Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)

Health Practitioner Regulation (Adoption of National Law) Act 2009 No 86 An Act to apply as a law of this State a national law relating to health practitioner regulation. Part 1 Preliminary 1 Name of Act This Act is the Health Practitioner Regulation (Adoption of National Law) Act 2009. 2 Commencement (1) Subject to subsection (2), this Act commences on 1 July 2010. (2) A proclamation made before 1 July 2010 may appoint a day that is later than 1 July 2010 as the day on which this Act commences. 3 Definitions (1) In this Act— Health Practitioner Regulation National Law (NSW) means the provisions applying in this jurisdiction because of section 4. (2) Terms used in Part 2 and also in the Health Practitioner Regulation National Law (NSW) have the same meaning in Part 2 as they have in that Law. Part 2 Adoption of Health Practitioner Regulation National Law 4 Adoption of Health Practitioner Regulation National Law (1) The Health Practitioner Regulation National Law, as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland— (a) applies as a law of this jurisdiction, with the modifications set out in Schedule 1, and (b) as so applying may be referred to as the Health Practitioner Regulation National Law (NSW), and (c) so applies as if it were a part of this Act. (2) If, after the commencement of this subsection, the Parliament of Queensland amends the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland, the amendment (the Queensland amendment) does not apply in New South Wales until a regulation is made applying the Queensland amendment as an amendment to the Health Practitioner Regulation National Law (NSW), with or without modification. (3) A regulation made under subsection (2) that applies a Queensland amendment with modification may, for that purpose, amend the Schedule to this Act. (4) Despite the Interpretation Act 1987, section 39, a regulation made under subsection (2) may commence on the day the Queensland amendment commences, including a day that is earlier than the day the regulation is published on the NSW legislation website. (5) A regulation made under subsection (2) is repealed on the day after all of its provisions have commenced. (6) The repeal of a regulation under subsection (5) does not affect the application of the Queensland amendment, with or without modification, provided for by the regulation. 5 Meaning of generic terms in Health Practitioner Regulation National Law for purposes of this jurisdiction In the Health Practitioner Regulation National Law (NSW)— Magistrate means a Magistrate appointed under the Local Court Act 2007. this jurisdiction means New South Wales. 6 Health, performance and conduct process not to apply: co-regulatory jurisdiction It is declared that this jurisdiction is not participating in the health, performance and conduct process provided by Divisions 3–12 of Part 8 of the Health Practitioner Regulation National Law. 6A Adjudication body Each of the following entities is declared to be an adjudication body for the purposes of the Health Practitioner Regulation National Law— (a) a Professional Standards Committee, (b) a Council, (c) a Performance Review Panel. (d) (Repealed) 6B Co-regulatory authority Each Council is declared to be a co-regulatory authority for the purposes of the Health Practitioner Regulation National Law. 6C Responsible tribunal for Health Practitioner Regulation National Law The Civil and Administrative Tribunal is declared to be the responsible tribunal for the purposes of the Health Practitioner Regulation National Law. 7 Application of legislation of this jurisdiction (1) Subject to subsection (2), the following Acts of this jurisdiction do not apply to the Health Practitioner Regulation National Law (NSW) or to the instruments made under that Law— (a) (Repealed) (b) the Freedom of Information Act 1989, (c) the Government Information (Information Commissioner) Act 2009, (d) the Government Information (Public Access) Act 2009, (d1) the Government Sector Audit Act 1983, (d2) the Government Sector Finance Act 2018, (e) the Health Records and Information Privacy Act 2002, (f) the Interpretation Act 1987, (g) the Ombudsman Act 1974, (h) the Privacy and Personal Information Protection Act 1998, (i) (Repealed) (j) the Government Sector Employment Act 2013, (k) the Subordinate Legislation Act 1989. (2) The following Acts of this jurisdiction apply to the NSW provisions of the Health Practitioner Regulation National Law (NSW) and to the instruments made under the NSW provisions— (a) (Repealed) (b) the Freedom of Information Act 1989, (c) the Government Information (Information Commissioner) Act 2009, (d) the Government Information (Public Access) Act 2009, (d1) the Government Sector Audit Act 1983, (d2) the Government Sector Finance Act 2018, (e) the Health Records and Information Privacy Act 2002, (e1) the Interpretation Act 1987, (f) the Ombudsman Act 1974, (g) the Privacy and Personal Information Protection Act 1998, (h) (Repealed) (i) the Subordinate Legislation Act 1989. Part 3 Miscellaneous 8 Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. 