2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Health)

Part 2.1 Cemeteries and Crematoria Regulation 2003 19

Part 2.2 Children and Young People Act 1999 19

Part 2.3 Crimes Act 1900 20

Part 2.4 Drugs of Dependence Act 1989 20

Part 2.5 Firearms Act 1996 23

Part 2.6 Food Act 2001 23

Part 2.7 Gene Technology Act 2003 24

Part 2.8 Health Act 1993 25

Part 2.9 Health Records (Privacy and Access) Act 1997 26

Part 2.10 Juries Act 1967 27

Part 2.11 Legislation Act 2001 27

Part 2.12 Optometrists Act 1956 28

Part 2.13 Physiotherapists Act 1977 29

Part 2.14 Prostitution Act 1992 30

Part 2.15 Public Health Act 1997 30

Part 2.16 Public Health Regulation 2000 31

2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Health)

An Act to amend the law relating to health, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Health Legislation Amendment Act 2006 (No 2).

(1) This Act, other than schedule 1, commences on the 28th day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

(2) Schedule 1 commences on the day after this Act’s notification day.

(3) However, a date or time provided by a special commencement provision for an amendment made by this Act has effect, or is taken to have had effect, as the commencement date or time of the amendment.

(4) In this section:

special commencement provision, for an amendment made by this Act, is a provision, in brackets beginning with the text ‘commencement:’, at the end of the amendment.

An amendment followed by ‘(commencement: 12 November 2006)’ means that the amendment is taken to have commenced on 12 November 2006.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

This Act amends the legislation mentioned in schedules 1 and 2.

The following Acts are repealed:

(a) Sexually Transmitted Diseases Act 1956 A1956-9;

(b) Tuberculosis Act 1950 A1950-6.

(1) A health professional is someone who provides a health service while working in a health profession.

(2) To remove any doubt, each of the following is a health professional:

(a) a dental hygienist;

(b) a dental prosthetist;

(c) a dental technician;

(d) a dental therapist;

(e) a dentist;

(f) an enrolled nurse;

(g) a medical practitioner;

(h) a midwife;

(i) a nurse;

(j) an optometrist;

(k) a pharmacist;

(l) a physiotherapist;

(m) a podiatrist;

(n) a psychologist;

(o) a veterinary surgeon.

(2) To remove any doubt, a person is also a registered health professional if the person is registered in a specialist area of a health profession.

an enrolled nurse enrolled in the specialist area of enrolled nurse (medications)

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(c) requirements for admission to a specialist area (if any) within the profession; and

In this part:

non-presidential member, of a health professions tribunal panel, means a member of the panel other than a presidential member.

presidential member, of the health professions tribunal, means—

(a) the president of the tribunal; or

(b) a deputy president of the tribunal.

(c) non-presidential members chosen by a presidential member under section 42 (1) (b) to be on a health profession tribunal panel.

(1) A health professions tribunal panel for an application relating to a health professional in a health profession is formed by—

(a) a presidential member of the health professions tribunal; or

Note The president of the tribunal may give directions about the presidential member who is to be the presidential member of a particular health professions tribunal panel (see s 41C (2)).

(b) a presidential member of the health professions tribunal and 2 non-presidential members chosen by the presidential member from the health professions representative list for the health profession.

(2) If a panel is formed under subsection (1) (b) for an application relating to a health professional in a health profession, at least 1 member chosen from the health professions representative list must be in the same profession as the health professional.

(1) The president of the health professions tribunal must keep a list (the health professions representative list) of at least 10 people for each health profession nominated by the Minister.

(2) However, the Minister must not nominate a person under subsection (1) unless satisfied that the person has the experience or expertise to assist the health professions tribunal.

(1) This section applies if—

(a) a health professions tribunal panel is formed under section 42 for an application (the first application) relating to a health professional (the subject health professional) in a health profession; and

(b) the health professions tribunal receives another application (a later application) relating to a health professional regulated by the same health profession board as the subject health professional.

