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Health and Other Legislation Amendment Bill 2009
Health and Other Legislation Amendment
Bill 2009
Explanatory Notes
Title of the Bill
Health and Other Legislation Amendment Bill 2009
Objectives of the Bill
The Health and Other Legislation Amendment Bill 2009 (the Bill) amends
a number of health portfolio Acts as well as the Police Powers and
Responsibilities Act 2000, and the Workers' Compensation and
Rehabilitation Act 2003.
The main policy objectives of the amendments to the respective Acts are:
· Health Quality and Complaints Commission Act 2006 to implement a
recommendation of the Health Quality and Complaints Commission
Select Committee's Review of the Health Quality and Complaints
Commission and the Health Quality and Complaints Commission Act
2006, about requiring an impact assessment to be undertaken when
the Health Quality and Complaints Commission (HQCC) develops
standards
· Health Services Act 1991 to enable confidential information under the
Act to be released for the protection, safety or wellbeing of a child;
and to assist the Director-General and Queensland Health's lawyers to
effectively carry out their responsibilities
· Medical Practitioners Registration Act 2001 to increase protection of
the public by enhancing the Medical Board's ability to identify
instances of serious misconduct by doctors
· Physiotherapists Registration Act 2001 to assist in addressing the
shortage of physiotherapists in Queensland
· Police Powers and Responsibilities Act 2000 to enable enforcement of
the new offence of smoking in a motor vehicle with a child under 16
years of age
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Health and Other Legislation Amendment Bill 2009
· Public Health Act 2005 to address a number of operational concerns
identified following implementation of the Act in relation to the
disclosure of health information held by Queensland Health for
research purposes and to help prevent or minimise transmission of
notifiable conditions
· the 13 Health Practitioner Registration Acts, the Health Practitioners
(Professional Standards) Act 1999 and the Nursing Act 1992 to help
the Health Practitioner Registration Boards and the Queensland
Nursing Council perform their functions more effectively and
efficiently
· Tobacco and Other Smoking Products Act 1998 to protect children
and the community from the harmful effects of environmental tobacco
smoke
· Workers' Compensation and Rehabilitation Act 2003 to help medical
workforce resources be more effectively used, particularly in rural and
remote areas.
Reasons for the Objectives
Amendment of Health Quality and Complaints Commission Act 2006
The Act allows the HQCC to make standards about the processes a health
provider may adopt to comply with the provider's duty under the Act to
implement reasonable processes to improve the quality of health services
delivered by the provider. In November 2007, the Health Quality and
Complaints Commission Select Committee report Review of the Health
Quality and Complaints Commission and the Health Quality and
Complaints Commission Act 2006 recommended that the Act be amended
to require the HQCC to undertake an impact assessment prior to
developing standards. The Government subsequently endorsed this
recommendation.
Amendment of Health Services Act 1991
The amendment to enable confidential information to be disclosed for the
protection, safety or wellbeing of a child, follows a recommendation from
the Commission for Children, Young People and Child Guardian that Part 7
of the Health Services Act 1991 (HSA) be reviewed to enable disclosure in
a broader range of circumstances. In addition, Coronial reports have been
critical of health professionals who have not provided information in cases
that have resulted in the death of a child.
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Health and Other Legislation Amendment Bill 2009
Health service employees may be technically breaching their duty of
confidentiality in s62A of the HSA by providing information to the
Director-General (DG). The amendment clarifies the situation and enables
information to be provided where it is relevant to the objects of the HSA in
section 4.
Similarly, the amendment to enable confidential information to be
disclosed to lawyers acting for the State is to clarify that information can be
released to lawyers acting for the State, without breaching the duty of
confidentiality in s62A of the HSA. The amendment is necessary following
a recommendation from the Queensland Ombudsman.
Amendment of Medical Practitioners Registration Act 2001
There is currently no statutory obligation for a doctor to notify the Medical
Board of Queensland (the Board) if the doctor is aware that another doctor
has engaged in misconduct in the practice of the profession. A doctor's
failure to report misconduct of a fellow doctor to the Board may prevent the
Board from taking appropriate action to intervene to protect the public.
On 5 March 2009, Australian Health Ministers endorsed a model for
mandatory reporting by health professionals for inclusion in legislation
being developed as part of the implementation of the National Registration
and Accreditation Scheme for Health Professions (NRAS). The NRAS is
scheduled to be fully implemented on 1 July 2010 and will apply to the
medical profession and nine other health professions.
Amendment of Public Health Act 2005
The practical application of the provisions introduced in 2005 has caused
some confusion and clarity is required to overcome the problems of
interpretation and interaction with provisions in the Health Services Act
1991. To enable the effective treatment of people with a notifiable
condition, the amendments will also clarify the capacity of contact tracing
officers to share information.
Amendment of Physiotherapists Registration Act 2001
In response to the national shortage of physiotherapists in Australia, the
Australian Council of Physiotherapy Regulating Authorities (ACORPA)
developed a model for limited registration to attract suitably qualified
physiotherapists from overseas. Having regard to the key elements of this
model, it is proposed that four new classes of special purpose registration
be created to increase the scope for recruitment of overseas qualified
physiotherapists to practise in Queensland.
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Health and Other Legislation Amendment Bill 2009
Special purpose registration is a limited form of registration designed to
extend the privileges and obligations of registration to persons undertaking
a specified range of `special activities'. Special purpose registrants have the
same privileges (for example, the right to use a restricted title or to
undertake a restricted practice) and the same obligations (for example, a
special purpose registrant is subject to the Health Practitioners
(Professional Standards) Act 1999) as a general registrant. However, such
privileges and obligations are limited to the scope of the special activity to
which his or her registration relates.
Amendment of Tobacco and Other Smoking Products Act 1998
The primary focus of the amendments is to protect the community, and in
particular the health of young children and babies, from the harmful affects
of environmental tobacco smoke.
Environmental tobacco smoke is the complex mixture of chemicals and
particles containing over 4,000 chemical compounds, including 60 known
cancer-causing chemicals.
The death toll from tobacco smoking is still too high. More than 3,400
Queenslanders die each year as a result of their smoking. This is almost 10
times greater than the annual road toll. Smoking is also a burden on our
healthcare system. Smoking-related hospital admissions in Queensland
cost more than $217 million per annum.
Involuntary exposure of children to environmental tobacco smoke in cars
represents a significant health risk for young children. In Queensland there
are 276,000 smokers with children under 16 years of age in the household.
In addition, with New South Wales banning smoking in cars for children
under the age of 16, it is desirable for consistency across the
Tweed/Coolangatta region that Queensland has the same age limit as New
South Wales.
There is strong community support for reducing exposure to environmental
tobacco smoke in situations of involuntary crowding, such as outdoor
pedestrian malls and public transport waiting points (eg. bus stops, taxi
ranks and ferry wharves).
Amendment of Workers' Compensation and Rehabilitation Act 2003
The Government made a 2004 election commitment to amend relevant
legislation to allow for the full implementation of the nurse practitioner
role.
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Health and Other Legislation Amendment Bill 2009
Nurse practitioners will often be the first point of contact for patients with
work related injuries who present at primary health care facilities and
emergency departments for initial diagnosis and treatment. However, while
nurse practitioners are able to provide the necessary health care for certain
non-complex, work-related injuries; referral of these patients to a medical
officer is often required for the sole purpose of obtaining a workers'
compensation medical certificate.
The amendment to the Workers' Compensation and Rehabilitation Act
2003 will enable nurse practitioners to issue a workers compensation
medical certificate for minor injuries at patients' initial attendance. This
will reduce the demands on the health workforce, by better utilising
medical resources to improve health service delivery, particularly in rural
and remote areas.
Achievement of the Objectives
The Health Quality and Complaints Commission Act 2006 is to be
amended to require the HQCC to prepare and publish, for comment, an
impact assessment statement when making or amending standards under
the Act.
The Health Services Act 1991 is to be amended to allow confidential
information to be disclosed to:
· a person where it is necessary for the protection, safety or wellbeing
of a child;
· the Director-General where it achieves the objects of the Health
Services Act 1991;
· lawyers acting for the State.
The Medical Practitioners Registration Act 2001 is to be amended to
require medical practitioners to give written notice to the Medical Board if
they become aware, or reasonably suspect, that another medical
practitioner has engaged in `reportable misconduct'.
The types of conduct that will constitute `reportable misconduct' will be
consistent with the types of conduct that will be required to be reported by
health professionals under the mandatory reporting model proposed under
the NRAS (see page 3 of these Notes).
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Health and Other Legislation Amendment Bill 2009
The Public Health Act 2005 is to be amended to clarify provisions relating
to the release of health information for research purposes and to enable
contact tracing officers to provide information to a `relevant person'.
