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TASMANIA
__________
MEDICAL PRACTITIONERS
REGISTRATION AMENDMENT BILL 2004
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 5 amended (Continuation of Council)
6. Section 6 amended (Membership of Council)
7. Section 7 amended (Functions of Council)
8. Section 8 amended (Powers of Council)
9. Section 10 substituted
10. Delegation
10. Section 11 substituted
11. Committees
11. Section 14 amended (Protection from liability)
12. Section 16 amended (Audit)
13. Section 17 amended (Accounts)
14. Section 18 amended (Annual report)
15. Section 19 substituted
19. General registration
[Bill 17]-III
16. Section 20 amended (Conditional registration to undergo
supervised training, &c.)
17. Section 21 amended (Conditional registration for special
purposes)
18. Section 22 substituted
22. Non-practising registration
19. Section 23 amended (Application requirements)
20. Section 24 amended (Entitlement to registration)
21. Section 25 amended (Interim registration)
22. Section 26 substituted
26. Assessment of entitlement
23. Section 27 amended (Recommendation of assessment
committee)
24. Section 28 amended (Determination of application)
25. Section 29 amended (Special grounds for refusing to
grant registration)
26. Section 30 substituted
30. Duration of registration
27. Section 31 amended (Certificates of registration)
28. Section 33 amended (Register)
29. Section 34 amended (Correction of register)
30. Section 35 amended (Additional particulars and
qualifications)
31. Section 36 amended (Inspection of register)
32. Section 37 amended (Publication of register, &c.)
33. Section 38 amended (Protection of private information)
34. Section 39 amended (Annual registration fees)
35. Section 39A inserted
39A. Adding conditions
36. Section 40 amended (Removal from register)
37. Section 42 substituted
42. Restoring name to register
38. Section 43 amended (Evidentiary provisions)
2
39. Part 3, Division 5 inserted
Division 5 - Review of registration conditions
43A. Review of registration conditions
40. Part 4: Heading amended
41. Part 4, Division 1: Heading amended
42. Section 44 substituted
44. Making complaints
43. Section 45 amended (Specific matters of complaint)
44. Section 46 amended (Complaints procedure)
45. Sections 47, 48 and 49 substituted
Division 1A - Dealing with complaints
Subdivision 1 - Complaints to which Division applies
47. Application of Division
Subdivision 2 - Preliminary investigation of complaints
48. Complaint to be referred to investigator
48A. Council may refer other matters to investigator
48B. Investigator to report and make recommendation
Subdivision 3 - Action to be taken following preliminary
investigation
49. Council to consider and act on investigator's
report
49A. Dismissal of complaint
49B. No disciplinary action to be initiated on
complaint
49C. Referral of complaint to Health Complaints
Commissioner
49D. Informal inquiry into complaint
49E. Formal inquiry into complaint
46. Section 50 amended (Establishment and constitution of
Tribunal, &c.)
47. Section 50A inserted
50A. Alternate permanent members
48. Section 51 substituted
51. Tribunal to hold formal inquiry into referred
complaint
49. Part 4, Division 3: Heading amended
3
50. Section 52 amended (Actions that may be taken by
Tribunal)
51. Section 53 amended (Costs and expenses of formal
inquiry)
52. Section 54 amended (Notice of decision)
53. Section 55 amended (Suspension of registration)
54. Sections 57 and 58 substituted
57. Evidence of facts found in other proceedings
58. Inspectors
58A. Role of inspectors
55. Section 59 amended (Power of inspectors)
56. Section 60 amended (Specific inspectorial powers)
57. Section 60A inserted
60A. Complaints may be dealt with despite other
proceedings
58. Section 61 amended (Right of appeal)
59. Section 62 substituted
62. Hearing of appeal
60. Part 6, Division 1: Heading amended
61. Section 65 amended (Unauthorised use of certain titles)
62. Section 66 repealed
63. Section 68 amended (Failure to notify Council of civil
claims)
64. Section 69 amended (Improper disposal of medical
records)
65. Section 70 substituted
70. Improper directions and inducements
66. Part 6, Division 3: Heading amended
67. Section 71 amended (Offences of dishonesty)
68. Section 73 substituted
73. Offences relating to formal inquiries, &c.
73A. Compellability of witnesses in formal inquiries
69. Section 74 amended (Failure to comply with orders)
4
70. Sections 75 and 76 substituted
75. Medical practitioners' notices relating to fitness
to practise
76. Provision of information by medical services
providers
71. Section 77 substituted
77. Service of documents
72. Section 78 amended (Council seal)
73. Section 79 amended (Presumptions)
74. Section 80 amended (Appropriation of fees, penalties and
fines)
75. Section 81 amended (No right of recovery by unregistered
person, &c.)
76. Section 82 amended (Punishment of conduct constituting
an offence)
77. Section 84 amended (Act does not prohibit certain
practices)
78. Section 85 amended (Regulations)
79. Section 85A inserted
85A. Professional indemnity insurance guidelines
80. Sections 88, 89 and 90 repealed
81. Schedule 1 amended (Provisions with respect to
membership of Council)
82. Schedule 2 amended (Provisions with respect to meetings
of Council)
83. Schedule 3 substituted
Schedule 3 - Powers and procedures of assessment
committees and investigators
84. Schedule 4 amended (Provisions with respect to
membership of Tribunal)
85. Schedule 5 substituted
Schedule 5 - Provision with respect to powers and
procedures of Tribunal
86. Schedule 6 amended (Provisions with respect to
inspection warrants)
5
87. Schedules 8 and 9 repealed
88. Transitional provisions
Schedule 1 - Transitional provisions
6
MEDICAL PRACTITIONERS
REGISTRATION AMENDMENT BILL 2004
(Brought in by the Minister for Health and Human
Services, the Honourable David Edward Llewellyn)
A BILL FOR
An Act to amend the Medical Practitioners
Registration Act 1996 and to provide for
consequential transitional matters
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Medical Practitioners
Registration Amendment Act 2004.
Commencement
2. This Act commences on a day to be proclaimed.
[Bill 17] 7
s. 3 No. Medical Practitioners Registration 2004
Amendment
Principal Act
3. In this Act, the Medical Practitioners Registration Act
1996* is referred to as the Principal Act.
Section 3 amended (Interpretation)
4. Section 3 of the Principal Act is amended as follows:
(a) by omitting the definitions of "assessment",
"Australian Medical Council" and "business
address" from subsection (1) and substituting
the following definitions:
"AMC" means the body incorporated in
the Australian Capital Territory
under the name "Australian
Medical Council Incorporated";
"assessment" means an assessment
carried out by an assessment
committee;
"assessment committee" means a
committee established under
section 11(1)(a);
"business address" means the address
that a medical practitioner uses
for the purposes of his or her
practice;
(b) by omitting "section 31 or 39" from the
definition of "certificate of registration" in
subsection (1) and substituting "section 31, 39
or 42";
*No. 2 of 1996
8
2004 Medical Practitioners Registration No. s. 4
Amendment
(c) by omitting the definitions of "committee of
assessors" and "complaint" from subsection (1)
and substituting the following definitions:
"complaint" includes part of a
complaint;
"contact address" means an address,
other than a business address, at
which a medical practitioner may
be contacted by the Council;
(d) by omitting the definition of "defendant" from
subsection (1) and substituting the following
definition:
"defendant" means the registered
medical practitioner, or former
registered medical practitioner,
who is the subject of a formal
inquiry;
(e) by inserting the following definition after the
definition of "foreign medical law" in
subsection (1):
"formal inquiry" means proceedings
under Division 2 of Part 4;
(f) by inserting the following definitions after the
definition of "functions" in subsection (1):
"Health Complaints Commissioner"
means the person for the time
being holding or acting in the
appointment referred to in section
5 of the Health Complaints Act
1995;
9
s. 4 No. Medical Practitioners Registration 2004
Amendment
"informal inquiry" means proceedings
under section 49D;
(g) by omitting the definition of "inquiry" from
subsection (1) and substituting the following
definition:
"inspection" means an inspection
carried out by a person holding an
appointment under section 58;
(h) by inserting the following definitions after the
definition of "interim certificate of
registration" in subsection (1):
"investigation" means an investigation
into a complaint carried out under
Subdivision 2 of Division 1A of
Part 4;
"investigator" means a person or
committee appointed by the
Council to carry out an
investigation;
(i) by inserting ", or of New Zealand," after
"Commonwealth" in the definition of "medical
registration authority" in subsection (1);
(j) by inserting the following definition after the
definition of "medical registration authority"
in subsection (1):
"medical services provider" means a
partnership, corporation or other
entity that provides medical
services or causes or allows
medical services to be provided in
its name or on its behalf;
10
2004 Medical Practitioners Registration No. s. 5
Amendment
(k) by omitting the definition of "medical services
company" from subsection (1);
(l) by inserting the following definition after the
definition of "member" in subsection (1):
"nominal removal" means making an
entry in the register about an
unregistered person to the effect
that if the person's name had in
fact been in the register at the
relevant time it would have been
removed;
(m) by inserting the following definition after the
definition of "President" in subsection (1):
"professional premises" means the
place at or from which a medical
practitioner practises, whether it
be -
(a) a building; or
(b) a tent or other demountable
structure; or
(c) a car, caravan or other
vehicle;
(n) by omitting subsection (2).
Section 5 amended (Continuation of Council)
5. Section 5(1) of the Principal Act is amended by omitting
"and a common seal".
11
s. 6 No. Medical Practitioners Registration 2004
Amendment
Section 6 amended (Membership of Council)
6. Section 6 of the Principal Act is amended as follows:
(a) by omitting subsection (4);
(b) by inserting the following subsection after
subsection (6):
(7) Except as otherwise provided by this
Act, the Council may determine its own
procedure.
Section 7 amended (Functions of Council)
7. Section 7(c) of the Principal Act is amended by omitting
"for inquiry".
Section 8 amended (Powers of Council)
8. Section 8 of the Principal Act is amended as follows:
(a) by omitting from paragraph (a) "Australian
Medical Council" and substituting "AMC";
(b) by omitting paragraph (d) and substituting the
following paragraph:
(d) hold or arrange examinations; and
(c) by inserting the following paragraphs after
paragraph (e):
(ea) be a member of any national or
other body, program or forum
concerned with medical
practitioners; and
12
2004 Medical Practitioners Registration No. s. 9
Amendment
(eb) participate in the establishment of
a body, program or forum of the
kind referred to in paragraph (ea);
and
Section 10 substituted
9. Section 10 of the Principal Act is repealed and the
following section is substituted:
Delegation
10. (1) The Council may delegate any of its
functions or powers, other than this power of
delegation, to a member of the Council, the
Registrar or a committee.
(2) The Registrar may, with the Council's
approval, delegate any of the Registrar's functions or
powers to another employee of the Council.
Section 11 substituted
10. Section 11 of the Principal Act is repealed and the
following section is substituted:
Committees
11. (1) The Council may from time to time
establish -
(a) assessment committees to assess
whether a person is eligible or entitled
to be registered or to assess other
registration matters as provided for by
this Act; and
13
s. 11 No. Medical Practitioners Registration 2004
Amendment
(b) such other committees as the Council
considers expedient for the purpose of
assisting it in the performance of any of
its functions or the exercise of any of its
powers or advising it on any matter
relating to this Act.
(2) Assessment committees are to consist of 3
registered medical practitioners appointed by the
Council and other committees are to consist of such
persons as the Council appoints.
(3) A member of the Council may be a member
of any committee.
(4) A member of a committee is entitled to be
paid such remuneration, including travelling and
subsistence allowances, as the Council may from
time to time determine and any such remuneration
is to be paid by the Council.
(5) The Council may give a committee written
directions consistent with this Act and the
committee must comply with those directions.
(6) A committee is to keep accurate minutes of
its proceedings.
(7) Schedule 3 has effect in relation to the
powers and procedures of assessment committees.