(2) If the requirements of section 42 (2) are met, the health professions tribunal panel for the first application may, but need not, deal with the later application.

Note The health professions tribunal president is responsible for ensuring the orderly and prompt discharge of the tribunal’s business (see s 41C (1)).

(1) This section applies if a health professions tribunal panel formed under section 42 (1) (b) for an application in relation to a health professional in a health profession—

(a) starts to deal with the application; and

(b) the presidential member stops being available for the panel for any reason.

(2) If the parties to the application agree and the president of the tribunal does not give a direction under section 41C (Role of president of tribunal) to form a new panel to deal with the application, the application may be dealt with by the remaining members of the panel.

(1) This section applies if a health professions tribunal panel formed under section 42 (1) (b) for an application in relation to a health professional in a health profession—

(a) starts to deal with the application; and

(b) a non-presidential member stops being available for the panel for any reason.

(2) The presidential member and the remaining member (if any) may continue to deal with the application if the presidential member considers it appropriate to do so.

Note The presidential member decides questions of law arising in a proceeding (see s 63 (2)). If the presidential member and the remaining member of the health professions tribunal panel cannot agree about a question other than a question of law, the presidential member’s decision is the decision of the tribunal (see s 63 (4)).

(ca) require a party to undergo stated medical, psychiatric or psychological assessment;

(1) If a person who is given a notice under section 59 (1) does not appear before the tribunal as required, the presidential member may issue a warrant to detain the person.

(2) A warrant authorises—

(a) the detention of the person named in the warrant; and

(b) the bringing of the person before the tribunal; and

(c) the detention of the person at the place stated in the warrant until the person is released by order of the tribunal.

(3) A warrant may be executed by a police officer.

(4) A police officer executing a warrant—

(a) may, with necessary and reasonable assistance and force, enter any premises to detain the person named in the warrant; and

(b) must use the minimum amount of force necessary to detain the person and remove the person to the place stated in the warrant; and

(c) must, before removing the person, explain to the person the purpose of the warrant; and

(d) must bring the person before the tribunal as soon as possible.

3 months

6 months

(1) This section applies if the tribunal is deciding an application for review of a decision of a health profession board or a professional standards panel (the original decision-maker).

(2) The tribunal may exercise the functions given by this Act to the original decision-maker in relation to the application as if the decision had not been made.

(m) require the person to pay the reasonable costs of hearing the application.

(d) the provision, by mail order, or over the internet or by other electronic means, of manufactured aids to rehabilitation or surgical prosthetics and orthotics; or

A registered health professional commits an offence if—

(a) the health professional represents that someone employed or engaged by the health professional is a registered health professional; and

(b) the representation is false; and

(c) the representation was made in the course of practising as a health professional.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

A person commits an offence if—

(a) the person—

(i) employs a registered health professional; or

(ii) provides premises where the registered health professional practises in the profession; and

(b) the person directs the health professional to engage in conduct that, if engaged in, would contravene a standard of practice that applies to the health professional.

Maximum penalty: 50 penalty units.

(1) A person commits an offence if—

(a) the person supplies prescription spectacles or prescription contact lenses to someone else; and

(b) the person is not a registered optometrist.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) In this section:

prescription spectacles or prescription contact lenses means spectacles (including sunglasses) or contact lenses prescribed in writing by a registered medical practitioner or registered optometrist.

supply includes sell by mail order or over the internet.

(1) A registered pharmacist must not use or supply, or allow the use or supply of, drugs or medicine—

(a) for drugs or medicine that are therapeutic goods—that do not conform with a standard applicable to the goods under the Therapeutic Goods Act 1989 (Cwlth); or

(b) for drugs or medicine (other than therapeutic goods) for which a standard is stated in the Australian Pharmaceutical Formulary—that are not of the standard required for the drugs or medicine in the Australian Pharmaceutical Formulary.

Maximum penalty: 50 penalty units.

(2) Strict liability applies to subsection (1) (a) and (b).

