Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Division 5.3 Health care worker code of conduct
94A Definitions—div 5.3
In this division:
"code of conduct" means the health care worker code of conduct prescribed under section 94C.
"complaint" means a complaint made under section 39 (1) (b) (iia) that a health care worker acted inconsistently with the code of conduct.
"corresponding law" means a law, or part of a law, of a State that is—
(a) about the conduct required of a health care worker; and
(b) prescribed by regulation as a corresponding law for this division.
Note State includes the Northern Territory (see Legislation Act
, dict, pt 1).
"final order"—see section 94H (1).
"health care worker"—see section 94B.
"interim order"—see section 94G (1).
"prohibition or condition order", for a health care worker, means an order made by the commission, in writing, to do any of the following:
(a) prohibit the health care worker from providing a health service;
(b) prohibit the health care worker from offering, advertising or otherwise promoting a health service (including a health service provided by another person);
(c) prohibit the health care worker from holding themselves out or otherwise promoting themselves as a provider of a health service;
(d) prohibit the health care worker from providing advice in relation to the provision of a health service (including a health service provided by another person);
(e) place a condition on the provision of a health service by the health care worker.
"public servant complaint"—see section 94D (1).
"public service entity" means either of the following:
(a) the public service;
(b) a statutory office-holder.
"public statement" means a public statement made by the commission under section 94I.
"register" means the register of prohibition or condition orders under section 94Q.
"relevant professional body", for a health care worker, means a professional body—
(a) of which the health care worker is, or is eligible to be, a member; or
(b) that has members who provide the health service provided by the health care worker; or
(c) that the commission is satisfied on reasonable grounds is relevant to the health care worker and the health service provided by the health care worker.
94B Meaning of health care worker —div 5.3
(1) In this division:
"health care worker"—
(a) means an individual who provides a health service to another individual; but
(b) does not include an individual to the extent that the individual provides the health service—
(i) as a health practitioner; or
(ii) as a registered teacher carrying out teaching duties.
(2) In this section:
"registered teacher"—see the ACT Teacher Quality Institute Act 2010
, dictionary.
"teaching"—see the ACT Teacher Quality Institute Act 2010
94C Code of conduct may be prescribed
A regulation may prescribe a code of conduct in relation to the provision of a health service by a health care worker.
94D Code of conduct breach by public servants
(1) This section applies to a complaint made to the commission about a public servant acting inconsistently with the code of conduct in relation to the provision of a health service to another individual as part of their employment as a public servant (a public servant complaint ).
(2) The Executive may determine a process the commission and relevant public service entities must follow in dealing with public servant complaints.
(3) Before determining a process, the Executive must consult the commission.
(4) The Executive must be reasonably satisfied that a process determined under subsection (2) gives a health care worker who is the subject of a public servant complaint no less protection than that given to a health care worker who is the subject of a prohibition or condition order, or public statement, to which section 94F applies.
(5) A process may include provision for the following:
(a) the sharing of information mentioned in section 94E (1) about a public servant complaint with the relevant public service entity;
(b) who the relevant public service entity is for a particular complaint;
(c) the commission and the public sector standards commissioner to establish a relationship protocol to help ensure public servant complaints are dealt with promptly and efficiently;
(d) the commission not to make a final prohibition or condition order in relation to a public servant complaint while a misconduct procedure is being conducted, without the agreement of the public sector standards commissioner;
(e) the commission to be able to extend the period an interim order is in force while a misconduct procedure is conducted.
(6) A process is a disallowable instrument.
(7) In this section:
"misconduct procedure" means a misconduct procedure under the Public Sector Management Act 1994
or an enterprise agreement approved under the Fair Work Act 2009
(Cwlth).
94E Code of conduct breach by public servants—information sharing
(1) The commission may disclose any information that has been disclosed to, or obtained by, the commission in the consideration of a public servant complaint to an information sharing entity if the commission considers that—
(a) the information is relevant to the exercise of the information sharing entity's functions; and
(b) the disclosure of the information to the information sharing entity is appropriate.
