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HOSPITALS AND HEALTH SERVICES AMENDMENT BILL 1998

                               Western Australia



                          LEGISLATIVE ASSEMBLY




               Hospitals and Health Services
                  Amendment Bill 1998
                                   A Bill for


    An Act to amend the Hospitals and Health Services Act 1927 and to
    make an amendment to, and a validation relating to, the Queen
    Elizabeth II Medical Centre Act 1966.



    The Parliament of Western Australia enacts as follows:


    1.      Short title
5           This Act may be cited as the Hospitals and Health Services
            Amendment Act 1998.




                                                                    page 1


                                    48--1
     Hospitals and Health Services Amendment Bill 1998


     s. 2




     2.         Commencement
                The provisions of this Act come into operation on such day as
                is, or days as are respectively, fixed by proclamation.

     3.         The Act amended
 5              The amendments in this Act are to the Hospitals and Health
                Services Act 1927*.
                [* Reprinted as at 22 April 1993.
                   For subsequent amendments see 1997 Index to Legislation of
                   Western Australia, Table 1, p. 108 and Act No. 31 of 1997.]

10   4.         Section 2 amended
          (1)   Section 2(1) is amended by deleting the definition of "board"
                and inserting instead --
                "
                      "board" means a hospital board constituted under this
15                        Act;
                                                                                ".
          (2)   Section 2(1) is amended by inserting after the definition of
                "Commissioner" the following definition:
                "
20                    "constituted under this Act", in relation to a board,
                          includes those cases where the Minister is, under
                          section 7(2), deemed to be constituted as a board;
                                                                                ".




     page 2
                                 Hospitals and Health Services Amendment Bill 1998


                                                                                 s. 5



          (3)    Section 2(1) is amended, in the definition of "public hospital",
                 by deleting paragraph (a) and inserting instead --
                      "
                           (a)    conducted or managed by a board constituted
 5                                under this Act;
                                                                                     ".

     5.          Section 6 inserted
                 After section 5A the following section is inserted --
     "
10          6.            Role of Commissioner
                          It is a function of the Commissioner, in addition to his
                          functions under particular provisions of this Act --
                             (a) to advise the Minister on all aspects of policy
                                    relating to hospitals and health services; and
15                          (b) to assist the Minister --
                                      (i) in the planning, provision, coordination
                                            and review of the accommodation,
                                            services and facilities referred to in
                                            section 5A; and
20                                   (ii) in the performance and exercise of the
                                            other functions, powers and duties
                                            vested in the Minister by this Act.
                                                                                     ".

     6.          Section 7 amended
25               Section 7(2) is amended by inserting after "deemed to be" --
                 "   constituted as     ".




                                                                               page 3
     Hospitals and Health Services Amendment Bill 1998


     s. 7



     7.         Section 7C amended
                Section 7C(4)(a) is amended by deleting "the Schedule", in both
                places where it occurs, and inserting instead --
                "     Schedule 1   ".

 5   8.         Section 15 amended
          (1)   Section 15(1) is amended by deleting "under section 7 of this
                Act as the board" and inserting instead --
                "     in his capacity under section 7   ".
          (2)   Section 15(2) is amended by inserting after "constituted" --
10              "     under this section   ".
          (3)   Section 15(7) is amended by deleting "the Schedule" and
                inserting instead --
                "     Schedule 1   ".

     9.         Section 18A replaced by sections 18A, 18B, 18C and 18D
15              Section 18A is repealed and the following sections are inserted
                instead --
     "
            18A.        Certain boards to establish and operate under
                        corporate planning documents
20              (1)     The Minister may, by order published in the Gazette,
                        determine that a board specified in the order, being a
                        board constituted under section 15, is one to which
                        Schedule 2 applies.




     page 4
                   Hospitals and Health Services Amendment Bill 1998


                                                                        s. 9



       (2)   A determination under subsection (1) that Schedule 2
             applies to a board --
               (a) shall specify a financial year, or part of a
                     financial year, in respect of which the
 5                   application of that Schedule commences; and
               (b) if a part of a financial year is so specified, may
                     make provision for time limits to apply other
                     than those required by that Schedule.
       (3)   Section 43(4) and (7) to (9) of the Interpretation
10           Act 1984 apply to an order under subsection (1) as if it
             were a regulation.
       (4)   If a determination in relation to a board is revoked the
             order may include provisions to deal with transitional
             matters arising out of the revocation.
15     (5)   A board to which Schedule 2 applies shall in
             performing its functions comply with its operational
             plan and its statement of corporate intent as existing
             from time to time.

