Chapter 1Preliminary
Introduction—
This Chapter contains provisions that are helpful
in understanding the Act as a whole. It also contains some machinery
provisions.
1Name of
Act
This Act is the Health Services
Act 1997.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Definitions
Expressions used in this Act (or in a particular
provision of this Act) that are defined in the Dictionary at the end of the
Act have the meanings set out in the Dictionary.
Note—
Expressions used in this Act (or a particular
provision of this Act) that are defined in the Interpretation
Act 1987 have the meanings set out in that
Act.
4Objects of
Act
The objects of this Act are:
(a)
to establish a system of area health services for
the whole of the State so as to provide a more effective basis for the
planning and delivery of health services within the State,
and
(b)
to constitute statutory health corporations to
deliver health services and health support services other than on the basis of
a specified area, and
(c)
to recognise as affiliated health organisations
certain non-government institutions and organisations that provide health
services and health support services within the State that contribute
significantly to the public health system, and
(d)
to re-affirm the adoption of the Medicare
Principles and Commitments as guidelines for the delivery of public hospital
services (within the meaning of section 23E of the Health Insurance Act
1973 of the Commonwealth) and to facilitate the collection
of fees from patients of public health organisations in respect of services
received by them that are not required to be provided free of charge under the
Medicare Agreement, and
(e)
to regulate the conditions of contracts of
visiting medical officers appointed by public health organisations,
and
(f)
to facilitate transfers of staff within the
public health system and to avoid unnecessary staff redundancies,
and
(g)
to require visiting practitioners and staff of
public health organisations to notify the organisation that has appointed or
employed them of any charge or conviction for a serious sex or violence
offence or of a misconduct finding (such as findings of professional
misconduct or unsatisfactory professional conduct), and
(h)
to specify the action that may be taken in
relation to convictions for serious sex or violence offences committed by
visiting practitioners or staff members of public health organisations,
and
(i)
to make provision for the funding of public
health organisations, and
(j)
to facilitate the efficient and effective
administration of the public health system generally by providing mechanisms
for such matters as inquiries, inspections and transfers of
resources.
5Notes
Introductions to Chapters and other notes
included in this Act are explanatory notes and do not form part of this
Act.
Note—
For the purposes of comparison, a number of
provisions of this Act contain bracketed notes in headings drawing attention
(“cf”) to equivalent or comparable (though not necessarily
identical) provisions of other Acts. Abbreviations in the notes
include:
•
AHS Act: Area Health Services Act
1986
•
PH Act: Public Hospitals Act
1929
•
PSM Act: Public Sector
Management Act 1988
Chapter 2Structure of the public health
system
Introduction—
This Chapter describes the structure of the
public health system and explains the rationale and functions of the various
elements of that structure.
The basic elements of the public health system
are the area health services, statutory health corporations and affiliated
health organisations. These public health organisations are intended to
complement each other in the provision of health services and health support
services within the State.
Area health services and statutory health
corporations are essentially statutory-based entities. However, each kind of
organisation has different areas of concern.
Area health services, which are constituted by
Chapter 3, are principally concerned with the provision of health services to
residents within their areas. Statutory health corporations, which are
constituted by Chapter 4, provide health services and health support services
other than on the basis of defined areas. For example, it may be necessary to
constitute a statutory health corporation rather than to include a health
service within an area health service because the health service concerned is
to be provided on a Statewide basis.
Affiliated health organisations are non-profit,
religious, charitable or other non-government organisations or institutions
providing certain health services or health support services within the State
(whether on a local basis or Statewide) that contribute significantly to the
operation of the public health system. However, an affiliated health
organisation is not an affiliated health organisation in relation to all of
its services and institutions. It is only an affiliated health organisation in
relation to the recognised establishments and recognised services listed in
column 2 of Schedule 3 next to its name. Chapter 5 makes provision for the
recognition of affiliated health organisations.
Collectively, all the employees of these public
health organisations constitute the NSW Health Service. Chapter 9 makes
provision for the determination of the employment conditions of those
employees and for their transfer within the public health
system.
Public hospitals are hospitals controlled by
these public health organisations. The Act draws a distinction between
hospitals and hospital services. In essence, a hospital is an institution at
which hospital services are provided. It is a place rather than a service. A
hospital service is itself but one kind of health service. Chapters 6 and 7
make provision for the guidelines under which public hospitals operate and for
the fees that may be charged for hospital services and other health
services.
6What is the public health
system?
For the purposes of this Act, the public health system consists
of:
(a)
all the area health services,
and
(b)
all the statutory health corporations,
and
(c)
all the affiliated health organisations in
respect of their recognised establishments and recognised
services.
7What is a public health
organisation?
A public
health organisation is:
(a)
an area health service, or
(b)
a statutory health corporation,
or
(c)
an affiliated health organisation in respect of
its recognised establishments and recognised
services.
8What is an area health
service?
(1)
An area
health service is an area health service constituted under
section 17 and specified from time to time in Schedule
1.
(2)
The principal reason for constituting area health
services is to facilitate the conduct of public hospitals and health
institutions and the provision of health services for residents of the areas
of the State in respect of which the services are
constituted.
Note—
The area health service system was first
established under the Area Health Services Act 1986. However,
that system was restricted to certain metropolitan areas of the State. The
system of area health services established by this Act extends throughout the
whole of the State.
9Primary purposes of area
health services
(cf AHS Act s 19)
The primary purposes of an area health service in
its area are as follows:
(a)
to provide relief to sick and injured persons
through the provision of care and treatment,
(b)
to promote, protect and maintain the health of
the community.
10Functions of area health
services
(cf AHS Act ss 19 and 20)
The functions of an area health service are as
follows:
(a)
generally to promote, protect and maintain the
health of the residents of its area,
(b)
to conduct and manage public hospitals, health
institutions, health services and health support services under its
control,
(c)
to give residents outside its area access to such
of the health services it provides as may be necessary or
desirable,
(d)
to achieve and maintain adequate standards of
patient care and services,
(e)
to ensure the efficient and economic operation of
its health services and health support services and use of its
resources,
(f)
generally to consult and co-operate (as it
considers appropriate) with any one or more of the following:
(i)
the Health Care Complaints Commission constituted
under the Health Care Complaints Act
1993,
(ii)
health professionals practising in its
area,
(iii)
other individuals and organisations (including
voluntary agencies, private agencies and public or local authorities)
concerned with the promotion, protection and maintenance of
health,
(g)
to investigate and assess health needs in its
area,
(h)
to plan future development of health services in
its area, and, towards that end:
(i)
to consult and plan jointly with the Department
of Health and such other organisations as it considers appropriate,
and
(ii)
to support, encourage and facilitate the
organisation of community involvement in the planning of those services,
and
(iii)
to develop strategies to facilitate community
involvement in the planning of those services and to report on the
implementation of those strategies in annual reports and to the
Minister,
(i)
to establish and maintain an appropriate balance
in the provision and use of resources for health protection, health promotion,
health education and treatment services,
(j)
to provide services to persons with whom it has
contracted or entered into an agreement under section 37
(2),
(k)
to administer funding for recognised
establishments and recognised services of affiliated health organisations
where that function has been delegated to it by the Minister under section
129,
(l)
to provide training and education relevant to the
provision of health services,
(m)
to undertake research and development relevant to
the provision of health services,
(n)
to make available to the public information and
advice concerning public health and the health services available within its
area,
(o)
to carry out such other functions as are
conferred or imposed on it by or under this or any other Act or as may be
prescribed by the regulations.
s 10: Am 2001 No 56,
Sch 2.21.
11What is a statutory health
corporation?
(1)
A statutory
health corporation is a statutory health corporation
constituted under section 41 and specified from time to time in Schedule
2.
(2)
The principal reason for constituting statutory
health corporations is to enable certain health services and health support
services to be provided within the State other than on an area
basis.
Note—
Statutory health corporations are intended to
replace the system of incorporated hospitals and corporatised boards of
directors of associated organisations established under Part 4 and Division 2
of Part 5A of the Public Hospitals Act 1929
respectively.
12Functions of statutory health
corporations
(cf PH Act ss 27A and 29I)
A statutory health corporation has the following
functions:
(a)
to conduct public hospitals or health
institutions or to provide health services or health support services (or any
combination of these),
(b)
to conduct such public hospitals and health
institutions and provide such health services or health support services as
the Minister determines from time to time under section
53,
(c)
to achieve and maintain an adequate standard in
the conduct of any public hospital or health institution, or the provision of
a health service or health support service, under its
control,
(d)
to ensure the efficient and economic operation of
any such public hospital, health institution, health service or health support
service,
(e)
to carry out such other functions as are
conferred or imposed on it by or under this or any other Act or as may be
prescribed by the regulations.
13What is an affiliated health
organisation?
(1)
An affiliated health organisation is an
organisation or institution that is an affiliated health organisation under
section 62.
(2)
An organisation or institution is an affiliated
health organisation only in relation to any of its recognised establishments
or recognised services.
Note—
The Dictionary defines a recognised establishment of an
affiliated health organisation to mean a hospital or health institution of the
organisation that is listed in column 2 of Schedule 3 next to its name. It
also defines a recognised service of an affiliated
health organisation to mean a health service or health support service of the
organisation that is listed in column 2 of Schedule 3 next to its
name.
(3)
The principal reason for recognising affiliated
health organisations is to enable certain non-profit, religious, charitable or
other non-government organisations and institutions to be treated as part of
the public health system where they control hospitals, health institutions,
health services or health support services that significantly contribute to
the operation of that system.
Note—
Affiliated health organisations are intended to
replace the system of separate institutions and associated organisations
recognised under Part 5AA and section 29B (1) (a) of the Public Hospitals Act
1929, respectively.
14Functions of affiliated health
organisations
(cf PH Act s 29AD)
The functions of an affiliated health
organisation are as follows:
(a)
to achieve and maintain an adequate standard in
the conduct of its recognised establishments and the provision of its
recognised services,
(b)
to ensure the efficient and economic operation of
those establishments and services,
(c)
to carry out such other functions as are
conferred or imposed on it by or under this or any other Act or as may be
prescribed by the regulations.
15What is a public
hospital?
A public
hospital is:
(a)
a hospital controlled by an area health service,
or
(b)
a hospital controlled by a statutory health
corporation, or
(c)
a hospital that is a recognised establishment of
an affiliated health organisation, or
(d)
a hospital controlled by the Crown (including the
Minister or the Health Administration Corporation).
Note—
Clause 2 of Part 2 of the Dictionary provides
that a reference in this Act to a hospital controlled by a public health
organisation or any other body or person includes a reference to a hospital
that is conducted by or on behalf of such an organisation, body or
person.
16Who constitutes the NSW Health
Service?
The NSW
Health Service consists of:
(a)
all persons employed under section 33 by each
area health service, and
(b)
all persons employed under section 54 by each
statutory health corporation, and
(c)
all persons employed as members of staff by each
affiliated health organisation in relation to its recognised establishments
and recognised services.
Note—
The NSW Health Service is not part of the Public
Service for the purposes of the Public Sector
Management Act 1988.
Clause 1 (2) (b) of Part 2 of the Dictionary
provides that a reference in this Act (however expressed) to the staff,
assets, rights or liabilities of an affiliated health organisation in relation
to its recognised establishments or recognised services is a reference to the
staff, assets, rights or liabilities of the organisation relating solely or
principally to the operation of the establishment or the provision of the
service.
Chapter 3Area health
services
Introduction—
This Chapter constitutes as bodies corporate the
area health services specified in column 1 of Schedule 1 in respect of the
areas described for each service in that Schedule. It also constitutes area
health boards for each area health service and provides for the appointment of
a chief executive officer to manage the affairs of each
service.
Area health services are given various powers
concerning the provision of health services. These include powers to invest,
contract, acquire and dispose of property and employ staff. They are also
given the power to make by-laws in relation to certain
matters.
Part 1Constitution of area health
services
17Constitution of area health
services
(cf AHS Act s 5)
(1)
There are constituted by this section such area
health services as are specified from time to time in column 1 of Schedule
1.
(2)
An area health service is a body corporate with
the corporate name specified in column 1 of Schedule 1.
18Areas in respect of which area
health services constituted
(cf AHS Act ss 4 and 7)
(1)
The area in respect of which an area health
service is constituted is:
(a)
if the area comprises a local government area (or
part of a local government area) or a local government area constituted as a
city (or a part of such a city)—the local government area (or part of a
local government area) or city (or part of a city) described in column 2 of
Schedule 1 in relation to the area health service, or
(b)
if the area comprises an area other than a local
government area (or part of a local government area)—the area described
in any manner (including by reference to a description contained in another
document) in column 3 of Schedule 1 in relation to the area health
service.
(2)
A reference in column 2 of Schedule 1 to a part
of a local government area is a reference to such part of the local government
area as is described by the regulations for the purposes of that
reference.
(3)
A reference in column 3 of Schedule 1 to the
unincorporated area is a reference to such part of the land within the Western
Division of the State as is not within a local government
area.
19Amendment of Schedule 1 (Names
and areas of area health services)
(cf AHS Act ss 6 and 8)
(1)
The Governor may, by order published in the
Gazette:
(a)
amend column 1 of Schedule 1 by inserting,
altering or omitting the name of an area health service,
or
(b)
amend column 2 or 3 (or both) of Schedule 1 by
inserting, altering or omitting a description of the area in respect of which
an area health service is (or was) constituted, or
(c)
omit Schedule 1 and insert instead a Schedule
containing the names of area health services and descriptions of the areas in
respect of which the area health services are
constituted.
(2)
If an area in respect of which an area health
service is constituted:
(a)
is described by reference to a local government
area that is constituted as a city, and
(b)
the name of the city (but not the boundaries) is
changed,
a reference in column 2 of Schedule 1 to the old name of
the city is taken to include a reference to the new name of the
city.
(3)
The boundaries of the area in respect of which an
area health service that is described by reference to any local government
area or part of any local government area are unaffected by a change in the
boundaries of the local government area and, for that purpose, the boundaries
of the local government area are taken to remain the same as they were when
reference to the local government area was included in column 2 of Schedule
1.
20Dissolution, amalgamation or
change of name of area health services
(cf AHS Act s 9)
(1)
The Governor may, by order published in the
Gazette:
(a)
dissolve an area health service,
or
(b)
amalgamate 2 or more area health services,
or
(c)
change the name of an area health
service,
and may, in the order, amend Schedule 1
accordingly.
(2)
An order under this section must specify the date
(being a date that is on or after the date it is published in the Gazette) on
which it takes effect. However, if no date is specified in the order, the
order is taken to have specified the date on which it is published in the
Gazette as the date on which it takes effect.
(3)
An order is not to be made under this section
unless the Minister is of the opinion that the order is in the public interest
and has recommended to the Governor that the order be
made.
(4)
A dissolution, amalgamation or change of name
under this section may be effected without holding an
inquiry.
Note—
Part 3 of Chapter 10 provides for the transfer by
order of the Governor of public hospitals, health institutions, health
services, health support services and property between area health services
and statutory health corporations.
Section 116 provides for the transfer of staff
between public health organisations.
21Consequential and transitional
provisions on the making of orders
(cf AHS Act s 10)
(1)
Schedule 4 has effect with respect to orders made
under this Part.
