Western Australia: Health Services Act 2016 (WA)

Western Australia Health Services Act 2016 Western Australia Health Services Act 2016 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Act binds the State 1 4. Objects of this Act 1 5. Medicare principles 1 6. Terms used 1 7. Meaning of health service and public health service 1 7A. What are successor health service providers for former public hospitals 1 8. Meaning of hospital and public hospital 1 9. Application of Act to hospital where mentally ill treated 1 Part 2 — The Minister 10. Ministerial Body established 1 11. Purpose and nature of Ministerial Body 1 12. Execution of documents by Ministerial Body 1 13. Minister's general powers 1 14. Minister's powers in relation to business arrangements 1 15. Delegation by Minister 1 16. Power to delegate under Health Legislation Administration Act 1984 excluded 1 17. Role of Mental Health Minister not affected 1 Part 3 — The Department CEO Division 1 — Role of Department CEO 18. Administration of this Act 1 19. Management of the WA health system 1 20. Functions of Department CEO 1 20A. Works and clinical commissioning 1 21. Powers of Department CEO 1 22. Staff who are not public servants 1 23. Department CEO may provide, or arrange for the provision of, certain services and facilities 1 24. Delegation by Department CEO 1 25. Power to delegate under Health Legislation Administration Act 1984 excluded 1 Division 2 — Policy frameworks 26. Department CEO may issue policy frameworks 1 27. Policy framework is binding 1 Division 3 — Department CEO directions 28. Department CEO may issue directions 1 29. Relationship between Department CEO direction and other instruments and directions 1 30. Department CEO direction is binding 1 31. Department CEO direction must be given to chief executive and to board 1 Part 4 — Health service providers Division 1 — Establishment 32. Establishment of health service provider 1 33. Status of health service provider 1 Division 2 — Functions and powers 34. Functions 1 35. Commercial and other activities 1 36. General powers 1 36A. Joint arrangements 1 36B. Power to borrow 1 36C. Guarantees 1 36D. Restricted power to enter arrangements on behalf of other health service providers or State 1 36E. Health service providers may provide services to each other 1 37. Restrictions on power to dispose of land 1 38. Transactions that require agreement or approval 1 39. Exemptions from section 38 1 40. Delegation 1 41. Execution of documents by health service provider 1 42. Contract formalities 1 Part 5 — Service agreements Division 1 — Preliminary 43. Terms used 1 Division 2 — Commission service agreements 44. Head agreement between Department CEO and Commission CEO 1 45. Commission CEO and health service provider may enter into service agreement 1 Division 3 — Service agreements generally 46. Department CEO and health service provider must enter into service agreement 1 47. Department CEO may decide on terms of service agreement 1 48. General provisions about service agreements 1 49. Term of service agreement 1 50. Procedure to amend service agreement 1 51. Service agreement may provide for Department CEO to carry out specified functions 1 52. Review and report on service agreements 1 53. Other agreements for provision of services 1 Part 6 — Fees and charges for health services and other matters 53A. Terms used 1 53B. What is compensation 1 54. Effect of National Health Agreement 1 55. Fees and charges for provision of health services 1 56. Minister may fix fees and charges for health services 1 57. Liability of persons for health service fees and charges 1 57A. Liability for, and right to recover, compensable charges for health services 1 57B. Liability for, and right to recover, compensable charges for former hospital services 1 57C. Waiving or refunding compensable charges payable under section 57A or 57B 1 57D. Recovering amounts from compensation payer in relation to compensable charges 1 58. Regulations about recovery of compensable charges 1 59. Fees and charges for other services, goods and facilities 1 Part 7 — Accountability and financial provisions Division 1 — Accountability 60. Minister may give directions 1 61. Minister to have access to information 1 Division 2 — Financial provisions 62. Application of Financial Management Act 2006 and Auditor General Act 2006 1 63. Health funding arrangements under the National Health Agreement 1 64. Health service provider account 1 65. Health service provider's funds 1 66. Notice of financial difficulty 1 66A. Department CEO response to notice of financial difficulty 1 66B. Minister's response to notice of financial difficulty 1 67. Department CEO's power to require financial information 1 68. Various documents exempt from duty 1 69. Local governments may fund health services 1 Part 8 — Administration of health service providers Division 1 — Governance 70. Health service provider may be governed by board or chief executive 1 Division 2 — Boards Subdivision 1 — Constitution and procedures 71. Constitution of health service provider's board 1 72. Chairperson and deputy chairperson 1 73. Deputy chairperson acting as chairperson 1 74. Alternate members 1 75. Remuneration and allowances 1 76. Term of office 1 76A. Removing board members from office 1 77. Casual vacancies 1 78. Leave of absence 1 78A. Delegation 1 Subdivision 2 — Duties and personal interests 79. Duties of board and committee members 1 80. Disclosure of material personal interest 1 81. Voting by interested member 1 82. Section 81 may be declared inapplicable 1 83. Quorum where section 81 applies 1 84. Minister may declare sections 81 and 83 inapplicable 1 Subdivision 3 — Meetings 85. Holding meetings 1 86. Quorum 1 87. Procedure at meetings 1 88. Voting 1 89. Holding meetings remotely 1 90. Resolution without meeting 1 91. Minutes 1 Subdivision 4 — Committees 92. Committees 1 93. Remuneration and allowances 1 Division 3 — Appointment of advisers to board, administrators, dismissal of board 94. Term used: adviser 1 95. Minister may appoint advisers to boards 1 96. Terms and conditions of appointment as adviser 1 97. Functions of advisers 1 98. Obligations of board in relation to advisers 1 99. Minister may appoint administrator for health service provider 1 100. Terms and conditions of appointment as administrator 1 101. Role of administrator 1 102. Minister may dismiss all members of board 1 Part 9 — Health service provider employment Division 1 — Preliminary 103. Term used: employing authority 1 104. Application of PSM Act 1 Division 2 — Health Executive Service Subdivision 1 — Purposes and composition of the Health Executive Service 104A. Purposes of Health Executive Service 1 105. Composition of Health Executive Service 1 Subdivision 2 — Chief executives 106. Chief executive 1 107. Functions and powers of chief executive 1 108. Appointment of chief executive 1 109. Procedure for appointment of chief executive 1 110. Remuneration and leave entitlements 1 111. Contract of employment 1 112. Appointment of health service provider employee or public service officer 1 113. Reappointment of chief executive 1 114. Performance criteria for chief executive and review of performance 1 115. Removal from office 1 116. Transfer from office 1 117. Acting chief executive 1 118. Employment of chief executive cannot be litigated and is not an industrial matter 1 119. Delegation 1 120. Modification of PSM Act delegation provision 1 Subdivision 3 — Health executives 121. Appointment of health executives 1 122. Reappointment of health executive 1 123. Transfer of health executives 1 123A. Acting health executives 1 124. Performance assessment 1 125. Termination of contract of employment by employing authority 1 Subdivision 4 — General provisions about chief executives and health executives 126. Terms used 1 127. Conditions of employment 1 128. Employment of chief executives and health executives governed by contract of employment 1 129. Content of contract of employment 1 130. Termination of contract of employment by executive 1 131. Notification or payment