Part 8A Overservicing and unprofessional conduct
116A Prohibition against directing or inciting overservicing or misconduct
(1) A person (the employer) who employs a registered medical practitioner must not direct or incite the practitioner to do either of the following in the course of professional practice:(a) engage in overservicing,(b) engage in conduct that would constitute unsatisfactory professional conduct or professional misconduct.Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first offence or 800 penalty units for a second or subsequent offence, or(b) in any other case, 200 penalty units for a first offence or 400 penalty units for a second or subsequent offence.(2) For the purposes of this section, any actions of an agent or employee of the employer are taken to be actions of the employer unless the employer establishes:(a) that the employer had no knowledge of those actions, and(b) that the employer could not, by the exercise of due diligence, have prevented those actions.(3) If a person is convicted of or made the subject of a criminal finding for an offence against this section in respect of the actions of an agent or employee of the person, the agent or employee is for the purposes of this Part taken to have been convicted of or made the subject of a criminal finding for the offence also.(4) When a court convicts or makes a criminal finding against a person for an offence against this section, the Clerk or other proper officer of the court must notify the Director-General in writing of the conviction or criminal finding.(5) This section does not apply in respect of the employment of a medical practitioner by any of the following:(a) a public health organisation within the meaning of the Health Services Act 1997,(b) a private health facility,(c) a nursing home within the meaning of the Public Health Act 1991.(6) In this section:engage in overservicing means:
(a) provide a service in circumstances in which provision of the service is unnecessary, not reasonably required or excessive, or(b) engage in conduct prescribed by the regulations as constituting overservicing.
116B Extended concept of employment
(1) When a registered medical practitioner engages in the practice of medicine in the course of the carrying on of a business, any person who owns, manages, controls, conducts or operates that business is for the purposes of this Part taken to employ the practitioner (in addition to any person who actually employs the practitioner).(2) When a registered medical practitioner is employed by a corporation, each of the following persons is for the purposes of this Part also considered to be the employer of the practitioner (in addition to the corporation):(a) a person who is a director, secretary or executive officer (as defined in the Corporations Act 2001 of the Commonwealth) of the corporation or is concerned in the management of the corporation, or(b) any other employee of the corporation in accordance with whose directions the practitioner is required or expected to act.
116C Extended concept of carrying on business
(1) If a medical practitioner engaged in the practice of medicine is provided, in the course of the carrying on of a business, with services that facilitate that practice and the operator of the business is entitled, in connection with the provision of those services, to a share or interest in the profits or income arising from the practice of medicine by the practitioner:(a) that business is taken for the purposes of this Part to be a business that provides the medical services that are provided by the practitioner in the course of that practice, and(b) the practitioner is taken for the purposes of this Part to be engaged in the practice of medicine in the course of the carrying on of that business.(2) Subsection (1) does not apply in respect of the practice of medicine by a medical practitioner in such circumstances as may be prescribed by the regulations as exempt from that subsection.(3) For the purposes of this Part, a person is considered to operate a business if the person:(a) owns, manages, controls, conducts or operates the business, or(b) has (within the meaning of section 116G) a management role or substantial interest in a corporation that operates the business or a substantial interest in a trust under which the business is operated.
116D Convicted offenders may be prohibited from carrying on business
(1) The Director-General may by notice in writing given to a person who has been convicted of or made the subject of a criminal finding for an offence against this Part prohibit the person from operating a business that provides medical services.(2) The prohibition may be expressed to be:(a) for a fixed period (in which case the prohibition remains in force only for that fixed period), or(b) for an unlimited period subject to an entitlement to apply after a specified time for the lifting of the prohibition (in which case the prohibition remains in force until it is lifted).(3) A prohibition may not be imposed under this section unless the Director-General is of the opinion that the person is not a fit and proper person to operate a business that provides medical services. The Director-General is entitled to presume, in the absence of evidence to the contrary, that a person who has been convicted of or made the subject of a criminal finding for an offence against this Part on 2 or more occasions in any period of 10 years is not a fit and proper person to operate such a business.(4) A prohibition under this section may be limited in its operation in either or both of the following ways:(a) it may be limited to specified premises, but only where the person concerned operates a business that provides medical services at those premises and at other premises,(b) it may be limited to premises within a specified area.(5) If a prohibition under this section is subject to an entitlement to apply after a specified time for the prohibition to be lifted, such an application may be made to the Director-General after that time. The Director-General may lift the prohibition or confirm the prohibition and set a further period after which an application for the prohibition to be lifted can be made under this subsection.