(3) In this section:

standard, in relation to therapeutic goods—see the Therapeutic Goods Act 1989 (Cwlth).

the Australian Pharmaceutical Formulary means the latest edition of the Australian Pharmaceutical Formulary, published by the Pharmaceutical Society of Australia (the PSA), as amended by any amendments published by the PSA since the last edition.

therapeutic goods—see the Therapeutic Goods Act 1989 (Cwlth).

(5) An informed person need not divulge or communicate protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act, another territory law or another law applying in the ACT.

Each of the following decisions of the board is a reviewable decision:

(a) a decision under section 129C (1) to refuse to issue an optometrist drug authority;

(b) a decision under section 129C (3) to issue an optometrist drug authority subject to conditions;

(c) a decision under section 129C (4) to amend a condition of a registered optometrist’s optometrist drug authority;

(d) a decision under section 129D (1) to issue an optometrist drug authority for a period less than the maximum period allowed under the ACT requirements;

(e) a decision under section 129D (2) to withdraw a registered optometrist’s optometrist drug authority.

Application may be made to the AAT for review of a reviewable decision.

(1) If the board makes a reviewable decision, it must give a written notice of the decision to each person affected by the decision.

(2) The notice must be in accordance with the requirements of the code of practice in force under the Administrative Appeals Tribunal Act 1989, section 25B (1).

(commencement: immediately before the commencement of the Health Professionals Act 2004, section 136 (1) (h))

(1) A registered pharmacist must keep a record of every prescription dispensed, compounded or made up by the pharmacist.

(2) The record must be made as prescribed by the Poisons Regulation 1993, section 4.

A registered dentist, registered medical practitioner or registered veterinary surgeon may compound or dispense any medicine or drug for a patient or animal under his or her professional care without becoming a registered pharmacist.

(1) A person commits an offence if—

(a) the person is not—

(i) a registered medical practitioner; or

(ii) an authorised nurse practitioner; or

(iii) acting in accordance with a registered medical practitioner’s direct instructions to the person; and

(b) the person intentionally attends on, prescribes for, or supplies a substance or instrument to, someone else—

(i) for the treatment or cure of a sexual health condition (whether or not the other person has the condition); or

(ii) for menstrual problems; or

(iii) to influence the course of a pregnancy.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) Absolute liability applies to subsection (1) (a) (i).

(3) Strict liability applies to subsection (1) (a) (ii) and (iii).

(4) Subsection (1) does not apply to—

(a) a registered pharmacist who dispenses a substance or instrument to someone else under a prescription given by a registered medical practitioner or authorised nurse practitioner; or

(b) a registered pharmacist who, in the ordinary course of the pharmacist’s business, sells or supplies a substance or instrument (other than a substance or instrument prescribed by regulation) for a purpose other than a purpose mentioned in subsection (1) (b).

(5) In this section:

authorised nurse practitioner means a registered nurse practitioner who is the occupant of a nurse practitioner position acting within the scope of practice for the position.

nurse practitioner position—see the Health Act 1993, section 195 (2).

scope of practice—see the Health Act 1993, section 195 (2).

sexual health condition means—

(a) a sexually transmitted disease; or

(b) a disease affecting a reproductive organ or function; or

(c) impotence; or

(d) an ailment relating to sexual intercourse.

sexually transmitted disease means—

(a) chancroid, chlamydial disease, donovanosis, gonorrhoea, HIV/AIDS, lymphogranuloma venereum or syphilis; or

(b) a disease prescribed by regulation.

(commencement: on the commencement of the Health Professionals Act 2004, section 136 (1) (i))

(1) The Legislation Act, section 19 (1) (e) (Contents of register) does not apply to the following notifiable instruments:

• Notice in accordance with section 82 of the Nurses Act 1988 NI2000-241

• Nurses (Decision of Board) Notice 2004 NI2004-208

• Nurses (Decision of Board) Notice 2004 (No 2) NI2004-454

• Nurses (Decision of Board) Notice 2005 NI2005-425.

