sec.34Replacement of pt 8 , div 5 (Preliminary assessment)

### sec.34 Replacement of pt 8 , div 5 (Preliminary assessment) National Law provisions, part 8 , division 5 — omit, insert— This division applies if, under the Health Ombudsman Act 2013 , part 9, division 1, the health ombudsman refers a matter to the National Agency. The National Agency must immediately refer the matter to the National Board established for the health practitioner’s or student’s profession. A National Board must, within 60 days after receipt of a referred matter under section 148 , conduct a preliminary assessment of the referred matter and decide— whether or not the referred matter relates to a person who is a health practitioner or a student registered in a health profession for which the Board is established; and whether or not the referred matter relates to a matter that is a ground for notification. Without limiting subsection (1) (b) , the National Board may decide the referred matter relates to a matter that is a ground for notification under section 144 on the basis of a number of referred matters about a person or notifications made under a law of another participating jurisdiction or made to a health complaints entity about the person, including a number of referred matters or notifications that suggest a pattern of conduct. If the National Board decides the referred matter relates to a person who is not registered in a health profession for which the Board is established but the Board reasonably suspects the person is registered in a health profession for which another National Board is established, the Board must refer the referred matter to that other Board. For the purpose of conducting the preliminary assessment of a referred matter, a National Board may, by written notice given to a person, require the person to give specified information or produce specified documents to the Board within a specified reasonable time and in a specified reasonable way. The person must comply with the notice unless the person has a reasonable excuse. Maximum penalty— in the case of an individual—$5,000; or in the case of a body corporate—$10,000. Without limiting subsection (2), it is a reasonable excuse for an individual not to give information or produce a document if giving the information or producing the document might tend to incriminate the individual. If a document is produced to a National Board, the Board may— inspect the document; and make a copy of, or take an extract from, the document; and keep the document while it is necessary for the preliminary assessment of a referred matter. If the National Board keeps the document, the Board must permit a person otherwise entitled to possession of the document to inspect, make a copy of, or take an extract from, the document at the reasonable time and in the reasonable way decided by the Board. If, after conducting the preliminary assessment of a referred matter, the National Board decides the subject matter, or part of the subject matter, of the referred matter may be dealt with by another entity, the Board may refer the referred matter or part of the referred matter to the other entity. A decision by the National Board to refer a referred matter or part of a referred matter to another entity does not prevent the Board from continuing to deal with the referred matter or part of the referred matter. If the National Board decides to refer a referred matter or part of a referred matter to another entity, the Board must give the other entity— if the referred matter is a health service complaint under the Health Ombudsman Act 2013 —details of the complaint, the complainant and the health service provider to whom the complaint relates; and any other information the Board has that is relevant to the referred matter. The National Board may ask the other entity to give the Board information about how the subject matter of the referred matter or the part of the referred matter was resolved. The other entity may provide the information requested by the National Board. A National Board may decide to take no further action in relation to a referred matter if— the Board reasonably believes the referred matter is frivolous, vexatious, misconceived or lacking in substance; or given the amount of time that has elapsed since the matter the subject of the referred matter occurred, it is not practicable for the Board to investigate or otherwise deal with the referred matter; or the person to whom the referred matter relates has not been, or is no longer, registered by the Board and it is not in the public interest for the Board to investigate or otherwise deal with the referred matter; or the subject matter of the referred matter has already been dealt with adequately by the Board; or the subject matter of the referred matter— is being dealt with, or has already been dealt with, by another entity; or has been referred by the Board under section 150 or 150C to another entity to be dealt with by that entity; or the health practitioner to whom the referred matter relates has taken appropriate steps to remedy the issue the subject of the referred matter and the Board reasonably believes no further action is required in relation to the referred matter. A National Board may decide to take no further action in relation to part of a referred matter if the subject matter of the part of the referred matter has been referred by the Board under section 150 or 150C to another entity to be dealt with by that entity. A decision by a National Board to take no further action in relation to a referred matter does not prevent a National Board or adjudication body taking the referred matter into consideration at a later time as part of a pattern of conduct or practice by the health practitioner. If a National Board decides to take no further action in relation to a referred matter, it must give written notice of the decision to the complainant (if any) for the matter. A notice under subsection (3) must state— that the National Board has decided to take no further action in relation to the referred matter; and the reason the Board has decided to take no further action. s 34 ins 2013 No. 36 s 326 amd 2017 No. 32 s 57 ; 2019 No. 38 s 66 ; 2022 No. 22 ss 140 , 144 (sec.34-frag-div.5-sec.150-ssec.1) A National Board must, within 60 days after receipt of a referred matter under section 148 , conduct a preliminary assessment of the referred matter and decide— whether or not the referred matter relates to a person who is a health practitioner or a student registered in a health profession for which the Board is established; and whether or not the referred matter relates to a matter that is a ground for notification. (sec.34-frag-div.5-sec.150-ssec.2) Without limiting subsection (1) (b) , the National Board may decide the referred matter relates to a matter that is a ground for notification under section 144 on the basis of a number of referred matters about a person or notifications made under a law of another participating jurisdiction or made to a health complaints entity about the person, including a number of referred matters or notifications that suggest a pattern of conduct. (sec.34-frag-div.5-sec.150-ssec.3) If the National Board decides the referred matter relates to a person who is not registered in a health profession for which the Board is established but the Board reasonably suspects the person is registered in a health profession for which another National Board is established, the Board must refer the referred matter to that other