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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Health Legislation Amendment Bill 2018
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Health Administration Act 1982 No 135 3
Schedule 2 Amendment of Health Services Act 1997 No 154 11
Schedule 3 Amendment of Human Tissue Act 1983 No 164 13
Schedule 4 Amendment of Mental Health Act 2007 No 8 14
Schedule 5 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10 17
Schedule 6 Amendment of Government Sector Employment Act 2013 No 40 19
Schedule 7 Amendment of Government Information (Public Access) Act 2009
No 52 20
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2018
New South Wales
Health Legislation Amendment Bill 2018
Act No , 2018
An Act to make miscellaneous amendments to various Acts that relate to health and associated
matters.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Health Legislation Amendment Bill 2018 [NSW]
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Health Legislation Amendment Act 2018.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as provided by
subsection (2).
(2) Schedules 1, 4, 5 and 7 commence on a day or days to be appointed by proclamation.
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Health Legislation Amendment Bill 2018 [NSW]
Schedule 1 Amendment of Health Administration Act 1982 No 135
Schedule 1 Amendment of Health Administration Act 1982
No 135
[1] Part 2, Division 6C Root cause analysis teams
Omit the Division.
[2] Part 2A
Insert after Part 2:
Part 2A Response to incidents
Division 1 Preliminary
21A Definitions
In this Part:
assessor means an assessor appointed under Division 2.
health practitioner has the same meaning it has in the Health Practitioner
Regulation National Law (NSW).
health service includes any administrative or other service related to a health
service.
impairment has the same meaning it has in the Health Practitioner Regulation
National Law (NSW).
incident reviewer--see section 21L.
performance or impairment issue, in relation to a health practitioner, means:
(a) professional misconduct, unsatisfactory professional conduct or
unsatisfactory professional performance by the health practitioner, or
(b) the health practitioner suffering from an impairment.
professional misconduct and unsatisfactory professional conduct have the
same meanings as they have in Part 8 of the Health Practitioner Regulation
National Law (NSW).
relevant health services organisation--see section 21B.
reportable incident means an incident of a type prescribed by the regulations
or set out in a document adopted by the regulations.
serious adverse event review means a root cause analysis or any other type of
review prescribed by the regulations.
serious adverse event review team means a serious adverse event review team
appointed under Division 3.
unsatisfactory professional performance means professional performance
that is unsatisfactory within the meaning of Division 5 of Part 8 of the Health
Practitioner Regulation National Law (NSW).
21B Incidents to which Part applies
This Part applies to the following incidents:
(a) an incident involving the provision of a health service by a local health
district, in which case the relevant health services organisation in
respect of the incident is the local health district,
(b) an incident involving the provision of a health service by a statutory
health corporation prescribed by the regulations, in which case the
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Health Legislation Amendment Bill 2018 [NSW]
Schedule 1 Amendment of Health Administration Act 1982 No 135
relevant health services organisation in respect of the incident is the
statutory health corporation,
(c) an incident involving the provision of a health service by an affiliated
health organisation prescribed by the regulations, in which case the
relevant health services organisation in respect of the incident is the
affiliated health organisation,
(d) an incident involving the provision of a health service under Chapter 5A
(Ambulance services) of the Health Services Act 1997 or the provision
of a service under Part 1A of Chapter 10 of that Act, in which case the
relevant health services organisation in respect of the incident is the
Health Secretary.
Division 2 Preliminary risk assessment
21C Appointment of assessors to assess incidents
(1) When an incident is reported to the relevant health services organisation in
respect of the incident, the organisation must appoint one or more assessors to
carry out a preliminary risk assessment of the incident if:
(a) it is of the opinion that the incident is (or may be) a reportable incident,
or
(b) the incident is not a reportable incident but may be the result of a serious
systemic problem and the organisation is of the opinion that a
preliminary risk assessment of the incident should be carried out.
(2) Assessors may be appointed in response to a particular incident or otherwise.
(3) The persons appointed as assessors in respect of an incident must (subject to
the regulations) be persons that the relevant health services organisation
reasonably considers can properly carry out a preliminary risk assessment of
the incident.