(2) An information sharing entity may disclose any information held by the entity to the commission if the entity considers that—
(a) the information is relevant to the commission's consideration of a public servant complaint; and
(b) the disclosure of the information to the commission is appropriate.
(3) In this section:
"head", of a public service entity, means—
(a) for the public service—the head of service; and
(b) for an administrative unit—the director-general of the administrative unit; and
(c) for a statutory office-holder—the statutory office-holder.
"information sharing entity "means either of the following:
(a) the public sector standards commissioner;
(b) the head of a public service entity.
94F Principles for making prohibition or condition order or public statement
In making a prohibition or condition order or public statement, the commission—
(a) must act with as little formality as reasonably practicable; and
(b) is bound by the rules of natural justice; and
(c) is not bound by the rules of evidence; and
(d) before making a decision affecting a person, must give the person an opportunity to make submissions to the commission about the decision.
Note The commission must deal with complaints promptly and efficiently (see s 45).
94G Interim prohibition or condition order
(1) The commission may make a prohibition or condition order in relation to a health care worker for a stated period of not more than 8 weeks (an "interim order") if the commission—
(a) is considering a complaint in relation to the health care worker; and
(b) believes on reasonable grounds that—
(i) the health care worker acted inconsistently with the code of conduct; and
(ii) there would be a serious risk to the health or safety of the public if the health care worker continued to provide a health service.
(2) The period of the interim order must not be longer than the period reasonably required for the commission to decide if a final prohibition or condition order is required.
(3) For a public servant complaint, the period of an interim order may be affected by the process determined under section 94D.
(4) As soon as practicable after making an interim order, the commission must give a copy of the order to the health care worker.
Note The commission must also give the health care worker a statement of reasons (see s 94J).
(5) The commission may give a copy of an interim order to—
(a) any relevant professional body for the health care worker; and
(b) another person if satisfied on reasonable grounds that it is in the interest of the health or safety of the public to do so.
Examples—par (b)
• the health care worker's employer
• a related health service provider
• a client
94H Final prohibition or condition order
(1) The commission may make a prohibition or condition order in relation to a health care worker for a stated period, including a permanent order, (a "final order") if—
(a) the commission is satisfied on reasonable grounds that there would be a serious risk to the health or safety of the public if the health care worker continued to provide a health service; and
(b) either of the following apply:
(i) the commission—
(A) has considered a complaint in relation to the health care worker; and
(B) is satisfied on reasonable grounds that the health care worker acted inconsistently with the code of conduct;
(ii) the health care worker is convicted of an offence under any of the following in relation to a health service provided by the health care worker:
(A) the Competition and Consumer Act 2010
(Cwlth);
(B) the Fair Trading (Australian Consumer Law) Act 1992
;
(C) the Health Act 1993
, section 127 (Provision of regulated health service by person not health practitioner);
(D) the Health Practitioner Regulation National Law (ACT)
, part 7, division 10;
(E) the Public Health Act 1997
.
(2) The period of the final order must not be longer than the period reasonably required to protect the health or safety of the public.
(3) However, if the health care worker is a health practitioner, the commission must not make a final order without—
(a) giving the relevant board for the health practitioner a reasonable opportunity to respond to the proposed order; and
(b) considering the response (if any).
(4) As soon as practicable after making a final order, the commission must give a copy of the order to the health care worker.
Note The commission must also give the health care worker a statement of reasons (see s 94J).
(5) The commission may give a copy of a final order to—
(a) any relevant professional body for the health care worker; or
(b) another person if satisfied on reasonable grounds that it is in the interest of the health or safety of the public to do so.
