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Health Professions Registration
Amendment Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill amends the Health Professions Registration Act 2005.
This Bill also makes minor amendments to the Disability Act 2006 by
correcting two typographical errors.
Clause Notes
Clause 1 sets out the main purpose of the Act.
Clause 2 is the commencement provision. It provides for the Bill, with the
exception of clause 33, to come into operation on the day after
the day on which it receives the Royal Assent.
Clause 33, which makes consequential amendments to the Drugs
Poisons and Controlled Substances Act 1981, is to commence
operation on 1 July 2007.
Clause 3 stipulates that in this Bill, the Health Professions Registration
Act 2005 is called the Principal Act.
Clause 4 repeals paragraph (c), which refers to "infamous conduct in a
professional respect", from the definition of unprofessional
conduct in section 3 of the Principal Act.
"Infamous conduct" is an outmoded phrase that pre-dates the
more common terminology of "unprofessional conduct" and
"professional misconduct". The behaviour that the phrase
"infamous conduct" was meant to refer to is now covered by
"professional misconduct".
561044 1 BILL LA INTRODUCTION 1/5/2007
The current definition of professional misconduct in the
Principal Act includes "unprofessional conduct involving a
substantial or consistent failure to reach or maintain a reasonable
standard of competence and diligence", "conduct that violates or
falls short to a substantial degree of the standard of professional
conduct observed by members of the profession of good repute or
competence" and "conduct that would, if established, justify a
finding that the practitioner is not of good character or otherwise
not fit to practise". These definitions adequately cover any
behaviour that would once have been deemed "infamous
conduct".
Clause 5 amends section 4(2)(d) of the Principal Act, which deals with
applications for registration and the type of information that must
accompany applications.
This amendment arises from a further amendment in clause 7 of
the Bill. That amendment inserts two new subsections into
section 6 of the Principal Act, thereby giving boards discretion to
grant general registration to two categories of practitioners who
may not otherwise meet the requirements in section 5 of the
Principal Act.
The two new categories, explained further in clause 7 below,
are--
· persons who held general registration under the
Principal Act or under one of the repealed registration
Acts up to two years before they apply for registration
as a health practitioner of that kind; and
· non-practising registrants who were deemed under
section 170 to be eligible for general registration under
the Principal Act.
The amendment to section 4(2)(d) ensures that persons applying
for registration who fall into these two new categories must
provide evidence of past registration and past experience with
their application.
Clause 6 amends section 5 of the Principal Act, which deals with
qualifications for registration. The amendment will enable a
board to approve a course of study that provides qualification for
registration on one Division of a register, and to approve a
specified part of that same course of study to provide
qualification for another Division of the register.
2
In the past, the Nurses Board has approved a Bachelor of Nursing
as a course of study that qualifies an applicant for registration on
Division 1 of the register, and certain units of the Bachelor of
Nursing as a course of study that qualifies an applicant for
registration on Division 2 of the register. This amendment will
enable this practice to continue.
Clause 7 amends section 6 of the Principal Act, which deals with general
registration. By inserting two new subparagraphs, the
amendments expand eligibility for registration beyond the
qualification requirements in section 5 of the Principal Act.
Section 6(1)(a)(ii) enables the board to register persons who held
general registration under the Principal Act or under one of the
repealed registration Acts up to two years before they apply for
registration as a health practitioner of that kind.
There may be any number of reasons why a practitioner may fail
to renew their registration on time, and consequentially be
removed from the register. Such reasons may include pregnancy,
overseas travel or serious illness. The new section gives boards
the discretion to grant registration under section 6 to an applicant
who has previously failed to renew their registration and been
removed from the relevant register under section 18(7).
Section 170 of the Principal Act saves the existing registration
status of practitioners at the time the Principal Act commences,
but there is no express saving of the recognition of a registrant's
qualifications. This means that some practitioners may not
technically meet the criteria in section 6 because they hold
qualifications that are not contemporary and are no longer
approved by the relevant board for registration today.
Section 6(1)(a)(iii) recognizes that some practitioners who have
deemed general registration by way of section 170 of the
Principal Act may opt to apply for and be granted non-practising
registration. This amendment ensures that there is a pathway
through which those practitioners who opt to move from general
registration to non-practising registration and have not completed
an approved course of study can re-apply for and be granted
general registration if it is appropriate.
