Health Care Act 2008 (SA)

South Australia Health Care Act 2008 An Act to provide for the administration of hospitals and other health services; to establish the Health Performance Council and Health Advisory Councils; to establish systems to support the provision of high-quality health outcomes; to provide licensing systems for ambulance services and private hospitals; to assist with the provision of laboratory services and facilities associated with veterinary science; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Objects of Act 5 Principles Part 2—Minister and Chief Executive 6 Minister 7 Chief Executive 8 Delegations Part 3—Health Performance Council 9 Establishment of Health Performance Council 10 Provisions relating to members, procedures and committees and subcommittees 11 Functions of HPC 12 Annual report 13 4-yearly report 14 Use of facilities Part 4—Health Advisory Councils Division 1—Establishment of Councils 15 Establishment of Councils 16 Status 17 Constitution and rules Division 2—Functions and powers 18 Functions 19 Specific provisions in relation to powers Division 3—Related matters 20 Specific provisions in relation to property 21 Accounts and audit 22 Annual report 23 Use of facilities 24 Delegations 25 Access to information 26 Common seal 27 Schedule 2 has effect 28 Administration Part 4A—Service agreements 28A Preliminary 28B Service agreement with Chief Executive 28C General provisions about service agreements Part 5—Hospitals Division 1—Incorporation 29 Incorporation 30 Hospital to serve the community 31 General powers of incorporated hospital 32 Common seal Division 1A—Transfer of functions etc between incorporated hospitals 32A Transfer of functions etc between incorporated hospitals Division 2—Management arrangements 33 Governance and management arrangements 33A Engagement strategies 33B Composition of governing boards for incorporated hospitals 33C Members of governing boards for incorporated hospitals to act in public interest 33D Disclosure of pecuniary or personal interest 33E Chief executive officer for incorporated hospital 33F Provisions relating to members, procedures, committees and subcommittees etc Division 3—Employed staff 34 Employed staff 35 Superannuation and accrued rights etc Division 4—Accounts, audits and reports 36 Accounts and audit 37 Annual report Division 5—Sites, facilities and property 38 Ability to operate at various sites 39 Ability to provide a range of services and facilities Division 6—Delegations 41 Delegations Division 7—By-laws and removal of persons 42 By-laws 43 Removal of persons Division 8—Fees 44 Fees Division 9—Rights of hospitals against insurers 45 Interpretation 46 Report of accidents to which this Division applies 47 Notice by designated entity to insurer 48 First claim of designated entity Division 10—Inspectors 48A Inspectors Part 5A—Health access zones 48B Interpretation 48C Object and application of Part 48D Certain behaviour prohibited in health access zones 48E Police officer may direct person to leave health access zone 48F Offence to publish or distribute recording Part 6—Ambulance services Division 1—South Australian Ambulance Service (SAAS) 49 Continuation of SAAS 50 Management arrangements 51 Functions and powers of SAAS 52 Employed staff 52A SAAS workforce culture and staff wellbeing 53 Accrued rights for employees 54 Delegation 55 Accounts and audit 56 Annual report Division 2—Provision of ambulance services 57 Emergency ambulance services 58 Licence to provide non-emergency ambulance services Division 3—Miscellaneous 59 Fees 60 Holding out etc 61 Power to use force to enter premises 62 Exemptions Part 7—Quality improvement and research 63 Preliminary 64 Declaration of authorised activities and authorised persons 65 Provision of information 66 Protection of information 67 Protection from liability Part 8—Analysis of adverse incidents 68 Preliminary 69 Appointment of teams 70 Restrictions on teams 71 Provision of information 72 Reports 73 Protection of information 74 Immunity provision 75 Victimisation Part 9—Testamentary gifts and trusts 76 Interpretation 77 Application of Part 78 Testamentary gifts and trusts Part 10—Private hospitals 79 Prohibition of operating private hospitals unless licensed 80 Application for licence 81 Grant of licence 82 Conditions of licence 83 Offence for licence holder to contravene Act or licence condition 84 Duration of licences 85 Transfer of licence 86 Surrender, suspension and cancellation of licences 87 Review of decision or order of Minister 88 Inspectors Part 10A—Private day procedure centres 89 Preliminary 89A Standards of construction, facilities and equipment 89B Prohibition on providing prescribed health services unless licensed 89C Private day procedure centre licence 89D Conditions of licence 89E Offence for licence holder to contravene Act or licence condition 89F Duration of licences 89G Transfer of licence 89H Surrender, suspension and cancellation of licences 89I Review of decision or order of Minister 89J Inspectors 89K Vicarious liability Part 11—Miscellaneous 89L Other staffing arrangements 90 Recognised organisations 90A Acquisition of property 91 Duty of Registrar-General 92 Conflict of interest 93 Confidentiality 95 General defence 96 Evidentiary provision 97 Administrative acts 98 Forms of Ministerial approvals 99 Gift funds established by