Div 6Disciplinary proceedings

Division 6—Disciplinary proceedings 52—Preliminary (1) In this Division— (a) a reference to occupier of a position of authority includes a reference to a person who is not but who was, at the relevant time, the occupier of a position of authority; (b) a reference to pharmacy services provider includes a reference to a person who is not but who was, at the relevant time, a pharmacy services provider. (2) The Authority and the National Agency or a National Board, or all 3 entities, may agree on protocols that relate to— (a) the handling of disciplinary proceedings under this Act and the handling of disciplinary proceedings under the Health Practitioner Regulation National Law; (b) the handling of disciplinary proceedings under this Act that relate to matters that are (or may be) relevant to criminal proceedings under the Health Practitioner Regulation National Law. (3) Without limiting subsection (2), the Authority may decide not to proceed (or not to proceed further) with proceedings under this Act on account of proceedings under the Health Practitioner Regulation National Law. 53—Cause for disciplinary action (1) There is proper cause for disciplinary action against a pharmacy services provider if— (a) the provider has contravened or failed to comply with a provision of this Act; or (b) there has been, in connection with the provision of pharmacy services in which the provider has an interest, a contravention or failure to comply with a code of conduct under this Act applying to the provider; or (c) the provider or any person employed or engaged by the provider has, in connection with the provision of pharmacy services, engaged in conduct that would, if the person were a pharmacist, constitute unprofessional conduct; or (d) the provider is for any reason not a fit and proper person to be a pharmacy services provider; or (e) in the case of a recognised corporate pharmacy services provider or a recognised trustee pharmacy services provider, an occupier of a position of authority in the provider— (i) has contravened or failed to comply with a provision of this Act; or (ii) has, in connection with the provision of pharmacy services by the provider, engaged in conduct that would, if the person were a pharmacist, constitute unprofessional conduct; or (iii) is for any reason not a fit and proper person to occupy a position of authority in the provider. (2) There is proper cause for disciplinary action against the occupier of a position of authority in a recognised corporate pharmacy services provider or a recognised trustee pharmacy services provider if— (a) the person has contravened or failed to comply with a provision of this Act; or (b) the person has, in connection with the provision of pharmacy services by the provider, engaged in conduct that would, if the person were a pharmacist, constitute unprofessional conduct; or (c) the person is for any reason not a fit and proper person to occupy a position of authority in the provider; or (d) — (i) the provider has contravened or failed to comply with a provision of this Act; or (ii) there has been, in connection with the provision of pharmacy services by the provider, a contravention or failure to comply with a code of conduct under this Act applying to the provider; or (iii) the provider, or any person employed or engaged by the provider, has, in connection with the provision of pharmacy services by the provider, engaged in conduct that would, if the provider or the person were a pharmacist, constitute unprofessional conduct, unless it is proved that the person could not, by the exercise of reasonable care, have prevented the contravention, failure to comply or conduct. 54—Inquiries as to matters constituting grounds for disciplinary action (1) A complaint setting out matters that are alleged to constitute grounds for disciplinary action against a person may be laid before the Authority (in a manner and form approved by the Authority) by— (a) the General Manager; or (b) the Minister; or (c) a representative body; or (d) a person who is aggrieved by conduct of the person or, if the person aggrieved is a child or is suffering from a mental or physical incapacity, by a person acting on his or her behalf. (2) If a complaint is laid under this section, the Authority must inquire into the subject matter of the complaint unless— (a) the Authority considers that the matter should be dealt with under the Health Practitioner Regulation National Law (South Australia); or (b) the Authority considers that the complaint is frivolous or vexatious. (3) If a complaint has been laid under this section by or on behalf of an aggrieved person and the Authority is satisfied that the complaint arose from a misapprehension on the part of the complainant or from a misunderstanding between the parties, it may, before proceeding further with the hearing of the complaint, require the parties to attend before the General Manager in order to clarify the misapprehension or misunderstanding. (4) If, after conducting an inquiry under this section, the Authority is satisfied on the balance of probabilities that there is proper cause for disciplinary action against the respondent, the Authority may, by order, do 1 or more of the following: (a) censure the respondent; (b) require the respondent to pay to the Authority a fine not exceeding $10 000; (c) prohibit the respondent from being a pharmacy services provider; (d) prohibit the respondent from occupying a position of authority in a recognised corporate pharmacy services provider or a recognised trustee pharmacy services provider. (5) The Authority may— (a) stipulate that a prohibition under subsection (4) is to apply— (i) permanently; or (ii) for a specified period; or (iii) until