ALERT DIGEST 4 of 1994
Part 2
2.1
This Bill was introduced into the Legislative Assembly on 23 March 1994 by The Honourable Phil Gude on behalf of the Honourable Marie Tehan with The Honourable Bill McGrath.
2.2
This Bill replaces the Medical Practitioners Act 1970 with a new statutory framework for the registration of medical practitioners in Victoria. More specifically, the Bill:-
- establishes a new registration board for medical practitioners; establishes the Medical Practitioners Board of Victoria and the Medical Practitioners Board Fund of Victoria;
- provides a new registration scheme for medical practitioners;
- establishes a process for dealing with medical practitioners whose capacity to practise is in question;
- regulates the advertising of medical services by registered medical practitioners;
- creates disciplinary procedures;
- repeals the Medical Practitioners Act 1970 and makes consequential amendments to other Acts;
2.3 ¯ Part 2 - Registration
Part 2 establishes the procedures for obtaining registration from the Board. Clause 5(3) provides that the Board can require the applicant to provide additional information or material in respect of the application. Clause 7(2) sets out the grounds upon which the Board can refuse to grant registration. Under Clause 7(2), the Board can impose any conditions, limitations or restrictions as it thinks fit. Clause 8 deals with specific registration and Clause 9 deals with provisional registration.
The Committee makes no further comment.
Clause 10 provides that the Board must give notice to an applicant, if it is proposing to refuse an application for registration or impose conditions or restrictions on the registration of the applicant. The board must also give the applicant the opportunity to make submissions to the Board about the proposal. This requirement was not imposed on the Board under the old Act. Review of the Board's decision is dealt with under the new sections 60-64 which are discussed later at 2.6
The Committee makes no further comment.
2.4 ¯ Part 3 - Investigations into registered medical practitioners
Part 3 deals with the investigations into registered medical practitioners. Clause 23 sets out when a complaint about a registered practitioner is to be dealt with by the Board and when the complaint is to be dealt with by the Health Services Commissioner.
Clause 24 sets out the procedures when complaints about professional conduct are to be investigated by the Board. In order to determine whether it is necessary, the Board must conduct a preliminary investigation. The Board can delegate its investigatory powers to specific people, who then make a recommendation to the Board. Pursuant to Clause 25, the Board must then decide whether or not to act upon that recommendation.
Clause 26 provides that the Board may of its own motion, determine to conduct a formal or informal hearing into the professional conduct of a registered medical practitioner without conducting a preliminary investigation. This differs from the procedure in relation to complaints as set out in Clause 24.
Clauses 28-38 deal with the preliminary investigation into the health of registered medical practitioners. Clause 29 specifies the form of the notice which must be given to the medical practitioner. Clause 30 describes the processes if the medical practitioner agrees to undergo a medical examination. Clause 31 deals with the report of the examination. Sub-section (4) of clause 31 provides that if the report contains information which is likely to be prejudicial to the physical or mental health of the practitioner, then the investigator may decide not to give that information to the medical practitioner. Sub-section 5 provides that the investigator must report to the Board when acting under sub-section (4) and that the Board may appoint another medical practitioner, if necessary to continue the investigation.
The Committee has wrote to the Minister on 13 April 1994 to request her advice as to what conditions, either physical or psychiatric are likely to trigger the use of clause 31(4). The Committee has also requested advice as to the envisaged use of the section, given the previous experience of the Medical Board. The Minister replied in a letter dated 19 April 1994 which is set out.
"I refer to your letter of 13 April 1994 containing further considerations of the Medical Practice Bill by the Scrutiny of Acts & Regulations Committee.
It is the position of this Department that the various pieces of health practitioner registration legislation should contain the same provisions where that is possible. In relation to clause 31 of the Bill you will notice that it is identical to s.29 of the Nurses Act 1993.
When still in draft form the Nurses Bill was sent out for consultation. Initial drafts of s.29 only included the present s.29(1)-(3), subsections (4) and (5) being added in response to advice received from the solicitors for the present Victorian Nursing Council. I quote from the letter
'clause 29(1) - This clause makes no allowance for the following circumstances which ... have actually occurred during the past 10 years.
