner to do so, and, when the matter
30 is completed, of the outcome of the matter.
(3) Advice under sub-section (2) must include
any information that the Health Services
Commissioner specifies by written notice to
the Board.
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s. 9
25. Commencement of investigations by the
Board
(1) The Board must investigate a notification
made under section 22 if--
5 (a) the notification is not to be dealt with
by the Health Services Commissioner
under section 23; and
(b) the Board has not determined the
notification to be frivolous or
10 vexatious.
(2) In order to determine whether or not it is
necessary to conduct an informal or formal
hearing or whether or not a performance
review should be carried out, the Board must
15 conduct a preliminary investigation into the
notification.
(3) The Board, of its own motion, may
determine to conduct a preliminary
investigation into a matter referred to in sub-
20 section (4).
(4) If the Board believes that--
(a) the ability of a registered medical
practitioner to practise medicine may
be affected because--
25 (i) of the physical or mental health of
the practitioner; or
(ii) the practitioner has an incapacity;
or
(iii) the practitioner is an alcoholic or
30 drug-dependent person; or
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s. 9
(b) the ability of a medical student to have
direct patient contact as part of her or
his course of study may be affected
because of--
5 (i) the physical or mental health of
the student; or
(ii) the student has an incapacity; or
(iii) the student is an alcoholic or drug-
dependent person--
10 the Board may, in writing, appoint one of its
members to conduct a preliminary
investigation into the matter and delegate to
the appointed member its power to conduct a
preliminary investigation, other than its
15 power to make determinations upon a
preliminary investigation.
(5) If the Board believes that the professional
performance of a medical practitioner may
be unsatisfactory, the Board may, in writing,
20 appoint a registered medical practitioner to
conduct a preliminary investigation into the
matter and delegate to the appointed
practitioner its power to conduct a
preliminary investigation, other than its
25 power to make determinations upon a
preliminary investigation.
(6) If the Board believes that a medical
practitioner may have engaged in
unprofessional conduct, the Board may, in
30 writing, appoint one or more of the
following--
(a) an officer of the Board;
(b) a lawyer or investigator retained by the
Board;
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part 2--Medical Practice Act 1994
s. 9
(c) a sub-committee of the Board
consisting of not more than 3 members
of the Board--
to conduct a preliminary investigation into
5 the matter and delegate to the appointed
person or the members of the sub-committee
its power to conduct a preliminary
investigation, other than its power to make
determinations upon a preliminary
10 investigation.
(7) The Board, of its own motion, may
determine to conduct (with or without
conducting a preliminary investigation)--
(a) a formal hearing into the ability of a
15 registered medical practitioner to
practise medicine; or
(b) a formal hearing into the ability of a
registered medical student to have
direct patient contact as part of her or
20 his course of study; or
(c) a review of the professional
performance of a registered medical
practitioner; or
(d) an informal or formal hearing into the
25 professional conduct of a registered
medical practitioner.
26. Request for conditions, limitations,
restrictions or suspension
(1) A registered medical practitioner who
30 believes that--
(a) her or his ability to practise medicine is
affected because--
(i) of her or his physical or mental
health; or
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s. 10
(ii) she or he has an incapacity; or
(iii) she or he is an alcoholic or drug-
dependent person; or
(b) she or he has engaged in unprofessional
5 conduct; or
(c) her or his professional performance is
unsatisfactory--
may ask the Board to suspend her or his
registration or to impose a condition,
10 limitation or restriction on the registration.
(2) A medical student who believes that her or
his ability to have direct patient contact is
affected because--
(a) of her or his physical or mental health;
15 or
(b) she or he has an incapacity; or
(c) she or he is an alcoholic or drug-
dependent person--
may ask the Board to suspend her or his
20 registration or to impose a condition,
limitation or restriction on the registration.
(3) If the Board and the practitioner or student
agree upon the condition, limitation or
restriction to be imposed, the Board may
25 impose it.
(4) If the Board and the practitioner or student
do not agree upon the condition, limitation or
restriction to be imposed, the Board must
refer the matter to a preliminary
30 investigation under section 25.".
10. Repeal of heading to Division 2
The heading to Division 2 of Part 3 of the
Principal Act is repealed.
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s. 11
11. New sections 27 and 28 substituted
For section 28 of the Principal Act substitute--
"27. Suspension of registration at any time
(1) The Board may, at any time, suspend the
5 registration of a medical practitioner if the
Board is of the opinion that it is necessary to
do so because there is a serious risk that the
health and safety of the public will be
endangered because the Board believes
10 that--
(a) the medical practitioner's ability to
practise medicine is affected; or
(b) the medical practitioner's professional
performance is unsatisfactory; or
15 (c) the medical practitioner has engaged in
unprofessional conduct.
(2) The Board may, at any time, suspend the
registration of a medical student if the Board
is of the opinion that it is necessary to do so
20 because there is a serious risk that the health
and safety of the public will be endangered
because the Board believes that the medical
student's ability to have direct patient contact
is affected.
25 (3) If the Board has suspended the registration of
a medical practitioner or medical student, the
registration is suspended until any
investigation or any hearing into the matter is
completed and the Board is of the opinion
30 that there is no serious risk that the health
and safety of the public will be endangered
as a result of the medical practitioner
practising medicine or the medical student
having direct patient contact, unless the
35 suspension is otherwise revoked.
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part 2--Medical Practice Act 1994
s. 11
(4) If the Board has suspended the registration of
a medical practitioner or medical student, it
must--
(a) immediately notify the practitioner or
5 student of that suspension; and
(b) ensure that the matter is investigated or
heard as soon as possible after that
suspension.
(5) In place of suspending a medical practitioner
10 or a medical student under this section, the
Board may seek and accept an agreement in
writing--
(a) from the medical practitioner to alter
the way in which she or he practises
15 medicine; or
(b) from the medical student to alter the
nature or extent of her or his direct
patient contact.
28. Agreements to amend, vary or revoke
20 (1) The Board may, if the registered medical
practitioner or registered medical student so
agrees--
(a) amend, vary or revoke any condition,
limitation or restriction imposed on the
25 medical practitioner's or medical
student's registration by the Board
without conducting an informal or
formal hearing; or
(b) revoke a suspension of the medical
30 practitioner's or medical student's
registration and impose a condition,
limitation or restriction on the
registration; or
(c) revoke a suspension of the medical
35 practitioner's registration if the
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s. 12
practitioner satisfies the Board that her
or his ability to practise medicine is no
longer affected; or
(d) revoke a suspension of the medical
5 student's registration if the student
satisfies the Board that her or his ability
to have direct patient contact is no
longer affected.
(2) If the Board and the registered medical
10 practitioner or registered medical student fail
to agree under sub-section (1), the Board
may refer the matter to a formal hearing.".
