Part 4 Scheduled medical conditions
(cf 1991 Act, s 3)
(1) In this Part:Category 1 condition means a medical condition listed under Category 1 in Schedule 1.
Category 2 condition means a medical condition listed under Category 2 in Schedule 1.
Category 3 condition means a medical condition listed under Category 3 in Schedule 1.
Category 4 condition means a medical condition listed under Category 4 in Schedule 1.
Category 5 condition means a medical condition listed under Category 5 in Schedule 1.
(2) The Minister may, by order published on the NSW legislation website, amend or substitute Schedule 1.
Division 2 General precautions
52 Precautions against spread of certain medical conditions
(cf 1991 Act, s 11)
(1) A person who:(a) has a Category 2, 3, 4 or 5 condition, and(b) is in a public place,must not fail to take reasonable precautions against spreading the condition.Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.
(2) It is a defence to proceedings for an offence under this section if the defendant satisfies the court that at the time of commission of the alleged offence, the defendant was not aware that he or she had the medical condition on which the prosecution is based.
53 Notification of death arising from scheduled medical condition
(cf 1991 Act, s 20)
Immediately after registering the death of a person where the apparent cause of death involves a scheduled medical condition, the Registrar of Births, Deaths and Marriages is to arrange to have sent to the Director-General, in the approved form, a notice of the death stating:(a) the name, address and age of the deceased, and(b) the name of the scheduled medical condition, and(c) the name of the person who certified the cause of death, and(d) such other particulars as may be prescribed by the regulations.
Division 3 Notification and treatment of Category 1, 2 and 3 conditions and other conditions
54 Medical practitioner to notify Director-General of Category 1 and 2 conditions
(cf 1991 Act, ss 14 and 15)
(1) This section applies if a registered medical practitioner:(a) attends a person in connection with a Category 1 condition, or(b) while attending a person in connection with any medical condition, reasonably suspects that the person has a Category 2 condition, or(c) as a result of conducting a post-mortem examination, reasonably suspects that a person’s cause of death involves a Category 1 or 2 condition.(2) In these circumstances, the registered medical practitioner must, as soon as practicable:(a) record such particulars concerning the person’s medical condition as may be prescribed by the regulations, and(b) send to the Director-General a certificate, in the approved form, of the particulars so recorded.(3) The registered medical practitioner:(a) must keep any such particulars for the period prescribed by the regulations, and(b) subject to section 56, must provide the Director-General with such further information concerning the person’s medical condition and transmission and risk factors as is available to the medical practitioner and as the Director-General may request.(4) A registered medical practitioner who attends a person as a patient at a hospital is not required to comply with this section if:(a) the Category 1 or 2 condition concerned is a notifiable disease, and(b) the medical practitioner believes on reasonable grounds that the Director-General has been notified of the disease in accordance with Division 2 of Part 5.(5) A registered medical practitioner must not, without reasonable excuse, fail to comply with the requirements of this section.Maximum penalty: 50 penalty units.
(6) It is a defence to proceedings for an offence under this section if the defendant satisfies the court:(a) that the record alleged not to have been made or kept, or(b) that the certificate alleged not to have been sent,had been made, kept or sent by another registered medical practitioner.(7) This section applies to a person engaged in an occupation prescribed by the regulations in the same way as it applies to a registered medical practitioner.
55 Pathology laboratories to notify Director-General of Category 3 conditions
(cf 1991 Act, s 16)
(1) This section applies if:(a) a pathology test is carried out at the request of a registered medical practitioner (the requesting practitioner) for the purpose of determining whether a person has a Category 3 condition, and(b) the test has a positive result.(2) In these circumstances, the person who certifies the test results (the certifier) must send to the Director-General a report, in the approved form, as to those results as soon as practicable.Maximum penalty: 50 penalty units.
(3) If the certifier so requests, the requesting practitioner must provide the certifier, within 72 hours after the request is made, with sufficient information to enable the report to be completed.Maximum penalty: 50 penalty units.