in lieu if executive is not reappointed 1 132. Right of return for certain executives 1 133. Compensation if executive has no right of return 1 134. Repayment of compensation 1 135. Election to take compensation instead of right of return 1 136. Secondment of executive 1 137. Vacation of office of executive 1 138. Operation of Division 1 Division 3 — Other staff 139. Division does not apply to Health Executive Service 1 140. Employees of health service provider 1 141. Transfers between health service providers or between health services providers and the Department 1 142. Secondment of employee 1 143. Contracts for services 1 Part 10 — Criminal and misconduct matters concerning employees 144. Terms used 1 145. Duty of staff member to report certain criminal conduct and misconduct findings 1 146. Further reporting and notification 1 147. Suspending employee if health practitioner registration is suspended or becomes conditional 1 148. Suspending employee pending decision in relation to serious offence 1 149. Salary during suspension 1 150. Disciplinary or improvement action where registration suspended or conditional or in case of serious offence 1 151. Protection of patients to be paramount consideration 1 152. Power of employing authority to take improvement or other action not limited 1 153. Appeals and referrals 1 Part 11 — Substandard performance and disciplinary matters Division 1 — General 154. Application and effect of Part 1 155. Application of Part in respect of former employees 1 156. Power of employing authority to take improvement or other action not limited 1 157. Inconsistent provisions, instruments and contracts 1 Division 2 — Substandard performance 158. What is substandard performance 1 159. Powers in relation to substandard performance 1 Division 3 — Disciplinary matters 160. Term used: lawful redeployment breach of discipline 1 161. What is a breach of discipline 1 162. Options in relation to suspected breach of discipline 1 163. Dealing with disciplinary matter 1 164. Action against employee pending decision on breach of discipline 1 165. Special disciplinary inquiries 1 166. Consequence of report of special disciplinary inquiry 1 167. Notification of outcome of disciplinary matter 1 168. Termination of other employment if employee is dismissed 1 169. Payment and recovery of fine 1 170. When disciplinary action can be taken 1 Division 4 — Industrial matters for purposes of Industrial Relations Act 1979 171. Certain decisions and findings are industrial matters for purposes of Industrial Relations Act 1979 1 Part 12 — Redeployment and redundancy of employees 174. Application of PSM Act Part 6 and regulations made for the purposes of that Part 1 174A. Lawful directions under applied provisions 1 Part 13 — Investigations, inspections and audits 175. Department CEO may investigate, inspect or audit health service provider 1 176. Procedures 1 177. Powers of Department CEO 1 178. Incriminating information or answers 1 179. Liability for complying with requirement 1 180. Failure to comply with requirement 1 181. False information 1 Part 14 — Inquiries 182. Terms used 1 183. Department CEO may conduct inquiry 1 184. Preliminary matters 1 185. Procedure 1 186. Hearings 1 187. Inquirer's powers 1 188. Failure to comply with requirements of notice 1 189. Incriminating answers or documents 1 190. Disruption of inquiry 1 191. False information 1 192. Protection for certain purposes 1 193. Reports 1 Part 15 — Changes to health service providers Division 1 — Transfers of property between health entities 194. Minister may order transfer of assets, rights or liabilities 1 Division 2 — Changes to, or abolition of, health service provider 195. Amendment of order establishing health service provider 1 196. Abolition, amalgamation, merger or division of health service provider 1 197. Order may include savings and transitional provisions 1 198. Change of name 1 199. Board of health service provider 1 200. Transfer of assets, rights and liabilities 1 201. Former accounts 1 Division 3 — General provisions 203. Registration of documents 1 204. Exemption from State tax 1 205. Transitional regulations 1 206. Effect of other instruments, rights and obligations 1 Part 16 — Control of conduct and traffic on health service provider land 207. Term used: health service provider land 1 208. Declaration of health service provider land 1 209. Regulations about conduct on, and use of, health service provider land 1 210. Regulations about management and control of traffic 1 211. Requirement to leave health service provider land 1 212. Proceedings and payment of penalties 1 Part 17 — Information Division 1 — General 213. Terms used 1 214. Health information management systems 1 215. Information held in health information management system 1 Division 2 — Disclosure of information 216. Collection, use and disclosure of information by Department CEO 1 217. Disclosure of information by health service provider 1 217A. Disclosure of health information in health information management system under legal process 1 218. Requesting information 1 Division 3 — Confidentiality 219. Confidentiality 1 220. Authorised collection, use or disclosure of information 1 221. Regulations relating to information 1 Part 18 — Miscellaneous Division 1 — Legal proceedings 222. Commencement of prosecutions 1 223. Appointments and signatures taken to be proved 1 224. Documentary evidence of certain matters 1 225. Evidence Act 1906 not affected 1 Division 2 — Miscellaneous 226. Protection from liability for persons exercising functions 1 227. Minister and health service providers not required to be registered 1 228. Modifications for purposes of Workers Compensation and Injury Management Act 2023 Part 7 Division 2 1 229. Laying documents before House of Parliament not sitting 1 230. Regulations — general power 1 231. Regulations may adopt codes or legislation 1 Division 3 — Review of Act 232. Review of Act 1 Part 19 — Transitional and savings matters Division 1 — Interpretation 233. Terms used 1 Division 2 — Boards and ministerial control 234. Boards abolished and Minister ceases to control hospitals 1 235. Immunity continues 1 Division 3 — Hospital boards' assets, rights and liabilities 236. Division does not apply to land reserved under the Queen Elizabeth II Medical Centre Act 1966 1 237. Transfer to health service provider or Ministerial Body 1 238. Transfer orders 1 239. Correction of errors in transfer orders 1 240. Reserves 1 241. Registration of documents 1 242. Hospital boards to complete necessary transactions 1 243. Exemption from State tax 1 244. Operating accounts of hospital boards 1 Division 4 — Staff 245. Employees of hospital boards 1 246. Preservation of rights 1 Division 5 — Continuation of certain things 247. Completion of things done 1 248. Continuing effect of things done 1 249. Agreements, instruments, proceedings and remedies generally 1 Division 6 — Quadriplegic Centre 250. Terms used 1 251. Quadriplegic Centre continued 1 252. Quadriplegic Centre board members 1 253. Staff members 1 254. Preservation of rights 1 255. Transfer of contracts for services 1 Division 7 — Other matters 256. Transitional regulations 1 257. Effect of other instruments, rights and obligations 1 258. Interpretation Act 1984 not affected 1 Part 20 — Transitional, saving and validation provisions for the Health Services Amendment Act 2023 Division 1 — Validation of acts done by or on behalf of the State 259. Terms used 1 260. Validation of pre‑commencement conduct in relation to health interests 1 261. Particular entities performing health services taken to be contracted health entities performing public health services 1 262. Validation of acts done by Department CEO or authorised person in relation to land not held by Minister or Ministerial Body 1 263. Validation of declarations of health service provider land under s. 208 1 264. Exemption from State tax 1 Division 2 — Transitional provisions about reserves on eligible Crown land 265. Terms used 1 266. Change of management body of Crown reserves in relation to eligible Crown land 1 267. Changing particular condition in particular reserves over eligible Crown land by order 1 268. Validity of leases, subleases and licences entered into by granting entity in relation to eligible Crown land 1 269. Exemption from State tax 1 270. Registration of documents 1 Notes Compilation table 1 Other notes 1 Defined terms Western Australia Health Services Act 2016 An Act to — * provide for health services in Western Australia; * make consequential amendments to the Hospitals and Health Services Act 1927 and other Acts; * repeal various enactments. Part 1 — Preliminary 1. Short title This is the Health Services Act 2016. 