(1) The Board may impose conditions on a person’s registration, as an alternative to refusing to register the person, if the Board is satisfied that the person suffers from an impairment and the conditions are reasonably required having regard to the impairment.
(1) This section applies when it is proved to the satisfaction of that Board that, after a person was registered under this Act, the person was deregistered under a foreign law:
(a) for any reason relating to conduct of the person amounting to professional misconduct (within the meaning of this Act), or (b) for any reason relating to the person’s physical or mental capacity to practise medicine.
(1) A person may appeal to the Tribunal against a decision of the Board to remove the person’s name from the Register under this Division but there is no right of appeal when the Board is required under this Division to remove the person’s name. (2) The appeal must be lodged with the Registrar who is to refer it to the Tribunal.
(1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:
(a) Conduct significantly below reasonable standard Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) Contravention of Act or regulations Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (c) Contravention of conditions of registration Any contravention by the practitioner (whether by act or omission) of a condition to which his or her registration is subject. (d) Criminal convictions and criminal findings Any conduct that results in the practitioner being convicted of or being made the subject of a criminal finding for any of the following offences:
(i) an offence under section 204 of the , Mental Health Act 1990 (ii) an offence under section 175 of the , Children and Young Persons (Care and Protection) Act 1998 (iii) an offence under section 35 of the , Guardianship Act 1987 (iv) an offence under section 128A, 128B, 129, 129AA or 129AAA of the of the Commonwealth, Health Insurance Act 1973 (v) an offence under section 58 of the . Private Health Facilities Act 2007 (vi) (d1) Contravention of requirement under Health Care Complaints Act 1993 A contravention by the practitioner of section 34A (4) (Power of Commission to obtain information, records and evidence) of the . Health Care Complaints Act 1993 (e) Accepting a benefit for a referral or recommendation to a health service provider Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for:
(i) referring another person to the health service provider, or (ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter. (f) Accepting a benefit for a recommendation of a health product Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product. (g) Offering a benefit for a referral or recommendation Offering or giving any person a benefit as inducement, consideration or reward for the person:
(i) referring another person to the registered medical practitioner, or (ii) recommending to another person that the person use any health service provided by the practitioner or consult the practitioner in relation to a health matter. (h) Failure to disclose pecuniary interest in giving referral or recommendation Referring a person to, or recommending that a person use or consult:
(i) another health service provider, or (ii) a health service, or (iii) a health product, when the practitioner has a pecuniary interest in giving that referral or recommendation (as provided by subsection (2)), unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation. (i) Engaging in overservicing Engaging in overservicing, as provided by subsection (3). (j) Supervision of assistants Permitting an assistant employed by the practitioner (in connection with the practitioner’s professional practice) who is not a registered medical practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill. (k) Assisting unregistered practitioners By the practitioner’s presence, countenance, advice, assistance or co-operation, knowingly enable a person who is not a registered medical practitioner (whether or not that person is described as an assistant) to:
(i) perform any act of operative surgery (as distinct from manipulative surgery) on a patient in respect of any matter requiring professional discretion or skill, or (ii) issue or procure the issue of any certificate, notification, report or other like document, or to engage in professional practice, as if the person were a registered medical practitioner. (l) Failing to render urgent attention Refusing or failing, without reasonable cause, to attend (within a reasonable time after being requested to do so) on a person for the purpose of rendering professional services in the capacity of a registered medical practitioner in any case where the practitioner has reasonable cause to believe that the person is in need of urgent attention by a registered medical practitioner, unless the practitioner has taken all reasonable steps to ensure that another registered medical practitioner attends instead within a reasonable time. (m) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of medicine. Note— Sections 37A and 38 provide for some exceptions to the above provisions.
(1) The following courses of action are available to the Board in respect of a complaint made to the Board, referred to the Board by the Commission or that the Board has decided to make:
(a) the Board may refer the complaint to the Commission for investigation, a Committee or the Tribunal, as the Board thinks fit, (b) the Board may:
(i) refer the matter to an Impaired Registrants Panel, or (ii) refer the professional performance of the practitioner concerned for assessment under Part 5A, (c) the Board may direct the practitioner concerned to attend counselling, (d) the Board may refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the , Health Care Complaints Act 1993 (e) the Board may determine that no further action should be taken in respect of the complaint.
(1) Both the Board and the Commission are under a duty to refer a complaint to the Tribunal if at any time either forms the opinion that it may, if substantiated, provide grounds for the suspension or deregistration of a registered medical practitioner.
