KEY DIRECTIONS REVIEW OF WESTERN AUSTRALIAN HEALTH PRACTITIONER LEGISLATION LEGAL AND LEGISLATIVE SERVICES BRANCH HEALTH DEPARTMENT OF WESTERN AUSTRALIA JUNE 2001 CONTENTS 1. INTRODUCTION ................................................................................................................ 2 1.1 Summary ........................................................................................................................ 2 1.2 Aims of Review............................................................................................................... 2 1.3 Consultation Process...................................................................................................... 2 1.4 Legislation to be Replaced ............................................................................................. 3 1.5 Other Legislation ............................................................................................................ 3 2. 3. GLOSSARY OF KEY CHANGES ...................................................................................... 4 STATUS OF TEMPLATE PROVISIONS ............................................................................ 9 Key Directions 1 1. INTRODUCTION 1.1 Summary This paper provides an overview of the key changes to be made to the Template legislation. These changes result from a detailed examination of the regulatory issues and the views expressed by interested parties during the consultation process. The paper also highlights a number of significant changes that are a consequence of the current health practitioner legislation being replaced by the Template. The following structure is followed by this paper:  Section 1 – Introduction and overview of the health practitioner legislation review.  Section 2 - Glossary Of Key Changes: an alphabetical listing and brief description of the main changes resulting from the Review and the adoption of the new Template.  Section 3 - Status Of Template Provisions: lists the sections of the Template and corresponding areas where amendments will be made. 1.2 Aims of review The aims of the health practitioner legislation review were as follows:  to enhance protection for health consumers in Western Australia by: regulating harmful practices; establishing a flexible, fair and effective disciplinary system; and enhancing the ability of registration boards to ensure registrants meet and continue to meet appropriate qualification and competency standards. to satisfy the National Competition Policy (NCP) legislation review requirements by: repealing or not enacting provisions which are anti-competitive, impose unnecessary restrictions and cannot be justified in terms of public benefit or achieved by non-legislative means; and removing unnecessary restrictions on practice by non-registrants. to recognise the significant contribution made by members of registration boards by providing them with legislation that: facilitates administrative efficiency; and incorporates appropriate indemnities and protections. to provide the health consumers of Western Australia with effective, readily understandable and, so far as possible, uniform health practitioner legislation. Consultation process    1.3 In October 1998, the Discussion Paper, Review of Western Australian Health Practitioner Legislation was released. The Discussion Paper invited comments and submissions on the Osteopaths Act 1997. This Act, referred to as the Template legislation, was identified as the model legislation for the other health professions. Approximately 500 copies of the Discussion Paper were distributed to health professionals, registration boards, professional associations, members of the public and other interested parties. The Discussion Paper was also made available on the Internet. A public seminar and a number of meetings with interested groups were held during the 2 Key Directions consultation period. By the end of the consultation phase, over 70 submissions had been received. 1.4 Legislation to be replaced Following from the Review, a number of amendments are to be made to the Template. Once amended, the Template will be used as the model for all new health practitioner legislation. It is emphasised that if a matter is not provided for in the Template, including the amendments resulting from the Review, it will not be provided for in new health practitioner legislation. Based on the amended Template, Bills will now be drafted to replace the following legislation: Chiropractors Act 1964 Dental Act 1939 Dental Prosthetists Act 1985 Nurses Act 1992 Occupational Therapists Registration Act 1980 Optometrists Act 1940 Osteopaths Act 19971 Physiotherapists Act 1950 Podiatrists Registration Act 1984 Psychologists Registration Act 1976 Hence, with the exception of hypnotists, all health practitioners currently regulated will continue to be regulated by statute. 1.5 Other legislation A comprehensive review of the Medical Act 1894 is currently underway. It is anticipated that the working party will report to the Minister for Health in the near future. A Review of Pharmacy legislation is being conducted on a national basis. The recommendations of this review will be considered by the State and Territory governments. Pending the outcome of this, the Pharmacy Act 1964 will remain in effect. The Optical Dispensers Act 1966 will remain in effect for 12 months from the completion of the Review in order to provide practitioners and other interested parties the opportunity to provide submissions as to why this health practitioner group should remain regulated. 