21D Functions of assessors in relation to incidents
An assessor is to carry out a preliminary risk assessment of the incident and is
to provide advice (in writing or otherwise) to the relevant health services
organisation to assist the organisation in understanding the events comprising
the incident and the measures required to appropriately manage the incident
and remove or mitigate any risk.
21E Immediate notification if person at risk
An assessor must immediately advise the relevant health services organisation
in writing if the assessor is of the opinion that the incident in respect of which
the assessor was appointed raises matters that indicate a problem giving rise to
a risk of serious or imminent harm to a person.
21F Outcome of assessment of incidents
(1) A relevant health services organisation may only disclose an advice of an
assessor or any information obtained from the advice as follows:
(a) to provide the advice to the Health Secretary,
(b) to notify any person or body authorised under section 23 of the incident,
(c) to advise a serious adverse event review team appointed to carry out a
serious adverse event review of the incident to which the advice relates,
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Schedule 1 Amendment of Health Administration Act 1982 No 135
(d) to provide relevant information to a patient involved in the incident, a
family member or carer of the patient or a person nominated by any such
patient, family member or carer,
(e) to a law enforcement agency or regulatory body,
(f) in any other manner as may be prescribed by the regulations.
(2) A relevant health services organisation must take reasonable steps to not
disclose information that identifies a person (other than the patient involved in
the incident) when it provides information under subsection (1) (d).
Division 3 Serious adverse event review
21G Appointment of team to review incidents
(1) Following the preliminary risk assessment of an incident, the relevant health
services organisation in respect of the incident must appoint one or more
persons as a serious adverse event review team to carry out a serious adverse
event review of the incident if:
(a) the incident is a reportable incident, or
(b) the incident is not a reportable incident but may be the result of a serious
systemic problem and the organisation is of the opinion that a serious
adverse event review of the incident should be carried out.
(2) Despite subsection (1), a relevant health services organisation may, but is not
required to, appoint a serious adverse event review team to carry out a serious
adverse event review of an incident:
(a) in circumstances prescribed by the regulations, or
(b) if the Health Secretary has informed the organisation that the Health
Secretary intends to conduct a review of, or an inquiry into, the incident.
(3) The persons appointed as a serious adverse event review team in respect of an
incident must (subject to the regulations) be persons that the relevant health
services organisation reasonably considers can properly carry out a serious
adverse event review of the incident.
(4) The relevant health services organisation is to cause a written record to be kept
of the persons appointed as a serious adverse event review team.
(5) The Health Secretary may issue directions setting out the type of serious
adverse event review, and the manner in which the serious adverse event
review is to be carried out, in respect of an incident or a class of incidents.
21H Serious adverse event review of incident
(1) A serious adverse event review team is to carry out a serious adverse event
review of the incident in respect of which it was appointed.
(2) A serious adverse event review team must, on completion of the serious
adverse event review of an incident, provide a report in writing to the relevant
health services organisation that sets out a description of the incident and
details of the following findings identified by the team:
(a) how the incident occurred,
(b) any factors that caused or contributed to the incident,
(c) any procedures, practices or systems that could be reviewed (areas for
review findings) for the purposes of a recommendations report.
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Schedule 1 Amendment of Health Administration Act 1982 No 135
(3) After considering the findings of the serious adverse event review team, the
relevant health services organisation may (and must if the findings include
areas for review findings) direct the team to prepare a report (a
recommendations report) setting out its recommendations (if any) as to the
need for changes or improvements in relation to a procedure, practice or
system (including clinical redesign) arising out of the incident.
(4) The relevant health services organisation may, for the purposes of the
preparation of a recommendations report, appoint additional persons to the
serious adverse event review team.
(5) The serious adverse event review team must provide the recommendations
report in writing to the relevant health services organisation.
(6) Subject to section 21O (Information not to be given in evidence), the contents
of a report of a reviewer under this section may be disclosed to any person and
used for any purpose.
21I Immediate notification if person at risk
A serious adverse event review team must immediately advise the relevant
health services organisation in writing if it is of the opinion that the incident in
respect of which it was appointed raises matters that indicate a problem giving
rise to a risk of serious or imminent harm to a person.
