Private Hospitals and Health Services Act 1927

The Act organises private hospital regulation around a small set of repeating concepts: licence, CEO discretion, premises approval, endorsement for mental health detention, private psychiatric hostels as a variant regime, powers to collect information, and sanctions.

Licence (Part IIIA, ss 26A-26E)

• Licence is the statutory authorisation to conduct a private hospital (s 26B(1); definition in s 26A). Licences are conditioned, renewable annually (s 26E(2)), non‑transferable (s 26E(3)), and subject to CEO discretion on grant, conditions and variation (s 26D(2), (4), (7)). The CEO must be satisfied of character, resources and understanding of duties for natural persons, partnerships and bodies corporate (s 26B(2)-(4)). Premises must be approved in advance (s 26C).

CEO powers and discretions

• The CEO is the central administrative actor: granting, imposing terms, revoking, cancelling and ordering remedial work or closure (ss 26D, 26F, 26G). The CEO can also issue guidelines for construction and maintenance of private hospitals (s 26J) and require information from private hospital service providers (s 26S). The CEO’s powers include timing obligations (s 26D(5)) and a duty to consult the Chief Psychiatrist before cancelling mental‑health endorsements (s 26FA(2)).

Endorsement for treating or detaining mentally ill patients

• A private hospital cannot detain or treat a person for mental illness (as defined in the Mental Health Act 2014) unless its licence is endorsed (s 26DA(1)-(2)). The CEO cannot endorse without the Chief Psychiatrist’s recommendation (s 26DA(3A)). Endorsements are conditional and revocable (s 26DA(4); s 26FA).

Private psychiatric hostels

• Part IIIB modifies Part IIIA where three or more socially dependent people with mental illness reside in private premises (definition in s 26P). Part IIIA applies with changes including that the endorsement regime for treatment/detention does not apply (s 26Q(2)(b)), and that regulations may prescribe pension remittance minima and particulars for the Chief Psychiatrist (s 26Q(2)(d)).

Information powers and protections

• Section 26R states permissible purposes for collecting, using and disclosing information (regulation and health‑related research). Section 26S gives the CEO authority to direct private hospital service providers to provide specified information, including personal information, related to hospital, health or psychiatric services, in a specified form and as to historical data (s 26S(1)-(6)). Section 26T protects providers from civil and criminal liability for compliant disclosures and disapplies certain confidentiality and professional ethics duties to the extent described.

Offences, penalties and officer liability

• Offences include operating without a licence, using unapproved premises, carrying out building works without CEO approval, failure to comply with licence conditions (s 26K; s 26L), obstructing inspections (s 11), failing to obey remedial orders (s 26G(2)). Penalty levels are specified in the text (see ss 11, 26DA(1), 26G(2), 26K, 26L). Section 26M applies Criminal Code s 39 to create officer liability for listed offences.

Statutory instruments and review

• Regulations may prescribe fees, registers, staffing, patient separation for infectious disease, penalties up to $500 and exemptions (s 26O(2)). The Governor may make regulations (s 26O(1); s 37) and may exempt particular hospitals (s 26O(3)). The Minister must review the Act and lay a report every five years after 1991 (s 38).

Defined cross‑references

• Key terms are defined by reference to other statutes (s 2(1)): CEO (Health Legislation Administration Act 1984 s 3), hospital (Health Services Act 2016 s 8), health service (Health Services Act 2016 s 7), medical practitioner (Health Practitioner Regulation National Law (WA)), Chief Psychiatrist and mental illness (Mental Health Act 2014 s 4). The Act therefore sits in a statutory web and delegates interpretive weight to those other instruments.

Together, these concepts make a central regulator‑driven, condition‑based licensing model where safety, facility standards, staffing and particular clinical regimes (notably mental health detention) are regulated through licence conditions, CEO orders and regulations, rather than a purely market or accreditation model. The Act combines command‑and‑control safety levers with information‑gathering and administrative remedy options.

Primary affected parties and the statutory consequences for each are set out in the text.

Private hospital service providers and prospective operators

• Any natural person, firm or body corporate who conducts or seeks to conduct a private hospital must obtain and maintain a licence (s 26B(1); s 26K(a)). Applicants must prove age, character, fitness, material and financial resources, and an understanding of duties (s 26B(2)-(4)). Licence holders face ongoing compliance obligations, possible conditions on numbers and types of patients or staff (s 26D(3)), annual renewal (s 26E(2)), non‑transferability (s 26E(3)), and exposure to cancellation for non‑fitness, unsuitable premises, non‑compliance with the Act or orders (s 26F(1)). Failure to comply with licence terms is an offence (s 26L).

Bodies corporate and officers

• Where an offence listed in the table to s 26M occurs, officers of the body corporate can be criminally liable under Criminal Code s 39 as applied by s 26M. Section 26B requires disclosure and satisfaction that persons concerned in management are fit and of good character (s 26B(3)-(4), s 26B(4)(a)). Licence conditions and revocation powers therefore reach corporate governance and senior individuals.

