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Health Legislation Amendment and
Repeal Bill 2019
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the main purposes of the Bill, which are--
• to repeal the Access to Medicinal Cannabis Act 2016;
• to amend the Health Services Act 1988--
• to clarify the operation of the offences in
section 111 of that Act;
• to make minor amendments in relation to
provisions concerning the directors of public
hospitals and multi purpose services;
• to introduce term limits for the appointment of
members of Health Purchasing Victoria;
• to include a regulation-making power in relation
to governance of health service establishments;
• to make minor amendments in relation to multi
purpose services and name changes of public
hospitals and public health services;
• to include provisions for the sharing of
information for purposes of the quality and
safety of the Victorian health system;
• to amend the Mental Health Act 2014--
• to facilitate the sharing of information between
the Mental Health Complaints Commissioner
and other entities;
591030 1 BILL LA INTRODUCTION 27/8/2019
• to make amendments concerning the operation of
the Mental Health Complaints Commissioner's
functions in relation to the conciliation of
complaints;
• to amend the provisions concerning the provision
of reports from mental health service providers
to the Mental Health Complaints Commissioner
about complaints;
• to amend the Tobacco Act 1987--
• to prohibit indirect advertising by tobacco
manufacturers and e-cigarette manufacturers;
• to repeal exemptions for the display of tobacco
or e-cigarette advertisements;
• to make minor and consequential amendments to other
Acts.
Clause 2 is the commencement provision.
The repeal of the Access to Medicinal Cannabis Act 2016 and
related amendments in Part 2, the amendments to the Health
Services Act 1988 in Part 4, the amendments to the Tobacco
Act 1987 in Part 5 and the amendments to the Mental Health
Act 2014 in Part 6 commence on the day after the day on which
the Bill receives the Royal Assent.
The amendments to the Health Services Act 1988 concerning
section 111 of that Act (set out in Part 3), the amendments to the
Health Complaints Act 2016 in Part 7 and the amendments to
the Health Services Act 1988 concerning information sharing
for quality and safety purposes (set out in Part 8) come into
operation on a day or days to be proclaimed.
Part 2--Repeal of Access to Medicinal Cannabis Act 2016 and
related amendments
Division 1--Repeal
Clause 3 repeals the Access to Medicinal Cannabis Act 2016 as it is no
longer necessary to facilitate access to medicinal cannabis in
Victoria. Not long after that Act was passed, the Commonwealth
introduced its own legislation and subsequently developed its
own comprehensive regulatory scheme to provide for access to
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medicinal cannabis. This meant that the Victorian scheme was
never implemented and that no medicinal cannabis products
prescribed to patients ever met the Act's definition of medicinal
cannabis. The Access to Medicinal Cannabis Act 2016 is now
being repealed to remove the potential for regulatory duplication.
Following the repeal, manufacture licensing and patient access
will continue to be regulated under the existing drugs and poisons
framework in a manner consistent with other Schedule 4 and
Schedule 8 drugs in Victoria.
Division 2--Amendment of the Drugs, Poisons and Controlled
Substances Act 1981
Clause 4 subclause (1) revokes the definitions of approved medicinal
cannabis product, medicinal cannabis, medicinal cannabis
cultivation licence, medicinal cannabis manufacturing licence,
medicinal cannabis product, patient medicinal cannabis access
authorisation and practitioner medicinal cannabis
authorisation in section 4(1) of the Drugs, Poisons and
Controlled Substances Act 1981, which are redundant due to
the repeal of the Access to Medicinal Cannabis Act 2016.
Subclause (2) amends the definitions of poison or controlled
substance, psychoactive substance, Schedule 8 Poison and
Schedule 9 Poison in section 4(1) of the Drugs, Poisons and
Controlled Substances Act 1981 to remove references to
medicinal cannabis and make related consequential amendments.
Clause 5 removes a redundant reference to the Access to Medicinal
Cannabis Act 2016 from section 7 of the Drugs, Poisons and
Controlled Substances Act 1981.
Clause 6 removes a redundant reference to the Access to Medicinal
Cannabis Act 2016 and the regulations under that Act from
section 13(1) of the Drugs, Poisons and Controlled Substances
Act 1981, relating to authorisations under that Act.
Clause 7 amends section 20(3) of the Drugs, Poisons and Controlled
Substances Act 1981, which sets out what a permit authorises a
person to do, to remove a reference to medicinal cannabis.
This reference is redundant as medicinal cannabis will no longer
be regulated separately due to the repeal of the Access to
Medicinal Cannabis Act 2016.
3
Clause 8 removes redundant references to the Access to Medicinal
Cannabis Act 2016 from section 23 of the Drugs, Poisons and
Controlled Substances Act 1981.
Clause 9 removes a redundant reference to the Access to Medicinal
Cannabis Act 2016 from section 24 of the Drugs, Poisons and
Controlled Substances Act 1981.
Clause 10 removes redundant references to the Access to Medicinal
Cannabis Act 2016 from section 26 of the Drugs, Poisons and
Controlled Substances Act 1981.
