Div 7BPublic statements

Division 7B—Public statements 159P—Definition relevant provision means any of the following provisions— (a) section 113; (b) sections 115 to 119; (c) sections 121 to 123; (d) section 133; (e) section 136. 159Q—Making of public statement (1) A regulatory body may make a public statement about a person if— (a) the person— (i) has, in the regulatory body's reasonable belief, contravened a relevant provision; or (ii) is the subject of an assessment, investigation or other proceedings under this Part; and (b) the regulatory body reasonably believes that— (i) because of the person's conduct, performance or health, the person poses a serious risk to persons; and (ii) it is necessary to issue a public statement to protect public health or safety. (2) A public statement made by a regulatory body may be made in a way the body considers appropriate. (3) The regulatory body may identify and give warnings or information about either or both of the following if the body considers it appropriate in the circumstances— (a) a person; (b) health services provided by a person. (4) No liability is incurred by the regulatory body for the making of, or for anything done for the purpose of making, a public statement under this section in good faith. 159R—Show cause process for public statement (1) If a regulatory body proposes to make a public statement about a person, the body must give the person a written notice that includes the following information— (a) that the body proposes to make a public statement about the person; (b) the way in which it is proposed to make the public statement; (c) the content of the proposed public statement; (d) that the person may make written or verbal submissions to the regulatory body, within the reasonable time stated in the notice, about the proposed public statement. (2) After considering any submission made by the person in accordance with the notice, the regulatory body must decide— (a) not to make the public statement; or (b) to make the public statement as proposed; or (c) to make the public statement in a different way or with different content. (3) The regulatory body must give written notice of the body's decision, that includes the following information, to the person— (c) if the decision is to make the public statement— (i) that the person may appeal against the decision; and (4) The regulatory body must give the notice to the person— (a) as soon as practicable after the decision is made; and (b) if the decision is to make the public statement—at least one business day before the statement is to be made. 159S—Revision of public statement by regulatory body (1) A regulatory body that made a public statement about a person may revise the statement if the regulatory body reasonably believes it is necessary in the circumstances. (2) If the proposed revision changes the public statement in a material way, sections 159Q(2) and (3) and 159R apply to the proposed revision, with any necessary modifications, as if it were the proposed making of a public statement. 159T—Revocation of public statement (1) A regulatory body that made a public statement about a person must revoke the public statement if the body is satisfied the grounds on which the statement was made— (a) no longer exist in relation to the person; or (b) did not exist at the time the statement was made. (2) As soon as practicable after deciding to revoke the public statement, the regulatory body must— (a) give the person a written notice stating— (i) the regulatory body has decided to revoke the public statement; and (ii) the date on which the public statement will be revoked; and (b) make a public statement revoking the original public statement in the same way, or a similar way, to the way in which the original public statement was made. Division 8—Investigations Subdivision 1—Preliminary 160—When investigation may be conducted (1) A National Board may investigate a registered health practitioner or student registered in a health profession for which the Board is established if it decides it is necessary or appropriate— (a) because the Board has received a notification about the practitioner or student; or (b) because the Board for any other reason believes— (i) the practitioner or student has or may have an impairment; or (ii) for a practitioner— (A) the way the practitioner practises the profession is or may be unsatisfactory; or (B) the practitioner's conduct is or may be unsatisfactory; or (c) to ensure the practitioner or student— (i) is complying with conditions imposed on the practitioner's or student's registration; or (ii) an undertaking given by the practitioner or student to the Board. (2) If a National Board decides to investigate a registered health practitioner or student it must direct an appropriate investigator to conduct the investigation. 161—Registered health practitioner or student to be given notice of investigation (1) A National Board that decides to investigate a registered health practitioner or student must, as soon as practicable after making the decision, give the practitioner or student written notice about the investigation. (2) The notice must advise the registered health practitioner or student of the nature of the matter being investigated. (3) Also, the National Board must, at not less than 3 monthly intervals, give the written notice of the progress of the investigation to— (a) the registered health practitioner or student; and (b) if the investigation relates to a notification made about the registered health practitioner or student, the notifier. (4) However, the National Board need not give the registered health practitioner or student a notice under subsection (1) or (3) if the Board reasonably believes giving the notice may— (a) seriously prejudice the investigation; or (b) place at risk a person's health or safety; or (c) place a person at risk of harassment or intimidation. 162—Investigation to be conducted in timely way The National Board must ensure an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matter to be investigated. Subdivision 2—Investigators 163—Appointment of investigators (1) A National Board may appoint the following persons as investigators— (a) members of the National Agency's staff; (b) contractors engaged by the National Agency. (2) An investigator holds office on the conditions stated in the instrument of appointment. (3) If an investigator's appointment provides for a term of appointment, the investigator ceases holding office at the end of the term. (4) An investigator may resign by signed notice of resignation given to the National Board which appointed the investigator. (5) Schedule 5 sets out provisions relating to the powers of an investigator. 