(4) On receiving a report that appears to be incomplete or incorrect, the Director-General may ask any medical practitioner involved in the treatment of the person concerned to provide:(a) such information as is necessary to complete or correct the report, and(b) such other information concerning the person’s medical condition and transmission and risk factors as is available to the medical practitioner.(5) A medical practitioner who is asked to provide such information is authorised to do so, subject to section 56 but despite any other Act or law.
56 Protection of patient’s identity
(cf 1991 Act, s 17)
(1) A registered medical practitioner must not include a patient’s name or address:(a) in a certificate under section 54, if the condition to which the certificate relates is a Category 5 condition, or(b) in a written or oral communication made by the medical practitioner for the purpose of arranging a test to determine whether the patient has a Category 5 condition.(2) Subsection (1) (b) does not apply if the patient concerned:(a) is receiving hospital services or other health services, within the meaning of the Health Services Act 1997, provided by a hospital, or(b) consents to the disclosure of his or her name and address in the relevant communication.(3) A person who, in the course of providing a service, including the conduct of a pathology test under section 55, acquires information that another person (the person concerned):(a) has been, is to be or is required to be tested for a Category 5 condition, or(b) is, or has had, a Category 5 condition,must take all reasonable steps to prevent that information from being disclosed to any other person.(4) Subsection (3) does not apply to the disclosure of such information:(a) with the consent of the person concerned, or(b) to a person who is involved in the provision of care, treatment or counselling to the person concerned so long as the information is relevant to the provision of such care, treatment or counselling, or(c) to the Director-General, if a person has reasonable grounds to suspect that failure to disclose the information would be likely to be a risk to public health, or(d) in connection with the administration of this Act or the regulations, or(e) for the purposes of any legal proceedings arising out of this Act or the regulations, or of any report of any such proceedings, or(f) in accordance with a requirement imposed under the Ombudsman Act 1974, or(g) in the circumstances prescribed by the regulations.(5) A registered medical practitioner or other person must not, without reasonable excuse, fail to comply with the requirements of this section.Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.
57 Notification of other conditions
(1) A registered medical practitioner or a person who provides a pathology service who is of the opinion that a patient is suffering from a medical condition or disease that may pose a significant risk to public health may notify the Director-General in writing in the approved form of particulars of the person and the condition or disease.(2) On receiving a notification under this section, the Director-General may ask the medical practitioner or person to provide further information as to the patient’s condition and risk factors.(3) A medical practitioner or person may provide information under this section despite any other Act or law.(4) This section does not apply to a medical condition or disease for which notification is otherwise provided under this Act.
58 District Court may authorise disclosure of name and address
(1) The Director-General may apply to the District Court, in accordance with the rules of the District Court, for an order authorising the service on a medical practitioner of a notice requiring disclosure of a name and address that would otherwise be protected by this Division from disclosure.(2) An application under this section may be made in relation to a medical practitioner only if the Director-General has reasonable grounds for believing that:(a) the person whose name and address are sought is suffering from a Category 5 condition, and(b) identification of the person is necessary in order to safeguard the health of the public.(3) An application to the District Court under this section is to be heard and determined in the absence of the public but is to be otherwise heard and determined in accordance with the rules of the District Court.(4) The District Court:(a) is to make an order applied for under this section if satisfied that there are reasonable grounds for making the order, or(b) is to dismiss the application if not so satisfied.
(cf 1991 Act, s 37)
Proceedings for an offence under this Division are to be heard and determined in the absence of the public.
Division 4 Public health orders for Category 4 and 5 conditions
(cf 1991 Act, s 21)
In this Division:authorised medical practitioner means:
(a) the Chief Health Officer, or(b) a registered medical practitioner authorised by the Director-General to exercise the functions of an authorised medical practitioner under this Division.public health detainee means a person subject to a public health order who is detained pursuant to a requirement of the order of a kind referred to in section 62 (4) or (5).
