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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Health Practitioner Regulation National Law
and Other Legislation Amendment Bill 2017
Explanatory Notes
Short title
The short title of the Bill is the Health Practitioner Regulation National Law and Other
Legislation Amendment Bill 2017.
Policy objectives and the reasons for them
Summary of Bill
The Bill amends the Health Practitioner Regulation National Law (National Law) as agreed
by the Council of Australian Governments Health Council, sitting as the Australian Health
Workforce Ministerial Council (COAG Health Council), on 29 May 2017.
The Bill includes the following key reforms to the National Law:
• national regulation of paramedics, including the establishment of a Paramedicine Board
of Australia
• enabling the COAG Health Council to make changes to the structure of National Boards
by regulation following consultation
• recognition of nursing and midwifery as two separate professions, rather than a single
profession, with the professions continuing to be regulated by the Nursing and Midwifery
Board of Australia
• improvements to the complaints (notifications) management, disciplinary and
enforcement powers of National Boards to strengthen public protection and ensure
fairness for complainants (notifiers) and practitioners, and
• technical amendments to improve the efficiency and effectiveness of the National Law.
The Bill also includes amendments to the Health Ombudsman Act 2013 (Qld) (Health
Ombudsman Act) and other Queensland legislation. These amendments are principally
consequential amendments, as a result of changes in the National Law. However, a number of
the amendments to the Health Ombudsman Act were requested by the Health Ombudsman as
part of the Inquiry into the performance of the Queensland Health Ombudsman's functions
pursuant to section 179 of the Health Ombudsman Act 2013 by the Health, Communities,
Disability Services and Domestic and Family Violence Prevention Committee.
Background to the Health Practitioner Regulation National Law
The Intergovernmental Agreement for a National Registration and Accreditation Scheme for
the Health Professions (Intergovernmental Agreement) was agreed by the Council of
Australian Governments (COAG) in March 2008. The Intergovernmental Agreement
provides the basis for the establishment of the National Registration and Accreditation
Scheme for the Health Professions (National Scheme).
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
The National Scheme was implemented through the adoption of the National Law by all
states and territories in 2009 and 2010. It commenced on 1 July 2010, initially regulating ten
health professions (with commencement in Western Australia on 18 October 2010). Four
more health professions joined the scheme from 1 July 2012.
Queensland is the host jurisdiction for the National Law under the Health Practitioner
Regulation National Law Act 2009 (Qld) and the National Law is set out in the schedule to
that Act.. Under the Intergovernmental Agreement, proposed amendments to the National
Law must be approved by the COAG Health Council.
The National Law currently regulates 14 health professions: Aboriginal and Torres Strait
Islander health practice; Chinese medicine, chiropractic; dental; medical; medical radiation
practice; nursing and midwifery; occupational therapy; optometry; osteopathy; pharmacy;
physiotherapy; podiatry; and psychology.
The National Law established 14 National Boards to regulate the 14 nationally registered
health professions. It also established the Australian Health Practitioner Regulation Agency
(AHPRA) to provide regulatory services for the National Boards and advice and assistance to
the COAG Health Council.
The National Scheme and National Law ensure that only health practitioners who are suitably
trained and qualified to practise in a competent and ethical manner are registered. It allows
health practitioners to have a single registration recognised anywhere in Australia and
provides mechanisms for detecting and addressing practitioner health, conduct or
performance issues. The scheme is a 'protection of title' model, with powers to prosecute
persons who falsely hold out to be registered or use a restricted professional title. It also
enables the continuous development of a flexible, responsive and sustainable health
workforce and innovation in the education of health practitioners and service delivery by
health practitioners.
Some local modifications apply in certain States and Territories. In particular, New South
Wales' and Queensland's complaints handling and disciplinary functions operate under "co-
regulatory" arrangements which are recognised by the National Law.
Terminology referring to the Ministerial Council
The National Law defines 'Ministerial Council' as the Australian Health Workforce
Ministerial Council comprising Ministers of the governments of the participating jurisdictions
and the Commonwealth with portfolio responsibility for health. The structure and names of
Ministerial Councils are revised by COAG from time to time. The 'Australian Health
Workforce Ministerial Council' no longer exists as a separate Ministerial Council and its
work has been included in the ambit of the COAG Health Council.
The Bill amends the definition of 'Ministerial Council' to mean the COAG Health Council or
a successor of the COAG Health Council (regardless of the name of the successor body)
constituted by Ministers of the governments of the participating jurisdictions and the
Commonwealth with portfolio responsibility for health (see clause 4(3), amendment of
section 5). For simplicity in the explanatory notes, the Ministerial Council is referred to as the
'COAG Health Council'. However, it should be noted that when making decisions under the
National Law, the COAG Health Council sits as the Australian Health Workforce Ministerial
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Council. If the amendments in the Bill are passed, it will no longer be necessary to refer to
the Australian Health Workforce Ministerial Council.
Independent review of the National Scheme
In 2014, the COAG Health Council appointed Mr Kim Snowball, the former Director-
General of the Department of Health in Western Australia, to conduct an independent review
of the National Scheme. The independent review involved an extensive consultation process
which included consultation forums in each capital city and more than 230 written
submissions were received.
The independent review acknowledged the significant achievements made by the National
Scheme and National Law, including:
• ensuring that the community can have confidence that health practitioners providing
treatment and care in Australia meet a national standard based on safe practice
• consolidating 74 Acts of Parliament and 97 separate health profession boards across
eight States and Territories into a single National Scheme
• increasing the mobility of health practitioners working in Australia by removing the
necessity for them to be separately registered in each jurisdiction
• improving protection to the health system by ensuring that any health practitioner who
has been found to have committed misconduct can no longer practise undetected in
another jurisdiction, and
• enabling significant improvements to health workforce information and planning due to
the availability of accurate data on each of the 14 professions operating within it.
COAG Health Council's response to the independent review
The final report of the independent review made 33 recommendations. The COAG Health
Council announced its response to the report on 7 August 2015 and accepted nine
recommendations, accepted 11 recommendations in principle, did not accept six
recommendations and deferred decisions on seven recommendations pending further advice.
The COAG Health Council's full response is available at:
http://www.coaghealthcouncil.gov.au/Portals/0/The%20Independent%20Review%20of%20t
he%20National%20Registration%20and%20Accreditation%20Scheme%20for%20Health%2
0Professions.pdf
The implementation of the COAG Health Council's response to the independent review is
occurring in two stages. The first stage consists of the amendments to the National Law being
progressed in this Bill.
The amendments in the Bill arising from the COAG Health Council's response to the
independent review include:
• enabling the COAG Health Council to make changes to the structure of National Boards
by regulation following consultation
• recognition of nursing and midwifery as two separate professions, rather than a single
profession, with the professions continuing to be regulated by the Nursing and Midwifery
Board of Australia
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
• improvements to the complaints (notifications) management, disciplinary and
enforcement powers of National Boards to strengthen public protection and ensure
fairness for complainants (notifiers) and practitioners, and
• technical amendments to improve the efficiency and effectiveness of the National Law.
The second stage of reforms resulting from the independent review requires extensive
stakeholder consultation to be undertaken, with consultation expected to commence in 2017.
National regulation of paramedics
On 6 November 2015, the COAG Health Council announced its intention for paramedics to
be regulated as part of the National Scheme. On 7 October 2016, the COAG Health Council
agreed to proceed with inclusion of paramedics in the National Scheme and noted that
paramedics would be registered in all jurisdictions.
The regulation of paramedics as part of the National Scheme is expected to:
• protect the public by:
- establishing minimum qualifications and other requirements for the registration of a
person as a paramedic
- providing powers to deal effectively with paramedics who have an impairment that
affects their practice, are poorly performing or who engage in unprofessional conduct
or professional misconduct, and
- preventing persons who are not qualified, registered and fit to practise from using the
title 'paramedic' or holding themselves out to be registered if they are not
• facilitate the provision of high quality education and training in paramedicine through the
accreditation of training programs for registration purposes
• improve transparency and accountability in the delivery of public and private sector
paramedicine services, and
• provide a suitable regulatory framework for the public and private sector paramedic
workforce.
Background to the Health Ombudsman Act 2013 (Qld) and relationship with National Law
The Health Ombudsman Act commenced on 1 July 2014 and is the single point of entry for
all health service complaints in Queensland. The Health Ombudsman deals with complaints
relating to health practitioners registered under the National Law, as well as health
practitioners that are not registered.
Under the Queensland co-regulatory model, the notifications management and disciplinary
and enforcement process for registered health practitioners may be dealt with under either the
National Law or the Health Ombudsman Act, depending on the nature and circumstances of
the case.
Under the Health Ombudsman Act, the Health Ombudsman deals with more serious matters
about registered health practitioners. This includes where a ground exists for the suspension
or cancellation of the practitioner's registration or where a practitioner has behaved in a way
that constitutes professional misconduct (see section 91). Professional misconduct is defined
in section 5 of the National Law and includes unprofessional conduct substantially below the
standard expected of a registered health practitioner or conduct inconsistent with the
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
practitioner being a fit and proper person to hold registration in the profession. For other
matters involving registered health practitioners, the Health Ombudsman may refer those
matters to AHPRA and the National Boards (see section 91).
The Health Ombudsman is the primary body that deals with health service complaints for
unregistered health practitioners. Unregistered health practitioners include dieticians,
homeopaths, naturopaths, nutritionists, massage therapists, social workers and speech
pathologists.
Amendments to Health Ombudsman Act and other Queensland legislation
The Bill makes consequential amendments to the Health Ombudsman Act and other
Queensland legislation as a result of changes to the National Law.
As outlined above, under Queensland's co-regulatory model, the notifications management
and disciplinary and enforcement process for registered health practitioners may be dealt with
under either the National Law or the Health Ombudsman Act. To ensure as much consistency
as possible for registered health practitioners, where equivalent or similar provisions exist in
the Health Ombudsman Act and the National Law, the Bill includes equivalent or similar
amendments to the Health Ombudsman Act.
To maintain consistency between the approach for registered health practitioners and
unregistered health practitioners, the Bill also includes similar amendments to the Health
Ombudsman Act for unregistered health practitioners. This will ensure that registered health
practitioners and unregistered health practitioners can be dealt with in an equivalent way on
the same grounds. For example, action will be able to be taken on public interest grounds
against both registered health practitioners and unregistered health practitioners.
In addition to the consequential amendments, the Health Ombudsman requested amendments
to the Health Ombudsman Act as part of the Inquiry into the performance of the Queensland
Health Ombudsman's functions pursuant to section 179 of the Health Ombudsman Act 2013
by the Health, Communities, Disability Services and Domestic and Family Violence
Prevention Committee.
As part of the Committee's inquiry, the Health Ombudsman submitted a list of suggested
amendments to the Health Ombudsman Act. The Committee Report recommended that the
Queensland Government consider introducing the amendments suggested by the Health
Ombudsman (see recommendation 4). A number of the Health Ombudsman's suggested
amendments relate to, or complement, the consequential amendments to the Health
Ombudsman Act being progressed in the Bill.
The Queensland Government tabled its response to the Committee's report on 16 March
2017, which included adoption of recommendation 4. The majority of the amendments
requested by the Health Ombudsman under recommendation 4 require further consideration
in the context of recommendations 1 and 2 or require detailed consideration or significant
consultation with stakeholders. However, a small number of those amendments were
identified as being suitable to progress immediately and are included in this Bill.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Achievement of policy objectives
National regulation of paramedics
The Bill establishes the Paramedicine Board of Australia (Paramedicine Board), which will
be responsible for regulating paramedics with administrative and other support provided by
AHPRA (see clause 52, new section 307). The Bill also amends the National Law to require
people who use the title 'paramedic' to be registered (see clause 15, amendment to section
113).
Paramedics will be subject to the same regulatory arrangements as the other health
professions regulated under the National Law, including registration processes, accreditation
of training programs, national standards, and procedures for managing the health,
performance and conduct of registered paramedics (with complaints handling and
disciplinary functions undertaken in Queensland and New South Wales under their co-
regulatory models). To achieve this, the definition of 'health profession' in the National Law
is amended to add 'paramedicine' as a profession regulated by the National Law (see clause
4(7), amendment to section 5).
Registration fees for paramedics
The National Scheme is self-funded from fees paid by registrants. Registration fees are set by
the National Board and AHPRA and vary between professions based on the cost of regulating
each profession under the National Law. The fees vary depending on factors such as the size
of the profession, the risks associated with practice, the level and complexity of complaints
and notifications and the capital reserves needed to ensure sustainability of the operations of
the National Board. The National Law requires that registration fees are reasonable having
regard to the efficient and effective operation of the National Scheme (see section 3(3)(b) of
the National Law).
Under section 26 of the National Law, AHPRA and the National Boards must enter into a
'health profession agreement' that makes provision for:
• the National Board's annual budget
• fees payable by health practitioners, and
• the services to be provided to the National Board by AHPRA to enable the National
Board to carry out its functions.
Copies of the 'health profession agreements' between AHPRA and the current National
Boards are available at:
http://www.ahpra.gov.au/Publications/Health-profession-agreements.aspx
As occurs with other professions, AHPRA and the Paramedicine Board will enter into a
'health profession agreement' after the establishment and appointment of the Board (subject
to passage of the Bill). As outlined above, registration fees for paramedics will be decided as
part of the health profession agreement.
Registration fees for each profession are published on each of the National Board's websites.
In 2016/17, National Boards and AHPRA agreed the following general registration fees for
their respective professions:
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Health profession Registration Fee
Aboriginal and Torres Strait $120
Island Health Practice
Chinese Medicine $579
Chiropractic $566
Dental:
- Dentists/Specialists $628
- Dental prosthetists $558
- Hygienists/Therapists $310
Medical $724
Medical Radiation $180
Nursing and Midwifer y $150
Occupational Therapy $110
Optometry $300
Osteopathy $376
Pharmacy $328
Physiotherapy $110
Podiatry $378
Psychology $449
It is important to note that registration fees for paramedics will be set independently of the
fees for other professions, by agreement between the Paramedicine Board and AHPRA.
In addition to annual registration fees, paramedics will also be required to pay a one-off
application fee for first time registrants. This fee covers the costs associated with processing
an application and assessing a person's eligibility and suitability for registration. This
includes verification of the practitioner's identity and assessment and verification of
qualifications, training and/or expertise as a paramedic, and covers the cost of a criminal
history check in Australia, and confirmation of registration with international regulatory
bodies as needed.
Registration fees are generally paid by the registrant and as such can usually be claimed as an
employment expense for taxation purposes.
Role of Paramedicine Board until 'participation day'
On 8 April 2016, the COAG Health Council approved a project plan for implementation of
national registration for paramedics, with registration expected to commence in the second
half of 2018.
The Bill defines the 'participation day' as a day prescribed by regulation after which an
individual may be registered in paramedicine under the National Law (see clause 52, new
section 306). In practice, the 'participation day' is planned to be the date on which
registration for paramedics will commence or 'go live'. The Bill sets out the functions of the
Paramedicine Board until the 'participation day' (see clause 52, new section 308).
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Subject to passage of the Bill, the members of the Paramedicine Board will be appointed as
soon as possible to enable the Board to work with AHPRA to prepare the profession for
national regulation. During this period, the Board must develop mandated registration
standards to recommend to the COAG Health Council for approval (see sections 12 and 38 of
the National Law and clause 52, new section 308(3)(a)). The registration standards set
requirements for professional indemnity insurance arrangements, criminal history of
applicants, continuing professional development, English language skills and recency of
practice. It is expected that other registration standards and codes may also need to be
developed, for example, to support the transition of the existing paramedic workforce into the
scheme and set requirements for professional conduct.
In order to ensure a smooth transition, the Bill gives the Board the necessary functions and
powers during the period leading up to the 'participation day', including developing and
consulting on draft registration standards, codes and guidelines, recognising qualifications for
registration, and considering national accreditation arrangements for the profession (see
clause 52, new sections 308 to 311).
Qualifications for registration as a paramedic
Under the National Law and Bill, there will be three main pathways to be 'qualified' for
general registration as a paramedic, as follows:
• Pathway 1 - 'Approved qualification' under section 53 of the National Law - an
individual holds an 'approved qualification' or otherwise qualifies for registration under
section 53(b), (c) or (d), such as holding a qualification that is substantially equivalent to
or based on similar competencies to an approved qualification (more details are provided
below about the procedures for the Board approving programs of study leading to an
'approved qualification' under the heading Accreditation arrangements for paramedicine
and 'approved programs of study').
• Pathway 2 - grand-parenting arrangements under clause 52, new section 311 - an
individual meets one of the criteria outlined under this 'grand-parenting' clause, which
will apply for three years from the 'participation day'.
• Pathway 3 - holds a Diploma of Paramedical Science issued by the Ambulance Service
of New South Wales under clause 52, new section 312 - as agreed by the COAG Health
Council on 7 October 2016, the Bill recognises that a person who holds a Diploma of
Paramedical Science, Diploma of Paramedical Science (Ambulance), Advanced Diploma
of Paramedical Science (Ambulance), Diploma in Paramedical Science (Pre-Hospital
Care) or Advanced Diploma Paramedical Sciences (Pre-Hospital Care) issued by the
Ambulance Service of NSW will be qualified for general registration in paramedicine
under the National Law.
All applicants for registration in paramedicine will be required to meet the registration
standards to be developed by the Paramedicine Board, regardless of which pathway they use
to seek registration.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Accreditation arrangements for paramedicine and 'approved programs of study'
The Paramedicine Board may do anything under part 6 of the National Law in relation to
accreditation for paramedicine (see clause 52, new section 308(3)(d)). Under section 43 of
part 6 of the National Law, a National Board must decide whether an accreditation function is
to be exercised by an external accreditation entity or a committee established by the Board
(which is defined in section 5 of the National Law as the 'accreditation authority'). The
remainder of part 6 sets out the processes associated with accreditation, including:
• development of accreditation standards (section 46)
• approval of accreditation standards by a National Board (section 47)
• accreditation of programs of study by an accreditation authority in accordance with
approved accreditation standards (section 48), and
• approval of accredited programs of study by a National Board based on a report provided
by an accreditation authority (section 49).
A 'program of study' approved by a National Board under section 49(1) is defined as an
'approved program of study' under section 5 of the National Law. An 'approved
qualification' is defined in section 5 as a qualification obtained by completing an 'approved
program of study'. As outlined above, an individual who holds an 'approved qualification' is
qualified for general registration in a health profession under section 53(a).
It is expected that one of the first matters to be decided by the Paramedicine Board, once it is
established, will be the appointment of an accreditation authority under section 43. The
accreditation authority will be tasked with developing accreditation standards and following
the accreditation process in part 6, as set out above. However, based on experience with the
entry of four additional health professions to the National Scheme in 2012 (Aboriginal and
Torres Strait Islander health practice, Chinese medicine, medical radiation practice and
occupational therapy), it is expected that the accreditation process provided for in part 6 will
take approximately two to three years to be completed. This means it will not be possible to
complete the accreditation process before the 'participation day'.
In order to ensure that the Paramedicine Board can approve programs of study before the full
accreditation process has been completed, a transitional provision has been included in the
Bill (see clause 52, new section 310). This transitional provision allows the Paramedicine
Board to approve, or refuse to approve, programs of study as providing a qualification for
registration in paramedicine, based on the programs of study accredited by the Council of
Ambulance Authorities Inc (CAA) prior to the commencement of the Bill, or between
commencement and the 'participation day'. The CAA is the current accrediting body for
programs of study for paramedicine and its membership includes the ambulance authorities of
each State and Territory.
A 'program of study' approved by the Paramedicine Board under new section 310 is taken to
be an 'approved program of study' for the National Law (see section 310(4)). Under the
definition of 'approved qualification', such a qualification is obtained by completing an
'approved program of study'. This means that a person who completes or has completed a
program of study approved by the Paramedicine Board under section 310 will be qualified for
general registration under section 53(a), because they hold an 'approved qualification'.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Transitional provisions for national regulation of paramedics
The Bill includes other transitional provisions for registration in paramedicine, to ensure the
smooth transition of the profession to registration. These provisions were recommended by
AHPRA, based on their experience in registering the four additional health professions under
the National Scheme in 2012, and were endorsed by all States and Territories (see clause 52,
new sections 314 to 317).
Power for COAG Health Council to make changes to the structure of National Boards by
regulation following consultation
The structure of National Boards for the health professions regulated under the National Law
is currently fixed, with each registered profession having its own National Board specified in
section 31 of the National Law. The independent review found that five health professions
accounted for 87.5 per cent of registrants and 95.5 per cent of complaints and notifications in
2012-13 (these professions were dental, medical, nursing/midwifery, pharmacy and
psychology). The remaining nine professions accounted for 12.5 per cent of registrants and
less than 5 per cent of complaints and notifications (referred to in the report as the "low
regulatory workload professions").
The independent review recommended consolidating the nine low regulatory workload
National Boards into a single National Board. On 8 April 2016, the COAG Health Council
decided not to accept this recommendation. It decided that efficiencies can and should be
achieved by streamlining existing committee and operational arrangements under all the
National Boards. However, the COAG Health Council did not rule out the possibility that
changes may be required in the future to ensure the governance arrangements for the National
Scheme continue to be fit for purpose. Therefore, the COAG Health Council agreed to amend
the National Law so that changes to the governance and membership of National Boards
could be made by regulation.
To achieve this flexibility, the Bill requires that National Boards for each health profession be
provided for in regulations, rather than specified in the National Law (see clause 5,
replacement of section 31). Under section 245 of the National Law, regulations are made or
amended by the COAG Health Council. The new section 31 in the Bill also states that the
regulations may:
• continue existing National Boards
• establish a Board for a health profession or two or more health professions, or
• dissolve a Board if another Board is established for that profession.
These powers provide flexibility for the COAG Health Council to consolidate or separate
National Boards as needed, to effectively manage changes in the governance, membership,
cost effectiveness and efficiency of the Boards.
There are no current proposals to change the structure of National Boards. New section 31(4)
provides that before a regulation is made to consolidate or separate National Boards, the
Ministers comprising the COAG Health Council must undertake public consultation on the
proposed regulation.
The National Law specifies the professions regulated under the National Scheme in the
definition of 'health profession' in section 5. This means any change to add a profession to,
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
or remove a profession from, the National Scheme would require the agreement of the COAG
Health Council and amendment to the National Law. Appropriate consultation would also
need to be undertaken prior to this type of change occurring.
Recognition of nursing and midwifery as two separate professions
The significant majority of midwives in Australia hold dual registration as nurses and
midwives (approximately 30,000). However, there are approximately 3,000 registered
midwives who are qualified to practice as midwives only. In recent years, direct entry
training programs for midwifery, and the introduction of alternative maternity choices for
women, mainly in metropolitan areas, have seen a growth in the proportion of registered
midwives who do not hold concurrent registration as a nurse.
The independent review recommended that the National Law be amended to reflect that
nursing and midwifery are two professions regulated by one National Board. The Bill amends
the National Law to recognise that nursing and midwifery are separate professions (see clause
4(6), which amends the definition of 'health profession' in section 5, and clause 15, which
amends section 113). However, these professions will continue to be regulated by the
Nursing and Midwifery Board of Australia. Separate registers already exist for nurses and
midwives and these registers will continue to be maintained.
The recognition of nursing and midwifery as separate professions in the National Law does
not affect scope of practice issues for the professions and the respective roles of nurses and
midwives remain unchanged.
Improvements in complaints (notifications) management, disciplinary and enforcement
powers of National Boards
Under the National Law, complaints about registered health practitioners are referred to as
'notifications' (see sections 140 to 147 of the National Law).
The National Law contains provisions dealing with the notifications process and disciplinary
and enforcement powers to address practitioner health, performance and conduct issues. The
amendments in the Bill will improve notifications management and disciplinary and
enforcement powers of National Boards to strengthen public protection and ensure fairness
for complainants (also known as 'notifiers') and practitioners. Details of the improvements
are outlined under each of the headings below.
A number of these amendments arose out of the independent review of the National Scheme.