Patients and residents

• Patients in private hospitals are subject to oversight under s 10 for inspection and, on complaint, medical examination by an authorised medical practitioner (s 10(1)(c); s 10(2) sets notice and participation requirements). For mentally ill persons, detention in a private hospital is permitted only where a licence is endorsed under s 26DA(1); the endorsement process links to the Mental Health Act 2014 and Chief Psychiatrist input (s 26DA(2), (3A), s 26FA).

Private psychiatric hostel residents and proprietors

• Where three or more socially dependent persons with mental illness live in private premises, the provider is a private psychiatric hostel and the modified Part IIIA applies (s 26P; s 26Q). The endorsement requirement for detention does not apply to hostels (s 26Q(2)(b)), but regulations may control remittance of pension income and require returns to the Chief Psychiatrist (s 26Q(2)(d)).

Public bodies and officials

• The CEO (as defined in s 2(1)) is empowered to make licensing, inspection, closure and information decisions (ss 26D, 10, 26G, 26S). The Minister retains control of general administration (s 5) and hears licence appeals (s 26D(6)). The Chief Psychiatrist has a defined role making recommendations for endorsements (s 26DA(3A)) and must be consulted in endorsement cancellations (s 26FA(2)).

Funders and patients unable to pay

• The Minister, with Treasurer approval for certain payments, may subsidise interest costs for approved projects of religious or charitable organisations and make subsidies for patients unable to pay fees (s 7A). The Governor may make grants from appropriated moneys to licensed private hospitals, conditional on compliance with regulations and CEO directions (s 26I(1)-(2)). These provisions affect the finances and incentive structure for private non‑profit operators.

Other regulators and service models

• The Act explicitly excludes public hospitals defined under the Health Services Act 2016 (s 2(1) definitions) and shields nursing homes certified under the Commonwealth Aged Care Act 1997 from some Part IIIA licensing requirements (s 26K exceptions). Therefore private aged‑care providers certified under the Aged Care Act operate under a different compliance overlay for some matters.

Third‑party data controllers

• Private hospital service providers are obligated to supply information under a CEO direction (s 26S(5)), including historical personal information (s 26S(6)). They are protected from legal action for compliance with such directions (s 26T). The direction may be targeted to named providers, classes of providers, or all providers (s 26S(7)).

Who pays and who decides

• The Act designates the State (Governor, Minister, Treasurer) as the source of grants and subsidies (s 7A; s 26I(1)). The CEO is the principal decision maker for licencing and enforcement (multiple provisions). The Minister retains oversight and receives appeals (s 26D(6); s 5). The Governor makes regulations and may exempt hospitals (s 26O(1), (3)). The Chief Psychiatrist is a statutory advisor for mental‑health endorsement matters (s 26DA(3A); s 26FA(2)).

The statute thus affects the conduct, financing, governance and information practices of private hospital operators, officers of corporate providers, residents and patients, and the administrative apparatus of the Department and relevant statutory officers.

The Act imposes duties on licence applicants and licence holders, and it creates procedural rights such as appeal and review. Below are the key operational duties, regulatory rights and administrative safeguards the text specifies.

Duties imposed on licence applicants and licence holders

• To hold a licence to conduct a private hospital (ss 26B(1); 26K(a)). The prima facie duty is not to conduct without a licence; s 26K creates the specific offence of conducting or holding out that one conducts a private hospital unless licensed or exempt under the Aged Care Act condition.
• To ensure premises are approved for use as a private hospital before operating (s 26C; s 26K(b)). Building, alteration or extension requires CEO approval (s 26K(c)).
• To supply additional information and verification as requested by the CEO with an application; applications and licences must be in the CEO’s approved form (s 26N(1)-(2)).
• To comply with licence conditions that may specify maximum patient numbers, categories of patients, staffing numbers and categories, and required periods/times of care (s 26D(3)(a)-(b)).
• To comply with remedial orders to remedy building defects or faulty equipment and to obey closure orders (s 26G(1)-(4)). Failure to comply with remedial orders is an offence (s 26G(2)).
• To comply with directions to provide information from the CEO under s 26S(1) where the information relates to hospital, health or psychiatric services provided to individuals and the CEO is satisfied the collection is consistent with the statutory purposes (s 26S(3)). Directions can cover historical information (s 26S(6)); providers must comply (s 26S(5)).

Duties on other actors

• The Chief Psychiatrist must recommend before the CEO can endorse a licence to admit and detain involuntary patients under the Mental Health Act 2014 (s 26DA(3A)); the CEO must consult the Chief Psychiatrist before cancelling such an endorsement (s 26FA(2)).
• The Minister must conduct a statutory review of the Act every five years (s 38(1)-(2)), consider specified matters, and lay the report before Parliament.

Administrative rights and procedural safeguards

• Applicants refused a licence can appeal to the Minister within 30 days (s 26D(6)). Licence cancellations or non‑renewals can be the subject of a review application to the State Administrative Tribunal (s 26H(1)). For proposed cancellations the CEO must serve a notice of intention to cancel and a summary of reasons and provide a reasonable opportunity to be heard (s 26F(2); s 26FA(2) applies to endorsements).
• Where a licence is cancelled or refused and the licence holder applies for review, the CEO may permit a person to continue conducting the hospital pending review, subject to terms and conditions (s 26H(3)). That is a statutorily authorised stay of enforcement by administrative discretion.
• The CEO must adhere to statutory timeframes for notification of decisions on licence applications: 3 months for applications in respect of premises not already approved, 30 days where premises are approved (s 26D(5)(a)-(b)). The timeframes are mandatory notice windows for the CEO to notify an applicant of a decision.
• Providers directed to disclose personal or clinical information have immunity from civil or criminal liability for such disclosures and are not considered in breach of confidentiality or professional ethics for complying (s 26T).

