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NON-EMERGENCY PATIENT TRANSPORT BILL 2003

                                                             Non-Emergency Patient Transport Bill
Victorian Legislation and Parliamentary Documents




                                                                             Circulation Print

                                                                  EXPLANATORY MEMORANDUM


                                                                                   Clause Notes
                                                    Clause 1   sets out the purposes of the Bill. These are to establish a
                                                               licensing system for certain providers of non-emergency patient
                                                               transport services, to otherwise regulate providers, to establish a
                                                               system of accreditation for persons operating stand-by services at
                                                               public events, to amend the Ambulances Services Act 1986 and
                                                               the Transport Act 1983, and make other related provisions.

                                                    Clause 2   is the commencement provision. The Bill provides for the Act to
                                                               come into operation by proclamation, and for the automatic
                                                               commencement on February 2006 of any provisions that have not
                                                               commenced operation before that date.

                                                    Clause 3   defines terms used in the Bill.

                                                    Clause 4   provides that the Act does not apply to non-emergency patient
                                                               transport services provided by the Australian Defence forces, a
                                                               person in an emergency area who is acting under the
                                                               authorisation of the person who has declared the area to be an
                                                               emergency area and any other person the Governor in Council
                                                               has exempted from the operation of the Act. The clause also
                                                               empowers the Governor in Council to exempt persons from the
                                                               operation of this Act.

                                                    Clause 5   provides that it is an offence to operate non-emergency patient
                                                               transport services without a licence. This offence does not apply
                                                               to the services provided by an ambulance service, a public
                                                               hospital or denominational hospital and any other person the
                                                               Governor in Council has exempted from the operation of this
                                                               clause.

                                                    Clause 6   provides that it is an offence for a person to claim to be a licence
                                                               holder, hold themselves out as a being licence holder or hold
                                                               themselves out as having stand-by accreditation when they do not
                                                               hold a licence or have stand-by accreditation under the Act.



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                                                    551083                                        BILL LA CIRCULATION 29/8/2003

 


 

Clause 7 empowers the Secretary to grant an approval in principle to a person operating non-emergency patient transport services and to specify whether the approval in principle applies to all classes of Victorian Legislation and Parliamentary Documents non-emergency patient transport services or only those classes to which the Secretary has specified that it should apply. Clause 8 sets out the manner in which a person must apply to Secretary for an approval in principle. The clause states that the application must be in the prescribed form, accompanied by the prescribed fee and may require the person making the application to provide the Secretary with further information. For example, if the person who is applying is a body corporate, the body corporate may be required to provide information in relation to a director or officer of the body corporate. Clause 9 sets out the matters the Secretary must take into account when deciding whether or not to grant an approval in principle. The Secretary must not grant an approval in principles unless the Secretary is satisfied that the applicant is a fit and proper person. The Secretary may also consider whether the proposed vehicles that may be used for the transport are appropriate given the safety, health and well being of the people who will be transported. Clause 10 sets out a time limit for the Secretary for making a decision on the application for approval in principle, being 60 days after receiving the application, or within 28 days after the Secretary has requested that the applicant provide further information. Clause 11 sets out the matters that must be included in the certificate of approval in principle. These include the name of the person to whom the licence is issued, any condition to which the licence may be subject, the type of vehicle for which the licence is granted, the classes of people who can be transported, and the period for which the licence can continue. Clause 12 empowers the Secretary to vary a certificate of approval in principle, any condition to which it may be subject, or approve the transfer of the certificate to someone else. The clause also provides that if the Secretary has varied an approval in principle, a condition to which it may be subject, or transferred the certificate to another person, the person who has the certificate of approval must produce the certificate to the Secretary so that the details of the variation or transfer can be endorsed. Clause 13 empowers the Secretary to grant a non-emergency patient transport service licence for a particular class or classes of non-emergency patient transport service. 2

 


 