A consultation paper released by the independent review in August 2014 sought feedback on
a series of legislative amendments to the National Law endorsed by the Australian Health
Workforce Ministerial Council (whose work is now within the responsibility of the COAG
Health Council) in 2011, and other amendments proposed by the National Boards and
AHPRA. These amendments were outlined in appendix 11 of the final report of the
independent review, which is available here:
http://www.coaghealthcouncil.gov.au/Projects/Independent-Review-of-NRAS-
finalised/ArtMID/524/ArticleID/68/The-Independent-Review-of-the-National-Registration-
and-Accreditation-Scheme-for-health-professionals
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Recommendation 32 of the independent review recommended that the National Law be
amended to reflect provisions endorsed by the Australian Health Workforce Ministerial
Council in 2011. Recommendation 33 of the independent review recommended that the
amendments proposed by the National Boards and AHPRA be further considered by the
formation of a small working group with representatives from AHPRA and jurisdictions with
suitable legal and policy expertise to review the proposed amendments to the National Law
and make recommendations to the Ministerial Council. Both of these recommendations were
accepted by the COAG Health Council in its response to the final report of the independent
review.
Where relevant, references to appendix 11 of the final report of the independent review are
included below.
It should be noted that most of the changes outlined below will not apply to New South
Wales practitioners as New South Wales is a co-regulatory jurisdiction which does not
participate in the health, performance and conduct process of part 8 of the National Law. In
New South Wales, the health professional councils work with the Health Care Complaints
Commission to assess and manage concerns about practitioners in New South Wales.
In Queensland, concerns about practitioners are referred to the Office of the Health
Ombudsman, as the single point of entry for complaints and notifications. Depending on the
nature of the complaint or notification, it may be dealt with either under the Health
Ombudsman Act or part 8 of the National Law.
National Board may ask registered health practitioner for 'practice information'
Section 132 of the National Law currently allows a National Board to ask a registered health
practitioner to inform the Board if the practitioner is employed by another entity and the
employer's details. Section 206 requires a National Board to inform a practitioner's employer
about health, conduct or performance action being taken against the practitioner. The term
'employer' has been interpreted narrowly to only mean those in strict 'employer-employee'
relationships.
This issue was identified by AHPRA and the National Boards and referred to in appendix 11
of the report of the independent review, as follows: "s.206 requires that notice of a decision to
take action against a registered health practitioner is communicated to the practitioner's
employer. This definition might be expanded to require notice to all places of practice -
making it clear that s.206 applies equally to contractual arrangements."
The Bill replaces section 132 of the National Law so that it applies to a broad range of
different practice arrangements under which a health practitioner may be engaged, including
where the practitioner is an employee, contractor, volunteer, partner in a partnership, where a
practitioner is a member of a practice involving a 'service company' arrangement, the
practitioner is self-employed or working in an honorary capacity (see clause 20, replacement
section 132). The changes will mean that no matter what type of arrangements are in place
for the engagement of a practitioner, the practitioner must provide details of the arrangements
under which they are engaged and practising, if asked to do so by a National Board. The Bill
refers to this as a requirement to provide 'practice information'. 'Practice information' is
defined in replacement section 132(4).
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
The Bill also amends section 206 of the National Law to ensure that where health, conduct or
performance action is being taken against a health practitioner, a National Board is able to
inform all places at which the person practices (see clause 39).
The National Boards and AHPRA will develop guidelines to assist practitioners about
'practice information' to be provided to the Boards. The National Boards are empowered to
make guidelines under section 39 of the National Law and the Bill includes a new example
stating that a National Board may develop guidelines about 'practice information' to be
provided under section 132 (see clause 8, amendments to section 39).
The guidelines will contain practical information about how the concept of 'practice
information' in the National Law applies to common employment, contracting and
volunteering arrangements. As with all guidelines developed by National Boards under the
National Law, the Board must ensure there is wide-ranging consultation about their content
(see section 40 of the National Law) and stakeholders will be consulted during their
development.
Grounds for taking 'immediate action' under the National Law
The grounds on which a National Board may take 'immediate action' against a registered
health practitioner under section 156(1)(a) of the National Law require that a National Board
must reasonably believe that the practitioner's conduct, performance or health poses a serious
risk to persons and it is necessary to take immediate action to protect public health or safety.
'Immediate action' is defined in section 155 of the National Law and generally consists of the
suspension of a health practitioner's registration or the imposition of a condition on the
practitioner's registration.
The threshold for immediate action in its current form in section 156 may constrain a
National Board from taking swift action where it is warranted to protect public health, public
safety or the public interest. For example, if a practitioner has been charged with a serious
crime, and the relationship between the alleged crime and the practitioner's practice is not yet
well established, the 'public interest' may require a National Board to constrain the
practitioner's practice until the criminal matter is resolved, both for the protection of the
public and for public confidence in the health profession.
The Bill broadens the grounds on which a National Board may take immediate action to
enable immediate action to be taken by a National Board if it reasonably believes the
immediate action is in the public interest (see clause 24, amendment to section 156). The
National Law as it applies in New South Wales contains a similar 'public interest' test for
immediate action (see section 150 of the Health Practitioner Regulation National Law
(NSW)).
The Board will always seek to respond in a way that is proportionate to the risk posed.
A decision by a National Board to impose a condition on a person's registration or to suspend
registration is subject to a 'show cause' process (see section 157 of the National Law). As
part of the show cause process, the National Board must have regard to any submissions
made by a registered health practitioner in deciding whether to take immediate action (see
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
section 157(3)). The National Board's decision is also subject to appeal to the appropriate
responsible tribunal (see section 199(1)(e) and (h) of the National Law).
Scope of application of prohibition orders and offences for breach of a prohibition order
Under section 196(4)(b) of the National Law, if a responsible tribunal decides to cancel a
person's registration under the National Law or a person does not hold registration under the
National Law, the tribunal may also decide to prohibit the person from "using a specified
title" or "providing a specified health service". This is commonly referred to as a 'prohibition
order'. The cancellation of registration and making of a prohibition order only occur in the
most serious cases, usually where practitioners have engaged in serious misconduct, which
may include but is not limited to, sexual boundary violations, criminal offences or
professional incompetence resulting in serious harm or death of a patient.
The specific nature of the wording of section 196(4)(b) has caused difficulties in some cases,
particularly where a person is not a fit and proper person to continue providing any kind of
health service.
The National Law does not contain any offences for a person who does not comply with a
prohibition order made under section 196(4)(b). The making of a prohibition order has
limited protective effect if there are no offences for breach of an order.
Recommendation 29 of the independent review stated: "That the Health Practitioner
Regulation National Law 2009 prohibition order powers be amended to provide the means
for Tribunals to prohibit the person from providing any type of health service, to establish an
offence for breaching a prohibition order and to provide for mutual recognition of prohibition
orders issued by jurisdictions." The COAG Health Council accepted this recommendation in
principle, on the basis that advice be sought about a process to enable the recognition of
prohibition orders across jurisdictions.
To implement the first part of the review's recommendation, the Bill amends section
196(4)(b) to allow a responsible tribunal to issue a prohibition order to prohibit a person from
providing any health service or a specified health service or using any protected title or a
specified title (see clause 36). The amendments to section 196(4)(b) also clarify that a
prohibition order may be for a stated period or may be permanent. The approach in the Bill
aligns with section 149C(5) of the Health Practitioner Regulation National Law (NSW). The
revised wording provides greater flexibility for responsible tribunals, particularly to make
appropriate orders where a person is not a fit and proper person to continue providing any
kind of health service.
To address the second part of the review's recommendation, the Bill inserts a new section
196A(1) in the National Law to make it an offence to contravene a prohibition order with a
maximum penalty of $30,000 (see clause 37). To ensure that it is an offence to contravene a
prohibition order made in any State or Territory, the Bill inserts a new definition of
'prohibition order' in section 5 (see clause 4(5)).
The Bill also includes the following offences related to prohibition orders (see clause 37, new
sections 196A(2) and (3)):
• a person subject to a prohibition order (referred to as a "prohibited person") who fails to
inform patients or employers of the prohibition order in writing prior to providing any
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
health service, commits an offence with a maximum penalty of $5,000. If a patient is
under 16 or under guardianship, the prohibited person must tell the patient's parent or
guardian before providing the health service. Similar to the changes made to section 132
and explained above, a prohibited person must disclose the prohibition order to an entity
that engages them, regardless of the manner in which they are engaged (for example, a
prohibited person must notify an entity that engages the prohibited person under a
contract for services or a charity or sporting club if they are providing health services as
a volunteer, of the fact they are subject to the prohibition order), and
• failure to include details of a prohibition order when advertising health services to be
provided by a prohibited person is an offence, with a maximum penalty of $5,000 for an
individual and $10,000 for a body corporate.
These offences are similar to offences that apply in New South Wales under sections 102(2)
and 103(2) of the Public Health Act 2010 (NSW).
Public register of prohibition orders
The National Law does not require or empower National Boards to keep a register of
prohibition orders made under section 196(4)(b). The Bill requires National Boards to keep a
register of persons subject to prohibition orders, including a copy of the prohibition order for
each person subject to such an order (see clauses 44, 46 and 48 and replacement section
222(4)(b), amendment of section 223(b) and replacement section 227(b)).
This will protect the public by ensuring they have access to information about persons who
are subject to prohibition orders and ensure accountability of those persons who have had a
prohibition order made against them.
Improving communication with notifiers
The final report of the independent review identified key concerns raised by stakeholders in
all jurisdictions about notifications by notifiers, including:
• poor communication with both notifiers and practitioners
• outcomes not being well explained to notifiers, and
• consumer notifiers commonly feel they are denied the opportunity to prevent others from
experiencing the harm they experienced because the system does not explain its actions.
Recommendation 9(g) of the final report stated: "the Health Practitioner Regulation National
Law 2009 (the National Law) to be amended so that notifiers personally impacted by
practitioner conduct can be informed in confidence by the National Board about the process,
decision and rationale for the decision regarding their case. This complements the
amendments to the National Law approved by Ministerial Council in 2011 as detailed in
Appendix 11." The COAG Health Council accepted this recommendation.
The National Law currently requires communication with notifiers at certain decision points
and these minimum requirements are being retained in the Bill. Currently, if a National Board
is investigating a registered health practitioner or student as a result of a notification, section
161(3)(b) of the National Law requires a National Board to provide a written update about
the progress of the investigation to the notifier at least every 3 months. The Bill retains this
requirement and no amendment is being made to section 161.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Also, sections 180(1)(b) and 192(2)(b) of the National Law currently require notifiers to be
informed of the ultimate outcome of a notification. However, sections 180(2) and 192(4)
limit the information to be provided to notifiers to "the extent the information is available on
the National Board's register". The Bill removes sections 180(2) and 192(4) so that these
limitations no longer apply and replace them with new provisions (see clauses 29 and 35).
The requirements in sections 180 and 192 to inform notifiers of decisions made by National
Boards and panels will remain in place, but the Bill amends these sections to provide a
discretion for National Boards to also inform notifiers of the reasons for these decisions (see
clause 29, replacement section 180(2) and clause 35, amendment of section 192(4)).
The Bill also provides National Boards with a discretion to inform notifiers of decisions
involving a health practitioner or student at any of the following key points and to provide
reasons for the decision:
• when immediate action is taken under section 158 (see clause 25, insertion of new
section 159A)
• when a decision is made by a National Board after considering an investigator's report
under section 167 (see clause 26, insertion of new section 167A), and
• when a decision is made by a National Board after considering an assessor's report after
a health or performance assessment under section 177 (see clause 28, insertion of new
section 177A).
These amendments will give National Boards more flexibility about when to provide
information to notifiers and enable more complete information to be provided than is
currently the case. As part of implementing these changes, AHPRA and the National Boards
will develop a common protocol to ensure appropriate information is disclosed to notifiers at
appropriate times, while also taking into account privacy concerns of practitioners and
patients. At times, this will need to be considered on a case by case basis, depending on the
individual circumstances of the case.
Review periods when conditions on registration or undertakings are changed
When a National Board makes the following decisions under the National Law, it must
decide a "review period" for the decision:
• section 83(2) - a decision to register a person subject to a condition the Board considers
necessary or desirable
• section 103(2) - a decision to impose a condition on the endorsement of an applicant's
registration, and
• section 112(4) - a decision to renew a health practitioner's registration or endorsement of
registration subject to a condition.
A "review period" is the period during which a health practitioner or student may not make
an application to change or remove a condition or undertaking and during which the Board
may not change a condition on its own initiative, unless there has been a material change of
circumstances (see sections 125(2)(a) and 126(3)(a) of the National Law). The term "review
period" is defined in section 5 of the National Law.
Under section 125(1), a practitioner or student may apply for a condition or undertaking to be
changed. A National Board must decide to grant or refuse the application under section
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
125(5). Under section 126, a National Board may change a condition imposed on a
practitioner's or student's registration on its own initiative.
Currently, there is no ability for a National Board to decide a "review period" if a condition
or undertaking is changed under sections 125 or 126 and this can lead to uncertainty for
practitioners and premature applications for review of decisions.
This issue was identified by AHPRA and the National Boards and referred to in appendix 11
of the report of the independent review, as follows: "When conditions are amended under
sections 125 and 126, there is no requirement for a review period to be set and we think that
this would be of benefit to practitioners."
The Bill amends sections 125 and 126 of the National Law to give National Boards a
discretion to decide a "review period" when a National Board decides to change a registration
condition or an undertaking (see clauses 17(2) and 18(2), sections 125(6) and 126(6)). The
discretion to decide a "review period" will apply regardless of whether the change occurs on
application from the practitioner or student (under section 125) or on the Board's own
initiative (under section 126).
As the practitioner or student has already been subject to a "review period" when the original
condition was imposed on their registration or undertaking given, it may not be necessary to
impose a further "review period" in every case when the condition or undertaking is changed.
However, there may be cases where it would be beneficial for the National Board to impose a
"review period" to give certainty to the practitioner about the minimum period before a
review can be sought to enable sufficient time for resolution of the issues related to the
condition or undertaking or to prevent the practitioner from immediately seeking a review
once the condition or undertaking is changed. For this reason, the Bill provides that the
"review period" should be at the discretion of the National Board, rather than a requirement,
as applies in sections 83, 103 and 112.
The Bill also amends sections 125(6) and 126(6) to provide that if the National Board decides
a review period, the Board must give written notice of the details of the review period to the
practitioner or student at the same time as giving them notice of the Board's decision (see
clauses 17(2) and 18(2), sections 125(6A) and 126(6A)).
Conditions imposed on registration by an adjudication body of a co-regulatory jurisdiction
Under part 7, division 11, subdivision 2 of the National Law, sections 125(2)(b) and
126(3)(b) provide that when an adjudication body of a co-regulatory jurisdiction imposes a
condition on registration, the adjudication body may decide, when imposing the condition,
that the procedures in that subdivision apply for making changes to the condition.
The words "when imposing the condition" in these sections are unnecessarily restrictive. At
the time of making the decision, it may not be thought necessary for the condition to be
reviewed under the provisions of the National Law, as the practitioner may be based in a co-
regulatory jurisdiction. However, the practitioner may subsequently move to another State or
Territory which is not a co-regulatory jurisdiction and it may be appropriate for the condition
to be able to be reviewed by a National Board under the provisions of the National Law.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
The decision by an adjudication body as to whether or not the subdivision applies could be
made at any time (such as when the practitioner moves to another State or Territory), and
does not necessarily have to be made at the time the conditions are imposed. The Bill amends
sections 125(2)(b) and 126(3)(b) to provide that an adjudication body may decide whether or
not the subdivision applies "when imposing the condition or at a later time" (see clauses
17(1) and 18(1)).
Co-regulatory jurisdiction powers to change conditions imposed in another jurisdiction
Sections 125(2)(b) and 126(3)(b) of the National Law recognise that a condition may be
imposed on a health practitioner's registration by an adjudication body in a co-regulatory
jurisdiction. These provisions of the National Law also recognise that the adjudication body
for a co-regulatory jurisdiction may decide whether the review process in part 7, division 11,
subdivision 2 of the National Law should apply or not - that is, whether a practitioner or
student should be able to apply to the relevant National Board to change or remove a
condition.
However, no provision is made in the National Law or the laws of co-regulatory jurisdictions
for the reverse situation, that is, where a condition is imposed on a health practitioner's
registration in a jurisdiction that is not a co-regulatory jurisdiction, but there is a need for a
review body in a co-regulatory jurisdiction to review the condition. For example, this
situation may arise if the practitioner moved their principal place of practice from a
jurisdiction that is not a co-regulatory jurisdiction to a co-regulatory jurisdiction (for
example, a practitioner had a condition imposed on their registration in South Australia, but
moves their practice from South Australia to New South Wales).
This issue was identified by AHPRA and the National Boards and referred to in appendix 11
of the report of the independent review, as follows: "Co-regulatory issues - under sections
125(2)(b), 126(3)(b) and 127(3)(b), there is no equivalent section in the National Law (NSW)
to allow a co-regulatory jurisdiction to change a condition imposed by an adjudication body
in a National Board jurisdiction (Part 8) if the adjudication body decided, when imposing the
condition, that the subdivision applied."
To overcome this issue, the Bill inserts a new section which provides a power for a National
Board to refer a matter to a "review body" of a co-regulatory jurisdiction if the National
Board considers that a change or removal of a condition or a change or revocation of an
undertaking should be decided by the review body (see clause 19 and insertion of new section
127A). This will usually occur where a practitioner has moved to a co-regulatory jurisdiction
and has commenced practising in that jurisdiction.
The new section 127A provides that if a review body of a co-regulatory jurisdiction is to
decide a matter instead of the Board, the review body must decide the matter under the laws
of the review body's jurisdiction.
"Review body" is defined as an entity declared by an Act or regulation of a co-regulatory
jurisdiction to be a review body for the purposes of the new provision. In New South Wales,
it is expected that the review body will be a Health Professional Council or the Civil and
Administrative Tribunal of New South Wales. This will need to be declared in an Act or
regulation in New South Wales.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
It is unnecessary for Queensland to prescribe any 'review bodies' for this new provision, as
the Queensland co-regulatory arrangements currently allow for transfer of matters between
National Boards and the Health Ombudsman and appeal of National Board decisions to the
Queensland Civil and Administrative Appeals Tribunal.
New South Wales may also make further changes to its own State-based laws to provide for
this situation from a co-regulatory perspective. For example, it is expected that NSW will
seek to amend its laws to provide that an "undertaking" given in another jurisdiction will be
converted to a "condition" when the matter is referred to a NSW review body under this
provision, as the National Law as it applies in New South Wales does not provide for
undertakings to be given.
Grounds for taking no further action about notifications
Section 151 of the National Law sets out the grounds upon which a National Board may
decide to take no further action in relation to a notification.
Section 151(1)(e) currently sets out one of the grounds as: "the subject matter of the
notification is being dealt with, or has already been dealt with, adequately by another entity".
The use of the word "adequately" places an obligation on the National Board to enter into an
assessment about the performance of another entity and whether it has dealt with a matter
"adequately". It is not the National Board's role to review the performance or conduct of
other entities in handling complaints or notifications. As such, the Bill removes the word
"adequately" from section 151(1)(e) (see clause 22 and new section 151(1)(e)(i)).
The Bill also adds the following grounds upon which a National Board may decide to take no
further action in relation to a notification (see clause 22 and new sections 151(1)(e)(ii) and
(f)):
• if a National Board has referred the subject matter of a notification to another entity to be
dealt with by that entity (for example, where the Board refers a matter to a health
complaints entity within a State or Territory), or
• if the health practitioner to whom the notification relates has taken appropriate steps to
remedy the issue the subject of the notification and the Board reasonably believes no
further action is required in relation to the notification.
Power to substitute one immediate action for another
Sections 155, 156 and 159 of the National Law do not explicitly provide for a National Board
to revoke one type of "immediate action" they have taken and substitute another form of
"immediate action". For example, a National Board may wish to revoke the suspension of a
practitioner's registration and substitute a condition of registration (or vice versa). This may
occur, for example, if new information suggests that a condition imposed on registration
would be sufficient to protect public safety. Similarly, new information may suggest that a
condition is no longer sufficient to protect public safety and the practitioner's registration
needs to be suspended.
This issue was identified by AHPRA and the National Boards and referred to in appendix 11
of the report of the independent review, as follows: "There is no avenue for ending a
suspension imposed under section 156 (immediate action). This is problematic as a National
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Board may want to end a suspension or revoke an undertaking not to practice; and impose
conditions."
To address this issue, the Bill amends the definition of "immediate action" in section 155 (see
clause 23 and new sections 155(d) and (e)) to clarify that immediate action also includes:
• revoking a suspension and imposing a condition on registration, if immediate action had
previously been taken suspending a health practitioner's or student's registration, and
• suspending registration instead of a condition, if immediate action had previously been
taken imposing a condition on a health practitioner's or student's registration.
Review of a suspension arising from a health panel decision
Under section 181 of the National Law, a National Board may establish a health panel if the
Board reasonably believes a registered health practitioner or student has or may have an
impairment. "Impairment" is defined in section 5 of the National Law as a " ... physical or
mental impairment, disability, condition or disorder (including substance abuse or
dependence) that detrimentally affects or is likely to detrimentally affect ... a person's
capacity to practise ... or a student's capacity to undertake clinical training ... ".
If a health panel established under section 181 is satisfied a health practitioner or student has
an impairment, the panel can decide to suspend the practitioner's or student's registration
under section 191(3)(b) of the National Law. For conduct and performance matters, only a
responsible tribunal can decide to suspend a practitioner's or student's registration (see
section 196(2)(d) of the National Law). Currently, a health practitioner or student may seek a
review of a suspension by a health panel through an appeal to the relevant tribunal under
section 199(1)(j).
However, the National Law does not provide any express mechanism for the health panel's
decision to be reviewed or for the suspension to be revoked (other than the general power to
amend or revoke a decision in clause 23 of schedule 7). This leaves uncertainty for
practitioners and students about the length of time a suspension will remain in place.
This issue was identified by AHPRA and the National Boards and referred to in appendix 11
of the report of the independent review, as follows: " ... if a health panel suspends a
practitioner under section 191(3)(b), there is no requirement under the National Law for the
panel to set a review period. We think this would be of benefit."
To address this issue, the Bill amends section 191 of the National Law to provide that if a
health panel suspends a practitioner's or student's registration, it must also decide a date by
which the suspension be reconsidered, to be known as the 'reconsideration date' (see clause
33, insertion of new section 191(4A)). This will provide practitioners or students affected by
a suspension with a degree of certainty that their suspension will be reviewed at an
appropriate time.
The Bill also makes the related amendments outlined below to facilitate the suspension being
reconsidered.
The Bill inserts a new provision to provide that a health panel reconsidering a suspension
may do any of the following (see clause 34, insertion of new section 191A):
• revoke the suspension
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
• revoke the suspension, impose conditions on the person's registration under section
191(3)(a) in place of the suspension and decide a review period for the conditions under
section 191(4), or
• not revoke the suspension and decide a new reconsideration date.
The Bill amends section 181 to provide that a National Board must establish a health panel if
the suspension of a practitioner's or student's registration is to be reconsidered by a panel
under section 191(4A) or 191A(2)(c) (see clause 30(1), insertion of new section 181(1A)).
The Board may appoint the same panel or a different panel to the one that originally imposed
the suspension, depending on the availability of panel members.
The Bill amends section 184 to provide that if a health panel is established to reconsider a
suspension, the panel may decide the matter on the basis of documents, without a hearing if it
considers it appropriate to do so - this is often referred to as making a decision "on the
papers" (see clause 32). The panel is required to give a written notice to the practitioner or
student that it intends to proceed this way. If the health practitioner or student gives a written
notice to the panel within 14 days requesting a hearing (rather than having the panel decide
the matter "on the papers") and the health practitioner or student gives an undertaking to be
available for the hearing within 28 days, the panel must conduct a hearing. If the health
practitioner or student does not request a hearing within 14 days, the panel may proceed to
decide the matter "on the papers". The power to decide a matter "on the papers" is proposed
to be used by a panel particularly for circumstances where a practitioner has elected not to
continue active involvement in the suspension process, or where a practitioner has a long
term illness that does not allow them to be able to participate in a hearing.