2. Commencement This Act comes into operation as follows — (a) sections 1 and 2 — on the day on which this Act receives the Royal Assent; (b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. 3. Act binds the State This Act binds the State and, so far as the legislative power of the State permits, the Crown in all its other capacities. 4. Objects of this Act The objects of this Act are as follows — (a) to promote and protect the health status of Western Australians; (b) to identify and respond to opportunities to reduce inequities in health status in the Western Australian community; (c) to provide access to safe, high quality, evidence‑based health services; (d) to promote a patient‑centred continuum of care, including patient engagement, in the provision of health services; (e) to coordinate the provision of an integrated system of health services and health policies in the WA health system; (f) to promote effectiveness, efficiency and innovation in the provision of health services and teaching, training, research and other services within the available financial and other resources; (g) to engage and support the health workforce in the planning and provision of health services and teaching, training, research and other services. 5. Medicare principles The provision of health services through the public hospital system of the State is based on the Medicare principles set out in the National Health Agreement. 6. Terms used In this Act, unless the contrary intention appears — accountable authority, of a health service provider, means the accountable authority of the health service provider under the Financial Management Act 2006 section 55; administrator means an administrator appointed under section 99; assets — (a) means any legal or equitable estates or interests (whether present or future, whether vested or contingent and whether personal or assignable) in property; and (b) includes money, securities, choses in action and documents; board means a board constituted under section 71; board governed provider means a health service provider specified under section 32(1)(d) to be a board governed provider; breach of discipline means a breach of discipline referred to in section 161; chief executive, in relation to a health service provider, means the person appointed as chief executive of the health service provider under section 108(1); chief executive governed provider means a health service provider specified under section 32(1)(d) to be a chief executive governed provider; clinical commissioning, of a facility, means doing anything necessary or desirable to prepare the facility to provide public health services; Commission CEO has the meaning given in section 43; committee means a committee appointed under section 92(1); contracted health entity means a non‑government entity that provides health services to the State under a contract or other agreement entered into with — (a) a health service provider; or (b) the Department CEO, the Minister or the Premier on behalf of the State; Department means the department of the Public Service principally assisting the Minister in the administration of this Act; Department CEO means the chief executive officer of the Department; Department CEO direction means a direction issued by the Department CEO under section 28; disciplinary action, in relation to a breach of discipline by an employee, means any one or more of the following — (a) a reprimand; (b) the imposition of a fine not exceeding an amount equal to the amount of remuneration received by the employee in respect of the last 5 days during which the employee was at work as an employee before the day on which the finding of the breach of discipline was made; (c) transferring the employee to another health service provider with the consent of the employing authority of that health service provider; (d) if the employee is not a chief executive, transferring the employee to another office in the health service provider in which the employee is employed; (e) reduction in the monetary remuneration of the employee; (f) reduction in the level of classification of the employee; (g) alteration of the employee's scope of practice or duties, or both; (h) dismissal; employee means a person employed in a health service provider and includes — (a) the chief executive of the health service provider; (b) a health executive employed in the health service provider; (c) a person employed in the health service provider under section 140; (d) a person seconded to the health service provider under section 136 or 142; employing authority has the meaning given in section 103; financial difficulty, for a health service provider, means the health service provider is unable to, or will be unlikely to be able to, satisfy any of its financial obligations from the financial resources available, or likely to be available, to it when the financial obligation is due; former Act means the Hospitals and Health Services Act 1927 as in operation immediately before 1 July 2016; former hospital service includes accommodation, maintenance, care, and all other services rendered, goods supplied or work done at, by or on behalf of a former public hospital under the former Act; former public hospital means any hospital that was — (a) conducted or managed by — (i) a board constituted under the former Act; or (ii) the Minister under the former Act; or (b) declared to be a public hospital under section 3 of the former Act; health executive means a person holding an office referred to in section 105(1)(b) but does not include a chief executive; Health Executive Service means the Health Executive Service mentioned in section 105; Health Practitioner Regulation National Law means the Health Practitioner Regulation National Law that applies in this or any other participating jurisdiction as defined in the Health Practitioner Regulation National Law (Western Australia) section 5; health professional means a person who is — (a) a health practitioner registered under the Health Practitioner Regulation National Law (Western Australia); or (b) in a class of persons prescribed for the purposes of this definition; health property means — (a) a health reserve; or (b) property vested in, or held by, the Minister or Ministerial body; health reserve means Crown land that is a reserve under the Land Administration Act 1997 section 41 in respect of which the Minister or Ministerial body is the management body for the land under section 46(1) of that Act; health service has the meaning given in section 7; health service area means a health service area declared under section 32(1)(a); health service provider means a health service provider established by an order made under section 32(1)(b); hospital has the meaning given in section 8; improvement action, in relation to an employee, means any one or more of the following actions by the employing authority of the employee for the purpose of improving the performance or conduct of the employee — (a) counselling; (b) training and development; (c) issuing a warning to the employee that certain conduct is unacceptable or that the employee's performance is not satisfactory; (d) any other action of a similar nature; industrial instrument means an award, industrial agreement or order made under the Industrial Relations Act 1979, including a General Order made under section 50 of that Act, whether made before, on or after the commencement