     18B.    Minister may obtain information
20     (1)   This section applies to a board that is constituted under
             section 15, and does not affect the powers of the
             Minister acting in his capacity under section 7.
       (2)   The Minister is entitled --
              (a) to have information in the possession of a
25                 board; and
              (b) where the information is in or on a document,
                   to have, and make and retain copies of, that
                   document.



                                                                      page 5
     Hospitals and Health Services Amendment Bill 1998


     s. 9



              (3)   For the purposes of subsection (2) the Minister may --
                     (a) request a board to furnish information to the
                            Minister;
                     (b) request a board to give the Minister access to
 5                          information;
                     (c) for the purposes of paragraph (b) make use of
                            staff employed or engaged by a board under
                            section 19 to obtain the information and furnish
                            it to the Minister.
10            (4)   A board shall comply with a request under
                    subsection (3) and make its facilities and staff available
                    to the Minister for the purposes of paragraph (c) of that
                    subsection.
              (5)   The Minister is not entitled to have information under
15                  this section in a form that --
                      (a) discloses the identity of a person who receives
                            any hospital service or health service; or
                      (b) might enable the identity of any such person to
                            be ascertained,
20                  unless that person has consented to the Minister having
                    that information.
              (6)   In this section --
                    "document" includes any tape, disc or other device or
                         medium on which information is recorded or
25                       stored mechanically, photographically,
                         electronically or otherwise;
                    "information" means information specified, or of a
                         description specified, by the Minister that relates
                         to the functions of a board.



     page 6
                    Hospitals and Health Services Amendment Bill 1998


                                                                       s. 9



     18C.    Minister to be kept informed
       (1)   A board that is constituted under section 15 shall --
              (a)    keep the Minister reasonably informed of the
                     actual and prospective --
 5                      (i) operations;
                       (ii) financial performance; and
                      (iii) financial position,
                     of the board, including its assets and liabilities;
                     and
10            (b)    give the Minister reports and information that
                     he requires for the making of informed
                     assessments of matters mentioned in
                     paragraph (a).
       (2)   A board to which Schedule 2 applies shall, if matters
15           arise that in the board's opinion may prevent, or
             significantly affect, the board --
               (a) achieving the things outlined in its statement of
                     corporate intent; or
               (b) meeting objectives and targets under its
20                   operational plan,
             promptly inform the Minister of the matters and its
             opinion in relation to them.

     18D.    Consultation
             A board that is constituted under section 15 and the
25           Minister, at the request of either, are to consult
             together, either personally or through appropriate
             representatives, in relation to any aspect of the
             operation of the board.
                                                                           ".

                                                                     page 7
     Hospitals and Health Services Amendment Bill 1998


     s. 10



     10.       Section 18E inserted
               Before section 19 the following section is inserted --
     "
             18E.    Duties of certain members
 5             (1)   Where a board has the management and control of
                     more than one hospital the Minister may, by order
                     published in the Gazette, determine that Schedule 3
                     applies to the members of the board.
               (2)   Section 43(4) and (7) to (9) of the Interpretation
10                   Act 1984 apply to an order under subsection (1) as if it
                     were a regulation.
                                                                                 ".