164—Identity card (1) A National Board must give an identity card to each investigator it appoints. (2) The identity card must— (a) contain a recent photograph of the investigator; and (b) be signed by the investigator; and (c) identify the person as an investigator appointed by the National Board; and (d) include an expiry date. (3) This section does not prevent the issue of a single identity card to a person— (a) if the person is appointed as an investigator for this Law by more than one National Board; or (b) for this Law and other Acts. (4) A person who ceases to be an investigator must give the person's identity card to the National Board that appointed the person within 7 days after the person ceases to be an investigator, unless the person has a reasonable excuse. 165—Display of identity card (1) An investigator may exercise a power in relation to someone else (the other person) only if the investigator— (a) first produces the investigator's identity card for the other person's inspection; or (b) has the identity card displayed so it is clearly visible to the other person. (2) However, if for any reason it is not practicable to comply with subsection (1) before exercising the power, the investigator must produce the identity card for the other person's inspection at the first reasonable opportunity. Subdivision 3—Procedure after investigation 166—Investigator's report about investigation (1) As soon as practicable after completing an investigation under this Division, an investigator must give a written report about the investigation to the National Board that directed the investigator to carry out the investigation. (2) The report must include— (a) the investigator's findings about the investigation; and (b) the investigator's recommendations about any action to be taken in relation to the health practitioner or student the subject of the investigation. 167—Decision by National Board After considering the investigator's report, the National Board must decide— (a) to take no further action in relation to the matter; or (b) to do either or both of the following— (i) take the action the Board considers necessary or appropriate under another Division; (ii) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action. 167A—Board may give information to notifier about result of investigation (1) This section applies if a notification about a registered health practitioner or student results in a decision by a National Board under section 167 in relation to the practitioner or student. (2) After making the decision, the National Board may inform the notifier who made the notification of the decision and the reasons for the decision. Division 9—Health and performance assessments 168—Definition assessment means— (a) a health assessment; or (b) a performance assessment. 169—Requirement for health assessment A National Board may require a registered health practitioner or student to undergo a health assessment if the Board reasonably believes, because of a notification or for any other reason, that the practitioner or student has, or may have, an impairment. 170—Requirement for performance assessment A National Board may require a registered health practitioner to undergo a performance assessment if the Board reasonably believes, because of a notification or for any other reason, that the way the practitioner practises the profession is or may be unsatisfactory. 171—Appointment of assessor to carry out assessment (1) If the National Board requires a registered health practitioner or student to undergo an assessment, the National Agency must appoint an assessor chosen by the Board to carry out the assessment. (2) The assessor must be— (a) for a health assessment, a medical practitioner or psychologist who is not a member of the National Board; or (b) for a performance assessment, a registered health practitioner who— (i) is a member of the same health profession as the registered health practitioner or student undergoing assessment; but (ii) is not a member of the National Board established for that profession. (3) The assessor may ask another health practitioner to assist the assessor in carrying out the assessment of the registered health practitioner or student. (4) The assessor's fee for carrying out the assessment is to be paid out of the National Board's budget. 172—Notice to be given to registered health practitioner or student about assessment (1) A requirement by a National Board for a registered health practitioner or student to undergo an assessment must be made by written notice given to the practitioner or student. (2) The written notice must state— (a) that the registered health practitioner or student is required to undergo a health assessment or performance assessment; and (b) the nature of the assessment to be carried out; and (c) the name and qualifications of the registered health practitioner who is to carry out the assessment; and (d) that if the registered health practitioner or student does not undergo the assessment the National Board may continue to take proceedings in relation to the practitioner or student under this Part. 173—Assessor may require information or attendance For the purposes of conducting an assessment of a registered health practitioner or student, an assessor may, by written notice given to the practitioner or student, require the practitioner or student to— (a) give stated information to the assessor within a stated reasonable time and in a stated reasonable way; or (b) attend before the assessor at a stated time and a stated place to undergo the assessment. Example of stated place— The registered health practitioner's principal place of practice. 174—Inspection of documents (1) If a document is produced to an assessor, the assessor may— (c) keep the document while it is necessary for the assessment. (2) If the assessor keeps the document, the assessor 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 assessor. 175—Report from assessor The assessor must, as soon as practicable after carrying out the assessment, give to the National Board a report about the assessment. 