MEDICAL PRACTICE BILL 2004

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Interpretation

4 Medical fitness to provide medical treatment

Part 2—Medical Board of South Australia

Division 1—Establishment of Board

5 Establishment of Board

Division 2—Board's membership

6 Composition of Board

7 Terms and conditions of membership

8 Presiding member and deputy

9 Vacancies or defects in appointment of members

10 Remuneration

Division 3—Registrar and staff of Board

11 Registrar of Board

12 Other staff of Board

Division 4—General functions and powers

13 Functions of Board

14 Committees

15 Delegations

Division 5—Board's procedures

16 Board's procedures

17 Conflict of interest etc under Public Sector Management Act

18 Powers of Board in relation to witnesses etc

19 Principles governing proceedings

20 Representation at proceedings before Board

21 Costs

Division 6—Accounts, audit and annual report

22 Accounts and audit

23 Annual report

Part 3—Medical Professional Conduct Tribunal

24 Continuation of Tribunal

25 Composition of Tribunal

26 Terms and conditions of appointed members

27 Vacancies or defects in appointment of members

28 Remuneration

29 Registrar of Tribunal

30 Protection from personal liability

Part 4—Registration

Division 1—Registers

31 Registers

32 Authority conferred by registration on register

Division 2—Registration

33 Registration of natural persons on general or specialist register

34 Registration of medical students

35 Application for registration

36 Removal from register or specialty

37 Reinstatement on register or in specialty

38 Fees and returns

Division 3—Special provisions relating to medical services providers

39 Information to be given to Board by medical services providers

Division 4—Restrictions relating to the provision of medical treatment

40 Illegal holding out as registered person

41 Illegal holding out concerning limitations or conditions

42 Use of certain titles or descriptions prohibited

43 Restrictions on provision of medical treatment by unqualified persons

44 Board's approval required where medical practitioner or medical student has not practised for 3 years

Part 5—Investigations and proceedings

Division 1—Preliminary

45 Interpretation

46 Cause for disciplinary action

Division 2—Investigations

47 Powers of inspectors

48 Offence to hinder etc inspector

Division 3—Proceedings before Board

49 Obligation to report medical unfitness of medical practitioner or medical student

50 Medical fitness of medical practitioner or medical student

51 Inquiries by Board as to matters constituting grounds for disciplinary action

52 Variation or revocation of conditions imposed by Board

53 Suspension of registration of non-residents

54 Constitution of Board for purpose of proceedings

55 Provisions as to proceedings before Board

Division 4—Proceedings before Tribunal

56 Constitution of Tribunal for purpose of proceedings

57 Inquiries by Tribunal as to matters constituting grounds for disciplinary action

58 Variation or revocation of conditions imposed by Tribunal

59 Provisions as to proceedings before Tribunal

60 Powers of Tribunal

61 Costs

62 Contravention of prohibition order

63 Register of prohibition orders

64 Power of Tribunal to make rules

Part 6—Appeals

65 Right of appeal to Supreme Court

66 Operation of order may be suspended

67 Variation or revocation of conditions imposed by Court

Part 7—Miscellaneous

68 Interpretation

69 Offence to contravene conditions of registration

70 Offence to practise medicine while deregistered

71 Medical practitioner etc must declare interest in prescribed business

72 Offence to give, offer or accept benefit for referral or recommendation

73 Improper directions to medical practitioners or medical students

74 Procurement of registration by fraud

75 Statutory declarations

76 False or misleading statement

77 Medical practitioner or medical student must report his or her medical unfitness to Board

78 Medical School must report cessation of student's enrolment

79 Registered persons and medical services providers to be indemnified against loss

80 Information relating to claim against registered person to be provided

81 Victimisation

82 Self-incrimination

83 Punishment of conduct that constitutes an offence

84 Vicarious liability for offences

85 Application of fines

86 Board may require medical examination or report

87 Ministerial review of decisions relating to courses

88 Confidentiality

89 Service

90 Evidentiary provision

91 Regulations

Schedule 1—Repeal and transitional provisions

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Medical Practice Act 2004.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Interpretation

(1) In this Act, unless the contrary intention appears—

appropriate register means—

(a) the general register; or

(b) the specialist register; or

as the case may require;

beneficiary includes an object of a discretionary trust;

Board means the Medical Board of South Australia;

corporate or trustee medical services provider—see subsection (5);

director of a body corporate means a member of the board or committee of management of the body corporate, whether validly appointed or not;

equipment includes appliances, instruments, dressings or substances used for the purposes of medical treatment;

general register—see Part 4 Division 1;

inspector means a person authorised by the Board to exercise the powers of an inspector under this Act;

legal practitioner means a person admitted and enrolled as a practitioner of the Supreme Court of South Australia;

medical practitioner means a person who is registered on the general register or on both the general register and the specialist register;

medical services provider means a person (not being a medical practitioner) who provides medical treatment through the instrumentality of a medical practitioner or medical student but does not include—

(a) a recognised hospital, incorporated health centre or private hospital within the meaning of the South Australian Health Commission Act 1976; or

(b) any other person excluded from this definition by the regulations;

medical student means a person who is registered on the medical student register;

medical student register—see Part 4 Division 1;

medical treatment includes all medical or surgical advice, attendances, services, procedures and operations;

nurse means a person who is registered as a nurse under the Nurses Act 1999;

provide, in relation to medical treatment, means provide treatment personally or through the instrumentality of another, and includes offer to provide;

psychologist means a person who is registered as a psychologist under the Psychological Practices Act 1973;

record means—

(a) a documentary record; or

(b) a record made by an electronic, electromagnetic, photographic or optical process; or

register means a register kept under this Act;

registered person means a person who is registered on a register kept under this Act;

Registrar—

(a) in the case of a reference in Part 5 Division 4—means the person holding or acting in the office of Registrar of the Tribunal;

(b) in any other case—means the person holding or acting in the office of Registrar of the Board;

repealed Act means the Medical Practitioners Act 1983;

representative body means a body that is declared by the regulations to be a representative body for the purposes of this Act;

specialist means a person who is registered on the specialist register;

specialist register—see Part 4 Division 1;

specialty means a branch of medicine declared by the Board, by notice in the Gazette, to be a specialty;

Tribunal means the Medical Professional Conduct Tribunal;

unprofessional conduct includes—

(a) improper or unethical conduct in relation to professional practice; and

(b) incompetence or negligence in relation to the provision of medical treatment; and

(i) a provision of this Act; or

(ii) a code of conduct or professional standard prepared or endorsed by the Board under this Act; and

(d) conduct that constitutes an offence punishable by imprisonment for 1 year or more under some other Act or law.

(2) A reference in this Act to unprofessional conduct extends to—

(a) unprofessional conduct committed before the commencement of this Act; and

(b) unprofessional conduct committed within or outside South Australia or the Commonwealth.

(3) A reference in this Act to engaging in conduct includes a reference to failing or refusing to engage in conduct.

(4) Without limiting the generality of the expression, a person who is not a medical practitioner will, unless exempted by the regulations, be taken to provide medical treatment through the instrumentality of a medical practitioner if the person, in the course of carrying on a business, provides services to the practitioner for which the person is entitled to receive a share in the profits or income of the practitioner's medical practice.

(5) For the purposes of this Act—

(a) a corporate medical services provider is a medical services provider that is a body corporate and a person occupies a position of authority in such a provider if the person—

(i) is a director of the body corporate; or

(ii) exercises, or is in a position to exercise, control or substantial influence over the body corporate in the conduct of its affairs; or

(iii) manages, or is to manage, the business of the body corporate that consists of the provision of medical treatment; or

(iv) where the body corporate is a proprietary company—is a shareholder in the body corporate; and

(b) a trustee medical services provider is a person acting as a medical services provider in the capacity of trustee of a trust and a person occupies a position of authority in such a provider if the person is a trustee or beneficiary of the trust.

