Private hospital (s. 2(1)) is a hospital that is not a public hospital. The definition of hospital is imported from the Health Services Act 2016 section 8. A public hospital is also defined by reference to that Act, including hospitals declared to be public hospitals and excluding those declared not to be public hospitals. The Act expressly provides that the making of a grant or subsidy to a private hospital does not affect its status as a private hospital (s. 2(2)). Nursing home is separately defined to mean premises where persons who do not require constant medical attention are received and lodged for medical supervision and nursing care, but the Minister may declare by notice in the Gazette that an institution is not a nursing home (s. 3(3)).

Private psychiatric hostel (s. 2(1)) means private premises in which three or more persons who are socially dependent because of mental illness and are not family members of the proprietor reside and are treated or cared for. This concept is closely tied to the definition of resident in Part IIIB (s. 26P). Part IIIA applies to private psychiatric hostels with specified modifications (s. 26Q), including that section 26DA (endorsement for involuntary patients) does not apply, and that regulations may prescribe the minimum proportion of Commonwealth pension that must be paid to the resident for personal use.

Licence (s. 26A) means a licence issued under Part IIIA. A licence is required to conduct a private hospital. Licences are granted to natural persons, firms, or bodies corporate, subject to the applicant satisfying the CEO as to character, resources, and understanding of duties (s. 26B). The premises must be approved before a licence is granted (s. 26C). A licence is not transferable (s. 26E(3)) and may be renewed annually in accordance with regulations.

Endorsement (s. 26DA) allows a licensed private hospital to receive and admit persons under the Mental Health Act 2014 as involuntary patients. This endorsement requires a recommendation from the Chief Psychiatrist and may be subject to conditions or restrictions. The CEO can cancel an endorsement after consulting the Chief Psychiatrist (s. 26FA).

Private non‑profit hospital (s. 2(1)) is a private hospital maintained by a religious or charitable organisation and not carried on for private gain. This category receives specific attention under the Minister’s power to make payments to defray interest on borrowed money for projects connected with such hospitals (s. 7A(a)).

Body corporate (s. 26A) for the purposes of Part IIIA includes any association of persons whether incorporated or not, but does not include a partnership.

Personal information (s. 26S(8)) is defined for Part IIIC as information or an opinion about an individual whose identity is apparent or can reasonably be ascertained.

The Act directly regulates any person or entity that wishes to establish, conduct, or manage a private hospital or private psychiatric hostel in Western Australia. This includes natural persons, firms, and bodies corporate. Applicants for a licence must satisfy the CEO that they are of good character and repute, have sufficient material and financial resources, and fully understand their duties under the Act (s. 26B). For firms and bodies corporate, the CEO must be satisfied about the character and fitness of all natural persons concerned in management or conduct (s. 26B(3)(a), (4)(a)). Existing licence holders are affected by the ongoing conditions attached to their licence (s. 26D), which may specify maximum patient numbers, categories of patients, staffing levels and times of care (s. 26D(3)). Licence holders must comply with all conditions; failure to do so is an offence (s. 26L).

Private hospitals that treat persons with mental illness and seek to detain involuntary patients are specifically affected by the endorsement requirement under section 26DA. Such hospitals must obtain an endorsed licence, and the endorsement can only be granted on the recommendation of the Chief Psychiatrist. The endorsement may be cancelled if the hospital is no longer suitable or if the licence holder contravenes the Mental Health Act 2014 (s. 26FA).

Private psychiatric hostel operators are also covered, as Part IIIA applies to them with modifications (s. 26Q). They must hold a licence, meet premises and staffing standards, and comply with regulations that may prescribe minimum pension entitlements for residents.

Persons who are officers of a body corporate that commits an offence under sections 26DA(1), 26G(2), 26K, or 26L may be criminally liable by operation of section 26M, which applies the Criminal Code section 39 (officer liability).

Additionally, the Act empowers the CEO to direct private hospital service providers to give information (s. 26S). This direction can be given to named providers, classes of providers, or all providers. Providers must comply; the direction can require personal information.

The Minister, CEO, and authorised visitors are also affected in terms of their statutory functions: the Minister controls general administration (s. 5), may approve payments (s. 7A), and may receive appeals against refusal of a licence (s. 26D(6)). The CEO may issue guidelines for construction, establishment and maintenance of private hospitals (s. 26J).

