2010
2010
2010-06-28
act
government
publicspecial
act.reprint
partuncommenced
2010-06-02
2010-06-02
0
2010
none
act-2010-052
8a530dc4-f280-40a2-861a-d177052a2724
82ef40c3-a5cd-40e1-94da-ac28e20ae27e
Note—
Amending Acts and amending provisions are subject
to automatic repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to make miscellaneous amendments to
various Acts that relate to health and associated
matters.
1Name of
Act
This Act is the Health
Legislation Amendment Act 2010.
2Commencement
(1)
Except as otherwise provided in this section,
this Act commences on a day or days to be appointed by
proclamation.
(2)
Schedule 3.2–3.4 commence on the date of
assent to this Act.
Schedule 1Amendments relating to
ambulance officers
1.1Health
Services Act 1997 No 154
[1]Section
67J
Insert after section 67I:
67JObstruction of and violence
against ambulance officers
(1)
A person must not intentionally obstruct or
hinder an ambulance officer when the ambulance officer is providing or
attempting to provide ambulance services to another person or
persons.
Maximum penalty: 50 penalty units or imprisonment
for 2 years, or both.
(2)
A person must not, by an act of violence against
an ambulance officer, intentionally obstruct or hinder the ambulance officer
when the ambulance officer is providing or attempting to provide ambulance
services to another person or persons.
Maximum penalty: Imprisonment for 5
years.
(3)
If on the trial of a person charged with an
offence against subsection (2) the trier of fact is not satisfied that the
offence is proven but is satisfied that the person has committed an offence
against subsection (1), the trier of fact may acquit the person of the offence
charged and find the person guilty of an offence against subsection (1). The
person is liable to punishment accordingly.
(4)
In this section:
ambulance
officer means a member of staff of the Ambulance Service of
NSW.
ambulance
services means the work of rendering first aid to, or
transporting, sick and injured persons.
[2]Section 137 Proceedings for
offences
Insert “(other than an offence under
section 67J (2))” after “this Act”.
1.2Criminal Procedure Act 1986 No
209
Schedule 1 Indictable offences
triable summarily
Omit Parts 10 and 11 of Table 2.
Insert at the end of Table 2 with appropriate
Part and clause numbering:
PartOffences under certain other
Acts
Child
Protection (Offenders Registration) Act
2000
An offence under section 17 or 18 of the Child Protection (Offenders Registration) Act
2000.
Health
Services Act 1997
An offence under section 67J (2) of the Health Services Act
1997.
Surveillance Devices Act
2007
An offence under Part 2 or 5 (other than section
40 (2)) of the Surveillance Devices Act
2007.
Schedule 2Amendments relating to root
cause analysis teams
2.1Health
Administration Act 1982 No 135
[1]Section 20M Appointment of RCA
teams to deal with incidents
Insert after section 20M (1):
(1A)
When an incident involving the provision of
health services by a relevant health services organisation (other than a
reportable incident) is reported to the chief executive officer of the
organisation, the organisation may appoint a root cause analysis team in
relation to the incident if the chief executive officer is of the opinion that
the incident may be the result of a serious systemic problem that justifies
the appointment of such a team.
[2]Sections 20M (2) and (3) and
20O (1), (2) and (3) (a) and (b)
Omit “reportable” wherever
occurring.
[3]Section 20N Restrictions on
RCA teams
Omit section 20N (3). Insert instead:
(3)
A member of a RCA team is to act in a fair and
reasonable manner in the exercise of his or her functions as such a
member.
[4]Section 20O Responsibilities
of RCA team in relation to incident
Insert after section 20O (2):
(2A)
A notification under subsection (1) or (2) is to
disclose the identity of the person to whom the notification relates
(regardless of whether the person consents to the disclosure) and specify
whether the notification relates to:
(a)
professional misconduct, unsatisfactory
professional conduct or unsatisfactory professional performance by the person,
or
(b)
the person suffering from an
impairment.