Clause 14 enables a person to apply for a non-emergency patient transport service licence and specifies the way in which a person may apply for the licence. Victorian Legislation and Parliamentary Documents Clause 15 sets out the matters the Secretary must take into account in deciding whether or not to grant a licence. The clause provides that the Secretary must not grant a licence to a person who is not a fit and proper person or the director of a body corporate who is not a fit and proper person. In addition the Secretary must consider in making the decision to grant the licence the suitability of the equipment and vehicles to be used in the service, the appropriateness of arrangements for managing staff, maintaining, evaluating and improving the quality of the services and whether or not the conditions to which the approval in principle were subject have been met. The section also states that the Secretary cannot refuse to grant a licence on any ground that is inconsistent with an approval in principle that is in force. Clause 16 provides for a time limit for the Secretary to make a decision on the application for grant of a licence, being 60 days after receiving the application or within 28 days after the Secretary has requested that the applicant provide further information. Clause 17 states that a non-emergency patient transport licence is subject to any prescribed conditions, or conditions that the Secretary may have imposed on a licence or a class of licence to which the licence belongs and that a licence holder must comply with those conditions. Clause 18 sets out the matters that a non-emergency patient transport licence must contain. These include the name and address of the holder of the licence, the types of services that can be provided under the licence, the types of vehicles that are covered by the licence, the conditions on the licence, the date on which the licence expires and any other prescribed matter. Clause 19 provides for the period of the licence, being two years from the issue or renewal of the licence unless the Secretary considers that the period be longer or shorter and the Secretary specifies this in the licence. Clause 20 empowers the Secretary to renew a licence once it has expired. Clause 21 provides for a holder of a licence to apply to the Secretary for the renewal of a licence. The clause states that the application must be in the prescribed form, accompanied by the prescribed fee, and accompanied by any further information the Secretary has requested. The clause also provides that where an application has 3

 


 

been made for renewal of a non-emergency transport licence, the licence continues until the Secretary makes a decision about renewal of the licence. Victorian Legislation and Parliamentary Documents Clause 22 sets out the matters the Secretary must consider when deciding whether or not to renew a licence. These include whether the holder (both a natural person and a body corporate) of a licence is a fit and proper person, whether the quality of the services provided for under the licence is appropriate, whether the service provided under licence complies with the Act and the Regulations or any other relevant law, and whether the conditions to which the licence is subject have been complied with. Clause 23 provides for a time limit for the Secretary to make a decision on the application for renewal of a licence, being 60 days after receiving the application or 28 days after the Secretary has requested that the applicant provide further information. Clause 24 empowers the Secretary to vary a licence and or conditions on a non-emergency patient transport service licence if the Secretary chooses to, or on request of the holder of a licence. Clause 25 provides that the Secretary must notify and consult with the licence holder prior to varying a condition on the licence or the licence itself, and enables the holder of a licence to make written submissions to the Secretary on the proposed conditions or variation to the licence to ensure that natural justice requirements are met. The clause also provides that the Secretary must have regard to the submissions and notify the applicant of the decision. Clause 26 allows the holder of a licence to apply to the Secretary for variation of a licence or a condition of the licence. The clause states that the application must be in the prescribed form, accompanied by the prescribed fee and the holder of the licence must give the Secretary any further information relating to the application that the Secretary requests. Clause 27 sets out the matters the Secretary must take into account in deciding whether or not to vary a licence. The Secretary is required to consider the suitability of the equipment and vehicles to be used in the service, the appropriateness of arrangements for managing staff, maintaining, evaluating and improving the quality of the services and whether or not the conditions to which the approval in principle were subject have been met. 4

 


 

