Medical Practitioners Registration Act 1996
An Act to provide for the registration of medical practitioners, the regulation of the practice of medicine, the repeal of the Medical Act 1959 and for related purposes
[Royal Assent 27 May 1996]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Medical Practitioners Registration Act 1996 .
This Act commences on a day to be proclaimed.
(1) In this Act, unless the contrary intention appears –applicant means a person who submits an application to the Council;application means an application to be registered as a medical practitioner;approved means approved by the Council;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004][Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] AMC means the body incorporated in the Australian Capital Territory under the name "Australian Medical Council Incorporated";[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] assessment means an assessment carried out by an assessment committee;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] assessment committee means a committee established under section 11(1)(a) ;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] business address means the address that a medical practitioner uses for the purposes of his or her practice;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] certificate of registration means a certificate issued by the Council under section 31 , 39 or 42 ;committee means a committee established by the Council under section 11 ;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] complaint includes part of a complaint;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] contact address means an address, other than a business address, at which a medical practitioner may be contacted by the Council;[Section 3 Subsection (1) amended by No. 2 of 2007, s. 6, Applied:17 Apr 2007]Council means the Medical Council of Tasmania;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004][Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] defendant means the registered medical practitioner, or former registered medical practitioner, who is the subject of a formal inquiry;financial year means the 12 month period ending on 30 June in any year;foreign medical law means a law of a jurisdiction outside this State relating to the registration, licensing or enrolment of medical practitioners;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] formal inquiry means proceedings under Division 2 of Part 4 ;functions includes duties;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] Health Complaints Commissioner means the person for the time being holding or acting in the appointment referred to in section 5 of the Health Complaints Act 1995 ;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] informal inquiry means proceedings under section 49D ;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] inspection means an inspection carried out by a person holding an appointment under section 58 ;interim certificate of registration means an interim certificate of registration issued by the Registrar under section 25 ;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] investigation means an investigation into a complaint carried out under Subdivision 2 of Division 1A of Part 4 ;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] investigator means a person or committee appointed by the Council to carry out an investigation;[Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] legal practitioner means an Australian legal practitioner;medical practitioner means a person who practises medicine;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] medical registration authority means a body established under the law of another State or a Territory of the Commonwealth, or of New Zealand, having functions similar to the functions of the Council;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] medical services provider means a partnership, corporation or other entity that provides medical services or causes or allows medical services to be provided in its name or on its behalf;member means a member of the Council and includes the President;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] nominal removal means making an entry in the register about an unregistered person to the effect that if the person's name had in fact been in the register at the relevant time it would have been removed;non-practising registration means registration under section 22 ;notice means notice in writing;practise means practise medicine;practising registration means registration under section 19 , 20 or 21 ;President means the President of the Council;[Section 3 Subsection (1) amended by No. 18 of 2004, s. 4, Applied:01 Sep 2004] professional premises means the place at or from which a medical practitioner practises, whether it be –(a) a building; or(b) a tent or other demountable structure; or(c) a car, caravan or other vehicle;register means the Register of Medical Practitioners kept by the Council under section 33 ;registered means registered under this Act;registered medical practitioner means a person who is registered as a medical practitioner;Registrar means the Registrar of the Council appointed under section 12 ;report includes publish;Secretary means Secretary of the Department;specified means specified in writing by the Council;Tribunal means the Medical Complaints Tribunal established under section 50 .(2) [Section 3 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 3 Subsection (2) omitted by No. 18 of 2004, s. 4, Applied:01 Sep 2004] . . . . . . . .(3) Unless the contrary intention appears, the expressions registered medical practitioner, legally-qualified medical practitioner and duly qualified medical practitioner in any Act or instrument means a registered medical practitioner within the meaning of this Act.
This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
PART 2 - Medical Council of Tasmania
Division 1 - The Council
(1) [Section 5 Subsection (1) amended by No. 18 of 2004, s. 5, Applied:01 Sep 2004] The Medical Council of Tasmania continued in existence by section 4 of the Medical Act 1959 is continued as a body corporate with perpetual succession.(2) The Council may –(a) acquire, hold, dispose of and otherwise deal with property; and(b) sue and be sued in its corporate name.
(1) The Council consists of –(a) 9 registered medical practitioners nominated by the Minister; and(b) [Section 6 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] one Australian lawyer, of not less than 10 years' standing, nominated by the Minister; and(c) [Section 6 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] one person, who is not a medical practitioner or Australian lawyer, nominated by the Minister to represent the interests of consumers of medical services.(2) The members are appointed by the Governor.(3) The Governor may appoint a member referred to in subsection (1) (a) as President.(4) [Section 6 Subsection (4) omitted by No. 18 of 2004, s. 6, Applied:01 Sep 2004] . . . . . . . .(5) Schedule 1 has effect with respect to membership of the Council.(6) Schedule 2 has effect with respect to meetings of the Council.(7) [Section 6 Subsection (7) inserted by No. 18 of 2004, s. 6, Applied:01 Sep 2004] Except as otherwise provided by this Act, the Council may determine its own procedure.
Division 2 - Functions, powers and objectives
The Council has the following functions:(a) to administer the scheme of registration under Part 3 ;(b) to supervise the practice of medicine in this State;(c) [Section 7 Amended by No. 18 of 2004, s. 7, Applied:01 Sep 2004] to examine complaints and, as necessary, refer them to the Tribunal;(d) to prosecute offences against this Act;(e) to monitor the standard and provision of medical services in this State;(f) to monitor standards of medical education and training;(g) to advise the Minister on matters relating to this Act;(h) such other functions as may be imposed on the Council by this or any other Act or as may be prescribed.
The Council has power to do all things necessary or convenient to be done in connection with the performance of its functions and, in particular, has power to –(a) [Section 8 Amended by No. 18 of 2004, s. 8, Applied:01 Sep 2004] share information with medical registration authorities, the AMC and other relevant bodies; and(b) publish and distribute information concerning this Act to registered medical practitioners and other interested persons; and(c) support medical education and training; and(d) [Section 8 Amended by No. 18 of 2004, s. 8, Applied:01 Sep 2004] hold or arrange examinations; and(e) provide counselling services for registered medical practitioners; and(ea) [Section 8 Amended by No. 18 of 2004, s. 8, Applied:01 Sep 2004] be a member of any national or other body, program or forum concerned with medical practitioners; and(eb) [Section 8 Amended by No. 18 of 2004, s. 8, Applied:01 Sep 2004] participate in the establishment of a body, program or forum of the kind referred to in paragraph (ea) ; and(f) do anything incidental to any of its powers.
The Council must perform its functions and exercise its powers under this Act so as to –(a) ensure that medical services provided to the public are of the highest possible standard; and(b) ensure that persons practise medicine according to the highest professional standards; and(c) guard against unsafe, incompetent and unethical medical practices.
[Section 10 Substituted by No. 18 of 2004, s. 9, Applied:01 Sep 2004](1) The Council may delegate any of its functions or powers, other than this power of delegation, to a member of the Council, the Registrar or a committee.(2) The Registrar may, with the Council's approval, delegate any of the Registrar's functions or powers to another employee of the Council.
Division 3 - Miscellaneous
[Section 11 Subsection (5) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 11 Substituted by No. 18 of 2004, s. 10, Applied:01 Sep 2004](1) The Council may from time to time establish –(a) assessment committees to assess whether a person is eligible or entitled to be registered or to assess other registration matters as provided for by this Act; and(b) such other committees as the Council considers expedient for the purpose of assisting it in the performance of any of its functions or the exercise of any of its powers or advising it on any matter relating to this Act.(2) Assessment committees are to consist of 3 registered medical practitioners appointed by the Council and other committees are to consist of such persons as the Council appoints.(3) A member of the Council may be a member of any committee.(4) A member of a committee is entitled to be paid such remuneration, including travelling and subsistence allowances, as the Council may from time to time determine and any such remuneration is to be paid by the Council.(5) The Council may give a committee written directions consistent with this Act and the committee must comply with those directions.(6) A committee is to keep accurate minutes of its proceedings.(7) Schedule 3 has effect in relation to the powers and procedures of assessment committees.(8) Except as otherwise provided in this Act, a committee may determine its own procedure.
(1) [Section 12 Subsection (1) amended by No. 2 of 2008, Sched. 1, Applied:17 Apr 2008] The Council may employ such persons as may be necessary for the performance of its functions and the exercise of its powers.(2) [Section 12 Subsection (2) omitted by No. 2 of 2008, Sched. 1, Applied:17 Apr 2008] . . . . . . . .(3) [Section 12 Subsection (3) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The State Service Act 2000 does not apply to employees of the Council.
[Section 12A Inserted by No. 2 of 2008, Sched. 1, Applied:17 Apr 2008](1) The Council must appoint a Registrar.(2) The Registrar may be –(a) an employee of the Council; or(b) an independent contractor to the Council; or(c) a person whose services are made available to the Council pursuant to an arrangement under section 13 .(3) The Registrar is to act as secretary to the Council.
13. Use by Council of services of persons
(1) [Section 13 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The council may arrange with the Head of a State Service Agency for the services of State Service officers and State Service employees employed in that Agency to be made available to the Council.(2) The Council may arrange with any other person for the services of persons employed by that person to be made available to the Council.(3) The cost of making a person's services available to the Council in accordance with this section is to be met by the Council.
[Section 14 Substituted by No. 85 of 2001, Sched. 1, Applied:22 Nov 2001](1) [Section 14 Subsection (1) substituted by No. 2 of 2008, Sched. 1, Applied:17 Apr 2008] A person engaged in the administration of this Act does not incur any personal liability for any act done or purported or omitted to be done by the person in good faith for that purpose.(2) [Section 14 Subsection (2) omitted by No. 18 of 2004, s. 11, Applied:01 Sep 2004] . . . . . . . .
Division 4 - Finance and reports
(1) [Section 15 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] [Section 15 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ]The Council is to keep such authorised deposit-taking institution accounts as it considers necessary.(2) The funds of the Council are to be paid to the credit of such of the accounts referred to in subsection (1) as it determines and are to consist of –(a) money received by way of fees, fines, penalties and charges paid to or recovered by the Council; and(b) any money borrowed by the Council; and(c) any money received by the Council from other sources.(3) The funds of the Council are to be applied –(a) in payment or discharge of the expenses, charges and obligations incurred or undertaken by the Council in the performance of its functions or the exercise of its powers; and(b) in the payment of any remuneration payable by the Council.(4) The Council may invest any money that it is holding in any manner in which a trustee is authorised by law to invest trust funds.
(1) [Section 16 Subsection (1) amended by No. 50 of 2008, Sched. 1, Applied:01 Mar 2009] The accounts of the Council are subject to the Audit Act 2008 .(2) [Section 16 Subsection (2) amended by No. 18 of 2004, s. 12, Applied:01 Sep 2004] The Council is to pay into the Consolidated Fund such amounts as the Treasurer may require towards the reasonable costs and expenses of audits conducted pursuant to this section.
[Section 17 Amended by No. 42 of 2003, Sched. 1, Applied:04 Jul 2003] [Section 17 Amended by No. 18 of 2004, s. 13, Applied:01 Sep 2004] The Council is to keep proper accounts and records of its financial affairs and, not later than 15 August after the end of each financial year, prepare a statement of accounts in a form approved by the Auditor-General exhibiting a true and correct view of the financial position and transactions of the Council for that financial year.
(1) [Section 18 Subsection (1) amended by No. 18 of 2004, s. 14, Applied:01 Sep 2004] [Section 18 Subsection (1) amended by No. 42 of 2003, Sched. 1, Applied:04 Jul 2003] The Council, not later than 31 August after the end of each financial year, is to give the Minister a report on its operations for that financial year.(2) The report is to incorporate the audited statement of accounts prepared for that financial year under section 17 .(3) The Minister may, in writing, direct the Council to prepare the report in a particular way or to include particular information in the report.(4) The report may be appended to the annual report of the Department.(5) [Section 18 Subsection (5) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Subsection (4) has effect notwithstanding section 36(3) of the State Service Act 2000 and section 27 (2) of the Financial Management and Audit Act 1990 .(6) [Section 18 Subsection (6) amended by No. 18 of 2004, s. 14, Applied:01 Sep 2004] [Section 18 Subsection (6) amended by No. 42 of 2003, Sched. 1, Applied:04 Jul 2003] If the Council's report is not appended to the annual report of the Department, the Minister is to cause the Council's report to be laid before each House of Parliament by not later than 31 October after the end of the financial year to which it relates.
PART 3 - Registration
Division 1 - Applications and categories of registration
[Section 19 Substituted by No. 18 of 2004, s. 15, Applied:01 Sep 2004] A person may apply to the Council to be registered as a medical practitioner if he or she –(a) [Section 19 Amended by No. 50 of 2007, s. 4, Applied:13 Dec 2007] has medical qualifications gained as a graduate of an institution accredited by the AMC or holds a certificate issued by the AMC; and(b) has, to the Council's satisfaction, completed the approved period of supervised training.
20. Conditional registration to undergo supervised training, &c.
(1) [Section 20 Subsection (1) amended by No. 18 of 2004, s. 16, Applied:01 Sep 2004] In this section, appropriate conditions means conditions that the Council considers appropriate to enable a person to complete the approved period of supervised training.(2) [Section 20 Subsection (2) substituted by No. 18 of 2004, s. 16, Applied:01 Sep 2004] A person may apply to the Council to be registered as a medical practitioner on appropriate conditions if he or she –(a) [Section 20 Subsection (2) amended by No. 50 of 2007, s. 5, Applied:13 Dec 2007] has medical qualifications gained as a graduate of an institution accredited by the AMC or holds a certificate issued by the AMC; and(b) is about to start the approved period of supervised training.
21. Conditional registration for special purposes
(1) In this section, appropriate conditions means conditions that the Council considers appropriate in the circumstances.(2) [Section 21 Subsection (2) amended by No. 18 of 2004, s. 17, Applied:01 Sep 2004] A person who is not eligible to apply for registration under section 19 may nevertheless apply to the Council to be registered as a medical practitioner on appropriate conditions for any one or more of the following purposes:(a) [Section 21 Subsection (2) amended by No. 18 of 2004, s. 17, Applied:01 Sep 2004] to enable the person to undertake a period of approved postgraduate training in medicine if the person is a graduate of medicine of an institution that is not accredited by the AMC;(b) [Section 21 Subsection (2) amended by No. 18 of 2004, s. 17, Applied:01 Sep 2004] . . . . . . . .(c) to enable the person to undertake further specialist training or an examination required for recognition by the relevant Australian specialist college or institution if the person has specialist qualifications and experience not recognised by such college or institution;(d) to enable the person to take up a medical teaching or research position if that person has approved qualifications for the position;(e) to enable the person to practise within a specialty if the person has specialist qualifications and experience recognised by the relevant Australian specialist college or institution;(f) to enable the person to practise if the Council considers it to be in the public interest for the person to do so;(g) to enable the person to practise in a declared area of need if the person has approved qualifications and experience.(3) For the purposes of subsection (2) (g) , the Secretary may declare an area as an area of need if –(a) the number of general medical practitioners or specialist medical practitioners in the area is insufficient to provide an appropriate level of medical service to the community in the area; and(b) no persons, or not enough persons, who are eligible to be registered as medical practitioners under section 19 are able or available to provide those services in the area.(4) A declaration under subsection (3) remains in force until revoked by the Secretary.
22. Non-practising registration
[Section 22 Substituted by No. 18 of 2004, s. 18, Applied:01 Sep 2004](1) If a person who is eligible to apply for registration under this Division does not intend to practise, he or she may apply to the Council for registration that does not confer a right of practice ("non-practising registration").(2) Non-practising registration, if granted, is not capable of being converted to practising registration.(3) If a person who holds non-practising registration subsequently wishes to practise –(a) the person must apply for practising registration in the same manner as someone who has never held registration of any kind; but(b) despite section 19 , the person is eligible to apply for the practising registration even if the institution from which the person gained his or her medical qualifications is no longer, or has never been, accredited by the AMC.
