New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Medical Practice Amendment Bill 2000
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Medical Practice Act 1992 No 94 2
4 Amendment of other Acts 2
Schedules
1 Amendment of Medical Practice Act 1992 3
2 Amendment of other Acts 82
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2000
New South Wales
Medical Practice Amendment Bill 2000
Act No , 2000
An Act to amend the Medical Practice Act 1992 to make further provision for the
registration of medical practitioners and the professional practice of medical
practitioners; to amend certain other Acts; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Medical Practice Amendment Bill 2000
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Medical Practice Amendment Act 2000.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Medical Practice Act 1992 No 94
The Medical Practice Act 1992 is amended as set out in Schedule 1.
4 Amendment of other Acts
The Acts specified in Schedule 2 are amended as set out in that
Schedule.
Page 2
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
Schedule 1 Amendment of Medical Practice Act 1992
(Section 3)
[1] Section 2A
Insert after section 2:
2A Object of Act
(1) The object of this Act is to protect the health and safety of the
public by providing mechanisms designed to ensure that:
(a) medical practitioners are fit to practise medicine, and
(b) medical students are fit to undertake medical studies
and clinical placements.
(2) The Board must exercise its functions under this Act in a
manner that is consistent with this object.
[2] Section 3 Definitions
Insert at the end of section 3:
(2) Notes included in this Act are explanatory notes and do not
form part of this Act.
[3] Section 7 Conditional registration at the discretion of the Board
Omit "practise" from section 7 (2). Insert instead "practice".
[4] Section 10 Conditions may be imposed in cases of impairment
Omit section 10 (1). Insert instead:
(1) The Board may impose conditions on a person's registration,
as an alternative to refusing to register the person, if the Board
is satisfied that the person suffers from an impairment and the
conditions are reasonably required having regard to the
impairment.
Page 3
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
[5] Section 11
Omit the section. Insert instead:
11 Entitlement to registration does not prevent conditions being
imposed
An entitlement to registration under this Act (including an
entitlement to general registration) does not prevent conditions
being imposed on that registration in accordance with this Act.
[6] Section 15 Registration may be refused if applicant convicted of
offence
Omit section 15 (1). Insert instead:
(1) The Board may refuse an application for registration if:
(a) the applicant has been convicted of or made the subject
of a criminal finding for an offence (either in or outside
the State), and
(b) the Board is of the opinion that the circumstances of the
offence are such as to render the applicant unfit in the
public interest to practise medicine.
[7] Section 16
Omit the section. Insert instead:
16 Registration may be refused if applicant deregistered on
disciplinary grounds in another jurisdiction
(1) The Board may refuse an application for registration if the
person has been deregistered under a foreign law:
(a) for any reason relating to the conduct of the applicant
amounting to professional misconduct (within the
meaning of this Act), or
(b) on any basis relating to the applicant's physical or
mental capacity to practise medicine.
(2) For the purposes of this section, a person is deregistered under
a foreign law when:
(a) the person's name is removed from any register or roll
established or kept under a foreign law, or
Page 4
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(b) the person's entitlement to practise medicine is
suspended under a foreign law (in the case of a person
who is not entitled to registration under the Mutual
Recognition laws).
(3) In this section:
foreign law means the law of any other State or a Territory or
of another country providing for the registration, licensing or
certification of medical practitioners.
[8] Section 30 Practitioner to be notified of action
Insert at the end of the section:
(2) This section does not apply if the Board removes a person's
name from the Register in accordance with an order of the
Chairperson, a Deputy Chairperson, the Tribunal or the
Supreme Court under this Act.
[9] Section 32 Deregistration on basis of disciplinary action under foreign
law
Omit section 32 (1). Insert instead:
(1) This section applies when it is proved to the satisfaction of that
Board that, after a person was registered under this Act, the
person was deregistered under a foreign law:
(a) for any reason relating to conduct of the person
amounting to professional misconduct (within the
meaning of this Act), or
(b) for any reason relating to the person's physical or
mental capacity to practise medicine.
[10] Section 32 (4)
Insert after section 32 (3):
(4) For the purposes of this section, a person is deregistered under
a foreign law when:
(a) the person's name is removed from any register or roll
under a foreign law, or
Page 5
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(b) the person's entitlement to practise medicine is
suspended under a foreign law (in the case of a person
who is not entitled to registration under the Mutual
Recognition laws).
[11] Section 35 Appeal
Insert "under this Division" after "Register" in section 35 (1).
[12] Section 36
Omit the section. Insert instead:
36 Meaning of "unsatisfactory professional conduct"
(1) For the purposes of this Act, unsatisfactory professional
conduct of a registered medical practitioner includes each of
the following:
(a) Lack of skill etc
Any conduct that demonstrates a lack of adequate
knowledge, skill, judgment or care, by the practitioner
in the practice of medicine.
(b) Contravention of Act or regulations
Any contravention by the practitioner (whether by act or
omission) of a provision of this Act or the regulations.
(c) Contravention of conditions of registration
Any contravention by the practitioner (whether by act or
omission) of a condition to which his or her registration
is subject.
(d) Criminal convictions and criminal findings
Any conduct that results in the practitioner being
convicted of or being made the subject of a criminal
finding for any of the following offences:
(i) an offence under section 204 of the Mental
Health Act 1990,
(ii) an offence under section 20B of the Children
(Care and Protection) Act 1987,
(iii) an offence under section 35 of the Guardianship
Act 1987,
Page 6
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(iv) an offence under section 128A, 128B, 129,
129AA or 129AAA of the Health Insurance Act
1973 of the Commonwealth,
(v) an offence under section 46 of the Private
Hospitals and Day Procedure Centres Act 1988,
(vi) an offence under section 43 of the Nursing
Homes Act 1988.
(e) Accepting a benefit for a referral or recommendation to
a health service provider
Accepting from a health service provider (or from
another person on behalf of the health service provider)
a benefit as inducement, consideration or reward for:
(i) referring another person to the health service
provider, or
(ii) recommending another person use any health
service provided by the health service provider
or consult with the health service provider in
relation to a health matter.
(f) Accepting a benefit for a recommendation of a health
product
Accepting from a person who supplies a health product
(or from another person on behalf of the supplier) a
benefit as inducement, consideration or reward for
recommending that another person use the health
product.
(g) Offering a benefit for a referral or recommendation
Offering or giving any person a benefit as inducement,
consideration or reward for the person:
(i) referring another person to the registered
medical practitioner, or
(ii) recommending to another person that the person
use any health service provided by the
practitioner or consult the practitioner in relation
to a health matter.
Page 7
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(h) Failure to disclose pecuniary interest in giving referral
or recommendation
Referring a person to, or recommending that a person
use or consult:
(i) another health service provider, or
(ii) a health service, or
(iii) a health product,
when the practitioner has a pecuniary interest in giving
that referral or recommendation (as provided by
subsection (2)), unless the practitioner discloses the
nature of that interest to the person before or at the time
of giving the referral or recommendation.
(i) Engaging in overservicing
Engaging in overservicing, as provided by subsection
(3).
(j) Supervision of assistants
Permitting an assistant employed by the practitioner (in
connection with the practitioner's professional practice)
who is not a registered medical practitioner to attend,
treat or perform operations on patients in respect of
matters requiring professional discretion or skill.
(k) Assisting unregistered practitioners
By the practitioner's presence, countenance, advice,
assistance or co-operation, knowingly enable a person
who is not a registered medical practitioner (whether or
not that person is described as an assistant) to:
(i) perform any act of operative surgery (as distinct
from manipulative surgery) on a patient in
respect of any matter requiring professional
discretion or skill, or
(ii) issue or procure the issue of any certificate,
notification, report or other like document, or to
engage in professional practice, as if the person
were a registered medical practitioner.
(l) Failing to render urgent attention
Refusing or failing, without reasonable cause, to attend
(within a reasonable time after being requested to do so)
on a person for the purpose of rendering professional
services in the capacity of a registered medical
Page 8
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
practitioner in any case where the practitioner has
reasonable cause to believe that the person is in need of
urgent attention by a registered medical practitioner,
unless the practitioner has taken all reasonable steps to
ensure that another registered medical practitioner
attends instead within a reasonable time.
(m) Other improper or unethical conduct
Any other improper or unethical conduct relating to the
practice or purported practice of medicine.
Note. Sections 37A and 38 provide for some exceptions to the above
provisions.
(2) A registered medical practitioner has a pecuniary interest in
giving a referral or recommendation:
(a) if the health service provider, or the supplier of the
health product, to which the referral or recommendation
relates is a public company and the practitioner holds
5% or more of the issued share capital of the company,
or
(b) if the health service provider, or the supplier of the
health product, to which the referral or recommendation
relates is a private company and the practitioner has any
interest in the company, or
(c) if the health service provider, or the supplier of the
health product, to whom the referral or recommendation
relates is a natural person who is a partner of the
practitioner, or
(d) in any circumstances prescribed by the regulations.
(3) A registered medical practitioner engages in overservicing if
the practitioner, in the course of professional practice:
(a) provides a service in circumstances in which provision
of the service is unnecessary, not reasonably required or
excessive, or
(b) engages in conduct prescribed by the regulations as
constituting overservicing.
(4) For avoidance of doubt, a reference in this section to a referral
or recommendation that is given to a person includes a referral
or recommendation that is given to more than one person or to
persons of a particular class.
Page 9
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(5) In this section:
benefit means money, property or anything else of value.
recommend a health product includes supply or prescribe the
health product.
supply includes sell.
[13] Section 37A
Insert after section 37:
37A Exception--advertising and other prescribed exceptions
A registered medical practitioner is not guilty of unsatisfactory
professional conduct described in section 36 (1) (e), (f), (g)
or (h):
(a) in respect of any recommendation made in a public
advertisement, or
(b) in any circumstances prescribed by the regulations as
not being a contravention of section 36 (1) (e), (f), (g)
or (h).
[14] Section 38 Exception--training, employment and research
Omit "under the heading `Supervision of assistants' or `Assisting
unregistered practitioners' in section 36" from section 38.
Insert instead "in section 36 (1) (j) and (k)".
[15] Section 39 Grounds for complaint
Omit the paragraph with the heading "Criminal conviction" (including the
heading).
Insert instead:
(a) Criminal conviction or criminal finding
A complaint that the practitioner has, either in this State
or elsewhere, been convicted of or made the subject of
a criminal finding for an offence.
Page 10
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
[16] Section 39
Insert paragraph letters before each paragraph heading in section 39, in
appropriate sequential order, as indicated by item [15].
[17] Section 50 Courses of action available to Board on a complaint
Omit section 50 (1). Insert instead:
(1) The following courses of action are available to the Board in
respect of a complaint made to the Board, referred to the Board
by the Commission or that the Board has decided to make:
(a) the Board may refer the complaint to the Commission
for investigation, a Committee or the Tribunal, as the
Board thinks fit,
(b) the Board may:
(i) refer the matter to an Impaired Registrants
Panel, or
(ii) refer the professional performance of the
practitioner concerned for assessment under
Part 5A,
(c) the Board may direct the practitioner concerned to
attend counselling,
(d) the Board may refer the complaint for conciliation in
accordance with section 13 (2) of the Health Care
Complaints Act 1993,
(e) the Board may determine that no further action should
be taken in respect of the complaint.
[18] Section 50 (4)
Insert after section 50 (3):
(4) If the Board makes a referral under subsection (1) (b), the
matter ceases to be a complaint for the purposes of this Act and
the Health Care Complaints Act 1993.
(5) Subsection (4) ceases to apply in respect of any matter that the
Board subsequently deals with as a complaint.
Page 11
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
[19] Section 51 Courses of action available to the Commission on a
complaint
Omit section 51 (1). Insert instead:
(1) The following courses of action are available to the
Commission in respect of a complaint made to the Commission
or that the Commission has decided to make:
(a) the Commission may refer the complaint to the Board
or, after consultation with the Board, to a Committee or
the Tribunal (but may not refer it to an Impaired
Registrants Panel or refer the professional performance
of the practitioner concerned for assessment under
Part 5A),
(b) the Commission may refer the complaint for
conciliation in accordance with section 13 (2) of the
Health Care Complaints Act 1993,
(c) the Commission may determine that no further action
should be taken in respect of the complaint,
(d) the Commission may take any other action that it can
take under the Health Care Complaints Act 1993.
[20] Section 52 Serious complaints must be referred to Tribunal
Omit "if of the opinion that" from section 52 (1).
Insert instead "if at any time either forms the opinion that".
