New South Wales: 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 (5) A regulation made under subsection (2) is repealed on the day after all of its provisions have commenced.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 an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending. (5) A Council, following its inquiry into a matter, may do any of the following— (a) in the case of an inquiry initiated by an application, dismiss the application; (b) in the case of an inquiry initiated by the Council, decide to do nothing; (c) in the case of an inquiry in relation to an undertaking, decide to revoke the undertaking or revoke the undertaking and impose a condition on similar or different terms as the undertaking; (d) in the case of an inquiry in relation to a condition, decide to remove the condition, change the condition or remove the condition and impose a new condition. Note— This section is an additional New South Wales provision. [11] Section 129 Professional indemnity insurance arrangements Insert after section 129 (1)— Note— See also the Health Care Liability Act 2001 which provides that medical practitioners practising in New South Wales must be covered by approved professional indemnity insurance within the meaning of that Act. [11A] Section 136A Insert after section 136— 136A Directing or inciting unsatisfactory professional conduct [NSW] (1) A person must not direct or incite a registered health practitioner to do anything, in the course of the practitioner's practice of the health profession, that amounts to unsatisfactory professional conduct. Maximum penalty— (a) for an individual—$60,000, or (b) for a body corporate—$120,000. (2) Subsection (1) does not apply to a person who is the owner or operator of a public health facility. (3) In this section— unsatisfactory professional conduct has the same meaning as it has in Part 8. Note— This section is an additional New South Wales provision. [12] Part 8 Health, performance and conduct Insert after the heading to the Part— Note— This Part, other than Division 2, is a substituted New South Wales provision. [13] Part 8, Division 1 Omit the Division. Insert instead— Division 1 Preliminary [NSW] 138 Definitions [NSW] (1) In this Part— Assessment Committee means an Assessment Committee established under section 172A. assessor means a person appointed as an assessor under section 174D. authorised person means a person appointed as an authorised person under section 164. Australian lawyer has the same meaning as it has in the Legal Profession Uniform Law (NSW). Commission means the Health Care Complaints Commission constituted under the Health Care Complaints Act 1993. Committee means— (a) an Assessment Committee; or (b) a Professional Standards Committee. competent has the meaning given by section 139. complainant includes a person acting as a nominal complainant in accordance with this Law. conduct means any act or omission. confidential information has the meaning given by section 139A. confidential information notice means a notice that— (a) indicates that— (i) confidential information is not included in a statement required to be given to a person under this Law; or (ii) a statement required to be given to a person under this Law will not be provided; and (b) gives the reason the confidential information is not included or the statement will not be provided. Council means a Council established under section 41B. court includes a tribunal, authority or person having power to require the production of documents or the answering of questions but does not include— (a) the Tribunal; or (b) a Council; or (c) a Performance Review Panel; or (d) a Professional Standards Committee. criminal finding means— (a) a finding that an offence has been proved without proceeding to a conviction; or (b) a finding that an offence has been proved and the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period or on other conditions decided by the court. critical compliance order or condition means an order or condition of a registered health practitioner's or student's registration that is a critical compliance order or condition under section 146B, 149A or 163B. drug related offence means an offence under— (a) the Drug Misuse and Trafficking Act 1985 or regulations under that Act; or (b) the Poisons and Therapeutic Goods Act 1966 or regulations under that Act. Executive Officer means the Executive Officer of a Council. former Board means a Board established under a repealed Act. health product means a pharmaceutical product or other product used for health purposes. health service has the meaning given by the Health Care Complaints Act 1993. health service provider has the meaning given by the Health Care Complaints Act 1993. Impaired Registrants Panel means an Impaired Registrants Panel established under section 173. Minister means— (a) the Minister administering this Law; or (b) if different Ministers are administering the Law in different respects or different portions of the Law, the Minister administering the Law in the relevant respect or administering the relevant portion of the Law. overservicing, by a registered health practitioner, means the practitioner, in the course of practising the practitioner's profession— (a) provides a service in circumstances in which provision of the service is unnecessary, not reasonably required or excessive; or (b) engages in conduct prescribed by the NSW regulations as constituting overservicing. performance assessment means an assessment of a registered health practitioner's professional performance conducted by an assessor under Subdivision 3 of Division 5 of Part 8. performance review means a review of a registered health practitioner's professional performance conducted by a Performance Review Panel under Subdivision 4 of Division 5 of Part 8. Performance Review Panel means a Performance Review Panel established under section 174. pharmacist means a person registered under this Law in the pharmacy