(6) For the purposes of this Act, a person occupies a position of authority in a body corporate other than a corporate medical services provider if the person—

(a) is a director of the body corporate; or

(b) exercises, or is in a position to exercise, control or substantial influence over the body corporate in the conduct of its affairs; or

(7) However—

(a) a minor who is a shareholder in a proprietary company, or a beneficiary under a trust, is not, for that reason, to be regarded as a person occupying a position of authority; and

(b) a charitable organisation that is a beneficiary of a trust is not, for that reason, to be regarded as occupying a position of authority.

(8) For the purposes of this Act, a person who holds more than 10 per cent of the issued share capital of a public company will be regarded as a person occupying a position of authority in that company.

4—Medical fitness to provide medical treatment

A person or body must, in making a determination under this Act as to a person's medical fitness to provide medical treatment, have regard to the question of whether the person is able to provide medical treatment personally to a patient without endangering the patient's health or safety.

Division 2—Board's membership

6—Composition of Board

(1) The Board consists of 12 members appointed by the Governor of whom—

(a) 7 must be medical practitioners of whom—

(i) 3 are to be nominated by the Minister and of these 1 must be a person who—

(A) works, or has worked, in the public health system in this State; and

(B) is nominated on the recommendation of the chief executive of the administrative unit that has, subject to the Minister, responsibility for the administration of the public health system in this State; and

(ii) 1 is to be selected from a panel of 3 persons nominated by the Council of The University of Adelaide; and

(iii) 1 is to be selected from a panel of 3 persons nominated by the Council of The Flinders University of South Australia; and

(iv) 2 are to be chosen at an election conducted in accordance with the regulations; and

(b) 1 must be a legal practitioner nominated by the Minister; and

(d) 3 must be persons nominated by the Minister who are not eligible for appointment under a preceding provision of this subsection.

(2) Every medical practitioner is entitled to vote at an election under subsection (1)(a)(iv).

(3) If an election for the purposes of subsection (1)(a)(iv) fails for any reason, the Governor may appoint a medical practitioner, and the person so appointed will be taken to have been appointed after due election under this section.

(4) A body referred to in subsection (1)(a)(ii) or (iii) must, in constituting a panel for the purposes of that subsection, nominate at least 1 woman and 1 man.

(5) At least 3 of the members of the Board nominated by the Minister must be women and at least 3 must be men.

(6) The Governor may appoint a person to be a deputy of a member and a person so appointed may act as a member of the Board in the absence of the member.

(7) The requirements of qualification and nomination made by this section in relation to the appointment of a member extend to the appointment of a deputy of that member.

7—Terms and conditions of membership

(1) A member of the Board will be appointed on conditions determined by the Governor and for a term, not exceeding 3 years, specified in the instrument of appointment and, at the expiration of a term of appointment, is eligible for reappointment.

(2) However, a member of the Board may not hold office for consecutive terms that exceed 9 years in total.

(3) The Governor may remove a member of the Board from office—

(a) for breach of, or non-compliance with, a condition of appointment; or

(b) for misconduct; or

(4) The office of a member of the Board becomes vacant if the member—

(a) dies; or

(b) completes a term of office and is not reappointed; or

(d) ceases to satisfy the qualification by virtue of which the member was eligible for appointment to the Board; or

(e) is removed from office under subsection (3).

(5) If a member of the Board is a member constituting the Board for the purposes of any proceedings under Part 5 and the member's term of office expires before those proceedings are completed, the member may, for the purpose of continuing and completing those proceedings, continue to act as a member of the Board.

8—Presiding member and deputy

The Minister must, after consultation with the Board, appoint a member who is a medical practitioner (the presiding member) to preside at meetings of the Board and another member who is a medical practitioner (the deputy presiding member) to preside at meetings of the Board in the absence of the presiding member.

9—Vacancies or defects in appointment of members

An act or proceeding of the Board is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

10—Remuneration

A member of the Board is entitled to remuneration, allowances and expenses determined by the Governor.

Division 4—General functions and powers

13—Functions of Board

(1) The functions of the Board are as follows:

(a) to regulate the practice of medicine in the public interest;

(b) to approve, after consultation with authorities considered appropriate by the Board, courses of education or training that provide qualifications for registration on the general register or the specialist register under this Act;

(c) to determine, after consultation with authorities considered appropriate by the Board, the requirements necessary for registration under this Act;

(d) to establish and maintain the registers contemplated by this Act;

(e) to prepare or endorse, subject to the approval of the Minister, codes of conduct or professional standards for registered persons or codes of conduct for medical services providers;

(f) to prepare or endorse guidelines on continuing medical education for medical practitioners;

(g) to establish administrative processes for handling complaints received against registered persons, medical services providers or persons who occupy positions of authority in corporate or trustee medical services providers (which may include processes under which the registered person, provider or person who occupies the position voluntarily enters into an undertaking);

(h) to provide advice to the Minister as the Board considers appropriate;

(i) to carry out other functions assigned to the Board by or under this Act, or by the Minister.

(2) The Board must perform its functions under this Act with the object of protecting the health and safety of the public by achieving and maintaining high professional standards both of competence and conduct in the provision of medical treatment in this State.

(3) If—

(a) a code of conduct or professional standard prepared or endorsed by the Board is approved by the Minister; or

(b) guidelines are prepared or endorsed by the Board,

the Board must—

(d) take reasonable steps to send a copy of the code, standard or guidelines to each registered person or medical services provider to whom it applies; and

(e) ensure that a copy of the code, standard or guidelines is published on the Internet and kept available for public inspection without charge during normal office hours at the principal office of the Board,

(although proof of compliance with paragraphs (c), (d) and (e) is not necessary for the purposes of any proceedings that involve an alleged contravention of or failure to comply with a code of conduct or professional standard).

(4) The administrative processes established by the Board for handling complaints received against registered persons, medical services providers or persons who occupy positions of authority in corporate or trustee medical services providers must be designed—

(a) to be fair to both the aggrieved person and the respondent; and

(b) to keep both the aggrieved person and the respondent properly informed about the steps taken by the Board in response to the complaint; and

(c) to provide, where appropriate, opportunities for the clarification of any misapprehension or misunderstanding between the aggrieved person and the respondent; and

(d) to keep both the aggrieved person and the respondent properly informed about the outcome of the processes.

14—Committees

(1) The Board may establish committees—

(a) to advise the Board or the Registrar on any matter; or

(b) to carry out functions on behalf of the Board.

(2) The membership of a committee will be determined by the Board and may, but need not, consist of, or include, members of the Board.

(3) The Board will determine who will be the presiding member of a committee.

(4) The procedures to be observed in relation to the conduct of the business of a committee will be—

(a) as determined by the Board;

(b) insofar as a procedure is not determined under paragraph (a)—as determined by the committee.

(5) If the Public Sector Management Act 1995 would not, apart from this section, apply to a member of a committee, that Act applies to the member in the same way as to an advisory body member within the meaning of that Act.

15—Delegations

(1) The Board may delegate any of its functions or powers under this Act other than—

(a) this power of delegation; and

(b) the power to hear and determine proceedings under Part 5.

(2) A delegation—

(a) may be made—

(i) to a member of the Board, the Registrar or an employee of the Board; or

(ii) to a committee established by the Board; and

(b) may be made subject to conditions and limitations specified in the instrument of delegation; and

Division 5—Board's procedures

16—Board's procedures

(1) Subject to this Act, 7 members constitute a quorum of the Board.

(2) A meeting of the Board (other than for the purposes of hearing and determining proceedings under Part 5) will be chaired by the presiding member or, in his or her absence, by the deputy presiding member and, in the absence of both the presiding member and the deputy presiding member, the members present at a meeting of the Board must choose one of their number to preside at the meeting.

