Health Practitioner Regulation (Adoption of National Law) Act 2009

The Adoption Act’s reach is deliberately wide. Its primary subjects are:

1. Registered health practitioners – anyone holding registration in one of the 15 professions under the National Law (medical, nursing and midwifery, pharmacy, physiotherapy, psychology, osteopathy, optometry, chiropractic, podiatry, occupational therapy, medical radiation practice, Chinese medicine, dental, paramedicine and Aboriginal and Torres Strait Islander health practice). The Act applies to both general and specialist registrants, as well as those with limited, provisional or non-practising registration.

2. Students – persons enrolled in an approved program of study or undertaking clinical training for one of the above professions (s 5 of the National Law). Students are subject to impairment and conduct provisions and may have conditions imposed or registration suspended (ss 144A, 149C, 152M).

3. Councils and their committees – the 14 profession-specific Councils established under s 41B, together with Professional Standards Committees, Performance Review Panels, Impaired Registrants Panels and Assessment Committees. These bodies exercise the bulk of day-to-day regulatory functions in NSW.

4. The Health Care Complaints Commission (HCCC) – the Adoption Act integrates the HCCC into the complaints pathway. Mandatory notifications under s 130 are deemed complaints to both the Council and the HCCC (s 139I), and the HCCC must consult with Councils before taking action (s 145A).

5. Employers and accreditors – hospitals, aged-care facilities, private practices and any entity that employs or accredits a registered health practitioner must be notified of conditions, suspensions or cancellations where the Council or Tribunal considers there is a risk to public safety (ss 176BA–176BB). Employers also have dual notification obligations under ss 142 and 142A.

6. Pharmacy owners and operators – Schedule 5F imposes a separate ownership and approval regime. Only pharmacists, pharmacists’ partnerships, pharmacists’ bodies corporate, approved friendly societies and certain pre-2006 bodies corporate may own or hold a financial interest in a pharmacy business (cll 5–7). The Pharmacy Council must approve premises and maintain the Register of Pharmacies (cll 12, 14).

7. The public – as ultimate beneficiaries of the protective regime. Members of the public may lodge complaints (s 144B), are entitled to information about conditions and orders (s 41I), and are protected by prohibition orders that can bar unsuitable individuals from providing any health service (s 149C(5)).

8. The National Boards and Australian Health Practitioner Regulation Agency (Ahpra) – while the National Boards retain registration functions, they must give effect to NSW decisions on complaints, suspensions and conditions (ss 176, 176A). The Adoption Act therefore creates a hybrid national–state regulatory environment.

Duties of practitioners

• Competence and conduct: A practitioner must maintain sufficient physical, mental, knowledge, skill and communication capacity (s 139). Failure to do so may found a complaint of lack of competence (s 144(c)).
• Mandatory notification: Practitioners must notify the National Board if they reasonably believe another practitioner has engaged in notifiable conduct or a student has an impairment that may place the public at risk (s 130). In NSW such notifications are deemed complaints (s 139I).
• Disclosure of financial interests: When referring a patient to another provider or recommending a health product in which the practitioner has a financial interest, that interest must be disclosed (s 139B(1)(i)).
• Insurance: Medical practitioners must hold approved professional indemnity insurance (note to s 129).
• Record-keeping and infection control: NSW regulations may prescribe standards (s 247A(2)(c)–(d)).

Rights of practitioners

• Natural justice: Before adverse action, a practitioner is entitled to notice, an opportunity to respond, and (in most cases) a hearing before a Committee or the Tribunal (ss 145I, 165I, 171B).
• Review and appeal: A practitioner may apply to the appropriate review body for review of conditions or suspension (s 150A, Division 8), appeal to NCAT on questions of law or by way of rehearing (ss 158–160), and ultimately seek judicial review.
• Representation: Practitioners may be represented by an Australian legal practitioner before the Tribunal (s 165J) and may be accompanied by an adviser before a Committee (s 171B).

Duties of Councils

• Complaints management: Councils must consult with the HCCC (s 145A), assess complaints expeditiously (s 145), and refer serious matters to the Tribunal (s 145D).
• Protective action: Where public health or safety is at risk, a Council must exercise interim powers under s 150.
• Transparency: Councils must publish conditions and orders (s 41I) and include complaint statistics in annual reports (s 41H).
• Financial viability: The Minister may direct delegation of functions if a Council is not financially viable (s 41NA).

Rights of the public and complainants

• Lodge complaints: Any person may complain (s 144B). Complaints need not use technical language (s 144D(2)).
• Notification: Complainants must be kept informed of outcomes (s 145BA).
• Access to information: Subject to confidentiality, the public may obtain details of conditions and orders (s 41I).