Clause 11 removes a redundant reference to the Access to Medicinal
Cannabis Act 2016 from section 27 of the Drugs, Poisons and
Controlled Substances Act 1981.
Clause 12 repeals section 27A(5) of the Drugs, Poisons and Controlled
Substances Act 1981. Section 27A sets out offences concerning
labelling and other matters. Subsection (5) provides that the
section does not apply in relation to medicinal cannabis products.
This is no longer necessary as, following the establishment of the
Commonwealth regulatory scheme, medicinal cannabis has been
regulated in the same way as other poisons and controlled
substances in Victoria, and not under the Access to Medicinal
Cannabis Act 2016 which is now is being repealed.
Clause 13 repeals section 29(3) of the Drugs, Poisons and Controlled
Substances Act 1981. Section 29 prohibits the sale of
substances in unauthorised containers. Subsection (3) provides
that nothing in that section affects containers in which approved
medicinal cannabis products may be sold. This is no longer the
case as, following the establishment of the Commonwealth
regulatory scheme, medicinal cannabis has been regulated under
the Drugs, Poisons and Controlled Substances Act 1981, and
not under the Access to Medicinal Cannabis Act 2016 which is
now being repealed.
Clause 14 repeals section 31A of the Drugs, Poisons and Controlled
Substances Act 1981. Section 31A provides that Division 10 of
Part II of the Drugs, Poisons and Controlled Substances
Act 1981 does not apply to medicinal cannabis. This is no longer
the case as, following the establishment of the Commonwealth
regulatory scheme, medicinal cannabis has been regulated under
the Drugs, Poisons and Controlled Substances Act 1981, and
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not under the Access to Medicinal Cannabis Act 2016 which is
now being repealed.
Clause 15 removes the redundant reference to medicinal cannabis, the
Access to Medicinal Cannabis Act 2016 and regulations under
that Act from section 36C of the Drugs, Poisons and Controlled
Substances Act 1981. Section 36C states that nothing in
Division 10A of Part II--Administration of medication in aged
care services affects, in relation to medicinal cannabis, any other
requirement in the Drugs, Poisons and Controlled Substances
Act 1981 or regulations or the Access to Medicinal Cannabis
Act 2016 and regulations. Following this amendment, Division
10A of Part II will continue to apply to medicinal cannabis in the
same way it applies to other medication.
Clause 16 removes the references to medicinal cannabis from section 36E
of the Drugs, Poisons and Controlled Substances Act 1981.
That section relates to the administration of certain drugs in aged
care services, and the specific reference to medicinal cannabis
product is no longer necessary following the repeal of the Access
to Medicinal Cannabis Act 2016.
Clause 17 amends section 42 of the Drugs, Poisons and Controlled
Substances Act 1981, which relates to inspections, to remove
references to the medicinal cannabis legislation. Currently, the
inspection powers can be exercised for the purpose (among
others) of ascertaining whether the provisions of the Access to
Medicinal Cannabis Act 2016 and regulations under that Act
are being complied with. This is no longer needed following the
repeal of the Access to Medicinal Cannabis Act 2016.
Clause 18 repeals section 43(5) of the Drugs, Poisons and Controlled
Substances Act 1981. Section 43 of the Drugs, Poisons and
Controlled Substances Act 1981 relates to duties of authorised
officers in relation to seized substances or documents.
Subsection (5) relates specifically to medical cannabis and is no
longer required following the repeal of the Access to Medicinal
Cannabis Act 2016.
Clause 19 repeals section 44(6) of the Drugs, Poisons and Controlled
Substances Act 1981. Section 44 of the Drugs, Poisons and
Controlled Substances Act 1981 sets out persons liable for
contraventions of the Act. Subsection (6) provides that the
section does not apply to medicinal cannabis, which is no longer
5
necessary due to the repeal of the Access to Medicinal Cannabis
Act 2016.
Clause 20 repeals section 61A of the Drugs, Poisons and Controlled
Substances Act 1981. Section 61A provides that Part IVA--
Authorities for low-THC cannabis does not apply to medicinal
cannabis. This exception is no longer required as, following the
repeal of the Access to Medicinal Cannabis Act 2016,
medicinal cannabis will be regulated in the same way as other
poisons and controlled substances.
Clause 21 removes a reference to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 71 of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 71 is an offence provision in relation to trafficking a
large commercial quantity of a drug of dependence. The effect of
this amendment is to remove the specific exception to the offence
based upon a person being authorised under the Access to
Medicinal Cannabis Act 2016. The repeal of that Act means
this exception is no longer required.
Clause 22 removes references to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 71AA
of the Drugs, Poisons and Controlled Substances Act 1981.
Section 71AA is an offence provision in relation to trafficking a
commercial quantity of a drug of dependence. The effect of this
amendment is to remove the specific exception to the offence
based upon a person being authorised under the Access to
Medicinal Cannabis Act 2016. The repeal of that Act means
this exception is no longer required.
Clause 23 removes references to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 71AB
of the Drugs, Poisons and Controlled Substances Act 1981.