(2)
An order under this Part may contain provisions,
not inconsistent with the provisions of or made under Schedule 4, of a savings
and transitional nature consequent on the making of the
order.
22Provisions relating to the
corporate nature of area health services
(cf AHS Act s 11)
An area health service:
(a)
has perpetual succession, and
(b)
is to have an official seal,
and
(c)
may take proceedings, and be proceeded against,
in its corporate name, and
(d)
may do and suffer all other things that a body
corporate may, by law, do and suffer and that are necessary for or incidental
to the purposes for which the area health service is constituted,
and
(e)
does not represent the
Crown.
Note—
Section 150 (1) of the Evidence Act 1995 provides for judicial
notice to be taken in relation to a seal of any body established under an
Act.
Part 2Area health
boards
23Constitution of
boards
(cf AHS Act s 12)
(1)
There is constituted by this section an area
health board for each area health service.
(2)
An area health board is to be called the
“[name of area health service]
Board”.
24Board to control affairs of
area health service
(cf AHS Act s 13)
(1)
The affairs of an area health service are to be
controlled by the area health board for that service.
(2)
Any act, matter or thing done in the name of, or
on behalf of, an area health service by the area health board for that
service, or with the authority of that board, is taken to have been done by
that service.
25Board subject to control and
direction of Minister
(cf AHS Act s 14)
An area health board is subject to the control
and direction of the Minister, except in relation to the contents of a
recommendation or report made by the board to the
Minister.
26Membership of
boards
(cf AHS Act s 15)
(1)
An area health board is to consist of the
following persons:
(a)
the chief executive officer of the area health
service (who holds office as an ex-officio member),
(b)
persons (not being less than 8 or more than 11)
appointed by the Minister.
(2)
Of the persons appointed by the Minister, 1 is to
be a person elected in the manner prescribed by regulations under clause 2 of
Schedule 5.
27Provisions relating to members
and procedure of boards
(cf AHS Act s 16)
Schedule 5 has effect with respect to the members
and procedure of area health boards.
28Chief executive officer of
area health service
(cf AHS Act s 17)
(1)
The Governor is to appoint a chief executive
officer for each area health service.
(2)
The chief executive officer of an area health
service:
(a)
is responsible for the management of the affairs
of the area health service, subject to and in accordance with any directions
of the area health board for that service, and
(b)
has and may exercise such other functions as are
conferred or imposed on the chief executive officer by or under this or any
other Act.
(3)
The employment of the chief executive officer of
an area health service is subject to Part 2A of the Public
Sector Management Act 1988, but is not subject to Part 2
of that Act. However, nothing in this subsection enables the removal of a
chief executive officer from office otherwise than by the
Governor.
Note—
Part 2 of the Public Sector
Management Act 1988 makes provision for the structure and
constitution of the Public Service of New South Wales and for the appointment
of officers in that Service. Part 2A of that Act makes provision for the
appointment and the terms and conditions of employment of public sector
executives.
(4)
The chief executive officer of an area health
service is taken, while holding that office, to be employed by the area health
service concerned. However, nothing in this subsection enables an area health
service to remove a chief executive officer from office.
29Removal of members and
appointment of administrator
(cf AHS Act s 18)
(1)
The Governor may at any time, by order published
in the Gazette:
(a)
remove any member (including the chief executive
officer) or all members of an area health board from office,
or
(b)
remove all members of an area health board from
office and appoint, as administrator of the area health service concerned, a
person specified in the order for such period as may be specified in the
order, or
(c)
remove all members of an area health board (other
than the chief executive officer) from office and appoint, as administrator of
the area health service concerned, the chief executive officer for such period
as may be specified in the order.
(2)
The chief executive officer of an area health
service ceases to hold office as chief executive officer if removed from
office as a member of the area health board of the
service.
(3)
An administrator of an area health service has
and may exercise, subject to any conditions that may be specified in the order
by which the administrator was appointed, all the functions of the area health
board for that service.
(4)
An administrator of an area health service is
entitled to be paid from the funds of that service such remuneration
(including travelling and subsistence allowances) as the Minister may from
time to time determine in respect of the administrator.
(5)
The regulations may make provision with respect
to administrators of area health services.
Part 3Functions of area health
services
30Combined management or
assistance in management of public hospitals, health institutions, health
services or health support services
(cf AHS Act s 22)
(1)
Any two or more area health services, or any one
or more area health services and any one or more non-area health
organisations, may, by agreement, jointly control and manage any public
hospital, health institution, health service or health support
service.
(2)
An area health service may, by agreement, manage
any public hospital, health institution, health service or health support
service under the control of another area health service or a non-area health
organisation, or assist in that management, for and on behalf of that other
area health service or non-area health organisation.
(3)
An area health service must not enter into an
agreement under this section without the approval of the
Minister.
(4)
A public hospital, health institution, health
service or health support service is not, for the purposes of this or any
other Act, to be regarded as being under the control of an area health service
because the area health service manages, or assists in the management of, the
hospital, health institution, health service or health support service for and
on behalf of another area health service or of a non-area health
organisation.
(5)
In this section:
non-area
health organisation means:
(a)
a statutory health corporation,
or
(b)
an affiliated health
organisation.
31Opening and closing of
hospitals, health institutions, health services or health support
services
(cf AHS Act s 23)
(1)
An area health service may, subject to any
direction of the Minister under section 25, at any time establish such
hospitals, health institutions, health services or health support services as
it thinks necessary for the exercise of its functions.
(2)
An area health service may, subject to any
direction of the Minister under section 25, at any time:
(a)
close any public hospital or health institution,
or cease to provide any health service or health support service, under its
control, or
(b)
restrict the range of health care or treatment
provided by any public hospital, health institution, health service or health
support service under its control.
(3)
An area health service must, before implementing
any decision to exercise its functions under subsection (1) or (2):
(a)
notify the Director-General of the decision,
and
(b)
ensure that the decision is appropriate having
regard to the functions of the area health service.
(4)
The Minister may direct an area health service to
do any of the following if the Minister is satisfied that it is in the public
interest to do so:
(a)
establish any hospital, health institution,
health service or health support service,
(b)
close any public hospital or health institution,
or cease to provide any health service or health support service, under its
control,
(c)
restrict the range of health care or treatment
provided by any public hospital, health institution or health service under
its control.
32Minister may determine role,
functions and activities of area health services
(cf AHS Act s 24)
The Minister may, from time to time, determine
the role, functions and activities of any public hospital, health institution,
health service or health support service under the control of an area health
service and, for that purpose, give the area health board for that service any
necessary directions under section 25.
33Staff of area health
services
(cf AHS Act s 25)
(1)
An area health service may appoint and employ
such employees as may be necessary for the purpose of exercising its
functions.
(2)
Part 2 of the Public Sector
Management Act 1988 does not apply to or in respect of
persons employed under this section.
Note—
Part 2 of the Public Sector
Management Act 1988 makes provision for the structure and
constitution of the Public Service of New South Wales and for the appointment
of officers in that Service.
(3)
An area health service may arrange for the use of
the services of any staff (by secondment or otherwise) or facilities of a
Government agency or public authority.
Note—
Section 115 of this Act makes provision for the
determination of the conditions of employment of the staff of area health
services.
34Powers in relation to
property
(cf AHS Act s 27)
(1)
An area health service may do all or any of the
following:
(a)
acquire land (including an interest in land), for
the purpose of the exercise of its functions, by agreement or by compulsory
process in accordance with the Land Acquisition
(Just Terms Compensation) Act 1991 and acquire any other
property (whether or not the land or other property is required for the
purposes of any public hospital, health institution, health service or health
support service under the control of the area health
service),
(b)
sell, lease, mortgage or otherwise dispose of
land or any other property,
(c)
dedicate land as a public road under the Roads Act
1993.
(2)
An area health service must not, without the
approval of the Minister, do any of the following:
(a)
acquire land by any means,
(b)
dispose of land by sale, lease, mortgage or
otherwise,
(c)
dedicate land as a public
road.
(3)
An area health service may request the Minister
to give approval to (and the Minister may approve) a disposition or dedication
of land or a use of land, being a disposition, dedication or use:
(a)
that is contrary to a provision of, or a trust
arising under, the Crown grant of that land, or
(b)
that, if this section had not been enacted, may
make the land liable to be forfeited to the Crown.
(4)
If the Minister has given an approval under this
section to a disposition or dedication of land, or to a use of land, neither
the disposition or dedication of the land (or its subsequent use) nor the use
of the land:
(a)
is to be regarded as a breach of any provision
of, or any trust arising under, the Crown grant of that land,
or
(b)
is to make the land liable to be forfeited to the
Crown.
35Application of Public Works Act
1912
(cf AHS Act s 28)
(1)
For the purposes of the Public
Works Act 1912, any acquisition of land under section 34
(1) (a) is taken to be for an authorised work and the area health service
concerned is, in relation to that authorised work, taken to be the
Constructing Authority.
(2)
Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in
respect of works constructed under this Act.
36Power to accept property by
gifts, devises and bequests
(cf AHS Act s 29)
(1)
An area health service may acquire any property
by gift, devise or bequest and may agree to and carry out the conditions of
any such gift, devise or bequest, but only if the carrying out of any such
conditions is not inconsistent with the purposes and functions of the
service.
(2)
The rule of law against remoteness of vesting
does not apply to any such condition to which an area health service has
agreed.
(3)
An area health service may act as trustee of
money or other property vested in the area health service on
trust.
37Contracts of area health
service
(cf AHS Act s 30)
(1)
An area health service may make and enter into
contracts or agreements with any person for the performance of services, or
for the supply of goods, plant, machinery or material, by that person with
respect to the exercise by the area health service of its functions conferred
or imposed by or under this or any other Act.
(2)
An area health service may also, with the
approval of the Minister, make and enter into contracts or agreements with any
person for the provision of any service by the area health service to that
person. Any such contract or agreement may extend to the provision of the
service outside the area of the area health service.
(3)
Any contract or agreement under this section is
taken, for the purposes of the Constitution Act
1902, to be a contract or agreement for or on account of
the Public Service of New South Wales.
38Investments
(cf AHS Act s 31)
(1)
An area health service may invest money held by
it:
(a)
in such manner as may be authorised by the
Public Authorities (Financial Arrangements) Act
1987, or
(b)
if that Act does not confer power to invest money
so held, in any manner authorised for the time being for the investment of
trust funds and in any other manner approved by the Minister with the
concurrence of the Treasurer.
(2)
An area health service may at any time dispose of
any of its investments and apply the proceeds for the purpose of exercising
its functions.
(3)
This section is, in relation to the investment of
any funds, subject to the terms of any trust applying to those
funds.
39Area health service may make
by-laws
(cf AHS Act s 32)
(1)Power to make
by-laws
An area health service may, with the approval of
the Minister, make by-laws, not inconsistent with this Act or the regulations,
for or with respect to the following:
(a)
the management of any public hospital, health
institution, health service or health support service under its
control,
(b)
the provision of hospital services and other
health services to patients of any public hospital or health institution under
its control and to other persons,
(c)
the appointment, control and governance of
visiting practitioners in connection with public hospitals, health
institutions and health services under its control, including the conditions
subject to which visiting practitioners may perform work at or in relation to
any such hospital, institution or service,
(d)
the appointment, control and governance of
persons employed by it under section 33 and any other matter or thing
necessary or convenient to ensure the maintenance of discipline and efficiency
of any such employees or group or class of employees,
(e)
the custody and use of the seal of the area
health service,
(f)
the keeping of records concerning the acts,
decisions and proceedings of its area health board,
(g)
the procedure for the calling of meetings of its
area health board and for the conduct of business at those
meetings,
(h)
the appointment and functions of committees of
its area health board.
(2)Publication of model
by-laws
The Minister may publish an order in the Gazette
setting out the terms of model by-laws.
(3)Preconditions for making of
by-laws
A by-law may not be made by an area health
service for or with respect to any matter referred to in subsection (1) (c)
unless:
(a)
it is in substance the same as a model by-law
under an order for the time being in force under subsection (2) and the
Minister has received advice from the Medical Services Committee in relation
to the substance of the model by-law, or
(b)
the Minister has received advice from the Medical
Services Committee in relation to the substance of the by-law proposed to be
made by the area health service.
(4)Exception to
preconditions
Subsection (3) does not apply to a by-law if the
Medical Services Committee does not furnish advice to the Minister in relation
to the relevant model by-law or the by-law:
(a)
within 30 days after a notice from the Minister
requesting such advice has been served on the Committee,
or
(b)
within such further period as the Minister may
specify in the notice or in another notice served on the
Committee.
(5)What by-laws may provide
for
A provision of a by-law may do any one or any
combination of the following:
(a)
apply generally or be limited in its application
by reference to specified exceptions or factors,
(b)
apply differently according to different factors
of a specified kind,
(c)
authorise any matter or thing to be from time to
time determined, applied or regulated by any specified person or
body.
(6)Judicial
notice
Judicial notice is to be taken of a by-law
authenticated by the seal of the area health service concerned or in
accordance with section 135. It is to be presumed, in the absence of evidence
to the contrary, that all conditions and preliminary steps precedent to the
making of the by-law have been complied with and
performed.
40Delegations by area health
service
(cf AHS Act s 34)
(1)
An area health service may delegate to any of its
officers or employees the exercise of any of its functions, other than:
(a)
this power of delegation, or
(b)
the exercise of its functions under section 31
(2) (a) or (b), or
(c)
the power to make
by-laws.
Note—
Section 49 of the Interpretation
Act 1987 contains general provisions relating to the
delegation of functions.
(2)
The Minister may give any direction to an area
health service concerning delegations under this section that the Minister
thinks fit.
(3)
Nothing in this section authorises an area health
service to delegate the whole of its functions to another
person.
(4)
For the purposes of this section:
(a)
the functions of an area health service include
the functions of its area health board, and
(b)
the employees of an area health service include
any persons whose services are made use of by the area health service under
section 33 (3).
Chapter 4Statutory health
corporations
Introduction—
This Chapter constitutes as bodies corporate the
statutory health corporations named in Schedule 2. It also constitutes health
corporation boards for each statutory health corporation and provides for the
appointment of a chief executive officer to manage the affairs of each
corporation.
Statutory health corporations are given various
powers to assist them in providing health services and health support
services. These include powers to invest, contract, acquire and dispose of
property and employ staff. They are also given the power to make by-laws in
relation to certain matters.
Part 1Constitution of statutory
health corporations
41Constitution of statutory
health corporations
(cf AHS Act s 5, PH Act s 18 (1))
(1)
There are constituted by this section such
statutory health corporations as are specified from time to time in Schedule
2.
(2)
A statutory health corporation is a body
corporate with the corporate name specified in Schedule
2.
42Amendment of Schedule 2 (Names
of statutory health corporations)
(cf AHS Act s 6, PH Act s 18 (2) and
(2A))
The Governor may, by order published in the
Gazette:
(a)
amend Schedule 2 by inserting, altering or
omitting the name of a statutory health corporation, or
(b)
omit Schedule 2 and insert instead a Schedule
containing the names of statutory health
corporations.