     11.       Section 19A inserted
               After section 19 the following section is inserted --
15   "

             19A.    Limitation on appointment etc. of chief executives
                     where board controls more than one hospital
               (1)   Where a board has the management and control of
                     more than one hospital the Minister may, by order
20                   published in the Gazette, determine that this section
                     applies to the board.
               (2)   Where a determination under subsection (1) is in force
                     in respect of a board, the exercise of the powers of the
                     board under section 19(1) are subject to the restrictions
25                   imposed by subsections (3) and (5).




     page 8
                 Hospitals and Health Services Amendment Bill 1998


                                                                    s. 11



     (3)   The board shall not without the approval of the
           Commissioner, and otherwise than in accordance with
           the terms and conditions of an approval --
             (a) employ or engage a person to perform the
 5                 functions of --
                      (i) chief executive officer or chief
                           employee of the board (whatever the
                           title of the position); or
                     (ii) chief executive of a hospital under its
10                         control and management (whatever the
                           title of the position),
                   or fix the terms and conditions of the person's
                   service or engagement; or
             (b) remove from office a person who is performing
15                 functions referred to in paragraph (a) or vary
                   the terms and conditions of the person's service
                   or engagement.
     (4)   In subsection (3)(b) --
           "person" includes a person in office when a
20              determination under subsection (1) comes into
                force.
     (5)   The Commissioner may give directions in writing to
           the board as to the processes to be followed in the
           recruitment and selection of persons referred to in
25         subsection (3), and the board shall give effect to any
           such direction.
     (6)   Section 43(4) and (7) to (9) of the Interpretation
           Act 1984 apply to an order under subsection (1) as if it
           were a regulation.
30                                                                     ".


                                                                page 9
     Hospitals and Health Services Amendment Bill 1998


     s. 12



     12.         Schedule amended
                 The Schedule is amended as follows:
                  (a)    by deleting the heading "SCHEDULE" and inserting
                         instead --
 5   "
                                       Schedule 1
                                                                                   ";
                         and
                  (b)    in clause 2 --
10                          (i) by inserting before the first word the subclause
                                 designation "(1)"; and
                           (ii) by inserting the following subclause --
             "
                 (2)    Without limiting subclause (1)(d), a member is guilty
15                      of misbehaviour if --
                          (a) he has failed to carry out his duties as a
                               member; or
                          (b) his acts or omissions have contributed to a
                               failure by the board of which he is a member to
20                             carry out its duties.
                                                                                   ".




     page 10
                              Hospitals and Health Services Amendment Bill 1998


                                                                                     s. 13



     13.        Schedule 2 added
                After Schedule 1 the following Schedule is added --
     "
                                       Schedule 2
 5                                                                                [s. 18A]
                  Corporate planning documents for hospital boards

                                    Division 1 -- General

           1.         Definitions
                      In this Schedule --
10                    "board" means a hospital board to which this Schedule
                          applies because of a determination under section 18A;
                      "financial year" includes a part of a financial year specified
                           in a determination under section 18A(2)(a).

           2.         Procedure where a House is not sitting
15              (1)   If --
                        (a)    at the commencement of a period referred to in
                               clause 6(5), 9(4), 14(5), 16(2) or 17(4) in respect of
                               a document a House of Parliament is not sitting; and
                        (b)    the Minister is of the opinion that that House will
20                             not sit during that period,
                      the Minister is to transmit a copy of the document to the
                      Clerk of that House.
                (2)   A copy of a document transmitted to the Clerk of a House is
                      to be --
25                      (a)    taken to have been laid before that House; and
                        (b)    taken to be a document published by order or under
                               the authority of that House.


                                                                                page 11
     Hospitals and Health Services Amendment Bill 1998


     s. 13



                  (3)   The laying of a copy of a document that is taken to have
                        occurred under subclause (2)(a) is to be recorded in the
                        Minutes, or Votes and Proceedings, of the House on the first
                        sitting day of the House after the receipt of the copy by the
 5                      Clerk.

                                Division 2 -- Operational plans

             3.         Draft operational plan to be submitted to Minister
                  (1)   A board shall in each year prepare, and submit to the
                        Minister for his or her agreement, a draft operational plan.
10                (2)   Each draft operational plan is to be submitted not later than
                        3 months before the start of the next financial year.