The Bill inserts a new section to provide for changes to the reconsideration date if a
suspension is to be reconsidered (see clause 34 and insertion of new section 191B). Under
section 191B(2), a health panel may decide an earlier reconsideration date if:
• the health practitioner or student advises the panel of a material change in the
practitioner's or student's circumstances and requests an earlier reconsideration date
because of the change, and
• the panel is reasonably satisfied that an earlier reconsideration date is necessary because
of the change of circumstances.
Under section 191B(4), a health panel may decide a later reconsideration date if the panel is
satisfied it is necessary to reconsider the suspension. Examples of when a panel may be
reasonably satisfied a later reconsideration date may be needed would include:
• if the practitioner's or student's attendance at the hearing is required and they are unwell,
the panel may decide it is preferable to wait until they are well enough to participate in
the hearing
• if the practitioner's or student's evidence to the panel requires further review by the
panel and this cannot be completed prior to the due date, or
• if a panel member becomes unwell and time is needed to find a suitable replacement.
If a panel changes the reconsideration date under section 191B, the panel must give notice of
its decision and reasons for the decision (see sections 191B(3) and (5)). The suspension of
registration would remain in place until the panel makes a decision to revoke the suspension
(see section 191B(6)).
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
The Bill amends section 192(1) to provide that notice of a decision about reconsideration of a
suspension under new section 191A must be given under section 192, in the same way as for
other decisions of panels (see clause 35(1)).
The Bill amends section 199 to provide that if a health panel reconsiders a suspension of
registration, a decision by the health panel not to revoke the suspension is subject to appeal to
the appropriate relevant tribunal (see clause 38, new section 199(1)(ja)).
If a further health assessment is needed before reconsidering a suspension, the National
Board would be able to rely on its existing power under section 169 to require a health
practitioner or student to undergo a health assessment.
Disclosure to protect health or safety of patients or other persons
Section 220 of the National Law provides a power for a National Board to disclose
information to a Commonwealth, State or Territory entity about a registered health
practitioner who poses, or may pose, a risk to public health or the health or safety of the
public or certain members of the public. However, section 220 does not apply to persons who
are not registered health practitioners.
Section 216(2)(c) permits protected information to be disclosed if it is required or permitted
by law. However, in the early stages of an investigation, it may not always be clear if other
legislation permits or requires disclosure of information about a practitioner who is not
registered.
There are instances where National Boards and AHPRA receive information about persons
who are not registered health practitioners or who were previously registered, and where it
considers there is a strong public interest in permitting the disclosure of that information to an
entity of the Commonwealth, State or Territory for action. For example, information may be
received about a person who is pretending to be a registered health practitioner and under the
current wording of section 220, information about that person may not be able to be
disclosed.
The Bill replaces section 220 with a new provision (see clause 43) so that a National Board
may give information to an entity of the Commonwealth, State or Territory if a National
Board reasonably believes that:
• a person who provides a health service but is not a registered health practitioner poses, or
may pose, a risk to public health, or
• the health or safety of a patient or class of patients is or may be at risk because of the
provision of a health service by a person who is not a registered health practitioner.
Section 220 will also continue to apply to registered health practitioners in the same way as it
does now.
Technical and miscellaneous amendments to the National Law
The Bill makes a number of technical and miscellaneous changes to the National Law to
improve its efficiency and effectiveness, including the following:
• amend the definition of 'Ministerial Council' in the National Law to refer to the COAG
Health Council or its successor body (see clauses 4(1) and (3), amendments to section 5)
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
• allow National Boards to decide an application for registration and for the registration to
commence up to 90 days after the date of the National Board's decision (see clause 9,
amendment to section 56(2)(a)). This will particularly assist registrants moving from
student to general registration and internationally qualified practitioners trying to meet
the multiple requirements of National Boards, employers and immigration authorities
• enable a practitioner who holds general or limited registration in one division of the
national register for a profession to obtain limited registration in another division of the
register for the same profession, to facilitate upskilling and workforce flexibility (see
clauses 10 and 11, amendments to section 65 and replacement section 71)
• update references to the Commonwealth CrimTrac agency to refer to the Australian
Crime Commission (see clauses 4(1) and (3), 12 and 21, amendments to sections 5, 79
and 135)
• consequential amendments as a result of changes to Commonwealth Freedom of
Information and privacy arrangements under the Australian Information Commissioner
Act 2010 (Cwlth) and Freedom of Information Amendment (Reform) Act 2010 (Cwlth)
(see clauses 40, 41 and 42, new section 212A and amendments to sections 213 and 215),
and
• requiring a regulation made by the COAG Health Council under the National Law to be
tabled in, or notice of its making given to, the Parliament of each participating
jurisdiction in the same way a regulation made in that jurisdiction must be tabled or
notified (see clause 50, amendments to section 246).
Amendments to Health Ombudsman Act 2013 (Qld)
The following paragraphs outline consequential amendments made to the Health Ombudsman
Act as a result of changes to the National Law in the Bill.
Broadening the grounds for immediate action
The Bill amends section 156 of the National Law to provide that a National Board may take
immediate action against a health practitioner if a National Board reasonably believes the
immediate action is 'in the public interest' (see clause 24). Under the National Law,
immediate action consists of placing conditions on a practitioner's registration or suspending
their registration.
The Health Ombudsman has similar powers to take 'immediate action' under part 7 of the
Health Ombudsman Act. For registered health practitioners, 'immediate action' is known as
'immediate registration action' and consists of placing conditions on a practitioner's
registration or suspending their registration (see sections 57 and 58 of the Health
Ombudsman Act). For unregistered health practitioners, or registered practitioners who
deliver a health service unrelated to their registration, the Health Ombudsman can take
immediate action by issuing an 'interim prohibition order' to the practitioner. An 'interim
prohibition order' can prohibit a practitioner from providing health services or place
restrictions on the practitioner's practice (see sections 67 and 68 of the Health Ombudsman
Act).
To align with the changes made to section 156 of the National Law, the Bill amends sections
58 and 68 of the Health Ombudsman Act to also allow the Health Ombudsman to take
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
'immediate registration action' or issue an 'interim prohibition order' if the Health
Ombudsman reasonably believes the action is 'in the public interest' (see clauses 65 and 69).
Scope of 'prohibition orders'
Under section 196(4)(b) of the National Law, if a responsible tribunal decides to cancel a
practitioner's registration under the National Law or a person does not hold registration under
the National Law, the tribunal may also decide to prohibit the person from "using a specified
title" or "providing a specified health service". This is commonly referred to as a 'prohibition
order'. In Queensland, the 'responsible tribunal' for the National Law is the Queensland Civil
and Administrative Tribunal (QCAT).
The Bill amends section 196(4)(b) of the National Law to allow a responsible tribunal to
issue a prohibition order to prohibit a person from providing any health service or a specified
health service or using any protected title or a specified title (see clause 36). The amendment
also clarifies that a prohibition order may be for a stated period or may be permanent. The
revised wording provides greater flexibility for responsible tribunals, particularly to make
appropriate orders where a person is not a fit and proper person to continue providing any
kind of health service.
Sections 107(4)(b) and 113(4)(a) of the Health Ombudsman Act authorise QCAT to issue
prohibition orders for registered and unregistered health practitioners, respectively and those
sections use the same or similar language to section 196(4)(b) of the National Law. The Bill
amends sections 107(4)(b) and 113(4)(a) of the Health Ombudsman Act in the same way as it
amends section 196(4)(b) of the National Law (see clauses 76 and 77).
Sharing information about disciplinary or enforcement action with all places of practice
The Bill amends section 206 of the National Law to ensure that where health, conduct or
performance action is being taken against a health practitioner, a National Board is able to
inform all places at which the person practices (see clause 39).
Under part 19 of the Health Ombudsman Act, the Health Ombudsman is required to notify a
health practitioner's 'employer' of certain disciplinary or enforcement actions the Health
Ombudsman takes, including if:
• the Health Ombudsman takes 'immediate action' (see section 279(1)(a))
• the Health Ombudsman investigates a health service complaint that meets certain
thresholds of seriousness (see section 279(1)(b)), or
• QCAT decides a matter about a health practitioner (see section 280).
The Health Ombudsman also has a discretion to inform a health practitioner's employer of a
matter if the Health Ombudsman considers it would be appropriate to do so, having regard to
all the circumstances and to the guiding principle of the Act that the health and safety of the
public are paramount (see sections 4 and 282).
Section 277 of the Health Ombudsman Act defines 'employer' to mean an entity that
employs the practitioner, engages the practitioner under a contract for services, or operates a
facility at which the health practitioner provides health services. This definition is much
broader than the concept of 'employ' and 'employer' used in sections 132 and 206 of the
National Law. As such, the Bill makes the following amendments to the Health Ombudsman
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Act to ensure the Health Ombudsman can share information about disciplinary or
enforcement action with all places at which a person practises:
• section 277 - amends the definition of 'employer' so that it applies to practitioners who
are engaged by an entity in an honorary or voluntary capacity (see clause 79 - this aligns
with amendments made to sections 132(4)(d) and 206(2)(b) of the National Law), and
• sections 279, 280 and 282 - amends these provisions to give a discretion to the Health
Ombudsman to notify other health practitioners who share the same premises and share
the cost of the premises with a self-employed health practitioner about the self-employed
practitioner's disciplinary or enforcement action (see clauses 80, 81 and 82 - these
changes align with amendments made to sections 132(4)(a) and 206(2)(a) of the National
Law and are intended to capture practice arrangements involving the use of service
companies or partnership arrangements). As with the corresponding amendments to the
National Law, this power is discretionary. Depending on the risks to the public, the
circumstances of the case and the particular arrangements of the practice, it may or may
not be appropriate to notify other health practitioners working at the same premises.
Panels of assessors for Health Ombudsman Act
The Bill amends the National Law to recognise that nursing and midwifery are two
professions, although they will continue to be regulated by one National Board. The Bill also
establishes a Paramedicine Board of Australia and regulates the profession of 'paramedicine'.
Under part 10 of the Health Ombudsman Act, professional panels of assessors are established
for each health profession under the National Law (see section 117). Assessors from the
relevant profession are appointed from the panel to sit with QCAT in disciplinary hearings
and advise QCAT on questions of fact (see sections 126 and 127). One of the professional
panels of assessors established under section 117 is a 'nursing and midwifery panel of
assessors'.
For consistency with the amendments made to the National Law, the Bill amends section 117
of the Health Ombudsman Act to replace the 'nursing and midwifery professional panel' with
a separate 'nursing panel of assessors' and 'midwifery panel of assessors' (see clause 78).
The Bill also establishes a new 'paramedics panel of assessors' for the profession of
'paramedicine' which will be regulated by the National Law (also see clause 78).
Amendments to Health Ombudsman Act requested by Health Ombudsman
The following paragraphs outline the amendments in the Bill to the Health Ombudsman Act
that were requested by the Health Ombudsman during the Health, Communities, Disability
Services and Domestic and Family Violence Prevention Committee's Inquiry into the
performance of the Health Ombudsman's functions pursuant to section 179 of the Health
Ombudsman Act 2013.
Enabling the Health Ombudsman to vary their decisions to take immediate action
The Health Ombudsman requested new provisions to allow the Health Ombudsman to:
• review his or her decision to take immediate registration action or issue an interim
prohibition order, on application by the affected practitioner or on the Health
Ombudsman's own initiative, and
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
• vary an immediate registration action decision or interim prohibition order on his or her
own initiative.
The rationale given by the Health Ombudsman for this change is:
• the Health Ombudsman can only end an immediate registration action or revoke an
interim prohibition order if the Health Ombudsman is satisfied the action is no longer
necessary, on the basis that the grounds for the original action no longer exist (see
sections 65 and 76 of the Health Ombudsman Act, respectively)
• the affected practitioner may apply to QCAT for a review of the Health Ombudsman's
decision to take the immediate registration action or issue an interim prohibition order
(see sections 63 and 74 of the Health Ombudsman Act, respectively), and
• the Health Ombudsman Act does not otherwise enable the Health Ombudsman to review
or vary his or her own decision to take immediate registration action or issue an interim
prohibition order.
This means that the Health Ombudsman is prevented from amending the immediate
registration action decision or interim prohibition order while any of the grounds for making
the original decision or order still exist, even when new information has come to light or
circumstances have changed and it would be appropriate for the Health Ombudsman to
amend their action.
Under the National Law, National Boards have powers to revoke immediate action or to
change or remove conditions on a practitioner's registration on application by the practitioner
or on the Board's own initiative. The Bill amends section 155 of the National Law to clarify
that National Boards can substitute one form of immediate action for another (see clause 23).
For example, if immediate action had previously been taken suspending a practitioner's
registration, the Bill clarifies that the Board can revoke the suspension and impose conditions
on the practitioner's registration in its place. Similarly, if immediate action had previously
been taken imposing conditions on a practitioner's registration, the Bill clarifies that the
Board can suspend the practitioner's registration in place of the conditions.
The Bill includes new sections 58A, 58B, 68A and 68B of the Health Ombudsman Act to
enable the Health Ombudsman to vary their decision to take immediate registration action or
issue an interim prohibition order, on application by the practitioner or on the Health
Ombudsman's own initiative (see clauses 66 and 70). The new provisions also allow the
Health Ombudsman to substitute one type of immediate registration action or interim
prohibition order for another, for example, revoking the suspension of a registered health
practitioner's registration and substituting it with a condition of registration. This aligns with
the amendment made to section 155 of the National Law.
These new provisions will provide a more efficient and flexible way for the Health
Ombudsman to adjust immediate registration actions and interim prohibition orders to reflect
changing circumstances, while appropriately protecting public health and safety. It will also
benefit health practitioners by providing a more efficient and cost-effective review
mechanism, rather than requiring the practitioner to apply to QCAT for a review of a
decision.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Clarifying that an investigation may be 'continued' after immediate action
Sections 64(a) and 75(a) of the Health Ombudsman Act provide that immediately after
deciding to take 'immediate registration action' or issuing an 'interim prohibition order', the
Health Ombudsman must "start an investigation under part 8" or take one of two other
actions. Before deciding to take immediate action, the Health Ombudsman may have already
'started' an investigation under part 8 in order to gather information, however the current
wording of these provisions could be interpreted as requiring a 'new' investigation. The Bill
amends sections 64(a) and 75(a) to clarify that after taking immediate action, the Health
Ombudsman may 'continue' an investigation that is already underway (see clauses 68 and
73).
Waiver of right to receive three-monthly notices about progress of investigation
Section 84 of the Health Ombudsman Act requires the Health Ombudsman to give notice of
the progress of an investigation, at least every three months, to the health service provider
being investigated and the complainant who instigated the matter (if any).
In his submission to the Health, Communities, Disability Services and Domestic and Family
Violence Prevention Committee's inquiry, the Health Ombudsman noted that a substantial
number of matters subject to investigation are effectively 'on hold' pending the outcome of
matters outside the control of the Health Ombudsman. For example, an investigation may be
on hold while criminal allegations are investigated by the Queensland Police Service or while
the matter is the subject of court proceedings. Also, a complainant may not wish to receive
quarterly updates about an investigation if they do not have a personal interest (for example,
if the complaint resulted from a mandatory reporting requirement). The Health Ombudsman
suggested that a health service provider or a complainant should be able to waive their right
to the quarterly update.
The Bill amends section 84 to allow a person to waive their right to receive a three monthly
progress report, provided the waiver is given by written notice (see clause 74). The wavier
will be given on a voluntary basis and only if the health service provider or complainant does
not wish to receive quarterly reports. The waiver will be able to be revoked at any time and in
such a case, the person will recommence receiving progress reports.
Amendments to Ambulance Service Act 1991 (Qld)
Some minor amendments are made to the Ambulance Service Act 1991 (Ambulance Service
Act) as a consequence of paramedics becoming registered under the National Law.
The Bill inserts a new section 50S into the Ambulance Service Act to authorise officers from
the Queensland Ambulance Service to disclose information to a National Board established
under the National Law or to AHPRA for the purposes of making or giving information about
a complaint or notification, answering questions or otherwise giving information about an
investigation or proceeding about a person who is or was registered under the National Law
(see clause 86). The new provision is equivalent to section 155 of the Hospital and Health
Boards Act 2011.
The Bill also amends section 50M of the Ambulance Service Act to authorise officers from
the Queensland Ambulance Service to disclose information to the Health Ombudsman for the
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
purpose of making or giving information about a complaint or notification under the Health
Practitioner Regulation National Law (Queensland) (see clause 85). The new provision is
equivalent to section 156 of the Hospital and Health Boards Act 2011.
These amendments will ensure officers from the Queensland Ambulance Service are able to
share information with the Paramedicine Board of Australia, AHPRA and the Health
Ombudsman for complaints, notifications and other matters arising under the National Law
or the Health Ombudsman Act.
Consequential amendments to reflect the recognition of 'nursing' and 'midwifery' as
separate professions
Part 2 of schedule 1 of the Bill makes consequential amendments to a range of Queensland
legislation to reflect the recognition of 'nursing' and 'midwifery' as separate professions (see
clause 87(2)). The amendments are purely consequential in nature and there is no underlying
change in policy about the roles of 'nurses' or 'midwives'.
Alternative ways of achieving policy objectives
In 2010, the Australian Health Workforce Ministerial Council agreed to assess the profession
of paramedicine for inclusion in the National Scheme. A draft Consultation Regulatory
Impact Statement (RIS) was released in July 2012. A copy of the Consultation RIS is
available here:
http://ris.pmc.gov.au/2012/07/16/options-regulation-paramedics-%E2%80%93-coag-
consultation-regulation-impact-statement-%E2%80%93
Consultation forums took place in each jurisdiction and fifty written submissions were
received. Almost all responses indicated a preference for registration of paramedics through
the National Scheme.
In May 2015, a Decision RIS titled 'Options for Regulation of Paramedics' was submitted to
the Commonwealth Office of Best Practice Regulation (OBPR), who administer the COAG
best practice regulation guidelines. The Decision RIS identified a range of risks associated
with the unregulated practice of paramedicine and assessed the costs and benefits of the
following five options:
• option 1: maintain the status quo - rely on existing regulatory and non-regulatory
mechanisms
• option 2: strengthen self-regulation of paramedics
• option 3: license private providers of paramedic services
• option 4: extend registration to the paramedic profession under the National Registration
and Accreditation Scheme
• option 5: establish statutory registration of the paramedic profession under separate state
and territory regulatory schemes.
The Decision RIS concluded that option 4 offered the greatest net public benefit, compared
with other options, including the status quo. In June 2015, the Decision RIS was assessed by
the Commonwealth OBPR as not compliant with COAG's best practice regulation
requirements.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
On 6 November 2015, the COAG Health Council discussed options for registration of the
paramedic profession. On a majority vote, the meeting agreed to paramedics being included
in the National Scheme. The COAG Health Council was persuaded by factors including
broad stakeholder support for registration, the increasing risk profile of the profession,
international experience, and improved potential for Ministers to drive health workforce
reforms and improvements in quality and safety.
On 22 July 2016, the Chair of the COAG Health Council, the Honourable Jill Hennessy,
Minister for Health and Minister for Ambulance Services in Victoria wrote to the
Commonwealth OBPR noting that the COAG Health Council made its decision on 6
November 2015 with the knowledge of the Commonwealth OBPR's assessment that the
Decision RIS was not compliant with best practice regulation requirements. The letter states
the basis upon which Ministers decided to proceed with national registration of paramedics,
namely:
• the increasing risk profile of the profession due to its expanding scope of practice and a
rapidly growing but largely unregulated private sector
• evidence of risk from international jurisdictions, particularly the United Kingdom where a
registration regime for paramedics has been in place for some years
• the important role of statutory registration in providing more efficient mechanisms of
quality assurance than other regulatory and non-regulatory mechanisms can provide
• that statutory registration of paramedics provides important levers for governments to
drive health system reform, by underpinning the development of more flexible models of
out of hospital primary care, and enabling better quality control of the emerging private
sector, thereby reducing pressure on the public hospital system, and
• the health system benefits of regulation are difficult to quantify and there are well
documented limitations with RIS methodologies, particularly when complex public policy
choices are to be made.
The final Decision RIS was published on the COAG Health Council website in August 2016:
http://www.coaghealthcouncil.gov.au/Portals/0/Paramedics%20Decision%20RIS.pdf
Regulation of paramedics under the National Scheme requires amendments to the National
Law.
As the remainder of the Bill deals with the operation of existing legislation, legislation is the
only feasible option for achieving the proposed policy objectives. On 9 November 2016, the
Commonwealth OBPR confirmed that the remaining amendments in the Bill did not require
further analysis from a regulatory impact perspective, as they were minor or machinery in
nature.
Estimated cost for government implementation
The COAG Health Council approved a project plan for the registration of paramedics at its
meeting on 8 April 2016. As part of the project plan, the Australian Health Ministers'
Advisory Council approved an allocation of $1.6m from its cost share budget for additional
staff for AHPRA to manage the implementation process.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
As outlined above, the National Scheme is self-funded from fees paid by registrants. As such,
once the initial implementation phase is completed for registration of paramedics, there are
not expected to be any ongoing cost implications for governments.
The other amendments to the National Law in the Bill are administrative in nature and will be
implemented by AHPRA within existing resources.
The amendments to the Health Ombudsman Act are administrative in nature and will be
implemented within existing resources. The other amendments to Queensland legislation are
minor, consequential and administrative in nature and will be implemented within existing
resources.
Consistency with fundamental legislative principles
Grounds for taking immediate action - 'public interest test'
The amendment to section 156 of the National Law to provide that 'immediate action' may
be taken in the 'public interest' potentially infringes the fundamental legislative principle that
legislation should make rights and liberties, or obligations, dependent on administrative
power only if the power is sufficiently defined (section 4(3)(a), Legislative Standards Act
1992 (Qld)). 'Immediate action' is defined in section 155 of the National Law and involves
the suspension of a registered health practitioner's or student's registration or the imposition
of a condition on registration. It can also involve accepting an undertaking from a practitioner
or student or accepting the surrender of registration.
Similar amendments are made to sections 58 and 68 of the Health Ombudsman Act 2013
(Qld) to introduce a public interest test. Section 58 allows the Queensland Health
Ombudsman to take 'immediate registration action' (defined in section 57) in relation to a
registered health practitioner and section 68 allows the Ombudsman to issue an 'interim
prohibition order' (defined in section 67) for an unregistered health practitioner. 'Immediate
registration action' under the Health Ombudsman Act 2013 is equivalent to taking 'immediate
action' under the National Law and involves the suspension of a registered health
practitioner's registration or the imposition of a condition on registration. An interim
prohibition order under section 67 has the equivalent effect for unregistered health
practitioners, by enabling the Queensland Health Ombudsman to prohibit the practitioner
from providing health services or particular health services or imposing restrictions on the
provision of health services by the practitioner.
The threshold for taking immediate action in its current form in section 156 of the National
Law and sections 58 and 68 of the Health Ombudsman Act 2013 may constrain a National
Board or the Health Ombudsman from taking swift action where it is warranted to protect
public health, public safety or the public interest. For example, if a practitioner has been
charged with a serious crime, and the relationship between the alleged crime and the
practitioner's practice is not yet well established, the 'public interest' may require the
relevant regulatory body to constrain the practitioner's practice until the criminal matter is
resolved, both for the protection of the public and for public confidence in the health
profession.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
The National Law as it applies in New South Wales contains a similar 'public interest' test
for immediate action (see section 150 of the Health Practitioner Regulation National Law
(NSW)).
The relevant National Board or Health Ombudsman will always seek to respond in a way that
is proportionate to the risk posed. For example, the National Boards and AHPRA have agreed
'regulatory principles' that underpin their work and are designed to encourage a responsive,
risk-based approach to regulation across all professions. The 'regulatory principles' include
the following:
In all areas of our work we:
• identify the risks that we are obliged to respond to
• assess the likelihood and possible consequences of the risks, and
• respond in ways that are proportionate and manage risks so we can adequately protect
the public.
When we take action about practitioners, we use the minimum regulatory force appropriate
to manage the risk posed by their practice, to protect the public. Our actions are designed to
protect the public and not to punish practitioners.