(1) A Committee may recommend that a person be suspended from practising medicine for a specified period or that a person be deregistered if the Committee is satisfied (when it finds on a complaint about the person) that the person does not have sufficient physical and mental capacity to practise medicine. (1A) If the person is not registered, a recommendation can be made under this section that the person not be re-registered.
(1) The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person):
(a) that the person is not competent to practise medicine, or (b) that the person is guilty of professional misconduct, or (c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence render the person unfit in the public interest to practise medicine, or (d) that the person is not of good character. (1A) The Tribunal must by order direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person) that the person has contravened an order or condition of the person’s registration that is a critical compliance order or condition under section 61.
(1) The Board must, if at any time it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied that the action is otherwise in the public interest:
(a) by order, suspend a registered medical practitioner from practising medicine for such period (not exceeding 8 weeks) as is specified in the order, or (b) impose on a registered medical practitioner’s registration such conditions relating to the practitioner’s practising medicine as the Board considers appropriate. (2) If at any time the Board is satisfied that a registered medical practitioner has contravened an order or condition of the practitioner’s registration that is a critical compliance order or condition under section 61, the Board must:
(a) by order suspend the practitioner from practising medicine until a complaint concerning the matter is dealt with by the Tribunal, and (b) refer the matter to the Tribunal as a complaint.
(1) The Board must, as soon as practicable after taking any action under section 66 and, in any event, within 7 days after taking that action, refer the matter to the Commission for investigation. (1A) The Board may (despite any other Act or law) provide to the Commission any information obtained by the Board in connection with the exercise of functions under section 66 (including any information, copies of documents or evidence obtained under section 69B and a copy of any recording made under section 66AA) in respect of a matter that the Board refers to the Commission under this section.
(1) If the Commission concurs with the proposed imposition by the Board under section 66 (4) of a condition on a registered medical practitioner’s registration requiring the practitioner to take part in a performance assessment under Part 5A, the matter giving rise to the proposal:
(a) is to be dealt with by way of performance assessment under Part 5A, and (b) may, if the Board and the Commission agree, also be dealt with by the Commission as a complaint against the practitioner. (2) If the Commission does not concur with the imposition of such a condition, the matter giving rise to the proposal is to be dealt with by the Commission as a complaint against the practitioner.
(1) This section applies if the Board takes action against a registered medical practitioner under section 66 because the Board is of the opinion that the practitioner suffers from an impairment. (2) The Board must, as soon as practicable after taking that action and, in any event, within 7 days after taking that action, notify the Commission that it has taken that action. (3) The Board is to consult with the Commission to see if agreement can be reached as to whether the matter should be:
(a) dealt with as a complaint against the practitioner, or (b) referred to an Impaired Registrants Panel.
(1) This section applies if the Board imposes conditions on the registration of a registered medical practitioner under section 66 and the matter is referred to an Impaired Registrants Panel. (2) The conditions imposed by the Board have effect as follows:
(a) if the matter is subsequently dealt with by the Board as a complaint (see section 82), until the complaint about the practitioner is disposed of, or (b) until the conditions are removed by the Board, whichever happens first. (3) The Board is not required to alter or remove conditions imposed under this Division merely because a practitioner agrees to conditions being imposed on the practitioner’s registration in accordance with the recommendations of an Impaired Registrants Panel (as referred to in section 81).
(1) A court in New South Wales before which a person is convicted of an offence, or is made the subject of a criminal finding for a sex or violence offence, other than an offence prescribed by the regulations, is to cause notice of the conviction or criminal finding, and of any penalty imposed on the person, to be sent to the Registrar if the court has reasonable grounds to believe that the person is or was, at the time the offence was committed, a registered medical practitioner.
(1) The Board may by notice given to a medical student who is the subject of a matter referred or proposed to be referred to an Impaired Registrants Panel direct the student to undergo an examination by a specified registered medical practitioner or a specified registered health practitioner at a specified time and place.
(1) A registered medical practitioner who agrees to conditions being imposed on his or her registration, or to being suspended from practising medicine, may, by notice in writing to the Board, request:
(a) that those conditions be altered or removed, or (b) that the suspension be terminated or shortened.
(1) An Impaired Registrants Panel that investigates a matter concerning a medical student may recommend to the Board that is it in the public interest that the Board:
(a) prohibit the student from undertaking clinical studies or from undertaking a clinical placement in a public hospital, or (b) impose specified conditions on the undertaking of clinical studies or a clinical placement by the student.