43Dissolution, transfer,
amalgamation or change of name of statutory health
corporations
(cf AHS Act ss 9 and 21, PH Act ss 13A, 14 and
15)
(1)
The Governor may, by order published in the
Gazette:
(a)
dissolve a statutory health corporation,
or
(b)
transfer a statutory health corporation to an
area health service, or
(c)
amalgamate 2 or more statutory health
corporations, or
(d)
change the name of a statutory health
corporation,
and may, in the order, amend Schedules 1 and 2
accordingly.
(2)
An order under this section must specify the date
(being a date that is on or after the date it is published in the Gazette) on
which it takes effect. However, if no date is specified in the order, the
order is taken to have specified the date on which it is published in the
Gazette as the date on which it takes effect.
(3)
An order is not to be made under this section
unless the Minister is of the opinion that the order is in the public interest
and has recommended to the Governor that the order be
made.
(4)
A dissolution, transfer, amalgamation or change
of name under this section may be effected without holding an
inquiry.
Note—
Part 3 of Chapter 10 provides for the transfer by
order of the Governor of public hospitals, health institutions, health
services, health support services and property between area health services
and statutory health corporations.
Section 116 provides for the transfer of staff
between public health organisations.
44Consequential and transitional
provisions on the making of orders
(cf AHS Act ss 10 and 21 and Sch 6, PH Act ss 14,
15 and 19)
(1)
Schedule 4 has effect with respect to orders made
under this Part.
(2)
An order under this Part may contain provisions,
not inconsistent with the provisions of or made under Schedule 4, of a savings
and transitional nature consequent on the making of the
order.
45Provisions relating to the
corporate nature of statutory health corporations
(cf AHS Act s 11, PH Act s 18 (3))
A statutory health corporation:
(a)
has perpetual succession, and
(b)
is to have an official seal,
and
(c)
may take proceedings, and be proceeded against,
in its corporate name, and
(d)
may do and suffer all other things that a body
corporate may, by law, do and suffer and that are necessary for or incidental
to the purposes for which the corporation is constituted,
and
(e)
does not represent the
Crown.
Note—
Section 150 (1) of the Evidence Act 1995 provides for judicial
notice to be taken in relation to a seal of any body established under an
Act.
Part 2Health corporation
boards
46Constitution of health
corporation boards
(cf AHS Act s 12, PH Act s 22)
(1)
There is constituted a health corporation board
for each statutory health corporation.
(2)
A health corporation board is to be called the
“[name of statutory health corporation]
Board”.
47Health corporation board to
control affairs of statutory health corporation
(cf AHS Act s 13, PH Act s 22 (1))
(1)
The affairs of a statutory health corporation are
to be controlled by the health corporation board for that
corporation.
(2)
Any act, matter or thing done in the name of, or
on behalf of, a statutory health corporation by the health corporation board
for that corporation, or with the authority of that board, is taken to have
been done by that corporation.
48Health corporation board
subject to control and direction of Minister
(cf AHS Act s 14, PH Act s 22A (1))
A health corporation board is subject to the
control and direction of the Minister, except in relation to the contents of a
recommendation or report made by the board to the
Minister.
49Membership of health
corporation board
(cf AHS Act s 15, PH Act s 22 (1A))
(1)
A health corporation board is to consist of the
following persons:
(a)
the chief executive officer of the statutory
health corporation (who holds office as an ex-officio
member),
(b)
persons (not being less than 5 or more than 11)
appointed by the Minister.
(2)
Of the persons appointed by the Minister, 1 is to
be a person elected or, in the case of a statutory health corporation that has
fewer than 50 employees, elected or appointed, in the manner prescribed by
clause 2 of Schedule 5 or regulations made under that
clause.
s 49: Am 2003 No 52,
Sch 1 [1].
50Provisions relating to members
and procedure of boards
(cf AHS Act s 16, PH Act ss
23–27B)
Schedule 5 has effect with respect to the members
and procedure of health corporation boards.
51Chief executive officer of
statutory health corporation
(cf AHS Act s 17, PH Act s 40AB)
(1)Governor to appoint chief
executive officer
The Governor is to appoint a chief executive
officer for each statutory health corporation.
(2)Instrument of appointment to
specify type of appointment
In the instrument of appointment, the Governor is
to specify whether or not the appointment of the chief executive officer is an
appointment to which Part 2A of the Public Sector
Management Act 1988 applies.
(3)Employment that is subject to
Public Sector Management Act
1988
If the instrument of appointment specifies that
the appointment is an appointment to which Part 2A of the Public
Sector Management Act 1988 applies, the employment of the
chief executive officer is subject to Part 2A (but not Part 2) of that Act.
However, nothing in this subsection enables the removal of the chief executive
officer otherwise than by the Governor.
Note—
Part 2 of the Public Sector
Management Act 1988 makes provision for the structure and
constitution of the Public Service of New South Wales and for the appointment
of officers in that Service. Part 2A of that Act makes provision for the
appointment and the terms and conditions of employment of public sector
executives.
(4)Employment that is not subject
to Public Sector Management Act
1988
If the instrument of appointment specifies that
the appointment is not an appointment to which Part 2A of the Public Sector Management Act 1988
applies:
(a)
that Act does not apply to the employment of the
chief executive officer, and
(b)
the conditions of employment (including
remuneration) of the chief executive officer are, subject to the provisions of
the instrument of appointment or any subsequent instrument executed by the
Governor, to be determined in accordance with section 115 of this Act,
and
(c)
the chief executive officer ceases to hold office
if the chief executive officer:
(i)
dies, or
(ii)
resigns the office by instrument in writing
addressed to the Governor, or
(iii)
is removed from office by the
Governor.
(5)Functions of chief executive
officers
The chief executive officer of a statutory health
corporation:
(a)
is responsible for the management of the affairs
of the statutory health corporation, subject to and in accordance with any
directions of the health corporation board for that corporation,
and
(b)
has and may exercise such other functions as are
conferred or imposed on the chief executive officer by or under this or any
other Act.
(6)Chief executive officer taken
to be employed by statutory health corporation
The chief executive officer of a statutory health
corporation is taken, while holding that office, to be employed by the
statutory health corporation concerned. However, nothing in this section
enables a statutory health corporation to remove a chief executive officer
from office.
52Removal of members and
appointment of administrator
(cf AHS Act s 18, PH Act s 26)
(1)
The Governor may at any time, by order published
in the Gazette:
(a)
remove any member (including the chief executive
officer) or all members of a health corporation board from office,
or
(b)
remove all members of a health corporation board
from office and appoint, as administrator of the statutory health corporation
concerned, a person specified in the order for such period as may be specified
in the order, or
(c)
remove all members of a health corporation board
from office and appoint, as administrator of the statutory health corporation
concerned, the chief executive officer for such period as may be specified in
the order.
(2)
The chief executive officer of a statutory health
corporation ceases to hold office as chief executive officer if removed from
office as a member of the health corporation board of the
corporation.
(3)
An administrator of a statutory health
corporation has and may exercise, subject to any conditions that may be
specified in the order by which the administrator was appointed, all the
functions of the health corporation board for that
corporation.
(4)
An administrator of a statutory health
corporation is entitled to be paid from the funds of that corporation such
remuneration (including travelling and subsistence allowances) as the Minister
may from time to time determine in respect of the
administrator.
(5)
The regulations may make provision with respect
to administrators of statutory health corporations.
Part 3Functions of statutory health
corporations
53Minister may determine
functions of statutory health corporations
(cf AHS Act s 24, PH Act s 13 (4))
(1)
The Minister may, from time to time, determine
the role, functions and activities of any public hospital, health institution,
health service or health support service under the control of a statutory
health corporation and, for that purpose, give the health corporation board
for that corporation any necessary directions under section
48.
(2)
Without limiting subsection (1), the Minister may
direct a statutory health corporation to do any of the following if the
Minister is satisfied that it is in the public interest to do so:
(a)
establish any hospital, health institution,
health service or health support service,
(b)
close any public hospital or health institution,
or cease to provide any health service or health support service, under its
control,
(c)
restrict the range of health care or treatment
provided by any public hospital, health institution or health service under
its control.
54Staff of statutory health
corporations
(cf AHS Act s 25)
(1)
A statutory health corporation may appoint and
employ such employees as may be necessary for the purpose of exercising its
functions.
(2)
Part 2 of the Public Sector
Management Act 1988 does not apply to or in respect of
persons employed under this section.
Note—
Part 2 of the Public Sector
Management Act 1988 makes provision for the structure and
constitution of the Public Service of New South Wales and for the appointment
of officers in that Service.
(3)
A statutory health corporation may arrange for
the use of the services of any staff (by secondment or otherwise) or
facilities of a Government agency or public authority.
Note—
Section 115 of this Act makes provision for the
determination of the conditions of employment of the staff of statutory health
corporations.
55Powers in relation to
property
(cf AHS Act s 27, PH Act s 20)
(1)
A statutory health corporation may do all or any
of the following:
(a)
acquire land (including an interest in land), for
the purpose of the exercise of its functions, by agreement or by compulsory
process in accordance with the Land Acquisition
(Just Terms Compensation) Act 1991 and acquire any other
property (whether or not the land or other property is required for the
purposes of any public hospital, health institution, health service or health
support service under the control of the statutory health
corporation),
(b)
sell, lease, mortgage or otherwise dispose of
land or any other property,
(c)
dedicate land as a public road under the Roads Act
1993.
(2)
A statutory health corporation must not, without
the approval of the Minister, do any of the following:
(a)
acquire land by any means,
(b)
dispose of land by sale, lease, mortgage or
otherwise,
(c)
dedicate land as a public
road.
(3)
A statutory health corporation may request the
Minister to give approval to (and the Minister may approve) a disposition or
dedication of land or a use of land, being a disposition, dedication or
use:
(a)
that is contrary to a provision of, or a trust
arising under, the Crown grant of that land, or
(b)
that, if this section had not been enacted, may
make the land liable to be forfeited to the Crown.
(4)
If the Minister has given an approval under this
section to a disposition or dedication of land, or to a use of land, neither
the disposition or dedication of the land (or its subsequent use) nor the use
of the land:
(a)
is to be regarded as a breach of any provision
of, or any trust arising under, the Crown grant of that land,
or
(b)
is to make the land liable to be forfeited to the
Crown.
56Application of Public Works Act
1912
(cf AHS Act s 28, PH Act s 21)
(1)
For the purposes of the Public
Works Act 1912, any acquisition of land under section 55
(1) (a) of this Act is taken to be for an authorised work and the statutory
health corporation concerned is, in relation to that authorised work, taken to
be the Constructing Authority.
(2)
Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in
respect of works constructed under this Act.
57Power to accept property by
gifts, devises and bequests
(cf AHS Act s 29)
(1)
A statutory health corporation may acquire any
property by gift, devise or bequest and may agree to and carry out the
conditions of any such gift, devise or bequest, but only if the carrying out
of any such conditions is not inconsistent with the purposes and functions of
the corporation.
(2)
The rule of law against remoteness of vesting
does not apply to any such condition to which a statutory health corporation
has agreed.
(3)
A statutory health corporation may act as trustee
of money or other property vested in the statutory health corporation on
trust.
58Contracts of statutory health
corporation
(cf AHS Act s 30)
(1)
A statutory health corporation may make and enter
into contracts or agreements with any person for the performance of services,
or for the supply of goods, plant, machinery or material, by that person with
respect to the exercise by the statutory health corporation of its functions
conferred or imposed by or under this or any other Act.
(2)
A statutory health corporation may also, with the
approval of the Minister, make and enter into contracts or agreements with any
person for the provision of any service by the statutory health corporation to
that person.
(3)
Any contract or agreement under this section is
taken, for the purposes of the Constitution Act
1902, to be a contract or agreement for or on account of
the Public Service of New South Wales.
59Investments
(cf AHS Act s 31, PH Act s 29)
(1)
A statutory health corporation may invest money
held by it:
(a)
in such manner as may be authorised by the
Public Authorities (Financial Arrangements) Act
1987, or
(b)
if that Act does not confer power to invest money
so held, in any manner authorised for the time being for the investment of
trust funds and in any other manner approved by the Minister with the
concurrence of the Treasurer.
(2)
A statutory health corporation may at any time
dispose of any of its investments and apply the proceeds for the purpose of
exercising its functions.
(3)
This section is, in relation to the investment of
any funds, subject to the terms of any trust applying to those
funds.
60Statutory health corporation
may make by-laws
(cf AHS Act s 32, PH Act ss 28 and
28A)
(1)Power to make
by-laws
A statutory health corporation may, with the
approval of the Minister, make by-laws, not inconsistent with this Act or the
regulations, for or with respect to the following:
(a)
the management of any public hospital, health
institution, health service or health support service under its
control,
(b)
the provision of health services to patients of
any public hospital or health institution under its control and to other
persons,
(c)
the appointment, control and governance of
visiting practitioners in connection with public hospitals, health
institutions and health services under its control, including the conditions
subject to which visiting practitioners may perform work at or in relation to
any such hospital, institution or service,
(d)
the appointment, control and governance of
persons employed by it under section 54 and any other matter or thing
necessary or convenient to ensure the maintenance of discipline and efficiency
of any such employees or group or class of employees,
(e)
the custody and use of the seal of the statutory
health corporation,
(f)
the keeping of records concerning the acts,
decisions and proceedings of its health corporation board,
(g)
the procedure for the calling of meetings of its
health corporation board and for the conduct of business at those
meetings,
(h)
the appointment and functions of committees of
its health corporation board.
(2)Publication of model
by-laws
The Minister may publish an order in the Gazette
setting out the terms of model by-laws.
(3)Precondition for making of
by-laws
A by-law may not be made by a statutory health
corporation for or with respect to any matter referred to in subsection (1)
(c) unless:
(a)
it is in substance the same as a model by-law
under an order for the time being in force under subsection (2) and the
Minister has received advice from the Medical Services Committee in relation
to the substance of the model by-law, or
(b)
the Minister has received advice from the Medical
Services Committee in relation to the substance of the by-law proposed to be
made by the statutory health corporation.
(4)Exception to
precondition
Subsection (3) does not apply to a by-law if the
Medical Services Committee does not furnish advice to the Minister in relation
to the relevant model by-law or the by-law:
(a)
within 30 days after a notice from the Minister
requesting such advice has been served on the Committee,
or
(b)
within such further period as the Minister may
specify in the notice or in another notice served on the
Committee.
(5)What by-laws may provide
for
A provision of a by-law may do any one or any
combination of the following:
(a)
apply generally or be limited in its application
by reference to specified exceptions or factors,
(b)
apply differently according to different factors
of a specified kind,
(c)
authorise any matter or thing to be from time to
time determined, applied or regulated by any specified person or
body.
(6)Judicial
notice
Judicial notice is to be taken of a by-law
authenticated by the seal of the statutory health corporation concerned or in
accordance with section 135. It is to be presumed, in the absence of evidence
to the contrary, that all conditions and preliminary steps precedent to the
making of the by-law have been complied with and
performed.
61Delegations by statutory
health corporation
(cf AHS Act s 34)
(1)
A statutory health corporation may delegate to
any of its officers or employees the exercise of any of its functions, other
than:
(a)
this power of delegation, or
(b)
the power to make
by-laws.
Note—
Section 49 of the Interpretation
Act 1987 contains general provisions relating to the
delegation of functions.