the fulfilment of specified conditions; or (iv) until further order; (b) stipulate that an order relating to a person is to have effect at a specified future time and impose conditions as to the conduct of the person or the person's business until that time. (6) If— (a) a person has been found guilty of an offence; and (b) the circumstances of the offence form, in whole or in part, the subject matter of the complaint, the person is not liable to a fine under this section in respect of conduct giving rise to the offence. (7) The Authority may— (a) fix a period within which a fine imposed under this section must be paid; (b) on application by a person liable to pay a fine imposed under this section, extend the period within which the fine must be paid. (8) A fine imposed under this section is recoverable by the Authority as a debt. (9) If the Authority makes an order under subsection (4)(c) in relation to a pharmacist registered under the Health Practitioner Regulation National Law, the General Manager must give written notice of the order to the National Board established for pharmacy. 55—Contravention of prohibition order (1) If a person carries on business as a pharmacy services provider in contravention of an order of the Authority, the person is guilty of an offence. (2) If a person occupies a position of authority in a recognised corporate pharmacy services provider or a recognised trustee pharmacy services provider in contravention of an order of the Authority, the person and the provider are each guilty of an offence. (3) If a person contravenes or fails to comply with a condition imposed by the Authority as to the conduct of the person or the person's business, the person is guilty of an offence. 56—Constitution of Authority for purpose of proceedings (1) The Authority will, for the purpose of hearing and determining proceedings under this Division, be constituted of 3 members, of whom— (a) 1 will be a legal practitioner appointed by the Minister for the purpose of constituting the Authority under this Division; and (b) 1 will be a member who is a pharmacist. (2) An appointment under subsection (1)(a) will be on terms and conditions determined by the Minister. (3) The member referred to in subsection (1)(a) will preside over the proceedings. (4) The members of the Authority, other than the legal practitioner, will, for the purposes of any particular proceedings, be selected by the presiding member of the Authority or, in the absence of the presiding member, the deputy presiding member. (5) If a member of the Authority as constituted under this section (other than the member presiding over the proceedings) dies or is for any other reason unable to continue with the proceedings, the Authority constituted of the remaining members may, if the member presiding over the proceedings so determines, continue and complete the proceedings. (6) Any questions of law or procedure arising before the Authority will be determined by the member presiding over the proceedings and any other questions by unanimous or majority decision of the members. (7) The Authority constituted of the member presiding over the proceedings may, sitting alone— (a) deal with— (i) preliminary, interlocutory or procedural matters; or (ii) questions of costs; or (iii) questions of law; or (b) enter consent orders; or (c) perform any other function or exercise any other power of a prescribed kind, and may, for that purpose or as a consequence, while sitting alone, make any determination or order (including a final order) that the member considers appropriate. 57—Provisions as to proceedings before Authority (1) Subject to this Act, the Authority must give to all of the parties to proceedings before the Authority under this Division at least 14 days written notice of the time and place at which it intends to conduct the proceedings, and must afford to the parties a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses, and to make submissions to the Authority. (2) However— (a) the Authority may, if it thinks special reasons exist for doing so, give a lesser period of written notice under subsection (1); and (b) the Authority may, if of the opinion that it is desirable to do so in the public interest— (i) suspend the registration of the person the subject of the proceedings; or (ii) impose conditions on the person's registration restricting the person's right to provide pharmacy services, pending hearing and determination of the proceedings. (3) The requirement to give written notice under subsection (1) does not extend to adjournments. (4) If a party to whom notice has been given under subsection (1) does not attend at the time and place fixed by the notice, the Authority may proceed to hear and determine the matter in the absence of that party. (5) A person who is aggrieved by conduct that is the subject-matter of proceedings before the Authority under this Division is, subject to any direction of the Authority to the contrary, entitled to be present at the hearing of the proceedings. (6) In the course of proceedings before the Authority under this Division, the Authority may— (a) receive in evidence a transcript of evidence taken in proceedings before a court, tribunal or other body constituted under the law of South Australia or of any other State or a Territory of Australia, of the Commonwealth or of another country, and draw any conclusions of fact from the evidence that it considers proper; (b) adopt, as in its discretion it considers proper, any findings, decision, judgment, or reasons for judgment, of any such court, tribunal or body that may be relevant to the proceedings. (7) The Authority should conduct proceedings under this Division as expeditiously as possible. (8) If the Authority takes action under subsection (2)(b) in relation to a pharmacist registered under the Health Practitioner Regulation National Law, the General Manager must give written notice of the action that has been taken to the National Board established for pharmacy. 