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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 73
As laid on the table and read a first time, 23 March 2004
South Australia
A Bill For
An
Act to protect the health and safety of the public by providing for the
registration of medical practitioners and medical students; to regulate the
provision of medical treatment for the purpose of maintaining high standards of
competence and conduct by the persons who provide it; to repeal the Medical
Practitioners Act 1983; and for other purposes.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Interpretation
4 Medical fitness to provide medical
treatment
Part 2—Medical Board of South
Australia
Division 1—Establishment of
Board
5 Establishment of Board
Division 2—Board's membership
6 Composition of Board
7 Terms and conditions of membership
8 Presiding member and deputy
9 Vacancies or defects in appointment
of members
10 Remuneration
Division 3—Registrar and staff
of Board
11 Registrar of Board
12 Other staff of Board
Division 4—General functions
and powers
13 Functions of Board
14 Committees
15 Delegations
Division 5—Board's procedures
16 Board's procedures
17 Conflict of interest etc under Public
Sector Management Act
18 Powers of Board in relation to
witnesses etc
19 Principles governing proceedings
20 Representation at proceedings before
Board
21 Costs
Division 6—Accounts, audit and
annual report
22 Accounts and audit
23 Annual report
Part 3—Medical Professional
Conduct Tribunal
24 Continuation of Tribunal
25 Composition of Tribunal
26 Terms and conditions of appointed
members
27 Vacancies or defects in appointment of
members
28 Remuneration
29 Registrar of Tribunal
30 Protection from personal liability
Part 4—Registration
Division 1—Registers
31 Registers
32 Authority conferred by registration on
register
Division 2—Registration
33 Registration of natural persons on
general or specialist register
34 Registration of medical students
35 Application for registration
36 Removal from register or specialty
37 Reinstatement on register or in
specialty
38 Fees and returns
Division 3—Special provisions
relating to medical services providers
39 Information to be given to Board by
medical services providers
Division 4—Restrictions
relating to the provision of medical treatment
40 Illegal holding out as registered
person
41 Illegal holding out concerning
limitations or conditions
42 Use of certain titles or descriptions
prohibited
43 Restrictions on provision of medical
treatment by unqualified persons
44 Board's approval required where
medical practitioner or medical student has not practised for 3 years
Part 5—Investigations and
proceedings
Division 1—Preliminary
45 Interpretation
46 Cause for disciplinary action
Division 2—Investigations
47 Powers of inspectors
48 Offence to hinder etc inspector
Division 3—Proceedings before
Board
49 Obligation to report medical unfitness
of medical practitioner or medical student
50 Medical fitness of medical practitioner
or medical student
51 Inquiries by Board as to matters
constituting grounds for disciplinary action
52 Variation or revocation of conditions
imposed by Board
53 Suspension of registration of
non-residents
54 Constitution of Board for purpose of proceedings
55 Provisions as to proceedings before
Board
Division 4—Proceedings before
Tribunal
56 Constitution of Tribunal for purpose
of proceedings
57 Inquiries by Tribunal as to matters
constituting grounds for disciplinary action
58 Variation or revocation of conditions
imposed by Tribunal
59 Provisions as to proceedings before
Tribunal
60 Powers of Tribunal
61 Costs
62 Contravention of prohibition order
63 Register of prohibition orders
64 Power of Tribunal to make rules
Part 6—Appeals
65 Right of appeal to Supreme Court
66 Operation of order may be suspended
67 Variation or revocation of conditions
imposed by Court
Part 7—Miscellaneous
68 Interpretation
69 Offence to contravene conditions of
registration
70 Offence to practise medicine while
deregistered
71 Medical practitioner etc must declare
interest in prescribed business
72 Offence to give, offer or accept
benefit for referral or recommendation
73 Improper directions to medical
practitioners or medical students
74 Procurement of registration by fraud
75 Statutory declarations
76 False or misleading statement
77 Medical practitioner or medical
student must report his or her medical unfitness to Board
78 Medical School must report cessation
of student's enrolment
79 Registered persons and medical
services providers to be indemnified against loss
80 Information relating to claim against
registered person to be provided
81 Victimisation
82 Self-incrimination
83 Punishment of conduct that constitutes
an offence
84 Vicarious liability for offences
85 Application of fines
86 Board may require medical examination
or report
87 Ministerial review of decisions
relating to courses
88 Confidentiality
89 Service
90 Evidentiary provision
91 Regulations
Schedule 1—Repeal and
transitional provisions
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Medical Practice Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention
appears—
appropriate register means—
(a) the
general register; or
(b) the
specialist register; or
(c) the
medical student register,
as the case may require;
beneficiary includes an object of a discretionary trust;
Board means the Medical Board of South Australia;
corporate or trustee medical services provider—see subsection (5);
director of a body corporate means a member of the board or committee of
management of the body corporate, whether validly appointed or not;
equipment includes appliances, instruments, dressings or substances used
for the purposes of medical treatment;
general register—see Part 4 Division 1;
inspector means a person authorised by the Board to exercise the powers of
an inspector under this Act;
legal practitioner means a person admitted and enrolled as a practitioner of
the Supreme Court of South Australia;
medical practitioner means a person who is registered on the general register
or on both the general register and the specialist register;
medical services provider means a person (not being a medical
practitioner) who provides medical treatment through the instrumentality of a
medical practitioner or medical student but does not include—
(a) a
recognised hospital, incorporated health centre or private hospital within the
meaning of the South Australian Health Commission Act 1976; or
(b) any
other person excluded from this definition by the regulations;
medical student means a person who is registered on the medical student register;
medical student register—see Part 4 Division 1;
medical treatment includes all medical or surgical advice, attendances,
services, procedures and operations;
nurse means a person who is registered as a nurse under the Nurses
Act 1999;
provide, in relation to medical treatment, means provide treatment
personally or through the instrumentality of another, and includes offer to
provide;
psychologist means a person who is registered as a psychologist under the Psychological
Practices Act 1973;
record means—
(a) a
documentary record; or
(b) a
record made by an electronic, electromagnetic, photographic or optical process;
or
(c) any
other kind of record;
register means a register kept under this Act;
registered person means a person who is registered on a register kept under
this Act;
Registrar—
(a) in
the case of a reference in Part 5 Division 4—means the person holding or acting
in the office of Registrar of the Tribunal;
(b) in
any other case—means the person holding or acting in the office of Registrar of
the Board;
repealed Act means the Medical Practitioners Act 1983;
representative body means a body that is declared by the regulations to be a
representative body for the purposes of this Act;
specialist means a person who is registered on the specialist register;
specialist register—see Part 4 Division 1;
specialty means a branch of medicine declared by the Board, by notice in
the Gazette, to be a specialty;
Tribunal means the Medical Professional Conduct Tribunal;
unprofessional conduct includes—
(a) improper
or unethical conduct in relation to professional practice; and
(b) incompetence
or negligence in relation to the provision of medical treatment; and
(c) a
contravention of or failure to comply with—
(i) a
provision of this Act; or
(ii) a
code of conduct or professional standard prepared or endorsed by the Board
under this Act; and
(d) conduct
that constitutes an offence punishable by imprisonment for 1 year or more under
some other Act or law.
(2) A reference in this Act to unprofessional
conduct extends to—
(a) unprofessional
conduct committed before the commencement of this Act; and
(b) unprofessional
conduct committed within or outside South Australia or the Commonwealth.
(3) A
reference in this Act to engaging in conduct includes a reference
to failing or refusing to engage in conduct.
(4) Without
limiting the generality of the expression, a person who is not a medical
practitioner will, unless exempted by the regulations, be taken to provide
medical treatment through the instrumentality of a medical practitioner
if the person, in the course of carrying on a business, provides services to
the practitioner for which the person is entitled to receive a share in the
profits or income of the practitioner's medical practice.
(5) For the purposes of this Act—
(a) a
corporate medical services provider is a medical services
provider that is a body corporate and a person occupies a position of
authority in such a provider if the person—
(i) is
a director of the body corporate; or
(ii) exercises,
or is in a position to exercise, control or substantial influence over the body
corporate in the conduct of its affairs; or
(iii) manages,
or is to manage, the business of the body corporate that consists of the
provision of medical treatment; or
(iv) where
the body corporate is a proprietary company—is a shareholder in the body
corporate; and
(b) a
trustee medical services provider is a person acting as a medical
services provider in the capacity of trustee of a trust and a person occupies a
position of authority in such a provider if the person is a trustee or
beneficiary of the trust.
(6) For the purposes of this Act, a person
occupies a position of authority in a body corporate other than a
corporate medical services provider if the person—
(a) is
a director of the body corporate; or
(b) exercises,
or is in a position to exercise, control or substantial influence over the body
corporate in the conduct of its affairs; or
(c) where
the body corporate is a proprietary company—is a shareholder in the body
corporate.
(7) However—
(a) a
minor who is a shareholder in a proprietary company, or a beneficiary under a
trust, is not, for that reason, to be regarded as a person occupying a position
of authority; and
(b) a
charitable organisation that is a beneficiary of a trust is not, for that
reason, to be regarded as occupying a position of authority.
(8) For
the purposes of this Act, a person who holds more than 10 per cent of the
issued share capital of a public company will be regarded as a person occupying
a position of authority in that company.
4—Medical fitness to provide medical treatment
A person or body must, in making a determination under this Act as
to a person's medical fitness to provide medical treatment, have regard to the
question of whether the person is able to provide medical treatment personally
to a patient without endangering the patient's health or safety.
Part 2—Medical Board of South Australia
Division 1—Establishment of Board
(1) The
Medical Board of South Australia is established.
(2) The Board—
(a) is
a body corporate; and
(b) has
perpetual succession and a common seal; and
(c) is
capable of suing and being sued in its corporate name; and
(d) has
all the powers of a natural person that are capable of being exercised by a
body corporate; and
(e) has
the functions and powers assigned or conferred by or under this Act.
(3) If
a document appears to bear the common seal of the Board, it will be presumed,
in the absence of proof to the contrary, that the common seal of the Board was
duly affixed to the document.
(1) The Board consists of 12 members appointed
by the Governor of whom—
(a) 7
must be medical practitioners of whom—
(i) 3
are to be nominated by the Minister and of these 1 must be a person who—
(A) works,
or has worked, in the public health system in this State; and
(B) is
nominated on the recommendation of the chief executive of the administrative
unit that has, subject to the Minister, responsibility for the administration
of the public health system in this State; and
(ii) 1
is to be selected from a panel of 3 persons nominated by the Council of The
University of Adelaide; and
(iii) 1
is to be selected from a panel of 3 persons nominated by the Council of The
Flinders University of South Australia; and
(iv) 2
are to be chosen at an election conducted in accordance with the regulations;
and
(b) 1
must be a legal practitioner nominated by the Minister; and
(c) 1
must be a nurse nominated by the Minister; and
(d) 3
must be persons nominated by the Minister who are not eligible for appointment
under a preceding provision of this subsection.