(1) A person may appeal to the Tribunal against a decision of the Board to issue an order:
(a) prohibiting the person from undertaking clinical studies or a clinical placement in a public hospital, or (b) imposing conditions on the undertaking of clinical studies or a clinical placement by the person.
(1) A report by an Impaired Registrants Panel to the Board may not be admitted or used in any civil proceedings before a court.
(1) At the completion of a performance review, a Performance Review Panel may make such recommendations to the Board in respect of the registered medical practitioner concerned as the Panel considers appropriate.
(1) A Performance Review Panel is not required to include confidential information in the statement of a decision. If a statement would be false or misleading if it did not include the confidential information, the Panel is not required to provide the statement.
(1) A registered medical practitioner about whom a complaint is referred to a Committee or the complainant may appeal with respect to a point of law to the Chairperson of the Tribunal or a Deputy Chairperson nominated by the Chairperson.
(1) An appeal with respect to a point of law may be made to the Supreme Court:
(a) during an inquiry conducted by the Tribunal, or after a complaint is referred to the Tribunal and before the commencement of the inquiry by the Tribunal, or (b) during an appeal conducted by the Tribunal against the exercise by the Chairperson or Deputy Chairperson of the Tribunal of any power under Division 4 of Part 4, or after an appeal is made to the Tribunal against the exercise of such a power and before the commencement of the appeal before the Tribunal.
(1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against:
(a) a decision of the Tribunal with respect to a point of law, or (b) the exercise of any power by the Tribunal under Division 4 (Disciplinary powers of Committees and Tribunal) of Part 4.
(1) The appropriate review body is to conduct an inquiry into an application for review and may then do any of the following:
(a) dismiss the application, (b) by its order terminate or shorten the period of the suspension concerned, (c) make a reinstatement order, (d) make an order altering the conditions to which the person’s registration is subject (including by imposing new conditions), (e) by its order terminate or shorten the period of a prohibition order or alter the conditions to which the person is subject under a prohibition order (including by imposing new conditions).
(1) Without affecting any right of appeal under section 95, a registered medical practitioner who is the subject of action taken by the Board under section 66, 66A or 66AB may appeal with respect to a point of law to the Chairperson of the Tribunal or a Deputy Chairperson nominated by the Chairperson.
(1) A registered medical practitioner who is the subject of a performance review by a Performance Review Panel may appeal to the Tribunal against a decision of the Panel or any order or direction made by the Panel under Part 5A. (2) An appeal must be made within 28 days (or such longer period as the Registrar may allow in a particular case) after notice of the decision or the making of the order or direction is given to the registered medical practitioner.
(1) A registered medical practitioner who is the subject of a performance review by a Performance Review Panel may appeal with respect to a point of law to the Chairperson of the Tribunal or a Deputy Chairperson nominated by the Chairperson.
(1) The Board may establish a code of professional conduct setting out guidelines that should be observed by registered medical practitioners in the conduct of their professional practice. The Board may from time to time amend or replace a code of professional conduct. (2) The Minister may require the Board to develop guidelines relating to any conduct of registered medical practitioners that the Minister considers should be the subject of a code of professional conduct. For that purpose, the Minister may:
(a) direct the Board to establish a code of professional conduct, or (b) direct the Board to amend or replace a code of professional conduct, so that the code includes guidelines relating to that conduct.
(1) A person who is not a registered medical practitioner must not take or use any name, initials, word, title, addition, description or symbol which having regard to the circumstances in which it is taken or used indicates or is capable of being understood to indicate or is calculated to lead persons to infer that:
(a) the person possesses a degree, diploma, or other qualification of a nature which would entitle the person to be registered as a medical practitioner, or (b) the person is registered as a medical practitioner under this Act. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(1) A person ( the employer ) who employs a registered medical practitioner must not direct or incite the practitioner to do either of the following in the course of professional practice:
(a) engage in overservicing, (b) engage in conduct that would constitute unsatisfactory professional conduct or professional misconduct. Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first offence or 800 penalty units for a second or subsequent offence, or (b) in any other case, 200 penalty units for a first offence or 400 penalty units for a second or subsequent offence. (2) For the purposes of this section, any actions of an agent or employee of the employer are taken to be actions of the employer unless the employer establishes:
(a) that the employer had no knowledge of those actions, and (b) that the employer could not, by the exercise of due diligence, have prevented those actions.