21J Notification about performance or impairment of health practitioner
(1) A serious adverse event review team must advise the relevant health services
organisation in writing as soon as practicable once it is of the opinion that the
incident in respect of which it was appointed raises matters that may involve a
performance or impairment issue (other than unsatisfactory professional
performance) in relation to a health practitioner.
(2) A serious adverse event review team may advise the relevant health services
organisation in writing if it is of the opinion that the incident raises matters that
may involve unsatisfactory professional performance by a health practitioner.
(3) A written advice under this section must disclose the identity of the health
practitioner to whom the notification relates (regardless of whether the health
practitioner consents to the disclosure) and the nature of the concern, and
specify whether the notification relates to:
(a) professional misconduct, unsatisfactory professional conduct or
unsatisfactory professional performance by the health practitioner, or
(b) the health practitioner suffering from an impairment.
21K Discontinuing serious adverse event review
(1) The relevant health services organisation may authorise a serious adverse
event review team to discontinue taking any further steps in relation to a
serious adverse event review of an incident:
(a) if advice has been provided to the organisation under section 21J
(Notification about performance or impairment of health practitioner)
and the organisation is of the opinion that the incident was substantially
caused by a performance or impairment issue in relation to a health
practitioner and the team is not likely to identify any other root causes,
contributory factors or system improvements, or
(b) in circumstances prescribed by the regulations.
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Schedule 1 Amendment of Health Administration Act 1982 No 135
(2) A serious adverse event review team that is authorised under this section may,
if it considers it to be appropriate, determine to take no further steps in relation
to the serious adverse event review and in such a case may discontinue the
review.
Division 4 Incident reviewers
21L Meaning of "incident reviewer"
In this Part:
incident reviewer means a member of a serious adverse event review team or
an assessor.
21M Restrictions on incident reviewers
(1) An incident reviewer does not have authority to carry out an investigation
relating to the competence of an individual in providing services.
(2) Except as otherwise provided by or under this Part, an advice or report
furnished by a serious adverse event review team must not disclose:
(a) the name or address of an individual who is a provider or recipient of
services unless the individual has consented in writing to that
disclosure, or
(b) as far as is practicable, any other material that identifies, or may lead to
the identification of, such an individual.
(3) An incident reviewer is to act in a fair and reasonable manner in the exercise
of his or her functions as an incident reviewer.
21N Disclosure of information
A person who is or was an incident reviewer must not make a record of, or
divulge or communicate to any person, any information acquired by the person
as such a reviewer, except:
(a) for the purpose of exercising the functions of an incident reviewer, or
(b) for the purpose of any advice provided as an incident reviewer, or
(c) for the purpose of any advice or report under this Part, or
(d) in accordance with the regulations.
Maximum penalty: 50 penalty units.
21O Information not to be given in evidence
(1) A person is neither competent nor compellable to produce any document or
disclose any communication (or to disclose any information that the person
obtained from any such document or communication) to a court, tribunal,
board, person or body if the document was prepared, or the communication
was made, for the dominant purpose of the exercise of a function under this
Part by an incident reviewer.
(2) This section does not apply to a requirement made:
(a) in proceedings in respect of any act or omission by an incident reviewer,
or
(b) by a person or body who has been approved by the Health Secretary to
carry out a review or audit of an assessment or review by an incident
reviewer.
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Schedule 1 Amendment of Health Administration Act 1982 No 135
21P Advice and reports not to be admitted in evidence
(1) Evidence as to the contents of an advice or report of an incident reviewer
cannot be adduced or admitted in any proceedings.
(2) Subsection (1) does not apply to proceedings in respect of any act or omission
by an incident reviewer.
21Q Personal liability of incident reviewers
(1) Anything done by an incident reviewer or any person acting under the
direction of an incident reviewer, in good faith for the purposes of the exercise
of the incident reviewer's functions, does not subject the incident reviewer or
person personally to any action, liability, claim or demand.
(2) Without limiting subsection (1), an incident reviewer has qualified privilege in
proceedings for defamation in respect of:
(a) any statement made orally or in writing in the exercise of the functions
of an incident reviewer, or
(b) the contents of any advice or report or other information published by
an incident reviewer.