(1) An application for registration is to be –(a) [Section 23 Subsection (1) amended by No. 18 of 2004, s. 19, Applied:01 Sep 2004] in an approved form; and(b) lodged with the Registrar; and(c) [Section 23 Subsection (1) amended by No. 18 of 2004, s. 19, Applied:01 Sep 2004] accompanied by the prescribed application fee and annual registration fee; and(d) accompanied by such information or evidence as the Council requires.(2) The Council may require an applicant to provide such further information or evidence as it considers necessary in order to consider the application.(3) [Section 23 Subsection (3) amended by No. 18 of 2004, s. 19, Applied:01 Sep 2004] The Council may waive all or part of the fees.
Division 2 - Determination of entitlement
24. Entitlement to registration
(1) An applicant for practising registration is entitled to be registered as a medical practitioner if the Council is satisfied that the applicant –(a) [Section 24 Subsection (1) amended by No. 18 of 2004, s. 20, Applied:01 Sep 2004] is eligible to make the application; and(b) has sufficient physical capacity, mental capacity and skill to practise or, in a case to which section 21 (2) (d) applies, undertake the relevant medical teaching or research; and(c) is of good fame and character; and(d) has an adequate command of the English language; and(e) is an Australian citizen or resides in a State or Territory of the Commonwealth.(1A) [Section 24 Subsection (1A) inserted by No. 18 of 2004, s. 20, Applied:01 Sep 2004] Despite subsection (1) –(a) an entitlement to practising registration does not prevent conditions from being imposed on that registration under this Act; and(b) the Council may determine that an applicant is not entitled to practising registration if, having regard to any relevant Ministerial guidelines, it is not satisfied that the applicant will have adequate professional indemnity insurance on commencing to practise.(2) [Section 24 Subsection (2) amended by No. 18 of 2004, s. 20, Applied:01 Sep 2004] An applicant for non-practising registration is entitled to be registered as a medical practitioner on the condition that he or she does not practise if the Council is satisfied that the applicant –(a) [Section 24 Subsection (2) amended by No. 18 of 2004, s. 20, Applied:01 Sep 2004] is eligible to make the application; and(b) is of good fame and character; and(c) is an Australian citizen or resides in a State or Territory of the Commonwealth.
(1) [Section 25 Subsection (1) amended by No. 18 of 2004, s. 21, Applied:01 Sep 2004] The Registrar may grant interim registration to an applicant if the Registrar reasonably considers that the applicant –(a) [Section 25 Subsection (1) amended by No. 18 of 2004, s. 21, Applied:01 Sep 2004] is eligible to make an application under section 19 , 21 or 22 but it is not practicable to wait until the Council can consider the application; or(b) [Section 25 Subsection (1) amended by No. 18 of 2004, s. 21, Applied:01 Sep 2004] is eligible to make an application under section 20 but has not yet been formally awarded the medical qualifications or, if applicable, the certificate referred to in that section.(2) [Section 25 Subsection (2) substituted by No. 18 of 2004, s. 21, Applied:01 Sep 2004] The interim registration of an applicant under section 19 may be granted unconditionally or on such conditions as the Registrar considers appropriate.(3) [Section 25 Subsection (3) substituted by No. 18 of 2004, s. 21, Applied:01 Sep 2004] The interim registration of an applicant under section 20 or 21 is to be granted subject to such conditions as the Registrar considers appropriate.(4) [Section 25 Subsection (4) amended by No. 18 of 2004, s. 21, Applied:01 Sep 2004] The Registrar is to issue an interim certificate of registration to a person who is granted interim registration.(5) [Section 25 Subsection (5) amended by No. 18 of 2004, s. 21, Applied:01 Sep 2004] Subject to subsection (5A) , the interim certificate of registration is to be in such form, and contain such information, as the Registrar determines.(5A) [Section 25 Subsection (5A) inserted by No. 18 of 2004, s. 21, Applied:01 Sep 2004] The Registrar is to ensure that an interim certificate of registration issued to an applicant under section 22 specifies that the interim registration is non-practising.(6) [Section 25 Subsection (6) amended by No. 18 of 2004, s. 21, Applied:01 Sep 2004] A person to whom interim registration is granted is taken to be a registered medical practitioner for the period during which the interim registration continues in force, on the conditions, if any, determined by the Registrar and specified in the interim certificate of registration.(7) [Section 25 Subsection (7) substituted by No. 18 of 2004, s. 21, Applied:01 Sep 2004] The Council may cancel a person's interim registration for any reason it considers sufficient.(8) [Section 25 Subsection (8) substituted by No. 18 of 2004, s. 21, Applied:01 Sep 2004] If the Council decides to cancel a person's interim registration it is to give the person notice of its decision and the reasons for its decision.(9) [Section 25 Subsection (9) substituted by No. 18 of 2004, s. 21, Applied:01 Sep 2004] A person's interim registration continues in force from the date on which it is granted until the date on which the person is given notice by the Council that it has –(a) registered the person; or(b) refused to register the person; or(c) cancelled the interim registration.(10) [Section 25 Subsection (10) omitted by No. 18 of 2004, s. 21, Applied:01 Sep 2004] . . . . . . . .
[Section 26 Substituted by No. 18 of 2004, s. 22, Applied:01 Sep 2004](1) The Council may get an assessment committee to assess an applicant's entitlement to practising registration.(2) If subsection (1) applies, the Registrar is to give the applicant and the Secretary notice of –(a) the reasons for holding the assessment; and(b) the date, time and place set for the assessment.(3) A notice under subsection (2) is to be given to the applicant at least 14 days before the date, or first date, set for the assessment.
27. Recommendation of assessment committee
(1) [Section 27 Subsection (1) amended by No. 18 of 2004, s. 23, Applied:01 Sep 2004] After assessing the entitlement to registration of an applicant to whom section 19 applies, an assessment committee is to give the Council a written report containing –(a) [Section 27 Subsection (1) amended by No. 18 of 2004, s. 23, Applied:01 Sep 2004] a recommendation as to whether the applicant is entitled to be registered as a medical practitioner and, if so, whether the registration should be unconditional or on conditions; and(b) [Section 27 Subsection (1) amended by No. 18 of 2004, s. 23, Applied:01 Sep 2004] if the committee recommends that the applicant is entitled to be registered on conditions – a further recommendation as to what those conditions should be.(2) [Section 27 Subsection (2) amended by No. 18 of 2004, s. 23, Applied:01 Sep 2004] After assessing the entitlement to registration of an applicant to whom section 20 or 21 applies, an assessment committee is to give the Council a written report containing a recommendation as to whether the applicant is entitled to be registered as a medical practitioner and, if so, what the conditions of that registration should be.(2A) [Section 27 Subsection (2A) inserted by No. 18 of 2004, s. 23, Applied:01 Sep 2004] If an assessment committee considers that an applicant is not entitled to be granted the practising registration that he or she has applied for but may be entitled to be granted practising registration of another kind, the committee may include appropriate recommendations to that effect in its report to the Council.(3) A report under subsection (1) or (2) is to –(a) contain any findings on questions of fact and the evidence or other material on which those findings are based; and(b) set out the reasons for any recommendation.
Division 3 - Grant or refusal of registration
28. Determination of application
(1) In this section, agreed period means a period agreed upon by the Council and the applicant for the purpose of this section.(2) [Section 28 Subsection (2) amended by No. 18 of 2004, s. 24, Applied:01 Sep 2004] If the Council is satisfied that an applicant to whom section 19 applies is entitled to be registered it must register the applicant and it may do so unconditionally or on conditions.(3) [Section 28 Subsection (3) amended by No. 18 of 2004, s. 24, Applied:01 Sep 2004] If the Council is satisfied that an applicant to whom section 20 or 21 applies is entitled to be registered it must register the applicant on such conditions as the Council considers appropriate in the circumstances.(4) [Section 28 Subsection (4) amended by No. 18 of 2004, s. 24, Applied:01 Sep 2004] If the Council is satisfied that an applicant to whom section 22 applies is entitled to be registered it must register the applicant on the condition that the applicant does not practise.(5) [Section 28 Subsection (5) amended by No. 18 of 2004, s. 24, Applied:01 Sep 2004] In a case to which subsection (2) , (3) or (4) applies, the Council is to give the applicant notice of –(a) the applicant's registration; and(b) [Section 28 Subsection (5) amended by No. 18 of 2004, s. 24, Applied:01 Sep 2004] if the registration is conditional – the registration conditions; and(c) unless the applicant has sought non-practising registration – the applicant's rights of appeal and review in respect of those conditions.(6) If the Council is not satisfied that an applicant is entitled to be registered it must refuse to register the applicant.(6A) [Section 28 Subsection (6A) inserted by No. 18 of 2004, s. 24, Applied:01 Sep 2004] Notwithstanding section 24(1)(b) , the Council is not entitled to refuse practising registration to an applicant by reason only that the person suffers from some form of physical or mental incapacity unless the Council is satisfied on reasonable grounds that it would not be possible for the incapacity to be accommodated or managed, without compromising patient care, by the imposition of appropriate registration conditions.(7) If the Council does not register an applicant within a period of 3 months or a further agreed period after his or her application is lodged the Council is taken to have refused to register the applicant.(8) [Section 28 Subsection (8) substituted by No. 18 of 2004, s. 24, Applied:01 Sep 2004] If subsection (6) or (7) applies, the Council is to –(a) give the applicant notice of the refusal, the reasons for the refusal and the applicant's right of appeal; and(b) refund the annual registration fee that accompanied the application.(9) [Section 28 Subsection (9) inserted by No. 18 of 2004, s. 24, Applied:01 Sep 2004] For the purposes of this section, where the relevant assessment committee has made a recommendation under section 27(2A) the Council may treat an applicant for one kind of practising registration as being an applicant for another kind of practising registration.(10) [Section 28 Subsection (10) inserted by No. 18 of 2004, s. 24, Applied:01 Sep 2004] The Council's power under subsection (9) is only exercisable if the applicant consents.
29. Special grounds for refusing to grant registration
Without limiting the matters that the Council may have regard to under section 24 (1) (b) or (c) , the Council may determine that an applicant for practising registration is not entitled to be registered as a medical practitioner if –(a) the applicant's authority to practise under a foreign medical law has been cancelled or suspended for a reason relating to the person's professional conduct or physical or mental capacity; or(b) the applicant has been convicted in Tasmania or elsewhere of a crime or an offence of a kind that, in the Council's opinion, makes it not in the public interest to allow the applicant to practise; or(c) [Section 29 Amended by No. 18 of 2004, s. 25, Applied:01 Sep 2004] the Council considers it is not in the public interest to grant the application because the applicant habitually misuses alcohol or drugs; or(d) [Section 29 Amended by No. 18 of 2004, s. 25, Applied:01 Sep 2004] in the case of an applicant who has previously held such registration but has not actively practised in the 5-year period preceding the making of the application, the Council is not satisfied that he or she still has the appropriate level of skill and knowledge.
[Section 30 Substituted by No. 18 of 2004, s. 26, Applied:01 Sep 2004] Except as otherwise provided by this Act, registration continues in force indefinitely subject only to the annual payment of fees under section 39 .
31. Certificates of registration
(1) [Section 31 Subsection (1) amended by No. 18 of 2004, s. 27, Applied:01 Sep 2004] The Council is to issue a certificate of registration to a person who is granted registration.(2) A certificate of registration is to –(a) be in such form and contain such information as the Council determines; and(b) [Section 31 Subsection (2) amended by No. 18 of 2004, s. 27, Applied:01 Sep 2004] specify the conditions, if any, of the registration.(3) A certificate of registration is evidence that, for the period or until the date specified in the certificate –(a) the person named in the certificate is a registered medical practitioner; and(b) [Section 31 Subsection (3) amended by No. 18 of 2004, s. 27, Applied:01 Sep 2004] in the case of practising registration – the person named in the certificate is entitled to practise medicine in this State on the conditions, if any, specified in the certificate.(4) [Section 31 Subsection (4) amended by No. 18 of 2004, s. 27, Applied:01 Sep 2004] If the Council is satisfied that a certificate of registration has been lost, damaged or destroyed it may issue a replacement certificate, that is marked as such, upon payment of the prescribed fee.(5) The Council, by notice, may require a registered medical practitioner to surrender his or her certificate of registration to enable the Council to issue that medical practitioner with a new certificate of registration with amended particulars.(6) A registered medical practitioner who is given a notice under subsection (5) must surrender his or her certificate of registration to the Council within 14 days after receiving the notice or within such longer period as the Council may allow.Penalty: Fine not exceeding 15 penalty units.
32. Offences in relation to certificates of registration
A person who is issued with a certificate of registration or an interim certificate of registration must not –(a) lend or agree to lend that certificate to another person; or(b) allow that certificate to be used by another person.Penalty: Fine not exceeding 25 penalty units.
Division 4 - Register of Medical Practitioners
(1) [Section 33 Subsection (1) amended by No. 18 of 2004, s. 28, Applied:01 Sep 2004] The Council is to keep a register called the Register of Medical Practitioners.(2) [Section 33 Subsection (2) amended by No. 18 of 2004, s. 28, Applied:01 Sep 2004] The Council is to record the following information in the register in relation to each person who is granted practising registration:(a) the person's full name;(b) [Section 33 Subsection (2) amended by No. 18 of 2004, s. 28, Applied:01 Sep 2004] the person's business or contact address;(c) the person's qualifications;(d) the date of the person's registration;(e) [Section 33 Subsection (2) amended by No. 18 of 2004, s. 28, Applied:01 Sep 2004] the type of registration.(f) [Section 33 Subsection (2) amended by No. 18 of 2004, s. 28, Applied:01 Sep 2004] . . . . . . . .(3) [Section 33 Subsection (3) amended by No. 18 of 2004, s. 28, Applied:01 Sep 2004] The Council is to record the following information in the register in relation to each person who is granted non-practising registration:(a) the person's full name;(b) the person's qualifications;(c) the date of the person's registration.(4) [Section 33 Subsection (4) amended by No. 18 of 2004, s. 28, Applied:01 Sep 2004] The Council is to record the following matters in the register:(a) the renewal of a person's registration;(b) the suspension of a person's registration;(c) [Section 33 Subsection (4) amended by No. 18 of 2004, s. 28, Applied:01 Sep 2004] the conditions, if any, of a person's registration and any modification of those conditions;(d) [Section 33 Subsection (4) amended by No. 18 of 2004, s. 28, Applied:01 Sep 2004] the removal or nominal removal from the register of a person's name;(e) the restoration to the register of a person's name;(f) subject to section 35 (2) and (3) – additional qualifications gained by a registered person;(g) any change in the name of a registered person;(h) [Section 33 Subsection (4) amended by No. 18 of 2004, s. 28, Applied:01 Sep 2004] any change in the business or contact address of a registered person.(5) The register may contain such other information as the Council considers necessary or appropriate.(6) [Section 33 Subsection (6) amended by No. 18 of 2004, s. 28, Applied:01 Sep 2004] A registered medical practitioner or a medical practitioner whose registration is suspended must, within 14 days of changing his or her name, business address or contact address, give the Council notice of the change and the new name or address.Penalty: Fine not exceeding 15 penalty units.
(1) A person may apply to the Council to have an inaccurate or erroneous entry in the register corrected and, if the Council is satisfied that the entry is inaccurate or erroneous, it must correct the register accordingly.(2) [Section 34 Subsection (2) amended by No. 18 of 2004, s. 29, Applied:01 Sep 2004] No fee is payable for the application.(3) [Section 34 Subsection (3) amended by No. 18 of 2004, s. 29, Applied:01 Sep 2004] The Council may require the applicant to provide such further information or evidence as it considers necessary in order to consider the application.
35. Additional particulars and qualifications
(1) [Section 35 Subsection (1) amended by No. 18 of 2004, s. 30, Applied:01 Sep 2004] A registered medical practitioner may apply to the Council to have additional particulars or qualifications relating to medical practice recorded in the register.(2) An application under subsection (1) is to –(a) be accompanied by the prescribed fee; and(b) state the additional particulars or qualifications and the reasons for seeking their inclusion in the register; and(c) in the case of additional qualifications – be accompanied by evidence of the qualifications.(2A) [Section 35 Subsection (2A) inserted by No. 18 of 2004, s. 30, Applied:01 Sep 2004] The Council may waive all or part of the fee.(3) The Council may require an applicant under this section to provide such further information or evidence as it considers necessary in order to consider the application.(4) On receipt of an application under subsection (1) , the Council may –(a) record the additional particulars or qualifications in the register; or(b) refuse to record the additional particulars or qualifications in the register.(5) [Section 35 Subsection (5) amended by No. 18 of 2004, s. 30, Applied:01 Sep 2004] In a case to which subsection (4) (b) applies, the Council is to give notice to the applicant of –(a) its refusal to record the additional particulars or qualifications in the register and the reason for the refusal; and(b) the applicant's right of appeal.