(1) The Director-General may by notice in writing given to a person who has been convicted of or made the subject of a criminal finding for an offence against this Part prohibit the person from operating a business that provides medical services.
(1) When a corporation or the trustee of a trust is the subject of a prohibition under this Part in connection with the operation of a business operated by the corporation or under the trust:
(a) each person who has a management role or substantial interest in the corporation or a substantial interest in the trust is for the purposes of this Part taken to be the subject of that prohibition also, and (b) each corporation in which a person referred to in paragraph (a) has a management role or substantial interest is for the purposes of this Part taken to be the subject of that prohibition also (whether or not the corporation was in existence at the time of the relevant offence), and (c) the trustee and any manager of a trust in which a person referred to in paragraph (a) has a substantial interest is for the purposes of this Part taken to be the subject of that prohibition also (whether or not the trust was in existence at the time of the relevant offence).
(1) When a corporation or the trustee of a trust is convicted of or made the subject of a criminal finding for an offence against this Part in connection with the operation of a business operated by the corporation or under the trust the Director-General may require certain persons to provide specified information to the Director-General, as provided by this section. (2) The corporation or trustee may be required to provide information that the Director-General may reasonably require to ascertain the identity of each person who has a management role or substantial interest in the corporation or a substantial interest in the trust.
(1) Despite section 118, an authorised person may, for the purpose of ascertaining whether the provisions of this Part are being complied with, exercise the powers conferred by Part 9 to enter premises without the consent of the owner or occupier of the premises, and without a search warrant.
(1) An authorised person may exercise the powers conferred by this section for the purpose of ascertaining whether the provisions of this Act or the regulations are being complied with or of investigating a complaint made or intended to be made under Part 4.
(1) A person is not excused from answering any question asked by an authorised person under this Part on the ground that the answer might tend to incriminate the person.
(1) An authorised person may apply to an authorised officer for a search warrant if the person has reasonable grounds for believing:
(a) that a provision of this Act or the regulations has been or is being contravened in or on any premises, or (b) that entry into or onto any premises is necessary for the purpose of investigating a complaint made or intended to be made under Part 4 that, if substantiated, may provide grounds for the suspension or deregistration of a registered medical practitioner.
(1) A registered medical practitioner must, on or before the return date in each year, furnish in writing to the Board in a form approved by the Board a return for the return period specifying the following information:
(a) details of any conviction of the practitioner for an offence, in this State or elsewhere, during the return period (together with details of any penalty imposed for the offence), (b) details of the making of a sex/violence criminal finding against the practitioner for an offence, in this State or elsewhere, during the return period (together with details of any penalty imposed for the offence), (c) details of the making of a criminal finding against the practitioner for an offence committed in the course of the practice or purported practice of medicine, in this State or elsewhere, during the return period (together with details of any penalty imposed for the offence), (d) details of any criminal proceedings pending against the practitioner at the end of the return period in this State or elsewhere for a sex or violence offence alleged to have been committed in the course of the practice or purported practice of medicine, (e) details of any significant illness (physical or mental) from which the practitioner suffered at any time during the return period and that may reasonably be thought likely to detrimentally affect the practitioner’s physical or mental capacity to practise medicine, (f) details of any suspension of, cancellation of, or imposition of conditions on, the registration of the practitioner as a medical practitioner in another jurisdiction (either within Australia or elsewhere) during the return period, (g) a statement of whether the practitioner has been refused registration as a medical practitioner in another jurisdiction (either within Australia or elsewhere) during the return period, (h) details of any continuing professional education undertaken by the practitioner during the return period, (i) such other information as may be prescribed by the regulations.
(1) The Board is to inform the Chairperson and appoint 3 other persons to sit on the Tribunal when a complaint is referred to the Tribunal or an application or appeal is made to the Tribunal in accordance with this Act.
(1) The Governor may appoint a qualified person as Chairperson of the Tribunal and may appoint one or more qualified persons as Deputy Chairpersons of the Tribunal. (2) The Chairperson and each Deputy Chairperson hold office for such period not exceeding 7 years as may be specified in the instrument of appointment as Chairperson or Deputy Chairperson, but is eligible (if otherwise qualified) for re-appointment. (3) A Deputy Chairperson may be appointed by the Governor for the purpose only of conducting or hearing a particular inquiry or appeal described in the instrument of appointment of the Deputy Chairperson. (4) A Deputy Chairperson, while sitting on the Tribunal, has and may exercise all the functions conferred or imposed on the Chairperson by this Act.