Finally, the Act provides protection from personal liability for persons acting in good faith in the performance of a function under the Act (s. 35A), which affects officers, inspectors, and others administering the Act.

Duty to hold a licence. No person may conduct or manage a private hospital unless they hold a licence (s. 26K(a)(i)). Similarly, the premises must be approved under Part IIIA unless the hospital is a nursing home certified under the Commonwealth Aged Care Act 1997 (s. 26K(b)). Building, altering, or extending a private hospital also requires prior CEO approval, subject to the same nursing home exception (s. 26K(c)). Breach attracts a penalty of $5,000.

Duty to comply with licence conditions. A licence holder who fails to comply with any term or condition of the licence commits an offence (s. 26L), penalty $1,000.

Duty to comply with CEO directions. A private hospital service provider must comply with a direction from the CEO to give specified information, including personal information, relating to hospital, health or psychiatric services provided (s. 26S). The CEO can only specify information consistent with the purpose of regulation and health-related research (s. 26R, s. 26S(3)). The direction may be by class of information and may specify the form in which it is to be given (s. 26S(4)). Information may relate to the period before commencement of Part IIIC (s. 26S(6)).

Duty to permit inspection. Any person authorised by the CEO may visit and inspect every part of a private hospital, including outbuildings (s. 10(1)). A medical practitioner authorised may medically examine a patient, but only on complaint to the CEO, with notice to the patient’s medical practitioner and the licence holder (s. 10(2)). Obstruction or wilful misleading of an authorised person is an offence, penalty $200 (s. 11).

Duty to comply with closure orders. The CEO may order a licence holder to remedy building work or faulty equipment within a specified time (s. 26G(1)). Failure to comply is an offence ($2,000) and the CEO may then order closure of the private hospital (s. 26G(2), (3)). If the CEO deems a hospital unsafe, closure can be ordered forthwith (s. 26G(4)).

Right to apply for a licence. Any natural person aged 18 or over, or a firm or body corporate, may apply for a licence (s. 26B). The CEO must decide within three months if the premises are not yet approved, or within 30 days if they are already approved (s. 26D(5)). A person aggrieved by a refusal may appeal to the Minister within 30 days (s. 26D(6)). The CEO may also impose, revoke, or vary terms and conditions (s. 26D(2), (7)).

Right to review. A person whose licence is cancelled or not renewed under s. 26F, or whose endorsement is cancelled under s. 26FA, may apply to the State Administrative Tribunal for review (s. 26H). Pending determination, the CEO may permit the person to continue conducting the private hospital under specified terms and conditions (s. 26H(3)).

Right to no liability on disclosure. A provider that gives information in compliance with a direction under s. 26S incurs no civil or criminal liability, and the disclosure is not a breach of confidentiality, professional ethics, or unprofessional conduct (s. 26T).

Protection from personal liability. A person acting in good faith in performance of a function under the Act is protected from tort liability, but the State is not relieved of any liability it might have (s. 35A).

The Act creates several specific offences with fixed monetary penalties, all expressed in dollars (not penalty units). The primary offence is conducting or managing a private hospital without a licence or without approved premises, or building, altering, or extending without CEO approval, which carries a penalty of $5,000 (s. 26K). This offence also covers holding out that one conducts or manages a private hospital without the requisite licence or approved premises.

Failure to comply with a licence condition is an offence with a penalty of $1,000 (s. 26L). Failure to comply with a CEO order to remedy building work or faulty equipment attracts a penalty of $2,000 (s. 26G(2)). Operating a private hospital in which any person is detained for treatment of mental illness without the licence being endorsed under s. 26DA carries a penalty of $5,000 (s. 26DA(1)). Obstruction or wilful misleading of a person authorised under s. 10 to visit or inspect a private hospital is an offence with a penalty of $200 (s. 11).

In addition to these specific offences, the general regulation-making power allows regulations to prescribe penalties not exceeding $500 for breach of any regulation (s. 26O(2)(e)). The Governor may also make regulations under s. 37 with penalties not exceeding $50 for any breach (s. 37(3)(e)).