(2) Every
medical practitioner is entitled to vote at an election under
subsection (1)(a)(iv).
(3) If
an election for the purposes of subsection (1)(a)(iv) fails for any
reason, the Governor may appoint a medical practitioner, and the person so
appointed will be taken to have been appointed after due election under this
section.
(4) A
body referred to in subsection (1)(a)(ii) or (iii) must, in constituting a
panel for the purposes of that subsection, nominate at least 1 woman and 1 man.
(5) At
least 3 of the members of the Board nominated by the Minister must be women and
at least 3 must be men.
(6) The
Governor may appoint a person to be a deputy of a member and a person so
appointed may act as a member of the Board in the absence of the member.
(7) The
requirements of qualification and nomination made by this section in relation
to the appointment of a member extend to the appointment of a deputy of that
member.
7—Terms and conditions of membership
(1) A
member of the Board will be appointed on conditions determined by the Governor
and for a term, not exceeding 3 years, specified in the instrument of
appointment and, at the expiration of a term of appointment, is eligible for
reappointment.
(2) However,
a member of the Board may not hold office for consecutive terms that exceed 9
years in total.
(3) The Governor may remove a member of the
Board from office—
(a) for
breach of, or non-compliance with, a condition of appointment; or
(b) for
misconduct; or
(c) for
failure or incapacity to carry out official duties satisfactorily.
(4) The office of a member of the Board becomes
vacant if the member—
(a) dies;
or
(b) completes
a term of office and is not reappointed; or
(c) resigns
by written notice to the Minister; or
(d) ceases
to satisfy the qualification by virtue of which the member was eligible for
appointment to the Board; or
(e) is
removed from office under subsection (3).
(5) If
a member of the Board is a member constituting the Board for the purposes of
any proceedings under Part 5 and the member's term of office expires before
those proceedings are completed, the member may, for the purpose of continuing
and completing those proceedings, continue to act as a member of the Board.
The Minister must, after consultation with the Board, appoint a
member who is a medical practitioner (the presiding member) to
preside at meetings of the Board and another member who is a medical
practitioner (the deputy presiding member) to preside at meetings
of the Board in the absence of the presiding member.
9—Vacancies or defects in appointment of members
An act or proceeding of the Board is not invalid by reason only of
a vacancy in its membership or a defect in the appointment of a member.
A member of the Board is entitled to remuneration, allowances and
expenses determined by the Governor.
Division 3—Registrar and staff of Board
(1) There
will be a Registrar of the Board.
(2) The
Registrar will be appointed by the Board on terms and conditions determined by
the Board.
(1) There
will be such other staff of the Board as the Board thinks necessary for the
proper performance of its functions.
(2) A
member of the staff of the Board is not, as such, a member of the Public
Service, but the Board may employ a person who is on leave from employment in
the Public Service or with an instrumentality or agency of the Crown.
(3) The
Board may, with the approval of the Minister administering an administrative
unit of the Public Service, make use of the services, facilities or officers of
that unit.
Division 4—General functions and powers
(1) The functions of the Board are as follows:
(a) to
regulate the practice of medicine in the public interest;
(b) to
approve, after consultation with authorities considered appropriate by the
Board, courses of education or training that provide qualifications for
registration on the general register or the specialist register under this Act;
(c) to
determine, after consultation with authorities considered appropriate by the
Board, the requirements necessary for registration under this Act;
(d) to
establish and maintain the registers contemplated by this Act;
(e) to
prepare or endorse, subject to the approval of the Minister, codes of conduct
or professional standards for registered persons or codes of conduct for
medical services providers;
(f) to
prepare or endorse guidelines on continuing medical education for medical
practitioners;
(g) to
establish administrative processes for handling complaints received against
registered persons, medical services providers or persons who occupy positions
of authority in corporate or trustee medical services providers (which may
include processes under which the registered person, provider or person who
occupies the position voluntarily enters into an undertaking);
(h) to
provide advice to the Minister as the Board considers appropriate;
(i) to
carry out other functions assigned to the Board by or under this Act, or by the
Minister.
(2) The
Board must perform its functions under this Act with the object of protecting
the health and safety of the public by achieving and maintaining high
professional standards both of competence and conduct in the provision of
medical treatment in this State.
(3) If—
(a) a
code of conduct or professional standard prepared or endorsed by the Board is
approved by the Minister; or
(b) guidelines
are prepared or endorsed by the Board,
the Board must—
(c) cause
a copy of the code, standard or guidelines to be published in the Gazette; and
(d) take
reasonable steps to send a copy of the code, standard or guidelines to each
registered person or medical services provider to whom it applies; and
(e) ensure
that a copy of the code, standard or guidelines is published on the Internet
and kept available for public inspection without charge during normal office
hours at the principal office of the Board,
(although proof of compliance with paragraphs (c), (d) and (e) is
not necessary for the purposes of any proceedings that involve an alleged
contravention of or failure to comply with a code of conduct or professional
standard).
(4) The administrative processes established by
the Board for handling complaints received against registered persons, medical
services providers or persons who occupy positions of authority in corporate or
trustee medical services providers must be designed—
(a) to
be fair to both the aggrieved person and the respondent; and
(b) to
keep both the aggrieved person and the respondent properly informed about the
steps taken by the Board in response to the complaint; and
(c) to
provide, where appropriate, opportunities for the clarification of any
misapprehension or misunderstanding between the aggrieved person and the
respondent; and
(d) to
keep both the aggrieved person and the respondent properly informed about the
outcome of the processes.
(1) The Board may establish committees—
(a) to
advise the Board or the Registrar on any matter; or
(b) to
carry out functions on behalf of the Board.
(2) The
membership of a committee will be determined by the Board and may, but need
not, consist of, or include, members of the Board.
(3) The
Board will determine who will be the presiding member of a committee.
(4) The procedures to be observed in relation
to the conduct of the business of a committee will be—
(a) as
determined by the Board;
(b) insofar
as a procedure is not determined under paragraph (a)—as determined by the
committee.
(5) If
the Public Sector Management Act 1995 would not, apart from this
section, apply to a member of a committee, that Act applies to the member in
the same way as to an advisory body member within the meaning of that Act.
(1) The Board may delegate any of its functions
or powers under this Act other than—
(a) this
power of delegation; and
(b) the
power to hear and determine proceedings under Part 5.
(2) A delegation—
(a) may
be made—
(i) to
a member of the Board, the Registrar or an employee of the Board; or
(ii) to
a committee established by the Board; and
(b) may
be made subject to conditions and limitations specified in the instrument of
delegation; and
(c) is
revocable at will and does not derogate from the power of the Board to act in a
matter.
(1) Subject
to this Act, 7 members constitute a quorum of the Board.
(2) A
meeting of the Board (other than for the purposes of hearing and determining
proceedings under Part 5) will be chaired by the presiding member or, in his or
her absence, by the deputy presiding member and, in the absence of both the
presiding member and the deputy presiding member, the members present at a
meeting of the Board must choose one of their number to preside at the meeting.
(3) A
decision carried by a majority of the votes cast by members of the Board at a
meeting is a decision of the Board.
(4) Each
member present at a meeting of the Board has one vote on any question arising
for decision and, except in hearing and determining proceedings under Part 5,
the member presiding at the meeting may exercise a casting vote if the votes
are equal.
(5) A conference by telephone or other
electronic means between the members of the Board will, for the purposes of
this section, be taken to be a meeting of the Board at which the participating
members are present if—
(a) notice
of the conference is given to all members in the manner determined by the Board
for the purpose; and
(b) each
participating member is capable of communicating with every other participating
member during the conference.
(6) A proposed resolution of the Board becomes
a valid decision of the Board despite the fact that it is not voted on at a
meeting of the Board if—
(a) notice
of the proposed resolution is given to all members of the Board in accordance
with procedures determined by the Board; and
(b) a
majority of the members express concurrence in the proposed resolution by
letter, telegram, telex, facsimile transmission, electronic mail or other
written communication setting out the terms of the resolution.
(7) However,
subsections (5) and (6) do not apply in relation to the hearing and
determination of proceedings under Part 5 by the Board as constituted for the
purposes of proceedings under that Part.
(8) The
Board must have accurate minutes kept of its meetings.
(9) Subject
to this Act, the Board may determine its own procedures.
17—Conflict of interest etc under Public Sector Management Act
A member of the Board will not be taken to have a direct or
indirect interest in a matter for the purposes of the Public Sector
Management Act 1995 by reason only of the fact that the member has an
interest in the matter that is shared in common with the public, medical
practitioners generally or a substantial section of the public or of medical
practitioners in this State.
18—Powers of Board in relation to witnesses etc
(1) For the purposes of proceedings before the
Board (including an application for registration or reinstatement of
registration), the Board may—
(a) by
summons signed on behalf of the Board by a member of the Board or the
Registrar, require the attendance before the Board of any person whom the Board
thinks fit to call before it; or
(b) by
summons signed on behalf of the Board by a member of the Board or the
Registrar, require the production of any relevant documents, records or
equipment and, in the case of a document or record that is not in the English
language, require the production of a written statement in the English language
of the contents of the document or record; or
(c) inspect
any documents, records or equipment produced before it, and retain them for
such reasonable period as it thinks fit, and make copies of the documents or
records or their contents; or
(d) require
any person to make an oath or affirmation (which may be administered by any
member of the Board) to answer truthfully questions put by any member of the
Board or any person appearing before the Board; or
(e) require
any person appearing before the Board (whether summoned to appear or not) to
answer any questions put by any member of the Board or by any person appearing
before the Board.
(2) On
the receipt of an application for the issue of a summons under this section, a
member or the Registrar may, without referring the matter to the Board, issue a
summons on behalf of the Board.
(3) A person who—
(a) fails
without reasonable excuse to comply with a summons issued to attend, or to
produce documents, records or equipment, before the Board; or
(b) having
been served with a summons to produce a written statement of the contents of a
document or record in the English language fails, without reasonable excuse, to
comply with the summons or produces a statement that he or she knows, or ought
to know, is false or misleading in a material particular; or
(c) misbehaves
before the Board, wilfully insults the Board or one or more of the members in
the exercise of the member's official duties, or interrupts the proceedings of
the Board; or
(d) refuses
to be sworn or to affirm, or refuses or fails to answer truthfully a relevant
question when required to do so by the Board,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 6 months.
(4) A
person who appears as a witness before the Board has the same protection as a
witness in proceedings before the Supreme Court.
19—Principles governing proceedings
(1) In any proceedings before the Board under
this Act, the Board—
(a) is
not bound by the rules of evidence and may inform itself on any matter as it
thinks fit; and
(b) must
act according to equity, good conscience and the substantial merits of the case
without regard to technicalities and legal forms.