(2)
The Minister may give any direction to a
statutory health corporation concerning delegations under this section that
the Minister thinks fit.
(3)
Nothing in this section authorises a statutory
health corporation to delegate the whole of its functions to another
person.
(4)
For the purposes of this section:
(a)
the functions of a statutory health corporation
include the functions of its health corporation board, and
(b)
the employees of a statutory health corporation
include any persons whose services are made use of by the statutory health
corporation under section 54 (3).
Chapter 5Affiliated health
organisations
Introduction—
This Chapter provides for the recognition as
affiliated health organisations of the organisations and institutions listed
(with their consent) in column 1 of Schedule 3 in respect of the recognised
establishments and recognised services specified in column 2 of that Schedule.
It confers on such organisations the power to make by-laws in relation to
certain matters and facilitates the transfer (with their consent) of such
establishments and services to area health services and statutory health
corporations. It also subjects them to Ministerial direction in relation to
the exercise of their functions concerning these establishments and services
and confers certain protections from personal liability.
Clause 1 of Part 2 of the Dictionary contains
several referential provisions relating to affiliated health organisations. In
particular, clause 1 (1) provides that a reference in this Act (however
expressed) to any act, omission or thing of an affiliated health organisation
in relation to any of its recognised establishments or recognised
services:
(a)
in the case of an affiliated health organisation
that is unincorporated—is a reference to an act, omission or thing of
the governing body of the organisation or a member of that body (as the case
may be), or
(b)
in the case of an affiliated health organisation
that is incorporated—is a reference to the act, omission or thing of the
corporate body constituting the organisation.
62Recognition of affiliated
health organisations
(cf PH Act s 29B)
(1)
An organisation or institution whose name is
included in column 1 of Schedule 3 is an affiliated health organisation in
respect of any of its recognised establishments and recognised
services.
(2)
The Governor may, by order published in the
Gazette:
(a)
amend column 1 of Schedule 3 by inserting the
name of any organisation or institution (other than an area health service or
statutory health corporation) that controls any hospital, health institution,
health service or health support service, or
(b)
amend column 2 of Schedule 3 by inserting a
description of any hospital, health institution, health service or health
support service under the control of the organisation or institution,
or
(c)
amend Schedule 3 by omitting or altering any such
name or description, or
(d)
omit Schedule 3 and insert instead a Schedule
containing the names of any organisations or institutions (other than area
health services or statutory health corporations) and descriptions of any
hospital, health institution, health service or health support service under
their control.
(3)
An order made under subsection (2) may amend
column 2 of Schedule 3 to describe an organisation or institution by reference
to some or all of the hospitals, health institutions, health services or
health support services it controls.
(4)
An order cannot be made under this
section:
(a)
inserting or altering the name of an organisation
or institution in column 1 of Schedule 3 unless the organisation or
institution (or its governing body) consents to it, or
(b)
inserting or altering a description of any
hospital, health institution, health service or health support service under
the control of an organisation or institution in column 2 of Schedule 3 unless
the organisation or institution (or its governing body) consents to
it.
(5)
In this section, governing body of an organisation or
institution means the person or the board or other body that is responsible
for the management of the organisation or institution.
63Affiliated health
organisations may make by-laws
(cf PH Act s 29AE)
(1)Power to make
by-laws
An affiliated health organisation may, with the
approval of the Minister, make by-laws, not inconsistent with this Act or the
regulations, for or with respect to the following:
(a)
the management of any of its recognised
establishments and recognised services,
(b)
the provision of health services to patients of
any hospitals or health institutions that are its recognised
establishments,
(c)
the provision to other persons of health services
that are its recognised services,
(d)
the appointment, control and governance of
visiting practitioners in connection with hospitals, health institutions and
health services that are its recognised establishments or recognised services
(including the conditions subject to which visiting practitioners may perform
work at or in relation to any such hospital, institution or
service),
(e)
the appointment, control and governance of
persons employed by it in respect of its recognised establishments and
recognised services and any other matter or thing necessary or convenient to
ensure the maintenance of discipline and efficiency in the service of the
affiliated health organisation of any such employees or group or class of
employees,
(f)
the keeping of records concerning the acts,
decisions and proceedings of its governing body in respect of its recognised
establishments and recognised services,
(g)
the procedure for the calling of meetings of its
governing body and for the conduct of business at those meetings in respect of
its recognised establishments and recognised services,
(h)
the appointment and functions of committees of
the governing body in respect of its recognised establishments and recognised
services.
(2)Publication of model
by-laws
The Minister may publish an order in the Gazette
setting out the terms of model by-laws.
(3)Precondition for making of
by-laws
A by-law may not be made by an affiliated health
organisation for or with respect to any matter referred to in subsection (1)
(d) unless:
(a)
it is in substance the same as a model by-law
under an order for the time being in force under subsection (2) and the
Minister has received advice from the Medical Services Committee in relation
to the substance of the model by-law, or
(b)
the Minister has received advice from the Medical
Services Committee in relation to the substance of the by-law proposed to be
made by the affiliated health organisation.
(4)Exception to
precondition
Subsection (3) does not apply to a by-law if the
Medical Services Committee does not furnish advice to the Minister in relation
to the relevant model by-law or the by-law:
(a)
within 30 days after a notice from the Minister
requesting such advice has been served on the Committee,
or
(b)
within such further period as the Minister may
specify in the notice or in another notice served on the
Committee.
(5)What by-laws may provide
for
A provision of a by-law may do any one or any
combination of the following:
(a)
apply generally or be limited in its application
by reference to specified exceptions or factors,
(b)
apply differently according to different factors
of a specified kind,
(c)
authorise any matter or thing to be from time to
time determined, applied or regulated by any specified person or
body.
(6)Judicial
notice
Judicial notice is to be taken of a by-law
authenticated by the seal of the affiliated health organisation concerned or
in accordance with section 135. It is to be presumed, in the absence of
evidence to the contrary, that all conditions and preliminary steps precedent
to the making of the by-law have been complied with and
performed.
64Transfer of recognised
establishments and recognised services of affiliated health
organisations
(cf AHS Act ss 10 and 21)
(1)
The Governor may, by order published in the
Gazette, transfer to any area health service or statutory health
corporation:
(a)
any public hospital or health institution of an
affiliated health organisation that is a recognised establishment of the
organisation, or
(b)
any health service or health support service of
an affiliated health organisation that is a recognised service of the
organisation, or
(c)
any of the assets, rights or liabilities of an
affiliated health organisation relating to a recognised establishment or
recognised service of the organisation,
and may amend Schedules 1, 2 and 3
accordingly.
(2)
However, such an order cannot be made unless the
affiliated health organisation consents to the transfer.
(3)
An order under this section is to specify the
date (being a date that is on or after the date it is published in the
Gazette) on which it takes effect. However, if no date is specified in the
order, the order is taken to have specified the date on which is it published
in the Gazette as the date on which it takes effect.
(4)
Schedule 4 has effect with respect to orders made
under this section.
(5)
An order under this section may contain
provisions, not inconsistent with the provisions of or made under Schedule 4,
of a savings and transitional nature consequent on the making of the
order.
Note—
Part 3 of Chapter 10 provides for the transfer by
order of the Governor of public hospitals, health institutions, health
services, health support services and property between area health services
and statutory health corporations.
Section 116 provides for the transfer of staff
between public health organisations.
65Minister may determine role,
functions and activities of affiliated health
organisations
(1)
The Minister may, from time to time, determine
the role, functions and activities of any recognised establishment or
recognised service of an affiliated health organisation and, for that purpose,
give the organisation any necessary directions.
(2)
Before making a determination under subsection
(1), the Minister is to consult with the affiliated health organisation
concerned having regard to the health care philosophy of the
organisation.
66Appointment of chief executive
officers of public hospitals and health services of affiliated health
organisations
(cf PH Act s 40B)
(1)
A person cannot be appointed as the chief
executive officer of a public hospital that is a recognised establishment, or
health service that is a recognised service, of an affiliated health
organisation unless the Director-General consents to the
appointment.
(2)
In this section:
chief
executive officer means the person (however described) who
is responsible to the affiliated health organisation for the management,
supervision or administration of the public hospital or health service
concerned.
67Liability of affiliated health
organisations in relation to recognised establishments and recognised
services
A matter or thing done in relation to any of an
affiliated health organisation’s recognised establishments or recognised
services by:
(a)
the organisation, or
(b)
the governing body of the organisation,
or
(c)
a member of the governing body of the
organisation, or
(d)
any person acting under the direction of that
organisation or governing body,
does not, if the matter or thing was done in good faith
for the purposes of executing this or any other Act, subject the member or the
person so acting personally to any action, liability, claim or
demand.
Chapter 6Medicare Principles and
Commitments
Introduction—
In this Chapter, the Medicare Principles and
Commitments set out in section 26 of the Health Insurance Act
1973 of the Commonwealth are readopted as guidelines for
the provision of public hospital services within the meaning of section 23E of
that Act. They had previously been adopted in Part 4 of the Health Administration Act 1982, which
was repealed by this Act. The Commonwealth Act makes the adoption by the State
of the Principles and Commitments a condition of the grant of financial
assistance by the Commonwealth to the State in respect of the provision of
public hospital services.
68Medicare Principles and
Commitments
(1)
The Medicare Principles and Commitments are
adopted as guidelines for the provision of public hospital services to
eligible persons in New South Wales.
(2)
The Medicare Principles and Commitments are as
follows:
MEDICARE
PRINCIPLES
The Commonwealth and the States are committed to
the following principles in the provision of public hospital
services:
Explanatory
note—
The Principles focus on the provision of public
hospital services to eligible persons, but operate in an environment where
eligible persons have the right to choose private health care in public and
private hospitals supported by private health insurance.
Choices of
services
Principle 1: Eligible persons must be
given the choice to receive public hospital services free of charge as public
patients
Explanatory note
1—
Hospital services include in-patient,
out-patient, emergency services (including primary care where appropriate) and
day patient services consistent with currently acceptable medical and health
service standards.
Explanatory note
2—
At the time of admission to a hospital, or as
soon as practicable after that, an eligible person will be required to elect
or confirm whether he or she wishes to be treated as a public or private
patient.
Universality of
services
Principle 2: Access to public hospital
services is to be on the basis of clinical need
Explanatory note
1—
None of the following factors are to be a
determinant of an eligible person’s priority for receiving hospital
services:
•
whether or not an eligible person has health
insurance,
•
an eligible person’s financial status or
place of residence,
•
whether or not an eligible person intends to
elect, or elects, to be treated as a public or private
patient.
Explanatory note
2—
This principle applies equally to waiting times
for elective surgery.
Equity in service
provision
Principle 3: To the maximum practicable
extent, a State will ensure the provision of public hospital services
equitably to all eligible persons, regardless of their geographical
location
Explanatory note
1—
This principle does not require a local hospital
to be equipped to provide eligible persons with every hospital service they
may need.
Explanatory note
2—
In rural and remote areas, a State should ensure
provision of reasonable public access to a basic range of hospital services
which are in accord with clinical practices.
COMMITMENTS
In order to achieve Principles 1 to 3, the
Commonwealth and States make the following Commitments regarding public
hospital services for eligible persons:
Information about service
provision
Commitment 1: The Commonwealth and a State
must make available information on the public hospital services eligible
persons can expect to receive as public patients
Explanatory note
1—
The State development of a Public Patients’
Hospital Charter in consultation with the Commonwealth will be a vehicle for
the public dissemination of this information.
Explanatory note
2—
The Charter will set out the public hospital
services available to public patients.
Efficiency and quality of
service provision
Commitment 2: The Commonwealth and the
States are committed to making improvements in the efficiency, effectiveness
and quality of hospital service delivery
Explanatory
note—
This includes a commitment to quality
improvement, outcome measurement, management efficiency and effort to
integrate the delivery of hospital and other health and health-related
community services.
(3)
Expressions used in the Medicare Principles and
Commitments (and the notes to them) set out in subsection (2) have the same
meanings they have in the Medicare Principles and Commitments (and the notes
to them) set out in section 26 of the Health Insurance Act
1973 of the Commonwealth.
(4)
Nothing in this section gives rise to, or can be
taken into account in, any civil cause of action, and, without limiting the
generality of the foregoing, nothing in this section operates to create in any
person legal rights not in existence before the enactment of this
section.
Chapter 7Charges for health
services
Introduction—
This Chapter makes provision for the charging and
collection of fees from certain patients and other clients of public health
organisations.
69Scale of
fees
(cf PH Act s 30 (8) and (9))
(1)
The Minister may, from time to time, by order
published in the Gazette:
(a)
fix a scale of fees for hospital services and
other health services received from any public health organisation,
and
(b)
amend or revoke any scale of fees so
fixed.
(2)
A scale of fees may be fixed, amended or revoked
by the adoption by reference of any scale of fees (as in force at a particular
time or as in force from time to time) fixed or determined by a Commonwealth
authority or body. Any such adoption may be wholly or in part and with or
without modification.
(3)
Except where a scale of fees has been fixed under
this section, nothing in this section affects any right that a public health
organisation may have to charge a fee for the provision of a hospital service
or other health service.
70Liability of persons for
health service fees
(cf PH Act s 30 (1)–(5))
(1)
Any person who receives any health service (other
than a non-chargeable hospital service) from a public health organisation is
liable to contribute towards the funds of the organisation, according to the
person’s means, such sum in respect of the health service as is
calculated in accordance with the scale of fees fixed under section
69.
(2)
That sum (if unpaid) may be recovered in any
court of competent jurisdiction as a debt.
(3)
A written statement of the amount due, purporting
to be signed by an authorised employee of the public health organisation
concerned, is prima facie evidence of the amount being
due.
(4)
The public health organisation may remit,
postpone or write-off payment of all or any sums of money due to the
organisation under this section.
(5)
In this section:
authorised employee of a public
health organisation means an employee of the organisation who is authorised in
writing by the chief executive officer of the organisation to certify any
amount owing to it for the provision of a health
service.
71Care and treatment to be
provided to persons without means
(cf PH Act s 30 (6))
A person without means must not be refused care
or treatment for sickness or injury at any public hospital by reason only of
the person’s inability to pay for the care or
treatment.
72Cost of relief granted to
injured persons to be a charge on damages
(cf PH Act s 30A)
(1)
This section applies to any person (the debtor) who is liable to a
public health organisation for the cost of any health service (other than a
non-chargeable hospital service) provided by the organisation in respect of
any personal injury suffered by the person or another
person.
(2)
If the debtor has a right to recover damages
against any other person in respect of the personal injury, the amount of the
debtor’s liability to the public health organisation is a charge on any
money that is or may become payable in respect of such right to recover
damages.
(3)
The charge is enforceable by way of an action
brought by the public health organisation in the same way as if the action
were an action brought by or on behalf of the debtor claiming the amount of
such liability as special damages.
(4)
In any such action (or any judgment given
concerning that action), the parties have, to the extent of the charge, the
same rights and liabilities (and the court has the same powers) as if the
action were by or on behalf of the debtor.
(5)
The action may be brought despite:
(a)
any judgment recovered by or on behalf of the
debtor, and
(b)
any payment made to the debtor or any other
person (except the public health organisation) in respect of the
defendant’s liability, and
(c)
any complete or partial discharge given by the
debtor.