1 The Osteopaths Act 1997 will only require amendment. Key Directions 3 2. GLOSSARY OF KEY CHANGES Advertising As per the Template, only limited restrictions on advertising will apply. The Board is able to make rules, to be approved by the Minister, regulating advertising. This will ensure such advertising is not:  false, misleading or deceptive,  creates an unjustified expectation of beneficial treatment, or  promotes the unnecessary or inappropriate use of a health practitioner‟s services. Appeals to Board decisions - conditional registration The Template will be amended to provide a statutory right of appeal against a decision of the Board to cancel condition registration, or revoke or vary a condition or restriction. The Board must establish reasonable grounds for varying or revoking a condition of registration. Appeal provisions The Template will be amended to provide health practitioners with a right of appeal from those Board decisions that can be appealed, to the District Court. Appointments To Registration Board  Appointments to the Board will be for three years with a maximum of three terms.  All Board members to be appointed by the Minister.  As recommended in the NCP Review of the Osteopaths Act 1997 and endorsed by Cabinet, associations will cease to have a statutory role in recommending candidates to the Minister.  Appointments to be staggered so that no more than half of the Board members are due to retire at any one time. Board Membership The membership of registration boards will be amended to provide for the addition of a consumer representative and a legal practitioner to each Board. The majority of Board members will be drawn from the respective health profession. (see Appendix 1) Body Corporate The requirement in the Template for bodies corporate to be registered is to be removed. A provision will be inserted noting that a non-registrant employer is not deemed to be carrying on the health practice of a registered practitioner as a consequence of employing a registered practitioner. Code of Practice The new legislation will provide Boards with the authority to prepare and circulate, with the approval of the Minister, codes of practice for registrants. Where issued, the codes of practice will relate only to matters of clinical concern. Complaints Reporting The Board‟s annual report is to include information about complaints received and the action taken in response by the Board. 4 Key Directions Conciliation Where the Board determines that conciliation is the appropriate course of action, then the matter will be referred to the Office of Health Review. Continuing Professional Education Continuing professional education will not be a statutory requirement Core Practice Protection Core practices are those activities that, because of their potential to cause harm, need to be restricted to specific health practitioners. A project to assist professions identify core practices within three years of the completion of this Review will be facilitated by HDWA. If professions are not able to determine core practices within three years, the existing practice protection will be removed from the legislation. Definitions Comprehensive definitions of practice are to be replaced by the specification of core practices within three years of the end of this Review. With the exception of physiotherapy, health professions that are currently defined will retain a definition as detailed in the current draft Bills (see Appendix 2) or where no current Bill exists, in accordance with Current Health Legislation. The definition of dental prosthetics will be amended to encompass the construction and fitting of partial dentures. Acts that may be performed by dental hygienists, dental therapists and school dental therapists, as listed in Schedule 2 of the Dental Act 1939, will be incorporated in the new dental legislation. Delegation by Boards The Template is to be amended to prohibit Boards from delegating the functions relating to registration. Dental  Dental Therapists & Dental Hygienists The current restriction on the number of dental therapists and dental hygienists that may be employed by a dentist will not be brought forward to the new legislation.  Dental Prosthetists Dental Prosthetists will be permitted to construct and fit partial dentures providing the practitioner meets specific training requirements established by the Board. Merger of Acts The Dental Act 1939 and the Dental Prosthetists Act 1985 will be merged into a single Act based on the Template. As a result, there will be one registration board for the governance of all dental practitioners. Ownership The current restriction on ownership of dental practices will not be progressed to the new legislation.   Key Directions 5  School Dental Therapists The current restriction of school dental therapists to the public sector will not be brought forward to the new legislation. Disciplinary Matters As per the Template, a Complaints Assessment Committee is to be established by the Board to manage complaints. The disciplinary matters provided for in the Template will be amended to include a provision that it is unprofessional conduct to provide a person with health services of a kind that are excessive, unnecessary or not reasonably required for a person‟s well being. Functions of Board It is intended to expand the functions of the Board to include:  promoting the continuing competence of registered persons;  prosecuting persons who commit offences against the Act; and  establishing codes of practice subject to approval by the Minister Impairment Process The Template will be amended to provide for a separate process to manage, investigate and inquire into matters of impairment. Central to this will