Health Legislation Amendment Act 2018 No 2



An Act to make miscellaneous amendments to various Acts that relate to health and associated matters.
1   Name of Act
This Act is the Health Legislation Amendment Act 2018.
2   Commencement
(1)  This Act commences on the date of assent to this Act, except as provided by subsection (2).
(2)  Schedules 1, 4, 5 and 7 commence on a day or days to be appointed by proclamation.
[1]   Part 2, Division 6C Root cause analysis teams
Omit the Division.
[2]   Part 2A
Insert after Part 2:
  
Part 2A Response to incidents
Division 1 Preliminary
21A   Definitions
In this Part:
assessor means an assessor appointed under Division 2.
health practitioner has the same meaning it has in the Health Practitioner Regulation National Law (NSW).
health service includes any administrative or other service related to a health service.
impairment has the same meaning it has in the Health Practitioner Regulation National Law (NSW).
incident reviewer—see section 21L.
performance or impairment issue, in relation to a health practitioner, means:
(a)  professional misconduct, unsatisfactory professional conduct or unsatisfactory professional performance by the health practitioner, or
(b)  the health practitioner suffering from an impairment.
professional misconduct and unsatisfactory professional conduct have the same meanings as they have in Part 8 of the Health Practitioner Regulation National Law (NSW).
relevant health services organisation—see section 21B.
reportable incident means an incident of a type prescribed by the regulations or set out in a document adopted by the regulations.
serious adverse event review means a root cause analysis or any other type of review prescribed by the regulations.
serious adverse event review team means a serious adverse event review team appointed under Division 3.
unsatisfactory professional performance means professional performance that is unsatisfactory within the meaning of Division 5 of Part 8 of the Health Practitioner Regulation National Law (NSW).
21B   Incidents to which Part applies
This Part applies to the following incidents:
(a)  an incident involving the provision of a health service by a local health district, in which case the relevant health services organisation in respect of the incident is the local health district,
(b)  an incident involving the provision of a health service by a statutory health corporation prescribed by the regulations, in which case the relevant health services organisation in respect of the incident is the statutory health corporation,
(c)  an incident involving the provision of a health service by an affiliated health organisation prescribed by the regulations, in which case the relevant health services organisation in respect of the incident is the affiliated health organisation,
(d)  an incident involving the provision of a health service under Chapter 5A (Ambulance services) of the Health Services Act 1997 or the provision of a service under Part 1A of Chapter 10 of that Act, in which case the relevant health services organisation in respect of the incident is the Health Secretary.
Division 2 Preliminary risk assessment
21C   Appointment of assessors to assess incidents
(1)  When an incident is reported to the relevant health services organisation in respect of the incident, the organisation must appoint one or more assessors to carry out a preliminary risk assessment of the incident if:
(a)  it is of the opinion that the incident is (or may be) a reportable incident, or
(b)  the incident is not a reportable incident but may be the result of a serious systemic problem and the organisation is of the opinion that a preliminary risk assessment of the incident should be carried out.
(2)  Assessors may be appointed in response to a particular incident or otherwise.
(3)  The persons appointed as assessors in respect of an incident must (subject to the regulations) be persons that the relevant health services organisation reasonably considers can properly carry out a preliminary risk assessment of the incident.
21D   Functions of assessors in relation to incidents
An assessor is to carry out a preliminary risk assessment of the incident and is to provide advice (in writing or otherwise) to the relevant health services organisation to assist the organisation in understanding the events comprising the incident and the measures required to appropriately manage the incident and remove or mitigate any risk.
21E   Immediate notification if person at risk
An assessor must immediately advise the relevant health services organisation in writing if the assessor is of the opinion that the incident in respect of which the assessor was appointed raises matters that indicate a problem giving rise to a risk of serious or imminent harm to a person.
21F   Outcome of assessment of incidents
(1)  A relevant health services organisation may only disclose an advice of an assessor or any information obtained from the advice as follows:
(a)  to provide the advice to the Health Secretary,
(b)  to notify any person or body authorised under section 23 of the incident,
(c)  to advise a serious adverse event review team appointed to carry out a serious adverse event review of the incident to which the advice relates,
(d)  to provide relevant information to a patient involved in the incident, a family member or carer of the patient or a person nominated by any such patient, family member or carer,
(e)  to a law enforcement agency or regulatory body,
(f)  in any other manner as may be prescribed by the regulations.
(2)  A relevant health services organisation must take reasonable steps to not disclose information that identifies a person (other than the patient involved in the incident) when it provides information under subsection (1) (d).
Division 3 Serious adverse event review
21G   Appointment of team to review incidents
(1)  Following the preliminary risk assessment of an incident, the relevant health services organisation in respect of the incident must appoint one or more persons as a serious adverse event review team to carry out a serious adverse event review of the incident if:
(a)  the incident is a reportable incident, or
(b)  the incident is not a reportable incident but may be the result of a serious systemic problem and the organisation is of the opinion that a serious adverse event review of the incident should be carried out.
