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Healthcare Quality Commissioner Bill
2014
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill repeals the Health Services (Conciliation and Review) Act 1987
and introduces a new Victorian healthcare complaints system--
· to establish an impartial, accessible and effective healthcare
complaints system that is consistent with the repealed Act;
· to retain the voluntary resolution of healthcare complaints,
while providing the commissioner greater flexibility in
determining the most effective and responsive approach to
resolution of a complaint;
· to provide for local resolution of healthcare complaints, to
enable complaints to be resolved directly with healthcare
providers wherever possible;
· to give the commissioner powers to protect the health and
safety of members of the public through the introduction of
public warning notices;
· to strengthen the capacity of the commissioner to play an
important role in improving healthcare quality;
· to provide for greater accountability by establishing the
Healthcare Quality Council to advise the Minister on the
performance of the commissioner.
571259 1 BILL LA INTRODUCTION 2/9/2014
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
The main purposes of the Bill are to provide for a complaints
process and other processes for health care provision, to
establish the Healthcare Quality Commissioner and the
Healthcare Quality Council, and to repeal the Health Services
(Conciliation and Review) Act 1987.
The Bill also makes minor and consequential amendments to
other Acts.
Clause 2 is the commencement provision.
The provisions of the Bill will come into operation on a day or
days to be proclaimed, or on 1 July 2015 if not proclaimed
before that date.
Clause 3 defines various words and expressions used in the Bill.
A key defined term in the Bill is health care that is defined to
mean a service that is either public or private and includes a
number of healthcare services that are defined in the Health
Practitioner Regulation National Law. It also refers to a number
of specific services that were included in the repealed Act
including services provided by allied, alternative or
complementary health treatment services, psychotherapy
services and therapeutic counselling services.
The definition of health care makes no distinction between
services provided in the public and private sectors and includes
provision by both individual practitioners and organisations.
The bill defines general health care service to be health care
provided otherwise than in the practice of one of the health
professions regulated under the Health Practitioner Regulation
National Law.
Under the bill, general health care service includes for
example speech therapists, naturopaths, psychotherapists and
reiki therapists amongst others. Many of these practitioners
belong to professional associations but others do not.
The definition does not make a distinction between individuals
who have previously been, but are no longer, registered under
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the Health Practitioner Regulation National Law and may also
apply to registered practitioners in so far as they are practising
outside the scope of their registration, for instance, a midwife
who also works under the title of a doula which is not a
registered profession.
These definitions are important in describing the scope of the
commissioner's jurisdiction and the healthcare providers to
whom the new regulatory scheme under the Bill will apply.
Another key defined term in the Bill is relevant Victorian law
which specifies the relevant Victorian Acts for the purposes of
clauses 24, 43(1)(b) and 145(1), which include the Disability
Act 2006, the Health Records Act 2001, the Information
Privacy Act 2000, and the Mental Health Act 2014.
The intention is to ensure all complaints are handled in the
relevant jurisdiction.
Clause 4 sets out a number of health care principles that apply to a
healthcare provider.
PART 2--MAKING COMPLAINTS
Division 1--Scope of complaints
Clause 5 subclause (1) provides for the making of complaints to a
healthcare provider by a person who sought or received health
care from the provider and specifies the grounds on which that
person may make the complaint.
By providing these grounds for complaint, the Bill specifically
recognises that providers of health care have a responsibility to
resolve complaints and that providers of general health care are
required to comply with prescribed codes of conduct.
Subclause (2) provides grounds on which a person may make a
complaint directly to the commissioner. These grounds include
where a healthcare provider failed to comply or has acted
inconsistently with any relevant interim complaint handling
standards or complaint handling standards, or has failed to
comply or has acted inconsistently with a relevant prescribed
code of conduct.
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Subclause (2) also provides that a complaint may be made to the
commissioner about a complaint previously made to the
healthcare provider that has not been resolved within 3 months.
Clause 6 specifies the time within which a complaint under clause 5(2)
may be made to the commissioner. A complaint must be made
within twelve months of the healthcare being sought or
provided. The commissioner has discretion to accept a
complaint outside these time limits if satisfied that the
circumstances of the case require it.
Clause 7 provides for the making of a complaint by a person to a
healthcare provider about health care received or sought by
another person and sets out the grounds for such a complaint.
Subclause (2) specifies the grounds on which a person may
make a complaint to the commissioner about a healthcare
provider's provision of, or failure to provide, health care to
another person.
Clause 8 specifies the time within which a complaint under clause 7(2)
for another person may be made to the commissioner.
A complaint must be made within twelve months of the
healthcare being sought or provided. The commissioner has
discretion to accept a complaint outside these time limits if
satisfied that the circumstances of the case require it.
Clause 9 subclause (1) provides that a person may not make a complaint
under clause 7(1), (2)(a), (c) or (d) to the healthcare provider or
the commissioner for another person without the consent of the
person to whom the complaint relates.
Subclause (2) provides that the healthcare provider may
determine, if satisfied that it is not possible or appropriate, that
consent is not required to make a complaint in accordance with
clause 7(1).
Subclause (3) provides consent is not required if the complaint
is made under clause 7(2)(b) in respect of a failure by the
healthcare provider to comply with a general health care service
code of conduct or an interim prohibition order or a prohibition
order.
Subclause (4) provides the healthcare provider or the
commissioner may decide that the consent of the person to
whom the complaint relates is not required if a complaint is
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made under clause 7(2)(a), (c) or (d) if it is not possible or
appropriate in the circumstances of the case to require it, for
instance for public interest reasons.
Clause 10 provides that the carer of a person seeking or receiving health
care may make a complaint to a healthcare provider about any
unreasonable treatment of the carer by the healthcare provider.
Subclause (2) sets out the grounds on which the carer of a
person who has sought or received health care from a healthcare
provider may make a complaint to the commissioner.
Clause 11 provides for the time within which a carer may make a
complaint to the commissioner under clause 10(2). A complaint
must be made within twelve months of the healthcare being
sought or provided. The commissioner has discretion to accept
a complaint outside the time limit if satisfied that the
circumstances require it.
Division 2--Procedure for making complaints
Clause 12 provides that a complaint made to the commissioner may be
made orally or in writing.
The clause notes that a complaint may be made by electronic
communication within the meaning of section 3(1) of the
Electronic Transactions (Victoria) Act 2000 which would
include emails and voice recognition systems.
Subclause (2) provides that a person who makes an oral
complaint must confirm the complaint as recorded in writing as
soon as practicable, for example in an email stating that they
wish to proceed with the complaint made orally.
Subclause (3) provides that the commissioner may waive the
requirement for a person to comply with subclause (2).
Clause 13 provides that the commissioner must acknowledge the receipt of
a complaint in writing, or orally if written acknowledgment of
the complaint is not appropriate in the circumstances. A written
record must be kept of the oral acknowledgment.
Subclause (3) provides that the acknowledgement must be given
as soon as practicable.
Clause 14 provides that the commissioner must give reasonable assistance
to a person who is making or confirming a complaint.
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PART 3--DEALING WITH COMPLAINTS
Division 1--Parties
Clause 15 specifies that the parties to a complaint are the complainant, the
healthcare provider about whom the complaint is made and the
person who sought or received the health care if they are not the
complainant and are required to consent to the making of the
complaint under clause 9.
Division 2--Initial consideration
Clause 16 subclause (1) provides that the commissioner may, with the
consent of the parties, negotiate with parties to resolve an
acknowledged complaint by informal means.
Subclause (2) provides that the commissioner may negotiate
under subclause (1) before deciding to accept a complaint.
Subclause (3) provides that the negotiation with the consent of
the parties may be conducted in any manner and using any
means the commissioner considers appropriate.
This clause allows the commissioner, prior to formal acceptance
of the complaint, to resolve complaints with the least formality
possible as appropriate to the nature of the complaint, and will
assist with prompt resolution of complaints. If the negotiation
of a complaint fails a more formal complaint resolution process
may be commenced.
Clause 17 subclause (1) provides that the commissioner must decide
whether or not to accept an acknowledged complaint.
Acceptance of the complaint is the first step in commencing a
more formal complaint resolution process.
Subclause (2) provides that the commissioner must make a
decision under subclause (1) as soon as practicable after the
complaint is made or after the complaint fails to be resolved
through negotiation with the parties under clause 16.
Subclause (3) provides that the commissioner must give written
notice of the decision to the complainant as soon as possible
after making a decision under subclause (1) to accept a
complaint.
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Clause 18 sets out the grounds on which the commissioner may refuse to
accept a complaint, for example when the subject matter of the
complaint comes within the jurisdiction of a court, tribunal or
other body. The commissioner may also refuse to accept
frivolous or vexatious complaints or those not made in good
faith or made for an improper purpose.
Clause 19 provides that the commissioner may interview the complainant
or require the complainant to provide further information before
accepting a complaint under clause 17. A failure to provide the
information requested may be a ground for the commissioner to
refuse to accept the complaint if the commissioner believes it is
not in the public interest to do so.
Clause 20 provides that as soon as possible after a complaint is accepted
the commissioner must seek the agreement of the complainant
to a formal description of the complaint. It is not envisaged that
seeking agreement to a formal description will impose any
additional burden on the complainant if the commissioner is
satisfied with the way the original complaint was made and
there has been no necessity to seek and add further information.
