128ZRestrictions on SAPSE reviews

128Z Restrictions on SAPSE reviews (1) If the members of a SAPSE review panel have reason to suspect that its review may relate to an adverse event that involves a prohibited act, the SAPSE review panel must suspend its activities and comply with any procedures prescribed for the purposes of this section as to suspension or recommencement of the review. (2) To avoid doubt, nothing in this section prevents a member of a SAPSE review panel from discharging a mandatory reporting obligation (however described), including but not limited to an obligation under the following— (a) the Health Practitioner Regulation National Law; (b) section 184 of the **Children, Youth and Families Act 2005**. (3) In this section— ***impairment*** has the same meaning as in the Health Practitioner Regulation National Law; ***prohibited act*** means— (a) an act that is an offence and that appears to have been committed by a member of the staff of the health services entity that is the subject of the review; or (b) an act that is attributable to a member of the staff of the health services entity that is the subject of the review, or any other person involved in the adverse event, having an impairment; or (c) an act that constitutes the abuse of a patient; or (d) an act that appears to be a deliberately unsafe act (other than an act that might be reasonably undertaken in the provision of a health service); or (e) a prescribed act. S. 128ZA inserted by No. 4/2022 s. 5. 128ZA Section 139 does not apply To avoid doubt, section 139 does not apply to this Division. Division 9—Duty of candour S. 128ZB inserted by No. 4/2022 s. 5, amended by No. 17/2023 s. 67(2). 128ZB Definitions ***apology*** means an expression of compassion, regret or sympathy in connection with any matter, whether or not the apology admits or implies an admission of fault in connection with the matter; ***civil proceeding*** includes— (a) a proceeding before a tribunal; and (b) a proceeding under an Act regulating the practice or conduct of a profession or occupation; and (c) a proceeding of a Royal Commission, whether established under the **Inquiries Act 2014** or under the prerogative of the Crown; and (d) a proceeding of a Board of Inquiry or Formal Review established under the **Inquiries Act 2014**; ***patient***, in circumstances where the patient lacks capacity or has died, includes— (a) the patient's immediate family, carer or next of kin; and (b) a person nominated by the patient. S. 128ZC inserted by No. 4/2022 s. 5. 128ZC Duty of candour (1) If a patient suffers a serious adverse patient safety event in the course of receiving health services, the health service entity responsible for providing those services owes a duty of candour to the patient and must do the following unless the patient has opted out in accordance with subsection (2)— (a) provide the patient with— (i) a written account of the facts regarding the serious adverse patient safety event; and (ii) an apology for the harm suffered by the patient; and (iii) a description of the health service entity's response to the event; and (iv) the steps that the health service entity has taken to prevent re‑occurrence of the event; and (v) any prescribed information; and (b) comply with any steps set out in the Victorian Duty of Candour Guidelines. (2) A patient referred to in subsection (1) may choose not to receive information in accordance with this Division by providing the health service entity with a signed statement. (3) A patient who has signed a statement in accordance with subsection (2) may later elect to receive information under subsection (1). S. 128ZD inserted by No. 4/2022 s. 5. 128ZD Apology not admission of liability (1) In a civil proceeding where the death or injury of a person is in issue or is relevant to an issue of fact or law, an apology— (a) does not constitute an express or implied admission of liability for the death or injury; and (b) is not relevant to the determination of fault or liability in connection with that proceeding. (2) Subsection (1) applies whether the apology— (a) is made orally or in writing; or (b) is made before or after the civil proceeding was in contemplation or commenced. (3) Evidence of an apology made by or on behalf of a person or a health service entity in connection with any matter alleged to have been caused by the person or health service entity is not admissible in any civil or disciplinary proceedings as evidence of the fault or liability of the person or health service entity in connection with that matter. (4) Nothing in this section affects the admissibility of a statement with respect to a fact in issue or tending to establish a fact in issue. S. 128ZE inserted by No. 4/2022 s. 5. 128ZE Non-compliance with duty of candour The Minister or the Secretary may take into account the failure of a health service entity to comply with the duty of candour when assessing the following matters under this Act— (a) whether the entity provides safe, patient-centred and appropriate health services; (b) the quality and safety of health services provided by the entity. S. 128ZF inserted by No. 4/2022 s. 5. 128ZF Victorian Duty of Candour Guidelines (1) The Minister may make guidelines (to be known as the Victorian Duty of Candour Guidelines) that set out the steps a health service entity must take to discharge the duty of candour. (2) The Victorian Duty of Candour Guidelines are a legislative instrument for the purposes of the **Subordinate Legislation Act 1994**. Division 10—Statements S. 128ZG inserted by No. 4/2022 s. 5. 128ZG Meaning of relevant health service entity ***relevant health service entity*** means the following— (b) a public health service; (c) a multi purpose service; (d) a denominational hospital; (e) a private hospital; (f) a day procedure centre. S. 128ZH inserted by No. 4/2022 s. 5. 128ZH Statement about failure to comply with duty of candour (1) The Minister may publish a statement setting out the name of a relevant health service entity if, in the Minister's opinion— (a) the relevant health service entity has failed to comply with the duty of candour on 2 or more occasions; and (b) the failure to comply is of a serious nature. (2) A statement under subsection (1) must be published on the Internet site of the Department. S. 128ZI inserted by No. 4/2022 s. 5. 128ZI Submissions on publication of statement (1) Before publishing a statement under section 128ZH, the Minister must give the relevant health service entity a reasonable opportunity to make oral or written submissions on the proposed publication of the statement. (2) The Minister must give the relevant health service entity written notice of the opportunity to make submissions. (3) A notice under subsection (2) must set out— (a) whether or not oral or written submissions or both may be made; and (b) if written submissions may be made, the time within which and the place to which the submissions must be made; and (c) if oral submissions may be made, the time and place for making the submissions. (4) A notice under subsection (2) must be given within a reasonable time to allow for the preparation of the submissions and, where necessary, for attendance at the place for making submissions. Pt 5 (Heading and ss 116–128) amended by Nos 53/1990 s. 20, 42/1993 s. 20(1), 68/1996 s. 31, 46/1998 s. 7(Sch. 1), 51/2001 ss 6, 7, 18/2004 s. 19, 108/2004 s. 117(1) (Sch. 3 item 96.9), repealed by No. 49/2010 s. 226(4). Pt 6 (Heading and ss 129–134) amended by No. 88/1994 s. 17(1) (a)(b)(2), repealed by No. 11/1995 s. 3(2)(Sch. 2), new Pt 6 (Heading and ss 129–134N) inserted by No. 18/2001 s. 8.