Enforcement is primarily through the CEO, who has powers to cancel or refuse renewal of a licence (s. 26F) and to order closure of a private hospital (s. 26G). Cancellation of a licence requires notice of intention and a reasonable opportunity for the licence holder to be heard (s. 26F(2)). The CEO may also cancel an endorsement under s. 26DA after consulting the Chief Psychiatrist (s. 26FA). Closure may be ordered where a licence holder fails to comply with a remediation order, or forthwith if the CEO deems the hospital unsafe (s. 26G(3), (4)).

Corporate officers face personal criminal liability under the Criminal Code section 39 for offences under s. 26DA(1), s. 26G(2), s. 26K, and s. 26L (s. 26M). This means that an officer of a body corporate may be found guilty of those offences if the body corporate commits the offence, subject to the provisions of the Criminal Code.

The Act does not provide for infringement notices, injunctions, or civil penalty orders. The protection from personal liability (s. 35A) does not relieve the State of liability, so individuals affected by unlawful acts of officials may have recourse against the State in tort.

The Act contains several express interactions with other Western Australian and Commonwealth legislation. The definition of hospital and public hospital are imported from the Health Services Act 2016 sections 7 and 8 (s. 2(1)). That Act also supplies the definition of health service. The Health Legislation Administration Act 1984 provides the meaning of CEO.

The Mental Health Act 2014 is directly referenced in several provisions. Where a private hospital or part of it is an authorised hospital under that Act, the Private Hospitals and Health Services Act operates subject to the Mental Health Act (s. 4). The endorsement regime under s. 26DA allows a licensed private hospital to receive and detain involuntary patients under the Mental Health Act 2014; the CEO cannot grant an endorsement without a recommendation from the Chief Psychiatrist (s. 26DA(3A)). Cancellation of an endorsement requires consultation with the Chief Psychiatrist (s. 26FA(2A)).

The Health Practitioner Regulation National Law (Western Australia) supplies the definition of medical practitioner (s. 2(1)).

The Criminal Code section 39 is applied by s. 26M to officer liability for certain offences under this Act.

The Aged Care Act 1997 (Commonwealth) creates an important carve-out: the prohibition on conducting or managing a private hospital without a licence does not apply to a nursing home whose conduct or management is a residential care service certified under Part 2.6 of that Commonwealth Act (s. 26K(a)(ii), (b)(ii)). Similarly, the requirement for CEO approval to build, alter or extend a private hospital does not apply to a nursing home that is such a certified service (s. 26K(c)(ii)).

The Public Health Act 2016 (via consequential provisions) may also affect the operation of certain provisions, though the text of the Act as compiled does not detail specific interactions.

The Act also provides that regulations made under s. 26O may adopt standards from bodies such as Standards Australia or the British Standards Institution (s. 26J(2)(b)). Guidelines issued by the CEO under s. 26J may adopt, wholly or in part, any rules, regulations, codes, or subsidiary legislation under any Act of the State or the Commonwealth.

Part IIIC information-gathering provisions operate alongside general privacy laws; s. 26T expressly provides that disclosure in compliance with a CEO direction is not a breach of any duty of confidentiality or secrecy imposed by law. This means that other laws (for example, the Health Services Act 2016 or the Privacy Act 1988 (Cth) if applicable) are overridden to the extent of any inconsistency with the direction.

The State Administrative Tribunal has jurisdiction to review decisions to cancel a licence, refuse renewal, or cancel an endorsement (s. 26H), which interacts with the State Administrative Tribunal Act 2004.

The Act was originally passed in 1927 as the Hospitals Act 1927 (23 of 1927) and has been amended numerous times. The first major restructure came with the Hospitals Act Amendment Act 1972 (33 of 1972), which inserted the modern preliminary provisions and expanded the definition of nursing home. Part IIIA (Private hospitals) was inserted by the Acts Amendment (Hospitals) Act 1985 (53 of 1985), which replaced the earlier regulatory regime. That same amendment introduced the licensing system with sections 26A through 26O, the CEO’s powers to cancel licences, and the offence provisions.