Minister 99A Fees 100 Regulations 102 Review of Act Schedule 1—Health Performance Council 1 Chairperson and Deputy Chairperson 2 Deputies 3 Term of office 4 Allowances 5 Vacancy in office of member 6 Procedures of HPC 7 Committees and subcommittees Schedule 2—Health Advisory Councils 1 Term of office 2 Vacancy in office of member 3 Application of Public Sector (Honesty and Accountability) Act 4 Presiding member 5 Procedures 6 Committees and subcommittees 7 Interpretation Schedule 3—Governing boards for incorporated hospitals 1 Chairperson and Deputy Chairperson 2 Term of office 3 Remuneration 4 Removal from office 5 Vacancy in office of member 5A Requirement to publish 6 Validity of acts 7 Public meetings 8 Procedures 9 Committees and subcommittees 10 Appointment of advisers 11 Functions of advisers 12 Dismissal of governing board 13 Administrators 14 Use of facilities etc Schedule 3A—Dissolution of Health Advisory Councils 1 Preliminary 2 Dissolution of Health Advisory Councils 3 HAC members 4 Property to be transferred 5 General provisions Schedule 4—Transitional provisions Part 20—Transitional provisions 34 Incorporated hospitals 35 Incorporated health centres 36 By-laws 37 Private hospitals 38 Disclosure of confidential information 39 SAAS 40 Licences—ambulances 41 Public and environmental health 42 Other provisions Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Health Care Act 2008. 3—Interpretation (1) In this Act, unless the contrary intention appears— ambulance means a vehicle that is equipped to provide medical treatment or to monitor a person's health and that is staffed by persons who are trained to provide medical attention during transportation; ambulance service means the service of transporting by the use of an ambulance a person to a hospital or other place to receive medical treatment or from a hospital or other place at which the person has received medical treatment; Chief Executive means the Chief Executive of the Department and includes a person for the time being acting in that position; Department means the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of this Act; domestic partner—a person is a domestic partner of another if the person is a domestic partner of the other within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; emergency ambulance service means an ambulance service that— (a) responds to requests for medical assistance (whether made by 000 emergency telephone calls or other means) for persons who may have injuries or illnesses requiring immediate medical attention in order to maintain life or to alleviate suffering; and (b) is set up to provide medical attention to save or maintain a person's life or alleviate suffering while transporting the person to a hospital; employing authority means— (a) subject to paragraph (b), the Chief Executive; or (b) if the Governor thinks fit, a person, or a person holding or acting in an office or position, designated by proclamation made for the purposes of this definition; governing board—see section 33; HAC means a Health Advisory Council established under Part 4; health service means— (a) a service associated with: (i) the promotion of health and well‑being; or (ii) the prevention of disease, illness or injury; or (iii) intervention to address or manage disease, illness or injury; or (iv) the management or treatment of disease, illness or injury; or (v) rehabilitation or on‑going care for persons who have suffered a disease, illness or injury; or (b) a paramedical or ambulance service; or (c) a residential aged care service; or (ca) a research, pathology or diagnostic service associated with veterinary science; or (d) a service brought within the ambit of this definition by the regulations, but does not include a service excluded from the ambit of this definition by the regulations; HPC means the Health Performance Council established under Part 3; hospital means, according to the context— (a) an entity (whether corporate or unincorporated and including a partnership or other structure) by which health services are provided, being health services that include services provided to persons on a live-in basis; (b) a site at which activities of an incorporated hospital are undertaken; hospital bed means the bed and associated facilities provided by a hospital for the provision of health services to a patient on a live-in basis; incorporated hospital means a hospital incorporated under this Act; liability includes contingent liability; medical treatment includes all medical or surgical advice, attendances, services, procedures and operations; non-emergency ambulance service means an ambulance service other than an emergency ambulance service; private day procedure centre means premises in respect of which a day procedure centre licence is in force under Part 10A; private day procedure centre licence—see section 89C; private hospital means a hospital other than an incorporated hospital; relative—a person is a relative of another if the person is a spouse, domestic partner or parent of the other of or over 18 years of age and a brother, sister, son or daughter of the other; relevant interest has the same meaning as in the Corporations Law; repealed Act means the South Australian Health Commission Act 1976; restricted ambulance service licence means a licence under Part 6 Division 2 authorising the provision of non‑emergency ambulance services; right includes a right of action; SAAS means the SA Ambulance Service Inc; spouse—a person is a spouse of another if they are legally married; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; vehicle includes an aircraft or a boat. (2) The Governor may, for the purposes of the definition of employing authority— (a) designate different persons as employing authorities with respect to different classes of employees (or potential employees); (b) in making a designation under paragraph (a), include the Chief Executive; (c) from time to time as the Governor thinks fit, vary or revoke a proclamation, or make a new proclamation for the purposes of the definition. 