of the Health Services Amendment Act 2023 section 4; joint arrangement means an arrangement — (a) entered into by the Minister or Ministerial Body with a health service provider for the purposes of the functions of the health service provider; and (b) involving — (i) the use of health property; or (ii) controlling and managing the use of health property; or (iii) sharing the use of health property for the purposes of the arrangement; liabilities means any liabilities, duties or obligations, whether actual, contingent or prospective, liquidated or unliquidated or whether owed alone or jointly or jointly and severally with any other persons; management body means a management body as defined in the Land Administration Act 1997 section 3(1); management order means a management order as defined in the Land Administration Act 1997 section 3(1); member, of a board, means a person appointed under section 71(1); Ministerial Body means the Health Ministerial Body established by section 10; National Health Agreement means — (a) the National Health Reform Agreement between the Commonwealth and the States that was agreed to by the Council of Australian Governments on 2 August 2011, as amended from time to time; or (b) any agreement that replaces or supersedes that agreement; patient means a person who has been, is being, or will or may be provided with health treatment or care; personal information has the meaning given in the Freedom of Information Act 1992 in the Glossary clause 1; policy framework means a policy framework issued under section 26; prescribed means prescribed by regulations made under this Act; property means property of every kind, whether real or personal, tangible or intangible, corporeal or incorporeal, and any interest in property; provide includes supply or carry out; PSM Act means the Public Sector Management Act 1994; public authority means any of these persons or bodies — (a) a department of the Public Service; (b) a State agency or instrumentality; (c) a local government, regional local government or regional subsidiary; (d) a body (whether corporate or unincorporate), or the holder of an office, post or position, established or continued for a public purpose under a written law; (e) a person or body, or a person or body within a class of persons or bodies, prescribed for the purposes of this paragraph; public health service has the meaning given in section 7(3); public health service facility means a facility at which public health services are provided; public hospital has the meaning given in section 8(6); relevant lands official means — (a) the Minister for Lands; or (b) the Registrar of Titles; or (c) the Registrar of Deeds and Transfers; or (d) any other person authorised by a written law to record and give effect to the registration of documents relating to transaction affecting any estate or interest in land; rights means any rights, powers, privileges or immunities, whether actual, contingent or prospective; section 194 transfer order has the meaning given in section 194(2); service agreement has the meaning given in section 43; staff member, of a health service provider, means — (a) an employee in the health service provider; (b) a person engaged under a contract for services by the health service provider; State tax includes — (a) duty chargeable under the Duties Act 2008; and (b) any other tax, duty, fee, levy or charge under a law of the State; successor health service provider, for a former public hospital, has the meaning given in section 7A(1); WA health system has the meaning given in section 19(1); WA health system‑wide plan means a plan developed by the Department CEO for the purposes of the WA health system. [Section 6 amended: No. 26 of 2016 s. 60; No. 1 of 2023 s. 4.] 7. Meaning of health service and public health service (1) A health service is a service for maintaining, improving, restoring or managing people's physical and mental health and wellbeing. (2) Without limiting subsection (1), a health service includes — (a) a service mentioned in subsection (1) that is provided to a person at a hospital or any other place; (b) a service dealing with public health, including a programme or activity for — (i) the prevention and control of disease or sickness; or (ii) the prevention of injury; or (iii) the protection and promotion of health; (c) a support service for a service mentioned in subsection (1); (d) the provision of goods for a service mentioned in subsection (1). (3) A public health service is a health service provided by — (a) a health service provider; or (b) the Department CEO; or (c) a contracted health entity under a contract or other agreement entered into with — (i) a health service provider; or (ii) the Department CEO, the Minister or the Premier on behalf of the State. (4) A public health service — (a) includes a health service declared under a regulation to be a public health service; and (b) does not include a health service declared under a regulation not to be a public health service. [Section 7 amended: No. 1 of 2023 s. 5.] 7A. What are successor health service providers for former public hospitals (1) The successor health service provider for a former public hospital is a health service provider that is declared by the Minister by order published in the Gazette to be — (a) the successor health service provider for the former public hospital; or (b) a successor health service provider for the former public hospital in relation to a matter stated in the order. (2) The Minister may, by order published in the Gazette, revoke or amend an order made under subsection (1). [Section 7A inserted: No. 1 of 2023 s. 6.] 8. Meaning of hospital and public hospital (1) In this section — day hospital facility means premises — (a) that are not attached to, or are set apart from, premises mentioned in subsection (4)(a); and (b) at which — (i) persons are provided with a health service determined by the Minister under subsection (2); or (ii) persons will be provided with a health service determined by the Minister under subsection (2); and (c) at which overnight accommodation is not provided; nursing post means a place — (a) at which — (i) a nurse is stationed and at which facilities exist for medical attention; or (ii) a nurse will be stationed and at which facilities will exist for medical attention; but (b) which is not normally used for overnight accommodation of patients. (2) The Minister may by written notice determine any health service for the purposes of the definition of day hospital facility in subsection (1). (3) A determination under subsection (2) may be made — (a) generally; or (b) in relation to specified health services or health services in a specified class; or (c) by reference to a declaration or determination made under any law of the State or the Commonwealth. (4) Each of the following premises is a hospital for the purposes of this Act — (a) premises where — (i) medical, surgical or dental treatment, or nursing care, is provided for ill or injured persons and at which overnight accommodation may be provided; or (ii) medical, surgical or dental treatment, or nursing care, will be provided for ill or injured persons and at which overnight accommodation will be provided; (b) a day hospital facility; (c) a nursing post. (5) In subsection (4) an ill person includes a person who has a mental illness (as defined in the Mental Health Act 2014 section 4) but this section does not affect any requirements under that Act that a person be detained at an authorised hospital (as defined in section 4 of that Act) or at another place. (6) Subject to any order made under subsection (8), each of the following premises is a public hospital for the purposes of this Act — (a) a hospital controlled or managed by a health service provider or the Department CEO; or (b) a hospital declared to be a public hospital under subsection (7). (7) The Minister may by order published in the Gazette declare any hospital to be a public hospital for the purposes of this Act. (8) The Minister may by order published in the Gazette declare that any hospital is not a public hospital for the purposes of this Act or the Private Hospitals and Health Services Act 1927. [Section 8 amended: No. 1 of 2023 s. 7.] 