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Health Professions Registration Bill
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill seeks to introduce a common system of registration for health
practitioners, and a common system for investigations and hearings relating
to professional performance, professional conduct and ability to practise of
registered health practitioners.
Currently, there are 12 different Acts and regulations relating to the
registration of 12 different types of health practitioners in Victoria.
These legislative schemes are similar, but not the same. This Bill will
repeal those different pieces of legislation and replace them with a common
system that covers requirements for registration, types of registration and
endorsements of registration. In addition, the Bill will introduce revised
definitions of "professional misconduct" and "unprofessional conduct" and
introduce a common system for the making of complaints (notifications) in
respect of health practitioners. The new system for the carrying out of
investigations into notifications relating to health practitioners provides for
investigations into professional performance, professional conduct and health
related issues. Hearings on behalf of a board following an investigation may
be held by a professional standards panel or a health panel appointed by the
relevant board.
If the matter raises serious concerns about a registered health practitioner's
professional performance, conduct or ability, such as when cancellation of
registration may be warranted, the matter is to be referred to VCAT.
The Bill also provides for the registration of students in relation to each of the
12 health professions included in the Bill. Notifications may be made with
respect to students and a health panel or VCAT may hear matters concerning
a limited range of issues affecting students.
1
551371 BILL LA INTRODUCTION 27/10/2005
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 is the commencement provision. Clause 1, this clause and
clause 171(2) come into operation on the date of Royal Assent.
The remaining provisions of the Act come into operation on a
day or days to be proclaimed. If they (except clause 82) do not
come into operation before 1 July 2007, they come into operation
on that day. If clause 82 does not come into operation before
1 September 2007, it comes into operation on that day.
Clause 3 is the definitions clause. Some of the main definitions include
"health practitioner", "professional misconduct", "professional
performance" and "unprofessional conduct".
PART 2--REGISTRATION
Division 1--Requirements for Registration
Clause 4 provides that an application for registration as a health
practitioner may be made to the responsible board that registers
that kind of health practitioner. The clause sets out the
requirements for an application and further requirements that the
responsible board may make in respect of such an application.
Clause 5 provides that a person is qualified for general registration when
the person has successfully completed one or more of the
requirements in paragraphs (1)(a)-(d) that are determined by the
responsible board.
Sub-clause (2) provides that when the relevant responsible board
is determining whether to approve or refuse to approve a course
of study for the purposes of clause 5(1)(a), or require a period of
practice for the purposes of clause 5(2)(b), the board must have
regard to any general or specific directions of the Minister.
Sub-clause (3) provides that if the responsible board is satisfied
that an approval of a course of study or requirement of a period
of supervised practice for the purposes of clause 5(1) will have a
substantive and adverse impact on the recruitment or supply of
health practitioners to the workforce in the relevant health
profession, the board must not approve the course or require the
period of practice without the written approval of the Minister.
Sub-clause (4) sets out the powers of the Minister for the
purposes of this clause.
2
Clause 6 sets out the circumstances in which the responsible board must
grant general registration to a person who has applied for
registration as a registered health practitioner.
Sub-clause (2) sets out the grounds upon which the responsible
board may refuse to grant general registration to a health
practitioner who has applied for registration.
Sub-clause (3) provides that the responsible board may grant
general registration subject to any condition it thinks fit,
including conditions as to professional indemnity insurance.
Clause 7 sets out the circumstances in which a responsible board may
grant specific registration to a person who applied for registration
as a health practitioner but who has completed a course of study
and a period of supervised practice in the health profession that
does not qualify the person for general registration.
Sub-clause (2) provides that the Nurses Board of Victoria may
grant specific registration as a nurse to an applicant who is not
qualified for general registration under division 1 of the register
where the applicant has completed a course of study and
supervised training in midwifery. The specific registration
allows the applicant to practise midwifery and to use the title
midwife.
Sub-clause (3) sets out the grounds upon which the relevant
responsible board may refuse to grant specific registration to a
health practitioner who has applied for registration.
Sub-clause (4) provides that the board may specify the period of
specific registration, which may be for a period up to 12 months.
Sub-clause (5) provides that the responsible board may grant
specific registration subject to any condition it thinks fit,
including conditions as to professional indemnity insurance.
Clause 8 provides that the relevant responsible board may grant or refuse
to grant registration as a student to a person to enable that
person to undertake or complete any period of clinical training
that is part of a course of study required under clause 5(1)(a).
The board may also renew registration as a student under this
clause.
Sub-clause (4) provides that the relevant responsible board may
grant or renew student registration for a period of up to 5 years,
and may impose any conditions of such registration.
3
Sub-clause (6) provides that the responsible board must not
impose a condition on student registration relating to professional
indemnity insurance.
Sub-clause (7) provides that no fee is payable for registration or
renewal of registration as a student.
Clause 9 provides that a responsible board may grant, refuse to grant or
renew provisional registration to a person to enable that person to
undertake or complete any period of supervised practice required
under clause 5(1)(b).
Sub-clause (2) provides that the grounds upon which the
responsible board may refuse to grant or renew provision
registration are those set out in clause 6(2).
Sub-clause (3) provides that the responsible board may grant
provisional registration subject to any condition it thinks fit,
including conditions as to professional indemnity insurance.
Sub-clause (4) provides that the board may grant provisional
registration for a period up to 12 months.
Clause 10 sets out when an applicant for general registration or provisional
registration may be granted interim registration. Interim
registration may be granted where--
· the applicant is entitled to general registration or
provisional registration but it is not practicable to wait
until the responsible board can consider the application;
or
· the applicant would be entitled to general registration or
provisional registration except that the applicant has not
received the documentary evidence of completion of a
course of study or period of supervised practice required
for that registration.
Sub-clause (2) provides that interim registration may be granted
by the registrar of the responsible board or other person
authorised by that board.
Clause 11 provides that a responsible board may grant registration as a
non-practising health practitioner to a person who is eligible for
general registration but who does not intend to practise as a
health practitioner or to provide regulated health services.
Sub-clause (3) provides that the responsible board must not
impose any conditions on the registration of a non-practising
health practitioner relating to professional indemnity insurance.
4
Clause 12 provides that a responsible board may recognise any qualification
that the responsible board considers to be relevant to the
provision of regulated health services in the profession regulated
by that board in addition to those required for registration.