61 Director-General may direct persons to undergo medical examination
(cf 1991 Act, s 22)
(1) This section applies if the Director-General:(a) suspects on reasonable grounds that a person may have a Category 4 or 5 condition and may, on that account, be a risk to public health, and(b) considers that the nature of the suspected condition is such as to warrant medical examination.(2) In these circumstances, the Director-General may, by notice in writing, direct the person concerned to undergo, within a specified period, a specified kind of medical examination and associated tests:(a) by a registered medical practitioner in general practice, or(b) by a registered medical practitioner practising in a specified field.(3) If the person fails to comply with a direction under subsection (2), the Director-General may, by further notice in writing, direct the person to undergo the specified kind of medical examination and associated tests, at a specified time and place, by a specified registered medical practitioner.(4) A person must not, without reasonable excuse, fail to comply with a direction under subsection (3).Maximum penalty: 50 penalty units.
(5) A direction under subsection (2) or (3) must have due regard to the sensitivities of the person concerned in relation to the gender, ethnicity and cultural background of the registered medical practitioner by whom the examination is to be carried out.
62 Authorised medical practitioner may make public health order
(cf 1991 Act, s 23)
(1) An authorised medical practitioner may make a public health order in respect of a person if satisfied, on reasonable grounds, that the person:(a) has a Category 4 or 5 condition, and(b) because of the way the person behaves may, as a consequence of that condition, be a risk to public health.(2) A public health order:(a) must be in writing, and(b) must name the person subject to the order, and(c) must state the grounds on which it is made, and(d) must state that, unless sooner revoked, it expires at the end of a specified period (not exceeding 28 days) after it is served on the person subject to the order.Note. An order based on a Category 5 condition expires after 3 days unless an application is made for its confirmation (see section 63 (2)).(3) A public health order may require the person subject to the order to do any one or more of the following:(a) to refrain from specified conduct,(b) to undergo specified treatment,(c) to undergo counselling by one or more specified persons or by one or more persons belonging to a specified class of persons,(d) to submit to the supervision of one or more specified persons or of one or more persons belonging to a specified class of persons,(e) to undergo specified treatment at a specified place.(4) A public health order based on a Category 4 condition, being an order that requires the person to undergo specified treatment at a specified place, may authorise the person subject to the order to be detained at that place while undergoing the treatment.(5) A public health order based on a Category 5 condition may authorise the person subject to the order to be detained at a specified place for the duration of the order.(6) In deciding whether or not to make a public health order, the authorised medical practitioner must take into account:(a) the principle that any restriction on the liberty of a person should be imposed only if it is the most effective way to prevent any risk to public health, and(b) any matters prescribed by the regulations for the purposes of this section.(7) A public health order may include provisions ancillary to, or consequential on, the matters included in the order.(8) A public health order does not take effect until it is served personally on the person subject to the order.
63 Duration of public health order
(cf 1991 Act, s 24)
(1) Unless sooner revoked, a public health order based on a Category 4 or 5 condition expires at the end of the period specified in the order.(2) Despite subsection (1), a public health order based on a Category 5 condition expires at the end of 3 business days after the person subject to the order is served with the order unless, before it expires, the person is served with a copy of an application for its confirmation under section 64.(3) In this section, business day means any day that is not a Saturday, Sunday or public holiday.
64 ADT may confirm public health orders relating to Category 5 conditions
(cf 1991 Act, s 25)
(1) An application may be made to the Administrative Decisions Tribunal for confirmation of a public health order based on a Category 5 condition.Note. The confirmation of any such order is a decision for the purposes of the Administrative Decisions Tribunal Act 1997.(2) As soon as practicable after such an application is made, the Administrative Decisions Tribunal is to inquire into the circumstances surrounding the making of the public health order.(3) Following its inquiry, the Administrative Decisions Tribunal:(a) may confirm the public health order, or(b) may vary the order and confirm it as varied, or(c) may revoke the order.(4) An inquiry under this section may not be adjourned for more than 7 days at a time.(5) For the purposes of an inquiry under this section, the Administrative Decisions Tribunal:(a) may obtain the assistance of any person having medical or other qualifications relevant to the subject-matter of the inquiry, and(b) may take into account any advice given by such a person.(6) The Administrative Decisions Tribunal’s power to vary a public health order under this section is a power:(a) to omit a requirement from the order, or(b) to include in the order a requirement that could have been included in the order when it was made, or(c) to substitute a requirement that could have been included in the order when it was made for any one or more of the requirements already included in the order.(7) A decision of the Administrative Decisions Tribunal under this section is an appealable decision for the purposes of Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997.