The Physiotherapists Registration Act 2001 is to be amended to create a
number of new classes of special purpose registration that will increase the
scope for recruitment of overseas qualified physiotherapists to practise in
Queensland. The new classes will enable overseas qualified
physiotherapists to practise in Queensland:
· while they prepare for the written and clinical examination conducted
by the Australian Physiotherapy Council (APC);
· while they prepare for the clinical examination conducted by the APC;
· in a specialty area where the physiotherapist has successfully
completed a postgraduate specialty course in the clinical practice of
physiotherapy at a Queensland university;
· under a working holiday visa (subclass 417) issued under the
Migration Act 1958 (Cth).
As a condition of their special purpose registration, overseas qualified
registrants will be required to work under the supervision of another
physiotherapist as detailed in the registrant's supervised practice plan
approved by the Physiotherapists Registration Board of Queensland.
However, overseas qualified physiotherapists will only be able to practice
in Queensland as a special purpose registrant for a limited period of time.
For example, a person granted registration to prepare for the written and
clinical examination conducted by the APC, which would make them
eligible for general registration in Queensland, may be granted special
purpose registration for a maximum period of three years.
The Tobacco and Other Smoking Products Act 1998 is to be amended to:
· ban smoking in cars with children under 16 years present;
· enable local governments to regulate smoking in outdoor pedestrian
malls and at public transport waiting points;
· extend the meaning of `smoking product' to include smoking related
products, such as cigarette rollers, tubes and filters.
Miscellaneous amendments are made to the 13 Health Practitioner
Registration Acts, the Health Practitioners (Professional Standards) Act
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Health and Other Legislation Amendment Bill 2009
1999 and the Nursing Act 1992 to address deficiencies and inconsistencies
in those Acts and to help their objectives to be more effectively achieved.
The Workers' Compensation and Rehabilitation Act 2003 is to be amended
to enable nurse practitioners to issue workers' compensation medical
certificates for minor injuries at patients' initial attendance.
Alternative Ways of Achieving Policy Objectives
Alternative ways of achieving the policy objectives were considered.
However, each of the policy objectives can be achieved most effectively
through legislation.
Estimated Cost for Government Implementation
Implementation costs associated with most of the amendments will be
minor and will be sourced from existing operational budgets.
The costs of developing and implementing a statewide education campaign
to ban smoking in cars with children is estimated to be $200,000. These
costs will be sourced from the existing budget of the Alcohol, Tobacco and
Other Drug Branch of Queensland Health. Enforcement costs by the
Queensland Police Service will be part of routine traffic monitoring by
police officers.
Consistency with Fundamental Legislative Principles
A number of issues concerning justified breaches of Fundamental
Legislative Principles (FLP) arise in the Bill.
Providing information for the protection, safety or wellbeing of a child
The proposed amendment to the duty of confidentiality in the Health
Services Act 1991 (HSA) raises the FLP of whether legislation has
sufficient regard to individual rights and liberties [section 4(2) Legislative
Standards Act 1992]. The amendment will authorise health professionals
to disclose information for the purposes of the protection, safety or
wellbeing of a child. The underlying rationale is that the protection and
care needs of children take precedence over the protection of an
individual's privacy.
Queensland Health's guidelines to Part 7 of the HSA will be updated and
will require a health professional to note the reasons for the disclosure on
the patient's file. Queensland Health medico-legal officers will be available
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Health and Other Legislation Amendment Bill 2009
to provide advice and assistance. It is considered that the proposed
amendments appropriately balance patient confidentiality with the
protection needs of children.
Providing information for research purposes
The amendments to the research provisions in the Public Health Act 2005
may raise an FLP, as they will be retrospective in operation [section 4(3)(g)
Legislative Standards Act 1992].
However, as the amendments are clarifying the original intent of the
legislation it is not expected that the retrospective application of these
amendments will cause disadvantage. The amendments will clarify that:
· the chief executive is not required to consult with each individual
before authorising the release of information for research;
· the research provisions are to work alongside, not over-ride, other
provisions in the health portfolio legislation that enable information to
be disclosed (e.g. HSA, Private Health Facilities Act 1999 and other
parts of the PHA).
The research provisions of the Public Health Act 1992 require that a person
must not use the information for a purpose inconsistent with the research
for which the information is provided. Further, a person given health
information held by the department under the research provisions must not
disclose information in a way that identifies a person, unless with the
written consent of the person to whom the information relates. These
provisions provide sufficient safeguards to ensure patient confidentiality.
Nurse practitioners protocol
The proposed amendments to the Workers Compensation and
Rehabilitation Act 2003 require a nurse practitioner to issue a workers
compensation medical certificate in accordance with a protocol. This may
breach an FLP as it authorises the amendment of an Act by another Act
[section 4(4)(c) Legislative Standards Act 1992], also known as a Henry
VIII clause. The amendment enables an Act to be impliedly amended by
executive action (via the protocol).
The protocol will function as a safeguard by guiding nurse practitioners in
their new role and facilitating implementation of this initiative. It is
proposed the protocol will set any desirable restrictions, policies and
procedures for nurse practitioners to issue workers compensation medical
certificates. For example, the protocol may set training requirements for
nurse practitioners to complete prior to issuing certificates. A working
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Health and Other Legislation Amendment Bill 2009
group, comprising key stakeholders including Q-COMP and Workcover
Queensland, will develop the protocol.
The amendments are also consistent with the approach taken in the Health
(Drugs and Poisons) Regulation 1996 to give nurse practitioners
prescribing rights, and the Radiation Safety Regulation 1999 to enable
nurse practitioners to request x-rays. Both Regulations require that nurse
practitioners undertake these roles in accordance with a protocol.
Consultation
Community
The amendments to ban smoking in cars with children under the age of 16
were supported by 89% of the members of the public, who made
submissions to the Queensland Health review of tobacco legislation in
2007. There was a high level of support from the community to give local
government the power to ban smoking in pedestrian malls (78%) and at
public transport waiting points (81%). A total of 588 submissions were
received from members of the general public. This includes web-based and
written feedback. The ban on smoking in cars was also supported by the
Heart Foundation, the Cancer Council Queensland, Australian Medical
Association (Queensland Branch) (AMAQ), Action on Smoking and
Health Australia, and Sunshine Coast Tobacco Action Group.
The Commission for Children, Young People and Child Guardian has been
consulted and supports the proposed tobacco amendments and the
amendments to enable the disclosure of information for the protection,
safety and wellbeing of a child.
The Health Quality and Complaints Commission was consulted on, and
supports, the amendments to the Health Quality and Complaints
Commission Act 2006.
The Office of the Health Practitioner Registration Boards and the Office of
the Medical Board were consulted on, and support, the amendments to the
13 Health Practitioner Registration Acts and the Health Practitioners
(Professional Standards) Act 1999.
The Physiotherapists Board of Queensland was consulted on, and supports
the amendments to the Physiotherapists Registration Act 2001 that create
new classes of special purpose registration.
The Queensland Nursing Council was consulted on, and supports, the
amendments to the Nursing Act 1992.
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Health and Other Legislation Amendment Bill 2009
The Medical Board of Queensland, the AMAQ and all Specialist Colleges
were consulted on the amendments to the Medical Practitioners
Registration Act 2001 regarding reporting of mandatory misconduct by
doctors.
The Medical Board does not oppose the amendments but expressed
concern the amendments could deter impaired doctors from seeking help
from their treating doctor for fear of being reported, and may have an
adverse impact on cooperative schemes such as the open disclosure
process. The AMAQ supports mandatory reporting for the most serious
misconduct but has expressed some reservations about models of
mandatory reporting. The AMAQ is strongly supportive of a state model
that is consistent with any mandatory reporting model adopted by the
National Registration and Accreditation Scheme for Health Professions
currently being developed.
The AMAQ is opposed to the expansion of the role of nurse practitioners,
including the proposed amendment to enable nurse practitioners to issue
workers compensation medical certificates. However, the proposed
amendments give effect to a 2004 election commitment to remove any
legislative impediments to enable nurse practitioners to function in
stand-alone roles. The majority of stakeholders consulted strongly support
the proposed amendments.
Government
The following Government Departments were consulted during the
development of the Bill and were supportive of introduction:
· Department of Child Safety
· Department of Employment and Industrial Relations
· Department of Education, Training and the Arts
· Department of Justice and Attorney-General
· Department of Local Government, Sport and Recreation
· Department of the Premier and Cabinet
· Queensland Police Service
· Queensland Transport
· Queensland Treasury.
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Health and Other Legislation Amendment Bill 2009
Notes on Provisions
Part 1 Preliminary
Clause 1 states that this Act may be cited as the Health and Other
Legislation Amendment Act 2009.
Clause 2 provides that sections 163 and 165(2) are taken to have
commenced on 16 January 2006. These provisions relate to the research
provisions of the Public Health Act 2005 and clarify that the provisions
take effect (as intended) from the same date of the commencement of the
original provisions (16 January 2006).
