Division 10 Title and practice protections

Subdivision 1 Title protections

113   Restriction on use of protected titles

(1)  A person must not knowingly or recklessly—

(a)  take or use a title in the Table to this section, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the health profession listed beside the title in the Table, unless the person is registered in the profession, or

(b)  take or use a prescribed title for a health profession, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the profession, unless the person is registered in the profession.

Maximum penalty—

(a)  in the case of an individual—$30,000; or

(b)  in the case of a body corporate—$60,000.

(2)  A person must not knowingly or recklessly—

(a)  take or use a title in the Table in relation to another person (the second person), in a way that could be reasonably expected to induce a belief the second person is registered under this Law in the health profession listed beside the title in the Table, unless the second person is registered in the profession; or

(b)  take or use a prescribed title for a health profession in relation to another person (the second person), in a way that could be reasonably expected to induce a belief the second person is registered under this Law in the profession, unless the second person is registered in the profession.

Maximum penalty—

(a)  in the case of an individual—$30,000; or

(b)  in the case of a body corporate—$60,000.

(3)  Subsections (1) and (2) apply whether or not the title is taken or used with or without any other words and whether in English or any other language.

Table—Protected Titles

Profession	Title
Aboriginal and Torres Strait Islander Health Practice	Aboriginal and Torres Strait Islander health practitioner, Aboriginal health practitioner, Torres Strait Islander health practitioner
Chinese Medicine	Chinese medicine practitioner, Chinese herbal dispenser, Chinese herbal medicine practitioner, Oriental medicine practitioner, acupuncturist
Chiropractic	chiropractor
Dental	dentist, dental therapist, dental hygienist, dental prosthetist, oral health therapist
Medical	medical practitioner
Medical Radiation Practice	medical radiation practitioner, diagnostic radiographer, medical imaging technologist, radiographer, nuclear medicine scientist, nuclear medicine technologist, radiation therapist
Nursing and Midwifery	nurse, registered nurse, nurse practitioner, enrolled nurse, midwife, midwife practitioner
Occupational Therapy	occupational therapist
Optometry	optometrist, optician
Osteopathy	osteopath
Pharmacy	pharmacist, pharmaceutical chemist
Physiotherapy	physiotherapist, physical therapist
Podiatry	podiatrist, chiropodist
Psychology	psychologist

114   Use of title “acupuncturist”

(1)  A registered health practitioner whose registration is endorsed under section 97 by a National Board as being qualified to practise as an acupuncturist does not commit an offence against section 113(1)(a) merely because the individual takes or uses the title “acupuncturist”.

(2)  A person does not commit an offence against section 113(2)(a) merely because the person takes or uses the title “acupuncturist” in relation to another person who is a registered health practitioner whose registration is endorsed under section 97 by a National Board as being qualified to practise as an acupuncturist.

115   Restriction on use of specialist titles

(1)  A person must not knowingly or recklessly take or use—

(a)  the title “dental specialist” unless the person is registered under this Law in a recognised specialty in the dentists division of the dental profession; or

(b)  the title “medical specialist” unless the person is registered in a recognised specialty in the medical profession; or

(c)  a specialist title for a recognised specialty unless the person is registered under this Law in the specialty.

Maximum penalty—

(a)  in the case of an individual—$30,000; or

(b)  in the case of a body corporate—$60,000.

(2)  A person must not knowingly or recklessly take or use—

(a)  the title “dental specialist” in relation to another person unless the other person is registered under this Law in a recognised specialty in the dentists division of the dental profession; or

(b)  the title “medical specialist” in relation to another person unless the person is registered in a recognised specialty in the medical profession; or

(c)  a specialist title for a recognised specialty in relation to another person unless the person is registered under this Law in the specialty.

Maximum penalty—

(a)  in the case of an individual—$30,000; or

(b)  in the case of a body corporate—$60,000.

(3)  Subsection (1) applies whether or not the title is taken or used with or without any other words and whether in English or any other language.

116   Claims by persons as to registration as health practitioner

(1)  A person who is not a registered health practitioner must not knowingly or recklessly—

(a)  take or use the title of “registered health practitioner”, whether with or without any other words; or

(b)  take or use a title, name, initial, symbol, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate—

(i)  the person is a health practitioner; or

(ii)  the person is authorised or qualified to practise in a health profession; or

(c)  claim to be registered under this Law or hold himself or herself out as being registered under this Law; or

(d)  claim to be qualified to practise as a health practitioner.

Maximum penalty—

(a)  in the case of an individual—$30,000; or

(b)  in the case of a body corporate—$60,000.

(2)  A person must not knowingly or recklessly—

(a)  take or use the title of “registered health practitioner”, whether with or without any other words, in relation to another person who is not a registered health practitioner; or

(b)  take or use a title, name, initial, symbol, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate—

(i)  another person is a health practitioner if the other person is not a health practitioner; or

(ii)  another person is authorised or qualified to practise in a health profession if the other person is not a registered health practitioner in that health profession; or

(c)  claim another person is registered under this Law, or hold the other person out as being registered under this Law, if the other person is not registered under this Law; or

(d)  claim another person is qualified to practise as a health practitioner if the other person is not a registered health practitioner.