Clause 13 provides for conditions relating to professional indemnity
insurance the responsible board may impose on a practitioner's
registration.
Clause 14 sets out the powers of the responsible board before deciding an
application for registration.
Clause 15 provides that if a responsible board proposes to refuse an
application for registration or renewal of registration or for
endorsement of registration or renewal of endorsement of
registration or to impose conditions on the registration or
endorsement of registration of an applicant, the responsible board
must not do so until it first gives notice of the proposed decision
to the applicant, and provides the applicant with an opportunity to
make submissions concerning the proposed decision.
Clause 16 requires the responsible board to notify an applicant of its
decision within 28 days after deciding an application relating to
registration.
Clause 17 provides that general registration and non-practising registration
of a health practitioner continues in force until the end of the
financial year in which the registration was granted or renewed or
for any other period fixed by the responsible board with the
approval of the Minister.
Clause 18 sets out the requirements for an application for renewal of
registration as a health practitioner.
Clause 19 provides that the responsible board must refer a matter to VCAT
if the responsible board believes that there has been fraud or
misrepresentation in obtaining registration.
Division 2--Endorsement of Registration
Clause 20 provides that the Nurses Board of Victoria may endorse the
registration of a nurse registered within Division 1, 3 or 4 of the
board's register to the effect that the nurse is qualified to use the
title nurse practitioner and specify in the endorsement the
category or categories of nurse practitioner with respect to which
the nurse practitioner is qualified to use the title.
5
Sub-clause (2) provides that if the Nurses Board of Victoria is
satisfied that a registered nurse who satisfies sub-clause (1) is
qualified to obtain and to have in his or her possession and to use,
sell or supply certain Schedule 2, 3, 4 or 8 poisons within the
meaning of the Drugs, Poisons and Controlled Substances Act
1981 with respect to that category of nurse practitioner, the Board
may endorse the registration of the nurse with that category of
nurse practitioner and specify the Schedule 2, 3, 4 or 8 poisons
that the nurse is qualified to obtain and to have in his or her
possession, and to use, sell or supply in accordance with that Act.
Clause 21 provides that if the Nurses Board of Victoria is satisfied that a
nurse registered under Division 1 of the register maintained by
the board is qualified to practise midwifery or take or use the title
of midwife, the board may endorse the registration of the nurse to
that effect.
Clause 22 provides that if the Nurses Board of Victoria is satisfied that a
nurse registered under Division 2 of the register is qualified in
medication administration, the board may endorse the registration
of the nurse to that effect.
Clause 23 provides that if the Optometrists Board of Victoria is satisfied
that an optometrist is qualified to obtain and to have in his or
her possession and to use, sell or supply certain Schedule 2, 3
or 4 poisons within the meaning of the Drugs, Poisons and
Controlled Substances Act 1981, the Board may endorse
the registration of the optometrist and specify the approved
Schedule 2, 3 or 4 poisons that the optometrist is qualified to
obtain and to have in his or her possession, and to use sell or
supply in accordance with that Act.
Clause 24 provides that if the Podiatrists Board of Victoria is satisfied
that a podiatrist is qualified to obtain and to have in his or her
possession and to use, sell or supply certain Schedule 2, 3
or 4 poisons within the meaning of the Drugs, Poisons and
Controlled Substances Act 1981 the Board may endorse the
registration of the podiatrist and specify the approved Schedule 2,
3 or 4 poisons that the podiatrist is qualified to obtain and to have
in his or her possession, and to use sell or supply in accordance
with that Act.
6
Clause 25 provides that if the Chinese Medicine Registration Board of
Victoria is satisfied that a Chinese herbal medicine practitioner is
qualified to obtain and to have in his or her possession and to use,
sell or supply Schedule 1 poisons within the meaning of the
Drugs, Poisons and Controlled Substances Act 1981, the
Board may endorse the registration of the Chinese herbal
medicine practitioner and specify the Schedule 1 poisons that the
Chinese herbal medicine practitioner is qualified to obtain and to
have in his or her possession, and to use sell or supply in
accordance with that Act.
Sub-clause (2) provides that if the Chinese Medicine Registration
Board of Victoria is satisfied that a Chinese herbal dispenser is
qualified to obtain and to have in his or her possession and to use,
sell or supply but not prescribe the Schedule 1 poisons within the
meaning of the Drugs, Poisons and Controlled Substances Act
1981, the Board may endorse the registration of the Chinese
herbal dispenser and specify the Schedule 1 poisons that the
Chinese herbal dispenser is qualified to obtain and to have in his
or her possession, and to use sell or supply but not prescribe.
Clause 26 provides that if the Pharmacy Board of Victoria is satisfied that a
pharmacist is qualified to obtain and to have in his or her
possession and to use, sell or supply but not prescribe the
Schedule 1 poisons within the meaning of the Drugs, Poisons
and Controlled Substances Act 1981, the Board may endorse
the registration of the pharmacist and specify the Schedule 1
poisons that the pharmacist is qualified to obtain and to have in
his or her possession, and to use sell or supply but not prescribe.
Clause 27 empowers the Dental Practice Board of Victoria and the Medical
Practitioners Board of Victoria to endorse the registration of a
health practitioner to the effect that the health practitioner is
qualified to practise as a specialist practitioner in the branch of
health practice that is specified by the board in the endorsement.
Clause 28 provides that if a responsible board specified in sub-clause (3) is
satisfied that a health practitioner regulated by that board is
qualified in the practice of acupuncture, the board may endorse
the registration of the health practitioner to the effect that the
health practitioner is qualified to practise acupuncture and to be
exempt from the offences set out in clause 80(2) with respect to
the practice of acupuncture and the use of the title acupuncturist.
Clause 29 sets out general requirements for an application for an
endorsement under this Division.
7
Division 3--Register of Health Practitioners
Clause 30 provides that a responsible board must keep a register of all
health practitioners to whom the responsible board has granted
registration under this Act and sets out the particulars that are
required to have kept on the register against the name of the
health practitioner to whom they apply.
Clause 31 sets out the circumstances in which the responsible board must
issue a certificate of registration to a health practitioner or student
and sets out the particulars which must be included on a
certificate of registration.