             4.         Matters to be included in operational plan
                  (1)   The operational plan for a board shall set out --
                          (a)    the economic and financial objectives; and
15                        (b)    the operational targets,
                        of the board, and how those objectives and targets will be
                        met.
                  (2)   The matters which are to be considered in the preparation of
                        an operational plan include --
20                        (a)    productivity levels;
                          (b)    financial allocations;
                          (c)    inventory and use of resources;
                          (d)    capital expenditure;
                          (e)    customer service arrangements;
25                        (f)    compliance with relevant government and health
                                 industry policy;
                          (g)    work-force requirements and liabilities;
                          (h)    service development initiatives;

     page 12
                        Hospitals and Health Services Amendment Bill 1998


                                                                              s. 13



                  (i)    priority functions;
                  (j)    teaching and research functions;
                  (k)    health service plans approved by the Minister; and
                  (l)    changes in the delivery of hospital and health
 5                       services.
          (3)   An operational plan is to cover a forecast period of 5 years
                or a lesser period agreed with the Minister.

     5.         Operational plan to be agreed if possible
                A board and the Minister shall endeavour to reach
10              agreement on the draft operational plan as soon as possible,
                and in any event not later than one month before the start of
                the next financial year.

     6.         Minister's powers in relation to draft operational plan
          (1)   The Minister may return a draft operational plan to a board
15              and request it to --
                  (a)    consider or further consider any matter and deal
                         with the matter in the draft plan; and
                  (b)    revise the draft plan in the light of its consideration
                         or further consideration.
20        (2)   The board shall comply with the request as soon as is
                practicable.
          (3)   If a draft operational plan for a board has not been agreed to
                by the Minister by one month before the start of the next
                financial year, the Minister may, by written notice, direct the
25              board --
                  (a)    to take specified steps in relation to the draft plan;
                         or
                  (b)    to make specified modifications to the draft plan.



                                                                            page 13
     Hospitals and Health Services Amendment Bill 1998


     s. 13



                  (4)   The board shall comply with a direction under subclause (3)
                        as soon as is practicable.
                  (5)   The Minister shall within 14 days after a direction is given
                        cause a copy of it to be --
 5                        (a)   laid before each House of Parliament; or
                          (b)   dealt with in accordance with clause 2.

             7.         Operational plan pending agreement
                  (1)   If the Minister has not agreed to a draft operational plan for
                        a board before the start of a financial year, the latest draft
10                      plan is to be the operational plan for the board until a draft
                        operational plan is agreed to under clause 8.
                  (2)   In subclause (1) --
                        "latest draft plan" means the draft operational plan
                             submitted, or last submitted, by the board to the
15                           Minister before the start of the financial year with any
                             modifications made by the board, whether before or
                             after that time, at the direction of the Minister.

             8.         Minister's agreement to draft operational plan
                        When a draft operational plan for a board is agreed to by the
20                      Minister, it becomes the operational plan for the board for
                        the relevant financial year or the remainder of the year, as
                        the case may be.

             9.         Modifications of operational plan
                  (1)   An operational plan may be modified by a board with the
25                      agreement of the Minister.
                  (2)   The Minister may, by written notice, direct a board to
                        modify an operational plan.
                  (3)   Before giving the direction the Minister shall consult with
                        the board and take its views into account.

     page 14
                         Hospitals and Health Services Amendment Bill 1998


                                                                                s. 13



           (4)   The Minister shall within 14 days after a direction is given
                 cause a copy of it to be --
                   (a)    laid before each House of Parliament; or
                   (b)    dealt with in accordance with clause 2.

 5   10.         Concurrence of Treasurer
                 The Minister shall not --
                   (a)    agree to a draft operational plan under clause 8; or
                   (b)    agree to or direct any modification of an operational
                          plan under clause 9,
10               except with the concurrence of the Treasurer.

