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This is a Bill, not an Act. For current law, see the Acts databases.
Health Legislation Amendment Bill
2013
No , 2013
A Bill for
An Act to make miscellaneous amendments to various Acts that relate to health and
associated matters.
Clause 1 Health Legislation Amendment Bill 2013
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Health Legislation Amendment Act 2013. 3
2 Commencement 4
This Act commences on the date of assent to this Act. 5
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Health Legislation Amendment Bill 2013
Amendment of Health Administration Act 1982 No 135 Schedule 1
Schedule 1 Amendment of Health Administration 1
Act 1982 No 135 2
[1] Section 11 Disposal of land by Corporation 3
Insert at the end of the section: 4
(2) The Corporation may request the Minister to give approval to 5
(and the Minister may approve) a disposition of land, being a 6
disposition: 7
(a) that is contrary to a provision of, or a trust arising under, 8
the Crown grant of that land, or 9
(b) that, if this section had not been enacted, may make the 10
land liable to be forfeited to the Crown. 11
(3) If the Minister has given an approval under this section to a 12
disposition of land, the disposition of the land: 13
(a) is not to be regarded as a breach of any provision of, or any 14
trust arising under, the Crown grant of that land, and 15
(b) does not make the land liable to be forfeited to the Crown. 16
[2] Schedule 4 Medical Services Committee 17
Insert after clause 4 (2): 18
(3) Despite subclause (2), a person may be appointed to a fourth 19
consecutive term as a member if the person was appointed as 20
Chairperson during the person's third consecutive term. 21
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Health Legislation Amendment Bill 2013
Schedule 2 Amendment of Health Care Complaints Act 1993 No 105
Schedule 2 Amendment of Health Care Complaints 1
Act 1993 No 105 2
[1] Section 3A Outline of role and principles of Commission and related 3
government agencies in health care system 4
Insert after section 3A (5A): 5
(5B) Principles 6
The Commission and other government agencies with functions 7
in connection with health care complaints under this Act are, in 8
carrying out those functions, to have regard to the following 9
principles: 10
(a) the Commission and those government agencies are to be 11
accountable to the New South Wales community, 12
(b) the decision-making processes are to be open, clear and 13
understandable for clients and health service providers, 14
(c) an acceptable balance is to be maintained between 15
protecting the rights and interests of clients and health 16
service providers, 17
(d) the processes of the Commission and those government 18
agencies are to be effective in protecting the public from 19
harm, 20
(e) the Commission and those government agencies are to 21
strive to improve the efficiency of the administration of 22
those functions so as to benefit the New South Wales 23
community, 24
(f) the Commission and those government agencies are to be 25
flexible and responsive as the health care system evolves 26
and changes. 27
[2] Sections 7 (1) (b), 25 (4) (b) and 25A (3) (b) 28
Insert ", or is likely to affect," after "affects" wherever occurring. 29
[3] Section 8 Who may make a complaint? 30
Insert at the end of the section: 31
(2) The Commissioner may make a complaint under this Act, but 32
only if it appears to the Commissioner that the matter that is the 33
subject of the complaint: 34
(a) raises a significant issue of public health or safety, or 35
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Health Legislation Amendment Bill 2013
Amendment of Health Care Complaints Act 1993 No 105 Schedule 2
(b) raises a significant question regarding a health service that 1
affects, or is likely to affect, the clinical management or 2
care of an individual client, or 3
(c) if substantiated, would: 4
(i) provide grounds for disciplinary action against a 5
health practitioner, or 6
(ii) be found to involve gross negligence on the part of 7
a health practitioner, or 8
(iii) result in the health practitioner being found guilty of 9
an offence under Division 1 or 3 of Part 7 of the 10
Public Health Act 2010. 11
(3) The provisions of this Part apply to the making of a complaint by 12
the Commissioner, subject to any modifications prescribed by the 13
regulations. 14
[4] Section 16A 15
Insert after section 16: 16