(3) An incident reviewer is, and is entitled to be, indemnified in respect of any
costs incurred in defending proceedings in respect of a liability against which
the reviewer is protected by this section by the relevant health services
organisation in respect of the incident for which the incident reviewer was
appointed.
Division 5 Miscellaneous
21R When incident is reported to relevant health services organisation
(1) An incident is reported to a relevant health services organisation (other than
the Health Secretary) when the incident is reported to:
(a) the chief executive of the organisation, or
(b) if the incident reporting procedures of the organisation specify another
person to whom incidents are to be reported--that other person.
(2) An incident is reported to the Health Secretary when it is reported to the Health
Secretary or to a person nominated by the Health Secretary for the purposes of
this Part.
21S Regulations for purposes of Part
The regulations may make provision for or with respect to the following:
(a) the appointment of persons as members of a serious adverse event
review team or as assessors,
(b) the functions of incident reviewers and the manner in which they are to
exercise those functions,
(c) the procedures of a preliminary risk assessment or a serious adverse
event review,
(d) permitting or requiring incident reviewers or a relevant health services
organisation to make specified information (including personal
information and health information) available to the public,
(e) permitting or requiring incident reviewers to furnish reports concerning
their activities to the Minister and to relevant health services
organisations,
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Schedule 1 Amendment of Health Administration Act 1982 No 135
(f) the carrying out of reviews or audits of any preliminary risk assessment
or serious adverse event review.
[3] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 13 (1):
any Act that amends this Act
[4] Schedule 2, Part 4
Insert after Part 3:
Part 4 Provisions consequent on enactment of Health
Legislation Amendment Act 2018
20 Definition
In this Part:
amending Act means the Health Legislation Amendment Act 2018.
21 Existing incidents
Part 2A of this Act extends to an incident that occurred before the
commencement of that Part.
22 Existing RCA teams
Despite clause 21, Part 2A of this Act does not extend to an incident if an RCA
team has been appointed in relation to the incident before the commencement
of that Part and in such a case Division 6C of Part 2, as in force immediately
before its repeal, continues to apply to and in respect of the RCA team.
23 Disclosure of information
Section 21N extends to a person who was a member of an RCA team before
the commencement of that section in the same way as it applies to an incident
reviewer but only in respect of information that the person was not able to
make a record of, or divulge or communicate to any person under section 20P
immediately before the repeal of that section.
24 Information not to be given in evidence
Section 21O extends to:
(a) a document that was prepared, or a communication that was made,
before the commencement of that section for the dominant purpose of
the conduct of an investigation by an RCA team, and
(b) proceedings that are pending on that commencement.
25 Notifications and reports of former RCA teams not to be admitted in evidence
Section 21P extends to:
(a) a notification that was given, or a report that was prepared, before the
commencement of that section by an RCA team, and
(b) proceedings that are pending on that commencement.
26 Personal liability of members of former RCA teams
Section 21Q extends to a person who was a member of an RCA team before
the commencement of that section or to a person acting under the direction of
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Health Legislation Amendment Bill 2018 [NSW]
Schedule 1 Amendment of Health Administration Act 1982 No 135
any such person in the same way as that section applies to an incident reviewer
or any person acting under the direction of an incident reviewer.
Page 10
Health Legislation Amendment Bill 2018 [NSW]
Schedule 2 Amendment of Health Services Act 1997 No 154
Schedule 2 Amendment of Health Services Act 1997 No 154
[1] Section 28 Functions of local health district boards
Insert at the end of the section:
(2) A local health district board must not exercise a function in a way that is
inconsistent with the exercise of a function by the Health Secretary (including
a function that has been delegated to the Health Secretary).
[2] Section 67C Ambulance Service Advisory Board
Omit "Ambulance Services Advisory Council" from section 67C (1).
Insert instead "Ambulance Service Advisory Board (the Advisory Board)".
[3] Section 67C (2), (5), (6) and (7)
Omit "Advisory Council" wherever occurring. Insert instead "Advisory Board".
[4] Section 67C (2) (b)
Omit "Minister". Insert instead "Health Secretary".
[5] Section 67C (3)
Omit section 67C (3) and (4). Insert instead:
(3) The persons appointed as members of the Advisory Board are to be persons
who, in the opinion of the Health Secretary, have expertise and experience in
one or more of the following areas:
(a) health management,
(b) financial management,
(c) clinical paramedic services or other health services,
(d) business management.