Clause 32 sets out the evidentiary value of a certificate signed by the
President and any two members of a responsible board certifying
any matter relating to the contents of the board's register, or that
any disciplinary or other action was or was not taken against a
health practitioner or student.
Clause 33 provides that a registered health practitioner must notify the
responsible board of a change in postal address or a change of
the address recorded on the register within 14 days of that
change. It also provides that a registered student who changes
his or her postal address must notify the responsible board of the
change within 14 days of that change.
Clause 34 provides that if a person has claimed damages or other
compensation from a registered health practitioner for alleged
negligence in the course of providing regulated health services,
the practitioner must provide to the board information about the
amount claimed or any amount the practitioner is ordered to pay
by the court within 30 days after the order is made.
Sub-clause (2) provides that if a registered health practitioner or
registered student has been committed for trial for an indictable
offence, or has been convicted or found guilty of such an offence,
he or she must notify the responsible board within 30 days after
the committal for trial, conviction or finding of guilt.
Clause 35 provides that a health practitioner or student whose registration is
suspended is to be treated as not being registered for the period of
suspension.
8
PART 3--INVESTIGATIONS AND PANEL HEARINGS
Division 1--General Provisions
Clause 36 places an obligation on registered medical practitioners to notify
a responsible board about the ability to practise of a registered
health practitioner or student in certain circumstances.
Clause 37 provides an immunity from civil or criminal liability for
registered medical practitioners who make a report in good faith
under clause 36.
Sub-clause (2) similarly provides an immunity to any registered
health practitioner in a working or treating relationship with
another registered health practitioner if they make a notification.
Clause 38 provides that a registered health practitioner who believes that
their ability to practice is affected may ask the responsible board
to suspend their registration or endorsement or impose a
condition. Physical or mental health, incapacity, alcohol or drug
dependence, unsatisfactory professional performance or past
unprofessional conduct or professional misconduct are listed as
possible reasons for making the request.
Sub-clause (2) enables a student to make a similar request in
similar circumstances.
A failure by a registered student or registered health practitioner
and the responsible board to agree on a condition to be imposed
will result in the matter being referred to an investigation.
Clause 39 provides that a registered health practitioner or student may, with
the agreement of the responsible board, have their registration
cancelled by the responsible board.
Clause 40 provides that a responsible board may suspend the registration
of a health practitioner at any time, if the board is of the opinion
that there is a serious risk to the health and safety of the public.
The serious risk must be due to one of the factors listed under
clause 38(1).
Sub-clause (2) enables a responsible board to suspend the
registration of a student in a similar manner if it is of the opinion
that there is a serious risk to public safety because the student's
ability to undertake clinical training is affected.
9
Sub-clause (4) provides that a responsible board must
immediately notify the health practitioner or student, their
employer or supervisor, or the person providing the course of
study (in the case of a student) in the event that the health
practitioner or student's registration has been suspended.
Clause 41 provides that a responsible board, with the agreement of a health
practitioner or student, may make an agreement to amend, vary
or revoke conditions or revoke suspension of registration if the
responsible board is satisfied that the reasons for the condition or
suspension no longer exist. If there is a failure to reach
agreement, the responsible board may refer the matter to a panel
hearing or to VCAT.
Division 2--Notification and Commencement of Investigations
Clause 42 provides that a person may notify a responsible board about a
matter relating to a registered health practitioner in a number of
circumstances. These include indications that the health
practitioner's ability or suitability to practise may be affected
because of physical or mental health, drug or alcohol
dependence, that the practitioner may have engaged in
unprofessional conduct or professional misconduct, that the
professional performance of the practitioner may be
unsatisfactory or that the practitioner is not of good character.
Notifications can be made about health practitioners no longer
registered with the responsible board, as long as the notification
relates to behaviour that occurred whilst the health practitioner
was registered.
Sub-clause (2) provides that similar notifications may be made to
a responsible board about a student, if a person believes that a
student's ability or suitability to practice may be affected because
of ill health, incapacity, or is drug or alcohol dependent or
because the student has been charged with or been convicted or
found guilty of an indictable offence.
Clause 43 sets out when notifications about health practitioners should be
referred to the Health Services Commissioner.
Clause 44 provides that a responsible board may deal with a health records
complaint, referred to the responsible board by the Health
Services Commissioner under section 52 of the Health Records
Act 2001, as if it were a notification under this Act.
10
Clause 45 provides for the commencement of investigations under this Act
after a notification has been made under clause 42. Unless an
exception applies, the responsible board must investigate a
notification made about a health practitioner. In the case of a
student, a responsible board has a discretion to investigate if the
board believes that the ability of the student to undertake clinical
training may be affected.
Sub-clause (3) provides that a responsible board may appoint an
investigator and delegate to that person the power to conduct an
investigation.
Clause 46 provides a responsible board with the power to exercise any of
its powers under this Part to refer a matter to a health panel, a
professional standards panel or to VCAT with or without
conducting an investigation first.
Clause 47 provides a responsible board with the power to investigate a
matter relating to a health practitioner or a student without
receiving a notification, if there is evidence of any of the matters
referred to in clause 42(1) of this Act.
Clause 48 sets out the notice requirements for an investigation.
Clause 49 sets out the powers of an investigator.
Clause 50 provides that an investigation under this Division must be
conducted expeditiously, and the responsible board must report to
the notifier on the progress of the investigation at regular
intervals.
Division 3--Health Assessments
Clause 51 sets out the procedure if a student or health practitioner agrees to
undergo a health assessment, including who is to undertake the
assessment.
Clause 52 provides that the assessing health practitioner must give a report
of their assessment to the investigator. The investigator must
give a copy of the report to, and discuss the report with, the
health practitioner or student, unless the investigator believes that
the report contains information that might prejudice the physical
or mental health or well-being of the health practitioner or
student. If this is the case, sub-clause (3) provides that the
investigator may decide not to give the report to the health
practitioner or student but may instead give it to a registered
medical practitioner and a registered health practitioner
nominated by the health practitioner or student.
11
Sub-clause (4) provides that before acting under sub-clause (3),
the investigator must report to the responsible board and the
responsible board may appoint a health practitioner as an
investigator to continue the investigation.
Clause 53 provides that if a health practitioner or a student refuses to
undertake a health assessment or abide by an agreement to
undergo a health assessment, an investigator must report this to
the responsible board, and the responsible board may refer the
matter to a health panel or VCAT.