The Adoption Act creates a graduated enforcement regime.

Criminal offences

• Carrying on an unapproved pharmacy business or failing to register financial interests: 50–100 penalty units (cl 3 of Schedule 5F).
• Breaching a prohibition order: offence under s 102 of the Public Health Act 2010 (note to s 149C(5)).
• Impersonating an authorised person or assessor: 50 penalty units (ss 164E, 6 of Schedule 5B).
• Obstructing an authorised person or assessor: 50 penalty units (s 164C, cl 5 of Schedule 5B).
• Failure to comply with a notice to produce documents or answer questions: 20 penalty units (ss 150J(3), 164G(2)).

Civil and disciplinary sanctions

• A finding of unsatisfactory professional conduct may result in caution, reprimand, conditions, fine up to 50 penalty units, or referral to the Tribunal (ss 146B–146C).
• Professional misconduct may lead to suspension or cancellation (s 149C).
• Critical compliance conditions or orders, once breached, trigger automatic cancellation (s 149C(3)).
• Interim action under s 150 may suspend registration or impose conditions pending full investigation.
• Prohibition orders can bar a person from providing any health service permanently (s 149C(5)).

Enforcement bodies

• Councils exercise immediate protective powers (s 150) and may refer matters to the HCCC or Tribunal.
• HCCC investigates serious complaints and may prosecute before the Tribunal.
• Authorised persons appointed by the Secretary may enter premises, seize records and require answers (ss 164–164A).
• NCAT (Occupational Division) hears appeals and disciplinary matters with a panel including a senior judicial officer, two peer practitioners and a lay member (s 165B).

The Adoption Act is expressly linked to a constellation of NSW statutes.

• Health Care Complaints Act 1993: Complaints under the Adoption Act are deemed complaints under the HCCC Act (ss 139I, 143A). The HCCC and Councils must consult (s 145A) and the HCCC may investigate or refer to the Tribunal or a Committee.
• Civil and Administrative Tribunal Act 2013: NCAT’s procedures apply subject to the specific procedural rules in Schedule 5D (e.g. closed hearings, costs, representation).
• Government Sector Finance Act 2018 and Government Sector Audit Act 1983: Councils must prepare annual reports including complaint statistics (s 41H) and are subject to audit.
• Poisons and Therapeutic Goods Act 1966 and Drug Misuse and Trafficking Act 1985: Additional definitions of “unsatisfactory professional conduct” for pharmacists and medical practitioners reference offences under these Acts (ss 139C, 139D).
• Private Health Facilities Act 2007 and Health Services Act 1997: Employers in public and private facilities have dual notification obligations (s 142A).
• Interpretation Act 1987: Generally excluded from the National Law (s 7(1)(f)) but applies to NSW provisions (s 7(2)(e1)).
• Health Records and Information Privacy Act 2002 and Privacy and Personal Information Protection Act 1998: Excluded from the National Law but apply to NSW provisions (s 7).

Commonwealth legislation is engaged indirectly: the Health Insurance Act 1973 (Cth) offences are incorporated into the definition of unsatisfactory professional conduct for medical practitioners (s 139C(1)(a)(iv)).

The Adoption Act has been amended on more than 30 occasions. Key recent changes include:

• Health Practitioner Regulation National Law (NSW) Amendment (Review) Act 2016: Introduced culturally safe practice as a guiding principle (s 3A(a1)), expanded the definition of “unsatisfactory professional conduct” to include overservicing and failure to disclose financial interests, and strengthened performance assessment processes. The changes responded to the 2015 independent review of the National Law which identified gaps in cultural safety and complaints handling.
• Health Legislation Amendment Act (No 2) 2018: Allowed appeals against Council reprimands (s 159(1)(a1)), clarified that appeals to NCAT are by way of new hearing (s 159(3A)), and substituted s 176D to provide that suspension does not automatically end registration. These amendments improved procedural fairness and addressed anomalies exposed in NCAT decisions.
• Health Legislation (Miscellaneous) Amendment Act (No 2) 2022: Extended the time for appeals from 28 days after written notice of reasons to 28 days after notice of the decision itself (s 161(a)). The change prevents technical dismissals where reasons are supplied late.
• Health Practitioner Regulation National Law and Other Legislation Amendment Act 2025: Further amendments to guiding principles and mandatory reporting provisions (not yet fully commenced at the time of writing).

These changes reflect a policy shift toward greater transparency, cultural safety (especially for Aboriginal and Torres Strait Islander peoples), and procedural fairness while preserving the protective purpose of the scheme.

