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Health Practitioner Acts (Further Amendments)
Bill
Circulation Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Act.
Clause 2 is the commencement provision. The provisions of the Act come
into operation as follows--
· sections 1, 2, 31, 38, 43, 45, 46, 47, 48, and 49 come
into operation on the day after the day on which the Act
receives the Royal Assent;
· the remaining provisions come into operation on a day
or days to be proclaimed or if not in operation before
30 June 2004, the remaining provisions come into
operation on that day.
PART 2--MEDICAL PRACTICE ACT 1994
Clause 3 provides for the Medical Practice Act 1994 to be called the
Principal Act in this Part.
Clause 4 amends the purposes of the Principal Act by inserting the
investigation of professional performance of registered medical
practitioners and investigations into the ability of registered
medical students to have direct patient contact.
Clause 5 inserts new definitions into the Principal Act in relation to
"notifier", "professional performance" and "unsatisfactory
professional performance" and provides for two new grounds to
be included within the definition of "unprofessional conduct" --
'a breach of particular agreements between medical practitioners
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541257 BILL LA CIRCULATION 21/3/2002
and the Medical Practitioners Board' and 'unsatisfactory
professional performance'.
Clause 6 inserts a new ground under which the Medical Practitioners
Board may refuse to grant registration to an applicant, namely,
that the applicant is disqualified from applying for registration
under the Principal Act.
Clause 7 inserts a new circumstance under which the Medical Practitioners
Board may grant or refuse to grant specific registration as a
medical practitioner to an applicant, namely, that the applicant
has satisfied the Medical Practitioners Board that she or he will
not practise during the period of registration.
Clause 8 substitutes section 13(1A) which related to an applicant for
renewal of registration supplying information to the Medical
Practitioners Board about professional indemnity insurance
coverage with new provisions that will enable the Medical
Practitioners Board to not only seek information on professional
indemnity insurance coverage but also information on the main
areas of medicine in which the applicant has been practising
during the registration period, any continuing medical education
undertaken, whether or not the applicant intends to practise
medicine in the period for which registration is to be renewed and
if so, the main areas of medicine in which the applicant intends to
practise, and a postal address of the applicant for publication in
the register.
Clause 9 substitutes Division 1 of Part 3 of the Principal Act with a new
Division that--
· inserts provisions for a person to make a notification to
the Medical Practitioners Board about particular matters
relating to a medical practitioner's ability to practise,
professional performance or professional conduct; and
· provides for certain notifications received by the
Medical Practitioners Board to be referred to the Health
Services Commissioner and for the Board, in
consultation with the Commissioner, to determine
whether those notifications are to be dealt with by the
Board or the Commissioner; and
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· provides that a notification to be dealt with by the
Health Services Commissioner is dealt with by the
Commissioner as if the notification were a complaint
received by the Commissioner under the Health
Services (Conciliation and Review) Act 1987; and
· provides for all other notifications received by the
Medical Practitioners Board (that are not considered
frivolous or vexatious), to be dealt with by the Board by
appointing a person or persons to conduct a preliminary
investigation into the matters raised by the notification;
and
· introduces new provisions related to--
· when and how the Medical Practitioners Board
may institute investigations or hearings into a
medical practitioner's ability to practise,
professional performance or professional conduct
or a medical student's ability to have direct
patient contact;
· when the Medical Practitioners Board must refer
a matter to a formal hearing; and
· a registered medical practitioner or registered
medical student may request the Medical
Practitioners Board to impose conditions,
limitations or restrictions on her or his
registration or to suspend her or his registration
where certain circumstances exist.
Clause 10 repeals the heading to Division 2 of Part 3 of the Principal Act.
Clause 11 substitutes section 28 and includes a new sections 27 and 28 into
the Principal Act to--
· make provision for the Medical Practitioners Board to
suspend the registration of a medical practitioner or
medical student at any time, where in the opinion of the
Board there is a serious risk that the health and safety of
the public will be endangered. Such a suspension
remains in place until an investigation or hearing is
completed, unless the suspension is otherwise revoked;
and
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· make provision, in place of suspending a registration,
for a medical practitioner or medical student to ask the
Medical Practitioners Board to accept an agreement in
writing by the medical practitioner to alter the way she
or he practises medicine or an agreement by the student
to alter the nature and extent of her or his direct patient
contact; and
· make provision for the Medical Practitioners Board,
with the agreement of a medical practitioner or medical
student, to--
· amend, vary or revoke any condition, limitation
or restriction imposed on the registration of the
medical practitioner or medical student without
the need to conduct an informal or formal
hearing; and
· revoke the suspension of the registration of a
medical practitioner or medical student and to
impose a condition, limitation or restriction on
that registration; and
· revoke the suspension of the registration of a
medical practitioner or medical student in
instances where the practitioner or student has
satisfied the Board that her or his ability to
practise medicine or to have direct patient
contact is no longer affected; and
· make provision for the Medical Practitioners Board to
refer a matter to a formal hearing where the Board and
the medical practitioner or medical student fail to agree
on certain matters or the medical practitioner or medical
student does not abide by an agreement.