Section 6(2)(ab) specifies that, in the case of those applying for
registration based on either of these two new categories, the
board can refuse to register them if they are not competent to
practise or have not had sufficient recent practise.
3
Clause 8 amends section 7 of the Principal Act to enable boards to extend
a period of specific registration for up to 3 months.
As currently drafted, section 7(4) provides that at the end of a
period of specific registration, a practitioner must re-apply for a
further period of up to 12 months registration. The registration
periods are not always seamless and application delays can cause
gaps in registration status. The amendment to section 7(4)
recognizes that the insertion of new section 7(6) will give boards
the flexibility to extend the term of a specific registrant if
requested to do so in order to allow practitioners to continue
working until the board is able to consider and re-grant them
specific registration, if appropriate.
The new section 7(6) sets out the circumstances in which a board
may extend a person's specific registration. Those circumstances
are--
· the person has applied for another grant of specific
registration whilst their current grant is in force;
· it is not practicable to wait until the board can consider
the application;
· if the person has a workplace supervisor, the supervisor
has provided a report that indicates that the person's
work performance is satisfactory; and
· the registrar or other person authorized by the board is
satisfied that none of the grounds for refusing to grants
specific registration apply.
Clause 9 amends section 8(1) of the Principal Act, which relates to
registration as a student.
As currently drafted, section 8 empowers boards to register
persons as students to enable them to undertake or complete any
period of clinical training as part of a course of study required
under section 5(1)(a). This does not capture students of the direct
entry midwifery courses, as such courses are not approved for the
purposes of general registration, and persons who complete them
will only be entitled to specific registration as a midwife under
section 7(2) of the Principal Act, rather than general registration.
By amending section 8(1) to also refer to persons undertaking or
completing any period of clinical training as part of a course of
study for the purposes of registration under section 7(2), the
Nurses Board of Victoria is able to register all midwifery
students as students.
4
Clause 10 amends section 11 to enable non-practising registration to be
granted to practitioners eligible for either general or specific
registration.
As currently drafted, non-practising registration can only be
granted to a person eligible to be granted general registration
under section 6. Responsible boards may wish to grant non-
practising registration to a practitioner who is eligible for specific
registration under section 7, but not eligible for general
registration under section 6.
This amendment enables non-practising registration to be granted
to practitioners eligible for either general or specific registration.
Clause 11 relates to renewal of registration. The clause amends section
18(4) of the Principal Act to enable the Governor in Council, on
the recommendation of the Minister, to prescribe by regulation a
different period (other than 2 years) for operation of the provision
in relation to a responsible board.
As currently drafted, the provision requires an applicant for
renewal of registration to provide details of their training if they
have not provided regulated health services for a period
exceeding two years. This is to ensure competency of practice.
The amendment grants some flexibility in the time period that
applies under the renewal of registration provision, subject to the
Ministerial recommendation to the Governor in Council.
This clause also amends section 18(5) of the Principal Act to
restrict the ability to renew specific registration to only one
category. A practitioner can be registered under section 7(1)(f) to
practice within a specialty recognised by the board if the
applicant holds qualifications obtained outside Australia but that
do not qualify them for general registration as well as specialist
qualifications that are recognized by the board.
Other forms of specific registration (being sections 7(1) (a), (b),
(c), (d) and (e)) will remain not subject to renewal. This requires
the board to closely scrutinize each application from a specific
registrant for re-registration and ensure that they have met the
board's requirements, rather than dealing with such applications
administratively via renewal.
It also overcomes the problem that most forms of specific
registration are granted for limited periods, and it defeats the
purpose of this limitation if they are automatically eligible for the
additional 'grace period' of 3 months which is available to all
renewable registrations under section 18(7).
5
Clause 12 inserts a new section 27A into the Principal Act.
Section 27 is a general endorsement power enabling boards to
identify practitioners who are qualified in a particular way or
who have specialist skills. However, this endorsement power is
currently restricted to two boards only--the Dental Practice
Board and the Medical Practitioners Board.
New section 27A enables all responsible registration boards to
have the endorsement powers under section 27 and for the
application of the endorsement to be expanded so that it is more
general and appropriate for all the professions--for example, to
allow boards to endorse their registrants as qualified in a
"specialty area of practice", rather than "branches of health
practice".
The amendment gives the Minister the power to approve the
specialty areas of practice that a board is to have endorsement
powers in respect of, as well as the power to vary the list of
endorsement powers under this provision over time.