Section 71AB is an offence provision in relation to trafficking in
a drug of dependence to a child. The effect of this amendment is
to remove the specific exception to the offence based upon a
person being authorised under the Access to Medicinal
Cannabis Act 2016. The repeal of that Act means this exception
is no longer required.
Clause 24 removes references to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 71AC
of the Drugs, Poisons and Controlled Substances Act 1981.
6
Section 71AC is an offence provision in relation to trafficking in
a drug of dependence. The effect of this amendment is to remove
the specific exception to the offence based upon a person being
authorised under the Access to Medicinal Cannabis Act 2016.
The repeal of that Act means this exception is no longer required.
Clause 25 removes references to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 71A of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 71A is an offence provision in relation to possession of
substance, material, documents or equipment for trafficking in a
drug of dependence. The effect of this amendment is to remove
the specific exception to the offence based upon a person being
authorised under the Access to Medicinal Cannabis Act 2016.
The repeal of that Act means this exception is no longer required.
Clause 26 removes references to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 71B of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 71B is an offence provision in relation to supply of a
drug of dependence to a child. The effect of this amendment is to
remove the specific exception to the offence based upon a person
being authorised under the Access to Medicinal Cannabis
Act 2016. The repeal of that Act means this exception is no
longer required.
Clause 27 removes a reference to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 71C of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 71C is an offence provision in relation to possession of a
tablet press. The effect of this amendment is to remove the
specific exception to the offence based upon a person being
authorised under the Access to Medicinal Cannabis Act 2016.
The repeal of that Act means this exception is no longer required.
Clause 28 removes a reference to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 71D of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 71D is an offence provision in relation to possession of
precursor chemicals. The effect of this amendment is to remove
the specific exception to the offence based upon a person being
authorised under the Access to Medicinal Cannabis Act 2016.
The repeal of that Act means this exception is no longer required.
7
Clause 29 removes a reference to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 71E of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 71E is an offence provision in relation to possession of a
document containing information about trafficking or cultivating
a drug of dependence. The effect of this amendment is to remove
the specific exception to the offence based upon a person being
authorised under the Access to Medicinal Cannabis Act 2016.
The repeal of that Act means this exception is no longer required.
Clause 30 removes a reference to the Access to Medicinal Cannabis
Act 2016 and the Regulations under that Act from section 71F of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 71F is an offence provision in relation to publication of a
document containing instructions for the trafficking or cultivation
of a drug of dependence. The effect of this amendment is to
remove the specific exception to the offence based upon a person
being authorised under the Access to Medicinal Cannabis
Act 2016. The repeal of that Act means this exception is no
longer required.
Clause 31 removes a reference to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 72 of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 72 is an offence provision in relation to cultivation of a
large commercial quantity of narcotic plants. The effect of this
amendment is to remove the specific exception to the offence
based upon a person being authorised under the Access to
Medicinal Cannabis Act 2016. The repeal of that Act means
this exception is no longer required.
Clause 32 removes a reference to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 72A of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 72A is an offence provision in relation to cultivation of a
commercial quantity of narcotic plants. The effect of this
amendment is to remove the specific exception to the offence
based upon a person being authorised under the Access to
Medicinal Cannabis Act 2016. The repeal of that Act means
this exception is no longer required.
Clause 33 removes a reference to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 72B of
the Drugs, Poisons and Controlled Substances Act 1981.
8
Section 72B is an offence provision in relation to cultivation of
narcotic plants. The effect of this amendment is to remove the
specific exception to the offence based upon a person being
authorised under the Access to Medicinal Cannabis Act 2016.
The repeal of that Act means this exception is no longer required.
Clause 34 removes references to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 72D of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 72D is an offence provision in relation to permitting use
of premises for trafficking or cultivation of a drug of dependence.
The effect of this amendment is to remove the specific exception
to the offence based upon a person being authorised under the
Access to Medicinal Cannabis Act 2016. The repeal of that Act
means this exception is no longer required.
Clause 35 removes references to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 73 of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 73 is an offence provision in relation to possession of a
drug of dependence. The effect of this amendment is to remove
the specific exception to the offence based upon a person being
authorised under the Access to Medicinal Cannabis Act 2016.
The repeal of that Act means this exception is no longer required.
Clause 36 removes a reference to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 74 of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 74 is an offence provision in relation to the introduction
of a drug of dependence into the body of another person.
The effect of this amendment is to remove the specific exception
to the offence based upon a person being authorised under the
Access to Medicinal Cannabis Act 2016. The repeal of that Act
means this exception is no longer required.
Clause 37 removes a reference to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 75 of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 75 is an offence provision in relation to the use of a drug
of dependence. The effect of this amendment is to remove the
specific exemption to the offence based upon a person being
authorised under the Access to Medicinal Cannabis Act 2016.
The repeal of that Act means this exception is no longer required.
9
Clause 38 repeals section 77(2) of the Drugs, Poisons and Controlled
Substances Act 1981. Section 77 provides that forging
prescriptions is an offence. Section 77(2) relates to a patient
medicinal cannabis access authorisation, and is redundant
following the repeal of the Access to Medicinal Cannabis
Act 2016.