12. Consequential amendments to section 29
(1) Insert the following heading to section 29 of the
15 Principal Act--
"29. Notice of preliminary investigation into
ability to practise or professional
performance".
(2) For section 29(1) of the Principal Act
20 substitute--
"(1) A person appointed to investigate--
(a) a registered medical practitioner's
ability to practise medicine or her or his
professional performance; or
25 (b) a medical student's ability to have direct
patient contact--
must give notice of the preliminary
investigation to the medical practitioner or
medical student.".
30 (3) In section 29(2)(b) of the Principal Act, after
"decision" insert "to conduct a preliminary
investigation".
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s. 13
(4) In section 29(2)(d) of the Principal Act, for "ask"
substitute "in the case of an investigation into the
ability of the medical practitioner to practise
medicine or the ability of the medical student to
5 have direct patient contact, ask".
(5) After section 29(2)(d) of the Principal Act
insert--
"(da) in the case of an investigation into the
professional performance of the medical
10 practitioner, if the person conducting the
preliminary investigation believes a
performance assessment of the medical
practitioner is necessary, ask the practitioner
to advise the Board as to whether or not she
15 or he will agree to undergo a performance
assessment within 28 days of receiving the
notice; and".
13. Heading to new Division 2A inserted
After section 29 of the Principal Act insert--
20 "Division 2A--Specific provisions relating to
the ability to practise or have direct patient
contact".
14. New sections 33 and 34 substituted
For sections 33, 34, 35 and 36 of the Principal Act
25 substitute--
"33. Referral to a formal hearing
If a registered medical practitioner or
medical student who is the subject of a
preliminary investigation under this Part
30 does not agree to undergo a medical
examination or does not abide by an
agreement to undergo a medical examination
the Board may refer the matter to a formal
hearing.
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s. 14
34. Findings and determinations of a formal
hearing into the ability of practitioner or
student to practise or have patient contact
(1) After considering all the submissions made
5 to a formal hearing into the ability of a
registered medical practitioner to practise
medicine or the ability of a registered
medical student to have direct patient
contact, the panel may find that--
10 (a) the ability of the practitioner to practise
medicine is affected because--
(i) of the physical or mental health of
the practitioner; or
(ii) the practitioner has an incapacity;
15 or
(iii) the practitioner is an alcoholic or
drug-dependent person; or
(b) the ability of the practitioner to practise
medicine is not affected; or
20 (c) the ability of the medical student to
have direct patient contact is affected
because--
(i) of the physical or mental health of
the student; or
25 (ii) the student has an incapacity; or
(iii) the student is an alcoholic or drug-
dependent person; or
(d) the ability of the student to have direct
patient contact is not affected.
30 (2) If the panel makes a finding under sub-
section (1)(a), the panel may make one or
more of the following determinations--
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(a) to impose any condition, limitation or
restriction on the registration of the
medical practitioner;
(b) to suspend the registration of the
5 medical practitioner for the period and
subject to the conditions, limitations
and restrictions, if any, specified in the
determination.
(3) If the panel makes a finding under sub-
10 section (1)(c), the panel may make one or
both of the following determinations--
(a) to impose any condition, limitation or
restriction on direct patient contact by
the student;
15 (b) to prohibit the student from having
direct patient contact for the period
specified.
(4) A determination of the Board under sub-
section (3) takes effect when notice of it is
20 served on the medical school where the
student is enrolled.
(5) A medical student is not permitted to have
direct patient contact contrary to the terms of
a determination in force under this section.".
25 15. New Division 3 inserted
For the heading to Division 3 of Part 3 of the
Principal Act substitute the following heading
and sections--
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"Division 3--Specific provisions relating to the
professional performance of medical
practitioners
38A. Performance assessment
5 (1) If a registered medical practitioner agrees to
undergo a performance assessment in
accordance with section 29(2)(da), the
practitioner's performance must be assessed
by one or two registered medical
10 practitioners (the number of which is to be
determined by the Board) who are not
members of the Board and who are agreed
upon by the Board and the practitioner
whose performance is to be assessed.
15 (2) If the Board and the practitioner whose
performance is to be assessed are unable to
agree upon any practitioner to conduct the
assessment, the Secretary must appoint one
or two registered medical practitioners (the
20 number of which is to be determined by the
Board) to perform the assessment.
(3) The Board must pay for the assessment.
38B. Report of assessment
(1) The assessing practitioner or practitioners
25 must give a report of the assessment to the
person appointed to investigate the matter
and, not more than 7 days later, to the
practitioner being investigated.
(2) The person appointed to investigate the
30 matter must discuss the report with the
practitioner being investigated and, in the
case of an adverse finding in the report, the
possible ways of dealing with that finding,
including whether the practitioner is
35 prepared to alter the way in which she or he
practises medicine.
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(3) After discussing the report with the
practitioner being investigated, the person
appointed to investigate the matter must
report to the Board and make
5 recommendations.
38C. Refusal to attend or co-operate
If a registered medical practitioner who is the
subject of a preliminary investigation into
her or his professional performance--
10 (a) does not agree to undergo a
performance assessment; or
(b) does not abide by an agreement to
undergo a performance assessment--
the Board may refer the matter to a
15 performance review or an informal or formal
hearing.
38D. Outcome of preliminary investigation into a
practitioner's professional performance
(1) If, after considering any report given under
20 section 38B, the Board decides that further
action should be taken, the Board may make
one or more of the following
determinations--
(a) that the medical practitioner's
25 performance be reviewed by a
performance review panel;
(b) that an informal or formal hearing be
held under Division 3A;
(c) that the medical practitioner undergo a
30 medical examination;
(d) that the medical practitioner undergo
counselling;
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(e) that the medical practitioner alter the
way in which she or he practises
medicine;
(f) that the medical practitioner undertake
5 and complete specified further
education within a specified period.
(2) Despite sub-section (1), the Board may, after
considering any report given under section
38B, enter into an agreement with the
10 practitioner to do any of the things referred
to in sub-section (1)(c), (d), (e) or (f).
38E. Establishment and notice of a performance
review panel
If the Board has determined that a medical
15 practitioner's professional performance
should be reviewed by a performance review
panel under section 25(7)(c) or 38D(1)(a),
the Board may--
(a) appoint a performance review panel to
20 review that medical practitioner's
professional performance; and
(b) fix a time and place for the review of
the performance to be conducted; and
(c) serve a notice on the practitioner by
25 registered post which complies with
section 29; and
(d) serve a notice on any notifier by
registered post under section 57(4)(a)
and (b).
