Hospitals (Licensing and Conduct of Private Hospitals) Regulations 1987

The central concept is the "licence" , which is given the meaning from section 26A of the Act rather than being defined independently in the regulations (r.3). The licence is the authorisation to carry on a private hospital. The regulations do not set out how one obtains a licence initially; that is in the Act. Instead, they govern conduct after grant. A key concept is the "fee" payable at various stages: grant of licence (Schedule 1 item 1, $1,360), renewal (item 2, sliding from $4,894 for fewer than 25 persons up to $12,879 for more than 500), replacement of lost/damaged licence (item 3, $255), and approval of premises (item 4, sliding from $8,960 for fewer than 25 up to $19,110 for more than 500). The fees are based on "number of persons licensed to be accommodated" , a concept that appears in both renewal fees and premises approval fees. This creates a direct financial incentive to keep licensed capacity low, as the renewal and approval fees increase with capacity. This may deter hospitals from expanding or maintaining standby capacity, because they pay for empty beds at the same rate as filled ones. The concept of "endorsement" under r.4A allows a licence to be annotated to permit admission of patients under the Mental Health Act 1996. This is optional and attracts an additional $100 fee. The "general duties of licence holder" in r.6 introduces another set of concepts: "constant attention" to hygienic food storage, dietary allowances recommended by the National Health and Medical Research Council (NHMRC), "effective management" of animals brought onto premises, and the incineration of pathological and infectious wastes within the hospital. The staffing concept in r.7 distinguishes "general private hospital" (i.e., any private hospital that is not a nursing home) and requires that only registered general nurses, registered psychiatric nurses, and enrolled nurses be employed, subject to a grandfathering provision for nursing assistants continuously employed for five years before the regulations commenced (1987). The "register of patients" and "medical history" records in r.9 are ongoing documentation duties. The penalty concept in r.10 is a simple fixed maximum of $500 per offence, irrespective of the nature or severity of the breach, number of patients affected, or duration of non-compliance. There is no escalation for repeated offences, no daily penalty, and no provision for compliance orders or infringement notices. The compilation table reveals that the regulations were originally called "Hospitals (Licensing and Conduct of Private Hospitals) Regulations 1987" and were renamed following the change of the principal Act's short title in 2016. The table also shows numerous fee amendment regulations, mostly from 2017 onwards, indicating that fees are updated annually through omnibus instruments. The regulations do not confer any right of review, appeal, or hearing on licence holders regarding fee amounts, endorsement decisions, or enforcement actions; those would presumably be in the Act.

The regulations directly apply to any person or entity that holds a licence to operate a private hospital in Western Australia. This includes for-profit hospital chains, not-for-profit religious or charitable hospitals, day procedure centres that are classified as private hospitals under the Act, and potentially small specialist facilities. The licence holder is the legal entity responsible for compliance with every operational duty in regulations 6 through 9. The obligations also affect the director of nursing, who must be present and in charge at all times (r.6(a)), and any nursing staff who must be registered or enrolled nurses under r.7. Grandfathered nursing assistants who have been continuously employed since before 1987 may continue working, but no new nursing assistants can be employed at general private hospitals. The regulations impose duties that indirectly affect kitchen staff (food preparation and timing), cleaning and waste management staff (receptacles and incineration), administrative staff (patient register and medical history records), and maintenance staff (staff accommodation, change rooms, lockers, dining rooms). The patients are affected in terms of the dietary standards, menu variety, and meal times they experience, but the regulations are not directly enforceable by patients , only by the CEO or a regulator through the penalty regime. The fees affect the financial viability of hospitals, especially smaller ones, because the renewal fee for fewer than 25 persons is $4,894 per year, and the premises approval fee for that size is $8,960. These are fixed costs that do not vary with occupancy. For a small hospital with low margins, these fees represent a non-trivial burden. The endorsement fee for mental health admissions adds another $100, which is a relatively minor cost but an additional hurdle for facilities that want to offer psychiatric services. The regulations also affect the State's health bureaucracy , the CEO (or delegate) receives and processes applications, issues licences, approves premises, and enforces compliance. The requirement for the CEO to approve qualifications under r.6(a) gives the CEO discretion over who can be in charge in the absence of the director of nursing. The regulations do not directly affect patients' private health insurers or medical practitioners, except indirectly through staffing requirements that may limit the availability of certain procedures.