Clause 28 sets a time limit for making a decision on an application for variation of a licence. The clause requires the Secretary to give notice in writing of the decision within 60 days after receiving Victorian Legislation and Parliamentary Documents the application or 28 days after the Secretary has requested the applicant provide further information. Clause 29 provides that the holder of a non-emergency patient transport service licence may surrender that licence to the Secretary for cancellation. If the licence is surrendered the Secretary must cancel the licence and the holder must give the licence certificate to the Secretary for cancellation. Clause 30 empowers the Secretary to suspend a non-emergency patient transport service licence and give notice that the Secretary proposes to cancel the licence if there are grounds to do so. The clause requires the Secretary to serve a notice of suspension on the holder of the licence and sets out the matters the notice of suspension must contain. The notice of suspension must state that the licence is suspended, that the Secretary is satisfied that there are grounds for cancellation of the licence, set out those grounds and set out the time frame within which written submissions on the proposed cancellation of the licence can be made. The clause also states that the suspension of a licence remains in force until the Secretary has made the decision whether or not to cancel the licence, and that the holder of a licence is considered not to be a holder of a licence for the period of the suspension. Clause 31 provides that the holder of a non-emergency patient transport service licence that is under suspension may make written submissions within 28 days of being notified of the proposal to suspend the licence. Clause 32 sets out the powers of the Secretary where a non-emergency patient transport service licence has been suspended and the matters the Secretary may consider in doing so. These include whether the licence holder (both a natural person and a body corporate) is a fit and proper person, whether the health and safety of people being transported is at risk, whether the licence holder has failed to operate the service in accordance with the Act or the Regulations. If the licence holder is also the holder of a stand-by service accreditation, whether they have failed to carry on the service in accordance with the Act, the Regulations or the accreditation. The Secretary is also required to consider the behaviour of the licence holder, the seriousness of any breaches of the Act and whether or not any such breaches could have been avoided by a reasonable exercise of care and any circumstances that may prevent the licence holder from being able to continue 5

 


 

to provide the service in accordance with this Act, the Regulations or the licence. The clause empowers the Secretary to immediately cancel the licence, or, in certain circumstances, to Victorian Legislation and Parliamentary Documents cancel the licence at a later date if, after having stated an intention to cancel the licence, appropriate arrangements have not been made to remedy any failure to comply with the Act or the Regulations. Clause 33 provides that the Secretary must give notice to the holder of the licence of the suspension of the licence. This must occur within 28 days after the expiry of the date for making submissions about the suspension of the licence and must set out the reasons for the decision to suspend the licence on the notice. Clause 34 provides that cancellation of a non-emergency patient transport licence comes into affect as soon as the licence holder has notice of the cancellation. Clause 35 empowers the Secretary to accredit a person, who is the holder of a non-emergency transport licence, to provide stand-by services at public events to participants in the event who may suffer unanticipated illness or injury during the event. Standby services are the services which do not involve transport on public roads, but only within the event. Only a licensed provider may apply for such accreditation. The clause states that a person may apply to the Secretary for stand-by service accreditation and that accreditation is subject to any conditions imposed by the Secretary or by the Regulations. An application for accreditation must be in the prescribed form and accompanied by the prescribed fee. The clause also states that an applicant is required to give the Secretary any further information the Secretary may have requested. Clause 36 sets a time limit for making a decision on an application for grant of accreditation. The clause requires the Secretary to give notice in writing of the decision within 60 days after receiving the application or 28 days after the Secretary has requested the applicant provide further information. Clause 37 provides that a stand-by service accreditation continues to be in force for as long as the non-emergency patient transport licence is in operation. The clause also states that accreditation may be renewed at the same time as the non-emergency transport licence is renewed. 6

 


 