Parts 19 (other than sections 163 and 165(2) and 22 commence on assent,
and the remainder of the Act commences on a day fixed by proclamation.
Part 2 Amendment of Chiropractors
Registration Act 2001
Clause 3 specifies that this Part amends the Chiropractors Registration Act
2001.
Clause 4 amends section 64 to allow provisional general registration to be
granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 5 amends section 82 to clarify that it is a ground for cancellation of
general registration if a registrant ceases to have, or does not have the
qualifications, for general registration. The amendment also updates the
existing ground for cancellation based on giving false information to the
board, to ensure consistency with the new section 210.
Clause 6 amends section 96 to specify that a failure by the board to make a
decision on an application to review conditions is taken to be a decision to
confirm the conditions, instead of a decision to remove them.
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Health and Other Legislation Amendment Bill 2009
Clause 7 amends section 97 to specify that a failure by the board to make a
decision on a review of conditions agreed to between the board and the
registrant is taken to be a decision to confirm the conditions, instead of a
decision to remove them.
Clause 8 amends section 99 to remove references to a deemed decision
under section 96 or section 97 to remove conditions.
Clause 9 amends section 113 to clarify that it is a ground for cancellation of
special purpose registration if a registrant ceases to have, or does not have
the qualifications, for special purpose registration. The amendment also
updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 210.
Clause 10 replaces section 210 with a new section that contains various
offences in relation to materially false information or documents.
Section 210(1) explains when information or a document is taken to be
materially false.
Section 210(2) makes it an offence for a person to give the board
information or a document that is materially false to the person's
knowledge. Subsection (3) makes it an offence to contravene subsection
(2) in connection with an application for registration by the person or
someone else.
Section 210(4) applies to registrants and other persons who give
information or a document to the board and become aware that the
information or document was materially false when it was given or has
since become false. Such persons are required to convey the relevant facts
to the board as soon as reasonably practicable after they become aware of
it.
Section 210(5) makes it an offence for a registrant to act or practise as a
registrant, or continue to do so, if the registrant contravenes section 210(2),
or was knowingly concerned in, or a party to a contravention of section
210(2), or fails to convey the relevant facts to the board as required under
section 210(4)(a).
Section 210(6) clarifies the meaning of certain terms used in the section.
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Health and Other Legislation Amendment Bill 2009
Part 3 Amendment of Dental
Practitioners Registration Act
2001
Clause 11 specifies that this Part amends the Dental Practitioners
Registration Act 2001.
Clause 12 amends section 64 to allow provisional general registration to be
granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 13 amends section 82 to clarify that it is a ground for cancellation of
general registration if a registrant ceases to have, or does not have the
qualifications, for general registration. The amendment also updates the
existing ground for cancellation based on giving false information to the
board, to ensure consistency with new section 232.
Clause 14 amends section 96 to specify that a failure by the board to make
a decision on an application to review conditions is taken to be a decision
to confirm the conditions, instead of a decision to remove them.
Clause 15 amends section 97 to specify that a failure by the board to make
a decision on a review of conditions agreed to between the board and the
registrant is taken to be a decision to confirm the conditions, instead of a
decision to remove them.
Clause 16 amends section 99 to remove references to a deemed decision
under section 96 or section 97 to remove conditions.
Clause 17 amends section 132 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications, for special purpose registration. The amendment
also updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 232.
Clause 18 replaces section 232 with a new section, which contains various
offences in relation to materially false information or documents. The
offences are the same as in section 210 of the Chiropractors Registration
Act 2001 as outlined in the notes for clause 10 of the Bill.
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Health and Other Legislation Amendment Bill 2009
Part 4 Amendment of Dental
Technicians and Dental
Prosthetists Registration Act
2001
Clause 19 specifies that this Part amends the Dental Practitioners
Registration Act 2001.
Clause 20 amends section 64 to allow provisional general registration to be
granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 21 amends section 83 to clarify that it is a ground for cancellation of
general registration if a registrant ceases to have, or does not have the
qualifications, for general registration. The amendment also updates the
existing ground for cancellation based on giving false information to the
board, to ensure consistency with new section 214.
Clause 22 amends section 98 to specify that a failure by the board to make
a decision on an application to review conditions is taken to be a decision
to confirm the conditions, instead of a decision to remove them.
Clause 23 amends section 99 to specify that a failure by the board to make
a decision on a review of conditions agreed to between the board and the
registrant is taken to be a decision to confirm the conditions, instead of a
decision to remove them.
Clause 24 amends section 101 to remove references to a deemed decision
under section 98 or section 99 to remove conditions.
Clause 25 amends section 115 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications, for special purpose registration. The amendment
also updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 214.
Clause 26 replaces section 214 with a new section, which contains various
offences in relation to materially false information or documents. The
offences are the same as in section 210 of the Chiropractors Registration
Act 2001 as outlined in the notes for clause 10 of the Bill.
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Health and Other Legislation Amendment Bill 2009
Part 5 Amendment of Health
Practitioners (Professional
Standards) Act 1999
Clause 27 specifies that this Part amends the Health Practitioners
(Professional Standards) Act 1999.
Clause 28 amends section 12(1) to allow a board to delegate its power to:
· make a decision to enter into an undertaking with a registrant, except
in relation to disciplinary proceedings;
· order a registrant to attend a further health assessment.
The amendments to section 12(2) and (3) allow the above powers to be
delegated to any of the existing category of persons mentioned in those
provisions, or to a committee of a board established under the relevant
health practitioner registration Act containing at least 1 member of the
board.
Clause 29 inserts a new section 40A that allows the Minister to make
urgent temporary appointments, for a period not more than 6 months, of
persons as members of the professional panel of assessors. The grounds
for urgency that must be satisfied are set out in section 40A(1)(a) and (b).
Section 40A(3) clarifies that only individuals who are qualified under
section 40(4) for appointment by the Governor in Council may be
appointed by the Minister under section 40A.
Clause 30 amends section 42(4) to clarify that the provision is referring to
the appointment of assessors by the Governor in Council under section
40(1)(b).
Clause 31 amends section 55 to allow notification of a decision to reject a
complaint to be given as soon as practicable after making the decision,
instead of the existing 14 days timeframe.
Clause 32 amends section 63 to clarify that a board may investigate a
matter involving a registrant, whether or not the board has received a
complaint about the matter.
Clause 33 amends section 134 so that the section applies when a board is
conducting disciplinary proceedings in any form, whether by hearing or by
written correspondence.
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Health and Other Legislation Amendment Bill 2009
Clause 34 amends section 135 so that the section applies when a
disciplinary committee is conducting disciplinary proceedings in any form,
whether by hearing or by written correspondence.
Clause 35 amends section 164 to allow a board to make a decision whether
a ground for disciplinary action exists, as soon as practicable after
completion of a disciplinary hearing, instead of the existing 14 days
timeframe.
Clause 36 amends section 168 to specify when decisions of a board or
disciplinary committee take effect. This is consistent with the approach for
Tribunal decisions under section 245.
Clause 37 amends section 205 to specify when decisions of a professional
conduct review panel take effect. This is consistent with the approach for
Tribunal decisions under section 245.
Clause 38 amends section 255 to enable costs orders made by the Tribunal
to be filed in the District Court and enforced accordingly.
Clause 39 amends section 278 to clarify that, if a board has decided to enter
into an undertaking under section 276(2), the undertaking takes effect on
the date it is approved by the board.
Clause 40 amends section 306 to specify that a further health assessment
conducted in response to a request under section 306(2) must be conducted
at the registrant's expense.
Clause 41 amends section 377 to clarify that a board may decide not to
continue an investigation if the board becomes aware it is investigating the
wrong registrant.
Clause 42 amends section 392 to allow confidential information obtained
under the Act to be disclosed to the Queensland Nursing Council and the
Nursing Tribunal, if the disclosure is necessary to allow those bodies to
perform their functions under the Nursing Act 1992.
Clause 43 inserts definitions of `Nursing Tribunal' and `Queensland
Nursing Council'.
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Health and Other Legislation Amendment Bill 2009
Part 6 Amendment of Health Quality
and Complaints Commission Act
2006
Clause 44 specifies that this Part amends the Health Quality and
Complaints Commission Act 2006.
Clause 45 omits section 22(5). The provision is no longer necessary as the
consultation obligation about the making of standards is addressed under
new section 22A inserted by clause 46.
Clause 46 inserts a new section 22A that specifies the process the Health
Quality and Complaints Commission (the Commission) must adopt if it
intends making or amending a standard under section 22(1), other than an
amendment of a minor nature.
