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HEALTH PROFESSIONALS REGULATIONS 2004 (NO 41 OF 2004)
Legislative Assembly for the Australian Capital
Territory
Health Professionals Regulations
2004
Explanatory
Statement
Circulated by authority of
Simon Corbell MLA
Minister for Health
Health Professionals
Regulations 2004
This regulation has been developed to provide process and machinery
provisions that support the operation of the Health Professions Act 2004.
The regulations are an important source of instruction in relation to how powers
and bodies established in the principle Act are to be exercised or structured.
Such matters have been set in regulation with the dual objectives of having an
Act that is not overwhelmed by instructional detail and also to provide a
legislative framework that is readily amenable to process
review.
CHAPTER 1. INTRODUCTORY – This chapter provides for
the naming of the regulation as the Health Professionals Regulations
2004. Chapter 1 also provides for the commencement of this regulation on
the day that section 13 (Main Objects) of the Act commences.
This
chapter further clarifies that the Dictionary at the end of the regulations
defines certain words and expressions that are used throughout this
regulation.
CHAPTER 2. HEALTH PROFESSION BOARDS – This
Chapter sets out matters associated with the establishment and operation of
health profession boards.
Part 2.1 Establishment of Health profession
Boards – The regulations provide that a health profession board is
established when it is referred to in Schedule 1 of this regulation. This part
further provides that matters that are specific to particular health profession
boards will be set out in separate schedules to this regulation. For example
Schedule 2 of the regulations sets out matters specific to medical
practitioners. (Note: It is intended to seek the approval of separate
schedules relating to all other approved health professions during the
commencement period of the legislation)
Regulation 4(3) requires
that if a schedule requires or allows something to be approved by a health
profession board, the approval must be in writing and is a notifiable
instrument.
It is important to note that this part should be read in
conjunction with Section 138 of the Health Professionals Act 2004.
Section 138 provides that health professions that were registered under a former
Act will continue to be regulated.
Part 2.1 of these regulations
should also be read in parallel with part 4 of the Act – ‘Regulation
of health professions’, and part 5 of the Act – ‘Health
profession Boards’.
Part 2.2 Health profession board
members – The regulations provide for the membership of health
profession boards, Ministerial appointment of the board president, the election
of a deputy board president, the appointment and election of board members and
arrangements for the appointment of community members.
Regulation 9
requires that at least half of the members of individual health profession
boards (other than the board president and the community representative) are to
be appointed by the Minister. Elected health board members, as indicated in the
individual health profession Schedules to these regulations, must be elected
under part 2.3 (Elections). An appointment term of no longer than 4 years is
provided for under Regulation 10. The appointment, by the Minister, of a
number of community representatives (as indicated by the health
profession’s Schedule) is provided under this regulation. Regulation
11 requires the Minister to consult with the relevant health profession
board before appointing someone other than a community
representative.
Regulation 12 allows the Minister to appoint a
community representative only if the person is on the community representative
list for the board.
Regulations 14 and 15 provide for the
removal of board members in certain circumstances and outlines the procedures
required of the board president proposing the removal of the board member.
Arrangements for the discretionary payment of board members and other
board assistance are provided in Regulations 17 and 18. Health
profession boards may under Regulation 19 apply to the Minister for
approval of an activity (relevant to the Act), that may result in the
board incurring an extraordinary liability, or for financial assistance if the
board believes on reasonable grounds that it may incur extraordinary expenses in
relation to the legal fees or damages because of the administration of the Act.
Regulation 20 allows a health board to engage staff to help it
exercise its functions and also requires a health profession board to appoint an
executive officer who will undertake the functions outlined in
Regulation 21. A health board is authorised to delegate functions to
certain persons or bodies under Regulation 22.
Regulation 23 defines the terms used in this part of the
Act.
Regulation 24 provides in detail the requirements to be
satisfied by the board president for election dates for a health profession.
Regulation 25 provides for the Minister to undertake the things required
of the health profession board in Regulation 24 in certain circumstances when
there is no board president.
As soon as practicable after the election
start day for the election of a health profession the board president is
required to provide, to the electoral commissioner, a list which complies with
the requirements stated in Regulation 26. The electoral commissioner is
required to notify registered health professionals on this list, of information
relevant to the election as outlined in Regulation 27. The eligibility
criteria for a member of a health profession board are prescribed in
Regulation 28 and require the person to be a registered health
professional in the health profession and to have been continuously registered,
or continuously registered under a corresponding law of a local jurisdiction and
this Act, for at least three years before the election start day. Regulations
29 to 31 describe nomination procedures for the election of candidates as
members of health profession boards and include the requirements for a
candidate’s withdrawal. Regulation 32 provides for the application
of the Electoral Act, section 110 (Rejection of nominations) to an election
under this part.