For example, where a particular endorsement function is no
longer necessary because the training required for endorsement
has penetrated the workforce sufficiently, and has been
incorporated into undergraduate courses that qualify graduates
for general registration it would no longer be considered
necessary to distinguish on the register between those with the
additional competencies and those without.
Clause 13 amends section 28 of the Principal Act, which makes provision
for a responsible board to endorse the registration of a
practitioner to allow them to use the title "acupuncturist" and
practise as an acupuncturist without committing an offence under
section 80(2).
Section 80(2) of the Principal Act makes it an offence to take or
use the title of "acupuncturist" or claim to be a registered
acupuncturist unless they are so registered.
Currently, section 28(3) lists the responsible boards that have
powers to grant such an endorsement. The list of responsible
boards includes seven boards (Medical, Nurses, Dental,
Optometrists, Osteopaths, Chiropractors, Physiotherapists), but
does not include the Podiatrists Registration Board. There are
increasing numbers of podiatrists training in and wishing to use
acupuncture as an adjunct to podiatry treatment. By amending
the Principal Act to add the Podiatrists Board to this list, the
board can ensure that podiatrists incorporating acupuncture into
their practice are properly trained and practise according to
accepted standards.
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Clause 14 amends section 30 of the Principal Act that requires responsible
boards to keep a register of all health practitioners to whom the
responsible board has granted registration.
The amendment replaces section 30(2)(d) and (h). Rather than it
being mandatory that a responsible board include in the register
details regarding the health practitioner's principal academic
qualifications, training completed and the address from which the
health practitioner provides regulated health services, the
amendment makes inclusion of these details on the register
discretionary.
Clause 15 amends section 34(4), which relates to provision of information.
Section 34(4) currently provides that a practitioner who has not
provided regulated health services for a period of more than two
years must provide the board with certain information.
This amendment is interconnected to the amendment made by
clause 11 of this Bill, which amends section 18(4) of the
Principal Act to enable the Minister to prescribe by regulation a
different period (other than 2 years) for operation of the provision
in relation to renewal of registration and maintenance of
competency.
The amendment to section 34(4) recognizes that the period of
two years may also be a longer period prescribed by regulation.
Clause 16 amends section 40(1) of the Principal Act, which deals with
suspension of registration. Section 40(1) requires a board to have
a view that a practitioner's ability to practice is actually affected
or professional performance is actually unsatisfactory before it
can immediately suspend the practitioner.
It is not always possible for the board to be sure that the criteria
for suspension have been met until their investigation is
complete. Accordingly, the amendment allows a board to
suspend a practitioner's registration where it has a belief on
reasonable grounds that the practitioner's ability to practice may
be affected or their professional performance may be
unsatisfactory or they may have engaged in unprofessional
behaviour.
Clause 17 amends section 49(a) of the Principal Act, which enables an
investigator to give written notice to a person requiring them to
do certain things during the course of an investigation.
As currently drafted, section 49(a) allows an investigator to
require a person to provide information or require them to attend
before an investigator to answer questions.
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The amendment will enable an investigator to require both of
these things, rather than them being alternatives.
Clause 18 amends section 50 of the Principal Act, which requires that
investigations are to be conducted expeditiously.
As currently drafted, the board is only required to keep notifiers
informed of the progress of an investigation, at three monthly
intervals. The amendment will require a board to also keep the
health practitioner or student who is under investigation informed
of the progress of the investigation.
Clause 19 amends a typographical error in section 60(1) of the Principal
Act, which deals with reviews of matters after a decision has
been made.
The amendment will correct section 60(1) so that instead of
reading "to review of a decision" it will read "to review a
decision".
Clause 20 substitutes a new section 69(3) into the Principal Act, which
refers to conduct of panel hearings.
As currently drafted, the offence of publishing or broadcasting
the identity of a notifier does not carry any penalty.
The amendment attaches a penalty of 60 penalty units for a
natural person and 300 penalty units for a body corporate to this
offence, which is consistent with other similar offences in the
Principal Act.
Clause 21 amends clause 80(9) of the Principal Act, which relates to claims
by persons as to registration.
As currently drafted, section 80(9) exempts registered students
from committing an offence under section 80(1)(b), (c) or (d).