Subclause (2) provides that the commissioner may decide not to
proceed with a complaint if agreement about the description of
the complaint cannot be reached within 10 business days or
such longer period determined by the commissioner.
Subclause (3) requires the commissioner to give notice in
writing of a decision not to proceed under subclause (2).
Clause 21 provides that the commissioner may alter or vary the agreed
formal description of the complaint with the agreement of the
complainant.
The intention of the clause is to allow further information that
may come to light to be taken into consideration resulting in any
necessary variation to the complaint originally conceived.
Clause 22 subclause (1) provides that subject to subclause (3) as soon as
possible after the formal description of the complaint is agreed
to under clause 20, the commissioner must give a copy of the
agreed formal description of the complaint to the healthcare
provider.
7
Subclause (2) provides that subject to subclause (3) if the
agreed formal description of the complaint is altered or varied
under clause 21, the commissioner must give a copy of the
altered or varied complaint to the healthcare provider.
Subclause (3) provides that the commissioner is not required to
give a copy of an agreed formal description of a complaint to
the healthcare provider if a National Board has been notified of
the complaint under the National Law and the Board makes a
request that the copy not be provided to the healthcare provider.
Clause 23 provides that in order to determine how to deal with a complaint
the commissioner may seek further information from the
complainant, the healthcare provider, the person who sought or
received the healthcare if they are not the complainant, and any
other person whom the commissioner reasonably believes has
relevant information.
Clause 24 provides that if the subject matter of all or part of a complaint to
the commissioner would also be a reason for making a
complaint or conducting an investigation or inquiry under
another relevant Victorian law, the commissioner must refer the
complaint or part of the complaint to the body responsible for
dealing with the matter under that other law as soon as
practicable.
Subclause (3) provides that on all or part of a complaint being
referred, the commissioner may continue to exercise the power
to conduct a code of conduct investigation under Division 1 of
Part 4 or to issue a notice or order under Division 1, 2 or 3 of
Part 6.
It is intended that if a complaint is made that deals with subject
matter some of which is grounds for complaint under another
Act, and some of which is within the commissioner's
jurisdiction, the complaint will be divided into two separate
complaints under clause 43 resulting in the Commissioner
retaining the complaint that is within jurisdiction and referring
the other.
Clause 25 subclause (1) provides that the commissioner is a health
complaints entity within the meaning of the Health Practitioner
Regulation National Law.
8
This means that the commissioner has duties under the National
Law if a complaint is received that may also be the subject of a
notification about a registered health practitioner under the
Health Practitioner Regulation National Law.
Subclause (2) provides that if a decision is made under
section 150 of the National Law to deal with a complaint the
commissioner must refer the complaint to the Australian Health
Practitioner Regulation Agency or the relevant National Board.
Clause 26 provides that if the commissioner refers all or part of a
complaint to another person or body under clause 24 the
commissioner must notify the complainant, the Australian
Health Practitioner Regulation if the matter is relevant to the
regulation of the National Law, the person who sought or
received the healthcare (if they are not the complainant and it is
appropriate to do so in the circumstances) and the healthcare
provider. These persons must be notified as soon as possible
after a referral or notification.
Subclause (2)(a) provides that in the case of a referral, under
clause 25, the commissioner must as soon as possible after the
referral is made, notify the complainant, the person who
received or sought the health care if they are not the
complainant and it is appropriate in the circumstances to do so.
Subclause (2)(b) provides that in the case of a referral, under
clause 25, the commissioner must notify the healthcare provider
as soon as possible after the referral is made. If however the
National Board requests that the notification not be given as
soon as possible, the notification of the referral will occur on
the National Board advising the commissioner that notice may
be given.
Division 3--Complaint resolution process
Clause 27 provides that as soon as possible after a copy of a description
of a complaint is given to a healthcare provider under clause 22
the commissioner must decide whether or not the complaint is
suitable for a complaint resolution process.
Subclause (2) provides that if the commissioner decides that the
complaint is suitable for a complaint resolution process, the
commissioner may seek an agreed resolution to the complaint
by the parties by promoting discussion or negotiation of the
complaint between the parties.
9
Alternatively, the commissioner may seek resolution by taking a
more active role in the process of identifying the issues in
dispute, promoting discussion or negotiation of the complaint
between the parties, proposing options for resolution of issues
and proposing terms for agreement. This type of complaint
resolution process is further defined as the conciliation process
for the purposes of the Bill.
Subclause (3) provides that the commissioner must decide the
manner in which the process is to be conducted, and in doing so
may call for oral or written submissions or both or by holding
one or more conferences with all parties present.
Subclause (4) provides that the commissioner must prefer the
least formal action to be taken when deciding the process to be
conducted under subclause (3).
Clause 28 provides that the commissioner must give notice of the decision
under clause 27 regarding the complaint resolution process to
the parties to the complaint as soon as possible after making the
decision.
Subclause (2) specifies the information the notice of the
decision must contain, including the time, place and person to
whom submissions must be made, or time and place of
conferences to be held.
Subclause (3) provides that notice must be given in a reasonable
time before any dates fixed by the notice to allow the parties to
prepare given the complexity of the matter.
Clause 29 provides that in a complaints resolution process the
commissioner, by written notice, may require the healthcare
provider to give a written response to the issues raised in the
complaint.
Subclause (2) provides that the notice under subclause (1) must
specify the time within which the written response must be
provided, which must be no more than 20 business days after
the notice is given.
Subclause (3) provides that a healthcare provider to whom a
notice is given must comply with the requirements of the notice.
A failure to comply with the notice is an offence and a penalty
of 20 penalty units for a natural person and 100 penalty units for
a body corporate applies.
10
Clause 30 provides that in a conciliation process the commissioner, by
written notice, may require the healthcare provider to produce
any document or any other evidence specified in the notice held
by the healthcare provider that--
· forms part of the health information about the person
who requested or received the health care;
· is about policies or protocols of the healthcare provider
that applied to the subject matter of the complaint; or
· is about investigations into the complaint by the
healthcare provider.
Subclause (2) provides that the notice must specify the time
within which the document or evidence must be produced,
which must be no more than 20 days after the notice is given.
Subclause (3) provides that a healthcare provider to whom a
notice is given must comply with the notice. It is an offence to
fail to comply with the notice and a penalty of 20 penalty units
for a natural person and 100 penalty units for a body corporate
applies.
Clause 31 provides that the commissioner, in a complaints resolution
process (including a conciliation process) may extend the time
within which a person must comply with a notice under
clause 29 or under clause 30
Clause 32 provides that a party must not disclose anything said or done in
a conciliation process outside the process.
It is an offence to fail to comply with this requirement and a
penalty of 20 penalty units applies to a natural person and
100 penalty units applies to a body corporate.
Subclause (2) provides that disclosure may be made with the
consent of the person to whom the information relates.
Subclause (3) provides that evidence of anything said or done
in a conciliation process is not admissible in any hearing or
proceeding in a court or tribunal. This is a necessary protection
to encourage maximum participation by all parties in the
conciliation process.
11
Clause 33 provides that if agreement is reached on the resolution of a
complaint during the complaint resolution process, the
commissioner must make a written record of the agreement and
must give a copy of the written record to each party to the
complaint.
Subclause (2) provides that if a healthcare provider gives an
undertaking to the commissioner in the course of a complaint
resolution process, the commissioner must make a written
record of the undertaking that is signed by the provider.
Subclause (3) provides that if agreement is not reached in a
complaint resolution process the commissioner may either close
the complaint or conduct a different complaint resolution
process or an investigation into the complaint.
Subclause (4) provides that if the commissioner closes a
complaint under subclause (3)(a) the commissioner must give
written notice of the reasons for that decision to the parties to
the complaint.
Clause 34 provides that if, as part of resolving a complaint in a complaint
resolution process a healthcare provider gives an undertaking,
the commissioner may in writing require the healthcare provider
to report to the commissioner on the implementation of the
undertaking.
Subclause (2) provides that the report must be made in the
time fixed by the commissioner which must not be more than
12 months after the undertaking is given.
Subclause (3) provides that a healthcare provider to whom a
requirement to report under subclause (1) has been given must
comply with the requirement within the time fixed under
subclause (2). Failure to comply with the requirement without
a reasonable excuse within the time fixed is an offence for
which a penalty of 60 penalty units for a natural person and
300 penalty units for a body corporate applies.
Division 4--Investigation of complaints
Clause 35 provides that the commissioner may conduct an investigation of
a complaint if the commissioner reasonably believes that the
complaint should be investigated and--
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· the complaint is not suitable for a complaint resolution
process; or
· a complaint resolution process has not been successful;
or
· a healthcare provider who is a party to the complaint
fails without reasonable excuse to participate in a
complaint resolution process; or
· a healthcare provider who is a party to the complaint
fails to comply with a notice seeking more information
under clause 23(b) or a notice requiring a written
response under clause 29 or a notice requiring the
production of a document or other evidence under
clause 30.
Subclause (2) provides that the commissioner may conduct a
hearing in an investigation under this clause.
Clause 36 provides that if the commissioner has decided to conduct a
complaint investigation, the commissioner must give written
notice of the investigation to the parties to the complaint as soon
as possible.
Subclause (2) provides that the notice must be accompanied by
a copy of the agreed formal description of the complaint
prepared under clause 20 or 21.
Clause 37 provides that in conducting a complaint investigation the
commissioner may carry out any inquiries into the subject
matter of the complaint that the commissioner believes are
necessary.