(2) In
any proceedings before the Board under this Act, the Board must keep the
parties to the proceedings properly informed as to the progress and outcome of
the proceedings.
20—Representation at proceedings before Board
A party to proceedings before the Board (including an applicant
for registration or reinstatement of registration) is entitled to be
represented at the hearing of those proceedings.
(1) The
Board may award such costs against a party to proceedings before it as the
Board considers just and reasonable.
(2) A
party who is dissatisfied with the amount of the costs fixed by the Board may
request a Master of the District Court to tax the costs and, after taxing the
costs, the Master may confirm or vary the amount of the costs fixed by the
Board.
(3) Subject
to this section, costs awarded by the Board under this section may be recovered
as a debt.
Division 6—Accounts, audit and annual report
(1) The
Board must keep proper accounting records in relation to its financial affairs,
and must have annual statements of account prepared in respect of each
financial year.
(2) The
accounts must be audited at least once in every year by an auditor approved by
the Auditor-General and appointed by the Board.
(3) The
Auditor-General may at any time audit the accounts of the Board.
(1) The
Board must, on or before 30 September in each year, deliver to the Minister a
report on the administration of this Act and the work of the Board during the
financial year ending on the preceding 30 June.
(2) The report must—
(a) include
the following information in relation to the relevant financial year:
(i) the
number and nature of complaints received by the Board against registered
persons, medical services providers and persons who occupy positions of
authority in corporate or trustee medical services providers;
(ii) the
number and nature of voluntary undertakings given to the Board by registered
persons, medical services providers and persons who occupy positions of
authority in corporate or trustee medical services providers;
(iii) the
outcomes of proceedings before the Board under Part 5;
(iv) information
prescribed by the regulations; and
(b) incorporate
the audited accounts of the Board for the relevant financial year.
(3) The
Minister must, within 12 sitting days after receiving a report under this section,
have copies of the report laid before both Houses of Parliament.
Part 3—Medical Professional Conduct Tribunal
The Medical Practitioners Professional Conduct Tribunal continues
in existence as the Medical Professional Conduct Tribunal.
(1) The Tribunal consists of 13 members of whom—
(a) 1
(the President) must be the Chief Judge of the District Court or
a Judge of that Court nominated by the Chief Judge; and
(b) 8
must be medical practitioners appointed by the Governor on the nomination of
the Minister; and
(c) 4
must be persons appointed by the Governor, on the nomination of the Minister,
being persons who are not eligible for appointment under a preceding provision
of this subsection.
(2) At
least 4 appointed members of the Tribunal must be women and at least 4 must be
men.
(3) The
Governor may appoint a person to be a deputy of a member and a person so
appointed may act as a member of the Tribunal in the absence of the member.
(4) The
requirements of qualification and nomination made by this section in relation
to the appointment of a member extend to the appointment of a deputy of that
member.
26—Terms and conditions of appointed members
(1) A
member of the Tribunal appointed by the Governor will be appointed on
conditions determined by the Governor and for a term, not exceeding 3 years,
specified in the instrument of appointment and, at the expiration of a term of
appointment, is eligible for reappointment.
(2) The Governor may remove an appointed member
of the Tribunal from office—
(a) for
breach of, or non-compliance with, a condition of appointment; or
(b) for
misconduct; or
(c) for
failure or incapacity to carry out official duties satisfactorily.
(3) The office of an appointed member of the
Tribunal becomes vacant if the member—
(a) dies;
or
(b) completes
a term of office and is not reappointed; or
(c) resigns
by written notice to the Minister; or
(d) ceases
to satisfy the qualification by virtue of which the member was eligible for
appointment to the Tribunal; or
(e) is
removed from office under subsection (2).
(4) If
an appointed member of the Tribunal is a member constituting the Tribunal for
the purposes of any proceedings under Part 5 and the member's term of office
expires before those proceedings are completed, the member may, for the purpose
of continuing and completing those proceedings, continue to act as a member of
the Tribunal.
27—Vacancies or defects in appointment of members
An act or proceeding of the Tribunal is not invalid by reason only
of a vacancy in its membership or a defect in the appointment of a member.
A member of the Tribunal is entitled to remuneration, allowances
and expenses determined by the Governor.
(1) There
will be a Registrar of the Tribunal.
(2) The
Registrar of the Tribunal will be the person for the time being holding or
acting in the office of Registrar of the District Court.
30—Protection from personal liability
(1) No personal liability is incurred for an
act or omission by—
(a) a
member of the Tribunal; or
(b) the
Registrar of the Tribunal,
in good faith in the performance or purported performance of
functions or duties under this Act.
(2) A
civil liability that would, but for subsection (1), lie against a person
lies instead against the Crown.
(1) The Registrar must keep the following
registers:
(a) a
medical student register;
(b) a
general register;
(c) a
specialist register;
(d) a
register of persons who have been removed from the medical student register,
the general register, the specialist register or a particular specialty under
this Act or any other Act or law or former Act or law and who have not been
reinstated to that register or specialty.
(2) A
person cannot be registered on the specialist register unless the person is
also registered on the general register.
(3) The medical student register, general
register or specialist register must include, in relation to each person on the
register—
(a) the
person's full name and business address; and
(b) the
qualifications for registration held by the person; and
(c) in
the case of a specialist, the specialty in which the person is registered; and
(d) particulars
of any condition of registration or limitation that affects or restricts the
person's right to provide medical treatment; and
(e) information
prescribed by the regulations,
and may include other information as the Board thinks fit.
(4) A registered person must, within 1 month
after changing his or her personal or business address, inform the Registrar in
writing of the change.
Maximum penalty: $250.
(5) The register referred to in
subsection (1)(d)—
(a) must
not include any person who is dead;
(b) must
include, in relation to each person on the register, a statement of—
(i) the
register or specialty from which the person was removed; and
(ii) the
reason for removal of the person; and
(iii) the
date of removal; and
(iv) in
the case of removal consequent on suspension or disqualification—the duration
of the suspension or disqualification;
(c) must
have deleted from it all information relating to any person who has been
reinstated on each register or specialty from which the person was removed.
(6) The
Registrar is responsible to the Board for the form and maintenance of the
registers.
(7) The
Registrar must correct an entry in a register that is not, or has ceased to be,
correct.
(8) The
registers must be kept available for inspection by any person during ordinary
office hours at the office of the Registrar and the registers or extracts of
the registers may be made available to the public by electronic means.
(9) A
person may, on payment of the prescribed fee, obtain a copy of any part of a
register kept under this Act.
(10) A
certificate stating that a person was, or was not, registered on a particular
register or in a particular specialty under this Act at a particular date or
during a particular period and purporting to be signed by the Registrar will,
in the absence of proof to the contrary, be accepted in legal proceedings as
proof of the registration, or of the fact that the person was not so
registered, on the date or during the period stated in the certificate.
32—Authority conferred by registration on register
Subject to any restrictions, limitations
or conditions imposed under this Act—
(a) registration
on the general register authorises the person to provide medical treatment;
(b) registration
on the specialist register authorises the person to provide medical treatment
in the specialty in which he or she is so registered;
(c) registration
on the medical student register authorises the person to provide medical
treatment in prescribed circumstances.
33—Registration of natural persons on general or specialist register
(1) Subject to this Act, a natural person is
eligible for registration on the general register, and a person registered on
the general register is eligible for registration on the specialist register in
a particular specialty, if the person, on application to the Board, satisfies
the Board that he or she—
(a) has
qualifications approved or recognised by the Board for the purposes of
registration on the register or in the specialty to which the application
relates; and
(b) has
met the requirements determined by the Board to be necessary for the purposes
of registration on that register or in that specialty; and
(c) is
medically fit to provide the medical treatment authorised by registration on
that register; and
(d) is,
unless exempted by the Board, insured or indemnified in a manner and to an
extent approved by the Board against civil liabilities that might be incurred
by the person in connection with the provision of medical treatment as a
medical practitioner; and
(e) is
a fit and proper person to be registered on that register or in that specialty.
(2) If a person who applies for registration,
or reinstatement of registration, on a particular register or in a particular
specialty—
(a) does
not, in the opinion of the Board, have the necessary qualifications or experience
required for registration on that register or in that specialty; or
(b) is
not, in the opinion of the Board, medically fit to provide the medical
treatment authorised by registration on that register; or
(c) is
not, in the opinion of the Board, a fit and proper person to be registered on
that register or in that specialty,
the Board may register the person on that register or in that
specialty in pursuance of this subsection (limited registration)—
(d) in
order to enable the person—
(i) to
do whatever is necessary to become eligible for full registration under this
Act; or
(ii) to
teach or to undertake research or study in this State; or
(iii) in
the case of an applicant who has obtained qualifications for the practice of
medicine under the law of a place outside of Australia—to practise in a part of
the State or at a place that the Minister and the Board consider is in urgent
need of the services of a medical practitioner; or
(e) if,
in its opinion, it would otherwise be in the public interest to do so.
(3) In registering a person under
subsection (2) the Board may impose one or more of the following
conditions on the registration:
(a) a
condition restricting the places or times at which the practitioner may provide
medical treatment;
(b) a
condition limiting the kind of medical treatment that the practitioner may
provide;
(c) a
condition limiting the period during which the registration will have effect;
(d) a
condition requiring that the practitioner be supervised in the provision of medical
treatment by a particular person or by a person of a particular class;
(e) such
other conditions as the Board thinks fit.
34—Registration of medical students
(1) A
person is not entitled to undertake an undergraduate course, or prescribed
postgraduate course, of medical study at a Medical School in the State
accredited by the Australian Medical Council unless the person is registered
under this section as a medical student.
(2) A person is eligible for registration as a
medical student on the medical student register if the person, on application
to the Board, satisfies the Board that he or she—
(a) genuinely
requires registration on that register for the purpose of enabling the person
to undertake an undergraduate course, or prescribed postgraduate course, of
medical study at a Medical School in the State accredited by the Australian
Medical Council; and
(b) is
medically fit to provide the medical treatment authorised by registration on
that register; and
(c) is
a fit and proper person to be registered on that register.
(3) If a person who applies for registration,
or reinstatement of registration, on the medical student register is not, in
the opinion of the Board, medically fit to provide the medical treatment
authorised by registration on that register, the Board may register the person
on that register in pursuance of this subsection (limited student
registration) and impose one or more of the following conditions on the
registration:
(a) a
condition limiting the kind of medical treatment that the person may provide;
(b) a
condition limiting the period during which the registration will have effect;
(c) a
condition requiring that the person be supervised in the provision of medical
treatment by a particular person or by a person of a particular class;
(d) such
other conditions as the Board thinks fit.