(8) Except as otherwise provided in this Act, a
committee may determine its own procedure.
Section 14 amended (Protection from liability)
11. Section 14 of the Principal Act is amended by omitting
subsection (2).
14
2004 Medical Practitioners Registration No. s. 12
Amendment
Section 16 amended (Audit)
12. Section 16(2) of the Principal Act is amended by
omitting "must" and substituting "is to".
Section 17 amended (Accounts)
13. Section 17 of the Principal Act is amended by omitting
"must" and substituting "is to".
Section 18 amended (Annual report)
14. Section 18 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "must, not
later than 31 August after the end of each
financial year," and substituting ", not later
than 31 August after the end of each financial
year, is to";
(b) by omitting from subsection (6) "must" and
substituting "is to".
Section 19 substituted
15. Section 19 of the Principal Act is repealed and the
following section is substituted:
General registration
19. A person may apply to the Council to be
registered as a medical practitioner if he or she -
(a) has medical qualifications gained as a
graduate of an institution accredited by
the AMC or holds a certificate issued by
15
s. 16 No. Medical Practitioners Registration 2004
Amendment
the AMC in evidence that he or she has
passed the AMC's examinations; and
(b) has, to the Council's satisfaction,
completed the approved period of
supervised training.
Section 20 amended (Conditional registration to
undergo supervised training, &c.)
16. Section 20 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "training as an
intern." and substituting "supervised
training.";
(b) by omitting subsection (2) and substituting the
following subsection:
(2) A person may apply to the Council to
be registered as a medical practitioner on
appropriate conditions if he or she -
(a) has medical qualifications gained
as a graduate of an institution
accredited by the AMC or holds a
certificate issued by the AMC in
evidence that he or she has passed
the AMC's examinations; and
(b) is about to start the approved
period of supervised training.
16
2004 Medical Practitioners Registration No. s. 17
Amendment
Section 21 amended (Conditional registration for
special purposes)
17. Section 21(2) of the Principal Act is amended as
follows:
(a) by omitting "section 19 or 20" and substituting
"section 19";
(b) by omitting "subject to" and substituting "on";
(c) by omitting from paragraph (a) "Australian
Medical Council" and substituting "AMC";
(d) by omitting paragraph (b).
Section 22 substituted
18. Section 22 of the Principal Act is repealed and the
following section is substituted:
Non-practising registration
22. (1) If a person who is eligible to apply for
registration under this Division does not intend to
practise, he or she may apply to the Council for
registration that does not confer a right of practice
("non-practising registration").
(2) Non-practising registration, if granted, is
not capable of being converted to practising
registration.
(3) If a person who holds non-practising
registration subsequently wishes to practise -
(a) the person must apply for practising
registration in the same manner as
17
s. 19 No. Medical Practitioners Registration 2004
Amendment
someone who has never held registration
of any kind; but
(b) despite section 19, the person is eligible
to apply for the practising registration
even if the institution from which the
person gained his or her medical
qualifications is no longer, or has never
been, accredited by the AMC.
Section 23 amended (Application requirements)
19. Section 23 of the Principal Act is amended as follows:
(a) by omitting from subsection (1)(a) "a form
approved by the Council" and substituting "an
approved form";
(b) by omitting from subsection (1)(c) "prescribed"
second occurring;
(c) by omitting from subsection (3) "the payment
of all or part of the prescribed application fee
or prescribed annual registration fee." and
substituting "all or part of the fees.".
Section 24 amended (Entitlement to registration)
20. Section 24 of the Principal Act is amended as follows:
(a) by omitting from subsection (1)(a) "be so
registered" and substituting "make the
application";
(b) by inserting the following subsection after
subsection (1):
(1A) Despite subsection (1) -
18
2004 Medical Practitioners Registration No. s. 21
Amendment
(a) an entitlement to practising
registration does not prevent
conditions from being imposed on
that registration under this Act;
and
(b) the Council may determine that
an applicant is not entitled to
practising registration if, having
regard to any relevant Ministerial
guidelines, it is not satisfied that
the applicant will have adequate
professional indemnity insurance
on commencing to practise.
(c) by omitting from subsection (2) "subject to the
condition referred to in section 22" and
substituting "on the condition that he or she
does not practise";
(d) by omitting from subsection (2)(a) "be so
registered" and substituting "make the
application".
Section 25 amended (Interim registration)
21. Section 25 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "for practising
registration";
(b) by omitting from subsection (1)(a) "be
registered under section 19 or 21" and
substituting "make an application under
section 19, 21 or 22";
(c) by omitting paragraph (b) from subsection (1)
and substituting the following paragraph:
19
s. 21 No. Medical Practitioners Registration 2004
Amendment
(b) is eligible to make an application
under section 20 but has not yet
been formally awarded the
medical qualifications or, if
applicable, the certificate referred
to in that section.
(d) by omitting subsections (2) and (3) and
substituting the following subsections:
(2) The interim registration of an
applicant under section 19 may be granted
unconditionally or on such conditions as the
Registrar considers appropriate.
(3) The interim registration of an
applicant under section 20 or 21 is to be
granted subject to such conditions as the
Registrar considers appropriate.
(e) by omitting from subsection (4) "must" and
substituting "is to";
(f) by omitting from subsection (5) "The" and
substituting "Subject to subsection (5A), the";
(g) by inserting the following subsection after
subsection (5):
(5A) The Registrar is to ensure that an
interim certificate of registration issued to an
applicant under section 22 specifies that the
interim registration is non-practising.
(h) by omitting from subsection (6) "is in force
subject to" and substituting "continues in
force, on";
(i) by omitting subsections (7), (8), (9) and (10)
and substituting the following subsections:
20
2004 Medical Practitioners Registration No. s. 22
Amendment
(7) The Council may cancel a person's
interim registration for any reason it considers
sufficient.
(8) If the Council decides to cancel a
person's interim registration it is to give the
person notice of its decision and the reasons
for its decision.
(9) A person's interim registration
continues in force from the date on which it is
granted until the date on which the person is
given notice by the Council that it has -
(a) registered the person; or
(b) refused to register the person; or
(c) cancelled the interim registration.
Section 26 substituted
22. Section 26 of the Principal Act is repealed and the
following section is substituted:
Assessment of entitlement
26. (1) The Council may get an assessment
committee to assess an applicant's entitlement to
practising registration.
(2) If subsection (1) applies, the Registrar is to
give the applicant and the Secretary notice of -
(a) the reasons for holding the assessment;
and
(b) the date, time and place set for the
assessment.
21
s. 23 No. Medical Practitioners Registration 2004
Amendment
(3) A notice under subsection (2) is to be given
to the applicant at least 14 days before the date, or
first date, set for the assessment.
Section 27 amended (Recommendation of
assessment committee)
23. Section 27 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "a committee
of assessors must provide the Council with"
and substituting "an assessment committee is
to give the Council";
(b) by omitting from subsection (1)(a) "subject to"
and substituting "on";
(c) by omitting from subsection (1)(b)
"Committee" and substituting "committee";
(d) by omitting from subsection (1)(b) "subject to"
and substituting "on";
(e) by omitting from subsection (2) "a committee
of assessors must provide the Council with"
and substituting "an assessment committee is
to give the Council";
(f) by inserting the following subsection after
subsection (2):
(2A) If an assessment committee
considers that an applicant is not entitled to
be granted the practising registration that he
or she has applied for but may be entitled to
be granted practising registration of another
kind, the committee may include appropriate
recommendations to that effect in its report to
the Council.
22
2004 Medical Practitioners Registration No. s. 24
Amendment
Section 28 amended (Determination of application)
24. Section 28 of the Principal Act is amended as follows:
(a) by omitting from subsection (2) "subject to"
and substituting "on";
(b) by omitting from subsection (3) "subject to"
and substituting "on";
(c) by omitting from subsection (4) "subject to"
and substituting "on";
(d) by omitting from subsection (5) "must give
notice to the applicant of -" and substituting
"is to give the applicant notice of -";
(e) by omitting from subsection (5)(b) "conditions
that the registration is subject to" and
substituting "registration conditions";
(f) by inserting the following subsection after
subsection (6):
(6A) Notwithstanding section 24(1)(b),
the Council is not entitled to refuse practising
registration to an applicant by reason only
that the person suffers from some form of
physical or mental incapacity unless the
Council is satisfied on reasonable grounds that
it would not be possible for the incapacity to be
accommodated or managed, without
compromising patient care, by the imposition
of appropriate registration conditions.
(g) by omitting subsection (8) and substituting the
following subsections:
(8) If subsection (6) or (7) applies, the
Council is to -
23
s. 25 No. Medical Practitioners Registration 2004
Amendment
(a) give the applicant notice of the
refusal, the reasons for the refusal
and the applicant's right of appeal;
and
(b) refund the annual registration fee
that accompanied the application.
(9) For the purposes of this section,
where the relevant assessment committee has
made a recommendation under section 27(2A)
the Council may treat an applicant for one
kind of practising registration as being an
applicant for another kind of practising
registration.
(10) The Council's power under
subsection (9) is only exercisable if the
applicant consents.
Section 29 amended (Special grounds for refusing to
grant registration)
25. Section 29 of the Principal Act is amended as follows:
(a) by omitting from paragraph (c) "of the
applicant's habitual taking of intoxicating
liquors or harmful drugs." and substituting
"the applicant habitually misuses alcohol or
drugs; or";
(b) by inserting the following paragraph after
paragraph (c):
(d) in the case of an applicant who
has previously held such
registration but has not actively
practised in the 5-year period
24
2004 Medical Practitioners Registration No. s. 26
Amendment
preceding the making of the
application, the Council is not
satisfied that he or she still has
the appropriate level of skill and
knowledge.
Section 30 substituted
26. Section 30 of the Principal Act is repealed and the
following section is substituted:
Duration of registration
30. Except as otherwise provided by this Act,
registration continues in force indefinitely subject
only to the annual payment of fees under section 39.
Section 31 amended (Certificates of registration)
27. Section 31 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "must" and
substituting "is to";
(b) by omitting paragraph (b) from subsection (2)
and substituting the following paragraph:
(b) specify the conditions, if any, of
the registration.
(c) by omitting from subsection (3)(b) "subject to"
and substituting "on";
(d) by inserting in subsection (4) ", damaged" after
"lost".
25
s. 28 No. Medical Practitioners Registration 2004
Amendment
Section 33 amended (Register)
28. Section 33 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "must" and
substituting "is to";
(b) by omitting from subsection (2) "must" and
substituting "is to";
(c) by inserting in subsection (2)(b) "or contact"
after "business";
(d) by omitting from subsection (2)(e)
"registration;" and substituting "registration.";
(e) by omitting paragraph (f) from subsection (2);
(f) by omitting from subsection (3) "must" and
substituting "is to";
(g) by omitting from subsection (4) "must" and
substituting "is to";
(h) by omitting paragraph (c) from subsection (4)
and substituting the following paragraph:
(c) the conditions, if any, of a person's
registration and any modification
of those conditions;
(i) by inserting in subsection (4)(d) "or nominal
removal" after "removal";
(j) by inserting in subsection (4)(h) "or contact"
after "business";
(k) by omitting from subsection (6) "or business
address," and substituting ", business address
or contact address,".
26
2004 Medical Practitioners Registration No. s. 29
Amendment
Section 34 amended (Correction of register)
29. Section 34 of the Principal Act is amended as follows:
(a) by omitting from subsection (2) "an application
under subsection (1)." and substituting "the
application.";
(b) by omitting from subsection (3) "an applicant
under subsection (1)" and substituting "the
applicant".
Section 35 amended (Additional particulars and
qualifications)
30. Section 35 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "that are
related" and substituting "relating";
(b) by inserting the following subsection after
subsection (2):
(2A) The Council may waive all or part
of the fee.
(c) by omitting from subsection (5) "must" and
substituting "is to".