be the convening of an impaired practitioners panel by the Board. Appropriate matters will be referred to the panel by the Complaints Assessment Committee. Matters of impairment will be defined under the new health practitioner legislation Insurance A condition of registration will be the requirement that health practitioners hold occupational liability insurance. This requirement will be satisfied if the practitioner is indemnified by his or her employer. Name of Practice The role of the Board in approving a practice name other than the name recorded in the register will be discontinued. Optical Dispensers The prospect of merging the Optometrists Act 1940 and the Optical Dispensers Act 1966 has been raised. No further action on this matter will be taken at this stage and optical dispensers will remain on their current legislation pending determination of whether continued regulation is necessary. A review to this effect, to be facilitated by HDWA, is to conclude within twelve months. Ownership As per the Template, restrictions limiting ownership of practices to health practitioners will be removed. The current restrictions on pharmacy ownership will remain pending the outcome of the national review. 6 Key Directions Pharmacy A national review of pharmacy is still in progress. Consequently the status quo will remain pending the conclusion of this review. Practice Protection (see also ‘core practice protection’) Subject to the determination of core practices, all health professions will retain their current level of practice protection (except physiotherapy). Accordingly, in new health practitioner legislation practice protection will be retained for:  dental prosthetists,  dentists,  nurses,  occupational therapists,  optical dispensers,  optometrists,  osteopaths,  physiotherapists,  podiatrists, and  psychologists. Registrar Boards will able to engage a registrar on either an employment contract or a service contract. Registration - deemed Nurses registered in other Australian jurisdictions or New Zealand and responding to an emergency or retrieving organs in Western Australia will be deemed to be registered in this State. Title Protection Titles to be protected will be those listed in the following table: Health practice Chiropractor Dental Chiropractor Dentist, dental surgeon, dental therapist, dental hygienist, school dental therapist and dental prosthetist. Nurse Occupational therapist Optical dispenser Optometrist, optician Osteopath Physiotherapist, physical therapist Podiatrist, chiropodist Psychologist Titles to be protected Nurse Occupational therapist Optical dispenser Optometrist Osteopath Physiotherapist Podiatrist Psychologist Key Directions 7 Title - ‘Doctor’ Section 19 of the Medical Act 1894 prohibits any person from using the title „doctor‟ unless they are a registered medical practitioner. This is with the exception of dietitians and chiropractors providing (respectively) dietetic or chiropractic advice or services. The Medical Act Review proposes that the prohibition on the use of the title „doctor‟ be removed from the Medical Act, however, it will be an offence for a person to use the title medical practitioner or any other title calculated to induce a belief that a non-registrant is a medical practitioner. 8 Key Directions 3. STATUS OF TEMPLATE PROVISIONS SECTION Title PART 1 1 2 3 DESCRIPTION STATUS OF SECTION Amended. [health profession] Registration Act PRELIMINARY Short title Commencement of the Act Interpretation of terms used in the Act Definition of chiropractic, dental prosthetics, dentistry, occupational therapy, optometry and podiatry. Retained Retained Retained Amended. The definition of these health practices be amended to reflect the definitions in the current draft Bills, or where no current Bill exists, in accordance with Current Health Legislation. Retained 4 PART 2 5 6 Application of the Act THE REGISTRATION BOARD AND COMMITTEES Establishment of the Board Membership of the Board Retained Amended. This section will be amended to reflect that while the majority of members will continue to be health practitioners, the associations and groups that the practitioners are drawn from will not be mandated. A legal practitioner and consumer representative will be added to the Board. Retained Retained Retained Functions of the Board be expanded to include:  promoting the continuing competence of registered persons;  prosecuting persons who commit offences against the Act; and  establishing codes of practice subject to approval by the Minister. Amended. The Board will not be able to delegate the function of registration, including the imposition of conditions on registration and the renewal of registration. Retained Retained Retained Retained Retained Retained 7 8 9 10 Presiding member and deputy presiding member of the Board Constitution and proceedings of the Board Remuneration Functions of the Board 11 Delegation by the Board of its functions 12 13 14 15 16 17 Directions by Minister to the Board Disclosure of interests of Board members Duty of Board member not to make improper use of information Board meetings and minutes of meetings Establishment of complaints assessment committee The establishment of other committees Key Directions 9 Dental Board – committees 18 19 Provisions relating to committees Registrar and staff of the Board The new Dental Board to establish two advisory committees to provide expert advice on dental care provided by:  registered dental auxiliaries; and  dental prosthetists. Retained Amended. The section will be amended to provide for the appointment of a registrar and staff under a contract for services or a contract