Direction is provided under Regulations 34 to 36
in relation to the actions required of the electoral commissioner in
circumstances where the numbers of candidates is less than, equal to, or greater
than the number of positions available. Regulation 37 restricts voting
eligibility to a person who is on the election start day, registered in the
health profession, and voting is limited to one vote per elector under
Regulation 38. Detail relating to ballot papers including: the positions
of candidates on the ballot paper; the distribution and replacement of ballot
papers; and the process relating to the placement of ballot papers in ballot
paper envelopes, is provided in Regulations 39 to 43.
Regulations 44 provides for the application of the Electoral
Act, part 12, (The Scrutiny) to an election under this Act in specified
circumstances. Regulations 45 and 46 allow a candidate for an election
for a health profession board to appoint a scrutineer and prescribes certain
conduct of scrutineers. Candidates are prohibited from taking any part in
the conduct of an election under Regulation 47.
The electoral
commissioner is required under Regulation 48 to, as soon as practicable
after the result of an election for the health profession has been decided, to
declare the successful candidate elected and to tell the president of the health
profession board in writing about the election of each person elected. Such a
declaration is a notifiable instrument. Regulation 49 provides that the
term for an elected member begins on the day the person is declared elected and
is for 4 years. Regulation 50 provides the circumstances for the
destruction of election material by the electoral commissioner. Regulation
52 authorises the electoral commissioner to approve forms for this part of
the Act and requires that an approved form is a notifiable
instrument.
Division 2.3.2 Casual and temporary vacancies in elected
positions-provides for circumstances where a casual or temporary vacancy
occurs in a position on a health profession board (to which a member is elected
rather than appointed) is to be filled, and details the processes surrounding
the filling of such vacancies.
Regulation 53 provides the
definitions for this division.
To ensure elected board member positions
do not remain unfilled for long periods Regulation 54 requires the
president of the health profession board to inform the electoral commissioner in
writing of the casual vacancy in cases where the formers board member’s
term had more than a year to run. Regulation 56 requires that a person
may apply to be a candidate for a position on a health profession board for
which a casual vacancy has happened if the person was a candidate in the last
election for the position; and was not elected at that election; and is an
eligible person. Regulation 58 specifies the actions required of the
electoral commissioner in cases where there is only 1 candidate for a casual
vacancy, and in cases where there is more than 1 candidate.
Regulation 59 allows the Minister to nominate a person to be a
member of the board in cases where the formerly elected board member’s
term had less than a year to run; or the electoral commissioner tells the
president (under Regulation 55(4) that it is not practicable to fill the
vacancy; or the commissioner tells the president (under Regulation 57(2) that
there are no candidates for the vacancy; and when the health profession board is
satisfied that it is not practicable for the board to exercise its functions
without filling the vacancy. If the Minister nominates an eligible person under
this regulation, the Minister must tell the electoral commissioner who must then
declare the person elected. Regulation 60 specifies the term of a board
member elected under Division 2.3.2. Regulation 61 allows a health
profession board to ask the Minister to appoint a member temporarily in
circumstances where a health professional board is unable to exercise its
function due to a temporary vacancy.
Division 2.3.3
Disputed elections-provides for the Supreme Court (known as the Court of
Disputed Health Elections) to hear and decide on matters concerning the validity
of elections and to matters relating to the eligibility of elected members or
membership vacancies. Regulation 64 provides for the Supreme Court to
have the same powers when exercising jurisdiction under this part as it has when
exercising its original jurisdiction. Under Regulation 65 the Court of
Disputed Health Elections decision is final and conclusive and not subject to
appeal.
Regulation 66 establishes the circumstances when the
validity of an election is to be taken to be in dispute. Only a candidate in the
election, an elector for the election, and the electoral commissioner are
entitled, under Regulation 67, to dispute the validity of an election for
a health profession. The necessary administrative requirements for an
application (or withdrawal of an application) disputing the validity of an
election are specified in Regulations 68 to 72. Regulation 74
specifies the circumstances when a person ceases to be a respondent to a
disputed election application and the actions required of the person (or his or
her personal representative). Under Regulation 77 the Court of Disputed
Health Elections must hear and decide a disputed election application and take
actions specified in this regulation including the making of other orders in
relation to the disputed election application that the court considers
appropriate.