176—Copy of report to be given to health practitioner or student (1) The National Board must, as soon as practicable after receiving the assessor's report, give a copy of the report to— (a) the registered health practitioner or student to whom it relates; or (b) if the report contains information the Board considers may, if disclosed to the practitioner or student, be prejudicial to the practitioner's or student's physical or mental health or wellbeing, to a medical practitioner or psychologist nominated by the practitioner or student. (2) If a medical practitioner or psychologist is given a copy of a report about a registered health practitioner or student under subsection (1)(b), the medical practitioner or psychologist must give a copy of the report to the practitioner or student as soon as it will no longer be prejudicial to the practitioner's or student's health or wellbeing. (3) After the registered health practitioner or student has been given a copy of the report under subsection (1)(a) or (2), a person nominated by the Board must— (a) discuss the report with the practitioner or student; and (b) if the report makes an adverse finding about the practitioner's practice of the profession or states that the assessor finds the practitioner has an impairment, discuss with the practitioner ways of dealing with the finding, including, for a practitioner, whether the practitioner is prepared to alter the way the practitioner practises the health profession. 177—Decision by National Board After considering the assessor's report and the discussions held with the registered health practitioner or student under section 176(3), the National Board may decide to— (a) take the action the Board considers necessary or appropriate under another Division; or (b) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action; or (c) take no further action in relation to the matter. 177A—Board may give information to notifier about decision following assessor's report (1) This section applies if a notification about a registered health practitioner or student results in a decision by a National Board under section 177 in relation to the practitioner or student. (2) After making the decision, the National Board may inform the notifier who made the notification of the decision and the reasons for the decision. Division 10—Action by National Board 178—National Board may take action (a) a National Board reasonably believes, because of a notification or for any other reason— (i) the way a registered health practitioner registered in a health profession for which the Board is established practises the health profession, or the practitioner's professional conduct, is or may be unsatisfactory; or (ii) a registered health practitioner or student registered in a health profession for which the Board is established has or may have an impairment; or (iii) a student has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or (iv) a student has or may have contravened a condition of the student's registration or an undertaking given by the student to a National Board; or (v) a registered health practitioner's registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular; and (b) the matter is not required to be referred to a responsible tribunal under section 193, including because of a decision made under section 193A that it is not in the public interest; and (c) the Board decides it is not necessary or appropriate to refer the matter to a panel. (2) The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner or student— (a) caution the registered health practitioner or student; (b) accept an undertaking from the registered health practitioner or student; (c) impose conditions on the practitioner's or student's registration, including, for example, in relation to a practitioner— (i) a condition requiring the practitioner to complete specified further education or training within a specified period; or (iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or (v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or (d) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action. (3) If the National Board decides to impose a condition on the registered health practitioner's or student's registration, the Board must also decide a review period for the condition. 179—Show cause process (1) If a National Board is proposing to take relevant action in relation to a registered health practitioner or student, the Board must— (a) give the practitioner or student written notice of the proposed relevant action; and (b) invite the practitioner or student to make a written or verbal submission to the Board, within the reasonable time stated in the notice, about the proposed relevant action. (2) After considering any submissions made by the registered health practitioner or student in accordance with this section, the National Board must decide to— (a) take no action in relation to the matter; or (b) do any of the following— (i) take the proposed relevant action or other relevant action; (ii) take other action under this Part; (iii) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action. 180—Notice to be given to health practitioner or student and notifier (1) As soon as practicable after making a decision under section 179(2), the National Board must give written notice of the decision to— (a) the registered health practitioner or student; and (b) if the decision was the result of a notification, the notifier. (2) A notice under subsection (1)(b) may also include the reasons for the decision. Division 11—Panels 181—Establishment of health panel (1) A National Board may establish a health panel if— (a) the Board reasonably believes, because of a notification or for any other reason, that a registered health practitioner or student has or may have an impairment; and (b) the Board decides it is necessary or appropriate for the matter to be referred to a panel. (1A) Also, a National Board must establish a health panel if the suspension of a practitioner's or student's registration is to be reconsidered under section 191(4A) or 191A(2)(c). (2) A health panel must consist of the following members chosen from a list referred to in section 183— (a) at least one member who is a registered health practitioner in the same health profession as the registered health practitioner or student the subject of the hearing; (b) at least one member who is a medical practitioner with expertise relevant to the matter the subject of the hearing; (c) at