16A Employer to be notified of complaint against employee 17
(1) The Commission must give written notice of the making of a 18
complaint, the nature of the complaint and the identity of the 19
complainant to a person who currently employs or engages the 20
health practitioner concerned as a health practitioner if the 21
Commission considers on reasonable grounds that the giving of 22
the notice is necessary: 23
(a) to assess the matter effectively, or 24
(b) to protect the health or safety of the public or a member of 25
the public. 26
(2) This section does not require the Commission to give notice 27
under this section if it appears to the Commission, on reasonable 28
grounds, that the giving of the notice will: 29
(a) place the complainant or another person at risk of 30
intimidation or harassment, or 31
(b) unreasonably prejudice the employment or engagement of 32
the health practitioner. 33
[5] Section 25 Notification of certain complaints to Director-General 34
Omit "Division 3 of Part 2A of the Public Health Act 1991" from the note to 35
the section. 36
Insert instead "Division 3 of Part 7 of the Public Health Act 2010". 37
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Health Legislation Amendment Bill 2013
Schedule 2 Amendment of Health Care Complaints Act 1993 No 105
[6] Section 28 Notice of action taken or decision made following 1
assessment 2
Omit "to the complainant" from section 28 (8). 3
Insert instead "to the parties to the complaint". 4
[7] Part 2, Division 5, note 5
Omit the following: 6
The Commission will investigate with a view to moving to prosecution of 7
the complaint before the appropriate professional board, committee or 8
tribunal. 9
[8] Section 41A Prohibition orders and public statements 10
Omit "Section 10AK (1) of the Public Health Act 1991" from the note to 11
section 41A (2) (a). 12
Insert instead "Section 102 (3) of the Public Health Act 2010". 13
[9] Section 45 Notification of results of investigation 14
Insert after section 45 (3): 15
(4) In this section, results of an investigation includes any action 16
taken under section 42 and the reasons for taking that action. 17
[10] Section 80 Functions of Commission 18
Omit "complaints concerning the clinical management or care of individual 19
clients by health service providers" from section 80 (1) (a). 20
Insert instead "complaints concerning a health service that affects, or is likely 21
to affect, the clinical management or care of individual clients". 22
[11] Section 90B Functions of Director of Proceedings 23
Insert after section 90B (3A): 24
(3B) The Director may refer a complaint back to the Commission for 25
further investigation under Division 5 of Part 2 if the Director: 26
(a) is unable to determine whether the complaint should be 27
prosecuted before a disciplinary body, or 28
(b) is of the opinion that further evidence is required to enable 29
the Director to prosecute the complaint before the 30
disciplinary body. 31
(3C) If a complaint has been referred to the Commission for further 32
investigation under subsection (3B), sections 39 (2) and 40 apply 33
in relation to the complaint only if the Commission, at the end of 34
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Health Legislation Amendment Bill 2013
Amendment of Health Care Complaints Act 1993 No 105 Schedule 2
the further investigation of the complaint, proposes to take any of 1
the following action: 2
(a) change the person whose conduct appears to be the subject 3
of the complaint or include another person as a person 4
whose conduct appears to be the subject of the complaint, 5
(b) add to, substitute, amend or delete any of the specific 6
allegations comprising the complaint (including add an 7
allegation arising out of an investigation of the complaint 8
that may not be the particular object of the complaint). 9
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Health Legislation Amendment Bill 2013
Schedule 3 Amendment of Health Practitioner Regulation (Adoption of National Law)
Act 2009 No 86
Schedule 3 Amendment of Health Practitioner 1
Regulation (Adoption of National Law) 2
Act 2009 No 86 3
[1] Schedule 1 Modification of Health Practitioner Regulation National Law 4
Insert after section 150D (4) in Schedule 1 [15]: 5
(4A) Despite subsections (3) and (4), the Commission is not required 6
to investigate the complaint or cause it to be investigated if the 7
matter that is the subject of the complaint is being, or has been, 8
investigated as, or as part of, another complaint to the 9