9 Review of Act (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years. Schedule 1 Modification of Health Practitioner Regulation National Law [1A] Sections 3A and 3B Insert after section 3— 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows— (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that— (i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and (ii) contributes to the elimination of racism in the provision of health services; Example— Codes and guidelines developed and approved by National Boards under section 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care. (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. Note— This section is a substituted New South Wales provision. 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note— This section is an additional New South Wales provision. [1] Section 5 Definitions Omit the definitions of health panel, panel, performance and professional standards panel, performance assessment, professional misconduct, prohibition order, relevant action, unprofessional conduct, unsatisfactory professional performance and voluntary notification. [2] Section 5 Insert the following in alphabetical order— health panel Note— This definition is not applicable to New South Wales. panel Note— This definition is not applicable to New South Wales. performance and professional standards panel Note— This definition is not applicable to New South Wales. performance assessment Note— This definition is not applicable to New South Wales. professional misconduct Note— This definition is not applicable to New South Wales. prohibition order Note— This definition is not applicable to New South Wales. relevant action Note— This definition is not applicable to New South Wales. unprofessional conduct Note— This definition is not applicable to New South Wales. unsatisfactory professional performance Note— This definition is not applicable to New South Wales. voluntary notification means a complaint or other notification made under Part 8, other than a mandatory notification. [3] Section 5, definition of "adjudication body" Insert after the definition— Note— See section 6A of the Health Practitioner Regulation (Adoption of National Law) Act 2009 which declares that Professional Standards Committees, Councils and Performance Review Panels are all adjudication bodies for the purposes of the Health Practitioner Regulation National Law. [4] Section 5, definition of "co-regulatory authority" Insert after the definition— Note— See section 6B of the Health Practitioner Regulation (Adoption of National Law) Act 2009 which declares that each Council is a co-regulatory authority for the purposes of the Health Practitioner Regulation National Law. [5] Section 5, definition of "co-regulatory jurisdiction" Insert after the definition— Note— See section 6 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 which declares that this jurisdiction is not participating in the health, performance and conduct process provided by Divisions 3 to 12 of Part 8 of the Health Practitioner Regulation National Law. As a consequence, New South Wales is a co-regulatory jurisdiction. [5A] Section 5, definitions of "NSW provision" and "NSW regulation" Insert in alphabetical order— NSW provision means— (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note— This definition is an additional New South Wales provision. NSW regulation means a regulation made under section 247A. Note— This definition is an additional New South Wales provision. [6] Section 5, definition of "responsible tribunal" Insert after the definition— Note— See section 6C of the Health Practitioner Regulation (Adoption of National Law) Act 2009 which declares that the Civil and Administrative Tribunal is the responsible Tribunal for the purposes of the Health Practitioner Regulation National Law. [7] Section 26A Insert after section 26— 26A Setting of fees in health profession agreements [NSW] (1) For the purposes of section 26, if the Ministerial Council gives a fees policy direction that provides a registration fee is to separately identify a registration and accreditation element and a complaints element, the amount of the complaints element for registration fees payable by NSW health practitioners for a particular health profession is to be decided by the Council established for that profession, with the approval of the Minister. Note— The Ministerial Council gave a fees policy direction on 13 November 2009 that provided that the registration fees payable under this Law were to separately identify the registration and accreditation elements and the complaints element of the fees. (2) In this section— complaints element means a component for the costs of operating the health, performance and conduct process under Part 8. fees policy direction means a direction given to the National Agency and the National Boards about the policies to be applied in entering into a health profession agreement about registration fees. NSW health practitioner means— (a) a registered health practitioner whose principal place of practice is in this jurisdiction; or (b) an applicant for registration whose application for registration includes a declaration under section 77(3) that— (i) the applicant will predominantly practise the profession in this jurisdiction; or (ii) the applicant's principal place of residence is in this jurisdiction. registration fee means a relevant fee payable by a health practitioner for registration or renewal of registration under this Law. Note— This section is an additional New South