The licence holder has a set of specific, non-delegable duties. Under r.6(a), the licence holder must ensure that the director of nursing (or an approved substitute) is at all times present and in charge. This is an absolute and continuous duty , no gaps allowed. If the director of nursing leaves the premises, an approved person must immediately take over. There is no provision for remote supervision or after-hours coverage by on-call arrangements. Under r.6(b), if animals are permitted on the premises, the licence holder must ensure they are "effectively managed" and do not constitute a nuisance or health risk. This covers therapy animals, guide dogs, or pets brought by visitors. The language is broad and leaves discretion to the regulator. Under r.6(c), the licence holder must ensure constant attention to hygienic food storage, preparation, and serving. Seven sub-paragraphs detail what this means: NHMRC dietary allowances, daily fresh fruit or fruit juice, appropriate therapeutic diets, menus not repeated within four weeks, standard portion sizes as a guide, puree components as individual items, and precise meal times with supper required if evening meal is before 5.30pm. These are prescriptive and leave little room for clinical judgment or patient preference. For example, a patient who does not want fresh fruit daily or who prefers a repeated menu may be overruled by the regulation. Under r.6(d) and (e), the licence holder must provide adequate refuse receptacles and incinerate pathological and infectious wastes in a facility within the hospital. This imposes capital and operational costs for incineration equipment, which may not be the most efficient or environmentally sound method compared to contracted off-site disposal. Under r.7, the licence holder must staff a general private hospital only with registered general nurses, registered psychiatric nurses, and enrolled nurses, except for grandfathered nursing assistants. This limits flexibility to use lesser-trained staff or assistants in nursing for non-acute tasks, which may increase labour costs unnecessarily in lower-acuity settings. Under r.8, the licence holder must provide staff accommodation for live-in staff and change rooms, lockers, and a dining room for non-resident staff. This is an infrastructure obligation that applies even if staff do not want or need such facilities. Under r.9, the licence holder must keep a patient register with admission date, personal details, referring doctor/nurse, discharge or death date; and a medical history record with condition on admission, diagnosis, and daily nursing/medical treatment notes. This is straightforward record-keeping but must be done for every patient. There is no right to an exemption or variation. The licence holder has the right to apply for a licence, renewal, replacement, and premises approval upon payment of the prescribed fee. There is no explicit right to a hearing before the CEO refuses an application or endorsement; the regulations are silent on that. The right to an endorsed licence under s.26DA of the Act is available upon application in an approved form and payment of the $100 fee. The licence holder has no right to challenge the fee amounts, which are set by the regulations and amended annually without input.

Regulation 10 creates an offence for a licence holder who contravenes regulation 6, 7, 8, or 9. The penalty is a maximum of $500. This is a single fixed amount; there is no differentiation per patient affected, per day of contravention, or per type of breach. A hospital that serves breakfast at 6.55am, or that repeats a menu within three weeks, or that employs an unregistered person in a nursing role, or that fails to record a patient's marital status, all face the same maximum penalty. The $500 ceiling has not been updated since the regulations were made in 1987. In real terms, it has eroded significantly. For context, the maximum penalty is roughly 4% of the renewal fee for a hospital with fewer than 25 persons. This low penalty may not be an effective deterrent for a large hospital operator; the cost of compliance could exceed the expected penalty. There is no provision for infringement notices (on-the-spot fines) under these regulations. Enforcement would likely be through prosecution in a court of summary jurisdiction, with the CEO or the department as the prosecuting body. The regulations do not specify a limitation period for prosecutions, so the general provisions of the Criminal Code or the Magistrates Court Act would apply. There is no power for the CEO to suspend or cancel a licence for breach of these regulations , that power presumably lies in the Act itself (not reproduced here). The regulations do not provide for any defence of reasonable steps, due diligence, or honest and reasonable mistake. The duty in r.6 uses "shall ensure that" which suggests strict liability. A licence holder cannot argue that they delegated the task to a competent employee and therefore should not be liable. The absence of any defence or penalty gradation creates a blunt enforcement regime. There is no requirement for the CEO to give a warning or notice of non-compliance before launching a prosecution. The regulations do not impose any duty on the CEO to enforce; they simply create offences. In practice, the department may use compliance audits and inspections, but the regulations themselves do not mandate them. The penalty provision also does not create vicarious liability for directors or officers; only the licence holder is liable. This may limit the personal accountability of senior management. However, if the licence holder is a corporation, the fine is still only $500, which may be insignificant relative to turnover. There is no provision for the recovery of the department's investigation costs or for compensation to patients affected by breaches. The enforcement mechanism relies on the willingness of the department to initiate prosecutions and the ability of a magistrate to impose up to $500. Given the low penalty, it is unlikely that the regulations alone drive compliance; the bigger threat is likely the potential loss of the licence under the Act or reputational damage.