[6] Section 121H Termination of employment
Omit section 121H (5). Insert instead:
(5) The employer of a NSW Health Service senior executive may not terminate
the employment of the executive under this section or section 68 (2) of the
Government Sector Employment Act 2013 unless the employer is, or has the
concurrence of, the Health Secretary.
[7] Schedule 6, heading
Omit "Ambulance Services Advisory Council".
Insert instead "Ambulance Service Advisory Board".
[8] Schedule 6
Omit "Advisory Council" wherever occurring. Insert instead "Advisory Board".
[9] Schedule 6
Omit "Minister" wherever occurring. Insert instead "Health Secretary".
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Health Legislation Amendment Bill 2018 [NSW]
Schedule 2 Amendment of Health Services Act 1997 No 154
[10] Schedule 6, clause 4
Omit the clause. Insert instead:
4 Term of office
An appointed member holds office, subject to this Schedule, for such period
not exceeding 4 years as may be specified in the instrument of appointment of
the member, but is eligible (if otherwise qualified) for re-appointment.
[11] Schedule 6
Omit "the Council" wherever occurring. Insert instead "the Board".
[12] Schedule 7 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Provisions consequent on enactment of Health
Legislation Amendment Act 2018
Existing members of Ambulance Services Advisory Council
A person who is a member of the Ambulance Services Advisory Council does
not cease to be a member on the commencement of Schedule 2 to the Health
Legislation Amendment Act 2018 (the amending Act) despite any of the
following:
(a) the renaming of that Council as the Ambulance Service Advisory
Board,
(b) the person having been appointed by the Minister rather than the Health
Secretary,
(c) the person not having any of the expertise or experience required by
section 67C (3), as substituted by the amending Act.
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Health Legislation Amendment Bill 2018 [NSW]
Schedule 3 Amendment of Human Tissue Act 1983 No 164
Schedule 3 Amendment of Human Tissue Act 1983 No 164
[1] Section 4 Definitions
Omit the definition of Director-General from section 4 (1). Insert in alphabetical order:
Health Secretary means the Secretary of the Ministry of Health.
[2] Sections 4 (1) (definition of "governing body"), 21C (1) and (5), 27A, 33A (1) and (2),
33I (2), (3) and (7) (b), 33J (1), (3) and (5) and 37A (2)-(6)
Omit "Director-General" wherever occurring. Insert instead "Health Secretary".
[3] Sections 4 (7) (b) and 21Z (2) (b)
Omit "Director-General" wherever occurring. Insert instead "Secretary".
[4] Section 27 Effect of authority under this Part
Omit section 27 (1A). Insert instead:
(1A) Without limiting subsection (1), an authority under this Part which authorises
the removal of tissue for one or more of the following purposes (whether or
not it authorises the removal of tissue for any other purpose) is sufficient
authority for a person other than a medical practitioner to remove tissue from
the body of the deceased person referred to in the authority for that purpose if
the person removing the tissue is appointed, in writing, by the Health Secretary
to remove tissue under this section for that purpose and is not the person by
whom the authority was given:
(a) corneal transplantation,
(b) skin transplantation,
(c) the transplantation of cardiovascular tissue,
(d) the transplantation of musculoskeletal tissue,
(e) any other purpose prescribed by the regulations.
[5] Section 39 Regulations
Omit "Director-General of the Department of Health" from section 39 (1A) (c).
Insert instead "Health Secretary".
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Health Legislation Amendment Bill 2018 [NSW]
Schedule 4 Amendment of Mental Health Act 2007 No 8
Schedule 4 Amendment of Mental Health Act 2007 No 8
[1] Section 37 Reviews of involuntary patients by Tribunal
Insert after section 37 (3):
(3A) The Tribunal may review the case of an involuntary patient in the absence of
the patient if:
(a) the authorised medical officer applies to have the review carried out in
the absence of the patient because the patient has refused to attend the
review or because the officer is of the opinion that the patient is too
unwell to attend the review, and
(b) the Tribunal is satisfied that the patient has refused to attend or is too
unwell to attend and is unlikely to be well enough to attend within a
reasonable period, and
(c) the Tribunal is satisfied that any representative of the patient (being an
Australian legal practitioner, or other person approved by the Tribunal,
who is representing the patient for the purposes of the review) has been
notified of the review, and
Note. Section 154 contains provisions relating to the right to representation.