(3) A decision carried by a majority of the votes cast by members of the Board at a meeting is a decision of the Board.

(4) Each member present at a meeting of the Board has one vote on any question arising for decision and, except in hearing and determining proceedings under Part 5, the member presiding at the meeting may exercise a casting vote if the votes are equal.

(5) A conference by telephone or other electronic means between the members of the Board will, for the purposes of this section, be taken to be a meeting of the Board at which the participating members are present if—

(a) notice of the conference is given to all members in the manner determined by the Board for the purpose; and

(b) each participating member is capable of communicating with every other participating member during the conference.

(6) A proposed resolution of the Board becomes a valid decision of the Board despite the fact that it is not voted on at a meeting of the Board if—

(a) notice of the proposed resolution is given to all members of the Board in accordance with procedures determined by the Board; and

(b) a majority of the members express concurrence in the proposed resolution by letter, telegram, telex, facsimile transmission, electronic mail or other written communication setting out the terms of the resolution.

(7) However, subsections (5) and (6) do not apply in relation to the hearing and determination of proceedings under Part 5 by the Board as constituted for the purposes of proceedings under that Part.

(8) The Board must have accurate minutes kept of its meetings.

(9) Subject to this Act, the Board may determine its own procedures.

17—Conflict of interest etc under Public Sector Management Act

A member of the Board will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector Management Act 1995 by reason only of the fact that the member has an interest in the matter that is shared in common with the public, medical practitioners generally or a substantial section of the public or of medical practitioners in this State.

18—Powers of Board in relation to witnesses etc

(1) For the purposes of proceedings before the Board (including an application for registration or reinstatement of registration), the Board may—

(a) by summons signed on behalf of the Board by a member of the Board or the Registrar, require the attendance before the Board of any person whom the Board thinks fit to call before it; or

(b) by summons signed on behalf of the Board by a member of the Board or the Registrar, require the production of any relevant documents, records or equipment and, in the case of a document or record that is not in the English language, require the production of a written statement in the English language of the contents of the document or record; or

(c) inspect any documents, records or equipment produced before it, and retain them for such reasonable period as it thinks fit, and make copies of the documents or records or their contents; or

(d) require any person to make an oath or affirmation (which may be administered by any member of the Board) to answer truthfully questions put by any member of the Board or any person appearing before the Board; or

(e) require any person appearing before the Board (whether summoned to appear or not) to answer any questions put by any member of the Board or by any person appearing before the Board.

(2) On the receipt of an application for the issue of a summons under this section, a member or the Registrar may, without referring the matter to the Board, issue a summons on behalf of the Board.

(3) A person who—

(a) fails without reasonable excuse to comply with a summons issued to attend, or to produce documents, records or equipment, before the Board; or

(b) having been served with a summons to produce a written statement of the contents of a document or record in the English language fails, without reasonable excuse, to comply with the summons or produces a statement that he or she knows, or ought to know, is false or misleading in a material particular; or

(c) misbehaves before the Board, wilfully insults the Board or one or more of the members in the exercise of the member's official duties, or interrupts the proceedings of the Board; or

(d) refuses to be sworn or to affirm, or refuses or fails to answer truthfully a relevant question when required to do so by the Board,

is guilty of an offence.

Maximum penalty: $10 000 or imprisonment for 6 months.

(4) A person who appears as a witness before the Board has the same protection as a witness in proceedings before the Supreme Court.

19—Principles governing proceedings

(1) In any proceedings before the Board under this Act, the Board—

(a) is not bound by the rules of evidence and may inform itself on any matter as it thinks fit; and

(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

(2) In any proceedings before the Board under this Act, the Board must keep the parties to the proceedings properly informed as to the progress and outcome of the proceedings.

20—Representation at proceedings before Board

A party to proceedings before the Board (including an applicant for registration or reinstatement of registration) is entitled to be represented at the hearing of those proceedings.

21—Costs

(1) The Board may award such costs against a party to proceedings before it as the Board considers just and reasonable.

(2) A party who is dissatisfied with the amount of the costs fixed by the Board may request a Master of the District Court to tax the costs and, after taxing the costs, the Master may confirm or vary the amount of the costs fixed by the Board.

(3) Subject to this section, costs awarded by the Board under this section may be recovered as a debt.

Division 2—Registration

33—Registration of natural persons on general or specialist register

(1) Subject to this Act, a natural person is eligible for registration on the general register, and a person registered on the general register is eligible for registration on the specialist register in a particular specialty, if the person, on application to the Board, satisfies the Board that he or she—

(a) has qualifications approved or recognised by the Board for the purposes of registration on the register or in the specialty to which the application relates; and

(b) has met the requirements determined by the Board to be necessary for the purposes of registration on that register or in that specialty; and

(d) is, unless exempted by the Board, insured or indemnified in a manner and to an extent approved by the Board against civil liabilities that might be incurred by the person in connection with the provision of medical treatment as a medical practitioner; and

(e) is a fit and proper person to be registered on that register or in that specialty.

(2) If a person who applies for registration, or reinstatement of registration, on a particular register or in a particular specialty—

(a) does not, in the opinion of the Board, have the necessary qualifications or experience required for registration on that register or in that specialty; or

(b) is not, in the opinion of the Board, medically fit to provide the medical treatment authorised by registration on that register; or

the Board may register the person on that register or in that specialty in pursuance of this subsection (limited registration)—

(d) in order to enable the person—

(i) to do whatever is necessary to become eligible for full registration under this Act; or

(ii) to teach or to undertake research or study in this State; or

(iii) in the case of an applicant who has obtained qualifications for the practice of medicine under the law of a place outside of Australia—to practise in a part of the State or at a place that the Minister and the Board consider is in urgent need of the services of a medical practitioner; or

(e) if, in its opinion, it would otherwise be in the public interest to do so.

(3) In registering a person under subsection (2) the Board may impose one or more of the following conditions on the registration:

(a) a condition restricting the places or times at which the practitioner may provide medical treatment;

(b) a condition limiting the kind of medical treatment that the practitioner may provide;

(d) a condition requiring that the practitioner be supervised in the provision of medical treatment by a particular person or by a person of a particular class;

(e) such other conditions as the Board thinks fit.

34—Registration of medical students

(1) A person is not entitled to undertake an undergraduate course, or prescribed postgraduate course, of medical study at a Medical School in the State accredited by the Australian Medical Council unless the person is registered under this section as a medical student.

(2) A person is eligible for registration as a medical student on the medical student register if the person, on application to the Board, satisfies the Board that he or she—

(a) genuinely requires registration on that register for the purpose of enabling the person to undertake an undergraduate course, or prescribed postgraduate course, of medical study at a Medical School in the State accredited by the Australian Medical Council; and

(b) is medically fit to provide the medical treatment authorised by registration on that register; and

(3) If a person who applies for registration, or reinstatement of registration, on the medical student register is not, in the opinion of the Board, medically fit to provide the medical treatment authorised by registration on that register, the Board may register the person on that register in pursuance of this subsection (limited student registration) and impose one or more of the following conditions on the registration:

(a) a condition limiting the kind of medical treatment that the person may provide;

(b) a condition limiting the period during which the registration will have effect;

(c) a condition requiring that the person be supervised in the provision of medical treatment by a particular person or by a person of a particular class;

(d) such other conditions as the Board thinks fit.

35—Application for registration

(1) An application for registration must—

(a) be made to the Board in the manner and form approved by the Board; and

(b) be accompanied by the registration fee fixed under this Act.

(2) An applicant for registration must, if the Board so requires, provide the Board with specified information to enable the Board to determine the application.

(3) The Board may require an applicant for registration—

(a) to submit a medical report or other evidence acceptable to the Board as to the applicant's medical fitness to provide medical treatment of the kind authorised by registration on the register to which the application relates; or

(b) to obtain additional qualifications or experience specified by the Board before the Board determines the application.