30 38F. Constitution of a performance review panel
(1) A performance review panel appointed under
section 38E must consist of not less than
2 persons who must not be members of the
Board--
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(a) of whom 1 is to be a registered medical
practitioner with extensive experience
and qualifications in the area of
medicine of the practitioner whose
5 performance is under review; and
(b) of whom at least 1 is to be a person
who is not a medical practitioner.
(2) The following persons are not entitled to be
members of a performance review panel--
10 (a) a person who conducted a preliminary
investigation of the practitioner whose
performance is under review;
(b) a person who conducted a performance
assessment of the practitioner whose
15 performance is under review.
38G. Conduct of a performance review panel
(1) The procedure of a performance review
panel is in its discretion and the
proceedings--
20 (a) must be conducted with as little
formality and technicality as the
requirements of this Act and the proper
consideration of the matter permit; and
(b) must not be open to the public.
25 (2) A performance review panel must cease
reviewing a practitioner's professional
performance and refer the matter to the
Board if the panel is of the opinion that--
(a) the practitioner's performance raises a
30 significant issue of public health or
safety; or
(b) the practitioner may have engaged in
unprofessional conduct of a serious
nature.
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38H. Outcome of a performance review panel's
review
(1) Upon completing a review of the
professional performance of a registered
5 medical practitioner, the performance review
panel must give to the Board a report with its
recommendations.
(2) After considering the report given under sub-
section (1), the Board may make one or more
10 of the following determinations--
(a) that no further action be taken;
(b) that the matter be referred to a formal
hearing;
(c) that the medical practitioner undergo a
15 medical examination;
(d) that the medical practitioner undergo
counselling;
(e) that any condition, limitation or
restriction be imposed on the medical
20 practitioner's registration;
(f) that the medical practitioner alter the
way in which she or he practises
medicine;
(g) that the medical practitioner undertake
25 and complete specified further
education within a specified period.
38I. Referral to a medical examination or a
formal hearing
(1) The Board may, at any time during the
30 assessment of a medical practitioner's
professional performance by a registered
medical practitioner or the review of a
medical practitioner's professional
performance by a performance review panel,
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direct the practitioner to undergo a medical
examination, if the Board is of the opinion
that the ability of the practitioner to practise
medicine is affected.
5 (2) The Board must refer a matter arising out of
an investigation of a medical practitioner's
professional performance to a formal hearing
if the Board is of the opinion that--
(a) the matter raises a significant issue of
10 public health or safety; or
(b) the practitioner may have engaged in
unprofessional conduct of a serious
nature.
(3) If a matter is referred to a hearing under this
15 section, any assessment of the practitioner's
professional performance by a registered
medical practitioner or any review of the
practitioner's professional performance by a
performance review panel must be
20 abandoned.
38J. Request for a formal hearing by a
practitioner
If, before the end of an assessment of a
medical practitioner's professional
25 performance by a registered medical
practitioner or a review by a performance
review panel, the practitioner requests that a
formal hearing be held--
(a) the performance assessment or review
30 must be abandoned; and
(b) the Board must refer the matter to a
formal hearing.".
16. New heading to Division 3A and section 38K inserted
Before section 39 of the Principal Act insert the
35 following heading and section--
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"Division 3A--Specific provisions relating to
the professional conduct of medical
practitioners
38K. Outcome of a preliminary investigation
5 (1) Upon completing a preliminary investigation
into the professional conduct of a registered
medical practitioner, the person or sub-
committee appointed by the Board to
conduct the investigation may make one of
10 the following recommendations--
(a) that the investigation into the matter not
proceed further;
(b) that an informal or formal hearing be
held into the matter;
15 (c) that the medical practitioner undergo a
medical examination;
(d) that the medical practitioner's
performance be assessed by a medical
practitioner or reviewed by a
20 performance review panel.
(2) The Board must determine whether or not to
act on the recommendations of the person or
sub-committee appointed by the Board to
conduct the preliminary investigation.".
25 17. Establishment and notice of an informal hearing
(1) Insert the following heading to section 39 of the
Principal Act--
"39. Establishment and notice of an informal
hearing".
30 (2) In section 39 of the Principal Act--
(a) for "section 25 or 26" substitute "this Part";
(b) in paragraph (d), for "complainant"
substitute "notifier".
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18. Persons not entitled to be members of panel for
informal hearing
For section 40(3) of the Principal Act
substitute--
5 "(3) A person is not entitled to be a member of
the panel if the person--
(a) has undertaken a preliminary
investigation of the matter; or
(b) was appointed under section 38A to
10 assess the medical practitioner's
professional performance; or
(c) was a member of a performance review
panel appointed under section 38E to
review the medical practitioner's
15 performance; or
(d) was appointed to conduct a preliminary
conference under section 48A.".
19. New sections 45A and 45B inserted
After section 45 of the Principal Act insert--
20 "45A. Finding and determinations of a formal
hearing into conduct
(1) After considering all the submissions made
to a formal hearing into the professional
conduct of a registered medical practitioner
25 the panel may find that--
(a) the practitioner has, whether by act or
omission, engaged in unprofessional
conduct of a serious nature; or
(b) the practitioner has, whether by act or
30 omission, engaged in unprofessional
conduct which is not of a serious
nature; or
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(c) the practitioner has not engaged in
unprofessional conduct.
(2) If the panel finds that the practitioner has,
whether by act or omission, engaged in
5 unprofessional conduct of a serious nature,
the panel may make one or more of the
following determinations--
(a) require the practitioner to undergo
counselling;
10 (b) caution the practitioner;
(c) reprimand the practitioner;
(d) require the practitioner to undertake
and complete specified further
education within a specified period;
15 (e) impose any condition, limitation or
restriction on the registration of the
practitioner;
(f) impose a fine on the practitioner of not
more than $2000;
20 (g) suspend the registration of the
practitioner for the period specified in
the determination;
(h) cancel the registration of the
practitioner;
25 (i) disqualify the practitioner from
applying for registration under
section 5 within a specified period if
the practitioner's registration is
cancelled by the Board or by a medical
30 registration authority of another State
or Territory of the Commonwealth or of
New Zealand.
(3) If the panel finds under sub-section (1)(b)
that the practitioner has, whether by act or
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omission, engaged in unprofessional conduct
which is not of a serious nature, the panel
may make any determination which a panel
at an informal hearing is able to make upon
5 such a finding.
(4) The panel must not impose a fine if the
conduct which is the subject of the finding
has resulted in a fine being imposed by
another tribunal or court of law.
10 (5) If the panel has made a determination under
sub-section (2)(a) or (d) and the practitioner
has not complied with the determination
within the time specified in the
determination, the Board may suspend the
15 practitioner's registration until the
determination is complied with.
45B. Investigation may continue even if a person
is no longer registered
(1) The Board may--
20 (a) conduct an investigation into a
notification referred to in section 22(2)
and make a finding or determination
under this Part;
(b) conduct a hearing and make a finding
25 or determination under this Part in
relation to a notification referred to in
section 22(2)--
as if the person referred to in that notification
were a registered medical practitioner.