Subclause (2) provides that in conducting a complaint
investigation, the commissioner must act as expeditiously and
with as little formality as is reasonably possible, is bound by the
rules of natural justice, is not bound by the rules of evidence
and must before making a decision affecting a person give the
person an opportunity to make submissions to the commissioner
about the decision.
Clause 38 provides that if the commissioner is conducting a complaint
investigation that does not involve a hearing, in providing a
person with the opportunity to make submissions to the
commissioner about a decision under clause 37(2)(d), the
13
commissioner may take oral or written submissions, send for
persons, documents or other things, and must keep a record of
all submissions and evidence given before the commissioner
and the decisions of the commissioner.
The intention of this clause is to set out the process by which a
person who will be affected by a decision made in an
investigation that did not proceed to a hearing will be accorded
natural justice.
A note provides that Parts 5 and 10 of the Bill set out other
provisions about the process for complaint investigation.
Clause 39 provides that if the commissioner decides to conduct a hearing
in a complaint investigation, the commissioner must give
written notice of the hearing to the parties to the complaint.
Subclause (2) provides that the notice must specify the date on
which the hearing is to commence and the place at which it will
be held.
Subclause (3) provides that the notice of a hearing must be
given to the parties to the complaint at least 10 business days
before the hearing is to commence.
A note provides that Parts 5 and 10 of the Bill set out other
provisions about the process for complaint investigation.
Clause 40 provides that on completing a complaint investigation the
commissioner must prepare a written report of the investigation.
Subclause (2) specifies the information that must be included in
the report.
Clause 41 provides that the commissioner must give the report to the
healthcare provider or if there is more than one healthcare
provider give the part of the report that relates to a healthcare
provider to that healthcare provider.
Subclause (2) provides that the commissioner may give all or
part of the report to--
· the complainant; and
· the person who sought or received the health care if that
person is not the complainant providing that they
consented to the complaint being made and agreed to be
notified about the outcome of the complaint; and
14
· the Australian Health Practitioner Regulation Agency if
the report is relevant to the administration of the
National Law; and
· an employer of the healthcare provider if the report is
relevant to the healthcare provider's employment by that
employer; and
· the Secretary.
Clause 42 provides that a healthcare provider who receives a report under
clause 41 setting out recommendations for actions that the
healthcare provider should take must provide a written response
to that report within the time specified in the report.
The clause provides that the response must describe what action
has been taken to implement the recommendations, set out a
plan for addressing each recommendation and give a reason for
not addressing a recommendation.
A failure, without reasonable excuse, to provide a written
response that includes the required information within the time
specified is an offence to which a penalty of 60 penalty units for
a natural person and 300 penalty units for a body corporate
applies.
Division 5--Dividing, combining, closing, withdrawing etc.
complaints
Clause 43 provides that the commissioner may divide a complaint--
· into two or more complaints if the commissioner
believes it is in the interests of the person who received
or sought the health care or
· into a part that may be dealt with under this Bill and a
part that is or may be the subject of a complaint,
investigation or inquiry under the Health Practitioner
Regulation National Law or a relevant Victorian law for
the purpose of referring part of the complaint to the
entity responsible for dealing with the matter under that
law.
Subclause (2) provides that the commissioner may combine two
or more complaints, whether or not there is more than one
complainant, if the commissioner reasonably believes that the
15
complainant or complainants are not disadvantaged, the
healthcare provider's rights are not adversely affected and the
person who received or sought the health care is not
disadvantaged.
Subclause (3) provides that if the commissioner divides or
combines complaints under this clause, the commissioner must
inform any relevant complainant, healthcare provider and
person who received or sought the health care of the action
taken as soon as possible after taking it.
Clause 44 sets out a number of grounds on which the commissioner
may close a complaint that the commissioner has accepted.
These include if the commissioner is satisfied there is no
reasonable prospect of resolving the complaint, if the complaint
has been withdrawn or if the commissioner is now satisfied that
the complaint is frivolous or vexation or was made for an
improper purpose or was not made in good faith.
Subclause (2) also sets out the grounds on which the
commissioner may reopen a complaint that the commissioner
has closed, for example when the complainant provides new
information about the complaint.
Subclause (3) provides that if the commissioner closes or
reopens a complaint under this clause the commissioner must
inform any relevant complainant, healthcare provider and
person who received or sought the health care of the action
taken as soon as possible.
Clause 45 provides that a complainant may withdraw a complaint at any
time by giving written notice to the commissioner.
Clause 46 provides that if a complaint has been withdrawn the
commissioner must not proceed with the complaint unless the
commissioner reasonably believes--
· that it is in the public interest to do so; or
· that the complaint involves a contravention of a
prohibition order or interim prohibition order by a
person providing a general health care service; or
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· that the complaint involves a contravention of a general
health care service code of conduct; or
· the complaint may have been withdrawn because of
victimisation, coercion, duress or intimidation.
PART 4--FURTHER INVESTIGATIONS
Division 1--Code of conduct investigations
Clause 47 provides that the commissioner may investigate the conduct of a
healthcare provider in providing general health care services if a
complaint is made and the commissioner reasonably believes
that the provider has contravened a general health care service
code of conduct applying to the general health care service.
Subclause (2) provides that in an investigation under this clause
the commissioner may conduct a hearing.
Clause 48 provides that if the commissioner has decided to conduct a code
of conduct investigation, the commissioner must give written
notice of the investigation to the general healthcare provider
setting out the alleged contravention of the general health care
service code of conduct.
Clause 49 provides that in conducting a code of conduct investigation, the
commissioner may carry out any inquiries into the subject of the
investigation that the commissioner believes necessary.
Subclause (2) provides that in conducting a code of conduct
investigation the commissioner must act as expeditiously and
with as little formality as is reasonably possible, is bound by the
rules of natural justice, is not bound by the rules of evidence
and before making a decision affecting a person must give the
person an opportunity to make submissions to the commissioner
about the decision.
Clause 50 provides that if the commissioner is conducting a code of
conduct investigation that does not involve a hearing, in
providing a person the opportunity to make submissions to the
commissioner about a decision under clause 49(2)(d), the
commissioner may take oral and written submissions, may send
for persons, documents or other things and must keep a record
of all submissions and evidence given before the commissioner
and decisions of the commissioner.
17
The intention of this clause is to set out the process by which a
person who will be affected by a decision made in an
investigation that did not proceed to a hearing will be accorded
natural justice.
A note provides that Parts 5 and 10 of the Bill set out other
provisions about the process for code of conduct investigations.
Clause 51 provides that if the commissioner is conducting a code of
conduct investigation that does involve a hearing the
commissioner must give written notice of the hearing to the
healthcare provider.
Subclause (2) provides that the notice must specify the date on
which the hearing is to commence and the place at which the
hearing is to be held.
Subclause (3) provides that the notice must be given to the
healthcare provider at least 10 business days before the hearing
is to commence.
A note provides that Parts 5 and 10 of the Bill set out other
provisions about the process for code of conduct investigations.
Clause 52 provides that on completing a code of conduct investigation the
commissioner must prepare a written report of the investigation.
Subclause (2) specifies the information that must be included in
the report.
Clause 53 provides that the commissioner must give the report to the
healthcare provider or if there is more than one healthcare
provider give the part of the report that relates to a healthcare
provider to that healthcare provider.
Subclause (2) provides that the commissioner may give all or
part of the report to--
· the complainant; and
· the person who sought or received the health care if that
person is not the complainant providing that they
consented to the complaint being made and agreed to be
notified about the outcome of the complaint; and
· the Australian Health Practitioner Regulation Agency if
the report is relevant to the administration of the
National Law; and
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· an employer of the healthcare provider if the report is
relevant to the healthcare provider's employment by that
employer; and
· the Secretary.
Clause 54 provides that a healthcare provider who has received a report
under clause 53 setting out recommendations that apply to that
healthcare provider must give a written response to that report
to the commissioner within the time specified by the
commissioner.
The clause provides that the response must describe what action
has been taken to implement the recommendations, and set out a
plan for addressing each recommendation or give a reason for
not addressing the recommendation.
A failure, without reasonable excuse, to provide a written
response that includes the required information within the time
specified is an offence to which a penalty of 60 penalty units for
a natural person and 300 penalty units for a body corporate
applies.
Division 2--Investigations by commissioner on referral by
Minister
Clause 55 provides that the Minister may refer to the commissioner for
investigation any matter that a person would be able to make a
complaint about under clause 7.
Subclause (2) provides that the commissioner may investigate a
matter referred by the Minister.
Subclause (3) provides that in an investigation under this clause
the commissioner may conduct a hearing.
Clause 56 provides that the commissioner must provide written notice to
the healthcare provider of the commissioner's decision to
conduct a referral investigation.
Subclause (2) provides that the notice must set out the nature of
the matter being investigated.
Clause 57 provides that in conducting a referral investigation, the
commissioner may carry out any inquiries into the subject of the
investigation that the commissioner believes necessary.
19
Subclause (2) provides that in conducting a referral
investigation the commissioner must act as expeditiously and
with as little formality as is reasonably possible, is bound by the
rules of natural justice, is not bound by the rules of evidence
and before making a decision affecting a person must give the
person an opportunity to make submissions to the commissioner
about the decision.