Clause 39 removes references to the Access to Medicinal Cannabis
Act 2016 and the regulations under that Act from section 78 of
the Drugs, Poisons and Controlled Substances Act 1981.
Section 78 is an offence provision relating to obtaining drugs of
dependence by false representation. The effect of this
amendment is to remove the specific exemptions to the offence
based upon a person being authorised under the Access to
Medicinal Cannabis Act 2016. The repeal of that Act means
these exemptions are no longer required.
Clause 40 amends the definition of medicinal cannabis vaporiser in
section 80T of the Drugs, Poisons and Controlled Substances
Act 1981. This is needed following the repeal of the Access to
Medicinal Cannabis Act 2016, which defined the term
medicinal cannabis product (used in this definition).
The definition of medical cannabis vaporiser will now refer to a
"legal medicinal cannabis product", meaning one that is legal
under drugs and poisons legislation.
Clause 41 substitutes section 80TA in the Drugs, Poisons and Controlled
Substances Act 1981, which provides that Part VC - Cannabis
water pipes and hookahs - does not apply in relation to a
pharmacist dealing with a medicinal cannabis vaporiser.
This amendment is necessary to remove the redundant reference
to the Access to Medicinal Cannabis Act 2016, while
continuing to ensure that Part VC does not apply in relation to a
pharmacist displaying, selling or supplying a medicinal cannabis
vaporiser to a person for the administration of a legal medicinal
cannabis product.
Clause 42 repeals section 118(7) of the Drugs, Poisons and Controlled
Substances Act 1981. That section relates to a list of licences
and permits required to be kept. Section 118(7) states that the
section does not apply to certain medicinal cannabis licences and
authorisations, and is no longer needed.
10
Clause 43 amends section 122(b) of the Drugs, Poisons and Controlled
Substances Act 1981 to omit the redundant reference to
"medicinal cannabis product".
Clause 44 repeals section 129A of the Drugs, Poisons and Controlled
Substances Act 1981. This is a regulation making power in
respect of medicinal cannabis, and is no longer needed.
Division 3--Consequential amendment of Crimes Act 1958
Clause 45 repeals the redundant definitions of medicinal cannabis product
and patient medicinal cannabis access authorisation in
section 2A(1) of the Crimes Act 1958.
Clause 46 amends section 36B(2) of the Crimes Act 1958 to repeal
paragraph (ca) and omit the reference to a medicinal cannabis
product from paragraph (d) of that section, as a consequence of
the repeal of the Access to Medicinal Cannabis Act 2016.
Clause 47 subclause (1) amends section 322T(5) of the Crimes Act 1958 to
repeal paragraph (ca) and omit the redundant reference to a
medicinal cannabis product from paragraph (d) of that section.
Subclause (2) consequentially amends section 322T(6) of the
Crimes Act 1958 to omit the reference to the repealed paragraph.
Division 4--Consequential amendment of other Acts
Clause 48 repeals the redundant definition of approved medicinal cannabis
product in section 3(1) of the Guardianship and
Administration Act 1986.
Clause 49 amends the definition of health service in section 3(1) of the
Health Records Act 2001 to repeal paragraph (ca) and to
consequentially omit the reference in paragraph (d) to the
repealed paragraph. Paragraph (ca) provides that the sale or
supply of an approved medicinal cannabis product by a
pharmacist is a health service, for the purposes of the Health
Records Act 2001, and is redundant following the repeal of the
Access to Medicinal Cannabis Act 2016.
Clause 50 amends section 3(1) of the Medical Treatment Planning and
Decisions Act 2016 to remove the redundant reference to an
approved medicinal cannabis product from the definition of
medical treatment. Following the establishment of the
11
Commonwealth regulatory scheme, medicinal cannabis is
regulated under the Drugs, Poisons and Controlled Substances
Act 1981 in the same way as other prescription pharmaceuticals
and does not need to be separately referenced.
Clause 51 amends section 3(1) of the Pharmacy Regulation Act 2010 to
repeal the definition of medicine and amend the definition of
prescription to remove redundant references to medicinal
cannabis.
Clause 52 repeals section 107(1)(c)(ii) of the Pharmacy Regulation
Act 2010, as this refers to the Access to Medicinal Cannabis
Act 2016 and is redundant due to the repeal of that Act.
Clause 53 amends section 9(1)(j) of the Prevention to Cruelty to Animals
Act 1986 to remove a reference to the Access to Medicinal
Cannabis Act 2016. Section 9 is an offence provision relating to
cruelty to an animal and includes an offence of intentionally
administering to an animal or laying a bait containing a poison or
other harmful substance. The effect of the amendment is to
remove an exception for a person acting in accordance with the
Access to Medicinal Cannabis Act 2016, which is no longer
necessary following the repeal of that Act.
Part 3--Amendment of Health Services Act 1988--offences
Clause 54 substitutes a new section 111 of the Health Services Act 1988.
The new section clarifies that section 111 consists of 2 separate
offences.