Section 36 amended (Inspection of register)
31. Section 36(3) of the Principal Act is amended by
omitting "the payment of all or part of the prescribed fee
for inspecting or obtaining a copy of or extract from the
register." and substituting "all or part of a fee.".
27
s. 32 No. Medical Practitioners Registration 2004
Amendment
Section 37 amended (Publication of register, &c.)
32. Section 37 of the Principal Act is amended as follows:
(a) by omitting from subsection (1)(b) "to which
the registration has been made subject; or"
and substituting "imposed on the registration
and any modification of those conditions; or";
(b) by omitting from subsection (3) "the payment
of all or part of the prescribed fee." and
substituting "all or part of the fee.".
Section 38 amended (Protection of private
information)
33. Section 38(c) of the Principal Act is amended by
omitting "Gazette." and substituting "Gazette without the
person's consent.".
Section 39 amended (Annual registration fees)
34. Section 39 of the Principal Act is amended as follows:
(a) by omitting subsections (3), (4) and (5) and
substituting the following subsections:
(3) A registered medical practitioner
who pays the prescribed annual registration
fee after but within 30 days of the due date
must pay a prescribed late fee.
(4) The Council may waive all or part of
the annual registration fee or late fee.
(5) Subject to subsections (7) and (8), the
Council is to issue a new certificate of
28
2004 Medical Practitioners Registration No. s. 34
Amendment
registration immediately to each registered
medical practitioner who, in any year -
(a) pays the prescribed annual
registration fee on or before the
due date; or
(b) pays the prescribed annual
registration fee and late fee after
but within 30 days of the due date.
(b) by omitting paragraph (a) from subsection (7)
and substituting the following paragraph:
(a) in the case of a medical
practitioner who holds practising
registration -
(i) the Council is not satisfied
that the medical practitioner
complies with the
requirements specified in
section 24(1)(b), (c) and (e);
or
(ii) the Council, having regard
to any relevant Ministerial
guidelines, is not satisfied
that the medical practitioner
has adequate professional
indemnity insurance; or
(c) by omitting from subsection (7)(b) "of section
24(2)" and substituting "specified in
section 24(2)(b) and (c)";
(d) by omitting subsections (8) and (9) and
substituting the following subsections:
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s. 34 No. Medical Practitioners Registration 2004
Amendment
(8) The Council must not issue a new
certificate of registration to a medical
practitioner who holds practising registration
but has not actively practised in the 5-year
period immediately preceding the due date
unless it is satisfied that the medical
practitioner complies with the requirements of
section 24(1)(b), (c) and (e).
(8A) For the purposes of subsection (7)
or (8), the Council may get an assessment
committee to carry out an assessment.
(9) The name of a registered medical
practitioner who in any year fails to pay the
prescribed annual registration fee on or before
the due date or the prescribed annual
registration fee and late fee within 30 days of
the due date is to be removed from the register
in accordance with section 40.
(e) by inserting in subsection (10) "in accordance
with section 40" after "register";
(f) by omitting from subsection (11) "give the
person notice of the person's right of appeal."
and substituting ", if applicable, the late fee.";
(g) by inserting the following subsection after
subsection (12):
(13) For the purposes of this section,
other than subsection (11), a person whose
obligation to pay a fee has been wholly or
partially waived is nonetheless taken to have
paid that fee.
30
2004 Medical Practitioners Registration No. s. 35
Amendment
Section 39A inserted
35. After section 39 of the Principal Act, the following
section is inserted in Division 4:
Adding conditions
39A. (1) The Council may, in conjunction with the
exercise and performance of its powers and functions
under section 39, impose conditions or further
conditions on the registration of any medical
practitioner.
(2) In deciding whether to exercise its power
under subsection (1) in any case, the Council may
have regard to all or any of the following:
(a) any change in the physical capacity,
mental capacity or skill of the medical
practitioner;
(b) any changes or advances in medical
knowledge or technology relevant to the
medical practitioner's field of practice;
(c) the nature of the complaints, if any, that
have been made against the medical
practitioner in preceding years;
(d) any actions taken in respect of the
medical practitioner under this Act or a
foreign medical law;
(e) the suitability and efficacy of any
existing registration conditions;
(f) such other matters as the Council,
taking into account the objectives
specified in section 9, considers relevant.
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s. 36 No. Medical Practitioners Registration 2004
Amendment
(3) If the Council uses its power under
subsection (1) it is to -
(a) give the medical practitioner concerned
notice of the conditions or further
conditions and the medical practitioner's
rights of appeal and review in respect of
those conditions; and
(b) ensure that those conditions are
specified in the new certificate of
registration that is issued to the medical
practitioner under section 39.
(4) For the purposes of subsection (1), the
Council may get an assessment committee to carry
out an assessment.
Section 40 amended (Removal from register)
36. Section 40 of the Principal Act is amended as follows:
(a) by omitting from subsection (1)(a) "from the
register the name of a person who" and
substituting "a person's name from the
register if he or she";
(b) by omitting from subsection (1)(a)(i) "subject to
which the person is registered; or" and
substituting "of his or her registration; or";
(c) by omitting from subsection (1)(a)(ii) "on the
person";
(d) by inserting in subsection (1)(a)(ii) "or costs or
expenses ordered to be paid under
section 53(1)" after "(c)";
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2004 Medical Practitioners Registration No. s. 36
Amendment
(e) by omitting from subsection (1)(a)(iii) "made of
that person";
(f) by inserting in subsection (1)(a)(iv) "Council
or" after "the";
(g) by omitting from subsection (1)(b) "from the
register the name of a person" and
substituting "a person's name from the
register if he or she";
(h) by omitting from subsection (1)(b)(i) "who";
(i) by omitting subparagraphs (ii), (iii) and (iv)
from subsection (1)(b) and substituting the
following subparagraphs:
(ii) requests its removal; or
(iii) ceases to be registered under
section 39(9); or
(iv) ceases to be registered under
section 39(10); or
(j) by omitting from subsection (1)(b)(v) "who";
(k) by omitting subparagraph (vi) from subsection
(1)(b) and substituting the following
subparagraph:
(vi) has his or her authority to practise
under a foreign medical law
cancelled for professional
misconduct or physical or mental
incapacity; or
(l) by omitting from subsection (1)(b)(vii) "who";
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s. 36 No. Medical Practitioners Registration 2004
Amendment
(m) by omitting from subsection (1)(b)(vii)
"declaration." and substituting "declaration;
and";
(n) by inserting the following paragraph after
paragraph (b) in subsection (1):
(c) the Council must remove or, if
applicable, nominally remove a
person's name from the register if
the Tribunal so orders under
section 52(1)(a).
(o) by omitting from subsection (2) "first affording
that" and substituting "giving the";
(p) by omitting subsection (3) and substituting the
following subsection:
(3) If the Council removes a living
person's name from the register it must
immediately give the person notice of -
(a) the removal; and
(b) unless subsection (1)(b)(ii) applies,
the reason for the removal; and
(c) unless subsection (1)(b)(ii) or (iii)
or subsection (1)(c) applies, the
person's right of appeal.
(q) by omitting subsection (4);
(r) by omitting subsection (5) and substituting the
following subsection:
(5) Subject to section 54(3), a person
ceases to be a registered medical practitioner
when the notice is given.
34
2004 Medical Practitioners Registration No. s. 37
Amendment
Section 42 substituted
37. Section 42 of the Principal Act is repealed and the
following section is substituted:
Restoring name to register
42. (1) A person whose name has been removed
from the register pursuant to section 40(1)(b)(ii) or
(iii) may apply to have it restored to the register.
(2) The application is to be -
(a) in an approved form; and
(b) lodged with the Registrar; and
(c) supported by such information or
evidence as the Council requires; and
(d) accompanied by the prescribed
restoration fee and annual registration
fee.
(3) The Council may waive all or part of the
fees.
(4) The Council must approve the application
if -
(a) it is satisfied that the applicant complies
with the relevant requirements specified
in section 24 (excluding subsection (1)(a)
and subsection (2)(a) of that section);
and
(b) in the case of practising registration, it
is satisfied, having regard to any
relevant Ministerial guidelines, that the
applicant has adequate professional
indemnity insurance.
35
s. 37 No. Medical Practitioners Registration 2004
Amendment
(4A) For the purposes of subsection (4), the
Council may get an assessment committee to carry
out an assessment.
(5) If the Council approves the application it is
to -
(a) restore the applicant's name to the
register (on the same conditions, if any,
as applied to the person's registration
immediately before the date of removal);
and
(b) give the applicant notice of the approval
and issue the applicant with a fresh
certificate of registration.
(6) If the Council refuses the application it is
to give the applicant notice of -
(a) the refusal and the reasons for the
refusal; and
(b) the applicant's right of appeal.
(7) If a person applies to have his or her name
restored to the register within 12 months of the date
of its removal and the application is approved, the
restoration takes effect on the day on which the
application was lodged with the Registrar.
(8) In the case of any other application
approved under this section, the restoration takes
effect on -
(a) the day on which the applicant is issued
with a fresh certificate of registration; or
(b) such later day as the Council
determines.
36
2004 Medical Practitioners Registration No. s. 38
Amendment
Section 43 amended (Evidentiary provisions)
38. Section 43(2) of the Principal Act is amended as
follows:
(a) by omitting paragraph (b) and substituting the
following paragraph:
(b) a person specified in the certificate
was, on a date or for a period
specified in the certificate,
registered on conditions specified
in the certificate;
(b) by inserting in paragraph (c) "totally or
partially" after "was";
(c) by inserting in paragraph (d) "or nominally
removed" after "removed".
Part 3, Division 5 inserted
39. After section 43 of the Principal Act, the following
Division is inserted in Part 3:
Division 5 - Review of registration conditions
Review of registration conditions
43A. (1) A medical practitioner may, at intervals of
not less than 12 months each, apply to the Council
to review a condition that has been imposed on the
practitioner's registration under section 28(2) or (3),
section 39A or section 51(5).
(2) Subsection (1) is additional to the right
that the medical practitioner has under section
61(1)(b).
37
s. 40 No. Medical Practitioners Registration 2004
Amendment
(3) The application is to be -
(a) in an approved form; and
(b) lodged with the Registrar.
(4) The Council on its own motion may at any
time review a condition that has been imposed on a
medical practitioner's registration under section
28(2) or (3), section 39A or section 51(5).
(5) For the purposes of this section, the
Council may get an assessment committee to carry
out an assessment.
(6) After it has reviewed a condition of a
medical practitioner's registration under this
section, the Council may -
(a) leave the condition in place; or
(b) modify the condition so as to make it
less onerous; or
(c) remove the condition.
(7) As soon as practicable after it has carried
out a review under this section, the Council is to
give the medical practitioner concerned notice of the
outcome of the review.
Part 4: Heading amended
40. Part 4 of the Principal Act is amended by omitting
"DISCIPLINE" from the heading to that Part and
substituting "COMPLAINTS AND OVERSIGHT".
38
2004 Medical Practitioners Registration No. s. 41
Amendment
Part 4, Division 1: Heading amended
41. Division 1 of Part 4 of the Principal Act is amended by
inserting in the heading to that Division "to Council"
after "Complaints".
Section 44 substituted
42. Section 44 of the Principal Act is repealed and the
following section is substituted:
Making complaints
44. (1) Any person may make a complaint to the
Council about a registered medical practitioner.
(2) The right to make the complaint to the
Council does not derogate from the right to make the
complaint to the Health Complaints Commissioner.
(3) A person who makes a complaint to the
Council in good faith does not incur any personal
liability for any loss, damage or injury that another
person may suffer as a consequence of the making of
the complaint.
(4) A complaint may be made to and dealt
with by the Council even though the person who is
the subject of the complaint has ceased to be a
registered medical practitioner and, for that
purpose, a reference in this Part to a registered
medical practitioner includes a reference to a person
who has ceased to be registered or whose
registration is suspended.