A complete copy of the 'regulatory principles' is available on the AHPRA website at:
http://www.ahpra.gov.au/About-AHPRA/Regulatory-principles.aspx.
A decision by a National Board to impose a condition on a practitioner's or student's
registration or to suspend registration is subject to a 'show cause' process (see section 157 of
the National Law). As part of the show cause process, the National Board must have regard to
any submissions made by a registered health practitioner or student in deciding whether to
take immediate action (see section 157(3)). The National Board's decision is also subject to
appeal to the appropriate responsible tribunal (see section 199(1)(e) and (h) of the National
Law).
A decision of the Queensland Health Ombudsman to take immediate registration action by
imposing a condition on a practitioner's registration or suspending registration is also subject
to a 'show cause' process (see section 59 of the Health Ombudsman Act 2013). Similarly, a
decision of the Queensland Health Ombudsman to issue an interim prohibition order is
subject to a 'show cause' process (see section 69 of the Health Ombudsman Act 2013). As
part of the show cause process, the Queensland Health Ombudsman must have regard to any
submissions made by the health practitioner (see sections 59(3) and 69(3)). There are special
provisions for the Queensland Health Ombudsman to take immediate registration action or
issue an interim prohibition order without a show cause process if it is necessary to ensure the
health and safety of an individual or the public (see sections 59(4) and 69(4)). However, even
in these cases, a 'show cause' process must be followed after the action is taken (see sections
61 and 72 of the Health Ombudsman Act 2013). A health practitioner may seek a review of
the Queensland Health Ombudsman's decisions by the Queensland Civil and Administrative
Tribunal, also known as QCAT (see sections 63 and 74 of the Health Ombudsman Act 2013).
During consultation, some stakeholders expressed concern in relation to these amendments,
in particular, the potential for a subjective interpretation of the 'public interest' and that the
current test, as provided for in the National Law and Health Ombudsman Act 2013, is
sufficient grounds for the taking of immediate action.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
The current threshold is problematic given a number of recent cases, notably associated with
the failures at Djerriwarrh Health Services in Victoria, where the National Board was unable
to take immediate action because the evidence presented to the Board did not meet the
required threshold. The concerns of stakeholders about the breadth of the powers were
carefully considered. However, on balance, the need for National Boards to have sufficient
powers to deal swiftly and effectively with public health risks as they present is considered
paramount.
Given that Queensland health practitioners can be dealt with under either the National Law or
the Health Ombudsman Act 2013, it is necessary to ensure there is alignment between the
provisions and that the same test applies for taking action. If this change were not made to the
Health Ombudsman Act 2013, it would put Queensland out of step with the rest of the
country in relation to the threshold for taking 'immediate action' against registered health
practitioners. It would also mean practitioners dealt with under the National Law (for less
serious matters) would be subject to the broader 'public interest' test for immediate action,
but practitioners dealt with under the Health Ombudsman Act 2013 (for more serious matters)
would not be subject to the same test.
A report titled Independent review of the use of chaperones to protect patients in Australia
was publicly released on 11 April 2017. A copy of the report is available at:
http://www.ahpra.gov.au/News/2017-04-11-chaperone-report.aspx
The report by Professor Ron Paterson, was commissioned by the Medical Board of Australia
and AHPRA. The report considers the 'public interest' test in some detail and concludes:
I support the proposed change to the section 156 test for immediate action, by adding the
words from section 150 of the NSW statute, that immediate action must be taken if the
National Board is satisfied that it is 'otherwise in the public interest' to do so. This wording
recognises the need for immediate action in cases where public confidence in a health
profession or its regulatory body may be damaged if the allegations turn out to be true, and
the practitioner has been permitted to continue in unrestricted practice in the meantime.
Equivalent wording has proved pivotal in the move to a stricter, precautionary approach by
the GMC [General Medical Council] and Interim Orders Tribunal in the UK.
I consider it important for the public interest limb of the test for immediate action not to be
qualified by the need to show necessity or appropriateness of the proposed action. No such
qualification applies to the interim action public interest test in the UK or NSW. In practice,
IACs [Immediate Action Committees], tribunals and courts will in any event take into
account the necessity and appropriateness of proposed restrictions or suspension.
The amendment is considered to balance fairness and the impact of immediate action on
practitioners with the ability for National Boards and the Queensland Health Ombudsman to
have sufficient powers to deal quickly and effectively with practitioners who may pose a risk
to the public. The 'public interest' test will ensure public confidence in health practitioners
does not risk being eroded by knowledge that a practitioner has been allowed to continue
practising while allegations are resolved. The test provides National Boards and the
Queensland Health Ombudsman with the ability to consider risk in a wider context and take
into account public expectations of the standards expected of practitioners. This is
particularly relevant where allegations of sexual boundary violations are made or charges for
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
serious criminal offences are laid against a practitioner. In these cases, allowing practitioners
to remain in practice may risk patient safety and public confidence in the relevant profession.
Power for COAG Health Council to make changes to the structure of National Boards by
regulation following consultation
The amendments to section 31 of the National Law to allow the COAG Health Council to
change the structure of National Boards by regulation potentially infringes the fundamental
legislative principle that legislation should have sufficient regard to the institution of
Parliament and allow the delegation of legislative power only in appropriate cases and to
appropriate persons (Legislative Standards Act 1992, section 4(4)(a)).
These amendments provide flexibility for the COAG Health Council to consolidate or
separate National Boards as needed, to effectively manage changes in the governance,
membership, cost effectiveness and efficiency of the Boards. The structure of the National
Boards is a matter of an administrative nature which is appropriate to be specified in
regulations. There are no current plans to change the structure of National Boards. However,
the COAG Health Council has requested this power in order to provide flexibility in the
administration of the National Scheme if needed in future. Section 31(4) provides that public
consultation must be undertaken before exercising the power.
The National Law specifies the professions regulated under the National Scheme in the
definition of 'health profession' in section 5. This means any change to add a profession to,
or remove a profession from, the National Scheme would require the agreement of the COAG
Health Council and amendment to the National Law.
Review periods when conditions on registration or undertakings are changed
The amendments to sections 125 and 126 of the National Law to give National Boards a
discretion to decide a "review period" when a National Board decides to change a registration
condition or an undertaking potentially infringe the fundamental legislative principle that
legislation should make rights, liberties and obligations subject to appropriate review
(Legislative Standards Act 1992, section 4(3)(a)).
Under the National Law, a "review period" is the period during which a health practitioner or
student may not make an application to change or remove a condition or undertaking and
during which the Board may not change a condition on its own initiative, unless there has
been a material change of circumstances (see sections 125(2)(a) and 126(3)(a) of the National
Law). The term "review period" is defined in section 5 of the National Law.
The use of "review periods" to provide certainty for practitioners is already well established
within the National Law. Under the following existing provisions of the National Law, a
National Board must decide a "review period" when it makes the following decisions:
• section 83(2) - a decision to register a person subject to a condition the Board considers
necessary or desirable
• section 103(2) - a decision to impose a condition on the endorsement of an applicant's
registration, and
• section 112(4) - a decision to renew a health practitioner's registration or endorsement of
registration subject to a condition.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
The amendments to sections 125 and 126 merely bring these provisions into line with
existing provisions by ensuring that National Boards have a discretion to decide a "review
period" when a National Board decides to change a registration condition or an undertaking.
The current lack of "review periods" when conditions or undertakings are changed under
sections 125 or 126 can lead to uncertainty for practitioners and premature applications for
review of decisions by tribunals.
In all cases where a "review period" is decided, the practitioner or student can bring an
application to change or remove a condition on their registration or to change or revoke an
undertaking they give if there has been a material change in circumstances (see section
125(2)(a)). Similarly, a National Board may change a condition during a review period if the
Board reasonably believes there has been a material change in circumstances (see section
126(3)(a)). These provisions provide flexibility for matters to be reviewed when
circumstances have changed and the conditions or undertakings are no longer appropriate,
despite a review period not having been completed.
The use of "review periods" appropriately balances the need for conditions of registration and
undertakings to be subject to appropriate review, while also providing certainty to
practitioners about the minimum period before a review can be sought to enable sufficient
time for resolution of the issues related to the condition or undertaking or to prevent the
practitioner from immediately seeking a review once a condition or undertaking is changed.
Deciding a review of a suspension arising from a health panel decision on the basis of
documents
The amendments to section 184 of the National Law to allow a health panel to decide the
reconsideration of a suspension of registration on the basis of documents potentially infringe
the fundamental legislative principle that legislation should have regard to the rights and
liberties of individuals and consistency with the principles of natural justice (Legislative
Standards Act 1992, section 4(3)(b)).
The suspension of a practitioner's or student's registration by a health panel is one of the
options available to a health panel if the panel finds that a practitioner has an 'impairment'
(see section 191(3)(b)). 'Impairment' is defined in section 5 of the National Law as a " ...
physical or mental impairment, disability, condition or disorder (including substance abuse or
dependence) that detrimentally affects or is likely to detrimentally affect ... a person's
capacity to practise ... or a student's capacity to undertake clinical training ... ". The
suspension of registration by a health panel is only used in the most serious cases, usually
where a health practitioner or student has a long-term health condition that prevents them
from practising or studying.
The Bill amends section 191 of the National Law to provide that if a health panel suspends a
practitioner's or student's registration, it must also decide a date by which the suspension be
reconsidered (see clause 33, new section 191(4A)). This new provision is an enhancement to
the rights of practitioners and students affected by a suspension, as it will give them a degree
of certainty that their suspension will be reviewed at an appropriate time.
Clause 32 of the Bill (insertion of new section 184(3)) allows a health panel reconsidering a
practitioner's or student's suspension to decide a hearing entirely on the basis of documents,
without parties, their representatives or witnesses appearing at the hearing. This is commonly
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
referred to as a hearing "on the papers". The purpose of this provision is to provide flexibility
for a health panel. For example, after an initial suspension is decided on the basis of a
hearing, it may only be necessary to receive an updated report from the treating practitioner
to decide that a practitioner or student's suspension should continue (for example, if the
practitioner's or student's illness has not improved or has deteriorated). If a practitioner or
student has a long-term illness, it also may not be practical or possible for them to attend a
hearing in person and proceeding on the basis of documents may be entirely appropriate.
However, the amendment is consistent with natural justice because it also gives an affected
practitioner or student the right to request a hearing if they wish (see clause 32, new section
184(4)).
Scope of application of prohibition orders
The amendments to section 196 of the National Law and sections 107 and 113 of the Health
Ombudsman Act 2013 (Qld) dealing with the scope of application of prohibition orders
potentially infringe the fundamental legislative principle requiring justification for the
abrogation of established statute law rights and liberties.
The Bill amends section 196(4)(b) of the National Law to allow a responsible tribunal to
issue a prohibition order to prohibit a person from providing any health service or a specified
health service or using any protected title or a specified title (see clause 36). The provision
also clarifies that a prohibition order may be for a stated period or may be permanent.
Equivalent amendments are made to sections 107 and 113 of the Health Ombudsman Act
2013 (Qld) (see clauses 76 and 77).
These amendments potentially infringe a person's right to practice a health profession or earn
a living through their profession or training. The amendments have a greater reach than
current provisions by giving greater flexibility to make appropriate orders where a person is
not a fit and proper person to continue providing any kind of health service.
The cancellation of registration and making of a prohibition order under section 196(4)(b) of
the National Law or sections 107 and 113 of the of the Health Ombudsman Act 2013 (Qld)
only occur in the most serious cases, usually where practitioners have engaged in serious
conduct, which may include sexual boundary violations, criminal offences or professional
incompetence resulting in serious harm or death of a patient. The orders are made by the
"responsible tribunal" in each jurisdiction (for example, QCAT in Queensland) after hearing
all of the evidence in relation to a particular person. The responsible tribunal is in the best
position to make appropriate orders based on the facts and circumstances of each case.
This issue was identified as part of the independent review of the National Scheme and
recommended in the final report of the independent review. The amendments ensure the
public is protected where a person is not a fit and proper person to continue providing any
kind of health service.
Offence for breach of a prohibition order
The Bill includes a new offence for breaching a prohibition order, with a maximum penalty
of $30,000 (see clause 37, new section 196A(1)). The National Law does not currently
contain any offences for a person who does not comply with a prohibition order made under
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
section 196(4)(b). The making of a prohibition order has limited protective effect if there are
no offences for breach of an order.
As outlined above, prohibition orders are made under section 196(4)(b) only in the most
serious cases, usually where practitioners have engaged in serious conduct, which may
include sexual boundary violations, criminal offences or professional incompetence resulting
in serious harm or death of a patient. A prohibition order is made by the responsible tribunal
in each jurisdiction and it is expected that a person will comply with the order.
Contravening a prohibition order is considered a very serious offence. The penalty was set at
$30,000 to be equivalent to the highest maximum penalties for the most serious offences in
the National Law, such as using a restricted title (section 113), holding out to be a registered
health practitioner (section 116) or undertaking restricted practices (sections 121, 122 and
123).
Application of Australian Information Commissioner Act 2010 (Cwlth)
The insertion of new section 212A applying the Australian Information Commissioner Act
2010 (Cwlth) for the purposes of the National Law potentially infringes the fundamental
legislative principle that legislation should have sufficient regard to the institution of
Parliament by ensuring it authorises the amendment of an Act only by another Act
(Legislative Standards Act 1992, section 4(4)(c)).
New section 212A(2)(c) permits the national regulations to modify the application of the
Australian Information Commissioner Act 2010 (Cwlth). This would ordinarily be regarded
as an unacceptable Henry VIII provision. However, section 212A(2)(c) aligns with the
approach already taken in sections 213(2)(c) and 215(2) of the National Law in relation to the
Privacy Act 1988 (Cwlth) and Freedom of Information Act 1982 (Cwlth).
These provisions were discussed and justified in the explanatory notes for the Health
Practitioner Regulation National Law Bill 2009 in the following terms:
The Bill includes regulation-making powers that would normally be regarded in Queensland
as Henry VIII provisions. For example, clause 213 provides for the Commonwealth Privacy
Act to apply to the National Law, for the purposes of the National Scheme. Importantly, the
National Law tailors this application by providing that a reference to the Commonwealth
Office of the Privacy Commissioner in the Commonwealth Act is as if it were a reference to
the Office of the National Health Practitioners Privacy Commissioner. Further, the proposed
legislation provides that the Commonwealth law applies with any other modifications made
by the National Law regulations. ... The same approach is used in relation to Freedom of
Information (clause 215) and the Ombudsman (clause 235).
This approach addresses concerns about having State law purport to unilaterally give
functions to Commonwealth entities where there is no corresponding Commonwealth law
providing for that entity to perform those functions for the purpose of the State law.
The SLC [Scrutiny of Legislation Committee] has previously recognised that this kind of
approach may be a practical necessity of taking part in national scheme legislation to
achieve uniformity.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
These provisions are necessary to align with the approach already taken in the National Law
in relation to the Privacy Act 1988 (Cwlth) and Freedom of Information Act 1982 (Cwlth)
and to ensure the privacy and freedom of information functions operate in a nationally
consistent way across all States and Territories.
Prescribing an entity in regulations to issue a Diploma of Paramedical Science
Clause 52 of the Bill inserts a new definition of 'Ambulance Service of New South Wales' in
proposed new section 306 which potentially infringes the fundamental legislative principle
that legislation should have sufficient regard to the institution of Parliament by ensuring it
authorises the amendment of an Act only by another Act (Legislative Standards Act 1992,
section 4(4)(c)).
The new section 312 inserted by clause 52 of the Bill recognises that an individual who holds
a Diploma of Paramedical Science issued by the Ambulance Service of New South Wales is
qualified for general registration in paramedicine for section 52(1)(a) of the National Law.
Only a person with a diploma issued by the Ambulance Service of New South Wales is
qualified in this way.
The definition of 'Ambulance Service of New South Wales' in new section 306 provides that
the national regulations may prescribe another entity in place of the Ambulance Service of
New South Wales, for the purpose of issuing a Diploma of Paramedical Science.
At present, the Diploma of Paramedical Science is issued by the Ambulance Service of New
South Wales, which is the registered training organisation authorised to issue the diploma.
However, in future it is possible that due to a reorganisation of government services or
another reason, the diploma may be delivered by another training entity in place of the
Ambulance Service of New South Wales. The definition merely allows for such a change in
operational arrangements to be recognised. Such a change would require the agreement of all
participating jurisdictions as the matter would need to be specified in the national regulations.
Consultation
Amendments to the National Law
The independent review conducted by Mr Kim Snowball in 2014 involved an extensive
consultation process, including consultation forums in each capital city and more than 230
written submissions were received.
Consultation on the amendments in the Bill was held from 2 February 2017 to 22 February
2017. A summary document and a Frequently Asked Questions document outlining the
proposed changes to the National Law were widely distributed to national stakeholders by the
Victorian National Registration and Accreditation Scheme (NRAS) Secretariat, that is
responsible for coordination of policy matters related to the National Law. Each State and
Territory also distributed the documents widely to State, Territory and local stakeholder
groups. The stakeholders consulted included the following groups:
• Forum of NRAS Chairs: Australian Health Practitioner Regulation Agency (AHPRA)
Agency Management Committee, Aboriginal and Torres Strait Islander Health Practice
Board of Australia, Chinese Medicine Board of Australia, Chiropractic Board of
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Australia, Dental Board of Australia, Medical Board of Australia, Medical Radiation
Practice Board of Australia, Nursing and Midwifery Board of Australia, Occupational
Therapy Board of Australia, Optometry Board of Australia, Osteopathy Board of
Australia, Pharmacy Board of Australia, Physiotherapy Board of Australia, Podiatry
Board of Australia and Psychology Board of Australia
• Professions Reference Group: Australasian Podiatry Council, Australian Dental
Association, Australian Institute of Radiography, Australian Medical Association,
Australian Nursing and Midwifery Federation, Australian Physiotherapy Association,
Australian Psychological Society, Federation of Chinese Medicine & Acupuncture
Societies of Australia, Chiropractors Association of Australia, Committee of Presidents
of Medical Colleges, Health Professions Accreditation Councils' Forum, National
Aboriginal and Torres Strait Islander Health Worker Association, Occupational Therapy
Australia, Optometry Australia, Osteopathy Australia and Pharmacy Guild of Australia
• AHPRA Community Reference Group: consists of members from the community who
are not registered health practitioners
• Health Professions Accreditation Councils Forum: Australian Dental Council,
Australian Medical Council, Australian Nursing and Midwifery Accreditation Council,
Australian Pharmacy Council, Australian Physiotherapy Council, Australian Psychology
Accreditation Council, Australian and New Zealand Osteopathic Council, Australian and
New Zealand Podiatry Accreditation Council, Council on Chiropractic Education
Australasia Inc, Optometry Council of Australia and New Zealand and Occupational
Therapy Council (Australia and New Zealand) Ltd
• National Paramedics Reference Group: AHPRA, Australia & New Zealand College of
Paramedics, Ambulance Employees Australia, Student Paramedics Australasia,
Consumer Health Forum of Australia, Council of Ambulance Authorities Inc, Joint
Health Command Department of Defence Health Workforce Development and Training,
National Association Paramedic Academics, National Council of Ambulance Unions,
Paramedics Australasia, Private Paramedics Australasia, NSW Health Professional
Councils Authority and St John Ambulance
• National Health Practitioner Ombudsman and Privacy Commissioner
• Health Complaints Commissioners in each State and Territory
• other stakeholders, including consumer representative groups, professional associations,
unions, public and private health service providers, private health insurers, primary
health networks, higher education providers and other jurisdictional specific
stakeholders.
The following national forums and briefings were held with stakeholders:
• 6 February 2017 - National Scheme stakeholder consultation forum, which 56 people
attended in Melbourne
• 6 February 2017 -National Paramedic Stakeholder Reference Group consultation forum,
which 21 people attended in Melbourne
• 15 February 2017 - briefing with the National Health Practitioner Ombudsman and
Privacy Commissioner in Melbourne
• 22 February 2017 - briefing with the Health Complaints Commissioners by
teleconference.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
In additional to the national consultation forums, the following local forums and briefings
were held:
• Australian Capital Territory - held briefings with ACT Ambulance representatives
• New South Wales - held briefings with Australian Paramedics Association NSW,
Health Services Union NSW, Australian Medical Association NSW, Australian Salaried
Medical Officers' Federation NSW, Health Professional Councils Authority NSW,
Health Care Complaints Commission NSW and Medical Services Committee NSW
• Northern Territory - held briefings with NT Health representatives and Aboriginal
Health practitioners
• Queensland:
o the consultation documents were widely distributed to over 120 key Queensland
stakeholders including Queensland-based professional associations, unions, public
and private health service providers, primary health networks and higher education
providers
o a combined National Scheme and paramedic stakeholder briefing was held in
Brisbane on 21 February 2017 and approximately 30 people attended, either in person
or by videoconference, and
o a separate briefing was provided to the Queensland Health Ombudsman on 15
February 2017
• South Australia - offered to meet with: SA Ambulance Service, Ambulance
Employees' Association, SiteMed, Paramedics Australasia (SA Branch), FirstCare
Medical Services Australia, IMS Ambulance Services and EMT Ambulance South
Australia
• Western Australia - held a National Scheme stakeholder consultation forum, which 56
people attended in Perth on 17 February 2017 and a separate paramedic stakeholder
forum, which approximately 35 people attended in Perth also on 17 February 2017.
In total, over 200 stakeholders attended consultation forums and briefings in person or by
teleconference or videoconference during the consultation period and were given the
opportunity to make written submissions. Confidential copies of the draft Bill were provided
at the national and Western Australian face to face consultation forums.
Twenty-four written submissions were received on the draft Bill after the forums from the
following stakeholders:
1. Individual practitioner (name withheld)
2. Individual consumer (name withheld)
3. Health Professional Councils Authority NSW
4. Medical Services Committee NSW
5. Paramedics Australasia
6. Australian Physiotherapy Association
7. Australian Nursing and Midwifery Federation
8. Edith Cowan University
9. North West Hospital and Health Service, Queensland
10. Queensland University of Technology
11. Queensland Ambulance Service
12. Royal Australasian College of Surgeons
13. Queensland Nurses Union
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
14. Australian Health Care Reform Alliance
15. Avant Mutual Group
16. Gold Coast Hospital and Health Service, Queensland
17. Department of Defence
18. Australian and New Zealand College of Paramedicine
19. Australian Psychological Society
20. University of the Sunshine Coast
21. Australian Medical Association
22. Metro North Hospital and Health Service, Queensland
23. Australian Paramedics Association (NSW)
24. MIGA Medical Insurance Group Australia
Results of consultation
Stakeholders were generally supportive of the amendments to the National Law, in particular
those amendments which will give effect to registration for paramedics, and those which will
enable improvements in notifications management and disciplinary and enforcement powers
of National Boards to strengthen public protection and ensure fairness for complainants and
practitioners. Key issues raised by stakeholders are outlined below.
Registration of paramedics with a Diploma of Paramedicine issued by the Ambulance Service
of New South Wales
All paramedic stakeholders expressed strong support for national registration of paramedics
and welcomed the decision of New South Wales to participate in the registration of
paramedics under the National Scheme. However, concerns were raised, both at consultation
forums and in submissions, about the provisions contained in the Bill for recognition of the
Diploma of Paramedicine qualifications issued by the Ambulance Service of New South
Wales (see clause 52, new section 312). Stakeholders put forward two proposals to address
their concerns:
• that a sunset clause be included in the Bill to set a time limit on acceptance of the New
South Wales diploma qualification, or
• that the New South Wales diploma qualification be subject to the accreditation standards
and processes to be established and administered by the Paramedicine Board under the
National Law, like all other qualifications that are approved for the purpose of general
registration.
No changes were made to the Bill as a result of feedback from stakeholders. The Bill reflects
the policy position agreed by the COAG Health Council and ensures that paramedic
registration will proceed in all jurisdictions, including New South Wales. While some
stakeholders raised concerns about the inclusion of the New South Wales diploma
qualification as an 'accepted' qualification for general registration, there is widespread
support for progressing national arrangements for registration of paramedics.