New subsection (1) makes it an offence for a person to carry on a
health service establishment at or from premises that are not
registered as a health service establishment. The offence may be
committed by an individual or an incorporated body, given the
meaning of person within the Interpretation of Legislation
Act 1984. The reference to carrying on a health service
establishment at or from premises is consistent with section 4 of
the Health Services Act 1988. A person may commit the
offence, for example, if the person provides health services of a
prescribed kind in a mobile unit and the premises at which the
mobile unit is based is not registered as a health service
establishment. The term health service establishment is defined
by section 3(1) of the Health Services Act 1988 to mean a
private hospital, a day procedure centre and also a "premises at
12
which, or from which, a prescribed health service is provided".
The terms private hospital and day procedure centre are also
defined by reference to the provision of health services of a
prescribed kind. For example, an individual who provides at
their home cosmetic services that the relevant regulations
prescribe as "health services of a prescribed kind" will commit an
offence unless their home is registered as a health service
establishment.
New subsection (2) makes it an offence for a person to carry on a
health service establishment unless the person has a current
certificate of registration or a current certificate of renewal for
that health service establishment.
New subsection (3) defines certificate of registration and
certificate of renewal for the purposes of the offence. The
offence means that a person who operates a business that is a
health service establishment commits an offence unless that
person obtains a current certificate of registration for the health
service establishment.
The maximum penalty for each offence in new section 111 is
240 penalty units in the case of an individual and 1200 penalty
units in the case of a body corporate. The substituted version of
section 111 included an escalating penalty depending on the
number of days the offence continued after the Secretary
provided a notice of contravention. This escalating penalty
regime is not consistent with current Victorian sentencing
practice and has been repealed.
Part 4--Amendment of Health Services Act 1988
Clause 55 amends the definition of multi purpose service in section 3(1) of
the Health Services Act 1988 to provide that a multi purpose
service may be a body listed in new Schedule 1A.
Clause 56 amends section 8 of the Health Services Act 1988. Section 8
provides that the Governor in Council, by Order published in the
Government Gazette, may amend Schedule 1, 2 or 3 to that Act
by adding, removing or amending the name of a hospital.
The amendment to section 8 set out in this clause means that the
Governor in Council may add, remove or amend the name of a
multi purpose service in the same manner as the name of a
hospital.
13
The amendment to section 8 also ensures that, if the name of a
multi purpose service listed in new Schedule 1A changes, the
reference to the old name of the multi purpose service is taken to
be a reference to the new name, and the Governor in Council may
accordingly amend the Schedule by Order published in the
Government Gazette.
Clause 57 amends section 35 of the Health Services Act 1988 to ensure
that the provisions in the Health Services Act 1988 providing for
the removal of a director or directors of a public hospital mirror
the provisions that provide for the removal of a director or
directors of a public health service, as set out in section 65V of
that Act. In particular, new subsection 35(3) sets out the
circumstances in which the Minister must recommend the
removal of a director of a board from office.
Clause 58 amends section 115G of the Health Services Act 1988 to ensure
that the provisions in the Health Services Act 1988 providing for
the removal of a director or directors of a multi purpose service
mirror the provisions that provide for the removal of a director or
directors of a public health service, as set out in section 65V. In
particular, new subsection (3) sets out the circumstances in which
the Minister must recommend the removal of a director of a
board from office.
Clause 59 inserts a new subsection (1A) into section 134E of the Health
Services Act 1988 to provide that a member of Health
Purchasing Victoria (HPV) must not serve more than
9 consecutive years as a member of HPV, unless the Minister is
satisfied that there are exceptional circumstances that justify a
further re-appointment of that member. This limit on the tenure
of a member of HPV is consistent with the limit on the tenure of
directors of public hospitals and public health services, in
sections 34A and 65U of the Health Services Act 1988
respectively.
Clause 60 inserts a new matter with respect to which regulations may be
made pursuant to section 158(1) of the Health Services
Act 1988. New paragraph (ca) provides that regulations may be
made with respect of the requirements, guidelines and standards
to be complied with by health service establishments in relation
to their governance. This means, for example, that a regulation
may be made requiring the governing body of a health service
14
establishment to include an independent person, such as an
independent registered medical practitioner.
Clause 61 amends Schedule 1 to the Health Services Act 1988 to reflect
the new name of the Kyabram District Health Service.
Clause 62 inserts a new Schedule 1A to the Health Services Act 1988,
which includes the names of all multi purpose services in
existence at the date of commencement of this Part.
Clause 63 updates Schedule 4 to the Health Services Act 1988 to omit the
New Latrobe Regional Hospital, which is no longer in existence,
and to clarify that the current name of the New Mildura Base
Hospital is Mildura Base Hospital.
Clause 64 amends Schedule 5 to the Health Services Act 1988 to reflect
the new name of the public health service known as Bendigo
Health.
Part 5--Amendment of Tobacco Act 1987
Clause 65 amends the definition of tobacco or e-cigarette advertisement in
section 3B of the Tobacco Act 1987.