Wales provision. [8] Part 5A Insert after Part 5— Part 5A New South Wales Councils [NSW] Note— This Part is an additional New South Wales provision. Division 1 Preliminary [NSW] 41A Definitions [NSW] In this Part— Council means a Council established under section 41B. Executive Officer means the Executive Officer of a Council. NSW regulation means a regulation made under section 247A. Division 2 Councils [NSW] 41B Establishment of Councils [NSW] (1) Each of the following Councils is established for the health profession listed beside that Council in the following Table— Table—State Councils Name of Council Health profession Chiropractic Council of New South Wales chiropractic Dental Council of New South Wales dental (including the profession of a dentist, dental hygienist, dental prosthetist, dental therapist or oral health therapist) Medical Council of New South Wales medical Nursing and Midwifery Council of New South Wales nursing and midwifery Optometry Council of New South Wales optometry Osteopathy Council of New South Wales osteopathy Paramedicine Council of New South Wales paramedicine Pharmacy Council of New South Wales pharmacy Physiotherapy Council of New South Wales physiotherapy Podiatry Council of New South Wales podiatry Psychology Council of New South Wales psychology Editorial note— This provision has been amended by orders. For the full text see the Health Practitioner Regulation National Law (NSW). (2) The Governor may, by order published on the NSW legislation website, amend the Table to subsection (1) by inserting, altering or omitting the name of a Council or health profession. (3) A Council— (a) is a body corporate with perpetual succession; and (b) has a common seal; and (c) may sue and be sued. 41C General powers of Councils [NSW] (1) A Council has all the powers of an individual and, in particular, may do anything necessary or convenient to be done in the exercise of its functions. (2) However, a Council cannot employ staff. 41D Functions of Councils [NSW] A Council has and may exercise the functions conferred or imposed on it by or under this Law or another Act. 41DA Ministerial control [NSW] A Council is subject to the control and direction of the Minister, except in relation to— (a) the assessment or management of a complaint about a registered health practitioner or a student, including a decision to refer a complaint to a committee or the Tribunal; and (b) the assessment or management of a registered health practitioner or student who was or is the subject of a complaint or whose registration is subject to a condition, including a decision to refer a matter concerning the practitioner or student to the Tribunal; and (c) the terms of a recommendation by the Council; and (d) the contents of a report of the Council. 41E Membership of Councils [NSW] Each Council consists of the members prescribed by the NSW regulations. 41F Committees [NSW] (1) A Council may establish committees to assist it in connection with the exercise of any of its functions. (2) The members of a committee need not be members of the Council. (3) The procedure for the calling of meetings of a committee and for the conduct of business at the meetings is— (a) as decided by the Council; or (b) subject to a decision of the Council, as decided by the committee. 41G Councils' complaint functions may be exercised by 2 or more members [NSW] (1) A Council may appoint any 2 or more members of the Council to exercise the functions of the Council under Division 3 of Part 8. (2) The referral of a complaint by the members appointed is taken to be a referral by the Council. 41H Annual reporting information [NSW] (1) The annual reporting information prepared for a Council under the Government Sector Finance Act 2018 must include particulars of the following for the annual reporting period to which it relates— (a) all complaints received by the Council during the period or received by the Council before that period but which, in the Council's opinion had not, at the start of the period, been finally disposed of; (b) the action taken during the period in relation to complaints received by the Council and the results of that action up to the end of that period; (c) all matters referred to a Performance Review Panel for performance review during the period, or referred to a Panel before the period but which, in the Council's opinion had not, at the start of the period, been finally disposed of; (d) the results of all performance reviews conducted by Performance Review Panels that were finally disposed of during the period. (2) Two or more Councils may decide to prepare joint annual reporting information under the Government Sector Finance Act 2018. (3) This section does not require the identity of a complainant, a person who notifies a professional performance matter to a Council, a person about whom a complaint is made or who is the subject of a performance review or any other person to be disclosed in annual reporting information. 