(2) This section expires on the day it commences.

(3) This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

A regulation may prescribe savings or transitional matters necessary or convenient to be prescribed because of the enactment of this Act or the Health Professionals Legislation Amendment Act 2006 (No 2).

This part expires on 9 January 2009.

deals with, a matter—a health professions tribunal panel deals with a matter if the panel does 1 or more of the following:

(a) hears the matter;

(b) decides the matter;

(c) makes an order in relation to the matter;

(d) exercises any other function of the tribunal in relation to the matter.

health professions representative list means the list kept by the president of the health professions tribunal under section 43.

doctor or nurse

doctor, nurse or midwife

(c) a nurse; or

(ca) an enrolled nurse; or

(cb) a midwife; or

• enrolled nurse

• midwife

• nurse

(2) A medical procedure has a genuine therapeutic purpose only if—

(a) performed on a person in labour, or who has just given birth, and for medical purposes connected with the labour or birth, by a doctor or midwife; or

(b) it is necessary for the health of the person on whom it is performed and is performed by a doctor.

• doctor

• midwife

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1 defines the following terms:

• dentist

• enrolled nurse

• midwife

• nurse

• pharmacist

• veterinary surgeon.

(b) a nurse or midwife employed to provide first aid to workers in the course of their employment; or

(ii) in a class 1 institution, if no pharmacist is available when the drug is required—a nurse or midwife in the institution.

or nurse

, nurse or midwife

(1) A doctor, pharmacist, nurse, midwife or health worker may apply to the chief health officer for approval to supply syringes.

(i) a doctor, intern, dentist, pharmacist, nurse or midwife; or

(i) a doctor, intern, pharmacist, nurse or midwife; or

(ii) a student nurse, or student midwife, who has completed the pharmacology units of his or her nursing or midwifery studies; or

student midwife means a person who is conditionally registered as a midwife under the Health Professionals Act 2004 while undertaking a midwifery course to achieve the standard required to be unconditionally registered as a midwife in the ACT.

student nurse means a person who is conditionally registered as a nurse under the Health Professionals Act 2004 while undertaking a nursing course to achieve the standard required to be unconditionally registered as a nurse in the ACT.

(b) a doctor, pharmacist, nurse or midwife employed within a class 1 institution or a class 2 institution acting in the course of his or her employment; or

nurse or

nurse, midwife or

(d) a doctor, pharmacist, nurse or midwife employed within a class 1 institution or a class 2 institution acting in the course of his or her employment; or

(b) if the person is a doctor, intern, dentist, veterinary surgeon, pharmacist, nurse or midwife—the health profession board that has responsibility under the Health Professionals Act 2004 for the registration of members of the person’s profession.

(a) a doctor, psychologist, nurse, midwife or social worker;

this Act or another Act.

this Act, another territory law or another law applying in the ACT.

(4) A person to whom this section applies need not divulge or communicate protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act, another territory law or another law applying in the ACT.

(c) state the day (not later than 28 days after the day the warrant is issued) that the warrant ceases to have effect; and

(3A) However, the Minister is taken to have complied with this section if the Minister presents a copy of a Commonwealth independent review report to the Legislative Assembly not later than 5 years after the commencement of this Act.

Commonwealth independent review report means the report of an independent review of the Commonwealth Act undertaken under that Act, section 194 (Review of operation of Act).

(1) To remove any doubt, anything done during the prescribed period in a medical facility, or a part of a medical facility, approved under a prescribed notified instrument is taken, for all purposes, to have been done in a medical facility, or part of a medical facility, approved under section 30D (1).