(6)
However, any such payment or discharge in respect
of a claim for damages is, to the extent of the payment or discharge, a valid
discharge to the person making the payment or receiving the discharge if it is
given after:
(a)
the person injured has ceased to receive health
services in respect of the injury, and
(b)
the cost of all health services provided by any
public health organisation has been fully paid or
satisfied.
73Order not to be made in
certain circumstances
(cf PH Act s 32)
(1)
An order is not to be made under this Chapter by
a court if it is satisfied that (having regard to the means, estate, or
property of the person in respect of whom the order is sought or to the
circumstances of the case) the order would be
unreasonable.
(2)
Nothing in this Chapter derogates from any rights
that may exist for the recovery of money due.
74Fees for medical
attendance
(cf PH Act s 36)
(1)
A medical practitioner is not entitled to charge
a patient who is under treatment by the medical practitioner in any public
hospital with any fees in respect of the treatment if that treatment is
provided as part of the provision of a non-chargeable hospital
service.
(2)
Any contract between a patient and a medical
practitioner for any payment made in contravention of this section is
unenforceable.
75Hospital and other health
services provided by Crown
A reference in this Chapter to a hospital service
or other health service provided to a person by a public health organisation
includes a reference to a hospital service or other health service provided by
a public hospital controlled by the Crown (including the Minister or the
Health Administration Corporation).
Chapter 8Visiting
practitioners
Introduction—
In this Chapter, Part 1 defines a visiting
practitioner to be a medical practitioner or dentist appointed by a public
health organisation (otherwise than as an employee) to practise as a medical
practitioner or dentist at its hospitals or health institutions or in relation
to its health services (as specified in the appointment). It also makes it
clear that a visiting medical officer and an honorary medical officer are
visiting practitioners appointed under a service contract with a public health
organisation.
Part 2 explains, and provides for the
prerequisites for the entry into, service contracts. It also enables the
relevant Minister, on application from the Australian Medical Association
(NSW) Limited or the Minister (or both), to appoint an arbitrator to determine
certain matters involving fee-for-service contracts or sessional contracts of
visiting medical officers (or both) throughout the public health system
generally.
Part 3 requires visiting practitioners to report
to the public health organisation that appointed them the fact that they have
been charged with committing, or have been convicted of, a serious sex or
violence offence or have had a finding of professional misconduct or
unsatisfactory professional conduct made against them under the Medical Practice Act 1992 or the Dentists Act 1989. A public health
organisation must terminate the appointment of a visiting practitioner
convicted of a serious sex or violence offence if the Director-General so
directs. A public health organisation cannot terminate the appointment of a
visiting practitioner of its own motion under the Part unless the
Director-General has confirmed the organisation’s proposal to terminate
the appointment. These provisions mirror those provided in Part 2 of Chapter 9
for employees in the NSW Health Service.
Part 4 enables individual visiting practitioners
to appeal to the Minister (who must then appoint a Committee of Review)
concerning decisions of public health organisations to reduce their clinical
privileges, to refuse to re-appoint them or to suspend or terminate their
appointments under service contracts.
Part 5 makes it clear that any agreement between
a public health organisation and a visiting practitioner relating to the
performance of work is not affected by this Act except as provided by Parts 2,
3 and 4 of this Chapter.
ch 8, introduction:
Am 1999 No 85, Sch 2.28 [1]; 2000 No 53, Sch 1.10 [1].
Part 1Classification of visiting
practitioners
76Who is a visiting
practitioner?
(cf PH Act s 29K)
A visiting
practitioner is a medical practitioner or dentist who is
appointed by a public health organisation (otherwise than as an employee) to
practise as a medical practitioner or dentist in accordance with the
conditions of appointment at any of its public hospitals or health
institutions, or in relation to any health service it provides, specified in
the appointment.
77What are the kinds of visiting
practitioners?
(cf PH Act s 29K)
The kinds of visiting practitioners are:
(a)
visiting practitioners appointed under a service
contract (whether as visiting medical officers or honorary medical officers),
and
(b)
visiting practitioners appointed otherwise than
under a service contract.
78Who is a visiting medical
officer?
(cf PH Act s 29K)
A visiting
medical officer is a medical practitioner appointed under a
service contract (whether the practitioner or his or her practice company is a
party to the contract) to provide services as a visiting practitioner for
monetary remuneration for or on behalf of the public health organisation
concerned.
79Who is an honorary medical
officer?
(cf PH Act s 29K)
An honorary
medical officer is a medical practitioner appointed under an
honorary contract (whether the practitioner or his or her practice company is
a party to the contract) to provide services as a visiting practitioner for or
on behalf of the public health organisation concerned.
Note—
Section 84 defines honorary contract to mean a service
contract under which the services of a medical practitioner are provided to or
on behalf of a public health organisation otherwise than for monetary
remuneration.
Part 2Service
contracts
Division 1Classification of service
contracts
80What is a service
contract?
(cf PH Act s 29K)
(1)
A service
contract is an agreement between:
(a)
a public health organisation and a medical
practitioner under which the practitioner is appointed as a visiting
practitioner to provide to or on behalf of the public health organisation the
medical services that are specified in the agreement, or
(b)
a public health organisation and a practice
company under which:
(i)
the medical practitioner who conducts his or her
practice by means of the company is appointed as a visiting practitioner,
and
(ii)
the company agrees to provide to or on behalf of
the public health organisation the medical services, to be performed by the
medical practitioner (as a visiting practitioner), that are specified in the
agreement.
(2)
Any contract, agreement or other arrangement for
the supply of medical services that is entered into as a result of a tendering
process is not a service contract.
81What are the kinds of service
contracts?
The kinds of service contracts include (but are
not limited to) the following:
(a)
fee-for-service contracts,
(b)
sessional contracts,
(c)
honorary contracts.
82What is a fee-for-service
contract?
(cf PH Act s 29K)
A fee-for-service contract is a
service contract under which a medical practitioner (or the medical
practitioner’s practice company) is remunerated for medical services
performed by the medical practitioner by reference to a scale of fees for
different kinds of medical services that is contained in, or specified or
otherwise identified by, the contract.
83What is a sessional
contract?
(cf PH Act s 29K)
A sessional
contract is a service contract under which the medical
practitioner (or the medical practitioner’s practice company) is
remunerated by reference to any hourly rate or rates for services provided,
but not on a fee-for-service basis.
84What is an honorary
contract?
(cf PH Act s 29K)
An honorary
contract is a service contract under which the services of a
medical practitioner are provided to or on behalf of a public health
organisation otherwise than for monetary remuneration.
Division 2Entry into service
contracts
85When can medical practitioners
elect to provide their services through their practice
companies?
(1)
A medical practitioner who a public health
organisation wishes to appoint as a visiting medical officer may elect to be
appointed under a service contract entered into between the organisation and
the medical practitioner’s practice company.
(2)
However, no such election may be made unless the
medical practitioner’s practice company:
(a)
carries public liability insurance to a level
approved by the Director-General from time to time, and
(b)
carries medical indemnity
insurance.
(3)
Subsection (2) (b) does not apply to the extent
that the medical practitioner’s practice company is exempt under section
19 (4) of the Health Care Liability Act
2001 from the requirement to be covered by approved
professional indemnity insurance in respect of medical services to be provided
under the relevant service contract.
(4)
In this section:
medical
indemnity insurance means approved professional indemnity
insurance within the meaning of the Health Care
Liability Act 2001.
s 85: Am 2003 No 52,
Sch 1 [2].
86Service contracts to be in
writing
(cf PH Act s 29RA)
(1)
A visiting medical officer or honorary medical
officer must not be appointed unless the terms and conditions to which the
officer is to be subject are in the form of a written service contract
between:
(a)
the officer (or the officer’s practice
company), and
(b)
the relevant public health
organisation.
(2)
An appointment made in contravention of this
section is void.
87Minister may approve of
standard conditions for service contracts
(cf PH Act s 29RB)
(1)
The Minister may, by order in writing, approve of
sets of conditions (including remuneration) recommended by the Association for
inclusion in service contracts, entered into on or after the day on which the
order takes effect, of a class specified in the order.
(2)
A standard
service contract, in relation to a class of service
contracts (such as fee-for-service contracts, sessional contracts or honorary
contracts), is a contract that, when entered into, contains the set of
conditions (if any) approved for the time being under subsection (1) for those
service contracts, whether or not it contains other conditions that are not
inconsistent with the approved set of conditions.
(3)
An order under this section takes effect:
(a)
on the day the order is made,
or
(b)
on such later day as may be specified in the
order.
(4)
An order under this section is to specify a
period for the purposes of section 89 (3) (being a period that does not exceed
5 years).
88Standard service contracts to
be used
(cf PH Act s 29RC)
(1)
A service contract of a class for which there is
a standard service contract must not be entered into unless it contains the
set of conditions contained in the relevant standard service
contract.
(2)
A service contract entered into in contravention
of this section is void.
(3)
This section does not apply to honorary
contracts.
Division 3Arbitrations concerning
certain service contracts in the public health system
generally
89Application for appointment of
arbitrator
(cf PH Act s 29L)
(1)
The Minister or the Association may apply (either
jointly or individually) to the relevant Minister for the appointment of an
arbitrator to determine:
(a)
the terms and conditions of work, the amounts or
rates of remuneration and the bases on which those amounts or rates are
applicable, in respect of medical services provided by visiting medical
officers under fee-for-service contracts or sessional contracts (or both),
and
(b)
the date or dates (not being a date or dates
earlier than the date of the determination) on and from which any
determination made under paragraph (a) is to have
effect.
Note—
The Dictionary defines relevant
Minister to mean the Minister administering the Industrial Relations Act 1996 for the
time being.
(2)
An application is to be in the form approved by
the relevant Minister from time to time.
(3)
An application that seeks to obtain a
determination under this Part:
(a)
in relation to a class of service contracts for
which there is a standard service contract, and
(b)
that, if made, would be at variance with a
condition approved under section 87,
cannot be made before the expiry of such period as may
have been specified in the order under section 87 by force of which the
condition concerned was last included in the standard service
contract.
s 89: Am 2000 No 53,
Sch 1.10 [2].
90Appointment of arbitrator by
relevant Minister
On receipt of an application under section 89,
the relevant Minister must appoint a judicial member of the Industrial
Relations Commission nominated by the President of the Commission to be the
arbitrator for the purposes of making a determination under this
Part.
s 90: Am 1999 No 76,
Sch 9 [1] [2].
91Nature of
determination
(cf PH Act s 29M)
(1)
The arbitrator must, as soon as practicable after
being appointed under section 90, determine:
(a)
the terms and conditions of work, the amounts or
rates of remuneration and the bases on which those amounts or rates are
applicable, in respect of medical services provided by visiting medical
officers under fee-for-service contracts or sessional contracts (or both),
and
(b)
the date or dates (not being a date or dates
earlier than the date of the determination) on and from which any
determination made under paragraph (a) is to have
effect.
(2)
The arbitrator must endeavour to bring the
persons appearing before the arbitrator to agreement regarding the matters in
respect of which the arbitrator is required to make a determination under this
Part.
s 91: Am 2000 No 53,
Sch 1.10 [3].
92Manner of exercise of
arbitrator’s functions
(cf PH Act s 29N)
(1)
In making a determination under this Part, the
arbitrator:
(a)
is not bound by the rules of evidence and may
inform himself or herself on any matter as the arbitrator sees fit,
and
(b)
must act judicially and be governed by equity and
good conscience, without regard to technicalities or legal
forms.
(2)
In making a determination under this Part, the
arbitrator must have regard to the following matters:
(a)
the economic consequences of the proposed
determination, and
(b)
the established principles of the Industrial
Relations Commission in connection with the determination of remuneration
under awards made under the Industrial
Relations Act 1996.
93Rights of appearance,
administration of oaths, legal representation
(cf PH Act s 29O)
(1)
The Minister and the Association may appear
before and be heard by an arbitrator by their respective representatives in
any proceedings before the arbitrator.
(2)
Any other person may, by the person’s
representative, appear before and be heard by the arbitrator:
(a)
only with the arbitrator’s leave,
and
(b)
subject to such conditions as the arbitrator
determines.
(3)
The arbitrator must not grant leave under
subsection (2) unless the arbitrator considers that the person concerned has a
special interest in the outcome of the proceedings.
(4)
The arbitrator may administer an oath to any
person appearing as a witness in any proceedings before the
arbitrator.
(5)
A person appearing before the arbitrator may be
represented by a practising legal practitioner.
94Conduct of proceedings and
protection of arbitrator
(cf PH Act s 29P)
(1)
Subject to this Part and the regulations,
proceedings before the arbitrator are to be conducted in whatever manner the
arbitrator may determine.
(2)
The arbitrator may, as he or she thinks fit,
conduct any proceedings under this Part (or any part of the proceedings) in
public or in private.
(3)
In the exercise of the arbitrator’s duty as
arbitrator, the arbitrator has the same protection and immunity as a Judge of
the Supreme Court.
95Notification of determination
and finality of determination
(cf PH Act s 29Q)
(1)
The arbitrator must give written notice to the
Minister and the Association of the arbitrator’s determination under
this Part.
(2)
Except as provided by section 96, a determination
made under this Part (or a purported determination):
(a)
is final, and
(b)
may not be appealed against, reviewed, quashed or
called into question by any court or tribunal (whether on an issue of fact,
law, jurisdiction or otherwise).
96Appeal to Full Bench of the
Industrial Relations Commission
(cf PH Act s 29QA)
(1)
The Minister or the Association may appeal to a
Full Bench of the Industrial Relations Commission against a determination made
under this Part.
(2)
Subject to subsection (1), the Industrial Relations Act 1996 applies to
any such appeal in the same way as it applies to an appeal from a decision of
a single member of the Industrial Relations Commission.
Note—
Part 7 of Chapter 4 of the Industrial Relations Act 1996 provides
for appeals to the Full Bench of the Commission. Under section 188 of that
Act, appeals lie to the Full Bench only by leave.
97Interpretation of a
determination
(1)
The Minister or the Association may apply to the
Industrial Relations Commission in Court Session for a declaration of right
under section 154 of the Industrial Relations Act
1996 in respect of the interpretation, application or
operation of a determination made under this Part.
(2)
Subject to subsection (1), the Industrial Relations Act 1996 applies to
any such application in the same way as it applies to an application for a
declaration of right in relation to any other matter in which the Industrial
Relations Commission (however constituted) has
jurisdiction.
98Determination contractually
binding
(cf PH Act s 29R)
Any provision of any service contract that is
inconsistent with a determination under this Part is, to the extent of the
inconsistency, of no effect on and from the date or dates that the relevant
determination is to take effect and the contract is, on and from that date or
those dates, taken to be varied so as to include the terms of the
determination.
Part 3Criminal and disciplinary
matters concerning visiting practitioners
99Duty to report certain
criminal and disciplinary matters
(1)
A visiting practitioner appointed by a public
health organisation who is charged with having committed, or is convicted of,
a serious sex or violence offence must, within 7 days of the charge being laid
or the conviction, report that fact in writing to the chief executive officer
of the organisation.