[21] Section 63 Committee can recommend suspension or deregistration on
grounds of lack of physical or mental capacity
Insert after section 63 (1):
(1A) If the person is not registered, a recommendation can be made
under this section that the person not be re-registered.
[22] Section 64 Tribunal can suspend or deregister in certain cases
Omit "convicted of an offence (either in or outside New South Wales)"
from section 64 (1) (c).
Insert instead "convicted of or made the subject of a criminal finding for an
offence, either in or outside New South Wales,".
Page 12
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
[23] Sections 66-66D
Omit section 66. Insert instead:
66 Suspension or conditions to protect the public
(1) The Board must, if at any time it is satisfied that such action is
necessary for the purpose of protecting the life or physical or
mental health of any person:
(a) by order suspend a registered medical practitioner from
practising medicine for such period (not exceeding 8
weeks) as is specified in the order, or
(b) impose on a registered medical practitioner's
registration such conditions, relating to the practitioner's
practising medicine, as it considers appropriate.
(2) The Board may take such action:
(a) whether or not a complaint has been made or referred to
the Board about the practitioner, and
(b) whether or not proceedings in respect of such a
complaint are before the Tribunal or a Committee.
(3) The Board is to give written notice of any action taken under
this section to the practitioner concerned.
66A Power to remove or alter conditions
(1) The Board may at any time alter or remove conditions imposed
under this Division.
(2) The Board is to give written notice of any action taken under
this section to the practitioner concerned.
66B Referral of matter to Commission
(1) The Board must, as soon as practicable after taking any action
under section 66 and, in any event, within 7 days after taking
that action, refer the matter to the Commission for
investigation.
(2) The matter is to be dealt with by the Commission as a
complaint made to the Commission against the practitioner
concerned.
Page 13
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(3) The Commission is to investigate the complaint or cause it to
be investigated and, as soon as practicable after it has
completed its investigation, refer the complaint to the Tribunal
or a Committee.
(4) Section 52 (Serious complaints must be referred to Tribunal)
applies in respect of any such action by the Commission.
(5) This section does not apply if the Board imposes conditions on
the registration of a registered medical practitioner under
section 66 because the Board is of the opinion that the
practitioner suffers from an impairment.
66C Special provisions--impairment
(1) This section applies if the Board imposes conditions on the
registration of a registered medical practitioner under section 66
because the Board is of the opinion that the practitioner suffers
from an impairment.
(2) The Board must, as soon as practicable after taking that action
and, in any event, within 7 days after taking that action, notify
the Commission that it has taken that action.
(3) The Board is to consult with the Commission to see if
agreement can be reached as to whether the matter should be:
(a) dealt with as a complaint against the practitioner, or
(b) referred to an Impaired Registrants Panel.
(4) The matter is to be dealt with as a complaint against the
practitioner only if, following that consultation:
(a) the Board and the Commission agree that it should be
dealt with as a complaint, or
(b) either the Board or the Commission is of the opinion
that the matter should be dealt with as a complaint.
(5) In such a case, the Board is to refer the matter to the
Commission and the matter is to be dealt with by the
Commission as a complaint made to the Commission against
the practitioner concerned.
(6) The Commission is to investigate the complaint or cause it to
be investigated and, as soon as practicable after it has
completed its investigation, refer the complaint to the Tribunal
or a Committee.
Page 14
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(7) Section 52 (Serious complaints must be referred to Tribunal)
applies in respect of any such action by the Commission.
(8) If subsection (4) does not apply, the Board is to refer the matter
to an Impaired Registrants Panel.
66D Tribunal to be notified of suspensions
If the Board suspends a registered medical practitioner from
practising medicine under section 66, the Board must notify the
Chairperson that it has taken that action as soon as practicable
after making the order and, in any event, within 7 days.
[24] Section 67 Extension of suspension
Omit "30 days" from section 67.
Insert instead "8 weeks".
[25] Sections 69 and 69A
Omit section 69. Insert instead:
69 Duration of conditions--complaint matters
(1) This section applies if the Board imposes conditions on the
registration of a registered medical practitioner under section 66
and the matter is dealt with as a complaint against the
practitioner.
(2) The conditions imposed by the Board have effect until the
complaint about the practitioner is disposed of, or the
conditions are removed by the Board, whichever happens first.
(3) This section:
(a) does not prevent conditions being imposed under
another provision of this Act, and
(b) is subject to anything done by the Tribunal on an appeal
under section 95.
69A Duration of conditions--impairment matters
(1) This section applies if the Board imposes conditions on the
registration of a registered medical practitioner under section 66
and the matter is referred to an Impaired Registrants Panel.
Page 15
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(2) The conditions imposed by the Board have effect as follows:
(a) if the matter is subsequently dealt with by the Board as
a complaint (see section 82), until the complaint about
the practitioner is disposed of, or
(b) until the conditions are removed by the Board,
whichever happens first.
(3) The Board is not required to alter or remove conditions
imposed under this Division merely because a practitioner
agrees to conditions being imposed on the practitioner's
registration in accordance with the recommendations of an
Impaired Registrants Panel (as referred to in section 81).
(4) A registered medical practitioner who agrees to conditions
being imposed on his or her registration in accordance with the
recommendations of an Impaired Registrants Panel may, by
notice in writing to the Board, request that the conditions
imposed under this Division be altered or removed.
(5) On receipt of such a request, the Board is to review the matter,
and may:
(a) refuse to alter or remove any of the conditions, or
(b) alter or remove the conditions.
(6) The Board is to give the practitioner concerned notice in
writing of its decision in respect of the request.
(7) The Board may specify in the notice a period in which a further
request by the practitioner under this section is not permitted.
The Board may reject a request that the conditions be altered or
removed if it is made during that period.
(8) This section:
(a) does not prevent conditions being imposed under
another provision of this Act, and
(b) is subject to anything done by the Tribunal on an appeal
under section 95.
Page 16
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
[26] Section 71 Referral of matters by courts
Omit section 71 (1). Insert instead:
(1) A court in New South Wales before which a person is
convicted of an offence, or is made the subject of a criminal
finding for a sex or violence offence, other than an offence
prescribed by the regulations, is to cause notice of the
conviction or criminal finding, and of any penalty imposed on
the person, to be sent to the Registrar if the court has
reasonable grounds to believe that the person is or was, at the
time the offence was committed, a registered medical
practitioner.
[27] Section 71 (3)
Omit the subsection. Insert instead:
(3) If a notice or a transcript of evidence is furnished to the
Registrar under this section, a complaint is taken to have been
made to the Board about the person to whom the notice or
transcript relates.
[28] Part 5, heading
Omit "Alternatives to disciplinary procedures".
Insert instead "Impairment".
[29] Sections 72, 78, 79 and 82
Omit "a Panel" wherever occurring in sections 72 (2), 78, 79 (1) and 82 (3).
Insert instead "an Impaired Registrants Panel".
[30] Sections 75, 76 and 80
Omit "A Panel" wherever occurring in sections 75 (1), 76 and 80 (1).
Insert instead "An Impaired Registrants Panel".
[31] Section 77 Board to give notice of proposed inquiry
Omit "the Panel" from section 77.
Insert instead "an Impaired Registrants Panel".
Page 17
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
[32] Section 78 Practitioner or student entitled to make representations
Insert at the end of section 78:
(2) This section does not prevent the Panel from conducting an
inquiry in the absence of the registered medical practitioner or
medical student to whom it relates, as long as the practitioner
or student has been given notice of the inquiry under
section 77.
[33] Section 78A
Insert after section 78:
78A Board may require practitioner to undergo medical examination
(1) The Board may by notice given to a registered medical
practitioner who is the subject of a matter referred or proposed
to be referred to an Impaired Registrants Panel direct the
practitioner to undergo a medical examination by a specified
registered medical practitioner at a specified time and place.
(2) A practitioner must not be directed to undergo a medical
examination unless it is reasonable to require the examination,
given the nature of the matter that is the subject of the referral
or proposed referral. The time and place specified for the
examination must be reasonable and the examination is to be
at the expense of the Board.
(3) If a registered medical practitioner refuses, without reasonable
excuse, to comply with a direction to undergo a medical
examination, that refusal is, for the purposes of this Act and
any inquiry or appeal under this Act, evidence that the
practitioner does not have sufficient physical and mental
capacity to practise medicine.
[34] Section 79 Board may require student to undergo medical examination
Omit section 79 (3)-(5). Insert instead:
(3) If a medical student fails, without reasonable excuse, to comply
with a direction to undergo a medical examination, the Board
may by order in writing prohibit the student undertaking
clinical studies, or undertaking a clinical placement in a public
hospital, until the student complies with the direction.
Page 18
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(4) The Board's order takes effect when a copy of it is served on
the educational institution responsible for the clinical studies or
clinical placement of the student.
(5) A medical student is not permitted to undertake clinical studies
or a clinical placement in a public hospital contrary to the terms
of the order.
[35] Section 80 Assessment, report and recommendations by Panel
Omit "consent" from section 80 (2) (b). Insert instead "agree".
[36] Sections 81 and 81A
Omit section 81. Insert instead:
81 Voluntary suspension or conditions on registration
The Board may impose conditions on a registered medical
practitioner's registration or suspend the practitioner from
practising medicine if:
(a) an Impaired Registrants Panel has recommended that
the Board do so, and
(b) the Board is satisfied that the practitioner has voluntarily
agreed to the conditions.
81A Review of conditions
(1) A registered medical practitioner who agrees to conditions
being imposed on his or her registration, or to being suspended
from practising medicine, may, by notice in writing to the
Board, request:
(a) that those conditions be altered or removed, or
(b) that the suspension be terminated or shortened.
(2) On receipt of such a request, the Board is to require an
Impaired Registrants Panel to review the matter and report in
writing to the Board on the results of its review.
(3) If the Panel recommends that the Board refuse to alter or
remove any of the conditions, or refuse to terminate or shorten
the suspension, the Board may do so.
Page 19
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(4) The Board is to give the practitioner concerned notice in
writing of its decision in respect of the request.
(5) The Board may specify in the notice a period in which a further
request by the practitioner under this section is not permitted.
The Board may reject a request that the conditions be altered or
removed, or that the suspension be terminated or shortened, if
it is made during that period.
[37] Section 82 Some matters to be dealt with as complaints
Omit section 82 (1). Insert instead:
(1) If an Impaired Registrants Panel recommends that a registered
medical practitioner agree to conditions being imposed on his
or her registration or to being suspended from practising
medicine and the practitioner fails to agree with the
recommendation, the Board is to deal with the matter that was
the subject of the referral to the Panel as a complaint against
the practitioner.
[38] Section 83
Omit the section. Insert instead:
83 Prohibition or conditions on student
(1) An Impaired Registrants Panel that investigates a matter
concerning a medical student may recommend to the Board
that is it in the public interest that the Board:
(a) prohibit the student from undertaking clinical studies or
from undertaking a clinical placement in a public
hospital, or
(b) impose specified conditions on the undertaking of
clinical studies or a clinical placement by the student.
(2) If the Panel makes such a recommendation and the Board is
satisfied that it is in the public interest to do so, the Board may
by order in writing:
(a) prohibit the student undertaking clinical studies or a
clinical placement in a public hospital, or
(b) impose specified conditions on the undertaking of
clinical studies or a clinical placement by the student.
Page 20
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(3) An order under this section takes effect when notice of it is
served on the educational institution responsible for the
conduct of the clinical studies or the patronage of the clinical
placement of the student.
(4) A medical student is not to be permitted to undertake clinical
studies or a clinical placement in a public hospital contrary to
the terms of an order in force under this section.
(5) An order remains in force for the period (up to 2 years)
specified in the order unless it is revoked by the Board. The
Board may issue further orders in respect of a student but only
on the recommendation of an Impaired Registrants Panel.
[39] Section 84 Appeal by student against order
Omit section 84 (1). Insert instead:
(1) A person may appeal to the Tribunal against a decision of the
Board to issue an order:
(a) prohibiting the person from undertaking clinical studies
or a clinical placement in a public hospital, or
(b) imposing conditions on the undertaking of clinical
studies or a clinical placement by the person.
[40] Section 85
Omit the section. Insert instead:
85 Confidentiality of Panel's report
(1) A report by an Impaired Registrants Panel to the Board may
not be admitted or used in any civil proceedings before a court.
(2) A person may not be compelled to produce the report or to give
evidence in relation to the report or its contents in any such
civil proceedings.
(3) A report referred to in this section is a protected report for the
purposes of this Act.
Page 21
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(4) In this section:
court includes any tribunal, authority or person having power
to require the production of documents or the answering of
questions, but does not include the Tribunal, a Committee or a
Performance Review Panel or the Supreme Court (in respect of
appeal proceedings under this Act).
report includes a copy, reproduction and duplicate of the report
or any part of the report, copy, reproduction or duplicate.