Subclause (1) inserts section 3B(1)(ea) into the Tobacco
Act 1987 to extend the definition of tobacco or e-cigarette
advertisement to include communications that promote any
words or designs that are closely associated with a manufacturer
of tobacco products or e-cigarette products, if the manufacturer's
name appears on those products or on the packaging of those
products. Communications that indirectly advertise a
manufacturer are intended to fall within the definition of tobacco
or e-cigarette advertisement. These could include mission
statements, business strategies, and research and development
advances related to the manufacturer, even if the communications
do not specifically promote smoking or the products of the
manufacturer.
Subclause (2) inserts section 3B(3A) into the Tobacco Act 1987
to clarify that words or designs are closely associated with a
manufacturer of tobacco products or e-cigarette products if that
manufacturer enters into an agreement with another person
(including a corporation) for that person to promote the words or
designs. For example, words or designs may be closely
associated with the manufacturer if they are communicated by an
15
advertising agency or displayed by a sporting organisation under
a sponsorship agreement with the manufacturer.
Clause 66 repeals section 6(3)(e) of the Tobacco Act 1987, which is
consequential to the repeal of section 10 of the Tobacco
Act 1987 by clause 67 of the Bill.
Clause 67 repeals section 10 of the Tobacco Act 1987 to remove the power
of the Governor in Council to exempt certain sports or arts
functions or events from the operation of tobacco advertising
prohibitions. This power has not been exercised since 2006 in
respect of the 2006 Australian Motorcycle Grand Prix and is now
considered redundant.
Part 6--Amendment of Mental Health Act 2014
Clause 68 amends section 3(1) of the Mental Health Act 2014 to insert
definitions of Health Complaints Commissioner and National
Board.
Clause 69 amends section 140(3) of the Mental Health Act 2014 to remove
the words "and imminent" to ensure that the test for the use or
disclosure of information from a clinical practice audit or clinical
review by the chief psychiatrist is consistent with the test set out
in Health Privacy Principle (HPP) 2.2(h)(i). As a result of this
amendment, the threat of harm to a person's health or safety need
only be serious, not imminent.
Clause 70 amends section 228(j) of the Mental Health Act 2014 to provide
that the relevant function of the Mental Health Complaints
Commissioner in that paragraph may also be exercised in relation
to the Health Complaints Commissioner, the Australian Health
Practitioner Regulation Agency and a prescribed person or body.
Clause 71 amends section 233(1)(e) of the Mental Health Act 2014 as a
consequence of the insertion of a definition of Health
Complaints Commissioner by clause 68.
Clause 72 inserts a new section 242A into the Mental Health Act 2014 to
clarify, for the avoidance of doubt, the role of the Mental Health
Complaints Commissioner when referring a complaint to the
Australian Health Practitioner Regulation Agency or the relevant
National Board under section 150 of the Health Practitioner
Regulation National Law.
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Clause 73 amends section 243(4)(e) of the Mental Health Act 2014 to
provide that where complaint has been made in relation to a
mental health service provider, the Commissioner may accept an
undertaking from that mental health service provider at any time
before the complaint is closed by the Commissioner. Prior to this
amendment, the provision could be interpreted as only permitting
the Commissioner to accept an undertaking at a specific point in
the complaint resolution process after the Commissioner accepts
a complaint.
Clause 74 amends section 244 of the Mental Health Act 2014 to clarify
that it is the Mental Health Complaints Commissioner's role to
undertake a conciliation of a complaint where they are satisfied
that conciliation is appropriate, and to decide the manner in
which a conciliation is conducted.
Clause 75 amends section 246 of the Mental Health Act 2014 to clarify
that it is the Mental Health Complaints Commissioner's role to
undertake and discontinue a conciliation of a complaint.
Clause 76 repeals section 247 of the Mental Health Act 2014. This section
is not required because other amendments made by this Bill have
eliminated the distinction between the Mental Health Complaints
Commissioner and the conciliator and it is now the role of the
Mental Health Complaints Commissioner to conduct any
conciliation of a complaint conducted under this Part.
Clause 77 amends section 248 of the Mental Health Act 2014 to provide
that it is the Mental Health Complaints Commissioner's role to
ensure that all the requirements of a conciliation agreement are
met.
Clause 78 substitutes a new section 249 into the Mental Health Act 2014,
given it is now the role of the Mental Health Complaints
Commissioner to conduct conciliations. New section 249(1)
makes it an offence for a person who is or has been the
Commissioner or employed or engaged by the Commissioner to
disclose outside a conciliation process any information gained by
the person in the conciliation process. There are a limited
number of exceptions where disclosure is not an offence.
This new section 249 is intended to be similar to section 152 of
the Health Complaints Act 2016, which applies to the
conciliation processes conducted by the Health Complaints
Commissioner.
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Clause 79 amends section 265(1) of the Mental Health Act 2014 by
inserting a new section 265(1A). New subsection (1A) sets out
exceptions to the offence in section 265(1), providing that in
relevant circumstances, information about a complaint may be
disclosed to the Australian Health Practitioner Regulation
Agency or any relevant National Board. Information may also be
disclosed in circumstances that are equivalent to those set out in
HPP 2.2(h)(i), to lessen or prevent a serious risk to the life,
health, safety or welfare of a person or the public.