65 ADT may continue public health order
(cf 1991 Act, s 26)
(1) At any time before the expiration of:(a) a public health order based on a Category 4 condition, or(b) a public health order based on a Category 5 condition and confirmed under section 64,an authorised medical practitioner may apply to the Administrative Decisions Tribunal for continuation of the order.(2) An application may be made only if the applicant is satisfied that the person subject to the order would continue to be a risk to public health, as a consequence of a Category 4 or 5 condition, if not subject to a public health order.(3) If such an application is made and the person subject to the order notifies the Administrative Decisions Tribunal that continuation of the order is not opposed, the Tribunal may, without inquiry, continue the order for a period not exceeding 6 months.(4) Unless the order is continued under subsection (3), the Administrative Decisions Tribunal is to make such inquiries as it thinks fit in relation to the application and:(a) may continue the order, with or without variation, for a period not exceeding 6 months from the date of the Tribunal’s decision, or(b) may refuse to continue the order, or(c) may revoke the order.Note. If the Administrative Decisions Tribunal refuses to continue the order, it will continue to have effect for the period specified in the order. If the Tribunal revokes the order, it will cease to have effect on revocation.(5) For the purposes of an inquiry under this section, the Administrative Decisions Tribunal:(a) may obtain the assistance of any person having medical or other qualifications relevant to the subject-matter of the inquiry, and(b) may take into account any advice given by such a person.(6) More than one application may be made under this section in respect of the same order.
66 ADT may review public health orders relating to Category 4 conditions
(cf 1991 Act, s 41)
An application may be made to the Administrative Decisions Tribunal for a review of a public health order based on a Category 4 condition by the person the subject of the order.Note. The making of any such order is a decision for the purposes of the Administrative Decisions Tribunal Act 1997.
67 Revocation of public health order by authorised medical practitioner
(cf 1991 Act, s 31)
If the authorised medical practitioner by whom a public health order has been made considers that the person subject to the order is no longer a risk to public health, the medical practitioner is to revoke the order and immediately give notice in writing of the revocation to the person and the Administrative Decisions Tribunal.
68 Restriction on making of further public health order
(cf 1991 Act, s 32)
If a public health order is revoked, a further public health order may not be made in respect of the same person unless the authorised medical practitioner proposing to make the further order is satisfied on reasonable grounds that, since the earlier order ceased to have effect, there has been a change in the person’s health or behaviour that increases the risk to public health.
69 Inspection of medical records
(cf 1991 Act, s 36)
(1) Unless the Administrative Decisions Tribunal otherwise directs, a person subject to a public health order is entitled to inspect, and make copies of, the medical records kept by any other person in relation to the person.(2) If the medical records are not kept in a readable form, the person in charge of the records must provide a readable copy of them.
70 Offence not to comply with public health order
(cf 1991 Act, s 28)
(1) A person who fails to comply with a requirement of a public health order is guilty of an offence.Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.
(2) Proceedings for an offence under this section may be commenced only by the Director-General or a police officer.(3) Proceedings for an offence under this section do not preclude action from being taken under section 73 for the contravention on which the proceedings are based.
