Health Practitioner Regulation National Law (NSW) No 86a
Current version for 19 December 2014 to date (accessed 23 December 2014 at 16:08)
Part 8Division 3Subdivision 7

Subdivision 7 Powers of a Council for protection of public [NSW]

150   Suspension or conditions of registration to protect public [NSW]

(1)  A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest—
(a)  by order suspend a registered health practitioner’s or student’s registration; or
(b)  by order impose on a registered health practitioner’s registration the conditions relating to the practitioner’s practising the health profession the Council considers appropriate; or
(c)  by order impose on a student’s registration the conditions the Council considers appropriate.
(2)  A suspension of a registered health practitioner’s or student’s registration under subsection (1) has effect until the first of the following happens—
(a)  the complaint about the practitioner or student is disposed of;
(b)  the suspension is ended by the Council.
(3)  If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must—
(a)  suspend the practitioner’s or student’s registration until a complaint concerning the matter is dealt with by the Tribunal; and
(b)  refer the matter to the Tribunal as a complaint.
(4)  A Council for a health profession may take action under this section—
(a)  whether or not a complaint has been made or referred to the Council about the practitioner or student; and
(b)  whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal.
(5)  Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition.
(6)  A Council must give written notice of action taken under this section to the registered health practitioner or student concerned.
(7)  If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who—
(a)  is not a registered health practitioner or student in the health profession for which the Council is established; and
(b)  has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.

150A   Review of certain decisions [NSW]

(1)  A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to—
(a)  suspend the practitioner’s or student’s registration; or
(b)  impose conditions on the practitioner’s or student’s registration or alter conditions imposed on the practitioner’s or student’s registration.
(2)  On receiving an application for review, a Council—
(a)  may refuse to reconsider its decision if, in the Council’s opinion, the application is frivolous or vexatious; or
(b)  must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers is relevant.
(3)  Following its reconsideration of a decision, a Council may—
(a)  affirm or vary the decision; or
(b)  set it aside and take any action the Council has the power to take under section 150.
(4)  A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner’s or student’s circumstances that justifies the variation or setting aside of the decision.

150B   Audio recording of meeting [NSW]

(1)  A Council must cause an audio recording to be made of any proceedings of the Council in connection with the consideration by the Council of the exercise or proposed exercise of a function under this Subdivision in respect of a registered health practitioner or student—
(a)  during which the practitioner or student, or the practitioner’s or student’s adviser, is present; or
(b)  during which a person other than a member of the Council or a staff member of the Council is present and gives the Council oral information relevant to the Council’s consideration.
(2)  A recording under this section is not admissible in evidence in—
(a)  civil or criminal proceedings in a court of law (other than proceedings under this Law); or
(b)  an inquest or inquiry under the Coroners Act 2009.

150C   Power to remove or alter conditions or end suspension [NSW]

(1)  A Council may, at any time—
(a)  end a period of suspension imposed by the Council under this Subdivision; or
(b)  alter or remove conditions imposed under this Subdivision.
(2)  A Council may, at any time after taking action under section 150 with respect to a registered health practitioner or student (the original action), take any other action it could have taken under that section at the time of taking the original action.
(3)  The Council must give written notice of the action it takes under this section to the registered health practitioner or student concerned.

150D   Referral of matter to Commission [NSW]

(1)  A Council must, as soon as practicable but no later than 7 days after taking action under section 150, refer the matter to the Commission for investigation.
(2)  The Council may (despite any other Act or law) give to the Commission information obtained by the Council in connection with the exercise of functions under section 150 (including information, copies of documents or evidence obtained under section 150J and a copy of a recording made under section 150B) in respect of the matter.
(3)  The matter must be dealt with by the Commission as a complaint made to the Commission against the registered health practitioner or student concerned.
(4)  The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation and if it considers it appropriate to do so, refer the complaint to the Tribunal or a Committee for the health profession in which the health practitioner or student is registered.
Note. See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion that the complaint, if substantiated, would provide grounds for the suspension or cancellation of the registered health practitioner’s or student’s registration.
(4A)  Despite subsections (3) and (4), the Commission is not required to investigate the complaint or cause it to be investigated if the matter that is the subject of the complaint is being, or has been, investigated as, or as part of, another complaint to the Commission.
(5)  This section does not apply if a Council takes action against a registered health practitioner or student under section 150—
(a)  because, in the Council’s opinion, the practitioner or student has an impairment; or
(b)  that is action of a kind referred to in section 150(5).

150E   Special provision—performance assessment [NSW]

(1)  If the Commission agrees with the proposed imposition by a Council under section 150 of a condition on a registered health practitioner’s registration requiring the practitioner to take part in a performance assessment, the matter giving rise to the proposal—
(a)  must be dealt with by way of a performance assessment; and
(b)  may, if the Council and the Commission agree, also be dealt with by the Commission as a complaint against the practitioner.
(2)  If the Commission does not agree with the imposition of the condition, the matter must be dealt with by the Commission as a complaint against the registered health practitioner.
(3)  The Council may (despite any other Act or law) provide to the Commission any information obtained by the Council in connection with the exercise of functions under section 150 (including any information, copies of documents or evidence obtained under section 150J and a copy of any recording made under section 150B) in respect of the matter.
(4)  If a matter is to be dealt with under this section by way of a performance assessment, it may be so dealt with despite anything to the contrary in section 154A.
(5)  If the matter is to be dealt with as a complaint, the Council must refer the matter to the Commission and the matter must be dealt with by the Commission as a complaint made to the Commission against the practitioner concerned.
(6)  The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after the investigation is completed, refer the complaint to a Committee for the health profession or the Tribunal.
Note. See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion the complaint, if substantiated, would provide grounds for the suspension or cancellation of the health practitioner’s registration.