                 Division 3 -- Statements of corporate intent

     11.         Draft statement of corporate intent to be submitted to
                 Minister
           (1)   A board shall in each year prepare, and submit to the
15               Minister for his or her agreement, a draft statement of
                 corporate intent.
           (2)   Each draft statement of corporate intent is to be submitted
                 not later than 3 months before the start of the next financial
                 year.

20   12.         Matters to be included in statement of corporate intent
           (1)   The statement of corporate intent for a board shall be
                 consistent with the board's operational plan under
                 Division 2.
           (2)   The statement of corporate intent for a board shall
25               specify --
                   (a)    an outline of objectives including --
                            (i)   the continuity of the provision of hospital
                                  and health services;

                                                                           page 15
     Hospitals and Health Services Amendment Bill 1998


     s. 13



                               (ii)   the maintenance of assets to ensure the
                                      proper provision of hospital and health
                                      services; and
                              (iii)   the delivery of an optimum service to
 5                                    customers in meeting their requirements for
                                      hospital and health services;
                       (b)   targets for the key performance indicators and other
                             measures by which performances may be judged
                             and related to objectives;
10                     (c)   an outline of the nature and scope of the functions
                             proposed to be performed during the relevant
                             financial year;
                       (d)   an outline of the borrowings to be undertaken or
                             proposed to be undertaken;
15                     (e)   a profile of the targeted activity in all patient
                             services during the relevant financial year;
                       (f)   a statement of any funds held in trust and the
                             purposes for which they are to be applied;
                       (g)   the type of information to be given to the Minister;
20                     (h)   the nature and extent of --
                               (i)    the services to be performed under
                                      section 18(2a); and
                               (ii)   the services and facilities to be applied to
                                      the treatment of private patients;
25                           and
                       (i)   such other matters as may be agreed on by the
                             Minister and the board.
               (3)   The Minister may exempt a board from including any
                     matter, or any aspect of a matter, mentioned in subclause (2)
30                   in the statement of corporate intent.




     page 16
                         Hospitals and Health Services Amendment Bill 1998


                                                                              s. 13



     13.         Statement of corporate intent to be agreed if possible
                 A board and the Minister shall endeavour to reach
                 agreement on the draft statement of corporate intent as soon
                 as possible and, in any event not later than the start of the
 5               next financial year.

     14.         Minister's powers in relation to draft statement of
                 corporate intent
           (1)   The Minister may return a draft statement of corporate
                 intent to the board and request it to --
10                 (a)    consider or further consider any matter and deal
                          with the matter in the draft statement; and
                   (b)    revise the draft statement in the light of its
                          consideration or further consideration.
           (2)   The board shall comply with the request as soon as is
15               practicable.
           (3)   If a draft statement of corporate intent for a board has not
                 been agreed to by the Minister by one month before the start
                 of the financial year, the Minister may, by written notice,
                 direct the board --
20                 (a)    to take specified steps in relation to the draft
                          statement; or
                   (b)    to make specified modifications to the draft
                          statement.
           (4)   The board shall comply with a direction under subclause (3)
25               as soon as is practicable.
           (5)   The Minister shall within 14 days after a direction is given
                 cause a copy of it to be --
                   (a)    laid before each House of Parliament; or
                   (b)    dealt with in accordance with clause 2.



                                                                             page 17
     Hospitals and Health Services Amendment Bill 1998


     s. 13



             15.         Statement of corporate intent pending agreement
                   (1)   If the Minister has not agreed to a draft statement of
                         corporate intent for a board before the start of a financial
                         year, the latest draft statement is to be the statement of
 5                       corporate intent for the board until a draft statement of
                         corporate intent is agreed to under clause 16.
                   (2)   In subclause (1) --
                         "latest draft statement" means the draft statement of
                              corporate intent submitted, or last submitted, by the
10                            board to the Minister before the start of the financial
                              year with any modifications made by the board,
                              whether before or after that time, at the direction of the
                              Minister.