Under the new section, the Commission must prepare an impact
assessment statement (IAS) about the standard or amended standard which
must include the name and subject matter of the standard or amended
standard as well as a brief statement of any benefits and costs to a provider
or a health services user in the provider complying with the standard or
amended standard. If the compliance costs are likely to be appreciable, the
IAS must also quantify the benefits and the costs to the extent that this is
practicable, compare the benefits with the costs and assess whether the
benefits exceed the costs.
The Commission must publish on its website, for at least 14 days, a copy of
the IAS together with a notice inviting comment on the IAS and stating
how and when comment may be made.
In deciding whether to make or amend a standard, the Commission must
have regard to the IAS and any comments made about it.
The Commission must not make or amend a standard until at least 30 days
after the Commission first publishes a copy of the IAS and notice.
However, the Minister may approve a lesser period on the basis that this
will help protect the health and well being of users of the health service.
A failure to comply with the above requirements does not affect the validity
of a standard or an amendment.
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Health and Other Legislation Amendment Bill 2009
Part 7 Amendment of Health Services
Act 1991
Clause 47 specifies that this Part amends the Health Services Act 1991.
Clause 48 inserts section 62IA, enabling confidential information to be
disclosed by a designated person, if the disclosure is to a person for the
protection, safety or wellbeing of a child. While it is always preferable to
obtain the patient's consent, (under section 62C of the Health Services Act
1991), before the confidential information is disclosed, obtaining consent
may not always be possible. The provision enables the designated person to
provide the information where it is necessary for the protection, safety or
wellbeing of a child, even in circumstances where a patient refuses to
consent to the disclosure or it is not possible to obtain consent.
A scenario envisaged by this provision, could include a situation where a
patient is injured and receives treatment from a health service. As the
patient lapses in and out of consciousness, they mention they have a child
that needs picking up from school. Section 62IA(a) would enable the
designated person to disclose to the school that the parent had been injured,
which would then enable appropriate arrangements to be made for the
child.
A further scenario may include providing information to grandparents who
share the care of a child in a situation where the parent has a mental illness
and has been receiving treatment for their mental illness in a health service
facility. Section 62IA(a) would enable the designated person to discuss
with the grandparents certain information where there were factors
involved in the person's mental illness that may require disclosure for the
protection, safety or wellbeing of the child. For example, the new provision
would make it clear that a designated person could discuss the parent's
medication requirements, future appointment times and possible warning
signs that would require further intervention or notification to the health
service.
Section 62IA(b) is necessary to ensure that where a child is receiving a
health service and is of sufficient age or maturity to make decisions about
their health care, section 62IA(a) is not used to disclose information
inappropriately. This provision clarifies that the confidential information
being released in s62IA(a) relates to someone other than the child
mentioned in paragraph s62IA(a).
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Health and Other Legislation Amendment Bill 2009
However if a child presented to a health service facility and confidential
information about this child (Child 1) needed to be disclosed for the
protection, safety or wellbeing of a second child (Child 2) the information
about Child 1 could be released, even if Child 1 refused to consent to the
release of the information.
Clause 49 inserts a new section 62KA that enables information to be
disclosed to the chief executive if the disclosure is for achieving the objects
of section 4 of the Health Services Act 1991. The amendments overcome
the current situation where a designated person is technically in breach of
their duty of confidentiality if they provide information to the chief
executive. As the chief executive is also a designated person and is bound
by the duty of confidentiality in section 62A(1) of the Health Services Act
1991, section 62KA(2) enables the chief executive to disclose information
if the disclosure is for a function of the chief executive under section 7 of
the Health Services Act 1991.
The amendment will enable the chief executive to provide information
where it is necessary for the performance of these functions. In addition,
the existing provision in section 62Q of the Health Services Act 1991 will
enable information to be provided that is necessary or incidental to a
disclosure made by the chief executive. This existing provision enables
support staff to provide the information from the chief executive.
Clause 50 inserts section 62PA to clarify that the chief executive can
disclose confidential information if it is to a lawyer in relation to a matter
for which the lawyer is representing the State.
The circumstances may include release of information about a person:
· who is not a party to the litigation, but may be relevant to the matter in
dispute, and advice is needed as to whether the information would be
admissible evidence and should be relied upon in the litigation;
· where the information may relate to a different incident or illness, but
a causal connection is suspected and advice is needed as to whether
the information should be relied upon (i.e. a person sues QH for
malpractice arising from a fracture, however the person's mental
health records are assessed to determine whether they may be relevant
to the matter).
To ensure the effective operation of this provision, it is anticipated that the
chief executive will delegate this power to appropriately qualified people
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Health and Other Legislation Amendment Bill 2009
such as medical records staff, Health Information Managers, Freedom of
Information Officers.
Part 8 Amendment of Medical
Practitioners Registration Act
2001
Clause 51 specifies that this Part amends the Medical Practitioners
Registration Act 2001.
Clause 52 amends section 66 to allow provisional general registration to be
granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 53 amends section 84 to clarify that it is a ground for cancellation of
general registration if a registrant ceases to have, or does not have the
qualifications, for general registration.
Clause 54 amends section 92 to allow the board to ask the internship
nominee for an internship report, or the supervisor for a supervised practice
report, about a registrant's progress during the internship or program.
Clause 55 amends section 96 to provide that a failure by the board to make
a decision, after reviewing an internship report or supervised practice
report, is taken to be a decision to confirm the probationary conditions,
instead of a decision to remove them.
Clause 56 amends section 97 to remove references to a deemed decision
under section 96 to remove probationary conditions.
Clause 57 amends section 106 to specify that a failure by the board to make
a decision on an application to review conditions is taken to be a decision
to confirm the conditions, instead of a decision to remove them.
Clause 58 amends section 107 to specify that a failure by the board to make
a decision on a review of conditions agreed to between the board and the
registrant is taken to be a decision to confirm the conditions, instead of a
decision to remove them.
Clause 59 amends section 109 to remove references to a deemed decision
under section 106 or section 107 to remove conditions.
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Health and Other Legislation Amendment Bill 2009
Clause 60 amends section 149 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications, for registration.
Clause 61 inserts a new part 4, division 2.
Section 166 requires a registrant to give written notice to the Medical
Board if they become aware, or reasonably suspect, that another registrant
has engaged in `reportable misconduct' (as defined in section 166(4)).
Section 166(2) specifies the information that a notice must contain and
notes that a failure to comply with the obligation to notify the Board will be
a ground for disciplinary action against the registrant. A notice given will
be regarded as a complaint under the Health Practitioners (Professional
Standards) Act 1999. Therefore, notifying doctors will have the
protections against legal liability and reprisals conferred under Division 4
of Part 12 of that Act.
Clause 62 amends section 173 to ensure that the protection against reprisals
under the Act, also apply to registrants giving notice under section 166.
Clause 63 amends the definition of `program' in section 178 to expand its
meaning, when used in Part 5 of the Act, to include part of an intern
training program or intern training secondment program.
Clause 64 amends section 182(3) to require an information notice to be
given when the board decides to accredit only part of the program applied
for.
Clause 65 inserts a provision in section 189 to require an information
notice to be given when the board decides to renew only part of the
accreditation applied for. The provision also gives the board the option of
endorsing the existing accreditation certificate or cancelling the certificate
and issuing a new certificate.
Clause 66 inserts a provision in section 195 to specify that, if the board
cancels part of the accreditation for a program, it must issue another
accreditation certificate for any part of the accreditation that is not
cancelled.
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Health and Other Legislation Amendment Bill 2009
Part 9 Amendment of Medical Radiation
Technologists Act 2001
Clause 67 specifies that this Part amends the Medical Radiation
Registration Act 2001.
Clause 68 amends section 68 to allow provisional general registration to be
granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 69 amends section 86 to clarify that it is a ground for cancellation of
general registration if a registrant ceases to have, or does not have the
qualifications, for general registration. The amendment also updates the
existing ground for cancellation based on giving false information to the
board, to ensure consistency with new section 226.
Clause 70 amends section 94 to allow the board to ask the supervisor for a
supervised practice program report, about a registrant's progress during the
program.
Clause 71 amends section 99 to provide that a failure by the board to make
a decision is taken to be a decision to confirm the probationary conditions,
instead of a decision to remove them.
Clause 72 amends section 101 to remove references to a deemed decision
under section 99 to remove probationary conditions.
Clause 73 amends section 110 to specify that a failure by the board to make
a decision on an application to review conditions is taken to be a decision
to confirm the conditions, instead of a decision to remove them.
Clause 74 amends section 111 to specify that a failure by the board to make
a decision on a review of conditions agreed to between the board and the
registrant is taken to be a decision to confirm the conditions, instead of a
decision to remove them.
Clause 75 amends section 113 to remove references to a deemed decision
under section 110 or section 111 to remove conditions.
Clause 76 amends section 128 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications, for special purpose registration. The amendment
also updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 226.