The Bill makes it clear that only a Diploma of Paramedicine issued by the Ambulance
Service of New South Wales is an 'accepted' qualification and not diploma level
qualifications issued by other providers. The Ambulance Service of New South Wales
recruits and trains paramedics 'on-the-job' as part of their diploma qualification and the New
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
South Wales Government sought to retain this pathway as part of their participation in the
National Scheme for paramedics.
All applicants for registration, including applicants who hold the 'accepted' New South
Wales qualification, will be required to meet all other registration standards to be developed
by the Paramedicine Board, such as requirements for continuing professional development,
recency of practice and criminal history.
In relation to submissions about subjecting the New South Wales diploma qualification to the
accreditation processes of the National Law, this was not agreed by the COAG Health
Council. New South Wales provides oversight of the diploma qualification as fit-for-purpose
for registered paramedics. However, the National Law does not prevent the Paramedicine
Board from approving the NSW diploma qualification for the purpose of general registration.
New powers to enable the COAG Health Council to make changes to the structure of
National Boards by regulation
A number of stakeholders, including members of the Forum of NRAS Chairs and the
Professions Reference Group, expressed concern at the face to face forums and in written
submissions, about whether there would be sufficient consultation with stakeholders prior to
the COAG Health Council exercising powers to change the structure of National Boards by
regulation. They sought inclusion of a statutory obligation on the COAG Health Council to
consult with stakeholders in the Bill prior to exercising these powers.
In response to these concerns, clause 5 of the Bill includes new section 31(4) to enshrine the
requirement to consult on changes to the structure of National Boards in the National Law.
Chairpersons to be appointed on merit from any of the members of a National Board
A number of stakeholders, including members of the Professions Reference Group, expressed
concern about a proposed amendment that would have enabled the COAG Health Council to
make appointments of community members to the position of Chairperson of National
Boards. In Queensland, the Australian Medical Association Queensland and Queensland
Nurses and Midwives' Union reiterated the concerns of their national bodies about this
amendment and the Australian Dental Association Queensland also opposed the amendment.
These stakeholders expressed the view that the Chairperson of a National Board should have
specialist knowledge, skills and expertise in the relevant profession.
As a result of consultation, it was decided to defer this amendment to the second stage of
reforms to the National Law for further consideration.
National Board may ask registered health practitioner for 'practice information'
A number of stakeholders, including the Australian Medical Association, raised concerns
about the breadth of the new definition of 'practice information', and whether it might
unintentionally impose an obligation to provide details of all staff in a hospital, when the
medical practitioner simply rents rooms there.
Section 39 of the National Law empowers the National Boards to issue guidelines to provide
guidance to health practitioners. The Bill inserts a new example in section 39 which states
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
that a National Board may make guidelines about 'practice information' to be provided under
section 132 of the Bill (see clause 8). The guidelines will enable National Boards and
AHPRA to provide practical information and guidance to practitioners about expectations of
information to be provided. Stakeholders will be consulted in the development of these
guidelines.
In addition, in response to stakeholder feedback on specific issues, minor changes were made
to the draft clause to clarify its application.
Grounds for taking 'immediate action' under the National Law
Some stakeholders expressed concern in relation to the amendment to broaden the grounds on
which a National Board may take immediate action against a registered health practitioner or
student to enable immediate action 'in the public interest' (clause 24, amendment of section
156). The potential for a subjective interpretation of 'public interest' was raised as a concern,
and that the current test, as provided for in section 156(1)(a) of the National Law, is sufficient
grounds for the taking of immediate action.
This issue is discussed in detail under the heading 'Consistency with fundamental legislative
principles - Grounds for taking immediate action - 'public interest test'', which provides
details about why this provision is required in the Bill.
Improving communication with notifiers
Some stakeholders expressed support for amendments to improve communication with
notifiers, while also expressing concern that the privacy and confidentiality of practitioners
should be protected in the exercise of these powers. AHPRA and the National Boards have
agreed to develop a common protocol about what information is appropriate to be shared with
notifiers at key points, taking into account the circumstances of each case. The protocol will
address issues associated with privacy and confidentiality of information about practitioners.
Review of a suspension arising from a health panel decision
Stakeholders supported amendments in the Bill to set a date for reconsidering a suspension of
registration arising from a health panel decision (see clause 33, insertion of new section
191(4A)). However, some stakeholders requested that a practitioner should be able to apply
for a review of the suspension before the set date for reconsideration, if there has been a
material change in the circumstances which led to the suspension. A new provision was
included in the Bill to enable a panel to decide an earlier date for reconsidering a suspension
if the panel is reasonably satisfied this is necessary because of a material change of
circumstances. The panel is also required to give reasons for a decision not to agree to an
earlier reconsideration date (see clause 34 and new sections 191B(2) and (3)).
Amendments to Health Ombudsman Act 2013 (Qld)
A summary document outlining proposed amendments to the Health Ombudsman Act was
widely distributed on 23 March 2017 to key stakeholders in Queensland, including
professional associations and bodies, unions, external health sector organisations and medical
indemnity insurers. Stakeholders were asked to respond by 6 April 2017.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Ten (10) written submissions were received from the following stakeholders:
1. Australian Health Practitioner Regulation Agency (AHPRA)
2. Queensland Nurses and Midwives' Union (QNMU)
3. Royal Australasian College of Surgeons (RACS)
4. Australian Medical Association Queensland (AMAQ)
5. Australian Dental Association Queensland (ADAQ)
6. Australian Society of Medical Imaging and Radiation Therapy (ASMIRT)
7. Massage & Myotherapy Australia (MMA)
8. Australian Lawyers Alliance
9. Avant Mutual Group Limited
10. Medical Insurance Group Australia Pty Ltd (MIGA)
The Health Ombudsman and AHPRA were also both closely consulted during the
development of the amendments.
Results of consultation
Stakeholders were generally supportive of the proposed amendments to the Health
Ombudsman Act, however a number of stakeholders raised issues with particular
amendments.
The QNMU, ADAQ, Avant Mutual Group and MIGA raised concerns about the amendments
to allow the Health Ombudsman to take 'immediate registration action' or issue an 'interim
prohibition order' if the Health Ombudsman reasonably believes the action is 'in the public
interest' (clauses 65 and 69, amendments to sections 58 and 68). The amendments will align
the Health Ombudsman Act with the changes made to section 156 of the National Law,
ensuring consistency between the powers of the National Boards and the Health Ombudsman.
This is particularly important for registered health practitioners who may be dealt with under
either the National Law or the Health Ombudsman Act. If this change were not made to the
Health Ombudsman Act, it would mean a different test would apply in Queensland than the
rest of the country in relation to the threshold for taking 'immediate action'. It would also
mean practitioners dealt with under the National Law (for less serious matters) would be
subject to the 'public interest' test for immediate action, but practitioners dealt with under the
Health Ombudsman Act (for more serious matters) would not be subject to the same test.
MIGA was also concerned that the amendments use the terminology 'reasonably believes'
rather than 'satisfied', which is used in section 150 of the Health Practitioner Regulation
National Law (NSW). The use of 'reasonably believes' is not intended to introduce a different
threshold test for action than applies under the New South Wales provision. Rather,
'reasonably believes' is used to align with the existing language used in section 58 of the
Health Ombudsman Act and section 156 of the National Law.
Further justification and details about this amendment are considered under the heading
'Consistency with fundamental legislative principles - Grounds for taking immediate action -
'public interest test''.
The QNMU also raised concerns with the amendments to sections 107(4)(b) and 113(4)(a) of
the Health Ombudsman Act which allow QCAT to issue a prohibition order to prohibit a
person from providing any health service or a specified health service or using any protected
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
title or a specified title. The QNMU argued that the amendment could be uncertain and that
QCAT should be required to specify the types of health services which a person is prohibited
from providing.
In the majority of cases, QCAT will specify the health service or services which a person is
prohibited from providing. However, in extreme cases, the intent of the amendment is to
allow QCAT to issue an order preventing a person from providing any health service. This
type of order would be reserved for the most serious of cases, such as sexual boundary
violations, serious criminal offences or professional incompetence resulting in serious harm
or death of a patient. The amendments are being retained in the Bill, which will also ensure
consistency with the powers of QCAT under the National Law. In addition, some
stakeholders are supportive of the amendments. Massage and Myotherapy Australia supports
the amendments, which address the issue of registered health practitioners (such as
chiropractors, osteopaths or physiotherapists) who let their registration lapse or who are de-
registered, who may choose start practising massage or myotherapy as an alternative career.
As part of the Committee inquiry into the Health Ombudsman, the Ombudsman requested an
amendment to section 44 of the Health Ombudsman Act to permit the Ombudsman to take no
further action on a complaint if the matter was already being dealt with by the Ombudsman.
The rationale for the amendment was to allow the Health Ombudsman to take no further
action on a complaint where the same complaint had already been received from another
person and was being dealt with. The Australian Lawyers Alliance did not support the
amendment on the basis that it does not promote transparency for dealing with health
complaints or provide complainants with a fair system for considering and acting on
complaints. The amendment would also prevent a subsequent complainant from being
informed about the outcome of the complaint. As a result of this feedback, this amendment
was removed from the Bill. It will be considered further in the context of the other
recommendations from the Committee Report and will be discussed further with the Health
Ombudsman.
In response to a range of specific issues raised by stakeholders, other minor amendments
were made to the Bill as a result of the consultation process.
Consistency with legislation of other jurisdictions
It is expected that all states and territories will give effect to the amendments to the National
Law in the Bill.
If the Bill is passed in Queensland, the changes to the National Law apply automatically in all
other States and Territories, except for Western Australia which must pass its own separate
legislation, and South Australia where regulations must be made to adopt the changes.
The changes to the health, performance and conduct process of part 8 of the National Law
will not apply to New South Wales practitioners as New South Wales is a co-regulatory
jurisdiction which does not participate in the health, performance and conduct process of part
8 of the National Law. In New South Wales, the health professional councils work with the
Health Care Complaints Commission to assess and manage concerns about practitioners.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Notes on provisions
Part 1 Preliminary
Short title
Clause 1 states this Act may be cited as the Health Practitioner Regulation National Law and
Other Legislation Amendment Act 2017.
Commencement
Clause 2 sets out the commencement of provisions of the Bill. Section 15A of the Acts
Interpretation Act 1954 (Qld) provides that "an Act commences on the date of assent except
so far as the Act otherwise expressly provides". Therefore, those provisions of the Bill that
are not mentioned in clause 2 commence on assent of the Bill.
Part 2 Amendment of Health Practitioner Regulation
National Law Act 2009
Division 1 Amendment of the Health Practitioner Regulation National Law
Law amended
Clause 3 states that division 1, part 2 amends the Health Practitioner Regulation National
Law (the National Law). The Health Practitioner Regulation National Law is the schedule to
the Health Practitioner Regulation National Law Act 2009 (Qld).
Amendment of s 5 (Definitions)
Clause 4 amends definitions in section 5.
Clause 4(1) omits the definition of "CrimTrac" and clause 4(3) inserts a new definition of
"ACC" in its place. The CrimTrac Agency was merged into the Australian Crime
Commission from 1 July 2016 under the Australian Crime Commission Amendment
(National Policing Information) Act 2016 (Cwlth). The new definition of "ACC" refers to the
Australian Crime Commission established under section 7 of the Australian Crime
Commission Act 2002 (Cwlth).
Clause 4(1) also omits the definition of "Ministerial Council" and clause 4(3) inserts a new
definition in its place. The National Law defines "Ministerial Council" as the Australian
Health Workforce Ministerial Council comprising Ministers of the governments of the
participating jurisdictions and the Commonwealth with portfolio responsibility for health.
The structure and names of Ministerial Councils are revised by COAG from time to time. The
Australian Health Workforce Ministerial Council no longer exists as a separate Ministerial
Council and its work has been included in the ambit of the COAG Health Council. Appendix
11 of the final report of the independent review states:
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Legislative amendments are to be made to the National Law ... to recognise the COAG
Standing Council on Health to be the Ministerial Council for the purposes of the legislation.
The new definition of "Ministerial Council" is the COAG Health Council, or a successor of
the COAG Health Council (regardless of the name of the successor body) constituted by
Ministers of the governments of the participating jurisdictions and the Commonwealth with
portfolio responsibility for health. The new definition takes into account that the name of the
Ministerial Council may change in future.
Clause 4(2) omits the definition of "National Board" and clause 4(4) inserts a new definition.
The new definition refers to National Health Practitioner Boards continued or established by
regulations. The new definition is related to the amendments to section 31 (see below).
Clause 4(5) inserts a new definition of "prohibition order". The new definition responds to
recommendation 29 of the independent review which stated: "That the Health Practitioner
Regulation National Law 2009 prohibition order powers be amended to provide the means
for Tribunals to prohibit the person from providing any type of health service, to establish an
offence for breaching a prohibition order and to provide for mutual recognition of prohibition
orders issued by jurisdictions." [emphasis added] The purpose of the new definition is to
ensure mutual recognition of prohibition orders issued in any participating jurisdiction. The
new definition makes it clear that in addition to including a decision by a responsible tribunal
of "this jurisdiction" under section 196(4)(b), it also extends to a decision by a responsible
tribunal of "another participating jurisdiction" under section 196(4)(b) as it applies in the
other jurisdiction. This will ensure, for example, that a "prohibition order" made under the
National Law as it applies in South Australia is captured by the definition of "prohibition
order" for the purpose of applying new section 196A of the National Law in Queensland.
New section 196A makes it an offence to contravene a prohibition order. Therefore, it would
be an offence to engage in conduct in Queensland which contravenes a prohibition order
made in South Australia. The definition also refers to prohibition orders made in the co-
regulatory jurisdictions of New South Wales and Queensland, under section 149C(5) of the
Health Practitioner Regulation National Law (NSW) and a decision under section 107(4)(b)
of the Health Ombudsman Act 2013 (Qld), respectively.
Clause 4(6) amends the definition of "health profession" to list "nursing" and "midwifery" as
separate professions. This amendment implements recommendation 27 of the report of the
independent review which states: "That the Health Practitioner Regulation National Law
2009 be amended to reflect and recognise that nursing and midwifery are two professions
regulated by one National Board."
Clause 4(7) amends the definition of "health profession" to add "paramedicine". This has the
effect of making paramedicine one of the health professions regulated by the National Law.
Replacement of s 31 (Establishment of National Boards)
Clause 5 replaces section 31 and provides that the regulations must provide for a National
Health Practitioner Board for each health profession.
New section 31(2) provides that the regulations may:
• continue an existing National Board for a health profession
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• establish a National Board for a health profession or for two or more health professions,
or
• dissolve a National Board for a health profession if it is replaced by another Board
established for that profession.
These provisions provide flexibility to change the structure of National Boards by regulations
made by the Ministerial Council.
New section 31(3) provides that regulations may make transitional arrangements for a new
National Board structure in regulations. This includes that the regulations may provide for
anything necessary or convenient to make provision to allow, facilitate or provide for:
• the continuation, establishment or dissolution of a National Board
• the completion of a matter started by the existing National Board before the
commencement
• the effect of anything done by an existing National Board before the commencement, and
• the transfer of matters from a dissolved Board to a replacement Board.
New section 31(4) contains a requirement to undertake public consultation before making a
regulation which puts in place a new structure for National Boards. New section 31(5)
provides that a failure to consult does not affect the validity of a regulation.
The definition of "existing Board" in new section 31(6) is "a National Health Practitioner
Board in existence immediately before the commencement". "Commencement" is defined in
section 12 of schedule 7 of the National Law as " ... the time at which this ... provision
comes into operation". As well as referring to the National Boards mentioned in current
section 31 of the National Law, the definition of "existing Board" is intended to capture the
"Paramedicine Board of Australia" established in clause 52 of the Bill (new section 307).
Clause 52 will commence on assent of the Bill, while clause 5 commences on proclamation.
As such, by the time clause 5 commences, the "Paramedicine Board of Australia" will be in
existence and therefore captured by the definition of "existing Board".
Clause 5 also inserts new section 31A (Status of National Board). Section 31A replicates
what is currently contained in section 31(2) and (3) of the National Law.
Amendment of s 33 (Membership of National Boards)
Clause 6 makes amendments to section 33 of the National Law about membership of
National Boards.
Clause 6(1) amends section 33(5) to provide that if a National Board is established for two or
more health professions, the practitioner members of the National Board must consist of at
least one member of each health profession for which the Board is established.
Clause 6(2) inserts a new section 33(9A) to provide that the regulations may prescribe
matters relating to the composition of practitioner members for a National Board established
for two or more health professions. This power allows Ministers to make regulations about
the representation of practitioners on a multi-profession Board. As with all changes to the
National Law and regulations, any such regulation would require the approval of Health
Ministers.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Amendment of s 34 (Eligibility for appointment)
Clause 7 makes consequential amendments to section 34 to reflect the amendments to section
31 which enable the COAG Health Council to make changes to the structure of National
Boards by regulation. In future, a National Board may be established for two or more health
professions.
Section 34(2) is amended to provide that a person is eligible to be appointed as a practitioner
member of a National Board if the person is a registered health practitioner in a health
profession for which the Board is established. Section 13(4) of schedule 7 of the National
Law provides that in the National Law, "words in the singular include the plural". As a result,
the effect of new section 34(2) is that a person is eligible to be appointed as a practitioner
member of a National Board if the person is a registered health practitioner in any health
profession for which the Board is established.
Section 34(3) is amended in a similar way to make it clear that a person is eligible to be
appointed as a community member only if the person is not, and has not at any time been, a
health practitioner in a health profession for which the Board is established.
Section 34(4)(a) is amended in a similar way. The new section 34(4)(a) makes it clear that a
person is not eligible to be appointed as a practitioner member of a National Board if the
person has, whether before or after the commencement of this Law, as a result of misconduct,
impairment or incompetence, ceased to be registered as a health practitioner in a health
profession for which the Board is established. For example, if a Board member is registered
in two health professions regulated by a National Board and loses registration in only one of
those professions due to misconduct, impairment or incompetence, this would be sufficient to
make them ineligible to be appointed or to continue as a Board member.
Amendment of s 39 (Codes and guidelines)
Clause 8 amends the examples in section 39. The current example in section 39 is retained as
the first example. The Bill includes a second example in section 39 which provides that a
National Board may, to assist health practitioners in providing practice information to a
National Board under new section 132, develop guidelines about the information that must be
provided to the Board. The guidelines will contain practical information about how the
concept of 'practice information' in the National Law applies to common employment,
contracting and volunteering arrangements.
Amendment of s 56 (Period of general registration)
Clause 9 amends section 56 to enable a National Board to decide an application for
registration, with registration to commence up to 90 days after the day the National Board
makes the decision.
Under current section 56(2) of the National Law, a health practitioner's registration takes
effect when the Board makes the decision to grant registration. This requirement creates
administrative challenges, particularly for processing applications for registrants moving
from student to general registration, interns moving to general registration and internationally
qualified practitioners trying to meet the multiple requirements of National Boards,
employers and immigration authorities.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Appendix 11 of the report of the independent review states: "There are a number of instances
when it would be of value for the Board to commence registration on a date to be
determined." The Bill implements this suggested change.
Amendment of s 65 (Eligibility for limited registration)
Clause 10 amends section 65 to enable a health practitioner who holds general or limited
registration in one division of the register for a profession to obtain limited registration in
another division of the register for the same profession, if they are not qualified for general
registration under the other division and they otherwise meet the qualification and other
requirements for limited registration.
A number of health professions under the National Law have "divisions" within the National
Register to designate practitioners of different types. For example, the Register of Dental
Practitioners has divisions for dentists, dental therapists, dental hygienists, dental prosthetists
and oral health therapists. The Register of Medical Radiation Practitioners has divisions for
diagnostic radiographers, nuclear medicine technologists and radiation therapists. Details of
the divisions for the professions of Chinese medicine practitioners and nurses are set out in
section 222 of the National Law.
Section 65(1)(a) currently provides that a person is only eligible for limited registration if the
person is not qualified for general or specialist registration.
For professions with several divisions of registration, this means it is not possible for a
practitioner who holds general or limited registration in one division of the register to be
granted limited registration in another division of the same profession. This is problematic for
those upskilling and limits workforce flexibility. For example, a person may hold general or
limited registration as a dental therapist or hygienist and require limited registration as a
dentist to undertake post-graduate training or supervised practice to qualify for general
registration as a dentist.
Appendix 11 of the report of the independent review referred to the issue in a similar way:
"At this stage, it is not possible to obtain limited registration in a different sub-type within the
same profession (s.65(1)). This has a negative effect on individuals who are registered, for
example, as a dental hygienist but who then want to undertake limited registration, for
example, for the purpose of undertaking examinations to progress to become eligible for
registration as a dentist." The Bill implements this suggested change.
Replacement of s 71 (Limited registration not be held for more than one
purpose)
Clause 11 replaces section 71 of the National Law as a result of the amendments to section
65 referred to above.
Section 71 of the National Law currently states that an individual may not hold limited
registration in the same health profession for more than one purpose under division 4 of part
7 at the same time.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Under new sections 71(1) and (2), the National Law continues to apply as is for health
professions that do not have divisions of the register. However, for professions that have
divisions, new sections 71(3) and (4) provide that health practitioners may not hold limited
registration in the same division of the register for their profession for more than one purpose
under division 4 of part 7 at the same time.
Amendment of s 79 (Power to check applicant's criminal history)
Clause 12 amends the reference to "CrimTrac" in section 79 of the National Law and
replaces it with "ACC" to reflect the merger of the CrimTrac agency into the Australian
Crime Commission. There are no changes to the procedures for criminal history checking
under the National Law as a result of this change of name.
Amendment of s 95 (Endorsement as nurse practitioner)
Clause 13 makes a consequential amendment to section 95 to reflect that National Boards
will be prescribed in regulations made under section 31. The clause replaces the reference to
"Nursing and Midwifery Board of Australia" with a reference to "National Board for the
nursing profession". The definition of "National Board" in the Bill refers to National Boards
continued or established by regulations made under section 31. As there are no current plans
to change the structure of National Boards, the reference to the "National Board for the
nursing profession" will be a reference to the Nursing and Midwifery Board of Australia.
Amendment of s 96 (Endorsement as midwife practitioner)
Clause 14 makes a consequential amendment to section 96 to reflect that National Boards
will be prescribed in regulations made under section 31. The clause replaces the reference to
"Nursing and Midwifery Board of Australia" with a reference to "National Board for the
midwifery profession". The definition of "National Board" in the Bill refers to National
Boards continued or established by regulations made under section 31. As there are no
current plans to change the structure of National Boards, the reference to the "National Board
for the midwifery profession" will be a reference to the Nursing and Midwifery Board of
Australia.
Amendment of s 113 (Restriction on use of protected titles)
Clause 15 amends the table of protected titles to refer to "nursing" and "midwifery" as
separate professions. The following protected titles will continue to apply to the following
professions:
• Midwifery - midwife, midwife practitioner
• Nursing - nurse, registered nurse, nurse practitioner, enrolled nurse
The issue of whether the title "midwife practitioner" needs to be kept in the National Law is
being considered as part of the second stage of amendments to the National Law.
Clause 15 also amends the table of protected titles to include the profession "paramedicine"
and the corresponding protected title "paramedic".
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Amendment of s 118 (Claims by persons as to specialist registration)
Clause 16 amends section 118 to make a technical amendment to correct a drafting error.
Section 118(1) makes it an offence for a person who is not a specialist health practitioner to
claim they are a specialist health practitioner. Section 118(2) makes it an offence for a person
to claim an association with a specialist health practitioner when the other person is not a
specialist health practitioner. Section 118(2)(a) uses the correct formulation "in relation to
another person who is not a specialist health practitioner". Section 118(2)(b) currently only
refers to "in relation to another person". This clause amends section 118(2)(b) to use the
correct formulation "in relation to another person who is not a specialist health practitioner".
Amendment of s 125 (Changing or removing conditions or undertaking on
application by registered health practitioner or student)
Clause 17 amends section 125 of the National Law.