Clause 80 substitutes section 267 of the Mental Health Act 2014 to
provide the Mental Health Complaints Commissioner with more
flexibility concerning reports from mental health service
providers about the complaints received by providers. The
reports are now to be provided at intervals specified by the
Commissioner and include the information required by the
Commissioner.
Clause 81 inserts a new Division 3 into Part 16A of the Mental Health
Act 2014, setting out transitional provisions to apply to any
conciliation process that may have commenced in accordance
with the Act before the date that clause 74 commences operation.
The transitional provisions provide that any conciliation
commenced before that date will be conducted by the Mental
Health Complaints Commissioner under the new provisions
inserted by this Bill.
Part 7--Amendment of Health Complaints Act 2016
Clause 82 amends section 150(3) of the Health Complaints Act 2016 to
remove the words "and imminent". This ensures that the test for
release of information by the Commissioner in order to avoid a
risk to life, health, safety or welfare is similar to the test in the
Health Privacy Principles (HPPs) (2.2(h)) and the Information
Privacy Principles (IPPs) pertaining to a serious threat to life,
health, safety and welfare.
Clause 83 amends section 151(2)(f) of the Health Complaints Act 2016 to
remove the words "and imminent", which amendment is
consistent with the amendment in clause 82 and made for the
same reason.
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Clause 84 amends section 152(2)(d) of the Health Complaints Act 2016 to
remove the words "and imminent", which amendment is
consistent with the amendment in clause 82 and made for the
same reason.
Part 8--Amendment of Health Services Act 1988--amendments
relating to information sharing
Division 1--Amendment of Health Services Act 1988
Clause 85 inserts a new Part 6B into the Health Services Act 1988
concerning information sharing for quality and safety purposes.
This Part provides legislative authority for the sharing of
identified information in the Victorian health system for quality
and safety purposes.
New section 134V sets out the definitions which are used in the
new Part 6B.
The term confidential information relies on existing definitions
in the Health Records Act 2001 and the Privacy and Data
Protection Act 2014 to define the types of information to which
this new Part applies.
The term health service entity is intended to include all the
entities in the Victorian health system that may disclose
confidential information for quality and safety purposes. A
power to prescribe further entities as health service entities has
been included because new entities may be created or regulated
in the future that provide health services. Some of the entities
that may be prescribed include providers of mother and baby
health services, first aid providers and bush nursing centres.
The term quality and safety body is defined to mean an entity
that has functions relating to the quality and safety of health
service entities. It is intended to prescribe Safer Care Victoria
and the Victorian Agency for Health Information for this
purpose.
The term special adviser is used to describe an entity (including a
person) that is appointed to provide specialist or expert advice in
relation to quality and safety.
New section 134W sets out the purposes that are considered to be
quality and safety purposes for the purpose of these information
sharing provisions. It is intended that this definition be
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interpreted broadly, and by reference to the National Safety and
Quality Health Service Standards as published by the Australian
Commission on Safety and Quality in Health Care from time to
time. The Bill does not include a definition of quality and safety
as the terms are already used in the Health Services Act 1988.
They phrase is also used in the National Safety and Quality
Health Service Standards and is well understood by people who
work in the health system. By not defining these terms in the
legislation, the Bill allows their meaning to continue to keep pace
with a contemporary understanding of the terms.
New section 134X(1) and (2) permit the disclosure of
confidential information for a quality and safety purpose by the
Secretary and quality and safety bodies to each other. This
means, for example, that if Safer Care Victoria is prescribed as a
quality and safety body, it can disclose confidential information
to the Secretary or another quality and safety body for any quality
and safety purpose.
New section 134X(3) permits health service entities to disclose
confidential information to the Secretary or a quality and safety
body for a quality and safety purpose. A health service entity
may disclose such confidential information to the Secretary or a
quality and safety body at any time and a request for the
information is not required, although the Secretary or quality and
safety body may issue a request.
New section 134X(4) permits the Secretary or a quality and
safety body to disclose a limited amount of information to a
health service entity to enable the health service entity to identify
whether it has any confidential information related to a specific
quality and safety purpose that may be requested by the Secretary
or quality and safety body. For example, the Secretary may
disclose the name and other identifying details of a particular
individual to a health service entity to determine if any incidents
in relation to that individual have occurred at that entity, for the
purposes of incident reporting. It is not intended that the
Secretary and quality and safety bodies disclose confidential
information to health service entities for wider quality and safety
purposes.
New section 134Y provides authority for the Secretary and
quality and safety bodies to collect and use information disclosed
to them under this Part.