(2)  Despite subsection (1), a relevant health services organisation may, but is not required to, appoint a serious adverse event review team to carry out a serious adverse event review of an incident:
(a)  in circumstances prescribed by the regulations, or
(b)  if the Health Secretary has informed the organisation that the Health Secretary intends to conduct a review of, or an inquiry into, the incident.
(3)  The persons appointed as a serious adverse event review team in respect of an incident must (subject to the regulations) be persons that the relevant health services organisation reasonably considers can properly carry out a serious adverse event review of the incident.
(4)  The relevant health services organisation is to cause a written record to be kept of the persons appointed as a serious adverse event review team.
(5)  The Health Secretary may issue directions setting out the type of serious adverse event review, and the manner in which the serious adverse event review is to be carried out, in respect of an incident or a class of incidents.
21H   Serious adverse event review of incident
(1)  A serious adverse event review team is to carry out a serious adverse event review of the incident in respect of which it was appointed.
(2)  A serious adverse event review team must, on completion of the serious adverse event review of an incident, provide a report in writing to the relevant health services organisation that sets out a description of the incident and details of the following findings identified by the team:
(a)  how the incident occurred,
(b)  any factors that caused or contributed to the incident,
(c)  any procedures, practices or systems that could be reviewed (areas for review findings) for the purposes of a recommendations report.
(3)  After considering the findings of the serious adverse event review team, the relevant health services organisation may (and must if the findings include areas for review findings) direct the team to prepare a report (a recommendations report) setting out its recommendations (if any) as to the need for changes or improvements in relation to a procedure, practice or system (including clinical redesign) arising out of the incident.
(4)  The relevant health services organisation may, for the purposes of the preparation of a recommendations report, appoint additional persons to the serious adverse event review team.
(5)  The serious adverse event review team must provide the recommendations report in writing to the relevant health services organisation.
(6)  Subject to section 21O (Information not to be given in evidence), the contents of a report of a reviewer under this section may be disclosed to any person and used for any purpose.
21I   Immediate notification if person at risk
A serious adverse event review team must immediately advise the relevant health services organisation in writing if it is of the opinion that the incident in respect of which it was appointed raises matters that indicate a problem giving rise to a risk of serious or imminent harm to a person.
21J   Notification about performance or impairment of health practitioner
(1)  A serious adverse event review team must advise the relevant health services organisation in writing as soon as practicable once it is of the opinion that the incident in respect of which it was appointed raises matters that may involve a performance or impairment issue (other than unsatisfactory professional performance) in relation to a health practitioner.
(2)  A serious adverse event review team may advise the relevant health services organisation in writing if it is of the opinion that the incident raises matters that may involve unsatisfactory professional performance by a health practitioner.
(3)  A written advice under this section must disclose the identity of the health practitioner to whom the notification relates (regardless of whether the health practitioner consents to the disclosure) and the nature of the concern, and specify whether the notification relates to:
(a)  professional misconduct, unsatisfactory professional conduct or unsatisfactory professional performance by the health practitioner, or
(b)  the health practitioner suffering from an impairment.
21K   Discontinuing serious adverse event review
(1)  The relevant health services organisation may authorise a serious adverse event review team to discontinue taking any further steps in relation to a serious adverse event review of an incident:
(a)  if advice has been provided to the organisation under section 21J (Notification about performance or impairment of health practitioner) and the organisation is of the opinion that the incident was substantially caused by a performance or impairment issue in relation to a health practitioner and the team is not likely to identify any other root causes, contributory factors or system improvements, or
(b)  in circumstances prescribed by the regulations.
(2)  A serious adverse event review team that is authorised under this section may, if it considers it to be appropriate, determine to take no further steps in relation to the serious adverse event review and in such a case may discontinue the review.
Division 4 Incident reviewers
21L   Meaning of “incident reviewer”
In this Part:
incident reviewer means a member of a serious adverse event review team or an assessor.
21M   Restrictions on incident reviewers
(1)  An incident reviewer does not have authority to carry out an investigation relating to the competence of an individual in providing services.
(2)  Except as otherwise provided by or under this Part, an advice or report furnished by a serious adverse event review team must not disclose:
(a)  the name or address of an individual who is a provider or recipient of services unless the individual has consented in writing to that disclosure, or
(b)  as far as is practicable, any other material that identifies, or may lead to the identification of, such an individual.
(3)  An incident reviewer is to act in a fair and reasonable manner in the exercise of his or her functions as an incident reviewer.
21N   Disclosure of information
A person who is or was an incident reviewer must not make a record of, or divulge or communicate to any person, any information acquired by the person as such a reviewer, except:
(a)  for the purpose of exercising the functions of an incident reviewer, or
(b)  for the purpose of any advice provided as an incident reviewer, or
(c)  for the purpose of any advice or report under this Part, or
(d)  in accordance with the regulations.