(2) In this section:

prescribed notified instrument—each of the following is a prescribed notified instrument:

(a) Health (Medical Facilities) Approval 2006 (No 1), NI2006-289;

(b) Health (Medical Facilities) Approval 2006 (No 2), NI2006-288;

(c) Health (Medical Facilities) Approval 2006 (No 3), NI2006-287;

(d) Health (Medical Facilities) Approval 2006 (No 4), NI2006-266.

prescribed period means—

(a) for an instrument mentioned in the definition of prescribed notified instrument, paragraph (a), (c) or (d)—the period starting on 7 July 2005 and ending on 31 July 2006; or

(b) for an instrument mentioned in the definition of prescribed notified instrument, paragraph (b)—the period starting on 1 July 2004 and ending on 31 July 2006.

(3) This section expires on the day it commences.

(4) This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(commencement: on the day after this Act’s notification day)

1 If a consumer transfers from 1 health service provider (the first provider) to another health service provider (the second provider)—

(a) the consumer may ask the first provider to give the second provider the consumer’s health record; and

(b) the first provider—

(i) must give the second provider the consumer’s record or a copy of the record; and

(ii) may also give the second provider a written summary of the consumer’s health record.

2 If a health service provider transfers from 1 practice (the first practice) to another practice and a consumer continues to see the provider—

(a) the consumer may ask the first practice to give the provider the consumer’s health record; and

(b) the first practice—

(i) must give the provider the consumer’s record or a copy of the record; and

(ii) may also give the provider a written summary of the consumer’s health record.

3 The fee chargeable for giving a health record, or a copy or written summary of a health record, under this principle is—

(a) if a fee has been determined under section 34 for this principle—the determined fee; or

(b) in any other case—nil.

enrolled nurse—

(a) means a person unconditionally enrolled as a nurse under the Health Professionals Act 2004; and

(b) for an activity, includes a person conditionally enrolled as a nurse under the Health Professionals Act 2004 to the extent that the person is allowed to do the activity under the person’s conditional registration.

midwife—

(a) means a person unconditionally registered as a midwife under the Health Professionals Act 2004; and

(b) for an activity, includes a person conditionally registered as a midwife under the Health Professionals Act 2004 to the extent that the person is allowed to do the activity under the person’s conditional registration.

(commencement: immediately before the commencement of the Health Professionals Act 2004, section 136 (1) (h))

(commencement: immediately before the commencement of the Health Professionals Act 2004, section 136 (1) (h))

ACT requirements—see section 129B.

(commencement: immediately before the commencement of the Health Professionals Act 2004, section 136 (1) (h))

board means the ACT Optometrists Board established under the Health Professionals Regulation 2004, schedule 11.

(commencement: immediately before the commencement of the Health Professionals Act 2004, section 136 (1) (h))

(commencement: immediately before the commencement of the Health Professionals Act 2004, section 136 (1) (h))

nurse,

enrolled nurse, midwife,

sexually transmitted disease means—

(a) chancroid, chlamydial disease, donovanosis, gonorrhoea, HIV/AIDS, lymphogranuloma venereum or syphilis; or

(b) a disease prescribed by regulation.

(b) for any other place—enter the place at any time with the consent of the occupier, or in accordance with a warrant issued under section 80 or section 81.

(1A) However, the Minister must not make a determination under subsection (1) unless the Minister believes, on reasonable grounds, that the determination is necessary to protect public health.

(1) The chief health officer may declare, in writing—

(a) a disease or medical condition to be a notifiable condition; and

(b) a disease mentioned in paragraph (a) or section 100 (1) (a) to be a transmissible notifiable condition.

(1A) However, the chief health officer must not make a declaration under subsection (1) unless the chief health officer believes, on reasonable grounds, that the declaration is necessary to protect public health.

(1) This section applies if the chief health officer gives a public health direction under section 113 (1) (e) requiring a person who has a transmissible notifiable condition, or a contact of the person, (the confined person) to be confined to a stated place for a stated period.

(2) The chief health officer must review the public health direction not later than 48 hours after the confined person was first confined under the direction.

(ba) an enrolled nurse;

(bb) a midwife;

Presentation speech made in the Legislative Assembly on 2006.

Notified under the Legislation Act on 2006.

For the latest republication of amended laws, see www.legislation.act.gov.au.