Clause 12 makes consequential amendments to section 29 that deals
with the required notice of a preliminary investigation.
These amendments relate to investigations into the ability of a
medical practitioner to practise medicine, a practitioner's
professional performance and the ability of a medical student to
have direct patient contact.
Clause 13 inserts a new Division 2A heading into Part 3 of the Principal
Act.
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Clause 14 substitutes new sections 33 and 34 for sections 33, 34, 35 and 36
of the Principal Act to--
· make provision for the Medical Practitioners Board to
refer a matter that is the subject of a preliminary
investigation to a formal hearing when the registered
medical practitioner or registered medical student does
not agree to undergo a medical examination or does not
abide by an agreement to undergo a medical
examination; and
· make provision for a panel conducting 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 to find the ability
of the practitioner or student affected or to find their
abilities not to be affected; and
· provide that, if the panel finds that a registered medical
practitioner's ability to practise medicine is affected or
that a registered medical student's ability to have direct
patient contact is affected, the panel may determine to--
· impose conditions, limitations or restrictions on
the registration of the practitioner;
· suspend the registration of the practitioner for the
period and subject to the conditions, limitations
or restrictions (if any) specified in the
determination;
· impose conditions, limitations or restrictions on
direct patient contact by the student;
· prohibit the student from having direct patient
contact for the period specified.
Clause 15 substitutes a new Division 3 of Part 3 of the Principal Act and
inserts new sections 38A to 38J to--
· provide for the conduct of a performance assessment of
a registered medical practitioner including--
· the conduct of the performance assessment by
one or two registered medical practitioners as
determined by the Medical Practitioners Board,
who are not members of the Medical
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Practitioners Board, and who are agreed upon by
the Board and the practitioner to be assessed or,
if unable to agree, by the Secretary to the
Department of Human Services with the costs of
the assessment being borne by the Board;
· the assessing practitioner or practitioners giving
a report of the assessment to the person
appointed to conduct the preliminary
investigation and for that person to discuss the
report and the possible ways of dealing with the
adverse finding with the practitioner who has
been assessed; and
· the person appointed to conduct the preliminary
investigation reporting to the Medical
Practitioners Board with recommendations; and
· provide that where a registered medical practitioner,
being the subject of a preliminary investigation into her
or his professional performance, does not agree to
undergo a performance assessment or does not abide by
an agreement to undergo an assessment, the Medical
Practitioners Board may refer the matter to an informal
or formal hearing; and
· enable the Medical Practitioners Board to make certain
determinations following receipt of a report of a
preliminary investigation into the performance of a
medical practitioner or to enter into an agreement with
that practitioner as an alternative to some of those
determinations; and
· provide for the appointment of a performance review
panel by the Medical Practitioners Board to review a
registered medical practitioner's professional
performance, and
· set out the procedure of a performance review panel and
the determinations that may be made by the Medical
Practitioners Board once it has received the report and
recommendations of the performance review panel; and
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· require a performance assessment or a performance
review panel to be abandoned if the registered medical
practitioner requests at any time that a formal hearing be
held.
Clause 16 inserts a new Division heading into the Principal Act and a new
section 38K which--
· sets out the recommendations to the Medical
Practitioners Board that may be made by a person or
sub-committee appointed by the Board to conduct a
preliminary investigation into the professional conduct
of a registered medical practitioner; and
· requires the Medical Practitioners Board to determine
whether or not to act on the recommendations received
from the person or sub-committee appointed to conduct
the preliminary investigation.
Clause 17 inserts a new section heading and makes various minor
consequential amendments to section 39 of the Principal Act
regarding the establishment and notice of an informal hearing.
Clause 18 substitutes a new section 40(3). It sets out new provisions about
who is not entitled to be a member of an informal hearing panel.