(d) the Tribunal has considered the views (if known) of each of the
following:
(i) the patient,
(ii) any representative of the patient,
(iii) the designated carer of the patient,
(iv) the principal care provider of the patient, and
(e) the Tribunal is of the opinion that carrying out the review in the absence
of the patient is desirable for the safety or welfare of the patient.
[2] Section 48 Apprehension of persons not permitted to be absent from mental health
facility
Insert "(whether directly or indirectly by way of another mental health facility)" after
"herself" in section 48 (3).
[3] Section 63 Review of detained affected persons by Tribunal
Insert after section 63 (2):
(2A) The Tribunal may review the case of the affected person in the absence of the
affected person if:
(a) the authorised medical officer applies to have the review carried out in
the absence of the affected person because the affected person has
refused to attend the review or because the officer is of the opinion that
the affected person is too unwell to attend the review, and
(b) the Tribunal is satisfied that the affected person has refused to attend or
is too unwell to attend and is unlikely to be well enough to attend within
a reasonable period, and
(c) the Tribunal is satisfied that any representative of the affected person
(being an Australian legal practitioner, or other person approved by the
Tribunal, who is representing the affected person for the purposes of the
review) has been notified of the review, and
Note. Section 154 contains provisions relating to the right to representation.
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Schedule 4 Amendment of Mental Health Act 2007 No 8
(d) the Tribunal has considered the views (if known) of each of the
following:
(i) the affected person,
(ii) any representative of the affected person,
(iii) the designated carer of the affected person,
(iv) the principal care provider of the affected person, and
(e) The Tribunal is of the opinion that carrying out the review in the
absence of the affected person is desirable for the safety or welfare of
the affected person.
[4] Section 78 Notifications to designated carers and principal care providers of events
affecting patients or detained persons
Insert after section 78 (1) (g):
(h) the patient or person has any matter before the Tribunal.
[5] Section 96 Purpose and findings of ECT inquiries
Insert after section 96 (5):
(5A) Rights of appearance
A patient or person must appear before the Tribunal during an ECT inquiry
unless:
(a) an authorised medical officer applies to have the ECT inquiry carried
out in the absence of the patient or person because the patient or person
has refused to attend the ECT inquiry or because the officer is of the
opinion that the patient or person is too unwell to attend the ECT
inquiry, and
(b) the Tribunal is satisfied that the patient or person has refused to attend
or is too unwell to attend and is unlikely to be well enough to attend
within a reasonable period, and
(c) the Tribunal is satisfied that any representative of the patient or person
(being an Australian legal practitioner, or other person approved by the
Tribunal, who is representing the patient or person for the purposes of
the inquiry) has been notified of the review or that reasonable steps have
been taken to notify the representative, and
Note. Section 154 contains provisions relating to the right to representation.
(d) the Tribunal has considered the views (if known) of each of the
following:
(i) the patient or person,
(ii) any representative of the patient or person,
(iii) the designated carer of the patient or person,
(iv) the principal care provider of the patient or person, and
(e) the Tribunal is of the opinion that determining the ECT inquiry in the
absence of the patient or person is desirable for the safety or welfare of
the patient or person.
[6] Section 96 (6) (a)
Insert "take reasonable steps to" before "find out".
[7] Section 96 (6) (b)
Insert "take reasonable steps to" before "inform".
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Health Legislation Amendment Bill 2018 [NSW]
Schedule 4 Amendment of Mental Health Act 2007 No 8
[8] Section 96 (6) (d)
Insert "take reasonable steps to" before "consider".
[9] Section 154 Rights of appearance and representation
Insert after section 154 (4):
(5) This section applies to a patient or person who is absent from proceedings held
by the Tribunal in relation to the patient or person in the same way as it applies
to a patient or person who appears before the Tribunal.