(1) A person may, on payment of the prescribed fee, inspect the register at the office of the Council.(2) A person inspecting the register may, on payment of the prescribed fee, obtain a copy of or extract from the register.(3) [Section 36 Subsection (3) amended by No. 18 of 2004, s. 31, Applied:01 Sep 2004] The Council may waive all or part of a fee.
37. Publication of register, &c.
(1) The Council may publish in the Gazette –(a) a copy of the register or part of the register; or(b) [Section 37 Subsection (1) amended by No. 18 of 2004, s. 32, Applied:01 Sep 2004] a notice of the grant of registration to any person including any conditions imposed on the registration and any modification of those conditions; or(c) a notice of the removal from the register of the name of any person; or(d) a notice of the restoration to the register of the name of any person; or(e) a notice of the suspension of the registration of any person; or(f) a notice of any disciplinary action taken under section 52 in respect of a registered person.(2) The Council may provide a person with a copy of a notice referred to in subsection (1) on payment of the prescribed fee.(3) [Section 37 Subsection (3) amended by No. 18 of 2004, s. 32, Applied:01 Sep 2004] The Council may waive all or part of the fee.
38. Protection of private information
Notwithstanding sections 36 and 37 –(a) the register made available for public inspection need not include the information, or all of the information, referred to in section 33 (5) ; and(b) a copy of the register or part of the register published in the Gazette need not include the information, or all of the information, referred to in section 33 (5) ; and(c) [Section 38 Amended by No. 18 of 2004, s. 33, Applied:01 Sep 2004] if the Council records a person's private address in the register, that address is not to appear in the register as made available for public inspection or be published in the Gazette without the person's consent.
(1) In this section –due date means –(a) 30 September; or(b) if another date is prescribed – that date;registered medical practitioner includes a person whose registration is suspended.(2) A registered medical practitioner must, on or before the due date in each year –(a) pay the Council the prescribed annual registration fee; and(b) give the Council any information it requires.(3) [Section 39 Subsection (3) substituted by No. 18 of 2004, s. 34, Applied:01 Sep 2004] A registered medical practitioner who pays the prescribed annual registration fee after but within 30 days of the due date must pay a prescribed late fee.(4) [Section 39 Subsection (4) substituted by No. 18 of 2004, s. 34, Applied:01 Sep 2004] The Council may waive all or part of the annual registration fee or late fee.(5) [Section 39 Subsection (5) substituted by No. 18 of 2004, s. 34, Applied:01 Sep 2004] Subject to subsections (7) and (8) , the Council is to issue a new certificate of registration immediately to each registered medical practitioner who, in any year –(a) pays the prescribed annual registration fee on or before the due date; or(b) pays the prescribed annual registration fee and late fee after but within 30 days of the due date.(6) The new certificate of registration is to be issued for the period commencing on the day immediately following the due date and ending on the expiry of the day constituting the next due date.(7) The Council may refuse to issue the new certificate of registration if –(a) [Section 39 Subsection (7) amended by No. 18 of 2004, s. 34, Applied:01 Sep 2004] in the case of a medical practitioner who holds practising registration –(i) the Council is not satisfied that the medical practitioner complies with the requirements specified in section 24(1)(b) , (c) and (e) ; or(ii) the Council, having regard to any relevant Ministerial guidelines, is not satisfied that the medical practitioner has adequate professional indemnity insurance; or(b) [Section 39 Subsection (7) amended by No. 18 of 2004, s. 34, Applied:01 Sep 2004] in the case of a medical practitioner who holds non-practising registration – the Council is not satisfied that the medical practitioner complies with the requirements specified in section 24(2)(b) and (c) .(8) [Section 39 Subsection (8) substituted by No. 18 of 2004, s. 34, Applied:01 Sep 2004] The Council must not issue a new certificate of registration to a medical practitioner who holds practising registration but has not actively practised in the 5-year period immediately preceding the due date unless it is satisfied that the medical practitioner complies with the requirements of section 24(1)(b) , (c) and (e) .(8A) [Section 39 Subsection (8A) inserted by No. 18 of 2004, s. 34, Applied:01 Sep 2004] For the purposes of subsection (7) or (8) , the Council may get an assessment committee to carry out an assessment.(9) [Section 39 Subsection (9) substituted by No. 18 of 2004, s. 34, Applied:01 Sep 2004] The name of a registered medical practitioner who in any year fails to pay the prescribed annual registration fee on or before the due date or the prescribed annual registration fee and late fee within 30 days of the due date is to be removed from the register in accordance with section 40 .(10) [Section 39 Subsection (10) amended by No. 18 of 2004, s. 34, Applied:01 Sep 2004] The name of a registered medical practitioner who is refused the issue of a new certificate of registration pursuant to subsection (7) or (8) is to be removed from the register in accordance with section 40 .(11) [Section 39 Subsection (11) amended by No. 18 of 2004, s. 34, Applied:01 Sep 2004] In a case to which subsection (10) applies, the Council must refund the prescribed annual registration fee and, if applicable, the late fee.(12) A registered medical practitioner who is employed full-time in the service of the Commonwealth or in the defence forces of the Commonwealth and does not have a right of private practice is not required to pay the prescribed annual registration fee in respect of the period of such service.(13) [Section 39 Subsection (13) inserted by No. 18 of 2004, s. 34, Applied:01 Sep 2004] For the purposes of this section, other than subsection (11) , a person whose obligation to pay a fee has been wholly or partially waived is nonetheless taken to have paid that fee.
[Section 39A Inserted by No. 18 of 2004, s. 35, Applied:01 Sep 2004](1) The Council may, in conjunction with the exercise and performance of its powers and functions under section 39 , impose conditions or further conditions on the registration of any medical practitioner.(2) In deciding whether to exercise its power under subsection (1) in any case, the Council may have regard to all or any of the following:(a) any change in the physical capacity, mental capacity or skill of the medical practitioner;(b) any changes or advances in medical knowledge or technology relevant to the medical practitioner's field of practice;(c) the nature of the complaints, if any, that have been made against the medical practitioner in preceding years;(d) any actions taken in respect of the medical practitioner under this Act or a foreign medical law;(e) the suitability and efficacy of any existing registration conditions;(f) such other matters as the Council, taking into account the objectives specified in section 9 , considers relevant.(3) If the Council uses its power under subsection (1) it is to –(a) give the medical practitioner concerned notice of the conditions or further conditions and the medical practitioner's rights of appeal and review in respect of those conditions; and(b) ensure that those conditions are specified in the new certificate of registration that is issued to the medical practitioner under section 39 .(4) For the purposes of subsection (1) , the Council may get an assessment committee to carry out an assessment.
(1) Subject to subsection (2) –(a) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] the Council may remove a person's name from the register if he or she –(i) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] contravenes a condition of his or her registration; or(ii) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] fails to pay, within the time specified for payment, a fine imposed under section 52 (1) (c) or costs or expenses ordered to be paid under section 53(1) ; or(iii) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] fails to comply with a requirement under section 52 (1) (e) ; or(iv) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] fails to honour an undertaking given to the Council or Tribunal; and(b) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] the Council must remove a person's name from the register if he or she –(i) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] dies; or(ii) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] requests its removal; or(iii) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] ceases to be registered under section 39(9) ; or(iv) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] ceases to be registered under section 39(10) ; or(v) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] is no longer entitled to be registered; or(vi) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] has his or her authority to practise under a foreign medical law cancelled for professional misconduct or physical or mental incapacity; or(vii) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] has been registered by reason of a false or misleading statement or declaration; and(c) [Section 40 Subsection (1) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] the Council must remove or, if applicable, nominally remove a person's name from the register if the Tribunal so orders under section 52(1)(a) .(2) [Section 40 Subsection (2) amended by No. 18 of 2004, s. 36, Applied:01 Sep 2004] The Council must not remove a person's name from the register under subsection (1) (a) or (1) (b) (v) , (vi) or (vii) without giving the person a reasonable opportunity to be heard.(3) [Section 40 Subsection (3) substituted by No. 18 of 2004, s. 36, Applied:01 Sep 2004] If the Council removes a living person's name from the register it must immediately give the person notice of –(a) the removal; and(b) unless subsection (1)(b)(ii) applies, the reason for the removal; and(c) unless subsection (1)(b)(ii) or (iii) or subsection (1)(c) applies, the person's right of appeal.(4) [Section 40 Subsection (4) omitted by No. 18 of 2004, s. 36, Applied:01 Sep 2004] . . . . . . . .(5) [Section 40 Subsection (5) substituted by No. 18 of 2004, s. 36, Applied:01 Sep 2004] Subject to section 54(3) , a person ceases to be a registered medical practitioner when the notice is given.(6) If the Council removes a person's name from the register it may require that a specified period must elapse or that a specified condition must be fulfilled before that person may apply for registration.
41. Deregistered person must surrender certificate
A person who is given notice that his or her name has been removed from the register must surrender his or her certificate of registration to the Councilwithin 7 days after receiving the notice or within such longer period as the Council may allow.Penalty: Fine not exceeding 15 penalty units and a daily fine not exceeding 1·5 penalty units.
42. Restoring name to register
[Section 42 Substituted by No. 18 of 2004, s. 37, Applied:01 Sep 2004](1) A person whose name has been removed from the register pursuant to section 40(1)(b)(ii) or (iii) may apply to have it restored to the register.(2) The application is to be –(a) in an approved form; and(b) lodged with the Registrar; and(c) supported by such information or evidence as the Council requires; and(d) accompanied by the prescribed restoration fee and annual registration fee.(3) The Council may waive all or part of the fees.(4) The Council must approve the application if –(a) it is satisfied that the applicant complies with the relevant requirements specified in section 24 (excluding subsection (1)(a) and subsection (2)(a) of that section); and(b) in the case of practising registration, it is satisfied, having regard to any relevant Ministerial guidelines, that the applicant has adequate professional indemnity insurance.(5) For the purposes of subsection (4) , the Council may get an assessment committee to carry out an assessment.(6) If the Council approves the application it is to –(a) restore the applicant's name to the register (on the same conditions, if any, as applied to the person's registration immediately before the date of removal); and(b) give the applicant notice of the approval and issue the applicant with a fresh certificate of registration.(7) If the Council refuses the application it is to give the applicant notice of –(a) the refusal and the reasons for the refusal; and(b) the applicant's right of appeal.(8) If a person applies to have his or her name restored to the register within 12 months of the date of its removal and the application is approved, the restoration takes effect on the day on which the application was lodged with the Registrar.(9) In the case of any other application approved under this section, the restoration takes effect on –(a) the day on which the applicant is issued with a fresh certificate of registration; or(b) such later day as the Council determines.
(1) A copy of an entry in the register purporting to be signed by the Registrar is evidence that the entry was duly made.(2) A certificate purporting to be signed by the Registrar and stating any one or more of the following matters is evidence of the matters stated:(a) a person specified in the certificate was or was not a registered medical practitioner on a date or during a period specified in the certificate;(b) [Section 43 Subsection (2) amended by No. 18 of 2004, s. 38, Applied:01 Sep 2004] a person specified in the certificate was, on a date or for a period specified in the certificate, registered on conditions specified in the certificate;(c) [Section 43 Subsection (2) amended by No. 18 of 2004, s. 38, Applied:01 Sep 2004] the registration of a person specified in the certificate was totally or partially suspended on a date or for a period specified in the certificate;(d) [Section 43 Subsection (2) amended by No. 18 of 2004, s. 38, Applied:01 Sep 2004] the name of a person specified in the certificate was removed or nominally removed from the register on a date or for a period specified in the certificate.
Division 5 - Review of registration conditions
43A. Review of registration conditions
[Section 43A of Part 3 Inserted by No. 18 of 2004, s. 39, Applied:01 Sep 2004](1) A medical practitioner may, at intervals of not less than 12 months each, apply to the Council to review a condition that has been imposed on the practitioner's registration under section 28 (2) or (3) , section 39A or section 51(5) .(2) Subsection (1) is additional to the right that the medical practitioner has under section 61 (1) (b) .(3) The application is to be –(a) in an approved form; and(b) lodged with the Registrar.(4) The Council on its own motion may at any time review a condition that has been imposed on a medical practitioner's registration under section 28 (2) or (3) , section 39A or section 51(5) .(5) For the purposes of this section, the Council may get an assessment committee to carry out an assessment.(6) After it has reviewed a condition of a medical practitioner's registration under this section, the Council may –(a) leave the condition in place; or(b) modify the condition so as to make it less onerous; or(c) remove the condition.(7) As soon as practicable after it has carried out a review under this section, the Council is to give the medical practitioner concerned notice of the outcome of the review.
PART 4 - Complaints and oversight
Division 1 - Complaints to Council
[Section 44 Substituted by No. 18 of 2004, s. 42, Applied:01 Sep 2004](1) Any person may make a complaint to the Council about a registered medical practitioner.(2) The right to make the complaint to the Council does not derogate from the right to make the complaint to the Health Complaints Commissioner.(3) A person who makes a complaint to the Council in good faith does not incur any personal liability for any loss, damage or injury that another person may suffer as a consequence of the making of the complaint.(4) A complaint may be made to and dealt with by the Council even though the person who is the subject of the complaint has ceased to be a registered medical practitioner and, for that purpose, a reference in this Part to a registered medical practitioner includes a reference to a person who has ceased to be registered or whose registration is suspended.(5) A complaint may be made to and dealt with by the Council even though the registration of the person who is the subject of the complaint was suspended at the relevant time.
45. Specific matters of complaint
(1) [Section 45 Subsection (1) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] Without limiting the generality of section 44(1) , a person may complain to the Council that a registered medical practitioner –(a) has been registered by reason of a false or misleading statement or declaration; or(b) no longer holds, or is no longer entitled to hold, a qualification by reason of which he or she was registered; or(c) lacks sufficient physical capacity, mental capacity or skill to practise; or(d) is not entitled on other grounds to be registered; or(da) [Section 45 Subsection (1) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] is not of good fame and character; or(e) is guilty of professional misconduct.(2) Without limiting the matters that may constitute professional misconduct, a medical practitioner is guilty of such misconduct if the medical practitioner –(a) contravenes a provision of this Act; or(b) contravenes a foreign medical law; or(c) [Section 45 Subsection (2) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] contravenes a condition of his or her registration; or(d) [Section 45 Subsection (2) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] fails to pay, within the time specified for payment, a fine imposed on the medical practitioner under section 52 (1) (c) or costs or expenses ordered to be paid under section 53(1) ; or(e) fails to comply with a requirement made of that medical practitioner under section 52 (1) (e) ; or(f) [Section 45 Subsection (2) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] fails to honour an undertaking given to the Council or Tribunal; or(g) is incompetent in the practice of medicine; or(h) [Section 45 Subsection (2) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] behaves in a deceptive or misleading manner in the practice of medicine; or(i) [Section 45 Subsection (2) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] engages in conduct that is capable of bringing the medical profession into disrepute; or(j) [Section 45 Subsection (2) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] advertises his or her practice or services in an inappropriate or fraudulent way; or(k) [Section 45 Subsection (2) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] fails, without reasonable excuse and within a reasonable time, to comply with a request by the Council to provide it with information; or(l) [Section 45 Subsection (2) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] practises while his or her registration is wholly suspended; or(m) [Section 45 Subsection (2) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] practises, while his or her registration is partially suspended, in the area of practice to which the partial suspension relates; or(n) [Section 45 Subsection (2) amended by No. 18 of 2004, s. 43, Applied:01 Sep 2004] tries, by means of any threat or inducement, to stop a person from making or proceeding with a complaint against that medical practitioner.