Clause 19 inserts new sections 45A and 45B into the Principal Act.
They concern the findings and determinations that a panel may
make following a formal hearing by that panel into the
professional conduct of a registered medical practitioner.
Clause 20 inserts a new Division 3B heading into Part 3 of the Principal Act
and a new section 45C that sets out the applicability of that new
Division to hearings in relation to various matters.
Clause 21 inserts a new section heading and makes various consequential
amendments to section 46 of the Principal Act regarding the
establishment and notice of a formal hearing.
Clause 22 substitutes a new section 47(3). It sets out who is not entitled to
be a member of a panel for a formal hearing.
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Clause 23 inserts new sections 48A and 48B into the Principal Act to--
· provide for one or more preliminary conferences to be
held for certain purposes by a person appointed by the
Board;
· enable the Board to require the attendance of a medical
practitioner or medical student at those conferences.
Clause 24 modifies section 49(c) to accord with previous amendments in
this Bill relating to the substitution of "notifier" and
"notification" for "complainant" and "complaint".
Clause 25 repeals sections 50, 51 and 51A of the Principal Act.
Clause 26 inserts a power into section 52 of the Principal Act for a formal
or informal hearing panel to consider a performance assessment
report when the hearing concerns a practitioner's ability to
practise medicine or a practitioner's professional conduct.
Clause 27 inserts a new section heading and makes consequential
amendments to section 57 of the Principal Act in relation to
"notifier" and "notification".
Clause 28 inserts a new section heading and makes consequential
amendments to section 58 of the Principal Act in relation to
"notifier".
Clause 29 inserts additional grounds for the Victorian Administrative
Appeals Tribunal (VCAT) to review decisions of the Medical
Practitioners Board in relation to the Board accepting an
agreement under certain sections from a medical practitioner or
medical student.
Clause 30 inserts new sections 63A to 63K into the Principal Act which--
· creates an offence for an employer of a medical
practitioner (whether a natural person or body
corporate) to direct or incite unprofessional conduct,
except if the employer is a particular body defined
under the Health Services Act 1988;
· extends the concept of employment of a medical
practitioner;
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· extends the concept of the carrying on of a business
where that business facilitates a medical practitioner in
engaging in the practise of medicine;
· makes provision for the Secretary to the Department of
Human Services to prohibit a person convicted of
particular offences under section 63A of the Principal
Act from carrying on a business that provides medical
services;
· creates offence provisions relating to the operation of a
business that provides medical services during any
period of prohibition applied by the Secretary to the
person operating that business;
· provides that a prohibition has no effect while an appeal
is pending against the conviction or finding of guilt for
the offence on which the prohibition is based;
· makes provision for the Secretary to require certain
information to be supplied to the Secretary by a person
who has been convicted under section 63A or 63E of the
Principal Act;
· provides the meaning of management role or substantial
interest in a body corporate or trust for the purposes of
sections 63A to 63G of the Principal Act;
· requires the Secretary to keep a register of, and certain
particulars relating to, all prohibitions issued by the
Secretary under section 63D of the Principal Act;
· provides that a certificate of the Secretary is, in the
absence of evidence to the contrary, proof of a
prohibition of the Secretary;
· requires the Secretary, after the issue of a prohibition, to
notify the Medical Practitioners Board and other bodies
defined under the Health Services Act 1988 of that
prohibition.
Clause 31 amends section 64B of the Principal Act to change the
procedures for the preparation of advertising guidelines.
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Clause 32 inserts a new section 64E into the Principal Act that allows
proceedings for an offence under the Principal Act to be
commenced up to 3 years after the commission of the alleged
offence.
Clause 33 makes consequential amendments to section 66(1) of the
Principal Act concerning certain functions of the Medical
Practitioners Board and adds a further function for the Board to
report to the Minister any concern the Board may have in relation
to the health system in Victoria arising out of the Board
undertaking its functions.
Clause 34 inserts new powers into section 92 of the Principal Act that allow
a person authorised by the Secretary--
· to take proceedings for an offence against section 63A,
63E or 63G of the Principal Act; and
· to carry out the functions and to exercise the powers of
a person authorised or appointed by the Medical
Practitioners Board in relation to contraventions of
those sections of the Principal Act.
Clause 35 inserts a new section 106 of the Principal Act to insert new
transitional provisions in relation to--
· complaints, investigations and examinations;
· limiting the operation of section 64E to offences
committed before the commencement of section 32 of
this Act.