[41] Section 86 Board to consider Panel's reports when assessing
application for registration
Omit "a Panel" wherever occurring in section 86 (1).
Insert instead "an Impaired Registrants Panel".
[42] Part 5A
Insert after Part 5:
Part 5A Performance assessment
Division 1 Preliminary
86A Meaning of "professional performance"
For the purposes of this Part, a reference to the professional
performance of a registered medical practitioner is a reference
to the knowledge, skill or care possessed and applied by the
practitioner in the practice of medicine.
86B Meaning of "unsatisfactory" in relation to professional
performance
For the purposes of this Part, the professional performance of
a registered medical practitioner is unsatisfactory if it is below
the standard reasonably expected of a practitioner of an
equivalent level of training or experience.
Page 22
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
Division 2 Board may obtain performance assessment
86C Power to obtain assessment
The Board may have the professional performance of a
registered medical practitioner assessed under this Part if any
matter comes to its attention that indicates that the professional
performance of the registered medical practitioner, or any
aspect of the practitioner's professional performance, is
unsatisfactory. This is not limited to matters that are the subject
of a complaint or notification to the Board.
86D Serious matters not to be referred for assessment
(1) The Board must not have the professional performance of a
registered medical practitioner assessed under this Part if a
matter giving rise to the proposed assessment:
(a) raises a significant issue of public health or safety, or
(b) raises a prima facie case of professional misconduct by
the registered medical practitioner, or unsatisfactory
professional conduct by the registered medical
practitioner of a significant nature.
(2) Any such matter is to be dealt with as a complaint.
86E Persons may notify the Board of professional performance
matters
(1) A person may notify the Board of any matter that the person
thinks indicates that the professional performance of a
registered medical practitioner is unsatisfactory.
(2) The Board is not to have the professional performance of the
practitioner concerned assessed on the basis of that notification
if it is made anonymously.
Note. A complaint can be made by any person (see section 41). The
complaint must be in writing and contain particulars of the allegations on
which it is founded (see section 43). A complaint can be treated by the
Board as a performance assessment matter (see section 50), but the
Board must consult with the Commission before taking any action with
respect to the complaint (see section 49).
Page 23
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
86F Commission may refer professional performance matters to
Board
(1) If the Commission becomes aware of any matter that the
Commission considers indicates that the professional
performance of a registered medical practitioner is
unsatisfactory, the Commission may refer the matter to the
Board.
(2) This section does not affect the functions of the Board in
relation to a complaint made to the Commission or a matter
referred to the Commission for investigation.
Division 3 Assessment of professional performance by
assessor
86G How Board obtains an assessment
The Board has the professional performance of a registered
medical practitioner assessed by having one or more assessors
conduct an assessment of the practitioner's professional
performance, or of any particular aspect or aspects of the
practitioner's professional performance.
86H Information to be given to medical practitioner
(1) As soon as practicable after deciding to have the professional
performance of a registered medical practitioner assessed, the
Board is to inform the practitioner in writing of that decision.
(2) The information given to the practitioner is to include the
following:
(a) details of the matter or matters that gave rise to the
assessment,
(b) information about how the performance assessment
process under this Part works.
86I Report and recommendations by assessor
(1) An assessor who is required by the Board to conduct an
assessment of a registered medical practitioner's professional
performance is to:
(a) conduct an assessment of the practitioner's professional
performance, and
Page 24
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(b) report in writing on that assessment to the Board.
(2) The report is to include such recommendations as the assessor
considers appropriate.
(3) If more than one assessor is appointed to assess the
professional performance of a registered medical practitioner,
the report may be made jointly or separately, but in any case is
to be made in the manner directed by the Board.
86J Action that may be taken by Board
(1) After receiving the report of an assessor, the Board may:
(a) determine that no further action should be taken in
respect of the practitioner concerned, or
(b) require a Performance Review Panel to conduct a
review of the professional performance of the
practitioner, or
(c) make a complaint against the practitioner in accordance
with Division 2 of Part 4, or
(d) refer the matter to an Impaired Registrants Panel, or
(e) counsel the practitioner concerned or direct the
practitioner concerned to attend counselling.
(2) The Board must make a complaint against the practitioner
concerned if the assessment:
(a) raises a significant issue of public health or safety, or
(b) raises a prima facie case of professional misconduct by
a registered medical practitioner, or unsatisfactory
professional conduct by a registered medical practitioner
of a significant nature.
(3) This section does not limit the Board's powers under
section 66.
Page 25
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
Division 4 Performance review by Performance Review
Panel
86K Panel to conduct performance review
(1) A Performance Review Panel is to conduct a review (referred
to in this Part as a performance review) of the professional
performance of a registered medical practitioner if required to
do so by the Board.
(2) The chairperson of the Panel is to inform the registered medical
practitioner concerned in writing that a performance review will
be conducted not less than 14 days before the time and place
appointed for the performance review.
86L Panel not to take action while Commission investigating
A Performance Review Panel is not to take any action in
relation to a registered medical practitioner if the Panel
becomes aware that the practitioner is the subject of a
complaint that is being investigated by the Commission, unless
the Commission agrees to the continuation of the performance
review.
86M Panel must refer certain matters to Board
(1) A Performance Review Panel must terminate a performance
review if before or during the performance review the Panel
forms an opinion that:
(a) the performance review raises a significant issue of
public health or safety, or
(b) the performance review raises a prima facie case of
professional misconduct by a registered medical
practitioner, or unsatisfactory professional conduct by a
registered medical practitioner of a significant nature.
(2) When the Panel terminates a performance review because of
subsection (1), it must refer the issue or case back to the Board
with a recommendation that a complaint be made against the
registered medical practitioner concerned.
(3) The Board is to deal with the matter accordingly.
Page 26
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
86N Actions by Panel
(1) At the completion of a performance review, a Performance
Review Panel may make such recommendations to the Board
in respect of the registered medical practitioner concerned as
the Panel considers appropriate.
(2) Without limiting subsection (1), if the Panel finds that the
professional performance of the practitioner, or a particular
aspect of the professional performance of the practitioner, is
unsatisfactory, the Panel may do any one or more of the
following things:
(a) direct that such conditions, relating to the person's
practising medicine, as it considers appropriate be
imposed on the person's registration,
(b) order that the practitioner complete such educational
courses as are specified by the Panel,
(c) order that the practitioner report on his or her medical
practice at the times, in the manner and to the persons
specified by the Panel,
(d) order that the practitioner seek and take advice, in
relation to the management of his or her medical
practice, from such persons as are specified by the
Panel.
(3) If the Panel finds that a matter:
(a) raises a significant issue of public health or safety, or
(b) raises a prima facie case of professional misconduct by
a registered medical practitioner, or unsatisfactory
professional conduct by a registered medical practitioner
of a significant nature,
the Panel must recommend to the Board that a complaint be
made against the practitioner concerned, in which case the
Board is to deal with the matter accordingly.
(4) In any other case that the Board thinks it appropriate to do so,
the Board may make a complaint in respect of a matter that has
been considered by a Performance Review Panel, after
consulting with the Commission.
Page 27
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
86O Re-assessment
(1) Without limiting section 86N, a Performance Review Panel
may direct that a registered medical practitioner's professional
performance be re-assessed at a future date.
(2) The Board is to have one or more assessors conduct that
assessment, when it is required, and report to the Board on the
assessment.
(3) The Board may take any action in respect of that assessment
that is available to the Board under section 86J, including
requiring a Performance Review Panel to conduct a further
performance review in relation to the practitioner.
86P Decision
(1) A Performance Review Panel must provide a written statement
of a decision on a performance review to the registered medical
practitioner concerned and to the Board, and must do so within
one month after the decision is made.
(2) The statement of the decision must include reasons for the
decision.
(3) The Board may provide a copy of the statement of decision to
such other persons as the Board thinks fit.
86Q Statement need not contain confidential information
(1) A Performance Review Panel is not required to include
confidential information in the statement of a decision. If a
statement would be false or misleading if it did not include the
confidential information, the Panel is not required to provide
the statement.
(2) When confidential information is not included in the statement
of a decision provided to a person or the statement is not
provided to a person because of subsection (1), the Panel must
give a confidential information notice to the person.
(3) A confidential information notice is a notice that indicates that
confidential information is not included or that the statement
will not be provided (as appropriate) and gives the reasons for
this. The notice must be in writing and must be given within
one month after the decision is made.
Page 28
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(4) This section does not affect the power of a court to make an
order for the discovery of documents or to require the giving of
evidence or the production of documents to a court, subject to
the provisions of this Act relating to protected reports.
Division 5 Miscellaneous
86R Monitoring by Board
(1) Following a performance review by a Performance Review
Panel, the Board is to:
(a) monitor compliance with any orders made by the Panel,
and
(b) from time to time evaluate the effectiveness of those
orders in improving the professional performance of the
registered medical practitioner concerned to a standard
that is commensurate with other practitioners of an
equivalent level of training or experience.
(2) The Board may take any action under this Act in respect of a
registered medical practitioner that it considers appropriate as
a result of the exercise of its functions under subsection (1).
86S Other provisions relating to performance assessments
Schedule 3A has effect.
[43] Part 6, heading
Omit "of disciplinary action".
[44] Section 88 Appeals on points of law
Omit section 88 (2). Insert instead:
(2) An appeal may be made:
(a) during an inquiry--within 28 days after the date of the
Committee's decision on the point of law which is the
subject of the appeal, or
(b) before the commencement of an inquiry but after the
date of giving notice of the inquiry.
Page 29
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
[45] Section 89
Omit the section. Insert instead:
89 Preliminary appeal on point of law
(1) An appeal with respect to a point of law may be made to the
Supreme Court:
(a) during an inquiry conducted by the Tribunal, or after a
complaint is referred to the Tribunal and before the
commencement of the inquiry by the Tribunal, or
(b) during an appeal conducted by the Tribunal against the
exercise by the Chairperson or Deputy Chairperson of
the Tribunal of any power under Division 4 of Part 4, or
after an appeal is made to the Tribunal against the
exercise of such a power and before the commencement
of the appeal before the Tribunal.
(2) An appeal under this section can be made only with the leave
of the Chairperson or a Deputy Chairperson of the Tribunal.
(3) If the inquiry or appeal conducted by the Tribunal has not been
completed when an appeal with respect to a point of law is
made to the Supreme Court, the inquiry or appeal before the
Tribunal is not to continue until the appeal to the Supreme
Court has been disposed of.
(4) The Tribunal must not make any decision that is inconsistent
with the Supreme Court's determination with respect to the
point of law when it recommences the inquiry or appeal.
[46] Section 90 Appeal against Tribunal's decisions and actions
Insert after section 90 (1):
(1A) A person who is a party to an appeal to the Tribunal against the
exercise by the Chairperson or a Deputy Chairperson of the
Tribunal of any power under Division 4 of Part 4 (including the
complainant in respect of the matter), may appeal to the
Supreme Court against:
(a) a decision of the Tribunal with respect to a point of
law, or
(b) the exercise of any power by the Tribunal under
section 87.
Page 30
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
[47] Section 90 (2)
Omit "The appeal". Insert instead "An appeal under this section".
[48] Section 92 Right of review
Insert "a Performance Review Panel," after "a Committee," in
section 92 (1).
[49] Section 93 The appropriate review body
Omit "Registrar" from section 93 (2).
Insert instead "Registrar of the Tribunal".
[50] Section 94A
Insert after section 94:
94A Inquiry into review application
(1) A review under this Division is a review to determine the
appropriateness, at the time of the review, of the order
concerned.
(2) The review is not to review the decision to make the order, or
any findings made in connection with the making of that
decision, unless significant fresh evidence is produced that was
not previously available for consideration, and the appropriate
review body is of the opinion that, in the circumstances of the
case, the decision to make the order, or any finding on which
the decision was based, should be reconsidered.
[51] Section 95
Omit the section. Insert instead:
95 Right of appeal
(1) A person may appeal to the Tribunal:
(a) against a suspension or extension of a suspension by the
Board under Part 4, or
(b) against conditions imposed by the Board on the
person's registration under Part 4 or Part 5 or any
alteration of those conditions by the Board, or
Page 31
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(c) against a refusal by the Board to alter or remove
conditions imposed by the Board under Part 4 in
accordance with a request made by the person under
section 69A, or
(d) against a refusal by the Board to alter or remove
conditions imposed on the person's registration, or to
terminate or shorten a suspension, imposed under Part
5 in accordance with a request made by the person
under section 81A.