4—Objects of Act The objects of the Act are— (a) to enable the provision of an integrated health system that provides optimal health outcomes for South Australians; and (b) to facilitate the provision of safe, high‑quality health services that are focussed on the prevention and proper management of disease, illness and injury and to facilitate efficiencies through the use of certain facilities for veterinary science; and (c) to facilitate a scheme for health services to meet recognised standards; and (d) to facilitate the efficient and effective governance and oversight of incorporated hospitals through the establishment of governing boards. 5—Principles The following principles are to be applied in connection with the operation and administration of this Act: (a) the protection of the public and the interests of people in need of care related to their health should be the highest priorities in the provision of health services; (b) Aboriginal people and Torres Strait Islanders should be recognised as having a special heritage and the health system should, in interacting with Aboriginal people and Torres Strait Islanders, support values that respect their historical and contemporary cultures; (c) the planning and provision of health services should take into account the situation and needs of people who live or work in the country or regional areas of the State, including through the support of health professionals who provide services in those areas; (d) support should be given to encouraging responsibility at community and individual levels for the promotion and development of healthy communities and individuals, and to ensure that people are able to make informed decisions about their health; (e) health services or programs should be accessible on a State‑wide or community basis; (f) health services should be provided as part of an integrated system— (i) that includes all aspects of health promotion and disease, illness and injury prevention so as to maximise community health and well‑being; and (ii) that supports services or programs designed to promote early intervention in detecting and responding to disease, illness or injury; and (iii) that provides for the effective and safe management and treatment of disease, illness or injury, including through self‑management of chronic or other diseases; and (iv) that supports improved health outcomes for communities with particular health needs; and (iva) that is inclusive of primary health care networks, Aboriginal and Torres Strait Islander health services and public health services provided in local government, aged care and disability sectors; and (v) that promotes a whole of Government approach to advance and improve health status within the community; and (vi) that seeks to reduce in‑patient hospitalisation and dependence on emergency and out‑patient services within hospitals; and (vii) that promotes the efficient and economic provision of services; and (viii) that achieves an effective balance between local decision-making in relation to incorporated hospitals and health system planning, integration and management; (g) health services should meet the highest levels of quality and safety; (h) service providers should seek to engage with the community in the planning and provision of health services, including through the encouragement or involvement of volunteers; (i) recognition should be given to the fact that there is a significant public benefit in having a single emergency ambulance service that provides an efficient use of assets, a highly-responsive service, and high levels of integration with other health services provided within the public health system. Part 2—Minister and Chief Executive 6—Minister (1) The Minister's functions in connection with the operation of this Act include the following (to be performed to such extent as the Minister considers appropriate): (a) to ascertain the requirements of the community, or sections of the community, in the field of health and health services and to determine how those requirements should be met to the best advantage of the community; (b) to plan, implement or support the provision of a system of health services that is comprehensive, co‑ordinated and readily accessible to the public; (c) to establish health services within the community; (d) to act to ensure that hospitals established under this Act, or that hospitals or other health services established, maintained or operated by or with the assistance of the Government of the State, are operated in an efficient and economical manner; (e) to ensure the proper allocation of resources across health services established