profession. President means the President of a Council. professional misconduct has the meaning given by section 139E. Professional Standards Committee means a Professional Standards Committee established under section 169. prohibition order has the meaning given by section 149C(5). protected report means any of the following reports— (a) a report prepared by an Impaired Registrants Panel for a Council; (b) a report prepared by an assessor for a Council or Performance Review Panel; (c) a report prepared by a registered health practitioner about an examination conducted under section 145E, 152B or 152C; (d) a report prepared by a registered health practitioner for a Council in connection with an examination of a person by the health practitioner as required by a condition of registration or an order imposed by an adjudication body on the person; (e) a report prepared by a registered health practitioner for a Council under a request made by a person to the health practitioner in connection with a matter being dealt with by an Impaired Registrants Panel; (f) a report prepared, under clause 12 of Schedule 5B, by a person giving expert advice to a Performance Review Panel. repealed Act means any of the following Acts— (a) Chiropractors Act 2001; (b) Dental Practice Act 2001; (c) Medical Practice Act 1992; (d) Nurses and Midwives Act 1991; (e) Optometrists Act 2002; (f) Osteopaths Act 2001; (g) Pharmacy Practice Act 2006; (h) Physiotherapists Act 2001; (i) Podiatrists Act 2003; (j) Psychologists Act 2001. Secretary means the Secretary of the Ministry of Health. sex or violence offence means an offence involving any of the following, other than an offence prescribed by the NSW regulations— (a) sexual activity; (b) sexual touching or sexual acts within the meaning of Division 10 of Part 3 of the Crimes Act 1900; (c) child pornography or child abuse material (within the meaning of the Crimes Act 1900); (d) physical violence or the threat of physical violence. Tribunal means the Civil and Administrative Tribunal. Tribunal List Manager means the List Manager of the Health Practitioner List of the Occupational Division of the Tribunal. unsatisfactory professional conduct has the meaning given by sections 139B–139D. (2) A term defined in subsection (1) for this Part and also used in another NSW provision has the same meaning in the other NSW provision as it has in this Part. 139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person— (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language. 139A Confidential information [NSW] Information is confidential information for the purposes of a statement of a decision under this Law if it falls into any of the following categories— (a) it has not previously been published or made available to the public when the statement of the decision to which it is or may be relevant is being prepared; (b) it relates to the personal or business affairs of a person other than a person to whom the statement is required to be provided or would be required to be provided but for the fact that it contains confidential information; (c) it was supplied in confidence; (d) its publication would reveal a trade secret; (e) it was provided in compliance with a duty imposed by or under an Act; (f) its inclusion in the statement would be a contravention of an Act; (g) it is a protected report or would reveal the contents of a protected report. 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of— (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. (d) Failure to comply with decision or order of Committee or the Tribunal A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner. (e) Contravention of requirement under Health Care Complaints Act 1993 A contravention by the practitioner of section 21A(3), 34A(4) or 63G(4) of the Health Care Complaints Act 1993. (f) Accepting benefit for referral or recommendation to health service provider Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for— (i) referring another person to the health service provider; or (ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter. (g) Accepting benefit for recommendation of health product Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product, but does not include accepting a benefit that consists of ordinary retail conduct. (h) Offering a benefit for a referral or recommendation Offering or giving a person a benefit as inducement, consideration or reward for the person— (i) referring another person to the registered health practitioner; or (ii) recommending to another person that the person use a health service provided by the practitioner or consult the practitioner in relation to a health matter. (i) Failure to disclose financial interest in giving referral or recommendation Referring a person to, or recommending that a person use or consult— (i) another health service provider; or (ii) a health service; or (iii) a health product; if the practitioner has a financial interest in giving that referral or recommendation, unless the practitioner discloses the nature of the interest to the person before or at the time of giving the referral or recommendation. (j) Engaging in overservicing Engaging in overservicing. (k) Supervision of assistants Permitting an assistant employed by the practitioner (in connection with the practitioner's professional practice) who is not a registered health practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill. (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. (2) For the purposes of subsection (1)(i), a registered health practitioner has a financial interest in giving a referral or recommendation— (a) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a public company and the practitioner holds 5% or more of the issued share capital of the company; or (b) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a private company and the practitioner has any interest in the company; or (c) if the health service provider, or the supplier of the health product, to