58—Powers of Authority in relation to witnesses etc (1) For the purposes of proceedings before the Authority under this Division, the Authority may— (a) by summons signed on behalf of the Authority by a member of the Authority or the General Manager, require the attendance before the Authority of a person whom the Authority thinks fit to call before it; or (b) by summons signed on behalf of the Authority by a member of the Authority or the General Manager, require the production of relevant documents, records or equipment and, in the case of a document or record that is not in the English language— (i) a written translation of the document or record into English; and (ii) a certificate signed by a translator approved by the Authority certifying that the translation accurately reproduces in English the contents of the document or record; or (c) inspect documents, records or equipment produced before it, and retain them for such reasonable period as it thinks fit, and make copies of the documents or records or their contents; or (d) require a person to make an oath or affirmation (which may be administered by a member of the Authority) to answer truthfully questions put by a member of the Authority or a person appearing before the Authority; or (e) require a person appearing before the Authority (whether summoned to appear or not) to answer questions put by a member of the Authority or by a person appearing before the Authority. (2) On the receipt of an application for the issue of a summons under this section, a member or the General Manager may, without referring the matter to the Authority, issue a summons on behalf of the Authority. (3) A person who— (a) fails without reasonable excuse to comply with a summons issued to attend, or to produce documents, records or equipment, before the Authority; or (b) having been served with a summons to produce— (i) a written translation of the document or record into English; and (ii) a certificate signed by a translator approved by the Authority certifying that the translation accurately reproduces in English the contents of the document or record, fails, without reasonable excuse, to comply with the summons; or (c) misbehaves before the Authority, wilfully insults the Authority or 1 or more of the members in the exercise of the member's official duties, or wilfully interrupts the proceedings of the Authority; or (d) refuses to be sworn or to affirm, or refuses or fails to answer truthfully a relevant question when required to do so by the Authority, Maximum penalty: $10 000 or imprisonment for 6 months. (4) A person who appears as a witness before the Authority has the same protection as a witness in proceedings before the Supreme Court. 59—Principles governing proceedings (1) In proceedings before the Authority under this Division, the Authority— (a) is not bound by the rules of evidence and may inform itself on any matter as it thinks fit; and (b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. (2) In proceedings before the Authority, the Authority must keep the parties to the proceedings properly informed as to the progress and outcome of the proceedings. 60—Representation at proceedings before Authority A party to proceedings before the Authority is entitled to be represented at the hearing of those proceedings. 61—Costs (1) The Authority may award such costs against a party to proceedings before it as the Authority considers just and reasonable. (2) A party who is dissatisfied with the amount of the costs awarded by the Authority may request a Master of the District Court to tax the costs and, after taxing the costs, the Master may confirm or vary the amount of the costs awarded by the Authority. (3) Costs awarded by the Authority under this section may be recovered as a debt. 62—Review by Tribunal (1) A right of review lies from a decision of the Authority in proceedings under this Division to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013. (2) An application for review under subsection (1) of a decision— (a) may be made by the complainant or the respondent in the proceedings in which the decision was made; and (b) must be instituted within 1 month of the date of the decision (or such longer period as the Tribunal may allow). 63—Operation of order may be suspended (1) If an order has been made by the Authority, and the Authority or the Tribunal is satisfied that an application for review of the decision has been made, or is intended, the Authority or the Tribunal (as the case requires) may suspend the operation of the order until the determination of the review. (2) If the Authority has suspended the operation of an order under subsection (1), the Authority may terminate the suspension, and if the Tribunal has done so, the Tribunal may terminate the suspension. 63A—Variation or revocation of conditions imposed by Tribunal (1) Subject to subsection (2), if the Tribunal imposed a condition on a practitioner's registration under the Health Practitioner Regulation National Law (South Australia), the Tribunal may, on application by a party to those proceedings, vary or revoke the condition. (2) An application by a party under subsection (1) may not be made— (a) within 1 month of the imposition of the condition; or (b) within 12 months of a previous application under subsection (1) by the party to vary or revoke a condition, unless leave is granted by the Tribunal. (3) A National Board, a panel or the Minister are entitled to appear and be heard on an application under this section.