(2) An appeal may not be made in respect of a request by a person
that is rejected by the Board because it was made during a
period in which the request was not permitted under section
69A or 81A.
(3) An appeal must be made within 28 days (or such longer period
as the Registrar may allow in a particular case) after notice of
the action taken by the Board, or the Board's refusal, is given
to the person.
[52] Part 6, Division 5
Insert after Division 4 of Part 6:
Division 5 Appeal against actions of Performance
Review Panel
98A Appeals against decisions of Panel
(1) A registered medical practitioner who is the subject of a
performance review by a Performance Review Panel may
appeal to the Tribunal against a decision of the Panel or any
order or direction made by the Panel under Part 5A.
(2) An appeal must be made within 28 days (or such longer period
as the Registrar may allow in a particular case) after notice of
the decision or the making of the order or direction is given to
the registered medical practitioner.
(3) The appeal must be lodged with the Registrar who is to refer it
to the Tribunal.
Page 32
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(4) The appeal is to be dealt with by way of rehearing and fresh
evidence, or evidence in addition to or in substitution for the
evidence received at the performance review, may be given.
(5) The Tribunal may, as it thinks appropriate:
(a) dismiss the appeal, or
(b) make any finding or exercise any power or combination
of powers that the Performance Review Panel could
have made or exercised.
(6) An appeal under this section does not affect any finding or
exercise of power with respect to which it has been made until
the Tribunal makes an order on the appeal.
98B Appeals on points of law
(1) A registered medical practitioner who is the subject of a
performance review by a Performance Review Panel may
appeal with respect to a point of law to the Chairperson of the
Tribunal or a Deputy Chairperson nominated by the
Chairperson.
(2) An appeal may be made:
(a) during a performance review--within 28 days after the
date of the Panel's decision on the point of law that is
the subject of the appeal, or
(b) before the commencement of a performance review by
a Panel but after the date the practitioner is informed of
the performance review.
(3) If a performance review has not been completed when an
appeal is made, the Performance Review Panel must not
continue with the performance review until the appeal has been
disposed of.
(4) The Performance Review Panel must not make any decision
that is inconsistent with the Chairperson's or Deputy
Chairperson's determination with respect to the point of law.
Page 33
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
[53] Section 99A
Insert after section 99:
99A Code of professional conduct
(1) The Board may establish a code of professional conduct setting
out guidelines that should be observed by registered medical
practitioners in the conduct of their professional practice. The
Board may from time to time amend or replace a code of
professional conduct.
(2) The Minister may require the Board to develop guidelines
relating to any conduct of registered medical practitioners that
the Minister considers should be the subject of a code of
professional conduct. For that purpose, the Minister may:
(a) direct the Board to establish a code of professional
conduct, or
(b) direct the Board to amend or replace a code of
professional conduct,
so that the code includes guidelines relating to that conduct.
(3) The Board is to comply with any such direction of the
Minister.
(4) The provisions of a code of professional conduct are a relevant
consideration in determining for the purposes of this Act what
constitutes proper and ethical conduct by a registered medical
practitioner.
(5) The procedure for the establishment of a code of professional
conduct is as follows:
(a) the Board is to prepare a proposed code in draft form
and is to prepare an impact assessment statement for the
proposed code in accordance with such requirements as
the Minister may from time to time determine,
(b) the draft code and impact assessment statement are to
be publicly exhibited for a period of at least 21 days,
(c) the Board is to seek public comment on the draft code
during the period of public exhibition and public
comment may be made during the period of public
Page 34
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
exhibition and for 21 days (or such longer period as the
Board may determine) after the end of that period,
(d) the Board is to submit the draft code to the Minister for
approval together with a report by the Board giving
details of public comment received during the period
allowed for public comment and the Board's response
to it,
(e) the Board is not to establish the draft code as a code of
professional conduct unless the Minister approves the
draft.
(6) The procedure for the amendment or replacement of a code of
professional conduct is the same as for the establishment of the
code unless the Minister otherwise directs in respect of a
particular amendment.
[54] Section 102 Fees cannot be sued for until 3 months after bill given
Omit the section.
[55] Section 104 Fees cannot be recovered for medical service provided by
unregistered person
Omit the section.
[56] Section 108 Prohibition against advertising cures for certain diseases
Omit the section.
[57] Section 109 Cancer treatments not to be given or offered by
unregistered persons
Omit the section.
Page 35
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
[58] Part 7, Division 3
Insert after Division 2 of Part 7:
Division 3 Other restrictions
112A Prohibition against accepting benefits for recommendations or
referrals
A person must not accept from a registered medical
practitioner, or the employer of a registered medical
practitioner, a benefit as inducement, consideration or reward
for the person:
(a) referring another person to the registered medical
practitioner, or
(b) recommending to another person that the other person
use any health service provided by the registered
medical practitioner or consult with the registered
medical practitioner in relation to a health matter.
Maximum penalty:
(a) in the case of a corporation, 200 penalty units for a first
offence or 400 penalty units for a second or subsequent
offence, or
(b) in any other case, 100 penalty units for a first offence or
200 penalty units for a second or subsequent offence.
112B Prohibition against offering or giving benefits for
recommendation or referrals
A person (the offeror) must not offer or give a registered
medical practitioner, or the employer of a registered medical
practitioner, a benefit as inducement, consideration or reward
for the registered medical practitioner:
(a) referring another person to the offeror, or
(b) recommending to another person that the other person
use any health service provided by the offeror or consult
with the offeror in relation to a health matter, or
Page 36
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(c) recommending to another person that the other person
use any health product supplied by the offeror.
Maximum penalty:
(a) in the case of a corporation, 200 penalty units for a first
offence or 400 penalty units for a second or subsequent
offence, or
(b) in any other case, 100 penalty units for a first offence or
200 penalty units for a second or subsequent offence.
112C Exception--advertising and prescribed exceptions
Sections 112A and 112B do not apply:
(a) to any recommendation that is made in a public
advertisement, or
(b) in any circumstances prescribed by the regulations as
not being a contravention of section 112A or 112B.
112D Interpretation
(1) In this Division:
benefit means money, property or anything else of value.
employer of a registered medical practitioner means a person
who employs a registered medical practitioner, and includes a
person who is taken to be the employer of a registered medical
practitioner under section 116B.
recommend a health product includes supply or prescribe the
health product.
supply includes sell.
Page 37
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(2) For avoidance of doubt, a reference in this Division to a referral
or recommendation that is given to a person includes a referral
or recommendation that is given to more than one person or to
persons of a particular class.
[59] Part 8A
Insert after Part 8:
Part 8A Overservicing and unprofessional conduct
116A Prohibition against directing or inciting overservicing or
misconduct
(1) A person (the employer) who employs a registered medical
practitioner must not direct or incite the practitioner to do
either of the following in the course of professional practice:
(a) engage in overservicing,
(b) engage in conduct that would constitute unsatisfactory
professional conduct or professional misconduct.
Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first
offence or 800 penalty units for a second or subsequent
offence, or
(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
(2) For the purposes of this section, any actions of an agent or
employee of the employer are taken to be actions of the
employer unless the employer establishes:
(a) that the employer had no knowledge of those
actions, and
(b) that the employer could not, by the exercise of due
diligence, have prevented those actions.
Page 38
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(3) If a person is convicted of or made the subject of a criminal
finding for an offence against this section in respect of the
actions of an agent or employee of the person, the agent or
employee is for the purposes of this Part taken to have been
convicted of or made the subject of a criminal finding for the
offence also.
(4) When a court convicts or makes a criminal finding against a
person for an offence against this section, the Clerk or other
proper officer of the court must notify the Director-General in
writing of the conviction or criminal finding.
(5) This section does not apply in respect of the employment of a
medical practitioner by any of the following:
(a) a public health organisation within the meaning of the
Health Services Act 1997,
(b) a private hospital or day procedure centre,
(c) a nursing home within the meaning of the Nursing
Homes Act 1988.
(6) In this section:
engage in overservicing means:
(a) provide a service in circumstances in which provision of
the service is unnecessary, not reasonably required or
excessive, or
(b) engage in conduct prescribed by the regulations as
constituting overservicing.
116B Extended concept of employment
(1) When a registered medical practitioner engages in the practice
of medicine in the course of the carrying on of a business, any
person who owns, manages, controls, conducts or operates that
business is for the purposes of this Part taken to employ the
practitioner (in addition to any person who actually employs the
practitioner).
(2) When a registered medical practitioner is employed by a
corporation, each of the following persons is for the purposes
of this Part also considered to be the employer of the
practitioner (in addition to the corporation):
Page 39
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(a) a person who is a director, secretary or executive officer
(as defined in the Corporations Law) of the corporation
or is concerned in the management of the
corporation, or
(b) any other employee of the corporation in accordance
with whose directions the practitioner is required or
expected to act.
116C Extended concept of carrying on business
(1) If a medical practitioner engaged in the practice of medicine is
provided, in the course of the carrying on of a business, with
services that facilitate that practice and the operator of the
business is entitled, in connection with the provision of those
services, to a share or interest in the profits or income arising
from the practice of medicine by the practitioner:
(a) that business is taken for the purposes of this Part to be
a business that provides the medical services that are
provided by the practitioner in the course of that
practice, and
(b) the practitioner is taken for the purposes of this Part to
be engaged in the practice of medicine in the course of
the carrying on of that business.
(2) Subsection (1) does not apply in respect of the practice of
medicine by a medical practitioner in such circumstances as
may be prescribed by the regulations as exempt from that
subsection.
(3) For the purposes of this Part, a person is considered to operate
a business if the person:
(a) owns, manages, controls, conducts or operates the
business, or
(b) has (within the meaning of section 116G) a
management role or substantial interest in a corporation
that operates the business or a substantial interest in a
trust under which the business is operated.
Page 40
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
116D Convicted offenders may be prohibited from carrying on
business
(1) The Director-General may by notice in writing given to a
person who has been convicted of or made the subject of a
criminal finding for an offence against this Part prohibit the
person from operating a business that provides medical
services.
(2) The prohibition may be expressed to be:
(a) for a fixed period (in which case the prohibition remains
in force only for that fixed period), or
(b) for an unlimited period subject to an entitlement to
apply after a specified time for the lifting of the
prohibition (in which case the prohibition remains in
force until it is lifted).
(3) A prohibition may not be imposed under this section unless the
Director-General is of the opinion that the person is not a fit
and proper person to operate a business that provides medical
services. The Director-General is entitled to presume, in the
absence of evidence to the contrary, that a person who has been
convicted of or made the subject of a criminal finding for an
offence against this Part on 2 or more occasions in any period
of 10 years is not a fit and proper person to operate such a
business.
(4) A prohibition under this section may be limited in its operation
in either or both of the following ways:
(a) it may be limited to specified premises, but only where
the person concerned operates a business that provides
medical services at those premises and at other
premises,
(b) it may be limited to premises within a specified area.
(5) If a prohibition under this section is subject to an entitlement to
apply after a specified time for the prohibition to be lifted, such
an application may be made to the Director-General after that
time. The Director-General may lift the prohibition or confirm
the prohibition and set a further period after which an
application for the prohibition to be lifted can be made under
this subsection.
Page 41
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
116E Offence of operating business while prohibited
(1) A person who in contravention of a prohibition under this Part
operates a business that provides medical services is guilty of
an offence.
Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first
offence or 800 penalty units for a second or subsequent
offence, or
(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
(2) If a continuing state of affairs is created by an offence against
this section the offender is liable to a maximum penalty of:
(a) 100 penalty units in the case of a corporation, or
(b) 50 penalty units in any other case,
in respect of each day on which that offence continues, in
addition to the penalty specified in subsection (1).
(3) If medical services are provided on premises on which a
business is carried on, it is to be presumed for the purposes of
this section, unless the contrary is established, that the business
provides those medical services.
116F Effect of appeal against conviction
A prohibition under this Part has no effect while an appeal is
pending against the conviction or criminal finding for the
offence on which the prohibition is based.
116G Business interests--effect of prohibition
(1) When a corporation or the trustee of a trust is the subject of a
prohibition under this Part in connection with the operation of
a business operated by the corporation or under the trust:
(a) each person who has a management role or substantial
interest in the corporation or a substantial interest in the
trust is for the purposes of this Part taken to be the
subject of that prohibition also, and
Page 42
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(b) each corporation in which a person referred to in
paragraph (a) has a management role or substantial
interest is for the purposes of this Part taken to be the
subject of that prohibition also (whether or not the
corporation was in existence at the time of the relevant
offence), and
(c) the trustee and any manager of a trust in which a person
referred to in paragraph (a) has a substantial interest is
for the purposes of this Part taken to be the subject of
that prohibition also (whether or not the trust was in
existence at the time of the relevant offence).
