Part 6Investigations

Part 6—Investigations Division 1—Application of Part 43—Matters that may be investigated (1) The Commissioner may investigate— (a) any matter specified in a written direction given by the Minister; and (b) a complaint that the Commissioner has determined to investigate under this Act; and (c) an issue or question arising from a complaint if it appears to the Commissioner— (i) to be a significant issue of public safety, interest or importance; or (ii) to be a significant question as to the practice of a health or community service provider; and (d) on his or her own motion, any other matter relating to the provision of health or community services in South Australia. (2) An investigation under subsection (1)(c) may be carried out whether or not— (a) the process of assessment of the relevant complaint has been completed; or (b) any process of conciliation of the relevant complaint has been completed; or (c) the relevant complaint has been withdrawn; or (d) the Commissioner has decided not to take action (or further action) on the relevant complaint. (3) Despite subsection (2), an investigation referred to in subsection (1)(c) should not be carried out to the extent that it interferes with a process of conciliation. (4) The Commissioner is not required to cease an investigation referred to in subsection (1)(b) or (c) only because the relevant complaint has been resolved. (5) Without limiting the operation of a preceding subsection, an investigation under subsection (1)(c) may be carried out on the basis of fresh evidence that comes to the attention of the Commissioner following the completion of a particular investigation. 44—Limitation of powers The powers conferred by this Part may be exercised only for purposes of an investigation. Division 2—Conduct of investigations 45—Conduct of investigation (1) An investigation is to be conducted in such manner as the Commissioner considers appropriate. (2) The Commissioner may, in conducting an investigation under this Part, obtain expert advice, or any other advice or support, in order to assist the Commissioner in the investigation. (3) The Commissioner may, at any time, decide to attempt to deal with a complaint by conciliation. (4) The Commissioner may, in attempting conciliation under subsection (3), act personally or through a member of his or her staff. (5) The Commissioner may, if satisfied that the subject of a complaint has been properly resolved by conciliation under subsection (3), determine that the complaint should not be further investigated under this Part. (6) Anything said or done during conciliation under subsection (3), other than something that reveals a significant issue of public safety, interest or importance, is not to be disclosed in any other proceedings (whether under this or any other Act or law) except by consent of all parties to the conciliation. 46—Representation (1) Subject to subsection (2), a person required to appear or to produce documents under this Part may be assisted or represented by another person. (2) The Commissioner may determine whether any person involved in proceedings under this Part may have legal or other representation during the conduct of an investigation or proceedings relating to an investigation. (3) The Commissioner must, in making any determination under subsection (2), to such extent as is reasonably practicable, have regard to the need to ensure that representation is balanced between the parties and that any determination is fair to all persons who are involved in proceedings under this Part. 47—Use and obtaining of information (1) If the Commissioner has obtained a document or information under or in connection with the operation of this Act, the Commissioner may use that document or information for the purposes of this Part. (2) If the Commissioner has reason to believe that a person is capable of providing information or producing a document relevant to an investigation, the Commissioner may, by notice in writing provided to the person, require the person to do one or more of the following: (a) to provide that information to the Commissioner in writing signed by that person or, in the case of a body corporate, by an officer of the body corporate; (b) to produce that document to the Commissioner; (c) to attend before a person specified in the notice and answer questions or produce documents relevant to the investigation. (3) A notice under subsection (2) is to specify the period within which, or the time, day and place at which, the person is required to provide the information or document, or to attend. (4) A notice under subsection (2) must provide a period of time for compliance with a requirement under that subsection that has been determined by the Commissioner to be reasonable in the circumstances. (5) A person must comply with a requirement under subsection (2). (6) If a document is produced in accordance with a requirement under this section, the Commissioner or other appropriate person may take possession of, make copies of, or take extracts from, the document. 48—Power to examine witnesses etc (1) The Commissioner, or a person who is to receive information under section 47(2), may administer an oath or affirmation to a person required to attend before him or her under this Part and may examine the person on oath or affirmation. (2) The Commissioner may require a person to verify by statutory declaration— (a) any information or document produced under this Part; or (b) a statement that the person has no relevant information or documents or no further relevant information or documents. (3) A person must comply with a requirement under subsection (2). 49—Search powers and warrants (1) On the application of the Commissioner, a magistrate may issue a warrant if the magistrate is satisfied that there are reasonable grounds— (a) for believing that entry and inspection of premises are necessary to enable the Commissioner to carry out an investigation under this Part; or (b) for suspecting that there may be on premises a document or other thing relevant to a matter the Commissioner is investigating under this Part. (2) A warrant authorises a person named in the warrant, and any person assisting that person, with such force as is necessary— (a) to enter and remain in the premises specified in the warrant; and (b) to search those premises and any person or thing in those premises; and (c) to break open and search anything in those premises in which any document or other thing relevant to the investigation may be contained; and (d) to take photographs; and (e) to seize and remove anything in those premises which that person has reasonable grounds for believing is relevant to the investigation; and (f) to examine, seize and remove, make copies of, or take extracts from, any document in those premises which that person has reasonable grounds for believing is relevant to the investigation; and (g) to require a health or community service provider or any other person employed in those premises to provide information by answering questions which that person considers relevant to the investigation. (3) A warrant must— (a) be in a prescribed form; and (b) specify the premises in respect of which it is made. (4) A warrant has effect for a period of 30 days after the day on which it is issued. 