94I Public statement about health care worker or health service
(1) The commission may make a public statement in relation to a health care worker if the commission believes on reasonable grounds that there is a serious risk to the health or safety of the public in relation to—
(a) a health service provided or offered by the health care worker; or
(b) the health care worker being convicted of an offence under any of the following in relation to a health service provided by the health care worker:
(i) the Competition and Consumer Act 2010
(Cwlth);
(ii) the Fair Trading (Australian Consumer Law) Act 1992
;
(iii) the Health Act 1993
, section 127 (Provision of regulated health service by person not health practitioner);
(iv) the Health Practitioner Regulation National Law (ACT)
, part 7, division 10;
(v) the Public Health Act 1997
.
(2) The commission may make a public statement in relation to a health service if the commission believes on reasonable grounds that there is a serious risk to the health or safety of the public arising from the health service.
(3) A public statement may be made in any form.
(4) A public statement made in relation to a health care worker may include any of the following:
(a) the identity of the health care worker;
(b) information, including a warning, about—
(i) the health care worker; or
(ii) the health service provided by the health care worker;
(c) if the health care worker provides the health service in connection with a provider—
(i) the identity of the provider; and
(ii) information, including a warning, about the provider;
(d) information contained in a final order made in relation to the health care worker.
(5) A public statement made in relation to a health service may contain information, including a warning, about the health service generally.
(6) The commission—
(a) may vary or withdraw a public statement; and
(b) if a statement is varied or withdrawn—must set out the reason for the variation or withdrawal in the same form as the statement was made.
94J Statement of reasons for prohibition or condition order or public statement
(1) If the commission makes a prohibition or condition order or a public statement in relation to a health care worker, the commission must give a statement of reasons for making the order or statement to—
(a) the health care worker; and
(b) for a final order or a public statement made in relation to a complaint made about the health care worker—the complainant.
Note For what must be included in a statement of reasons, see the Legislation Act
, s 179.
(2) The commission may also do 1 or more of the following:
(a) make the statement of reasons publicly available;
(b) give a copy of the statement to any relevant professional body for the health care worker;
(c) give a copy of the statement to another person if satisfied on reasonable grounds it is in the interest of the health or safety of the public to do so.
(3) Before giving the statement of reasons to a person or making it publicly available, the commission may remove confidential information from the statement if the commission sets out in the statement—
(a) that information was removed because it was confidential; and
(b) the nature of the information that was removed.
(4) This section does not affect the power of a court to make an order for the discovery of a document or to require the giving of evidence or the production of documents to a court.
(5) In this section:
"confidential information", in relation to a statement of reasons, means information—
(a) that is not publicly available when the statement is made; and
(b) that is about the personal or business affairs of a person other than the person who is given the statement; and
(c) where 1 or more of the following apply:
(i) the information was given to the commission in confidence;
(ii) publishing the information would reveal a trade secret;
(iii) the information was provided in compliance with a duty imposed under an Act;
(iv) the commission would breach a law by providing the information.
94K Correction of public statement
(1) This section applies if the commission becomes aware a public statement is incorrect in a material way.
(2) The commission must make a statement setting out the correct information or withdraw the public statement.
Note If a statement is changed or withdrawn, the commission must set out the reason for the change or withdrawal in the same form as the statement was made (see s 94I (6)).
94L Variation of prohibition or condition order
(1) A health care worker may, in writing, ask the commission to vary a prohibition or condition order made in relation to the health care worker if there has been a material change in a matter giving rise to the making of the order.
(2) The commission must, on application or on its own initiative, vary an order if the commission is satisfied—
(a) a prohibition or condition in the order is no longer required to protect the health or safety of the public; or
(b) a prohibition or condition in the order is more restrictive than what is reasonably required to protect the health or safety of the public; or
(c) the period of the order is longer than the period reasonably required to protect the health or safety of the public.
(3) However, if the health care worker is a health practitioner, the commission must not vary an order without—
(a) giving the relevant board for the health practitioner a reasonable opportunity to respond to the proposed order; and
(b) considering the response (if any).