(a) A psychiatric nurse was referred to a psychiatrist for medical examination to confirm that he was medically a fit and proper person to retain registration. He informed the psychiatrist that, if the psychiatrist's report was unfavourable, he would kill the psychiatrist and/or members of his family. The psychiatrist had no doubt that the nurse was capable of carrying out the threat.
(b) Ms X ... threatened to kill herself if a psychiatric report was not favourable.
In either of these circumstances, the requirement that the examining medical practitioner must give a copy of his report to the nurse is likely to cause problems. The doctor may refuse to report to anyone. Section 33(4) Freedom of Information Act 1982 attempts to deal with this sort of problem. The treatment there is not entirely satisfactory, but it is better than the mandatory requirement of clause 29(1) which may lead to tragedy.'
Departmental staff adopted this sensible advice when drafting the Nurses Act 1993 and the same provision is included in the Medical Practice Bill for the same reasons. it is envisaged that it will be used on the rare occasions when it is necessary to prevent tragedy."
Clause 36 provides that the Board may suspend the registration of the medical practitioner, if the matter is referred to a formal hearing and sets out the notification requirements.
Clause 33 provides the Board with the power to refer the matter to a formal hearing if the medical practitioner does not agree to undergo a medical examination or reach an agreement with the Board.
The Committee makes no further comment.
2.5 ¯ Division 3 - Formal and Informal Hearings
Clauses 39-59 relate to the formal and informal hearings by the Board.
Clauses 39-45 govern the conduct of informal hearings. The panels for informal hearings consist of not more than 3 persons, of whom at least 1 is to be a registered medical practitioner. Informal hearings are not open to the public. There is no right to legal representation but the practitioner is entitled to make submissions and to be accompanied by another person and list the possible findings that the panel can make.
The medical practitioner has the choice of having the matter determined by a formal hearing or an informal hearing. The notice must state the differences between the two. If the medical practitioner throughout the course of the informal hearing requests that the matter be determined at a formal hearing, then the informal hearing must be abandoned.
At the completion of an informal hearing, the medical practitioner may request that a formal hearing be held to review any findings and determinations of the informal hearing. If a request has been made under section 45, then pursuant to section 46 the Board must hold a formal hearing.
Clauses 46-59 govern the conduct of a formal hearing. The panel must consist of at least 3 persons, of whom 1 must be a lawyer and 1 must be a registered medical practitioner. The hearing is open to the public and the medical practitioner has the right to be represented. Clause 50 sets out the findings which the Board may make and the penalties and conditions it can impose.
Clause 52 provides that the panel at both formal and informal hearings are not bound by the rules of evidence but is bound by the rules of natural justice. Pursuant to Clause 56, the panel must give reasons for its determination within 28 days of making the determination. Pursuant to Clause 57 the Board can give information about a medical practitioner who is the subject of a determination, to a medical practitioner registration authority outside Australia.
The Committee makes no further comment.
2.6 ¯ Review by Administrative Appeals Tribunals
Clauses 60-61 set out the mechanism for review by the Administrative Appeals Tribunal. Any ecision of the Board or any determination may be reviewed by the Administrative Appeals Tribunal. The application for review must be made within 28 days from the date on which the Board gives notice of the decision.
The Committee makes no further comment.
2.7 ¯ Part 5 - Offences
Clauses 62-64 create a number of offences in relation to claims by persons as to registration.
The Committee makes no further comment.
2.8 ¯ The Board - Administration
Clauses 65-88 provide for the establishment of the Board, its functions and powers, the membership of the Board, the terms of office, the resignations and removals and the procedures.
Clause 67 sets out the membership of the Board. The Board is to consist of 12 members. Of the 12 members, 9 must be registered medical practitioners, 1 must be a lawyer and 2 must be persons who are not medical practitioners. They are nominated by the Minister and appointed by the Governor-in-Council. The Medical Board of Victoria ,constituted under the old Act pursuant to Clause 4, consisted 11 members. Of the 11 members, 9 were qualified practitioners and of the remaining 2 members, 1 was a lawyer. They were appointed by the Governor-in-Council.
Clause 69 provides for the resignation and removal of members. The Governor-in-Council may remove a member of the Board from office at any time. Clause 68 refers to the terms of office. A member of the Board holds office for not more than 3 years from the date of his or her appointment and is eligible for reappointment. Clause 70 provides that the Governor-in-Council may appoint registered medical practitioners to be President and Deputy President of the Board. The fees and allowances of the members of the Board are fixed from time to time by the Governor-in-Council pursuant to Clause 72.