50—Reimbursement of expenses A person required to attend before the Commissioner or another person under this Part is entitled to be paid the expenses and allowances that the Commissioner may allow. 51—Reference to another authority for investigation (1) If the Commissioner considers that a matter raised by, or during the course of, an investigation should be investigated by the State Ombudsman, a registration authority or another person or body that has functions under any law of South Australia, another State, a Territory or the Commonwealth, the Commissioner may refer the matter to the State Ombudsman, registration authority or other person or body (as the case requires) for investigation. (2) The Commissioner must not refer a matter to a registration authority without first consulting that authority. (3) The Commissioner's powers to investigate a matter are not affected by the matter having been referred for investigation under subsection (1). 52—Possession of document or other seized item (1) If the Commissioner or another person has taken possession of or seized a document or other thing under this Part, the Commissioner may retain possession of the document or other thing for such period as may be necessary for the purposes of an investigation. (2) If the Commissioner or another person has taken possession of a document, the Commissioner must— (a) provide the person from whom it was taken with a copy of the document as soon as practicable after it was taken; and (b) allow a person who would be entitled to inspect the document if it were not in the possession of the Commissioner to inspect, make a copy of, or take an extract from, it at any reasonable time. Division 3—Privilege 53—Privilege (1) A person is not obliged to answer a question or to provide or produce, or provide a copy of, any information or document under this Part if to do so might tend to incriminate the person or make the person liable to a criminal penalty. (2) A person is not obliged to provide information that is privileged on the ground of legal professional privilege. Division 4—Action on investigation 54—Reports (1) The Commissioner— (a) may prepare a report of his or her findings and conclusions at any time during an investigation; and (b) must prepare such a report at the conclusion of an investigation. (2) The Commissioner may provide copies of a report to such persons as the Commissioner thinks fit. (3) A report may contain information, comments, opinions and recommendations for action. (4) No action lies against the Commissioner in respect of the contents of a report under this section. 55—Notice of action to providers (1) If, after investigating a complaint, the Commissioner decides that the complaint is justified but appears to be incapable of being resolved, the Commissioner may— (a) provide to the health or community service provider a notice of recommended action; and (b) advise the complainant of the provision of the notice. (2) A notice must set out— (a) the particulars of the complaint; and (b) the reasons for making the decision referred to in subsection (1); and (c) any action that the Commissioner considers the health or community service provider should take in order to remedy each unresolved grievance disclosed by the complaint. (3) If the service provider is a registered service provider, the Commissioner must provide a copy of the notice to the relevant registration authority. (4) The Commissioner may require the health or community service provider to, in connection with the provision of a notice under subsection (1), outline to the Commissioner what action (if any) the service provider has taken, or intends to take, in response to the matters raised in the notice. (5) The Commissioner must allow the service provider and, if relevant, a registration authority, at least 28 days to make representations in relation to the matter and, in the case of the service provider, to comply with a requirement under subsection (4). (6) After receipt of representations under subsection (4), or after the expiration of the period allowed under subsection (5), the Commissioner may publish a report or reports in relation to the matter in such manner as the Commissioner thinks fit. (7) The Commissioner must, before publishing a report under subsection (6), provide a copy of the report to the relevant health or community service provider and then allow the service provider at least 14 days to make representations in relation to the content of the report. (8) A report under this section may include such material, comments, commentary, opinions or recommendations as the Commissioner considers appropriate. (9) The Commissioner may provide copies of a report to such persons as the Commissioner thinks fit. (10) The Commissioner must provide a copy of a report to any complainant and service provider that has been a party to the relevant proceedings. (11) No action lies against the Commissioner in respect of the contents of any document published by the Commissioner under this section. 56—Right of review (1) A health or community service provider who is named in a report published by the Commissioner under this Division may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for review of any aspect of the procedures of the Commissioner relating to the preparation of that report that is not procedurally fair. (2) An application for review must be made within 14 days after the service provider receives a copy of the relevant report from the Commissioner. (3) The Tribunal may, on a review— (a) determine that the report should stand; or (b) remit the matter to the Commissioner for further consideration in accordance with any directions of the Tribunal; or (c) direct the Commissioner to take steps specified by the Tribunal (which may include the publication of a new or revised report or other statements or materials). Division 5—Action against certain health service providers 56A—Codes of conduct (1) The Governor may, by regulation, prescribe 1 or more codes of conduct relating to the following: (a) the provision of health services by persons who are not registered service providers; (b) the provision of health services by persons who are registered service providers and who provide health services that are unrelated to their registration. (2) The Governor may— (a) prescribe different codes of conduct for different classes of health service; and (b) make different provisions for different classes of health service within a prescribed code of conduct. (2a) A regulation under this section prescribing a code of conduct may refer to or incorporate, wholly or partially and with or without modification, a code, standard or other document prepared or published by a prescribed body, either as in force at the time the regulations are made or as in force from time to time. (3) A person who breaches a prescribed code of conduct is not, on account of the breach alone, liable to any civil or criminal action. (4) However, if