Note—
The term serious
sex or violence offence is defined in the Dictionary to mean
an offence involving sexual activity, acts of indecency, physical violence or
the threat of physical violence that:
(a)
if committed in New South Wales, is punishable by
imprisonment for 12 months or more, or
(b)
if committed elsewhere than in New South Wales,
would have been an offence punishable by imprisonment for 12 months or more if
committed in New South Wales.
(2)
A visiting practitioner appointed by a public
health organisation who has a finding of unsatisfactory professional conduct
or professional misconduct made against him or her under the Medical Practice Act 1992 (in the case
of a medical practitioner) or professional misconduct under the Dentists Act 1989 (in the case of a
dentist) must, within 7 days of receiving notice of the finding:
(a)
report that fact to the chief executive officer
of the organisation, and
(b)
provide the chief executive officer with a copy
of that finding.
s 99, note: Am 1999
No 94, Sch 4.114.
100Termination of appointments in
certain cases of serious sex or violence offences
(1)Chief executive officer to
notify Director-General of certain matters
The chief executive officer of a public health
organisation must notify the Director-General of the following matters:
(a)
that a visiting practitioner of the organisation
has been convicted (whether before or during the term of his or her
appointment as a visiting practitioner) of a serious sex or violence
offence,
(b)
whether or not the public health organisation
proposes to terminate the appointment of the visiting practitioner and the
reasons why it intends to terminate or not to terminate the
appointment,
(c)
any written submissions made to the chief
executive officer under subsection (3) concerning the
conviction.
(2)When chief executive officer
to notify
The chief executive officer is to notify the
Director-General under subsection (1) within 30 days (or such further period
as may be agreed to by the Director-General) of becoming aware of the visiting
practitioner’s conviction.
(3)Chief executive officer to
afford practitioner opportunity to make submissions
Before notifying the Director-General under
subsection (1), the chief executive officer is to afford the visiting
practitioner concerned a reasonable opportunity to make written submissions
concerning any matter relevant to the conviction that the visiting
practitioner wishes to have considered in determining whether or not to
terminate the practitioner’s appointment.
(4)Powers of Director-General on
being notified
On being notified of the matters referred to in
subsection (1), the Director-General may:
(a)
confirm the proposed termination or retention of
the visiting practitioner, or
(b)
refuse to confirm the proposed termination or
proposed retention of the visiting practitioner and direct the public health
organisation not to terminate or to terminate the appointment (as the case may
be).
(5)When public health
organisation may terminate appointment on its own
initiative
A public health organisation may terminate the
appointment of a visiting practitioner who has been convicted (whether before
or during the term of his or her appointment as a visiting practitioner) of a
serious sex or violence offence, but only if:
(a)
the chief executive officer has notified the
Director-General under subsection (1) of the proposal to terminate the
appointment and of the matters referred to in that subsection,
and
(b)
the Director-General has notified the
organisation that he or she has confirmed the organisation’s proposal to
terminate the appointment.
(6)Public health organisation
must terminate appointment if Director-General directs
A public health organisation must terminate the
appointment of a visiting practitioner under this Part who has been convicted
(whether before or during the appointment) of a serious sex or violence
offence if the Director-General has directed the public health organisation to
do so under subsection (4) (b).
(7)Section does not apply to
previously disclosed convictions
This section does not apply to a conviction that
occurred before a person was appointed as a visiting practitioner if before
that appointment:
(a)
the person notified the chief executive officer
of the public health organisation in writing of the fact of the conviction,
and
(b)
the chief executive officer of the organisation
reported the conviction to the Director-General, and
(c)
the Director-General notified the public health
organisation in writing that he or she consented to the person being appointed
as a visiting practitioner.
(8)Functions of chief executive
officer may be carried out by authorised person
The functions of a chief executive officer of a
public health organisation under this section may be carried out by a person
who is authorised by the chief executive officer to do
so.
(9)Application of
section
This section extends to a conviction that
occurred before the commencement of this section.
101Protection of patients,
clients and children to be paramount consideration
The protection of a public health
organisation’s patients and clients and of children for which it is
responsible is to be the paramount consideration in relation to determining
whether to terminate a visiting practitioner’s appointment under this
Part.
102No compensation for
termination of appointment
No compensation (whether for breach of contract
or otherwise) is payable in respect of the termination of the appointment of a
visiting practitioner under this Part.
103Appeal
rights
(1)
Nothing in this Part affects any right to appeal
that a visiting practitioner may have under Part 4 in relation to the
termination of his or her appointment.
(2)
However, a visiting practitioner cannot appeal
under that Part against a decision under this Part to terminate his or her
appointment because the practitioner has been convicted of a serious sex or
violence offence in respect of:
(a)
a minor (but only if the offence committed
involves sexual activity or acts of indecency with, or in relation to the
minor), or
(b)
a patient or client of the practitioner if the
offence is committed during the course of his or her practice as a medical
practitioner or dentist (whether as a visiting practitioner or
otherwise).
Note—
Section 21 (1) of the Interpretation Act 1987 defines minor to mean an individual who is
under the age of 18 years.
104Effect of Part on other
rights
(1)
Nothing in this Part affects any other rights
(whether conferred by statute or otherwise) that a public health organisation
may have in relation to a visiting practitioner who:
(a)
fails to disclose the fact of being charged with
committing, or of being convicted of, a serious sex or violence offence,
or
(b)
is charged with committing, or who has been
convicted of, a serious sex or violence offence, or
(c)
fails to disclose the fact of having a finding of
unsatisfactory professional conduct or professional misconduct made against
the practitioner, or
(d)
has a finding of unsatisfactory professional
conduct or professional misconduct made against the
practitioner.
(2)
Nothing in this Part affects the operation of the
Criminal Records Act 1991 in relation to
spent convictions within the meaning of that Act.
Note—
Section 22 of the Health
Administration Act 1982 makes it an offence for a person
to disclose any information obtained in connection with the administration or
execution of that Act or any other Act conferring or imposing functions on the
Director-General, except in the circumstances specified in that
section.
Part 4Appeals concerning appointment
decisions
105Public health organisation to
notify visiting practitioners of certain decisions
(cf PH Act s 33H)
(1)
If a public health organisation:
(a)
reduces any clinical privileges of a person
appointed as a visiting practitioner that have previously been granted,
or
(b)
does not re-appoint a person as a visiting
practitioner, or
(c)
suspends or terminates the appointment of a
person as a visiting practitioner,
it must give notice in writing to the person of its
decision (and the reasons for the decision) within 14 days of the date of the
making of the decision.
(2)
In this Part, clinical
privileges means the kind of clinical work (subject to any
restrictions) that the public health organisation determines the visiting
practitioner is to be allowed to perform at any of its
hospitals.
106Right of appeal to
Minister
(cf PH Act s 33I)
(1)
A person who is dissatisfied with a decision of a
public health organisation referred to in section 105 (1) concerning the
person may appeal to the Minister against that decision.
(2)
However, a person cannot appeal to the Minister
in relation to any of the following decisions:
(a)
a decision by a public health organisation not to
re-appoint the person as a visiting practitioner if the organisation has
ceased to offer appointments of the kind to which the person seeks
re-appointment,
(b)
a decision by a public health organisation
reducing the clinical privileges of a person if the decision is based on
grounds other than the lack of professional competence of the
person,
(c)
a decision by a public health organisation not to
re-appoint a visiting practitioner (or a decision to terminate the appointment
of a visiting practitioner) if:
(i)
the decision is based on the fact that the
practitioner has been convicted of a serious sex or violence offence in
respect of a minor, and
(ii)
the offence committed involves sexual activity or
acts of indecency with, or in relation to the
minor,
(d)
a decision by a public health organisation not to
re-appoint a visiting practitioner (or a decision to terminate the appointment
of a visiting practitioner) if the decision is based on the fact that the
practitioner has been convicted of a serious sex or violence offence in
respect of a patient or client of the practitioner that is committed during
the course of his or her practice as a medical practitioner or dentist
(whether as a visiting practitioner or otherwise).
(3)
For the purposes of this section, a failure of a
public health organisation to re-appoint a person as a visiting practitioner
on or before his or her appointment expires is taken to be a decision not to
re-appoint the person.
107Notice of appeal to
Minister
(cf PH Act s 33J)
(1)
An appellant must give notice to the Minister of
the grounds of the appellant’s appeal in the form and manner approved by
the Minister from time to time.
(2)
A notice under subsection (1) must be given
within 1 month (or within such longer period as the Minister may allow) of the
following dates:
(a)
if a public health organisation makes a decision
referred to in section 105 (1)—the date on which the public health
organisation notified the appellant under that subsection of the reasons for
its decision, or
(b)
if a public health organisation is taken to have
made a decision under section 106 (3)—the date on which the appointment
of the visiting practitioner concerned expires.
108Constitution of Committee of
Review
(cf PH Act s 33K)
(1)
On receipt of a notice under section 107, the
Minister must appoint a Committee of Review to determine the
appeal.
(2)
A Committee of Review is to be constituted
by:
(a)
a legal practitioner of at least 7 years standing
(who is also to be appointed as the Chairperson of the Committee),
and
(b)
if the appellant is a medical
practitioner—1 person nominated by the Association who is a medical
practitioner, and
(c)
if the appellant is a dentist—1 person
nominated by the Australian Dental Association, New South Wales Branch who is
a dentist, and
(d)
1 other person appointed in accordance with
subsection (4).
(3)
A person must not be appointed under subsection
(2) (b) or (c) unless the Minister is satisfied that the person nominated is
sufficiently experienced in the administration of health services within the
public health system to warrant being appointed.
(4)
A person may be appointed under subsection (2)
(d) only if:
(a)
the Minister is satisfied that the person
appointed is sufficiently experienced in the administration of health services
within the public health system to warrant being appointed,
and
(b)
if the decision being appealed relates to a lack
of professional standards or competence—the person appointed is a
medical practitioner (if the appellant is a medical practitioner) or a dentist
(if the appellant is a dentist).
(5)
If the Association or the Australian Dental
Association, New South Wales Branch fails to nominate a person for appointment
to the Committee within such time as may be notified by the Minister, the
Minister may nominate a person who is eligible to be nominated by either
Association under subsection (2).
(6)
A decision of the Minister as to whether a
Committee should be constituted as provided by subsection (4) is
final.
s 108: Am 1998 No 54,
Sch 1.10 [1] [2].
109Date and place of
hearing
(cf PH Act s 33L)
The Chairperson of the Committee:
(a)
is to fix a date and a place for the hearing of
the appeal, and
(b)
must give 14 days’ notice of those details
to the parties to the proceedings.
110Right of
appearance
(cf PH Act s 33M)
(1)
In any proceedings before a Committee, a party to
the proceedings may appear in person or by an agent. However, no party is to
be represented by a practising legal practitioner except with the consent of
all parties and by leave of the Committee.
(2)
The proceedings may, at the discretion of the
Committee, be conducted wholly or partly in private.
111Powers of and procedure before
a Committee
(cf PH Act s 33N)
(1)
A Committee has, for the purposes of the appeal,
the powers, authorities, protections and immunities conferred by the Royal Commissions Act 1923 on a
commissioner and the chairperson of a commission respectively, appointed under
Division 1 of Part 2 of that Act. That Act (Division 2 of Part 2 excepted)
applies to any witness summoned by or appearing before a Committee in the same
way as it applies to any witness summoned by or appearing before a
commission.
(2)
The decision of the Chairperson of the Committee
on any question of law or procedure that may arise before a Committee is taken
to be the decision of the Committee.
112Determination of
appeal
(cf PH Act s 33O)
(1)
Subject to this Part and the regulations, a
Committee must determine the appeal and may make such orders with respect to
the matter being appealed as the Committee considers
proper.
(2)
If a public health organisation refused to
re-appoint the appellant because it had appointed persons to all its available
relevant positions that it considered to be better applicants, the Committee
cannot order the re-appointment of the appellant unless it specifies in the
order which one of those other practitioners’ appointments is to be made
available to the appellant.
(3)
The Chairperson of the Committee is to notify the
Minister in writing of any order of the Committee made under this
section.
(4)
In this section:
relevant
position means any position as a visiting practitioner of
the public health organisation that is of the kind to which the appellant
seeks re-appointment.
113Effect and implementation of
order
(cf PH Act s 33P)
(1)
An order of a Committee under section 112:
(a)
has force and effect from the date it is made,
and
(b)
is taken to be the final decision of the public
health organisation concerned and must be given effect to
accordingly.
(2)
If a Committee makes an order for re-appointment
referred to in section 112 (2):
(a)
the appointment of any visiting practitioner
specified in the order (along with any related service contract) is
terminated, and
(b)
no compensation is payable to the visiting
practitioner (or to any party to a related service contract) as a consequence
of the termination of the appointment or contract or of a public health
organisation giving effect to the order.
Part 5Effect of Act on agreements
with visiting practitioners
114Application of Act to
agreements with visiting practitioners
(cf PH Act s 29T)
(1)
This section applies to any agreement between a
public health organisation and a visiting practitioner relating to the
performance of work by the visiting practitioner for the organisation,
regardless of whether or not the agreement also relates to other
matters.
(2)
A provision of this Act (other than Parts 2, 3
and 4 of this Chapter) or a regulation or by-law made under this Act that is
inconsistent with any of the rights and obligations under any agreement to
which this section applies has (to the extent of the inconsistency) no force
or effect in relation to the visiting practitioner
concerned.
(3)
In this section, a reference to an agreement
includes a reference to a service contract.
Chapter 9The NSW Health
Service
Introduction—
This Chapter makes provision for the regulation
of the terms and conditions of employment of employees in the NSW Health
Service and for the transfer of staff between and within public health
organisations. It also requires disclosure by NSW Health Service employees of
findings of misconduct and of convictions for serious sex or violence offences
and charges against them for such offences. It also provides for the action
that can be taken in the case of such convictions. These provisions mirror
those provided in Part 3 of Chapter 8 for visiting
practitioners.
Part 1General
115Determination of conditions of
employment of staff
(cf AHS Act s 26, PH Act s 40BA)
(1)Definitions
In this section, enterprise agreement and industrial matters have the same
meanings as in the Industrial Relations Act
1996.
(2)Conditions of
employment
Except in so far as provision is otherwise made
by law, the conditions of employment (including salaries, wages or
remuneration) of the employees in the NSW Health Service are to be as may be
determined from time to time by the Health Administration
Corporation.
(3)Corporation is taken to be
employer for certain purposes
The Health Administration Corporation:
(a)
is, for the purpose of making any determination
under subsection (2), taken to be the employer of the employees in the NSW
Health Service, and
(b)
is, for the purpose of entering into an
enterprise agreement relating to the enterprise carried on by a public health
organisation, taken to be the employer of the employees of the organisation
concerned, and
(c)
is, for the purpose of any proceedings before a
competent tribunal having power to deal with industrial matters, taken to be
the employer of the employees in the NSW Health
Service.
(4)Corporation may delegate
functions
To remove any doubt, the Health Administration
Corporation may, in accordance with section 21 of the Health
Administration Act 1982, delegate its functions as such an
employer.