These regulations are made under the Private Hospitals and Health Services Act 1927 (WA). They must be read in conjunction with that Act, which contains the core licensing provisions, definitions, and powers (including section 26A defining "licence" and section 26D regarding grant of licence). Section 26DA of the Act authorises the endorsement of a licence for mental health admissions, and the regulations provide the fee and form for such endorsement. The regulations also cross-reference the Mental Health Act 1996 (WA) , a licence endorsed under s.26DA allows admission or detention under that Act. Any changes to the Mental Health Act would affect the operation of endorsed licences. The regulations refer to dietary allowances recommended by the National Health and Medical Research Council as defined by the (now repealed) Medical Research Endowment Act 1937 (Cth). The NHMRC still exists under the National Health and Medical Research Council Act 1992 (Cth), so the reference may be read as a reference to the current body. However, the 1937 Act has been repealed, creating a slight anomaly: the definition in the regulations links to a repealed Commonwealth Act. A court would likely interpret the reference as to the current NHMRC recommendations using purposive construction. Nonetheless, this is a drafting defect. The regulations do not explicitly interact with the Health Services Act 2016 (WA), which changed the short title of the principal Act, but that change is noted in the compilation notes. They do not interact directly with the Health Insurance Act 1973 (Cth) or the Private Health Insurance Act 2007 (Cth), which govern health insurance payments. However, compliance with state regulations may be a condition of accreditation, which in turn affects Commonwealth funding. There is no reference to the Work Health and Safety Act 2020 (WA) or the Food Act 2008 (WA), but the duties in r.6 may overlap with or duplicate requirements under those laws. For example, food hygiene requirements in the Food Act may already cover hygienic storage and serving, making the hospital regulations redundant. The incineration requirement in r.6(e) may conflict with environmental laws that restrict on-site incineration or require emissions controls. The regulations do not provide for any exemption if other laws impose stricter or conflicting standards. The staffing requirement in r.7 interacts with the Nurses and Midwives Act 2006 (WA) and the Health Practitioner Regulation National Law (WA), which govern registration. Only persons with current registration may be employed, but the regulations go further by restricting categories of nurses (general, psychiatric, enrolled) in general private hospitals. There is no mention of Aboriginal health practitioners, paramedics, or other health workers who might be used in regional or remote settings. The regulations do not interact with anti-discrimination laws; they impose a blanket requirement that could indirectly discriminate against certain classes of workers. The absence of any exemption power in the regulations means the CEO cannot waive or vary compliance even if another law requires a different approach. The regulations also do not interact with the State's procurement policies or public hospital licensing. A private hospital that also has a contract to provide public patient services would still need to comply with these regulations in addition to any contractual obligations.

The regulations were made on 23 January 1987 and commenced the same day. They have been amended by at least 15 subsequent instruments, mostly to adjust fees. Notably, the first amendment in 1997 inserted r.4A regarding mental health licence endorsement, with a fee of $100 (unchanged since). In 2006, amendments updated various references (such as "CEO" replacing earlier terminology). In 2009, the fees in r.4 and r.5 were amended, and the Schedule fee amounts were changed. From 2016 onwards, the pattern of annual fee adjustments through omnibus "Health Regulations Amendment (Fees and Charges) Regulations" began, with instruments in 2016, 2017, 2018, 2019, 2022, 2023, 2024, and 2025. The 2020 amendment (SL 2020/115) altered the citation provision and made other minor changes. The 2025 amendment (SL 2025/104) inserted the current Schedule 1, replacing the previous schedule and moving the fee table from the body of the regulations into a formal schedule. That same amendment also inserted the heading for Schedule 1. The compilation table shows that as of July 2025, the regulations are up to date with the 2025 fee changes (which commence 1 July 2025). The frequent fee amendments suggest that the Department of Health reviews and increases both licensing and premises approval fees annually, presumably to recover administrative costs. However, there is no indexation formula stated; each amendment is a separate statutory instrument. The lack of automatic indexation means that if the department misses a year's amendment, the fees become static in nominal terms. The 2016 amendment also added "General duties of licence holder" changes (r.6 was amended in 2016 regarding animals), and r.9 was amended in 2016 to update wording. The 2010 amendment was a minor one (from the compilation table, it seems to have dealt with definitional issues). The 2014 amendment similarly was minor. The regulations have had two reprints: one in 2004 (February) and one in 2017 (May). The change of short title from "Hospitals (Licensing and Conduct of Private Hospitals) Regulations 1987" to the current name occurred via the renaming of the principal Act, as noted in the "Other notes". The regulations were originally cited as "Hospitals..." and are now "Private Hospitals...". The amendment history reveals no substantive changes to the core duties (food, staff, records, waste) since 1987, only refinements and fee updates. This means many of the prescriptive requirements (e.g., the 4-week menu cycle, the meal timing rules, the incineration requirement) have been in place for nearly 40 years without significant review or adjustment for changes in technology, dietary science, or facility design. This regulatory inertia can impose outdated compliance burdens.