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Health Legislation Amendment Bill 2018 [NSW]
Schedule 5 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10
Schedule 5 Amendment of Mental Health (Forensic
Provisions) Act 1990 No 10
[1] Section 41 Definitions
Omit "has not been classified by the Tribunal as an involuntary patient" from the definition
of correctional patient from section 41 (1).
Insert instead "has not ceased to be a correctional patient under section 64 or 65".
[2] Section 61 Reviews by Tribunal of correctional patients
Omit "every 3 months" from section 61 (3).
Insert instead "no later than 3 months after the community treatment order is made and at
least once every 6 months during the term of the order".
[3] Section 64 Termination of classification as correctional patient
Insert "(other than another mental health facility)" after "other place" in section 64 (a).
[4] Section 66 Release from mental health facility on ceasing to be correctional patient
Insert "who ceases to be a correctional patient because the person is" after "other than a
person".
[5] Section 68A
Insert after section 68:
68A Apprehension of persons not permitted to be absent from mental health facility
(1) Without limiting section 68, the authorised medical officer of a mental health
facility may apprehend a person, or direct a person to be apprehended, if the
person fails to return to the facility at the end of a period of leave of absence
granted under this Part or fails to comply with a condition to which that grant
of leave was subject.
(2) The person may be apprehended by any of the following persons:
(a) the authorised medical officer or any other suitably qualified person
employed at the mental health facility,
(b) a police officer,
(c) a person authorised by the Secretary or the authorised medical officer,
(d) a person assisting a person referred to in paragraph (a), (b) or (c).
(3) The authorised medical officer may request that a police officer apprehend, or
assist in apprehending, a person under this section if the authorised medical
officer is of the opinion that there are serious concerns relating to the safety of
the person or other persons if the person is taken to the mental health facility
without the assistance of a police officer.
(4) A police officer to whose notice any such request is brought may:
(a) apprehend and take or assist in taking the person to the mental health
facility, or
(b) cause or make arrangements for some other police officer to do so.
(5) A police officer may enter premises to apprehend a person under this section,
and may apprehend any such person, without a warrant and may exercise any
of the powers conferred on a person who is authorised under section 81 of the
Mental Health Act 2007 to take a person to a mental health facility.
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Health Legislation Amendment Bill 2018 [NSW]
Schedule 5 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10
(6) A person who is apprehended is to be conveyed to and detained at the mental
health facility at which the person was detained immediately before the period
of leave commenced.
(7) The authorised medical officer must notify the Tribunal of the following
occurrences as soon as practicable after the occurrence:
(a) the authorised medical officer, directing under subsection (1), a person
to be apprehended,
(b) a person being apprehended under this section.
[6] Schedule 3 Savings and transitional provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Health Legislation Amendment Act 2018
Apprehension of persons not permitted to be absent from mental health facility
Section 68A extends to permit the apprehension of a person who has failed to
return to a mental health facility or who has failed to comply with a condition
even if the relevant failure occurred before the day on which Schedule 5 [5] to
the Health Legislation Amendment Act 2018 commenced.
Page 18
Health Legislation Amendment Bill 2018 [NSW]
Schedule 6 Amendment of Government Sector Employment Act 2013 No 40
Schedule 6 Amendment of Government Sector Employment
Act 2013 No 40
Section 68 Unsatisfactory performance of government sector employees
Insert after section 68 (3):
(4) Without limiting the action that may be taken under this section by the person
who exercises employer functions in relation to a NSW Health Service senior
executive, the Secretary of the Ministry of Health may, if the Secretary is not
the employer of the executive, terminate the executive's employment under
this section.
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Health Legislation Amendment Bill 2018 [NSW]
Schedule 7 Amendment of Government Information (Public Access) Act 2009 No 52
Schedule 7 Amendment of Government Information (Public
Access) Act 2009 No 52
Schedule 1 Information for which there is conclusive presumption of overriding
public interest against disclosure
Omit "Divisions 6B (Quality assurance committees) and 6C (Root cause analysis teams) of
Part 2, and section 23 (Specially privileged information)" from the matter relating to the
Health Administration Act 1982 in clause 1 (1).
Insert instead "Division 6B (Quality assurance committees) of Part 2, Part 2A (Response to
incidents) and section 23 (Specially privileged information)".
Page 20
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