whom the referral or recommendation relates is a natural person who is a partner of the practitioner; or (d) in any circumstances prescribed by the NSW regulations. (3) For avoidance of doubt, a reference in this section to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class. (4) In this section— benefit means money, property or anything else of value. recommend a health product includes supply or prescribe the health product. supply includes sell. 139C Additional matters that constitute unsatisfactory professional conduct of medical practitioners [NSW] In addition to the matters referred to in section 139B, unsatisfactory professional conduct of a medical practitioner also includes each of the following— (a) Criminal convictions and criminal findings Conduct that results in the medical practitioner being convicted of or being made the subject of a criminal finding for any of the following offences— (i) an offence under section 102 of the Mental Health Act 2007; (ii) an offence under section 175 of the Children and Young Persons (Care and Protection) Act 1998; (iii) an offence under section 35 of the Guardianship Act 1987; (iv) an offence under section 128A, 128B, 129 or 129AA of the Health Insurance Act 1973 of the Commonwealth; (v) an offence under section 58 of the Private Health Facilities Act 2007. (b) Assisting unregistered practitioners By the medical practitioner's presence, countenance, advice, assistance or co-operation, knowingly enable a person who is not a medical practitioner (whether or not that person is described as an assistant) or is not otherwise authorised by a National Board to— (i) perform operative surgery (as distinct from manipulative surgery) on a patient in respect of any matter requiring professional discretion or skill; or (ii) issue or procure the issue of a certificate, notification, report or other like document, or to engage in professional practice, as if the person were a medical practitioner. (c) Failing to render urgent attention Refusing or failing, without reasonable cause, to attend (within a reasonable time after being requested to do so) on a person for the purpose of rendering professional services in the capacity of a medical practitioner if the practitioner has reasonable cause to believe the person is in need of urgent attention by a medical practitioner, unless the practitioner has taken all reasonable steps to ensure that another medical practitioner attends instead within a reasonable time. 139D Additional matters that constitute unsatisfactory professional conduct of pharmacists [NSW] (1) In addition to the matters referred to in section 139B, unsatisfactory professional conduct of a pharmacist also includes each of the following— (a) practising pharmacy for remuneration at a pharmacy in the course of employment by, or in association with, a non-pharmacist; (b) the supply of precursor drugs, or preparations, admixtures, extracts or other substances containing a proportion of precursor drugs, by the pharmacist in circumstances in which the supply of the drugs, preparations, admixtures, extracts or other substances is unnecessary, not reasonably required, or excessive; (c) if the pharmacist is the owner of, or otherwise has a financial interest in, a pharmacy business, failing to display at or near the main entrance of each premises in which the business is carried on the owner's name; (d) if the pharmacist is the pharmacist in charge of a pharmacy, failing to display adjacent to the area where dispensing is carried on in the pharmacy the name of the pharmacist in charge followed by the words "PHARMACIST IN CHARGE"; (e) if the pharmacist is the owner of, or otherwise has a financial interest in, a pharmacy business, failing to ensure drug price information displayed in premises in which the business is carried on does not contravene the Price Information Code of Practice (within the meaning of Schedule 5F). (2) For the purposes of subsection (1)(c) and (e), the owner of a pharmacy business includes— (a) a pharmacist who has a financial interest in the pharmacy business; and (b) a pharmacist who is nominated by the owner of the pharmacy business as being responsible for the matters referred to in clause 6(2)(c) or 7(2) of Schedule 5F. (3) In this section— non-pharmacist means an entity that is not a pharmacist, but does not include any of the following— (a) the Crown; (b) a public health organisation or a charitable or philanthropic institution; (c) a pharmacists' partnership or pharmacists' body corporate; (d) a friendly or other society that owns a pharmacy business as permitted by clause 6 of Schedule 5F; (e) a body corporate that owns or carries on a pharmacy business under clause 7 of Schedule 5F; (f) a person who has a financial interest in a pharmacy business as referred to in clause 5(4) or (5) of Schedule 5F and who carries on that business; (g) a person who, in assuming the administration of the property of another person under a security interest granted in respect of that other person's pharmacy business, carries on that pharmacy business. precursor drug has the same meaning as precursor has in section 24A of the Drug Misuse and Trafficking Act 1985. 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 139F References to "complaint" [NSW] In Subdivisions 1–6 of Division 3 and in Subdivisions 1 and 2 of Division 6, a reference to a complaint includes a reference to a matter arising out of the investigation of a complaint in accordance with this Law or another Act. 139G Part applicable to persons formerly registered under this Law (1) This section applies if a person was, but is no longer, registered in a health profession under this Law. (2) A notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered as if the person were still registered under this Law by the National Board established for the health profession. (3) For the purposes of subsection (2), this Part (other than Division 2) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person. Note— This section is a Health Practitioner Regulation National Law provision. 