Part 2 Licensing of private health facilities
Division 1 Licensing standards
The regulations may prescribe standards for or with respect to any matter relating to the safety, care or quality of life of patients at private health facilities, including without limitation the following matters:(a) clinical standards, including accreditation of practitioners to provide services at the facility, delineation of clinical privileges of practitioners and quality assurance,(b) staffing, including qualifications of staff members, number of staff and duties,(c) equipment,(d) design and construction of clinical areas,(e) operational matters, including administration and support services.
Division 2 Applications for and issue of licences
(1) An application for a licence for a private health facility is to be made to the Director-General by the person who intends to conduct the facility.(2) An application must:(a) be in a form approved by the Director-General, and(b) specify the class of facility for which the licence is sought, and(c) specify the maximum number of patients it is proposed to accommodate at any one time in each ward of the facility, and(d) specify the number (if any) of procedure rooms that are proposed to be provided at the facility, and(e) demonstrate that the facility can be conducted in accordance with the licensing standards, and(f) be accompanied by any fee and any particulars and documents prescribed by the regulations in relation to an application under this section in respect of that class of facility.
7 Approval in principle or refusal of application
(1) The Director-General must, after considering an application for a licence under this Division:(a) give an approval in principle to the application, or(b) refuse the application.(2) The Director-General may give an approval in principle unconditionally or subject to conditions, including conditions relating to:(a) the design and construction of any clinical areas to be constructed, altered or extended for the purposes of the proposed facility, and(b) the times by which any such design and construction must be completed.(3) In determining whether to give an approval in principle, the Director-General is not to take into account whether any such approval has been previously given or refused.(4) The Director-General may refuse an application for a licence only if the Director-General is satisfied that:(a) the applicant, or any of the applicants, is not a fit and proper person to be a licensee or if the applicant is a corporation, a director or a person concerned in the management of the corporation is not a fit and proper person to be a licensee, or(b) the proposed facility is not capable of being conducted by the applicant in accordance with the licensing standards, or(c) having regard to any development guidelines approved by the Director-General and published in the Gazette:(i) approval of the application will result in more than an adequate number of health services becoming available in a particular clinical or geographic area and will undermine the provision of viable, comprehensive and coordinated health services, or(ii) the application should be refused for any other reason, or(d) the applicant (or, where the applicant is a corporation, any director or other person concerned in the management of the corporation) has been convicted of an offence under this Act or the regulations, or(e) the applicant (or, where the applicant is a corporation, any director or other person concerned in the management of the corporation) has been convicted in New South Wales of an offence punishable by imprisonment for a period of 12 months or more, or is convicted elsewhere than in New South Wales of an offence which, if committed in New South Wales, would be an offence so punishable, or(f) the applicant (being a natural person) has been bankrupt, or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, has compounded with his or her creditors or has made an assignment of his or her remuneration for their benefit, or(g) where the applicant is a corporation—a receiver or manager has been appointed in respect of the property of the applicant or the applicant has been commenced to be wound up or is under official management.(5) The Director-General must, if he or she gives an approval in principle, notify the applicant in writing of that approval and any conditions to which the approval is subject.
8 Period for which approval in principle remains effective
(1) An approval in principle is effective for a period of one year from the date on which the applicant is given notice of that approval under section 7 (5), subject to any extension of that period by the Director-General under this section.(2) The Director-General may, at the request of the applicant and in accordance with this section, extend the period for which an approval in principle remains effective (an extension).(3) An applicant may make more than one request for an extension, but any such request must be made while the approval in principle is effective.(4) A request for an extension is to be in the form approved by the Director-General and is to be accompanied by any fee, document or information that may be prescribed by the regulations in relation to the relevant class of private health facility.(5) The Director-General may grant an extension only if:(a) the particular extension is for a period of no more than one year, and(b) the total period for which the approval in principle will be effective is no more than 7 years, and(c) the Director-General is satisfied that each applicant:(i) has made a reasonable attempt to comply with any conditions to which the approval in principle is subject, and(ii) is a fit and proper person to be a licensee or if the applicant is a corporation, each director and each person concerned in the management of the corporation is a fit and proper person to be a licensee.
9 Issue of licence approved in principle
(1) The Director-General must grant an application and issue a licence to an applicant if the Director-General has approved the application in principle and all conditions to which the approval in principle was subject have been complied with, unless:(a) the approval in principle has expired, or(b) the Director-General is satisfied that the proposed facility is not capable of being conducted by the applicant in accordance with the licensing standards, or(c) the Director-General is satisfied that the applicant, or any of the applicants, is not a fit and proper person to be a licensee or if the applicant is a corporation, a director or a person concerned in the management of the corporation is not a fit and proper person to be a licensee.(2) The Director-General is to notify the applicant in writing if the Director-General grants an application and issues a licence.