Clause 17(1) amends section 125(2)(b) to provide that an adjudication body may decide
whether or not the procedures in part 7, division 11, subdivision 2 of the National Law apply
"when imposing the condition or at a later time". Further details about this amendment can
be found under the heading 'Achievement of policy objectives - Conditions imposed on
registration by an adjudication body of a co-regulatory jurisdiction'.
Clause 17(2) amends section 125 of the National Law to give National Boards a discretion to
decide a "review period" when a National Board decides to change a registration condition or
an undertaking under section 125. The clause also amends section 125 to provide that if the
National Board decides a review period, the Board must give written notice of the details of
the review period to the practitioner or student at the same time as giving them notice of the
Board's decision under section 125(5). Further details about this amendment can be found
under the heading 'Achievement of policy objectives - Review periods when conditions on
registration or undertakings are changed'.
Amendment of s 126 (Changing conditions on Board's initiative)
Clause 18 amends section 126 of the National Law.
Clause 18(1) amends section 126(3)(b) to provide that an adjudication body may decide
whether or not the procedures in part 7, division 11, subdivision 2 of the National Law apply
"when imposing the condition or at a later time". Further details about this amendment can
be found under the heading 'Achievement of policy objectives - Conditions imposed on
registration by an adjudication body of a co-regulatory jurisdiction'.
Clause 18(2) amends section 126 of the National Law to give National Boards a discretion to
decide a "review period" when a National Board decides to change a registration condition
under section 126. The clause also amends section 126 to provide that if the National Board
decides a review period, the Board must give written notice of the details of the review period
to the practitioner or student at the same time as giving them notice of the Board's decision
under section 126(5). Further details about this amendment can be found under the heading
'Achievement of policy objectives - Review periods when conditions on registration or
undertakings are changed'.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Insertion of new s 127A (When matters under this subdivision may be decided
by review body of a co-regulatory jurisdiction)
Clause 19 inserts a new section 127A which provides a power for a National Board to refer a
matter to a "review body" of a co-regulatory jurisdiction if the National Board considers that
a change or removal of a condition or a change or revocation of an undertaking should be
decided by the review body. This provision will usually apply where a practitioner has moved
to a co-regulatory jurisdiction and has commenced practising in that jurisdiction.
The new section 127A provides that if a review body of a co-regulatory jurisdiction is to
decide a matter instead of the Board, the review body must decide the matter under the laws
of the review body's jurisdiction.
"Review body" is defined as an entity declared by an Act or regulation of a co-regulatory
jurisdiction to be a review body for the purposes of section 127A. In New South Wales, it is
expected that the review body will be a Health Professional Council or the Civil and
Administrative Tribunal of New South Wales. This will need to be declared in an Act or
regulation in New South Wales.
It is unnecessary for Queensland to prescribe any 'review bodies' for this new provision, as
the Queensland co-regulatory arrangements currently allow for transfer of matters between
National Boards and the Health Ombudsman and appeal of National Board decisions to the
Queensland Civil and Administrative Appeals Tribunal.
New South Wales may also make further changes to its own State-based laws to provide for
this situation from a co-regulatory perspective. For example, it is expected that New South
Wales will seek to amend its laws to provide that an "undertaking" given in another
jurisdiction will be converted to a "condition" when the matter is referred to a New South
Wales review body under this provision, as the National Law as it applies in New South
Wales does not provide for undertakings to be given.
Further details about the background to this amendment can be found under the heading
'Achievement of policy objectives - Co-regulatory jurisdiction powers to change conditions
imposed in another jurisdiction'.
Replacement of s 132 (National Board may ask registered health practitioner
for employer's details)
Clause 20 replaces section 132. Section 132 of the National Law currently allows a National
Board to ask a registered health practitioner to inform the Board if the practitioner is
employed by another entity and the employer's details. The term 'employer' has been
interpreted narrowly to only mean those in strict 'employer-employee' relationships.
This issue was identified by AHPRA and the National Boards and referred to in appendix 11
of the report of the independent review, as follows: "s.206 requires that notice of a decision to
take action against a registered health practitioner is communicated to the practitioner's
employer. This definition might be expanded to require notice to all places of practice -
making it clear that s.206 applies equally to contractual arrangements."
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
The Bill replaces section 132 of the National Law so that it applies to a broad range of
different practice arrangements under which a health practitioner may be engaged, including
where the practitioner is an employee, contractor, volunteer, partner in a partnership, where a
practitioner is a member of a practice involving a 'service company' arrangement, the
practitioner is self-employed or working in an honorary capacity. The changes will mean that
no matter what type of arrangements are in place for the engagement of a practitioner, the
practitioner must provide details of the arrangements under which they are engaged and
practising, which is referred to as a requirement to provide 'practice information' in the Bill.
'Practice information' is defined in new section 132(4).
It is expected that most practitioners will fall within paragraph (c) of the definition of
'practice information' in section 132(4). Paragraph (c) covers employment arrangements,
contracts for services and other arrangements or agreements (this covers, for example,
practitioners who are 'credentialed' to practice in a hospital, franchising arrangements and
other contractual arrangements).
Paragraph (d) of the definition of 'practice information' covers voluntary and honorary
appointments and arrangements, such as where a practitioner is volunteering for a charity or
sporting club or holds an honorary appointment.
Paragraph (b) of the definition covers self-employed practitioners who practice alone.
Paragraph (a) covers other arrangements that may not fall within paragraphs (b), (c) or (d),
such as arrangements involving the use of "service companies" to operate a business or
partnership arrangements.
Clause 20 includes a definition of "premises at which the practitioner practices" in new
section 132(4) to make it clear that practitioners are not required to provide information about
the residential addresses of clients or patients where a practitioner provides a 'house call'
service or otherwise visits residential premises.
The National Boards and AHPRA will develop guidelines to assist practitioners about
'practice information' to be provided to the Boards. The National Boards are empowered to
make guidelines under section 39 of the National Law and the Bill includes a new example
stating that a National Board may develop guidelines about 'practice information' to be
provided under section 132 (see clause 8, amendments to section 39).
The guidelines will contain practical information about how the concept of 'practice
information' in the National Law applies to common employment, contracting and
volunteering arrangements. As with all guidelines developed by National Boards under the
National Law, the Board must ensure there is wide-ranging consultation about their content
(see section 40 of the National Law) and stakeholders will be consulted during their
development.
Amendment of s 135 (Criminal history check)
Clause 21 amends the reference to "CrimTrac" in section 135 of the National Law and
replaces it with "ACC" to reflect the merger of the CrimTrac agency into the Australian
Crime Commission. There are no changes to the procedures for criminal history checking
under the National Law as a result of this change of name.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Amendment of s 151 (When National Board may decide to take no further
action)
Clause 22 amends section 151. Section 151 of the National Law sets out the grounds upon
which a National Board may decide to take no further action in relation to a notification.
Section 151(1)(e) currently sets out one of the grounds as: "the subject matter of the
notification is being dealt with, or has already been dealt with, adequately by another entity".
The use of the word "adequately" places an obligation on the National Board to enter into an
assessment about the performance of another entity and whether it has dealt with a matter
"adequately". It is not the National Board's role to review the performance or conduct of
other entities in handling complaints or notifications. As such, this clause removes the word
"adequately" from new section 151(1)(e)(i).
This clause also adds the following grounds upon which a National Board may decide to take
no further action in relation to a notification:
• if a National Board has referred the subject matter of a notification to another entity to be
dealt with by that entity (for example, where the Board refers a matter to a health
complaints entity within a State or Territory), or
• if the health practitioner to whom the notification relates has taken appropriate steps to
remedy the issue the subject of the notification and the Board reasonably believes no
further action is required in relation to the notification.
Amendment of s 155 (Definition)
Clause 23 amends the definition of "immediate action" in section 155. Sections 155, 156 and
159 of the National Law do not explicitly provide for a National Board to revoke one type of
"immediate action" they have taken and substitute another form of "immediate action". For
example, a National Board may wish to revoke the suspension of a practitioner's registration
and substitute a condition of registration (or vice versa). This may occur, for example, if new
information suggests that a condition imposed on registration would be sufficient to protect
public safety. Similarly, new information may suggest that a condition is no longer sufficient
to protect public safety and the practitioner's registration needs to be suspended.
This issue was identified by AHPRA and the National Boards and referred to in appendix 11
of the report of the independent review, as follows: "There is no avenue for ending a
suspension imposed under section 156 (immediate action). This is problematic as a National
Board may want to end a suspension or revoke an undertaking not to practice; and impose
conditions."
To address this issue, this clause amends the definition of "immediate action" in section 155
to clarify that immediate action also includes:
• revoking a suspension and imposing a condition on registration, if immediate action had
previously been taken suspending a health practitioner's or student's registration, and
• suspending registration instead of a condition, if immediate action had previously been
taken imposing a condition on a health practitioner's or student's registration.
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Amendment of s 156 (Power to take immediate action)
Clause 24 amends section 156 to broaden the grounds on which a National Board may take
immediate action against a health practitioner or student to enable immediate action to be
taken by a National Board if it reasonably believes the immediate action is in the public
interest.
Further details about this amendment can be found under the heading 'Achievement of policy
objectives - Grounds for taking 'immediate action' under the National Law' and
'Consistency with fundamental legislative principles - Grounds for taking immediate action -
'public interest test''.
Insertion of new s 159A (Board may give information to notifier about
immediate action)
Clause 25 inserts a new section 159A to provide that, after deciding to take immediate action
against a registered health practitioner or student, a National Board has a discretion to inform
a notifier of the Board's decision to take immediate action and the reasons for the decision.
Further details about the background to this amendment can be found under the heading
'Achievement of policy objectives - Improving communication with notifiers'.
Insertion of new s 167A (Board may give information to notifier about result of
investigation)
Clause 26 inserts a new section 167A to provide that, after considering an investigator's
report and making a decision under section 167 of the National Law, a National Board has a
discretion to inform a notifier of the Board's decision and the reasons for the decision.
Further details about the background to this amendment can be found under the heading
'Achievement of policy objectives - Improving communication with notifiers'.
Amendment of s 171 (Appointment of assessor to carry out assessment)
Clause 27 makes consequential amendments to section 171 as a result of the amendments to
section 31 of the National Law. Section 171 provides that if the National Board requires a
registered health practitioner or student to undergo an assessment, AHPRA must appoint an
assessor chosen by the Board to carry out the assessment. There are certain criteria for
determining how an assessor may be appointed and section 171(2)(b) currently provides that
for a performance assessment, the assessor must be a registered health practitioner who is a
member of the health profession for which the National Board is established. As a result of
the amendments to section 31, which contemplate that a National Board may be established
for two or more health professions, section 171(2)(b) is amended to provide that for a
performance assessment, the assessor must be a member of the same health profession as the
registered health practitioner or student undergoing assessment. This is a drafting change
only and retains the underlying policy of the section.
Insertion of new s 177A (Board may give information to notifier about decision
following assessor's report)
Clause 28 inserts a new section 177A to provide that, after considering an assessor's report
and making a decision under section 177 of the National Law, a National Board has a
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
discretion to inform a notifier of the Board's decision and the reasons for the decision.
Further details about the background to this amendment can be found under the heading
'Achievement of policy objectives - Improving communication with notifiers'.
Replacement of s 180 (Notice to be given to health practitioner or student and
notifier)
Clause 29 replaces section 180. Currently, section 180(1) only requires notice to be given of
decisions under section 179(2). However, a National Board may also make a decision under
s.178(2) (for example, if section 179 does not apply, as provided for in section 179(3)). This
issue was referred to in appendix 11 of the report of the independent review. This clause
makes a minor amendment to section 180(1) to clarify that notice must be given of decisions
made under both sections 178(2) and 179(2).
Section 180(1)(b) of the National Law currently requires notifiers to be informed of the
ultimate outcome of a notification. However, section 180(2) limits the information to be
provided to notifiers "to the extent the information is available on the National Board's
register". This clause replaces section 180(2) with a new provision which gives a National
Board a discretion to inform a notifier of the reasons for the Board's decision and removes
the limitation that previously applied.
Amendment of s 181 (Establishment of health panel)
Clause 30 amends section 181 to provide that a National Board must establish a health panel
if the suspension of a practitioner's or student's registration is to be reconsidered under
section 191(4A) or 191A(2)(c). The Board may appoint the same panel or a different panel to
the one that originally imposed the suspension, depending on the availability of panel
members.
Further details about the background to this amendment can be found under the heading
'Achievement of policy objectives - Review of a suspension arising from a health panel
decision.'
This clause also makes consequential amendments to section 181(2), (4) and (5) as a result of
the amendments to section 31 of the National Law, which contemplate that a National Board
may be established for two or more health professions. The amendments to these sections
replace references to "a registered health practitioner in the health profession for which the
Board is established" with references to "a registered health practitioner in the same health
profession as the registered health practitioner or student the subject of the hearing". These
are drafting changes only and they retain the underlying policy of the section.
Amendment of s 182 (Establishment of performance and professional
standards panel)
Clause 31 makes consequential amendments to section 182 as a result of the amendments to
section 31 of the National Law, which contemplate that a National Board may be established
for two or more health professions. The new section 182(4) inserted by this clause replaces
the reference to "persons who are registered health practitioners in the health profession for
which the Board is established" with a reference to "persons who are registered health
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practitioners in the same health profession as the registered health practitioner the subject of
the hearing". This is a drafting change only and retains the underlying policy of the section.
Amendment of s 184 (Notice to be given to registered practitioner or student)
Clause 32 amends section 184 to provide that if a panel is established to review a suspension
under section 181(1A), the panel may decide the matter on the basis of documents, without
parties, their representatives or witnesses appearing at a hearing if it considers appropriate to
do so (this is often referred to as making a decision "on the papers"). The panel is required to
give a written notice to the practitioner or student that it intends to proceed this way.
If the health practitioner or student gives a written notice to the panel within 14 days
requesting a hearing (rather than having the panel decide the matter "on the papers") and the
health practitioner or student gives an undertaking to be available for the hearing within 28
days, the panel must conduct a hearing.
If the health practitioner or student does not request a hearing within 14 days, the panel may
proceed to decide the matter "on the papers". The power to decide a matter "on the papers" is
proposed to be used by a panel particularly for circumstances where a practitioner has elected
not to continue active involvement in the suspension process, or where a practitioner has a
long term illness that does not allow them to be able to participate in a hearing.
Amendment of s 191 (Decision of panel)
Clause 33 amends section 191 of the National Law to insert a new subsection (4A). New
section 191(4A) provides that if a health panel suspends a health practitioner's or student's
registration, it must also decide a date by which the suspension be reconsidered, to be known
as the 'reconsideration date'. This will provide practitioners or students affected by a
suspension with a degree of certainty that their suspension will be reviewed at an appropriate
time.
Further details about the background to this amendment can be found under the heading
'Achievement of policy objectives - Review of a suspension arising from a health panel
decision.'
Insertion of new s 191A (Decision of panel after reconsideration of
suspension) and 191B (Change of reconsideration date for suspension of
registration)
Clause 34 inserts new sections 191A and 191B.
Section 191A applies if the suspension of a health practitioner's or student's registration is
reconsidered by a health panel established under section 181(1A). On reconsidering the
suspension, section 191A allows the panel to:
• revoke the suspension, or
• revoke the suspension, impose conditions on the person's registration under section
191(3)(a) in place of the suspension, and decide a review period for the conditions under
section 191(4), or
• not revoke the suspension and decide a new reconsideration date.
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This clause also inserts a new section 191B to provide for changes to the reconsideration date
if a suspension is to be reconsidered. Under section 191B(2), a health panel may decide an
earlier reconsideration date if:
• the health practitioner or student advises the panel of a material change in the
practitioner's or student's circumstances and requests an earlier reconsideration date
because of the change, and
• the panel is reasonably satisfied that an earlier reconsideration date is necessary because
of the change of circumstances.
Under section 191B(4), a health panel may decide a later reconsideration date if the panel is
satisfied it is necessary to reconsider the suspension. Examples of when a panel may be
reasonably satisfied a later reconsideration date may be needed would include:
• if the practitioner's or student's attendance at the hearing is required and they are unwell,
the panel may decide it is preferable to wait until they are well enough to participate in
the hearing
• if the practitioner's or student's evidence to the panel requires further review by the
panel and this cannot be completed prior to the due date, or
• if a panel member becomes unwell and time is needed to find a suitable replacement.
If a panel changes the reconsideration date under section 191B, the panel must give notice of
its decision and reasons for the decision under sections 191B(3)(a) and (5). The panel must
also notify a refusal of an earlier reconsideration date and the reasons for the panel's decision
under section 191B(3)(b).
Under section 191B(6), the suspension of a health practitioner's or student's registration
remains in force until the panel makes a decision to revoke the suspension.
Further details about the background to this amendment can be found under the heading
'Achievement of policy objectives - Review of a suspension arising from a health panel
decision.'
Amendment of s 192 (Notice to be given about panel's decision)
Clause 35 amends section 192 to provide that as soon as practicable after making a decision
under section 191 or 191A, a panel must give notice of its decision to the National Board that
established it.
Section 192(2)(b) of the National Law currently requires notifiers to be informed of the
ultimate outcome of a notification. However, section 192(4) limits the information to be
provided to notifiers "to the extent the information is available on the National Board's
register". This clause replaces section 192(4) with a new provision which gives a National
Board a discretion to inform a notifier of the reasons for a panel's decision and removes the
limitation that previously applied.
Amendment of s 196 (Decision by responsible tribunal about registered health
practitioner)
Clause 36 amends section 196(4)(b) to allow a responsible tribunal to issue a prohibition
order to prohibit a person from providing any health service or a specified health service or
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using any protected title or a specified title. The provision also clarifies that the prohibition
order may be for a stated period or may be permanent. The approach in the Bill aligns with
section 149C(5) of the Health Practitioner Regulation National Law (NSW).
Further details about this amendment can be found under the heading 'Achievement of policy
objectives - Scope of application of prohibition orders and offences for breach of a
prohibition order'.
Insertion of new s 196A (Offences relating to prohibition orders)
Clause 37 inserts new section 196A. Section 196A(1) makes it an offence to contravene a
prohibition order with a maximum penalty of $30,000. The clause also includes subsidiary
offences related to prohibition orders, which are similar to offences that apply in New South
Wales under sections 102(2) and 103(2) of the Public Health Act 2010 (NSW).
Further details about this amendment can be found under the heading 'Achievement of policy
objectives - Scope of application of prohibition orders and offences for breach of a
prohibition order'.
Amendment of s 199 (Appellable decisions)
Clause 38 amends section 199 to provide that if a health panel reconsiders a suspension of
registration, a decision by the health panel not to revoke the suspension is subject to appeal to
the appropriate responsible tribunal.
Further details about the background to this amendment can be found under the heading
'Achievement of policy objectives - Review of a suspension arising from a health panel
decision.'
Amendment of s 206 (National Board to give notice to registered health
practitioner's employer)
Clause 39 amends section 206 and is related to the amendments to section 132 of the
National Law in the Bill (see clause 20). The amendments in this clause ensure that where
health, conduct or performance action is being taken against a health practitioner, a National
Board is able to inform all places at which the person practices. The amendment to section
206(1)(b) makes it clear that a National Board is able to inform a place of practice regardless
of whether it was notified of the place of practice by the practitioner or the Board became
aware of a person's place of practice through other means.
Under new section 206(2)(b), if practice information given to a Board under section 132, or
information of which the Board becomes aware, is information referred to in section
132(4)(c) or (d) (that is, it relates to a contract of employment, contract for services, an
arrangement or agreement with an entity or a voluntary or honorary appointment), then the
National Board must inform the employer or other entity of health, conduct or performance
action being taken against a health practitioner.
Under new section 206(2)(a), if practice information given to a Board under section 132, or
information of which the Board becomes aware, is information referred to in section
132(4)(a) (that is, it relates to a self-employed practitioner who shares premises with other
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registered health practitioners and shares the costs of the premises), then the National Board
has a discretion whether to inform the other practitioners of health, conduct or performance
action being taken against a health practitioner. Depending on the risks to the public, the
circumstances of the case and the particular arrangements of the practice, it may or may not
be appropriate to notify other health practitioners working at the same premises.
Insertion of new pt 10, div 1A (Australian Information Commissioner)
Clause 40 inserts new pt 10, div 1A. This amendment is a consequential amendment as a
result of the Australian Information Commissioner Act 2010 (Cwlth) (AIC Act) and Freedom
of Information Amendment (Reform) Act 2010 (Cwlth) (FOI Reform Act).
Appendix 11 of the report of the independent review states:
Subsequent to the commencement of the National Scheme, the Commonwealth enacted
legislation to reform the Commonwealth freedom of information arrangements. The
legislative amendments commenced on 1 November 2010. The legislation includes the
enactment of the Australian Information Commissioner Act 2010 which, among other things,
establishes the positions of Information Commissioner and Freedom of Information
Commissioner.
The National Law is to be amended to adopt the reformed Commonwealth legislation under
the National Scheme. This would require an amendment to the existing provisions in relation
to the Privacy Act by removing reference to the Office of the Privacy Commissioner and the
Privacy Commissioner, which are no longer established under that Act. An equivalent
provision to those currently in place in relation to the Privacy Act, FOI Act and Ombudsman
Act will need to be included in the National Law for the Australian Information
Commissioner Act.
This clause applies the AIC Act to the National Scheme and makes related technical
amendments. The clause provides that for the purposes of applying the AIC Act:
• a reference to the "Office of the Australian Information Commissioner" should be taken
to be a reference to the "Office of the National Health Practitioner Privacy
Commissioner", and
• a reference to the "Information Commissioner" (as defined in section 3A of the AIC Act)
should be taken to be a reference to the "National Health Practitioner Privacy
Commissioner".
The clause also includes sections 212A(2)(c) and (3) which are similar to sections 213(2)(c)
and (3) and 215(2) and (3). These sections provide that modifications may be made to the
AIC Act by a regulation made under the National Law.
Amendment of s 213 (Application of Commonwealth Privacy Act)
Clause 41 makes consequential amendments to section 213 as a result of the AIC Act. The
Privacy Act 1988 (Cwlth) and AIC Act no longer refer to the "Privacy Commissioner" but
now refer only to the "Commissioner" as defined in section 3A of the AIC Act.
Currently, section 213(2) refers to the 'National Health Practitioners Privacy Commissioner'.
For alignment with the name of the National Law and the Australian Health Practitioner
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Regulation Agency (AHPRA), as well as to recognise that it is not the Privacy Commissioner
for health practitioners, but rather for the National Scheme, this clause makes a minor
amendment to change the references to 'National Health Practitioners Privacy Commissioner'
to 'National Health Practitioner Privacy Commissioner'.
Amendment of s 215 (Application of Commonwealth FOI Act)
Clause 42 makes consequential amendments to section 215 as a result of the AIC Act and
FOI Reform Act.
The FOI Reform Act amended the Freedom of Information Act 1982 and Privacy Act 1988
(Cwlth). The amendments made by the FOI Reform Act currently do not apply to the
National Law because sections 12 and 18 of the Health Practitioner Regulation National Law
Regulation provide that they do not apply. After the Bill amends the National Law to take
account of the AIC Act and FOI Reform Act, it is planned that sections 12 and 18 of the
Health Practitioner Regulation National Law Regulation will be removed. This will mean
that the FOI Reform Act will apply to the National Scheme.
The most significant consequence of the FOI Reform Act applying to the National Scheme
will be that the National Health Practitioner Ombudsman and Privacy Commissioner will
take on a new role of undertaking external, merits review of FOI decisions made by AHPRA.
Consequential amendments will also be required to the Health Practitioner Regulation
National Law Regulation to ensure that the AIC Act and FOI Reform Act apply appropriately
to the National Scheme. Subject to passage of the Bill, these consequential changes will be
made after the Bill is passed.
Replacement of s 220 (Disclosure to protect health or safety of patients or
other persons)
Clause 43 replaces section 220. Section 220 currently provides power for a National Board to
disclose information to a Commonwealth, State or Territory entity about a registered health
practitioner who poses, or may pose, a risk to public health or the health or safety of the
public or certain members of the public. However, section 220 does not apply to persons who
are not registered health practitioners.
Section 216(2)(c) permits protected information to be disclosed if it is required or permitted
by law. However, in the early stages of an investigation, it may not always be clear if other
legislation permits or requires disclosure of information about a practitioner who is not
registered.