9. Application of Act to hospital where mentally ill treated Where a public hospital or part of a public hospital is an authorised hospital under the Mental Health Act 2014, this Act has effect in relation to the hospital or part of the hospital, and persons received or admitted into it, subject to the provisions of that Act. Part 2 — The Minister 10. Ministerial Body established (1) The Health Ministerial Body is established. (2) The Ministerial Body is a body corporate with perpetual succession. (3) Proceedings may be taken by or against the Ministerial Body in its corporate name. (4) The Ministerial Body must be governed by the Minister. (5) The Ministerial Body has the status, immunities and privileges of the Crown. 11. Purpose and nature of Ministerial Body (1) The Ministerial Body is established to provide a body corporate through which the Minister, or a person to whom a function of the Minister is delegated under section 15(1), can perform any of the Minister's functions under this Act that can more conveniently be performed by a body corporate than an individual. (2) Any acts or things done through the Ministerial Body as described in subsection (1) must be regarded as — (a) services under the control of the Department for the purposes of the Financial Management Act 2006 section 52; and (b) operations of the Department for the purposes of Part 5 of that Act. (3) Despite the employment under the PSM Act of ministerial officers for the purpose of assisting the Minister to perform functions that the Minister performs through the Ministerial Body, the Ministerial Body and those officers are not an organisation for the purposes of that Act. [Section 11 amended: No. 1 of 2023 s. 8.] 12. Execution of documents by Ministerial Body (1) The Ministerial Body must have a common seal. (2) A document is duly executed by the Ministerial Body if — (a) the common seal of the Ministerial Body is affixed to it in accordance with subsections (3) and (4); or (b) it is signed on behalf of the Ministerial Body by the Minister; or (c) it is signed on behalf of the Ministerial Body, as authorised under subsection (5), by the Department CEO or another person. (3) The common seal of the Ministerial Body must not be affixed to a document except as authorised by the Ministerial Body. (4) The common seal of the Ministerial Body must be affixed to a document in the presence of the Minister and the Minister must sign the document to attest that the common seal was so affixed. (5) The Ministerial Body may, by writing under its seal, authorise the Department CEO or another person to execute deeds or other documents on behalf of the Ministerial Body, either generally or subject to any conditions or restrictions specified in the authorisation. (6) A document purporting to be executed in accordance with this section must be presumed to be duly executed unless the contrary is shown. (7) A document executed by the Department CEO or another person under this section without the common seal of the Ministerial Body must not be regarded as a deed unless it is executed as a deed as authorised under subsection (5). (8) When a document is produced bearing a seal purporting to be the common seal of the Ministerial Body, it must be presumed that the seal is the common seal of the Ministerial Body unless the contrary is shown. (9) For the purposes of this Act, a facsimile of any of the following may be used — (a) the Ministerial Body's common seal; (b) the Minister's signature; (c) the signature of a person authorised under subsection (5) to execute deeds or other documents. (10) A deed or other document purporting to be endorsed with such a facsimile must be regarded as bearing the facsimile under subsection (9) unless the contrary is shown. 13. Minister's general powers (1) In this section — acquire includes taking on lease or licence or in any other manner in which an interest in property may be acquired; dispose of includes disposing of by way of lease or licence or in any other manner in which an interest in property may be disposed of. (2) For the purposes of this Act, the Minister may — (a) acquire, hold, manage, improve, develop, dispose of and otherwise deal in property; and (b) enter into a contract or other arrangement, including a joint arrangement or a contract or arrangement for the provision of services to or by a health service provider; and (c) do all things necessary or convenient for the purpose of carrying out joint arrangements; and (d) develop and turn to account any technology, software or other intellectual property and apply for, hold, exploit and dispose of any patent, patent rights, copyright or similar rights; and (e) provide and turn to account health education and training services; and (f) provide and turn to account advertising opportunities or opportunities to participate in arrangements in the nature of advertising or having a purpose similar to advertising; and (g) give effect to — (i) any agreement entered into by the Commonwealth with the State under the Health Insurance Act 1973 (Commonwealth); and (ii) the relevant guidelines (if any) formulated under that Act in relation to health services for the purposes of the agreement. (3) The power of the Minister to dispose of land does not extend to the transfer of Crown land for an estate in fee simple. (4) In exercising any power under this Part the Minister may act in conjunction with — (a) any person, firm or public authority; or (b) any department of the Public Service or any agency of the State or the Commonwealth. [Section 13 amended: No. 1 of 2023 s. 9.] 14. Minister's powers in relation to business arrangements (1) In this section — business arrangement means a company, a partnership, a trust, a joint venture, an arrangement or agreement for sharing profits or an arrangement or agreement for sponsorship; participate in a business arrangement includes form, promote, establish, enter into, manage, dissolve, wind‑up and do anything incidental to the business arrangement. (2) Subject to subsection (3), the Minister may, for the purposes of this Act — (a) participate in a business arrangement; and (b) acquire, hold and dispose of shares, units or other interests in or relating to a business arrangement. (3) Before the Minister exercises a power conferred by subsection (2) in relation to a business arrangement the Minister must — (a) notify the Treasurer of the proposal; and (b) seek the Treasurer's approval to it. (4) Subsection (3) does not apply if the terms and conditions of that business arrangement are terms and conditions approved by the Treasurer in respect of — (a) that business arrangement; or (b) business arrangements of that class; or (c) business arrangements generally. (5) The Treasurer may, by written notice given to the Minister, exempt any business arrangement or class of business arrangement from the operation of subsection (3). (6) An exemption may be unconditional or on specified conditions. (7) A notice under subsection (5) may be revoked or amended by the Treasurer by written notice given to the Minister. 15. Delegation by Minister (1) The Minister may delegate any function of the Minister under another provision of this Act to — (a) the Department CEO; or (b) a person employed or engaged in the Department; or (c) a staff member of a health service provider; or (d) a health service provider; or (e) a prescribed person or class of person. (2) Without limiting the functions that may be delegated under this section, they include functions that are to be exercised or performed in the course of governing the affairs of the Ministerial Body under section 10(4). (3) The delegation must be in writing signed by the Minister. (4) A person to whom a function is delegated under this section cannot delegate that function. (5) The exercise or performance by a person of a function that has been delegated to the person under this section is to be taken to be in accordance with the terms of the delegation unless the contrary is shown. (6) This section does not limit the ability of the Minister to perform a function through an officer or agent. [Section 15 amended: No. 1 of 2023 s. 10.] 