30 (2) The Board may--
(a) conduct or continue to conduct an
investigation into the professional
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conduct of a person who has ceased to
be a registered medical practitioner but
who was a registered medical
practitioner at the time a notification
5 was made or the Board had determined
to conduct an investigation into the
conduct and make a finding or
determination under this Part;
(b) conduct or continue to conduct a
10 hearing and make a finding or
determination under this Part in relation
to a person who has ceased to be a
registered medical practitioner but who
was a registered medical practitioner at
15 the time the Board had determined to
conduct the hearing--
as if the person were a registered medical
practitioner.".
20. New heading to Division 3B and section 45C inserted
20 Before section 46 of the Principal Act insert the
following heading and section--
"Division 3B--General provisions relating to
formal and informal hearings
45C. Application of Division
25 This Division applies to hearings in relation
to--
(a) the ability of registered medical
practitioners to practise medicine;
(b) the ability of medical students to have
30 direct patient contact; and
(c) the professional conduct of medical
practitioners.".
21. Formal hearings
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(1) Insert the following heading to section 46 of the
Principal Act--
"46. Establishment and notice of formal
hearing".
5 (2) In section 46 of the Principal Act--
(a) in paragraph (a), for "section 25 or 26 or has
referred a matter to a formal hearing under
section 33" substitute "this Part or has
referred a matter to a formal hearing under
10 this Part";
(b) in paragraph (c) for "section 44" substitute
"this Part";
(c) in paragraph (g), for "complainant"
substitute "notifier".
15 22. Persons not entitled to be members of a panel for a
formal hearing
For section 47(3) of the Principal Act
substitute--
"(3) The following persons are not entitled to be
20 members of a panel for a formal hearing--
(a) a person who has undertaken a
preliminary investigation of the matter
which is the subject of the hearing;
(b) a person who has been a member of a
25 panel which held an informal hearing
into the matter;
(c) a person appointed under section 38A
to assess the medical practitioner's
professional performance; or
30 (d) a person who was a member of a
performance review panel appointed
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under section 38E to review the
medical practitioner's performance; or
(e) a person appointed to conduct a
preliminary conference under section
5 48A.".
23. New sections 48A and 48B inserted
After section 48 of the Principal Act insert--
"48A. Preliminary conferences
(1) The Board may, at any time before a formal
10 hearing, require the medical practitioner or
medical student to attend one or more
preliminary conferences with a person
appointed by the Board.
(2) The Board must not appoint a person who is
15 a member of the Board or a hearing panel to
conduct a preliminary conference.
(3) The functions of a preliminary conference
are to--
(a) identify and clarify the nature of the
20 issues in dispute in the matter;
(b) identify the issues to be considered or
determined by the panel;
(c) allow guidance to be given concerning
the conduct of the matter.
25 (4) The Board must give notice of the
preliminary conference to the medical
practitioner or medical student.
(5) A preliminary conference must be held in
private unless the person presiding directs
30 otherwise.
(6) Subject to this Act, the procedure for a
preliminary conference is at the discretion of
the person presiding.
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25
48B. Personal attendance may be required
The Board may require a medical
practitioner or medical student to attend a
preliminary conference personally or by a
5 representative.".
24. Conduct of a formal hearing
In section 49(c) of the Principal Act, for
"complaint, the identity of the complainant is not
to be published or broadcast and the complainant"
10 substitute "notification made under section 22,
the identity of the notifier is not to be published or
broadcast and the notifier".
25. Repeal of sections 50, 51 and 51A
Sections 50, 51 and 51A of the Principal Act are
15 repealed.
26. Consideration of performance assessment reports
At the end of section 52 of the Principal Act
insert--
"(2) Despite sub-section (1)(d), a panel may,
20 when conducting a hearing into a
practitioner's ability to practise medicine or a
practitioner's professional conduct, consider
any report about the practitioner's
professional performance made for the
25 purposes of a performance assessment or
performance review under Division 3.".
27. Notice of determination
(1) Insert the following heading to section 57 of the
Principal Act--
30 "57. Notice of determination".
(2) In section 57(4) of the Principal Act--
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(a) for "complaint" (wherever occurring)
substitute "notification";
(b) for "complainant" (wherever occurring)
substitute "notifier";
5 (c) for "complainant's" substitute "notifier's".
28. Offence to disclose information identifying notifier
(1) Insert the following heading to section 58 of the
Principal Act--
"58. Offence to disclose information identifying
10 a notifier".
(2) In section 58 of the Principal Act, for
"complainant" (wherever occurring) substitute
"notifier".
29. Review by VCAT
15 In section 60(1) of the Principal Act--
(a) in paragraph (c), for "conduct" substitute
"conduct, professional performance";
(b) in paragraph (d), for "Part 3." substitute
"Part 3; or";
20 (c) after paragraph (d) insert--
"(e) a decision of the Board to accept under
section 27(5) an agreement by a
medical practitioner to alter the way in
which she or he practises medicine if
25 the Board has not instituted an
investigation into the practitioner's
professional conduct or ability to
practise within a reasonable time after
having accepted the agreement; or
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(f) a decision of the Board to accept under
section 27(5) an agreement by a
medical student to alter the nature or
extent of her or his direct patient
5 contact if the Board has not instituted
an investigation into the student's
ability to have direct patient contact
within a reasonable time after having
accepted the agreement.".
10 30. New sections 63A to 63K inserted
After section 63 of the Principal Act insert--
'63A. Prohibition against directing or inciting
unprofessional conduct
(1) A person ("the employer") who employs a
15 registered medical practitioner must not
direct or incite the practitioner to do any
thing, in the course of professional practice,
that would constitute unprofessional conduct.
Penalty: For a natural person, 200 penalty
20 units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
25 800 penalty units for a second or
subsequent offence.
(2) If a court convicts or finds a person guilty of
an offence against this section, the Clerk or
other proper officer of the court must notify
30 the Secretary in writing of the conviction or
finding.
(3) This section does not apply in respect of the
employment of a medical practitioner by a
community health centre, a denominational
35 hospital, a health service establishment, a
multi purpose service, a privately operated
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hospital or a public hospital within the
meaning of the Health Services Act 1988.
63B. Extended concept of employment
(1) If a registered medical practitioner engages
5 in the practice of medicine in the course of
the carrying on of a business, any person
who owns, manages, controls or operates
that business is for the purposes of this Part
to be treated as employing the practitioner
10 (in addition to any person who actually
employs the practitioner).