Rights not to be exercised or limitations

• Licences are explicitly non‑transferable (s 26E(3)), which limits sale‑and‑transfer strategies for operators and affects corporate transaction design.
• Regulations can exempt private hospitals from regulatory obligations temporarily or generally (s 26O(3)), and the Governor may make regulations conferring broad discretions (s 37). Providers have no guaranteed right to a particular regulatory outcome beyond the appeal and review pathways.

Penalties and criminal liability

• The Act establishes penalty levels for contraventions and applies Criminal Code officer liability for certain offences (s 26M). Individuals and officers face specified monetary penalties for obstruction (s 11, $200), failing to comply with order (s 26G(2), $2,000), unlicensed operation or unapproved premises and unapproved building work (s 26K, $5,000), treating mentally ill patients without endorsement (s 26DA(1), $5,000), and failure to comply with licence conditions (s 26L, $1,000). Regulations may create additional penalties up to specified maxima (s 26O(2)(e); s 37(3)(e)).

The statutory design places operational obligations on providers, inspection and closure duties on the CEO, procedural protections for applicants and licence holders through notice and review, and indemnities for providers complying with information directions. These duties and rights create a compliance architecture that reaches governance, building standards, staffing, record‑keeping and the capacity to share clinical and personal data with the regulator for regulatory and research purposes.

The Act sets out a mix of civil/administrative remedies (licence variation, revocation, closure orders), criminal fines, and officer liability. Enforcement is concentrated in the CEO’s administrative toolbox with statutory backstops for criminal sanctions where behaviour contravenes express offences. Below are the concrete enforcement mechanisms and penalty amounts provided by the text.

Primary enforcement levers: administrative orders and closure

• The CEO may order remedial works where building work or equipment is unsafe or unsatisfactory and specify a timeframe for compliance (s 26G(1)). Failure to comply with such an order is an offence carrying a penalty of $2,000 (s 26G(2)). If a licence holder does not comply within the specified time, the CEO may order closure of the private hospital even if criminal proceedings have not commenced or been completed (s 26G(3)). The CEO may also order immediate closure where deemed necessary for safety (s 26G(4)).

Licensing sanctions

• The CEO may cancel or refuse to renew a licence under specified grounds concerning fitness, unsuitability of premises, non‑compliance with the Act or licence conditions, or failure to carry out an order under s 26G (s 26F(1)). Before cancellation, the CEO must serve a notice of intention to cancel and provide a reasonable opportunity to be heard (s 26F(2)). Endorsements under s 26DA may also be cancelled by the CEO on specified grounds; the CEO must consult the Chief Psychiatrist before cancelling (s 26FA(1)-(2)).

Criminal offences and penalties

• Section 26K creates several core offences with a penalty of $5,000:
  • Conducting or managing, or holding out that one conducts or manages, a private hospital unless licensed or (in the case of a nursing home) certified under Part 2.6 of the Commonwealth Aged Care Act 1997 (s 26K(a));
  • Conducting or managing, or holding out that one conducts or manages, a private hospital unless the premises are approved as private hospital premises (s 26K(b));
  • Building, altering or extending a private hospital without CEO approval (s 26K(c)).
• Section 26DA(1) imposes a $5,000 penalty for conducting or managing a private hospital where a person is detained for treatment of mental illness unless the licence is endorsed.
• Section 26L provides a $1,000 penalty for failure to comply with a licence term or condition.
• Section 11 creates a small penalty ($200) for obstructing authorised persons under s 10 or wilfully misleading them.

Offences attracting officer liability

• Section 26M applies Criminal Code s 39 (criminal liability of officers of bodies corporate) to offences listed in the table in s 26M: s 26DA(1), s 26G(2), s 26K (the group of offences), and s 26L. That provision exposes directors and officers of corporate providers to individual criminal liability alongside corporate sanctions where the statutory conditions under the Criminal Code are met.

Information and disclosure enforcement

• Section 26S(5) makes compliance with a CEO direction to provide information mandatory (the private hospital service provider "must comply with the direction"). There is no separate penalty stated in s 26S for non‑compliance, but s 26T gives immunity for compliant disclosure; non‑compliance would likely be dealt with through licence conditions or cancellation powers (ss 26D, 26F) rather than a specific named fine in the text.

Regulatory penalties and exemptions

• Regulations may prescribe fees for applications and renewals (s 26O(2)(a)), provide for registers and staffing (s 26O(2)(b)-(c)), and prescribe penalties not exceeding $500 for a breach of any regulation (s 26O(2)(e)). Section 37 also authorises regulations to impose penalties not exceeding $50 (s 37(3)(e)), though later amendments may have raised maxima in s 26O for particular matters.