(2) A person is considered to have a management role or
substantial interest in a corporation if:
(a) the person is a director, secretary or executive officer (as
defined in the Corporations Law) of the corporation, or
(b) the person is entitled to more than 10% of the issued
share capital of the corporation (with the shares to
which a person is entitled including shares in which the
person or an associate of the person has a relevant
interest within the meaning of the Corporations Law).
(3) A person is considered to have a substantial interest in a trust
if the person (whether or not as the trustee of another trust) is
the beneficiary in respect of more than 10% of the value of the
interests in the trust.
(4) The regulations may create exceptions to this section.
116H Power to require information from convicted persons and
others
(1) When a corporation or the trustee of a trust is convicted of or
made the subject of a criminal finding for an offence against
this Part in connection with the operation of a business
operated by the corporation or under the trust the
Director-General may require certain persons to provide
specified information to the Director-General, as provided by
this section.
Page 43
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(2) The corporation or trustee may be required to provide
information that the Director-General may reasonably require
to ascertain the identity of each person who has a management
role or substantial interest in the corporation or a substantial
interest in the trust.
(3) A person whom the Director-General reasonably believes has
a management role or substantial interest in the corporation or
a substantial interest in the trust may be required to provide
information that the Director-General may reasonably require
to ascertain:
(a) the identity of each corporation in which that person has
a management role or substantial interest, or
(b) the identity of the trustee and any manager of a trust in
which that person has a substantial interest.
(4) A requirement to provide information is to be imposed by
direction in writing served on the person, corporation or trustee
concerned. The direction must specify a period of not less than
7 days as the period within which the required information
must be provided.
(5) A person who fails without reasonable excuse to comply with
a requirement under this section is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first
offence or 800 penalty units for a second or subsequent
offence, or
(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
(6) A person who in purported compliance with a requirement
under this section provides information that is false or
misleading in a material particular is guilty of an offence unless
the person satisfies the court that he or she did not know and
could not reasonably be expected to have known that the
information was false or misleading.
Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first
offence or 800 penalty units for a second or subsequent
offence, or
Page 44
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
116I Evidentiary certificate
(1) The Director-General may issue a certificate to the effect that
a person specified in the certificate is or was prohibited under
this Part from operating a business that provides medical
services during a period specified in the certificate.
(2) Such a certificate is evidence of the matters certified.
(3) A certificate purporting to be a certificate issued by the
Director-General under this section is presumed to have been
so issued unless the contrary is established.
116J Authorised persons--special provisions
(1) Despite section 118, an authorised person may, for the purpose
of ascertaining whether the provisions of this Part are being
complied with, exercise the powers conferred by Part 9 to enter
premises without the consent of the owner or occupier of the
premises, and without a search warrant.
(2) However, an authorised person is not entitled to enter a part of
premises used for residential purposes, except:
(a) with the consent of the occupier of that part of the
premises, or
(b) under the authority of a search warrant granted as
referred to in Part 9.
(3) Any information obtained by, or provided to, an authorised
person who enters premises for the purpose of ascertaining
whether the provisions of this Part are being complied with is
not inadmissible in proceedings merely because the
proceedings do not relate to a contravention of this Part.
(4) A reference in Part 9 to a function conferred or imposed on, or
exercised by, an authorised person under that Part is taken to
include a function conferred or imposed on, or exercised by, an
authorised person under this section.
Page 45
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
[60] Section 120 Powers of entry, search and seizure
Insert after section 120 (3) (e):
(e1) power to take such photographs, films and audio, video
and other recordings as the authorised person considers
necessary,
[61] Section 121 Offences
Omit "Maximum penalty: 5 penalty units" from section 121 (1).
Insert instead:
Maximum penalty:
(a) for an offence under paragraph (a) or (b)--50 penalty
units, or
(b) for an offence under paragraph (c) or (d)--20 penalty
units.
[62] Section 122
Omit the section. Insert instead:
122 Self-incrimination
(1) A person is not excused from answering any question asked by
an authorised person under this Part on the ground that the
answer might tend to incriminate the person.
(2) However, any information furnished by a natural person in
answering a question asked by an authorised person under this
Part is not admissible against the person in any criminal
proceedings (except proceedings for an offence against section
121 or 188) if:
(a) the person objected at the time of doing so on the
ground it might incriminate the person, or
(b) the person was not warned on that occasion that the
person may object to furnishing the information on the
ground it might incriminate the person.
Page 46
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(3) A person is not excused from producing any record to an
authorised person under this Part on the ground that the record
might tend to incriminate the person, and any such record is not
inadmissible in evidence against the person in criminal
proceedings on the ground that the record might incriminate the
person.
Note. Section 187 of the Evidence Act 1995 provides that the privilege
against self-incrimination does not apply to bodies corporate.
[63] Section 123 Offence of impersonating authorised person
Omit "2 penalty units". Insert instead "50 penalty units".
[64] Sections 127A-127C
Insert after section 127:
127A Practitioners to submit annual return
(1) A registered medical practitioner must, on or before the return
date in each year, furnish in writing to the Board in a form
approved by the Board a return for the return period specifying
the following information:
(a) details of any conviction of the practitioner for an
offence, in this State or elsewhere, during the return
period (together with details of any penalty imposed for
the offence),
(b) details of the making of a sex/violence criminal finding
against the practitioner for an offence, in this State or
elsewhere, during the return period (together with
details of any penalty imposed for the offence),
(c) details of the making of a criminal finding against the
practitioner for an offence committed in the course of
the practice or purported practice of medicine, in this
State or elsewhere, during the return period (together
with details of any penalty imposed for the offence),
(d) details of any criminal proceedings pending against the
practitioner at the end of the return period in this State
or elsewhere for a sex or violence offence alleged to
have been committed in the course of the practice or
purported practice of medicine,
Page 47
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(e) details of any significant illness (physical or mental)
from which the practitioner suffered at any time during
the return period and that may reasonably be thought
likely to detrimentally affect the practitioner's physical
or mental capacity to practise medicine,
(f) details of any suspension of, cancellation of, or
imposition of conditions on, the registration of the
practitioner as a medical practitioner in another
jurisdiction (either within Australia or elsewhere) during
the return period,
(g) a statement of whether the practitioner has been refused
registration as a medical practitioner in another
jurisdiction (either within Australia or elsewhere) during
the return period,
(h) details of any continuing professional education
undertaken by the practitioner during the return period,
(i) such other information as may be prescribed by the
regulations.
(2) The Board may require a return under this section to be verified
by statutory declaration.
(3) This section does not apply in respect of an offence if the
offence is an excluded offence.
(4) In this section:
return date means a date notified to registered medical
practitioners by the Board in writing at least 1 month in
advance.
return period means the period of 12 months ending 2 months
before the return date.
127B Practitioners to notify convictions, criminal findings and
charges
(1) A registered medical practitioner must notify the Board in
writing within 7 days after:
(a) the practitioner is convicted of an offence or made the
subject of a sex/violence criminal finding for an offence,
in this State or elsewhere, giving details of the
Page 48
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
conviction or criminal finding and any penalty imposed
for the offence, or
(b) criminal proceedings are commenced against the
practitioner in respect of a sex or violence offence
alleged to have been committed, in this State or
elsewhere, in the course of the practice or purported
practice or medicine.
(2) This section does not apply in respect of an offence if the
offence is an excluded offence.
127C Board may request further information from practitioner
(1) The Board may by notice to a registered medical practitioner
request the practitioner to provide to the Board, within a
reasonable period specified in the notice, further information
about any complaint or other matter concerning the practitioner
that has come to the attention of the Board.
(2) A registered medical practitioner must not, without reasonable
excuse, fail to comply with any such request.
[65] Section 130 Membership
Omit "18 members" from section 130 (1).
Insert instead "20 members".
[66] Section 130 (2) (d)
Omit "a registered medical practitioner". Insert instead "a person".
[67] Section 130 (2) (g)
Omit the paragraph. Insert instead:
(g) 6 are to be persons nominated by the Minister, not less
than 4 of whom are to be persons who, in the opinion of
the Minister, are conversant with the interests of patients
as consumers of medical services.
Page 49
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
[68] Section 135 Annual report
Insert at the end of section 135 (1) (b):
, and
(c) all matters referred to a Performance Review Panel for
performance review during that year, or referred to such
a Panel before that year but which (in the opinion of the
Board) had not, at the commencement of that year, been
finally disposed of, and
(d) the results of all performance reviews conducted by
Performance Review Panels that were finally disposed
of during that year.
[69] Section 135 (2)
Omit the subsection. Insert instead:
(2) This section does not require the identity of a complainant, a
person who notifies a professional performance matter to the
Board, any person about whom a complaint is made or who is
the subject of a performance review or any other person to be
disclosed in an annual report.
[70] Section 135A
Insert after section 135:
135A Information to be made available to public
(1) The Board is to ensure that the following information, in
relation to a registered medical practitioner, is made available
to the public on request:
(a) any conditions imposed on the registration of the
practitioner,
(b) any other order made in respect of the practitioner under
this Act.
(2) This section does not require the Board to disclose anything
that the Board considers relates solely or principally to the
physical or mental capacity of a person to practise medicine.
Page 50
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
[71] Section 143, heading
Omit the heading. Insert instead "Consultants".
[72] Section 150
Omit the section. Insert instead:
150 Payment of non-judicial Tribunal members
(1) A member of the Tribunal (other than the Chairperson or a
Deputy Chairperson) is while sitting on the Tribunal entitled to
be paid by the Board at a rate determined by the Board.
(2) The rate is to be determined by the Board having regard to the
rate paid to witnesses who give expert evidence in the
Supreme Court.
[73] Section 162 Representation before the Tribunal
Insert after section 162 (2):
(3) This section does not prevent the Tribunal from proceeding in
the absence of the registered medical practitioner concerned, as
long as the practitioner has been given notice of the inquiry or
appeal.
[74] Section 166 Statement need not contain confidential information
Omit section 166 (4). Insert instead:
(4) This section does not affect the power of a court to make an
order for the discovery of documents or to require the giving of
evidence or the production of documents to a court, subject to
the provisions of this Act relating to protected reports.
[75] Section 169 Membership of Committee
Omit section 169 (4). Insert instead:
(4) A member of a Committee, while sitting on the Committee, is
entitled to be paid by the Board at a rate determined by the
Board.
Page 51
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(5) The rate is to be determined by the Board having regard to the
rate paid to witnesses who give expert evidence in the Supreme
Court.
[76] Section 174
Omit the section. Insert instead:
174 Chairperson may exercise certain powers of Committee
(1) The chairperson of a Committee may exercise the following
powers of the Committee:
(a) power to terminate an inquiry,
(b) power to hand down a decision of the Committee on an
inquiry.
(2) A power of the Committee exercised by the chairperson of the
Committee under this Act is taken to have been exercised by
the Committee.
[77] Section 177 Representation at inquiry
Insert after section 177 (3):
(4) This section does not prevent a Committee from proceeding in
the absence of the practitioner concerned or the complainant,
as long as they have been given notice of the inquiry.
[78] Section 181 Statement need not contain confidential information
Omit section 181 (4). Insert instead:
(4) This section does not affect the power of a court to make an
order for the discovery of documents or to require the giving of
evidence or the production of documents to a court, subject to
the provisions of this Act relating to protected reports.
[79] Section 182 Impaired Registrants Panel
Omit "A Panel" from section 182.
Insert instead "An Impaired Registrants Panel".
Page 52
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
[80] Sections 183 and 184
Omit "a Panel" wherever occurring in sections 183 (2) and 184.
Insert instead "an Impaired Registrants Panel".
[81] Section 183 (3) and (4)
Omit section 183 (3). Insert instead:
(3) A member of an Impaired Registrants Panel, while sitting on
the Panel, is entitled to be paid by the Board at a rate
determined by the Board.
(4) The rate is to be determined by the Board having regard to the
rate paid to witnesses who give expert evidence in the Supreme
Court.
[82] Part 13A
Insert after Part 13:
Part 13A Performance Review Panels and
Assessors
184A Performance Review Panels
(1) There are to be Performance Review Panels for the purposes of
this Act.
(2) A Panel has and may exercise the jurisdiction and functions
conferred or imposed on it by or under this or any other Act.
184B Constitution of Panel
(1) When the Board decides to require a Performance Review
Panel to conduct a performance review of the professional
performance of a registered medical practitioner, the Board is
to appoint 3 persons to sit as the Panel for the purpose of that
performance review.