These sections make it an offence to--
· take or use a title that could indicate that you are a
health practitioner in a regulated health profession
(80(1)(b));
· claim to be or hold yourself out as a registered
practitioner (80(1)(c));
· carry out any act which is required to be carried out by a
registered health practitioner (80(1)(d)).
8
The amendment to clause 80(9) relates to a further amendment
made in clause 22 of this Bill, which enables people to undertake
clinical training without being registered as a student.
The amendment to clause 80(9) enables persons who are not
registered students but who are undertaking clinical training in
accordance with the Principal Act to also be exempt from the
offences in sections 80(1)(b), (c) and (d).
Clause 22 amends section 82 of the Principal Act to clarify that the
prohibition on undertaking clinical training unless a registered
student only applies to those boards that currently register
students, and other boards as prescribed by regulation.
The boards that currently register students are the Dental Practice
Board of Victoria, the Medical Practitioners Board of Victoria
and the Pharmacy Board of Victoria. The amendment to
section 82 provides a system of student registration that allows
those three boards to continue registering students from the
existing commencement date for section 82 (1 September 2008).
It also allows other boards who have not been required to register
students in the past to not implement this system unless they are
prescribed by regulation.
Clause 23 inserts new section 99(3) into the Principal Act, relating to
restrictions on practising optometry.
Section 99(1) of the Principal Act restricts the practise of
optometry. This means that a person must not--
· employ methods for the measurement of the refractive
powers of vision;
· prescribe optical appliances to remedy vision defects;
· adapt lenses and prisms for the aid of the powers of
vision; or
· prescribe and fit contact lenses
unless registered as an optometrist.
As currently drafted, some of the work of registered medical
practitioners may be captured by the definition of optometry, and
they are not granted an exemption by section 99(2). This means
that registered medical practitioners may be committing an
offence if, as part of their normal practice, they employ methods
for the measurement of the refractive powers of vision.
9
New section 99(3) will rectify this by also exempting from the
offence of practising optometry when not registered as an
optometrist--
· registered medical practitioners;
· persons who are employed or engaged to assist a
registered optometrist to perform activities listed in
section 99(1); and
· persons who are employed or engaged to assist a
registered medical practitioner who is endorsed as a
specialist ophthalmologist to perform activities listed in
section 99(1).
Clause 24 amends section 133(1)(b) of the Principal Act, which deals with
delegation by the responsible board of certain powers and
functions. This section currently enables powers and functions to
be delegated to a member of the board, a person responsible for
maintaining the register or any other staff member of the board.
Similar to the amendments made in clauses 25 and 26, this
amendment inserts a new section 133(1)(ba), which enables the
responsible board to delegate powers and functions to a person
engaged by the board to provide services to the board. This
recognises that some boards may contract with firms to provide
them with administrative or accountancy assistance.
Section 132 of the Principal Act enables a responsible board to
employ persons to be responsible for maintaining the register and
any other persons that are necessary for the purposes of
administering the Principal Act.
Clause 25 amends section 142(1) of the Principal Act, which deals with the
ability to take proceedings in the name of the responsible board.
As currently drafted, this section allows the registrar or any other
person employed by the board under section 132 who is
authorised to do so to take proceedings under the Principal Act in
the name of the responsible board.
Similar to the amendments made in clauses 24 and 26, this
amendment inserts a new section 142(1) which enables the
responsible board to authorise the registrar or a person employed
by the board under section 132 or engaged by the board to
provide services to the board to take proceedings under the
Principal Act in the name of the responsible board.
10
Clause 26 amends section 143(1) of the Principal Act, which deals with
authorisation of persons to assist in enforcement. This section
enables the responsible board to authorise the registrar or any
other person employed by the responsible board under
section 132 to carry out the functions and powers listed in Part 9
relating to enforcement. These powers and functions include
special powers of entry to pharmacies, general powers of entry
with a warrant and power to seize documents and things.
Similar to the amendments made in clauses 24 and 25, this
amendment inserts a new section 143(1) which enables the
responsible board to authorise the registrar or a person employed
by the board under section 132 or engaged by the board to
provide services to the board to exercise the powers and
functions in Part 9 of the Principal Act.
Clause 27 amends the saving provision in section 168 that relates to existing
proceedings before a responsible board. Section 168 enables
investigations or inquiries into activities, professional conduct,
performance or capacity to practice that were commenced but not
completed under repealed legislation to continue and be
completed after the commencement of the Principal Act.