(4) If it appears likely to the Registrar that the Board will grant an application for registration, the Registrar may provisionally register the applicant.

(5) Provisional registration remains in force until the Board determines the application.

(6) The registration by the Board under this Act of a person who was provisionally registered has effect from the commencement of the provisional registration.

36—Removal from register or specialty

(1) The Registrar must, on application by a registered person, remove the person from the appropriate register or specialty to which the application relates.

(2) The Registrar must remove from the appropriate register or specialty a person—

(a) who dies; or

(b) who ceases to hold a qualification required for registration on that register or in that specialty; or

(d) who ceases to be enrolled in an accredited undergraduate course, or prescribed postgraduate course, of medical study in a Medical School in the State; or

(e) whose registration on that register or in that specialty has been suspended or cancelled under this Act.

(3) If a person who is on the specialist register is removed from the general register, the person must also be removed from the specialist register.

(4) The Registrar may act under subsection (2) or (3) without giving prior notice to the relevant person.

37—Reinstatement on register or in specialty

(1) A person who has been removed from a register or specialty under this Act—

(a) on his or her application; or

(b) on account of failure to pay the annual practice fee or to furnish the return required under section 38; or

(d) on account of the person—

(i) ceasing to hold a qualification required for registration on that register or in that specialty or otherwise ceasing to be entitled to be registered on that register or in that specialty; or

(ii) ceasing to be enrolled in an accredited undergraduate course, or prescribed postgraduate course, of medical study in a Medical School in the State,

may apply to the Board at any time for reinstatement on that register or in that specialty.

(2) A person whose registration on a register or in a specialty has been suspended may apply to the Board for reinstatement on that register or in that specialty (but not, in the case of an order for suspension for a specified period made in disciplinary proceedings, until after the expiry of that period).

(3) A person who has been disqualified from being registered on a register or in a specialty under this Act may, subject to the terms of the order for disqualification, apply to the Board for reinstatement on that register or in that specialty.

(4) An application for reinstatement must—

(a) be made to the Board in the manner and form approved by the Board; and

(b) be accompanied by the reinstatement fee fixed under this Act.

(5) An applicant for reinstatement must, if the Board so requires, provide the Board with specified information to enable the Board to determine the application.

(6) The Board may require an applicant for reinstatement of registration—

(b) to obtain additional qualifications or experience specified by the Board before the Board determines the application.

(7) Subject to this section, the Board must reinstate on the appropriate register or in a specialty an applicant under this section if satisfied that the applicant is eligible for registration on that register or in that specialty.

(8) The Board may refuse to reinstate the applicant on the appropriate register or in a specialty until all complaints (if any) laid against the applicant under this Act have been finally disposed of.

(9) If a person's registration has been suspended by reason of his or her failure to reside in Australia, the Board may make the person's registration, after reinstatement, subject to such conditions relating to residence as the Board thinks fit.

38—Fees and returns

(1) Subject to this Act, a person will not be registered, nor will a registration be reinstated, until the registration or reinstatement fee, and the annual practice fee, fixed under this Act have been paid.

(2) A registered person must, in each calendar year before the date fixed for that purpose by the Board—

(a) pay to the Board the annual practice fee fixed under this Act; and

(b) furnish the Board with a return, in a form approved by the Board, containing all information specified in the return relating to the provision of medical treatment, or the undertaking of any course of continuing medical education, by the person during the preceding year or to any other matter relevant to the person's registration under this Act.

(3) The Board may, without further notice, remove from the appropriate register a person who fails to pay the annual practice fee or furnish the required return by the due date.

Division 4—Restrictions relating to the provision of medical treatment

40—Illegal holding out as registered person

(1) A person must not hold himself or herself out as a registered medical student, medical practitioner, specialist or a specialist of a particular class, or permit another person to do so, unless registered on the appropriate register and, in the case of a specialist of a particular class, in the specialty relevant to that class.

Maximum penalty: $50 000 or imprisonment for 6 months.

(2) A person must not hold out another as a registered medical student, medical practitioner, specialist or a specialist of a particular class unless the other person is registered on the appropriate register and, in the case of a specialist of a particular class, in the specialty relevant to that class.

Maximum penalty: $50 000 or imprisonment for 6 months.

41—Illegal holding out concerning limitations or conditions

(1) A person whose registration is limited or subject to a condition under this Act must not hold himself or herself out as having a registration that is not limited or not subject to a condition or permit another person to do so.

Maximum penalty: $50 000 or imprisonment for 6 months.

(2) A person must not hold out another whose registration is limited or subject to a condition under this Act as having a registration that is not limited or not subject to a condition.

Maximum penalty: $50 000 or imprisonment for 6 months.

42—Use of certain titles or descriptions prohibited

(1) A person who is not registered on the appropriate register or in the relevant specialty must not use a prescribed word, or its derivatives, to describe himself or herself or a service that he or she provides.

Maximum penalty: $50 000.

(2) A person must not, in the course of advertising or promoting a service that he or she provides (being a service involving the provision of medical treatment), use a prescribed word, or its derivatives, to describe a person who is engaged in the provision of the service but is not registered on the appropriate register or in the relevant specialty.

Maximum penalty: $50 000.

(3) In this section—

prescribed word means—

(a) in relation to registration on the medical student register—registered medical student; or

(b) in relation to registration on the general register or specialist register—medical practitioner; or

(d) any other word or expression prescribed by the regulations.

43—Restrictions on provision of medical treatment by unqualified persons

(1) A person—

(a) must not provide medical treatment of a prescribed kind; and

(b) cannot recover a fee or other charge, or any part of such a fee or charge, for medical treatment provided by the person,

unless, at the time the treatment was provided—

(d) the person provided the treatment through the instrumentality of a qualified person.

(2) A person who contravenes subsection (1)(a) is guilty of an offence.

Maximum penalty: $50 000 or imprisonment for 6 months.

(3) Subsection (1) does not apply in relation to medical treatment provided by an unqualified person in prescribed circumstances or pursuant to an exemption under subsection (4).

(4) The Governor may, by proclamation, exempt a person from subsection (1) if of the opinion that good reason exists for doing so in the particular circumstances of the case.

(5) An exemption under subsection (4) may be subject to such conditions as the Governor thinks fit and specifies in the proclamation.

(6) A person who contravenes, or fails to comply with, a condition of an exemption under this section is guilty of an offence.

Maximum penalty: $50 000.

(7) The Governor may, by proclamation, vary or revoke a proclamation under this section.

(8) In this section—

qualified person, in relation to medical treatment, means a person authorised by or under this Act or any other Act to provide that treatment.

44—Board's approval required where medical practitioner or medical student has not practised for 3 years

(1) A registered person who has not provided medical treatment of the kind authorised by his or her registration for a period of 3 years or more must not provide any such medical treatment without first obtaining the approval of the Board.

Maximum penalty: $20 000.

(2) The Board—

(a) may, before granting its approval under subsection (1), require the applicant to obtain qualifications or experience specified by the Board and for that purpose may require the applicant to undertake a specified course of instruction and training in medicine; and

(b) may impose one or more of the following conditions on the applicant's registration:

(i) a condition restricting the places and times at which the applicant may provide medical treatment;

(ii) a condition limiting the kind of medical treatment that the applicant may provide;

(iii) a condition requiring that the applicant be supervised in the provision of medical treatment by a particular person or by a person of a particular class;

(iv) such other conditions as the Board thinks fit.