Appeal and review procedures as enforcement limits

• Administrative enforcement is constrained by appeal and review rights: refusal to grant a licence may be appealed to the Minister within 30 days (s 26D(6)); cancellation or non‑renewal can be reviewed by the State Administrative Tribunal (s 26H(1)). For pending reviews, the CEO may permit operation under conditions (s 26H(3)). The procedural requirement to serve notice and permit hearing before cancellation (s 26F(2)) is a statutory check on CEO action.

Other enforcement features

• The Governor may make grants conditional on licence holder compliance with regulations and CEO directions (s 26I(2)); failure to comply can therefore trigger financial consequence by way of withdrawing grant eligibility.
• Section 35A protects persons from tort claims for things done in good faith under the Act but preserves State liability (s 35A(1)-(3)), which influences enforcement risk assessment for officers and authorised persons.

In short, the Act combines administrative closure and licensing powers with defined criminal fines and officer liability. The CEO is the primary enforcer, with powers to close immediately where safety demands it and to cancel licences following procedural notice. Penalties are predominantly monetary and modest by company standards, but officer liability under the Criminal Code raises the potential for significant personal exposure in the most serious contraventions.

The Act is intentionally cross‑referential. It borrows definitions from contemporary health legislation, defers to specialist statutory bodies for mental health matters, and carves out interactions with Commonwealth aged‑care certification. The statutory interactions and their operational implications are set out below with section pointers.

Definitions and cross‑statutory mapping

• The Act delegates key definitions to other statutes: CEO is defined by reference to s 3 of the Health Legislation Administration Act 1984 (s 2(1)). The terms health service and hospital are defined by the Health Services Act 2016 (s 2(1) referring to Health Services Act 2016 ss 7-8). Medical practitioner is defined by reference to the Health Practitioner Regulation National Law (WA) (s 2(1)). The Chief Psychiatrist and mental illness are defined by the Mental Health Act 2014 (s 2(1)). These definitions align administrative responsibilities and clinical terms with specialist statutes and ensure coherent cross‑reference across the WA health legislative framework.

Mental Health Act 2014

• The Act explicitly subjects private hospitals or parts of private hospitals that are authorised hospitals under the Mental Health Act 2014 to that Act (s 4). The endorsement regime in s 26DA to permit detention of involuntary patients directly references the Mental Health Act 2014: licences are endorsed to allow admission and detention under that Act (s 26DA(2)); the Chief Psychiatrist’s recommendation is required before endorsement (s 26DA(3A)). Cancellation of endorsements requires CEO consultation with the Chief Psychiatrist (s 26FA(2)). These provisions allocate specialist decision rights to the Chief Psychiatrist and ensure the Mental Health Act governs involuntary detention.

Health Services Act 2016

• By adopting the Health Services Act 2016 definitions for hospital and health service (s 2(1)), the Act aligns the category of "private hospital" with the broader state health services architecture. This affects whether a facility is classed public or private (s 2(1) cross‑references and exceptions in that definition), and therefore which duties and funding arrangements apply.

Commonwealth Aged Care Act 1997

• Section 26K contains specific exceptions for nursing homes that are certified residential care services under Part 2.6 of the Aged Care Act 1997. In particular, some licensing, premises approval and building‑work offences do not apply to nursing homes where the conduct or management of the nursing home is a certified residential care service. This creates a legal interface for aged‑care providers operating in both Commonwealth and State regulatory regimes.

Criminal Code

• Officer liability under Criminal Code s 39 is applied to certain offences under the Act via s 26M. That means statutory corporate offences listed in the table can result in individual criminal liability consistent with the Criminal Code regime.

Health Practitioner Regulation National Law (WA)

• The definition of medical practitioner is taken from that National Law (s 2(1)), which ensures that regulatory expectations about who can carry out medical examinations or clinical responsibilities align with the national registration and disciplinary framework.

Information law and ethics

• Section 26S permits the CEO to direct providers to give information, including personal information, and s 26T immunises providers from civil and criminal liability for disclosures in compliance with such directions. This interacts with privacy law and professional confidentiality duties by statutorily displacing certain duties in respect of directed disclosures. The Act, however, limits the CEO’s direction to information that relates to hospital, health or psychiatric services provided to individuals and that is consistent with purposes set out in s 26R. The Act does not expressly mention the Privacy Act 1988 (Cth) or the WA Information Commissioner’s frameworks, but the statutory immunity in s 26T will operate to override common law or professional confidentiality in the circumstances described.

Regulations and Governor powers

• The Governor’s powers to make regulations (ss 26O(1); 37(1)) create an interaction layer: the Act authorises the regulation of fees, registers, staffing, separation of infectious patients and the imposition of small penalties (s 26O(2)). The Governor may also issue exemptions (s 26O(3)), producing situational intersections with business operations, building standards and accreditation.

State Administrative Tribunal and review mechanisms

• The Act’s review path for cancellations and non‑renewals goes to the State Administrative Tribunal (s 26H(1)) following conferral of jurisdiction by prior Acts (compilation notes referencing the State Administrative Tribunal conferral acts). That is an interaction with administrative justice statutory machinery and provides a formal judicial review alternative to Ministerial appeal under s 26D(6) for licence refusals.