a person breaches a prescribed code of conduct, the Commissioner may enforce compliance with the code in the circumstances contemplated by sections 56B and 56C. (5) Subsections (3) and (4) do not limit or derogate from any other provision of this Act or any other law. 56B—Interim action (1) The Commissioner may act under this section if— (a) an investigation has been commenced under this Part in relation to a person who has provided a health service; and (b) the Commissioner has a reasonable belief that the person has— (i) breached a prescribed code of conduct under section 56A that applies to the person; or (ii) committed a prescribed offence; and (c) in the opinion of the Commissioner action under this section is necessary to protect the health or safety of members of the public. (2) The Commissioner may, in acting under this section in relation to a person— (a) make an order prohibiting the person from doing 1 or more of the following for a period of 12 weeks or such shorter period as may be specified in the order: (i) providing health services or specified health services; (ii) offering, advertising or otherwise promoting health services or specified health services (including where those services may be provided by another person); (iii) holding themselves out or otherwise promoting themselves as a provider of health services or specified health services; (iv) providing advice in relation to the provision of health services or specified health services (including where those services may be provided by another person); and (b) make an order imposing such conditions as the Commissioner considers appropriate on the provision of health services, or specified health services, by the person for a period of 12 weeks or shorter period as may be specified in the order; and (c) publish a public statement, in a manner determined by the Commissioner, identifying the person and giving warnings or such other information as the Commissioner considers appropriate in relation to the health services, or specified health services, provided by the person. (3) The Commissioner may at any time vary or revoke an order or public statement made under this section. (4) The Commissioner must, as soon as practicable after making an order under this section, notify the person to whom the order relates in writing of the order and specify the grounds on which the order is made. (5) A person who contravenes an order made under this section is guilty of an offence. 56C—Commissioner may take action (1) The Commissioner may act under this section if— (a) an investigation has been carried out under this Part in relation to a person who has provided a health service; and (b) the Commissioner is satisfied that the person has— (i) breached a prescribed code of conduct under section 56A that applies to the person; or (ii) been found guilty of a prescribed offence; and (c) in the opinion of the Commissioner the person poses an unacceptable risk to the health or safety of members of the public in providing health services. (2) The Commissioner may, in acting under this section in relation to a person— (a) make an order prohibiting the person from doing 1 or more of the following for a specified period or indefinitely: (i) providing health services or specified health services; (ii) offering, advertising or otherwise promoting health services or specified health services (including where those services may be provided by another person); (iii) holding themselves out or otherwise promoting themselves as a provider of health services or specified health services; (iv) providing advice in relation to the provision of health services or specified health services (including where those services may be provided by another person); and (b) make an order imposing such conditions as the Commissioner considers appropriate on the provision of health services, or specified health services, by the person for a specified period, or indefinitely; and (c) publish a public statement, in a manner determined by the Commissioner, identifying the person and giving warnings or such other information as the Commissioner considers appropriate in relation to the health services, or specified health services, provided by the person. (3) The Commissioner may at any time vary or revoke an order or public statement made under this section. (4) A person who contravenes an order made under this section is guilty of an offence. 56D—Commissioner to provide details (1) If the Commissioner takes any action against a person under section 56C the Commissioner must, as soon as practicable, provide the person with a written statement (the statement) in relation to the action that includes the following: (a) the Commissioner's findings on significant questions of fact; (b) any evidence or other material on which the findings of fact were based; (c) the reason, or reasons, for the action. (2) The Commissioner— (a) if action taken under this Division relates to a complaint—must provide a copy of the statement to the complainant; and (b) must provide a copy of the statement to any professional body or association that the Commissioner considers relevant to the prescribed health service provider or to the area of practice to which the action under this Division relates; and (c) may publish the statement, or parts of the statement, in a manner that the Commissioner considers appropriate. 56E—Review (1) A person in relation to whom the Commissioner makes an order or publishes a statement under section 56B or 56C may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for review of the decision to make the order or publish the statement. (2) An application for review under this section must be made within 1 month after notification under section 56B(4) or service of a statement under section 56D, or such extended period as may be allowed by the Tribunal. (3) On a review under this section, the Tribunal may confirm, vary or revoke an order or publication the subject of the review. 56EA—Requirement to comply with interstate orders in this State (1) A person commits an offence if— (a) an interstate order is in force in respect of the person; and (b) the person engages in conduct in this State that would constitute a contravention of the interstate order if it occurred in the jurisdiction in which the order is in force. (2) In this section— conduct includes an act or omission; interstate final order means an order, or order of a type, made under a corresponding law that is declared by the regulations to be an interstate final order for the purposes of this section; interstate interim order means an order, or order of a type, made under a corresponding law that is declared by the regulations to be an interstate interim order for the purposes of this section; interstate order means an interstate interim order or an interstate final order. 56F—Related matters (1) The Governor may, by regulation, exclude a specified person, or persons of a specified class, from the application of this Division. (2) To avoid doubt, action may not be taken under this Division in relation to conduct that falls within the ambit of Part 7.