(1) [Section 46 Subsection (1) amended by No. 18 of 2004, s. 44, Applied:01 Sep 2004] A complaint to the Council is to –(a) be made in writing; and(b) contain particulars of the matter complained of; and(c) [Section 46 Subsection (1) amended by No. 18 of 2004, s. 44, Applied:01 Sep 2004] identify, if possible, the registered medical practitioner against whom the complaint is being made or set out such information relating to the identity of the registered medical practitioner as is known to the complainant; and(d) [Section 46 Subsection (1) amended by No. 18 of 2004, s. 44, Applied:01 Sep 2004] identify the complainant; and(e) be lodged with the Registrar.(2) [Section 46 Subsection (2) amended by No. 18 of 2004, s. 44, Applied:01 Sep 2004] The Registrar must ensure that a person who wishes to make a complaint to the Council is given such reasonable assistance as is necessary to enable that person to make the complaint in accordance with this section.(3) [Section 46 Subsection (3) substituted by No. 18 of 2004, s. 44, Applied:01 Sep 2004] The Registrar –(a) is to keep a record of each complaint made to the Council and note the date on which it is lodged; and(b) may, before taking any further action on the complaint, require the complainant to furnish any further particulars that the Registrar reasonably considers may be necessary to facilitate an investigation into the complaint.(4) [Section 46 Subsection (4) omitted by No. 18 of 2004, s. 44, Applied:01 Sep 2004] . . . . . . . .
Division 1A - Dealing with complaints[Division 1A of Part 4 Inserted by No. 18 of 2004, s. 45, Applied:01 Sep 2004]
Subdivision 1 - Complaints to which Division applies[Subdivision 1 of Division 1A of Part 4 Inserted by No. 18 of 2004, s. 45, Applied:01 Sep 2004]
[Section 47 Substituted by No. 18 of 2004, s. 45, Applied:01 Sep 2004] This Division applies to –(a) complaints about registered medical practitioners that are made to the Council pursuant to Division 1 and not referred to the Health Complaints Commissioner; and(b) complaints about registered medical practitioners that are referred to the Council by the Health Complaints Commissioner.
Subdivision 2 - Preliminary investigation of complaints[Subdivision 2 of Division 1A of Part 4 Inserted by No. 18 of 2004, s. 45, Applied:01 Sep 2004]
48. Complaint to be referred to investigator
[Section 48 Substituted by No. 18 of 2004, s. 45, Applied:01 Sep 2004](1) The Council, in the first instance, is to refer a complaint to an investigator for preliminary investigation.(2) The investigator is to be a person or committee that has been appointed by the Council to –(a) investigate the specific complaint; or(b) investigate complaints generally.(3) Any of the following may be appointed as an investigator:(a) a member of the Council;(b) the Registrar or another employee of the Council;(c) another person who, in the opinion of the Council, has appropriate expertise or experience;(d) a committee.(4) The investigator may, at any time during the investigation, give the registered medical practitioner concerned notice of the complaint and such other matters as the investigator considers appropriate.(5) Schedule 3 has effect in relation to the powers and procedures of the investigator.(6) Except as otherwise provided in this Act, the investigator may determine the investigator's own procedure.
48A. Council may refer other matters to investigator
[Section 48A Inserted by No. 18 of 2004, s. 45, Applied:01 Sep 2004](1) The Council may, on its own motion, refer any matter that it considers could constitute grounds for a complaint against a registered medical practitioner to an investigator.(2) For the purposes of this Division, a matter referred to an investigator under this section is taken to be, and is to be dealt with as, a complaint to the Council that has not been referred to the Health Complaints Commissioner.(3) Subsections (4) and (5) of section 44 have the same application to a matter referred to in subsection (1) as they have to a complaint made to the Council.
48B. Investigator to report and make recommendation
[Section 48B Inserted by No. 18 of 2004, s. 45, Applied:01 Sep 2004](1) Following the investigation, the investigator is to report to the Council and make one of the following recommendations:(a) that the complaint be dismissed;(b) that no disciplinary action be initiated in respect of the complaint at that time;(c) that the complaint be referred to or, if applicable, back to the Health Complaints Commissioner;(d) that an informal inquiry be instituted into the complaint;(e) that a formal inquiry be instituted into the complaint.(2) For the purposes of subsection (1) , the following guidelines apply:(a) a recommendation under subsection (1)(a) will be appropriate if the investigator is satisfied that the complaint is frivolous or vexatious or, though apparently legitimate, is groundless or trivial;(b) a recommendation under subsection (1)(b) will be appropriate if the investigator is satisfied that the complaint is not capable of being substantiated (whether for want of evidence, the incapacity of prospective witnesses or some other reason);(c) a recommendation under subsection (1)(c) will be appropriate if the investigator is satisfied, having regard to the nature of the complaint and the relevant legislation, that the complaint is properly a matter for the Health Complaints Commissioner;(d) a recommendation under subsection (1)(d) will be appropriate if the investigator is satisfied that the complaint, though apparently legitimate, is not of a serious kind;(e) a recommendation under subsection (1)(e) will be appropriate if the investigator is satisfied that the complaint is legitimate and, in terms of the objectives in section 9 , of a serious kind.(3) Notwithstanding subsections (1) and (2) , the investigator may –(a) make any of the recommendations referred to in subsection (1) if the investigator is satisfied that there are reasonable grounds for making the recommendation; and(b) add, to a recommendation under subsection (1)(a) or (b) , a further recommendation that the complaint be referred to or, if applicable, back to the Health Complaints Commissioner.(4) If the investigator considers that a recommendation might not be accepted by the Council or there are other reasonable grounds for so doing, the investigator may make a secondary recommendation.(5) In the report, the investigator is to –(a) set out the reasons for a recommendation; and(b) include or identify any evidence or information on which a recommendation is based; and(c) indicate whether the investigator has given the medical practitioner concerned notice of the complaint; and(d) mention any other matters that the investigator considers relevant.(6) If for any reason the investigator feels unable to make a recommendation in its report, or is uncertain which recommendation to make, the investigator is to notify the Council accordingly.(7) If subsection (6) applies, the Council may, according to the circumstances –(a) give the investigator assistance and advice; or(b) issue directions to the investigator; or(c) having regard to the findings, if any, of the investigator, make a determination under section 49(1) without a recommendation; or(d) appoint a new investigator.
Subdivision 3 - Action to be taken following preliminary investigation[Subdivision 3 of Division 1A of Part 4 Inserted by No. 18 of 2004, s. 45, Applied:01 Sep 2004]
49. Council to consider and act on investigator's report
[Section 49 Substituted by No. 18 of 2004, s. 45, Applied:01 Sep 2004](1) After it has considered the report of an investigator into a complaint, the Council may decide to –(a) dismiss the complaint; or(b) not initiate disciplinary action on the complaint at that time; or(c) refer the complaint to or, if applicable, back to the Health Complaints Commissioner; or(d) institute an informal inquiry into the complaint; or(e) institute a formal inquiry into the complaint.(2) In making its decision, the Council is to have regard to –(a) the investigator's recommendation; and(b) the guidelines in section 48B(2) .(3) The Council is not obliged to accept the investigator's recommendation but it should not reject the recommendation unless satisfied that there are compelling grounds for so doing.(4) For the purposes of considering an investigator's report or recommendation, the Council may require the investigator to provide it with further information or evidence.
[Section 49A Inserted by No. 18 of 2004, s. 45, Applied:01 Sep 2004](1) If section 49(1)(a) applies, the Council is to –(a) give the complainant notice that the complaint has been dismissed, together with such explanation as the Council considers appropriate; and(b) if the medical practitioner concerned had formal notice of the complaint, give the medical practitioner notice that the complaint has been dismissed, together with such explanation as the Council considers appropriate.(2) The Council may give a medical practitioner notice that a complaint against the medical practitioner has been made and dismissed even if the medical practitioner had no formal notice of the complaint.(3) If section 49(1)(a) applies, the Council may also refer the complaint to or, if applicable, back to the Health Complaints Commissioner and may give such notice of the referral as it thinks fit.
49B. No disciplinary action to be initiated on complaint
[Section 49B Inserted by No. 18 of 2004, s. 45, Applied:01 Sep 2004](1) If section 49(1)(b) applies, the Council is to –(a) give the complainant notice that no disciplinary action is to be initiated in respect of the complaint at that time, together with such explanation as the Council considers appropriate; and(b) if the medical practitioner concerned had formal notice of the complaint, give the medical practitioner notice that no disciplinary action is to be initiated in respect of the complaint at that time, together with such explanation as the Council considers appropriate.(2) Subsection (1) does not prevent the Council from –(a) reconsidering or initiating disciplinary action on the complaint at a later time if, owing to a change in circumstances, the Council considers it appropriate to do so; or(b) taking the complaint into account at a later time as being indicative of a pattern of behaviour or practice.(3) The Council may give a medical practitioner notice that a complaint against the medical practitioner has been made and that no disciplinary action is to be initiated in respect of the complaint at that time even if the medical practitioner had no formal notice of the complaint.(4) If section 49(1)(b) applies, the Council may also refer the complaint to or, if applicable, back to the Health Complaints Commissioner and may give such notice of the referral as it thinks fit.
49C. Referral of complaint to Health Complaints Commissioner
[Section 49C Inserted by No. 18 of 2004, s. 45, Applied:01 Sep 2004](1) If section 49(1)(c) applies, the Council is to –(a) refer the complaint to or, if applicable, back to the Health Complaints Commissioner; and(b) give the complainant notice that the complaint has been so referred, together with such explanation as the Council considers appropriate; and(c) if the medical practitioner concerned had formal notice of the complaint, give the medical practitioner notice that the complaint has been so referred, together with such explanation as the Council considers appropriate.(2) Subsection (1) does not prevent the Council from taking the complaint into account at a later time as being indicative of a pattern of behaviour or practice.(3) The Council may give a medical practitioner notice that a complaint against the medical practitioner has been made and referred to or, if applicable, back to the Health Complaints Commissioner even if the medical practitioner had no formal notice of the complaint.(4) The Council may provide the Health Complaints Commissioner with any information or evidence in its possession regarding a complaint that it refers to, or back to, the Commissioner.
49D. Informal inquiry into complaint
[Section 49D Inserted by No. 18 of 2004, s. 45, Applied:01 Sep 2004](1) If section 49(1)(d) applies, the Council is to institute the informal inquiry and give the complainant notice to that effect.(2) The Council institutes an informal inquiry into a complaint by giving the medical practitioner concerned a notice to that effect and requiring him or her to –(a) appear before the Council to give an explanation; or(b) provide the Council with a written explanation.(3) In determining whether to require a personal appearance or a written explanation, the Council may have regard to the complexity of the complaint, the cooperativeness of the medical practitioner, travelling hardship and such other factors as it considers appropriate.(4) A notice under subsection (2)(a) is to –(a) set out particulars of the complaint; and(b) specify the date, time and place at which the medical practitioner is required to appear; and(c) inform the medical practitioner that, before that date, he or she may request in writing that the complaint be dealt with by way of a formal inquiry; and(d) inform the medical practitioner of the other circumstances in which the complaint may become the subject of a formal inquiry; and(e) state that the appearance before the Council is not open to the public; and(f) state that the medical practitioner is entitled to make submissions when appearing before the Council; and(g) state that the medical practitioner is not entitled to be represented when appearing before the Council but is entitled to be accompanied by a legal practitioner or other person.(5) A notice under subsection (2)(b) is to –(a) set out particulars of the complaint; and(b) specify a date by which the medical practitioner is required to provide the written explanation; and(c) inform the medical practitioner that, before that date, he or she may request in writing that the complaint be dealt with by way of a formal inquiry; and(d) inform the medical practitioner of the other circumstances in which the complaint may become the subject of a formal inquiry.(6) A notice under subsection (2) may contain such other information as the Council considers appropriate.(7) The date specified under subsection (4)(b) or subsection (5)(b) is to be not less than 14 days after the date of giving the notice.(8) If, after considering an explanation given to it under this section, the Council is not satisfied that a complaint has been substantiated, it is to –(a) dismiss the complaint; and(b) give the complainant and the medical practitioner concerned notice of the dismissal, together with such explanation as it considers appropriate.(9) If, after considering an explanation given to it under this section, the Council is satisfied that a complaint has been substantiated but that it is not sufficiently serious to warrant a formal inquiry, the Council may do either or both of the following:(a) caution or reprimand the medical practitioner concerned;(b) require and accept an undertaking from the medical practitioner concerned to take or refrain from taking specified action.(10) Except in a case to which section 49E(2)(e) applies, the Council is, as soon as practicable, to give the complainant notice of its finding and the action taken, together with such explanation as the Council considers appropriate.(11) A meeting of the Council convened for the purposes of this section is not open to the public.
49E. Formal inquiry into complaint
[Section 49E Inserted by No. 18 of 2004, s. 45, Applied:01 Sep 2004](1) If section 49(1)(e) applies, the Council is to institute the formal inquiry.(2) The Council is also required to institute a formal inquiry into a complaint if –(a) the medical practitioner concerned fails to appear before the Council as required by a notice under section 49D(2)(a) or, before the date of appearance specified in the notice, requests in writing that the complaint be dealt with by way of a formal inquiry; or(b) the medical practitioner concerned fails to provide the Council with a written explanation as required by a notice under section 49D(2)(b) or, before the date on which the explanation is required to be provided, requests in writing that the complaint be dealt with by way of a formal inquiry; or(c) in the course of giving an explanation to the Council under section 49D the medical practitioner concerned requests, orally or in writing, that the complaint be dealt with by way of a formal inquiry; or(d) after or in the course of considering an explanation under section 49D the Council determines that the complaint is sufficiently serious to warrant a formal inquiry; or(e) if section 49D(9) applies, the medical practitioner concerned does one or more of the following:(i) disputes that the complaint has been substantiated;(ii) refuses to accept the caution or reprimand;(iii) refuses to give, or purports to retract, the required undertaking.(3) The Council institutes a formal inquiry into a complaint by –(a) referring the complaint to the Tribunal; and(b) giving the medical practitioner concerned, and the complainant, notice that the inquiry has been instituted.(4) For the purposes of subsection (3) , a summons to appear before the Tribunal to answer a complaint constitutes sufficient notice to the medical practitioner concerned.
Division 2 - The Medical Complaints Tribunal
50. Establishment and constitution of Tribunal, &c.
(1) The Medical Complaints Tribunal is established.(2) The Council is to appoint –to be the permanent members of the Tribunal.(a) one legal practitioner of not less than 10 years' standing; and(b) one person who is not a medical practitioner or legal practitioner –(3) The permanent member appointed under subsection (2) (a) is chairperson of the Tribunal.(4) [Section 50 Subsection (4) amended by No. 18 of 2004, s. 46, Applied:01 Sep 2004] The Tribunal, for any formal inquiry it conducts, is to consist of 5 members, being –(a) the 2 permanent members; and(b) 3 registered medical practitioners appointed by the Council for the purposes of that inquiry.(5) [Section 50 Subsection (5) amended by No. 18 of 2004, s. 46, Applied:01 Sep 2004] A registered medical practitioner appointed to the Tribunal for the purposes of a formal inquiry is known as a special member.(6) [Section 50 Subsection (6) amended by No. 18 of 2004, s. 46, Applied:01 Sep 2004] A special member is to be a medical practitioner who is considered by the Council to have skill, knowledge or experience that is relevant to the formal inquiry for which he or she is appointed.(7) A member of the Council is not eligible to be appointed as a permanent or special member of the Tribunal.(8) [Section 50 Subsection (8) substituted by No. 18 of 2004, s. 46, Applied:01 Sep 2004] The Council is to provide the Tribunal with adequate secretarial support.(9) A person who is a member of the Tribunal does not incur any personal liability for any act done or purported or omitted to be done by the person in good faith for the purpose of administering or executing this Act.(10) [Section 50 Subsection (10) omitted by No. 18 of 2004, s. 46, Applied:01 Sep 2004] . . . . . . . .(11) Schedule 4 has effect in relation to the membership of the Tribunal.(12) [Section 50 Subsection (12) amended by No. 18 of 2004, s. 46, Applied:01 Sep 2004] Schedule 5 has effect in relation to the powers and procedures of the Tribunal.(13) [Section 50 Subsection (13) inserted by No. 18 of 2004, s. 46, Applied:01 Sep 2004] Except as otherwise provided in this Act, the Tribunal may determine its own procedure.