Maximum penalty—

(a)  in the case of an individual—$30,000; or

(b)  in the case of a body corporate—$60,000.

117   Claims by persons as to registration in particular profession or division

(1)  A registered health practitioner must not knowingly or recklessly—

(a)  claim to be registered under this Law in a health profession or a division of a health profession in which the practitioner is not registered, or hold himself or herself out as being registered in a health profession or a division of a health profession if the person is not registered in that health profession or division; or

(b)  claim to be qualified to practise as a practitioner in a health profession or a division of a health profession in which the practitioner is not registered; or

(c)  take or use any title that could be reasonably understood to induce a belief the practitioner is registered under this Law in a health profession or a division of a health profession in which the practitioner is not registered.

(2)  A contravention of subsection (1) by a registered health practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.

(3)  A person must not knowingly or recklessly—

(a)  claim another person is registered under this Law in a health profession or a division of a health profession in which the other person is not registered, or hold the other person out as being registered in a health profession or a division of a health profession if the other person is not registered in that health profession or division; or

(b)  claim another person is qualified to practise as a health practitioner in a health profession or division of a health profession in which the other person is not registered; or

(c)  take or use any title in relation to another person that could be reasonably understood to induce a belief the other person is registered under this Law in a health profession or a division of a health profession in which the person is not registered.

Maximum penalty—

(a)  in the case of an individual—$30,000; or

(b)  in the case of a body corporate—$60,000.

Note. A contravention of this subsection by a registered health practitioner may also constitute unprofessional conduct for which health, conduct or performance action may be taken.

118   Claims by persons as to specialist registration

(1)  A person who is not a specialist health practitioner must not knowingly or recklessly—

(a)  take or use the title of “specialist health practitioner”, whether with or without any other words; or

(b)  take or use a title, name, initial, symbol, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate—

(i)  the person is a specialist health practitioner; or

(ii)  the person is authorised or qualified to practise in a recognised specialty; or

(c)  claim to be registered under this Law in a recognised specialty or hold himself or herself out as being registered under this Law in a recognised specialty; or

(d)  claim to be qualified to practise as a specialist health practitioner.

Maximum penalty—

(a)  in the case of an individual—$30,000; or

(b)  in the case of a body corporate—$60,000.

(2)  A person must not knowingly or recklessly—

(a)  take or use the title of “specialist health practitioner”, whether with or without any other words, in relation to another person who is not a specialist health practitioner; or

(b)  take or use a title, name, initial, symbol, word or description in relation to another person that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate—

(i)  the other person is a specialist health practitioner; or

(ii)  the other person is authorised or qualified to practise in a recognised specialty; or

(c)  claim another person is registered under this Law in a recognised specialty or hold the other person out as being registered under this Law in a recognised specialty if the other person is not registered in that recognised specialty; or

(d)  claim another person is qualified to practise as a specialist health practitioner if the person is not a specialist health practitioner.

Maximum penalty—

(a)  in the case of an individual—$30,000; or

(b)  in the case of a body corporate—$60,000.

Note. A contravention of this section by a registered health practitioner may also constitute unprofessional conduct for which health, conduct or performance action may be taken.

119   Claims about type of registration or registration in recognised specialty

(1)  A registered health practitioner must not knowingly or recklessly—

(a)  claim to hold a type of registration or endorsement under this Law that the practitioner does not hold or hold himself or herself out as holding a type of registration or endorsement if the practitioner does not hold that type of registration; or

(b)  claim to be qualified to hold a type of registration or endorsement the practitioner does not hold; or

(c)  claim to hold specialist registration under this Law in a recognised specialty in which the practitioner does not hold specialist registration or hold himself or herself out as holding specialist registration in a recognised specialty if the person does not hold specialist registration in that specialty; or

(d)  claim to be qualified to practise as a specialist health practitioner in a recognised specialty in which the practitioner is not registered.

(2)  A contravention of subsection (1) by a registered health practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.

(3)  A person must not knowingly or recklessly—

(a)  claim another person holds a type of registration or endorsement under this Law that the other person does not hold or hold the other person out as holding a type of registration or endorsement if the practitioner does not hold that type of registration or endorsement; or

(b)  claim another person is qualified to hold a type of registration or endorsement that the other person does not hold; or

(c)  claim another person holds specialist registration under this Law in a recognised specialty which the other person does not hold or hold the other person out as holding specialist registration in a recognised specialty if the other person does not hold specialist registration in that specialty; or

(d)  claim another person is qualified to practise in a recognised specialty in which the other person is not registered.

Maximum penalty—

(a)  in the case of an individual—$30,000; or

(b)  in the case of a body corporate—$60,000.

Note. A contravention of this subsection by a registered health practitioner may also constitute unprofessional conduct for which health, conduct or performance action may be taken.

120   Registered health practitioner registered on conditions

(1)  A registered health practitioner who is registered on conditions must not knowingly or recklessly claim, or hold himself or herself out, to be registered without the conditions or any conditions.

(2)  A contravention of subsection (1) by a registered health practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.