Financial support and treasury oversight

• Payments by the Minister for interest subsidies require the Treasurer’s approval (s 7A(a)). Grants by the Governor must be made out of Parliamentary appropriation (s 26I(1)), and are conditional on agreement to conduct the hospital in accordance with regulations and CEO conditions (s 26I(2)). This links the Act to public finance law and cabinet/treasury approval processes.

In practice, these interactions mean private hospital operators must navigate a multi‑statute compliance landscape. Licensing and clinical detention for mental health are explicitly wired into mental‑health specialist regulation; aged‑care certification can create exemption paths; data directions interact with privacy and professional confidentiality frameworks but carry statutory immunity; and administrative remedies and reviews are exercised through the State Administrative Tribunal and ministerial oversight.

The Act has a long legislative history beginning with the Hospitals Act 1927 and has been substantially reworked across decades. The compilation table in the text documents key amendments and reprints. Below are the principal legislative milestones recorded in the statute text and compilation table.

Foundational enactment and early amendments

• Originally enacted as the Hospitals Act 1927, assented 23 December 1927 and commenced 1 January 1928 (compilation table entry for 23 of 1927). The short title subsequently changed through successive amendments to the Hospitals and Health Services Act 1927 and ultimately to the Private Hospitals and Health Services Act 1927 (note under compilation table and s 1 as amended).

1980s and creation of the modern licensing framework

• The Acts Amendment (Hospitals) Act 1985 (No. 53 of 1985) is a turning point: Part IIIA (Private hospitals) was inserted by s 22 of that Act. Sections 26A-26O, which form the core licensing and regulation of private hospitals, were introduced in that 1985 amendment (see notes and the heads of Part IIIA). The Ministerial review requirement (s 38) also dates from the 1985 amendments (s 30 of that amending Act).

1996 mental health and psychiatric hostel reforms

• The Mental Health (Consequential Provisions) Act 1996 (No. 69 of 1996) introduced provisions relating to private psychiatric hostels and mental‑health interfaces. Specifically, s 26DA (endorsement for treatment/detention), s 26FA and Part IIIB (ss 26P-26Q) for private psychiatric hostels were introduced or amended in 1996 (see compilation table entries for 1996 and insertion references in the text). These provisions created the endorsement mechanism and required Chief Psychiatrist involvement for mental‑health detention in private hospitals.

2004-2005 information and SAT jurisdiction changes

• The Health Legislation Amendment Act 2004 and related Acts (No. 61 of 2004; State Administrative Tribunal conferral Acts, No. 55 of 2004) amended the Act to add information powers and State Administrative Tribunal review pathways. Section 26S (CEO directions to give information) and s 26T (no liability for disclosure) are traced to 2004 amendments (see headings in Part IIIC and compilation notes). The conferral of jurisdiction to the State Administrative Tribunal for reviews under s 26H was given effect by State Administrative Tribunal reforms in 2004 (compilation note 6).

2006 machinery and formatting changes

• Machinery of Government changes in 2006 (No. 28 of 2006) updated administrative definitions, CEO references and other technical changes across the Act (see compilation entries and amendments scattered across sections).

2014-2016 consolidations and modernisation

• The Mental Health Legislation Amendment Act 2014 (No. 25 of 2014) and the Health Services Act 2016 (No. 11 of 2016) restructured cross‑statutory definitions, aligning hospital and health service definitions with the Health Services Act 2016 and updating references to the Mental Health Act 2014 for the endorsement regime. Many sections were redrafted or renumbered; for example, the short title was restated in s 1 as the Private Hospitals and Health Services Act 1927. Part IIIC (Information) headings and s 35A (protection from personal liability) were added or revised in the 2016 amendments.

2011-2012 and later reprints

• The Act has been reprinted multiple times (reprints in 1961, 1972, 1993, 1999, and further reprints through 2016). The compilation table records reprints and incremental amendment incorporations.

2023 Directors’ Liability Reform Act

• Section 26M applying Criminal Code s 39 to listed offences appears to be inserted or updated in 2023 by the Directors’ Liability Reform Act 2023 (No. 9 of 2023, Pt 3 Div 48), which applies officer criminal liability to offences listed in the table in s 26M. This is a recent structural change relevant to officer exposure.

Other notable regulatory changes and deletions

• The Act’s schedule and many earlier sections have been deleted over time (numerous "[deleted]" notes), leaving the core current structure focused on licensing, mental health endorsement, information powers, and enforcement. The compilation notes indicate several amendments that were made and some transitional provisions (e.g., machinery of government changes) preserving continuity of functions and acting powers.

Statutory review requirement

• Section 38 requires the Minister to carry out a review of the Act’s operation as soon as practicable after 1 January 1991 and every five years thereafter, with reporting requirements. The compilation table shows many amendments made since 1991, reflecting an active regime of legislative updates and machinery adjustments.

In sum, the modern Act reflects phased changes: the 1985 insertion of a licence regime, 1996 mental‑health and psychiatric hostel integration and Chief Psychiatrist interfaces, 2004 information and SAT changes, 2016 consolidations aligning definitions with later health legislation, and 2023 changes concerning officer liability. The compilation table in the statute text provides the specific amendment instruments and dates for practitioners needing legislative provenance.