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Health and Other Legislation Amendment Bill 2009
Clause 77 replaces section 226 with a new section that contains various
offences in relation to materially false information or documents. The
offences are the same as in section 210 of the Chiropractors Registration
Act 2001 as outlined in the notes for clause 10 of the Bill.
Part 10 Amendment of Nursing Act 1992
Clause 78 specifies that this Part amends the Nursing Act 1992.
Clause 79 amends section 4 to omit the definitions of `health practitioner
registration act' and `health professional'. Replacement definitions are
relocated to section 4 by clause 81.
Clause 80 amends section 77B to relocate the definitions of `health
practitioner registration act' and `health professional' to section 4.
Clause 81 amends section 96(3) to allow the chairperson of the Nursing
Tribunal to give directions about discovery and inspection of documents for
the purpose of proceedings before the Tribunal.
Clause 82 inserts a new Subdivision 1 in Division 2 of Part 7 (comprising
new sections 127A-127D).
Section 127A allows an inspector, for conducting an investigation, to give a
person a written notice to give information or to attend before the inspector
to answer questions or produce a thing.
Section 127B(1) and (2) create offences in relation to a person's failure to
comply with a notice given under section 127A.
Section 127C specifies that, for section 127B, it is a reasonable excuse for
an individual to fail to give stated information, answer a question or to
produce a stated thing, if it might tend to incriminate them.
Section 127D sets out certain powers that an inspector has in relation to a
thing produced to the inspector, under section 127A or otherwise. These
powers include the power to inspect, photograph, make a copy of, take an
extract from or keep the thing.
A new heading for Subdivision 2 is also inserted.
Clause 83 amends section 139 to insert a new subsection (2B) which
provides an additional exception to the confidentiality obligation in section
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Health and Other Legislation Amendment Bill 2009
139(2). The new provision allows protected documents or protected
documents about a health professional to be disclosed to the health
professional's board if necessary for the board to perform its functions.
Part 11 Amendment of Occupational
Therapists Registration Act 2001
Clause 84 specifies that this Part amends the Occupational Therapists
Registration Act 2001.
Clause 85 amends section 64 to allow provisional general registration to be
granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 86 amends section 82 to clarify that it is a ground for cancellation of
general registration if a registrant ceases to have, or does not have the
qualifications, for general registration.
Clause 87 amends section 96 to specify that a failure by the board to make
a decision on an application to review conditions is taken to be a decision
to confirm the conditions, instead of a decision to remove them.
Clause 88 amends section 97 to specify that a failure by the board to make
a decision on a review of conditions agreed to between the board and the
registrant is taken to be a decision to confirm the conditions, instead of a
decision to remove them.
Clause 89 amends section 99 to remove references to a deemed decision
under section 96 or section 97 to remove conditions.
Clause 90 amends section 113 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications, for special purpose registration. The amendment
also updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 210.
Clause 91 replaces section 210 with a new section, which contains various
offences in relation to materially false information or documents. The
offences are the same as in section 210 of the Chiropractors Registration
Act 2001 as outlined in the notes for clause 10 of the Bill.
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Health and Other Legislation Amendment Bill 2009
Part 12 Amendment of Optometrists
Registration Act 2001
Clause 92 specifies that this Part amends the Optometrists Registration Act
2001.
Clause 93 amends section 64 to allow provisional general registration to be
granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 94 amends section 82 to clarify that it is a ground for cancellation of
general registration if a registrant ceases to have, or does not have the
qualifications, for general registration.
Clause 95 amends section 96 to specify that a failure by the board to make
a decision on an application to review conditions is taken to be a decision
to confirm the conditions, instead of a decision to remove them.
Clause 96 amends section 97 to specify that a failure by the board to make
a decision on a review of conditions agreed to between the board and the
registrant is taken to be a decision to confirm the conditions, instead of a
decision to remove them.
Clause 97 amends section 99 to remove references to a deemed decision
under section 96 or section 97 to remove conditions.
Clause 98 amends section 113 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications, for special purpose registration. The amendment
also updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 207.
Clause 99 replaces section 207 with a new section that contains various
offences in relation to materially false information or documents. The
offences are the same as in section 210 of the Chiropractors Registration
Act 2001 as outlined in the notes for clause 10 of the Bill.
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Health and Other Legislation Amendment Bill 2009
Part 13 Amendment of Osteopaths
Registration Act 2001
Clause 100 specifies that this Part amends the Osteopaths Registration Act
2001.
Clause 101 amends section 64 to allow provisional general registration to
be granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 102 amends section 82 to clarify that it is a ground for cancellation
of general registration if a registrant ceases to have, or does not have the
qualifications, for general registration. The amendment also updates the
existing ground for cancellation based on giving false information to the
board, to ensure consistency with new section 210.
Clause 103 amends section 96 to specify that a failure by the board to make
a decision on an application to review conditions is taken to be a decision
to confirm the conditions, instead of a decision to remove them.
Clause 104 amends section 97 to specify that a failure by the board to make
a decision on a review of conditions agreed to between the board and the
registrant is taken to be a decision to confirm the conditions, instead of a
decision to remove them.
Clause 105 amends section 99 to remove references to a deemed decision
under section 96 or section 97 to remove conditions.
Clause 106 amends section 113 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications, for special purpose registration. The amendment
also updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 210.
Clause 107 replaces section 210 with a new section that contains various
offences in relation to materially false information or documents. The
offences are the same as in section 210 of the Chiropractors Registration
Act 2001 as outlined in the notes for clause 10 of the Bill.
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Health and Other Legislation Amendment Bill 2009
Part 14 Amendment of Pharmacists
Registration Act 2001
Clause 108 specifies that this Part amends the Pharmacists Registration Act
2001.
Clause 109 amends section 68 to allow provisional general registration to
be granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 110 amends section 86 to clarify that it is a ground for cancellation
of general registration if a registrant ceases to have, or does not have the
qualifications for, general registration. The amendment also updates the
existing ground for cancellation based on giving false information to the
board, to ensure consistency with new section 212.
Clause 111 amends section 100 to specify that a failure by the board to
make a decision on an application to review conditions is taken to be a
decision to confirm the conditions, instead of a decision to remove them.
Clause 112 amends section 101 to specify that a failure by the board to
make a decision on a review of conditions agreed to between the board and
the registrant is taken to be a decision to confirm the conditions, instead of
a decision to remove them.
Clause 113 amends section 103 to remove references to a deemed decision
under section 100 or section 101 to remove conditions.
Clause 114 amends section 117 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications for, special purpose registration. The amendment
also updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 212.
Clause 115 replaces section 212 with a new section that contains various
offences in relation to materially false information or documents. The
offences are the same as in section 210 of the Chiropractors Registration
Act 2001 as outlined in the notes for clause 10 of the Bill.
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Health and Other Legislation Amendment Bill 2009
Part 15 Amendment of Physiotherapists
Registration Act 2001
Clause 116 specifies that this Part amends the Physiotherapists
Registration Act 2001.
Clause 117 amends section 64 to allow provisional general registration to
be granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 118 amends section 82 to clarify that it is a ground for cancellation
of general registration if a registrant ceases to have, or does not have the
qualifications, for general registration. The amendment also updates the
existing ground for cancellation based on giving false information to the
board, to ensure consistency with new section 210.
Clause 119 amends section 96 to specify that a failure by the board to make
a decision on an application to review conditions is taken to be a decision
to confirm the conditions, instead of a decision to remove them.
Clause 120 amends section 97 to specify that a failure by the board to make
a decision on a review of conditions agreed to between the board and the
registrant is taken to be a decision to confirm the conditions, instead of a
decision to remove them.
Clause 121 amends section 99 to remove references to a deemed decision
under section 96 or section 97 to remove conditions.
Clause 122 amends section 100 to include a new subsection (2) to set out
four new purposes for which a person may obtain special purpose
registration. Namely, to enable specified overseas qualified
physiotherapists to practise under supervision approved by the board in
order to:
· prepare for the written and clinical examination conducted by the
Australian Physiotherapy Council (APC), which if successfully
completed would make the physiotherapist eligible for general
registration;
· prepare for the clinical examination conducted by the APC, which if
successfully completed would make the physiotherapist eligible for
general registration;
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Health and Other Legislation Amendment Bill 2009
· to be able to work in their specialty area in Queensland, provided the
physiotherapist has successfully completed a postgraduate specialty
course in the clinical practice of physiotherapy at a Queensland
university;
· to be able to work in Queensland under a working holiday visa
(subclass 417) which has been issued under the Migration Act 1958
(Cth).
Clause 123 replaces section 102, to set out the criteria that the board must
consider when deciding whether an applicant is eligible for special purpose
registration under section 100(1). That is, for the limited purpose of
postgraduate study or training; teaching; research and/or giving clinical
demonstrations in the profession.