Division 3—Proceedings before Board

49—Obligation to report medical unfitness of medical practitioner or medical student

(1) If any of the following persons, namely—

(a) a health professional who has treated, or is treating, a patient who is a medical practitioner or medical student; or

(b) a person (including a hospital) who provides medical treatment through the instrumentality of a medical practitioner or medical student; or

(c) a hospital that has entered into an arrangement with a medical practitioner under which the medical practitioner provides medical treatment at the hospital to his or her patients; or

(d) the Dean (or acting Dean) of a Medical School in the State in which a medical student is enrolled,

is of the opinion that the practitioner or student is or may be medically unfit to provide medical treatment, the person must submit a written report to the Board setting out his or her reasons for that opinion and any other information required by the regulations.

Maximum penalty: $10 000.

(2) The Board must cause a report made under this section to be investigated.

(3) In this section—

health professional means—

(a) a medical practitioner; or

(b) a psychologist; or

(c) any other person who belongs to a profession, or who has an occupation, declared by the Board, by notice in the Gazette, to be a profession or occupation within the ambit of this definition.

50—Medical fitness of medical practitioner or medical student

If—

(a) on the application of—

(i) the Registrar; or

(ii) the Minister; or

(iii) a representative body; or

(b) after an investigation under section 49 has been conducted,

the Board is satisfied, after due inquiry, that a medical practitioner or medical student is medically unfit to provide medical treatment and that it is desirable in the public interest that an order be made under this section, the Board may, by order—

(c) suspend the person's registration until further order of the Board or for a specified period determined by the Board; or

(d) impose conditions restricting the person's right to provide medical treatment; or

(e) impose conditions requiring the person to undergo counselling or treatment or to enter into any other undertaking.

51—Inquiries by Board as to matters constituting grounds for disciplinary action

(1) A complaint setting out matters that are alleged to constitute grounds for disciplinary action against a person may be laid before the Board (in a manner and form approved by the Board) by—

(a) the Registrar; or

(b) the Minister; or

(d) a person who is aggrieved by the conduct of the person or, if the person aggrieved is a child or is suffering from a mental or physical incapacity, by a person acting on his or her behalf.

(2) If a complaint is laid under this section, the Board must inquire into the subject matter of the complaint unless the Board—

(a) considers that the complaint is frivolous or vexatious; or

(b) lays a complaint before the Tribunal relating to matters the subject of, or arising out of, the complaint laid before the Board.

(3) If a complaint has been laid under this section by or on behalf of an aggrieved person and the Board is satisfied that the complaint arose from a misapprehension on the part of the complainant or from a misunderstanding between the parties, it may, before proceeding further with the hearing of the complaint, require the parties to attend before the Registrar in order to clarify the misapprehension or misunderstanding.

(4) Before the Board inquires into the subject matter of a complaint, the Board must give the respondent an opportunity to elect to have the matter dealt with by the Tribunal and, if the respondent so elects, the Board must lay a complaint before the Tribunal relating to matters the subject of, or arising out of, the complaint.

(5) If, in the course of conducting an inquiry under this section, the Board considers that the allegations or evidence against the respondent are sufficiently serious or that it is otherwise appropriate to do so, it may terminate the proceedings under this section and itself lay a complaint against the respondent before the Tribunal in relation to those allegations or that evidence.

(6) If, after conducting an inquiry under this section, the Board is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the respondent, the Board may, by order, do one or more of the following:

(a) censure the respondent;

(b) require the respondent to pay to the Board a fine not exceeding $5 000;

(i) impose conditions restricting the respondent's right to provide medical treatment;

(ii) suspend the respondent's registration on a specified register or in a specified specialty for a period not exceeding 1 month.

(7) If—

(a) a person has been found guilty of an offence; and

(b) the circumstances of the offence form, in whole or in part, the subject matter of the complaint,

the person is not liable to a fine under this section in respect of conduct giving rise to the offence.

(8) The Board may—

(a) fix a period within which a fine imposed under this section must be paid;

(b) on application by a person liable to pay a fine imposed under this section, extend the period within which the fine must be paid.

(9) A fine imposed under this section is recoverable by the Board as a debt.

(10) The Board may, without further notice, remove from the appropriate register a person who fails to pay a fine imposed under this section.

52—Variation or revocation of conditions imposed by Board

(1) The Board may, at any time, on application by a registered person, vary or revoke a condition imposed by the Board in relation to the person's registration under this Act.

(2) The Registrar, the Minister and representative bodies are entitled to appear and be heard on an application under this section.

53—Suspension of registration of non-residents

The Board may, on the application of the Registrar, by order, suspend until further order of the Board the registration of a medical practitioner if satisfied that he or she has not resided in Australia for the period of 12 months immediately preceding the application.

54—Constitution of Board for purpose of proceedings

(1) The Board will, for the purpose of hearing and determining proceedings under this Division, be constituted of 5 members selected by the presiding member (or, in the absence of the presiding member, the deputy presiding member), of whom—

(a) 3 will be members who are medical practitioners; and

(b) 2 will be members who are not medical practitioners.

(2) The presiding member of the Board (or, in the absence of the presiding member, the deputy presiding member) will appoint one of the members of the Board, as so constituted for the purposes of any particular proceedings, to preside over those proceedings.

(3) If a member of the Board as constituted under this section (other than the member presiding over the proceedings) dies or is for any other reason unable to continue with the proceedings, the Board constituted of the remaining members may, if the member presiding over the proceedings so determines, continue and complete the proceedings.

(4) The Board constituted of the member presiding over the proceedings may, sitting alone—

(a) deal with—

(i) preliminary, interlocutory or procedural matters; or

(ii) questions of costs; or

(iii) questions of law; or

(b) enter consent orders,

and may, for that purpose or as a consequence, while sitting alone, make any determination or order (including a final order) that the member considers appropriate.

(5) Any questions of law or procedure arising before the Board will be determined by the member presiding over the proceedings and any other questions by unanimous or majority decision of the members.

55—Provisions as to proceedings before Board

(1) Subject to this Act, the Board must give to all of the parties to proceedings before the Board under this Division at least 14 days' written notice of the time and place at which it intends to conduct the proceedings, and must afford to the parties a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses, and to make submissions to the Board.

(2) However—

(a) the Board may, if it thinks special reasons exist for doing so, give a lesser period of written notice under subsection (1); and

(b) the Board may, if of the opinion that it is necessary to do so to protect the health and safety of the public, suspend the registration of the person the subject of the proceedings pending hearing and determination of the proceedings.

(3) The requirement to give written notice under subsection (1) does not extend to adjournments.

(4) If a party to whom notice has been given under subsection (1) does not attend at the time and place fixed by the notice, the Board may proceed to hear and determine the matter in the absence of that party.

(5) A person who is aggrieved by the conduct of a person that is the subject-matter of proceedings before the Board under this Division is, subject to any direction of the Board to the contrary, entitled to be present at the hearing of the proceedings.

(6) In the course of proceedings before the Board under this Division, the Board may—

(a) receive in evidence a transcript of evidence taken in proceedings before a court, tribunal or other body constituted under the law of South Australia or of any other State or Territory of Australia or of another country, and draw any conclusions of fact from the evidence that it considers proper;

(b) adopt, as in its discretion it considers proper, any findings, decision, judgment, or reasons for judgment, of any such court, tribunal or body that may be relevant to the proceedings.

(7) The Board should conduct proceedings under this Division as expeditiously as possible.

Division 4—Proceedings before Tribunal

56—Constitution of Tribunal for purpose of proceedings

(1) The Tribunal will, for the purpose of hearing and determining proceedings, be constituted of—

(a) the President or a Judge of the District Court nominated by the President to preside over the proceedings; and

(b) 2 members of the Tribunal who are medical practitioners; and

(2) The members of the Tribunal referred to in subsection (1)(b) and (c) will, for the purposes of any particular proceedings, be selected by the person presiding over the proceedings.

(3) The Tribunal, separately constituted in accordance with this section, may sit simultaneously for the purpose of hearing and determining separate proceedings.