50A. Alternate permanent members
[Section 50A Inserted by No. 18 of 2004, s. 47, Applied:01 Sep 2004](1) For the purposes of this Division, the Council is to appoint an alternate member for each permanent member of the Tribunal.(2) Appointments of alternate members are to be made –(a) as soon as practicable after the commencement of the Medical Practitioners Registration Amendment Act 2004 ; and(b) if subsequently there is a vacancy in the office of a member or alternate member.(3) For the purposes of subsection (2) , the office of an alternate member is vacant when he or she dies or if he or she is incapable of acting as such a member.(4) An alternate member is to act as a member of the Tribunal only if the permanent member for whom he or she is an alternate dies or only while that permanent member –(a) is absent from a meeting or proceeding of the Tribunal; or(b) is incapable of acting as a member.(5) Where an alternate member acts as a member of the Tribunal –(a) he or she may exercise all the powers of the permanent member for whom he or she is an alternate member; and(b) all things done or omitted to be done by the alternate member are as valid, and have the same consequences, as if they had been done or omitted to be done by the permanent member for whom he or she is an alternate member.(6) A person is not eligible to be appointed as an alternate member unless he or she has the same qualifications as the permanent member for whom he or she would be an alternate.
51. Tribunal to hold formal inquiry into referred complaint
[Section 51 Substituted by No. 18 of 2004, s. 48, Applied:01 Sep 2004](1) The Tribunal is to hold a formal inquiry into each complaint referred to it under section 49E .(2) Pending the completion of the formal inquiry the Tribunal, having regard to the nature of the complaint, may request the Council to –(a) suspend the defendant's registration pursuant to section 55 ; or(b) impose a condition on the defendant's registration.(3) The Tribunal is to give the Council notice of its reasons for making the request and –(a) if subsection (2)(a) applies, a recommendation whether the suspension should be total or partial; or(b) if subsection (2)(b) applies, a recommendation as to the required condition.(4) The Council must not refuse to comply with the Tribunal's request unless it is satisfied that there are reasonable grounds for so doing.(5) If the Council agrees to a request under subsection (2)(b) , it has power to impose the condition but it must –(a) give the defendant notice of the condition and the defendant's right of appeal and review in respect of the condition; and(b) issue the defendant with a new certificate of registration incorporating the condition.
Division 3 - Action following formal inquiry
52. Actions that may be taken by Tribunal
(1) [Section 52 Subsection (1) amended by No. 18 of 2004, s. 50, Applied:01 Sep 2004] After it has held a formal inquiry the Tribunal may take any one or more of the following actions:(a) [Section 52 Subsection (1) amended by No. 18 of 2004, s. 50, Applied:01 Sep 2004] order that the defendant's name be removed or, if applicable, nominally removed from the register;(b) [Section 52 Subsection (1) amended by No. 18 of 2004, s. 50, Applied:01 Sep 2004] suspend the defendant's registration, either totally or partially, for a period not exceeding 12 months;(c) impose on the defendant a fine not exceeding 50 penalty units;(d) [Section 52 Subsection (1) amended by No. 18 of 2004, s. 50, Applied:01 Sep 2004] impose a condition on the defendant's registration;(e) require the defendant to take or refrain from taking specified action;(f) caution or reprimand the defendant;(g) [Section 52 Subsection (1) amended by No. 18 of 2004, s. 50, Applied:01 Sep 2004] dismiss the complaint.(2) [Section 52 Subsection (2) substituted by No. 18 of 2004, s. 50, Applied:01 Sep 2004] In the case of a formal inquiry relating to a matter referred to in section 45 (1) (b) , the Tribunal must at least take the action specified in subsection (1) (a) unless it decides to dismiss the complaint.(3) [Section 52 Subsection (3) amended by No. 18 of 2004, s. 50, Applied:01 Sep 2004] If the Tribunal decides to impose a fine under subsection (1) (c) it must specify a period within which the fine is to be paid.(3A) [Section 52 Subsection (3A) inserted by No. 18 of 2004, s. 50, Applied:01 Sep 2004] If the Tribunal decides to impose a condition on the defendant's registration, section 43A has the same application to that condition as it has to a condition imposed at the time of registration or under section 39A .(4) For the purposes of subsection (1) (e) but without limiting the generality of that subsection, the Tribunal may require the defendant to do any one or more of the following:(a) carry out specified work for a specified person either free of charge or for a specified fee;(b) waive or repay the whole or any part of any fees charged to or paid by a specified person in respect of specified work;(c) be subject to periodic supervision or inspection by a specified person;(d) [Section 52 Subsection (4) amended by No. 18 of 2004, s. 50, Applied:01 Sep 2004] seek appropriate advice in relation to the management of his or her practice;(e) [Section 52 Subsection (4) amended by No. 18 of 2004, s. 50, Applied:01 Sep 2004] undergo specified training in conjunction with, or before resuming, his or her practice;(f) [Section 52 Subsection (4) amended by No. 18 of 2004, s. 50, Applied:01 Sep 2004] carry out specified work or actions in relation to his or her professional premises.(5) The Tribunal, as an alternative to taking action under subsection (1) (a) , (b) , (c) , (d) , (e) or (f) , may accept an undertaking from the defendant to take or refrain from taking specified action, either generally or within a specified period of time.
53. Costs and expenses of formal inquiry
(1) [Section 53 Subsection (1) amended by No. 18 of 2004, s. 51, Applied:01 Sep 2004] The Tribunal may, in addition to exercising its powers under section 52 , order the defendant to pay such costs and expenses of or arising from the formal inquiry, and any preceding investigation or informal inquiry, as the Tribunal thinks fit within such period of time as the Tribunal by the order allows.(2) [Section 53 Subsection (2) amended by No. 18 of 2004, s. 51, Applied:01 Sep 2004] Subsection (1) does not apply if the Tribunal decides to dismiss the complaint.(3) [Section 53 Subsection (3) amended by No. 18 of 2004, s. 51, Applied:01 Sep 2004] If the Tribunal decides to dismiss the complaint it may, if it considers it fair to do so, order the Council to pay the costs and expenses or any part of the costs and expenses incurred by the defendant in respect of the formal inquiry and any preceding investigation or informal inquiry.(3A) [Section 53 Subsection (3A) inserted by No. 18 of 2004, s. 51, Applied:01 Sep 2004] For the purposes of this section, the costs of an investigation may be taken to include any costs incurred under section 58A , 59 or 60 .(4) The Council must comply with an order of the Tribunal under subsection (3) .(5) [Section 53 Subsection (5) amended by No. 18 of 2004, s. 51, Applied:01 Sep 2004] Any costs or expenses ordered to be paid under subsection (1) are payable to, and may be recovered as a debt due to, the Council.
(1) [Section 54 Subsection (1) substituted by No. 18 of 2004, s. 52, Applied:01 Sep 2004] When the Tribunal has decided what action to take under section 52 , the chairperson must inform the defendant of –(a) the decision; and(b) the reasons for the decision; and(c) when the decision takes effect; and(d) unless section 52(1)(g) applies, the defendant's right of appeal.(2) [Section 54 Subsection (2) substituted by No. 18 of 2004, s. 52, Applied:01 Sep 2004] The chairperson may comply with subsection (1) by means of –(a) a notice alone; or(b) if the defendant is present at the relevant time, an announcement followed by a notice.(3) [Section 54 Subsection (3) substituted by No. 18 of 2004, s. 52, Applied:01 Sep 2004] Unless the Tribunal determines otherwise, the decision takes effect as soon as the defendant is first informed of it pursuant to subsection (1) .(4) [Section 54 Subsection (4) substituted by No. 18 of 2004, s. 52, Applied:01 Sep 2004] The Council must take such actions as may be necessary or expedient to give effect to the Tribunal's decision.(4A) [Section 54 Subsection (4A) inserted by No. 18 of 2004, s. 52, Applied:01 Sep 2004] When a decision under section 52(1)(b) takes effect, the defendant ceases –(a) in the case of a total suspension of registration, to be registered until the period of suspension expires; or(b) in the case of a partial suspension of registration, to be entitled to practise in the areas of practice to which the partial suspension applies until the period of suspension expires.(5) [Section 54 Subsection (5) amended by No. 18 of 2004, s. 52, Applied:01 Sep 2004] When the Tribunal's decision takes effect, the Council may do any or all of the following:(a) [Section 54 Subsection (5) amended by No. 18 of 2004, s. 52, Applied:01 Sep 2004] give notice of the decision to the AMC and to such medical registration authorities and other medical bodies as the Council considers appropriate to notify;(b) give notice of the decision to the Secretary;(c) cause notice of the decision to be published in any professional publication related to the practice of medicine;(d) cause notice of the decision to be published in any newspaper published and circulated generally in this State;(e) cause notice of the decision to be published in the Gazette.
Division 4 - Suspension
55. Suspension of registration
(1) [Section 55 Subsection (1) amended by No. 18 of 2004, s. 53, Applied:01 Sep 2004] The Council may suspend a medical practitioner's registration for such period not exceeding 12 months as the Council in the circumstances considers appropriate if –(a) [Section 55 Subsection (1) amended by No. 18 of 2004, s. 53, Applied:01 Sep 2004] the medical practitioner contravenes a condition of the registration; or(b) [Section 55 Subsection (1) amended by No. 18 of 2004, s. 53, Applied:01 Sep 2004] the medical practitioner's authority to practise under a foreign medical law is suspended for a reason relating to the medical practitioner's professional conduct or physical or mental capacity; or(c) [Section 55 Subsection (1) amended by No. 18 of 2004, s. 53, Applied:01 Sep 2004] the medical practitioner fails to pay, within the time specified for payment, a fine imposed under section 52 (1) (c) or costs or expenses ordered to be paid under section 53(1) ; or(d) the medical practitioner fails to comply with a requirement made of that medical practitioner under section 52 (1) (e) ; or(e) [Section 55 Subsection (1) amended by No. 18 of 2004, s. 53, Applied:01 Sep 2004] the medical practitioner fails to honour an undertaking given to the Council or Tribunal; or(f) [Section 55 Subsection (1) amended by No. 18 of 2004, s. 53, Applied:01 Sep 2004] the Council reasonably considers the suspension necessary for the purposes of investigating a complaint made against that medical practitioner or investigating on its own motion a matter that could be the subject of a complaint against that medical practitioner; or(g) [Section 55 Subsection (1) amended by No. 18 of 2004, s. 53, Applied:01 Sep 2004] the Council considers that it is in the public interest to suspend the registration; or(h) [Section 55 Subsection (1) amended by No. 18 of 2004, s. 53, Applied:01 Sep 2004] the Council is requested to do so by the Tribunal under section 51(2)(a) ; or(i) [Section 55 Subsection (1) amended by No. 18 of 2004, s. 53, Applied:01 Sep 2004] the Council considers that the medical practitioner's professional premises are of an unsatisfactory kind or standard having regard to the nature of his or her practice.(1A) [Section 55 Subsection (1A) inserted by No. 18 of 2004, s. 53, Applied:01 Sep 2004] The suspension of registration may be –(a) a total suspension of registration; or(b) a partial suspension of registration, being suspension that applies only in relation to certain areas of practice specified by the Council.(2) The power of the Council to suspend a medical practitioner's registration under this section is in addition to the power of the Tribunal to suspend that medical practitioner's registration under section 52 (1) (b) .(3) If the Council decides to suspend a medical practitioner's registration under this section it may afford that medical practitioner an opportunity to be heard but it is not required to do so.(4) If the Council decides to suspend a medical practitioner's registration under this section it must make an appropriate note of the suspension and the reasons for the suspension in the register and give the medical practitioner notice of –(a) the suspension and the reasons for the suspension; and(ab) [Section 55 Subsection (4) amended by No. 18 of 2004, s. 53, Applied:01 Sep 2004] in the case of a partial suspension, the areas of practice to which the suspension applies; and(b) the medical practitioner's right of appeal.(5) [Section 55 Subsection (5) substituted by No. 18 of 2004, s. 53, Applied:01 Sep 2004] When the giving of the notice is effected in the case of a total suspension of registration, the medical practitioner ceases to be registered until the period of suspension specified in the notice expires or the suspension is revoked by the Council.(5A) [Section 55 Subsection (5A) inserted by No. 18 of 2004, s. 53, Applied:01 Sep 2004] When the giving of the notice is effected in the case of a partial suspension of registration, the medical practitioner's entitlement to practise in those areas of practice specified under subsection (1A)(b) is suspended until the period of suspension specified in the notice expires or the suspension is revoked by the Council.(5B) [Section 55 Subsection (5B) inserted by No. 18 of 2004, s. 53, Applied:01 Sep 2004] Subsections (5) and (5A) have effect subject to any orders of the Supreme Court made on appeal.(6) [Section 55 Subsection (6) amended by No. 18 of 2004, s. 53, Applied:01 Sep 2004] A medical practitioner whose registration has been totally or partially suspended must, if directed in writing to do so by the Council, return his or her certificate of registration to the Council within 7 days after receiving that direction or within such longer period as the Council may allow.Penalty: Fine not exceeding 15 penalty units and a daily fine not exceeding 1·5 penalty units.(7) [Section 55 Subsection (7) substituted by No. 18 of 2004, s. 53, Applied:01 Sep 2004] If the Council suspends a medical practitioner's registration under this section it has and may exercise, if it considers that it is in the public interest to do so, the same power to give notice of the suspension as it has under section 54(5) in relation to a decision to which that section applies.
If the Council suspends a medical practitioner's registration under section 55 it may, at any time and for any reason it considers sufficient, revoke the suspension.
Division 5 - Miscellaneous
57. Evidence of facts found in other proceedings
[Section 57 Substituted by No. 18 of 2004, s. 54, Applied:01 Sep 2004](1) In this section –tribunal includes a medical registration authority in so far as it may exercise powers of a quasi-judicial nature.(2) A finding of fact relating to the conduct of a registered medical practitioner made by a court or other tribunal in any proceedings to which that medical practitioner is a party, whether in this State or elsewhere, is evidence of that fact in any proceedings under this Part.
[Section 58 Substituted by No. 18 of 2004, s. 54, Applied:01 Sep 2004](1) The Council may appoint persons as inspectors for the purposes of this Act.(2) An inspector –(a) holds office on the conditions contained in his or her instrument of appointment; and(b) has the powers set out in this Division.(3) The Council is to issue an inspector with an identity card, in an approved form, being a card bearing at least a recent photograph of the inspector and the inspector's name and signature.(4) A person must, within 5 days of ceasing to be an inspector, return the person's identity card to the Council.Penalty: Fine not exceeding 5 penalty units.
[Section 58A Inserted by No. 18 of 2004, s. 54, Applied:01 Sep 2004] If the Council or an investigator reasonably suspects that –the Council or investigator may direct an inspector to carry out an inspection.(a) an unregistered person may be practising medicine; or(b) there may be grounds for a complaint against a registered medical practitioner; or(c) there may be grounds for removing a person's name from the register or suspending a person's registration; or(d) a registered medical practitioner may lack the physical capacity, mental capacity or skill to practise medicine –
(1) [Section 59 Subsection (1) omitted by No. 18 of 2004, s. 55, Applied:01 Sep 2004] . . . . . . . .(2) [Section 59 Subsection (2) amended by No. 18 of 2004, s. 55, Applied:01 Sep 2004] For the purposes of carrying out an inspection, an inspector may, on production of his or her identity card –(a) enter any professional premises at any time with the consent of the occupier of those premises; and(b) exercise all or any of the powers specified in section 60 with the consent of the occupier of those professional premises.(3) [Section 59 Subsection (3) amended by No. 18 of 2004, s. 55, Applied:01 Sep 2004] If an inspector considers on reasonable grounds that there is, or is likely to be, on any professional premises a document or thing that is, or is likely to be, relevant to an inspection being carried out by the inspector, and that it is not possible or reasonable in the circumstances to rely on the power in subsection (2) , the inspector may apply to a magistrate for a warrant.(4) A magistrate to whom an application under subsection (3) is made may issue a warrant if satisfied that –(a) [Section 59 Subsection (4) amended by No. 18 of 2004, s. 55, Applied:01 Sep 2004] the document or thing referred to in the application is, or is likely to be, relevant to the inspection being carried out by the inspector; and(b) there are reasonable grounds for believing that the document or thing is, or is likely to be, on the professional premises referred to in the application; and(c) it will not be possible or reasonable in the circumstances for the inspector to rely on the power in subsection (2) .(5) Schedule 6 has effect with respect to a warrant issuedunder this section.(6) A warrant issued under this section may be made subject to any conditions the magistrate considers appropriate.(7) Subject to subsection (6) , a warrant issued under this section authorises the inspector named in the warrant to enter and search the premises specified in the warrant and exercise such of the powers specified in section 60 as are not expressly excluded by the magistrate who issued the warrant.(8) [Section 59 Subsection (8) amended by No. 18 of 2004, s. 55, Applied:01 Sep 2004] A person must not give, agree to give or offer to an inspector a gift, reward or other inducement to do or abstain from doing anything in relation to an inspection.Penalty: Fine not exceeding 25 penalty units.