(2) If a registered medical practitioner is
employed by a body corporate, each of the
following persons is to be treated as
15 employing the practitioner (in addition to the
body corporate)--
(a) a person who has (within the meaning
of section 63H) a management role or a
substantial interest in the body
20 corporate;
(b) any other employee of the body
corporate in accordance with whose
directions the practitioner is required or
expected to act.
25 63C. Extended concept of carrying on business
(1) If a medical practitioner engaged in the
practice of medicine is provided, in the
course of the carrying on of a business, with
services that facilitate that practice and the
30 operator of the business is entitled, in
connection with the provision of those
services, to a share or interest in the profits
or income arising from the practice of
medicine by the practitioner--
35 (a) that business is to be treated as being a
business that provides the medical
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services that are provided by the
practitioner in the course of that
practice; and
(b) the practitioner is taken for the
5 purposes of this Part to be engaged in
the practice of medicine in the course
of the carrying on of that business.
(2) For the purposes of this Part, a person is to
be treated as carrying on a business if the
10 person--
(a) owns, manages, controls, conducts or
operates the business; or
(b) has (within the meaning of section
63H) a management role or substantial
15 interest in a body corporate that
operates the business or a substantial
interest in a trust under which the
business is operated.
63D. Convicted offenders may be prohibited from
20 carrying on business
(1) The Secretary may by notice in writing given
to a person who has been convicted of or
found guilty of an offence against section
63A prohibit the person from operating a
25 business that provides medical services.
(2) The prohibition may be expressed to be--
(a) for a fixed period (in which case the
prohibition remains in force only for
that fixed period); or
30 (b) for an unlimited period subject to an
entitlement to apply after a specified
time for the lifting of the prohibition (in
which case the prohibition remains in
force until it is lifted).
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(3) A prohibition may not be imposed under this
section unless the Secretary is of the opinion
that the person is not a fit and proper person
to operate a business that provides medical
5 services.
(4) The Secretary is entitled to presume, in the
absence of evidence to the contrary, that a
person who has been convicted of or found
guilty of an offence against section 63A on 2
10 or more occasions in any period of 10 years
is not a fit and proper person to operate such
a business.
(5) A prohibition under this section may be
limited in its operation in the following
15 ways--
(a) it may be limited to specified premises,
but only if the person concerned
operates a business that provides
medical services at those premises and
20 at other premises;
(b) it may be limited to premises within a
specified area;
(c) it may be limited in any other way
specified by the Secretary.
25 (6) If a prohibition under this section is subject
to an entitlement to apply after a specified
time for the prohibition to be lifted, the
application may be made to the Secretary
after that time.
30 (7) The Secretary may lift the prohibition or
confirm the prohibition and set a further
period after which an application for the
prohibition to be lifted can be made under
this section.
35 63E. Offence of operating business while
prohibited
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(1) A person must not in contravention of a
prohibition under this Part operate a business
that provides medical services.
Penalty: For a natural person, 200 penalty
5 units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
10 800 penalty units for a second or
subsequent offence.
(2) For a continuing offence against this section
the offender is liable to a maximum penalty
of--
15 (a) 50 penalty units for a natural person; or
(b) 100 penalty units for a body
corporate--
in respect of each day on which that offence
continues after conviction under sub-section
20 (1) or after a notice is given under section
63D, in addition to the penalty specified in
sub-section (1).
(3) If medical services are provided on premises
on which a business is carried on, it is to be
25 presumed for the purposes of this section,
unless the contrary is established, that the
business provided those medical services.
63F. Effect of appeal against conviction
A prohibition under this Part has no effect
30 while an appeal is pending against the
conviction or finding of guilt for the offence
on which the prohibition is based.
63G. Power to require information from
convicted persons and others
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(1) If a body corporate or the trustee of a trust is
convicted of or found guilty of an offence
against section 63A or 63E in connection
with the operation of a business operated by
5 the body corporate or under the trust the
Secretary may require certain persons to
provide specified information to the
Secretary, as provided by this section.
(2) The body corporate or trustee may be
10 required to provide information that the
Secretary may reasonably require to
ascertain the identity of each person who has
a management role or substantial interest in
the body corporate or a substantial interest in
15 the trust.
(3) A person whom the Secretary reasonably
believes has a management role or
substantial interest in the body corporate or a
substantial interest in the trust may be
20 required to provide information that the
Secretary may reasonably require to
ascertain--
(a) the identity of each body corporate in
which that person has a management
25 role or substantial interest; or
(b) the identity of the trustee and any
manager of a trust in which that person
has a substantial interest.
(4) A requirement to provide information is to
30 be imposed by direction in writing served on
the person, body corporate or trustee
concerned.
(5) The direction must specify a period of not
less than 7 days as the period within which
35 the required information must be provided.
39
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
part 2--Medical Practice Act 1994
(6) A person must not fail without reasonable
excuse to comply with a requirement under
this section.
Penalty: For a natural person, 200 penalty
5 units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
10 800 penalty units for a second or
subsequent offence.
(7) A person must not provide information that
the person believes is false or misleading in a
material particular.
15 Penalty: For a natural person, 200 penalty
units for a first offence or
400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
20 units for a first offence or
800 penalty units for a second or
subsequent offence.
(8) It is a reasonable excuse for a natural person
to refuse or fail to give information that the
25 person is required to do by or under this
section, if the giving of the information
would tend to incriminate the person.
(9) Despite sub-section (8), it is not a reasonable
excuse for a natural person to refuse or fail to
30 produce a document that the person is
required to produce by or under this section,
if the production of the document would tend
to incriminate the person.
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
part 2--Medical Practice Act 1994
s. 30
63H. Meaning of management role and
substantial interest
(1) For the purposes of sections 63A to 63G a
person is to be treated as having a
5 management role or substantial interest in a
body corporate if--
(a) the person is a director, secretary or
executive officer of the body corporate;
or
10 (b) in the case of a body corporate that is
incorporated as a corporation limited by
shares, the person is entitled to more
than 10% of the issued share capital of
the corporation (with the shares to
15 which a person is entitled including
shares in which the person or an
associate of the person has a relevant
interest within the meaning of the
Corporations Act).
20 (2) For the purposes of sections 63A to 63G a
person is to be treated as having a substantial
interest in a trust if the person (whether or
not as the trustee of another trust) is the
beneficiary in respect of more than 10% of
25 the value of the interests in the trust.
63I. Register of prohibitions
(1) The Secretary must cause to be kept a
register of all persons who are prohibited
under section 63D from operating a business
30 that provides medical services.
(2) The following particulars must be included
on the register against the name of the person
to whom they apply--
(a) any current prohibition under section
35 63D;
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Act No.
part 2--Medical Practice Act 1994
(b) the period for which the prohibition is
in force;
(c) if the prohibition is limited to specified
premises, the address or a description
5 of those premises;
(d) if the prohibition is limited to premises
in a specified area, a description of the
area;
(e) if the prohibition is limited in any other
10 way by the Secretary, a description of
that limitation.