35—Application for registration
(1) An application for registration must—
(a) be
made to the Board in the manner and form approved by the Board; and
(b) be
accompanied by the registration fee fixed under this Act.
(2) An
applicant for registration must, if the Board so requires, provide the Board
with specified information to enable the Board to determine the application.
(3) The Board may require an applicant for
registration—
(a) to
submit a medical report or other evidence acceptable to the Board as to the
applicant's medical fitness to provide medical treatment of the kind authorised
by registration on the register to which the application relates; or
(b) to
obtain additional qualifications or experience specified by the Board before
the Board determines the application.
(4) If
it appears likely to the Registrar that the Board will grant an application for
registration, the Registrar may provisionally register the applicant.
(5) Provisional
registration remains in force until the Board determines the application.
(6) The
registration by the Board under this Act of a person who was provisionally registered
has effect from the commencement of the provisional registration.
36—Removal from register or specialty
(1) The
Registrar must, on application by a registered person, remove the person from
the appropriate register or specialty to which the application relates.
(2) The Registrar must remove from the
appropriate register or specialty a person—
(a) who
dies; or
(b) who
ceases to hold a qualification required for registration on that register or in
that specialty; or
(c) who
ceases for any other reason to be entitled to be registered on that register or
in that specialty; or
(d) who
ceases to be enrolled in an accredited undergraduate course, or prescribed
postgraduate course, of medical study in a Medical School in the State; or
(e) whose
registration on that register or in that specialty has been suspended or
cancelled under this Act.
(3) If
a person who is on the specialist register is removed from the general
register, the person must also be removed from the specialist register.
(4) The
Registrar may act under subsection (2) or (3) without giving prior notice
to the relevant person.
37—Reinstatement on register or in specialty
(1) A person who has been removed from a register
or specialty under this Act—
(a) on
his or her application; or
(b) on
account of failure to pay the annual practice fee or to furnish the return
required under section 38; or
(c) on
account of failure to pay a fine imposed on the person by the Board or Tribunal
under this Act; or
(d) on
account of the person—
(i) ceasing
to hold a qualification required for registration on that register or in that
specialty or otherwise ceasing to be entitled to be registered on that register
or in that specialty; or
(ii) ceasing
to be enrolled in an accredited undergraduate course, or prescribed
postgraduate course, of medical study in a Medical School in the State,
may apply to the Board at any time for reinstatement on that
register or in that specialty.
(2) A
person whose registration on a register or in a specialty has been suspended
may apply to the Board for reinstatement on that register or in that specialty
(but not, in the case of an order for suspension for a specified period made in
disciplinary proceedings, until after the expiry of that period).
(3) A
person who has been disqualified from being registered on a register or in a
specialty under this Act may, subject to the terms of the order for
disqualification, apply to the Board for reinstatement on that register or in
that specialty.
(4) An application for reinstatement must—
(a) be
made to the Board in the manner and form approved by the Board; and
(b) be
accompanied by the reinstatement fee fixed under this Act.
(5) An
applicant for reinstatement must, if the Board so requires, provide the Board
with specified information to enable the Board to determine the application.
(6) The Board may require an applicant for
reinstatement of registration—
(a) to
submit a medical report or other evidence acceptable to the Board as to the
applicant's medical fitness to provide medical treatment of the kind authorised
by registration on the register to which the application relates; or
(b) to
obtain additional qualifications or experience specified by the Board before
the Board determines the application.
(7) Subject
to this section, the Board must reinstate on the appropriate register or in a
specialty an applicant under this section if satisfied that the applicant is
eligible for registration on that register or in that specialty.
(8) The
Board may refuse to reinstate the applicant on the appropriate register or in a
specialty until all complaints (if any) laid against the applicant under this
Act have been finally disposed of.
(9) If
a person's registration has been suspended by reason of his or her failure to
reside in Australia, the Board may make the person's registration, after
reinstatement, subject to such conditions relating to residence as the Board
thinks fit.
(1) Subject
to this Act, a person will not be registered, nor will a registration be
reinstated, until the registration or reinstatement fee, and the annual
practice fee, fixed under this Act have been paid.
(2) A registered person must, in each calendar
year before the date fixed for that purpose by the Board—
(a) pay
to the Board the annual practice fee fixed under this Act; and
(b) furnish
the Board with a return, in a form approved by the Board, containing all
information specified in the return relating to the provision of medical
treatment, or the undertaking of any course of continuing medical education, by
the person during the preceding year or to any other matter relevant to the
person's registration under this Act.
(3) The
Board may, without further notice, remove from the appropriate register a
person who fails to pay the annual practice fee or furnish the required return
by the due date.
Division 3—Special provisions relating to medical services providers
39—Information to be given to Board by medical services providers
(1) A medical services provider must—
(a) in
the case of a person who was a medical services provider immediately before the
commencement of this section—within 60 days of that commencement; and
(b) in
any other case—within 60 days of becoming a medical services provider,
give written notice to the Board of—
(c) the
provider's full name and business or registered address; and
(d) the
address of the premises at which the provider provides medical treatment; and
(e) the
full names and business addresses of the medical practitioners and medical
students through the instrumentality of whom the provider is providing medical
treatment; and
(f) in
the case of a corporate or trustee medical services provider—the full names and
addresses of all persons who occupy a position of authority in the provider.
(2) The
provider must, within 30 days of any change occurring in the particulars
required to be given under subsection (1), inform the Board in writing of
the change.
(3) A person who contravenes or fails to comply
with this section is guilty of an offence.
Maximum penalty: $10 000.
(4) The
Board must keep a record of information provided to the Board under this
section available for inspection, on payment of the prescribed fee, by any
person during ordinary office hours at the office of the Board and may make the
record available to the public by electronic means.
Division 4—Restrictions relating to the provision of medical treatment
40—Illegal holding out as registered person
(1) A person must not hold himself or herself
out as a registered medical student, medical practitioner, specialist or a
specialist of a particular class, or permit another person to do so, unless
registered on the appropriate register and, in the case of a specialist of a
particular class, in the specialty relevant to that class.
Maximum penalty: $50 000 or imprisonment for 6 months.
(2) A person must not hold out another as a
registered medical student, medical practitioner, specialist or a specialist of
a particular class unless the other person is registered on the appropriate
register and, in the case of a specialist of a particular class, in the
specialty relevant to that class.
Maximum penalty: $50 000 or imprisonment for 6 months.
41—Illegal holding out concerning limitations or conditions
(1) A person whose registration is limited or
subject to a condition under this Act must not hold himself or herself out as
having a registration that is not limited or not subject to a condition or
permit another person to do so.
Maximum penalty: $50 000 or imprisonment for 6 months.
(2) A person must not hold out another whose
registration is limited or subject to a condition under this Act as having a
registration that is not limited or not subject to a condition.
Maximum penalty: $50 000 or imprisonment for 6 months.
42—Use of certain titles or descriptions prohibited
(1) A person who is not registered on the
appropriate register or in the relevant specialty must not use a prescribed
word, or its derivatives, to describe himself or herself or a service that he
or she provides.
Maximum penalty: $50 000.
(2) A person must not, in the course of
advertising or promoting a service that he or she provides (being a service
involving the provision of medical treatment), use a prescribed word, or its
derivatives, to describe a person who is engaged in the provision of the
service but is not registered on the appropriate register or in the relevant
specialty.
Maximum penalty: $50 000.
(3) In this section—
prescribed word means—
(a) in
relation to registration on the medical student register—registered medical
student; or
(b) in
relation to registration on the general register or specialist register—medical
practitioner; or
(c) in
relation to registration in a specialty—the words comprising the name of the
specialty; or
(d) any
other word or expression prescribed by the regulations.
43—Restrictions on provision of medical treatment by unqualified persons
(1) A person—
(a) must
not provide medical treatment of a prescribed kind; and
(b) cannot
recover a fee or other charge, or any part of such a fee or charge, for medical
treatment provided by the person,
unless, at the time the treatment was provided—
(c) the
person was a qualified person; or
(d) the
person provided the treatment through the instrumentality of a qualified
person.
(2) A person who contravenes
subsection (1)(a) is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 6 months.
(3) Subsection (1)
does not apply in relation to medical treatment provided by an unqualified
person in prescribed circumstances or pursuant to an exemption under
subsection (4).
(4) The
Governor may, by proclamation, exempt a person from subsection (1) if of
the opinion that good reason exists for doing so in the particular
circumstances of the case.
(5) An
exemption under subsection (4) may be subject to such conditions as the
Governor thinks fit and specifies in the proclamation.
(6) A person who contravenes, or fails to
comply with, a condition of an exemption under this section is guilty of an
offence.
Maximum penalty: $50 000.
(7) The
Governor may, by proclamation, vary or revoke a proclamation under this
section.
(8) In this section—
qualified person, in relation to medical treatment, means a person authorised by
or under this Act or any other Act to provide that treatment.
(1) A registered person who has not provided medical
treatment of the kind authorised by his or her registration for a period of 3
years or more must not provide any such medical treatment without first
obtaining the approval of the Board.
Maximum penalty: $20 000.
(2) The Board—
(a) may,
before granting its approval under subsection (1), require the applicant
to obtain qualifications or experience specified by the Board and for that
purpose may require the applicant to undertake a specified course of
instruction and training in medicine; and
(b) may
impose one or more of the following conditions on the applicant's registration:
(i) a
condition restricting the places and times at which the applicant may provide
medical treatment;
(ii) a
condition limiting the kind of medical treatment that the applicant may
provide;
(iii) a
condition requiring that the applicant be supervised in the provision of
medical treatment by a particular person or by a person of a particular class;
(iv) such
other conditions as the Board thinks fit.
Part 5—Investigations and proceedings
In this Part—
(a) a
reference to medical services provider includes a reference to a
person who is not but who was, at the relevant time, a medical services
provider;
(b) a
reference to occupier of a position of authority includes a
reference to a person who is not but who was, at the relevant time, the
occupier of a position of authority;
(c) a
reference to registered person includes a reference to a person
who is not but who was, at the relevant time, a registered person under this
Act or the repealed Act.
46—Cause for disciplinary action
(1) There is proper cause for disciplinary
action against a registered person if—
(a) the
person's registration was improperly obtained; or
(b) the
person is guilty of unprofessional conduct; or
(c) the
person is for any reason no longer a fit and proper person to be registered on
the appropriate register or in a particular specialty.