The regulations themselves are not the subject of any reported or widely-known litigation, according to the source material. No cases are mentioned in the regulations or the compilation notes. There is no indication that any provision has been challenged in court on grounds of ultra vires, unreasonableness, or constitutional invalidity. The low penalty amount and the narrow scope of the regulations likely mean that disputes are resolved administratively or through the licensing process under the Act rather than through the courts. It is possible that there have been prosecutions under r.10 in the Magistrates Court of Western Australia, but if so, they have not resulted in published appellate decisions. The absence of litigation history may also reflect that the regulations are so prescriptive that compliance is relatively straightforward, or that the department prefers to use other tools (such as licence suspension under the Act) rather than prosecute for minor regulatory breaches. The regulations do not confer private rights of action; only the CEO can prosecute. Therefore, there is no avenue for a patient or competitor to sue for a breach of the regulations. Any litigation that touches on these provisions would likely be indirect , for example, a judicial review of a licensing decision under the Act, or a negligence claim that references the regulations as evidence of a standard of care. The regulations might be used in civil proceedings as an industry standard, but they are not a statutory cause of action. The lack of litigation history is not unusual for subordinate legislation that is purely administrative and penal in nature. It means the meaning of key phrases (e.g., "effectively managed" animals, "constant attention" to food hygiene, "at all times present") has not been tested or clarified by a court. This creates uncertainty for licence holders who must interpret these standards without judicial guidance. The CEO's approval of qualifications under r.6(a) is a discretionary power that could be subject to judicial review if exercised unreasonably, but no such challenge has been reported.

Several provisions contain traps for the unwary. The most significant is r.6(a): the director of nursing or an approved substitute must be present and in charge "at all times". This is an absolute requirement with no exception for short absences (e.g., to attend a meeting off-site, take a break, or handle an emergency). If the director of nursing leaves the premises for even a few minutes and no authorised substitute is present, the licence holder is in breach. The "approved" person must hold qualifications approved by the CEO; blanket approval of certain roles is unlikely. A hospital could be caught out during shift changes, lunch breaks, or if the director calls in sick and no backup is immediately available. The food timing provisions in r.6(c)(vii) are also treacherous. Breakfast cannot be served before 7.00am, the midday meal not before 12.00 noon, and the evening meal not before 5.00pm. If the evening meal is served before 5.30pm, the hospital must also serve supper between 7.30pm and 9.00pm. This means a hospital that serves dinner at 5.10pm must provide a second evening meal (supper) two hours later. This almost doubles the evening food service workload. A hospital that serves dinner at 5.30pm or later can skip supper. The line between 5.00pm and 5.30pm is critical. The menu repetition rule at r.6(c)(iv) forbids a repeat of a particular menu within fewer than 4 weeks. This means a hospital cannot simply cycle a few weekly menus; it needs at least 28 different menus per meal period. For a hospital with a short average length of stay, this may be unnecessary and wasteful. The puree diet requirement at r.6(c)(vi) mandates that components be "prepared and served as individual food items". This means blended items must not be mixed together into a single puree; each component must be separately pureed and presented individually, increasing kitchen labour and plate waste. The incineration requirement at r.6(e) mandates that pathological and infectious wastes be incinerated within the hospital premises. This is a significant capital cost and may be impossible for small hospitals in residential areas due to environmental regulations. It also may conflict with modern waste management practices that prefer autoclaving or off-site treatment. There is no alternative method allowed, even if safer or more efficient. The grandfathering provision for nursing assistants in r.7(2) only protects those "continuously employed at a general private hospital for a period of not less than 5 years ending immediately before the coming into operation of these regulations". The relevant date is January 1987. This provision is now essentially spent; any nursing assistant who was employed before 1987 and remained continuously employed would be long retired. New nursing assistants cannot be employed. However, if a hospital misinterprets this and hires a nursing assistant (not an enrolled nurse or registered nurse), they breach r.7(1). The register requirements in r.9 include "marital status". Collecting and recording marital status may be unnecessary for clinical care and could contravene modern privacy principles, but it is still mandatory. The fee schedule uses "number of persons licensed to be accommodated" as the metric for renewal and premises approval. This is not necessarily the number of beds or the actual occupancy; it is the licensed capacity. If a hospital increases its licensed capacity (e.g., by converting single rooms to double), then even if occupancy is low, the renewal fee jumps to the next bracket. There is no mid-cycle adjustment. The replacement licence fee ($255) is relatively high compared to the cost of printing a document, which may discourage hospitals from reporting lost licences. The endorsement fee for mental health ($100) has not changed since 1997, making it a declining real cost, but the approved form requirement means the CEO can change the form at any time without amending the regulations, potentially adding new conditions.