The statute text and compilation materials supplied do not record any judicial decisions or case law arising under the Private Hospitals and Health Services Act 1927. The Act itself provides internal administrative review mechanisms:

• Appeals to the Minister against refusal to grant a licence (s 26D(6)).
• Review by the State Administrative Tribunal of licence cancellations or refusals to renew and endorsement cancellations (s 26H(1); s 26FA(2) cross‑refers to s 26F(2) for procedural rights).

The compilation table and other notes list statutory instruments and amendments but do not name court proceedings or reported cases. Because the legislative text references the State Administrative Tribunal jurisdiction and procedures for review, administrative decisions under the Act are intended to be amenable to merits review at the Tribunal level.

Practitioners should therefore treat the primary dispute pathway as administrative review (Ministerial appeal for refusals and SAT review for cancellations/non‑renewals). Any reported litigation, judicial review or appellate decisions interpreting provisions such as the CEO’s discretion, the meaning of "fit and proper person", the operation of s 26S(3) and the limits of data‑collection directions, or the application of Criminal Code s 39 via s 26M to officers, are not contained in the provided statutory compilation. To establish litigation precedents and interpretive authorities, a targeted case search in relevant WA decisions and SAT determinations would be required; none are cited in the text supplied.

Note also that the Minister’s review reports under s 38 must be tabled in Parliament and may contain summaries of operation or referrals to dispute outcomes, but the text does not reproduce such reports or their judicial aftermath. If legal advice or litigation strategy is required, practitioners should search SAT decisions, WA Supreme Court judicial review decisions, and any administrative law records postdating the statutory amendments (notably after the 2004 SAT conferral and 2016 Health Services Act alignment) to obtain interpretive guidance.

The Act contains several provisions that produce non‑obvious practical consequences for operators, investors, clinicians and advisers. The following operational and transactional "gotchas" are grounded in the statutory text.

Non‑transferable licences frustrate ordinary sale mechanics (s 26E(3))

• Licences are explicitly not transferable. This affects M&A and asset‑sale structures: sale of a business or facility will not, by itself, carry the licence to the purchaser. The purchaser must apply for its own licence satisfying the CEO of fitness, character and resources (s 26B). Practitioners should build transitional operating arrangements, CEO‑approved novation mechanisms or parallel licence applications into transaction timetables. Note s 26H(3) allows the CEO to permit operation by a person pending SAT review; it might be used tactically but is discretionary.

Broad CEO discretion with limited statutory constraints (s 26D(2), (4), (7))

• The CEO may impose such terms and conditions "as he thinks fit" (s 26D(2)) and the grant is largely discretionary (s 26D(4)), subject to statutory timeframes for notice of decision (s 26D(5)). The Act requires that applicants satisfy character and resources criteria (s 26B) but otherwise leaves detailed discretion to the CEO. That creates administrative risk and potential variability in licensing outcomes. Applicants should provide comprehensive evidence and be prepared to use the Ministerial appeal (s 26D(6)) or SAT review (s 26H) where appropriate.

Endorsement for mental‑health detention requires Chief Psychiatrist buy‑in (s 26DA(3A))

• The CEO "cannot" endorse without the Chief Psychiatrist’s recommendation. That gives the Chief Psychiatrist a gatekeeping role for facilities seeking to detain involuntary patients under the Mental Health Act 2014. Operators must design clinical, staff and governance arrangements acceptable to that office and ensure reporting lines and quality frameworks compatible with mental‑health standards.

Immediate closure power and modest criminal fines (s 26G(4); s 26G(2))

• The CEO can order immediate closure if the hospital is deemed unsafe (s 26G(4)), and failure to comply with remedial orders triggers a criminal offence with a $2,000 fine (s 26G(2)). Immediate closure can be operationally and financially acute for a provider; although fines are modest, closure can halt revenue and trigger patient‑transfer duties elsewhere.

Information directions can reach historical personal information and come with statutory immunity (ss 26S(6), 26T)

• A CEO direction may require information "obtained by the private hospital service provider before the commencement of this Part" (s 26S(6)), i.e. retrospective data. Providers must comply (s 26S(5)). Section 26T grants statutory immunity from civil and criminal liability and states such disclosures are not breaches of confidentiality or professional ethics (s 26T(a)-(b)). This relief does not eliminate reputational risk or obligations under non‑statutory standards; it does, however, change the legal risk calculus. Practitioners should ensure secure transmission, record retention and privacy‑law mapping when responding.

Aged care certification creates an exemption trapdoor (s 26K)

• Nursing homes that are certified residential care services under the Commonwealth Aged Care Act 1997 are exempt from certain licence/premises/building requirements in s 26K. Providers operating across aged care and private hospital spaces must know which regime applies to particular premises and services. Misclassification may attract the s 26K offences (s 26K penalty $5,000).

Officer criminal liability for listed offences (s 26M)

• Section 26M applies Criminal Code s 39 to specified offences in the Act, exposing officers to individual criminal liability. That is significant for board members and executives because corporate fines are not the only risk; personal culpability can arise where the Criminal Code’s tests are satisfied. Practitioners advising directors should treat listed offences (s 26DA(1), s 26G(2), s 26K, s 26L) as material governance risks.