Clause 38 empowers the Secretary to cancel the stand-by service accreditation if there are reasonable grounds to do so even if the non-emergency patient transport licence has not been cancelled. Victorian Legislation and Parliamentary Documents The clauses states that before cancelling the accreditation the Secretary must notify the holder of the accreditation of the proposal to cancel it and allow the holder the opportunity to make either written or oral submissions. In making a decision as to whether or not to cancel the accreditation the Secretary is required to consider any submissions made by the holder of the accreditation and must notify the holder of the cancellation. Clause 39 sets out the issues the Secretary may consider in deciding whether a person is a fit and proper person. These include whether the person has been found guilty of an offence against this Act or a similar Act, whether the person is of sound and stable financial reputation and background, whether the person is of good character having regard to their honesty and integrity, or whether the person was found guilty of an indictable offence, or an offence involving dishonesty, fraud, or drug trafficking within the last 10 years. The clause also states that these conditions do not limit the circumstances in which a person is found not to be a fit and proper for the purposes of this Act. Clause 40 provides that if the Secretary varies either the non-emergency patient transport licence or a condition of the licence, the holder of the licence must give the licence to the Secretary for variation so that the Secretary can endorse the variation. Clause 41 provides that if there is a change of directors, then the body corporate must give the Secretary the name and address of the person and the position which the person no longer holds within 30 days of the change. Clause 42 states that if the holder of a non-emergency patient transport licence dies, then the person who intends to be the legal personal representative of the holder may within 28 days apply to the Secretary to keep providing the service for one year after the death of the holder of the licence. The Secretary must grant this application unless the Secretary has reason to believe that it would not be appropriate. The grant of an application under this section operates as a variation of the licence for the period to which the application relates. Clause 43 allows in certain cases a person whose interests have been affected by a decision of the Secretary under this Act to apply to the Victorian Civil and Administrative Tribunal for review of the decision. 7

 


 

Clause 44 sets the time limit for making a review of the decision under clause 43 at 28 days. Victorian Legislation and Parliamentary Documents Clause 45 empowers the Secretary to appoint as authorised officers any employee of the Secretary if the employee is suitable for the position. Clause 46 requires the Secretary to issue an identity card to each authorised officer that contains a photograph of themselves. Clause 47 provides that authorised officers must produce their identity cards for inspection before exercising a power under this Act or regulations made under the Act, or if they are asked to do so when exercising a power under the Act or regulations. Clause 48 provides that holders of a non-emergency patient transport licence may be required to produce documents or vehicles they use for inspection to an authorised officer. The clause also provides that the holder of stand-by accreditation may be required to produce documents for inspection to an authorised officer. The clause also provides that an ambulance service, public hospital or denominational hospital that is the operator of a non-emergency patient transport service may be required to produce documents or the vehicle they use for inspection to an authorised officer. Clause 49 provides that a person cannot refuse to comply with a direction from an authorised officer under section 48 on the grounds that they might incriminate themselves. The clause also provides that any information obtained from a person in these circumstances cannot be used in evidence against the person except in proceedings relating to the giving of false information. However, the clause provides that any information that the person is required to keep by law, or that the operator of a non-emergency patient transport service or accredited stand-by service is required to keep by law and that was obtained without the direct assistance of the person is admissible in evidence against the person in criminal proceedings. Clause 50 provides that a person must not prevent an authorised officer from exercising their powers under the Act or regulations made under the Act without reasonable excuse. The clause also provides that a person must not knowingly make any false statements in an application to the Secretary under the Act or impersonate the Secretary or an authorised officer and provides a penalty for anyone who does so. 8

 


 

Clause 51 states that the Secretary, an authorised officer or a member of the police force may begin proceedings for an offence under the Act or regulations made under the Act. Victorian Legislation and Parliamentary Documents Clause 52 states that documents are served on a person if delivered personally to the person, left with an adult person at the premises where the person resides, fixed conspicuously to their place of residence or posted to the person. Clause 53 provides specifically for offences by bodies corporate. The clause states that if a body corporate breaches the Act or regulations made under the Act, then each director or officer of the body corporate is deemed to have breached the Act or regulations if the director of the body corporate knowingly authorised the contravention. Clause 54 provides that if in any proceedings for an offence against the Act or regulations made under the Act it is necessary to establish the state of mind of a body corporate in relation to particular behaviour it is enough to show that that behaviour was engaged in by an officer of the body corporate in the scope of his or her authority, or the officer or agent of the body corporate had that state of mind. Clause 55 provides that if an officer or agent of the body corporate engages in behaviour in the scope of his or her actual or apparent authority, the body corporate is also taken to have engaged in that behaviour for the purposes of a prosecution for an offence against the Act or regulations made under the Act unless the body corporate establishes that it took reasonable care to avoid the behaviour. Clause 56 empowers an authorised officer to serve an infringement notice on a person that they have reason to believe has committed an offence against the Act or regulations made under the Act. The clause also provides that an infringement notice can be served by delivering it personally to the person or by sending it by post to the person's last known place of residence. An authorised officer in this section is also deemed to be a member of the police force. Clause 57 prescribes the form for the infringement notices. The clause also states that if the amount of the infringement penalty is paid before the time specified in the notice, then the matter will not go before the Magistrates Court, unless the notice is withdrawn within 28 days after that date on which it was served. The person is entitled to disregard the notice and defend any proceedings in relation to the alleged offence in the Magistrates' Court. 9