60. Specific inspectorial powers
(1) Subject to and for the purposes of section 59 (2) (b) and (7) , an inspector may exercise the following powers:(a) inspect and search the premises generally;(b) require the person apparently in charge of the premises to produce for inspection any document held at the premises;(c) inspect and take notes of or extracts from any such document;(d) make a copy of any such document;(e) ask questions of and require answers from persons on the premises;(f) take photographs;(g) open and inspect containers or packages which the inspector reasonably suspects are used for the purpose of, or in connection with, medical practice;(h) examine or test any equipment held on the premises;(i) require a person registered or claiming to be registered to produce a certificate of registration;(j) [Section 60 Subsection (1) amended by No. 18 of 2004, s. 56, Applied:01 Sep 2004] if the inspector suspects that this Act has been contravened, seize and, on furnishing a receipt, remove anything that in the reasonable opinion of the inspector is evidence of the contravention;(k) remove, on furnishing a receipt, any document found on the premises to the custody and control of the Council for as long as the Council considers necessary or expedient.(2) [Section 60 Subsection (2) amended by No. 18 of 2004, s. 56, Applied:01 Sep 2004] If the Council is satisfied that a person has a legitimate need to access a document that has been removed from premises to the custody and control of the Council under subsection (1) (k) , the Council may –(a) grant the person reasonable access to the document or to a copy of the document; or(b) provide the person with a copy or certified copy of the document; or(c) retain a copy of the document and return the original to the premises.
60A. Complaints may be dealt with despite other proceedings
[Section 60A Inserted by No. 18 of 2004, s. 57, Applied:01 Sep 2004] Complaints may be made and dealt with under this Part even if the medical practitioner concerned is the subject of proposed or current criminal or civil proceedings relating to the subject matter of the complaint.
PART 5 - Appeals
(1) A person may appeal to the Supreme Court against any of the following:(a) the refusal of the Council to register the person;(b) [Section 61 Subsection (1) amended by No. 18 of 2004, s. 58, Applied:01 Sep 2004] the imposition under section 28(2) or (3) , section 39A or section 51(5) of a condition on the person's registration, whether or not the condition has been modified under section 43A ;(c) [Section 61 Subsection (1) amended by No. 18 of 2004, s. 58, Applied:01 Sep 2004] the removal of the person's name from the register, other than removal under section 40(1)(b)(ii) or (iii) or section 40(1)(c) ;(d) the refusal of the Council to restore the person's name to the register under section 42 ;(e) the suspension of the person's registration under section 55 ;(f) [Section 61 Subsection (1) amended by No. 18 of 2004, s. 58, Applied:01 Sep 2004] the refusal of the Council to record in the register additional particulars or qualifications in respect of the person;(g) [Section 61 Subsection (1) amended by No. 18 of 2004, s. 58, Applied:01 Sep 2004] the refusal of the Council to issue the person with a new certificate of registration under section 39(7) or (8) ;(h) [Section 61 Subsection (1) amended by No. 18 of 2004, s. 58, Applied:01 Sep 2004] a decision made by the Tribunal under section 52(1)(a) , (b) , (c) , (d) , (e) or (f) in respect of the person.(2) The Council may appeal to the Supreme Court against –(a) a decision of the Tribunal under paragraph (g) of section 52 (1) ; or(b) any other decision of the Tribunal under section 52 (1) if the Council considers that the action to be taken pursuant to the decision is an inadequate penalty in the circumstances.(3) An appeal is to be made within 14 days after notice of the Council's or Tribunal's decision is given to the affected person.
[Section 62 Substituted by No. 18 of 2004, s. 59, Applied:01 Sep 2004](1) On the hearing of an appeal, the Supreme Court may –(a) affirm the decision of the Council or Tribunal; or(b) vary the decision of the Council or Tribunal; or(c) quash the decision of the Council or Tribunal.(2) If subsection (1)(c) applies, the Court may, according to the circumstances of the case –(a) substitute, for the decision it has quashed, any decision that the Council or Tribunal would have had jurisdiction to make in those circumstances; or(b) remit the matter to the Council or Tribunal, with or without directions, for further hearing or consideration or for rehearing or reconsideration.(3) The Court may make any further order that it considers just in the circumstances.
PART 6 - Offences
Division 1 - Public and professional safeguards
63. Offence to practise medicine, &c., if unregistered
A person who is not a registered medical practitioner must not –(a) practise medicine; or(b) carry out an act that by or under an Act is required to be carried out by a registered medical practitioner.Penalty: Fine not exceeding 100 penalty units and a daily fine not exceeding 10 penalty units.
A person who is not a registered medical practitioner must not hold himself or herself out, or allow himself or herself to be held out, as being a registered medical practitioner or as being in any way authorised or qualified to practise medicine.Penalty: Fine not exceeding 50 penalty units and a daily fine not exceeding 2·5 penalty units.
65. Unauthorised use of certain titles
A person who is not a registered medical practitioner must not practise a profession or trade under any one or more of the following titles:[Section 66 Repealed by No. 18 of 2004, s. 62, Applied:01 Sep 2004] . . . . . . . .(a) medical practitioner;(b) registered medical practitioner;(c) certified medical practitioner;(d) licensed medical practitioner;(e) qualified medical practitioner;(f) [Section 65 Amended by No. 18 of 2004, s. 61, Applied:01 Sep 2004] a prescribed title.Penalty: Fine not exceeding 50 penalty units and a daily fine not exceeding 2·5 penalty units.
Division 2 - Offences by practitioners and bodies corporate
A registered medical practitioner who writes a prescription must –(a) ensure that the medical practitioner's name and business address are clearly and indelibly stamped or printed on the prescription; and(b) specify in the prescription the date on which it is written; and(c) sign it with his or her usual signature.Penalty: Fine not exceeding 25 penalty units.
68. Failure to notify Council of civil claims
(1) [Section 68 Subsection (1) amended by No. 18 of 2004, s. 63, Applied:01 Sep 2004] A registered medial practitioner must give the Council notice within 60 days after any proceedings claiming damages or other compensation for alleged negligence in the practice of medicine are commenced against that registered medical practitioner.Penalty: Fine not exceeding 15 penalty units.(2) [Section 68 Subsection (2) amended by No. 18 of 2004, s. 63, Applied:01 Sep 2004] A registered medical practitioner must give the Council notice within 60 days after –(a) any proceedings claiming damages or other compensation for alleged negligence by the medical practitioner in the practice of medicine are withdrawn or settled; or(b) a court or other tribunal makes an order in respect of any such proceedings.Penalty: Fine not exceeding 15 penalty units.
69. Improper disposal of medical records
(1) A person who ceases permanently to practise medicine, whether by reason of retirement or otherwise, must dispose of the medical records held by that person in an approved manner.Penalty: Fine not exceeding 50 penalty units.(2) The personal representative of a deceased medical practitioner must dispose of the medical records that were held by that medical practitioner in an approved manner.Penalty: Fine not exceeding 50 penalty units.(3) [Section 69 Subsection (3) amended by No. 18 of 2004, s. 64, Applied:01 Sep 2004] For the purposes of subsections (1) and (2) , a person is taken to have disposed of medical records in an approved manner if the person does either, or any combination, of the following:(a) disposes of those records in a manner and within a period approved by the Council before the person starts the process of disposal;(b) [Section 69 Subsection (3) amended by No. 18 of 2004, s. 64, Applied:01 Sep 2004] . . . . . . . .(c) [Section 69 Subsection (3) amended by No. 18 of 2004, s. 64, Applied:01 Sep 2004] transfers those records to the custody of a registered medical practitioner or medical services provider, whether as a result of the sale or transfer of the relevant medical practice or otherwise, and gives the Council a notice setting out particulars of the transfer before the expiration of a period of 90 days after –(i) in a case to which subsection (1) applies – ceasing to practise; or(ii) in a case to which subsection (2) applies – the person's appointment as personal representative.
70. Improper directions and inducements
[Section 70 Substituted by No. 18 of 2004, s. 65, Applied:01 Sep 2004](1) In this section –induce means induce by making a threat or offering approval, encouragement or a reward.(2) A person must not direct, induce, assist or allow a registered medical practitioner to engage in any conduct if the person knows, or reasonably ought to know, that the conduct constitutes, or is reasonably likely to constitute, professional misconduct for the purposes of Part 4 .Penalty: Fine not exceeding 50 penalty units.
Division 3 - General offences and contempts
(1) A person must not make or produce, or cause to be made or produced, a false or misleading statement, either orally or in writing, in connection with –(a) [Section 71 Subsection (1) amended by No. 18 of 2004, s. 67, Applied:01 Sep 2004] an application or assessment; or(b) [Section 71 Subsection (1) amended by No. 18 of 2004, s. 67, Applied:01 Sep 2004] an investigation; or(c) [Section 71 Subsection (1) amended by No. 18 of 2004, s. 67, Applied:01 Sep 2004] a formal or informal inquiry; or(d) [Section 71 Subsection (1) amended by No. 18 of 2004, s. 67, Applied:01 Sep 2004] an inspection.Penalty: Fine not exceeding 25 penalty units.(2) A person must not forge or change a certificate of registration or an interim certificate of registration.Penalty: Fine not exceeding 25 penalty units.(3) A person must not forge or change a degree, diploma or other evidence of qualifications for registration under this Act.Penalty: Fine not exceeding 25 penalty units.
A person must not obstruct, hinder, threaten or intimidate another person –(a) in the exercise by that other person of a power conferred by this Act; or(b) in the performance of a duty imposed on that other person bythis Act.Penalty: Fine not exceeding 50 penalty units.
73. Offences relating to formal inquiries, &c.
[Section 73 Substituted by No. 18 of 2004, s. 68, Applied:01 Sep 2004](1) A person must not, without reasonable excuse –(a) fail to attend a formal inquiry as required by summons; or(b) fail in a formal inquiry to comply with the requirement to affirm or be sworn; or(c) fail to produce a document when required by the Tribunal to do so; or(d) fail to answer questions required by the Tribunal to be answered.Penalty: Fine not exceeding 25 penalty units and a daily fine not exceeding 2·5 penalty units.(2) In a formal inquiry, a person may be required by the Tribunal to answer a question or produce a document notwithstanding that the answer to the question or the contents of the document may tend to incriminate that person.(3) If in a formal inquiry a person objects to answering a question or producing a document on the grounds that to do so may tend to incriminate that person, the answer to the question or the contents of the document are not admissible in evidence in any other proceedings in respect of the person, other than proceedings in respect of an offence under section 71 or in respect of an appeal under Part 5 .
73A. Compellability of witnesses in formal inquiries
[Section 73A Inserted by No. 18 of 2004, s. 68, Applied:01 Sep 2004][Section 74 Subsection (1) substituted by No. 18 of 2004, s. 69, Applied:01 Sep 2004] [Section 74 Repealed by No. 2 of 2007, s. 7, Applied:17 Apr 2007] . . . . . . . .(1) If –the Tribunal may apply to a magistrate for a warrant to have the person apprehended and brought before the Tribunal.(a) the Tribunal has summonsed a person to appear before it to give evidence or to produce a document or other thing specified in the summons; and(b) the person fails, without giving the Tribunal a reasonable excuse or any explanation at all, to attend before the Tribunal or to produce that document or thing –(2) A magistrate to whom an application under subsection (1) is made may issue a warrant if satisfied that the person who is the subject of the application –(a) has been summonsed by the Tribunal to appear before it to give evidence or to produce a document or other thing specified in the summons; and(b) has failed, without giving the Tribunal reasonable excuse or any explanation at all, to attend before the Tribunal or to produce that document or thing.(3) A warrant issued under this section authorises any police officer to –(a) apprehend the person named in the warrant and bring that person before the Tribunal; and(b) detain that person in custody to secure the person's attendance before the Tribunal.(4) A police officer executing a warrant issued under this section is, for that purpose, authorised to enter and search any place, building, vehicle or vessel, using such force and assistance as is reasonably necessary.(5) A person who is apprehended and detained in custody pursuant to a warrant issued under this section may apply to a judge of the Supreme Court to be released from custody.(6) The release of a person from custody under this section may be made subject to any conditions the judge considers appropriate.
PART 7 - Miscellaneous
Division 1 - Obligations to provide information
75. Medical practitioners' notices relating to fitness to practise
[Section 75 Subsection (1) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] [Section 75 Substituted by No. 18 of 2004, s. 70, Applied:01 Sep 2004] A registered medical practitioner who signs an order under the Mental Health Act 1996 or a medical recommendation within the meaning of the Alcohol and Drug Dependency Act 1968 in relation to a person who the registered medical practitioner knows or believes is also registered as a medical practitioner under this Act must, as soon as practicable after signing the order or recommendation, give the Council notice of that fact.Penalty: Fine not exceeding 5 penalty units.
76. Provision of information by medical services providers
[Section 76 Substituted by No. 18 of 2004, s. 70, Applied:01 Sep 2004](1) In this section –reasonable period means a period, of not less than 21 days, determined by the Council;relevant information means information that the Council reasonably considers it necessary or expedient to have for the purpose of exercising its powers or performing its functions.(2) The Council may, by notice, require a medical services provider to give the Council –(a) any relevant information about the medical services provider's legal or business structure, management, staff or operations; and(b) if applicable, any relevant information about the medical services provider's membership or shareholdings; and(c) if applicable, a copy of the medical services provider's memorandum or articles of association.(3) A medical services provider must comply with a notice under subsection (2) within such reasonable period as is specified in the notice.Penalty: Fine not exceeding 50 penalty units and a daily fine not exceeding 5 penalty units.(4) The Council may, by notice, require a registered medical practitioner to give it any relevant information about his or her involvement with a medical services provider.(5) A registered medical practitioner must comply with a notice under subsection (4) within such reasonable time as is specified in the notice.Penalty: Fine not exceeding 25 penalty units and a daily fine not exceeding 2.5 penalty units.
Division 2 - Administrative and legal
[Section 77 Substituted by No. 18 of 2004, s. 71, Applied:01 Sep 2004](1) In this section –Council includes –(a) an assessment committee or other committee; and(b) an investigator.(2) A document may be given to the Council or the Tribunal by –(a) leaving it at, or sending it by post to, the Council's or Tribunal's address; or(b) faxing it to the Council's or Tribunal's facsimile number; or(c) emailing it to the Council's or Tribunal's email address.(3) A document may be given to another person by –(a) in the case of an individual –(i) handing it to the person; or(ii) leaving it at, or sending it by post to, the person's postal or residential address or place of business or employment last known to the giver of the document; or(iii) faxing it to the person's facsimile number; or(iv) emailing it to the person's email address; and(b) in the case of another person –(i) leaving it at, or sending it by post to, the person's principal or registered office or principal place of business; or(ii) faxing it to the person's facsimile number; or(iii) emailing it to the person's email address.(4) A document that is posted to a person is taken to have been given to the person when it is delivered in the ordinary course of post.