(5) A complaint may be made to and dealt
with by the Council even though the registration of
39
s. 43 No. Medical Practitioners Registration 2004
Amendment
the person who is the subject of the complaint was
suspended at the relevant time.
Section 45 amended (Specific matters of complaint)
43. Section 45 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "the matters in
respect of which a complaint may be made, a
person may complain" and substituting "the
generality of section 44(1), a person may
complain to the Council";
(b) by inserting the following paragraph after
paragraph (d) in subsection (1):
(da) is not of good fame and character;
or
(c) by omitting from subsection (2)(c) "subject to
which the medical practitioner is registered"
and substituting "of his or her registration";
(d) by inserting in subsection (2)(d) "or costs or
expenses ordered to be paid under
section 53(1)" after "(c)";
(e) by inserting in subsection (2)(f) "Council or"
after "the";
(f) by omitting paragraph (h) from subsection (2)
and substituting the following paragraphs:
(h) behaves in a deceptive or
misleading manner in the practice
of medicine; or
40
2004 Medical Practitioners Registration No. s. 44
Amendment
(i) engages in conduct that is capable
of bringing the medical profession
into disrepute; or
(j) advertises his or her practice or
services in an inappropriate or
fraudulent way; or
(k) fails, without reasonable excuse
and within a reasonable time, to
comply with a request by the
Council to provide it with
information; or
(l) practises while his or her
registration is wholly suspended;
or
(m) practises, while his or her
registration is partially
suspended, in the area of practice
to which the partial suspension
relates; or
(n) tries, by means of any threat or
inducement, to stop a person from
making or proceeding with a
complaint against that medical
practitioner.
Section 46 amended (Complaints procedure)
44. Section 46 of the Principal Act is amended as follows:
(a) by inserting in subsection (1) "to the Council"
after "A complaint";
(b) by omitting paragraph (c) from subsection (1)
and substituting the following paragraph:
41
s. 45 No. Medical Practitioners Registration 2004
Amendment
(c) identify, if possible, the registered
medical practitioner against whom
the complaint is being made or set
out such information relating to
the identity of the registered
medical practitioner as is known
to the complainant; and
(c) by omitting from subsection (1)(d) "person
making the complaint" and substituting
"complainant";
(d) by inserting in subsection (2) "to the Council"
after "a complaint";
(e) by omitting subsection (3) and substituting the
following subsection:
(3) The Registrar -
(a) is to keep a record of each
complaint made to the Council and
note the date on which it is lodged;
and
(b) may, before taking any further
action on the complaint, require
the complainant to furnish any
further particulars that the
Registrar reasonably considers
may be necessary to facilitate an
investigation into the complaint.
(f) by omitting subsection (4).
Sections 47, 48 and 49 substituted
45. Sections 47, 48 and 49 of the Principal Act are
repealed and the following Division is substituted:
42
2004 Medical Practitioners Registration No. s. 45
Amendment
Division 1A - Dealing with complaints
Subdivision 1 - Complaints to which Division
applies
Application of Division
47. This Division applies to -
(a) complaints about registered medical
practitioners that are made to the
Council pursuant to Division 1 and not
referred to the Health Complaints
Commissioner; and
(b) complaints about registered medical
practitioners that are referred to the
Council by the Health Complaints
Commissioner.
Subdivision 2 - Preliminary investigation of
complaints
Complaint to be referred to investigator
48. (1) The Council, in the first instance, is to refer
a complaint to an investigator for preliminary
investigation.
(2) The investigator is to be a person or
committee that has been appointed by the Council
to -
(a) investigate the specific complaint; or
(b) investigate complaints generally.
(3) Any of the following may be appointed as
an investigator:
43
s. 45 No. Medical Practitioners Registration 2004
Amendment
(a) a member of the Council;
(b) the Registrar or another employee of the
Council;
(c) another person who, in the opinion of
the Council, has appropriate expertise or
experience;
(d) a committee.
(4) The investigator may, at any time during
the investigation, give the registered medical
practitioner concerned notice of the complaint and
such other matters as the investigator considers
appropriate.
(5) Schedule 3 has effect in relation to the
powers and procedures of the investigator.
(6) Except as otherwise provided in this Act,
the investigator may determine the investigator's
own procedure.
Council may refer other matters to
investigator
48A. (1) The Council may, on its own motion, refer
any matter that it considers could constitute
grounds for a complaint against a registered medical
practitioner to an investigator.
(2) For the purposes of this Division, a matter
referred to an investigator under this section is
taken to be, and is to be dealt with as, a complaint to
the Council that has not been referred to the Health
Complaints Commissioner.
44
2004 Medical Practitioners Registration No. s. 45
Amendment
(3) Subsections (4) and (5) of section 44 have
the same application to a matter referred to in
subsection (1) as they have to a complaint made to
the Council.
Investigator to report and make
recommendation
48B. (1) Following the investigation, the
investigator is to report to the Council and make one
of the following recommendations:
(a) that the complaint be dismissed;
(b) that no disciplinary action be initiated in
respect of the complaint at that time;
(c) that the complaint be referred to or, if
applicable, back to the Health
Complaints Commissioner;
(d) that an informal inquiry be instituted
into the complaint;
(e) that a formal inquiry be instituted into
the complaint.
(2) For the purposes of subsection (1), the
following guidelines apply:
(a) a recommendation under
subsection (1)(a) will be appropriate if
the investigator is satisfied that the
complaint is frivolous or vexatious or,
though apparently legitimate, is
groundless or trivial;
(b) a recommendation under
subsection (1)(b) will be appropriate if
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s. 45 No. Medical Practitioners Registration 2004
Amendment
the investigator is satisfied that the
complaint is not capable of being
substantiated (whether for want of
evidence, the incapacity of prospective
witnesses or some other reason);
(c) a recommendation under
subsection (1)(c) will be appropriate if
the investigator is satisfied, having
regard to the nature of the complaint
and the relevant legislation, that the
complaint is properly a matter for the
Health Complaints Commissioner;
(d) a recommendation under
subsection (1)(d) will be appropriate if
the investigator is satisfied that the
complaint, though apparently
legitimate, is not of a serious kind;
(e) a recommendation under
subsection (1)(e) will be appropriate if
the investigator is satisfied that the
complaint is legitimate and, in terms of
the objectives in section 9, of a serious
kind.
(3) Notwithstanding subsections (1) and (2),
the investigator may -
(a) make any of the recommendations
referred to in subsection (1) if the
investigator is satisfied that there are
reasonable grounds for making the
recommendation; and
(b) add, to a recommendation under
subsection (1)(a) or (b), a further
recommendation that the complaint be
46
2004 Medical Practitioners Registration No. s. 45
Amendment
referred to or, if applicable, back to the
Health Complaints Commissioner.
(4) If the investigator considers that a
recommendation might not be accepted by the
Council or there are other reasonable grounds for so
doing, the investigator may make a secondary
recommendation.
(5) In the report, the investigator is to -
(a) set out the reasons for a
recommendation; and
(b) include or identify any evidence or
information on which a recommendation
is based; and
(c) indicate whether the investigator has
given the medical practitioner concerned
notice of the complaint; and
(d) mention any other matters that the
investigator considers relevant.
(6) If for any reason the investigator feels
unable to make a recommendation in its report, or is
uncertain which recommendation to make, the
investigator is to notify the Council accordingly.
(7) If subsection (6) applies, the Council may,
according to the circumstances -
(a) give the investigator assistance and
advice; or
(b) issue directions to the investigator; or
(c) having regard to the findings, if any, of
the investigator, make a determination
47
s. 45 No. Medical Practitioners Registration 2004
Amendment
under section 49(1) without a
recommendation; or
(d) appoint a new investigator.
Subdivision 3 - Action to be taken following
preliminary investigation
Council to consider and act on investigator's
report
49. (1) After it has considered the report of an
investigator into a complaint, the Council may
decide to -
(a) dismiss the complaint; or
(b) not initiate disciplinary action on the
complaint at that time; or
(c) refer the complaint to or, if applicable,
back to the Health Complaints
Commissioner; or
(d) institute an informal inquiry into the
complaint; or
(e) institute a formal inquiry into the
complaint.
(2) In making its decision, the Council is to
have regard to -
(a) the investigator's recommendation; and
(b) the guidelines in section 48B(2).
(3) The Council is not obliged to accept the
investigator's recommendation but it should not
48
2004 Medical Practitioners Registration No. s. 45
Amendment
reject the recommendation unless satisfied that
there are compelling grounds for so doing.
(4) For the purposes of considering an
investigator's report or recommendation, the Council
may require the investigator to provide it with
further information or evidence.
Dismissal of complaint
49A. (1) If section 49(1)(a) applies, the Council is
to -
(a) give the complainant notice that the
complaint has been dismissed, together
with such explanation as the Council
considers appropriate; and
(b) if the medical practitioner concerned
had formal notice of the complaint, give
the medical practitioner notice that the
complaint has been dismissed, together
with such explanation as the Council
considers appropriate.
(2) The Council may give a medical
practitioner notice that a complaint against the
medical practitioner has been made and dismissed
even if the medical practitioner had no formal notice
of the complaint.
(3) If section 49(1)(a) applies, the Council may
also refer the complaint to or, if applicable, back to
the Health Complaints Commissioner and may give
such notice of the referral as it thinks fit.
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s. 45 No. Medical Practitioners Registration 2004
Amendment
No disciplinary action to be initiated on
complaint
49B. (1) If section 49(1)(b) applies, the Council is
to -
(a) give the complainant notice that no
disciplinary action is to be initiated in
respect of the complaint at that time,
together with such explanation as the
Council considers appropriate; and
(b) if the medical practitioner concerned
had formal notice of the complaint, give
the medical practitioner notice that no
disciplinary action is to be initiated in
respect of the complaint at that time,
together with such explanation as the
Council considers appropriate.
(2) Subsection (1) does not prevent the Council
from -
(a) reconsidering or initiating disciplinary
action on the complaint at a later time
if, owing to a change in circumstances,
the Council considers it appropriate to
do so; or
(b) taking the complaint into account at a
later time as being indicative of a
pattern of behaviour or practice.
(3) The Council may give a medical
practitioner notice that a complaint against the
medical practitioner has been made and that no
disciplinary action is to be initiated in respect of the
complaint at that time even if the medical
practitioner had no formal notice of the complaint.
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2004 Medical Practitioners Registration No. s. 45
Amendment
(4) If section 49(1)(b) applies, the Council may
also refer the complaint to or, if applicable, back to
the Health Complaints Commissioner and may give
such notice of the referral as it thinks fit.
Referral of complaint to Health Complaints
Commissioner
49C. (1) If section 49(1)(c) applies, the Council is
to -
(a) refer the complaint to or, if applicable,
back to the Health Complaints
Commissioner; and
(b) give the complainant notice that the
complaint has been so referred, together
with such explanation as the Council
considers appropriate; and
(c) if the medical practitioner concerned
had formal notice of the complaint, give
the medical practitioner notice that the
complaint has been so referred, together
with such explanation as the Council
considers appropriate.
(2) Subsection (1) does not prevent the Council
from taking the complaint into account at a later
time as being indicative of a pattern of behaviour or
practice.
(3) The Council may give a medical
practitioner notice that a complaint against the
medical practitioner has been made and referred to
or, if applicable, back to the Health Complaints
Commissioner even if the medical practitioner had
no formal notice of the complaint.
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Amendment
(4) The Council may provide the Health
Complaints Commissioner with any information or
evidence in its possession regarding a complaint that
it refers to, or back to, the Commissioner.
Informal inquiry into complaint
49D. (1) If section 49(1)(d) applies, the Council is to
institute the informal inquiry and give the
complainant notice to that effect.
(2) The Council institutes an informal inquiry
into a complaint by giving the medical practitioner
concerned a notice to that effect and requiring him
or her to -
(a) appear before the Council to give an
explanation; or
(b) provide the Council with a written
explanation.