(3) The register may be inspected at the head
office of the Secretary by any person during
ordinary office hours without charge.
15 (4) A person may obtain a copy of or an extract
from the register without charge.
63J. Evidentiary certificate
A certificate purporting to be signed by the
Secretary to the effect that the person
20 specified in the certificate is or was
prohibited under this Part from operating a
business that provides medical services
during a period specified in the certificate is
evidence, and, in the absence of evidence to
25 the contrary, is proof of the matters stated in
it.
63K. Secretary to notify Board of prohibitions
If the Secretary has given notice of a
prohibition under section 63D, the Secretary
30 must advise the following of that
prohibition--
(a) the Board; and
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Act No.
part 2--Medical Practice Act 1994
s. 31
32
(b) denominational hospitals, health service
establishments, privately operated
hospitals and public hospitals within
the meaning of the Health Services
5 Act 1988.'.
31. Advertising guidelines
In section 64B of the Principal Act--
(a) in sub-section (1)--
(i) for "Board" substitute "Minister";
10 (ii) for "acceptable to the Board" substitute
"formulated by the Board and approved
by the Minister";
(b) in sub-section (2), for "purposes of this
section" substitute "consideration of the
15 Minister";
(c) in sub-section (3)--
(i) for "recommendation to the Governor
in Council" substitute "approval of the
Minister";
20 (ii) for "recommendation is given to the
Governor in Council" substitute
"guidelines are forwarded to the
Minister for consideration";
(d) in sub-section (4), for "making a
25 recommendation to the Governor in Council"
substitute " formulating guidelines for the
approval of the Minister".
32. New section 64E inserted
(1) After section 64D of the Principal Act insert--
30 "64E. Extension of time
Despite section 26 of the Magistrates'
Court Act 1989, proceedings for an offence
under this Act may be commenced within
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
part 2--Medical Practice Act 1994
s. 34
3 years after the commission of the alleged
offence.".
(2) Section 64(4) of the Principal Act is repealed.
33. Powers, functions and consultation requirements
5 In section 66(1) of the Principal Act--
(a) in paragraph (c), after "conduct" insert
", professional performance";
(b) in paragraph (da), after "medicine" insert
"and about professional performance";
10 (c) after paragraph (e) insert--
"(ea) to report to the Minister any concern
that the Board has about the health
system in Victoria that arises from the
Board carrying out its functions under
15 this Act;".
34. Prosecution of certain offences
After section 92(2) of the Principal Act insert--
"(3) A person authorised by the Secretary under
the Health Act 1958 may, in addition to any
20 other person referred to in sub-section (1),
take proceedings for an offence against
section 63A, 63E or 63G.
(4) A person authorised by the Secretary under
the Health Act 1958, in relation to a
25 contravention of section 63A, 63E or 63G,
may carry out the functions and may exercise
the powers of a person authorised or
appointed by the Board for the purposes of
this Part.".
30 35. New section 106 inserted
44
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
part 2--Medical Practice Act 1994
s. 35
After section 105 of the Principal Act insert--
"106. Further transitional provisions
(1) Part 3 as amended by the Health
Practitioner Acts (Further Amendments)
5 Act 2002 applies to--
(a) the activities or conduct of a registered
medical practitioner (except conduct or
activities that may be the subject of an
investigation under Part 3 into the
10 professional performance of a
registered medical practitioner) and the
activities or conduct of a registered
medical student which occurred before
the commencement of section 9 of that
15 Act;
(b) a complaint that was made to the Board
before that date as if that complaint
were a notification made under Part 3
as amended by that Act;
20 (c) any investigation, examination or
hearing that was commenced before
that date.
(2) Section 64E does not apply to an offence
under this Act (except an offence under
25 section 64) that is alleged to have been
committed before the commencement of
section 32 of the Health Practitioner Acts
(Further Amendments) Act 2002.".
__________________
45
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 3--Nurses Act 1993
s. 36
PART 3--NURSES ACT 1993
36. Increased penalties for bodies corporate
See: For the penalties at the foot of section 63(1), (2),
Act No.
(3) and (4) of the Nurses Act 1993 substitute--
111/1993.
Reprint No. 3
5 "Penalty: For a natural person, 50 penalty units.
as at
1 January
For a body corporate, 100 penalty
2002 and
units.".
amending Act
No. 2/2001.
LawToday:
www.dms.
dpc.vic.
gov.au
37. New sections 63A to 63J inserted
After section 63 of the Nurses Act 1993 insert--
10 "63A. Prohibition against directing or inciting
unprofessional conduct
(1) A nurse's agent who arranges for the supply
of the services of a registered nurse must not
direct or incite the nurse to engage in
15 conduct, in the course of professional
practice, that would constitute unprofessional
conduct.
Penalty: For a natural person, 200 penalty
units for a first offence or
20 400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
25 subsequent offence.
(2) If a court convicts or finds a person guilty of
an offence against this section, the Clerk or
other proper officer of the court must notify
46
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 3--Nurses Act 1993
s. 37
the Secretary in writing of the conviction or
finding.
63B. Extended concept of arranging the supply
of services
5 (1) If the supply of the services of registered
nurses is arranged for in the carrying out of a
business or practice of a nurse's agent, any
person who owns, manages, controls or
operates that business is for the purposes of
10 this Part to be treated as arranging for the
supply of those services (in addition to any
person who actually arranges for the supply
of those services).
(2) If a supply of the services of a registered
15 nurse is arranged for in the carrying out of a
business or practice of a nurse's agent by a
body corporate, each of the following
persons is for the purposes of this Part also
to be treated as being the nurse's agent who
20 arranges for the supply of the services of a
registered nurse (in addition to the body
corporate)--
(a) a person who has (within the meaning
of section 63G) a management role or a
25 substantial interest in the body
corporate;
(b) any other employee of the body
corporate in accordance with whose
directions the registered nurse is
30 required or expected to act.
63C. Convicted offenders may be prohibited from
carrying on business
(1) The Secretary may by notice in writing given
to a person who has been convicted of or
35 found guilty of an offence against section
47
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 3--Nurses Act 1993
s. 37
63A prohibit the person from carrying on the
business or practice of a nurse's agent.
(2) The prohibition may be expressed to be--
(a) for a fixed period (in which case the
5 prohibition remains in force only for
that fixed period); or
(b) for an unlimited period subject to an
entitlement to apply after a specified
time for the lifting of the prohibition (in
10 which case the prohibition remains in
force until it is lifted).
(3) A prohibition may not be imposed under this
section unless the Secretary is of the opinion
that the person is not a fit and proper person
15 to carry on the business or practice of a
nurse's agent.