(4) If a member of the Tribunal as constituted under this section (other than the person presiding over the proceedings) dies or is for any other reason unable to continue with the proceedings before the Tribunal, the Tribunal constituted of the remaining members may, if the person presiding over the proceedings so determines, continue and complete the proceedings.

(5) The Tribunal constituted of the person presiding over the proceedings may, sitting alone—

(a) deal with—

(i) preliminary, interlocutory or procedural matters; or

(ii) questions of costs; or

(iii) questions of law; or

(b) enter consent orders,

and may, for that purpose or as a consequence, while sitting alone, make any determination or order (including a final order) that the person considers appropriate.

(6) Any questions of law or procedure arising before the Tribunal will be determined by the person presiding over the proceedings and any other questions by unanimous or majority decision of the members (unless there is an equal division of opinion, in which case, the decision of the person presiding over the proceedings will be the decision of the Tribunal).

57—Inquiries by Tribunal as to matters constituting grounds for disciplinary action

(1) If the Board lays before the Tribunal a complaint setting out matters that are alleged to constitute grounds for disciplinary action against a person, the Tribunal must, unless it considers the complaint frivolous or vexatious, inquire into the subject matter of the complaint.

(2) If, after conducting an inquiry under this section, the Tribunal is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the respondent, the Tribunal may, by order, do one or more of the following:

(a) censure the respondent;

(b) require the respondent to pay to the Board a fine not exceeding $20 000;

(i) impose conditions restricting the respondent's right to provide medical treatment;

(ii) suspend the respondent's registration on a specified register or in a specified specialty for a period not exceeding 1 year;

(iii) cancel the respondent's registration on a specified register or in a specified specialty;

(iv) disqualify the respondent from being registered on a specified register or in a specified specialty;

(d) prohibit the respondent from carrying on business as a medical services provider;

(e) prohibit the respondent from occupying a position of authority in a corporate or trustee medical services provider.

(3) The Tribunal may—

(a) stipulate that a disqualification or prohibition under subsection (2) is to apply—

(i) permanently; or

(ii) for a specified period; or

(iii) until the fulfilment of specified conditions; or

(iv) until further order;

(b) stipulate that an order relating to a person is to have effect at a specified future time and impose conditions as to the conduct of the person or the person's business until that time.

(4) If—

(a) a person has been found guilty of an offence; and

(b) the circumstances of the offence form, in whole or in part, the subject matter of the complaint,

the person is not liable to a fine under this section in respect of conduct giving rise to the offence.

(5) A fine imposed under subsection (2) is recoverable by the Board as a debt.

(6) The Board may, without further notice, remove from the appropriate register a person who fails to pay a fine imposed under this section.

58—Variation or revocation of conditions imposed by Tribunal

(1) The Tribunal may, at any time, on application by a registered person, vary or revoke a condition imposed by the Tribunal in relation to the person's registration under this Act.

(2) The Board is entitled to appear and be heard on an application under this section.

59—Provisions as to proceedings before Tribunal

(1) Subject to this Act, the Tribunal must give to all of the parties to proceedings before the Tribunal at least 14 days' written notice of the time and place at which it intends to conduct the proceedings, and must afford to the parties a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses, and to make submissions to the Tribunal.

(2) However—

(a) the Tribunal may, if it thinks special reasons exist for doing so, give a lesser period of written notice under subsection (1); and

(b) the Tribunal may, if of the opinion that it is necessary to do so to protect the health and safety of the public, suspend the registration of the person the subject of the proceedings pending hearing and determination of the proceedings.

(3) The requirement to give written notice under subsection (1) does not extend to adjournments.

(4) If a party to whom notice has been given under subsection (1) does not attend at the time and place fixed by the notice, the Tribunal may proceed to hear and determine the matter in the absence of that party.

(5) A party to proceedings before the Tribunal is entitled to be represented at the proceedings.

(6) The Tribunal—

(a) is not bound by the rules of evidence and may inform itself on any matter as it thinks fit; and

(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

(7) Subject to this Act, the procedure at an inquiry will be as determined by the Tribunal.

60—Powers of Tribunal

(1) For the purposes of an inquiry under this Division, the Tribunal may—

(a) by summons signed on behalf of the Tribunal by a member of the Tribunal or the Registrar, require the attendance before the Tribunal of any person whom the Tribunal thinks fit to call before it; or

(b) by summons signed on behalf of the Tribunal by a member of the Tribunal or the Registrar, require the production of any relevant documents, records or equipment and, in the case of a document or record that is not in the English language, require the production of a written statement in the English language of the contents of the document or record; or

(c) inspect any documents, records or equipment produced before it, and retain them for such reasonable period as it thinks fit, and make copies of the documents or records or their contents; or

(d) require any person to make an oath or affirmation (which may be administered by any member of the Tribunal) to answer truthfully questions put by any member of the Tribunal or any person appearing before the Tribunal; or

(e) require any person appearing before the Tribunal (whether summoned to appear or not) to answer any questions put by any member of the Tribunal or by any person appearing before the Tribunal.

(2) A person who—

(a) fails without reasonable excuse to comply with a summons issued to attend, or to produce documents, records or equipment, before the Tribunal; or

(c) misbehaves before the Tribunal, wilfully insults the Tribunal or one or more of the members in the exercise of the member's official duties, or interrupts the proceedings of the Tribunal; or

(d) refuses to be sworn or to affirm, or refuses or fails to answer truthfully a relevant question when required to do so by the Tribunal,

is guilty of an offence.

Maximum penalty: $10 000 or imprisonment for 6 months.

(3) A person who appears as a witness before the Tribunal has the same protection as a witness in proceedings before the Supreme Court.

(4) If a person summoned under subsection (1) fails to produce any books or equipment or to appear before the Tribunal as required by the summons or, having appeared, refuses to be sworn or to affirm, or to answer a relevant question when required to do so by the Tribunal, a certificate of the failure or refusal, signed by a member of the Tribunal or by the Registrar, may be filed in the Supreme Court.

(5) If a certificate has been filed under subsection (4), a party requiring the production of books or equipment or the appearance of a person before the Tribunal may apply (either ex parte or on notice) to the Supreme Court for an order directing the production of the books or equipment or that person attend, or be sworn or affirm, or answer questions (as the case may require) and on that application the Court may make such orders as it thinks fit (including orders for costs).

(6) In the course of an inquiry under this Division, the Tribunal may—

(b) adopt, as in its discretion it considers proper, any findings, decision, judgment, or reasons for judgment, of any such court, tribunal or body that may be relevant to the proceedings.

61—Costs

(1) The Tribunal may award costs (to be fixed by the Tribunal or taxed by a Master of the District Court) against a party to proceedings before the Tribunal as it thinks fit.

(2) Costs awarded by the Tribunal under this section may be recovered as a debt.

62—Contravention of prohibition order

(1) If a person carries on business as a medical services provider in contravention of an order of the Tribunal, the person is guilty of an offence.

Maximum penalty: $75 000 or imprisonment for 6 months.

(2) If a person occupies a position of authority in a corporate or trustee medical services provider in contravention of an order of the Tribunal, the person and the provider are each guilty of an offence.

Maximum penalty: $75 000 or imprisonment for 6 months.

(3) If a person contravenes or fails to comply with a condition imposed by the Tribunal as to the conduct of the person or the person's business, the person is guilty of an offence.

Maximum penalty: $75 000 or imprisonment for 6 months.

63—Register of prohibition orders

(1) The Registrar must keep a register of persons who have been prohibited by order of the Tribunal under this Part from carrying on business as a medical services provider or occupying a position of authority in a corporate or trustee medical services provider.

(2) The register—

(a) must not include any person who is dead;

(b) must include, in relation to each person on the register—

(i) the person's full name and business address; and

(ii) particulars of the order.

(3) The Registrar is responsible to the Tribunal for the form and maintenance of the register.