Clause 58 provides that if the commissioner is conducting a referral
investigation that does not involve a hearing, in providing a
person with the opportunity to make submissions to the
commissioner about a decision under clause 57(2)(d), the
commissioner may take oral and written submissions, may send
for persons, documents or other things and must keep a record
of all submissions and evidence given before the commissioner
and decisions of the commissioner.
The intention of this clause is to set out the process by which a
person who will be affected by a decision made in an
investigation that did not proceed to a hearing will be accorded
natural justice.
A note provides that Parts 5 and 10 of the Bill set out other
provisions about the process for referral investigations.
Clause 59 provides that if the commissioner is conducting a referral
investigation that does involve a hearing the commissioner must
give written notice of the hearing to the healthcare provider who
is the subject of the investigation.
Subclause (2) provides that the notice must specify the date on
which the hearing is to commence and the place at which the
hearing is to be held.
Subclause (3) provides that the notice must be given at least
10 business days before the hearing is to commence.
A note provides that Parts 5 and 10 of the Bill set out other
provisions about the process for referral investigations.
Clause 60 provides that on completing a referral investigation the
commissioner must prepare a written report of the investigation.
Subclause (2) specifies the information that must be included in
the report.
20
Clause 61 provides that the commissioner must give the report to the
Minister and to the healthcare provider or if there is more than
one healthcare provider give the part of the report that relates to
a healthcare provider to that healthcare provider.
Subclause (2) provides that the commissioner may give all or
part of the report to--
· the Australian Health Practitioner Regulation Agency if
the report is relevant to the administration of the
National Law; and
· the Secretary.
Clause 62 provides that a healthcare provider who has received a report
under clause 61 setting out recommendations that apply to that
healthcare provider must give a written response to that report
to the commissioner within the time specified by the
commissioner.
The clause provides that the response must describe what action
has been taken to implement the recommendations and set out a
plan for addressing each recommendation and give a reason for
not addressing the recommendation.
A failure, without reasonable excuse, to provide a written
response that includes the required information within the time
specified is an offence to which a penalty of 60 penalty units for
a natural person and 300 penalty units for a body corporate
applies.
Division 3--Complaint data investigations
Clause 63 provides that the commissioner, if of the reasonable belief that
an investigation may enable persistent or recurrent issues
regarding the provision of healthcare provided by a healthcare
provider to be identified, may conduct an investigation of
information given to the commissioner in the course of dealing
with a complaint under Part 3.
Clause 64 provides that if the commissioner has decided to conduct a
complaints data investigation, the commissioner must give
written notice of the investigation to the health care provider.
Subclause (2) provides that the notice must set out the nature of
the matter to be investigated.
21
Clause 65 provides that in conducting a complaints data investigation, the
commissioner may carry out any inquiries into the subject of the
investigation that the commissioner believes are necessary.
Subclause (2) provides that in conducting a referral
investigation the commissioner must act as expeditiously and
with as little formality as is reasonably possible, is bound by the
rules of natural justice, is not bound by the rules of evidence
and before making a decision affecting a person must give the
person an opportunity to make submissions to the commissioner
about the decision.
Clause 66 provides that if the commissioner is providing a person with the
opportunity to make submissions to the commissioner about a
decision under clause 65(2)(d), the commissioner may take oral
and written submissions, may send for persons, documents or
other things and must keep a record of all submissions and
evidence given before the commissioner and decisions of the
commissioner.
The intention of this clause is to set out the process by which a
person who will be affected by a decision made in an
investigation will be accorded natural justice.
Clause 67 provides that on completing a complaint data investigation the
commissioner may prepare a written report of the investigation
if a persistent or recurrent issue regarding the provision of
healthcare provided by the healthcare provider is identified.
Subclause (2) specifies the information that must be included in
the report which includes any recommendations of action that
should be taken by the healthcare provider and the time within
which the action must be taken.
Subclause (3) specifies that the commissioner must provide a
copy of the report to the healthcare provider.
Clause 68 provides that a healthcare provider who has received a report
under clause 67 setting out recommendations must give a
written response to that report to the commissioner within a
time specified by the commissioner.
The clause provides that the response must describe what action
has been taken and set out a plan for addressing each
recommendation or give a reason for not addressing the
recommendation.
22
A failure, without reasonable excuse, to provide a written
response that includes the required information within the time
specified is an offence to which a penalty of 60 penalty units for
a natural person and 300 penalty units for a body corporate
applies.
Division 4--Follow-up investigations
Clause 69 provides that the commissioner may conduct follow-up
investigations as to whether there has been a failure of a
healthcare provider to take action under an agreement under
Division 3 of Part 3 or pursuant to recommendations in a report
under clause 41, 53, 61, 67 or 76.
Subclause (2) provides that in an investigation under this clause
the commissioner may conduct a hearing.
Clause 70 provides that the commissioner must not commence a follow-up
investigation under clause 69(a) unless the healthcare
provider--
· has not given the report to the commissioner within the
time specified by the commissioner under clause 34, or
· has not, in the report given to the commissioner as
required under clause 34, substantively addressed the
implementation of the undertaking given by the
provider to the commissioner.
Subclause (2) provides that the commissioner must not
commence a follow-up investigation under clause 69(1)(b)
unless the healthcare provider--
· has not given the response to the commissioner within
the time set out by the commissioner's report under
clause 40, 52, 60, 67, or 75; or
· has not, in the response required to be given to the
commissioner under clause 42, 54, 62, 68 or 77
substantively addressed the implementation of the
recommendations made to the provider by the
commissioner.
23
Clause 71 provides that the commissioner must give written notice to the
healthcare provider of the commissioner's decision to conduct a
follow-up investigation.
Clause 72 provides that in conducting a follow-up investigation, the
commissioner may carry out any investigation into the subject
matter of the investigation that the commissioner believes
necessary.
Subclause (2) provides that in conducting a follow-up
investigation the commissioner must act as expeditiously and
with as little formality as is reasonably possible, is bound by the
rules of natural justice, is not bound by the rules of evidence
and before making a decision affecting a person must give the
person an opportunity to make submissions to the commissioner
about the decision.
Clause 73 provides that if the commissioner is conducting a follow-up
investigation that does not involve a hearing, in providing a
person with the opportunity to make submissions to the
commissioner about a decision under clause 72(2)(d), the
commissioner may take oral and written submissions, may send
for persons, documents or other things and must keep a record
of all submissions and evidence given before the commissioner
and decisions of the commissioner.
The intention of this clause is to set out the process by which a
person affected by a decision made in an investigation that does
not proceed to a hearing will be accorded natural justice.
A note provides that Parts 5 and 10 of the Bill set out other
provisions about the process for follow-up investigations
Clause 74 provides that if the commissioner is conducting a follow-up
investigation that does involve a hearing the commissioner must
give written notice of the hearing to the healthcare provider.
Subclause (2) provides that the notice must specify the date on
which the hearing is to commence and the place at which the
hearing is to be held.
Subclause (3) provides that the notice must be given at least
10 business days before the hearing is to commence.
A note provides that Parts 5 and 10 of the Bill set out other
provisions about the process for follow-up investigations.
24
Clause 75 provides that on completing a follow-up investigation the
commissioner must prepare a written report of the investigation.
Subclause (2) specifies the information that must be included in
the report.
Clause 76 provides that the commissioner must give the report to the
healthcare provider or if there is more than one healthcare
provider give the part of the report that relates to a healthcare
provider to that healthcare provider. If the report relates to an
investigation referred to the commissioner under clause 55, the
Minister must be given a copy.
Subclause (2) provides that the commissioner may give all or
part of the report to--
· the complainant; and
· the person who sought or received the health care if that
person is not the complainant providing that they
consented to the complaint being made and agreed to be
notified about the outcome of the complaint; and
· the Australian Health Practitioner Regulation Agency if
the report is relevant to the administration of the
National Law; and
· an employer of the healthcare provider if the report is
relevant to the healthcare provider's employment by that
employer; and
· the Secretary.
Clause 77 provides that a healthcare provider who has received a report of
a follow-up investigation setting out recommendations must
give a written response to that report to the commissioner
within a time specified by the commissioner.
The clause provides that the response must describe what action
has been taken and set out a plan for addressing each
recommendation or give a reason for not addressing the
recommendation.
A failure, without reasonable excuse, to provide a written
response that includes the required information within the time
specified is an offence to which a penalty of 60 penalty units for
a natural person and 300 penalty units for a body corporate
applies.
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PART 5--GENERAL MATTERS AS TO INVESTIGATIONS
Division 1--Definitions
Clause 78 provides that in this Part commissioner hearing means a
hearing of the commissioner in an investigation under
section 35(2), 47(2), 55(3) or 69(2).
Division 2--Investigative powers
Clause 79 provides that the commissioner may authorise persons to
exercise powers under this Division.
Clause 80 provides that the commissioner must issue a document to an
authorised person that identifies that person. The document
must contain a photograph of the person.
Clause 81 provides for the powers of the commissioner to seek and
execute search warrants for specified purposes.
The clause sets out the requirements for search warrants and
specifies that except if otherwise provided by this Act the rules
to be observed with respect to search warrants under the
Magistrates' Court Act 1989 apply to warrants issued under
this clause.
Subclause (1) provides the commissioner may apply to a
magistrate for a search warrant if the commissioner reasonably
believes that there is on a premises evidence relevant to a
healthcare quality investigation.
Subclause (3) provides that the person executing a warrant may
require the production of a document named in a warrant, may
examine, take copies or make extracts from a document named
in a warrant, or may remove a document for so long as
necessary to make copies or take extracts.