(2) There is proper cause for disciplinary
action against a medical services provider if—
(a) the
provider has contravened or failed to comply with a provision of this Act; or
(b) there
has been, in connection with the provision of medical treatment by the
provider, a contravention or failure to comply with a code of conduct under
this Act applying to the provider; or
(c) the
provider or any person employed or engaged by the provider has, in connection
with the provision of medical treatment by the provider, engaged in conduct
that would, if the person were a registered person, constitute unprofessional
conduct; or
(d) the
provider is for any reason not a fit and proper person to be a medical services
provider; or
(e) in
the case of a corporate or trustee medical services provider, an occupier of a
position of authority in the provider—
(i) has
contravened or failed to comply with a provision of this Act; or
(ii) has,
in connection with the provision of medical treatment by the provider, engaged
in conduct that would, if the person were a registered person, constitute
unprofessional conduct; or
(iii) is
for any reason not a fit and proper person to occupy a position of authority in
a corporate or trustee medical services provider.
(3) There is proper cause for disciplinary
action against the occupier of a position of authority in a corporate or
trustee medical services provider if—
(a) the
person has contravened or failed to comply with a provision of this Act; or
(b) the
person has, in connection with the provision of medical treatment by the
provider, engaged in conduct that would, if the person were a registered
person, constitute unprofessional conduct; or
(c) the
person is for any reason not a fit and proper person to occupy a position of
authority in a corporate or trustee medical services provider; or
(d) —
(i) the
provider has contravened or failed to comply with a provision of this Act; or
(ii) there
has been, in connection with the provision of medical treatment by the
provider, a contravention or failure to comply with a code of conduct under
this Act applying to the provider; or
(iii) the
provider, or any person employed or engaged by the provider, has, in connection
with the provision of medical treatment by the provider, engaged in conduct
that would, if the provider or the person were a registered person, constitute unprofessional
conduct,
unless it is proved that the person could not, by the exercise of
reasonable care, have prevented the contravention, failure to comply or
conduct.
(1) If there are reasonable grounds for
suspecting—
(a) that
there is proper cause for disciplinary action against a person; or
(b) that
a medical practitioner or medical student is medically unfit to provide medical
treatment of a particular kind; or
(c) that
a person is guilty of an offence against this Act,
an inspector may investigate the matter.
(2) For the purposes of an investigation, an
inspector may—
(a) at
any reasonable time, enter and inspect premises of a registered person or
premises on which the inspector reasonably suspects an offence against this Act
has been or is being committed; or
(b) with
the authority of a warrant issued by a magistrate or in circumstances in which
the inspector reasonably believes that immediate action is required, use
reasonable force to break into or open any part of, or anything in or on any
premises referred to in paragraph (a); or
(c) while
on premises entered under paragraph (a) or (b), seize and retain anything
found on the premises that the inspector reasonably believes may afford
evidence relevant to the matters under investigation; or
(d) require
any person who has possession of documents or records relevant to the matters
under investigation to produce those documents or records for inspection; or
(e) inspect
any documents or records produced to the inspector and retain them for such
reasonable period as the inspector thinks fit, and make copies of the documents
or records; or
(f) require
any person who is in a position to provide information relevant to the matters
under investigation to answer any question put by the inspector in relation to
those matters; or
(g) take
photographs, films or video or audio recordings; or
(h) if
the inspector reasonably suspects that an offence against this Act has been or
is being committed, require the suspected offender to state his or her full
name and address.
(3) An
inspector must not exercise the power conferred by subsection (2)(a) in
relation to any residential premises except with the permission of the occupier
of the premises or on the authority of a warrant issued by a magistrate.
(4) A
magistrate must not issue a warrant under this section unless satisfied, by
information given on oath, that the warrant is reasonably required in the
circumstances.
(5) The person in charge of premises at the
relevant time must give an inspector such assistance and provide such
facilities as are necessary to enable the powers conferred by this section to
be exercised.
Maximum penalty: $5 000.
48—Offence to hinder etc inspector
A person who—
(a) hinders
or obstructs an inspector in the exercise of powers conferred by this Act; or
(b) uses
abusive, threatening or insulting language to an inspector; or
(c) refuses
or fails to comply with a requirement of an inspector under this Act; or
(d) when
required by an inspector to answer a question, refuses or fails to answer the
question to the best of the person's knowledge, information and belief; or
(e) falsely
represents, by words or conduct, that he or she is an inspector,
is guilty of an offence.
Maximum penalty: $10 000.
Division 3—Proceedings before Board
49—Obligation to report medical unfitness of medical practitioner or medical student
(1) If any of the following persons, namely—
(a) a
health professional who has treated, or is treating, a patient who is a medical
practitioner or medical student; or
(b) a
person (including a hospital) who provides medical treatment through the
instrumentality of a medical practitioner or medical student; or
(c) a
hospital that has entered into an arrangement with a medical practitioner under
which the medical practitioner provides medical treatment at the hospital to
his or her patients; or
(d) the
Dean (or acting Dean) of a Medical School in the State in which a medical
student is enrolled,
is of the opinion that the practitioner or
student is or may be medically unfit to provide medical treatment, the person
must submit a written report to the Board setting out his or her reasons for
that opinion and any other information required by the regulations.
Maximum penalty: $10 000.
(2) The
Board must cause a report made under this section to be investigated.
(3) In this section—
health professional means—
(a) a
medical practitioner; or
(b) a
psychologist; or
(c) any
other person who belongs to a profession, or who has an occupation, declared by
the Board, by notice in the Gazette, to be a profession or occupation within
the ambit of this definition.
50—Medical fitness of medical practitioner or medical student
If—
(a) on
the application of—
(i) the
Registrar; or
(ii) the
Minister; or
(iii) a
representative body; or
(b) after
an investigation under section 49 has been conducted,
the Board is satisfied, after due inquiry, that a medical
practitioner or medical student is medically unfit to provide medical treatment
and that it is desirable in the public interest that an order be made under
this section, the Board may, by order—
(c) suspend
the person's registration until further order of the Board or for a specified
period determined by the Board; or
(d) impose
conditions restricting the person's right to provide medical treatment; or
(e) impose
conditions requiring the person to undergo counselling or treatment or to enter
into any other undertaking.
51—Inquiries by Board as to matters constituting grounds for disciplinary action
(1) A complaint setting out matters that are
alleged to constitute grounds for disciplinary action against a person may be
laid before the Board (in a manner and form approved by the Board) by—
(a) the
Registrar; or
(b) the
Minister; or
(c) a
representative body; or
(d) a
person who is aggrieved by the conduct of the person or, if the person
aggrieved is a child or is suffering from a mental or physical incapacity, by a
person acting on his or her behalf.
(2) If a complaint is laid under this section,
the Board must inquire into the subject matter of the complaint unless the
Board—
(a) considers
that the complaint is frivolous or vexatious; or
(b) lays
a complaint before the Tribunal relating to matters the subject of, or arising
out of, the complaint laid before the Board.
(3) If
a complaint has been laid under this section by or on behalf of an aggrieved
person and the Board is satisfied that the complaint arose from a misapprehension
on the part of the complainant or from a misunderstanding between the parties,
it may, before proceeding further with the hearing of the complaint, require
the parties to attend before the Registrar in order to clarify the
misapprehension or misunderstanding.
(4) Before
the Board inquires into the subject matter of a complaint, the Board must give
the respondent an opportunity to elect to have the matter dealt with by the
Tribunal and, if the respondent so elects, the Board must lay a complaint
before the Tribunal relating to matters the subject of, or arising out of, the
complaint.
(5) If,
in the course of conducting an inquiry under this section, the Board considers
that the allegations or evidence against the respondent are sufficiently
serious or that it is otherwise appropriate to do so, it may terminate the
proceedings under this section and itself lay a complaint against the
respondent before the Tribunal in relation to those allegations or that
evidence.
(6) If, after conducting an inquiry under this
section, the Board is satisfied on the balance of probabilities that there is
proper cause for taking disciplinary action against the respondent, the Board
may, by order, do one or more of the following:
(a) censure
the respondent;
(b) require
the respondent to pay to the Board a fine not exceeding $5 000;
(c) if
the respondent is a registered person—
(i) impose
conditions restricting the respondent's right to provide medical treatment;
(ii) suspend
the respondent's registration on a specified register or in a specified
specialty for a period not exceeding 1 month.
(7) If—
(a) a
person has been found guilty of an offence; and
(b) the
circumstances of the offence form, in whole or in part, the subject matter of
the complaint,
the person is not liable to a fine under this section in respect
of conduct giving rise to the offence.
(8) The Board may—
(a) fix
a period within which a fine imposed under this section must be paid;
(b) on
application by a person liable to pay a fine imposed under this section, extend
the period within which the fine must be paid.
(9) A
fine imposed under this section is recoverable by the Board as a debt.
(10) The
Board may, without further notice, remove from the appropriate register a
person who fails to pay a fine imposed under this section.
52—Variation or revocation of conditions imposed by Board
(1) The
Board may, at any time, on application by a registered person, vary or revoke a
condition imposed by the Board in relation to the person's registration under
this Act.
(2) The
Registrar, the Minister and representative bodies are entitled to appear and be
heard on an application under this section.
53—Suspension of registration of non-residents
The Board may, on the application of the Registrar, by order,
suspend until further order of the Board the registration of a medical
practitioner if satisfied that he or she has not resided in Australia for the
period of 12 months immediately preceding the application.
54—Constitution of Board for purpose of proceedings
(1) The Board will, for the purpose of hearing
and determining proceedings under this Division, be constituted of 5 members
selected by the presiding member (or, in the absence of the presiding member,
the deputy presiding member), of whom—
(a) 3
will be members who are medical practitioners; and
(b) 2
will be members who are not medical practitioners.
(2) The
presiding member of the Board (or, in the absence of the presiding member, the
deputy presiding member) will appoint one of the members of the Board, as so
constituted for the purposes of any particular proceedings, to preside over
those proceedings.
(3) If
a member of the Board as constituted under this section (other than the member
presiding over the proceedings) dies or is for any other reason unable to
continue with the proceedings, the Board constituted of the remaining members
may, if the member presiding over the proceedings so determines, continue and
complete the proceedings.
(4) The Board constituted of the member
presiding over the proceedings may, sitting alone—
(a) deal
with—
(i) preliminary,
interlocutory or procedural matters; or
(ii) questions
of costs; or
(iii) questions
of law; or
(b) enter
consent orders,
and may, for that purpose or as a consequence, while sitting
alone, make any determination or order (including a final order) that the
member considers appropriate.
(5) Any
questions of law or procedure arising before the Board will be determined by
the member presiding over the proceedings and any other questions by unanimous
or majority decision of the members.
55—Provisions as to proceedings before Board
(1) Subject
to this Act, the Board must give to all of the parties to proceedings before
the Board under this Division at least 14 days' written notice of the time and
place at which it intends to conduct the proceedings, and must afford to the
parties a reasonable opportunity to call and give evidence, to examine or
cross-examine witnesses, and to make submissions to the Board.
