Part 2Part 2 Criminal and disciplinary matters concerning staff of NSW Health Service
In this Part:member of staff means a member of the NSW Health Service who is employed under Part 1 of this Chapter to enable a public health organisation to exercise its functions.
117 Duty to report certain criminal conduct and disciplinary matters
(1) A member of staff who is charged with having committed, or is convicted of, a serious sex or violence offence must, within 7 days of the charge being laid or conviction, report that fact in writing to the chief executive of the relevant organisation.Note. The term serious sex or violence offence is defined in the Dictionary to mean an offence involving sexual activity, acts of indecency, physical violence or the threat of physical violence that:(a) if committed in New South Wales, is punishable by imprisonment for 12 months or more, or(b) if committed elsewhere than in New South Wales, would have been an offence punishable by imprisonment for 12 months or more if committed in New South Wales.(2) A member of staff who has a misconduct finding made against him or her under the Health Practitioner Regulation National Law (NSW) must, within 7 days of receiving notice of the finding:(a) report that fact to the chief executive of the relevant organisation, and(b) provide the chief executive with a copy of that finding.(3) In this section:chief executive of the relevant organisation, in relation to a member of staff, means the chief executive of the public health organisation to which the member of staff has been assigned.
misconduct finding includes a finding of professional misconduct or unsatisfactory professional conduct.
Note. Section 142 of the Health Practitioner Regulation National Law imposes obligations on employers to notify the Australian Health Practitioner Regulation Agency of misconduct by health practitioners.
117A Duty of chief executive to report certain conduct
(1) The chief executive of a public health organisation is to report to the relevant professional council any conduct of a member of staff that the chief executive suspects on reasonable grounds may constitute professional misconduct or unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW).(2) In this section, relevant professional council means:(a) in relation to a chiropractor, the Chiropractic Council of New South Wales, or(b) in relation to a dentist, dental hygienist, dental prosthetist, dental therapist or an oral health therapist, the Dental Council of New South Wales, or(c) in relation to a medical practitioner, the Medical Council of New South Wales, or(d) in relation to a nurse or midwife, the Nursing and Midwifery Council of New South Wales, or(e) in relation to an optometrist, the Optometry Council of New South Wales, or(f) in relation to an osteopath, the Osteopathy Council of New South Wales, or(g) in relation to a pharmacist, the Pharmacy Council of New South Wales, or(h) in relation to a physiotherapist, the Physiotherapy Council of New South Wales, or(i) in relation to a podiatrist, the Podiatry Council of New South Wales, or(j) in relation to a psychologist, the Psychology Council of New South Wales.
118 Disciplinary action in certain cases of serious sex or violence offences
(1) The chief executive of a public health organisation is, within 30 days (or such further period as may be agreed to by the Director-General) of becoming aware that a member of staff has been convicted (whether before or during his or her employment) of a serious sex or violence offence, to notify the Director-General of the staff member’s conviction.(2) On being notified under subsection (1), the Director-General is to afford the member of staff concerned a reasonable opportunity to make written submissions concerning any matter relevant to the conviction that the staff member wishes to have considered in determining what (if any) disciplinary action should be taken in relation to the staff member.(3) The Director-General may take such disciplinary action as the Director-General considers appropriate (having regard to section 119) against a member of staff who has been convicted (whether before or during his or her employment) of a serious sex or violence offence.(4) This section does not apply to a conviction that occurred before a person was employed if, before that employment, the person notified the Director-General in writing of the fact of the conviction.(5) This section extends to a conviction that occurred before the commencement of this section (as substituted by the Public Sector Employment Legislation Amendment Act 2006).(6) In this section:disciplinary action means:
(a) dismissal from the NSW Health Service, or(b) imposing conditions in respect of the supervision of, or reporting by, a member of staff or in respect of the scope of a staff member’s duties, or(c) transferring a member of staff to another position in the NSW Health Service.
119 Protection of patients, clients and children to be paramount consideration
The protection of a public health organisation’s patients and clients and of children for which it is responsible is to be the paramount consideration in relation to determining whether to take disciplinary action against a member of staff under this Part.