least one member who is not, and has not been, a registered health practitioner in the same health profession as the registered health practitioner or student the subject of the hearing. (3) In choosing members of the panel, the National Board must, if possible, choose a member from the jurisdiction in which the matter the subject of the hearing occurred. (4) No more than half of the members of the panel may be registered health practitioners in the same health profession as the registered health practitioner or student the subject of the hearing. (5) However, for subsection (4), if the subject of the hearing is a registered health practitioner who is a medical practitioner, a member of the panel referred to in subsection (2)(b) is not to be considered to be registered in the same health profession as the registered health practitioner the subject of the hearing. (6) A person cannot be appointed to the panel if the person has been involved in any proceedings relating to the matter the subject of the hearing by the panel. 182—Establishment of performance and professional standards panel (1) A National Board may establish a performance and professional standards panel if— (a) the Board reasonably believes, because of a notification or for any other reason, that— (i) the way a registered health practitioner practises the health profession is or may be unsatisfactory; or (ii) the registered health practitioner's professional conduct is or may be unsatisfactory; and (b) the Board decides it is necessary or appropriate for the matter to be referred to a panel. (2) A performance and professional standards panel must consist of at least 3 members. (3) In choosing members of the panel, the National Board must, if possible, choose a member from the jurisdiction in which the matter the subject of the hearing occurred. (4) At least half, but no more than two-thirds, of the members of the panel must be persons who are— (a) registered health practitioners in the same health profession as the registered health practitioner the subject of the hearing; and (b) chosen from a list approved under section 183. (5) At least one member must be a person who represents the community and chosen from a list approved under section 183. (6) A person may not be appointed to the panel if the person has been involved in any proceedings relating to the matter the subject of the hearing by the panel. 183—List of approved persons for appointment to panels (1) A National Board may appoint individuals to a list of persons approved to be appointed as members of panels. (2) To the extent practicable, individuals appointed under subsection (1) should not— (a) for registered health practitioners, be individuals whose principal place of practice is in a co‑regulatory jurisdiction; or (b) otherwise, be individuals who live in a co‑regulatory jurisdiction. 184—Notice to be given to registered practitioner or student (1) A panel must give notice of its hearing of a matter to the registered health practitioner or student the subject of the hearing. (a) the day, time and place at which the hearing is to be held; and (b) the nature of the hearing and the matters to be considered at the hearing; and (c) that the registered health practitioner or student is required to attend the hearing; and (d) that the registered health practitioner may be accompanied at the hearing by an Australian legal practitioner or other person; and (e) that if the registered health practitioner or student fails to attend the hearing the hearing may continue, and the panel may make a decision, in the practitioner's or student's absence; and (f) the types of decision the panel may make at the end of the hearing. (3) For a panel established under section 181(1A), the panel— (a) may decide the hearing may be decided entirely on the basis of documents, without parties, their representatives or witnesses appearing at the hearing; and (b) if the hearing is to be decided entirely on the basis of documents—must give written notice of the decision to the registered health practitioner or student the subject of the hearing. (4) The health practitioner or student may within 14 days after receiving the notice under subsection (3)(b) give a written notice to the panel— (a) requesting a hearing; and (b) undertaking to be available to attend the hearing within 28 days after giving the notice. (5) If the health practitioner or student gives a notice under subsection (4), the panel must give the health practitioner or student notice under subsection (1) stating a day for the hearing that is not more than 28 days after the practitioner's or student's notice was given. (6) Subsection (1) does not apply if— (a) the panel makes a decision under subsection (3); and (b) the health practitioner or student does not give notice under subsection (4). 185—Procedure of panel (1) Subject to this Division, a panel may decide its own procedures. (2) A panel is required to observe the principles of natural justice but is not bound by the rules of evidence. (3) A panel may have regard to— (a) a report prepared by an assessor about the registered health practitioner or student; and (b) any other information the panel considers relevant to the hearing of the matter. 186—Legal representation (1) At a hearing of a panel, the registered health practitioner or student the subject of the hearing may be accompanied by an Australian legal practitioner or another person. (2) An Australian legal practitioner or other person accompanying the registered health practitioner or student may appear on behalf of the practitioner or student only with the leave of the panel. (3) The panel may grant leave for an Australian legal practitioner or other person to appear on behalf of the registered health practitioner or student only if the panel considers it appropriate in the particular circumstances of the hearing. 187—Submission by notifier If a matter the subject of a hearing before a panel relates to a notification, the notifier may, with the leave of the panel, make a submission to the panel about the matter. 188—Panel may proceed in absence of registered health practitioner or student At a hearing, a panel may proceed in the absence of the registered health practitioner or student the subject of the proceedings if the panel reasonably believes the practitioner or student has been given notice of the hearing. 189—Hearing not open to the public A hearing before a panel is not open to the public. 