(3) In determining whether to require a
personal appearance or a written explanation, the
Council may have regard to the complexity of the
complaint, the cooperativeness of the medical
practitioner, travelling hardship and such other
factors as it considers appropriate.
(4) A notice under subsection (2)(a) is to -
(a) set out particulars of the complaint; and
(b) specify the date, time and place at which
the medical practitioner is required to
appear; and
(c) inform the medical practitioner that,
before that date, he or she may request
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2004 Medical Practitioners Registration No. s. 45
Amendment
in writing that the complaint be dealt
with by way of a formal inquiry; and
(d) inform the medical practitioner of the
other circumstances in which the
complaint may become the subject of a
formal inquiry; and
(e) state that the appearance before the
Council is not open to the public; and
(f) state that the medical practitioner is
entitled to make submissions when
appearing before the Council; and
(g) state that the medical practitioner is not
entitled to be represented when
appearing before the Council but is
entitled to be accompanied by a legal
practitioner or other person.
(5) A notice under subsection (2)(b) is to -
(a) set out particulars of the complaint; and
(b) specify a date by which the medical
practitioner is required to provide the
written explanation; and
(c) inform the medical practitioner that,
before that date, he or she may request
in writing that the complaint be dealt
with by way of a formal inquiry; and
(d) inform the medical practitioner of the
other circumstances in which the
complaint may become the subject of a
formal inquiry.
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s. 45 No. Medical Practitioners Registration 2004
Amendment
(6) A notice under subsection (2) may contain
such other information as the Council considers
appropriate.
(7) The date specified under subsection (4)(b)
or subsection (5)(b) is to be not less than 14 days
after the date of giving the notice.
(8) If, after considering an explanation given
to it under this section, the Council is not satisfied
that a complaint has been substantiated, it is to -
(a) dismiss the complaint; and
(b) give the complainant and the medical
practitioner concerned notice of the
dismissal, together with such
explanation as it considers appropriate.
(9) If, after considering an explanation given
to it under this section, the Council is satisfied that
a complaint has been substantiated but that it is not
sufficiently serious to warrant a formal inquiry, the
Council may do either or both of the following:
(a) caution or reprimand the medical
practitioner concerned;
(b) require and accept an undertaking from
the medical practitioner concerned to
take or refrain from taking specified
action.
(10) Except in a case to which
section 49E(2)(e) applies, the Council is, as soon as
practicable, to give the complainant notice of its
finding and the action taken, together with such
explanation as the Council considers appropriate.
54
2004 Medical Practitioners Registration No. s. 45
Amendment
(11) A meeting of the Council convened for the
purposes of this section is not open to the public.
Formal inquiry into complaint
49E. (1) If section 49(1)(e) applies, the Council is to
institute the formal inquiry.
(2) The Council is also required to institute a
formal inquiry into a complaint if -
(a) the medical practitioner concerned fails
to appear before the Council as required
by a notice under section 49D(2)(a) or,
before the date of appearance specified
in the notice, requests in writing that
the complaint be dealt with by way of a
formal inquiry; or
(b) the medical practitioner concerned fails
to provide the Council with a written
explanation as required by a notice
under section 49D(2)(b) or, before the
date on which the explanation is
required to be provided, requests in
writing that the complaint be dealt with
by way of a formal inquiry; or
(c) in the course of giving an explanation to
the Council under section 49D the
medical practitioner concerned requests,
orally or in writing, that the complaint
be dealt with by way of a formal inquiry;
or
(d) after or in the course of considering an
explanation under section 49D the
Council determines that the complaint is
55
s. 46 No. Medical Practitioners Registration 2004
Amendment
sufficiently serious to warrant a formal
inquiry; or
(e) if section 49D(9) applies, the medical
practitioner concerned does one or more
of the following:
(i) disputes that the complaint has
been substantiated;
(ii) refuses to accept the caution or
reprimand;
(iii) refuses to give, or purports to
retract, the required undertaking.
(3) The Council institutes a formal inquiry
into a complaint by -
(a) referring the complaint to the Tribunal;
and
(b) giving the medical practitioner
concerned, and the complainant, notice
that the inquiry has been instituted.
(4) For the purposes of subsection (3), a
summons to appear before the Tribunal to answer a
complaint constitutes sufficient notice to the medical
practitioner concerned.
Section 50 amended (Establishment and
constitution of Tribunal, &c.)
46. Section 50 of the Principal Act is amended as follows:
(a) by omitting from subsection (4) "in respect of
each inquiry" and substituting "for any formal
inquiry";
56
2004 Medical Practitioners Registration No. s. 47
Amendment
(b) by omitting from subsection (5) "an inquiry"
and substituting "a formal inquiry";
(c) by omitting from subsection (6) "inquiry in
respect of" and substituting "formal inquiry
for";
(d) by omitting subsection (8) and substituting the
following subsection:
(8) The Council is to provide the
Tribunal with adequate secretarial support.
(e) by omitting subsection (10);
(f) by omitting from subsection (12) "proceedings"
and substituting "powers and procedures";
(g) by inserting the following subsection after
subsection (12):
(13) Except as otherwise provided in
this Act, the Tribunal may determine its own
procedure.
Section 50A inserted
47. After section 50 of the Principal Act, the following
section is inserted in Division 2:
Alternate permanent members
50A. (1) For the purposes of this Division, the
Council is to appoint an alternate member for each
permanent member of the Tribunal.
(2) Appointments of alternate members are to
be made -
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s. 47 No. Medical Practitioners Registration 2004
Amendment
(a) as soon as practicable after the
commencement of the Medical
Practitioners Registration Amendment
Act 2004; and
(b) if subsequently there is a vacancy in the
office of a member or alternate member.
(3) For the purposes of subsection (2), the
office of an alternate member is vacant when he or
she dies or if he or she is incapable of acting as such
a member.
(4) An alternate member is to act as a member
of the Tribunal only if the permanent member for
whom he or she is an alternate dies or only while
that permanent member -
(a) is absent from a meeting or proceeding
of the Tribunal; or
(b) is incapable of acting as a member.
(5) Where an alternate member acts as a
member of the Tribunal -
(a) he or she may exercise all the powers of
the permanent member for whom he or
she is an alternate member; and
(b) all things done or omitted to be done by
the alternate member are as valid, and
have the same consequences, as if they
had been done or omitted to be done by
the permanent member for whom he or
she is an alternate member.
(6) A person is not eligible to be appointed as
an alternate member unless he or she has the same
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2004 Medical Practitioners Registration No. s. 48
Amendment
qualifications as the permanent member for whom
he or she would be an alternate.
Section 51 substituted
48. Section 51 of the Principal Act is repealed and the
following section is substituted:
Tribunal to hold formal inquiry into referred
complaint
51. (1) The Tribunal is to hold a formal inquiry into
each complaint referred to it under section 49E.
(2) Pending the completion of the formal
inquiry the Tribunal, having regard to the nature of
the complaint, may request the Council to -
(a) suspend the defendant's registration
pursuant to section 55; or
(b) impose a condition on the defendant's
registration.
(3) The Tribunal is to give the Council notice
of its reasons for making the request and -
(a) if subsection (2)(a) applies, a
recommendation whether the
suspension should be total or partial; or
(b) if subsection (2)(b) applies, a
recommendation as to the required
condition.
(4) The Council must not refuse to comply
with the Tribunal's request unless it is satisfied that
there are reasonable grounds for so doing.
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s. 49 No. Medical Practitioners Registration 2004
Amendment
(5) If the Council agrees to a request under
subsection (2)(b), it has power to impose the
condition but it must -
(a) give the defendant notice of the
condition and the defendant's right of
appeal and review in respect of the
condition; and
(b) issue the defendant with a new
certificate of registration incorporating
the condition.
Part 4, Division 3: Heading amended
49. Division 3 of Part 4 of the Principal Act is amended by
omitting "inquiry" from the heading to that Division and
substituting "formal inquiry".
Section 52 amended (Actions that may be taken by
Tribunal)
50. Section 52 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "On concluding
an inquiry," and substituting "After it has held
a formal inquiry";
(b) by omitting paragraphs (a) and (b) from
subsection (1) and substituting the following
paragraphs:
(a) order that the defendant's name
be removed or, if applicable,
nominally removed from the
register;
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2004 Medical Practitioners Registration No. s. 50
Amendment
(b) suspend the defendant's
registration, either totally or
partially, for a period not
exceeding 12 months;
(c) by omitting paragraph (d) from subsection (1)
and substituting the following paragraph:
(d) impose a condition on the
defendant's registration;
(d) by omitting from subsection (1)(g) "or, in a
case to which section 47(3) applies, clear the
defendant";
(e) by omitting subsection (2) and substituting the
following subsection:
(2) In the case of a formal inquiry
relating to a matter referred to in section
45(1)(b), the Tribunal must at least take the
action specified in subsection (1)(a) unless it
decides to dismiss the complaint.
(f) by omitting from subsection (3) "imposes" and
substituting "decides to impose";
(g) by inserting the following subsection after
subsection (3):
(3A) If the Tribunal decides to impose a
condition on the defendant's registration,
section 43A has the same application to that
condition as it has to a condition imposed at
the time of registration or under section 39A.
(h) by omitting from subsection (4)(d) "practice."
and substituting "practice;";
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s. 51 No. Medical Practitioners Registration 2004
Amendment
(i) by inserting the following paragraphs after
paragraph (d) in subsection (4):
(e) undergo specified training in
conjunction with, or before
resuming, his or her practice;
(f) carry out specified work or actions
in relation to his or her
professional premises.
Section 53 amended (Costs and expenses of formal
inquiry)
51. Section 53 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "inquiry as the
Tribunal thinks fit." and substituting "formal
inquiry, and any preceding investigation or
informal inquiry, as the Tribunal thinks fit
within such period of time as the Tribunal by
the order allows.";
(b) by omitting from subsection (2) "against the
defendant or, in a case to which section 47(3)
applies, clear the defendant";
(c) by omitting from subsection (3) "or, in a case
to which section 47(3) applies, clear the
defendant,";
(d) by omitting from subsection (3) "inquiry." and
substituting "formal inquiry and any
preceding investigation or informal inquiry.";
(e) by inserting the following subsection after
subsection (3):
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2004 Medical Practitioners Registration No. s. 52
Amendment
(3A) For the purposes of this section, the
costs of an investigation may be taken to
include any costs incurred under section 58A,
59 or 60.
(f) by omitting from subsection (5) "recoverable as
a debt due to the Council." and substituting
"payable to, and may be recovered as a debt
due to, the Council.".
Section 54 amended (Notice of decision)
52. Section 54 of the Principal Act is amended as follows:
(a) by omitting subsections (1), (2), (3) and (4) and
substituting the following subsections:
(1) When the Tribunal has decided what
action to take under section 52, the
chairperson must inform the defendant of -
(a) the decision; and
(b) the reasons for the decision; and
(c) when the decision takes effect; and
(d) unless section 52(1)(g) applies, the
defendant's right of appeal.
(2) The chairperson may comply with
subsection (1) by means of -
(a) a notice alone; or
(b) if the defendant is present at the
relevant time, an announcement
followed by a notice.
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s. 53 No. Medical Practitioners Registration 2004
Amendment
(3) Unless the Tribunal determines
otherwise, the decision takes effect as soon as
the defendant is first informed of it pursuant
to subsection (1).
(4) The Council must take such actions
as may be necessary or expedient to give effect
to the Tribunal's decision.
(4A) When a decision under
section 52(1)(b) takes effect, the defendant
ceases -
(a) in the case of a total suspension of
registration, to be registered until
the period of suspension expires;
or
(b) in the case of a partial suspension
of registration, to be entitled to
practise in the areas of practice to
which the partial suspension
applies until the period of
suspension expires.