Regulation 78 authorises the Court of Disputed
Health Elections to make a declaration under Regulation 77 (1) (a) or (b) on the
grounds of an illegal practice in relation to the election if it is satisfied
that the result of the election was, or was likely to have been, affected by the
illegal practice. If the Court of Disputed Health Elections finds an illegal
practice in relation to an election, the registrar is required to report the
finding to the electoral commissioner, the director of public prosecutions, and
the chairperson of the health profession board to which the election is related.
Regulation 79 requires the Court of Disputed Health Elections to declare
the election of a person void if the Court finds that the person declared
elected committed, or attempted to commit, bribery or undue influence in
relation to an election. The Court is authorised under
Regulation 81 to make enquiries it considers appropriate in deciding a
disputed election application. Areas of regard and disregard by the Court of
Disputed Health Elections, including the inspection of electoral papers, are
specified in Regulations 82 to 84.
The filing of a dispute
election application does not prevent the Electoral Commissioner or staff from
having access to certain documents to exercise a function under these
regulations, unless the Court of Disputed Health Elections otherwise orders
(Regulation 85). The serving of copies of declarations made by the Court
of Disputed Health Elections and the effect of court declarations are specified
in Regulations 86 and 87.
Under Regulation 89 a party in a
proceeding is entitled to be represented by only one (1) lawyer appearing as
counsel. Regulation 90 authorises the Court of Disputed Health Elections
to order the Territory to pay some or all of the costs of the proceeding, even
if the Territory is not a party to a proceeding.
Under Regulation 91 a health professional is prohibited from
voting more than once at the same election. Regulation 92 states the
circumstances that constitute interference with voting, and allows an elector
assistance in cases where they would otherwise be unable to vote. An assistant
is defined in this regulation as being a nominee of the elector, or if there is
not a nominee, then an authorised witness. Regulations 93 and 94
stipulate offences in relation to completed ballot papers. An officer commits an
offence under Regulation 95 if the officer does anything to influence
someone else’s vote, and under Regulation 96 a person must not, by
violence or intimidation, hinder or interfere with the free exercise of a
function under these regulations. Regulation 97 specifies the
circumstances which constitute voting fraud.
Part 2.4 Health profession board meetings – Part 2.4 provides
procedural guidance in relation to board meetings.
Regulation 98
states when health profession board meetings may be held and, under
Regulation 99, that board meetings are to be open to the public unless
the board decides otherwise. Regulation 100 allows the Minister to refer,
in writing, a matter to the health profession board for consideration if the
Minister considers the matter involves the protection of the public or of the
public interest. Regulation 102 requires the board president to preside
over a health profession board meeting, and in the president’s absence,
the deputy president. In circumstances where neither board president nor deputy
is present at a health profession board meeting attended by a quorum of board
members, the members present may elect a member to preside at the meeting. A
board quorum for a health profession board meeting is stated in Regulation
103 as being a majority of the board members (including any positions that
are vacant). Details relating to voting at board meetings and the circumstances
when a decision on a question arising at a meeting must be postponed are
detailed in Regulation 104.
Each health profession board is
required under Regulation 105 to keep a record of what happened at its
meetings. Regulation 107 requires a board member to disclose any personal
interest, or a direct or indirect financial interest, in a matter being
considered by the heath profession board and provides the process to be followed
upon disclosure.
Part 2.5 Health Profession Board functions
– The regulations provide that, in an addition to the functions of a
board provided for under part 5 of the Health Professionals Act 2004, the
health profession board has certain other functions and obligations.
Regulation 108 requires the board to form ties with relevant entities
that further the promotion and achievement of suitability to practise standards
and professional development standards for the health profession.
Regulation 109 provides for the Minister, in assessing a health
board’s performance, to consider whether the standards approved by the
board (under Regulation 134) have met public benefit guidelines. In assessing a
health boards performance the Minister may also consider under Regulation
110 how a board has managed applications and reports under the Act and,
under Regulation 111, whether the board has sent renewal notices for
registration in accordance with regulation 126 (Renewal notice for
registration).
Part 3.1 Application for registration – This part details
the requirements for registration as a health professional, the powers available
to a health professional board in relation to an application for registration,
the requirements to be met for registration, the length of registration and the
issue of practising certificates. This part also provides for the appropriate
application of the Mutual Recognition Act 1992 (Cwlth) and the
Trans-Tasman Mutual Recognition Act 1977 (Cwlth) in respect to the
recognition of registration by local jurisdictions.
Of particular note
within this part –
Regulation 112. Application for
registration – establishes the informational
requirements that are
to be met in an application for registration.