Subclause (4) sets out that a warrant must state the purpose for
which the search is required and when entry is authorised to
take place and the day on which the warrant ceases to have
effect.
Subclause (6) specifies that a warrant issued under this clause
must not authorise the person executing the warrant to arrest a
person.
26
Clause 82 provides that a person executing a warrant issued under this
Division must announce that he or she is authorised by warrant
to enter the premises and if the person has been unable to obtain
unforced entry, must give any person at the premises an
opportunity to allow entry to the premises.
Clause 83 provides that if the occupier is present at the premises where a
warrant issued under this Division is being executed the person
executing the warrant must identify himself or herself to the
occupier and give the occupier a copy of the warrant.
Subclause (2) provides that if the occupier is not present at the
premises where a warrant issued under this Division is being
executed the person executing the warrant must identify himself
or herself to a person at the premises and give the person a copy
of the warrant.
Clause 84 provides that it is an offence for a person, without reasonable
excuse, to hinder or obstruct a person who is executing a
warrant issued under this Division. A penalty of 60 penalty
units in relation to a natural person and 300 penalty units in
relation to a body corporate applies for failure to comply.
Division 3--Power of commissioner as to production of documents
and things and obtaining evidence
Clause 85 provides that in this division commissioner hearing notice
means a notice under clause 86(1).
Clause 86 provides that for the purpose of a commissioner hearing, the
commissioner or authorised member of the commissioner's staff
may by serving written notice require a person--
· to produce a specified document or thing to the
commissioner by a specified time and in a specified
manner; or
· to attend the commissioner hearing at a specified time
and place to produce a specified document or thing; or
· to attend the commissioner hearing at a specified time
and place, and from then on until excused, to give
evidence; or
27
· to attend the commissioner hearing at a specified time
and place, and from then on until excused, to give
evidence and to produce a specified document or thing.
Subclause (2) provides that a commissioner hearing notice
must be in the prescribed form (if any) and specifies the
information that must be included.
Subclause (3) provides that it is an offence for a person,
without reasonable excuse, to refuse or fail to comply with a
notice served under this clause. A penalty of 120 penalty units
or 12 months imprisonment in relation to a natural person and
600 penalty units in relation to a body corporate apply.
Clause 87 provides that a person served with a commissioner hearing
notice may claim at the hearing that they have or will have
reasonable excuse for not complying with the notice or that the
document or thing to be produced is not relevant to the subject
matter of the hearing.
Subclause (2) provides that the commissioner may vary or
revoke the notice if satisfied that the person's claim under
subclause (1) is made out.
Subclause (3) provides that the commissioner may at any time
vary or revoke a commissioner hearing notice by providing a
further written notice.
Subclause (4) provides that a commissioner hearing notice must
be served in the prescribed manner.
Clause 88 provides that in a commissioner hearing the commissioner may
require a person attending the hearing to give evidence or
answer questions on oath or by affirmation.
Subclause (2) provides that the commissioner or an authorised
member of the commissioner's staff may administer an oath or
affirmation to a person for the purpose of subclause (1).
Clause 89 provides that in respect of documents or things produced at the
commissioner hearing, the commissioner or authorised member
of the commissioner's staff may inspect, copy and retain the
document or thing for as long as reasonably necessary for the
purposes of the commissioner hearing.
28
Subclause (2) provides that if the retention of a document or
thing ceases to be reasonably necessary for the purposes of the
commissioner hearing, at the request of any person who appears
to be entitled to the document or thing, the commissioner must
arrange for the document or thing to be delivered to the person.
Division 4--Protection of persons acting under this Act
Clause 90 provides that a person who is or was the commissioner cannot
be compelled to give evidence in a court in relation to a health
care quality investigation or a complaints data investigation
unless the court grants leave to do so.
Clause 91 provides that the commissioner has the same protections and
immunity as a judge of the Supreme Court in the performance
of the judge's functions and duties when the commissioner
performs the commissioner's functions and duties in the course
of a health care quality investigation.
Subclause (2) provides when a person acts under the direction
or authority of the commissioner in the course of a heath care
quality investigation, he or she has the same protections and
immunity as a judge of the Supreme Court in the performance
of the judge's functions and duties.
Subclause (3) provides that an Australian Legal Practitioner
assisting the commissioner with, or representing a person in, a
health care quality investigation has the same protection and
immunity as an Australian Legal Practitioner representing a
party in a proceeding in the Supreme Court.
Subclause (4) provides that a person who gives information or
evidence or produces a document or thing to a health care
quality investigation has the same protection and immunity as a
witness in a proceeding in the Supreme Court.
Clause 92 provides that a person who makes a complaint under clause 5, 7
or 10 of the Bill is not personally liable for any loss, damage or
injury suffered by another person merely because of the making
of the complaint.
Subclause (2) provides that a person who produces a document
or gives any information or evidence in the process of making a
complaint under the Act is not personally liable for any loss,
damage or injury suffered by another person merely because of
29
the production of the document or the giving of the information
or evidence.
PART 6--NOTICES AND ORDERS
Division 1--Identifying notices
Clause 93 provides that commissioner may publish a notice setting out the
name of a healthcare provider and sets out the circumstances in
which this may occur. These circumstances are--
· if the commissioner has completed a health care quality
investigation or a complaints data investigation as to
health care provided by that healthcare provider and the
commissioner reasonably believes that a person has
suffered or is likely to suffer a detriment as a result of
the services provided and it is in the public interest to
publish the notice; and
· the commissioner reasonably believes that the
publication of the notice could avoid a serious risk to
the life, health, safety or welfare of a person or the
health, safety or welfare of the public.
Subclause (2) provides that the commissioner may set out in the
notice any details that are reasonably relevant to advise the
public of the serious risk identified.
Subclause (3) provides that a notice must be published in a
newspaper circulating throughout the State and on the
commissioner's internet site.
Subclause (4) provides that the commissioner may revoke a
notice published under this clause.
Subclause (5) provides that the revocation of a notice under
subclause (4) must be published in a newspaper circulating
throughout the State and on the internet site of the office of the
commissioner.
Subclause (6) provides that if a notice is found to be incorrect,
the commissioner must publish a correction notice in a
newspaper circulating throughout the State and on the internet
site of the office of the commissioner.
30
Clause 94 provides that the commissioner may publish a notice setting out
the name of a healthcare provider who provides a general health
care service if--
· the commissioner has commenced a code of conduct
investigation or a referral investigation and reasonably
believes that the healthcare provider has contravened a
general health care service code of conduct; or
· the commissioner has completed a code of conduct
investigation or a referral investigation and is satisfied
the healthcare provider has contravened a general health
care code of conduct or the healthcare provider has been
convicted or found guilty of a prescribed offence; and
· the commissioner reasonably believes that it is
necessary to publish the notice to avoid a serious risk to
the life, health, safety or welfare of a person or the
health, safety or welfare of the public.
Subclause (4) provides that the commissioner may set out in a
notice any details that are reasonably relevant to advise the
public of the serious risk identified.
Subclause (5) provides that a notice must be published in a
newspaper circulating throughout the State and on the internet
site of the office of the commissioner.
Subclause (6) provides that the commissioner may revoke a
notice published under this clause by publishing a notice to
advise the public that the serious risk no longer exists.
Subclause (7) provides that a notice under subclause (6) must be
published in a newspaper circulating throughout the State and
on the internet site of the office of the commissioner.
Subclause (8) provides that if a notice is found to be incorrect,
the commissioner must publish a correction notice in a
newspaper circulating throughout the State and on the internet
site of the office of the commissioner.
Clause 95 provides that the commissioner may publish a notice setting out
the name of a healthcare provider if the provider failed to
provide a written response under clause 77 in the time required
in a report under clause 75(2)(c). This will enable the
commissioner to publicly name a healthcare provider who has
31
repeatedly and flagrantly failed to report on their progress in
carrying out an action recommended by the commissioner.
Subclause (2) provides that the commissioner may set out in a
notice any details that are reasonably relevant to advise the
public of the failure to report.
Subclause (3) provides that before publishing such a notice the
commissioner must give the healthcare provider a reasonable
opportunity to make submissions on the proposed publication of
the notice.
Subclause (4) provides that the notice must be published on the
internet site of the office of the commissioner.
Division 2--Interim prohibition orders
Clause 96 provides that if the commissioner is conducting a code of
conduct investigation, the commissioner may make an order
prohibiting the healthcare provider from providing all or part of
the service for up to 12 weeks, or imposing conditions that the
commissioner is satisfied are appropriate on the provision of all
or part of the service for up to 12 weeks.
Subclause (2) provides that as soon possible after the order is
made the commissioner must serve a written copy on the
healthcare provider to whom it applies.
Subclause (3) provides that the order takes effect from the time
it is served upon the healthcare provider to whom it applies.
Clause 97 provides that the commissioner must not make an interim
prohibition order unless the commissioner reasonably believes
that the healthcare provider has contravened a code of conduct
for the provision of the general health care service or the
healthcare provider has been convicted or found guilty of a
prescribed offence. The commissioner must also be satisfied
that it is necessary to make the order to avoid a serious risk to
the life, health, safety or welfare of a person or the health, safety
or welfare of the public.
It is envisaged that offences to be prescribed for the purposes of
this clause may include offences under the Crimes Act 1958
and the Drugs, Poisons and Controlled Substances Act 1981,
for example.