Clause 124 inserts a new section 102A to set out the criteria that the board
must consider deciding whether an applicant is eligible for special purpose
registration under section 100(2)(a), (b), (c) or (d).
Clause 125 amends section 104, to set out the matters the board may take
into account when considering whether an applicant is a suitable person to
be a special purpose registrant under section 100(2)(a), (b), (c) or (d).
Clause 126 inserts new sections 106A, 106B and 106C.
Section 106A imposes standard conditions on the four new classes of
special purpose registration under section 100(2).
Persons registered to undertake a special activity specified in section
100(2) must practise only in accordance with their supervised practice plan
that was submitted with their application for the registration or as approved
by the board under new section 106B.
In addition, this section specifies that registrants under:
· section 100(2)(a) must not continue to practice in the profession for
more than 3 continuous years under the special purpose registration
without obtaining general registration
· section 100(2)(b) must not continue to practice in the profession for
more than 2 continuous years under the special purpose registration
without obtaining general registration
· section 100(2)(c) must only practice the profession in the area of the
profession to which the registration relates; and may only continue to
practice in the profession for more than 3 continuous years under this
category of special purpose registration
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Health and Other Legislation Amendment Bill 2009
· section 100(2)(d) must not continue to practice in the profession,
under their working holiday visa, in a particular place of work for
more than 6 months.
Section 106B makes it a standard condition that a special purpose registrant
under section 100(2) must obtain the approval of the Board, if the registrant
intends to commence in a position that will require them to practise the
profession under a supervised practice plan that is different to the plan
under which they are currently practising the profession.
Section 106C provides that if a special purpose registrant is registered on
the condition that they carry out their practice under supervision, then the
Board may ask a registrant's supervisor to give information to the Board
about the registrant's supervised practice.
Definitions for the terms proposed supervisor and supervised practice plan
have been included in the dictionary. The term "proposed supervisor" is
used in the definition of "supervised practice plan", which is defined to
mean a plan prepared, in the approved form, by an applicant for special
purpose registration in consultation with the applicant's proposed
supervisor.
Clause 127 replaces section 107A to clarify that it is not possible to renew a
person's special purpose registration under section 100(2)(d). In order to
be eligible for this class of special purpose registration, a person must hold
a current working holiday visa (subclass 417) granted under the Migration
Act 1958 (Cth). Such visas are only granted for a maximum period of
twelve months. Consequently, it is not appropriate for the legislation to
provide for the renewal of this class of special purpose registration.
Clause 128 amends section 109, to set out the matters the board must
consider when deciding to renew, or refuse to renew, a person's special
purpose registration under section 100(2)(a) or (b). Namely, that the board
is satisfied that the registrant has made reasonable progress towards being
qualified for general registration.
Clause 129 amends section 113 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications, for special purpose registration. The amendment
also updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 210.
Clause 130 inserts a new section 209A to protect supervisors who, honestly
and on reasonable grounds, give information about a special purpose
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Health and Other Legislation Amendment Bill 2009
registrant to the Board. The section ensures that the supervisor is not
liable civilly, criminally or under an administrative process for giving this
information. The purpose of this provision is to ensure that supervisors
provide full and frank reports and information about the special purpose
registrants' supervised practice
Clause 131 replaces section 210 with a new section, which contains various
offences in relation to materially false information or documents. The
offences are the same as in section 210 of the Chiropractors Registration
Act 2001 as outlined in the notes for clause 10 of the Bill.
Clause 132 amends the division heading for part 10, division 2 as a
consequence of the transitional arrangements to be inserted by clause 143.
Clause 133 inserts a new division 3, in part 10, comprising sections 238
and 239, which set out the transitional arrangements that are to come into
effect upon the commencement of the amendments to the Act to create four
new classes of special purpose registration.
Section 238 sets out the transitional arrangements in relation to persons
who currently hold general registration on conditions to enable them to
practise in order to prepare for the clinical examination conducted by the
APC. Provided the person is eligible for special purpose registration under
section 100(2)(b), upon commencement, the person will be taken to be a
special purpose registrant under section 100(2)(b).
Section 234 sets out the transitional arrangements in relation to persons
who have applied for general registration on conditions to enable them to
practise in order to prepare for the clinical examination conducted by the
APC. Provided the person is eligible for special purpose registration under
section 100(2), upon commencement, the person's application will be taken
to be an application for the class of special purpose registration under
section 100(2) for which the person is eligible.
Clause 134 inserts definitions for the following terms into the dictionary in
schedule 3 of the Act as a consequence of the amendments to the Part 3,
Division 8 (Special purpose registrations): Australian Physiotherapy
Council, proposed supervisor, supervised practice plan, university and
working holiday visa.
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Health and Other Legislation Amendment Bill 2009
Part 16 Amendment of Podiatrists
Registration Act 2001
Clause 135 specifies that this Part amends the Podiatrists Registration Act
2001.
Clause 136 amends section 64 to allow provisional general registration to
be granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 137 amends section 82 to clarify that it is a ground for cancellation
of general registration if a registrant ceases to have, or does not have the
qualifications, for general registration.
Clause 138 amends section 96 to specify that a failure by the board to make
a decision on an application to review conditions is taken to be a decision
to confirm the conditions, instead of a decision to remove them.
Clause 139 amends section 97 to specify that a failure by the board to make
a decision on a review of conditions agreed to between the board and the
registrant is taken to be a decision to confirm the conditions, instead of a
decision to remove them.
Clause 140 amends section 99 to remove references to a deemed decision
under section 96 or section 97 to remove conditions.
Clause 141 amends section 113 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications, for special purpose registration. The amendment
also updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 210.
Clause 142 replaces section 210 with a new section, which contains various
offences in relation to materially false information or documents. The
offences are the same as in section 210 of the Chiropractors Registration
Act 2001 as outlined in the notes for clause 10 of the Bill.
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Health and Other Legislation Amendment Bill 2009
Part 17 Amendment of Police Powers
and Responsibilities Act 2000
Clause 143 specifies that this Part amends the Police Powers and
Responsibilities Act 2000.
Clause 144 amends section 42 to prescribe the offence of `smoking in a
motor vehicle with a person under the age of 16 years' as a reason for
police to ask a person for their age. This information is important for
deciding whether another person in the vehicle is contravening the offence
provision.
This clause also provides protection for a passenger that refuses to give
their date of birth from a proceeding under section 791 if the alleged
offender is not proved to have contravened the prescribed offence. Section
791 of the Police Powers and Responsibilities Act 2000 provides that a
person commits an offence for contravening a requirement or direction
given by a police officer.
Clause 145 amends section 60 to prescribe the offence of `smoking in a
motor vehicle with a person under the age of 16 years' as a reason for the
ability for police to stop a motor vehicle. This power is required to enable
police to enforce the offence.
Part 18 Amendment of Psychologists
Registration Act 2001
Clause 146 specifies that this Part amends the Psychologists Registration
Act 2001.
Clause 147 amends section 70 to allow provisional general registration to
be granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 148 amends section 88 to clarify that it is a ground for cancellation
of general registration if a registrant ceases to have, or does not have the
qualifications, for general registration. The amendment also updates the
existing ground for cancellation based on giving false information to the
board, to ensure consistency with new section 227.
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Health and Other Legislation Amendment Bill 2009
Clause 149 amends section 96 to allow the board to ask the supervisor for a
supervised practice program report, about a registrant's progress during the
program.
Clause 150 amends section 100 to provide that a failure by the board to
make a decision is taken to be a decision to confirm the probationary
conditions, instead of a decision to remove them.
Clause 151 amends section 102 to remove references to a deemed decision
under section 100 to remove probationary conditions.
Clause 152 amends section 111 to specify that a failure by the board to
make a decision on an application to review conditions is taken to be a
decision to confirm the conditions, instead of a decision to remove them.
Clause 153 amends section 112 to specify that a failure by the board to
make a decision on a review of conditions agreed to between the board and
the registrant is taken to be a decision to confirm the conditions, instead of
a decision to remove them.
Clause 154 amends section 114 to remove references to a deemed decision
under section 110 or section 111 to remove conditions.
Clause 155 amends section 129 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications, for special purpose registration. The amendment
also updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 227.
Clause 156 replaces section 227 with a new section, which contains various
offences in relation to materially false information or documents. The
offences are the same as that in section 210 of the Chiropractors
Registration Act 2001 as outlined in the notes for clause 10 of the Bill.
Part 19 Amendment of Public Health Act
2005
Clause 157 states that this part amends the Public Health Act 2005 (the
Act).
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Health and Other Legislation Amendment Bill 2009
Clause 158 corrects a typographical error. The cross-reference for the
examples listed at the end of subsection 11(1)(b) should be to paragraph
(viii) not (vi).
Clause 159 amends section 107, which sets out an exception to the duty of
confidentiality under section 105 in relation to information obtained under
the contact tracing provisions in chapter 3, part 3 of the Act.