Clause 54 sets out the procedure to be followed if a panel requires a health
practitioner or student to undertake a health assessment,
including that a health practitioner appointed by the panel must
carry out the assessment.
Division 4--Performance Assessments
Clause 55 sets out the procedure if a health practitioner agrees to undergo a
performance assessment, including who is to undertake the
assessment.
Clause 56 provides that the assessing health practitioner or practitioners
must give a report of their assessment to the investigator and the
health practitioner being investigated. The investigator must
discuss the report with the health practitioner.
Clause 57 provides that if a health practitioner refuses undergo a
performance assessment, or abide by an agreement to undergo
such an assessment, an investigator must report this to the
responsible board, and the responsible board may refer the matter
to a professional standards panel or VCAT.
Clause 58 sets out the procedure to be followed if a panel requires a health
practitioner or student to undertake a performance assessment, a
health practitioner appointed by the panel must carry out the
assessment.
Division 5--Powers After Investigation
Clause 59 provides that after an investigation is completed, the investigator
must provide a report to the responsible board, along with any
recommendations.
The clause sets out a range of decisions that the responsible board
may make once an investigation has been completed, and the
investigator has made a report. These decisions include--
12
· refer the matter to the Health Services Commissioner;
· arrange to have the matter settled by agreement between
the board, the health practitioner or student or any
notifier;
· arrange to have the matter settled by agreement between
the board and the health practitioner or student;
· refer the matter to a health panel;
· refer the matter to a professional standards panel;
· refer the matter to VCAT for a Tribunal hearing,
including where the investigation concerned a student
because the student had been charged with an indictable
offence or been convicted or found guilty of such an
offence;
· if the matter raises issues which may require
investigation by another person, organisation or agency,
refer the matter accordingly;
· take no further action.
The responsible board must give notice of any decision it makes
to the health practitioner or student, and to the notifier. In the
case of a decision to refer the matter to a professional standards
panel or to take no further action, the responsible board must
provide reasons for the decision to the health practitioner or
student and the notifier.
Clause 60 sets out the circumstances in which a notifier may make an
application to an investigation review panel, which has all the
powers of an investigator, for a review of certain decisions made
by the responsible board. The notifier must make such an
application within a particular timeframe.
Sub-clause (5) sets out the decisions that can be made by an
investigations review panel after completing a review, which
include--
· refer the matter back to the board with a request for an
investigation, or the investigator for further
investigation; or
· request the responsible board to refer the matter to
VCAT; or
13
· in the case of the review of a decision to take no further
action, act in accordance with section 59; or
· affirm the decision of the responsible board.
Division 6--Hearings by Professional Standards Panels
Clause 61 sets out when a professional standards panel should be appointed
to conduct a hearing, and provides that a person who has been
involved in the matter previously is not entitled to membership of
such a panel.
Clause 62 provides that the responsible board must fix a time and place for
a professional standards panel hearing. The clause also sets out
the required content of a notice of a professional standards panel
hearing.
Clause 63 sets out the possible findings of a professional standards panel
upon completion of a hearing into the professional conduct or
performance of a registered health practitioner, which include--
· that the health practitioner has or has not engaged in
unprofessional conduct; or
· that the health practitioner may have engaged in
professional misconduct; or
· that the practitioner's professional performance has been
unsatisfactory.
Sub-clause (2) provides that if a panel finds that the health
practitioner has engaged in unprofessional conduct, may have
engaged in professional misconduct or the practitioner's
professional performance has been unsatisfactory, the panel can
make one or more of a number of determinations. Examples of
determinations the panel may make are--
· that the matter be referred to a Tribunal hearing;
· that the health practitioner be cautioned;
· that the health practitioner undergo counselling;
· that a condition be imposed on the practitioner's
registration;
· that the practitioner undertake specified further
education.
14
Clause 64 sets out when a professional standards panel must refer a matter
to a health assessment or to the Tribunal.
Sub-clause sets out when a professional standards panel should
cease a hearing and refer the matter to a health panel.
Division 7--Hearings by Health Panels
Clause 65 sets out when a health panel should be appointed to conduct a
hearing, and provides that a person who has been involved in the
matter previously is not entitled to membership of such a panel.
Clause 66 provides that the responsible board must fix a time and place for
a health panel hearing. The clause also sets out the required
content of a notice of a health panel hearing.
Clause 67 sets out the possible findings of a health panel upon completion
of a hearing into the ability of a health practitioner to practise, or
student to undertake clinical training, which include--
· that the ability of the health practitioner or student is
affected because of the physical or mental health of the
health practitioner or student; or
· that the ability of the health practitioner or student is
affected because the health practitioner or student is an
alcoholic or a drug-dependent person.
Sub-clause (2) provides that if a panel finds that the health
practitioner or student's ability to practise or to undertake clinical
training is affected, the panel can make one or more of a number
of determinations. Examples of determinations the panel may
make are--
· that conditions be imposed on the registration of the
student or health practitioner;
· that the registration of the student or health practitioner
be suspended;
· that the health practitioner or student be required to
enter into an agreement with the responsible board.
Sub-clause (3) sets out examples of conditions that a health panel
may impose, which include--
· counselling;
· working under the supervision of another; or
· attending for treatment.
15
Clause 68 sets out when a health panel may direct the practitioner or student
to undergo a health assessment.
Sub-clause (2) provides when a health panel must refer a matter
to a Tribunal hearing.
Sub-clause (3) sets out when a health panel has a discretion to
refer a matter concerning a student to a Tribunal hearing.
Sub-clause (4) provides when a health panel should cease hearing
a matter and refer it to a professional standards panel.
Division 8--Provisions Applying to all Panel Hearings
Clause 69 provides that a panel must hear and determine a matter before it,
and sets out the requirements for the conduct of all panel hearings
under this Act. Examples of the requirements include--
· the proceedings must be conducted with as little
formality as possible;
· whilst there is no right to legal representation at a panel
hearing, a health panel may grant leave for such
representation;
· the proceedings are not open to the public although
leave may be granted to the notifier to make
submissions;
· the health practitioner or student is entitled to be present
and to make submissions; and
· a panel is not bound by the rules of evidence but may
inform itself in any way it sees fit.