of employment. PART 3 20 21 22 23 REGISTRATION OF HEALTH PRACTITIONERS Registration requirements for natural persons Registration of body corporate Registration based on registration elsewhere in Australia Conditional registration Retained Removed Retained Amended. The section will be amended to provide that the Board must establish reasonable grounds for determining that conditional registration should be cancelled or conditions should be varied or revoked. Provision to be added which will empower the Board to grant a certificate of registration in circumstances where a person is entitled to general registration but it is not practical to wait until the Board can consider the decision. Retained Retained Retained A provision be added to the new nurses legislation deeming registered any nurse who is registered in another Australian jurisdiction or New Zealand and who is responding to an emergency or retrieving organs in Western Australia. A condition of registration will be the requirement that health practitioners hold occupational liability insurance. This requirement will be satisfied if the practitioner is indemnified by his or her employer. Retained Retained Retained Retained Retained Retained Provisional registration 24 25 26 Application for registration Effect of registration Renewal of registration Nurses – deemed registration 27 Occupational liability insurance 28 29 30 31 32 33 The register Inspection of the register Certificate of registration Voluntary removal from the register Amendment of particulars on the register Removal of names from the register of deceased persons and defunct bodies corporate Removal of names from the register of person who has not practised, or trained, for 5 years Effect of removal or striking off from the register 34 Retained 35 10 Retained Key Directions 36 37 38 39 40 PART 4 41 42 43 44 Restoration of name to the register Suspension of practitioner Insolvency of practitioner Civil or criminal proceedings Notices and returns by registered body FINANCE AND REPORTS Funds of the Board Accounts of the Board Audit of the Board‟s accounts and financial statements Annual report and other reports Retained Retained Retained Retained Removed Retained Retained Retained The section will be amended to provide that a registration board‟s annual report is to include information about complaints received by the Board and the action taken by the Board in response to such complaints. Retained 45 PART 5 46 Minister to have access to information of the Board DISCIPLINARY PROCEEDINGS Disciplinary matters This section will be amended to add that it is unprofessional conduct to provide a person with health services of a kind that are excessive, unnecessary or not reasonably required for the person‟s well being. Matters of impairment be defined as the matters listed in section 46(a) and (b). Retained A separate process to manage, investigate and inquire into matters of impairment be added. An impaired practitioners panel to be established under the Template. Amended Retained Retained Retained Retained Retained This section will be amended to remove subsection (1)(b). Also, if the Board decides not to make an order under subsection 54(1) of the Template the Board is to have the discretion to refer the matter to the impaired practitioners panel. Retained Retained Retained Key Directions 11 47 Complaints Impairment process Impaired practitioners panel 48 49 50 51 52 53 54 Medical or psychiatric examination of practitioner Committee to determine action required Investigation of complaint and recommendation Committee may reject certain complaints Role of Board with respect to complaints Board may deal with matter Power of Board to order a practitioner to cease activity or order an interim restriction on practice 55 56 57 Formal inquiry with respect to section 54 order Interpretation for the purpose of the Investigation Division Investigator 58 59 60 Report of investigator Powers of investigator Warrant to enter premises of practitioner Retained Retained This section will be amended to ensure that only the Board can approve an application by an investigator to a magistrate for a warrant to enter premises in the course of conducting an investigation. Retained Retained Removed. All matters for conciliation to be referred to the Office of Health Review. Removed Retained Retained Retained Retained Retained 61 62 63 64 65 66 67 68 69 Issue of warrant by magistrate Execution of warrant Conciliation Action if conciliation fails Board to hold formal inquiry Hearings generally not to be in public Representation of persons involved Procedure and evidence at a formal inquiry Power to summons etc for the purposes of conducting a formal inquiry Disciplinary powers of Board Costs and recovery Failure to comply with order of the Board Transcript of formal inquiry Reciprocal enforcement of orders of the Board Surrender of certificate of registration OFFENCES Only registered person may practise the health practice 70 71 72 73 74 75 PART 6 76 Retained Retained Retained Retained Retained Retained Retained. However, within three years of this Review, the professions through their respective registration boards are to determine the core practices to be reserved to them exclusively in order to meet the public protection objective of new health practitioner legislation. If the core practices are not able to be determined within this period, then practice protection is to be removed from the legislation. A new provision will be added to the Template that a non registrant employer is not deemed to be carrying on the practice of a health practitioner as a consequence of employing