(4) The Secretary is entitled to presume, in the
absence of evidence to the contrary, that a
person who has been convicted of or found
20 guilty of an offence against section 63A on 2
or more occasions in any period of 10 years
is not a fit and proper person to carry on the
business or practice of a nurse's agent.
(5) A prohibition under this section may be
25 limited in its operation in any of the
following ways--
(a) it may be limited to specified premises,
but only where the person concerned is
carrying on the business or practice of a
30 nurse's agent at those premises and at
other premises;
(b) it may be limited to premises within a
specified area;
48
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 3--Nurses Act 1993
s. 37
(c) it may be limited in any other way
specified by the Secretary.
(6) If a prohibition under this section is subject
to an entitlement to apply after a specified
5 time for the prohibition to be lifted, the
application may be made to the Secretary
after that time.
(7) The Secretary may lift the prohibition or
confirm the prohibition and set a further
10 period after which an application for the
prohibition to be lifted can be made under
this section.
63D. Offence of carrying on business or practice
while prohibited
15 (1) A person must not in contravention of a
prohibition under this Part carry on the
business or practice of a nurse's agent.
Penalty: For a natural person, 200 penalty
units for a first offence or
20 400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
25 subsequent offence.
(2) For a continuing offence against this section
the offender is liable to a maximum penalty
of--
(a) 50 penalty units for a natural person; or
30 (b) 100 penalty units for a body
corporate--
in respect of each day on which that offence
continues after conviction under sub-section
(1) or a notice is given under section 63C, in
49
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 3--Nurses Act 1993
s. 37
addition to the penalty specified in sub-
section (1).
(3) If the services of a nurse's agent are provided
on premises on which a business or practice
5 is carried on, it is to be presumed for the
purposes of this section, unless the contrary
is established, that the business or practice
carried on or provided is the business or
practice of a nurse's agent.
10 63E. Effect of appeal against conviction
A prohibition under this Part has no effect
while an appeal is pending against the
conviction or finding of guilt for the offence
on which the prohibition is based.
15 63F. Power to require information from
convicted persons and others
(1) If a body corporate is convicted of or made
the subject of a finding of guilt for an
offence against section 63A or 63D in
20 connection with the carrying on of the
business or practice by the body corporate
the Secretary may require certain persons to
provide specified information to the
Secretary, as provided by this section.
25 (2) The body corporate may be required to
provide information that the Secretary may
reasonably require to ascertain the identity of
each person who has a management role or
substantial interest in the body corporate.
30 (3) A person whom the Secretary reasonably
believes has a management role or
substantial interest in the body corporate
may be required to provide information that
the Secretary may reasonably require to
35 ascertain the identity of each body corporate
50
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 3--Nurses Act 1993
s. 37
in which that person has a management role
or substantial interest.
(4) A requirement to provide information is to
be imposed by direction in writing served on
5 the person or body corporate concerned.
(5) The direction must specify a period of not
less than 7 days as the period within which
the required information must be provided.
(6) A person must not fail without reasonable
10 excuse to comply with a requirement under
this section.
Penalty: For a natural person, 200 penalty
units for a first offence or
400 penalty units for a second or
15 subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
subsequent offence.
20 (7) A person must not provide information that
the person believes is false or misleading in a
material particular.
Penalty: For a natural person, 200 penalty
units for a first offence or
25 400 penalty units for a second or
subsequent offence.
For a body corporate, 400 penalty
units for a first offence or
800 penalty units for a second or
30 subsequent offence.
(8) It is a reasonable excuse for a natural person
to refuse or fail to give information that the
person is required to do by or under this
section, if the giving of the information
35 would tend to incriminate the person.
51
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 3--Nurses Act 1993
s. 37
(9) Despite sub-section (8), it is not a reasonable
excuse for a natural person to refuse or fail to
produce a document that the person is
required to produce by or under this section,
5 if the production of the document would tend
to incriminate the person.
63G. Meaning of management role and
substantial interest
For the purposes of sections 63A to 63F a
10 person is to be treated as having a
management role or substantial interest in a
body corporate if--
(a) the person is a director, secretary or
executive officer of the body corporate;
15 or
(b) in the case of a body corporate that is
incorporated as a corporation limited by
shares, the person is entitled to more
than 10% of the issued share capital of
20 the corporation (with the shares to
which a person is entitled including
shares in which the person or an
associate of the person has a relevant
interest within the meaning of the
25 Corporations Act).
63H. Register of prohibitions
(1) The Secretary must cause to be kept a
register of all persons who are prohibited
under section 63C from carrying on the
30 business or practice of a nurse's agent.
(2) The following particulars must be included
on the register against the name of the person
to whom they apply--
52
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 3--Nurses Act 1993
s. 37
(a) any current prohibition under section
63C;
(b) the period for which the prohibition is
in force;
5 (c) if the prohibition is limited to specified
premises, the address or a description
of those premises;
(d) if the prohibition is limited to premises
in a specified area, a description of the
10 area;.
(e) if the prohibition is limited in any other
way by the Secretary, a description of
that limitation.
(3) The register may be inspected at the head
15 office of the Secretary by any person during
ordinary office hours without charge.
(4) A person may obtain a copy of or an extract
from the register without charge.
63I. Evidentiary certificate
20 A certificate purporting to be signed by the
Secretary to the effect that the person
specified in the certificate is or was
prohibited under this Part from carrying on
the business or practice of a nurse's agent
25 during a period specified in the certificate is
evidence, and, in the absence of evidence to
the contrary, is proof of the matters stated in
it.
63J. Secretary to notify Board of prohibitions
30 If the Secretary has given notice of a
prohibition under section 63C, the Secretary
must advise the following of that
prohibition--
(a) the Board; and
53
541257B.I1-21/3/2002 BILL LA CIRCULATION 22-10-2004
Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 3--Nurses Act 1993
s. 38
(b) denominational hospitals, health service
establishments, private hospitals,
privately operated hospitals and public
hospitals within the meaning of the
5 Health Services Act 1988.".
38. Advertising guidelines
In section 64B of the Nurses Act 1993--
(a) in sub-section (1)--
(i) for "Board" substitute "Minister";
10 (ii) for "acceptable to the Board" substitute
"formulated by the Board and approved
by the Minister";
(b) in sub-section (2), for "purposes of this
section" substitute "consideration of the
15 Minister";
(c) in sub-section (3)--
(i) for "recommendation to the Governor
in Council" substitute "approval of the
Minister";
20 (ii) for "recommendation is given to the
Governor in Council" substitute
"guidelines are forwarded to the
Minister for consideration";
(d) in sub-section (4), for "making a
25 recommendation to the Governor in Council"
substitute "formulating guidelines for the
approval of the Minister".