Subdivision 2 Practice protections

Note. See also Schedule 5F which contains New South Wales provisions providing for specific restrictions in relation to the control of pharmacies.

121   Restricted dental acts

(1)  A person must not carry out a restricted dental act unless the person—

(a)  is registered in the dental profession or medical profession and carries out the restricted dental act in accordance with any requirements specified in an approved registration standard; or

(b)  is a student who carries out the restricted dental act in the course of activities undertaken as part of—

(i)  an approved program of study for the dental profession or medical profession; or

(ii)  clinical training in the dental profession or medical profession; or

(c)  carries out the restricted dental act in the course of carrying out technical work on the written order of a person registered in the dentists or dental prosthetists division of the dental profession; or

(d)  is a person, or a member of a class of persons, prescribed under a regulation as being authorised to carry out the restricted dental act or restricted dental acts generally.

Maximum penalty— $30,000.

(2)  In this section—

restricted dental act means any of the following acts—

(a)  performing any irreversible procedure on the human teeth or jaw or associated structures;

(b)  correcting malpositions of the human teeth or jaw or associated structures;

(c)  fitting or intra-orally adjusting artificial teeth or corrective or restorative dental appliances for a person;

(d)  performing any irreversible procedure on, or the giving of any treatment or advice to, a person that is preparatory to or for the purpose of fitting, inserting, adjusting, fixing, constructing, repairing or renewing artificial dentures or a restorative dental appliance.

technical work means the mechanical construction or the renewal or repair of artificial dentures or restorative dental appliances.

121A   General anaesthesia and simple sedation in dentistry [NSW]

(1)  A dentist must not carry out any procedure forming part of the practice of dentistry on a patient to whom a general anaesthetic has been administered unless the general anaesthetic has been administered by a registered medical practitioner who—

(a)  holds specialist registration in anaesthesia; or

(b)  is accredited for the purposes of administering any general anaesthetic at a public or private hospital at which surgery may lawfully be carried out.

Maximum penalty—200 penalty units.

(2)  A dentist must not administer simple sedation by the intravenous route unless the dentist—

(a)  has been endorsed by the Dental Board of Australia to administer sedation; and

(b)  is assisted by another person who is either—

(i)  a registered nurse who has received training in intensive care or anaesthesia; or

(ii)  a dentist, appropriately trained in the observation and monitoring of sedated patients and in resuscitation, whose sole responsibility in assisting is to monitor the level of consciousness and cardio-respiratory function of the patient and to administer resuscitation if necessary.

Maximum penalty—200 penalty units.

(3)  In this section—

general anaesthetic means a drug or other substance that, when administered to a patient, will render the patient—

(a)  unaware of the patient’s surroundings; and

(b)  unable to retain reflex control of the airway; and

(c)  incapable of understanding and obeying a spoken command.

simple sedation means a technique in which the use of a drug produces a state of depression of the central nervous system enabling treatment to be carried out, and in which—

(a)  the patient does not lose consciousness; and

(b)  the drug and techniques used have a margin of safety wide enough to render unintended loss of consciousness unlikely.

Note. This section is an additional New South Wales provision.

122   Restriction on prescription of optical appliances

(1)  A person must not prescribe an optical appliance unless—

(a)  the person is an optometrist or medical practitioner; or

(b)  the appliance is spectacles and the person is an orthoptist who—

(i)  prescribes the spectacles in the course of carrying out duties at a public health facility; or

(ii)  prescribes the spectacles under the supervision of an optometrist or medical practitioner; or

(iii)  prescribes the spectacles, on the written referral of an optometrist or medical practitioner, to a person who has had, within the 12 months before the referral, an ocular health examination conducted by an optometrist or medical practitioner; or

(c)  the person is a person, or a member of a class of persons, prescribed under a regulation as being authorised to prescribe an optical appliance of that type or to prescribe optical appliances generally.

Maximum penalty— $30,000.

(2)  In this section—

optical appliance means—

(a)  any appliance designed to correct, remedy or relieve any refractive abnormality or defect of sight, including, for example, spectacle lenses; or

(b)  contact lenses, whether or not designed to correct, remedy or relieve any refractive abnormality or defect of sight.

optometrist means a person registered in the optometry profession.

orthoptist means a person whose name is recorded in the Register of Orthoptists kept by the Australian Orthoptists Registration Body Pty Ltd (ACN 095 11 7 678).

123   Restriction on spinal manipulation

(1)  A person must not perform manipulation of the cervical spine unless the person—

(a)  is registered in an appropriate health profession; or

(b)  is a student who performs manipulation of the cervical spine in the course of activities undertaken as part of—

(i)  an approved program of study in an appropriate health profession; or

(ii)  clinical training in an appropriate health profession; or

(c)  is a person, or a member of a class of persons, prescribed under a regulation as being authorised to perform manipulation of the cervical spine.

Maximum penalty— $30,000.

(2)  In this section—

appropriate health profession means any of the following health professions—

(a)  chiropractic;

(b)  osteopathy;

(c)  medical;

(d)  physiotherapy.

manipulation of the cervical spine means moving the joints of the cervical spine beyond a person’s usual physiological range of motion using a high velocity, low amplitude thrust.