(4) As soon as practicable after varying an order, the commission must give a copy of the varied order to the health care worker.
(5) The commission may give a copy of a varied order to—
(a) any relevant professional body for the health care worker; or
(b) another person if satisfied on reasonable grounds that it is in the interest of the health or safety of the public to do so.
(6) If an order is varied, the commission must include on the register the reason for the variation.
94M Cancellation of prohibition or condition order
(1) A health care worker may, in writing, ask the commission to cancel a prohibition or condition order made in relation to the health care worker if there has been a material change in a matter giving rise to the making of the order.
(2) The commission must, on application or on its own initiative, cancel an order if the commission is satisfied the order is no longer required to protect the health or safety of the public.
(3) As soon as practicable after cancelling an order, the commission must tell the following, in writing, the order is cancelled:
(a) the health care worker;
(b) any relevant professional body for the health care worker;
(c) another person if satisfied on reasonable grounds that it is appropriate to do so.
(4) If an order is cancelled, the commission must include on the register the reason for the cancellation.
94N Health care worker must give notice of registration as health practitioner
(1) This section applies if—
(a) a prohibition or condition order has been made in relation to a person who is a health care worker; and
(b) during the period of the order, the person becomes registered under the Health Practitioner Regulation National Law (ACT)
to practise in a health profession.
(2) The person must give the commission written notice of the registration as soon as practicable after being registered.
(3) The commission may exchange information with the relevant board for the health profession in which the person has been registered about—
(a) the person's compliance with the code of conduct; and
(b) any action taken in relation to the person for acting inconsistently with the code of conduct.
94O Non-compliance with prohibition or condition order
A person commits an offence if—
(a) the person is a health care worker; and
(b) a prohibition or condition order has been made in relation to the person; and
(c) the person has been given a copy of the prohibition or condition order; and
(d) the person contravenes the order.
Maximum penalty: 100 penalty units, imprisonment for 12 months, or both.
94P Non-compliance with corresponding prohibition or condition order
(1) A person commits an offence if—
(a) the person is a health care worker; and
(b) a corresponding prohibition or condition order is in force in relation to the person in a State; and
(c) the person provides a health service in the ACT that would contravene the order if it were in force in the ACT.
Maximum penalty: 100 penalty units, imprisonment for 12 months, or both.
Note State includes the Northern Territory (see Legislation Act
, dict, pt 1).
(2) In this section:
"corresponding prohibition or condition order" means an order made under a corresponding law that—
(a) corresponds, or substantially corresponds, to a prohibition or condition order made under this division; and
(b) is prescribed by regulation as a corresponding prohibition or condition order for this division.
94Q Commission to keep register
The commission must—
(a) keep a register of prohibition or condition orders made; and
(b) ensure that current prohibition or condition orders are accessible at all times free of charge on a website approved by the commission.
94R Exchange of information
The commission may exchange information with an entity responsible for administering or upholding a corresponding law about the following:
(a) a health care worker's compliance with the code of conduct or a corresponding law;
(b) action taken in relation to a health care worker for acting inconsistently with the code of conduct or a corresponding law.
Division 5.4 Notification and review of decisions
94S Meaning of reviewable decision ––div 5.4
In this division:
"reviewable decision" means a decision mentioned in schedule 1, column 3 under a provision of this Act mentioned in column 2 in relation to the decision.
94T Reviewable decision notices
If the commission makes a reviewable decision, the commission must give a reviewable decision notice to each entity mentioned in schedule 1, column 4 in relation to the decision.
Note 1 The commission must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008
, s 67A).
Note 2 The requirements for reviewable decision notices are prescribed under the ACT Civil and Administrative Tribunal Act 2008
.
94U Applications for review
An entity mentioned in schedule 1, column 4 in relation to a reviewable decision may apply to the ACAT for a review of the decision.
Note If a form is approved under the ACT Civil and Administrative Tribunal Act 2008
for the application, the form must be used.