             16.         Minister's agreement to draft statement of corporate
15                       intent
                   (1)   When a draft statement of corporate intent for a board is
                         agreed to by the Minister, it becomes the statement of
                         corporate intent for the relevant financial year or the
                         remainder of the year, as the case may be.
20                 (2)   The Minister shall within 14 days after he or she agrees to a
                         draft statement of corporate intent under subclause (1) cause
                         a copy of it to be --
                            (a) laid before each House of Parliament; or
                           (b)   dealt with in accordance with clause 2.
25                 (3)   The board may request the Minister to delete from the copy
                         of a statement of corporate intent that is to be laid before
                         Parliament a matter that is of a commercially sensitive
                         nature.




     page 18
                         Hospitals and Health Services Amendment Bill 1998


                                                                                s. 13



           (4)   Despite subclause (2), the Minister may --
                   (a)    comply with a request under subclause (3); or
                   (b)   delete from the copy of a statement of corporate
                         intent that is to be laid before Parliament a matter
 5                       that the Minister considers should be deleted.

     17.         Modifications of statement of corporate intent
           (1)   A statement of corporate intent may be modified by a board
                 with the agreement of the Minister.
           (2)   The Minister may, by written notice, direct the board to
10               modify the statement of corporate intent, and the board shall
                 comply with any such direction.
           (3)   Before giving the direction, the Minister shall consult with
                 the board and take its views into account.
           (4)   The Minister shall within 14 days after a direction is given
15               cause a copy of it to be --
                   (a)    laid before each House of Parliament; or
                   (b)    dealt with in accordance with clause 2.

     18.         Concurrence of Treasurer
                 The Minister shall not --
20                 (a)    agree to a draft statement of corporate intent under
                          clause 16;
                   (b)    delete a matter under clause 16(4)(b); or
                   (c)    agree to or direct any modification of a statement of
                          corporate intent under clause 17,
25               except with the concurrence of the Treasurer.
                                                                                   ".




                                                                           page 19
     Hospitals and Health Services Amendment Bill 1998


     s. 14



     14.          Schedule 3 added
                  At the end of the Hospitals and Health Services Act 1927 the
                  following Schedule is added --
     "
 5                          Schedule 3 -- Members' duties
                                                                                 [s. 18E]

                                 Division 1 -- Interpretation

             1.         Interpretation
                  (1)   In this Schedule --
10                      "board", in relation to a member, means the board that
                            includes that member;
                        "member" means a member to which this Schedule applies
                           because of a determination under section 18E(1);
                        "summary conviction penalty" in relation to a crime, has the
15                          same meaning as in section 5 of The Criminal Code.
                  (2)   A person who attempts (within the meaning of section 4 of
                        The Criminal Code) to commit an offence against a
                        provision of this Schedule is guilty of that offence.

                           Division 2 -- Particular duties stated

20           2.         Duty to act honestly
                  (1)   A member must at all times act honestly in the performance
                        of the functions of his or her office, whether within or
                        outside the State.
                  (2)   A person who contravenes subclause (1) --
25                        (a)   with intent to deceive or defraud --
                                  (i)    the board; or


     page 20
                        Hospitals and Health Services Amendment Bill 1998


                                                                              s. 14



                          (ii)     creditors of the board or of any other
                                   person; or
                  (b)    for any other fraudulent purpose,
                is guilty of a crime and is liable to a fine of $20 000 or
 5              imprisonment for 5 years, or both.
                Summary conviction penalty: A fine of $12 000 or
                      imprisonment for 3 years, or both.
          (3)   If subclause (2) does not apply a person who contravenes
                subsection (1) is liable to a fine of $5 000.

10   3.         Duty to exercise reasonable care and diligence
                A member must at all times exercise the degree of care and
                diligence in the performance of the functions of his or her
                office, whether within or outside the State, that a reasonable
                person in that position would reasonably be expected to
15              exercise in the board's circumstances.
                Penalty: $5 000.