under this Act; (f) to ensure that emergency ambulance services are provided in an efficient and effective manner through SAAS; (g) to promote or support— (i) research in the field of health and health services, including through the provision of facilities or other forms of support to a university or other institution, authority or person considered to be appropriate by the Minister; and (ii) the collection of data, statistics and other information in relation to health and health services; and (iii) the provision of education, instruction or training in professional or other fields associated with health and the provision of health services; (h) to promote and encourage the participation of volunteers in the provision of health services; (i) to disseminate information and knowledge for the benefit of the health of the public; (j) to establish mechanisms to keep the policies and standards of health and health services developed by the Department under evaluation and review; (k) to promote a positive relationship between the public, private and other health sectors; (ka) to provide and maintain such services or facilities as another Minister may request in connection with the field of veterinary science; (l) such other functions assigned to the Minister by or under this or any other Act, or considered by the Minister to be relevant to the operation of this or any other relevant Act. (2) The Minister has the power to do anything necessary, expedient or incidental to— (a) performing the functions of the Minister under this Act; or (b) administering this Act; or (c) furthering the objects of this Act. (3) The Minister cannot give a direction concerning the clinical treatment of a particular person. 7—Chief Executive (1) The Chief Executive's functions in connection with the operation of this Act include the following: (a) to assist the Minister in connection with the administration of this Act and to exercise statutory powers conferred by this Act; (b) to assist and advise the Minister in relation to— (i) the provision of health services within the State; and (ii) the protection or promotion of public health within the State; (c) to assist and advise the Minister in the development and implementation of planning for the health system statewide; (d) to provide strategic leadership and direction for the provision of public health services in the State; (e) to promote the effective and efficient use of available resources in the provision of public health services in the State; (f) to engage with consumer representatives and other interested parties in the development of health care policy, planning and service delivery; (g) to contribute to and implement statewide service plans that apply to incorporated hospitals and SAAS; (h) to undertake workforce planning for the health system statewide; (i) to ensure that a highly trained workforce is valued within the health system; (j) to oversee, monitor and promote improvements in the safety and quality of health services provided by incorporated hospitals and SAAS; (k) to develop and issue policies and directives to apply to the Department, incorporated hospitals and SAAS; (l) to develop and issue policies on workforce harassment and bullying; (m) to monitor the performance of incorporated hospitals and SAAS, and to take remedial action if agreed performance measures and operational targets are not met; (n) to receive and evaluate performance data and other data provided by incorporated hospitals and SAAS; (o) at the request of the Minister, to provide advice on any other matter in relation to which the Minister considers that the advice of the Chief Executive should be available; (p) to facilitate the provision of laboratory, research or other similar facilities, including on account of a request by a Minister under section 6(1)(ka); (q) such other functions assigned to the Chief Executive by or under this or any other Act, or assigned to the Chief Executive by the Minister in connection with the operation of this or any other Act. (1a) The Chief Executive may issue policies and directives that are to be complied with by the Department, incorporated hospitals and SAAS. (2) The Chief Executive has the power to do anything necessary, expedient or incidental to performing the functions of the Chief Executive. (3) Subject to this Act, the Chief Executive is, in the performance and exercise of the Chief Executive's functions and powers, subject to the control and direction of the Minister. (4) The Chief Executive cannot give a direction concerning the clinical treatment of a particular person. 