Maximum penalty: 50 penalty units.
21O   Information not to be given in evidence
(1)  A person is neither competent nor compellable to produce any document or disclose any communication (or to disclose any information that the person obtained from any such document or communication) to a court, tribunal, board, person or body if the document was prepared, or the communication was made, for the dominant purpose of the exercise of a function under this Part by an incident reviewer.
(2)  This section does not apply to a requirement made:
(a)  in proceedings in respect of any act or omission by an incident reviewer, or
(b)  by a person or body who has been approved by the Health Secretary to carry out a review or audit of an assessment or review by an incident reviewer.
21P   Advice and reports not to be admitted in evidence
(1)  Evidence as to the contents of an advice or report of an incident reviewer cannot be adduced or admitted in any proceedings.
(2)  Subsection (1) does not apply to proceedings in respect of any act or omission by an incident reviewer.
21Q   Personal liability of incident reviewers
(1)  Anything done by an incident reviewer or any person acting under the direction of an incident reviewer, in good faith for the purposes of the exercise of the incident reviewer’s functions, does not subject the incident reviewer or person personally to any action, liability, claim or demand.
(2)  Without limiting subsection (1), an incident reviewer has qualified privilege in proceedings for defamation in respect of:
(a)  any statement made orally or in writing in the exercise of the functions of an incident reviewer, or
(b)  the contents of any advice or report or other information published by an incident reviewer.
(3)  An incident reviewer is, and is entitled to be, indemnified in respect of any costs incurred in defending proceedings in respect of a liability against which the reviewer is protected by this section by the relevant health services organisation in respect of the incident for which the incident reviewer was appointed.
Division 5 Miscellaneous
21R   When incident is reported to relevant health services organisation
(1)  An incident is reported to a relevant health services organisation (other than the Health Secretary) when the incident is reported to:
(a)  the chief executive of the organisation, or
(b)  if the incident reporting procedures of the organisation specify another person to whom incidents are to be reported—that other person.
(2)  An incident is reported to the Health Secretary when it is reported to the Health Secretary or to a person nominated by the Health Secretary for the purposes of this Part.
21S   Regulations for purposes of Part
The regulations may make provision for or with respect to the following:
(a)  the appointment of persons as members of a serious adverse event review team or as assessors,
(b)  the functions of incident reviewers and the manner in which they are to exercise those functions,
(c)  the procedures of a preliminary risk assessment or a serious adverse event review,
(d)  permitting or requiring incident reviewers or a relevant health services organisation to make specified information (including personal information and health information) available to the public,
(e)  permitting or requiring incident reviewers to furnish reports concerning their activities to the Minister and to relevant health services organisations,
(f)  the carrying out of reviews or audits of any preliminary risk assessment or serious adverse event review.
[3]   Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 13 (1):
  
any Act that amends this Act
[4]   Schedule 2, Part 4
Insert after Part 3:
  
Part 4 Provisions consequent on enactment of Health Legislation Amendment Act 2018
20   Definition
In this Part:
21   Existing incidents
Part 2A of this Act extends to an incident that occurred before the commencement of that Part.
22   Existing RCA teams
Despite clause 21, Part 2A of this Act does not extend to an incident if an RCA team has been appointed in relation to the incident before the commencement of that Part and in such a case Division 6C of Part 2, as in force immediately before its repeal, continues to apply to and in respect of the RCA team.
23   Disclosure of information
Section 21N extends to a person who was a member of an RCA team before the commencement of that section in the same way as it applies to an incident reviewer but only in respect of information that the person was not able to make a record of, or divulge or communicate to any person under section 20P immediately before the repeal of that section.
24   Information not to be given in evidence
Section 21O extends to:
(a)  a document that was prepared, or a communication that was made, before the commencement of that section for the dominant purpose of the conduct of an investigation by an RCA team, and
(b)  proceedings that are pending on that commencement.
25   Notifications and reports of former RCA teams not to be admitted in evidence
Section 21P extends to:
(a)  a notification that was given, or a report that was prepared, before the commencement of that section by an RCA team, and
(b)  proceedings that are pending on that commencement.
26   Personal liability of members of former RCA teams
Section 21Q extends to a person who was a member of an RCA team before the commencement of that section or to a person acting under the direction of any such person in the same way as that section applies to an incident reviewer or any person acting under the direction of an incident reviewer.
Schedules 2–6 (Repealed)
Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure
Omit “Divisions 6B (Quality assurance committees) and 6C (Root cause analysis teams) of Part 2, and section 23 (Specially privileged information)” from the matter relating to the Health Administration Act 1982 in clause 1 (1).
Insert instead “Division 6B (Quality assurance committees) of Part 2, Part 2A (Response to incidents) and section 23 (Specially privileged information)”.