Note. The bulk of Commission investigations under this Division will deal with matters arising under the Health Practitioner Regulation National Law (NSW) relating to health practitioners. The Commission will also use its powers under this Division for matters relating to unregistered health practitioners and for other matters referred to it, such as a matter which is referred for investigation under section 59, or where the Commission is operating in conjunction with the Department of Health under general health legislation.
(1) The investigation of a complaint by the Commission is for the purpose of obtaining information concerning the matter complained of and to determine what action should be taken in respect of the complaint.(2) (Repealed)
(1) Without affecting the generality of section 92A, the investigation of a complaint is to be conducted as expeditiously as the proper investigation of the complaint permits. Expedition is particularly appropriate if the complainant or the person on whose behalf the complaint is made is seriously ill.(2) Before investigating a complaint, the Commission is to consider conducting a concurrent investigation into any associated complaint (other than one that has been discontinued or terminated and not reopened).(3) In investigating a complaint, the Commission is to have regard to any associated complaint that is not being investigated concurrently, to the extent the Commission considers the associated complaint to be relevant.
(1) In investigating a complaint, the Commission may obtain a report from a person (including a person registered under the Health Practitioner Regulation National Law) who, in the opinion of the Commission, is sufficiently qualified or experienced to give expert advice on the matter the subject of the complaint.(2) The Commission may not obtain a report from a person who has a financial connection with the health practitioner against whom the complaint is made.(2A) If the Commission seeks to obtain a report from a person under this section in relation to a complaint, the Commission is to provide the person with all relevant information concerning the complaint that is in the possession of the Commission.(3) The person giving the report must include in it, or annex to it, a statement in the following form, completed as appropriate:
I have/do not have a personal, financial or professional connection with the person against whom the complaint is made. Particulars of the connection are as follows:............................................................
Signature............................................................(4) Such a report may be used in disciplinary or related proceedings under the Health Practitioner Regulation National Law (NSW) but may not be admitted or used in any other proceedings before a court, tribunal or body, except with the consent of the person giving the report, the complainant and the person against whom the complaint is made.(5) A person from whom such a report is obtained, the Commission or the Commissioner may not be compelled to produce the report or to give evidence in relation to the report or its contents in any such other proceedings.(6) In this section, report includes a copy, reproduction and duplicate of the report or any part of the report, copy, reproduction or duplicate.
(1) The Commission may authorise an officer of the Commission, in writing, to exercise the functions under section 33.(2) The Commission must provide an authorised person with a certificate of authority in the form set out in Schedule 1.(3) An authorised person in exercising in any place a function conferred on the authorised person under section 33 must, if so requested by a person apparently in charge of the place, produce the certificate to the person.
An authorised person may not enter any premises and exercise a function under section 33 except with the consent of the owner or occupier of the premises or under the authority of a search warrant.
(1) An authorised person may, for the purpose of investigating a complaint, do any one or more of the following:(a) at any reasonable time, enter and inspect any premises if the authorised person reasonably believes it is necessary to enter those premises for the purpose of investigating the matter with which the complaint is concerned,(b) examine, seize, retain or remove any equipment that the authorised person reasonably believes is, has been or may be used in connection with that matter,(c) require the production of and inspect any stocks of any substance or drugs in or about those premises,(c1) if authorised to do so under a search warrant, seize any stocks of any substance or drugs in or about those premises,(d) require any person within those premises to produce any records in the possession or under the control of that person relating to that matter,(e) take copies of, or extracts or notes from, any such records,(f) remove any such records, with the consent of the owner of the records, for a maximum period of 24 hours for the purpose of taking copies of, or notes from, those records,(f1) if authorised to do so under a search warrant, remove any such records for the purposes of taking copies of, or notes from, those records.(g) require any person at those premises to answer questions or otherwise furnish information in relation to that matter,(h) require the owner or occupier of those premises to provide the authorised person with such assistance and facilities as is or are reasonably necessary to enable the authorised person to exercise the functions of an authorised person under this section.(2) If an authorised person removes any records under the authority of a search warrant for the purposes of taking copies of, or notes from, those records, the authorised person must return the records to the owner of the records as soon as practicable.