16. Power to delegate under Health Legislation Administration Act 1984 excluded The Health Legislation Administration Act 1984 section 9 does not apply to or in relation to any function of the Minister under this Act. 17. Role of Mental Health Minister not affected Nothing in this Act affects the role of the Minister responsible for the administration of the Mental Health Act 2014 in the administration of that Act. Part 3 — The Department CEO Division 1 — Role of Department CEO 18. Administration of this Act Subject to the general control of the Minister and any directions or instructions given under the PSM Act section 32 by the Minister to the Department CEO, the Department CEO must carry out the administration of this Act. 19. Management of the WA health system (1A) In this section — system manager role means managing the WA health system to the extent necessary to provide stewardship, strategic leadership and direction and to allocate resources for the provision of public health services in the State. (1) The WA health system is comprised of — (a) the Department; and (b) health service providers; and (c) to the extent that contracted health entities provide health services to the State, the contracted health entities. (2) The Department CEO is responsible for carrying out the system manager role. (3) The relationship between the Department CEO and the health service providers is also governed by the service agreements between the Department CEO and each health service provider. [Section 19 amended: No. 1 of 2023 s. 11.] 20. Functions of Department CEO (1) The functions of the Department CEO include the following — (a) advising and assisting the Minister in the development and implementation of WA health system‑wide planning; (b) notifying the Minister of the amounts allocated to a health service provider under a service agreement; [(c) deleted] (d) promoting the effective and efficient use of available resources in the provision of public health services in the State; (e) carrying out certain functions of health service providers as specified in service agreements pursuant to section 51; (f) managing WA health system‑wide industrial relations on behalf of the State, including the negotiation of industrial agreements, and making applications to make or vary awards; (g) in accordance with regulations (if any) prescribed for this paragraph — (i) classifying and determining the remuneration of an office of health executive; and (ii) varying an office of health executive's classification or remuneration; [(h) deleted] (i) establishing the conditions of employment for employees in health service providers in accordance with the requirements of any binding industrial instrument; (j) arranging for the provision of health services by contracted health entities; (k) providing support services to health service providers; (l) overseeing, monitoring and promoting improvements in the safety and quality of health services provided by health service providers; (m) monitoring the performance of health service providers, and taking remedial action when performance does not meet the expected standard; (n) receiving and validating performance data and other data provided by health service providers; (na) collecting performance data and any other information from health service providers; (o) other functions given to the Department CEO under this or another Act. (2) The conferral of a function on the Department CEO does not override any other written law that relates to or affects the function. [Section 20 amended: No. 24 of 2020 s. 64; No. 1 of 2023 s. 12.] 20A. Works and clinical commissioning (1) The Department CEO may — (a) provide strategic leadership and direction in relation to capital works, maintenance works and clinical commissioning of facilities for the provision of public health services in the State; and (b) commission and deliver capital works or maintenance works for public health service facilities; and (c) require a health service provider to commission and deliver capital works or maintenance works for public health service facilities under a service agreement; and (d) carry out clinical commissioning of facilities; and (e) require a health service provider to carry out clinical commissioning of facilities under a service agreement. (2) This section does not override — (a) the Procurement Act 2020; and (b) any other written law that relates to or affects the commissioning or delivering of works or carrying out of clinical commissioning of facilities. [Section 20A inserted: No. 1 of 2023 s. 13.] 21. Powers of Department CEO The Department CEO may do anything necessary or convenient for the performance of the Department CEO's functions under this Act. 22. Staff who are not public servants (1) The Department CEO may, for and on behalf of the State, employ and manage persons in the Department for the purposes of this Act — (a) as wages staff; or (b) as other staff. (2) Subject to any relevant award or industrial agreement, the terms and conditions of employment under subsection (1)(a) or (b) are to be the terms and conditions that the Department CEO determines. (3) A person employed under subsection (1)(a) or (b) is not a person appointed under the PSM Act Part 3. (4) Nothing in this section limits — (a) the Department CEO's powers under the PSM Act; or (b) health service providers' employment powers under this Act. 23. Department CEO may provide, or arrange for the provision of, certain services and facilities (1) The Department CEO may, on behalf of the State, enter into a written contract with a non‑government entity for the provision of health services — (a) to the entity by the State; or (b) by the entity to the State. (2) The Department CEO may provide health services, other services or facilities for any or all of the following purposes — (a) to support the WA health system; (b) to support a health service provider; (c) to enable the co‑ordinated provision of health services involving more than one health service provider or on a State‑wide basis. (3) The Department CEO may determine the charges, if any, payable for any service or facilities provided by the Department CEO under subsection (2). (4) The Department CEO may arrange for a health service provider to use the services of any officer or employee (including by way of secondment to the health service provider) — (a) in the Public Sector; or (b) in a State agency or instrumentality; or (c) otherwise in the service of the State. (5) The Department CEO may arrange for a health service provider to make use of the facilities of a department of the Public Service or a State agency or instrumentality. (6) An arrangement under subsection (4) or (5) must be made on terms agreed to by the Department CEO, the relevant health service provider and the party providing the services or facilities. (7) Nothing in this section limits the Department CEO's other powers under this or any other written law. 24. Delegation by Department CEO (1) The Department CEO may delegate any function of the Department CEO under another provision of this Act to — (a) a person employed or engaged in the Department; or (b) a staff member of a health service provider. [(2) deleted] (3) The Department CEO must not delegate a function of the Department CEO under section 20(1)(f) to a staff member of a health service provider. (4) The delegation must be in writing signed by the Department CEO. (5) A person to whom a function is delegated under this section cannot delegate that function. (6) A person exercising or performing a function that has been delegated to the person under this section is to be taken to be in accordance with the terms of the delegation unless the contrary is shown. (7) This section does not limit the ability of the Department CEO to perform a function through an officer or agent. [Section 24 amended: No. 1 of 2023 s. 14.] 