(1) [Section 78 Subsection (1) substituted by No. 18 of 2004, s. 72, Applied:01 Sep 2004] The Council may have a seal and, if it does, the seal is to be kept and used as authorised by the Council.(2) [Section 78 Subsection (2) amended by No. 18 of 2004, s. 72, Applied:01 Sep 2004] All courts and persons acting judicially must take judicial notice of the imprint of the seal on a document and presume that it was duly sealed by the Council.
In any proceedings, unless evidence is given to the contrary, proof is not required of –(a) the constitution of the Council, the Tribunal or a committee; or(b) any resolution of the Council, the Tribunal or a committee; or(c) [Section 79 Amended by No. 18 of 2004, s. 73, Applied:01 Sep 2004] the presence of a quorum at any meeting of the Council, the Tribunal or a committee; or(d) [Section 79 Amended by No. 18 of 2004, s. 73, Applied:01 Sep 2004] the appointment of any member of the Council, the Tribunal or a committee; or(e) [Section 79 Amended by No. 18 of 2004, s. 73, Applied:01 Sep 2004] the appointment of any investigator or inspector.
80. Appropriation of fees, penalties and fines
(1) All fees payable and all penalties imposed and recovered under this Act are to be paid to the Council.(2) A fee payable under this Act may be recovered as a debt due to the Council.(3) [Section 80 Subsection (3) amended by No. 18 of 2004, s. 74, Applied:01 Sep 2004] A fine imposed on a person under section 52 (1) (c) is payable to, and may be recovered as a debt due to, the Council.(4) [Section 80 Subsection (4) inserted by No. 18 of 2004, s. 74, Applied:01 Sep 2004] Any costs or expenses ordered to be paid under section 53(1) are payable to, and may be recovered as a debt due to, the Council.
81. No right of recovery by unregistered person, &c.
(1) A person is not entitled to recover a fee or other remuneration for a medical service that he or she has provided on his or her own account unless he or she was a registered medical practitioner at the time the service was provided.(2) A body corporate that provides medical services is not entitled to recover a fee or other remuneration for or in connection with a medical service provided in its name or on its behalf unless the service was provided by a registered medical practitioner.(3) [Section 81 Subsection (3) omitted by No. 18 of 2004, s. 75, Applied:01 Sep 2004] . . . . . . . .
82. Punishment of conduct constituting an offence
[Section 82 Amended by No. 18 of 2004, s. 76, Applied:01 Sep 2004] If conduct that constitutes an offence against this Act is also grounds for action under section 49D , 52 or 55 –(a) the taking of the action is not a bar to conviction and punishment for the offence; and(b) conviction and punishment for the offence is not a bar to the taking of the action under this Act.
83. Offences by bodies corporate
(1) If a body corporate commits an offence against this Act, each person concerned in the management of that body corporate is taken also to have committed the offence and may be convicted of the offence unless the person proves that the act or omission constituting the offence took place without that person's knowledge or consent.(2) A person referred to in subsection (1) may be convicted of an offence against this Act whether or not the body corporate is charged with or convicted of the offence.
84. Act does not prohibit certain practices
(1) In this section, health professional includes a chiropractor, dentist, optometrist, physiotherapist and podiatrist.(2) Nothing in this Act prohibits –(a) an unregistered person from carrying out a surgical procedure on a deceased person in this State in order to retrieve organs or tissue for transplanting to a person elsewhere if that unregistered person is registered, licensed or enrolled as a medical practitioner under a foreign medical law; or(b) [Section 84 Subsection (2) amended by No. 18 of 2004, s. 77, Applied:01 Sep 2004] a health professional from providing medical services or treatment when practising his or her profession in accordance with a law of this State under which he or she is registered, enrolled or employed.(c) [Section 84 Subsection (2) amended by No. 18 of 2004, s. 77, Applied:01 Sep 2004] . . . . . . . .(d) [Section 84 Subsection (2) amended by No. 18 of 2004, s. 77, Applied:01 Sep 2004] . . . . . . . .
(1) The Governor may make regulations for the purposes of this Act.(2) [Section 85 Subsection (2) substituted by No. 18 of 2004, s. 78, Applied:01 Sep 2004] Without limiting the generality of subsection (1) , the regulations may make provision for or in relation to –(a) infection control standards to be followed by medical practitioners; and(b) the continuing professional education of medical practitioners.(3) [Section 85 Subsection (3) amended by No. 18 of 2004, s. 78, Applied:01 Sep 2004] The regulations may –(a) apply generally or be limited in their application by reference to specified exemptions or specified factors; and(b) apply differently according to different factors, limitations or restrictions of a specified kind; and(c) authorise any matter to be from time to time determined, applied or regulated by the Council or Tribunal; and(d) apply, adopt or incorporate, with or without modification, any publication as in force from time to time.(4) [Section 85 Subsection (4) amended by No. 18 of 2004, s. 78, Applied:01 Sep 2004] The regulations may –(a) provide that a contravention of, or failure to comply with, any of the regulations is an offence; and(b) in respect of any such offence, provide for the imposition of a fine not exceeding 50 penalty units and, in the case of a continuing offence, a further penalty of a fine not exceeding 5 penalty units for each day during which the offence contravenes.(5) [Section 85 Subsection (5) amended by No. 18 of 2004, s. 78, Applied:01 Sep 2004] The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or the Medical Practitioners Registration Amendment Act 2004 .(6) [Section 85 Subsection (6) amended by No. 18 of 2004, s. 78, Applied:01 Sep 2004] A provision of a regulation made pursuant to subsection (5) in respect of the enactment of this Act may, if the regulation so provides, take effect on the date referred to in section 2 or a later date.(7) [Section 85 Subsection (7) inserted by No. 18 of 2004, s. 78, Applied:01 Sep 2004] A provision of a regulation made pursuant to subsection (5) in respect of the enactment of the Medical Practitioners Registration Amendment Act 2004 may, if the regulation so provides, take effect on the day referred to in section 2 of that Act or a later day.
85A. Professional indemnity insurance guidelines
[Section 85A Inserted by No. 18 of 2004, s. 79, Applied:01 Sep 2004](1) The Minister may issue guidelines relating to the levels of professional indemnity insurance that are appropriate for medical practice in this State.(2) The guidelines may be of general application or distinguish between different categories or circumstances of medical practice.(3) In formulating the guidelines, the Minister may –(a) seek submissions from the Council; and(b) consult such providers of medical indemnity insurance, such bodies as represent the interests of medical practitioners and such other interested persons as the Minister considers appropriate; and(c) take into account such considerations as the Minister considers relevant.(4) The Minister is to give a copy of the guidelines to the Council and may publish them as he or she sees fit.(5) The Minister must, on application, provide a copy of the guidelines to any person but may charge a fee to recover the cost of doing so.(6) The guidelines are not statutory rules for the purposes of the Rules Publication Act 1953 .
Division 3 - Consequential and transitional
The Medical Act 1959 and the Medical Amendment Act 1988 are repealed.See Schedule 7.[Section 88 Repealed by No. 18 of 2004, s. 80, Applied:01 Sep 2004] . . . . . . . . [Section 89 Repealed by No. 18 of 2004, s. 80, Applied:01 Sep 2004] . . . . . . . . [Section 90 Repealed by No. 18 of 2004, s. 80, Applied:01 Sep 2004] . . . . . . . .
SCHEDULE 1 - Provisions with respect to membership of Council
1. Term of office(1) [Schedule 1 Amended by No. 18 of 2004, s. 81, Applied:01 Sep 2004] A member is to be appointed for such term of office, not exceeding 5 years, as is specified in the member's instrument of appointment.(2) [Schedule 1 Amended by No. 18 of 2004, s. 81, Applied:01 Sep 2004] If eligible, a member may be appointed for further terms of office.(3) [Schedule 1 Amended by No. 80 of 2009, Sched. 1, Applied:07 Dec 2009] [Schedule 1 Amended by No. 18 of 2004, s. 81, Applied:01 Sep 2004] Despite subclause (2) , a member is not eligible to be appointed for a further term of office that, if served in full, would result in the member having been in office continuously for more than 12 years.(4) [Schedule 1 Amended by No. 18 of 2004, s. 81, Applied:01 Sep 2004] Subclause (3) does not apply to a member referred to in section 6(1)(a) if the member is to be appointed as President for the further term of office.
2. Holding other office[Schedule 1 Amended by No. 18 of 2004, s. 81, Applied:01 Sep 2004] The holder of an office who is required by the terms of his or her employment to devote the whole of his or her time to the duties of that office is not disqualified from –(a) holding that office and also the office of a member; or(b) accepting any remuneration payable to a member.
3. Remuneration of membersA member is entitled to be paid such remuneration, including travelling and subsistence allowances, as the Council determines.
4. Vacation of office(1) A member vacates office if he or she –(a) dies; or(b) resigns; or(c) is removed from office under subclause (2) or (3) ; or(d) ceases to be qualified for office by virtue of subclause (4) , (5) or (6) .(2) The Governor may remove a member from office if the member –(a) is absent from 3 consecutive meetings of the Council without the permission of the other members of the Council; or(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or(c) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for a period exceeding 12 months; or(d) fails, without reasonable excuse, to comply with the obligation under clause 5 of Schedule 2 ; or(e) is convicted of an offence against this Act.(3) The Governor may remove a member from office if satisfied that the member is unable to perform the duties of the office competently.(4) A member appointed under section 6 (1) (a) vacates office if he or she ceases to be a registered medical practitioner.(5) [Schedule 1 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] The member appointed under section 6 (1) (b) vacates office if he or she ceases to be an Australian lawyer.(6) [Schedule 1 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] The member appointed under section 6 (1) (c) vacates office if he or she becomes a medical practitioner or Australian lawyer.
5. Filling of vacancies[Schedule 1 Amended by No. 18 of 2004, s. 81, Applied:01 Sep 2004] If the office of a member becomes vacant, the Governor may appoint a person to the vacant office for the remainder of that member's term of office.
6. Validity of proceedings, &c.(1) An act or proceeding of the Council or of a person acting under the direction of the Council is not invalid by reason only that at the time when the act or proceeding was done, taken or commenced there was a vacancy in the membership of the Council.(2) An act or proceeding of the Council or of a person acting under the direction of the Council is valid even if –(a) the appointment of a member of the Council was defective; or(b) a person appointed as a member of the Council was disqualified from acting as, or incapable of being, such a member.
SCHEDULE 2 - Provisions with respect to meetings of Council
1. Convening of meetingsA meeting of the Council may be convened by the President or by any 2 members.
2. Procedure at meetings(1) Six members form a quorum at any duly convened meeting of the Council.(2) Any duly convened meeting of the Council at which a quorum is present is competent to transact any business of the Council.(3) Questions arising at a meeting of the Council are to be determined by a majority of votes of the members present and voting.(4) In the event of an equality of votes on a question arising at a meeting of the Council, the question stands adjourned until its next meeting.
3. Who presides at meetings(1) The President is to preside at all meetings of the Council at which he or she is present.(2) If the President is not present at a meeting of the Council, a member elected by the members present is to preside at that meeting.
4. MinutesThe Council must keep accurate minutes of its meetings.
5. Disclosure of interest(1) A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Council must, as soon as practicable after the relevant facts come to the knowledge of the member, disclose the nature of that interest at a meeting of the Council.(2) A disclosure under subclause (1) is to be recorded in the minutes and the member must not, unless the Council exclusive of that member determines otherwise –(a) be present during any deliberations of the Council in relation to that matter; or(b) take part in any decision of the Council in relation to that matter.
6. Meetings to be open to public(1) [Schedule 2 Amended by No. 18 of 2004, s. 82, Applied:01 Sep 2004] In this clause, meeting does not include a meeting convened for the purpose of section 49D .(2) Except as provided in subclause (3) , a meeting of the Council is to be open to the public.(3) The Council may do either or both of the following at a meeting if it considers that there are compelling grounds to do so –(a) make an order excluding any person from the meeting;(b) make an order prohibiting the reporting or other disclosure of all or any of the proceedings at the meeting or prohibiting the reporting or other disclosure of particular information in respect of the meeting.(4) Without limiting the range of grounds that may be relevant for the purposes of subclause (3) , the Council may exercise its power under that subclause if –(a) it is dealing with privileged information or information that has been communicated to the Council in confidence; or(b) it is dealing with information concerning the personal affairs, finances or business arrangements of a registered medical practitioner; or(c) the disclosure of the proceedings or the information may be unfairly prejudicial to the reputation of a registered medical practitioner or any other person.(5) [Schedule 2 Amended by No. 2 of 2007, s. 8, Applied:17 Apr 2007] A person must not fail to comply with an order under subclause (3)(a) .Penalty: Fine not exceeding 25 penalty units.(6) [Schedule 2 Amended by No. 2 of 2007, s. 8, Applied:17 Apr 2007] A person must not fail to comply with an order under subclause (3)(b) .
7. Participation in meetings[Schedule 2 Amended by No. 18 of 2004, s. 82, Applied:01 Sep 2004](1) The Council may permit members to participate in a particular meeting or all meetings by –(a) telephone; or(b) video conference; or(c) any other means of communication approved by the Council.(2) A member who participates in a meeting under a permission granted under subclause (1) is taken to be present at the meeting.(3) The Council may allow a person to attend a meeting for the purpose of advising or informing it on any matter.
8. Report to MinisterThe Council, if requested to do so by the Minister, must furnish the Minister with any information the Minister may require in relation to the proceedings of the Council.
SCHEDULE 3 - Powers and procedures of assessment committees and investigators[Schedule 3 Substituted by No. 18 of 2004, s. 83, Applied:01 Sep 2004]
Section 11(7) and section 48(5)
1. InterpretationIn this Schedule –proceedings means –(a) an assessment; or(b) an investigation;responsible entity means –(a) for an assessment, the assessment committee carrying out the assessment; and(b) for an investigation, the investigator carrying out the investigation;responsible person means –(a) for a responsible entity that is a committee, the chairperson of the committee or the Registrar; and(b) for a responsible entity that is not a committee, the responsible entity or the Registrar.
2. Powers(1) A responsible entity –(a) may, by notice, request any person to appear before it to give evidence or to produce a document or other thing specified in the notice; and(b) may receive evidence, orally or in writing; and(c) may take evidence on oath or affirmation; and(d) may adjourn its proceedings from time to time and from place to place.(2) For the purpose of subclause (1)(c) , the responsible person may administer an oath or affirmation.(3) A responsible entity may, in its discretion, conduct its proceedings in public or in private.(4) [Schedule 3 Amended by No. 2 of 2007, s. 9, Applied:17 Apr 2007] However, a responsible entity that is conducting any proceedings in public may do either or both of the following if it considers that there are compelling grounds to do so:(a) make an order excluding any person from the proceedings;(b) make an order prohibiting the reporting or other disclosure of all or any of the proceedings or prohibiting the reporting or other disclosure of particular information in respect of the proceedings.(5) [Schedule 3 Amended by No. 2 of 2007, s. 9, Applied:17 Apr 2007] Without limiting the range of grounds that may be relevant for the purposes of subclause (4) , the responsible entity may exercise its power under that subclause if –(a) it is dealing with privileged information or information that has been communicated to the responsible entity in confidence; or(b) it is dealing with information concerning the personal affairs, finances or business arrangements of a registered medical practitioner; or(c) the disclosure of the proceedings or the information may be unfairly prejudicial to the reputation of a registered medical practitioner or any other person.(6) [Schedule 3 Amended by No. 2 of 2007, s. 9, Applied:17 Apr 2007] A person must not fail to comply with an order made under subclause (4)(a) .Penalty: Fine not exceeding 25 penalty units.(7) [Schedule 3 Amended by No. 2 of 2007, s. 9, Applied:17 Apr 2007] A person must not fail to comply with an order made under subclause (4)(b) .
3. Procedures(1) A responsible entity –(a) must conduct its proceedings with as little formality and with as much expedition as a proper consideration of the matter before it permits; and(b) is not bound by the rules of evidence; and(c) may inform itself on any matter in any way it considers appropriate; and(d) must observe the rules of natural justice.(2) A responsible entity's report to Council on any matter is to –(a) contain any findings on questions of fact and the evidence or other material on which those findings are based; and(b) set out the reasons for any recommendation.(3) Before an assessment is carried out, the relevant assessment committee or the Registrar is to give the subject of the assessment notice of –(a) the reasons for holding the assessment; and(b) the date, time and place set for the assessment.