(2B)
A RCA team may notify in writing the relevant
health services organisation by which it was appointed if the RCA team is of
the opinion that the incident that it is considering raises matters that
indicate a problem giving rise to a risk of serious and imminent harm to a
person.
[5]Sections 20O (3) and 20T
(f)
Omit “a reportable incident” wherever
occurring. Insert instead “an incident”.
[6]Section 20O (3)
(c)
Omit the paragraph. Insert instead:
(c)
if the RCA team has any recommendations as to the
need for changes or improvements in relation to a procedure or practice
arising out of the incident—those
recommendations.
[7]Section 20O
(3A)
Insert after section 20O (3):
(3A)
Subject to section 20R, the contents of a report
of a RCA team under subsection (3) may be disclosed to any person and used for
any purpose.
[8]Section 20O
(4)
Insert in alphabetical order:
impairment has the same meaning it
has in the Health Practitioner Regulation National Law
(NSW).
professional misconduct and unsatisfactory professional conduct
have the same meanings that they have in Part 8 of the Health Practitioner
Regulation National Law (NSW).
unsatisfactory professional
performance means professional performance that is
unsatisfactory within the meaning of Division 5 of Part 8 of the Health
Practitioner Regulation National Law
(NSW).
[9]Section 20P Disclosure of
information
Omit “report prepared by a RCA team under
section 20O (3)” from section 20P (c).
Insert instead “notification or report
under section 20O”.
[10]Section 20Q Information not to
be given in evidence
Omit section 20Q (1). Insert instead:
(1)
A person is neither competent nor compellable to
produce any document or disclose any communication to a court, tribunal,
board, person or body if the document was prepared, or the communication was
made, for the dominant purpose of the conduct of an investigation by a RCA
team.
[11]Section 20Q
(3)
Insert after section 20Q (2):
(3)
Subsection (1) does not apply to a requirement
made by a person or body who has been approved by the Director-General to
carry out a review or audit of an investigation conducted by a RCA
team.
[12]Section
20R
Omit the section. Insert instead:
20RNotifications and reports not
to be admitted in evidence
(1)
Evidence as to the contents of a notification or
report of a RCA team under section 20O cannot be adduced or admitted in any
proceedings.
(2)
Subsection (1) does not apply to proceedings in
respect of any act or omission by a RCA team or by a member of a RCA team as a
member.
[13]Section 20T Regulations
concerning RCA teams
Insert after section 20T (f):
(g)
the conduct of reviews or audits of
investigations conducted by RCA teams.
[14]Section 20U Review of
Division
Omit the section.
[15]Schedule 2 Savings,
transitional and other provisions
Insert at the end of clause 13 (1):
Health
Legislation Amendment Act 2010 (but only to the extent
that it amends this Act)
[16]Schedule 2, Part
3
Insert after Part 2:
Part 3Provisions consequent on
enactment of Health Legislation Amendment Act
2010
15Definition
In this Part:
amending
Act means the Health
Legislation Amendment Act 2010.
16Appointment of RCA
teams
Section 20M (1A), as inserted by the amending
Act, does not extend to an incident that was reported to the chief executive
officer of a relevant health services organisation before the commencement of
that subsection.
17RCA team not required to make
recommendations
Section 20O (3) (c), as substituted by the
amending Act, extends to an investigation commenced before that
substitution.
18Information not to be given in
evidence
Section 20Q (1), as substituted by the amending
Act, extends to:
(a)
a document that was prepared or a communication
that was made before that substitution, and
(b)
proceedings that are pending on that
substitution.
19Notifications and reports not
to be admitted in evidence
Section 20R, as substituted by the amending Act,
extends to:
(a)
a notification that was given or a report that
was prepared before that substitution, and
(b)
proceedings that are pending on that
substitution.
2.2Private Health Facilities Act 2007 No
9
[1]Section 42 Appointment of root
cause analysis teams to deal with incidents
Insert after section 42 (1):
(1A)
When an incident involving the provision of
health services by a private health facility (other than a reportable
incident) is reported to the licensee of the facility, the licensee may
appoint a root cause analysis team in relation to the incident if the licensee
is of the opinion that the incident may be the result of a serious systemic
problem that justifies the appointment of such a team.