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New section 134Z provides that the Secretary or a quality and
safety body may appoint an entity as a special adviser for one or
more specified quality and safety purposes. The appointment is
to be made in relation to a specified health service entity or a
class of health service entities and may contain conditions about
the kind of information that may be collected, used or disclosed
and how it is collected, used or disclosed. One example of where
this provision will be used is to appoint individuals or other
entities to undertake specialist reviews in relation to quality and
safety issues at one or more health service entities. For example,
this provision may be used to appoint a body such as the
Regional Perinatal Mortality Committee operated by the Royal
Women's Hospital. It may also be used to appoint one or more
individuals to undertake a broader ranging review such as that
which resulted in the Targeting Zero report.
New section 134ZA provides the authority for the special adviser
to collect and use confidential information, and also to disclose
information for the purposes of the special adviser's role.
Although section 134ZA(1)(a) permits the special adviser to
collect information from the Secretary or quality and safety body
(whichever appointed the adviser) or a relevant health service
entity specified in the instrument of appointment, section
134ZA(1)(b) provides a general authority for the special adviser
to disclose confidential information to the Secretary and quality
and safety body only. The special adviser may only disclose a
limited amount of confidential information to a health service
entity in accordance with section 134ZA(2), to assist the health
service entity identify any other information required by the
special adviser that is relevant to the quality and safety purpose.
In these circumstances, the special adviser may request such
information from the health service entity or health service
entities. However, the health service entities may voluntarily
provide information relevant to the quality and safety purposes
for which the special adviser was appointed, to the special
adviser.
In the circumstances where a special adviser is appointed jointly
with another special adviser, sections 134ZA(1)(a)(iii) and
134ZA(b)(ii) mean that the special advisers may collect, use and
disclose to each other any confidential information that is
relevant to the quality and safety purposes specified in the
instrument(s) of appointment of the special advisers.
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New section 134ZA(3) sets out the authority for disclosure of
information to the special adviser.
New section 134ZB establishes a system whereby the Minister
can authorise the sharing of information between health service
entities or a class of entities for quality and safety purposes.
The Ministerial authorisation must specify the health service
entities or class of health service entities which may share
information in accordance with the authorisation for the specified
quality and safety purposes. The authorisation may include
conditions.
New section 134ZB(5) provides that the Ministerial authorisation
must be published in the Government Gazette as soon as
practicable after it is made. However, the instrument is not
required to be published if it would identify an individual to
whom the confidential information relates (for example, if the
instrument relates to a specific incident review for a named
individual or the procedures conducted by a named clinician).
New section 134ZC clarifies that this new Part is only intended to
authorise the collection, use and disclosure of confidential
information to the extent necessary to achieve the relevant quality
and safety purpose. It is not intended to authorise the sharing of
confidential information for any wider purpose.
New section 134ZD provides protection from legal action and
disciplinary proceedings for an individual who collects, uses or
discloses confidential information under this new Part in good
faith and with reasonable care.
Division 2--Consequential amendments
Clause 86 inserts a new section 14D into the Health Records Act 2001
which displaces a number of HPPs. The relevant HPPs relate to
the consent of the individual whose health information is being
collected, used and disclosed in accordance with new Part 6B
inserted by clause 85 and it is necessary to displace these HPPs
for the effective operation of new Part 6B.
New subsection (1) provides that HPP 1.3 does not apply to the
collection of any health information pursuant to the new Part 6B
of the Health Services Act 1988 such that there will be no
requirement for the collection of health information to be directly
from the individual.
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New subsection (2) provides that HPP 1.5 does not apply such
that for the purposes of the collection of health information
pursuant to the new Part 6B of the Health Services Act 1988,
there is no requirement for any of the parties collecting
information to make an individual aware where their health
information has been collected from a third party.
New subsection (3) provides that nothing in any other HPP or
code of practice modifying the HPPs applies to the collection, use
or disclosure of health information pursuant to the new Part 6B of
the Health Services Act 1988 to the extent that the requirement
relates to the consent of the individual to whom the information
relates.
Clause 87 inserts a new section 15B into the Privacy and Data Protection
Act 2014 which displaces a number of IPPs relating to giving
notice to or obtaining the consent of the individual whose
personal information is being collected, used or disclosed in
accordance with new Part 6B inserted by clause 85. It is
necessary to displace these IPPs to ensure the effective operation
of that new Part 6B.
New subsection (1) provides that IPP 1.4 does not apply to the
collection of any personal information pursuant to the new
Part 6B of the Health Services Act 1988 such that there will be
no requirement for the collection of personal information to be
directly from the individual.
New subsection (2) provides that IPP 1.5 does not apply such that
for the purposes of the collection of personal information
pursuant to the new Part 6B of the Health Services Act 1988,
there is no requirement for any of the parties collecting
information to make an individual aware where their personal
information has been collected from a third party.
New subsection (3) provides that nothing in any other IPP or
code of practice modifying the IPPs applies to the collection, use
or disclosure of personal or health information pursuant to the
new Part 6B of the Health Services Act 1988 to the extent that
the requirement relates to the consent of the individual to whom
the information relates.
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Part 9--Repeal of this Act
Clause 88 provides for the automatic repeal of the amending Bill on
27 August 2021. The repeal of this Bill does not affect in any
way the continuing operation of the amendments made by this
Bill (see section 15(1) of the Interpretation of Legislation
Act 1984).
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