(4) The Registrar must correct an entry in the register that is not, or has ceased to be, correct.

(5) The register must be kept available for inspection by any person during ordinary office hours at the office of the Registrar and the register may be made available to the public by electronic means.

(6) A person may, on payment of the prescribed fee, obtain a copy of any part of the register.

(7) In legal proceedings, a document apparently certified by the Registrar to be a copy of the register must be accepted as such in the absence of proof to the contrary.

64—Power of Tribunal to make rules

The Tribunal constituted of the President and two other members selected by the President may make rules—

(a) regulating the practice and procedure of the Tribunal; or

(b) making any other provision that is necessary or expedient for carrying into effect the provisions of this Part relating to the Tribunal.

Part 7—Miscellaneous

68—Interpretation

In this Part—

health product means—

(a) a pharmaceutical product; or

(b) any other product declared by the regulations to be a health product for the purposes of this Part;

health service means—

(a) hospital, nursing home or aged care facility services; or

(b) medical, dental or pharmaceutical services; or

(d) any other service declared by the regulations to be a health service for the purposes of this Part;

prescribed relative, in relation to a medical practitioner, means a parent, spouse, child, grandchild, brother or sister of the medical practitioner;

putative spouse, in relation to a medical practitioner, means a person who is cohabiting with the medical practitioner as the husband or wife de facto of the medical practitioner and—

(a) who has so cohabited continuously over the last preceding period of 5 years, or for periods aggregating five years over the last preceding period of 6 years; or

(b) who has had sexual relations with the medical practitioner resulting in the birth of a child;

spouse includes a putative spouse.

69—Offence to contravene conditions of registration

A person who contravenes, or fails to comply with, a condition imposed under this Act on the person's registration is guilty of an offence.

Maximum penalty: $75 000 or imprisonment for 6 months.

70—Offence to practise medicine while deregistered

(1) If a person who has been removed from a register under this Act and not been reinstated provides medical treatment for fee or reward, the person is guilty of an offence.

Maximum penalty: $75 000 or imprisonment for 6 months.

(2) This section does not apply in relation to a person who is the subject of an exemption under section 44 and who provides medical treatment in accordance with the exemption.

71—Medical practitioner etc must declare interest in prescribed business

(1) A medical practitioner or prescribed relative of a medical practitioner who has an interest in a prescribed business must—

(a) in the case of an interest that came into existence before the commencement of this section—within 1 month after the commencement of this section; or

(b) in any other case—within 1 month after the interest comes into existence,

give to the Board prescribed information relating to the interest and the manner in which it arose.

Maximum penalty: $20 000.

(2) A medical practitioner or prescribed relative of a medical practitioner who has an interest in a prescribed business must, within 1 month after a change in the nature or extent of the interest, give to the Board prescribed information relating to the change.

Maximum penalty: $20 000.

(3) If a medical practitioner or prescribed relative of a medical practitioner has an interest in a prescribed business, the medical practitioner must not—

(a) refer a patient to, or recommend that a patient use, a health service provided by that business; or

(b) prescribe, or recommend that a patient use, a health product manufactured, sold or supplied by that business,

unless the medical practitioner has informed the patient, in writing, of the interest of the practitioner or prescribed relative of the practitioner in that business.

Maximum penalty: $20 000.

(4) Subject to subsection (5), a person has an interest in a prescribed business for the purposes of this section if the person is likely to derive a financial benefit, whether directly or indirectly, from the profitable conduct of the business.

(5) For the purposes of subsection (4)—

(a) a financial benefit is not derived by a medical practitioner if the benefit consists solely of reasonable fees payable to the medical practitioner for treatment provided to patients by the practitioner; and

(b) a person does not have an interest in a prescribed business that is carried on by a public company if the interest consists only of a shareholding in the company of less than 5 per cent of the issued share capital of the company.

(6) It is a defence to proceedings for an offence against subsection (3) and to a charge of unprofessional conduct for failure to comply with that subsection for the defendant to prove that he or she did not know and could not reasonably have been expected to know that a prescribed relative had an interest in the prescribed business to which the referral, recommendation or prescription that is the subject of the proceedings relates.

(7) In this section—

prescribed business means a business consisting of or involving—

(a) the provision of a health service; or

(b) the manufacture, sale or supply of a health product.

72—Offence to give, offer or accept benefit for referral or recommendation

(1) A person must not give, or offer to give, a medical practitioner or a prescribed relative of a medical practitioner a benefit as an inducement, consideration or reward for the medical practitioner—

(a) referring a patient to, or recommending that a patient use, a health service provided by the person; or

(b) prescribing, or recommending that a patient use, a health product manufactured, sold or supplied by the person.

Maximum penalty: $75 000.

(2) A medical practitioner or a prescribed relative of a medical practitioner must not accept from any person a benefit offered or given as an inducement, consideration or reward for the medical practitioner—

(a) referring a patient to, or recommending that a patient use, a health service provided by that person; or

(b) prescribing, or recommending that a patient use, a health product manufactured, sold or supplied by that person.

Maximum penalty: $75 000.

(3) In this section—

benefit means money, property or anything else of value.

73—Improper directions to medical practitioners or medical students

(1) If a person who provides medical treatment through the instrumentality of a medical practitioner or medical student directs or pressures the practitioner or student to engage in unprofessional conduct, the person is guilty of an offence.

Maximum penalty: $75 000.

(2) If a person who occupies a position of authority in a corporate or trustee medical services provider directs or pressures a medical practitioner or medical student through whom the provider provides medical treatment to engage in unprofessional conduct, the person and the provider are each guilty of an offence.

Maximum penalty: $75 000.

74—Procurement of registration by fraud

A person who, by fraud or any other dishonest means, procures registration or reinstatement of registration under this Act (whether for himself or herself or for another person) is guilty of an offence.

Maximum penalty: $20 000 or imprisonment for 6 months.

75—Statutory declarations

If a person is required under this Act to furnish information to the Board, the Board may require that the information be verified by statutory declaration and, in that event, the person will not be taken to have furnished the information as required unless it has been verified in accordance with the requirements of the Board.

76—False or misleading statement

A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided under this Act.

Maximum penalty: $20 000.

77—Medical practitioner or medical student must report his or her medical unfitness to Board

If a medical practitioner or medical student becomes aware that he or she is or may be medically unfit to provide medical treatment, the practitioner or student must forthwith give written notice of that fact to the Board.

Maximum penalty: $10 000.

78—Medical School must report cessation of student's enrolment

The Dean (or acting Dean) of a Medical School in the State accredited by the Australian Medical Council must, if a medical student ceases to be enrolled in an undergraduate course, or prescribed postgraduate course, of medical study at the School, cause written notice of that fact to be given to the Board.

Maximum penalty: $5 000.

79—Registered persons and medical services providers to be indemnified against loss

(1) A registered person or medical services provider must not, unless exempted by the Board, provide medical treatment unless insured or indemnified in a manner and to an extent approved by the Board against civil liabilities that might be incurred by the registered person or medical services provider, as the case may be, in connection with the provision of any such treatment.

Maximum penalty: $10 000.

(2) The Board may, subject to such conditions as it thinks fit, exempt a person, or a class of persons, from the requirements of this section and may, whenever it thinks fit, revoke an exemption or revoke or vary the conditions under which an exemption operates.

80—Information relating to claim against registered person to be provided

If a person has claimed damages or other compensation from a registered person or other person for alleged negligence committed by the registered person in the course of providing medical treatment, the registered person must—

(a) within 30 days after the claim is made; and

(b) within 30 days after any order is made by a court to pay damages or other compensation in respect of that claim or any agreement has been entered into for payment of a sum of money in settlement of that claim (whether with or without a denial of liability),

provide the Board with prescribed information relating to the claim.