32
Clause 98 provides that a healthcare provider who has been given an
interim prohibition order must comply with the order.
A penalty of 240 penalty units or 2 years imprisonment or
both in relation to a natural person and 1200 penalty units in
relation to a body corporate apply for failure to comply.
Clause 99 provides that the commissioner must revoke an interim
prohibition order if the commissioner is satisfied that the order
is no longer required to avoid a serious risk to the life, health,
safety or welfare of a person or the health, safety or welfare of
the public.
Subclause (2) provides that revocation of an interim prohibition
order must be by order of the commissioner in writing.
Subclause (3) provides that as soon as an interim prohibition
order is revoked, the commissioner must serve a written copy of
the revocation order on the healthcare provider to whom it
applies, and publish the revocation order in the Government
Gazette and on an internet site of the commissioner.
Subclause (4) provides that a revocation order takes effect on
the service of the order on the healthcare provider to whom it
applies.
Clause 100 provides that as soon as practicable after an interim prohibition
order is made, the commissioner must publish the name of the
healthcare provider on whom it is imposed, the effect of the
order, the date on which it takes effect and the date on which
the order expires.
Subclause (2) provides that publication must be made in the
Government Gazette and on an internet site of the
commissioner.
Division 3--Prohibition orders
Clause 101 provides that if the commissioner has conducted a code of
conduct investigation about the provision of a general health
care service by a healthcare provider, the commissioner may
make an order--
· prohibiting the healthcare provider from providing all or
part of the service permanently or for the period
specified in the order; or
33
· imposing conditions that the commissioner is satisfied
are appropriate on the provision of all or part of the
service by the healthcare provider, either permanently or
for the period specified in the order.
Subclause (2) provides that as soon as the order is made the
commissioner must serve a written copy on the healthcare
provider to whom it applies.
Subclause (3) provides that the order takes effect from the time
it is served upon the healthcare provider to whom it applies.
Clause 102 provides that the commissioner must not make a prohibition
order unless the commissioner is satisfied that the healthcare
provider has contravened a code of conduct for the provision of
the general health care service or the healthcare provider has
been convicted or found guilty of a prescribed offence.
The commissioner must also be satisfied that it is necessary to
make the order to avoid a serious risk to the life, health, safety
or welfare of a person or the health, safety or welfare of the
public.
It is envisaged that offences to be prescribed for the purposes of
this clause may include offences under the Crimes Act 1958
and the Drugs, Poisons and Controlled Substances Act 1981,
for example.
Clause 103 provides that a healthcare provider who has been given a
prohibition order must comply with the order. A penalty of
240 penalty units or 2 years imprisonment or both in relation to
a natural person and 1200 penalty units in relation to a body
corporate for apply for failure to comply.
Clause 104 subclause (1) provides that the commissioner may at any time
revoke a prohibition order.
Subclause (2) provides that the commissioner may at any time
vary a prohibition order to reduce the restrictions in the order.
Subclause (3) provides that revocation or variation of a
prohibition order must be by order of the commissioner in
writing.
Subclause (4) provides that as soon as possible after a
prohibition order is varied or revoked, the commissioner must
serve a written copy of the variation or revocation order on the
healthcare provider to whom it applies, and publish the
34
variation or revocation in the Government Gazette and on an
internet site of the commissioner.
Subclause (5) provides that a variation or revocation order takes
effect on the service of the order on the healthcare provider to
whom it applies.
Clause 105 provides that as soon as possible after a prohibition order is
made or varied, the commissioner must publish the name of the
healthcare provider on whom it is imposed, the effect of the
order, the date on which it takes effect and the date if any on
which the order expires.
Subclause (2) provides that the publication must be made in
the Government Gazette and on an internet site of the
commissioner.
Clause 106 provides that a healthcare provider on whom the commissioner
has imposed a prohibition order may apply to VCAT for a
review of the commissioner's decision to impose the order.
Subclause (2) provides that an application for review must be
made within 20 business days after the later of--
· the day on which the order is served on the healthcare
provider; or
· if, under the Victorian Civil and Administrative
Tribunal Act 1998 the person requests a statement of
reasons for the decision, the day on which the statement
of reasons is given to the person or the person is
informed under section 46(5) of that Act that a
statement of reasons will not be given.
Division 4--Interstate prohibition
Clause 107 provides that a person must not provide a general health care
service in Victoria if, in another State or a Territory of the
Commonwealth, the person is prohibited from providing a
service in the nature of the general health care service the
person is providing in Victoria. Penalties of 240 penalty units
or 2 years imprisonment or both in relation to a natural person
and 1200 penalty units in relation to a body corporate apply for
failure to comply.
Similar schemes operate in other jurisdictions.
35
PART 7--INQUIRIES
Clause 108 provides that the commissioner may inquire into any broader
health care matter referred to the commissioner by a House of
the Parliament or a Parliamentary Committee or the Minister.
Subclause (2) provides that on completing the inquiry the
commissioner may make recommendations about the broader
health care matters dealt with in the inquiry to the person or
body who referred the matter to the commissioner.
Clause 109 provides that in conducting the inquiry under clause 108 the
commissioner may conduct public hearings.
Subclause (2) provides that in conducting a public hearing the
commissioner may take oral or written submissions from the
public and send for persons, documents or other things, is
bound by the rules of natural justice, is not bound by the rules
of evidence, and must keep a record of all submissions and
evidence given before the commissioner and decisions made by
the commissioner.
These powers reflect the distinction between any inquiry
dealing with the conduct of a specific healthcare provider under
Part 3 or 4 and inquiries dealing with broader health care
issues, where the commissioner will not be making
recommendations or taking action against specific healthcare
providers.
PART 8--THE COMMISSIONER
Division 1--Appointment, functions and general powers
Clause 110 provides for the establishment of the Healthcare Quality
Commissioner.
Clause 111 provides that the Governor in Council, on recommendation of
the Minister, may by instrument appoint a person as the
Healthcare Quality Commissioner.
Clause 112 provides that the commissioner is entitled to the remuneration
and allowances determined by the Governor in Council from
time to time.
36
Clause 113 provides that the commissioner holds office for the term
specified in the instrument of appointment, which may not be
more than 5 years, and is eligible for reappointment.
Subclause (2) provides that the commissioner will be appointed
on a full-time or part-time basis on the terms and conditions of
the instrument of appointment.
Subclause (3) provides that if the commissioner was an officer
within the meaning of the State Superannuation Act 1988
immediately before being appointed, the commissioner will
continue to be such an officer during his or her term as
commissioner.
Subclause (4) provides that the Public Administration Act
2004 does not apply to the commissioner in respect of the office
of the commissioner.
Clause 114 provides that the Governor in Council may appoint a person to
act as the commissioner in the following circumstances--
· during a vacancy in the office of the commissioner; or
· during any period when the commissioner is absent; or
· during any period when the commissioner is unable to
perform the duties of office for any reason.
Subclause (2) provides that the Minister may appoint a person
to act as the commissioner for not more than one month when
the commissioner is absent.
Subclause (3) provides that a person appointed under
subclause (1) is entitled to the remuneration and allowances
determined by the Governor in Council from time to time.
Subclause (4) provides that a person appointed under
subclause (2) is entitled to the remuneration and allowances
determined by the Minister.
Subclause (5) provides that a person acting as the commissioner
has all the powers and may perform the functions of the
commissioner.
Clause 115 provides that the commissioner will cease to hold office in the
following circumstances--
· the commissioner resigns by writing delivered to the
Minister;
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· the commissioner becomes insolvent under
administration;
· the commissioner is convicted of an indictable offence
or an offence that, if committed in Victoria, would be an
indictable offence;
· the commissioner nominates for election for the
Parliament of Victoria or of the Commonwealth or
another State or Territory of the Commonwealth; or
· the commissioner is removed from office under
clause 116.
Clause 116 provides that the Governor in Council on recommendation of
the Minister may remove the commissioner from office in the
following circumstances--
· any misconduct of the commissioner in carrying out the
duties of office;
· a conflict of interest of the commissioner when carrying
out the duties of office;
· any neglect of the commissioner in carrying out the
duties of office;
· an inability of the commissioner to perform the duties of
office;
· the commissioner engaging in paid employment outside
the duties of the office without the consent of the
Minister; or
· any other ground on which the Minister is satisfied that
the commissioner is unfit to hold the office.
Clause 117 provides that a decision of the commissioner is not invalid
merely because of a defect or irregularity in connection with the
appointment of the commissioner.
Clause 118 provides that the commissioner may, with the approval of the
Minister, appoint one or more persons employed under Part 3 of
the Public Administration Act 2004 as Assistant Healthcare
Quality Commissioners.
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Clause 119 provides that the commissioner has the following functions--
· to assist in the formulation of complaints;
· to receive complaints;
· to determine how complaints should be dealt with in
accordance with the Bill;
· to deal with complaints in accordance with the Bill;
· to conduct inquiries in accordance with the Bill;
· to publish complaint handling standards;
· to provide information and education to health
complaints officers appointed under clause 144;
· to provide information and education to the public
regarding the health care principles, minimum
standards, the complaints process and the
responsibilities of healthcare providers;
· to provide information to the public about the measures
the commissioner may take to protect the public from
any risks posed by health care;
· to provide advice to the Minister on any prescribed code
of conduct in respect of general health care services;
· to conduct and support research in respect of complaint
handling and matters relevant to the improvement of the
quality of health care systems;
· to report any findings to the Secretary relevant to the
delivery of health care identified as a result of the
analysis of, investigation of or dealing with complaints
or the conduct of an inquiry under the Act;
· any other function conferred on the commissioner under
the Bill or any other Act.