Commission. 10
[2] Schedule 1 [15] 11
Insert "or suspension" after "conditions" in section 152J (b). 12
[3] Schedule 1 [25] 13
Insert after Part 4 of Schedule 5A: 14
Part 5 Provision consequent on enactment of 15
Health Legislation Amendment Act 2013 16
[NSW] 17
35 Appointments of acting members and acting President of Councils 18
The amendment of clause 11 (1) and (3) of Schedule 5C by the 19
Health Legislation Amendment Act 2013 does not affect the 20
appointment of any person holding office as an acting member or 21
an acting President of a Council immediately before the 22
commencement of that amendment. 23
[4] Schedule 1 [25] 24
Omit "Governor" wherever occurring in clause 11 (1), (3) and (5) of 25
Schedule 5C. 26
Insert instead "Minister". 27
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Health Legislation Amendment Bill 2013
Amendment of Health Services Act 1997 No 154 Schedule 4
Schedule 4 Amendment of Health Services Act 1997 1
No 154 2
Section 120A 3
Insert after section 120: 4
120A Suspension of members of staff from duty pending decision in 5
relation to misconduct or serious criminal charge 6
(1) If: 7
(a) the registration of a member of staff as a registered health 8
practitioner is suspended under section 150 of the Health 9
Practitioner Regulation National Law (NSW), or 10
(b) conditions are imposed on the registration of a member of 11
staff as a registered health practitioner under 12
section 150 (1) (b) of that Law that, in the opinion of the 13
Director-General, are inconsistent with any of the inherent 14
requirements of the terms of employment of the staff 15
member, or 16
(c) an interim prohibition order is made in respect of a 17
member of staff under section 41AA of the Health Care 18
Complaints Act 1993 that prohibits the staff member from 19
providing health services or specified health services, or 20
(d) an interim prohibition order is made in respect of a 21
member of staff under section 41AA of that Act that places 22
conditions on the provision of health services or specified 23
health services by the staff member that, in the opinion of 24
the Director-General, are inconsistent with any of the 25
inherent requirements of the terms of employment of the 26
staff member, or 27
(e) a member of staff is charged with having committed a 28
serious criminal offence, 29
the Director-General may suspend the member of staff from duty 30
until the suspension, interim prohibition order or conditions have 31
been removed or expire or the criminal charge has been dealt 32
with. 33
Note. Under section 3J of the Public Sector Employment and 34
Management Act 2002 the Public Service Commissioner may, for the 35
purposes of exercising his or her functions, give a direction in writing to 36
the head of a public sector agency in relation to the staff of that agency. 37
The head of a public sector agency to whom such a direction is given 38
must comply with the direction. 39
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Health Legislation Amendment Bill 2013
Schedule 4 Amendment of Health Services Act 1997 No 154
(2) Any salary payable to a person as a member of staff while the 1
person is suspended from duty under this section is (if the 2
Director-General so directs) to be withheld. 3
(3) If: 4
(a) the registration of the member of staff as a registered 5
health practitioner is cancelled or suspended under 6
section 149C of the Health Practitioner Regulation 7
National Law (NSW), or 8
(b) conditions are imposed on the registration of the member 9
of staff as a registered health practitioner under 10
section 149A (1) (b) of that Law that, in the opinion of the 11
Director-General, are inconsistent with any of the inherent 12
requirements of the terms of employment of the staff 13
member, or 14
(c) a prohibition order is made in respect of the member of 15
staff under section 41A of the Health Care Complaints Act 16
1993 that prohibits the staff member from providing health 17
services or specified health services, or 18
(d) a prohibition order is made in respect of the member of 19
staff under section 41A of that Act that places conditions 20
on the provision of health services or specified health 21
services by the staff member that, in the opinion of the 22
Director-General, are inconsistent with any of the inherent 23
requirements of the terms of employment of the staff 24
member, or 25
(e) the person is convicted of the offence concerned, 26