First, the licence holder must ensure the correct fees are paid on time. For new licences, pay the $1,360 grant fee before the CEO issues the licence. For renewals, submit the application by 30 November of the preceding year and pay the applicable renewal fee based on the number of persons licensed to be accommodated (Schedule 1 item 2). The fee must be paid before the CEO renews the licence. Keep a copy of the current licence and ensure it is not lost or damaged; if it is, pay $255 for a replacement. If the hospital seeks to admit patients under the Mental Health Act 1996, apply for an endorsement in the CEO-approved form and pay an additional $100 (r.4A). For new premises or changes to premises, pay the approval fee under r.5 before approval is granted. The operational compliance checklist must cover each sub-paragraph of r.6, r.7, r.8, and r.9. For staffing (r.6(a)), maintain a roster that ensures the director of nursing or an approved alternate is physically present on the premises 24/7. Identify a person holding qualifications approved by the CEO and ensure that person is always available to take charge if the director of nursing is absent. The CEO's approval may need to be obtained in writing for specific individuals. For animals (r.6(b)), adopt a policy that any animal brought onto premises must be effectively managed (leashed or contained, cleaned up after) and must not cause a nuisance or health risk. Have a process for staff and visitors to report concerns. For food (r.6(c)), implement a documented food safety and nutrition plan. Ensure menu cycles are at least 28 days long with no repetition within that period. Develop standard portion sizes for each menu item and use them as a guide for preparation and ordering. For pure diets, train kitchen staff to puree each food component separately and plate them as individual items (e.g., a blob of pureed chicken separate from pureed carrots). Schedule meal times strictly: breakfast no earlier than 7am, midday meal no earlier than 12 noon, evening meal no earlier than 5pm. If the evening meal is served before 5.30pm, add a supper service between 7.30pm and 9pm. Have a process to provide fresh fruit or fruit juice daily to each patient. Accommodate therapeutic and special diets individually. For waste (r.6(d) and (e)), provide an adequate number of suitable refuse receptacles for general waste. For pathological and infectious waste, have dedicated containers and an on-site incinerator facility. This may require installation, maintenance, and compliance with environmental regulations. Consider seeking an alternative disposal method if on-site incineration is not feasible, but note that the regulation does not permit alternatives; a breach may only be avoided if the CEO approves a different method under some other provision (not in these regulations). For staffing qualifications (r.7), audit all nursing staff to ensure they hold current registration as a registered general nurse, registered psychiatric nurse, or enrolled nurse. Do not employ any nursing assistant who does not meet the grandfathering criteria (which are effectively time-expired). Maintain records of qualifications and registration. For staff accommodation (r.8), if there are staff living on premises, provide self-contained accommodation (i.e., with private cooking, bathroom, and living space). For non-resident staff, provide suitable change rooms, toilets, showers, lockable lockers, and a dining room. Ensure the facilities are adequate for the number of staff on shift. For record-keeping (r.9), maintain a patient register with all required fields (admission date, full names, DOB, sex, home address, marital status, referring doctor/nurse, discharge/death date). Maintain a medical history record for each patient including condition on admission, diagnosis, and daily notes on nursing care and medical treatment. Store these records securely and retain them as required by the Act or other laws (the regulations do not specify retention periods). Finally, ensure that all staff are aware of these obligations. The licence holder should conduct regular internal audits against each regulation. If a breach is identified, take immediate corrective action. Since there is no due diligence defence and no warning requirement, even a single incident (e.g., a momentary absence of the director of nursing) is technically an offence. The low penalty does not mean compliance is optional; reputational and licensing consequences under the Act may be far more severe. Consider negotiating with the CEO for any flexibility, particularly regarding the incineration requirement or the 24/7 presence rule, as the regulations contain no express exemption power.