(5)Corporation may enter
industrial agreements
The Health Administration Corporation may enter
into an agreement (not being an enterprise agreement taken to have been
entered into by the Corporation under subsection (3) (b)) with any association
or organisation representing any group or class of employees in the NSW Health
Service with respect to the conditions of employment (including salaries,
wages or remuneration) of that group or class. Any such agreement may (subject
to Part 2) extend to conditions in respect of the employment of persons
convicted of, or charged with, serious sex or violence
offences.
(6)Industrial agreements bind
employees
An agreement referred to in subsection (5) binds
all employees in the group or class affected by the agreement and no such
employee, whether a member of the association or organisation with which the
agreement was entered into or not, has any right of appeal against the terms
of the agreement.
(7)Actual employers bound by
industrial agreements
A public health organisation must give effect
to:
(a)
any determination made by the Health
Administration Corporation under subsection (2), and
(b)
any enterprise agreement referred to in
subsection (3), and
(c)
any order or determination made by a competent
tribunal in proceedings referred to in subsection (3), and
(d)
any agreement referred to in subsection
(5).
(8)Corporation taken to be
employer only for certain purposes
Nothing in this section authorises:
(a)
the Health Administration Corporation to act as
an employer, or
(b)
any function to be exercised by or in relation to
the Health Administration Corporation,
otherwise than for the purposes of and in accordance
with this section.
(9)Application to chief executive
officers and other senior executives
This section does not apply to any conditions of
employment determined under Part 2A of the Public Sector
Management Act 1988 of:
(a)
the chief executive officer of an area health
service, or
(b)
the chief executive officer of a statutory health
corporation whose employment is subject to that Part, or
(c)
any other employee of a public health
organisation whose employment is subject to that
Part.
116Transfers of employees in NSW
Health Service
(cf PSM Act ss 50, 51 and 53)
(1)Transfers in NSW Health
Service by Health Administration Corporation
The Health Administration Corporation may, on the
ground of redundancy, direct the transfer of an employee of a public health
organisation from one position in the NSW Health Service to another position
in the Service at a salary in accordance with any general determination made
by it under section 115 (2), but only if:
(a)
it is satisfied that:
(i)
the number of persons who are employed by the
organisation exceeds the number that appears to be necessary for the
effective, efficient and economical management of the organisation’s
functions and activities, either generally or at a particular location,
or
(ii)
the mix of skills or other expertise of the
persons who are employed in the organisation appears to be unsuitable for the
effective, efficient and economical management of the organisation’s
functions and activities, either generally or at a particular location,
and
(b)
the organisation that employs the employee has
advised the Health Administration Corporation that the employee is redundant,
and
(c)
the employee possesses the essential
qualifications specified for the other position and the work assigned to the
other position is appropriate to the skills and qualifications of the
employee, and
(d)
if an employee is to be transferred to an
affiliated health organisation—the affiliated health organisation has
been consulted by the Health Administration Corporation as to the suitability
of the employee for employment within the organisation having regard to the
health care philosophy of the organisation.
(2)Dismissal for failure to
accept transfer
If an employee refuses a transfer from one
position to another under this section, the public health organisation that
employs the employee may terminate the employee’s employment. However,
the public health organisation may only do so if the Health Administration
Corporation has certified, on reasonable grounds, that the employee has no
valid reason for so refusing.
(3)When failure to accept
transfer is permissible
If the Health Administration Corporation
considers that an employee has a valid reason for refusing the transfer, the
Corporation may allow the employee to decline the transfer without prejudice
to any rights that the employee would have had to any future promotion or
appointment if the transfer had not been declined.
(4)Effect of dismissal for
failure to accept transfer
If an employee’s employment is terminated
under subsection (2):
(a)
the termination of that employment is to be taken
for all purposes not to have been on the ground of redundancy,
and
(b)
no compensation (whether for breach of contract
or otherwise) is payable in respect of the termination of the employee’s
employment.
(5)Operation of Industrial Relations Act
1996
Nothing in this section affects the operation of
Part 6 (Unfair dismissals) of Chapter 2 of the Industrial
Relations Act 1996 in relation to any termination of
employment if:
(a)
the termination is based on a certificate given
by the Health Administration Corporation under subsection (2) that the
employee concerned has no valid reason for refusing a transfer and there are
no reasonable grounds for it to so certify, or
(b)
the termination is not in accordance with any
other requirement of this section.
Note—
Part 6 of Chapter 2 of the Industrial Relations Act 1996 enables
certain employees specified in section 83 of that Act to make an application
to the Industrial Relations Commission in respect of a claim that their
dismissal or threatened dismissal from employment has been or will be harsh,
unreasonable or unjust.
Part 2Criminal and disciplinary
matters concerning employees in NSW Health Service
117Duty to report certain
criminal conduct and disciplinary matters
(1)
An employee of a public health organisation who
is charged with having committed, or is convicted of, a serious sex or
violence offence must, within 7 days of the charge being laid or conviction,
report that fact in writing to the chief executive officer of the
organisation.
Note—
The term serious
sex or violence offence is defined in the Dictionary to mean
an offence involving sexual activity, acts of indecency, physical violence or
the threat of physical violence that:
(a)
if committed in New South Wales, is punishable by
imprisonment for 12 months or more, or
(b)
if committed elsewhere than in New South Wales,
would have been an offence punishable by imprisonment for 12 months or more if
committed in New South Wales.
(2)
An employee appointed by a public health
organisation who has a misconduct finding made against him or her under any
relevant health professional registration Act must, within 7 days of receiving
notice of the finding:
(a)
report that fact to the chief executive officer
of the organisation, and
(b)
provide the chief executive officer with a copy
of that finding.
(3)
In this section:
misconduct finding includes a
finding of professional misconduct or unsatisfactory professional
conduct.
relevant
health professional registration Act means:
(a)
in relation to an employee who is employed as a
chiropractor or osteopath—the Chiropractors and
Osteopaths Act 1991, or
(b)
in relation to an employee who is employed as a
dental technician or dental prosthetist—the Dental
Technicians Registration Act 1975, or
(c)
in relation to an employee who is employed as a
dentist—the Dentists Act 1989,
or
(d)
in relation to an employee who is employed as a
medical practitioner—the Medical Practice
Act 1992, or
(e)
in relation to an employee who is employed as a
nurse or midwife—the Nurses and
Midwives Act 1991, or
(f)
in relation to an employee who is employed as an
optometrist—the Optometrists Act
1930, or
(g)
in relation to an employee who is employed as a
physiotherapist—the Physiotherapists Registration Act
1945, or
(h)
in relation to an employee who is employed as a
podiatrist—the Podiatrists Act
1989, or
(i)
in relation to an employee who is employed as a
psychologist—the Psychologists Act
1989, or
(j)
in relation to an employee who is employed as a
pharmacist—the Pharmacy Act
1964.
s 117: Am 1998 No
120, Sch 1.21 [1] [2]; 2003 No 45, Sch 2.6.
s 117, note: Am 1999
No 94, Sch 4.114.
118Disciplinary action in certain
cases of serious sex or violence offences
(1)Chief executive officer to
notify Director-General of certain matters
The chief executive officer of a public health
organisation must notify the Director-General of the following matters:
(a)
that an employee of the organisation has been
convicted (whether before or during his or her employment) of a serious sex or
violence offence,
(b)
whether or not the public health organisation
proposes to take any disciplinary action in relation to the employee and the
reasons why it intends to take or not to take disciplinary
action,
(c)
any written submissions made to the chief
executive officer under subsection (3) concerning the
conviction.
(2)When chief executive officer
to notify
The chief executive officer is to notify the
Director-General under subsection (1) within 30 days (or such further period
as may be agreed to by the Director-General) of becoming aware of the
employee’s conviction.
(3)Chief executive officer to
afford employee opportunity to make submissions
Before notifying the Director-General under
subsection (1), the chief executive officer is to afford the employee
concerned a reasonable opportunity to make written submissions concerning any
matter relevant to the conviction that the employee wishes to have considered
in determining what (if any) disciplinary action should be taken in relation
to the employee.
(4)Powers of Director-General on
being notified
On being notified under subsection (1), the
Director-General may:
(a)
confirm any proposed disciplinary action or
proposal not to take disciplinary action, or
(b)
refuse to confirm any proposed disciplinary
action or proposal not to take disciplinary action and direct the public
health organisation either not to take disciplinary action or to take such
disciplinary action as the Director-General may specify in the
direction.
(5)When public health
organisation may take action on its own initiative
A public health organisation may take such
disciplinary action as it considers appropriate (having regard to section 119)
against an employee who has been convicted (whether before or during his or
her employment) of a serious sex or violence offence, but only if:
(a)
the chief executive officer has notified the
Director-General of the proposed disciplinary action under subsection (1) and
of other matters referred to in that subsection, and
(b)
the Director-General has notified the
organisation that he or she has confirmed the organisation’s proposal to
take the disciplinary action.
(6)Public health organisation
must take action if Director-General directs
A public health organisation must take such
disciplinary action against an employee under this Part who has been convicted
(whether before or during his or her employment) of a serious sex or violence
offence as the Director-General has directed the public health organisation to
do under subsection (4) (b).
(7)Section does not apply to
previously disclosed convictions
This section does not apply to a conviction that
occurred before a person was employed if before that employment:
(a)
the person notified the chief executive officer
of the public health organisation in writing of the fact of the conviction,
and
(b)
the chief executive officer of the organisation
reported the conviction to the Director-General, and
(c)
the Director-General notified the public health
organisation in writing that he or she consented to the person being
employed.
(8)Functions of chief executive
officer may be carried out by authorised person
The functions of a chief executive officer of a
public health organisation under this section may be carried out by a person
who is authorised by the chief executive officer to do
so.
(9)Application of
section
This section extends to a conviction that
occurred before the commencement of this section.
(10)Definition
In this section:
disciplinary action means:
(a)
terminate an employee’s employment,
or
(b)
impose conditions in respect of the supervision
of, or reporting by, an employee or in respect of the scope of an
employee’s duties, or
(c)
transfer an employee to another position within
the public health organisation concerned.
119Protection of patients,
clients and children to be paramount consideration
The protection of a public health
organisation’s patients and clients and of children for which it is
responsible is to be the paramount consideration in relation to determining
whether to take disciplinary action against an employee under this
Part.
120No compensation for
termination of employment
No compensation (whether for breach of contract
or otherwise) is payable in respect of the termination of the employment of an
employee under this Part.
121Effect of Part on other
rights
(1)
Nothing in this Part affects any other rights
(whether conferred by statute or otherwise) that a public health organisation
may have in relation to an employee who:
(a)
fails to disclose the fact of being charged with
committing, or of being convicted of, a serious sex or violence offence,
or
(b)
is charged with committing, or who has been
convicted of, a serious sex or violence offence, or
(c)
fails to disclose the fact of having a misconduct
finding within the meaning of section 117 made against the employee,
or
(d)
has a misconduct finding within the meaning of
section 117 made against the employee.
(2)
Nothing in this Part affects the operation of
Part 6 (Unfair dismissals) of Chapter 2 of the Industrial
Relations Act 1996 or any other statutory right that an
employee may have in relation to the termination of the employee’s
employment under this Part. However, in exercising its functions under that
Part, the Industrial Relations Commission is to have regard to section 119 of
this Act.
Note—
Part 6 of Chapter 2 of the Industrial Relations Act 1996 enables
certain employees specified in section 83 of that Act to make an application
to the Industrial Relations Commission in respect of a claim that his or her
dismissal or threatened dismissal from employment has been or will be harsh,
unreasonable or unjust.
(3)
Nothing in this Part affects the operation of the
Criminal Records Act 1991 in relation to
spent convictions within the meaning of that Act.
Note—
Section 22 of the Health
Administration Act 1982 makes it an offence for a person
to disclose any information obtained in connection with the administration or
execution of that Act or any other Act conferring or imposing functions on the
Director-General, except in the circumstances specified in that
section.
Chapter 10Administration of the public
health system
Introduction—
This Chapter contains provisions to facilitate
the efficient and effective administration of the public health system by the
Minister and the Director-General.
Part 1 enables the Director-General to inquire
into the administration, management and services of any organisation or
institution providing publicly funded health services. It also specifies the
functions of the Director-General and provides for the appointment of
authorised officers to carry out inspections of the premises of public health
organisations and other publicly funded organisations and institutions
providing health services. The Director-General is also authorised to enter
into performance agreements with public health organisations to improve the
provision of health services and health support services.
Part 2 is concerned with the determination and
provision of funding by the Minister to public health organisations. The
Minister may impose conditions on any funding and may require affiliated
health organisations to agree to repay any funds granted to them. The Minister
may also delegate the function of funding the recognised establishments and
recognised services of affiliated health organisations to the area health
services. If any such function is delegated to an area health service, the
Part also provides that the service may enter into performance agreements with
the affiliated health organisations concerned.
Part 3 contains provisions enabling the Governor,
by order published in the Gazette, to rationalise the conduct of public
hospitals and health institutions and the provision of health services and
health support services by transferring such hospital, institutions and
services (and associated property) between area health services and statutory
health corporations.
Part 1Administration
122Functions of the
Director-General
(cf PH Act s 11 (1) and (2))
The Director-General has the following functions
under this Act:
(a)
to facilitate the achievement and maintenance of
adequate standards of patient care within public hospitals and in relation to
other services provided by the public health system,
(b)
to facilitate the efficient and economic
operation of the public health system consistent with the standards referred
to in paragraph (a),
(c)
to inquire into the administration, management
and services of any public health organisation,
(d)
to cause public health organisations (including
public hospitals controlled by them) to be inspected from time to
time,
(e)
to recommend to the Minister what sums of money
(if any) should be paid from money appropriated from the Consolidated Fund in
any financial year to any public health organisation,
(f)
to enter into performance agreements with public
health organisations, to review the results of organisations under such
agreements and to report those results (and make recommendations about the
results) to the Minister,
(g)
such other functions as may be conferred or
imposed by or under this Act.
123Inquiries by
Director-General
(cf PH Act s 11A)
(1)
The Director-General may inquire into the
administration, management and services of any organisation or institution
providing health services (other than a public health organisation) if those
services are wholly or partly funded with money paid from the Consolidated
Fund.
(2)
However, the Director-General cannot make any
inquiry under this section in respect of a private hospital, nursing home or
day procedure centre.
(3)
The Director-General may delegate the conduct of
any inquiry under this section to any other person.
Note—
Section 49 of the Interpretation
Act 1987 contains general provisions relating to the
delegation of functions.
(4)
Nothing in this section prevents the
Director-General inquiring into the administration, management and services of
any public health organisation under section 122 (c).
124Authorised
officers
(cf PH Act s 11 (4) and (5))
(1)Appointment of authorised
officers
The Director-General may appoint any person, or
class of persons, as an authorised officer or authorised officers to exercise
the functions conferred by section 125.
(2)Issue of certificates of
authority
The Director-General is to provide an authorised
officer with a certificate of authority that:
(a)
states that it is issued under this Act,
and
(b)
gives the name of the person to whom it is
issued, and
(c)
describes the nature of the functions conferred
and the source of those functions, and
(d)
states the date (if any) on which it expires,
and
(e)
describes the kind of premises to which the
functions extend, and
(f)
bears the signature of the Director-General or an
officer approved by the Director-General for the purposes of this
paragraph.