8—Delegations (1) The Minister may delegate a function or power conferred on the Minister under this Act— (a) to a specified person or body; or (b) to a person occupying or acting in a specified office or position. (2) The Chief Executive may delegate a function or power conferred on the Chief Executive under this Act— (a) to a specified person or body; or (b) to a person occupying or acting in a specified office or position. (3) A delegation— (a) may be made subject to conditions or limitations specified in the instrument of delegation; and (b) if the instrument of delegation so provides, may be further delegated by the delegate; and (c) is revocable at will and does not prevent the delegator from acting personally in a matter. Part 3—Health Performance Council 9—Establishment of Health Performance Council (1) The Health Performance Council (HPC) is established. (2) HPC is to consist of up to 15 persons appointed by the Governor on the recommendation of the Minister who together, in the opinion of the Minister— (a) have a high level of knowledge of, and expertise in, the provision of health care or the administration of health services; and (b) are able to represent the diversities of South Australia's communities; and (c) have such experience, skills and qualifications to enable HPC to carry out its functions effectively. (3) The Minister must consult with prescribed bodies, in accordance with the regulations, before making a recommendation under subsection (2). (4) The Minister must ensure, as far as practicable, that the persons appointed under subsection (2) consist of equal numbers of women and men. (5) An act or proceeding of HPC is not invalid by reason only of a vacancy in its membership or a defect or irregularity in, or in connection with, the appointment of a member. 10—Provisions relating to members, procedures and committees and subcommittees Schedule 1 has effect with respect to HPC. 11—Functions of HPC (1) The functions of HPC are— (a) to provide advice to the Minister about— (i) the operation of the health system; and (ii) health outcomes for South Australians and, as appropriate, for particular population groups; and (iii) the effectiveness of methods used within the health system to engage communities and individuals in improving their health outcomes; and (b) to provide reports to the Minister in accordance with the requirements of this Act; and (c) to provide advice to the Minister about any matter referred to it by the Minister or any matter it sees fit to advise the Minister about in connection with its responsibilities under this Act; and (d) such other functions assigned to HPC under this or any other Act, or assigned to HPC by the Minister. (2) HPC should, in the performance of its functions, seek to obtain, to such extent as is reasonable and relevant in the circumstances, the views of— (a) Health Advisory Councils; and (ab) governing boards of incorporated hospitals; and (b) advisory committees established by the Minister to assist HPC in the performance of its functions. (3) HPC must, in the performance of its functions, take into account the strategic objectives that have been set or adopted within the Government's health portfolios. (4) Without limiting subsection (3), HPC must, in providing any advice with respect to the provision of any health services (including proposed services), take into account— (a) the net benefit provided by the services, the cost effectiveness of services, and available resources; and (b) the net impact that the adoption of the advice would have on other services, or on the community more generally; and (c) the value placed on any relevant services by members of the public who use those services. (5) The Minister must establish arrangements to meet with HPC on a regular basis. (6) HPC cannot, in the performance of its functions, give directions to the Chief Executive, the Department, the governing board for an incorporated hospital, a hospital or a HAC. (7) HPC may request the Chief Executive to provide it with specified information in order to assist it in the performance of its functions. (8) The Chief Executive may impose conditions that HPC must observe in relation to the receipt, use or disclosure of information provided under subsection (7). 12—Annual report (1) HPC must, within 3 months after the end of each financial year, deliver to the Minister a report on the operations of HPC during that financial year. (2) The Minister must, within 12 sitting days after the receipt of a report under this section, cause a copy of the report to be laid before both Houses of Parliament. 13—4-yearly report (1) HPC must, on a 4‑yearly basis, furnish to the Minister a report that assesses the health of South Australians and changes in health outcomes over the reporting period. (2) The report must— (a) identify significant trends in the health status of South Australians and consider future priorities for the health system having regard to trends in health outcomes, including trends that relate to particular illnesses or population groups; and (b) review the performance of the various health systems established within the State in achieving the objects of this Act; and (c) identify any other significant issues considered relevant by HPC; and (d) conform with any requirements of the Minister as to the form of the report and other matters to be addressed by the report. (3) The Minister must, within 12 sitting days after receipt of a report under this section, cause a copy of the report to be laid before both Houses of Parliament. (4) The Minister must, within 6 months after receipt of a report under this section, cause a formal response to the report to be laid before both Houses of Parliament. (5) The first report under this section must be completed by a day to be fixed by the regulations. 