Subclause (2) provides that the commissioner has all the powers
that are necessary or convenient to perform his or her functions.
Clause 120 provides that the commissioner may by instrument delegate to
an assistant commissioner any function or power of the
commissioner under the Bill other than the power of delegation.
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Clause 121 provides that there may be employed under Part 3 of the Public
Administration Act 2004 any employees that are necessary to
assist the commissioner.
Subclause (2) provides the commissioner may enter into
agreements or arrangements for the use of the services of an
expert to assist the commissioner in the performance of his or
her functions and powers.
Clause 122 provides that the commissioner will not be personally liable for
anything done or omitted to be done in good faith in the
exercise of, or in the reasonable belief that the act or omission
was in the exercise of, a power or performance of a function
under the Bill.
Subclause (2) any liability arising out any act or omission that
would, but for subclause (1), would attach to the commissioner
will attach to the State.
Subclause (3) clarifies that nothing in this clause detracts from
the protection for the commissioner under section 90 or 91.
Division 2--Performance of commissioner
Clause 123 provides that the commissioner when carrying out a function or
power under this Act must--
· act in a fair, impartial and independent manner;
· act in the public interest;
· encourage complainants and healthcare providers to
participate in the complaint process;
· seek to resolve complaints promptly and improve the
quality of health care;
· as far as practicable, protect the public from any serious
risk that health care poses to the health, safety or
welfare of the public;
· act in a manner that is transparent, accountable and
consistent;
· act in an efficient, effective and flexible manner that
avoids unnecessary formality;
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· take as far as practicable the least intrusive and onerous
measures that are appropriate in the circumstances; and
· act in a consultative and collaborative manner to the
extent that is consistent with carrying out of a function
or power.
Clause 124 provides that the commissioner must prepare a strategic plan
establishing priorities and targets to be met to improve the
performance of the commissioner within one year of the Act
coming into operation.
Subclause (2) provides that the commissioner must have regard
to the guiding principles in preparing the strategic plan.
Subclause (4) provides that the commissioner must publish the
strategic plan on the office of the commissioner's internet site.
Clause 125 provides that within 2 years of this clause coming into operation
the commissioner must prepare a statement in writing that--
· sets out the measures to be taken to enhance the
transparency and accountability of the commissioner;
· describes the expectations of complainants, the public
and healthcare providers in respect of the commissioner;
and
· establishes the measures to ensure that the guiding
principles are given effect.
Subclause (3) provides that the commissioner must consult with
any person that the commissioner is satisfied has a relevant
interest before preparing the statement.
Subclause (4) provides that the commissioner must have regard
to the guiding principles in developing the statement.
Clause 126 provides that the commissioner must give the statement
prepared under clause 125, or amended under clause 128, to the
Minister for approval.
The clause provides that the Minister may approve the
statement prepared by the commissioner.
Clause 127 provides that the commissioner must publish the practice
protocol that the Minister has approved on the office of the
commissioner's internet site.
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Clause 128 provides that the practice protocol must be reviewed at least
once every 3 years by the commissioner in consultation with
any person that the commissioner is satisfied has a relevant
interest. If the practice protocol is amended, the amended
practice protocol must be submitted to the Minister for
approval.
Division 3--Information gathering, reports and standards
Clause 129 provides that the commissioner may make a written request
to a healthcare provider to provide specified information.
The information that may be the subject of such a request
includes non-identifying information, data or statistics in
respect of complaints received or dealt with by the healthcare
provider.
Subclause (3) provides that a request by the commissioner
under subclause (1) must specify the information that the
healthcare provider could reasonably be expected to give the
commissioner and a reasonable period of time within which to
give the information to the commissioner.
Subclause (4) provides that the commissioner may extend the
time specified in a request made under subclause (1).
Subclause (5) provides that a healthcare provider must comply
with a request under subclause (1). There is a penalties of
10 penalty units in relation to a natural person and 50 penalty
units in relation to a body corporate for failure to comply with
the request without a reasonable excuse.
Clause 130 provides that the commissioner may from time to time make
available to the public any report of findings or results of the
analysis of information provided under clause 129.
Clause 131 provides that the interim standards for complaint handling by a
healthcare provider set out in Schedule 1 apply to healthcare
providers until a standard takes effect under clause 133.
The commissioner must prepare standards under section 132
within 2 years of the interim standards coming into effect.
Clause 132 provides that the commissioner may prepare standards for
healthcare providers in handling complaints, and specifies
the matters which may be included in the standards.
The commissioner may also prepare an amendment or
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revocation of a standard that has been made by the Governor in
Council.
Clause 133 provides that the commissioner must give to the Minister a
standard prepared, or an amendment or revocation of a standard
prepared, under clause 132.
Subclause (2) provides that, on recommendation by the
Minister, the Governor in Council by order published in the
Government Gazette may make a standard or amend or revoke a
standard.
Clause 134 provides that a complaint handling standard made under
clause 133 takes effect--
· on the day 20 business days after the day the order
making the standard is made; or
· such later day specified in the order making the
standard.
Clause 135 provides that the commissioner must review complaint handling
standards at least once every 3 years in consultation with any
relevant healthcare provider and any other person the
commissioner is satisfied has a relevant interest.
Subclause (2) provides that following the review, the
commissioner may recommend to the Minister the amendment
or revocation of a complaint handling standard.
Clause 136 provides for the commissioner to cause a report to be laid before
each House of Parliament in respect of each financial year on
the performance of the commissioner's functions under the Act,
information about any notice or order issued by the
commissioner under Part 6, and any information requested by
the Minister or determined by the commissioner which must be
included in the report.
Examples of information that the commissioner may determine
be included in an annual report are information regarding
prosecutions of offences under the Act and aggregate data
collected by the commissioner from healthcare providers under
clause 129.
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PART 9--HEALTHCARE QUALITY COUNCIL
Clause 137 provides for the establishment of the Healthcare Quality
Council.
Clause 138 provides for the membership of the council, which must
consist of not less than 5 members and not more than 7
members, including a chairperson, appointed by the Minister.
The Minister must ensure members have appropriate knowledge
and experience to be members of the council.
Subclause (4) provides that the Public Administration Act
2004 (other than Part 3) applies to a member of the council in
respect of the office of the member.
Clause 139 provides that a member of the council holds office for the term
specified in the instrument of appointment, which may not be
more than 3 years.
Subclause (2) provides that a member of the council is eligible
for reappointment, but must not serve more than 9 consecutive
years as a member.
Subclause (3) provides that a member of the council, other than
a member who is an employee of the public service, is entitled
to the remuneration and allowances fixed by the Minister.
Clause 140 provides that a quorum of the council is a majority of its
members, and that a resolution may be made at a meeting at
which there is a quorum present unless the rules of the council
provide otherwise.
Subclause (3) provides that the council may regulate is own
proceedings, subject to the Act.
Clause 141 provides that a member of the council may resign the office by
writing signed by the member and addressed to the Minister.
Subclause (2) specifies the circumstances on which the Minister
may remove a member of the council if the Minister is
satisfied--
· that there has been misconduct of the member in
carrying out the duties of office;
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· that a conflict of interest of the member existed when
carrying out the duties of office;
· that there has been neglect of the member in carrying
out the duties of office;
· the member has failed to attend 3 consecutive meetings
of the council without leave from the council;
· that the member is unable to perform the duties of
office;
· the member has become an insolvent under
administration;
· that the member has been convicted of an indictable
offence or an offence that, if committed in Victoria,
would be an indictable offence.
Clause 142 provides that an act or decision of the council is not invalid only
because of a vacancy in its membership or a defect or
irregularity in the appointment of its members.
Clause 143 provides that the council has the following functions--
· to advise the Minister in relation to a statement
submitted by the commissioner for approval by the
Minister as a practice protocol;
· monitor the performance of the commissioner having
regard to the practice protocol;
· to report to the Minister annually or as requested by the
Minister on the performance of the commissioner.
PART 10--GENERAL
Division 1--Health complaints officers
Clause 144 provides that a healthcare provider who employs or engages
more than 100 people must employ or engage a person to
co-ordinate and manage the healthcare provider's dealings with
any complaints made about the provider. There are penalties of
10 penalty units in relation to a natural person and 50 penalty
units in relation to a body corporate for failure to comply
without reasonable excuse.
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Division 2--Disclosure of information
Clause 145 provides that for the purpose of this Bill, the Health Practitioner
Regulation National Law or a relevant Victorian Law, the
commissioner may give information obtained in the course of
administering the Bill that is or may be the subject of or
relevant to a complaint, investigation or inquiry under the
National Law or relevant Victorian law to--
· the Australian Health Practitioner Regulation Agency or
any relevant National Board in the case of a Health
Practitioner Regulation National Law; or
· the entity responsible for dealing with the matter under
the relevant Victorian law.
Subclause (2) provides that the commissioner may provide a
copy of an interim prohibition order or prohibition order to the
following--
· the Australian Health Practitioner Regulation Agency or
any relevant National Board, within the meaning of the
Health Practitioner Regulation National Law; and
· any person or body dealing with health care complaints
under the jurisdiction of another State or Territory of the
Commonwealth, if the person or body has the power to
make orders in the nature of the order.