(2) However—
(a) the
Board may, if it thinks special reasons exist for doing so, give a lesser
period of written notice under subsection (1); and
(b) the
Board may, if of the opinion that it is necessary to do so to protect the
health and safety of the public, suspend the registration of the person the
subject of the proceedings pending hearing and determination of the
proceedings.
(3) The
requirement to give written notice under subsection (1) does not extend to
adjournments.
(4) If
a party to whom notice has been given under subsection (1) does not attend
at the time and place fixed by the notice, the Board may proceed to hear and
determine the matter in the absence of that party.
(5) A
person who is aggrieved by the conduct of a person that is the subject-matter
of proceedings before the Board under this Division is, subject to any
direction of the Board to the contrary, entitled to be present at the hearing
of the proceedings.
(6) In the course of proceedings before the
Board under this Division, the Board may—
(a) receive
in evidence a transcript of evidence taken in proceedings before a court, tribunal
or other body constituted under the law of South Australia or of any other
State or Territory of Australia or of another country, and draw any conclusions
of fact from the evidence that it considers proper;
(b) adopt,
as in its discretion it considers proper, any findings, decision, judgment, or
reasons for judgment, of any such court, tribunal or body that may be relevant
to the proceedings.
(7) The
Board should conduct proceedings under this Division as expeditiously as
possible.
Division 4—Proceedings before Tribunal
56—Constitution of Tribunal for purpose of proceedings
(1) The Tribunal will, for the purpose of
hearing and determining proceedings, be constituted of—
(a) the
President or a Judge of the District Court nominated by the President to
preside over the proceedings; and
(b) 2
members of the Tribunal who are medical practitioners; and
(c) a
member of the Tribunal who is not a medical practitioner.
(2) The
members of the Tribunal referred to in subsection (1)(b) and (c) will, for
the purposes of any particular proceedings, be selected by the person presiding
over the proceedings.
(3) The
Tribunal, separately constituted in accordance with this section, may sit
simultaneously for the purpose of hearing and determining separate proceedings.
(4) If
a member of the Tribunal as constituted under this section (other than the
person presiding over the proceedings) dies or is for any other reason unable
to continue with the proceedings before the Tribunal, the Tribunal constituted
of the remaining members may, if the person presiding over the proceedings so
determines, continue and complete the proceedings.
(5) The Tribunal constituted of the person
presiding over the proceedings may, sitting alone—
(a) deal
with—
(i) preliminary,
interlocutory or procedural matters; or
(ii) questions
of costs; or
(iii) questions
of law; or
(b) enter
consent orders,
and may, for that purpose or as a consequence, while sitting
alone, make any determination or order (including a final order) that the
person considers appropriate.
(6) Any
questions of law or procedure arising before the Tribunal will be determined by
the person presiding over the proceedings and any other questions by unanimous
or majority decision of the members (unless there is an equal division of
opinion, in which case, the decision of the person presiding over the
proceedings will be the decision of the Tribunal).
57—Inquiries by Tribunal as to matters constituting grounds for disciplinary action
(1) If
the Board lays before the Tribunal a complaint setting out matters that are
alleged to constitute grounds for disciplinary action against a person, the
Tribunal must, unless it considers the complaint frivolous or vexatious,
inquire into the subject matter of the complaint.
(2) If, after conducting an inquiry under this
section, the Tribunal is satisfied on the balance of probabilities that there
is proper cause for taking disciplinary action against the respondent, the
Tribunal may, by order, do one or more of the following:
(a) censure
the respondent;
(b) require
the respondent to pay to the Board a fine not exceeding $20 000;
(c) if
the respondent is a registered person—
(i) impose
conditions restricting the respondent's right to provide medical treatment;
(ii) suspend
the respondent's registration on a specified register or in a specified
specialty for a period not exceeding 1 year;
(iii) cancel
the respondent's registration on a specified register or in a specified
specialty;
(iv) disqualify
the respondent from being registered on a specified register or in a specified
specialty;
(d) prohibit
the respondent from carrying on business as a medical services provider;
(e) prohibit
the respondent from occupying a position of authority in a corporate or trustee
medical services provider.
(3) The Tribunal may—
(a) stipulate
that a disqualification or prohibition under subsection (2) is to apply—
(i) permanently;
or
(ii) for
a specified period; or
(iii) until
the fulfilment of specified conditions; or
(iv) until
further order;
(b) stipulate
that an order relating to a person is to have effect at a specified future time
and impose conditions as to the conduct of the person or the person's business
until that time.
(4) If—
(a) a
person has been found guilty of an offence; and
(b) the
circumstances of the offence form, in whole or in part, the subject matter of
the complaint,
the person is not liable to a fine under this section in respect
of conduct giving rise to the offence.
(5) A
fine imposed under subsection (2) is recoverable by the Board as a debt.
(6) The
Board may, without further notice, remove from the appropriate register a
person who fails to pay a fine imposed under this section.
58—Variation or revocation of conditions imposed by Tribunal
(1) The
Tribunal may, at any time, on application by a registered person, vary or
revoke a condition imposed by the Tribunal in relation to the person's
registration under this Act.
(2) The
Board is entitled to appear and be heard on an application under this section.
59—Provisions as to proceedings before Tribunal
(1) Subject
to this Act, the Tribunal must give to all of the parties to proceedings before
the Tribunal at least 14 days' written notice of the time and place at which it
intends to conduct the proceedings, and must afford to the parties a reasonable
opportunity to call and give evidence, to examine or cross-examine witnesses,
and to make submissions to the Tribunal.
(2) However—
(a) the
Tribunal may, if it thinks special reasons exist for doing so, give a lesser
period of written notice under subsection (1); and
(b) the
Tribunal may, if of the opinion that it is necessary to do so to protect the
health and safety of the public, suspend the registration of the person the
subject of the proceedings pending hearing and determination of the
proceedings.
(3) The
requirement to give written notice under subsection (1) does not extend to
adjournments.
(4) If
a party to whom notice has been given under subsection (1) does not attend
at the time and place fixed by the notice, the Tribunal may proceed to hear and
determine the matter in the absence of that party.
(5) A
party to proceedings before the Tribunal is entitled to be represented at the
proceedings.
(6) The Tribunal—
(a) is
not bound by the rules of evidence and may inform itself on any matter as it
thinks fit; and
(b) must
act according to equity, good conscience and the substantial merits of the case
without regard to technicalities and legal forms.
(7) Subject
to this Act, the procedure at an inquiry will be as determined by the Tribunal.
(1) For the purposes of an inquiry under this
Division, the Tribunal may—
(a) by
summons signed on behalf of the Tribunal by a member of the Tribunal or the
Registrar, require the attendance before the Tribunal of any person whom the
Tribunal thinks fit to call before it; or
(b) by
summons signed on behalf of the Tribunal by a member of the Tribunal or the
Registrar, require the production of any relevant documents, records or
equipment and, in the case of a document or record that is not in the English
language, require the production of a written statement in the English language
of the contents of the document or record; or
(c) inspect
any documents, records or equipment produced before it, and retain them for
such reasonable period as it thinks fit, and make copies of the documents or
records or their contents; or
(d) require
any person to make an oath or affirmation (which may be administered by any
member of the Tribunal) to answer truthfully questions put by any member of the
Tribunal or any person appearing before the Tribunal; or
(e) require
any person appearing before the Tribunal (whether summoned to appear or not) to
answer any questions put by any member of the Tribunal or by any person
appearing before the Tribunal.
(2) A person who—
(a) fails
without reasonable excuse to comply with a summons issued to attend, or to
produce documents, records or equipment, before the Tribunal; or
(b) having
been served with a summons to produce a written statement of the contents of a
document or record in the English language fails, without reasonable excuse, to
comply with the summons or produces a statement that he or she knows, or ought
to know, is false or misleading in a material particular; or
(c) misbehaves
before the Tribunal, wilfully insults the Tribunal or one or more of the
members in the exercise of the member's official duties, or interrupts the
proceedings of the Tribunal; or
(d) refuses
to be sworn or to affirm, or refuses or fails to answer truthfully a relevant
question when required to do so by the Tribunal,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 6 months.
(3) A
person who appears as a witness before the Tribunal has the same protection as
a witness in proceedings before the Supreme Court.
(4) If
a person summoned under subsection (1) fails to produce any books or
equipment or to appear before the Tribunal as required by the summons or,
having appeared, refuses to be sworn or to affirm, or to answer a relevant
question when required to do so by the Tribunal, a certificate of the failure
or refusal, signed by a member of the Tribunal or by the Registrar, may be
filed in the Supreme Court.
(5) If
a certificate has been filed under subsection (4), a party requiring the
production of books or equipment or the appearance of a person before the
Tribunal may apply (either ex parte or on notice) to the Supreme Court
for an order directing the production of the books or equipment or that person
attend, or be sworn or affirm, or answer questions (as the case may require)
and on that application the Court may make such orders as it thinks fit
(including orders for costs).
(6) In the course of an inquiry under this
Division, the Tribunal may—
(a) receive
in evidence a transcript of evidence taken in proceedings before a court,
tribunal or other body constituted under the law of South Australia or of any other
State or Territory of Australia or of another country, and draw any conclusions
of fact from the evidence that it considers proper;
(b) adopt,
as in its discretion it considers proper, any findings, decision, judgment, or
reasons for judgment, of any such court, tribunal or body that may be relevant
to the proceedings.
(1) The
Tribunal may award costs (to be fixed by the Tribunal or taxed by a Master of
the District Court) against a party to proceedings before the Tribunal as it
thinks fit.
(2) Costs
awarded by the Tribunal under this section may be recovered as a debt.
62—Contravention of prohibition order
(1) If a person carries on business as a
medical services provider in contravention of an order of the Tribunal, the
person is guilty of an offence.
Maximum penalty: $75 000 or imprisonment for 6 months.
(2) If a person occupies a position of
authority in a corporate or trustee medical services provider in contravention
of an order of the Tribunal, the person and the provider are each guilty of an
offence.
Maximum penalty: $75 000 or imprisonment for 6 months.
(3) If a person contravenes or fails to comply
with a condition imposed by the Tribunal as to the conduct of the person or the
person's business, the person is guilty of an offence.
Maximum penalty: $75 000 or imprisonment for 6 months.
63—Register of prohibition orders
(1) The
Registrar must keep a register of persons who have been prohibited by order of
the Tribunal under this Part from carrying on business as a medical services
provider or occupying a position of authority in a corporate or trustee medical
services provider.
(2) The register—
(a) must
not include any person who is dead;
(b) must
include, in relation to each person on the register—
(i) the
person's full name and business address; and
(ii) particulars
of the order.
(3) The
Registrar is responsible to the Tribunal for the form and maintenance of the
register.
(4) The
Registrar must correct an entry in the register that is not, or has ceased to
be, correct.
(5) The
register must be kept available for inspection by any person during ordinary
office hours at the office of the Registrar and the register may be made
available to the public by electronic means.