Clause 78 provides that the Board may delegate its powers under the Act, in writing to a member of the Board, the person responsible for maintaining the register or any other member of staff of the Board. Four specific powers cannot be delegated, namely:-
- the power to refuse to grant or refuse to renew registration;
- the power to impose or to amend vary or revoke conditions, limitations or restrictions on registration;
- the power to conduct any hearing or make any determination under Part 2 or Part 3;
- this power to delegate;
The Committee notes that the powers to be delegated are limited and are delegated to specific persons and makes no further comment.
2.9 ¯ Division 2 - Intern Training Accreditation Committee
Clauses 80-88 establish the Intern Training Accreditation Committee. Its functions are to:-
- advise the Board on the length and extent of intern training, the supervision required for such training and the facilities necessary for such training in hospitals and other institutions;
- to receive and consider applications for the approval of positions in hospitals and make recommendations to the Board;
- to periodically review approved positions and make recommendations as to whether the position should continue and if there should be any terms and conditions attached to the approval;
Clause 82 sets out the membership of the Committee. The Committee consists of 9 members nominated by the Minister and appointed by the Governor-in-Council. Each nomination is drawn from a panel of 3 names submitted by various institutes and bodies which include:-
- the Faculty of Medicine, Dentistry and Health Sciences of the University of Melbourne;
- the Faculty of Medicine of Monash University;
- the Victorian Faculty of the Royal Australian College of General Practitioners;
- the Victorian Hospitals Association;
- 2 are appointed from 6 names submitted by the Association of Medical Directors of Victorian Hospitals;
- the Victorian Medical Post-Graduate Foundation;
- 1 is appointed on the nomination of the Board from the members of the Board;
- 1 is to be a registered medical practitioner appointed on the nomination of the Minister after consultation with the Secretary;
Clauses 83 and 84 set out the terms of office and provisions for removal and resignation. A member of the Committee holds office for 3 years from the date of his or her appointment and may be removed by the Governor-in-Council at any time. The members' payment and allowances are fixed by the Governor-in-Council from time to time.
The Committee makes no further comment.
2.10 ¯ Reporting and financial provisions
Clauses 89-91 set out the reporting requirements and establish a Medical Practitioners Board Fund.
The Committee makes no further comment.
2.11 ¯ Enforcement and supplementary powers
Clauses 92-96 make provision for enforcement and supplementary powers. Clause 93 relates to warrants. A person appointed by the Board for that purpose, may apply to a Magistrate for the issue of a search warrant. The Magistrate must be satisfied by evidence on oath or by affidavit.
Clause 94 provides for a member of the Intern Training Committee, for the purposes of reviewing or approving positions in intern training, to enter and inspect the hospital and examine any records relating to the positions and copy or take extracts from those records.
The Committee notes there is no confidentiality provision which would protect the individual. Information may well be taken inadvertently in the course of copying or taking extracts.
The Committee wrote to the Minister on 13 April 1994 to request her advice as to whether it is appropriate to have some confidentiality provision to ensure that peoples privacy is protected. The Minister replied in a letter dated 19 April 1994 which is set out.
"I do not understand the Committee's concerns about clause 94. This clause enables a member of the Intern Training Accreditation Committee to examine records in relation to intern positions. These are administrative records kept by the hospital about the positions available for interns. They are not patient records (which are protected by s.141 of the Health Services Act 1988 and s.120A of the Mental Health Act 1986). The clause substantially reenacts s.7A(11)(b)(i)-(iii) of the Medical Practitioners Act 1970 and there is no suggestion that the present Hospital Accreditation Committee is in any way indiscreet in the manner in which it oversees the intern program in hospitals, as a consequence, I see no need to introduce a further confidentiality clause into the Bill at this stage."
2.12 ¯ Supreme Court - Limitation of Jurisdiction (section 4D(b)(ii) of the Parliamentary Committees Act 1968)
Clause 97 of the Bill states its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court actions of the kind referred to in sections 37(3), 38, 57(3) and 76 of the Bill.