Currently, section 107 enables information to be disclosed: (a) in the
performance of functions under the Act; or (b) with the written consent of
the person to whom the information relates; or (c) to the person to whom
the information relates; or (d) in a form that could not identify any person.
The amendment will enable information to also be disclosed, with the
verbal consent of the person to whom the information relates. This will
address an operational discrepancy that has been identified since the
introduction of the legislation. While a contact tracing officer can usually
obtain verbal consent, it is not always possible for written consent to be
obtained as required by section 107(b). This amendment will, for example,
help address situations where a contact tracing officer identifies that an `at
risk' person is located in a rural or remote area of Queensland, or is
travelling outside the State. Provided the verbal agreement of the person
can be obtained, the contact tracing officer will be able to provide
information to the person's nominated health care provider to ensure that
they receive the necessary medical follow-up.
Clause 160 inserts a new section, s108A. This amendment has been
proposed to support the functions of contact tracing officers. As currently
outlined in section 89 of the Act, the principal function of a contact tracing
officer is to help prevent or minimise the spread of notifiable conditions by
identifying, and providing information to, persons who have, or may be at
risk of contracting, a notifiable condition (eg so that they may undergo any
necessary medical examination and/or treatment).
Section 108A sets out a new exception to the duty of confidentiality under
section 105. Under this exception information may be provided to specified
persons so that a person who has, or may have, contracted a notifiable
condition can:
· be provided with information to prevent or minimise transmission of
the notifiable condition; or
· seek medical examination or treatment.
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Health and Other Legislation Amendment Bill 2009
Specified persons who may be provided with information to assist such
persons include a health practitioner (eg doctor, social worker,
psychologist, etc) involved in the treatment or care of the person; a health
practitioner nominated by the person; the parents of a child, a person's
legal guardian, or an entity in another jurisdiction responsible for
preventing or controlling the spread of communicable diseases; or another
entity prescribed under regulation. As provided for by section 36 of the
Acts Interpretation Act 1954, the reference to `entity' includes a person and
an unincorporated body.
While the Public Health Act 2005 uses the defined term `notifiable
condition', this is not the case in all jurisdictions. Consequently, when
specifying which entities in other jurisdictions may be provided with
information, it was determined that it would be more appropriate to
reference the more commonly used term "communicable disease".
Clause 161 amends the heading for chapter 6, part 4, division 1, as a
consequence of the amendments outlined below.
Clause 162 inserts a new section, 279A. This section states that chapter 6,
part 4 only applies to health information held by the department (as defined
in the dictionary) relating to an individual if the individual could be
identified from the information. This will mean that a person who wishes
to access "non-identifying' health information held by the department for
research purposes will not have to apply for access to this information
under part 4. This approach is consistent with disclosure arrangements
within the Act and under other health portfolio legislation that enables
`confidential information' to be disclosed in a form that could not identify
any person' (eg see sections 55, 79, 107, 177, 222 and 240 of the Public
Health Act).
Clause 163 inserts a new section 280A. This section has been included to
clarify the original policy intent concerning the application of chapter 6,
part 4. Namely, that the research provisions should operate alongside, not
over-ride, other legislative provisions that allow for health information held
by Queensland Health to be disclosed.
The amendment will ensure that the original intent of the provisions is
realised by clarifying that part 4 does not prevent health information held
by the department also being disclosed under other relevant provision in the
Public Health Act 2005 (such as ss55, 79, 107 and 222), or another Act
(such as Part 7 of the Health Services Act 1991).
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Health and Other Legislation Amendment Bill 2009
Clause 164 amends section 282, which sets out the application process
whereby a person may apply to the chief executive for health information
held by the department for research being conducted by the person or by an
entity of which the person is a member. This section has been amended as
a consequence of the insertion of new section 279A, which clarifies that
part 4 only applies to health information held by the department if the
information relates to an individual who could be identified from the
information. Consequently, the references to "information identifying a
person" in this section are redundant
Clause 165 amends section 284, which requires the chief executive to
consider an application for health information held by the department as
soon as practicable and provide the applicant with a written notice setting
out the chief executive's decision.
Subsection 284(3) is to be amended in light of the new section 279A. As
outlined above, this section has been inserted to clarify that the research
provisions will only apply to health information held by the department if
the information relates to an individual who could be identified from the
information. Consequently, the reference to "information identifying a
person" in subsection (3) is redundant.
Subsection 284(8) has been inserted to clarify that when considering an
application, the chief executive is not required to consult with individuals
to whom the information relates before granting access to the information
for research purposes. Following the commencement of the Act, it was
suggested that a decision to grant a researcher access to potentially
identifying health information is subject to the requirements of natural
justice. If this were the case, the chief executive would be required to notify
each person to whom the information relates and give them an opportunity
to respond. This would make the provision unworkable and would be
contrary to the underlying policy objective of the legislation. Under
subsection 284(2), the chief executive may only approve access to health
information held by Queensland Health if satisfied "that the provision of
health information held by the department is in the public interest, having
regard to the opportunities the research will provide for increased
knowledge and improved health outcomes and the privacy of individuals
who supply health information to health providers."
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Health and Other Legislation Amendment Bill 2009
Part 20 Amendment of Speech
Pathologists Registration Act
2001
Clause 166 specifies that this Part amends the Speech Pathologists
Registration Act 2001.
Clause 167 amends section 64 to allow provisional general registration to
be granted for up to 12 months instead of the existing maximum period of 6
months.
Clause 168 amends section 82 to clarify that it is a ground for cancellation
of general registration if a registrant ceases to have, or does not have the
qualifications, for general registration. The amendment also updates the
existing ground for cancellation based on giving false information to the
board, to ensure consistency with new section 207.
Clause 169 amends section 96 to specify that a failure by the board to make
a decision on an application to review conditions is taken to be a decision
to confirm the conditions, instead of a decision to remove them.
Clause 170 amends section 97 to specify that a failure by the board to make
a decision on a review of conditions agreed to between the board and the
registrant is taken to be a decision to confirm the conditions, instead of a
decision to remove them.
Clause 171 amends section 99 to remove references to a deemed decision
under section 96 or section 97 to remove conditions.
Clause 172 amends section 113 to clarify that it is a ground for cancellation
of special purpose registration if a registrant ceases to have, or does not
have the qualifications, for special purpose registration. The amendment
also updates the existing ground for cancellation based on giving false
information to the board, to ensure consistency with new section 207.
Clause 173 replaces section 207 with a new section, which contains various
offences in relation to materially false information or documents. The
offences are the same as in section 210 of the Chiropractors Registration
Act 2001 as outlined in the notes for clause 10 of the Bill.
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Health and Other Legislation Amendment Bill 2009
Part 21 Amendment of Tobacco and
Other Smoking Products Act
1998
Clause 174 states that this part amends the Tobacco and Other Smoking
Products Act 1998.
Clause 175 amends the definition of `smoking product' in section 25 to
remove `cigarette papers' and insert `smoking related product'. This clause
also inserts a definition for `smoking related product'. The effect of this
amendment is to capture products that are primarily used in the
consumption of a tobacco product, herbal cigarette or loose smoking blend
in the advertising, display and promotion provisions, and not just cigarette
papers.
This clause will also ensure that products that share the same trademark or
brand as a smoking product, but are not primarily used in the consumption
of a tobacco product, herbal cigarette or loose smoking blend, can continue
to be sold without breaching section 26L of the Act (supply of object or
entitlement that promotes smoking product etc).
Smoking related products will be prescribed under regulation. These
products are expected to include such things as: cigarette papers, filters,
tubes, rolling machines, hand held machines for injecting tobacco into
paper tubes, cigar and cigarette holders, cigar cutters and cigarette tips.
Therefore, these items can continue to be sold, but will be captured by the
display restrictions.
The definition of smoking related products is not expected to include such
things as: lighters, lighter fluid, matches, pipe cleaners, gas containers for
cigars and cigarettes, petroleum lighters, refill units for gas and petrol
lighters, fuel for pyrophoric lighters, cigarette cases and butt bins.
Therefore, items such as these which are not prescribed in the regulation
can continue to be sold outside the display restrictions, for example, by
supermarkets in grocery aisles.
Clause 176 amends section 26L to provide for the exemption of a product
or object from the application of the section. This is necessary to except
products for which the Bill would otherwise apply but do not relate directly
to the promotion of a smoking product, trademark or brand of a smoking
product, or the name or interests of a manufacturer or distributor of a
smoking product. It would not be justifiable for the offence provision to
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Health and Other Legislation Amendment Bill 2009
apply to companies manufacturing products not related to smoking
products.