The Mental Health (Consequential Provisions) Act 1996 (69 of 1996) added Part IIIB (Private psychiatric hostels) and introduced the endorsement requirement under s. 26DA. The Health Legislation Amendment Act 2004 (61 of 2004) inserted Part IIIC (Information) - originally as s. 26R and s. 26S.

A significant modernisation occurred with the Health Services Act 2016 (11 of 2016), which changed the short title from Hospitals and Health Services Act 1927 to Private Hospitals and Health Services Act 1927, deleted many redundant sections (including former Part III, s. 5A, s. 7B-9, s. 12-12A, s. 13, s. 27, s. 29, s. 31-31A, s. 33, s. 34-35, s. 35B-36, and the Schedule), inserted the long title and the current s. 1, s. 7A (Minister’s powers), s. 10 (visiting and inspecting), s. 35A (protection from personal liability), s. 26T (no liability for disclosure), and added the review requirement under s. 38. That Act also made consequential amendments to definitions and references throughout.

The Directors’ Liability Reform Act 2023 (9 of 2023) inserted the current s. 26M, replacing earlier provisions on officer liability with a table of four specific sections to which the Criminal Code section 39 applies. This brought corporate officer liability into line with the standardised reform approach.

Other notable amendments include the Machinery of Government (Miscellaneous Amendments) Act 2006 (28 of 2006), which transferred references from the Commissioner of Health to the CEO; the Hospitals and Health Services Amendment Act 2006 (45 of 2006), which restructured s. 26K to its current form; and the Mental Health Legislation Amendment Act 2014 (25 of 2014), which updated references to the Mental Health Act 2014 and inserted the requirement for Chief Psychiatrist recommendation.

The Act does not mention any court cases by name. The only judicial body explicitly referenced is the State Administrative Tribunal (SAT), which has jurisdiction to review decisions of the CEO to cancel a licence, refuse renewal, or cancel an endorsement (s. 26H(1)). This provision was inserted by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (55 of 2004), which took effect on 1 January 2005. Prior to that, appeals in respect of licence cancellations lay to the Minister and then potentially to the Supreme Court, but the current Act provides no right of appeal to a court on the merits.

Section 26H(3) allows the CEO pending SAT review to permit a person to continue conducting the private hospital subject to terms and conditions. This suggests that SAT review may be sought urgently to prevent closure.

The Act also provides an appeal to the Minister against a decision of the CEO refusing to grant a licence (s. 26D(6)). That appeal must be made within 30 days of the decision. The Act does not specify a further avenue of judicial review from the Minister’s decision, but general principles of administrative law would apply.

There are no reported cases named in the Act, and the text does not reference any litigation history. However, because the Act has criminal penalties and involves deprivation of a licence (a form of property right), it is likely that the Supreme Court of Western Australia has considered the Act in judicial review proceedings or criminal prosecutions, though the source does not mention any.

The protection from personal liability under s. 35A is likely to be relevant in any tort claim against an officer exercising powers under the Act. The section makes clear that the State is not relieved of liability, so claims against the State for wrongful acts by officials are preserved.

Overall, the Act is a regulatory instrument with limited direct litigation exposure; most disputes would arise from licence decisions or prosecutions.

One notable trap is the exception for nursing homes certified under the Commonwealth Aged Care Act 1997. Section 26K exempts such nursing homes from the licence requirement and from the need for CEO approval for building works. However, a proprietor may mistakenly believe that all nursing home operations are exempt if the home is not in fact a “residential care service, or part of a residential care service, that is certified under Part 2.6 of the Aged Care Act 1997 of the Commonwealth”. The Act does not define that phrase further, so careful cross-reference with federal law is essential.

Another potential surprise is that licences are not transferable (s. 26E(3)). This means that if a licence holder sells the business or premises, the new operator must apply for a fresh licence and satisfy all eligibility criteria from scratch. There is no mechanism for assignment.

The CEO’s discretion to impose conditions on a licence is broad and is stated to be “in the discretion of the CEO” (s. 26D(4)). The only avenue for challenging a condition is not specified - the aggrieved person can appeal a refusal to grant a licence to the Minister (s. 26D(6)), but there is no express right to appeal against the conditions themselves. A person aggrieved by conditions may need to seek general judicial review.