     4.         Duty not to make improper use of information
          (1)   A member or former member must not, whether within or
                outside the State, make improper use of information
20              acquired by virtue of his or her position as such to gain,
                directly or indirectly, an advantage for himself or herself or
                for any other person or to cause detriment to the board.
          (2)   A person who contravenes subclause (1) is guilty of a crime
                and is liable to a fine of $20 000 or imprisonment for
25              5 years, or both.
                Summary conviction penalty: A fine of $12 000 or
                         imprisonment for 3 years, or both.




                                                                             page 21
     Hospitals and Health Services Amendment Bill 1998


     s. 14



             5.         Duty not to make improper use of position
                  (1)   A member must not, whether within or outside the State,
                        make improper use of his or her position as such to gain,
                        directly or indirectly, an advantage for himself or herself or
 5                      for any other person or to cause detriment to the board.
                  (2)   A person who contravenes subclause (1) is guilty of a crime
                        and is liable to a fine of $20 000 or imprisonment for
                        5 years, or both.
                        Summary conviction penalty: A fine of $12 000 or
10                            imprisonment for 3 years, or both.

                                 Division 3 -- Compensation

             6.         Payment of compensation may be ordered
                  (1)   Where --
                          (a)   a person is convicted of an offence for a
15                              contravention of clause 2, 3, 4 or 5; and
                          (b)   the court is satisfied that the board has suffered loss
                                or damage as a result of the act or omission that
                                constituted the offence,
                        the court by which the person is convicted may, in addition
20                      to imposing a penalty, order the convicted person to pay
                        compensation to the board of such amount as the court
                        specifies.
                  (2)   Any such order may be enforced as if it were a judgment of
                        the court.

25           7.         Civil proceedings for recovery
                        Where a person contravenes clause 2, 3, 4 or 5, the board
                        may, whether or not the person has been convicted of an
                        offence in respect of that contravention, recover from the



     page 22
                        Hospitals and Health Services Amendment Bill 1998


                                                                                s. 14



                person as a debt due to the board by action in any court of
                competent jurisdiction --
                  (a)    if that person or any other person made a profit as a
                         result of the contravention, an amount equal to that
 5                       profit; and
                  (b)    if the board has suffered loss or damage as a result
                         of the contravention, an amount equal to that loss or
                         damage.

                        Division 4 -- Relief from liability

10   8.         Relief from liability
                For the purposes of clause 6 or 7, if it appears to the court
                that a person --
                  (a)    is, or may be, liable under that clause;
                  (b)    has acted honestly; and
15                (c)    ought fairly to be excused having regard to all the
                         circumstances of the case, including those
                         connected with the person's appointment,
                the court may relieve the person either wholly or partly from
                liability on such terms as the court thinks fit.

20   9.         Application for relief
          (1)   Where a person has reason to believe that any claim will or
                might be made against him or her under clause 6 or 7 the
                person may apply to the Supreme Court for relief.
          (2)   On an application under subclause (1) the Supreme Court
25              has the same power to relieve the person as it would have
                had under clause 8 if it had been a court exercising
                jurisdiction under clause 6 or 7.




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     s. 14



             10.         Case may be withdrawn from jury
                         Where a case to which clause 8 applies is being tried by a
                         judge with a jury, the judge after hearing the evidence may,
                         if the judge is satisfied that the person ought under that
 5                       clause to be relieved either wholly or partly from liability
                         sought to be enforced against the person --
                           (a)   withdraw the case in whole or in part from the jury;
                                 and
                           (b)   direct judgment to be entered for the person on such
10                               terms as to costs or otherwise as the judge thinks
                                 proper.

             11.         Compliance with directions
                   (1)   A person does not contravene clause 2 or 3 by doing or
                         omitting to do anything in compliance with a direction given
15                       by the Minister under the Act.
                   (2)   Subclause (1) does not extend to the manner in which a
                         thing is done or omitted if it is done or omitted in a manner
                         that is contrary to clause 2 or 3 and the direction did not
                         require that it be done in that manner.