The clause clarifies that the section does not apply to an object if:
· the primary purpose of the object is not to promote a smoking product,
a trademark or brand of a smoking product (or part of a trademark or
brand of a smoking product), or the name or interests of a
manufacturer or distributor of a smoking product; and
· the object was either:
· lawfully available for supply in Queensland on or after 31 May
2002 and before 31 December 2005; or
· substantially the same, and made by the same person, as an
object that was lawfully available for supply in Queensland on or
after 31 May 2002 and before 31 December 2005.
The effect of this amendment is to exempt objects or products that were
lawfully available for supply (ie. to sell, give-away etc) after section 26L
first commenced on 31 May 2002 (eg. lighter fluid with the trademark or
brand of a smoking product on it), but before the products inadvertently
became unlawful when amendments to the definition of `smoking product'
commenced on 31 December 2005.
The exemption approach is consistent with the policy adopted by the
Commonwealth in the Tobacco Advertising Prohibition Act 1992 (Cth)
whereby persons may seek an exemption under that Act to continue to sell
non-promotional items, such as cologne and watches, that have a tobacco
product trademark.
Clause 177 inserts new section 26PB to state that Part 2B of the Act does
not apply to a vehicle to which [the new] Part 2BA applies. This
amendment is required to clarify that the prohibition of smoking in
enclosed places still applies to vehicles such as boats, trains and aircraft.
Clause 178 amends section 26Q to remove the definition of `exempt
vehicle', which is no longer required in Part 2B of the Act. As a result of
including a new offence relating to smoking in motor vehicles with a child
present, some restructuring of the Act occurred. The offences relating to
smoking in motor vehicles have been included in the new Part 2BA.
Clause 179 amends section 26R to omit subsection (2)(c) to remove the
reference to `exempt vehicle', which is related to the amendment to section
26Q and the insertion of new Part 2BA. This clause also renumbers
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Health and Other Legislation Amendment Bill 2009
subsections (d) and (f) to reflect the removal of subsection (c) in this Bill
and the removal of subsection (e) in 2004.
Clause 180 inserts a new Part 2BA - Smoke-free motor vehicles.
Part 2BA contains offences relating to motor vehicles that are either not
covered, or no longer covered, in Part 2B (eg. offences relating to enclosed
places, which include an aircraft, boat or train).
The new section 26VA provides definitions for the terms motor vehicle,
road and road-related area.
The definition of motor vehicle excludes an aircraft, boat or train as these
are covered under the definition of vehicle used for enclosed places (Part
2B). The definition of road refers to the definition in the Transport
Operations (Road Use Management) Act 1995, schedule 4 and the
definition of road-related area refers to the definition in the Transport
Operations (Road Use Management - Road Rules) Regulation 1999,
section 13. The definitions will ensure that areas such as a shoulder, traffic
island or a nature strip adjacent to a road be captured. However, it is not
intended that private residential driveways be captured.
New section 26VB provides for the offence of smoking in a vehicle being
used for business persons if another person is in the vehicle and if the
vehicle is on a road or road-related area. This offence was previously
included under Part 2B.
New section 26VC provides for the offence of smoking in a vehicle if a
person in the vehicle is under the age of 16 years and the vehicle is on a
road or road-related area.
Section 26VD provides a defence for the new offence of smoking in a
vehicle with a person under the age of 16 years present if the person
charged with the offence can prove, at the time of the offence, that the
person honestly and reasonably believed that no person in the vehicle was
under 16 years of age.
Section 26VE provides for the efficient conduct of prosecutions for the
offence of smoking in a motor vehicle with a person under the age of 16
years present. The clause provides that a statement by a police officer in
relation to the offence is evidence of the elements of the offence, being
that:
· a person in the motor vehicle was under the age of 16 years;
· the thing was a smoking product;
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Health and Other Legislation Amendment Bill 2009
· the thing was a motor vehicle;
· the place was a road.
This clause also enables a defendant to challenge the following elements of
the offence at the hearing of a charge, providing the defendant advises the
prosecution in the approved form at least 14 days before the hearing date
and signs the approved form:
· a person in the motor vehicle was under the age of 16 years;
· the thing was a smoking product.
To enable efficient prosecutions, the evidence of a police officer must be
accepted as proof of the following matters:
· the person seen by the police officer in the motor vehicle was under 16
years of age;
· the thing being smoked by a person in the motor vehicle was a
smoking product.
However, the court may accept the above evidence as proof only if:
· the court considers the belief to be reasonable;
· there is no evidence to the contrary.
These evidentiary provisions do not remove a Magistrate's discretion to
accept or reject evidence from a police officer. Furthermore, procedural
safeguards will ensure that if the court does not accept the evidence of the
police officer, or if there is doubt about the evidence, the prosecution will
need to prove each element beyond a reasonable doubt. Without these
evidentiary provisions, the prosecution may need to obtain a birth
certificate to prove the child was under 16 years of age, and potentially a
laboratory analysis to prove that the cigarette was a smoking product, for
each offence.
Clause 181 inserts new Division 4 into Part 2C to provide for the regulation
by local government of smoking at public transport waiting points and
outdoor pedestrian malls.
New section 26ZPA inserts definitions for ferry service, local government,
local government area, local law, outdoor pedestrian mall, public
passenger service, and public passenger waiting point.
New section 26ZPB provides authority for a local government to make a
local law prohibiting smoking at all or part of a public transport waiting
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Health and Other Legislation Amendment Bill 2009
point or an outdoor pedestrian mall. The local government may only do so
if the public transport waiting point is not enclosed (which is defined in the
Act) and if the waiting point is under the local government's control. This
clause also restricts the maximum penalty a local government may provide
for an offence against a local law made under this provision to 20 penalty
points.
New section 26ZPC clarifies that, if a local government makes a law to
prohibit smoking at an outdoor pedestrian mall and that outdoor pedestrian
mall is prescribed in schedule 2 of the Tobacco and Other Smoking
Products Regulation 1998 under section 26ZJ(3)(b) as a mall to which
section 26ZJ(1) does not apply, then the local law applies despite the
Tobacco and Other Smoking Products Regulation 1998.
Currently, an outdoor pedestrian mall may be prescribed under section
26ZJ(3)(b) to exempt a person from the offence in section 26ZJ(1) of
smoking within 4 metres of any part of an entrance to an enclosed place.
This means that, for entrances to enclosed places located within a
prescribed outdoor pedestrian mall, a person does not commit an offence of
smoking within 4 metres of the entrance to the enclosed place. However, if
a local government makes a local law to prohibit smoking at a prescribed
outdoor pedestrian mall, then a conflict between state law and local
government law would arise. This provision clarifies that, in these
circumstances, the local law will prevail and smoking will be prohibited at
the prescribed outdoor pedestrian mall, including within 4 metres of an
entrance to an enclosed place within that mall.
New section 26ZPD provides that the chief executive of Queensland Health
may, by written notice to a local government, request information about its
administration and enforcement of a local law made under new section
26ZPB. This will enable Queensland Health to collate information about
which local governments have decided to exercise their powers to regulate
smoking in outdoor pedestrian malls and public transport waiting points,
and to monitor the overall enforcement of the bans. The local government
is required to comply with the request.
New section 26ZPE clarifies that where a proceeding for an offence is
taken for a contravention of local law made by a local government under
new section 26ZPB or if a court imposes a fine for a conviction for an
offence against a local law made by a local government under new section
26ZPB, the fine must be paid to the local government that commenced the
proceeding.
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Health and Other Legislation Amendment Bill 2009
Clause 182 amends section 26ZPA to renumber it as section 26ZPF, to
provide for the inclusion of new provisions before it.
Clause 183 amends the schedule (Dictionary) to omit the definition of
exempt vehicle which is now redundant and insert a definition of smoking
related product, which refers to the new definition in section 25.
Part 22 Amendment of Workers'
Compensation and
Rehabilitation Act 2003
Clause 184 states that this part amends the Workers' Compensation and
Rehabilitation Act 2003.
Clause 185 amends section 132 to enable a nurse practitioner who attends a
claimant to issue a workers' compensation medical certificate if the injury
is a minor injury and the nurse practitioner is acting in accordance with the
workers' compensation certificate protocol.
Clause 186 amends section 141 to provide the time periods from which
compensation is payable where a claimant has a minor injury and has been
attended by a nurse practitioner.
Clause 187 amends the Dictionary to include definitions for minor injury,
nurse practitioner and workers' compensation certificate protocol.
A nurse practitioner is defined to be a registered nurse under the Nursing
Act 1992 whose annual licence certificate is endorsed to show authorisation
to practise as a nurse practitioner.
The workers' compensation certificate protocol is a document stating the
circumstances or conditions under which a nurse practitioner may issue a
certificate under section 132 (1)(a). For example, the protocol may set
training requirements for nurse practitioners to complete prior to issuing
certificates. The protocol must be certified by the chief executive officer of
the Authority and the chief executive of the Department of Health, and
must be published by the department.
© State of Queensland 2009
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