(b) by omitting from subsection (5) "If" and
substituting "When";
(c) by omitting from subsection (5)(a) "Australian
Medical Council" and substituting "AMC".
Section 55 amended (Suspension of registration)
53. Section 55 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "the
registration of a registered medical
practitioner" and substituting "a medical
practitioner's registration";
64
2004 Medical Practitioners Registration No. s. 53
Amendment
(b) by omitting from subsection (1)(a) "subject to
which the medical practitioner is registered"
and substituting "of the registration";
(c) by omitting from subsection (1)(b) "has been"
and substituting "is";
(d) by inserting in subsection (1)(c) "or costs or
expenses ordered to be paid under
section 53(1)" after "(c)";
(e) by inserting in subsection (1)(e) "Council or"
after "to the";
(f) by omitting from subsection (1)(f) "inquiring
into" first occurring and substituting
"investigating";
(g) by omitting from subsection (1)(f) "inquiring
into" second occurring and substituting
"investigating on its own motion";
(h) by omitting from subsection (1)(g)
"registration." and substituting "registration;
or";
(i) by inserting the following paragraphs after
paragraph (g) in subsection (1):
(h) the Council is requested to do so
by the Tribunal under
section 51(2)(a); or
(i) the Council considers that the
medical practitioner's professional
premises are of an unsatisfactory
kind or standard having regard to
the nature of his or her practice.
65
s. 53 No. Medical Practitioners Registration 2004
Amendment
(j) by inserting the following subsection after
subsection (1):
(1A) The suspension of registration may
be -
(a) a total suspension of registration;
or
(b) a partial suspension of
registration, being suspension that
applies only in relation to certain
areas of practice specified by the
Council.
(k) by inserting the following paragraph after
paragraph (a) in subsection (4):
(ab) in the case of a partial suspension,
the areas of practice to which the
suspension applies; and
(l) by omitting subsection (5) and substituting the
following subsections:
(5) When the giving of the notice is
effected in the case of a total suspension of
registration, the medical practitioner ceases to
be registered until the period of suspension
specified in the notice expires or the
suspension is revoked by the Council.
(5A) When the giving of the notice is
effected in the case of a partial suspension of
registration, the medical practitioner's
entitlement to practise in those areas of
practice specified under subsection (1A)(b) is
suspended until the period of suspension
specified in the notice expires or the
suspension is revoked by the Council.
66
2004 Medical Practitioners Registration No. s. 54
Amendment
(5B) Subsections (5) and (5A) have effect
subject to any orders of the Supreme Court
made on appeal.
(m) by omitting from subsection (6) "suspended"
and substituting "totally or partially
suspended";
(n) by omitting subsection (7) and substituting the
following subsection:
(7) If the Council suspends a medical
practitioner's registration under this section it
has and may exercise, if it considers that it is
in the public interest to do so, the same power
to give notice of the suspension as it has
under section 54(5) in relation to a decision to
which that section applies.
Sections 57 and 58 substituted
54. Sections 57 and 58 of the Principal Act are repealed
and the following sections are substituted:
Evidence of facts found in other proceedings
57. (1) In this section -
"tribunal" includes a medical registration authority
in so far as it may exercise powers of a quasi-
judicial nature.
(2) A finding of fact relating to the conduct of
a registered medical practitioner made by a court or
other tribunal in any proceedings to which that
medical practitioner is a party, whether in this State
or elsewhere, is evidence of that fact in any
proceedings under this Part.
67
s. 54 No. Medical Practitioners Registration 2004
Amendment
Inspectors
58. (1) The Council may appoint persons as
inspectors for the purposes of this Act.
(2) An inspector -
(a) holds office on the conditions contained
in his or her instrument of appointment;
and
(b) has the powers set out in this Division.
(3) The Council is to issue an inspector with
an identity card, in an approved form, being a card
bearing at least a recent photograph of the inspector
and the inspector's name and signature.
(4) A person must, within 5 days of ceasing to
be an inspector, return the person's identity card to
the Council.
Penalty: Fine not exceeding 5 penalty units.
Role of inspectors
58A. If the Council or an investigator reasonably
suspects that -
(a) an unregistered person may be
practising medicine; or
(b) there may be grounds for a complaint
against a registered medical
practitioner; or
(c) there may be grounds for removing a
person's name from the register or
suspending a person's registration; or
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2004 Medical Practitioners Registration No. s. 55
Amendment
(d) a registered medical practitioner may
lack the physical capacity, mental
capacity or skill to practise medicine -
the Council or investigator may direct an inspector
to carry out an inspection.
Section 59 amended (Power of inspectors)
55. Section 59 of the Principal Act is amended as follows:
(a) by omitting subsection (1);
(b) by omitting from subsection (2) "An" and
substituting "For the purposes of carrying out
an inspection, an";
(c) by omitting from subsection (3) "examination"
and substituting "inspection";
(d) by omitting from subsection (4)(a)
"examination" and substituting "inspection";
(e) by omitting from subsection (8) "examination"
and substituting "inspection".
Section 60 amended (Specific inspectorial powers)
56. Section 60 of the Principal Act is amended as follows:
(a) by omitting from subsection (1)(j)
"reasonably";
(b) by omitting from subsection (2) "for legitimate
reasons a person needs access to" and
substituting "a person has a legitimate need to
access";
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s. 57 No. Medical Practitioners Registration 2004
Amendment
(c) by omitting from subsection (2) "in its
discretion".
Section 60A inserted
57. After section 60 of the Principal Act, the following
section is inserted in Division 5:
Complaints may be dealt with despite other
proceedings
60A. Complaints may be made and dealt with
under this Part even if the medical practitioner
concerned is the subject of proposed or current
criminal or civil proceedings relating to the subject
matter of the complaint.
Section 61 amended (Right of appeal)
58. Section 61(1) of the Principal Act is amended as
follows:
(a) by omitting paragraph (b) and substituting the
following paragraph:
(b) the imposition under section 28(2)
or (3), section 39A or section 51(5)
of a condition on the person's
registration, whether or not the
condition has been modified under
section 43A;
(b) by omitting from paragraph (c) "section
40(1)(b)(ii) or (iii);" and substituting
"section 40(1)(b)(ii) or (iii) or section 40(1)(c);";
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2004 Medical Practitioners Registration No. s. 59
Amendment
(c) by omitting from paragraph (f) "that" and
substituting "the";
(d) by omitting from paragraph (g) "that" and
substituting "the";
(e) by omitting from paragraph (g) "section 39(6)
or (7);" and substituting "section 39(7) or (8);";
(f) by omitting paragraph (h) and substituting
the following paragraph:
(h) a decision made by the Tribunal
under section 52(1)(a), (b), (c), (d),
(e) or (f) in respect of the person.
Section 62 substituted
59. Section 62 of the Principal Act is repealed and the
following section is substituted:
Hearing of appeal
62. (1) On the hearing of an appeal, the Supreme
Court may -
(a) affirm the decision of the Council or
Tribunal; or
(b) vary the decision of the Council or
Tribunal; or
(c) quash the decision of the Council or
Tribunal.
(2) If subsection (1)(c) applies, the Court may,
according to the circumstances of the case -
(a) substitute, for the decision it has
quashed, any decision that the Council
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s. 60 No. Medical Practitioners Registration 2004
Amendment
or Tribunal would have had jurisdiction
to make in those circumstances; or
(b) remit the matter to the Council or
Tribunal, with or without directions, for
further hearing or consideration or for
rehearing or reconsideration.
(3) The Court may make any further order
that it considers just in the circumstances.
Part 6, Division 1: Heading amended
60. Division 1 of Part 6 of the Principal Act is amended by
omitting "Protection of the profession" from the heading
to that Division and substituting "Public and
professional safeguards".
Section 65 amended (Unauthorised use of certain
titles)
61. Section 65 of the Principal Act is amended by omitting
paragraph (f) and substituting the following paragraph:
(f) a prescribed title.
Section 66 repealed
62. Section 66 of the Principal Act is repealed.
Section 68 amended (Failure to notify Council of
civil claims)
63. Section 68 of the Principal Act is amended as follows:
72
2004 Medical Practitioners Registration No. s. 64
Amendment
(a) by omitting from subsection (1) "14 days" and
substituting "60 days";
(b) by omitting from subsection (2) "14 days" and
substituting "60 days".
Section 69 amended (Improper disposal of medical
records)
64. Section 69(3) of the Principal Act is amended as
follows:
(a) by omitting "any" first occurring and
substituting "either";
(b) by omitting paragraph (b);
(c) by omitting from paragraph (c) "medical
services company" and substituting "medical
services provider".
Section 70 substituted
65. Section 70 of the Principal Act is repealed and the
following section is substituted:
Improper directions and inducements
70. (1) In this section -
"induce" means induce by making a threat or
offering approval, encouragement or a reward.
(2) A person must not direct, induce, assist or
allow a registered medical practitioner to engage in
any conduct if the person knows, or reasonably
ought to know, that the conduct constitutes, or is
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s. 66 No. Medical Practitioners Registration 2004
Amendment
reasonably likely to constitute, professional
misconduct for the purposes of Part 4.
Penalty: Fine not exceeding 50 penalty units.
Part 6, Division 3: Heading amended
66. Division 3 of Part 6 of the Principal Act is amended by
omitting "General offences" from the heading to that
Division and substituting "General offences and
contempts".
Section 71 amended (Offences of dishonesty)
67. Section 71(1) of the Principal Act is amended by
omitting paragraphs (a) and (b) and substituting the
following paragraphs:
(a) an application or assessment; or
(b) an investigation; or
(c) a formal or informal inquiry; or
(d) an inspection.
Section 73 substituted
68. Section 73 of the Principal Act is repealed and the
following sections are substituted:
Offences relating to formal inquiries, &c.
73. (1) A person must not, without reasonable
excuse -
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2004 Medical Practitioners Registration No. s. 68
Amendment
(a) fail to attend a formal inquiry as
required by summons; or
(b) fail in a formal inquiry to comply with
the requirement to affirm or be sworn;
or
(c) fail to produce a document when
required by the Tribunal to do so; or
(d) fail to answer questions required by the
Tribunal to be answered.
Penalty: Fine not exceeding 25 penalty units
and a daily fine not exceeding 2·5
penalty units.
(2) In a formal inquiry, a person may be
required by the Tribunal to answer a question or
produce a document notwithstanding that the
answer to the question or the contents of the
document may tend to incriminate that person.
(3) If in a formal inquiry a person objects to
answering a question or producing a document on
the grounds that to do so may tend to incriminate
that person, the answer to the question or the
contents of the document are not admissible in
evidence in any other proceedings in respect of the
person, other than proceedings in respect of an
offence under section 71 or in respect of an appeal
under Part 5.
Compellability of witnesses in formal inquiries
73A. (1) If -
(a) the Tribunal has summonsed a person to
appear before it to give evidence or to
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s. 68 No. Medical Practitioners Registration 2004
Amendment
produce a document or other thing
specified in the summons; and
(b) the person fails, without giving the
Tribunal a reasonable excuse or any
explanation at all, to attend before the
Tribunal or to produce that document or
thing -
the Tribunal may apply to a magistrate for a
warrant to have the person apprehended and
brought before the Tribunal.
(2) A magistrate to whom an application
under subsection (1) is made may issue a warrant if
satisfied that the person who is the subject of the
application -
(a) has been summonsed by the Tribunal to
appear before it to give evidence or to
produce a document or other thing
specified in the summons; and
(b) has failed, without giving the Tribunal
reasonable excuse or any explanation at
all, to attend before the Tribunal or to
produce that document or thing.
(3) A warrant issued under this section
authorises any police officer to -
(a) apprehend the person named in the
warrant and bring that person before
the Tribunal; and
(b) detain that person in custody to secure
the person's attendance before the
Tribunal.