Limited explicit regulatory penalties for information non‑compliance

• Section 26S requires compliance with directions but does not set out a discrete penalty for non‑compliance. Enforcement would flow through administrative consequences (licence conditions or cancellation) rather than a defined fine under s 26S. That creates some enforcement ambiguity and suggests the CEO’s practical enforcement options sit within licensing power rather than direct monetary sanction under 26S.

Small fixed penalties may be outstripped by operational disruption

• Several penalties in the Act are modest by corporate standards (e.g. $5,000 for serious operational offences, $2,000 for failure to comply with remedial order). However, the real cost of infringement is often operational: forced closure, reputational damage, or withdrawal of State grants (s 26I(2)). Financial modelling and risk assessment must therefore treat closure and licence cancellation as the primary risks, not merely the statutory monetary fines.

Regulatory timeframes but no guaranteed outcome

• The CEO must notify an applicant within 30 days for approved premises and within 3 months for unapproved premises (s 26D(5)). These are procedural constraints but do not guarantee grant; they simply bound notice timing and preserve discretion. Applicants should plan for the maximum 3‑month delay where premises require approval.

Ministerial appeal versus SAT review , different pathways for different decisions (ss 26D(6), 26H)

• Refusals to grant a licence are appealable to the Minister within 30 days (s 26D(6)), whereas cancellations or non‑renewals are reviewable by the State Administrative Tribunal (s 26H(1)). This bifurcation of review routes can affect strategy: a refused applicant has a direct ministerial appeal route, while a cancelled licence holder uses SAT merits review. Recognise the procedural and evidential differences across these forums.

Regulation and exemption power creates uncertain compliance baselines (ss 26O(3), 37(3))

• The Governor can exempt any private hospital from regulations generally or for specified periods (s 26O(3)). Regulations may also require matters to be approved by a specified person or be subject to specified standards (s 37(3)(b)-(c)). These powers can be used to create ad hoc or tailored regulatory treatments; operators should identify whether their facility is subject to standard regulation or any special exemptions and document any such orders in the Gazette.

Taken together, these "gotchas" are practical consequences of the statutory mechanics: licence non‑transferability, CEO discretion, Chief Psychiatrist gatekeeping, immediate closure powers, retrospective data directions with immunity, officer criminal liability and bifurcated appeal routes. Each creates a specific compliance and transactional risk that should be managed explicitly in operational, governance and corporate documentation.

Below is a practitioner‑oriented checklist and procedural roadmap, grounded in the specific sections of the Act, for an operator seeking to open or maintain a private hospital or private psychiatric hostel.

Pre‑application and structuring

• Determine whether the facility is a private hospital, a nursing home or a private psychiatric hostel under s 2(1) and s 26P. If the facility is a nursing home certified under the Commonwealth Aged Care Act 1997, confirm whether exemptions under s 26K apply.
• For private psychiatric hostels (s 26P), note that Part IIIA applies with modifications (s 26Q(1)-(2)). The endorsement regime of s 26DA does not apply to hostels (s 26Q(2)(b)), but regulations may set rules about pension remittance and returns to the Chief Psychiatrist (s 26Q(2)(d)(i)-(ii)).

Application for a licence (s 26B; s 26N)

• Prepare an application in the CEO’s approved form (s 26N(1)). The CEO may require additional information and statutory declarations verifying information (s 26N(2)); prepare supporting documents on character, management team, financial resources and a statement demonstrating understanding of duties under the Act (s 26B(2)-(4); s 26B(3)-(4) for partnerships and bodies corporate).
• Ensure at least one named person in the applicant demonstrates understanding of duties (s 26B(3)(c); s 26B(4)(c)). Where the applicant is a body corporate, vet and document the fitness and repute of all natural persons concerned in management (s 26B(4)(a)).

Premises, staffing and equipment (s 26C; s 26D(3); s 26J)

• Obtain CEO approval for premises: the CEO must be satisfied that proposed premises are suitable (s 26C). Applications for premises not yet approved must expect longer notice periods (s 26D(5)(a) , 3 months). For already‑approved premises, the CEO must notify within 30 days (s 26D(5)(b)).
• Ensure staffing and equipment arrangements meet anticipated licence conditions: licence conditions can specify maximum patient numbers and categories, and required numbers/categories of nursing and other staff and times when care must be available (s 26D(3)). Align facility construction and maintenance with guidelines the CEO may issue under s 26J. The CEO can adopt Standards Australia, BSI or other bodies by reference.

Endorsement for mental‑health detention (if applicable) (s 26DA; s 26FA)

• If the facility intends to receive or detain involuntary mental‑health patients under the Mental Health Act 2014, apply for an endorsement under s 26DA. The CEO cannot endorse unless recommended by the Chief Psychiatrist (s 26DA(3A)). Prepare clinical governance, restraint/seclusion policies, staffing ratios and reporting systems expected by the Chief Psychiatrist.
• Be aware that endorsements can be conditional (s 26DA(4)) and can be cancelled (s 26FA(1)). The CEO must consult the Chief Psychiatrist before cancelling (s 26FA(2)). Document systems to demonstrate ongoing compliance with the Mental Health Act and relevant conditions.