25. Power to delegate under Health Legislation Administration Act 1984 excluded The Health Legislation Administration Act 1984 section 9 does not apply to or in relation to any function of the Department CEO under this Act. Division 2 — Policy frameworks 26. Department CEO may issue policy frameworks (1) In this section — provision, of health services, includes the following — (a) matters that support the provision of health services, including — (i) the engagement of contracted health professionals; and (ii) private practice arrangements for health professionals; (b) the provision of health services by contracted health entities. (2) The Department CEO may issue policy frameworks to ensure consistent approaches to the following — (a) service coordination and integration, and efficiency and effectiveness, in the provision of health services — (i) between health service providers; and (ii) between health service providers, the Department and other service providers; (b) the making of service agreements, other than Commission service agreements made under section 45; (c) the provision of health services; (d) the performance and exercise of functions by health service providers; (e) financial management and business activities of health service providers, including — (i) engaging in commercial activities under section 35; and (ii) performing functions under section 36(3)(a), (b), (c), (e), (f), (g) and (h) and (5); and (iii) issuing a notice of financial difficulty to the Department CEO under section 66; and (iv) how a health service provider determines a fee or charge (other than a fee or charge fixed under an order under section 56); and (v) the fixing of fees and charges that health service providers may charge (other than fees and charges fixed under an order under section 56 or that are prescribed); (f) employment, and termination of employment, in health service providers; (g) the movement of employees between health service providers or between a health service provider and another employer — (i) by transfer for temporary or permanent employment; or (ii) on secondment or temporary redeployment; or (iii) for training; (h) the management and administration of the Health Executive Service; (i) the engagement of health professionals by health service providers and the conditions of engagement; [(j) deleted] (k) the management of information, including the way in which information is collected, used and disclosed; (ka) the management of land and other property held by health service providers; (l) any other matter in connection with the functions of the Department CEO under this Act in respect of which the Department CEO considers it necessary or desirable to issue a policy framework. (3) A policy framework may apply to any of the following — (a) the health service providers specified in the policy framework; (b) all health service providers; (c) a type of public health service facility specified in the policy framework; (d) a type of public health service specified in the policy framework; (e) a type of staff member of a health service provider. (4) The Department CEO may revoke or amend a policy framework. (5) The Department CEO must ensure that each policy framework is publicly available. [Section 26 amended: No. 1 of 2023 s. 15.] 27. Policy framework is binding (1) A policy framework is binding on each health service provider to which it applies or relates. (2) A policy framework that applies to a staff member of a health service provider is binding on the staff member and the health service provider. Division 3 — Department CEO directions 28. Department CEO may issue directions (1) The Department CEO may issue a direction requiring compliance in relation to — (a) a matter set out in a policy framework; or (b) any other matter in connection with the functions of the Department CEO under this Act in respect of which the Department CEO considers it necessary or desirable to issue directions. (2) A Department CEO direction under subsection (1)(a) may apply to any person or body to which the policy framework applies. (3) A Department CEO direction under subsection (1)(b) may apply to any person or body in relation to which the Department CEO performs or exercises functions. 29. Relationship between Department CEO direction and other instruments and directions (1) In this section — Department CEO direction includes a decision made in the exercise of a discretion under the direction. (2) A Department CEO direction does not override — (a) an industrial instrument; or (b) a Commissioner's instruction under the PSM Act; or (c) a direction of the Minister under section 60; or (d) any other prescribed instrument. (3) If a Department CEO direction is inconsistent with a direction of a responsible authority given to a chief executive under the PSM Act section 32, the Department CEO direction prevails over the responsible authority's direction. [Section 29 amended: No. 1 of 2023 s. 16.] 30. Department CEO direction is binding (1) A Department CEO direction is binding on each person or body to which it applies. (2) A Department CEO direction that applies to a staff member of a health service provider is binding on the staff member and the health service provider. 31. Department CEO direction must be given to chief executive and to board The Department CEO must give a Department CEO direction to — (a) each person or body to which it applies; and (b) the board of any board governed provider to which it relates or applies; and (c) the chief executive of any chief executive governed provider to which it relates or applies. Part 4 — Health service providers Division 1 — Establishment 32. Establishment of health service provider (1) The Minister may, by order published in the Gazette — (a) declare any one or more of the following to be a health service area — (i) a part of the State; (ii) a public hospital; (iii) a public health service facility; (iv) a public health service; and (b) establish a health service provider for the health service area; and (c) assign a corporate name to the health service provider; and (d) specify whether the health service provider is to be a board governed provider or a chief executive governed provider. (2) A health service provider is a body corporate with perpetual succession. (3) Proceedings may be taken by or against a health service provider in its corporate name. 33. Status of health service provider A health service provider is an agent of the State and has the status, immunities and privileges of the State. Division 2 — Functions and powers 34. Functions (1) A health service provider's main function is to provide — (a) health services stated in the service agreements for the health service provider; and (b) teaching, training and research that supports the provision of health services as agreed with the Department CEO; and (c) any other services agreed with the Department CEO. (2) A health service provider also has the following functions — (a) to ensure the operations of the health service provider are carried out efficiently, effectively and economically; (b) to enter into, and comply with, service agreements with the Department CEO and, if appropriate, with the Commission CEO; (ba) to do any or all of the following under a service agreement for the purposes of section 20A — (i) commission and deliver capital works or maintenance works; (ii) carry out clinical commissioning of facilities; (c) to comply with the policy frameworks and Department CEO directions that apply or relate to the health service provider; (d) to contribute to the development of, and implement, WA health system‑wide plans that apply to the health service provider and undertake further service planning that aligns with the WA health system‑wide plans; (e) to prepare and keep under review strategies — (i) for the provision of health services by the health service provider; and (ii) to promote consultation with health professionals working in the health service provider; and (iii) to promote consultation with health