120 No compensation for termination of employment
No compensation (whether for breach of contract or otherwise) is payable in respect of the termination of the employment of a member of staff under this Part.
120A Suspension of members of staff from duty pending decision in relation to misconduct or serious criminal charge
(1) If:(a) the registration of a member of staff as a registered health practitioner is suspended under section 150 of the Health Practitioner Regulation National Law (NSW), or(b) conditions are imposed on the registration of a member of staff as a registered health practitioner under section 150 (1) (b) of that Law that, in the opinion of the Director-General, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, or(c) an interim prohibition order is made in respect of a member of staff under section 41AA of the Health Care Complaints Act 1993 that prohibits the staff member from providing health services or specified health services, or(d) an interim prohibition order is made in respect of a member of staff under section 41AA of that Act that places conditions on the provision of health services or specified health services by the staff member that, in the opinion of the Director-General, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, or(e) a member of staff is charged with having committed a serious criminal offence,the Director-General may suspend the member of staff from duty until the suspension, interim prohibition order or conditions have been removed or expire or the criminal charge has been dealt with.Note. Under section 3J of the Public Sector Employment and Management Act 2002 the Public Service Commissioner may, for the purposes of exercising his or her functions, give a direction in writing to the head of a public sector agency in relation to the staff of that agency. The head of a public sector agency to whom such a direction is given must comply with the direction.(2) Any salary payable to a person as a member of staff while the person is suspended from duty under this section is (if the Director-General so directs) to be withheld.(3) If:(a) the registration of the member of staff as a registered health practitioner is cancelled or suspended under section 149C of the Health Practitioner Regulation National Law (NSW), or(b) conditions are imposed on the registration of the member of staff as a registered health practitioner under section 149A (1) (b) of that Law that, in the opinion of the Director-General, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, or(c) a prohibition order is made in respect of the member of staff under section 41A of the Health Care Complaints Act 1993 that prohibits the staff member from providing health services or specified health services, or(d) a prohibition order is made in respect of the member of staff under section 41A of that Act that places conditions on the provision of health services or specified health services by the staff member that, in the opinion of the Director-General, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, or(e) the person is convicted of the offence concerned,the salary withheld under subsection (2) is forfeited to the State unless the Director-General otherwise directs or that salary was due to the person in respect of a period before the suspension was imposed.(4) If, at the time that the relevant suspension, interim prohibition order or conditions referred to in subsection (1) (a)–(d) are removed or expire, action referred to in subsection (3) (a)–(d) is not taken in relation to the member of staff, the salary withheld under subsection (2) is to be paid to that member of staff unless the Director-General directs that the salary is to be forfeited to the State (other than any salary that was due to the person in respect of a period before the suspension was imposed).(5) If the Director-General has suspended a member of staff from duty under this section, the Director-General may at any time remove the suspension.(6) Nothing in this section prevents the Director-General from suspending a member of staff under any other provision of this Act or any other law (with or without pay) or from taking any other action against a member of staff under this Part.(7) In this section:salary does not include any payment in connection with sick leave, recreation leave or any other leave.
serious criminal offence means an offence committed in New South Wales that is punishable by imprisonment for 5 years or more or an offence committed elsewhere that, if it had been committed in New South Wales, would be an offence so punishable.
(1) (Repealed)(2) Nothing in this Part affects the operation of Part 6 (Unfair dismissals) of Chapter 2 of the Industrial Relations Act 1996 or any other statutory right that a member of staff may have in relation to the termination of his or her employment under this Part. However, in exercising its functions under that Part, the Industrial Relations Commission is to have regard to section 119 of this Act.Note. Part 6 of Chapter 2 of the Industrial Relations Act 1996 enables certain employees specified in section 83 of that Act to make an application to the Industrial Relations Commission in respect of a claim that his or her dismissal or threatened dismissal from employment has been or will be harsh, unreasonable or unjust.(3) Nothing in this Part affects the operation of the Criminal Records Act 1991 in relation to spent convictions within the meaning of that Act.Note. Section 22 of the Health Administration Act 1982 makes it an offence for a person to disclose any information obtained in connection with the administration or execution of that Act or any other Act conferring or imposing functions on the Director-General, except in the circumstances specified in that section.