39. New section 64E inserted
(1) After section 64D of the Nurses Act 1993
30 insert--
54
541257B.I1-21/3/2002 BILL LA CIRCULATION 22-10-2004
Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 3--Nurses Act 1993
s. 40
"64E. Extension of time
Despite section 26 of the Magistrates'
Court Act 1989, proceedings for an offence
under this Act may be commenced within
5 3 years after the commission of the alleged
offence.".
(2) Section 64A(4) of the Nurses Act 1993 is
repealed.
40. Prosecution of certain offences
10 After section 87(2) of the Nurses Act 1993
insert--
"(3) A person authorised by the Secretary under
the Health Act 1958 may, in addition to any
other person referred to in sub-section (1),
15 take proceedings for an offence against
section 63A, 63D or 63F.
(4) A person authorised by the Secretary under
the Health Act 1958, in relation to a
contravention of section 63A, 63D or 63F,
20 may carry out the functions and may exercise
the powers of a person authorised or
appointed by the Board for the purposes of
this Part.".
41. New section 102 substituted
25 For section 102 of the Nurses Act 1993
substitute--
"102. Further transitional provisions
Section 64E does not apply to an offence
under this Act (except an offence under
30 section 64A) that is alleged to have been
committed before the commencement of
section 39 of the Health Practitioner Acts
(Further Amendments) Act 2002.".
__________________
55
541257B.I1-21/3/2002 BILL LA CIRCULATION 22-10-2004
Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 4--Amendments to other health practitioner Acts
s. 42
PART 4--AMENDMENTS TO OTHER HEALTH
PRACTITIONER ACTS
42. Chinese Medicine Registration Act 2000--period of
registration
5 See: In section 11 of the Chinese Medicine
Act No.
Registration Act 2000 for "31 December"
18/2000
and substitute "30 June".
amending Act
Nos 94/2000,
2/2001 and
33/2001.
LawToday:
www.dms.
dpc.vic.
gov.au
43. Chinese Medicine Registration Act 2000--advertising
guidelines
10 In section 64 of the Chinese Medicine
Registration Act 2000--
(a) in sub-section (1)--
(i) for "Board" substitute "Minister";
(ii) omit "acceptable to the Board";
15 (b) in sub-section (2), for "purposes of this
section" substitute "consideration of the
Minister";
(c) in sub-section (3)--
(i) for "recommendation to the Governor
20 in Council" substitute "approval of the
Minister";
(ii) for "recommendation is given to the
Governor in Council" substitute
"guidelines are forwarded to the
25 Minister for consideration";
56
541257B.I1-21/3/2002 BILL LA CIRCULATION 22-10-2004
Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 4--Amendments to other health practitioner Acts
s. 44
(d) in sub-section (4), for "making a
recommendation to the Governor in Council"
substitute "formulating guidelines for the
approval of the Minister".
5 44. Chinese Medicine Registration Act 2000--transitional
After section 111 of the Chinese Medicine
Registration Act 2000 insert--
"112. Transitional--period of registration
Despite section 11, if a person was registered
10 under section 6 immediately before the
commencement of section 42 of the Health
Practitioner Acts (Further Amendments)
Act 2002, the registration continues in force
until 30 June in the year next following the
15 registration and the Board may charge the
person a fee for that period of registration
not exceeding half the annual registration fee
fixed by the Board for the purposes of
section 6.".
20 45. Amendments to Dental Practice Act 1999
In section 66 of the Dental Practice Act 1999--
See:
(a) in sub-section (1)-- Act No.
26/1999.
(i) for "Board" substitute "Minister"; Reprint No. 1
as at 1 July
(ii) omit "acceptable to the Board"; 2000 and
amending Act
25 (b) in sub-section (2), for "purposes of this Nos 18/2000
and 2/2001.
section" substitute "consideration of the
LawToday:
Minister"; www.dms.
dpc.vic.
(c) in sub-section (3)-- gov.au
(i) for "recommendation to the Governor
30 in Council" substitute "approval of the
Minister";
57
541257B.I1-21/3/2002 BILL LA CIRCULATION 22-10-2004
Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Part 4--Amendments to other health practitioner Acts
s. 46
(iii) for "recommendation is given to the
Governor in Council" substitute
"guidelines are forwarded to the
Minister for consideration";
5 (d) in sub-section (4), for "making a
recommendation to the Governor in Council"
substitute "in formulating guidelines for the
approval of the Minister".
46. Amendments to Psychologists Registration Act 2000
10 See: In section 64 of the Psychologists Registration
Act No.
Act 2000--
41/2000
amending Act
(a) in sub-section (1)--
Nos 74/2000
and 2/2001.
(i) for "Board" substitute "Minister";
LawToday:
www.dms.
dpc.vic. (ii) omit "acceptable to the Board";
gov.au
15 (b) in sub-section (2), for "purposes of this
section" substitute "consideration of the
Minister";
(c) in sub-section (3)--
(i) for "recommendation to the Governor
20 in Council" substitute "approval of the
Minister";
(ii) for "recommendation is given to the
Governor in Council" substitute
"guidelines are forwarded to the
25 Minister for consideration";
(d) in sub-section (4), for "making a
recommendation to the Governor in Council"
substitute "formulating guidelines for the
approval of the Minister".
30 47. Repeal of redundant Act
See: The Medical Practitioners (Private Hospitals)
Act No.
Act 1984 is repealed.
10032.
__________________
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Health Practitioner Acts (Further Amendments) Act 2002
Act No.
PART 5--HEALTH RECORDS ACT 2001
s. 48
PART 5--HEALTH RECORDS ACT 2001
See:
48. News media Act No.
2/2001
In section 17(1) of the Health Records Act and
2001-- amending
Act No.
5 (a) for "or HPP 2" substitute ", HPP 2 or 27/2001.
LawToday:
HPP 9"; www.dms.
dpc.vic.
(b) for "or disclosure" substitute ", disclosure or gov.au
transfer".
49. Transitional provision
10 In section 20 of the Health Records Act 2001,
after sub-section (5) insert--
"(6) To avoid doubt it is declared that, despite the
commencement of section 19 and Schedule 1
on 1 March 2002, an act or practice that
15 occurs at any time before the commencement
of Part 6 does not constitute an interference
with the privacy of an individual--
(a) about which a complaint may be made
under section 45(1); or
20 (b) that may be dealt with in any way by
the Health Services Commissioner
under this Act, including by the service
of a compliance notice under section
66(1)--
25 whether before or after the commencement
of that Part.".
59
541257B.I1-21/3/2002 BILL LA CIRCULATION 22-10-2004
Health Practitioner Acts (Further Amendments) Act 2002
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
60
541257B.I1-21/3/2002 BILL LA CIRCULATION 22-10-2004
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