Clause 70 sets out when a panel must abandon a hearing and refer a matter
to the Tribunal. This includes when the health practitioner or
student who is the subject of the hearing requests that the matter
be referred to a Tribunal hearing.
Clause 71 provides that a health practitioner or student, upon the
completion of a panel hearing, may request that a Tribunal
hearing be held to review any findings or determinations made.
Clause 72 sets out when a determination made by a panel comes into effect,
and that it is to have effect as it were a determination of the
responsible board.
16
Clause 73 provides that a panel must give reasons for a determination made
under this Part to the health practitioner or student.
Sub-clause (2) provides that a person whose interests are affected
by a determination may apply to the panel for the reasons.
The panel must give the reasons to the person unless the panel
decides it is not in the public interest to do so.
Division 9--General Provisions
Clause 74 provides that a suspension or condition that has been placed on a
health practitioner or student's registration by the responsible
board should be removed at the completion of a hearing, if the
panel determines that it should be removed.
Clause 75 sets out the requirements for publication of notice of certain
determinations made by a panel, and also sets out to whom the
responsible board is obliged to give notice of the determination,
and to whom the responsible board has a discretion to give such
notice.
Sub-clause (6) provides that the responsible board must notify
any notifier of the findings and determination of a panel hearing
resulting from the notification and also provide reasons to that
person within a specified timeframe unless the board decides it is
not in the public interest to do so.
PART 4--PROCEEDINGS AND REVIEW BY VCAT
Division 1--Proceedings by VCAT
Clause 76 sets out when the responsible board must make an application to
VCAT for an order in respect of a health practitioner or student,
and when the responsible board has a discretion to make such an
application.
Clause 77 sets out the findings that VCAT may make with respect to a
health practitioner after completing a hearing under this Division.
VCAT may make findings as to whether or not--
· the practitioner has engaged in unprofessional conduct
or professional misconduct;
· the practitioner's ability to practise is affected;
· the practitioner's performance has been unsatisfactory;
and
· the health practitioner is not of good character.
17
Sub-clause (3) sets out the findings that VCAT may make with
respect to a student after completing a hearing under this
Division.
Sub-clause (4) sets out the determinations which VCAT may
make with respect to a health practitioner after it has completed a
hearing under this Division. Examples of such determinations
include--
· an order that the health practitioner undergo
counselling;
· an order that a health practitioner's practice be subject to
periodic inspections;
· an order that a health practitioner not employ, engage or
recommend particular persons;
· that a health practitioner be disqualified from applying
for registration within a specified period;
· that a health practitioner be cautioned;
· the a health practitioner or student's registration be
cancelled.
Sub-clause (5) sets out the determinations which VCAT may
make with respect to a student after it has completed a hearing
under this Division. Examples of such determinations include--
· requiring the student to undergo counselling;
· cautioning the student;
· imposing one or more conditions on the registration of
the student;
· suspending the registration of the student; and
· cancelling the registration of the student.
Sub-clause (6) provides that if VCAT decides to cancel or
suspend the registration of a health practitioner, VCAT may
make an order prohibiting the health practitioner from providing
health services set out in the order or using any title set out in the
order.
18
Division 2--Review of Decisions of Boards and Panels
Clause 78 provides that a health practitioner affected by a range of
decisions, findings or determinations listed in sub-clause (1)
may apply to VCAT for review of that decision, finding or
determination.
Sub-clause (2) provides that a student affected by a range of
decisions, findings or determinations listed in this sub-clause
may apply to VCAT for review of that decision, finding or
determination.
Sub-clause (3) provides that a person affected by a decision,
finding or determination relating to a decision under Part 6 as set
out in this sub-clause may apply to VCAT for review of that
decision, finding or determination.
Sub-clause (4) sets out when an application for review under this
clause must be made.
Division 3--Publicising Disciplinary Action
Clause 79 sets out the requirements on VCAT and the responsible board
regarding notification and publication of any finding or
determination under this Part.
PART 5--OFFENCES AND REGULATED CONDUCT
Division 1--Offences Applying to Health Professions Generally
Clause 80 creates various offences relating to registration, including claims
as to registration held, and use of particular titles.
Clause 81 creates an offence for using a title in an educational or training
institution which could be reasonably understood to induce a
belief that that the institution is able to provide education or
training recognised by a responsible board for registration unless
the institution is recognised under this Act.
Clause 82 provides that a person is only entitled to undertake clinical
training as referred to in clause 5 in particular circumstances.
Clause 83 creates offences relating to registration or endorsement of
registration being obtained or procured by fraud, false
representation or forgery.
19
Clause 84 creates offences for a person to arrange work for another person
as a registered health practitioner if the person know or sought to
know that the person is not a registered health practitioner or the
arranged work falls outside the scope of that person's registration
or endorsement or registration.
Clause 85 creates an offence for directing or inciting a health practitioner to
do anything that would be unprofessional conduct or professional
misconduct, in the course of providing regulated health services.
Clause 86 sets out the circumstances in which the responsible board or the
Secretary may prohibit convicted offenders from carrying on a
business providing regulated health services, or from owning or
having a proprietary interest in a pharmacy business. The clause
also sets out form that such a prohibition may take.
Clause 87 sets out when an application may be made to lift a prohibition
made under clause 86.
Clause 88 creates an offence to knowingly or recklessly carry on a business
providing regulated health services or to own or have a
proprietary interest in a pharmacy business in contravention of a
prohibition under this Part.
Clause 89 provides that a prohibition under this Part has no effect whilst an
appeal is pending against the conviction or finding of guilt on
which the prohibition is based.
Clause 90 sets out the powers of the responsible board and the Secretary to
require information from certain persons where a body corporate
has been convicted of offences under clauses 85 or 88.
Sub-clause (6) also makes it an offence to fail to comply with a
requirement under this clause without a reasonable excuse.
Sub-clause (7) makes it an offence for a person to provide
information that the person believes is false or misleading.
Clause 91 provides that a register of all persons who are subject to a
prohibition under clause 86 must be kept by a responsible board,
and sets out the particulars to be included on the register.
Clause 92 sets out the evidentiary value of a certificate issued by the
President and any two members of a responsible board
concerning a prohibition imposed under this Part.
Clause 93 provides that the Secretary must advise the responsible Board of
any prohibitions that the Secretary may have given notice of
under clause 86.