41I Information to be made available to public [NSW] (1) A Council for a health profession must ensure the following information, in relation to a registered health practitioner registered in the profession, is made available to the public on request— (a) any conditions imposed on the registration of the practitioner; (b) any other order made in respect of the practitioner under this Law. (2) Without limiting subsection (1), the Council is taken to have complied with that subsection if the information is available on the Register kept by the National Board for the health profession. (3) This section does not require a Council to disclose anything the Council considers relates solely or principally to the physical or mental capacity of a person to practise the person's profession. 41J Delegation by Council and Executive Officer [NSW] (1) A Council may delegate to a person the exercise of any of its functions, other than this power of delegation. (2) An Executive Officer of a Council may delegate to a person the exercise of— (a) any of the functions of the Executive Officer under this Law, other than this power of delegation; or (b) any functions delegated to the Executive Officer by the Council, unless the Council otherwise provides in its instrument of delegation to the Executive Officer. (3) In this section, a reference to a person includes a reference to a group of persons, including a committee. 41K Service of documents on Councils [NSW] (1) A document (other than a complaint made under Part 8) may be served on a Council by leaving it at or sending it by post to an office of the Council. (2) This does not affect the operation of any provision of a law or of the rules of a court authorising a document to be served on a Council in another way. 41L Authentication of certain documents [NSW] A certificate, summons, process, demand, order, notice, statement, direction or other document requiring authentication by a Council may be sufficiently authenticated without the seal of the Council if signed by— (a) the President or the Executive Officer of the Council; or (b) an officer of the Council authorised to do so by the Executive Officer. 41M Recovery of charges, fines, fees and other money by Councils [NSW] A charge, fine, fee or other money due to a Council may be recovered by the Council as a debt in a court of competent jurisdiction. 41N Proof of certain matters not required [NSW] In any legal proceedings, proof is not required (until evidence is given to the contrary) of— (a) the establishment of a Council; or (b) any resolution of a Council; or (c) the appointment of, or the holding of office by, a member of a Council; or (d) the presence of a quorum at a meeting of a Council. 41NA Special provisions relating to non-financially viable Councils [NSW] (1) The Minister may, if satisfied that a Council is not financially viable, make either or both of the following directions— (a) a direction in writing to the Council that the Council delegate such of its functions as are specified in the direction to another Council, or to a person, designated by the Minister in the direction; (b) a direction in writing to the Executive Officer of the Council that the Executive Officer delegate such of the Executive Officer's functions as are specified in the direction to a person designated by the Minister in the direction. The Council or Executive Officer must comply with any such direction. (2) The NSW regulations may modify the functions of a Council (including modification of any of the Council's auditing or reporting requirements) as a consequence of— (a) any direction under subsection (1), or (b) the financial non-viability of the Council. (3) Any such regulation may not be made in relation to a Council unless the Minister has certified that, in the opinion of the Minister, the Council is not financially viable. (4) Any direction by the Minister under subsection (1) is to be made publicly available. Division 3 Proceedings of Councils [NSW] 41O Other matters to be taken into account [NSW] In the exercise of any of its functions under Part 8 with respect to a complaint about a registered health practitioner or a student, a Council must have regard to any of the following matters, to the extent the Council reasonably considers the matter to be relevant to the complaint— (a) another complaint or notification about the practitioner or student made to the Council or the National Agency, or made to a former Board under a repealed Act, including a complaint— (i) in respect of which the Council, the Commission or a National Board has decided no further action should be taken; and (ii) that is not required to be referred, or that the Council or the Commission decides not to refer, under Division 3 of Part 8; (b) a previous finding or decision of a Council inquiry in relation to the practitioner or student; (c) a previous finding or decision of a board inquiry, professional standards committee or a tribunal established under a repealed Act in respect of the practitioner or student; (d) a written report made by an assessor following an assessment of the practitioner's professional performance; (e) a recommendation made, or written statement of decision on a performance review provided, by a Performance Review Panel in relation to the practitioner. 