14—Use of facilities HPC may, with the approval of the responsible Minister or, if relevant, a responsible public sector instrumentality, make use of the staff, services or facilities of an administrative unit or another public sector instrumentality. Part 4—Health Advisory Councils Division 1—Establishment of Councils 15—Establishment of Councils (1) The Minister may, by notice in the Gazette, establish a Health Advisory Council (a HAC) to undertake an advocacy role on behalf of the community, to provide advice, and to perform other functions, as determined under this Act, in relation to any of the following: (a) the Minister; (b) the Chief Executive; (c) an incorporated hospital; (d) SAAS; (e) any other body involved in the delivery of health services in connection with this Act. (2) Without limiting subsection (1), the Minister may establish and maintain a HAC, constituted by persons who have experience in providing ambulance services as volunteers, with functions that include to provide advice to SAAS in the performance of its functions. (3) The notice published under subsection (1) may— (a) designate the entity or entities in relation to which the HAC is established; and (b) make provision with respect to the functions of the HAC; and (c) declare whether the HAC is to be an incorporated or unincorporated body and assign a name to the HAC (which must, if the HAC is to be incorporated, end with the abbreviation "Inc"); and (d) make provision with respect to the powers of the HAC; and (e) make such other provision as the Minister thinks fit (including by relating the functions of the HAC to a designated area of the State). (4) The Minister may, by subsequent notice in the Gazette— (a) vary a notice under this section; (b) amalgamate 2 or more HACs; (c) dissolve a HAC. (5) However, the Minister— (a) must consult with the members of the relevant HAC or HACs in the manner prescribed by the regulations before acting under subsection (4); and (b) must not act under subsection (4)(b) or (c) unless— (i) the Minister is satisfied that there has been a reasonable level of consultation within the community; and (ii) the Minister is satisfied that it is appropriate to do so on a ground prescribed by the regulations. (6) If 2 or more HACs are amalgamated under subsection (4)(b), the Minister may— (a) exercise any power under a preceding subsection in relation to the HAC established by the amalgamation (including by declaring whether the HAC is to be an incorporated or unincorporated body); and (b) dissolve the HACs that were the separate entities before the amalgamation. (7) If 2 or more HACs are amalgamated under subsection (4)(b), the assets, rights and liabilities of the HACs that were the separate entities before the amalgamation vest in or attach to the HAC formed by the amalgamation by operation of this subsection (unless a contrary provision is relevant under subsection (8)). (8) A reference in a testamentary disposition or other instrument to a HAC that is a party to an amalgamation under subsection (4)(b) will be taken to be (subject to any provision of the testamentary disposition or other instrument to the contrary) a reference to the HAC formed by the amalgamation. (9) If a HAC is dissolved under subsection (4)(c), the Minister may, as the Minister thinks necessary or appropriate, exercise a power under section 20 (subject to complying with the requirements of that section). (10) The Minister may, by notice in the Gazette, make other provisions that in the opinion of the Minister are necessary or expedient in connection with taking action under subsection (4). (11) To avoid doubt, the Minister may establish more than 1 HAC in relation to a particular entity under subsection (1). 16—Status (1) If a HAC is to be an incorporated body by virtue of a declaration of the Minister— (a) the HAC is, by force of this section, a body corporate with perpetual succession and a common seal; and (b) subject to the provisions of this Act and its constitution, the HAC— (i) is capable of holding, acquiring, dealing with, and disposing of, real and personal property (including the power to enter into leases); and (ii) is capable of acquiring or incurring other assets, rights or liabilities; and (iii) is capable of entering into contracts; and (iv) is capable of suing and being sued; and (v) is capable of administering any property on trust or accepting gifts (and, if any gift is affected by a trust, is empowered to carry out the terms of the trust); and (vi) has the rights, powers, authorities, functions, duties and obligations prescribed by or under this Act or its constitution. (2) If a HAC is not to be a body corporate by virtue of a declaration of the Minister, the HAC has the rights, powers, authorities, functions, duties and obligations prescribed by or under this Act or its rules. (3) A HAC is an instrumentality of the Crown. (4) Subject to subsection (5), a HAC holds its property on behalf of the Crown. (5) Subsection (4) does not apply to the extent that a HAC holds any property on trust. (6) Without limiting subsection (5), in the event of an inconsistency between the operation or effect of a provision under this Part and the duties or responsibilities of a HAC as a trustee, the provisions of this Part will not apply to the extent of the inconsistency. (7) Subject to any provision made in its constitution or rules, a HAC may exercise its powers within or outside the State. 17—Constitution and rules (1) A HAC that is incorporated under this Act will have a constitution determined by the Minister. (2) A constitution— (a) must address the appointment of persons as the members of the