Maximum penalty: $10 000.

81—Victimisation

(1) A person commits an act of victimisation against another person (the victim) if he or she causes detriment to the victim on the ground, or substantially on the ground, that the victim—

(a) has disclosed or intends to disclose information; or

(b) has made or intends to make an allegation,

that has given rise, or could give rise, to proceedings against the person under this Act.

(2) An act of victimisation under this Act may be dealt with—

(a) as a tort; or

(b) as if it were an act of victimisation under the Equal Opportunity Act 1984,

but, if the victim commences proceedings in a court seeking a remedy in tort, he or she cannot subsequently lodge a complaint under the Equal Opportunity Act 1984 and, conversely, if the victim lodges a complaint under that Act, he or she cannot subsequently commence proceedings in a court seeking a remedy in tort.

(3) Where a complaint alleging an act of victimisation under this Act has been lodged with the Commissioner for Equal Opportunity and the Commissioner is of the opinion that the subject matter of the complaint has already been adequately dealt with by a competent authority, the Commissioner may decline to act on the complaint or to proceed further with action on the complaint.

(4) In this section—

detriment includes—

(a) injury, damage or loss; or

(b) intimidation or harassment; or

(d) threats of reprisal.

82—Self-incrimination

If a person is required to provide information or to produce a document, record or equipment under this Act and the information, document, record or equipment would tend to incriminate the person or make the person liable to a penalty, the person must nevertheless provide the information or produce the document, record or equipment, but the information, document, record or equipment so provided or produced will not be admissible in evidence against the person in proceedings for an offence, other than an offence against this or any other Act relating to the provision of false or misleading information.

83—Punishment of conduct that constitutes an offence

If conduct constitutes an offence and is also a ground for disciplinary action under this Act, the taking of disciplinary action under this Act is not a bar to conviction and punishment for the offence, nor is conviction and punishment for the offence a bar to disciplinary action under this Act.

84—Vicarious liability for offences

If a corporate or trustee medical services provider or other body corporate is guilty of an offence against this Act, each person occupying a position of authority in the provider or body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless it is proved that the person could not, by the exercise of reasonable care, have prevented the commission of the principal offence.

85—Application of fines

A fine imposed for an offence against this Act must be paid to the Board.

86—Board may require medical examination or report

(1) The Board may, for any purpose associated with the administration or operation of this Act, require a medical practitioner or medical student, or a person who is applying for registration or reinstatement of registration to—

(a) submit to an examination by a health professional, or by a health professional of a class, specified by the Board; or

(b) provide a medical report from a health professional, or from a health professional of a class, specified by the Board,

(including an examination or report that will require the person to undergo some form of medically invasive procedure).

(2) If a person fails to comply with a requirement made under subsection (1), the Board may suspend the person's registration until further order of the Board.

(3) In this section—

health professional means—

(a) a medical practitioner; or

(b) a psychologist; or

(c) any other person who belongs to a profession, or who has an occupation, declared by the Board, by notice in the Gazette, to be a profession or occupation within the ambit of this definition.

87—Ministerial review of decisions relating to courses

(1) If the Board—

(a) refuses to approve a course of education or training for the purposes of this Act; or

(b) revokes an approval of a course of education or training under this Act,

the provider of the course may apply to the Minister for a review of that decision.

(2) The Minister may determine the application as the Minister thinks fit and, if the Minister finds in favour of the applicant, grant or preserve the approval (as appropriate).

88—Confidentiality

(1) A person engaged or formerly engaged in the administration of this Act or the repealed Act must not divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except—

(a) as required or authorised by or under this Act or any other Act or law; or

(b) with the consent of the person to whom the information relates; or

(d) to an authority responsible under the law of a place outside this State for the registration or licensing of persons who provide medical treatment, where the information is required for the proper administration of that law; or

(e) to an agency or instrumentality of this State, the Commonwealth or another State or a Territory of the Commonwealth for the purposes of the proper performance of its functions.

Maximum penalty: $10 000.

(2) Subsection (1) does not prevent disclosure of statistical or other data that could not reasonably be expected to lead to the identification of any person to whom it relates.

(3) Information that has been disclosed under subsection (1) for a particular purpose must not be used for any other purpose by—

(a) the person to whom the information was disclosed; or

(b) any other person who gains access to the information (whether properly or improperly and whether directly or indirectly) as a result of that disclosure.

Maximum penalty: $10 000.

89—Service

(1) A notice or document required or authorised to be given or sent to, or served on, a person for the purposes of this Act may—

(a) be given to the person personally; or

(b) be posted in an envelope addressed to the person at the person's last known residential, business or (in the case of a corporation) registered address; or

(c) be left for the person at the person's last known residential, business or (in the case of a corporation) registered address with someone apparently over the age of 16 years; or

(d) be transmitted by facsimile transmission or electronic mail to a facsimile number or electronic mail address provided by the person (in which case the notice or document will be taken to have been given or served at the time of transmission).

(2) Without limiting the effect of subsection (1), a notice or other document required or authorised to be given or sent to, or served on, a person for the purposes of this Act may, if the person is a company or registered body within the meaning of the Corporations Act 2001 of the Commonwealth, be served on the person in accordance with that Act.

90—Evidentiary provision

(1) In proceedings for an offence against this Act or in disciplinary proceedings under Part 5, an allegation in the complaint—

(a) that a person named in the complaint is or is not, or was or was not on a specified date, a qualified person;

(b) that a person named in the complaint is or is not, or was or was not on a specified date, registered on the medical student register, the general register, the specialist register or in a specified specialty;

(c) that the registration of a person named in the complaint is, or was on a specified date, subject to specified conditions;

(d) that a person named in the complaint is, or was on a specified date, a medical services provider;

(e) that a person named in the complaint is, or was on a specified date, occupying a position of authority in a corporate or trustee medical services provider;

(f) that a person named in the complaint is, or was on a specified date, an inspector,

must be accepted as proved in the absence of proof to the contrary.

(2) In legal proceedings, a document apparently certified by the Registrar to be a copy of a register under this Act, or a copy of a code of conduct or professional standard prepared or endorsed by the Board under this Act, must be accepted as such in the absence of proof to the contrary.

91—Regulations

(1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act.

(2) Without limiting the generality of subsection (1), the regulations may—

(a) prescribe, or empower the Board to fix—

(i) fees or charges for the purposes of this Act;

(ii) fees or charges for services provided by the Board in the exercise of its functions under this Act,

and may provide for the recovery of a fee or charge so prescribed;

(b) exempt any person or class of persons from the obligation to pay a fee or charge so prescribed;

(c) regulate, or otherwise make provision with respect to, the education of medical practitioners for the purposes of this Act, including by making provision with respect to the approval of courses that may lead to registration;

(d) make any provision with respect to the keeping of a register;

(e) prescribe penalties, not exceeding $5 000, for breach of, or non-compliance, with a regulation.

(3) The regulations may—

(a) refer to or incorporate, wholly or partially and with or without modification, a code, standard or other document prepared or published by a prescribed body, either as in force at the time the regulations are made or as in force from time to time; and

(b) be of general or limited application; and

(d) provide that a specified provision of this Act does not apply, or applies with prescribed variations, to any person, circumstance or situation (or person, circumstance or situation of a prescribed class) specified by the regulations, subject to any condition to which the regulations are expressed to be subject; and

(e) provide that any matter or thing is to be determined, dispensed with, regulated or prohibited according to the discretion of the Minister, the Board or another prescribed authority.

(4) If a code, standard or other document is referred to or incorporated in the regulations—

(a) a copy of the code, standard or other document must be kept available for public inspection, without charge and during normal office hours, at an office or offices specified in the regulations; and

(b) evidence of the contents of the code, standard or other document may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code, standard or other document.

South Australian Bills

MEDICAL PRACTICE BILL 2004