(3)Precondition for exercise of
functions generally
An authorised officer must not exercise the
functions conferred by section 125 unless the officer is in possession of a
certificate of authority issued by the Director-General.
(4)Preconditions for exercise of
functions in relation to certain non-government health
organisations
In addition to the requirement in subsection (3),
an authorised officer must not exercise the functions conferred by section 125
in relation to the premises of an organisation or institution referred to in
section 123 (1) unless the officer:
(a)
gives reasonable notice to the occupier or owner
of the premises of the intention to exercise the function, unless the giving
of notice would defeat the purpose for which it is intended to exercise the
function, and
(b)
exercises the function at a reasonable hour of
the day, except where it is being exercised in an emergency,
and
(c)
uses no more force than is reasonably necessary,
and
(d)
in relation to premises used for residential
purposes—has obtained the consent of the owner or occupier of the
premises.
(5)Production of certificate of
authority
In the course of carrying out an inspection under
this Act, an authorised officer must, if requested by any person to do so,
produce the officer’s certificate of authority.
125Powers of entry and
inspection
(cf PH Act s 11 (6))
(1)Power of
entry
An authorised officer may enter premises of any
public health organisation (including any public hospital controlled by that
organisation) or of an organisation or institution referred to in section 123
(1) for the purpose of exercising any function conferred or imposed on the
Director-General by this Act.
(2)Powers following
entry
An authorised officer who has entered any
premises under this section may do any one or more of the following:
(a)
inspect those premises,
(b)
make such examination and inquiry as the officer
thinks necessary to assist the Director-General in the performance of the
Director-General’s functions under this Act,
(c)
make copies of, or take extracts or notes from,
any accounts, records (including clinical records), books, documents or other
things, of a public health organisation or organisation or institution
referred to in section 123 (1),
(d)
for the purpose of further examination, take
possession of, and remove, any of those accounts, records, books, documents or
other things,
(e)
require the owner or occupier of the premises to
provide the officer with such assistance and facilities as is or are
reasonably necessary to enable the officer to exercise functions under this
section,
(f)
require any person in or about the premises to
answer questions or otherwise furnish information,
(g)
require any person to produce any accounts,
records (including clinical records), books, documents or other things in the
possession or under the control of the person that relate to, or that the
officer believes on reasonable grounds relate to, the operation or
administration of a public health organisation.
(3)Liability for damage to
premises of certain organisations and institutions
If damage is caused by the exercise of functions
conferred by this section to premises of an organisation or institution
referred to in section 123 (1), the Minister is to pay reasonable compensation
for the damage unless the exercise of the functions was obstructed by the
occupier of the premises.
126Director-General may enter
into performance agreement with a public health
organisation
(1)
The Director-General may enter into a performance
agreement with any public health organisation.
(2)
A performance agreement:
(a)
may set operational performance targets for the
organisation in the exercise of specified functions during a specified period,
and
(b)
may provide for the evaluation and review of
results in relation to those targets.
(3)
The public health organisation must, as far as
practicable, exercise its functions in accordance with the performance
agreement.
(4)
The public health organisation is to report the
results of the organisation’s performance under a performance agreement
during a financial year to the Director-General within 3 months of the end of
that year.
(5)
The Director-General:
(a)
is to evaluate and review the results of the
organisation’s performance for each financial year under the performance
agreement and to report those results to the Minister, and
(b)
may make such recommendations to the Minister
concerning those results as the Director-General thinks
fit.
Part 2Finance
127Determination of
subsidies
(cf PH Act s 17)
(1)
In determining what amount of money (if any) is
to be paid to each area health service out of money appropriated from the
Consolidated Fund, the Minister is to have regard to the following
matters:
(a)
the size and health needs of the population
resident within the area of the area health service
concerned,
(b)
the health services provided to patients from
outside the area of the area health service concerned,
(c)
the net receipts and expenditures of the area
health service for the financial year,
(d)
probable requirements for capital maintenance and
expenditure of the area health service for the financial
year,
(e)
such other matters as are prescribed by the
regulations or as the Minister thinks fit.
(2)
In determining what amount of money (if any) is
to be paid to each statutory health corporation and affiliated health
organisation out of money appropriated from the Consolidated Fund, the
Minister may have regard to such matters as the Minister thinks
fit.
(3)
The Minister may, after considering any
recommendation made under section 122 (e) for the purpose, determine what
amounts of money (if any) should be paid out of money appropriated from the
Consolidated Fund in any financial year to any such area health service,
statutory health corporation or affiliated health organisation. Any such
amount is payable in accordance with that determination.
(3A)
The Minister may vary a determination under
subsection (3) in such circumstances as the Minister considers
appropriate.
(4)
The Minister may attach to the payment of any
subsidy such conditions as the Minister thinks fit.
(5)
If any such condition is breached, the
Director-General may make such recommendations to the Minister as the
Director-General thinks fit concerning any action to be taken against the
public health organisation concerned or any officer or employee of the
organisation.
s 127: Am 1999 No 76,
Sch 9 [3].
127ADeferral of payment of
subsidy
The Minister may determine that payment of the
whole or any part of an amount payable under section 127 in a financial year
is to be deferred until a subsequent financial year. Payment is deferred in
accordance with such a determination.
s 127A: Ins 1999 No
76, Sch 9 [4].
127BLoans to public health
organisations
(1)
The Minister may determine that an amount of
money is to be lent to an area health service, statutory health corporation or
affiliated health organisation, out of money appropriated from the
Consolidated Fund to the Minister.
(2)
Any such amount is to be lent in accordance with
that determination and on such terms and conditions as the Minister
determines.
(3)
The loans made pursuant to subsection (1) must
not result in expenditure in excess of forward
estimates.
(4)
The Public
Authorities (Financial Arrangements) Act 1987 does not
apply to a loan made under this section.
s 127B: Ins 1999 No
76, Sch 9 [4].
128Agreement by affiliated health
organisation to repay sums
(cf PH Act s 17A)
(1)
Before paying any sum to an affiliated health
organisation out of money appropriated from the Consolidated Fund, the
Minister may require:
(a)
the affiliated health organisation,
or
(b)
if the property of the affiliated health
organisation is not vested in the affiliated health organisation:
(i)
the persons in whom the property is vested,
or
(ii)
those persons and the affiliated health
organisation,
to enter into an agreement with the Minister under this
section.
(2)
An agreement entered into under this section must
make provision for or with respect to requiring:
(a)
the repayment to the Minister, in the
circumstances specified in, or to be determined in accordance with, the
agreement of the sum referred to in subsection (1), or
(b)
the payment to the Minister, in the circumstances
specified in, or to be determined in accordance with, the agreement of such
other sum (whether lesser or greater than the sum referred to in subsection
(1)) as is specified in, or is to be determined in accordance with, the
agreement.
(3)
A breach of trust does not occur only because the
trustees of an affiliated health organisation have:
(a)
entered into an agreement under this section,
or
(b)
repaid or paid to the Minister any sum in
accordance with the agreement, or
(c)
done or performed any act or thing necessary or
convenient to be done or performed for the purpose of enabling them to enter
into such an agreement or repay or pay such a sum.
129Funding of recognised
establishments and recognised services of affiliated health
organisations
The Minister may delegate to any area health
service the function of determining:
(a)
the subsidy (if any) to be received by any
affiliated health organisation for its recognised establishments and
recognised services, and
(b)
the conditions (if any) that should attach to
that subsidy.
Note—
Section 49 of the Interpretation
Act 1987 contains general provisions relating to the
delegation of functions.
130Performance agreements between
area health services and affiliated health organisations they
subsidise
(1)
An area health service exercising a function
delegated under section 129 in respect of an affiliated health organisation
may enter into a performance agreement with the affiliated health organisation
in respect of its recognised establishments and recognised
services.
(2)
A performance agreement:
(a)
may set operational performance targets for the
affiliated health organisation in the exercise of specified functions in
relation to the health services concerned during a specified period,
and
(b)
may provide for the evaluation and review of
results in relation to those targets.
(3)
The affiliated health organisation must, as far
as practicable, exercise its functions in accordance with the performance
agreement.
(4)
The affiliated health organisation is to report
the results of the organisation’s performance under a performance
agreement during a financial year to the area health service within 3 months
of the end of that year.
(5)
The area health service is to evaluate and review
the results of the organisation’s performance for each financial year
under the performance agreement and to report those results to the
Director-General.
(6)
The Director-General may make such
recommendations to the Minister concerning the results reported to the
Director-General under subsection (5) as the Director-General thinks
fit.
Part 3Transfer of hospitals, health
institutions, services and property
131Transfer of hospitals, health
institutions, services and property between area health services and statutory
health corporations
(cf AHS Act s 21)
(1)
The Governor may, by order published in the
Gazette, transfer to any statutory health organisation:
(a)
any public hospital or health institution under
the control of another statutory health organisation, or
(b)
any health service or health support service
under the control of another statutory health organisation,
or
(c)
any public hospital or health service controlled
by the Crown (including any hospital or health service controlled by the
Minister or the Health Administration Corporation), or
(d)
any of the assets, rights or liabilities of
another statutory health organisation,
and may amend Schedules 1 and 2
accordingly.
(2)
An order made under this section must specify the
date (being a date that is on or after the date it is published in the
Gazette) on which it takes effect. However, if no date is specified in the
order, the order is taken to have specified the date on which it is published
in the Gazette as the date on which it takes effect.
(3)
An order is not to be made under this section
unless the Minister is of the opinion that the order is in the public interest
and has recommended to the Governor that the order be
made.
(4)
A transfer under this section may be effected
without holding an inquiry.
(5)
In this section, statutory
health organisation means an area health service or a
statutory health corporation.
132Consequential and transitional
provisions on the making of orders
(cf AHS Act s 10)
(1)
Schedule 4 has effect with respect to an order
under this Part.
(2)
An order under this Part may contain provisions,
not inconsistent with the provisions of or made under Schedule 4, of a savings
or transitional nature consequent on the making of the
order.
Chapter 11Miscellaneous
Introduction—
This Chapter contains various provisions relating
to the general operation of the Act.
For instance, it provides for an offence of
obstructing or hindering the performance of functions under the Act and
facilitates the proof of certain matters in legal proceedings. A general
regulation-making power is also provided.
Public health organisations are also authorised
to retain and realise certain unclaimed assets of former or deceased patients
that have been left at their premises, the proceeds of which are to be used to
establish Samaritan Funds for the benefit of needy patients of the
organisation.
The Chapter also repeals the Area Health Services Act
1986 and the Public Hospitals Act
1929.
133Establishment of Samaritan
Funds
(cf PH Act s 40A)
(1)
The following money and personal effects are
taken to be the property of a public health organisation:
(a)
all money and personal effects (being choses in
possession) that are:
(i)
left in its custody by any patient who dies in
one of its hospitals or health institutions, and
(ii)
not claimed by the person lawfully entitled to
them within a period of 12 months after the patient’s death,
and
(b)
all money and personal effects (being choses in
possession) that are:
(i)
left in its custody by any patient discharged
from one of its hospitals or health institutions, and
(ii)
not claimed by the patient or other person
lawfully entitled to them within a period of 12 months after the date of
discharge.
(2)
All such money, and the proceeds of the
realisation of any such personal effects, are to form a distinct and separate
fund of the public health organisation to be called a Samaritan
Fund.
(3)
A Samaritan Fund is to be managed and disposed of
in such manner as may be prescribed by the regulations for the benefit of
patients or outgoing patients who are needy.
(4)
An area health service or statutory health
corporation may establish a separate fund for each hospital or health
institution, or a single fund for all public hospitals or health institutions,
under its control.
(5)
A reference in this section to a public health
organisation includes a reference to the Crown in relation to any public
hospital controlled by the Crown (including the Minister or the Health
Administration Corporation).
134Obstructing or hindering
Minister, Director-General, authorised officer or other public
official
(cf PH Act s 34)
A person must not obstruct or hinder:
(a)
the Minister, or
(b)
the Director-General, or
(c)
any authorised officer, or
(d)
any other public
official,
in the exercise of any function conferred by or under
this Act for the purposes of any inquiry, investigation, inspection or
report.
Maximum penalty: 100 penalty
units.
135Authentication of certain
documents
(cf AHS Act s 35)
Every summons, process, demand, order, notice,
statement, direction or other document requiring authentication by a public
health organisation may be sufficiently authenticated without the seal of that
organisation if signed by the chief executive officer or by any employee of
that organisation authorised to do so by the chief executive
officer.
136Proof of certain matters not
required
(cf AHS Act s 36)
In any legal proceedings, proof is not required
(until evidence is given to the contrary) of any of the following
matters:
(a)
the constitution of a board of a public health
organisation,
(b)
any resolution of a board of a public health
organisation,
(c)
the appointment of, or the holding of office by,
any member of a board of a public health organisation,
(d)
the presence of a quorum at any meeting of a
board of a public health organisation.
137Proceedings for
offences
(cf AHS Act s 37)
Proceedings for an offence against this Act or
the regulations are to be dealt with summarily before a Local Court
constituted by a Magistrate sitting alone.
138Repeal of the Area Health
Services Act 1986 No 50 and the Public Hospitals Act
1929 No 8
The Area Health Services Act
1986 and the Public Hospitals Act
1929 are repealed.
139
s 139: Rep 1999 No
85, Sch 4.
140Regulations
(cf AHS Act s 38, PH Act s 42)
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
Without limiting the generality of subsection
(1), the regulations may provide for the following:
(a)
accounts to be kept by public health
organisations and the auditing of those accounts,
(b)
records to be kept by public health organisations
or public hospitals,
(c)
the furnishing of information and reports to the
Minister, Director-General or other person by public health
organisations,
(d)
the furnishing of information to a patient in the
care of a public health organisation and the inspection of records by such a
patient in connection with the treatment of the patient by the
organisation,
(e)
the appointment, control and governance of
visiting practitioners, including the conditions subject to which they perform
work,
(f)
in the case of public hospitals controlled by
area health services or statutory health corporations—the admission and
discharge of patients and the payment and collection of fees payable by
patients for health services,
(g)
the authorisation, prohibition and control of
fundraising by public appeal or otherwise for the purposes of public
hospitals,
(h)
the administration and management of any
affiliated health organisation in relation to its recognised establishments
and recognised services,
(i)
the disposal of unclaimed property of patients in
the care of a public health organisation.
(3)
The regulations may make provision for or with
respect to any matter for or with respect to which a by-law may be made by a
public health organisation.
(4)
A provision of a regulation prevails to the
extent to which it is inconsistent with a by-law made by a public health
organisation.
(5)
A regulation may create an offence punishable by
a penalty not exceeding 5 penalty units.
(6)
A regulation made under subsection (2) (e) cannot
be made unless the Minister has received advice from the Medical Services
Committee in relation to the substance of the
regulation.
(7)
Subsection (6) does not apply to a regulation if
the Medical Services Committee does not furnish advice in relation to the
regulation to the Minister:
(a)
within 30 days after a notice from the Minister
requesting such advice has been served on the Committee,
or
(b)
within such further period as the Minister may
specify in the notice or in another notice served on the
Committee.
Note—
Section 42 of the Interpretation
Act 1987 provides for the general matters for which
statutory rules (which include regulations) may make
provision.
141Savings and transitional
provisions
Schedule 7 has effect.
142Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.