Similarly, the CEO may revoke or vary conditions at any time (s. 26D(7)), and there is no statutory hearing requirement before doing so. This contrasts with the cancellation of a licence itself, which requires notice and an opportunity to be heard (s. 26F(2)). Variation of conditions could therefore occur without prior notice.

The requirement for CEO approval of building, alteration or extension of a private hospital under s. 26K(c) does not have a corresponding time limit for the CEO’s decision. While s. 26D(5) provides time limits for licence applications, no equivalent exists for building approvals. This could lead to delays.

Section 26G(4) allows the CEO to order a private hospital to be closed “forthwith” if the CEO deems it unsafe, without any prior notice or hearing. The licence holder may then apply to SAT for review of the underlying cancellation decision if one follows, but the closure itself takes immediate effect.

The offence under s. 26DA(1) (treating involuntary mental health patients without licence endorsement) carries a $5,000 penalty and also triggers officer liability under s. 26M. A hospital that accepts an involuntary patient without endorsement could face both corporate and personal liability.

Finally, the limitation period for offences is not specified in the Act, so the general Criminal Code or Justices Act time limits apply. Practitioners should also note that the penalty amounts have not been updated to penalty units - they remain fixed dollar figures - and are not indexed to inflation.

Compliance begins with understanding whether the Act applies to the facility in question. A private hospital must be identified as not being a public hospital and not falling within the prison exemption (s. 3(1)). Nursing homes that are certified residential care services under the Commonwealth Aged Care Act 1997 are exempt from the primary licensing and approval requirements (s. 26K), but other nursing homes are not and would require a licence.

Step 1: Obtain a licence. A natural person, firm, or body corporate must apply to the CEO using the approved form with any additional information required (s. 26N). The applicant must satisfy the CEO as to age (18 or over for natural persons), good character and repute, sufficient material and financial resources, and understanding of the duties under the Act (s. 26B). The premises must first be approved as suitable (s. 26C). The CEO will decide within three months if the premises are not yet approved, or within 30 days if already approved (s. 26D(5)). Once granted, the licence is subject to any conditions the CEO imposes, which may include maximum patient numbers, categories of patients, and staffing requirements (s. 26D(3)). The licence is valid from the date of grant and must be renewed annually (s. 26E). It is not transferable, so any change of operator requires a new application.

Step 2: Premises and building compliance. Before building, altering, or extending a private hospital, the CEO’s approval must be obtained (s. 26K(c)). The CEO may issue guidelines for construction, establishment, and maintenance (s. 26J), and compliance with those guidelines would be prudent. The CEO may also issue orders to remedy building work that is not workmanlike or equipment that is faulty; non-compliance can lead to closure orders (s. 26G).

Step 3: Mental health endorsement. If the hospital intends to receive and detain involuntary patients under the Mental Health Act 2014, the licence must be endorsed (s. 26DA). An application for endorsement can be made at the time of licence application or subsequently. The CEO cannot endorse without the Chief Psychiatrist’s recommendation. The endorsement may have conditions. Operating without endorsement attracts a $5,000 penalty.

Step 4: Ongoing operations. The licence holder must comply with all licence conditions (s. 26L) and must allow authorised persons to visit and inspect the hospital (s. 10). Obstruction is an offence. The hospital must maintain appropriate staffing levels and care as specified in the licence conditions. If the CEO directs the provision of information, the provider must comply (s. 26S). The direction may require personal information; the provider is protected from liability for disclosing in good faith compliance (s. 26T).

Step 5: Reporting and records. Regulations under s. 26O may prescribe the keeping of registers and the furnishing of returns to the Chief Psychiatrist (particularly for psychiatric hostels, s. 26Q(2)(d)(ii)). The CEO may also require information to be verified by statutory declaration (s. 26N(2)). Private psychiatric hostel operators must also comply with regulations regarding the minimum proportion of pension payable to residents (s. 26Q(2)(d)(i)).

Step 6: Responding to enforcement. If the CEO proposes to cancel the licence, the holder has a right to be heard (s. 26F(2)). If cancellation or non-renewal occurs, or endorsement is cancelled, the holder may apply to the State Administrative Tribunal for review (s. 26H). The CEO may allow continued operation pending review. If an unsafe closure order is made, compliance is immediate; legal challenge would need to address the underlying decision.