20
Clause 94 creates certain offences relating to the advertising of regulated
health services and businesses providing regulated health
services.
Clause 95 provides that the Governor in Council, on the recommendation of
the Minister may issue guidelines about minimum standards with
respect to the advertising of regulated health services, where such
guidelines are formulated by the responsible board and approved
by the Minister.
Clause 96 provides the courts with the power to make orders requiring
corrective advertising if there has been a contravention of
clauses 94(1)(a), (b), (c), (d) or (e).
Division 2--Offences for Nurses
Clause 97 makes it an offence for a registered nurse whose registration is
not endorsed under section 20 with respect to a particular
category of nurse practitioner to use titles which suggest such
endorsement or make certain claims to be so endorsed.
Division 3--Dental Care Providers
Clause 98 makes it an offence for a person to knowingly perform particular
procedures unless that person is registered as a dental care
provider under this Act.
Division 4--Optometrists
Clause 99 makes it an offence for a person to knowingly perform particular
acts unless that person is registered as an optometrist under this
Act.
Sub-clause (2) provides that the offence does not apply to a
person who is a registered orthoptist in certain circumstances.
PART 6--PHARMACY
Division 1--Interpretation
Clause 100 provides a definition of "Board" for the purposes of this Part.
Division 2--Ownership and Operation
Clause 101 sets out the restrictions on ownership of pharmacy businesses,
and lists who may or may not own or have a proprietary interest
in a pharmacy business.
21
Clause 102 makes it an offence for a person to establish or carry on a
pharmacy business or pharmacy department in certain
circumstances, including without Board approval of the premises
from which the business or department will be operated.
Clause 103 provides that the Board may approve the premises of a pharmacy
business or department if satisfied of a number of factors,
including that the premises are suitable for the provision of
pharmacy services, and comply with other relevant factors set out
in Schedule 3.
Clause 104 provides that a person approved to carry on a pharmacy business
or department may apply to the Board for approval to establish a
pharmacy depot, and the Board may approve the establishment of
the depot if it is satisfied that appropriate arrangements regarding
a range of factors have been made.
Clause 105 requires a person who intends to establish, carry on, cease
carrying on or change the address of a pharmacy business to
notify the Board as soon as practicable. A person approved to
carry on a pharmacy department must also notify the Board of an
intention to close. There is a maximum penalty of 10 penalty
units for failure to comply with either of these obligations.
Division 3--Pharmacists' Responsibilities
Clause 106 sets out the requirement for a registered pharmacist to notify the
Board of the address of the pharmacy or pharmacy department
from which that pharmacist has commenced supplying,
compounding or dispensing medicines.
Clause 107 provides that a registered pharmacist must not supply, compound
or dispense medicines except from a pharmacy or pharmacy
department approved by the Board or in any special
circumstances approved by the Board.
Clause 108 provides that a pharmacy or pharmacy department must be
personally supervised by a registered pharmacist at all times it is
open for business, and sets out the circumstances in which the
provision of pharmacy services without personal supervision by a
registered pharmacist is an offence, and who is liable for the
offence.
Clause 109 creates offences for certain persons to allow access to the
premises of a pharmacy business or pharmacy department when
it is closed, unless a registered pharmacist is present.
22
Division 4--Other Requirements
Clause 110 provides that a registered pharmacist must take reasonable steps
to ensure that the dispensing of a medicine to a person on a
prescription or order is consistent with that person's safety.
This clause also sets out requirements regarding recordkeeping.
Clause 111 makes it an offence for operators of pharmacy depots to fail to
keep medicines left for collection at the depot and prescription
and client records secure.
Division 4--Approvals and Revocation of Approvals
Clause 112 sets out the requirements for making an application for approval
under this Part.
Clause 113 sets out the circumstances where the Board may revoke an
approval under this Part in respect of a pharmacy business,
department or depot and the manner in which such approval
may be revoked.
Division 5--Offences
Clause 114 provides that section 80 (claims by persons as to registration) will
not apply to the use of a name or a title in respect of a pharmacy
business by a person approved under section 102 if the pharmacy
services are provided by or under the supervision of a registered
pharmacist.
Sub-clause (2) provides that a registered pharmacist who carries
on a pharmacy business but doses not personally provide
pharmacy services is not to be treated as practising as a
pharmacist in respect of that business.
Clause 115 makes it an offence for a person to use the title "pharmacy",
"pharmacy practice" or "pharmacy business" except when
approved to do so under this Act. Sub-clause (2) provides
exceptions, including where the use of the name is by a museum
of pharmaceutical items, a teaching institution providing an
approved course of study in pharmacy practice, a professional
association of pharmacists, or any other circumstances approved
by the Board.
23
Clause 116 provides that a provision in a bill of sale or other commercial
arrangement in respect of a pharmacy or pharmacy business is
void if it gives a person other than a person approved under
section 102 a right to control the management of the business or
access to business books of accounts or the right to receive
consideration that is calculated by reference to the profits or
takings of the business.
PART 7--ADMINISTRATION
Division 1--Responsible Boards
Clause 117 provides that the responsible boards referred to in Schedule 1 of
the Act are established or continued in operation under this Act,
and sets out the characteristics of the boards as corporate bodies.
Clause 118 sets out the powers and functions of responsible boards.
The principal powers include
· to register persons who comply with the requirements of
the Act;
· to approve courses of study and clinical training;
· to regulate the standards of practice;
· to investigate the professional conduct, professional
performance and ability to practise of registered health
practitioners;
· to issue and publish guidelines and codes of practice
about certain matters;
· to advise the Minister on any matters relating to its
functions; and
· when requested by the Minister, provide any
information reasonably required by the Minister.
Clause 119 provides that in carrying out its functions, a responsible board
must consult with the Minister and have regard to certain
objectives.
Sub-clause (2) provides that a responsible board must not issue or
publish any guideline or code relating to certain specified matters
unless the Minister has first approved the code or guideline.
24
Sub-clause (3) sets out the people that must be consulted by a
responsible board before it issues any code or guidelines under
clause 118. However, a responsible board is not required to
consult these people if in the board's opinion, it is necessary to
immediately publish the guideline to address a matter of public
health or safety.
Clause 120 sets out the membership requirements of a responsible board.
Members are to be nominated by the Minister and appointed by
the Governor in Council in accordance with this clause.