Division 3 Provisions relating to licences
10 Classes of private health facilities
(1) For the purposes of this Act, the classes of private health facilities are the classes (if any) prescribed by the regulations.(2) A private health facility may fall into more than one class, and in such a case, a provision requiring a fee to be paid under the Act in respect of a class of facility, means the highest fee that would be payable if the facility were to fall into only one of those classes.
Without limiting the particulars that may be included in a licence, a licence is to specify:(a) the person to whom it is issued, and(b) the address of the private health facility for which it is issued, and(c) the class of facility in respect of which it is issued, and(d) the maximum number of patients who can be accommodated at any one time in each ward of the facility, and(e) any conditions to which the licence is subject (other than the conditions referred to in section 12 (2)).
(1) The Director-General may issue a licence subject to such conditions as may be specified in the licence.Note. Conditions, other than those referred to in subsection (2), may be amended by the Director-General under section 17 (3) (c).(2) A licence is subject to the conditions that the licensee, in respect of the facility concerned, must:(a) hold or otherwise be covered by insurance, or other liability cover, as may be prescribed by the regulations in relation to that class of facility, and(b) ensure that, at all times, a medical advisory committee is appointed in accordance with this Act and the regulations in respect of the facility, and(c) comply with all other provisions of this Act and the regulations, and(d) ensure that the facility is conducted in accordance with the licensing standards applicable to it, and(e) ensure that reasonable standards of patient care and safety are maintained at the facility, and(f) provide to the Director-General in the time and manner specified by the Director-General, such information as may be prescribed.
A licence comes into force from the date on which the applicant is notified by the Director-General under section 9 (2) or 15 (5) or when a new licence is issued under section 17 (4) (b) and remains in force (except when suspended) until cancelled under this Act.
(1) The licensee of a private health facility must, on or before 31 December in each year, or such other date as may be notified to the licensee in writing by the Director-General, pay to the Director-General the annual licence fee (if any) prescribed by the regulations in relation to that class of facility.(2) The Director-General may accept a late payment of an annual licence fee, but only if an additional late fee of 50% of the annual licence fee is paid at the same time as the licence fee.
15 Transfer of licence to another licensee
(1) A person who intends to take over the conduct of a private health facility may, with the consent of the licensee of the facility, apply to the Director-General to transfer the relevant licence from the licensee to the applicant.(2) Except as provided by subsection (4), the Director-General must, if the application is made in accordance with this section, transfer the licence to the applicant:(a) by an appropriate endorsement on the licence, or(b) by cancelling the licence and issuing a new licence in respect of the facility to the applicant.(3) An application under this section must:(a) be in a form approved by the Director-General, and(b) be accompanied by any fee and any particulars and documents prescribed by the regulations in relation to an application under this section in respect of that class of facility.(4) The Director-General may refuse an application under this section only if the Director-General is satisfied:(a) that the applicant, or any of the applicants, is not a fit and proper person to be a licensee or if the applicant is a corporation, a director or a person concerned in the management of the corporation is not a fit and proper person to be a licensee, or(b) that the proposed facility is not capable of being conducted by the applicant in accordance with the licensing standards.(5) The Director-General is to notify the applicant in writing if the Director-General approves an application.
16 Alterations or extensions to licensed facilities
(1) The licensee of a private health facility must not cause or permit any clinical areas of the facility to be altered or extended (whether by construction of new buildings or otherwise) unless:(a) the approval of the Director-General to the alteration or extension is first obtained, and(b) the facility is altered or extended in accordance with plans and specifications approved by the Director-General.Maximum penalty: 1,000 penalty units.
(2) An application for approval under this section must:(a) be in a form approved by the Director-General, and(b) be accompanied by any fee and any particulars and documents prescribed by the regulations in relation to an application under this section in respect of that class of facility.(3) The Director-General may refuse an application under this section for any reason the Director-General might refuse under Division 2 an application for a licence for the facility as altered or extended.(4) The approval of the Director-General is not required under this section for any alteration or extension required to be carried out under an improvement notice given under Part 5.