190—Referral to responsible tribunal or National Board (1) A panel must stop hearing a matter and require the National Board that established the panel to refer the matter to a responsible tribunal under section 193 if, at any time— (a) the practitioner or student the subject of the hearing asks the panel for the matter to be referred to a responsible tribunal under section 193; or (b) if the subject of the hearing is a registered health practitioner—the panel reasonably believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct. (2) A panel must stop hearing a matter and refer the matter to the National Board that established the panel if the panel reasonably believes the evidence demonstrates the practitioner's registration may have been improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular. 191—Decision of panel (1) After hearing a matter about a registered health practitioner, a panel may decide— (a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or (b) one or more of the following— (i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance; (ii) the practitioner has behaved in a way that constitutes unprofessional conduct; (iii) the practitioner has an impairment; (iv) the matter must be referred to a responsible tribunal under section 193; (v) the matter must be referred to another entity, including, for example, a health complaints entity, for investigation or other action. (2) After hearing a matter about a student, a health panel may decide— (a) the student has an impairment; or (b) the matter must be referred to another entity, including, for example, a health complaints entity, for investigation or other action; or (c) the student has no case to answer and no further action is to be taken in relation to the matter. (3) If a panel decides a registered health practitioner or student has an impairment, or that a practitioner has behaved in a way that constitutes unsatisfactory professional performance or unprofessional conduct, the panel may decide to do one or more of the following— (a) impose conditions on the practitioner's or student's registration, including, for example, in relation to a practitioner— (i) a condition requiring the practitioner to complete specified further education or training within a specified period; or (iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or (v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or (b) for a health panel, suspend the practitioner's or student's registration; (c) for a performance and professional standards panel, caution or reprimand the practitioner. (4) If a panel decides to impose a condition on a registered health practitioner's or student's registration, the panel must also decide a review period for the condition. (4A) If a panel suspends a health practitioner's or student's registration, the panel must decide a date (the reconsideration date) by which the suspension must be reconsidered by a panel established under section 181(1A). (5) A decision by a panel that a registered health practitioner has no case to answer in relation to a matter does not prevent a National Board or adjudication body taking the matter into consideration at a later time as part of a pattern of conduct or practice by the health practitioner. 191A—Decision of panel after reconsideration of suspension (1) This section applies if the suspension of a health practitioner's or student's registration is reconsidered by a panel established under section 181(1A). (2) The panel may— (a) revoke the suspension; or (b) revoke the suspension, impose conditions under section 191(3)(a) and decide a review period for the conditions under section 191(4); or (c) not revoke the suspension and decide a new reconsideration date. 191B—Change of reconsideration date for suspension of registration (1) This section applies if the suspension of a health practitioner's or student's registration is to be reconsidered by a panel established under section 181(1A) on a reconsideration date. (2) The panel may decide an earlier reconsideration date if— (a) the health practitioner or student advises the panel of a material change in the practitioner's or student's circumstances and requests an earlier reconsideration date because of the change; and (b) the panel is reasonably satisfied an earlier reconsideration date is necessary because of the change in circumstances. (3) For subsection (2), the panel must give the practitioner or student written notice of— (a) if the panel decides an earlier reconsideration date—the earlier date; or (b) if the panel decides to refuse the request for an earlier reconsideration date—the panel's decision and the reasons for the decision. (4) The panel may decide a later reconsideration date if the panel is reasonably satisfied it is necessary to enable the panel to reconsider the suspension. Examples of when the panel may be reasonably satisfied a later reconsideration date may be decided— (a) the health practitioner or student is required for a hearing and cannot attend because of illness; (b) the panel requires extra time to consider further evidence supplied by the health practitioner or student; (c) extra time is required to appoint a panel member for a panel member who is ill. (5) For subsection (4), the panel must give the health practitioner or student written notice of the later reconsideration date and the reasons for the decision. (6) The suspension of the health practitioner's or student's registration remains in force until the panel makes a decision to revoke the suspension. 192—Notice to be given about panel's decision (1) As soon as practicable after making a decision under section 191 or 191A, a panel must give notice of its decision to the National Board that established it. (2) The National Board must, within 30 days after the panel makes its decision, give written notice of the decision to— (a) the registered health practitioner or student the subject of the hearing; and (b) if the hearing related to a notification, the notifier. (3) The notice given to the registered health practitioner or student must state— (a) the decision made by the panel; and (c) that the registered health practitioner or student may appeal against the decision; and (d) how an application for appeal may be made and the period within which the application must be made. (4) A notice under subsection (2)(b) may also include the reasons for the decision.