20             Division 5 -- Restrictions on indemnities and exemptions

             12.         Indemnification and exemption of members
                   (1)   A board must not exempt a member (whether directly or
                         through an interposed entity) from a liability to the board
                         incurred as a member of the board.
25                 (2)   A board must not indemnify a person (whether by
                         agreement or by making a payment and whether directly or
                         through an interposed entity) against any of the following
                         liabilities incurred as a member of the board --
                           (a)   a liability owed to the board;



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                         Hospitals and Health Services Amendment Bill 1998


                                                                                s. 14



                   (b)    a liability for compensation under an order under
                          clause 6 or for a debt recoverable under clause 7;
                          and
                   (c)    a liability that is owed to someone other than the
 5                        board and did not arise out of conduct in good faith.
           (3)   Subclause (2) does not apply to a liability for legal costs.
           (4)   A board must not indemnify a person (whether by
                 agreement or by making a payment and whether directly or
                 through an interposed entity) against legal costs incurred in
10               defending an action for a liability incurred as a member of
                 the board if the costs are incurred --
                   (a)    in defending or resisting a proceeding in which the
                          person is found to have a liability for which the
                          person could not be indemnified under
15                        subclause (2);
                   (b)    in defending or resisting criminal proceedings in
                          which the person is found guilty; or
                   (c)    in connection with proceedings for relief under
                          clauses 8 or 9 in which the Supreme Court denies
20                        the relief.
           (5)   In determining the outcome of proceedings for the purposes
                 of subclause (4), the result of any appeal in relation to the
                 proceedings is to be taken into account.

     13.         Insurance premiums for certain liabilities of members
25         (1)   A board must not pay, or agree to pay, a premium for a
                 contract insuring a member of the board against a liability
                 (other than one for legal costs) arising out of --
                   (a)    conduct involving a wilful breach of duty in relation
                          to the board; or
30                 (b)    a contravention of clause 4 or 5.



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     Hospitals and Health Services Amendment Bill 1998


     s. 15



                      (2)   Subclause (1) applies to a premium whether it is paid
                            directly or through an interposed entity.

             14.            Certain indemnities, exemptions, payments and
                            agreements not authorized and certain documents void
 5                    (1)   Clauses 12 and 13 do not authorize anything that would
                            otherwise be unlawful.
                      (2)   Anything that purports to indemnify or insure a person
                            against a liability or exempt a person from a liability is void
                            to the extent that it contravenes clause 12 or 13.
10                                                                                            ".

     15.              Amendment to the Queen Elizabeth II Medical Centre
                      Act 1966, and validations
           (1)        After section 16(7) of the principal Act the following subsection
                      is inserted --
15               "
                     (7a)   Subsections (2) to (7) do not apply if the managing
                            body referred to in subsection (1), in addition to having
                            the management and control of any hospital to which
                            that subsection applies, also has the management and
20                          control of another hospital or other hospitals to which
                            subsection (1) does not apply.
                                                                                              ".
           (2)        The formation of the Metropolitan Health Service Board by the
                      Hospitals and Health Services (Re-organization of Hospital
25                    Boards) Notice 1997 published in the Gazette on 16 July 1997
                      at pages 3695-6 is declared to be, and always to have been, as
                      valid as it would have been if section 16(7a) of the principal Act
                      had been in force at the time when that Notice was made.




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                       Hospitals and Health Services Amendment Bill 1998


                                                                       s. 15



     (3)   Any appointment to the medical staff of a teaching hospital on
           the reserve made on or after 16 July 1997 is declared to be, and
           always to have been, as valid as it would have been if
           section 16(7a) of the principal Act had been in force at the time
 5         when the appointment was made.
     (4)   In this section --
           "principal Act" means the Queen Elizabeth II Medical Centre
               Act 1966*;
           "teaching hospital" has the meaning that it has for the purposes
10             of section 16(1) of the principal Act;
           "the reserve " has the meaning given by section 3(1) of the
               principal Act.
           [* Reprinted as at 8 September 1988.
              For subsequent amendments see 1997 Index to Legislation of
15            Western Australia, Table 1, p. 192.]




 


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