There are instances where National Boards and AHPRA receive information about persons
who are not registered health practitioners or who were previously registered, and where it
considers there is a strong public interest in permitting the disclosure of that information to an
entity of the Commonwealth, State or Territory for action. For example, information may be
received about a person who is pretending to be a registered health practitioner and under the
current wording of section 220, information about that person may not be able to be
disclosed.
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This clause replaces section 220 so that a National Board may give information to an entity of
the Commonwealth, State or Territory if a National Board reasonably believes that:
• a person who provides a health service but is not a registered health practitioner poses, or
may pose, a risk to public health, or
• the health or safety of a patient or class of patients is or may be at risk because of the
provision of a health service by a person who is not a registered health practitioner.
Section 220 will also continue to apply to registered health practitioners in the same way as it
does now.
Replacement of s 222 (National registers)
Clause 44 replaces section 222. Section 222 currently sets out which National Board keeps
each public national register of practitioners registered by the Board. As a consequence of the
amendments being made to section 31, which provide for National Boards to be provided for
in regulations, the Bill amends section 222 to provide that the Board which keeps each
register must be prescribed in regulations.
However, the remainder of section 222, including the names of each of the public national
registers and their divisions are retained in section 222.
There are no current proposals to change the structure of National Boards. Similarly, there are
no current proposals to change the arrangements for the keeping of national registers by each
National Board.
This clause also makes minor amendments to sections 222 to provide that the registers should
include details of persons subject to prohibition orders. Further details about this are provided
below in the entry for amendments to section 227 (see clause 48).
Amendment of s 222 (Public national registers)
Clause 45 amends section 222 to include the Register of Paramedics in the table of public
national registers under section 222. This amendment is made separately, as it will need to
commence on the 'participation day' for the inclusion of paramedics in the National Scheme.
'Participation day' is defined in section 306 of the Bill (see clause 52).
Amendment of s 223 (Specialists Registers)
Clause 46 amends section 223 to provide that the specialists registers should include details
of persons subject to prohibition orders. Further details about this are provided below in the
entry for amendments to section 227 (see clause 48).
Amendment of s 226 (National Board may decide not to include or to remove
certain information in register)
Clause 47 makes minor consequential amendments to section 226 to reflect the changes made
to section 31.
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Replacement of s 227 (Register about former registered health practitioners)
Clause 48 amends section 227 to require the public registers kept by National Boards under
section 222 and 223 to include a copy of a prohibition order for each person subject to such
an order. Currently, the National Law does not require or empower National Boards to keep a
register of prohibition orders issued under section 196(4)(b). This amendment and related
amendments to sections 222 and 223 ensure that National Boards can keep registers of
prohibition orders.
Amendment of s 235 (Application of Commonwealth Ombudsman Act)
Clause 49 makes a minor amendment to section 235. Currently, section 235(2)(a) refers to
the 'National Health Practitioners Ombudsman'. For alignment with the name of the National
Law and the Australian Health Practitioner Regulation Agency (AHPRA), as well as to
recognise that it is not the Ombudsman for health practitioners, but rather for the National
Scheme, this clause makes a minor amendment to change the reference to 'National Health
Practitioners Ombudsman' to 'National Health Practitioner Ombudsman'.
Amendment of s 246 (Parliamentary scrutiny of national regulations)
Clause 50 amends section 246. The current section 246(1) provides that a regulation made
under the National Law may be disallowed in a participating jurisdiction by a House of
Parliament of that jurisdiction in the same way that a regulation made under an Act of that
jurisdiction may be disallowed and as if the regulation had been tabled in the House on the
first sitting day after the regulation is published by the Victorian Government Printer.
This deeming provision has resulted in some Parliaments lacking visibility of the national
regulations and difficulty in ensuring proper process is followed to ensure those regulations
are open to disallowance procedures.
Appendix 11 of the final report of the independent review states:
The following amendments to the National Law are to be made ... section 246(1) of the
National Law be replaced with a provision which states that ... a regulation must be tabled in
a House of Parliament in the same way that other regulations in the relevant jurisdiction are
tabled ...
This clause amends section 246 to require regulations made under the National Law to be
tabled in the Parliament of each participating jurisdiction in the same way a regulation made
in that jurisdiction must be tabled. In New South Wales, regulations are not tabled, but notice
of their making is given to Parliament. This clause provides that if giving notice of a
regulation applies, then notice must be given for a regulation made under the National Law in
the same way notice must be given for a regulation made in that jurisdiction. The Bill also
provides that failure to comply with the tabling or notice requirement does not affect the
validity of the regulation. The provisions about majority disallowance in sections 246(2) and
(3) remain unchanged.
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Amendment of s 284 (Exemption from requirement for professional indemnity
insurance arrangements for midwives practising private midwifery)
Clause 51 makes a consequential amendment to the definition of "National Board" in section
284(5) to replace the reference to "the Nursing and Midwifery Board of Australia" with "the
National Board for midwifery". This change is needed as a result of the amendments to
section 31 which require that National Boards for each health profession are dealt with in the
regulations.
This clause also makes a minor consequential amendment to the definition of private
midwifery to remove the words "nursing and" so that it reads: "private midwifery means
practising the midwifery profession ... ". This change reflects the recognition of nursing and
midwifery as separate professions.
Insertion of new pt 13 (Transitional and other provisions for Health Practitioner
Regulation National Law and Other Legislation Amendment Bill 2017)
Clause 52 inserts a new part 13. Division 1 of part 13 is titled "Paramedicine Board and
registration of paramedics" which:
• establishes the Paramedicine Board of Australia (Paramedicine Board)
• provides powers and functions of the Paramedicine Board until the participation day, and
• provides for a number of transitional and other matters for the health profession of
paramedicine.
Insertion of new s 306 (Definitions)
Clause 52 inserts definitions for part 13.
In its communique of 8 April 2016, the COAG Health Council announced its intention that
national registration for paramedics would commence in the second half of 2018. The
"participation day", which is defined in section 306, will be prescribed in a regulation made
under the National Law once there is sufficient certainty about the proposed date on which
paramedics are to be registered. This date will be decided by the Ministerial Council in
conjunction with the Paramedicine Board and AHPRA.
At the same time as the participation day is prescribed, it is proposed that an amendment will
be made to the regulations to continue the "Paramedicine Board of Australia" under the
regulations as a National Board, like all other National Boards, which are being prescribed in
the regulations under section 31.
Once the Paramedicine Board is prescribed in the regulations after the participation day, it
will have all the powers of a National Board under the National Law. Similarly, all provisions
of the National Law applying to National Boards will apply to the Paramedicine Board. Until
the participation day, the functions and powers of the Paramedicine Board will be governed
by the provisions in part 13, division 1 of the Bill.
Insertion of new s 307 (Establishment of Paramedicine Board)
Clause 52 inserts new section 307 to establish the Paramedicine Board of Australia for the
health profession of paramedicine. Like all other National Boards under the National Law,
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
this new section provides that the Board is a body corporate with perpetual succession, has a
common seal, may sue and be sued in its corporate name and the Board represents the State.
These matters are currently provided for in section 31(2) and (3) of the National Law for
other National Boards.
The new section provides that it applies until the Paramedicine Board is continued in force by
a regulation made under section 31. As outlined above, this regulation is expected to be made
at the same time as the regulation to prescribe the participation day that registration of
paramedics commences.
Insertion of new s 308 (Powers and functions of Paramedicine Board)
Clause 52 inserts new section 308 to provide that sections 32, 33, 34, 37, 40, 234 and
schedule 4 of the National Law apply to the Paramedicine Board until the participation day.
These provisions deal with:
• section 32 - powers of National Boards
• section 33 - membership of National Boards
• section 34 - eligibility for appointment to National Boards
• section 37 - delegation of functions by National Boards
• section 40 - consultation about registration standards, codes and guidelines
• section 234 - general duties of persons exercising functions under this Law
• schedule 4 - constitution, functions and powers, and procedures of National Boards.
Section 308 provides that, despite section 34, the COAG Health Council may appoint
practitioner members to the Board who the Council is satisfied have skills and experience in
paramedicine relevant to the Board's functions. This clause is required because paramedics
will not be registered until after the participation day, which means that upon establishment
of the Board, there will be no registered paramedics to appoint as practitioner members.
Section 308 also sets out other functions of the Paramedicine Board until the participation
day. As outlined above, after the participation day, the Paramedicine Board will have all the
functions and powers of a National Board, once it is prescribed in regulations.
Insertion of new s 309 (Paramedicine Board taken to be a National Board for
stated matters)
Clause 52 inserts new section 309. The Paramedicine Board is established under section 307.
As such, it does not fall within the definition of "National Board" in section 5. For this
reason, section 309 provides that the Paramedicine Board is taken to be a National Board for
certain provisions of the National Law. This will ensure, for example, that the Ministerial
Council and AHPRA may treat the Paramedicine Board as a National Board for the purposes
of their powers.
Insertion of new s 310 (CAA accredited programs of study)
Clause 52 inserts new section 310 to provide for the Paramedicine Board to approve, or
refuse to approve, a CAA accredited program of study as providing a qualification for the
purposes of registration in paramedicine until the relevant day.
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An approval of a program of study under section 310(1):
• may be granted subject to the conditions the Paramedicine Board considers necessary or
desirable in the circumstances, and
• does not take effect until the program is included in the list published under section
310(3).
A "CAA accredited program of study" means a program of study accredited by the Council
of Ambulance Authorities Inc. and published on the Council's website:
• immediately before the commencement, or
• between the commencement and the participation day.
Further details about this amendment can be found under the heading 'Achievement of policy
objectives - Accreditation arrangements for paramedicine and 'approved programs of
study''.
Insertion of new s 311 (Qualifications for general registration in paramedicine
for a limited period)
Clause 52 inserts new section 311 to provide for grandparenting of qualifications for the
existing paramedic workforce to enable them to obtain registration under the National
Scheme, for a period of three years from the participation day. Section 312, outlined below,
deals with practitioners who hold a Diploma of Paramedical Science issued by the
Ambulance Service of New South Wales.
Section 311 provides that an individual who applies for registration in paramedicine before
the "relevant day" (a defined term meaning the period of three years from the participation
day) is qualified for general registration in paramedicine if the individual:
• holds a qualification or has completed training in paramedicine, whether in a participating
jurisdiction or elsewhere, that the Paramedicine Board considers is adequate for the
purposes of practising the profession
• holds a qualification or has completed training in paramedicine, whether in a participating
jurisdiction or elsewhere, and has completed any further study, training or supervised
practice in the profession required by the Paramedicine Board for the purposes of this
section, or
• has practised paramedicine during the 10 years before the participation day for a
consecutive period of five years or for any periods which together amount to five years
and satisfies the Paramedicine Board that he or she is competent to practise paramedicine.
Once established, the Paramedicine Board will need to decide the qualifications which are
adequate for obtaining registration under this grandparenting provision.
This provision will apply despite section 53 of the National Law.
It is important to note that all of the other eligibility requirements for registration, set out in
section 52 of the National Law, will apply to people seeking registration under the
grandparenting provisions.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Insertion of new s 312 (Accepted qualification for general registration in
paramedicine)
Clause 52 inserts new section 312. On 7 October 2016, the COAG Health Council agreed to
"include a provision in the National Law which specifies that despite section 53 (which sets
out the qualifications required for general registration), a person is qualified for general
registration if they hold the Ambulance Service of New South Wales paramedic
qualification".
Section 312 of the Bill implements this decision and provides that an individual is qualified
for general registration in paramedicine for the purposes of section 52(1)(a) if they hold a
Diploma of Paramedical Science, Diploma of Paramedical Science (Ambulance), Advanced
Diploma of Paramedical Science (Ambulance), Diploma in Paramedical Science (Pre-
Hospital Care) or Advanced Diploma Paramedical Sciences (Pre-Hospital Care) issued by the
Ambulance Service of New South Wales. This provision does not have an expiry date.
The new section will also apply if the name of the Diploma of Paramedical Science is
changed in future or if the qualification is delivered by another training entity in place of the
Ambulance Service of New South Wales. The Bill achieves this by stating the Diploma of
Paramedical Science includes a qualification that replaces the existing diploma and is
prescribed by regulation and is issued by the Ambulance Service of New South Wales. The
Ambulance Service of New South Wales is defined in new section 306.
Section 312 applies despite section 53 of the National Law.
Section 53(b) of the National Law provides that an individual is qualified for general
registration in a health profession if the individual holds a qualification a National Board
considers to be substantially equivalent to, or based on similar competencies as, an "approved
qualification". The Bill declares that section 312 does not make a Diploma of Paramedical
Science issued by the Ambulance Service of New South Wales an "approved qualification"
for section 53(b).
The Paramedicine Board will decide what qualifications are "approved qualifications" for
section 53(a) and (b) after it is established. A person will only be qualified for general
registration in paramedicine under section 53(b) if they hold a qualification which is
substantially equivalent to, or based on similar competencies as, an "approved qualification"
decided by the Board.
Section 312 does not provide grounds for an individual to be qualified for general registration
in paramedicine if they hold a qualification which is substantially equivalent to, or based on
similar competencies as, the Diploma of Paramedical Science issued by the Ambulance
Service of New South Wales.
Insertion of new s 313 (Provisions that apply to student registration for
Diploma of Paramedical Science)
Clause 52 inserts new section 313 to provide that a Diploma of Paramedical Science issued
by the Ambulance Service of New South Wales is taken to be an approved program of study
for part 7, division 7, subdivisions 1 and 3. This will ensure, for example, that details of
students enrolled in the Diploma of Paramedical Science issued by the Ambulance of New
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
South Wales can be obtained under section 88 of the National Law and those students can be
registered under section 89.
Insertion of new s 314 (Applications for registration in paramedicine and
period of registration)
Clause 52 inserts new section 314 to provide that an individual may apply to the
Paramedicine Board for registration in paramedicine before the participation day and after the
day decided by the Board under section 308(3)(c).
If the Paramedicine Board grants an application for registration under part 7 before the
participation day, the registration period does not start until the participation day and may be
for a period of up to two years. Section 314 applies despite section 56.
The power to allow the first registration to be for a period more than 12 months is to ensure
that registrants can be placed on the correct registration 'cycle' to ensure that their
registration is aligned to a common registration date with other registrants.
Insertion of new s 315 (Applications for registration in paramedicine made but
not decided before participation day)
Clause 52 inserts new section 315. It is expected that the vast majority of applications for
registration of paramedics will be decided by the participation day. However, experience in
registering other professions has demonstrated that there can be a last minute rush of
applications, all of which may not be able to be decided by the participation day.
To deal with this situation, the Bill includes section 315 which provides that if a person has
applied to the Paramedicine Board for registration before the participation day, but the Board
has not decided the application by the participation day, the applicant does not commit an
offence against section 113 or 116 while the application is being decided. That is, the person
can take and use the title 'paramedic' and hold themselves out as a paramedic while the
application is being decided.
Under section 85, if a National Board does not make a decision about an application for
registration within 90 days after the application is received, the Board is taken to refuse the
application. This means that section 315 can only apply for a maximum period of 90 days.
Insertion of new s 316 (Period after participation day during which an
individual does not commit an offence under ss 113 and 116)
Clause 52 inserts new section 316 to provide a 90 day "transitional period" from the
participation day during which an individual who is eligible for registration in paramedicine
does not commit an offence against section 113 or 116 by taking or using the title
'paramedic' or holding themselves out as a paramedic.
The effect of this provision is that if an eligible paramedic submits a late application, the
applicant can be assured that no enforcement action can be taken against them provided they
submitted their application within 90 days after the participation day.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
AHPRA's practical experience of registering other professions is that no matter how effective
the communication strategy is for members of the profession, there will always be a small
number of applicants who submit late applications. This provision is intended to provide
certainty for both AHPRA and the practitioner about possible enforcement action during the
transitional period.
Insertion of new s 317 (Application of ss 113 and 116 to individual temporarily
practising paramedicine in another jurisdiction)
Clause 52 inserts new section 317. If the Bill is passed by the Queensland Parliament, the
changes will apply automatically in all other States and Territories, except for Western
Australia which must pass its own separate legislation, and South Australia where regulations
must be made to adopt the changes.
It is possible that Western Australia may not have passed its own separate legislation and
South Australia may not have had the regulations adopted by the participation day. If this
occurs, a Western Australian or South Australian paramedic who operates across State
borders or who is assisting with an emergency in another State or Territory would commit an
offence against the holding out and protection of title provisions of the National Law if they
took or used the title "paramedic" or held themselves out as a paramedic in another State or
Territory.
To address this possibility, the Bill includes section 317 which applies to an individual who:
• usually practices paramedicine in a participating jurisdiction that has not enacted
provisions about paramedicine similar to the Bill
• temporarily takes or uses a title or does anything else relating to paramedicine in another
jurisdiction, that would contravene section 113 or 116
• complies with any regulation made under the National Law about temporarily taking or
using a title or doing anything else relating to paramedicine in another jurisdiction.
If the person complies with the requirements of any regulation made under the National Law,
the person would not commit an offence against section 113 or 116. A regulation would be
made if this situation arises, which would specify operational matters, such as ensuring that
paramedics who are practising in another jurisdiction are identified and approved to practice
in the other jurisdiction under appropriate operational arrangements.
Insertion of new pt 13, div 2 (Other transitional provisions)
Clause 52 also inserts new part 13, division 2. The term "commencement" is used in various
provisions of part 13, division 2. "Commencement" is defined in section 12 of schedule 7 of
the National Law.
Insertion of new s 318 (Deciding review period for decision on application
made under section 125 before commencement)
Clause 52 inserts new section 318, which applies if before the commencement, a registered
health practitioner or student applied to a National Board under section 125 of the National
Law to change or remove a condition or change or revoke an undertaking.
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If the application had not been decided by the Board immediately before commencement and
after the commencement, the Board's decision results in a registration or endorsement being
subject to a condition, or an undertaking is still in place, then the National Board may decide
a review period for the condition or undertaking under section 125(5A) and give the
registered health practitioner or student notice under section 125(6).
Insertion of new s 319 (Deciding review period for decision after notice given
under section 126 before commencement)
Clause 52 inserts new section 319, which applies if before the commencement, a National
Board had given notice to a registered health practitioner or student under section 126 of the
National Law about changing a condition on the practitioner's or student's registration.
If immediately before commencement, the Board had not made a decision in relation to the
matter and after commencement, the Board's decision results in the practitioner's or student's
registration being subject to a condition, then the National Board may decide a review period
for the condition under section 126(5A) and give the registered health practitioner or student
notice under section 126(6).
Insertion of new s 320 (Membership of continued National Boards)
Clause 52 inserts new section 320, which applies if a person holds office as a member of a
National Board immediately before the commencement and the Board is continued in force
after the commencement by a regulation made under section 31.
Section 320 confirms the person continues to hold office as a member of the continued Board
after commencement of the Bill on the terms and conditions that applied to the person's
appointment before commencement and until the office of the member becomes vacant under
the National Law. Section 320 also confirms that a person who is Chairperson of a National
Board immediately before the commencement continues to hold office as Chairperson of the
continued Board after the commencement.
If the process for appointing a person as a member of a National Board is started but not
completed before the commencement, section 320 confirms that the process may continue
after commencement and the person may be appointed as a member of the continued Board.
Insertion of new s 321 (Offences relating to prohibition orders made before
commencement)
Clause 52 inserts new section 321, which confirms that section 196A applies to a prohibition
order made before the commencement. Prohibition orders are made by responsible tribunals
and are expected to be complied with. Although section 196A will apply to prohibition orders
made before the commencement, the offence in section 196A will only apply to conduct that
contravenes a prohibition order after the commencement.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Insertion of new s 322 (Register to include prohibition orders made before
commencement)
Clause 52 inserts new section 322, which confirms that a National Board may record the
names of persons subject to a prohibition order made before the commencement in the
register. Similarly, a National Board may also include copies of prohibition orders made
before the commencement in the register.
Insertion of new s 323 (Public national registers)
Clause 52 inserts new section 323, which confirms that a register kept under section 222 or
223 immediately before the commencement continues in force immediately after the
commencement.
Amendment of sch 2 (Agency Management Committee)
Clause 53 makes a minor consequential amendment to schedule 2 as a result of the
amendments to section 31 in the Bill. The amendment clarifies that a member of the Agency
Management Committee can be removed from office if they are registered in more than one
health profession and cease to be registered in either or any of the health professions as a
result of their misconduct, impairment or incompetence.
Amendment of sch 4 (National Boards)
Clause 54 makes minor consequential amendments to schedule 4 as a result of the
amendments to section 31 in the Bill.
Clause 2 of schedule 4 deals with the term of office of members of National Boards. It
currently provides that a member holds office for the period not exceeding three years stated
in their instrument of appointment. The amendments to section 31 give the COAG Health
Council the power to dissolve a Board for a health profession if another Board is established
for that health profession (for example, the newly established Board may be for more than
one health profession). In such a case, the membership of the Board would need to be
reconsidered. To allow for this, the Bill amends clause 2 of schedule 4 to provide that a
Board member's term of office ends if the National Board is dissolved by regulations made
under section 31.
Clause 4(2)(b) of schedule 4 provides that the Chairperson of the COAG Health Council may
remove a Board member from office if the member ceases to be a registered health
practitioner as a result of the member's misconduct, impairment or incompetence. The Bill
amends this clause to provide that if a Board member ceases to be a registered health
practitioner in any health profession in which they are registered due to misconduct,
impairment or incompetence, they may be removed from office by the Chairperson of the
Ministerial Council.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Division 2 Other amendments of Health Practitioner Regulation National
Law Act 2009
Act Amended
Clause 55 provides that division 2, part 2 amends the Health Practitioner Regulation
National Law Act 2009 (Qld) (other than the Health Practitioner Regulation National Law set
out in the schedule to the Act).
Part 4 of the Health Practitioner Regulation National Law Act 2009 (Qld) modifies the
operation of the National Law in Queensland to take account of Queensland's co-regulatory
arrangements, including the Health Ombudsman and the Health Ombudsman Act. Some of
the modifications also modify the terminology used in the National Law for Queensland. For
example, under the National Law as it applies in Queensland, "notifications" are referred to as
"complaints" and "notifiers" are referred to as "complainants".
The amendments in this division of the Bill ensure that where changes have been made to the
National Law, corresponding changes are made to the modification provisions where
necessary.
Amendment of s 8 (Police Commissioner may give criminal history
information)
Clause 56 amends section 8(1)(b) to replace the reference to "'CrimTrac" with "ACC". The
CrimTrac Agency was merged into the Australian Crime Commission from 1 July 2016
under the Australian Crime Commission Amendment (National Policing Information) Act
2016 (Cwlth). The new definition of "ACC" refers to the Australian Crime Commission
established under section 7 of the Australian Crime Commission Act 2002 (Cwlth).
The amendment made by this clause is consistent with the change to section 5 of the National
Law.
Amendment of s 34 (Replacement of pt 8, div 5 (Preliminary assessment))
Clause 57 amends section 34 which modifies the operation of part 8, division 5 of the
National Law in Queensland. Part 8, division 5 applies if the Health Ombudsman refers a
matter about a health practitioner or student to AHPRA. The amendments in this clause are
consequential to changes to the National Law in the Bill.
Clause 57 replaces section 149, as inserted by section 34 of the Health Practitioner
Regulation National Law Act 2009 (Qld). The new section 149 in the Bill replaces the phrase
"National Board that registered the health practitioner or student" with the phrase "National
Board established for the health practitioner's or student's profession". The amendments to
section 150(1)(a) and 150(3), as inserted by section 34 of the Health Practitioner Regulation
National Law Act 2009 (Qld), replace the phrase "by the Board" with "in a health profession
for which the Board was established". These are consequential amendments as a result of the
amendment of section 31 of the National Law in the Bill.
Clause 57 also amends section 151, as inserted by section 34 of the Health Practitioner
Regulation National Law Act 2009 (Qld), to omit section 151(1)(e) and replace it with two
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
new subsections (e) and (f) to reflect the changes made to section 151 of the National Law by
the Bill. The clause also amends the terminology used to ensure that is consistent with the
terminology used in Queensland. For example, the clause uses the term "referred matter"
instead of "notification".