PART 3--NURSES ACT 1993
Clause 36 increases the penalties for bodies corporate in section 63(1), (2),
(3) and (4) of the Nurses Act 1993.
Clause 37 Inserts new sections 63A to 63J in the Nurses Act 1993 which--
· create an offence for a nurse's agent (whether a natural
person or body corporate) to direct or incite
unprofessional conduct by a registered nurse;
· extend the concept of arranging the supply of services;
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· make provision for the Secretary to the Department of
Human Services to prohibit a person convicted of an
offence under section 63A of the Nurses Act 1993 from
carrying on a business or practice of a nurse's agent;
· create offence provisions relating to the operation of a
business or practice of a nurse's agent while a
prohibition made by the Secretary under this Part of the
Act is in force;
· provide that a prohibition has no effect while an appeal
is pending against the conviction or finding of guilt for
the offence on which the prohibition is based;
· enables the Secretary to require certain information to
be supplied to the Secretary by a person who has been
convicted under section 63A or 63D of the Nurses Act
1993;
· provide the meaning of management role and
substantial interest for the purposes of sections 63A to
63F of the Nurses Act 1993;
· require the Secretary to keep a register of, and certain
particulars relating to, all prohibitions issued under
section 63C of the Nurses Act 1993;
· provide that a certificate of the Secretary is, in the
absence of evidence to the contrary, proof of a
prohibition of the Secretary;
· require the Secretary, after the issue of a prohibition
under section 63C, to notify the Nurses Board and
certain bodies defined under the Health Services Act
1988 of that prohibition.
Clause 38 amends section 64B of the Nurses Act 1993 to change the
procedures for the preparation of advertising guidelines.
Clause 39 amends the Nurses Act 1993 to--
· insert a new section 64E that extends the time during
which proceedings for alleged offences against the
Nurses Act 1993 may be commenced; and
· repeal section 64A(4) of the Nurses Act 1993.
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Clause 40 inserts new powers into section 87 of the Nurses Act 1993 that
allow a person authorised by the Secretary--
· to take proceedings for an alleged offence against
section 63A, 63D or 63F of the Nurses Act 1993; and
· to carry out the functions and to exercise the powers of
a person authorised or appointed by the Nurses Board in
relation to contraventions of those sections of the
Nurses Act.
Clause 41 substitutes a new section 105 of the Nurses Act 1993 for sections
105 to 109 of that Act, to insert a further transitional provision
that limits the operation of section 64E of the Nurses Act 1993 to
offences committed before the commencement of section 32 of
this Act.
PART 4--AMENDMENTS TO OTHER HEALTH
PRACTITIONER ACTS
Clause 42 amends section 11 of the Chinese Medicine Registration Act
2000 to allow the Board to collect registration fees on a financial
year basis.
Clause 43 amends section 64 of the Chinese Medicine Registration Act
2000 to change the procedures for the preparation of advertising
guidelines.
Clause 44 inserts a new section 112 in the Chinese Medicine Registration
Act 2000 to insert a transitional provision in relation to
registration.
Clause 45 amends section 66 of the Dental Practice Act 1999 to change the
procedures for the preparation of advertising guidelines.
Clause 46 amends section 64 of the Psychologists Registration Act 2000
to change the procedures for the preparation of advertising
guidelines.
Clause 47 repeals the Medical Practitioners (Private Hospitals) Act 1984.
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PART 5--HEALTH RECORDS ACT 2001
Clause 48 amends section 17 of the Health Records Act 2001 to modify
the exemption available to news media. That section already
provides that the requirements in the Act regarding the disclosure
of health information do not apply to a news medium in
connection with its news activities. That exemption enables
publication within Victoria. This amendment to section 17 will
also ensure that Health Privacy Principle 9, which regulates the
transfer (or publication) of health information outside Victoria,
does not apply to a news medium in connection with its news
activities.
Clause 49 is a transitional provision. The Act is to be fully operational, and
legally binding, on 1 July 2002. However, the Health Privacy
Principles (HPPs) came into effect, as voluntary standards, on
1 March 2002. This staged commencement of the Act is
intended to give those organisations that will be subject to the
Act a four month period in which to practise applying the HPPs
on a voluntary basis, knowing that no legal consequences can
flow from any breach of those standards. To avoid doubt, this
section confirms that the enforcement regime in the Act,
including the handling of complaints by the Health Services
Commissioner, will only apply to acts or practices of an
organisation involving health information that occur on or after
1 July 2002.
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