(1) An application to amend a licence for a private health facility is to be made to the Director-General by the licensee of the facility.(2) An application must:(a) be in a form approved by the Director-General, and(b) specify the facility to which the licence relates, and(c) specify the amendment that is sought, and(d) demonstrate that the facility can, if the amendment is granted, be conducted in accordance with the licensing standards, and(e) be accompanied by any fee and any particulars and documents prescribed by the regulations in relation to an application under this section in respect of that class of facility.(3) The Director-General may on the application of the licensee, or if the Director-General otherwise considers it necessary, amend a licence in any one or more of the following ways:(a) by amending the class of private health facility to which the licence relates,(b) by amending the number of patients who may be accommodated at any one time in each ward of the private health facility,(c) by amending or revoking any condition of the licence (other than a condition referred to in section 12 (2)) or attaching further conditions to the licence.(4) A licence may be amended under this section:(a) by endorsing the licence with the amendment, or(b) by cancelling the licence and issuing a new licence incorporating the amendment, or(c) by notice in writing served on the licensee.(5) If a notice is served under subsection (4) (c), the licence to which it relates is immediately taken to be amended in accordance with the notice.(6) The Director-General may, by notice in writing served on a licensee, require the licensee to forward his or her licence to the Director-General for the purposes of this section.(7) A licensee must comply with a notice served on the licensee under subsection (6).Maximum penalty: 50 penalty units.
(8) The Director-General may refuse an application under this section if the Director-General is satisfied on any of the grounds set out in section 7 (4).
Division 4 General provisions relating to applications
(1) The Director-General may, by notice in writing served on an applicant, direct the applicant to provide to the Director-General any information the Director-General may reasonably require for the purpose of determining the application.(2) Despite any other provision of this Act, the Director-General may refuse an application on the ground that the applicant has failed to comply with a direction under this section.
19 Notice of reasons for refusal of application
(1) If the Director-General refuses an application, he or she is to notify the applicant in writing of the following:(a) that the application has been refused,(b) the grounds on which it has been refused,(c) if the application has been refused on the ground that an applicant (or if the applicant is a corporation, a director or a person concerned in the management of the corporation) is not a fit and proper person to be a licensee—the reasons why the person is not a fit and proper person to be a licensee,(d) that the applicant can apply under Division 5 for a review of the decision to refuse the application.(2) A person whose application has been refused for any reason is not entitled to a refund of any fee paid in relation to that application.
20 Advertising of applications
(1) Before:(a) approving in principle an application for a licence, or refusing any such application, or(b) determining an application to transfer a licence,the Director-General is to publicly advertise the application in the manner the Director-General thinks fit.(2) The Director-General is to take into consideration any representations made in relation to an application within the time specified in the advertisement.
An applicant may, with the approval of the Director-General, amend his or her application.
Division 5 Review of decisions of Director-General
In this Division, decision of the Director-General means:(a) a decision of the Director-General to refuse an application, or(b) a determination by the Director-General, when issuing a licence, of the class of facility for which the licence is issued, or(c) a determination by the Director-General, when issuing a licence, of the maximum number of patients who may be accommodated at any one time in each ward of the private health facility for which the licence is issued, or(d) a determination by the Director-General of the conditions subject to which a licence is issued, or(e) a decision of the Director-General to amend a licence (otherwise than on the application of the licensee).
23 Chairperson of Committees of Review
(1) The Minister may appoint a person to be Chairperson of Committees of Review.(2) Schedule 1 has effect with respect to the Chairperson of Committees of Review.
24 Application for review of Director-General’s decision
(1) A person aggrieved by a decision of the Director-General in relation to a private health facility may apply to the Minister to review the decision.(2) An application under this section must:(a) be in a form approved by the Minister, and(b) be accompanied by any fee and any particulars and documents prescribed by the regulations in relation to an application under this section in respect of that class of facility, and(c) must be made within 30 days after the day on which the person is notified of the decision.(3) On receipt of an application for review, the Minister is to forward the application to the Chairperson of Committees of Review, who is to establish a Committee of Review to advise the Minister on the application.
25 Constitution of Committee of Review
(1) A Committee of Review is to comprise the Chairperson of Committees of Review and 3 other persons appointed by the Chairperson, being:(a) a person with knowledge of the private health facility industry, and(b) a person with experience as a health care practitioner in a private health facility, and(c) a person who can represent the views of consumers of services provided by private health facilities.(2) The Chairperson may not appoint a person if the Chairperson knows, or has reason to believe, that the person has a pecuniary interest in the subject-matter of the application for review.(3) Schedule 2 has effect with respect to Committees of Review.
26 Committee of Review to make recommendation to Minister
(1) A Committee of Review may investigate the subject-matter of an application for review to the extent it considers necessary.(2) A Committee of Review must, after its investigation, give a written report to the Minister recommending that the decision of the Director-General be confirmed, or that the decision be revoked and:(a) in the case of a decision to refuse an application, recommend that the application concerned be granted, or(b) in any other case, recommend that the Director-General be directed to take such other action under this Act as the Committee considers appropriate.(3) A Committee of Review is, in its report, to give reasons for its recommendation.(4) If the members of a Committee of Review are unable to agree on the recommendation that the Committee should make to the Minister, the Committee’s report is to include the recommendation, and the reasons for the recommendation, of each member.