(1) The Tribunal is to conduct proceedings on an inquiry or appeal as it thinks fit.
(1) The Tribunal must provide a written statement of a decision on an inquiry or appeal to the complainant, to the practitioner concerned and to the Board, and must do so as soon as practicable after the decision is made (bearing in mind the public welfare and seriousness of the matter).
(1) The Tribunal is not required to include confidential information in the statement of a decision. If a statement would be false or misleading if it did not include the confidential information, the Tribunal is not required to provide the statement.
(1) A Committee is to consist of:
(a) 2 registered medical practitioners having such qualifications as may be prescribed, and (b) one person who is legally qualified and not a registered medical practitioner and who is to be appointed by the Board as chairperson of the Committee, and (c) one lay person (that is, a person who is not a registered medical practitioner) appointed from among a panel of lay persons for the time being nominated by the Minister.
(1) A Committee is to conduct proceedings on an inquiry as it thinks fit. Proceedings of a Committee are to be open to the public except when the Committee otherwise directs.
(1) At an inquiry conducted by a Committee, the practitioner concerned and any complainant are entitled to attend and to be represented by an Australian legal practitioner or another adviser.
(1) A Committee must immediately terminate an inquiry if before or during the inquiry the Committee:
(a) forms the opinion that the complaint, if substantiated, may provide grounds for the suspension or deregistration of a registered medical practitioner, or (b) becomes aware that the Board or the Commission has referred the complaint or another complaint about the practitioner concerned to the Tribunal.
(1) A Committee must provide a written statement of a decision on an inquiry to the complainant, to the practitioner concerned and to the Board, and must do so within one month after the decision is made.
(1) A Committee is not required to include confidential information in the statement of a decision. If a statement would be false or misleading if it did not include the confidential information, the Committee is not required to provide the statement.
(1) When the Board decides to refer a matter to an Impaired Registrants Panel it is to appoint 2 persons, at least one of whom is a registered medical practitioner, to sit as the Panel for the purpose of dealing with the matter.
(1) When the Board decides to require a Performance Review Panel to conduct a performance review of the professional performance of a registered medical practitioner, the Board is to appoint 3 persons to sit as the Panel for the purpose of that performance review. (2) Of those 3 persons:
(a) 2 are to be registered medical practitioners, and (b) one is to be a lay person (that is, a person who is not a registered medical practitioner).
(1) If a corporation commits an offence against this Act or the regulations under this Act, each person who is a director of the corporation, or who is concerned in the management of the corporation, is taken to have committed the same offence unless he or she proves that:
(a) the offence was committed without his or her knowledge, and (b) he or she exercised all such due diligence to prevent the commission of that offence as he or she ought to have exercised, having regard to the nature of his or her functions in that capacity and to all the circumstances.
(1) This section applies to a report made in connection with an examination of a person by a registered medical practitioner or a registered health practitioner (a health or medical report ), being a report that is obtained for the Board pursuant to:
(a) a requirement made by the Board under section 54 or 78A, or clause 17 of Schedule 1, or (b) a condition of registration or an order imposed by a person or body exercising functions under this Act, or (c) a request made by the person to his or her treating practitioner in connection with a matter being dealt with by an Impaired Registrants Panel.
(1) The Board is required to give notice of any order made in respect of a registered medical practitioner under this Act, or the imposition of conditions on the registration of a registered medical practitioner, to the following persons:
(a) the employer (if any) of the practitioner concerned, (b) the chief executive officer (however described) of any public health organisation in respect of which the practitioner concerned is a visiting practitioner or is otherwise accredited, (c) the chief executive officer (however described) of any private health facility in respect of which the practitioner concerned is accredited, (d) the chief executive officer (however described) of any nursing home (within the meaning of the ) in respect of which the practitioner concerned is accredited. Public Health Act 1991 (1A) Without limiting subsection (1), the Board may give notice of any action taken under Division 5 of Part 4 to any person or body the Board reasonably considers it appropriate to notify. (2) A notice under subsection (1) is to be given within 7 days after:
(a) in the case of an order made or conditions imposed by the Board—the date the order is made or the conditions are imposed, or (b) in any other case—the date the Board is given a copy of the decision of the body that made the order or imposed the conditions.
(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.
(Section 22)
(Sections 161, 176)
(Section 194)
(Section 198)