the salary withheld under subsection (2) is forfeited to the State 27
unless the Director-General otherwise directs or that salary was 28
due to the person in respect of a period before the suspension was 29
imposed. 30
(4) If, at the time that the relevant suspension, interim prohibition 31
order or conditions referred to in subsection (1) (a)-(d) are 32
removed or expire, action referred to in subsection (3) (a)-(d) is 33
not taken in relation to the member of staff, the salary withheld 34
under subsection (2) is to be paid to that member of staff unless 35
the Director-General directs that the salary is to be forfeited to the 36
State (other than any salary that was due to the person in respect 37
of a period before the suspension was imposed). 38
(5) If the Director-General has suspended a member of staff from 39
duty under this section, the Director-General may at any time 40
remove the suspension. 41
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Health Legislation Amendment Bill 2013
Amendment of Health Services Act 1997 No 154 Schedule 4
(6) Nothing in this section prevents the Director-General from 1
suspending a member of staff under any other provision of this 2
Act or any other law (with or without pay) or from taking any 3
other action against a member of staff under this Part. 4
(7) In this section, serious criminal offence means an offence 5
committed in New South Wales that is punishable by 6
imprisonment for 5 years or more or an offence committed 7
elsewhere that, if it had been committed in New South Wales, 8
would be an offence so punishable. 9
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Health Legislation Amendment Bill 2013
Schedule 5 Amendment of Mental Health Act 2007 No 8
Schedule 5 Amendment of Mental Health Act 2007 1
No 8 2
[1] Section 4 Definitions 3
Omit paragraph (b) of the definition of involuntary patient in section 4 (1). 4
Insert instead: 5
(b) a forensic patient who is re-classified as an involuntary 6
patient under section 53 of the Mental Health (Forensic 7
Provisions) Act 1990, or 8
(c) a correctional patient who is re-classified as an involuntary 9
patient under section 65 of the Mental Health (Forensic 10
Provisions) Act 1990. 11
[2] Section 28A 12
Insert after section 28: 13
28A Tribunal to be informed if detained person is a forensic patient 14
If an authorised medical officer of a mental health facility 15
becomes aware that a person detained in the mental health facility 16
under this Division is a forensic patient, the officer is, as soon as 17
is reasonably practicable, to notify the Tribunal. 18
[3] Section 43A 19
Insert after section 43: 20
43A Tribunal to be informed of discharge of a forensic patient 21
An authorised medical officer of a mental health facility must, as 22
soon as is reasonably practicable, notify the Tribunal of the 23
discharge of a person detained in the mental health facility whom 24
the officer knows is a forensic patient. 25
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Health Legislation Amendment Bill 2013
Amendment of Mental Health (Forensic Provisions) Act 1990 No 10 Schedule 6
Schedule 6 Amendment of Mental Health (Forensic 1
Provisions) Act 1990 No 10 2
[1] Section 52 Additional circumstances for termination of classification as 3
forensic patient 4
Insert "under section 53" after "patient" in section 52 (2) (b). 5
[2] Section 67 Community treatment orders 6
Insert after section 67 (4): 7
(5) A community treatment order may be made in respect of a 8
forensic patient who is to be released unconditionally in 9
accordance with an order of the Tribunal. On and from the release 10
of the person, the community treatment order is taken to have 11
been made under the Mental Health Act 2007. 12
[3] Section 68 Breach of orders for release 13
Insert after section 68 (4): 14
(5) An apprehension order under this section authorises the detention 15
of the person at the mental health facility, correctional centre or 16
other place specified in the order. 17
[4] Section 76HA 18
Insert after section 76H: 19
76HA Forensic patients and correctional patients in the community may 20
be detained and treated under Mental Health Act 2007 21
Nothing in this Part limits the application of the Mental Health 22
Act 2007 to a person who has been granted conditional release or 23
leave of absence under this Part. 24
[5] Section 77A Appeals against Tribunal decisions 25
Omit "on a question of law" from section 77A (11). 26
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