71 Arrest of persons who contravene public health orders
(cf 1991 Act, s 29)
(1) An authorised medical practitioner may issue a certificate to the effect that a named person is contravening a public health order.(2) A police officer may apply to an authorised warrants officer for an arrest warrant in relation to the person named in a certificate issued under subsection (1).(3) The authorised warrants officer may issue an arrest warrant in relation to the person so named if satisfied that there are reasonable grounds for doing so.(4) A warrant under this section is sufficient authority for any police officer to arrest the named person and to bring the named person before the Administrative Decisions Tribunal to be dealt with under section 73.(5) In this section, authorised warrants officer means an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002.
(cf 1991 Act, s 33)
(1) A public health detainee or person arrested under section 71 who escapes from the place where he or she is detained may be arrested at any time:(a) by the person for the time being in charge of that place, or(b) by an authorised medical practitioner, or(c) by a police officer, or(d) by any person assisting a person referred to in paragraphs (a)–(c).(2) On being arrested, the escapee must be returned to the place from which he or she has escaped.
73 Action following arrest or surrender
(cf 1991 Act, s 30)
(1) If a person in respect of whom an authorised medical practitioner has issued a certificate under section 71 (1) for an alleged contravention of a public health order is brought or otherwise appears before the Administrative Decisions Tribunal, the Tribunal is to conduct an inquiry into the allegation.(2) Following its inquiry, the Administrative Decisions Tribunal:(a) may confirm the order, or(b) may vary the order and confirm it as varied, or(c) may caution the person and take no further action in the matter.(3) The Administrative Decisions Tribunal’s power to vary a public health order under this section is a power:(a) to omit a requirement from the order, or(b) to include in the order a requirement that could have been included in the order when it was made, or(c) to substitute a requirement that could have been included in the order when it was made for any one or more of the requirements already included in the order.(4) A person may be dealt with under this section for an alleged contravention of a public health order whether or not the person has been charged with an offence in relation to the same contravention.
74 Conditions applicable if person detained pursuant to public health order
(cf 1991 Act, s 27)
(1) A public health detainee is to be detained in accordance with the conditions specified in the relevant public health order with respect to the person’s security.(2) Despite subsection (1), a public health detainee may, with the approval of an authorised medical practitioner, be permitted to leave the place of detention, but only under the constant personal supervision of a person, or one of a number of persons, nominated by the medical practitioner.(3) A public health detainee who evades or attempts to evade any supervision to which he or she is subject under subsection (2) is taken to have failed to comply with a requirement of the relevant public health order.
75 Unlawful release from detention
(cf 1991 Act, s 34)
(1) A person who, without lawful authority, releases, or attempts to release a public health detainee or a person arrested under this Division is guilty of an offence.Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.
(2) It is a defence to proceedings for an offence under this section if the defendant satisfies the court that the defendant’s action was not a risk to public health and that the defendant knew this to be so.
76 Restrictions on publication of proceedings
(cf 1991 Act, s 35)
(1) The Administrative Decisions Tribunal may make orders prohibiting or restricting the publication of matters relating to proceedings under this Division or to a person in respect of whom such proceedings have been commenced.(2) The orders that the Administrative Decisions Tribunal may make include orders prohibiting or restricting publication of any one or more of the following:(a) any report of the proceedings,(b) any information that tends to identify the person in respect of whom the proceedings have been commenced,(c) any information that tends to identify any other person in respect of whom a public health order is being, or has at any time been, sought or made, whether or not in the proceedings.(3) An order under this section may be made by the Administrative Decisions Tribunal of its own motion or on the application of a party to the proceedings.(4) If an application for an order under this section is made by a party to the proceedings, the onus is on the other party to show cause why the application should be refused.(5) An order under this section does not apply to the reporting of the proceedings in an official report of the proceedings of the Administrative Decisions Tribunal so long as the report does not disclose the identity of the person in respect of whom the proceedings were commenced.(6) A person who fails to comply with an order under this section (whether aware of the order or not) is guilty of an offence.Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.
(7) This section does not prevent punishment, as a contempt, of a contravention of an order made in the proceedings, but a person may not be both dealt with for a contempt and prosecuted for an offence.