150F   Special provisions—impairment [NSW]

(1)  This section applies if a Council takes action against a registered health practitioner or student under section 150 because, in the Council’s opinion, the practitioner or student has an impairment.
(2)  The Council must, as soon as practicable after taking that action and, in any event, within 7 days after taking that action, notify the Commission that it has taken that action.
(3)  The Council must consult with the Commission to see if agreement can be reached as to whether the matter should be—
(a)  dealt with as a complaint against the registered health practitioner or student; or
(b)  referred to an Impaired Registrants Panel.
(4)  The matter is to be dealt with as a complaint against the registered health practitioner or student only if, following the consultation—
(a)  the Council and the Commission agree it should be dealt with as a complaint; or
(b)  either the Council or the Commission is of the opinion the matter should be dealt with as a complaint.
(5)  If the matter is to be dealt with as a complaint, the Council must refer the matter to the Commission and the matter must be dealt with by the Commission as a complaint made to the Commission against the registered health practitioner or student.
(6)  The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after the investigation is completed, consult with the Council about how the matter is to be dealt with, including, for example, by referring the complaint to the Tribunal or a Committee for the health profession in which the health practitioner or student is registered.
Note. See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion the complaint, if substantiated, would provide grounds for the suspension or cancellation of the health practitioner’s or student’s registration.
(7)  If the matter is not to be dealt with as a complaint, the Council must refer the matter to an Impaired Registrants Panel.

150G   Ending suspension [NSW]

When a suspension imposed under this Subdivision ends, the person’s rights and privileges as a registered health practitioner or student in the health profession are revived, subject to—
(a)  any other action taken by the Council for the profession under this Subdivision; or
(b)  any order of the Tribunal on a complaint referred to the Tribunal.

150H   Duration of conditions—complaint matters [NSW]

(1)  This section applies if—
(a)  a Council for a health profession imposes conditions on the registration of a registered health practitioner or student under section 150; and
(b)  the matter is dealt with as a complaint against the practitioner or student.
(2)  The conditions imposed by the Council have effect until the first of the following happens—
(a)  the complaint about the registered health practitioner or student is disposed of;
(b)  the conditions are removed by the Council.
(3)  This section—
(a)  does not prevent conditions being imposed under another provision of this Law; and
(b)  is subject to anything done by the Tribunal on an appeal.

150I   Duration of conditions—impairment matters [NSW]

(1)  This section applies if—
(a)  a Council for a health profession imposes conditions on the registration of a registered health practitioner or student under section 150; and
(b)  the matter is referred to an Impaired Registrants Panel.
(2)  The conditions imposed by the Council have effect until the first of the following happens—
(a)  if the matter is subsequently dealt with by the Council as a complaint, the complaint about the registered health practitioner or student is disposed of;
(b)  the conditions are removed by the Council.
(3)  The Council is not required to alter or remove the conditions merely because the registered health practitioner or student agrees to conditions being imposed on the practitioner’s or student’s registration in accordance with the recommendations of an Impaired Registrants Panel.
(4)  If the registered health practitioner or student agrees to conditions being imposed on the practitioner’s or student’s registration in accordance with the recommendations of an Impaired Registrants Panel, the practitioner or student may, by written notice to the Council, ask for the conditions imposed under this Subdivision to be altered or removed.
(5)  On receipt of the request, the Council must review the matter, and may—
(a)  refuse to alter or remove the conditions; or
(b)  alter or remove the conditions.
(6)  The Council must give the registered health practitioner or student written notice of its decision.
(7)  The Council may specify in the notice a period during which a further request by the registered health practitioner or student for the conditions to be altered or removed is not permitted.
(8)  The Council may reject a request that the conditions be altered or removed if it is made during that period.
(9)  This section—
(a)  does not prevent conditions being imposed under another provision of this Law; and
(b)  is subject to anything done by the Tribunal on an appeal.

150J   Powers of Council to obtain information, records and evidence [NSW]

(1)  If, in a Council’s opinion, a person is capable of giving information, documents (including medical records) or evidence that would assist the Council in making a decision about action taken or proposed to be taken by the Council under this Subdivision, the Council may, by written notice given to the person, require the person to do one or more of the following—
(a)  to give the Council, in writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation), within the time and in the way specified in the notice, information of which the person has knowledge;
(b)  to produce to the Council, in accordance with the notice, documents;
(c)  to appear before the Council or a member of staff of the Council authorised by the President or Deputy President of the Council at a specified reasonable time and place and give evidence, either orally or in writing, and produce documents.
(2)  Information and documents may be given to a Council in compliance with this section despite any other Act or law.
(3)  A person who is subject to a requirement made under subsection (1) must not—
(a)  without reasonable excuse, fail to comply with the requirement; or
(b)  in purported compliance with the requirement, provide information, documents or evidence knowing the information, documents or evidence to be false or misleading in a material particular.

Maximum penalty—20 penalty units.

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