Regulation
113. Registration of health professionals - determines that on
receipt of an application for registration a board must either
–
1. Register a person unconditionally; or
2. register the person
conditionally; or
3. refuse to register the person.
Regulation
114. Suitability to practise requirements - provides that a health
professional board is to consider a person to be suitable to practise in a
profession or a specialty area of the profession if –
1. the person has
the qualifications for the health profession, or specialty area, set out in the
schedule for the profession; and
2. the person has successfully completed
training (which may include an internship) set out in the schedule for the
profession or specialty area; and
3. the person is generally
competent.
This section should also be read in conjunction with clause 37
(Who may be registered as a health professional) of the Health Professionals
Act 2004.
Regulation 115. General competence to practise –
provides that a health profession board, in deciding if a
health professional is generally competent, must consider
1. whether the person is mentally and physically health enough to
practice;
2. whether the person has an addiction to alcohol or another
drug;
3. whether the person has been convicted, or found guilty, in the ACT
or a local jurisdiction of an offence that indicates that the person may not be
competent to practise the profession;
4. whether the person’s practice
experience is recent enough to allow the person to practise the profession
adequately, taking into account the requirements included in the schedule that
relates to the particular profession.
The regulations further provide
that the health board may also consider other relevant matters that may have a
bearing on a person’s competence in relation to a health
profession.
Regulation 116 - Conditional registration - Where a
board decides not to register a person unconditionally it may register a person
conditionally if satisfied that conditional registration is in the public
interest and the person will not endanger public safety. Clause 37 of the Act
provides for the award of conditional registration. Regulation 117
establishes the circumstances when conditional registration is in the public
interest however the regulation does not limit when it is in the public interest
to conditionally register a person.
Regulation 118 - Specialty
area registration –provides that a board may prescribe requirements
for admission within a specialty area of the health profession. Such
requirements are to be detailed in the schedule to the regulations that relates
to the profession. A person may only practise in the specialist area if the
person meets the requirements and is registered to practise in that
specialty.
Regulation 119 - Powers of health profession boards
to require further information- provides that a health professional board
may, before making a decision on an application for registration, ask the person
for additional information or ask (in writing) for the person to appear before
the board to give information concerning their entitlement to registration. If
the person does not provide the information requested by the board the board my
refuse to consider the application.
Regulation 120 - Length of
registration –provides that registration as a health professional is
to be granted for a period of not more than one year.
Regulation
121 - Practising certificate –provides that if a health
profession board registers someone as a health professional they must give the
person a practising certificate. In circumstances where conditional registration
has been granted, the practising certificate must state that the registration is
conditional and that the conditions on registration may be obtained from the
health profession board unless the board decides otherwise under Regulation 154
(3) (Access to Registers).
Regulation 122 -Replacement of
practising certificates- provides direction in circumstances where a
person’s practising certificate is damaged, lost, stolen or
destroyed.
Regulation 123 - Return of practising
certificate- provides for the return of a health professional’s
practising certificate in circumstances that are prescribed in this particular
regulation.
Part 3.3 Maintaining competence and continuing professional
development – Part 3.3 establishes the responsibilities of the health
professional and health profession boards in maintaining competence and
continuing professional development.
Regulation 129 provides that
it is a health professional’s responsibility to ensure that he or she
remains suitable to practise the profession for which he or she is registered.
Under Regulation 130 the health profession board is provided with the
role of establishing (or facilitating the establishment of), programs to
support, promote and assess health professionals’ general and professional
competence.
Regulation 131 - Standards for the maintenance of
competence –provides that a health profession board, in consultation
with professional representative bodies, is required to develop or endorse
written standards about the actions a registered health professional needs to
take to maintain professional competence and continue professional development.
The health profession board is required to ensure, as far as practicable, that
the standards developed or endorsed are consistent with any standards developed
by professional representative bodies for the particular profession. A standard,
or its endorsement, is a notifiable instrument. Sub regulation (6) of this
regulation describes what the standards must include. The standards may provide
that membership of a named organisation (for example membership of a
professional association) or participation in a named course or program is
sufficient evidence of maintenance of competence to practice and professional
development.
It is important to read this section in association
with clause 23 of the Health Professionals Act 2004. Satisfaction of a
standard for maintaining competence and continuing professional development may
be considered in assessing a person’s suitability to be unconditionally
registered in a health profession.
The purpose of this Chapter is to permit a health profession board to
decide what behaviour does or does not meet the required standard of practice in
relation to relevant health professionals. This Part should be read in
conjunction with clause 18 of the Health Professionals Act 2004 wherein
the term required standard of practice is defined and provision is made
for the regulations to prescribe what behaviour does or does not meet the
required standard of practice. A required standard of practice if breached
means that a health professional is not competent to practise.