Clause 121 provides that members of a responsible board hold office for a
term of up to 3 years, as specified in the instrument of
appointment, and are eligible for reappointment.
Clause 122 provides for and sets out the grounds for the removal and
resignation of members of a responsible board.
Sub-clause (4) provides that if a member of a responsible bord
dies, resigns or is removed from office, the Minister may fill the
vacant position by appointing a person from a list of persons
approved by the Governor in Council.
Clause 123 provides for the appointment by the Governor in Council of a
President and Deputy President of the Board, on the
recommendation of the Minister.
Sub-clause (2) provides that the Minister may only recommend a
member who is a registered health practitioner in the relevant
health profession for appointment as President or Deputy
President unless the Minister is of the opinion that it is necessary
for the good operation of the board to recommend a member who
is not a registered health practitioner.
Clause 124 provides for the appointment of an acting member by the
Governor in Council where an appointed member of a
responsible board is unable to act.
Clause 125 provides for the payment of fees and allowances to members or
acting members of a responsible board.
Clause 126 provides for the procedure to be adopted by a responsible board
in the conduct of meetings, and states that a majority of current
board members constitutes a quorum.
Clause 127 provides that a decision of a responsible board is not invalid in
the event of a vacancy in membership of or a defect in
appointment of a member of a responsible board.
25
Clause 128 provides that a member of a responsible board must declare a
pecuniary or other interest in any matter in which the responsible
board is concerned. The member may take part in discussions
concerning the matter at a meeting with the permission of the
responsible board, but must leave the meeting while any vote on
the matter is taken.
Clause 129 provides that a responsible board may consider a resolution
without a meeting and sets out the requirements for such a
resolution to be passed.
Clause 130 sets out approved methods of communication available to a
responsible board for the purposes of holding a meeting.
The method of communication must be approved by the
President and agreed to by two-thirds of a responsible board's
current membership.
Clause 131 provides that no personal liability attaches to a member of a
responsible board, the registrar and panel members appointed by
a responsible board for acts and omissions done in good faith in
the exercise of powers or discharge of duties under this Act, or
acts or omissions done in the reasonable belief that they were
in the exercise of such powers or discharge of such duties.
Sub-clause (2) provides that any liability resulting from such
acts or omission attaches instead to the responsible board.
Clause 132 provides for the employment of staff by a responsible board.
Clause 133 provides that a responsible board may delegate certain powers
and functions under the Act to a member of the responsible board
or the person responsible for maintaining the register or any other
member of the staff of the responsible board.
Sub-clause (2) provides that a responsible board may delegate to
an investigations committee established in accordance with
Schedule 2 any of the board's powers and functions under Part 3
relating to investigations.
Division 2--Advisory Committees
Clause 134 provides that a responsible board may establish advisory
committees for the purposes of gaining expert advice on any
matter relating to registration or endorsement of registration of
health practitioners registered by the responsible board.
26
Clause 135 provides that the Nurses Board of Victoria, the Optometrists
Registration Board of Victoria and the Podiatrists Registration
Board of Victoria must establish an advisory committee to advise
each of those boards about a number of issues relating to the
endorsements of registration under Division 2 of Part 2 that relate
to poisons under the Drugs Poisons and Controlled Substances
Act 1981.
Clause 136 provides that members of committees are to be appointed by a
responsible board, and sets out requirements for the composition
of committees.
Sub-clause (2) sets out the requirements for membership of
committees appointed for the purposes of clause 135.
Division 3--Approval of Positions for Provisional Registration
Clause 137 provides that a responsible board may approve a position in a
hospital or institution for the supervised practice or intern
training of a person registered under clause 9.
PART 8--REPORTING AND FINANCIAL PROVISIONS
Division 1--Financial
Clause 138 provides that a responsible board, except the Medical Radiation
Practitioners Board of Victoria, must continue to be established
and kept a fund in the name of that responsible board.
Sub-clause (2) provides for the establishment of such a fund by
the Medical Radiation Practitioners Board of Victoria.
Sub-clauses (5) and (6) provides that a responsible board must
pay an amount determined by the board to cover the expenses of
VCAT in performing functions under the Act each financial year.
Such amount must not be less than the amount (if any) specified
by the Attorney-General for that year.
Clause 139 sets out the investment powers of a responsible board in relation
to money credited to the fund administered by the board.
Clause 140 sets out the powers of a responsible board in relation to fees that
it is empowered to fix under the Act.
Clause 141 provides for and sets out the requirements for the repayment by a
responsible board of advances from the Public Account paid to it
for its operations.
27
PART 9--ENFORCEMENT AND SUPPLEMENTARY
PROVISIONS
Division 1--General Provisions
Clause 142 sets out who may take proceedings and initiate prosecutions
under this Act.
Clause 143 sets out who may be authorised to carry out functions and
exercise powers to assist in the enforcement of this Act.
Clause 144 provides that an identification card must be issued to each person
authorised to carry out functions and exercise powers under this
Part.
Clause 145 sets out special powers of entry to pharmacies.
Clause 146 provides that the Pharmacy Board of Victoria may require certain
persons to produce documents for examination.
Clause 147 provides that a person appointed by a responsible board may
apply to a magistrate for the issue of a search warrant in relation
to particular premises if the person believes, on reasonable
grounds, that there is or has been a contravention of the Act or
regulations on the premises, or that entry into the premises is
necessary to investigate a notification which could provide
grounds for suspension or cancellation of registration or the
revocation of an approval under Part 6.
Clause 148 provides that an announcement that the person is authorised to
enter by a warrant is required before entry to premises for the
execution of the search warrant, unless the authorised person
believes on reasonable grounds that this will frustrate the purpose
of the warrant.
Clause 149 provides that the person(s) executing the search warrant must
identify themselves and must provide a copy of the execution
copy of the warrant, if the occupier or another person who
represents the occupier is present at the premises.
Clause 150 provides that a copy of all things seized under a warrant that can
be readily copied is to be given to the occupier or the person from
whom it was seized as soon as is practicable, on the request of
that person. If such a copy is not provided, then a receipt should
be provided as soon as practicable after the seizure.
Clause 151 provides that a certified copy of documents retained after being
taken or seized under this Part must be given to the person from
whom they were seized within 21 days of the seizure.