4. Medical examinations(1) In this clause –medical examination includes an examination of the physical, psychological and mental capacities of a person.(2) A responsible entity may, by notice, require the medical practitioner who is the subject of its proceedings to have a medical examination if the responsible entity reasonably considers that the medical practitioner's medical condition may be a relevant consideration in those proceedings.(3) The Council must pay for the medical examination.(4) The notice requiring the medical examination is to specify –(a) the name of the registered medical practitioner or other health care professional who is to carry out the examination; and(b) the date, time and place of the examination.(5) The time and place specified for the medical examination must be reasonable.(6) The medical practitioner who carries out the medical examination is to give a written report of the results of the examination to –(a) the responsible entity; and(b) the person examined or, if the responsible entity so directs, a representative of that person nominated by the responsible entity.(7) The responsible entity is not to give a direction under subclause (6)(b) unless it is reasonably satisfied that it may be harmful to or otherwise not in the best interests of the person examined to be given the report.(8) A person nominated under subclause (6)(b) is to be someone who, in the reasonable opinion of the responsible entity, best represents or is capable of best representing the interests of the person examined for the purposes of the proceedings.
5. RepresentationA person who is the subject of any proceedings is not entitled to be represented in those proceedings but he or she is entitled, at any hearing held during the proceedings, to be accompanied by a legal practitioner or any other person.
SCHEDULE 4 - Provisions with respect to membership of Tribunal
1. InterpretationIn this Schedule –[Schedule 4 Amended by No. 18 of 2004, s. 84, Applied:01 Sep 2004][Schedule 4 Amended by No. 18 of 2004, s. 84, Applied:01 Sep 2004] meeting includes a hearing held in the course of a formal inquiry;member means a member of the Tribunal, and includes the chairperson.
2. Term of office, &c.(1) [Schedule 4 Amended by No. 18 of 2004, s. 84, Applied:01 Sep 2004] A permanent member is to be appointed for such term, not exceeding 5 years, as is specified in the member's instrument of appointment.(2) [Schedule 4 Amended by No. 18 of 2004, s. 84, Applied:01 Sep 2004] If eligible, a permanent member may be appointed for further terms.(3) A special member is to be appointed for the duration of the inquiry to which the member's appointment relates.(4) There is no limit to the number of times a person may be appointed as a special member.
3. Holding other office[Schedule 4 Amended by No. 18 of 2004, s. 84, Applied:01 Sep 2004] The holder of an office who is required by the terms of his or her employment to devote the whole of his or her time to the duties of that office is not disqualified from –(a) holding that office and also the office of a member; or(b) accepting any remuneration payable to a member.
4. Remuneration of members(1) A permanent or special member is entitled to be paid such remuneration, including travelling and subsistence allowances, as the Council in either case determines and any such remuneration is to be paid by the Council.(2) [Schedule 4 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] A member who is a State Service employee is not entitled to remuneration under subclause (1) except with the approval of the Minister administering the State Service Act 2000 .
5. Vacation of office(1) A member vacates office if he or she –(a) dies; or(b) resigns; or(c) is removed from office under subclause (2) or (3) ; or(d) ceases to be qualified for office by virtue of subclause (4) , (5) or (6) .(2) The Council may remove a member from office if the member –(a) [Schedule 4 Amended by No. 18 of 2004, s. 84, Applied:01 Sep 2004] being a permanent member, is absent from a meeting of the Tribunal convened for the purposes of a particular formal inquiry without the permission of the other members of the Tribunal as it is constituted for that inquiry; or(b) [Schedule 4 Amended by No. 18 of 2004, s. 84, Applied:01 Sep 2004] being a special member, is absent from a meeting of the Tribunal convened for the purposes of the formal inquiry to which the special member's appointment relates without the permission of the other members of the Tribunal as it is constituted for that inquiry; or(c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or(d) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for a period exceeding 12 months; or(e) is convicted of an offence against this Act.(3) The Council may remove a member from office if satisfied that the member is unable to perform the duties of the office competently.(4) The permanent member appointed under section 50 (2) (a) vacates office if he or she ceases to be a legal practitioner.(5) The permanent member appointed under section 50 (2) (b) vacates office if he or she becomes a medical practitioner or legal practitioner.(6) A special member vacates office if he or she ceases to be a registered medical practitioner.
6. Filling of vacancies(1) If the office of a permanent member becomes vacant, the Council may appoint a person to the vacant office for the remainder of that member's term of office.(2) The person appointed to a vacant office pursuant to subclause (1) is –(a) in the case of the office referred to in section 50 (2) (a) – to be a legal practitioner of not less than 10 years' standing; and(b) in the case of the office referred to in section 50 (2) (b) – not to be a medical or legal practitioner.
7. Validity of proceedings, &c.An act or proceeding of the Tribunal or of a person acting under the direction of the Tribunal is valid even if –(a) the appointment of a member of the Tribunal was defective; or(b) a person appointed as a member of the Tribunal was disqualified from acting as, or incapable of being, such a member.
SCHEDULE 5 - Provision with respect to powers and procedures of Tribunal[Schedule 5 Substituted by No. 18 of 2004, s. 85, Applied:01 Sep 2004]
PART 1 - General procedures[Part 1 of Schedule 5 Inserted by No. 18 of 2004, s. 85, Applied:01 Sep 2004]
1. Main procedural obligations, &c.The Tribunal –(a) must conduct its proceedings with as little formality and with as much expedition as a proper consideration of the matter before it permits; and(b) is not bound by the rules of evidence but may inform itself on any matter in any way it considers appropriate; and(c) must observe the rules of natural justice.
2. Proceedings to be open to public(1) Except as provided by this clause, the proceedings of the Tribunal are to be open to the public.(2) During any proceedings the Tribunal may, on the application of a party to the proceedings or on its own motion, do either or both of the following if it considers that there are compelling grounds to do so:(a) make an order excluding any person from the proceedings;(b) make an order prohibiting the reporting or other disclosure of all or any of the proceedings or prohibiting the reporting or other disclosure of particular information in respect of the proceedings.(3) Without limiting the range of grounds that may be relevant for the purposes of subclause (2) , the Tribunal may exercise its power under that subclause if –(a) it is dealing with privileged information or information that has been communicated to the Council or the Tribunal in confidence; or(b) it is dealing with information concerning the personal affairs, finances or business arrangements of a registered medical practitioner; or(c) the disclosure of the proceedings or the information may be unfairly prejudicial to the reputation of a registered medical practitioner or any other person.(4) Nothing in this clause is to be taken as preventing the Tribunal from –(a) meeting in camera for the purpose of preparing for any proceedings or any stage of any proceedings; or(b) meeting in camera for the purposes of reaching a finding on any matter in the course of, or at the conclusion of, any proceedings.(5) [Part 1 of Schedule 5 Amended by No. 2 of 2007, s. 10, Applied:17 Apr 2007] A person must not fail to comply with an order under subclause (2)(a) .Penalty: Fine not exceeding 25 penalty units.(6) [Part 1 of Schedule 5 Amended by No. 2 of 2007, s. 10, Applied:17 Apr 2007] A person must not fail to comply with an order under subclause (2)(b) .
3. Representation, &c.(1) A defendant in a formal inquiry is entitled to be represented in that formal inquiry by a legal practitioner or any other person.(2) The Council, at its own expense, may appoint a legal practitioner to help the Tribunal conduct a formal inquiry.(3) The Secretary may –(a) become a party to a formal inquiry; and(b) be represented in that formal inquiry by an employee of the Department.
4. Convening the TribunalThe Tribunal, as constituted for any formal inquiry, may be convened by –(a) the chairperson; or(b) a permanent member and a special member; or(c) 2 special members.
5. Constitution of Tribunal and effect of vacancies(1) Subject to this clause, the Tribunal is not competent to take any action in a formal inquiry unless each of the 2 permanent members, and each of the 3 special members appointed for that inquiry, is present.(2) If one of the members, other than the chairperson, constituting the Tribunal for a formal inquiry vacates office for any reason before that inquiry is completed, the inquiry may be continued and completed by the remaining 4 members regardless of whether, in the case of a vacancy in the office referred to in section 50(2)(b) , any other person is appointed to the vacant office.(3) If more than one of the members constituting the Tribunal for a formal inquiry vacates office for any reason before that inquiry is completed, the inquiry is terminated.(4) If a formal inquiry is terminated by virtue of subclause (3) , the Tribunal may be reconstituted for the purposes of conducting a new formal inquiry on the same matter.(5) For the purposes of this clause, a formal inquiry is taken to have been completed once the Tribunal has taken an action under section 52 .
6. ChairpersonThe chairperson is to preside over all proceedings of the Tribunal.
7. MinutesThe Tribunal is to keep –(a) accurate minutes of its meetings; and(b) a verbatim record of each hearing held in the course of a formal inquiry.
PART 2 - Facilitation of proceedings[Part 2 of Schedule 5 Inserted by No. 18 of 2004, s. 85, Applied:01 Sep 2004]
8. Practice directions(1) The chairperson may –(a) issue such practice directions in relation to the practice and procedure of the Tribunal as the chairperson thinks fit; and(b) vary or revoke any such practice directions; and(c) publish any such practice directions as the chairperson thinks fit.(2) The practice and procedure of the Tribunal is to be in accordance with the practice directions from time to time in force unless the provisions of any Act or the provisions of any rules or other statutory instruments made under an Act provide otherwise.
9. Specific determinations and directions(1) Before the first hearing is held in a formal inquiry, the chairperson may –(a) determine any question of law or procedure that is expected to arise later in the proceedings; and(b) determine any other question that the chairperson considers necessary or convenient to determine in order to ensure that the remainder of the proceedings will be conducted fairly and expeditiously; and(c) give such directions, consistent with the practice directions issued under clause 8 , as the chairperson thinks fit for the purposes of resolving any issue or matter that he or she considers necessary or convenient to resolve for the remainder of the proceedings.(2) At any time during a formal inquiry, the Tribunal may –(a) determine any question of law or procedure that is expected to arise later in the proceedings; and(b) determine any other question that it considers necessary or convenient to determine in order to ensure that the remainder of the proceedings will be conducted fairly and expeditiously; and(c) give such directions, consistent with the practice directions issued under clause 8 , as it thinks fit for the purposes of resolving any issue or matter that it considers necessary or convenient to resolve for the remainder of the proceedings.
PART 3 - Votes and decisions[Part 3 of Schedule 5 Inserted by No. 18 of 2004, s. 85, Applied:01 Sep 2004]
10. Voting(1) Questions arising for determination by the Tribunal are to be determined by a majority of votes of the members present and voting.(2) In the event of an equality of votes on a question arising for determination by the Tribunal, the question stands adjourned until it is next convened.(3) The vote of a special member is equal to the vote of a permanent member.
11. Announcement of decisions(1) At the conclusion of a formal inquiry, the Tribunal may announce its decision.(2) The announcement may be made by –(a) the Tribunal sitting together; or(b) the chairperson sitting alone.(3) An announcement is to be in addition to, and not in substitution for, a notice under section 54 .
12. Tribunal may take other matters into account in making its decision(1) In making its decision in a formal inquiry, the Tribunal may take into account any evidence that has been given in the formal inquiry concerning any matter that the Tribunal is satisfied could constitute grounds for a further complaint against the defendant.(2) Subclause (1) has effect whether or not any person has made a complaint about the matter that the Tribunal takes into account.(3) Subclause (1) does not prevent –(a) a person from making a complaint about the matter that the Tribunal takes into account; or(b) the Council from taking action under section 48A about the matter that the Tribunal takes into account.
PART 4 - Powers[Part 4 of Schedule 5 Inserted by No. 18 of 2004, s. 85, Applied:01 Sep 2004]
13. General powersThe Tribunal may –(a) by summons, require any person to appear before it to give evidence or to produce any document or other thing specified in the summons; and(b) require any person appearing before it to produce any document; and(c) require any person appearing before it to give evidence on oath or affirmation; and(d) require any person appearing before it to answer questions; and(e) proceed with and determine any proceedings notwithstanding the absence of a person who has been summonsed to appear; and(f) adjourn any proceedings from time to time and place to place.
14. Power to require medical examinations(1) In this clause –medical examination includes an examination of the physical, psychological and mental capacities of a person.(2) The Tribunal may, by notice, require the defendant in a formal inquiry to have a medical examination if the Tribunal reasonably considers that the defendant's medical condition may be a relevant consideration in that formal inquiry.(3) Unless the Tribunal under section 53 orders otherwise, the Council must pay for the medical examination.(4) The notice requiring the medical examination is to specify –(a) the name of the registered medical practitioner or other health care professional who is to carry out the examination; and(b) the date, time and place of the examination.(5) The time and place specified for the medical examination must be reasonable.(6) The medical practitioner who carries out the medical examination is to give a written report of the results of the examination to –(a) the Tribunal; and(b) the defendant or, if the Tribunal so directs, a representative of the defendant nominated by the Tribunal.(7) The Tribunal is not to give a direction under subclause (6)(b) unless it is reasonably satisfied that it may be harmful to or otherwise not in the best interests of the defendant to be given the report.(8) A person nominated under subclause (6)(b) is to be someone who, in the reasonable opinion of the Tribunal, best represents or is capable of best representing the interests of the defendant for the purposes of the formal inquiry.
SCHEDULE 6 - Provisions with respect to inspection warrants
1. Applications for warrants(1) An application for a search warrant is to be made in writing.(2) A magistrate is not to issue a warrant unless –(a) the application for the warrant sets out the grounds for seeking the warrant; and(b) the applicant for the warrant has given the magistrate, either orally or in writing, any further information the magistrate requires concerning the grounds for seeking the warrant; and(c) the information given by the applicant is verified before the magistrate on oath or by affidavit.
2. Record of proceedings before magistrateA magistrate who issues a warrant is to cause a record to be made of all relevant particulars of the grounds the magistrate has relied on to justify the issue of the warrant.
3. Duty to show warrants(1) In this clause, occupier includes a person in charge of premises.(2) An inspector executing a warrant is to produce the warrant for inspection by an occupier of the premises if the requested to do so by that occupier.
4. Assistance in executing warrantsA person may execute a search warrant using such assistance as the person considers necessary.
5. Expiry of warrantsA warrant ceases to have effect –whichever first occurs.(a) on the date specified in the warrant as the date on which it ceases to have effect; or(b) if it is withdrawn before that date by the magistrate who issued the warrant; or(c) when it is executed; or(d) if the person to whom it is issued ceases to be an inspector –
6. Reports to magistrate on execution of warrants, &c.(1) The inspector to whom a warrant is issued is to furnish a report in writing to the magistrate who issued the warrant –(a) stating whether or not the warrant has been executed; and(b) if the warrant has been executed – setting out briefly the result of the execution of the warrant, including a brief description of anything seized; and(c) if the warrant has not been executed – setting out briefly the reasons why the warrant has not been executed.(2) A report with respect to a warrant is to be made within the period of 10 days immediately after the execution of the warrant or the expiry of the warrant, whichever first occurs.
7. Death, absence, &c., of magistrate who issued warrantIf the magistrate who issued a warrant has died, has ceased to be a magistrate, or is absent, a report required to be furnished to that magistrate is to be furnished to another magistrate.
8. Defects in warrantsA warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.
SCHEDULE 7 - Consequential amendmentsThe amendments effected by this Schedule have been incorporated into the authorised version of the following Acts:
(a) Blood Transfusion (Limitation of Liability) Act 1985 ;(b) Chiropractors Registration Act 1982 ;(c) Coroners Act 1995 ;(d) Health (Regional Boards) Act 1991 ;(e) Industrial Relations Act 1984 ;(f) Jury Act 1899 ;(g) Poisons Act 1971 ;(h) Psychologists Registration Act 1976 ;(i) Therapeutic Goods and Cosmetics Act 1976 .
SCHEDULE 8[Schedule 8 Repealed by No. 18 of 2004, s. 87, Applied:01 Sep 2004]
SCHEDULE 9[Schedule 9 Repealed by No. 18 of 2004, s. 87, Applied:01 Sep 2004]