The amendment, which inserts a new section 168(1A), will
enable the lists of persons approved by the Governor in Council
to sit on informal and formal panel hearings under the repealed
legislation to be saved and available for use in those continued
investigations and hearings at the commencement of the Principal
Act.
Clause 28 inserts a new section 175A into the Principal Act. This is a new
savings provision relating to list members.
The new provisions ensures that when the Principal Act
commences, all persons who were on a list of persons approved
by the Governor in Council to be appointed to a hearing panel for
a formal or informal hearing are taken to be on the list of names
approved by the Governor in Council under Schedule 2 to the
Principal Act.
Schedule 2 to the Principal Act outlines the bodies that can be
established by a responsible board, including investigations
committees, investigation review panels and professional
standards panels. Schedule 2 stipulates that a board can appoint
persons to these committees if they are on the lost of names
approved by the Governor in Council on the recommendation of
the Minister.
11
Clause 29 amends new section 14A(1) of the Drugs Poisons and
Controlled Substances Act 1981 that is inserted by section 180
of the Principal Act. This section relates to Ministerial approval
of the scope of prescribing rights.
As currently drafted, the provision does not require the Minister
to publish the approval. The amendment makes it clear that the
Ministerial approval must be published in the Government
Gazette.
As currently drafted, applications for approval can be made by
responsible boards established under the Principal Act. Only the
Medical Radiation Technologists Board of Victoria is established
by the Principal Act, in section 165. All other boards are
continued by way of section 166. The amendment makes it clear
that applications can be made for approval by boards both
continued and established under the Principal Act.
Clause 30 amends Clause 1.1 of Schedule 2 to the Principal Act, which
enables a responsible board to establish an investigations
committee for the purpose of delegating powers and functions of
the board under Part 3 of the Principal Act to members of the
committee.
Part 3 of the Principal Act includes the powers of the board to
receive notifications, appoint investigators, conduct performance
assessments and health assessments, and conduct hearings and
make determinations following those hearings.
The amendment clarifies that only the powers and functions of
the board under Divisions 1 through to 4 and section 59 of Part 3
of the Principal Act are to be delegated to an investigations
committee. This limits the delegated powers of the investigations
committee to those powers in Part 3 of the Principal Act
exercisable up to but not including the commencement of a
hearing.
Clause 31 inserts a new paragraph into clause 9 of Schedule 3 to the
Principal Act. Schedule 3 to the Act contains the matters to be
taken into account by the board when the board is considering the
approval of a pharmacy. In particular clause 9 of Schedule 3 lists
a number of aspects of pharmacy practice for which adequate
arrangements must be in place.
The amendment inserts an additional requirement into clause 9 of
Schedule 3 that arrangements must be in place to ensure that
other persons present in the pharmacy cannot know the identity
of medicines being suppled to a client.
12
Clause 32 amends item 24.4 of Schedule 4 to the Principal Act. Schedule 4
makes consequential amendments to other Acts, and item 24 in
particular makes consequential amendments to the Health Act
1958.
As currently drafted, item 24.4 substitutes the words "Chinese
Medicine Registration Act 2000 or is authorised in accordance
with section 61(11) of that Act" with "Health Professions
Registration Act 2005 or has their registration endorsed under
that Act" in section 366C(2)(a) of the Health Act 1958.
The amendment will alter the replacement phrase to read "Health
Professions Registration Act 2005 or has their registration
endorsed under section 28 of that Act". This amendment
recognises that there are a number of different endorsement
provisions in the Principal Act, but only endorsement under
section 28 for acupuncture is relevant in this case.
Clause 33 inserts a new consequential amendment that was omitted from
the Principal Act into section 129(1)(a) and (2) of the Drugs,
Poisons and Controlled Substances Act 1981.
Clause 34 makes minor statutory amendments to the Disability Act 2006,
correcting typographical errors.
Clause 35 provides for the automatic repeal of this amending Act one year
after all of its provisions have commenced operation.
As suggested by the Scrutiny of Acts and Regulations
Committee, all amending Acts now contain an automatic repeal
provision that will save the time and expense of having to repeal
amending Acts in statute law revision Bills. The repeal does not
in any way affect the operation of the amendments made by this
Act (see section 15(1) of the Interpretation of Legislation Act
1984).
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