(6) A
person may, on payment of the prescribed fee, obtain a copy of any part of the
register.
(7) In
legal proceedings, a document apparently certified by the Registrar to be a
copy of the register must be accepted as such in the absence of proof to the
contrary.
64—Power of Tribunal to make rules
The Tribunal constituted of the President
and two other members selected by the President may make rules—
(a) regulating
the practice and procedure of the Tribunal; or
(b) making
any other provision that is necessary or expedient for carrying into effect the
provisions of this Part relating to the Tribunal.
65—Right of appeal to Supreme Court
(1) An appeal lies to the Supreme Court against—
(a) a
refusal by the Board to register, or reinstate the registration of, a person
under this Act; or
(b) the
imposition by the Board of conditions on a person's registration under this
Act; or
(c) a
decision made by the Board or Tribunal in proceedings under Part 5.
(2) The appeal lies—
(a) in
the case of an appeal against a decision made by the Tribunal—to the Full
Court; or
(b) in
any other case—to the Court constituted of a single Judge.
(3) An
appeal under subsection (1)(c) against a decision may be instituted by the
complainant or the respondent in the proceedings in which the decision was
made.
(4) An
appeal must be instituted within 1 month of the date of the decision appealed
against but the Court may, if satisfied that it is just and reasonable in the
circumstances to do so, extend that period (whether or not it has already
expired).
(5) The
Court must, on an appeal under this section, examine the decision of the
original decision-maker on the evidence or material before the original
decision-maker but the Court may, as it thinks fit, allow further evidence or
material to be presented to it.
(6) The Court, on an appeal under this section—
(a) is
not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must
act according to equity, good conscience and the substantial merits of the case
without regard to technicalities and legal forms; and
(c) must
give due weight to the decision being appealed against and the reasons for it
and not depart from the decision except for cogent reasons.
(7) The Court may, on after hearing an appeal
under this section—
(a) affirm
the decision appealed against;
(b) rescind
the decision and substitute a decision that the Court considers appropriate;
(c) remit
matters to the original decision-maker for consideration or further
consideration in accordance with any directions or recommendations of the
Court;
(d) make
any order as to costs or as to any other matter that the case requires.
66—Operation of order may be suspended
(1) Where
an order has been made by the Board or the Tribunal, and the Board or the
Tribunal (as the case may be) or the Supreme Court is satisfied that an appeal
against the order has been instituted, or is intended, it may suspend the
operation of the order until the determination of the appeal.
(2) Where
the Board or the Tribunal has suspended the operation of an order under
subsection (1), the Board or the Tribunal (as the case may be) may
terminate the suspension, and where the Supreme Court has done so, the Court
may terminate the suspension.
67—Variation or revocation of conditions imposed by Court
(1) The
Supreme Court may, at any time, on application by a registered person, vary or
revoke a condition imposed by the Court in relation to the person's
registration under this Act.
(2) The
Board, the Minister and representative bodies are entitled to appear and be
heard on an application under this section.
In this Part—
health product means—
(a) a
pharmaceutical product; or
(b) any
other product declared by the regulations to be a health product for the
purposes of this Part;
health service means—
(a) hospital,
nursing home or aged care facility services; or
(b) medical,
dental or pharmaceutical services; or
(c) physiotherapy,
psychology, podiatric, chiropractic or osteopathy services; or
(d) any
other service declared by the regulations to be a health service for the
purposes of this Part;
prescribed relative, in relation to a medical practitioner, means a parent,
spouse, child, grandchild, brother or sister of the medical practitioner;
putative spouse, in relation to a medical practitioner,
means a person who is cohabiting with the medical practitioner as the husband
or wife de facto of the medical practitioner and—
(a) who
has so cohabited continuously over the last preceding period of 5 years, or for
periods aggregating five years over the last preceding period of 6 years; or
(b) who
has had sexual relations with the medical practitioner resulting in the birth
of a child;
spouse includes a putative spouse.
69—Offence to contravene conditions of registration
A person who contravenes, or fails to
comply with, a condition imposed under this Act on the person's registration is
guilty of an offence.
Maximum penalty: $75 000 or imprisonment for 6 months.
70—Offence to practise medicine while deregistered
(1) If a person who has been removed from a
register under this Act and not been reinstated provides medical treatment for
fee or reward, the person is guilty of an offence.
Maximum penalty: $75 000 or imprisonment for 6 months.
(2) This
section does not apply in relation to a person who is the subject of an
exemption under section 44 and who provides medical treatment in
accordance with the exemption.
71—Medical practitioner etc must declare interest in prescribed business
(1) A medical practitioner or prescribed
relative of a medical practitioner who has an interest in a prescribed business
must—
(a) in
the case of an interest that came into existence before the commencement of
this section—within 1 month after the commencement of this section; or
(b) in
any other case—within 1 month after the interest comes into existence,
give to the Board prescribed information
relating to the interest and the manner in which it arose.
Maximum penalty: $20 000.
(2) A medical practitioner or prescribed
relative of a medical practitioner who has an interest in a prescribed business
must, within 1 month after a change in the nature or extent of the interest,
give to the Board prescribed information relating to the change.
Maximum penalty: $20 000.
(3) If a medical practitioner or prescribed
relative of a medical practitioner has an interest in a prescribed business,
the medical practitioner must not—
(a) refer
a patient to, or recommend that a patient use, a health service provided by
that business; or
(b) prescribe,
or recommend that a patient use, a health product manufactured, sold or
supplied by that business,
unless the medical practitioner has
informed the patient, in writing, of the interest of the practitioner or
prescribed relative of the practitioner in that business.
Maximum penalty: $20 000.
(4) Subject
to subsection (5), a person has an interest in a prescribed business for
the purposes of this section if the person is likely to derive a financial
benefit, whether directly or indirectly, from the profitable conduct of the
business.
(5) For the purposes of subsection (4)—
(a) a
financial benefit is not derived by a medical practitioner if the benefit
consists solely of reasonable fees payable to the medical practitioner for
treatment provided to patients by the practitioner; and
(b) a
person does not have an interest in a prescribed business that is carried on by
a public company if the interest consists only of a shareholding in the company
of less than 5 per cent of the issued share capital of the company.
(6) It
is a defence to proceedings for an offence against subsection (3) and to a
charge of unprofessional conduct for failure to comply with that subsection for
the defendant to prove that he or she did not know and could not reasonably
have been expected to know that a prescribed relative had an interest in the
prescribed business to which the referral, recommendation or prescription that
is the subject of the proceedings relates.
(7) In this section—
prescribed business means a business consisting of or
involving—
(a) the
provision of a health service; or
(b) the
manufacture, sale or supply of a health product.
72—Offence to give, offer or accept benefit for referral or recommendation
(1) A person must not give, or offer to give, a
medical practitioner or a prescribed relative of a medical practitioner a
benefit as an inducement, consideration or reward for the medical practitioner—
(a) referring
a patient to, or recommending that a patient use, a health service provided by
the person; or
(b) prescribing, or recommending that a patient
use, a health product manufactured, sold or supplied by the person.
Maximum penalty: $75 000.
(2) A medical practitioner or a prescribed
relative of a medical practitioner must not accept from any person a benefit
offered or given as an inducement, consideration or reward for the medical
practitioner—
(a) referring
a patient to, or recommending that a patient use, a health service provided by
that person; or
(b) prescribing, or recommending that a patient
use, a health product manufactured, sold or supplied by that person.
Maximum penalty: $75 000.
(3) In this section—
benefit means money, property or anything else of value.
73—Improper directions to medical practitioners or medical students
(1) If a person who provides medical treatment
through the instrumentality of a medical practitioner or medical student
directs or pressures the practitioner or student to engage in unprofessional
conduct, the person is guilty of an offence.
Maximum penalty: $75 000.
(2) If a person who occupies a position of
authority in a corporate or trustee medical services provider directs or
pressures a medical practitioner or medical student through whom the provider
provides medical treatment to engage in unprofessional conduct, the person and
the provider are each guilty of an offence.
Maximum penalty: $75 000.
74—Procurement of registration by fraud
A person who, by fraud or any other
dishonest means, procures registration or reinstatement of registration under
this Act (whether for himself or herself or for another person) is guilty of an
offence.
Maximum penalty: $20 000 or imprisonment for 6 months.
If a person is required under this Act to furnish information to
the Board, the Board may require that the information be verified by statutory
declaration and, in that event, the person will not be taken to have furnished
the information as required unless it has been verified in accordance with the
requirements of the Board.
76—False or misleading statement
A person must not make a statement that is
false or misleading in a material particular (whether by reason of the
inclusion or omission of any particular) in any information provided under this
Act.
Maximum penalty: $20 000.
77—Medical practitioner or medical student must report his or her medical unfitness to Board
If a medical practitioner or medical
student becomes aware that he or she is or may be medically unfit to provide
medical treatment, the practitioner or student must forthwith give written
notice of that fact to the Board.
Maximum penalty: $10 000.
78—Medical School must report cessation of student's enrolment
The Dean (or acting Dean) of a Medical
School in the State accredited by the Australian Medical Council must, if a
medical student ceases to be enrolled in an undergraduate course, or prescribed
postgraduate course, of medical study at the School, cause written notice of
that fact to be given to the Board.
Maximum penalty: $5 000.
79—Registered persons and medical services providers to be indemnified against loss
(1) A registered person or medical services
provider must not, unless exempted by the Board, provide medical treatment unless
insured or indemnified in a manner and to an extent approved by the Board
against civil liabilities that might be incurred by the registered person or
medical services provider, as the case may be, in connection with the provision
of any such treatment.
Maximum penalty: $10 000.
(2) The
Board may, subject to such conditions as it thinks fit, exempt a person, or a
class of persons, from the requirements of this section and may, whenever it
thinks fit, revoke an exemption or revoke or vary the conditions under which an
exemption operates.
80—Information relating to claim against registered person to be provided
If a person has claimed damages or other
compensation from a registered person or other person for alleged negligence
committed by the registered person in the course of providing medical
treatment, the registered person must—
(a) within
30 days after the claim is made; and
(b) within
30 days after any order is made by a court to pay damages or other compensation
in respect of that claim or any agreement has been entered into for payment of
a sum of money in settlement of that claim (whether with or without a denial of
liability),
provide the Board with prescribed
information relating to the claim.
Maximum penalty: $10 000.
(1) A person commits an act of victimisation
against another person (the victim) if he or she causes detriment
to the victim on the ground, or substantially on the ground, that the victim—
(a) has
disclosed or intends to disclose information; or
(b) has
made or intends to make an allegation,
that has given rise, or could give rise, to proceedings against
the person under this Act.