consumers and community members about the provision of health services by the health service provider; (f) to establish an efficient and effective procedure for dealing with complaints about the provision of health services by the health service provider; (g) to report to the Department CEO on the provision of health services by the health service provider; (h) to monitor and improve the quality of health services provided by the health service provider; (i) to develop and implement corporate and clinical governance arrangements for the health service provider; (j) to maintain land, buildings and other assets controlled and managed by the health service provider; (k) to cooperate with other providers of health services, including providers of primary health care, in planning for, and providing, health services; (l) subject to any Department CEO direction and the Procurement Act 2020, to arrange for the provision of health services by contracted health entities; (m) to manage the performance of the health service provider against the performance measures and operational targets stated in the service agreements; (n) to provide performance data, other data and any other information the Department CEO may require to the Department CEO; (o) other functions imposed under this Act or another written law; (p) other functions necessary or incidental to the functions mentioned in paragraphs (a) to (o). (3) In subsection (2)(i) — clinical governance arrangements means policies, processes and systems for maintaining and improving — (a) patient safety, quality and care; and (b) the effectiveness and dependability of services provided by a health service provider. [Section 34 amended: No. 24 of 2020 s. 65; No. 1 of 2023 s. 17.] 35. Commercial and other activities (1) Subject to any relevant policy framework, a health service provider may earn revenue by engaging in commercial activities that are not inconsistent with, and do not have an adverse effect on, the performance of its other functions. (2) A health service provider may provide any facility under its control or management for the use of — (a) a health professional to carry out a health service or other service; or (b) a person that engages in community work or conducts a service that has a community or charitable purpose. (3) The provision of a facility under subsection (2) may be on such terms and conditions, including the payment of charges, as the health service provider determines from time to time. (4) When engaging, or proposing to engage, in an activity under this section, a health service provider must ensure that — (a) the activity is consistent with its service agreements and any relevant policy framework; and (b) the activity is likely to be of benefit to the State. (5) A health service provider may perform its functions under this section in the State or elsewhere. (6) A health service provider is taken to be expressly authorised by Parliament for the purposes of the State Trading Concerns Act 1916 section 4(2). [Section 35 amended: No. 1 of 2023 s. 18.] 36. General powers (1) In this section — acquire includes taking on lease or licence or in any other manner in which an interest in property may be acquired; business arrangement means a company, a partnership, a trust, a joint venture or an arrangement or agreement for sharing profits; dispose of includes disposing of by way of a lease or licence or in any other manner in which an interest in property may be disposed of; participate in a business arrangement includes form, promote, establish, enter into, manage, dissolve, wind‑up and do anything incidental to the business arrangement. (2) Subject to sections 37 and 38 and any relevant policy framework, a health service provider has all the powers it needs to perform its functions. (3) Subject to sections 37 and 38 and any relevant policy framework, a health service provider may, for the purpose of performing any of its functions — (a) acquire, hold, manage, improve, develop or dispose of and otherwise deal in property; (b) enter into a contract or other arrangement, including a contract or arrangement for the provision of services to the health service provider; (c) participate in any business arrangement and acquire, hold and dispose of, shares, units, or other interests in, or relating to a business arrangement; (d) produce and publish information on matters relating to its functions, including results for research and development undertaken by the health service provider, alone or collaboratively; (e) produce and deal in any equipment, facilities or system associated with the performance of its functions; (f) develop and turn to account any technology, software or other intellectual property that relates to its functions and, for that purpose, apply for, hold, exploit and dispose of any patent, patent rights, copyright or similar rights; (g) sell advertising opportunities and enter into arrangements for sponsorship; (h) use its expertise and resources to provide consultancy, advisory or other services for profit. (4) Subsection (3) does not limit subsection (2) or any of the health service provider's other powers. (5) Subject to sections 37 and 38 and any relevant policy framework, the health service provider may — (a) make any gift or act of grace payment — (i) for a charitable purpose or any other purpose of benefit to the community or a section of the community; or (ii) that it considers to be in the health service provider's interest; or [(b) deleted] (c) accept any gift, bequest or other payment if it is absolute, or subject to conditions that the health service provider would be able to satisfy. [Section 36 amended: No. 1 of 2023 s. 19.] 36A. Joint arrangements (1) A health service provider may enter into a joint arrangement with the Minister or Ministerial Body in relation to health property. (2) If a health service provider enters into a joint arrangement in relation to health property, the health service provider may deal with the property the subject of the joint arrangement, including by entering into leases, subleases, or licences in relation to the property, on behalf of — (a) if the health property is a health reserve — the management body of the health reserve; or (b) in any other case — the Minister or Ministerial body in which the health property is vested or held. (3) A health service provider dealing with health property under subsection (2) is not valid if it is inconsistent with — (a) the joint arrangement; or (b) any written law that relates to or affects how the property may be dealt with; or (c) if the health property is a lease — the lease; or (d) if the health property is a health reserve — (i) the Land Administration Act 1997; or (ii) the management order in relation to the reserve, or a condition imposed by the order. Example for paragraph (d)(ii): If the management order does not empower the management body to enter into a lease, the health service provider cannot enter into a lease in relation to the health reserve. (4) A valid dealing with health property by a health service provider in accordance with the joint arrangement is — (a) taken to be done by the Minister or Ministerial body that entered into the joint arrangement with the health service provider; and (b) binding on the Minister or Ministerial body and the health service provider the subject of the joint arrangement. [Section 36A inserted: No. 1 of 2023 s. 20.] 36B. Power to borrow (1) A health service provider may, with the approval of the Treasurer — (a) borrow or re‑borrow money; or (b) otherwise arrange for financial accommodation to be extended to the health service provider. (2) The Minister may, by order made with the consent of the Treasurer and published in the Gazette, exempt a transaction or class of transactions from the requirement to obtain the approval of the Treasurer under subsection (1). (3) The exemption in the order made under subsection (2) may be — (a) unconditional; or (b) subject to the conditions specified in the order; or (c) apply in the circumstances specified in the order. (4) An o