Insertion of new s 35A (Amendment of s 159A (Board may give information to
notifier about immediate action))
Clause 58 inserts new section 35A, which amends new section 159A of the National Law, to
replace the terms "notifier" and "notification" with the terms "complainant" and "complaint"
respectively. This ensures the new provisions of the National Law, as applied in Queensland,
use terminology consistent with the terminology used in Queensland's modification
provisions.
Insertion of new s 37A (Amendment of s 167A (Board may give information to
notifier about result of investigation))
Clause 59 inserts new section 37A, which amends new section 167A of the National Law, to
replace the terms "notifier" and "notification" with the terms "complainant" and "complaint"
respectively. This ensures the new provisions of the National Law, as applied in Queensland,
use terminology consistent with the terminology used in Queensland's modification
provisions.
Insertion of new s 40A (Amendment of s 177A (Board may give information to
notifier about decision following assessor's report))
Clause 60 inserts new section 40A, which amends new section 177A of the National Law, to
replace the terms "notifier" and "notification" with the terms "complainant" and "complaint"
respectively. This ensures the new provisions of the National Law, as applied in Queensland,
use terminology consistent with the terminology used in Queensland's modification
provisions.
Amendment of s 54 (Amendment of s 206 (National Board to give notice to
registered health practitioner's employer)
Clause 61 amends section 54 to make the heading to section 206 in the modification
provision consistent with the heading to section 206 in the National Law, as amended by the
Bill.
Amendment of s 57 (Insertion of new pt 13)
Clause 62 amends section 57 to renumber provisions in the Health Practitioner Regulation
National Law Act 2009 (Qld). The renumbering is necessary because the Bill inserts a new
part 13 in the National Law, so part 13 in the Health Practitioner Regulation National Law
Act 2009 (Qld) is renumbered as part 12A. The section numbers in part 12A are also
renumbered by this clause.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Part 3 Amendment of Health Ombudsman Act 2013
Act amended
Clause 63 provides that part 3 amends the Health Ombudsman Act 2013 (Qld).
Insertion of new s 43A (Relevant action may be taken despite referral)
Clause 64 inserts new section 43A to clarify that the Health Ombudsman can facilitate the
local resolution of a health service complaint even if the matter has been referred to the
National Agency, an entity of the State, another State or the Commonwealth under sections
91 or 92 of the Health Ombudsman Act.
It is intended that the decision to facilitate local resolution of a health service complaint under
section 43A could be taken at any time, and does not have to be made at the time of the
referral to the National Agency or another entity. Local resolution of a health service
complaint would generally occur after the matter had been finally dealt with by the National
Agency or other entity.
Amendment of s 58 (Power to take immediate registration action)
Clause 65 amends section 58(1) to broaden the grounds on which the Health Ombudsman
may take immediate registration action in relation to a registered health practitioner, under
part 7, division 1 of the Health Ombudsman Act. The amendment of section 58(1) provides
that if the Health Ombudsman reasonably believes the immediate registration action is in the
public interest, the Health Ombudsman can take immediate registration action.
The amendment of section 58(1) of the Health Ombudsman Act is consistent with the
amendments made by the Bill to section 68 of the Health Ombudsman Act (see clause 69)
and section 156 of the National Law (see clause 24).
Further details about this amendment can be found under the headings 'Achievement of
policy objectives - Grounds for taking 'immediate action' under the National Law',
'Achievement of policy objectives - Broadening the grounds for immediate action' and
'Consistency with fundamental legislative principles - Grounds for taking immediate action -
'public interest test''.
Insertion of new ss 58A (Varying immediate registration action on health
ombudsman's own initiative) and 58B (Varying immediate registration action
on application by registered health practitioner)
Clause 66 inserts a new section 58A which allows the Health Ombudsman to vary an
immediate registration action in relation to a registered health professional if there has been a
material change relating to the matter giving rise to the immediate registration action. The
Health Ombudsman can only vary the immediate registration action on the grounds
mentioned in section 58.
Under new section 58A, the Health Ombudsman can substitute one type of immediate
registration action for another, for example, revoking the suspension of a registered health
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practitioner's registration and substituting it with a condition of registration. This aligns with
the amendment made to section 155 of the National Law in the Bill (see clause 23).
If the Health Ombudsman decides to vary an immediate registration action, section 58A(3)
provides that the decision to vary is taken to be a decision to take immediate registration
action, to the extent of the variation, in relation to a number of sections of the Health
Ombudsman Act. Therefore, if the Health Ombudsman proposes to vary an immediate
registration action under section 58A, the Health Ombudsman must comply with the show
cause process under section 59 and 61. Also, if the Health Ombudsman decides to vary the
immediate registration action, the Health Ombudsman must give a notice of the decision in
accordance with section 60.
New section 58A(3) also ensures that QCAT has jurisdiction, under section 94 of the Health
Ombudsman Act to review a decision by the Health Ombudsman to vary the immediate
registration action. The Health Ombudsman must also give notice of the immediate
registration action, to the extent of the variation, to each person the Health Ombudsman
believes is an employer of the health practitioner under section 279 of the Health
Ombudsman Act.
New section 58A(3) also ensures that, if the variation of the immediate registration action
was in response to a complaint, the Health Ombudsman must give the complainant a notice
stating the details of the variation to the complainant under section 60(4).
Clause 66 also inserts new section 58B which allows a health practitioner to apply to the
Health Ombudsman to vary an immediate registration action if there is a material change
relating to the matter giving rise to the immediate registration action.
In deciding the application, the Health Ombudsman must consider if there has been a material
change relating to the matter giving rise to the immediate registration action, which justifies
varying the immediate registration action. The Health Ombudsman can only decide to vary
the immediate registration action on the grounds mentioned in section 58.
New section 58B(4) allows the Health Ombudsman to vary the immediate registration action
in the way that the health practitioner requested, vary the immediate registration action in a
way that is different to the way requested, or not vary the immediate registration action.
New section 58B(5) provides that if the Health Ombudsman decides to vary the immediate
registration action in the way requested in the application, the Health Ombudsman must give
the health practitioner a notice of the decision. The Health Ombudsman must also give notice
of the immediate registration action, to the extent of the variation, to each person the Health
Ombudsman believes is an employer of the health practitioner under section 279 of the
Health Ombudsman Act.
New section 58B(6) provides that if the Health Ombudsman proposes to vary the immediate
registration action in a way that is different to the way requested, the Health Ombudsman
must comply with the show cause requirements under section 59(1) to (3). If the Health
Ombudsman subsequently decides to vary the immediate registration action in a way that is
different to the way requested, the Health Ombudsman must give notice of the decision in
accordance with section 60. The practitioner has a right to apply to QCAT for review under
section 63. The Health Ombudsman must also give notice of the immediate registration
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action, to the extent of the variation, to each person the Health Ombudsman believes is an
employer of the health practitioner under section 279 of the Health Ombudsman Act.
New sections 58B(7) to (10) set out the procedures that apply if the Health Ombudsman
proposes not to vary the immediate registration action. For example, the Health Ombudsman
must give the health practitioner a notice stating the proposed decision and invite the
practitioner to make a submission within a period of at least 7 days about the proposed
decision. In making the decision, the Health Ombudsman must consider any submissions
made by the health practitioner. If, after considering any submissions made by the health
practitioner, the Health Ombudsman decides not to vary the immediate registration action, the
Health Ombudsman must give the health practitioner a notice stating the decision, the reasons
for the decision, that the practitioner may apply to QCAT for a review of the decision, and
how and when the practitioner may apply for a review of the decision.
Amendment of s 60 (Notice about immediate registration action)
Clause 67 amends the note in section 60(4) to reflect the amendment to section 279 of the
Health Ombudsman Act in the Bill (see clause 80). The amendment to section 60(4) clarifies
that if immediate registration action is taken a notice may also be given to particular health
professionals with whom the health practitioner shares premises under section 279.
Amendment of s 64 (Health ombudsman must immediately take further
relevant action)
Clause 68 amends section 64(a) to clarify that after taking immediate action in relation to a
practitioner under part 7 of the Health Ombudsman Act, the Health Ombudsman may
continue an investigation already underway into the matter that gave rise to the immediate
action, rather than starting a new investigation.
A similar amendment is made to section 75(a) of the Health Ombudsman Act (see clause 73).
Amendment of s 68 (Power to issue interim prohibition orders)
Clause 69 amends section 68(1) to broaden the grounds under which the Health Ombudsman
may issue an interim prohibition order to a health practitioner, other than in the person's
capacity as a registered health practitioner. The amendment of section 68(1) provides that if
the Health Ombudsman reasonably believes that issuing an interim prohibition order is in the
public interest, the Health Ombudsman can issue an interim prohibition order.
The amendment of section 68(1) of the Health Ombudsman Act is consistent with the
amendments made by the Bill to section 58 of the Health Ombudsman Act (see clause 65)
and section 156 of the National Law (see clause 24).
Clause 69 also makes the language used in section 68(1) consistent with the language used in
section 58 of the Health Ombudsman Act. Currently, section 68 states that the Health
Ombudsman may issue an interim prohibition order if the Health Ombudsman "is satisfied on
reasonable grounds" of certain matters. To ensure consistency with section 58, the Bill
amends section 68 to state that the Health Ombudsman may issue an interim prohibition order
if the Health Ombudsman "reasonably believes" certain matters.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Further details about this amendment can be found under the headings 'Achievement of
policy objectives - Grounds for taking 'immediate action' under the National Law',
'Achievement of policy objectives - Broadening the grounds for immediate action' and
'Consistency with fundamental legislative principles - Grounds for taking immediate action -
'public interest test''.
Insertion of new ss 68A (Varying interim prohibition order on health
ombudsman's own initiative) and 68B (Varying interim prohibition order on
application by health practitioner)
Clause 70 inserts a new section 68A which allows the Health Ombudsman to vary an interim
prohibition order in relation to a health professional if there has been a material change
relating to the matter giving rise to the interim prohibition order, which justifies varying the
interim prohibition order. The Health Ombudsman can only vary the interim prohibition
order on the grounds mentioned in section 68.
If the Health Ombudsman decides to vary an interim prohibition order, subsection 68A(3)
provides that the decision to vary is taken to be a decision to issue an interim prohibition
order, to the extent of the variation, in relation to a number of sections of the Health
Ombudsman Act. Therefore, if the Health Ombudsman proposes to vary an interim
prohibition order under section 68A, the Health Ombudsman must comply with the show
cause process under sections 69 and 72. Also, if the Health Ombudsman decides to vary the
interim prohibition order, the Health Ombudsman must give a notice of the decision in
accordance with section 70.
New section 68A(3) also ensures that QCAT has jurisdiction, under section 94 of the Health
Ombudsman Act, to review a decision by the Health Ombudsman to vary the interim
prohibition order. The Health Ombudsman must also give notice of the variation of the
interim prohibition order, to each person the Health Ombudsman believes is an employer of
the health practitioner under section 279 of the Health Ombudsman Act.
New section 68A(3) also ensures that, if the variation of the interim prohibition order was in
response to a complaint, the Health Ombudsman must give the complainant a notice stating
the details of the variation to the complainant under section 71.
Clause 70 also inserts new section 68B which allows a health practitioner to apply to the
Health Ombudsman to vary an interim prohibition order if there is a material change relating
to the matter giving rise to the interim prohibition order.
In deciding the application, the Health Ombudsman must consider if there has been a material
change relating to the matter giving rise to the interim prohibition order, which justifies
varying the interim prohibition order. The Health Ombudsman can only decide to vary the
interim prohibition order on the grounds mentioned in section 68.
New section 68B(4) allows the Health Ombudsman to vary the interim prohibition order in
the way that the health practitioner requested, vary the interim prohibition order in a way that
is different to the way requested, or not vary the interim prohibition order.
New section 68B(5) provides that if the Health Ombudsman decides to vary the interim
prohibition order in the way requested in the application, the Health Ombudsman must give
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the health practitioner a notice of the decision. The Health Ombudsman must also give notice
of the variation of the interim prohibition order, to each person the Health Ombudsman
believes is an employer of the health practitioner under section 279 of the Health
Ombudsman Act.
New section 68B(6) provides that if the Health Ombudsman proposes to vary the interim
prohibition order in a way that is different to the way requested, the Health Ombudsman must
comply with the show cause requirements under section 69(1) to (3). If the Health
Ombudsman subsequently decides to vary the interim prohibition order in a way that is
different to the way requested, the Health Ombudsman must give notice of the decision in
accordance with section 70. The practitioner has a right to apply to QCAT for review under
section 74. The Health Ombudsman must also give notice of the variation of the interim
prohibition order, to each person the Health Ombudsman believes is an employer of the
health practitioner under section 279 of the Health Ombudsman Act.
New sections 68B(7) to (10) set out the procedures that apply if the Health Ombudsman
proposes not to vary the interim prohibition order. For example, the Health Ombudsman must
give the health practitioner a notice stating the proposed decision and invite the practitioner to
make a submission within a period of at least 7 days about the proposed decision. In making
the decision, the Health Ombudsman must consider any submissions made by the health
practitioner. If, after considering any submission made by the practitioner, the Health
Ombudsman still decides not to vary the interim prohibition order, the Health Ombudsman
must give the health practitioner a notice stating the decision, the reasons for the decision,
that the practitioner may apply to QCAT for a review of the decision, and how and when the
practitioner may apply for a review of the decision.
Replacement of s 70 (Content of interim prohibition order)
Clause 71 amends section 70(a) to clarify that the interim prohibition order must state details
of the order that apply to the practitioner, including if the Health Ombudsman makes a
decision to vary an interim prohibition order.
Replacement of s 71 (Notice to complainant)
Clause 72 replaces section 71. The new section 71 clarifies that if an interim prohibition
order was issued in response to a complaint, the Health Ombudsman must give the
complainant a notice stating details of the order, including if the Health Ombudsman makes a
decision to vary an interim prohibition order, to the extent of the variation.
Clause 72 also replaces the note in section 71 to reflect the amendment to section 279 of the
Health Ombudsman Act in the Bill. The amendment clarifies that if an interim prohibition
order is issued to a health practitioner a notice may also be given to particular health
professionals with whom the health practitioner shares premises under section 279.
Amendment of s 75 (Health ombudsman must immediately take further
relevant action)
Clause 73 amends section 75(a) to clarify that after issuing an interim prohibition order in
relation to a practitioner under part 7 of the Health Ombudsman Act, the Health Ombudsman
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
may continue an investigation already underway into the matter which gave rise to the order,
rather than starting a new investigation.
A similar amendment is made to section 64(a) of the Health Ombudsman Act (see clause 68).
Amendment of s 84 (Progress Reports)
Clause 74 amends section 84, which requires the Health Ombudsman to give notice of the
progress of an investigation, at least every three months, to the health service provider being
investigated and the complainant who instigated the matter (if any).
Clause 74 amends section 84 to give a person who has the right to be given a three monthly
progress report, the power to waive that right by advising the Health Ombudsman in writing.
In addition, the amendment to section 84 allows a person who waived their right to receive a
three monthly progress report, the ability to revoke that waiver at any time before the
investigation is completed and recommence receiving three monthly progress reports.
Amendment of s 94 (QCAT's jurisdiction)
Clause 75 amends section 94. Section 94 outlines QCAT's jurisdiction with respect to the
Health Ombudsman Act and the National Law. Currently, section 94(1)(a) provides that
QCAT has jurisdiction to review a decision by the Health Ombudsman to take immediate
registration action in relation to a registered health practitioner, or issue an interim
prohibition order to a health practitioner.
The amendment to section 94(1)(a) will also allow QCAT to review a decision by the Health
Ombudsman not to vary an immediate registration action or an interim prohibition order.
Amendment of s 107 (Decision about registered health practitioner other than
student)
Clause 76 amends section 107. Section 107(4) provides additional actions that QCAT may
take if it decides to cancel a practitioner's registration, or if a practitioner does not hold
registration. Section 107(4)(b) currently provides that QCAT may prohibit the practitioner
from using a specified title or providing a specified health service.
Clause 76 replaces section 107(4)(b) with a new subsection to provide that QCAT may
prohibit the practitioner, either permanently or for a stated period, from providing any health
service or a specified health service, or using any title or specified title.
The amendment to section 107(4)(b) is consistent with the amendments to section 113(4) of
the Health Ombudsman Act (see clause 77) and section 196(4)(b) of the National Law (see
clause 36).
Further details about this amendment can be found under the headings 'Achievement of
policy objectives - Scope of application of prohibition orders and offences for breach of a
prohibition order', 'Achievement of policy objectives - Scope of 'prohibition orders'' and
'Consistency with fundamental legislative principles - Scope of application of prohibition
orders'.
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Amendment of s 113 (Prohibition order)
Clause 77 amends section 113. Section 113(4)(a) enables QCAT to make a prohibition order,
prohibiting a practitioner from providing any health service or a stated health service. Clause
77 replaces section 113(4)(a) with a new subsection to clarify that the prohibition order may
prohibit the practitioner, either permanently or for a stated period, from providing any health
service or a stated health service.
The amendment to section 113(4)(a) is consistent with the amendments to section 107(4) of
the Health Ombudsman Act (see clause 76) and section 196(4)(b) of the National Law (see
clause 36).
Further details about this amendment can be found under the headings 'Achievement of
policy objectives - Scope of application of prohibition orders and offences for breach of a
prohibition order', 'Achievement of policy objectives - Scope of 'prohibition orders'' and
'Consistency with fundamental legislative principles - Scope of application of prohibition
orders'.
Amendment of s 117 (Panels of assessors)
Clause 78 amends section 117(b) dealing with panels of assessors. Under part 10 of the
Health Ombudsman Act, professional panels of assessors are established for each health
profession under the National Law (see section 117). Assessors from the relevant profession
are appointed from the panel to sit with QCAT in disciplinary hearings and advise QCAT on
questions of fact (see sections 126 and 127). One of the professional panels of assessors
established under section 117 is a 'nursing and midwifery panel of assessors'.
The Bill amends the National Law to recognise that nursing and midwifery are two
professions, although they will continue to be regulated by one National Board. The Bill also
establishes a Paramedicine Board of Australia and regulates the profession of 'paramedicine'.
For consistency with the amendments made to the National Law, this clause amends section
117 of the Health Ombudsman Act to replace the 'nursing and midwifery professional panel'
with a separate 'nursing panel of assessors' and 'midwifery panel of assessors'. The Bill also
establishes a new 'paramedics panel of assessors' for the profession of 'paramedicine' which
will be regulated by the National Law.
Amendment of s 277 (Meaning of employer for pt 19)
Clause 79 amends the definition of employer in section 277. This clause inserts a new
paragraph (d) in section 277 which provides that an employer of a health practitioner is also
an entity that the practitioner is providing services to, or on behalf of, whether in an honorary
capacity, as a volunteer or otherwise, and whether or not the practitioner receives payment
from the entity for the services.
This expands the entities that the Health Ombudsman can give notice to about particular
serious matters under section 279, QCAT decisions under section 280, and other matters
under section 282 of the Health Ombudsman Act.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
This amendment aligns with changes made to sections 132(4)(d) and 206(2)(b) of the
National Law in the Bill (see clauses 20 and 39).
Amendment of s 279 (Notice to employers about particular serious matters)
Clause 80 amends section 279 by inserting a new section 279(2A). New section 279(2A)
provides that the Health Ombudsman may give notice of an immediate action or investigation
undertaken in relation to a health practitioner to other health practitioners with whom the
health practitioner shares premises if the health practitioner is self-employed and shares the
cost of the premises with the other practitioners.
This power is discretionary. Depending on the risks to the public, the circumstances of the
case and the particular arrangements of the practice, it may or may not be appropriate to
notify other health practitioners working at the same premises.
This amendment aligns with changes made to sections 132(4)(a) and 206(2)(a) of the
National Law in the Bill (see clauses 20 and 39).
Amendment of s 280 (Notice to employers about particular QCAT decisions)
Clause 81 amends section 280 by inserting a new section 280(3). New section 280(3)
provides that the Health Ombudsman may, if QCAT decides a matter concerning a health
practitioner, give notice of the decision to other health practitioners with whom the health
practitioner shares premises if the health practitioner is self-employed and shares the cost of
the premises with the other practitioners.
As with the amendment to section 279 above, this power is discretionary. Depending on the
risks to the public, the circumstances of the case and the particular arrangements of the
practice, it may or may not be appropriate to notify other health practitioners working at the
same premises.
This amendment aligns with changes made to sections 132(4)(a) and 206(2)(a) of the
National Law in the Bill (see clauses 20 and 39).
Amendment of s 282 (Notice to employers about other matters)
Clause 82 amends section 282 by replacing section 282(2). New section 282(2) provides that
the Health Ombudsman may give notice of a matter concerning a health practitioner if the
Health Ombudsman considers it appropriate to do so having regard to all the circumstances
and to the paramount guiding principle in section 4. This clause extends the provision so that
it also applies to other health practitioners with whom the health practitioner shares premises
if the health practitioner is self-employed and shares the cost of the premises with the other
practitioners. This is in addition to currently being able to give notice of a matter concerning
a health practitioner to an employer of the practitioner.
As with the amendments to sections 279 and 280 above, this power is discretionary.
Depending on the risks to the public, the circumstances of the case and the particular
arrangements of the practice, it may or may not be appropriate to notify other health
practitioners working at the same premises.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
This amendment aligns with changes made to sections 132(4)(a) and 206(2)(a) of the
National Law in the Bill (see clauses 20 and 39).
Part 4 Amendment of Ambulance Service Act 1991
Act Amended
Clause 83 provides that part 4 amends the Ambulance Service Act 1991.
Amendment of s 50D (Definitions for div 1)
Clause 84 amends the definition of health professional in section 50D to prescribe the
nursing profession and midwifery profession separately and to include the paramedicine
profession in the definition.
The amendment of section 50D is a consequential amendment as a result of the changes in
the Bill to the definition of health profession in section 5 of the National Law which lists
"nursing" and "midwifery" as separate professions and adds "paramedicine" as a profession
regulated by the National Law (see clause 4).
Amendment of s 50M (Disclosure to health ombudsman)
Clause 85 amends section 50M to provide that a designated officer is authorised to disclose
confidential information to the Health Ombudsman in order to make, or give information
about a complaint or notification under the Health Practitioner Regulation National Law
(Queensland).
The new provision is equivalent to section 156 of the Hospital and Health Boards Act 2011
(Qld).
Insertion of new s 50S (Disclosure to health practitioner registration board)
Clause 86 inserts a new section 50S to authorise designated officers to disclose confidential
information to a National Board established under the National Law or to AHPRA for the
purposes of making or giving information about a complaint or notification, answering
questions or otherwise giving information about an investigation or proceeding about a
person who is or was registered under the National Law.
The new provision is equivalent to section 155 of the Hospital and Health Boards Act 2011
(Qld).
This clause reflects the fact that the Bill amends the National Law to require people who use
the title 'paramedic' to be registered under the National Law. Therefore, paramedics
registered under the National Law will potentially be subject to actions by a National Board
or AHPRA.
The amendment to sections 50M and new section 50S will ensure officers from the
Queensland Ambulance Service are able to share information with the Paramedicine Board of
Australia, AHPRA and the Health Ombudsman for complaints, notifications and other
matters arising under the National Law or the Health Ombudsman Act.
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Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2017
Part 5 Other amendments
Clause 87 provides that schedule 1, part 1 makes minor or consequential amendments to the
National Law set out in the schedule to the Health Practitioner Regulation National Law Act
2009 (Qld). The amendments in schedule 1, part 1 are a result of the amendments to section
31 in the Bill (see clause 5).
Clause 87 also provides that schedule 1, part 2 makes minor and consequential amendments
to a number of Queensland Acts. These are consequential amendments as a result of the
change to the definition of health profession in section 5 of the National Law which lists
"nursing" and "midwifery" as separate health professions (see clause 4). The amendments are
purely consequential in nature and there is no underlying change in policy about the roles of
'nurses' or 'midwives' under these pieces of legislation.
©The State of Queensland 2017
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