(2) An act of victimisation under this Act may
be dealt with—
(a) as
a tort; or
(b) as
if it were an act of victimisation under the Equal Opportunity Act 1984,
but, if the victim commences proceedings in a court seeking a
remedy in tort, he or she cannot subsequently lodge a complaint under the Equal
Opportunity Act 1984 and, conversely, if the victim lodges a complaint
under that Act, he or she cannot subsequently commence proceedings in a court
seeking a remedy in tort.
(3) Where
a complaint alleging an act of victimisation under this Act has been lodged
with the Commissioner for Equal Opportunity and the Commissioner is of the
opinion that the subject matter of the complaint has already been adequately
dealt with by a competent authority, the Commissioner may decline to act on the
complaint or to proceed further with action on the complaint.
(4) In this section—
detriment includes—
(a) injury,
damage or loss; or
(b) intimidation
or harassment; or
(c) discrimination,
disadvantage or adverse treatment in relation to the victim's employment or
business; or
(d) threats
of reprisal.
If a person is required to provide information or to produce a
document, record or equipment under this Act and the information, document,
record or equipment would tend to incriminate the person or make the person
liable to a penalty, the person must nevertheless provide the information or
produce the document, record or equipment, but the information, document,
record or equipment so provided or produced will not be admissible in evidence
against the person in proceedings for an offence, other than an offence against
this or any other Act relating to the provision of false or misleading
information.
83—Punishment of conduct that constitutes an offence
If conduct constitutes an offence and is also a ground for
disciplinary action under this Act, the taking of disciplinary action under
this Act is not a bar to conviction and punishment for the offence, nor is
conviction and punishment for the offence a bar to disciplinary action under
this Act.
84—Vicarious liability for offences
If a corporate or trustee medical services provider or other body
corporate is guilty of an offence against this Act, each person occupying a
position of authority in the provider or body corporate is guilty of an offence
and liable to the same penalty as is prescribed for the principal offence
unless it is proved that the person could not, by the exercise of reasonable
care, have prevented the commission of the principal offence.
A fine imposed for an offence against this Act must be paid to the
Board.
86—Board may require medical examination or report
(1) The Board may, for any purpose associated
with the administration or operation of this Act, require a medical
practitioner or medical student, or a person who is applying for registration
or reinstatement of registration to—
(a) submit
to an examination by a health professional, or by a health professional of a
class, specified by the Board; or
(b) provide
a medical report from a health professional, or from a health professional of a
class, specified by the Board,
(including an examination or report that will require the person
to undergo some form of medically invasive procedure).
(2) If
a person fails to comply with a requirement made under subsection (1), the
Board may suspend the person's registration until further order of the Board.
(3) In this section—
health professional means—
(a) a
medical practitioner; or
(b) a
psychologist; or
(c) any
other person who belongs to a profession, or who has an occupation, declared by
the Board, by notice in the Gazette, to be a profession or occupation within
the ambit of this definition.
87—Ministerial review of decisions relating to courses
(1) If the Board—
(a) refuses
to approve a course of education or training for the purposes of this Act; or
(b) revokes
an approval of a course of education or training under this Act,
the provider of the course may apply to the Minister for a review
of that decision.
(2) The
Minister may determine the application as the Minister thinks fit and, if the
Minister finds in favour of the applicant, grant or preserve the approval (as
appropriate).
(1) A person engaged or formerly engaged in the
administration of this Act or the repealed Act must not divulge or communicate
personal information obtained (whether by that person or otherwise) in the
course of official duties except—
(a) as
required or authorised by or under this Act or any other Act or law; or
(b) with
the consent of the person to whom the information relates; or
(c) in
connection with the administration of this Act or the repealed Act; or
(d) to
an authority responsible under the law of a place outside this State for the
registration or licensing of persons who provide medical treatment, where the
information is required for the proper administration of that law; or
(e) to an agency or instrumentality of this
State, the Commonwealth or another State or a Territory of the Commonwealth for
the purposes of the proper performance of its functions.
Maximum penalty: $10 000.
(2) Subsection (1)
does not prevent disclosure of statistical or other data that could not
reasonably be expected to lead to the identification of any person to whom it
relates.
(3) Information that has been disclosed under
subsection (1) for a particular purpose must not be used for any other
purpose by—
(a) the
person to whom the information was disclosed; or
(b) any other person who gains access to the
information (whether properly or improperly and whether directly or indirectly)
as a result of that disclosure.
Maximum penalty: $10 000.
(1) A notice or document required or authorised
to be given or sent to, or served on, a person for the purposes of this Act may—
(a) be
given to the person personally; or
(b) be
posted in an envelope addressed to the person at the person's last known
residential, business or (in the case of a corporation) registered address; or
(c) be
left for the person at the person's last known residential, business or (in the
case of a corporation) registered address with someone apparently over the age
of 16 years; or
(d) be
transmitted by facsimile transmission or electronic mail to a facsimile number
or electronic mail address provided by the person (in which case the notice or
document will be taken to have been given or served at the time of
transmission).
(2) Without
limiting the effect of subsection (1), a notice or other document required
or authorised to be given or sent to, or served on, a person for the purposes
of this Act may, if the person is a company or registered body within the
meaning of the Corporations Act 2001 of the Commonwealth, be served on
the person in accordance with that Act.
(1) In proceedings for an offence against this
Act or in disciplinary proceedings under Part 5, an allegation in the complaint—
(a) that
a person named in the complaint is or is not, or was or was not on a specified
date, a qualified person;
(b) that
a person named in the complaint is or is not, or was or was not on a specified
date, registered on the medical student register, the general register, the
specialist register or in a specified specialty;
(c) that
the registration of a person named in the complaint is, or was on a specified
date, subject to specified conditions;
(d) that
a person named in the complaint is, or was on a specified date, a medical
services provider;
(e) that
a person named in the complaint is, or was on a specified date, occupying a position
of authority in a corporate or trustee medical services provider;
(f) that
a person named in the complaint is, or was on a specified date, an inspector,
must be accepted as proved in the absence of proof to the
contrary.
(2) In
legal proceedings, a document apparently certified by the Registrar to be a
copy of a register under this Act, or a copy of a code of conduct or
professional standard prepared or endorsed by the Board under this Act, must be
accepted as such in the absence of proof to the contrary.
(1) The
Governor may make such regulations as are contemplated by, or necessary or
expedient for the purposes of, this Act.
(2) Without limiting the generality of
subsection (1), the regulations may—
(a) prescribe,
or empower the Board to fix—
(i) fees
or charges for the purposes of this Act;
(ii) fees
or charges for services provided by the Board in the exercise of its functions
under this Act,
and may provide for the recovery of a fee or charge so prescribed;
(b) exempt
any person or class of persons from the obligation to pay a fee or charge so
prescribed;
(c) regulate,
or otherwise make provision with respect to, the education of medical
practitioners for the purposes of this Act, including by making provision with
respect to the approval of courses that may lead to registration;
(d) make
any provision with respect to the keeping of a register;
(e) prescribe
penalties, not exceeding $5 000, for breach of, or non-compliance, with a
regulation.
(3) The regulations may—
(a) refer
to or incorporate, wholly or partially and with or without modification, a
code, standard or other document prepared or published by a prescribed body,
either as in force at the time the regulations are made or as in force from
time to time; and
(b) be
of general or limited application; and
(c) make
different provision according to the persons, things or circumstances to which
they are expressed to apply; and
(d) provide
that a specified provision of this Act does not apply, or applies with
prescribed variations, to any person, circumstance or situation (or person,
circumstance or situation of a prescribed class) specified by the regulations,
subject to any condition to which the regulations are expressed to be subject;
and
(e) provide
that any matter or thing is to be determined, dispensed with, regulated or
prohibited according to the discretion of the Minister, the Board or another
prescribed authority.
(4) If a code, standard or other document is
referred to or incorporated in the regulations—
(a) a
copy of the code, standard or other document must be kept available for public
inspection, without charge and during normal office hours, at an office or
offices specified in the regulations; and
(b) evidence
of the contents of the code, standard or other document may be given in any
legal proceedings by production of a document apparently certified by the
Minister to be a true copy of the code, standard or other document.
Schedule 1—Repeal and transitional provisions
1—Repeal of Medical Practitioners Act 1983
The Medical Practitioners Act 1983 is repealed.
2—Transitional provisions relating to Board and Tribunal
(1) The
Medical Board of South Australia is the same body corporate as the Medical
Board established under the repealed Act.
(2) On the commencement of this clause—
(a) all
members of the Board then in office vacate their respective offices so that
fresh appointments may be made to the Board under this Act; and
(b) all
members of the Tribunal then in office vacate their respective offices so that
fresh appointments may be made to the Tribunal under this Act.
(3) If appointments are to be made to the Board
pursuant to the Acts Interpretation Act 1915 prior to the
commencement and for the purposes of section 6—
(a) a
reference in that section to medical practitioner will, for those
purposes, be taken to be a reference to a person who is a registered medical
practitioner under the repealed Act at the relevant time; and
(b) despite
section 14C(3) of the Acts Interpretation Act 1915, such an
appointment takes effect on the commencement of the section for the purposes of
which it was made and not before.
3—Transitional provisions relating to registration
(1) The
registers maintained under the repealed Act continue in existence as the
relevant appropriate registers under this Act.
(2) The
Registrar will, on the commencement of this Act, remove from the relevant
register any company that was registered as a medical practitioner under the
repealed Act.
(3) A
person who is on the general register or the specialist register immediately
following the commencement of this clause will be taken to be registered under
this Act on the relevant register and any restrictions, limitations or
conditions that applied to the registration of the person under the repealed
Act immediately before that commencement will be taken to continue to apply to
the registration of the person under this Act as if they had been imposed by
the Board under this Act.
(4) If
a person who was removed from a register under the repealed Act for any reason
and who had not, before the commencement of this Act, been reinstated on that
register, applies for registration under this Act, the Board may deal with the
application as though it were an application for reinstatement on the
appropriate register under this Act.
4—Transitional provision relating to medical students
A person who was, immediately before the commencement of this
clause, enrolled in an undergraduate course, or prescribed postgraduate course,
of medical study at a Medical School in the State accredited by the Australian Medical
Council, is, on due application to the Board, entitled to full registration on
the medical student register.
5—Transitional provision relating to declaration of interests in hospitals
(1) A
medical practitioner or prescribed relative of a medical practitioner who has
an interest in a hospital (as defined in section 71 of the repealed Act) that
arose before the commencement of section 71(1) of this Act is not required
to comply with that subsection in relation to the interest if, before that commencement,
the medical practitioner or prescribed relative had complied with section 71(1)
of the repealed Act in relation to the interest.
(2) In subclause (1)—
prescribed relative has the same meaning as in Part 7.
The regulations may make other provisions of a savings or transitional nature consequent on the enactment of this Act.