[2]Sections 42 (2) and (3) and 44
(1), (2) and (3) (a) and (b)
Omit “reportable” wherever
occurring.
[3]Section 43 Restrictions on
root cause analysis teams
Omit section 43 (3). Insert instead:
(3)
A member of a root cause analysis team is to act
in a fair and reasonable manner in the exercise of his or her functions as
such a member.
[4]Section 44 Responsibilities of
root cause analysis team in relation to incident
Insert after section 44 (2):
(2A)
A notification under subsection (1) or (2) is to
disclose the identity of the person to whom the notification relates
(regardless of whether the person consents to the disclosure) and specify
whether the notification relates to:
(a)
professional misconduct, unsatisfactory
professional conduct or unsatisfactory professional performance by the person,
or
(b)
the person suffering from an
impairment.
(2B)
A root cause analysis team may notify in writing
the licensee and the chair of the medical advisory committee for the relevant
facility if the team is of the opinion that the incident that it is
considering raises matters that indicate a problem giving rise to a risk of
serious and imminent harm to a person.
[5]Section 44
(3)
Omit “a reportable incident”. Insert
instead “an incident”.
[6]Section 44 (3)
(c)
Omit the paragraph. Insert instead:
(c)
if the team has any recommendations as to the
need for changes or improvements in relation to a procedure or practice
arising out of the incident—those
recommendations.
[7]Section 44
(3A)
Insert after section 44 (3):
(3A)
Subject to section 47, the contents of a report
of a root cause analysis team under subsection (3) may be disclosed to any
person and used for any purpose.
[8]Section 44
(6)
Insert after section 44 (5):
(6)
In this section:
impairment has the same meaning it
has in the Health Practitioner Regulation National Law
(NSW).
professional misconduct and unsatisfactory professional conduct
have the same meanings that they have in Part 8 of the Health Practitioner
Regulation National Law (NSW).
unsatisfactory professional
performance means professional performance that is
unsatisfactory within the meaning of Division 5 of Part 8 of the Health
Practitioner Regulation National Law
(NSW).
[9]Section 45 Disclosure of
information
Omit “report prepared by a team under
section 44 (3)” from section 45 (c).
Insert instead “notification or report
under section 44”.
[10]Section 46 Information not to
be given in evidence
Omit section 46 (1). Insert instead:
(1)
A person is neither competent nor compellable to
produce any document or disclose any communication to a court, tribunal,
board, person or body if the document was prepared, or the communication was
made, for the dominant purpose of the conduct of an investigation by a root
cause analysis team.
[11]Section 46
(3)
Insert after section 46 (2):
(3)
Subsection (1) does not apply to a requirement
made by a person or body who has been approved by the Director-General to
carry out a review or audit of an investigation conducted by a root cause
analysis team.
[12]Section
47
Omit the section. Insert instead:
47Notifications and reports not
to be admitted in evidence
(1)
Evidence as to the contents of a notification or
report of a root cause analysis team under section 44 cannot be adduced or
admitted in any proceedings.
(2)
Subsection (1) does not apply to proceedings in
respect of any act or omission by a root cause analysis team or by a member of
a root cause analysis team as a member.
[13]Section 49 Regulations
concerning root cause analysis teams
Insert after section 49 (e):
(f)
the conduct of reviews or audits of
investigations conducted by root cause analysis
teams.
[14]Schedule 4 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Health
Legislation Amendment Act 2010 (but only to the extent
that it amends this Act)
[15]Schedule 4, Part
3
Insert after Part 2:
Part 3Provisions consequent on
enactment of Health Legislation Amendment Act
2010
21Definition
In this Part:
amending
Act means the Health
Legislation Amendment Act 2010.
22Appointment of root cause
analysis teams
Section 42 (1A), as inserted by the amending Act,
does not extend to an incident that was reported to the licensee of a private
health facility before the commencement of that
subsection.