a registered practitioner. Retained Removed Retained Retained Retained Retained Retained Deeming provision 77 78 79 80 81 82 83 12 Use of title or pretending to be registered Name in which practice may be carried on Failure to comply with order False statements Failure to attend, take oaths etc. Obstruction of investigator Misbehaviour at a formal inquiry Key Directions 84 85 86 PART 7 87 88 89 90 91 92 93 94 95 96 97 98 Execution of warrant Information that may be withheld Legal professional privilege MISCELLANEOUS Protection of persons acting in good faith Decisions to be notified Appeals Publication of proceedings Legal proceedings for an offence under the Act Liability of officers Common seal and execution of documents by Board Rules of the Registration Board Regulations made by the Governor Transitional Consequential amendments Review of Act SCHEDULES Retained Retained Retained Retained This section will be amended to include a reference to conditional registration. Retained Retained Retained Removed Retained Retained Retained Retained Retained Retained Schedule 1 Constitution and proceedings of Board This Schedule will be amended to reflect that Board members are to be appointed for a maximum of three terms, consecutive or otherwise. Removed Amended. Transitional provisions in the Template will provide for the continuity of:  the Board and the term of Board members;  complaints being investigated and proceeded with by the Board;  the register; and  the funds, including liabilities, of the Board. Amended as necessary. Schedule 2 Schedule 3 Requirements for registration of body corporate Transitional provisions Schedule 4 Consequential amendments Key Directions 13 APPENDIX 1 BOARD MEMBERSHIP PROVISIONS HEALTH PROFESSION Chiropractors MEMBERSHIP OF THE BOARD (Note that all members of the Boards are to be appointed by the Minister) 8 members 6 are to be chiropractors  1 is to be a consumer representative  1 is to be a legal practitioner  Dental practitioners 12 members  6 are to be dentists  2 are to be dental prosthetists  1 is to be a representative of dental therapists and dental hygienists  1 is to be a school dental therapist  1 is to be a consumer representative  1 is to be a legal practitioner Nurses 12 members  7 are to be nurses  1 is to be a midwife  1 is to be mental health nurse  1 is to be an enrolled nurse  1 is to be a consumer representative  1 is to be a legal practitioner Occupational Therapists 8 members  6 are to be occupational therapists  1 is to be a consumer representative  1 is to be a legal practitioner The Optical Dispensers Act 1966 will remain in effect pending outcome of discussions referred to in NCP Review. 8 members  6 are to be optometrists  1 is to be a consumer representative  1 is to be a legal practitioner Optical Dispensers Optometrists 14 Key Directions Osteopaths 8 members 6 are to be osteopaths  1 is to be a consumer representative  1 is to be a legal practitioner  Physiotherapists 8 members 6 are to be physiotherapists  1 is to be a consumer representative  1 is to be a legal practitioner  Podiatrists 8 members  6 are to be podiatrists  1 is to be a consumer representative  1 is to be a legal practitioner 8 members  6 are to be psychologists  1 is to be a consumer representative  1 is to be a legal practitioner Psychologists Key Directions 15 APPENDIX 2 DEFINITIONS HEALTH PRACTICE Chiropractic CURRENT DRAFT BILL Chiropractors Bill 1996 “… a system of examining and adjusting the human spinal column and associated structures, for the purpose of diagnosing and correcting, without the use of drugs or operative surgery, interference to nerve transmission and normal joint function.” Dentistry Dental Bill 1996 “(a) any operation on or service in connection with the human teeth or jaws and associated structures; (b) the artificial restoration of lost or removed teeth, or jaws; (c) the treatment of diseases or lesions, and the correction of malpositions in human teeth or jaws; (d) any operation, treatment, or service on or to any person as preparatory to or for the purpose of or in connection with the fitting, insertion, or fixing of artificial teeth; and (e) every dental service, act, or operation of any kind or nature whatsoever, but does not include the mechanical constructions of artificial dentures by an artisan employed or engaged by a dentist.” Occupational Therapy Occupational Therapists Registration Bill 1995 “(a) the promotion or resolution of occupational performance, health and well-being, at an individual, organisational or community level to enhance satisfaction in valued life role; and (b) the resolution of problems related to functional or adaptive behaviour in persons whose ability to engage in any occupation is impaired by illness, handicap, emotional disorder, development disability, social disadvantage or the ageing process.” Optometrists Bill 1995 “(a) the employment of methods, other than any method which involves the use of any drug, for the measurement of the powers of vision; (b) the adaptation of lenses and prisms for the aid of the powers of vision; (c) lens-grinding and spectacles-making; (d) optical dispensing.” Optometry Podiatry Podiatrists Bill 1995 “is synonymous with “chiropody” and means (a) the employment of medical, surgical, electrical, mechanical or manual methods for the diagnosis and treatment of ailments or abnormal conditions of the human foot or ankle, including the analysis of gait and other factors influencing disorders of the foot or ankle; and (b) appropriate preventative education and treatment in relation to ailments or abnormal conditions of the human foot or ankle.” 16 Key Directions