Regulation 134 - Standard statements –provides that a
health profession board may develop and or approve standards statements that
make up the required standard of practice for the health profession it
regulates. Standards developed by the board or another entity must be approved
in writing by the board. An approval is a notifiable instrument.
Regulation 135 -Pattern of practice or particular acts- provides
that in deciding whether or not a registered health professional meets the
required standard of practice a health professional’s act, acts, or
pattern of practice may be considered.
Regulation 136 -
Endangering public –provides guidance to an assessment as to
whether a health professional has breached a required standard of practice. An
assessment should consider if the act, acts, or pattern of practice of a health
professional endangered public health or safety.
Regulation 137 -
Lack of competence to practise – provides that a health
professional breaches the required standard of practice if the health
professional engages in a standard of practice that demonstrates a lack of
competence to practise, knowledge, skill, judgement or care by the health
professional.
Part 4.2 Specific breaches of the required standard
of practice – This part prescribes a minimum set of required standards
of practice that are to apply to all health professionals that are registered
under the Health Professions Act 2004. Under Regulation 138 if a
health professional breaches this part, the health professional breaches the
required standard of practice and is not competent to practice unless the health
professional board decides otherwise. Under Regulation 139 a registered
health professional must not breach a standards statement that applies to the
professional.
Regulation 140 requires that a health professional
must tell their health profession board if the health professional is charged
with committing an offence. Sub regulation (2) of this regulation requires that,
as soon as practicable after the day the health professional is charged (but in
any case within 7 days after that day), that the charge be identified
sufficiently to allow the board to decide whether the charge indicates that the
health professional may be contravening the Act.
Other specific breaches
of the required standard of practice under this part relate to-
1. breach of relevant legislative requirements for infection control or
reporting of
notifiable disease (Regulation
141);
2. practising while under the influence of a drug or dependent on a
drug that affects the health professionals ability to practice or professional
performance (Regulation 142);
3. giving a drug of dependence or a
prohibited substance to a drug addicted person where this action is not part of
a treatment plan for the person (Regulation 143);
4. inappropriate
behaviour involving someone who is or was a user of a health service provided by
the health professional (Regulation 144);
5. failure to report another
registered health professional in cases where a registered health professional
believes on reasonable grounds that another registered health professional has
or is contravening a required standard of practice or a suitability to practise
requirement (and that the contravention does not relate to an administrative
matter) and that the contravention has, or has had, a substantial affect on a
member of the public (Regulation 145);
6. failure to maintain adequate
clinical records or changing a clinical record to deceive someone (Regulation
146);
7. signing a certificate that misrepresents a fact (Regulation
147);
8. allowing someone else (an assistant) to treat a user of a health
service, or perform a procedure on a health service user where the procedure
requires professional discretion or skill (Regulation
148);
9. advertising a health service in a way that is misleading
(Regulation 149); and
10. engaging in behaviour that contravenes
another law that reflects on the ability or commitment of the individual to
provide an adequate standard of care for patients (Regulation 150).
Without limiting this type of behaviour, a health professional is considered
to have engaged in such behaviour if:
a) while registered they have been
convicted, or found guilty, of an offence punishable by imprisonment for 6
months or longer and the behaviour on which the conviction or finding of guilt
is based reflects adversely on their suitability to practise; or
b) convicted
or found guilty, of an offence against the Health Insurance Act 1973
(Cwlth) committed while registered; or
c) the health professional
breaches the health rights and responsibilities code while registered (see
ACT Community & Health Services Complaints Act 1993-Part 6)
This chapter provides for the keeping of a register or registers by a
health professional board in relation to the health professionals that the
health profession boards regulates. Under Regulation 151 a health
profession board must keep a register and ensure that the information in the
register is as accurate and current as practicable. Regulation 152
describes what information the register is to contain and, under
Regulation 153, requires that the information in the register is to be
accessible and extractable. Regulation 154 requires that the executive
officer of a health profession board is responsible for keeping the register on
behalf of the board. Regulation 155 stipulates the access requirements to
registers. Requests for changes of details in the register and how changes can
be sought are provided for in Regulation 156.
SCHEDULE 2 MEDICAL PRACTITIONERS
Schedule 2 is the schedule
referred to in Schedule 1 and regulation 4 relating to the Medical Practitioners
Health Profession Board. The Schedule (incomplete) prescribes the makeup of the
membership of the Medical Board for the purposes of election processes prior to
the commencement of the Medical Schedule.