Clause 146 provides that a person must not disclose any information gained
by that person in the course of a healthcare quality investigation
or a complaints data investigation except as authorised under
this clause. There is a penalty of 60 penalty units in relation to
a natural person and 300 penalty units in relation to a body
corporate for failure to comply.
Subclause (2) provides that the commissioner, an assistant
commissioner, a delegate of the commissioner or a member of
staff of the commissioner is authorised and may disclose
information to which subclause (1) applies if the person
reasonably believes that the disclosure is necessary for or in
connection with the administration of this Bill or in the
following circumstances--
· the disclosure is for the purposes of any legal
proceedings arising out of this Act; or
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· the disclosure is with the written authority of the
Secretary, if the Secretary reasonably believes it is in
the public interest to do so; or
· the disclosure is with the written authority of the person
to whom the information relates; or
· the disclosure is to the Australian Health Practitioner
Regulation Agency or a National Board of a health
profession established under the Health Practitioner
Regulation National Law and is for the purpose of
section 145.
Clause 147 subclause (1) provides that the commissioner, an assistant
commissioner, a delegate of the commissioner or a member of
staff of the commissioner must not disclose any information
gained by that person in the course of a complaint resolution
process (other than a conciliation process) under Division 3
of Part 3 except as authorised under this clause. A penalty of
60 penalty units applies to a failure to comply.
Subclause (2) provides that the commissioner, an assistant
commissioner, or a delegate of the commissioner is authorised
and may disclose information to which subclause (1) applies
if--
· the person reasonably believes that the disclosure is
necessary for or in connection with the administration of
the Bill; or
· the disclosure is with the written authority of the
Secretary, if the Secretary reasonably believes it is in
the public interest to do so; or
· the disclosure is with the written authority of the person
to whom the information relates; or
· the disclosure is to the Australian Health Practitioner
Regulation Agency or a National Board of a health
profession established under the Health Practitioner
Regulation National Law and is for the purpose of
clause 145.
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Clause 148 subclause (1) provides that the commissioner, an assistant
commissioner, a delegate of the commissioner, or a member of
staff of the commissioner must not disclose any information
gained in a conciliation process by the person outside the
process. A penalty of 60 penalty units applies to a failure to
comply.
Subclause (2) provides that a person listed in subclause (1) may
disclose information to which subclause (1) applies if--
· the disclosure is with the written authority of the person
to whom the information relates; or
· the disclosure is with the written authority of the
Secretary, if the Secretary reasonably believes it is in
the public interest to do so.
Clause 149 provides that in respect of any process under the Bill, the
commissioner may decide that the name of a complainant or
any person who received or sought health care or was the
subject of conduct dealt with in a code of conduct investigation
or referral investigation, or any identifying information about
such a person, must not be disclosed.
The clause provides that the commissioner may only make a
decision under subclause (1) if the commissioner--
· is satisfied that there are special circumstances; and
· it is in the complainant's or person's interests not to
disclose the information.
Subclause (3) provides that in deciding whether or not to
disclose information under this clause, the commissioner must
consider whether the non-disclosure would unreasonably limit
another person's right to natural justice.
Subclause (4) provides that the commissioner may revoke a
decision under subclause (1) if the commissioner is no longer
satisfied that there are special circumstances and that it is in the
complainant's or person's interests not to disclose the
information.
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Division 3--Protections and representation
Clause 150 provides that it a reasonable excuse for a natural person to
refuse or fail to give information or do any other thing that the
person is required to do by or under Part 3, Part 4 or Division 2
or 3 of Part 5, or by or under a warrant or notice issued under
Division 2 or 3 of Part 5 if the giving of the information or the
doing of that other thing would tend to incriminate the person.
Clause 151 provides that it is a reasonable excuse for a person to refuse or
fail to give information or do any other thing that the person is
required to do by or under Part 3, Part 4 or Division 2 or 3 of
Part 5 or by or under a warrant or notice issued under Division 2
or 3 of Part 5, if the giving of the information or the doing of
that other thing would be a breach of legal professional
privilege or client legal privilege.
Clause 152 provides that a person may be accompanied or represented by
another person in any process under this Bill.
Subclause (2) provides that a person may be represented by an
Australian legal practitioner in any process under this Bill if the
commissioner authorises it.
Subclause (3) provides that a person may be represented by an
Australian legal practitioner when the person is giving evidence
or producing documents to the commissioner under a
commissioner hearing notice under Part 5. In these
circumstances authorisation by the commissioner is not
required.
Division 4--Offences
Clause 153 provides that a person must not, by threat or intimidation,
persuade or attempt to persuade another person not to make a
complaint under this Act or not to continue with any process
under this Act. There is a penalty of 60 penalty units in relation
to a natural person and 300 penalty units in relation to a body
corporate for failure to comply.
Subclause (2) provides that a person must not refuse to employ
or dismiss another person or subject another person to any
detriment because the other person intends to make, makes or
has made a complaint under this Act or intends to take part in,
or takes part in, or has taken part in any process under this Act.
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There is a penalty of 60 penalty units in relation to a natural
person and 300 penalty units in relation to a body corporate for
failure to comply.
Clause 154 provides that a person must not for the purpose of taking part in
any process under this Act or while taking part in any process
under this Act make a statement that is false or misleading in
any material particular. A penalty of 60 penalty units in relation
to a natural person and 300 penalty units in relation to a body
corporate applies for failure to comply.
Division 5--General
Clause 155 provides for the method of service for orders, notices or other
documents required to be served under the Bill.
Clause 156 provides that the Governor in Council may make regulations for
the operation of the Bill. The clause provides for regulations to
be made prescribing codes of conduct, prescribing offences for
the purposes of Part 6, prescribing services to be health care,
and for any matter or thing necessary to give effect to the Bill.
Clause 157 provides a requirement that in the fourth year of the operation of
the Act the Minister must conduct a review of the first three
years of its operation.
Subclause (3) provides that on completing the review the
Minister must table the report of the review before each House
of the Parliament.
PART 11--REPEALS, TRANSITIONALS AND
CONSEQUENTIAL AMENDMENTS
Clause 158 repeals the Health Services (Conciliation and Review) Act
1987.
Clause 159 provides that, on the coming into operation of an item in
Schedule 2, the Act specified in the heading to that item is
amended as set out in that item.
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Clause 160 makes transitional provisions for the repeal of the Health
Services (Conciliation and Review) Act 1987.
Subclause (2) provides that the Health Services (Conciliation
and Review) Act 1987 continues to apply to a complaint made
under section 16 of that Act immediately prior to the
commencement of clause 158, and that a reference to the Health
Services Commissioner should be read as a reference to the
commissioner.
Subclause (3) provides that the Health Services (Conciliation
and Review) Act 1987 continues to apply in respect of an act
or omission that occurred prior to the commencement of
clause 158 that is capable of being the subject of a complaint
under that Act, and that a reference to the Health Services
Commissioner should be read as a reference to the
commissioner.
Subclause (4) provides that a complaint referred to the Health
Services Commissioner under section 46 of the Health Records
Act 2001 in existence immediately prior to the commencement
of item 8 of Schedule 2 may be dealt with by the commissioner
under that Act as in force on or after that commencement.
Subclause (5) provides that any action or duty of the Health
Services Commissioner under the Health Records Act 2001
prior to the commencement of item 8 of Schedule 2 that was
not completed prior to that commencement may be dealt with
by the commissioner under that Act as in force on or after that
commencement.
Clause 161 repeals section 159 and Schedule 2 of the Bill on 1 July 2016.
SCHEDULE 1
Schedule 1 sets out interim complaint handling standards for healthcare
providers. The intention of the Bill is that these interim
standards are replaced within 2 years of them coming into
effect.
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SCHEDULE 2
Schedule 2 makes consequential and other amendments as required to other
Acts.
This Schedule replaces some terms and expressions from the
Health Services (Conciliation and Review) Act 1987 with
reference to the Healthcare Quality Commissioner Act 2014.
References to the Health Services (Conciliation and Review)
Act 1987 will be replaced with references to the Healthcare
Quality Commissioner Act 2014.
"Health Services Commissioner" will be replaced by
"Healthcare Quality Commissioner". The effect is to enable the
new office holder to undertake the statutory functions of the
Health Services Commissioner.
"Health Services Review Council" will be replaced by
"Healthcare Quality Council" The effect is to enable the new
body to perform the statutory role previously performed by the
Health Services Review Council.
The definition of "health service provider" is replaced by the
definition of "healthcare provider" from this Act.
These amendments are made as required to the following
Acts--
· Cancer Act 1958
· Commission for Children and Young People Act
2012
· Corrections Act 1986
· Crimes Act 1958
· Disability Act 2006
· Freedom of Information Act 1982
· Health Practitioners (Special Events Exemption) Act
1999
· Health Records Act 2001
· Health Services Act 1988
· Information Privacy Act 2000
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· Mental Health Act 2014
· Ombudsman Act 1973
· Protected Disclosure Act 2012
· Public Administration Act 2004
· Public Health and Wellbeing Act 2008
· Radiation Act 2005
· Serious Sex Offenders (Detention and Supervision)
Act 2009
· Victims of Crime Assistance Act 1996
· Victorian Civil and Administrative Tribunal Act
1998.
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