(2) Of those 3 persons:
(a) 2 are to be registered medical practitioners, and
(b) one is to be a lay person (that is, a person who is not a
registered medical practitioner).
Page 53
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(3) One of the members of the Panel is to be appointed by the
Board as chairperson of the Panel.
(4) A person may be appointed to sit on a Panel whether or not the
person is a member of the Board, but not if the person has
previously dealt with the particular matter before the Panel in
his or her capacity as a member of the Board.
(5) A member of a Panel, while sitting on the Panel, is entitled to
be paid by the Board at a rate determined by the Board.
(6) The rate is to be determined by the Board having regard to the
rate paid to witnesses who give expert evidence in the
Supreme Court.
184C Decisions of Panel
A decision supported by a majority of members of a
Performance Review Panel is the decision of the Panel.
184D Certain powers may be exercised by chairperson
(1) The chairperson of a Performance Review Panel may exercise
the following functions of a Panel:
(a) power to terminate a performance review,
(b) power to hand down a decision of the Panel on a
performance review.
(2) Any power of a Performance Review Panel that is exercised by
the chairperson of the Panel under this Act is taken to have
been exercised by the Panel.
184E Assessors
(1) The Board may appoint suitably qualified persons to be
assessors for the purposes of this Act.
(2) Assessors are to be appointed on such terms and conditions as
the Board thinks fit.
(3) An assessor has such functions as are conferred on an assessor
by this Act and such other functions, in connection with Part
5A, as may be conferred on an assessor by the Board.
Page 54
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
[83] Section 186 Student registration
Omit section 186 (1). Insert instead:
(1) A person is not entitled:
(a) to undertake a course of medical study at a Medical
School in the State accredited by the Australian Medical
Council, or
(b) to undertake a clinical placement in a public hospital in
the State under the auspices of an educational
institution accredited by the Australian Medical Council,
unless the person is registered with the Board as a medical
student.
[84] Section 186 (2)
Insert "or clinical placement" after "course of study".
[85] Section 187 Offences by corporations
Omit section 187 (1). Insert instead:
(1) If a corporation commits an offence against this Act or the
regulations under this Act, each person who is a director of the
corporation, or who is concerned in the management of the
corporation, is taken to have committed the same offence
unless he or she proves that:
(a) the offence was committed without his or her
knowledge, and
(b) he or she exercised all such due diligence to prevent the
commission of that offence as he or she ought to have
exercised, having regard to the nature of his or her
functions in that capacity and to all the circumstances.
[86] Section 188 Penalties for false statements etc
Insert ", a Performance Review Panel" after "a Committee" wherever
occurring.
Page 55
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
[87] Section 189 Protection from liability
Omit section 189 (c). Insert instead:
(c) an Impaired Registrants Panel, or
(c1) a Performance Review Panel, or
(c2) an assessor, or
(c3) an authorised person, or
[88] Section 189 (f)
Omit "a Panel" wherever occurring.
Insert instead "an Impaired Registrants Panel, a Performance Review
Panel".
[89] Section 190 Confidentiality
Omit section 190 (b). Insert instead:
(b) in any other case--with the consent of the person to
whom the information relates or from whom the
information was obtained, or
[90] Sections 190A and 190B
Insert after section 190:
190A Medical reports
(1) This section applies to a report made in connection with a
medical examination of a person (a medical report), being a
report that is obtained for the Board pursuant to:
(a) a requirement made by the Board under section 54 or
78A, or clause 17 of Schedule 1, or
(b) a condition of registration or an order imposed by a
person or body exercising functions under this Act.
(2) Such a medical report may not be admitted or used in any civil
proceedings before a court except with the consent of:
(a) the person giving the report, and
(b) the person who is the subject of the report.
Page 56
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(3) A person may not be compelled to produce such a medical
report or to give evidence in relation to the report or its
contents in any such civil proceedings.
(4) Such a medical report is a protected report for the purposes of
this Act.
(5) In this section:
court includes any tribunal, authority or person having power
to require the production of documents or the answering of
questions, but does not include the Tribunal, a Committee or a
Performance Review Panel or the Supreme Court (in respect of
appeal proceedings under this Act).
report includes a copy, reproduction and duplicate of the report
or any part of the report, copy, reproduction or duplicate.
190B Confidentiality of protected reports
(1) A person must not directly or indirectly make a record of or
disclose to any person any information contained in a protected
report which has come to the person's notice in the exercise of
the person's functions under this Act, except for the purposes
of exercising functions under this Act.
Maximum penalty: 50 penalty units.
(2) This section does not prevent the disclosure of a protected
report to the Commission.
Note. Protected reports are medical reports (as referred to in
section 190A), reports by an Impaired Registrants Panel to the Board and
reports by assessors.
[91] Section 191 Notification of certain matters to other States
Insert after section 191 (b):
(b1) any order made under this Act by a Performance
Review Panel, or any report made by such a Panel to the
Board in respect of a performance review,
[92] Section 191 (c)
Omit "a Panel". Insert instead "an Impaired Registrants Panel".
Page 57
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
[93] Sections 191A and 191B
Insert after section 191:
191A Board is to consult with affected third parties
(1) If an order or direction of the Tribunal, a Committee or a
Performance Review Panel with respect to a registered medical
practitioner requires the Board to approve any matter and the
terms of the approval will, in the opinion of the Board, impose
an appreciable burden on an identifiable third party in
connection with the practitioner's practice, the Board:
(a) is to give the third party an opportunity to make
submissions to the Board with respect to the matter, and
(b) is to take any such submission into account before
giving any approval, and
(c) is to give notice of the terms of the approval to the third
party affected.
(2) An example of an approval that may impose an appreciable
burden on an identifiable third party in connection with a
registered medical practitioner's practice is an approval of an
arrangement under which an identified third party is required
to supervise the practitioner's practice.
(3) In this section:
third party means a person other than the registered medical
practitioner to whom an order or direction relates, but does not
include a person or body exercising functions conferred by this
Act or the Health Care Complaints Act 1993.
191B Notification of orders to practitioner's employer and others
(1) The Board is required to give notice of any order made in
respect of a registered medical practitioner under this Act, or
the imposition of conditions on the registration of a registered
medical practitioner, to the following persons:
(a) the employer (if any) of the practitioner concerned,
(b) the chief executive officer (however described) of any
public health organisation in respect of which the
practitioner concerned is a visiting practitioner or is
otherwise accredited,
Page 58
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(c) the chief executive officer (however described) of any
private hospital or day procedure centre in respect of
which the practitioner concerned is accredited,
(d) the chief executive officer (however described) of any
nursing home (within the meaning of the Nursing
Homes Act 1988) in respect of which the practitioner
concerned is accredited.
(2) The notice is to be given within 7 days after:
(a) in the case of an order made or conditions imposed by
the Board--the date the order is made or the conditions
are imposed, or
(b) in any other case--the date the Board is given a copy of
the decision of the body that made the order or imposed
the conditions.
(3) The notice is to include such information as the Board
considers appropriate.
[94] Sections 192A and 192B
Insert after section 192:
192A Evidentiary certificates and evidence of entry in Register
(1) A certificate purporting to have been signed by the Registrar to
the effect that:
(a) a person specified in the certificate was or was not a
registered medical practitioner at a time or during a
period so specified, or
(b) the name of a person specified in the certificate was
removed from the Register at a time so specified, or
(c) a person specified in the certificate was suspended from
practising medicine from a time so specified and for a
period so specified, or
(d) a condition, particulars of which are set out in the
certificate, was, at a time or during a period so specified:
(i) imposed on the registration of a person so
specified, or
(ii) revoked or not in force,
Page 59
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
is, without proof of the signature of the person by whom the
certificate purports to have been signed, admissible in any
proceedings and is prima facie evidence of the matter certified
in it.
(2) An entry in the Register is admissible in any proceedings and
is prima facie evidence of the matter stated in it.
(3) A document purporting to be a copy of an entry in the Register,
purportedly signed by the Registrar, is admissible in any
proceedings and is prima facie evidence of the matter stated
in it.
192B Application of Criminal Records Act
For the purposes of the application of this Act in respect of a
criminal finding, the Criminal Records Act 1991 applies in
respect of a criminal finding as if section 8 (2) and (4) of that
Act were omitted.
Note. Section 8 (2) and (4) of the Criminal Records Act 1991 make
special provision for when criminal findings become "spent" under that Act.
The omission of those subsections will mean that in determining when a
criminal finding becomes spent for the purposes of this Act, criminal
findings will be treated as ordinary convictions and the relevant crime-free
period will be as provided by section 9 of that Act.
[95] Section 194 Regulations
Omit "5 penalty units" from section 194 (4).
Insert instead "10 penalty units".
[96] Schedule 1 Registration procedure
Insert after clause 3:
3A Disclosure of convictions, criminal findings and charges
(1) The Board may require an applicant for registration to disclose:
(a) details of any offence for which the applicant has been
convicted or made the subject of a criminal finding, in
this State or elsewhere (together with details of any
penalty imposed for the offence), other than an excluded
offence, and
Page 60
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(b) details of any criminal proceedings pending against the
applicant in this State or elsewhere for a sex or violence
offence.
(2) The Board may require a disclosure for the purposes of this
clause to be in the form of a statutory declaration.
(3) Any power of the Board to require disclosure of a conviction
or criminal finding for an offence or to have regard to the
conviction of or the making of a criminal finding in respect of
an applicant for registration for an offence extends to a
conviction or criminal finding for an offence committed before
the commencement of this clause.
Note. The Criminal Records Act 1991 makes provision for convictions to
become "spent" after a certain crime-free period. If a conviction of a person
is spent, the person is not required to disclose the conviction under this
section (see section 12 of that Act).
[97] Schedule 1, clause 9
Omit the clause. Insert instead:
9 Inquiries by Board
(1) The Board may hold an inquiry, in such cases as it considers
appropriate, into the eligibility of an applicant to be registered
as a medical practitioner.
(2) An inquiry may include an inquiry into the applicant's
competence to practise medicine.
(3) In this clause, a reference to the eligibility of an applicant to be
registered as a medical practitioner includes the following:
(a) the eligibility of an applicant who has been granted
registration of a kind referred to in section 5
(conditional registration for interns) or section 9
(non-practising registration) to be granted registration of
a kind referred to in section 4 (general registration),
(b) the eligibility of an applicant whose name has been
removed from the Register, and whose application for
registration is not required to be rejected under section
14, to be re-registered as a medical practitioner.
Page 61
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
[98] Schedule 1, clause 13
Insert at the end of clause 13:
(2) This clause does not prevent an inquiry from proceeding in the
absence of the person in relation to whom the inquiry is being
held, as long as the person has been given notice of the inquiry
under clause 11.
[99] Schedule 1, clause 13A
Insert after clause 13:
13A Commission to be notified of inquiry
(1) The Commission is to be given at least 7 days notice of an
inquiry and may, if the Board consents, appear at the inquiry.
(2) The Commission may appoint an officer of the Commission to
appear at the inquiry on behalf of the Commission.
(3) This clause does not apply if the inquiry relates solely or
principally to the physical or mental capacity of an applicant to
practise medicine.
[100] Schedule 1, clause 15
Omit the clause. Insert instead:
15 Constitution of Board for inquiry
(1) If the Board decides to hold an inquiry, the Board is to
appoint 3 persons to conduct the inquiry.
(2) The persons appointed to conduct the inquiry need not be
members of the Board.
(3) The persons appointed to conduct an inquiry are taken to
constitute the Board for the purposes of the inquiry and,
accordingly, may exercise the functions of the Board in relation
to the inquiry.
(4) The persons so appointed are taken to be members of the Board
for the purposes of this Act and may exercise the functions of
such a member in relation to an inquiry.
Page 62
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
[101] Schedule 1, Part 3A, heading
Insert "Part 3A Decisions of Board" before clause 18.
[102] Schedule 1, clause 18
Omit the clause. Insert instead:
18 Decisions of Board in an inquiry
A decision supported by at least 2 of the 3 persons appointed
to conduct an inquiry under Part 3, on the inquiry or any
question arising during the inquiry, is a decision of the Board.
[103] Schedule 1, clause 19
Insert "held under Part 3" after "inquiry" in clause 19 (1).
[104] Schedule 1, clause 19 (2)
Omit the subclause. Insert instead:
(2) The statement of a decision must:
(a) give the reasons for the decision, and
(b) include information about any appeal rights the person
has under section 17.