41P Exercise of functions with consent [NSW] (1) A Council may exercise any of its functions under this Law with respect to a registered health practitioner or student with the written consent of the practitioner or student. (2) A function exercised by the Council with the consent of the registered health practitioner or student may be exercised even though a condition otherwise required to be met or procedures otherwise required to be followed before its exercise have not been met or followed. (3) If the registered health practitioner or student withdraws the practitioner's or student's consent, the Council must take the action necessary to give effect to the withdrawal. Division 4 Administration [NSW] 41Q Executive Officer [NSW] (1) There is an Executive Officer of each Council. (2) The Executive Officer— (a) is responsible, as the chief executive officer of the Council, for the management of the affairs of the Council subject to any directions of the Council; and (b) has and may exercise other functions conferred or imposed on the Executive Officer by or under this Law or any other Act. (3) The Executive Officer of a Council must keep a record of— (a) all proceedings and decisions of Committees to which the Council refers matters; and (b) (Repealed) (c) all inquiries held by the Council. Division 5 Finance [NSW] 41R Financial provisions [NSW] The Executive Officer of a Council must give to the Health Administration Corporation constituted under the Health Administration Act 1982, for payment into an account established under section 13A of that Act, all money received by the Council. 41S Education and Research Account [NSW] (1) A Council may establish an account named the '[name of Council] Education and Research Account'. (2) The Council must pay into its Education and Research Account the amounts decided by the Minister from time to time. (3) The Minister may not decide an amount under this section without first consulting with the Council. (4) Money in the Education and Research Account may be expended by the Council for or towards the following purposes— (a) any purpose relating to education and research about the health, performance and conduct of registered health practitioners or students registered in the health profession for which the Council is established; (b) meeting administrative expenditure incurred with respect to the Education and Research Account and the purposes for which it is used. (5) An expenditure of money under this section must not be made unless it is authorised by a resolution of the Council supported by two-thirds of the members of the Council. 41T Medical Council to pay expenses of Medical Services Committee [NSW] The reasonable expenses of the Medical Services Committee established under the Health Administration Act 1982 are to be paid out of the account established under section 13A of that Act for the Medical Council of New South Wales. [9] Part 7, Division 10, Subdivision 2 Insert after the heading to the Subdivision— Note— See also Schedule 5F which contains New South Wales provisions providing for specific restrictions in relation to the control of pharmacies. [10] Section 121A Insert after section 121— 121A General anaesthesia and simple sedation in dentistry [NSW] (1) A dentist must not carry out any procedure forming part of the practice of dentistry on a patient to whom a general anaesthetic has been administered unless the general anaesthetic has been administered by a registered medical practitioner who— (a) holds specialist registration in anaesthesia; or (b) is accredited for the purposes of administering any general anaesthetic at a public or private hospital at which surgery may lawfully be carried out. Maximum penalty—200 penalty units. (2) A dentist must not administer simple sedation by the intravenous route unless the dentist— (a) has been endorsed by the Dental Board of Australia to administer sedation; and (b) is assisted by another person who is either— (i) a registered nurse who has received training in intensive care or anaesthesia; or (ii) a dentist, appropriately trained in the observation and monitoring of sedated patients and in resuscitation, whose sole responsibility in assisting is to monitor the level of consciousness and cardio-respiratory function of the patient and to administer resuscitation if necessary. Maximum penalty—200 penalty units. (3) In this section— general anaesthetic means a drug or other substance that, when administered to a patient, will render the patient— (a) unaware of the patient's surroundings; and (b) unable to retain reflex control of the airway; and (c) incapable of understanding and obeying a spoken command. simple sedation means a technique in which the use of a drug produces a state of depression of the central nervous system enabling treatment to be carried out, and in which— (a) the patient does not lose consciousness; and (b) the drug and techniques used have a margin of safety wide enough to render unintended loss of consciousness unlikely. Note— This section is an additional New South Wales provision. [10A] Section 127AA Insert after section 127A— 127AA Council to be review body for purposes of section 127A [NSW] (1) The Council for the health profession in which the relevant practitioner or student is registered is declared to be the review body for the purposes of section 127A. (2) A Council, in deciding a matter referred to it under section 127A, must do so in accordance with this section. (3) A Council may inquire into and decide the matter on its own motion or on the application of the relevant practitioner or student. (4) An application may not be made— (a) while the terms of the condition or undertaking provide that an application for review may not be made; or (b) while a