Clause 37(3) operates to vary section 85 of the Constitution Act 1975 by providing that a medical practitioner is not subject to any civil or criminal liability for making a report to a registration body, if the report is made in good faith. The Committee notes the Minister's comments in the Second Reading Notes: -
"This provision is considered essential to ensure that medical practitioners are not deterred by the threat of litigation from reporting to the relevant registration body registered health practitioners whose ability to practise is in question if that reporting is done in good faith. This immunity is considered vital if the public is to be assured that it will be protected."
The Committee notes the explanation and reports that the proposed section is appropriate in all the circumstances.
Clause 38 operates to vary or alter section 85 by providing that a registered health practitioner in a working or treating relationship with a medical practitioner is not subject to any civil liability for reporting a medical practitioner whom he or she believes to be incapacitated, if the report is made in good faith. The Committee notes the Minister's comments in the Second Reading Notes:-
"This provision is also considered essential to ensure that health professionals are not deterred by the threat of litigation from reporting medical practitioners who may be incapacitated to the Board. It is considered vital that this immunity be included given that the primary purpose of the Act is to protect the public."
The Committee notes the explanation and reports that the proposed section is appropriate in all the circumstances.
Clause 57(3) varies or alters section 85 by providing that no action lies against the Board or its members for giving a notice under Clause 57(1), ie, a notice regarding a determination by the Board. Note that pursuant to Clause 57(1)(d), the Board must give notice of its determination in the Government Gazette and to various medical bodies including those outside Australia, if requested. The Committee notes the comments in the Second Reading Notes: -
"The purposes of the Act will not be fulfilled if medical practitioners whose practise has been restricted or who have been suspended or deregistered can continue to practise either in Victoria or elsewhere because notice of the Board's action has not been communicated to the relevant authorities. This provision is essential to ensure that the Board and its members can communicate vital information to the relevant authorities without the threat of civil action for defamation against them."
The Committee notes the explanation and reports that the proposed section is appropriate in all the circumstances.
Clause 76 of the Bill operates to alter or vary section 85 by providing that a member of the Board or the person responsible for keeping the register is not personally liable for anything done or omitted to be done in good faith and without negligence in the exercise of a power or duty under the Act or in the reasonable belief that the Act or omission was in the exercise of a power or duty under the Act.
The Committee notes the Minister's comments in the Second Reading Notes:-
"This provision is essential to protect the Board and the person responsible for keeping the register from personal liability for carrying out the functions conferred upon them by statute."
WITNESS PROTECTION (AMENDMENT) ACT
3.1
This Bill was introduced into the Legislative Assembly on 30 March 1994 by The Honourable Pat McNamara with The Honourable Phil Gude.
3.2
This Bill extends the expiry date of the Witness Protection Act 1991 which will sunset on 23 April 1994. Significant amendments to the Act will be introduced in the Spring Sitting 1994.
The Committee makes no further comment.
FRIENDLY SOCIETIES (BENEFIT FUNDS) BILL
4.1
This Bill was introduced into the Legislative Assembly on 30 March 1994 by The Honourable Jan Wade, the Attorney-General with The Honourable Phil Gude.
4.2
This Bill amends the Friendly Societies Act 1986. In particular it provides for the provision of separate accounts for each benefit fund. The monies must be kept in a bank account for the fund or a clearing account. Proper accounting records must be kept.
Clause 5 amends section 74 to permit a friendly society to mix assets of different classes of benefit funds on a temporary basis in clearing accounts. The Bill provides for a friendly society to operate three types of clearing accounts, an inward clearing account, an outward clearing account and an investment clearing account.
The Committee makes no further comment.
STATE BANK OF SOUTH AUSTRALIA (TRANSFER OF UNDERTAKING) BILL
5.1
This Bill was introduced into the Legislative Assembly on 30 March 1994 by The Honourable Alan Stockdale, the Treasurer with The Honourable Ian Smith.
5.2
By way of background, the South Australian government has determined to corporatise the State Bank of South Australia as a preliminary step to its ultimate sale. The South Australian government has given undertakings to the Commonwealth government that the corporatisation will be completed by 30 June 1994.
Certain operating assets which belong to South Australia are located in Victoria. This Bill which has been requested by the South Australian government will facilitate the vesting of operating assets and retail deposits in the new bank and exempts the transfer of assets from Victorian stamp duty. The Bill is part of complementary legislation which has been sought from all relevant governments in Australia.
The Committee makes no further comment.