[105] Schedule 1, clause 19A
Insert after clause 19:
19A Details of decision to refuse application to be supplied to
applicant
(1) If the Board refuses or rejects an application for registration,
without holding an inquiry under Part 3, the Board must
provide the applicant with a written statement of the decision
of the Board and must do so within one month after the
decision is made.
(2) The statement of a decision must:
(a) give the reasons for the decision, and
(b) include information about any appeal rights the person
has under section 17.
Page 63
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(3) The Board may also provide a statement of a decision to such
other persons as the Board thinks fit.
[106] Schedule 1, clause 20
Omit "the statement of a decision" from clause 20 (1).
Insert instead "a statement of a decision".
[107] Schedule 1, clauses 21 and 22
Omit the clauses. Insert instead:
21 Board is to keep Register
(1) The Board is to keep a register, called the Register of Medical
Practitioners for New South Wales.
(2) The Register is to be kept in such form as the Board
determines.
(3) The Register must be available for inspection by any person:
(a) in person at the office of the Board at all reasonable
times, and
(b) by such other means (such as Internet access) and at
such other times as the Board determines.
(4) The Board may charge a fee for an inspection of the Register,
not exceeding such amount as may be prescribed by the
regulations.
(5) The Board may carry out searches of the Register on a person's
behalf and may charge such fee as it determines for the search.
22 Information to be recorded in Register
(1) The Board is to record in the Register such particulars of the
registration of each registered medical practitioner as the Board
considers appropriate, subject to the regulations. The
regulations may make provision for or with respect to the
information to be recorded in the Register.
(2) The Board may, on application by a registered medical
practitioner and payment of the prescribed fee, record in the
Register any particulars in addition to those required to be
recorded in the Register, as the Board approves.
Page 64
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(3) The Board must make such other recordings in the Register as
may be necessary for the purpose of maintaining the Register
as an accurate record of the particulars relating to each
registered medical practitioner.
[108] Schedule 2 Proceedings before a Committee or the Tribunal
Insert after clause 3:
3A Submissions by third parties
(1) If as a result of an inquiry or appeal a Committee or the
Tribunal proposes to give a direction or make an order under
section 61 (General powers to caution, reprimand, counsel etc)
and the Committee or the Tribunal is of the opinion that the
direction or order will impose an appreciable burden on an
identifiable third party, in connection with a registered medical
practitioner's practice, the Committee or the Tribunal:
(a) is to give the third party an opportunity to make
submissions with respect to the direction or order, and
(b) is to take any such submission into account before
giving the direction or making the order.
(2) If a Committee or the Tribunal decides to give a direction or
make an order that will, in the opinion of the Committee or the
Tribunal, impose an appreciable burden on an identifiable third
party in connection with a registered medical practitioner's
practice, the Committee or the Tribunal is to give the third
party notice of the direction or order as soon as practicable after
it is given or made.
(3) An example of a direction or order that may impose an
appreciable burden on an identifiable third party in connection
with a registered medical practitioner's practice is a direction or
order that has the effect of requiring the medical practice of a
registered medical practitioner to be supervised by an identified
third party.
(4) This clause does not apply in respect of any power exercised by
a Committee or the Tribunal under section 164 or 178.
Page 65
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(5) In this clause:
third party means a person other than the registered medical
practitioner to whom an inquiry or appeal relates, but does not
include a person or body exercising functions conferred by this
Act or the Health Care Complaints Act 1993.
[109] Schedule 2, clause 4 (c)
Insert "or the making of a criminal finding in respect of" after
"conviction of".
[110] Schedule 2, clause 11
Omit the clause.
[111] Schedule 2, clause 12 (1) (c)
Insert at the end of clause 12 (1) (b):
, or
(c) the complaint before the Committee or the Tribunal is
withdrawn.
[112] Schedule 2, clause 12 (3)
Insert after clause 12 (2):
(3) The power conferred on a Committee or the Tribunal by this
clause may be exercised by the chairperson of the Committee
or the Tribunal, and in such a case is taken to have been
exercised by the Committee or the Tribunal.
[113] Schedule 3, Provisions relating to the members and procedure of the
Board
Omit "10 members" from clause 10. Insert instead "11 members".
Page 66
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
[114] Schedule 3A
Insert after Schedule 3:
Schedule 3A Provisions relating to performance
assessments
(Section 86S)
Part 1 Provisions relating to assessors
1 General
(1) An assessor may exercise the powers conferred by this Part
only for the purpose of conducting an assessment of the
professional performance of a registered medical practitioner
when required by the Board or a Performance Review Panel.
(2) An assessment is to be conducted in accordance with any
directions given by the Board or a Performance Review Panel.
(3) If the Board or a Panel instructs an assessor to limit his or her
assessment to a particular aspect or aspects of a registered
medical practitioner's professional performance, the assessment
is to be limited to that aspect or those aspects.
(4) However, an assessor may assess other aspects of the
professional performance of a registered medical practitioner if
during the course of an assessment the assessor forms the
opinion that other aspects of the professional performance of
the practitioner may be unsatisfactory and should be assessed.
2 Entry to premises
(1) An assessor may at any reasonable time enter and inspect:
(a) any premises that the assessor reasonably believes are
used by a registered medical practitioner in connection
with his or her professional practice, and
(b) any premises in or on which the assessor reasonably
believes records relating to the carrying out of a
professional practice by a registered medical practitioner
are kept.
Page 67
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(2) An assessor may enter premises only:
(a) with the consent of the occupier and the medical
practitioner to whom the assessment relates, or
(b) after having given the occupier of the premises, and the
medical practitioner to whom the assessment relates, at
least 14 days notice of the assessor's intention to enter
the premises.
(3) On premises entered on the basis that they are used by a
registered medical practitioner in connection with his or her
professional practice, an assessor has the following powers:
(a) power to examine any equipment that the assessor
reasonably believes is, has or may be used in connection
with the professional practice,
(b) power to take photographs of the premises, or of any
equipment on the premises (being equipment that the
assessor reasonably believes is, has or may be used in
connection with the professional practice),
(c) power to require the production of and inspect any
stocks of any substance or drugs in or about those
premises,
(d) power to require any person on those premises to
produce any records in the possession or under the
control of that person relating to the carrying out of that
professional practice,
(e) power to take copies of, or extracts or notes from, any
such records,
(f) power to ask questions of any person on those premises,
(g) power to require the owner or occupier of those
premises to provide the assessor with such assistance
and facilities as is or are reasonably necessary to enable
the assessor to exercise the functions of an assessor
under this clause.
Page 68
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(4) On premises entered on the basis that records relating to the
carrying out of professional practice by a registered medical
practitioner are kept there, an assessor has the following
powers:
(a) power to require any person on those premises to
produce any records in the possession or under the
control of that person and relating to the carrying out of
that professional practice,
(b) power to take copies of, or extracts or notes from, any
such records.
(5) This clause does not authorise an assessor to enter any part of
premises that is being used for residential purposes except with
the consent of the occupier.
(6) This clause does not authorise an assessor to require a person
to answer any question, and a failure or refusal by a person
answer any question does not constitute an offence against
clause 5.
(7) However, a failure or refusal by a registered medical
practitioner, without reasonable excuse, to answer any question
asked by an assessor is evidence that the professional
performance of the registered medical practitioner is
unsatisfactory.
3 Power to conduct assessment exercise
(1) An assessor may, by notice given to a registered medical
practitioner who is the subject of an assessment, require the
registered medical practitioner to take part in an assessment
exercise.
(2) An assessment exercise is an exercise during which the
assessor observes and assesses the professional performance of
the registered medical practitioner.
(3) If practicable, an assessment exercise is to be based on a
simulated clinical situation (for example, a mock consultation).
(4) However, an assessment exercise may be based on an actual
clinical situation (that is, an actual consultation or examination
or the giving or performance of any other medical treatment, by
a registered medical practitioner) if a simulated exercise is not
practicable in the circumstances.
Page 69
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(5) The time and place for, and the length of, the assessment
exercise must be reasonable.
(6) A failure or refusal by a registered medical practitioner to take
part in, or to continue with, an assessment exercise does not
constitute an offence against clause 5.
(7) However, a failure or refusal by a registered medical
practitioner, without reasonable excuse, to take part in or to
continue with an assessment exercise is evidence that the
professional performance of the registered medical practitioner
is unsatisfactory.
(8) This clause does not authorise an assessor to be present during
any medical examination of a person, or at the giving or
performance of any other medical service or treatment by a
registered medical practitioner in respect of a person, without
the consent of the person.
4 Answers to questions
(1) Any information furnished by a person in answering a question
asked by an assessor for the purposes of an assessment under
Part 5A of this Act is not admissible against the person in any
civil proceedings before a court except with the consent of the
person.
(2) Subclause (1) does not extend to any information furnished by
a person that is a record required to be kept by or under this or
any other Act.
(3) In this clause:
court includes any tribunal, authority or person having power
to require the production of documents or the answering of
questions, but does not include the Tribunal, a Committee or a
Performance Review Panel or the Supreme Court (in respect of
appeal proceedings under this Act).
5 Offences
A person must not:
(a) prevent an assessor from exercising any function
conferred or imposed on the assessor under this Part, or
(b) hinder or obstruct an assessor in the exercise of any
such function, or
Page 70
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(c) furnish an assessor with information knowing it to be
false or misleading in a material particular.
Maximum penalty:
(a) for an offence under paragraph (a) or (b)--50 penalty
units, or
(b) for an offence under paragraph (c)--20 penalty units.
6 Offence of impersonating assessor
A person must not impersonate or falsely represent that the
person is an assessor.
Maximum penalty: 50 penalty units.
7 Certificates of authority
(1) An assessor is to be provided with a certificate of authority in
a form approved by the Board.
(2) An assessor must, on exercising in any place any function of
the assessor under this Part, produce the assessor's certificate
of authority to any person apparently in charge of the place
who requests its production.
8 Confidentiality of assessor's report
(1) A report by an assessor to the Board or a Performance Review
Panel about his or her assessment of the professional
performance of a registered medical practitioner may not be
admitted or used in any civil proceedings before a court except
with the consent of:
(a) the person giving the report, and
(b) the registered medical practitioner concerned.
(2) A person may not be compelled to produce the report or to give
evidence in relation to the report or its contents in any such
civil proceedings.
(3) A report referred to in this clause is a protected report for the
purposes of this Act.
Page 71
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(4) In this clause:
court includes any tribunal, authority or person having power
to require the production of documents or the answering of
questions, but does not include the Tribunal, a Committee or a
Performance Review Panel or the Supreme Court (in respect of
appeal proceedings under this Act).
report includes a copy, reproduction and duplicate of the report
or any part of the report, copy, reproduction or duplicate.
Part 2 Provisions relating to performance reviews
9 Conduct of performance review
(1) A performance review is to be conducted in the manner
determined by the Performance Review Panel.
(2) The performance review is to be conducted:
(a) with as little formality and technicality, and as much
expedition, as the requirements of this Act and the
proper consideration of the matter permit, and
(b) in the absence of the public.
(3) In conducting a performance review a Performance Review
Panel is not bound by the rules of evidence but may inform
itself on any matter in any way it thinks appropriate.
10 Power to summon witnesses and take evidence
(1) The chairperson of a Performance Review Panel may summon
a person to appear at a performance review and to produce
such documents (if any) as are referred to in the summons.
(2) The chairperson of the Panel may require a person appearing at
the performance review to produce a document.
(3) A person served with a summons to appear at a performance
review to give evidence must not, without reasonable excuse:
(a) fail to attend as required by the summons, or
Page 72
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(b) fail to attend from day to day unless excused, or
released from further attendance, by a member of the
Panel.
Maximum penalty: 20 penalty units.
(4) A person appearing at a performance review to give evidence
must not, without reasonable excuse:
(a) fail to answer a question that the person is required to
answer by the chairperson of the Panel, or
(b) fail to produce a document that the person is required to
produce by this clause.
Maximum penalty: 20 penalty units.
11 Power to obtain documents
(1) A member of a Performance Review Panel may, by notice in
writing served on a person, require the person:
(a) to attend, at a time and place specified in the notice,
before a person specified in the notice, being a member
of the Performance Review Panel or a person authorised
by the Panel in that behalf, and
(b) to produce, at that time and place, to the person so
specified a document specified in the notice.
(2) A person who fails, without reasonable excuse, to comply with
a notice served on the person under this clause is guilty of an
offence.
Maximum penalty: 20 penalty units.
12 Practitioner entitled to make representations
(1) A registered medical practitioner who is the subject of a
performance review is entitled to attend at the performance
review and make oral or written representations to the
Performance Review Panel with respect to the subject matter
of the performance review.