27 Determination of application for review by Minister
(1) The Minister may, in relation to an application for review, after such investigation as the Minister considers necessary and after having regard to the report of the Committee of Review, either:(a) confirm the decision of the Director-General, or(b) revoke that decision and:(i) in the case of a decision to refuse an application, direct the Director-General to grant the application concerned, or(ii) in any other case, direct the Director-General to take such other action under this Act as the Minister considers appropriate.(2) The Director-General is to give effect to a direction of the Minister under this section.(3) The Minister is not required, before determining an application for review under this section, to have regard to a report of the Committee of Review to which the application has been referred if that Committee has failed to submit a report to the Minister within such time as the Minister may have communicated to the Chairperson of Committees of Review.
28 Applicant to provide information
The Minister or a Committee of Review to which an application for review is referred may (as a condition of dealing with the application) require the applicant:(a) to provide the Minister or the Committee (as the case may require) with such additional information as the Minister or the Committee may reasonably require to determine the application, and(b) to allow the Minister or members of the Committee (or a person nominated by the Minister or the Committee) to enter and inspect any premises to which the application for review relates.
Division 6 Suspension and cancellation of licences
(1) The Director-General may suspend a licence in respect of a private health facility if:(a) the licensee is in breach of a licensing standard and that breach is likely to cause a serious and substantial risk to the health or safety of patients at the facility, or(b) the licensee does not have a medical advisory committee appointed in accordance with this Act in respect of the facility.(2) A licence is suspended:(a) from the date notice of the suspension is given in writing by the Director-General to the licensee, and(b) until the date specified in the notice as the date when the period of suspension ends, or if no such date is specified, until the Director-General gives a further written notice to the licensee ending the period of suspension.(3) A licence ceases to be in force during any period that it is suspended.(4) The Director-General may, as he or she thinks fit, notify any person of a decision to suspend a licence under this section.
30 Cancellation of licence without notice
(1) The Director-General may cancel the licence for a private health facility (including a licence that is suspended) without holding an inquiry or giving any notice to the licensee:(a) if the licensee requests the Director-General in writing to cancel the licence, or(b) if the premises to which the licence relates have ceased to be a facility of a class in respect of which the licence was issued.(2) The Director-General may, as he or she thinks fit, notify any person of a decision to cancel a licence under this section.
31 Cancellation of licence with notice
(1) The Director-General may cancel the licence for a private health facility (including a licence that is suspended):(a) if the annual licence fee (and any late fee) payable under this Act in respect of the facility has not been paid within 3 months after the due date, or(b) if the Director-General is satisfied that the licensee, or any of the licensees, is not a fit and proper person to be a licensee or if the licensee is a corporation, a director or a person concerned in the management of the corporation is not a fit and proper person to be a licensee, or(c) if the licensee breaches any condition to which the licence is subject, or(d) if the licensee (or, where the licensee is a corporation, any director or other person concerned in the management of the corporation) is convicted of an offence under this Act or the regulations, or(e) if the licensee (or, where the licensee is a corporation, any director or other person concerned in the management of the corporation) is convicted in New South Wales of an offence punishable by imprisonment for a period of 12 months or more, or is convicted elsewhere than in New South Wales of an offence which, if committed in New South Wales, would be an offence so punishable, or(f) if the licensee (being a natural person) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(g) where the licensee is a corporation, if a receiver or manager has been appointed in respect of the property of the licensee or if the licensee is commenced to be wound up or is under official management, or(h) if the facility is conducted in such a manner that the cancellation of the licence is otherwise in the public interest.(2) The Director-General may, for the purpose of exercising any of the Director-General’s powers under subsection (1), cause an inquiry to be made by a person appointed by the Director-General for that purpose.(3) The Director-General is not to cancel a licence under this section unless, before cancelling the licence, the Director-General:(a) has given notice to the licensee that the Director-General intends to cancel the licence, and(b) has specified in that notice the reasons for the Director-General’s intention to cancel the licence, and(c) has given the licensee (whether in the course of an inquiry under subsection (2) or otherwise) a reasonable opportunity to make submissions to the Director-General in relation to the proposed cancellation, and(d) has taken into consideration any such submissions by the licensee.(4) The cancellation of a licence under this section does not take effect until the expiration of 14 days after notice of the Director-General’s decision is served on the licensee, subject to any order made by the Administrative Decisions Tribunal under Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.(5) The Director-General may, as he or she thinks fit, notify any person of a decision to cancel a licence under this section.
32 Right to apply to Administrative Decisions Tribunal for review
(1) The licensee of a private health facility may apply to the Administrative Decisions Tribunal for a review of a decision of the Director-General to suspend or cancel the licence for the facility (except where the cancellation occurs in accordance with section 30).(2) An application under subsection (1) must be made within 30 days after the notice of the decision is served on the licensee.