28
Clause 152 provides that an authorised person must take reasonable steps to
return a seized document or thing as soon as the reason for its
seizure no longer exists. If the document or thing has not been
returned within 3 months, then the authorised person must take
reasonable steps to return it unless it is necessary to be retained
for proceedings that are not yet complete, or the Magistrates'
Court has granted an order extending the period for which the
document or thing can be retained.
Clause 153 provides that an authorised person may apply to the Magistrates'
Court for an extension of the period for which a seized document
or thing may be retained and sets out the circumstances in which
the Court will order an extension in the interests of justice.
Clause 154 sets out the extent that protection against self-incrimination may
apply.
Clause 155 makes it an offence for a person to give false or misleading
information to an authorised person.
Clause 156 makes it an offence for a person to hinder or obstruct an
authorised person who is exercising a power under this Part,
unless that person has a reasonable excuse.
Division 2--Special Powers for Provisional Registrants
Clause 157 provides a power for a member of a responsible board or a person
authorised in writing by the board to enter and inspect a hospital
or institution for the purpose of approving positions for
supervised practice or intern training. The clause also allows for
relevant records to be examined and copied.
PART 10--GENERAL
Clause 158 provides that the Governor in Council may make regulations with
respect to a number of matters, including
· the registration of health practitioners;
· the register to be kept by a responsible board;
· the approval of pharmacies, pharmacy businesses,
pharmacy departments and pharmacy depots; and
· any other matters necessary or permitted to be
prescribed to give effect to the Act.
29
Clause 159 sets out the Minister's powers of approval with regards to
delegations under section 152, and any other matter required to
be approved by the Minister under the Act.
Clause 160 sets out requirements for a responsible board to keep information
that it collects whilst performing functions under the Act, and to
provide to the Minister in a de-identified form any information
which may be required for planning the workforce of health
practitioners in Victoria.
Clause 161 provides that a responsible board may disclose information to
other responsible boards, or a person or body in another state or
territory with similar functions or powers, about health
practitioners or students registered by the board or applicants for
registration. The disclosure must be for one of the purposes
listed in sub-clause (2).
PART 11--AMENDMENTS, REPEALS, TRANSITIONALS
AND SAVINGS
Division 1--Repeals, Savings and Transitionals
Clause 162 sets out the definition of "repealed provision".
Clause 163 repeals the existing health profession registration Acts and
section 108AL of the Health Act 1958.
Clause 164 provides that in any Act (other than this Act) or any document
where there is a reference to a repealed provision, that reference
should be read as a reference to this Act.
Clause 165 establishes the Medical Radiation Practitioners Registration
Board of Victoria as a body corporate and as a responsible board
for the purposes of this Act.
Clause 166 provides for the continuation of the boards established under the
Acts repealed under clause 163(1) as responsible boards and its
members remain in office for the period of their appointment.
It also provides that a reference in any other Act to a responsible
board is to be construed as a reference to the responsible board as
continued in operation under this Act.
Clause 167 sets out additional savings and transitionals in relation to
the Medical Radiation Technologists Board of Victoria.
All reference to that board should, from commencement of this
clause, be construed as a reference to the Medical Radiation
Practitioners Board of Victoria unless the context otherwise
requires.
30
Clause 168 provides for the continuation of existing investigations or
inquiries into the activities, professional conduct, performance or
capacity to practice of health practitioners before a responsible
board.
Clause 169 sets out the process for commencing proceedings under this Act
in relation to activities that occurred before this Act commenced.
Clause 170 sets out a number of savings provisions in relation to the
registration and endorsement of registration of health
practitioners under repealed provisions.
Clause 171 provides for the duration of deemed registrations under
clause 171.
Sub-clause (2) provides that despite section 108AL of the Health
Act 1958 and any regulations made for the purpose of that
section, the Medical Technologists Board of Victoria may grant
registration for any period fixed by the Board, and may charge
reduced or no fees. This provision will commence operation on
the date the Act receives Royal Assent.
Clause 172 provides that the registers of the responsible board established
under a repealed provision are deemed to be the registers of the
corresponding responsible boards for the purposes of Part 2 of
this Act.
Clause 173 provides that if a pharmacy business, department or depot was
approved by the Pharmacy Board of Victoria before the
commencement of clause 163, then the relevant premises, person
and the business, department or depot are deemed to be approved
under Part 6 of this Act.
Clause 174 continues a cap on ownership of pharmacy business that applied
under the Pharmacy Practice Act 2004.
Clause 175 provides that in any Act, subordinate instrument or any
document, a reference to a health practitioner registered under a
repealed provision is to be taken to be a reference to a health
practitioner registered under this Act, unless such reference
would be inconsistent with the context or subject matter.
Clause 176 provides that persons who, immediately before the
commencement of clause 163, were specified members of
responsible boards and specified members of lists approved by
Governor in Council for appointment to formal hearing panels,
will become members of VCAT on commencement of
clause 164.
31
Clause 177 preserves the operation of the Interpretation of Legislation Act
1984 unless the contrary intention appears.
Clause 178 makes consequential amendments to definitions in the Drugs,
Poisons and Controlled Substances Act 1981 related to
endorsements of registration under Division 2 of Part 2.
Clause 179 makes consequential amendments to the Drugs, Poisons and
Controlled Substances Act 1981 related to endorsements of
registration under Division 2 of Part 2.
Clause 180 inserts a new section 14A into the Drugs, Poisons and
Controlled Substances Act 1981 allowing the Minister to
approve certain poisons for the purposes of an authorisation
specified in section 13(1), where the authorisations permit some
health practitioners, with appropriately endorsed registration, to
have in his or her possession and to use, sell or supply certain
poisons.
Clause 181 makes consequential amendments to the Victorian Civil and
Administrative Tribunal 1998 regarding the constitution of the
Tribunal for hearings under Part 4 of this Act.
Clause 182 makes consequential amendments to other Acts as set out in
Schedule 4.
SCHEDULES
Schedule 1 lists the boards that are responsible boards for the purposes of
this and any other Act.
Schedule 2 provides for the constitution of bodies established by responsible
boards, including Investigations Committees, Investigations
Review Panels, Health Panels and Professional Standards Panels.
Schedule 3 lists the matters required for approval of premises under Part 6.
Schedule 4 sets out the consequential amendments made to other Acts by
section 182.
32