(2) The practitioner is entitled to be accompanied by a legal
practitioner or other adviser, but is not entitled to be
represented by the legal practitioner or other adviser.
Page 73
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
(3) This clause does not prevent a Performance Review Panel from
conducting a performance review in the absence of the
registered medical practitioner, as long as the practitioner has
been informed of the performance review.
13 Panel may obtain reports
(1) A Performance Review Panel may, for the purpose of
conducting a performance review, obtain a report from a person
who, in the opinion of the Panel, is sufficiently qualified or
experienced to give expert advice on the matter that is the
subject of the performance review.
(2) Such a report may not be admitted or used in any civil
proceedings before a court except with the consent of:
(a) the person giving the report, and
(b) the registered medical practitioner concerned.
(3) A person may not be compelled to produce the report or to
give evidence in relation to the report or its contents in any
such civil proceedings.
(4) A report referred to in this clause is a protected report for the
purposes of this Act.
(5) In this clause:
court includes any tribunal, authority or person having power
to require the production of documents or the answering of
questions, but does not include the Tribunal, a Committee or a
Performance Review Panel or the Supreme Court (in respect of
appeal proceedings under this Act).
report includes a copy, reproduction and duplicate of the report
or any part of the report, copy, reproduction or duplicate.
14 Assessors may assist Panel
(1) The Board may appoint one or more assessors to assist a
Performance Review Panel with a performance review.
(2) The Panel may direct such an assessor:
(a) to conduct an assessment of the professional
performance of a registered medical practitioner, and
report on that assessment to the Panel, and
Page 74
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
(b) to provide such other assistance in connection with the
performance review as the Panel directs.
15 Release of information
(1) The chairperson of a Performance Review Panel may, if the
chairperson thinks it appropriate in the particular circumstances
of the case (and whether or not on the request of the
practitioner concerned or any other person):
(a) direct that the name of any witness is not to be disclosed
in the performance review, or
(b) direct that all or any of the following matters are not to
be published:
(i) the name and address of any witness,
(ii) the name and address of a registered medical
practitioner,
(iii) any specified evidence,
(iv) the subject matter of the performance review.
(2) A direction may be amended or revoked at any time by the
chairperson of the Panel.
(3) A direction may be given before or during a performance
review, but must not be given before the performance review
unless notice is given of the time and place appointed by the
chairperson of the Panel for consideration of the matter to the
following persons:
(a) a person who requested the direction,
(b) the practitioner concerned,
(c) such other persons as the person presiding thinks fit.
(4) A person who contravenes a direction given under this clause
is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation, 150 penalty units, or
(b) in any other case, 20 penalty units.
Page 75
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
16 Panel to consider impact of order or direction on third parties
(1) If as a result of a performance review a Performance Review
Panel proposes to give a direction or make an order that in the
opinion of the Panel will impose an appreciable burden on an
identifiable third party in connection with a registered medical
practitioner's practice, the Panel:
(a) is to give the third party an opportunity to make
submissions to the Panel with respect to the direction or
order, and
(b) is to take any such submission into account before
giving the direction or making the order.
(2) If a Performance Review Panel decides to give a direction or
make an order that will, in the opinion of the Panel, impose an
appreciable burden on an identifiable third party in connection
with a registered medical practitioner's practice, the Panel is to
give the third party notice of the direction or order as soon as
practicable after it is given or made.
(3) An example of a direction or order that may impose an
appreciable burden on an identifiable third party in connection
with a registered medical practitioner's practice is a direction or
order that has the effect of requiring the medical practice of a
registered medical practitioner to be supervised by an identified
third party.
(4) In this clause:
third party means a health service provider other than the
registered medical practitioner to whom an inquiry relates, but
does not include a person or body exercising functions
conferred by this Act or the Health Care Complaints Act 1993.
[115] Schedule 4 Regulations
Insert "or a Performance Review Panel" after "Impaired Registrants Panel"
in clause 3.
[116] Schedule 5 Savings and transitional provisions
Insert at the end of clause 2 (1):
Medical Practice Amendment Act 2000
Page 76
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
[117] Schedule 5, Part 3
Omit the Part.
[118] Schedule 5, Part 5
Insert after Part 4 of Schedule 5:
Part 5 Provisions consequent on Medical Practice
Amendment Act 2000
22 Review of performance assessment program
(1) The Board is to conduct a review for the purpose of:
(a) evaluating the effectiveness of the performance
assessment provisions, and
(b) evaluating the effectiveness of the processes adopted by
the Board in administering or implementing the
performance assessment provisions.
(2) The review is to be undertaken as soon as possible after the
period of 3 years from the date of commencement of Part 5A
of this Act.
(3) A report of the outcome of the review is to be given to the
Minister within 6 months after the end of the period of 3 years.
(4) The performance assessment provisions of this Act are the
provisions of Part 5A, Part 13A and Schedule 3A.
23 Registration
(1) The amendments made to Part 2 and Schedule 1 by the
Medical Practice Amendment Act 2000 extend to applications
for registration under the Act made to the Board, but not
determined, before the commencement of those amendments,
but the amendments to Schedule 1 do not apply in respect of
any inquiry commenced before the commencement of those
amendments.
(2) Any such inquiry is to be disposed of as if those amendments
had not been made.
Page 77
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
24 Complaints
(1) The amendments made to sections 50 and 51 by the Medical
Practice Amendment Act 2000 do not apply in respect of any
complaint made to the Board or the Commission before the
commencement of those amendments that has not been
disposed of by that commencement.
(2) Any such complaint is to be dealt with as if those amendments
had not been made.
25 Powers of Board to protect public
(1) Division 5 of Part 4, as in force immediately before the
amendments made by the Medical Practice Amendment Act
2000, continues to apply in respect of any order made or
conditions imposed by the Board under section 66 before the
commencement of those amendments, as if those amendments
had not been made.
(2) Accordingly, sections 67 and 69 (as in force immediately
before the amendments made to those sections by the Medical
Practice Amendment Act 2000) continue to apply with respect
to the duration or suspension of those conditions.
26 Saving of regulation
The amendment made to section 71 by the Medical Practice
Amendment Act 2000 does not affect any regulation made
under that section before the commencement of that
amendment, and any such regulation continues in force despite
the amendment (but can be repealed or amended).
27 Removal of conditions or suspension agreed to by practitioner
(1) Section 81, as in force immediately before the substitution of
that section by the Medical Practice Amendment Act 2000,
continues to apply in respect of any conditions imposed on the
registration of a practitioner, or any suspension, that had effect
under that section before that substitution.
(2) Section 81A does not apply in respect of those conditions or
that suspension.
Page 78
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
28 Amendments to appeal, review and other procedural provisions
(1) Section 89 does not confer a right of appeal in respect of any
power exercised by the Chairperson or Deputy Chairperson
under Division 4 of Part 4 before the substitution of that section
by the Medical Practice Amendment Act 2000.
(2) Section 94A does not apply in respect of any review under
Division 3 of Part 6 that was commenced before that section
commences.
(3) Section 95, as in force immediately before the substitution of
that section by the Medical Practice Amendment Act 2000,
continues to apply in respect of any power exercised by the
Board before that substitution.
(4) Clause 3A of Schedule 2 does not apply in respect of an
inquiry or appeal commenced before that clause commences.
29 Recovery of fees
(1) Section 102, as in force immediately before its repeal by the
Medical Practice Amendment Act 2000, continues to apply in
respect of any professional services of any kind rendered or
performed by a registered medical practitioner before that
repeal.
(2) Section 104, as in force immediately before its repeal by the
Medical Practice Amendment Act 2000, continues to apply in
respect of any medical or surgical advice, service, attendance
or operation given or performed before that repeal.
30 Annual returns
(1) In section 127A, the return period for the first return date
means the period of 12 months ending 2 months before the first
return date, even if that period, or any part of the period,
occurred before the commencement of that section.
(2) The first return date means the first return date notified by the
Board under section 127A.
Page 79
Medical Practice Amendment Bill 2000
Schedule 1 Amendment of Medical Practice Act 1992
31 Offences by corporations
Section 187, as in force immediately before its amendment by
the Medical Practice Amendment Act 2000, continues to apply
in respect any contravention by a corporation that occurred or
is alleged to have occurred before the commencement of that
amendment.
[119] Dictionary
Insert in alphabetical order in clause 1:
assessor means a person appointed as an assessor under this
Act.
authorised person means a person appointed as an authorised
person under Part 9.
criminal finding means:
(a) a finding that an offence has been proved without
proceeding to a conviction, or
(b) a finding that an offence has been proved and the
discharging of, or the making of an order releasing, the
offender conditionally on entering into a good behaviour
bond for a specified period or on other conditions
determined by the court.
day procedure centre has the meaning given by the Private
Hospitals and Day Procedure Centres Act 1988.
excluded offence means an offence prescribed by the
regulations under section 71 (1).
health product means a pharmaceutical product or other
product used for health purposes.
health service has the meaning given by the Health Care
Complaints Act 1993.
health service provider has the meaning given by the Health
Care Complaints Act 1993.
Impaired Registrants Panel means an Impaired Registrants
Panel constituted under this Act.
Mutual Recognition laws means the Mutual Recognition Act
1992 of the Commonwealth and the Trans-Tasman Mutual
Recognition Act 1997 of the Commonwealth.
Page 80
Medical Practice Amendment Bill 2000
Amendment of Medical Practice Act 1992 Schedule 1
performance review means a review of a registered medical
practitioner's professional performance, conducted by a
Performance Review Panel under Part 5A.
Performance Review Panel means a Performance Review
Panel constituted under this Act.
private hospital has the meaning given by the Private Hospitals
and Day Procedure Centres Act 1988.
protected report means a report that is a protected report for the
purposes of this Act.
public hospital has the meaning given by the Health Services
Act 1997.
sex or violence offence means an offence involving sexual
activity, acts of indecency, child pornography, physical violence
or the threat of physical violence.
sex/violence criminal finding means a criminal finding for a
sex or violence offence.
visiting practitioner has the meaning given by the Health
Services Act 1997.
[120] Dictionary, clause 1, definition of "medical student"
Omit the definition. Insert instead:
medical student means:
(a) a student enrolled in a course of medical study at a
Medical School in Australia accredited by the
Australian Medical Council, or
(b) a student undertaking a clinical placement in a public
hospital under the auspices of an educational institution
accredited by the Australian Medical Council.
[121] Dictionary, clause 1, definition of "Panel"
Omit the definition.
[122] Dictionary, clause 4 (g)
Insert after clause 4 (f):
(g) it is a protected report or would reveal the contents of a
protected report.
Page 81
Medical Practice Amendment Bill 2000
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Defamation Act 1974 No 18
Section 17FA Matters arising under Medical Practice Act 1992
Omit section 17FA (1). Insert instead:
(1) There is a defence of absolute privilege:
(a) for a publication to or by:
(i) the New South Wales Medical Board, or
(ii) an Impaired Registrants Panel, or
(iii) a Performance Review Panel, or
(iv) a Professional Standards Committee, or
(v) the Medical Tribunal, or
(vi) a member of any of the bodies referred to in
subparagraphs (i)-(v), or
(vii) an assessor,
for the purpose of the assessment or referral of a
complaint or other matter or the holding of any inquiry,
performance review, investigation or appeal under the
Medical Practice Act 1992, and
(b) for a publication by a body or person referred to in
paragraph (a) of a report of a decision or determination
in respect of a complaint or other matter or any inquiry,
performance review, investigation or appeal, and of the
reasons for that decision or determination.
2.2 Public Health Act 1991 No 10
[1] Part 2A
Renumber Part 2A as Part 2B.
Page 82
Medical Practice Amendment Bill 2000
Amendment of other Acts Schedule 2
[2] Part 2A
Insert after Part 2:
Part 2A Promotion and provision of health services
10AA Proceedings for offences against this Part
Proceedings for an offence against this Part may be instituted
by the Director-General of the Department of Health, a
registration authority (within the meaning of the Health Care
Complaints Act 1993), the Health Care Complaints
Commission or by any other person.
10AB Advertisement or promotion of health services
(1) A person must not advertise or otherwise promote a health
service in a manner that:
(a) is false, misleading or deceptive, or
(b) creates an unjustified expectation of beneficial
treatment.
Maximum penalty:
(a) for a first offence--100 penalty units, or
(b) for a second or subsequent offence--200 penalty units.
(2) In this section:
health service has the meaning given it by the Health Care
Complaints Act 1993.
[3] Sections 10L and 10M
Omit "Part 2A" from the headings to those sections.
Insert instead "Part 2B".
Page 83
[Index] [Search] [Download] [Related Items] [Help]