Regulatory fees and renewals (s 26O(2)(a); s 26E(2))

• Budget for application and renewal fees as prescribed in regulations (s 26O(2)(a)) and plan for annual renewal processes (s 26E(2)). Confirm current fee schedules in the applicable regulations and pay attention to expiry dates.

Construction, alterations and approvals (s 26K(c); s 26J)

• Obtain CEO approval for building work, alterations and extensions (s 26K(c)). Consult s 26J guidelines and incorporate reference standards where applicable. Failure to secure approval before construction is an offence (s 26K(c) penalty $5,000).

Licence conditions and compliance systems (s 26D(2)-(3); s 26L)

• Design and maintain compliance systems that map licence conditions to operational processes. Because conditions may set staff categories, numbers and times, implement roster, credentialing and training systems to demonstrate compliance. Failure to comply with licence terms is an offence (s 26L, penalty $1,000). Maintain auditable records.

Responding to CEO orders and inspections (ss 10, 26G)

• Cooperate with inspections by authorised persons (s 10). For medical examinations under s 10(1)(c), the CEO’s complaint threshold and notice to the patient’s medical practitioner and licence holder are procedural safeguards (s 10(2)). Avoid obstructing authorised persons; obstruction is an offence with a $200 penalty (s 11).
• If the CEO issues remedial orders under s 26G(1), comply within the specified timeframe. If unsafe conditions require immediate closure, the CEO may order closure forthwith (s 26G(4)). Have contingency plans for patient transfer and communications in place.

Information directions and privacy (ss 26R, 26S, 26T)

• Be prepared to comply with CEO directions to provide information (s 26S(1)). Directions must relate to hospital, health or psychiatric services and be consistent with the purposes in s 26R (s 26S(3)). Directions can be to one or more named providers or classes (s 26S(7)) and can require historical information (s 26S(6)). The direction may specify form and class‑based content (s 26S(4)). Complying with such directions is mandatory (s 26S(5)).
• When disclosing pursuant to a direction, note s 26T immunises the provider from civil and criminal liability for the disclosure and states it is not to be regarded as breach of confidentiality or professional ethics (s 26T(a)-(b)). Nonetheless, providers should retain records of directions received and disclosures made, use secure transfer mechanisms and document legal advice where appropriate.

Governance and officer risk management (s 26M)

• Because s 26M applies Criminal Code s 39 to specified offences, boards and senior officers should have governance systems, compliance reporting, internal audits and liability insurance aligned with the Act’s offences. Board packs should include licensing status, remedial orders, incident reports and compliance certificates.

Appeals, reviews and notification procedures (ss 26D(5)-(6); 26F(2); 26H)

• Track CEO decision timelines: 30 days for premises already approved and 3 months for premises not approved (s 26D(5)). If refused, lodge an appeal to the Minister within 30 days (s 26D(6)). If facing cancellation or non‑renewal, prepare for SAT review (s 26H(1)); ensure procedural fairness by responding to any notice of intention to cancel and exercising the right to be heard (s 26F(2)).

Grant and subsidy conditions (ss 7A, 26I)

• If seeking State grants or subsidies, be aware that payments may be conditioned on conducting the private hospital in accordance with regulations and CEO directions (s 26I(2)). For the Minister’s payments under s 7A, Treasurer approval is required for certain interest subsidies (s 7A(a)). Ensure documentation and compliance with grant conditions.

Record keeping and registers (s 26O(2)(c))

• Regulations may require keeping registers containing prescribed information (s 26O(2)(c)). Maintain register systems and designate responsible officers to respond to information requests and regulatory examinations.

Insurance and indemnities

• Protect against operational interruptions. Note that s 35A protects authorised persons from tort liability for things done in good faith under the Act but preserves State liability (s 35A(1)-(3)). Providers should not assume the same protection; they remain exposed to civil claims except where the Act grants immunity for disclosures under s 26T.

Periodic statutory review and keeping policy current (s 38)

• The Minister must review the operation of the Act every five years and lay a report in Parliament (s 38). Operators should monitor these reviews as they can presage regulatory or statutory change that impacts obligations and funding.

Practical checklist summary

• Confirm classification of premises and services (private hospital, nursing home, psychiatric hostel).
• Prepare CEO form application with verified supporting documents (s 26N).
• Secure premises approval and plan for CEO inspections (s 26C; s 10).
• Obtain any required mental‑health endorsement with Chief Psychiatrist engagement (s 26DA).
• Ensure building approvals for any works (s 26K(c)).
• Implement staffing and clinical governance to match licence conditions (s 26D(3)).
• Maintain records, registers and be ready to respond to CEO directions for information (ss 26O(2)(c); 26S).
• Be ready to appeal or apply for review in the statutory timeframes (s 26D(6); s 26H(1)).
• Incorporate non‑transferability and officer liability considerations into transactional and governance planning (s 26E(3); s 26M).

Adopting this stepwise approach, with attention to the specific sections cited, will position an operator to meet the Act’s licensing, operational, information and governance obligations.