Board. (sec.34-frag-div.5-sec.150A-ssec.1) For the purpose of conducting the preliminary assessment of a referred matter, a National Board may, by written notice given to a person, require the person to give specified information or produce specified documents to the Board within a specified reasonable time and in a specified reasonable way. (sec.34-frag-div.5-sec.150A-ssec.2) The person must comply with the notice unless the person has a reasonable excuse. Maximum penalty— in the case of an individual—$5,000; or in the case of a body corporate—$10,000. (sec.34-frag-div.5-sec.150A-ssec.3) Without limiting subsection (2), it is a reasonable excuse for an individual not to give information or produce a document if giving the information or producing the document might tend to incriminate the individual. (sec.34-frag-div.5-sec.150B-ssec.1) If a document is produced to a National Board, the Board may— inspect the document; and make a copy of, or take an extract from, the document; and keep the document while it is necessary for the preliminary assessment of a referred matter. (sec.34-frag-div.5-sec.150B-ssec.2) If the National Board keeps the document, the Board must permit a person otherwise entitled to possession of the document to inspect, make a copy of, or take an extract from, the document at the reasonable time and in the reasonable way decided by the Board. (sec.34-frag-div.5-sec.150C-ssec.1) If, after conducting the preliminary assessment of a referred matter, the National Board decides the subject matter, or part of the subject matter, of the referred matter may be dealt with by another entity, the Board may refer the referred matter or part of the referred matter to the other entity. (sec.34-frag-div.5-sec.150C-ssec.2) A decision by the National Board to refer a referred matter or part of a referred matter to another entity does not prevent the Board from continuing to deal with the referred matter or part of the referred matter. (sec.34-frag-div.5-sec.150C-ssec.3) If the National Board decides to refer a referred matter or part of a referred matter to another entity, the Board must give the other entity— if the referred matter is a health service complaint under the Health Ombudsman Act 2013 —details of the complaint, the complainant and the health service provider to whom the complaint relates; and any other information the Board has that is relevant to the referred matter. (sec.34-frag-div.5-sec.150C-ssec.4) The National Board may ask the other entity to give the Board information about how the subject matter of the referred matter or the part of the referred matter was resolved. (sec.34-frag-div.5-sec.150C-ssec.5) The other entity may provide the information requested by the National Board. (sec.34-frag-div.5-sec.151-ssec.1) A National Board may decide to take no further action in relation to a referred matter if— the Board reasonably believes the referred matter is frivolous, vexatious, misconceived or lacking in substance; or given the amount of time that has elapsed since the matter the subject of the referred matter occurred, it is not practicable for the Board to investigate or otherwise deal with the referred matter; or the person to whom the referred matter relates has not been, or is no longer, registered by the Board and it is not in the public interest for the Board to investigate or otherwise deal with the referred matter; or the subject matter of the referred matter has already been dealt with adequately by the Board; or the subject matter of the referred matter— is being dealt with, or has already been dealt with, by another entity; or has been referred by the Board under section 150 or 150C to another entity to be dealt with by that entity; or the health practitioner to whom the referred matter relates has taken appropriate steps to remedy the issue the subject of the referred matter and the Board reasonably believes no further action is required in relation to the referred matter. (sec.34-frag-div.5-sec.151-ssec.1A) A National Board may decide to take no further action in relation to part of a referred matter if the subject matter of the part of the referred matter has been referred by the Board under section 150 or 150C to another entity to be dealt with by that entity. (sec.34-frag-div.5-sec.151-ssec.2) A decision by a National Board to take no further action in relation to a referred matter does not prevent a National Board or adjudication body taking the referred matter into consideration at a later time as part of a pattern of conduct or practice by the health practitioner. (sec.34-frag-div.5-sec.151-ssec.3) If a National Board decides to take no further action in relation to a referred matter, it must give written notice of the decision to the complainant (if any) for the matter. (sec.34-frag-div.5-sec.151-ssec.4) A notice under subsection (3) must state— that the National Board has decided to take no further action in relation to the referred matter; and the reason the Board has decided to take no further action. - (a) whether or not the referred matter relates to a person who is a health practitioner or a student registered in a health profession for which the Board is established; and - (b) whether or not the referred matter relates to a matter that is a ground for notification. - (a) in the case of an individual—$5,000; or - (b) in the case of a body corporate—$10,000. - (a) inspect the document; and - (b) make a copy of, or take an extract from, the document; and - (c) keep the document while it is necessary for the preliminary assessment of a referred matter. - (a) if the referred matter is a health service complaint under the Health Ombudsman Act 2013 —details of the complaint, the complainant and the health service provider to whom the complaint relates; and - (b) any other information the Board has that is relevant to the referred matter. - (a) the Board reasonably believes the referred matter is frivolous, vexatious, misconceived or lacking in substance; or - (b) given the amount of time that has elapsed since the matter the subject of the referred matter occurred, it is not practicable for the Board to investigate or otherwise deal with the referred matter; or - (c) the person to whom the referred matter relates has not been, or is no longer, registered by the Board and it is not in the public interest for the Board to investigate or otherwise deal with the referred matter; or - (d) the subject matter of the referred matter has already been dealt with adequately by the Board; or - (e) the subject matter of the referred matter— (i) is being dealt with, or has already been dealt with, by another entity; or (ii) has been referred by the Board under section 150 or 150C to another entity to be dealt with by that entity; or - (i) is being dealt with, or has already been dealt with, by another entity; or - (ii) has been referred by the Board under section 150 or 150C to another entity to be dealt with by that entity; or - (f) the health practitioner to whom the referred matter relates has taken appropriate steps to remedy the issue the subject of the referred matter and the Board reasonably believes no further action is required in relation to the referred matter. - (i) is being dealt with, or has already been dealt with, by another entity; or - (ii) has been referred by the Board under section 150 or 150C to another entity to be dealt with by that entity; or - (a) that the National Board has decided to take no further action in relation to the referred matter; and - (b) the reason the Board has decided to take no further action.