(1) An authorised person may apply to an authorised officer for a search warrant if the person has reasonable grounds for believing that entry to premises is necessary for the purpose of investigating a complaint that, if substantiated, may provide grounds for:(a) the suspension or disqualification (by deregistration or cancellation of enrolment) of the person against whom the complaint is made, or(b) the criminal prosecution of that person, or(c) the taking of other disciplinary action against that person.(2) An authorised person may not apply for a search warrant to search premises for the purpose of investigating a complaint against a health practitioner who is or was, at the relevant time, registered under the Health Practitioner Regulation National Law (or whose registration is or was suspended) unless the authorised person or the Commission has caused the President or Chairperson of the appropriate professional council to be notified of the application.(3) An authorised officer to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised person named in the search warrant to enter the premises and to exercise there the functions of an authorised person under section 33.(4) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.(5) In this section:
authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.
(1) If the Commission is investigating a complaint and is of the opinion that a person is capable of giving information, producing documents (including medical records) or giving evidence that would assist in the investigation, the Commission may, by notice in writing given to the person, require the person to do any one or more of the following:(a) to give the Commission, by writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation) and within such time as is reasonable, and in the manner, specified in the notice, any such information of which the person has knowledge,(b) to produce to the Commission, in accordance with the notice, any such documents,(c) to appear before the Commissioner or a member of staff of the Commission authorised by the Commissioner at a time and place specified in the notice that is reasonable and give any such evidence, either orally or in writing, and produce any such documents.(2) (Repealed)(3) Information and documents may be given or provided to the Commission in compliance with this section despite any other Act or law (but not despite a provision of Division 8 of this Part or Division 6B or 6C of Part 2 of the Health Administration Act 1982).(4) A person who is subject to a requirement under subsection (1) must not, without reasonable excuse, fail to comply with the requirement.
Maximum penalty: 20 penalty units.Note. Failure of a health practitioner to comply with a requirement under subsection (4) may constitute unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW).
A person who:(a) prevents an authorised person from exercising a function under section 33, or(b) hinders or obstructs an authorised person in the exercise of such a function, or(c) without reasonable excuse, refuses or fails to comply with a requirement made or to answer a question of an authorised person asked in accordance with section 33, or(d) furnishes information knowing that it is false or misleading in a material particular to an authorised person, the Commissioner or a member of staff of the Commission in connection with the exercise of their functions under this Act with respect to a complaint,is guilty of an offence.
Maximum penalty: 20 penalty units.
A person who impersonates or falsely represents that he or she is an authorised person is guilty of an offence.
Maximum penalty: 20 penalty units.
(1) Self-incrimination not an excuse
A person is not excused from a requirement under section 21A or 34A to give information, to answer a question or to produce a document on the ground that the information, answer or document might incriminate the person or make the person liable to a penalty.(2) Information or answer not admissible if objection made
However, any information or answer given by a natural person in compliance with a requirement under section 21A or 34A is not admissible in evidence against the person in any civil or criminal proceedings (except disciplinary proceedings or proceedings for an offence under this Part) if:(a) the person objected at the time to doing so on the ground that it might incriminate the person, or(b) the person was not warned on that occasion that the person may object to giving the information or answer on the ground that it might incriminate the person.(3) Documents admissible
Any document produced by a person in compliance with a requirement under section 21A or 34A is not inadmissible in evidence against the person in any proceedings on the ground that the document might incriminate the person.(4) Further information
Further information obtained as a result of a document produced or information or answer given in compliance with a requirement under section 21A or 34A is not inadmissible in any proceedings on the ground:(a) that the document, information or answer had to be produced or given, or(b) that the document, information or answer might incriminate the person.(5) The Commission, the Commissioner or a member of staff of the Commission cannot be required (whether by subpoena or any other procedure) to produce, in connection with any proceedings, a document that contains any information or answer that has been obtained as a result of a requirement under section 21A or 34A if the information or answer is not admissible in evidence in those proceedings because of this section.
(1) The Commission must notify the appropriate professional council (if any) of the findings of an investigation.(2) If the Commission is required to consult with the professional council under section 39 (2), the notification may be given at the time of consultation.