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2004 Medical Practitioners Registration No. s. 69
Amendment
(4) A police officer executing a warrant issued
under this section is, for that purpose, authorised to
enter and search any place, building, vehicle or
vessel, using such force and assistance as is
reasonably necessary.
(5) A person who is apprehended and detained
in custody pursuant to a warrant issued under this
section may apply to a judge of the Supreme Court
to be released from custody.
(6) The release of a person from custody under
this section may be made subject to any conditions
the judge considers appropriate.
Section 74 amended (Failure to comply with orders)
69. Section 74 of the Principal Act is amended as follows:
(a) by omitting subsection (1) and substituting the
following subsection:
(1) A person must not -
(a) fail to leave a hearing held in the
course of a formal inquiry when
ordered to do so by the Tribunal;
or
(b) fail to leave a Council meeting
when ordered to do so by the
Council.
Penalty: Fine not exceeding 25 penalty
units.
(b) by omitting subsection (2);
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s. 70 No. Medical Practitioners Registration 2004
Amendment
(c) by inserting in subsection (3) "report or
otherwise disclose" after "must not";
(d) by omitting from subsection (3)(a) "report or
otherwise disclose";
(e) by omitting from subsection (3)(b) "report or
otherwise disclose".
Sections 75 and 76 substituted
70. Sections 75 and 76 of the Principal Act are repealed
and the following sections are substituted:
Medical practitioners' notices relating to
fitness to practise
75. A registered medical practitioner who signs an
order under the Mental Health Act 1996 or a medical
recommendation within the meaning of the Alcohol
and Drug Dependency Act 1968 in relation to a
person who the registered medical practitioner
knows or believes is also registered as a medical
practitioner under this Act must, as soon as
practicable after signing the order or
recommendation, give the Council notice of that fact.
Penalty: Fine not exceeding 5 penalty units.
Provision of information by medical services
providers
76. (1) In this section -
"reasonable period" means a period, of not
less than 21 days, determined by the
Council;
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2004 Medical Practitioners Registration No. s. 70
Amendment
"relevant information" means information
that the Council reasonably considers it
necessary or expedient to have for the
purpose of exercising its powers or
performing its functions.
(2) The Council may, by notice, require a
medical services provider to give the Council -
(a) any relevant information about the
medical services provider's legal or
business structure, management, staff
or operations; and
(b) if applicable, any relevant information
about the medical services provider's
membership or shareholdings; and
(c) if applicable, a copy of the medical
services provider's memorandum or
articles of association.
(3) A medical services provider must comply
with a notice under subsection (2) within such
reasonable period as is specified in the notice.
Penalty: Fine not exceeding 50 penalty units
and a daily fine not exceeding 5
penalty units.
(4) The Council may, by notice, require a
registered medical practitioner to give it any
relevant information about his or her involvement
with a medical services provider.
(5) A registered medical practitioner must
comply with a notice under subsection (4) within
such reasonable time as is specified in the notice.
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s. 71 No. Medical Practitioners Registration 2004
Amendment
Penalty: Fine not exceeding 25 penalty units
and a daily fine not exceeding 2.5
penalty units.
Section 77 substituted
71. Section 77 of the Principal Act is repealed and the
following section is substituted:
Service of documents
77. (1) In this section -
"Council" includes -
(a) an assessment committee or other
committee; and
(b) an investigator.
(2) A document may be given to the Council or
the Tribunal by -
(a) leaving it at, or sending it by post to, the
Council's or Tribunal's address; or
(b) faxing it to the Council's or Tribunal's
facsimile number; or
(c) emailing it to the Council's or Tribunal's
email address.
(3) A document may be given to another
person by -
(a) in the case of an individual -
(i) handing it to the person; or
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2004 Medical Practitioners Registration No. s. 72
Amendment
(ii) leaving it at, or sending it by post
to, the person's postal or
residential address or place of
business or employment last
known to the giver of the
document; or
(iii) faxing it to the person's facsimile
number; or
(iv) emailing it to the person's email
address; and
(b) in the case of another person -
(i) leaving it at, or sending it by post
to, the person's principal or
registered office or principal place
of business; or
(ii) faxing it to the person's facsimile
number; or
(iii) emailing it to the person's email
address.
(4) A document that is posted to a person is
taken to have been given to the person when it is
delivered in the ordinary course of post.
Section 78 amended (Council seal)
72. Section 78 of the Principal Act is amended as follows:
(a) by omitting subsection (1) and substituting the
following subsection:
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(1) The Council may have a seal and, if
it does, the seal is to be kept and used as
authorised by the Council.
(b) by omitting from subsection (2) "common".
Section 79 amended (Presumptions)
73. Section 79 of the Principal Act is amended by omitting
paragraphs (c) and (d) and substituting the following
paragraphs:
(c) the presence of a quorum at any meeting of
the Council, the Tribunal or a committee; or
(d) the appointment of any member of the
Council, the Tribunal or a committee; or
(e) the appointment of any investigator or
inspector.
Section 80 amended (Appropriation of fees,
penalties and fines)
74. Section 80 of the Principal Act is amended as follows:
(a) by omitting from subsection (3) "may be
recovered as a debt due to the Council." and
substituting "is payable to, and may be
recovered as a debt due to, the Council.";
(b) by inserting the following subsection after
subsection (3):
(4) Any costs or expenses ordered to be
paid under section 53(1) are payable to, and
may be recovered as a debt due to, the
Council.
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Amendment
Section 81 amended (No right of recovery by
unregistered person, &c.)
75. Section 81 of the Principal Act is amended by omitting
subsection (3).
Section 82 amended (Punishment of conduct
constituting an offence)
76. Section 82 of the Principal Act is amended by omitting
"section 49" and substituting "section 49D".
Section 84 amended (Act does not prohibit certain
practices)
77. Section 84(2) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (b) "employed; or"
and substituting "employed.";
(b) by omitting paragraphs (c) and (d).
Section 85 amended (Regulations)
78. Section 85 of the Principal Act is amended as follows:
(a) by omitting subsection (2) and substituting the
following subsection:
(2) Without limiting the generality of
subsection (1), the regulations may make
provision for or in relation to -
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(a) infection control standards to be
followed by medical practitioners;
and
(b) the continuing professional
education of medical practitioners.
(b) by omitting from subsection (3) "Regulations
made under this Act" and substituting "The
regulations";
(c) by omitting from subsection (4) "Regulations
made under this Act" and substituting "The
regulations";
(d) by omitting from subsection (5) "Regulations
made under this Act" and substituting "The
regulations";
(e) by inserting in subsection (5) "or the Medical
Practitioners Registration Amendment Act
2004" after "Act";
(f) by inserting in subsection (6) "in respect of the
enactment of this Act" after "subsection (5)";
(g) by inserting the following subsection after
subsection (6):
(7) A provision of a regulation made
pursuant to subsection (5) in respect of the
enactment of the Medical Practitioners
Registration Amendment Act 2004 may, if the
regulation so provides, take effect on the day
referred to in section 2 of that Act or a later
day.
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2004 Medical Practitioners Registration No. s. 79
Amendment
Section 85A inserted
79. After section 85 of the Principal Act, the following
section is inserted in Division 2:
Professional indemnity insurance guidelines
85A. (1) The Minister may issue guidelines relating
to the levels of professional indemnity insurance
that are appropriate for medical practice in this
State.
(2) The guidelines may be of general
application or distinguish between different
categories or circumstances of medical practice.
(3) In formulating the guidelines, the Minister
may -
(a) seek submissions from the Council; and
(b) consult such providers of medical
indemnity insurance, such bodies as
represent the interests of medical
practitioners and such other interested
persons as the Minister considers
appropriate; and
(c) take into account such considerations as
the Minister considers relevant.
(4) The Minister is to give a copy of the
guidelines to the Council and may publish them as
he or she sees fit.
(5) The Minister must, on application, provide
a copy of the guidelines to any person but may
charge a fee to recover the cost of doing so.
(6) The guidelines are not statutory rules for
the purposes of the Rules Publication Act 1953.
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Amendment
Sections 88, 89 and 90 repealed
80. Sections 88, 89 and 90 of the Principal Act are
repealed.
Schedule 1 amended (Provisions with respect to
membership of Council)
81. Schedule 1 to the Principal Act is amended as follows:
(a) by omitting from clause 1(1) "period" and
substituting "term of office";
(b) by omitting subclauses (2) and (3) from clause
1 and substituting the following subclauses:
(2) If eligible, a member may be
appointed for further terms of office.
(3) Despite subclause (2), a member is
not eligible to be appointed for a further term
of office that, if served in full, would result in
the member having been in office continuously
for more than 10 years.
(4) Subclause (3) does not apply to a
member referred to in section 6(1)(a) if the
member is to be appointed as President for the
further term of office.
(c) by omitting from clause 2 "under any Act" and
substituting "by the terms of his or her
employment";
(d) by omitting clause 5 and substituting the
following clause:
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2004 Medical Practitioners Registration No. s. 82
Amendment
Filling of vacancies
5. If the office of a member becomes vacant,
the Governor may appoint a person to the
vacant office for the remainder of that
member's term of office.
Schedule 2 amended (Provisions with respect to
meetings of Council)
82. Schedule 2 to the Principal Act is amended as follows:
(a) by omitting from clause 6(1) "section 49" and
substituting "section 49D";
(b) by omitting clause 7 and substituting the
following clause:
Participation in meetings
7. (1) The Council may permit members to
participate in a particular meeting or all
meetings by -
(a) telephone; or
(b) video conference; or
(c) any other means of
communication approved by the
Council.
(2) A member who participates in a
meeting under a permission granted under
subclause (1) is taken to be present at the
meeting.
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(3) The Council may allow a person to
attend a meeting for the purpose of advising or
informing it on any matter.
Schedule 3 substituted
83. Schedule 3 to the Principal Act is repealed and the
following Schedule is substituted:
SCHEDULE 3 - POWERS AND PROCEDURES
OF ASSESSMENT COMMITTEES AND
INVESTIGATORS
Section 11(7) and section 48(5)
Interpretation
1. In this Schedule -
"proceedings" means -
(a) an assessment; or
(b) an investigation;
"responsible entity" means -
(a) for an assessment, the assessment
committee carrying out the
assessment; and
(b) for an investigation, the
investigator carrying out the
investigation;
"responsible person" means -
(a) for a responsible entity that is a
committee, the chairperson of the
committee or the Registrar; and
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(b) for a responsible entity that is not
a committee, the responsible
entity or the Registrar.
Powers
2. (1) A responsible entity -
(a) may, by notice, request any person to
appear before it to give evidence or to
produce a document or other thing
specified in the notice; and
(b) may receive evidence, orally or in
writing; and
(c) may take evidence on oath or
affirmation; and
(d) may adjourn its proceedings from time
to time and from place to place.
(2) For the purpose of subclause (1)(c), the
responsible person may administer an oath or
affirmation.
(3) A responsible entity may, in its discretion,
conduct its proceedings in public or in private.
Procedures
3. (1) A responsible entity -
(a) must conduct its proceedings with as
little formality and with as much
expedition as a proper consideration of
the matter before it permits; and
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(b) is not bound by the rules of evidence;
and
(c) may inform itself on any matter in any
way it considers appropriate; and
(d) must observe the rules of natural
justice.
(2) A responsible entity's report to Council on
any matter is to -
(a) contain any findings on questions of fact
and the evidence or other material on
which those findings are based; and
(b) set out the reasons for any
recommendation.
(3) Before an assessment is carried out, the
relevant assessment committee or the Registrar is to
give the subject of the assessment notice of -
(a) the reasons for holding the assessment;
and
(b) the date, time and place set for the
assessment.
Medical examinations
4. (1) In this clause -
"medical examination" includes an examination
of the physical, psychological and mental
capacities of a person.
(2) A responsible entity may, by notice,
require the medical practitioner who is the subject of
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2004 Medical Practitioners Registration No. s. 83
Amendment
its proceedings to have a medical examination if the
responsible entity reasonably considers that the
medical practitioner's medical condition may be a
relevant consideration in those proceedings.