23Root cause analysis team not
required to make recommendations
Section 44 (3) (c), as substituted by the
amending Act, extends to an investigation commenced before that
substitution.
24Information not to be given in
evidence
Section 46 (1), as substituted by the amending
Act, extends to:
(a)
a document that was prepared or a communication
that was made before that substitution, and
(b)
proceedings that are pending on that
substitution.
25Notifications and reports not
to be admitted in evidence
Section 47, as substituted by the amending Act,
extends to:
(a)
a notification that was given or a report that
was prepared before that substitution, and
(b)
proceedings that are pending on that
substitution.
Schedule 3Other
amendments
3.1Assisted Reproductive Technology Act 2007 No
69
[1]Schedule 1 Savings,
transitional and other provisions
Insert after clause 4 (3):
(3A)
The Director-General may, on receipt of an
application under this clause, direct an ART provider in writing to provide
such information as the Director-General may require to enable the
Director-General to identify:
(a)
in the case of an application by a donor of a
gamete—any offspring of the donor born as a result of ART treatment
using the donated gamete, and
(b)
in the case of an application by a person who was
born as a result of ART treatment using a donated gamete—the donor of
the gamete.
(3B)
An ART provider must comply with any such
direction of the Director-General.
[2]Schedule 1, clause 4
(4)
Insert “or (3A)” after
“subclause (2)”.
[3]Schedule 1, clause 4
(5)
Insert after clause 4 (4):
(5)
The Director-General must not disclose
information provided under subclause (3A) that identifies a person unless the
person:
(a)
is an adult, and
(b)
has made an application under this clause or has
provided written consent to the disclosure.
3.2Guardianship Act 1987 No
257
Section 34 Application of
Part
Insert “or the Mental
Health (Forensic Provisions) Act 1990” after
“Mental Health Act
2007” wherever occurring in section 34
(2).
3.3Health
Administration Act 1982 No 135
Section 4
Definitions
Insert “or the Director-General”
after “Minister” in section 4 (1A).
3.4Health
Services Act 1997 No 154
[1]Section 40 Delegations by area
health service
Omit section 40 (1) including the note. Insert
instead:
(1)
An area health service may delegate any of its
functions (other than a function set out in subsection (1A)) to:
(a)
any member of the NSW Health Service,
or
(b)
a visiting practitioner, council or committee
appointed by the area health service, or
(c)
a body appointed by the Minister or
Director-General under this or any other Act, or
(d)
a person or body of a class prescribed by the
regulations.
Note—
Section 49 of the Interpretation
Act 1987 contains general provisions relating to the
delegation of functions.
(1A)
An area health service cannot delegate:
(a)
its power of delegation under this section,
or
(b)
its functions under section 31 (2),
or
(c)
the power to make
by-laws.
[2]Section
53A
Insert before section 53:
53ACombined management or
assistance in management of public hospitals, health institutions, health
services or health support services
(1)
Any two or more statutory health corporations
may, by agreement, jointly control and manage any public hospital, health
institution, health service or health support service.
(2)
A statutory health corporation may, by agreement,
manage any public hospital, health institution, health service or health
support service under the control of another statutory health corporation, or
assist in that management, for and on behalf of that other statutory health
corporation.
(3)
A statutory health corporation 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 a statutory health
corporation because the statutory health corporation manages, or assists in
the management of, the public hospital, health institution, health service or
health support service for and on behalf of another statutory health
corporation.
[3]Schedule 7 Savings and
transitional provisions
Insert at the end of clause 1 (1):
Health
Legislation Amendment Act 2010 (but only to the extent
that it amends this Act)
3.5Public
Health (Tobacco) Act 2008 No 94
Section 39 Notification by
person engaging in tobacco retailing
Omit “within 7 days” from section 39
(4). Insert instead “within 28 days”.
Historical
notes
Table of amending
instruments
Health
Legislation Amendment Act 2010 No 52. Assented to
28.6.2010. Date of commencement, Sch 3.2–3.4 excepted: not in force;
date of commencement of Sch 3.2–3.4, assent, sec 2
(2).