Division 6A Action against unregistered health practitioners

41A   Prohibition orders and public statements

(1)  The Commission may take action under this section if:

(a)  it has complied with Division 6 with respect to an investigation of a complaint against a health practitioner, and

(b)  it finds that the health practitioner has breached a code of conduct for unregistered health practitioners or has been convicted of a relevant offence, and

(c)  it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public.

(2)  The action that the Commission may take under this section is either or both of the following:

(a)  make an order (a prohibition order) that does any one or more of the following:

(i)  prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently,

(ii)  places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently,

Note. Section 10AK (1) of the Public Health Act 1991 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.

(b)  cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner.

(3)  If the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is registered under a health registration Act, the Commission is, before making the prohibition order, to notify the board constituted under that other Act of the proposed order and give that board an opportunity to make a submission.

(4)  The Commission may revoke or revise a statement under subsection (2) (b).

(5)  In this section:

code of conduct for unregistered health practitioners means a code of conduct prescribed by regulations under section 10AM of the Public Health Act 1991.

relevant offence means:

(a)  an offence under Part 2A of the Public Health Act 1991, or

(b)  an offence under the Fair Trading Act 1987 or the Trade Practices Act 1974 of the Commonwealth that relates to the provision of health services.

41B   Commission to provide details of its decision

(1)  If the Commission makes any of the following decisions in respect of a health practitioner under section 41A, it must provide the health practitioner with a written statement of the decision as soon as practicable after the decision is made:

(a)  a decision that the health practitioner has breached a code of conduct for unregistered health practitioners,

(b)  a decision to make a prohibition order in respect of the health practitioner,

(c)  a decision to issue, revoke or revise a public statement about the health practitioner under section 41A.

(2)  The statement of a decision must:

(a)  set out any findings on material questions of fact, and

(b)  refer to any evidence or other material on which the findings were based, and

(c)  give the reasons for the decision.

(3)  The Commission, subject to subsections (4) and (5):

(a)  must provide a statement of the decision to the complainant, and

(b)  must provide a statement of the decision to any professional body or association that the Commission considers to be relevant to the health practitioner or to the area of practice to which the complaint relates, and

(c)  may make a statement of the decision publicly available.

(4)  The Commission may remove from a statement of a decision that is provided to a person or body, or made publicly available, under subsection (3), any material that it considers to be confidential information.

(5)  When confidential material is not included in the statement of a decision the statement should indicate that such material has been removed.

(6)  This section does not affect the power of a court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to a court.

(7)  In this section:

confidential information means information that:

(a)  has not previously been published or made available to the public when a written statement of a decision to which it is or may be relevant is being prepared, and

(b)  relates to the personal or business affairs of a person, other than the person to whom the Commission is required to provide the written statement of the decision, and

(c)  is information:

(i)  that was supplied in confidence, or

(ii)  the publication of which would reveal a trade secret, or

(iii)  that was provided in compliance with a duty imposed by or under an Act, or

(iv)  the provision of which by the Commission would be in breach of an Act or law.

41C   Appeals to Administrative Decisions Tribunal

(1)  A health practitioner may apply to the Administrative Decisions Tribunal for a review of the following decisions under section 41A:

(a)  a decision that the health practitioner has breached a code of conduct for unregistered health practitioners,

(b)  a decision to make a prohibition order in respect of the health practitioner,

(c)  a decision to issue, revoke or revise a public statement about the health practitioner.

(2)  An application under this section is to be made within 28 days after the day on which the health practitioner is provided with the statement of the decision.

41D   Commission to provide registration authority with details of prohibition orders

If the Commission makes a prohibition order under section 41A in respect of a health practitioner, it is to provide a copy of the statement of the decision in respect of that order to each registration authority.