 


 

Clause 58 allows late payment of an infringement penalty if the infringement notice has not been withdrawn and if a charge has not been filed or a letter been served under Part 2 Schedule 7 of Victorian Legislation and Parliamentary Documents the Magistrates Court Act 1989. Clause 59 states that a member of the police force or the Secretary may withdraw an infringement notice within 28 days after it was served through serving a withdrawal notice on the person. The clause also states that if the penalty sought in the infringement notice has been paid then the amount of the penalty paid must be refunded. The clause still enables proceedings for the offence for which the infringement notice has been served to be taken despite the withdrawal of the notice. Clause 60 states that if an infringement notice has not been withdrawn and the infringement penalty is paid as specified then the person on whom the notice was served has expiated the offence, no proceedings can be taken against them and no conviction can be recorded against that person for the offence. Clause 61 provides that an infringement penalty paid under this Part must be paid the same way as a fine paid under an order of a court. The clause provides that an infringement penalty must not be taken as an admission of guilt or liability, and that the payment does not in anyway affect any claim or proceeding. The clause also states that the payment of an infringement penalty must not be referred to in any report provided to a court for the purposes of deciding a sentence for any offence. Clause 62 states that a charge can be filed in relation to an offence for which there was an infringement notice served on the person if the penalty has not been paid within the specified time, or if the notice is withdrawn. Clause 63 provides that payment of the infringement penalty may be enforced under Part 2 Schedule 7 of the Magistrates Court Act 1989 if the infringement penalty has not been paid within the specified time, the notice of infringement has not be withdrawn and a charge has not been filed under clause 62. Clause 64 empowers the Governor in Council to make Regulations in relation to a number of matters including standards and requirements for the operation of non-emergency transport patient services and for services provided under a stand-by accreditation. The Regulations will apply to all providers of non-emergency patient Transport Services including those provided by public and denominated hospitals and including ambulance services. The standards include standards for safety, 10

 


 

cleanliness and infection control procedures, standards for the welfare of persons being transported, standards relating to staffing, the maintenance of vehicles and equipment, storage Victorian Legislation and Parliamentary Documents facilities, insurance, quality assurance and supervision, the provision and display of information, the use of communication devices and record keeping. The clause also enables the Governor in Council to make regulations for the different classes of non-emergency transport patient services and the people who can operate the different services, fees to be paid for application under the Act, and penalties for breaches of the Regulations. Clause 65 changes the heading of Part 3 of the Ambulance Services Act 1986 so that the heading refers to Chief General Manager not Secretary. Clause 66 changes section 10(7) of the Ambulance Services Act 1986 to ensure that a person must pay the fee for an emergency ambulance service whether or not they consented to the provision of the service. This applies, for example, where a person is unconscious at the commencement of the ambulance journey. Clause 67 inserts a new section 10A in the Ambulance Services Act 1986 to allow a person who is subject to section 141(2) of the Health Services Act 1988 to disclose relevant information to an emergency ambulance service provider about a person who has used the emergency ambulance service and has not provided such information. Clause 68 amends section 138(b) the Transport Act 1983 so that the reference to commercial passenger vehicle licences in the section relating to ambulance services includes a reference to the provision of non-emergency transport services within the meaning of the Non-emergency Patient Transport Act 2003. 11

 


 

 


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