Several decisions illustrate the tension between national uniformity and NSW co-regulation.

• Health Care Complaints Commission v Ng (2022): The Tribunal emphasised that a single instance of unsatisfactory professional conduct may amount to professional misconduct if sufficiently serious (applying s 139E). The case clarified that “cumulative” conduct need not involve identical breaches.
• Prakash v Health Care Complaints Commission [2006] NSWCA 153: Although pre-dating the National Law, the Court of Appeal’s analysis of the “public interest” test under predecessor legislation continues to guide s 150 immediate action decisions. Councils must balance the practitioner’s interests against the paramount consideration of public protection.
• Kirbach v Health Care Complaints Commission [2022] NSWCATOD 58: The Tribunal upheld a prohibition order preventing a deregistered practitioner from providing any health service, confirming the breadth of s 149C(5).
• Controversy over “cosmetic surgery” reforms (2022–2023): Following high-profile cases of botched procedures, NSW introduced additional restrictions on who may perform certain procedures. These amendments to the National Law (NSW) were criticised by some national boards as fragmenting the scheme, yet were defended by NSW as necessary to protect vulnerable patients.

The co-regulatory model has been challenged on constitutional grounds (e.g. whether NSW’s departure from the national complaints pathway is inconsistent with the Intergovernmental Agreement), but courts have upheld the validity of the Adoption Act.

Most practitioners and even some lawyers miss the following:

• Deemed complaints: A notification under s 130 or a mandatory notification is automatically a complaint to both the Council and the HCCC (ss 139I, 143A). Many practitioners assume internal reporting ends the matter.
• Critical compliance conditions: A condition expressed to be “critical” (ss 146B(4), 149A(4), 150FA) means any breach triggers automatic cancellation. Tribunals have repeatedly held that ignorance or inadvertence is no excuse.
• Financial interest in referrals: Section 139B(1)(i) catches indirect interests (e.g. shares in a private company held by a spouse’s family trust). The 5 % threshold for public companies does not apply to private companies.
• Pharmacy ownership: A pharmacist who holds a security interest (mortgage, charge) over a pharmacy business must still ensure the business is conducted by a pharmacist in charge; failure can lead to prosecution under cl 11 of Schedule 5F.
• Protected reports: Reports prepared for Impaired Registrants Panels, performance assessors or expert witnesses are “protected reports” (s 138(1)). They cannot be used in civil proceedings without consent of both the author and the subject (s 176F).
• Section 150 orders are not stayed by appeal: An appeal to NCAT against a s 150 suspension does not operate as a stay unless the Tribunal orders otherwise (s 161B). Practitioners have been caught practising while believing an appeal protected them.
• Dual employer notification: Hospitals must report under both the Adoption Act and the Health Services Act 1997. Compliance with one satisfies the other only if the Secretary has approved alternative reporting (s 142A).

For practitioners

1. Maintain appropriate professional indemnity insurance and keep evidence on file.
2. Disclose any financial interest before referring or recommending (s 139B(1)(i)).
3. If you become aware of notifiable conduct or impairment, notify the National Board within the required timeframe.
4. If subject to a complaint, preserve all relevant records and seek legal advice before responding.
5. Comply strictly with any conditions, especially those designated “critical”.
6. For pharmacists, ensure the pharmacy business is conducted only in approved premises and that all financial interests are notified and registered.

For Councils and the HCCC

1. Consult early on every complaint (s 145A).
2. Use s 150 powers judiciously but promptly where there is an identifiable risk.
3. Ensure reasons for decisions are adequate, particularly when confidential information is withheld (ss 148H, 156F).
4. Notify employers and accreditors of conditions or suspensions as soon as practicable (ss 176BA–176BB).

For pharmacy owners

1. Obtain Council approval before commencing or altering a pharmacy business.
2. Submit annual declarations by the due date (cl 15 of Schedule 5F).
3. Maintain policies and systems that demonstrably support safe and competent service delivery.
4. Ensure a pharmacist is in charge at all times the premises are open.

General compliance tips

• Treat every complaint, notification or condition as potentially career-defining. Early engagement with experienced regulatory counsel is almost always cost-effective.
• Document decision-making processes; Councils and the Tribunal place significant weight on contemporaneous records.
• Stay abreast of amendments. The National Law is not static; cultural safety, mandatory reporting and telehealth rules continue to evolve.

By embedding the national scheme within a robust NSW co-regulatory framework, the Adoption Act achieves both consistency and local accountability. Compliance is not merely a box-ticking exercise; it is the practical expression of the guiding principle that “the protection of the health and safety of the public must be the paramount consideration” (s 3A(1)).