(3) The Council must pay for the medical
examination.
(4) The notice requiring the medical
examination is to specify -
(a) the name of the registered medical
practitioner or other health care
professional who is to carry out the
examination; and
(b) the date, time and place of the
examination.
(5) The time and place specified for the
medical examination must be reasonable.
(6) The medical practitioner who carries out
the medical examination is to give a written report
of the results of the examination to -
(a) the responsible entity; and
(b) the person examined or, if the
responsible entity so directs, a
representative of that person nominated
by the responsible entity.
(7) The responsible entity is not to give a
direction under subclause (6)(b) unless it is
reasonably satisfied that it may be harmful to or
otherwise not in the best interests of the person
examined to be given the report.
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(8) A person nominated under subclause (6)(b)
is to be someone who, in the reasonable opinion of
the responsible entity, best represents or is capable
of best representing the interests of the person
examined for the purposes of the proceedings.
Representation
5. A person who is the subject of any proceedings is
not entitled to be represented in those proceedings
but he or she is entitled, at any hearing held during
the proceedings, to be accompanied by a legal
practitioner or any other person.
Schedule 4 amended (Provisions with respect to
membership of Tribunal)
84. Schedule 4 to the Principal Act is amended as follows:
(a) by omitting the definition of "meeting" from
clause 1 and substituting the following
definition:
"meeting" includes a hearing held in
the course of a formal inquiry;
(b) by omitting from clause 2(1) "period" and
substituting "term";
(c) by omitting from clause 2(1) "2" and
substituting "5";
(d) by omitting subclause (2) from clause 2 and
substituting the following subclause:
(2) If eligible, a permanent member may
be appointed for further terms.
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Amendment
(e) by omitting from clause 3 "under any Act" and
substituting "by the terms of his or her
employment";
(f) by omitting from clause 5(2)(a) "to deal with a
particular inquiry" and substituting "for the
purposes of a particular formal inquiry";
(g) by omitting from clause 5(2)(a) "the purposes
of";
(h) by omitting from clause 5(2)(b) "to deal with
the inquiry" and substituting "for the purposes
of the formal inquiry";
(i) by omitting from clause 5(2)(b) "the purposes
of".
Schedule 5 substituted
85. Schedule 5 to the Principal Act is repealed and the
following Schedule is substituted:
SCHEDULE 5 - PROVISION WITH RESPECT
TO POWERS AND PROCEDURES OF
TRIBUNAL
Section 50(12)
PART 1 - GENERAL PROCEDURES
Main procedural obligations, &c.
1. The Tribunal -
(a) must conduct its proceedings with as
little formality and with as much
expedition as a proper consideration of
the matter before it permits; and
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(b) is not bound by the rules of evidence but
may inform itself on any matter in any
way it considers appropriate; and
(c) must observe the rules of natural
justice.
Proceedings to be open to public
2. (1) Except as provided by this clause, the
proceedings of the Tribunal are to be open to the
public.
(2) During any proceedings the Tribunal may,
on the application of a party to the proceedings or on
its own motion, do either or both of the following if it
considers that there are compelling grounds to do so:
(a) make an order excluding any person
from the proceedings;
(b) make an order prohibiting the reporting
or other disclosure of all or any of the
proceedings or prohibiting the reporting
or other disclosure of particular
information in respect of the
proceedings.
(3) Without limiting the range of grounds that
may be relevant for the purposes of subclause (2),
the Tribunal may exercise its power under that
subclause if -
(a) it is dealing with privileged information
or information that has been
communicated to the Council or the
Tribunal in confidence; or
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Amendment
(b) it is dealing with information concerning
the personal affairs, finances or business
arrangements of a registered medical
practitioner; or
(c) the disclosure of the proceedings or the
information may be unfairly prejudicial
to the reputation of a registered medical
practitioner or any other person.
(4) Nothing in this clause is to be taken as
preventing the Tribunal from -
(a) meeting in camera for the purpose of
preparing for any proceedings or any
stage of any proceedings; or
(b) meeting in camera for the purposes of
reaching a finding on any matter in the
course of, or at the conclusion of, any
proceedings.
Representation, &c.
3. (1) A defendant in a formal inquiry is entitled be
represented in that formal inquiry by a legal
practitioner or any other person.
(2) The Council, at its own expense, may
appoint a legal practitioner to help the Tribunal
conduct a formal inquiry.
(3) The Secretary may -
(a) become a party to a formal inquiry; and
(b) be represented in that formal inquiry by
an employee of the Department.
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Convening the Tribunal
4. The Tribunal, as constituted for any formal
inquiry, may be convened by -
(a) the chairperson; or
(b) a permanent member and a special
member; or
(c) 2 special members.
Constitution of Tribunal and effect of
vacancies
5. (1) Subject to this clause, the Tribunal is not
competent to take any action in a formal inquiry
unless each of the 2 permanent members, and each
of the 3 special members appointed for that inquiry,
is present.
(2) If one of the members, other than the
chairperson, constituting the Tribunal for a formal
inquiry vacates office for any reason before that
inquiry is completed, the inquiry may be continued
and completed by the remaining 4 members
regardless of whether, in the case of a vacancy in the
office referred to in section 50(2)(b), any other
person is appointed to the vacant office.
(3) If more than one of the members
constituting the Tribunal for a formal inquiry
vacates office for any reason before that inquiry is
completed, the inquiry is terminated.
(4) If a formal inquiry is terminated by virtue
of subclause (3), the Tribunal may be reconstituted
for the purposes of conducting a new formal inquiry
on the same matter.
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Amendment
(5) For the purposes of this clause, a formal
inquiry is taken to have been completed once the
Tribunal has taken an action under section 52.
Chairperson
6. The chairperson is to preside over all proceedings
of the Tribunal.
Minutes
7. The Tribunal is to keep -
(a) accurate minutes of its meetings; and
(b) a verbatim record of each hearing held
in the course of a formal inquiry.
PART 2 - FACILITATION OF PROCEEDINGS
Practice directions
8. (1) The chairperson may -
(a) issue such practice directions in relation
to the practice and procedure of the
Tribunal as the chairperson thinks fit;
and
(b) vary or revoke any such practice
directions; and
(c) publish any such practice directions as
the chairperson thinks fit.
(2) The practice and procedure of the Tribunal
is to be in accordance with the practice directions
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Amendment
from time to time in force unless the provisions of
any Act or the provisions of any rules or other
statutory instruments made under an Act provide
otherwise.
Specific determinations and directions
9. (1) Before the first hearing is held in a formal
inquiry, the chairperson may -
(a) determine any question of law or
procedure that is expected to arise later
in the proceedings; and
(b) determine any other question that the
chairperson considers necessary or
convenient to determine in order to
ensure that the remainder of the
proceedings will be conducted fairly and
expeditiously; and
(c) give such directions, consistent with the
practice directions issued under
clause 8, as the chairperson thinks fit for
the purposes of resolving any issue or
matter that he or she considers
necessary or convenient to resolve for
the remainder of the proceedings.
(2) At any time during a formal inquiry, the
Tribunal may -
(a) determine any question of law or
procedure that is expected to arise later
in the proceedings; and
(b) determine any other question that it
considers necessary or convenient to
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Amendment
determine in order to ensure that the
remainder of the proceedings will be
conducted fairly and expeditiously; and
(c) give such directions, consistent with the
practice directions issued under
clause 8, as it thinks fit for the purposes
of resolving any issue or matter that it
considers necessary or convenient to
resolve for the remainder of the
proceedings.
PART 3 - VOTES AND DECISIONS
Voting
10. (1) Questions arising for determination by the
Tribunal are to be determined by a majority of votes
of the members present and voting.
(2) In the event of an equality of votes on a
question arising for determination by the Tribunal,
the question stands adjourned until it is next
convened.
(3) The vote of a special member is equal to
the vote of a permanent member.
Announcement of decisions
11. (1) At the conclusion of a formal inquiry, the
Tribunal may announce its decision.
(2) The announcement may be made by -
(a) the Tribunal sitting together; or
(b) the chairperson sitting alone.
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(3) An announcement is to be in addition to,
and not in substitution for, a notice under
section 54.
Tribunal may take other matters into account
in making its decision
12. (1) In making its decision in a formal inquiry,
the Tribunal may take into account any evidence
that has been given in the formal inquiry concerning
any matter that the Tribunal is satisfied could
constitute grounds for a further complaint against
the defendant.
(2) Subclause (1) has effect whether or not any
person has made a complaint about the matter that
the Tribunal takes into account.
(3) Subclause (1) does not prevent -
(a) a person from making a complaint about
the matter that the Tribunal takes into
account; or
(b) the Council from taking action under
section 48A about the matter that the
Tribunal takes into account.
PART 4 - POWERS
General powers
13. The Tribunal may -
(a) by summons, require any person to
appear before it to give evidence or to
produce any document or other thing
specified in the summons; and
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(b) require any person appearing before it to
produce any document; and
(c) require any person appearing before it to
give evidence on oath or affirmation; and
(d) require any person appearing before it to
answer questions; and
(e) proceed with and determine any
proceedings notwithstanding the
absence of a person who has been
summonsed to appear; and
(f) adjourn any proceedings from time to
time and place to place.
Power to require medical examinations
14. (1) In this clause -
"medical examination" includes an examination
of the physical, psychological and mental
capacities of a person.
(2) The Tribunal may, by notice, require the
defendant in a formal inquiry to have a medical
examination if the Tribunal reasonably considers
that the defendant's medical condition may be a
relevant consideration in that formal inquiry.
(3) Unless the Tribunal under section 53
orders otherwise, the Council must pay for the
medical examination.
(4) The notice requiring the medical
examination is to specify -
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Amendment
(a) the name of the registered medical
practitioner or other health care
professional who is to carry out the
examination; and
(b) the date, time and place of the
examination.
(5) The time and place specified for the
medical examination must be reasonable.
(6) The medical practitioner who carries out
the medical examination is to give a written report
of the results of the examination to -
(a) the Tribunal; and
(b) the defendant or, if the Tribunal so
directs, a representative of the
defendant nominated by the Tribunal.
(7) The Tribunal is not to give a direction
under subclause (6)(b) unless it is reasonably
satisfied that it may be harmful to or otherwise not
in the best interests of the defendant to be given the
report.
(8) A person nominated under subclause (6)(b)
is to be someone who, in the reasonable opinion of
the Tribunal, best represents or is capable of best
representing the interests of the defendant for the
purposes of the formal inquiry.
Schedule 6 amended (Provisions with respect to
inspection warrants)
86. Schedule 6 to the Principal Act is amended by
inserting in the heading to that "INSPECTION" after
"TO".
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Amendment
Schedules 8 and 9 repealed
87. Schedules 8 and 9 to the Principal Act are repealed.
Transitional provisions
88. The transitional provisions set out in Schedule 1 have
effect.
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SCHEDULE 1 - TRANSITIONAL PROVISIONS
Section 88
Interpretation
1. In this Schedule -
"commencement day" means the day on which
this Act commences;
"new Act" means the Principal Act as amended by
this Act;
"old Act" means the Principal Act as in force
immediately before the commencement day.
Assessments
2. (1) A committee of assessors that was carrying out an
assessment under the old Act immediately before the
commencement day continues as an assessment committee
under the new Act.
(2) Any assessment in progress under the old Act
immediately before the commencement day may be
continued under the new Act.
Disciplinary proceedings
3. (1) Any prescribed matter that was in the process of
being dealt with by the Council under section 49 of the old
Act immediately before the commencement day is taken to
constitute, and may be continued as, an informal inquiry
under the new Act.
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(2) Any inquiry in progress under the old Act
immediately before the commencement day is taken to
constitute, and may be continued as, a formal inquiry
under the new Act.
Government Printer, Tasmania 105