139H Part applicable to persons formerly registered under corresponding prior Act in certain circumstances (1) This section applies if a person— (a) was registered in a health profession under a corresponding prior Act; and (b) is not, and has not been, registered in the health profession under this Law. (2) A notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered under the corresponding prior Act as if the person were registered under this Law by the National Board established for the health profession. (3) However, subsection (2) applies only to the extent— (a) a notification about the person's behaviour could have been made under the corresponding prior Act; and (b) proceedings of that type could have been taken under the corresponding prior Act. (4) For the purposes of subsection (2), this Part (other than Division 2) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person. Note— This section is a Health Practitioner Regulation National Law provision. 139I Notifications under section 130 [NSW] (1) A notice under section 130 is taken to be a complaint both for the purposes of this Part and for the purposes of the Health Care Complaints Act 1993 (including sections 96 and 98 of that Act). (2) A National Board must, within 3 business days of receiving a notice under section 130 from a registered health practitioner or student to whom the following applies, provide the Council for the health profession in which the practitioner or student is registered with a copy of the notice— (a) for a registered health practitioner— (i) the relevant event the subject of the notice, or the matters to which the relevant event relates, occurred in or relates to New South Wales; or (ii) the principal place of practice of the registered health practitioner is in New South Wales; (b) for a student—the relevant event the subject of the notice, or the matters to which the relevant event relates, occurred in or relates to New South Wales. (3) In this section— relevant event has the same meaning as it has in section 130. [14] Part 8, Division 2 Insert after the heading to the Division— Note— This Division is a Health Practitioner Regulation National Law provision. [14AC] Section 142A Insert after section 142— 142A Employers having dual notification requirements [NSW] (1) If an employer is required to report the same conduct under section 142 and under section 117A of the Health Services Act 1997, compliance with either section, or with alternative reporting requirements approved by the Secretary, satisfies the requirements of both those sections. (2) If an employer is required to report the same conduct under section 142 and under section 99A of the Health Services Act 1997, compliance with either section, or with alternative reporting requirements approved by the Secretary, satisfies the requirements of both those sections. Note— This section is an additional New South Wales provision. [14A] Section 143A Insert after section 143— 143A Mandatory notifications [NSW] A mandatory notification is taken to be a complaint both for the purposes of this Part and for the purposes of the Health Care Complaints Act 1993 (including sections 96 and 98 of that Act). Note— This section is an additional New South Wales provision. [15] Part 8, Divisions 3–14B Omit Divisions 3–14. Insert instead— Division 3 Complaints [NSW] Subdivision 1 Making complaints [NSW] 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. (d) Impairment A complaint the practitioner has an impairment. (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 144A Grounds for complaint about student [NSW] The following complaints may be made about a student— (a) Offences A complaint the student has, either in this jurisdiction or elsewhere, been charged with an offence, or has been convicted of or made the subject of a criminal finding for an offence, that is punishable by 12 months imprisonment or more. (b) Impairment A complaint the student has an impairment. (c) Contravention of conditions A complaint that the student has contravened a condition of the student's registration or an undertaking given by the student to a National Board. 144B Who can make complaint [NSW] (1) Any person can make a complaint. (2) A complaint may also be made by a Council or the Secretary. 144C Complaints may be made to Council or Health Care Complaints Commission [NSW] A complaint may be made to a Council or the Commission. 144D Complaints to be in writing [NSW] (1) A complaint, other than a complaint made by a Council or the Secretary, must— (a) be in writing; and (b) contain particulars of the allegations on which it is founded. (2) A complaint need not be made in terms that are strictly consistent with the terminology of section 144 or 144A. (3) A Council or the Commission may consider and investigate a complaint that does not comply with the requirements of subsection (1) but must not refer the complaint under Subdivision 2 until the requirements are complied with. 144E Where to lodge complaints [NSW] (1) A complaint made to a Council must be lodged with the Executive Officer of the Council. (2) A complaint made to the Commission is, in accordance with section 9 of the Health Care Complaints Act 1993, to be lodged with the Commission. 144F Further particulars may be required from complainant [NSW] A Council or the Commission may require the complainant to provide further particulars of a complaint. 144G Council to notify Commission and National Boards of complaints [NSW] A Council must, as soon as practicable after a complaint is made to or by the Council about a registered health practitioner or student, notify the following persons about the complaint or matter— (a) the Commission; (b) the National Board for the health profession in which the registered health practitioner or student is registered. Subdivision 2 How complaints are to be dealt with [NSW] 145 Complaints to