116E Offence of operating business while prohibited
(1) A person who in contravention of a prohibition under this Part operates a business that provides medical services is guilty of an offence.Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first offence or 800 penalty units for a second or subsequent offence, or(b) in any other case, 200 penalty units for a first offence or 400 penalty units for a second or subsequent offence.(2) If a continuing state of affairs is created by an offence against this section the offender is liable to a maximum penalty of:(a) 100 penalty units in the case of a corporation, or(b) 50 penalty units in any other case,in respect of each day on which that offence continues, in addition to the penalty specified in subsection (1).(3) If medical services are provided on premises on which a business is carried on, it is to be presumed for the purposes of this section, unless the contrary is established, that the business provides those medical services.
116F Effect of appeal against conviction
A prohibition under this Part has no effect while an appeal is pending against the conviction or criminal finding for the offence on which the prohibition is based.
116G Business interests—effect of prohibition
(1) When a corporation or the trustee of a trust is the subject of a prohibition under this Part in connection with the operation of a business operated by the corporation or under the trust:(a) each person who has a management role or substantial interest in the corporation or a substantial interest in the trust is for the purposes of this Part taken to be the subject of that prohibition also, and(b) each corporation in which a person referred to in paragraph (a) has a management role or substantial interest is for the purposes of this Part taken to be the subject of that prohibition also (whether or not the corporation was in existence at the time of the relevant offence), and(c) the trustee and any manager of a trust in which a person referred to in paragraph (a) has a substantial interest is for the purposes of this Part taken to be the subject of that prohibition also (whether or not the trust was in existence at the time of the relevant offence).(2) A person is considered to have a management role or substantial interest in a corporation if:(a) the person is a director, secretary or executive officer (as defined in the Corporations Act 2001 of the Commonwealth) of the corporation, or(b) the person is entitled to more than 10% of the issued share capital of the corporation (with the shares to which a person is entitled including shares in which the person or an associate of the person has a relevant interest within the meaning of the Corporations Act 2001 of the Commonwealth).(3) A person is considered to have a substantial interest in a trust if the person (whether or not as the trustee of another trust) is the beneficiary in respect of more than 10% of the value of the interests in the trust.(4) The regulations may create exceptions to this section.
116H Power to require information from convicted persons and others
(1) When a corporation or the trustee of a trust is convicted of or made the subject of a criminal finding for an offence against this Part in connection with the operation of a business operated by the corporation or under the trust the Director-General may require certain persons to provide specified information to the Director-General, as provided by this section.(2) The corporation or trustee may be required to provide information that the Director-General may reasonably require to ascertain the identity of each person who has a management role or substantial interest in the corporation or a substantial interest in the trust.(3) A person whom the Director-General reasonably believes has a management role or substantial interest in the corporation or a substantial interest in the trust may be required to provide information that the Director-General may reasonably require to ascertain:(a) the identity of each corporation in which that person has a management role or substantial interest, or(b) the identity of the trustee and any manager of a trust in which that person has a substantial interest.(4) A requirement to provide information is to be imposed by direction in writing served on the person, corporation or trustee concerned. The direction must specify a period of not less than 7 days as the period within which the required information must be provided.(5) A person who fails without reasonable excuse to comply with a requirement under this section is guilty of an offence.Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first offence or 800 penalty units for a second or subsequent offence, or(b) in any other case, 200 penalty units for a first offence or 400 penalty units for a second or subsequent offence.(6) A person who in purported compliance with a requirement under this section provides information that is false or misleading in a material particular is guilty of an offence unless the person satisfies the court that he or she did not know and could not reasonably be expected to have known that the information was false or misleading.Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first offence or 800 penalty units for a second or subsequent offence, or(b) in any other case, 200 penalty units for a first offence or 400 penalty units for a second or subsequent offence.
(1) The Director-General may issue a certificate to the effect that a person specified in the certificate is or was prohibited under this Part from operating a business that provides medical services during a period specified in the certificate.(2) Such a certificate is evidence of the matters certified.(3) A certificate purporting to be a certificate issued by the Director-General under this section is presumed to have been so issued unless the contrary is established.
116J Authorised persons—special provisions
(1) Despite section 118, an authorised person may, for the purpose of ascertaining whether the provisions of this Part are being complied with, exercise the powers conferred by Part 9 to enter premises without the consent of the owner or occupier of the premises, and without a search warrant.(2) However, an authorised person is not entitled to enter a part of premises used for residential purposes, except:(a) with the consent of the occupier of that part of the premises, or(b) under the authority of a search warrant granted as referred to in Part 9.(3) Any information obtained by, or provided to, an authorised person who enters premises for the purpose of ascertaining whether the provisions of this Part are being complied with is not inadmissible in proceedings merely because the proceedings do not relate to a contravention of this Part.(4) A reference in Part 9 to a function conferred or imposed on, or exercised by, an authorised person under that Part is taken to include a function conferred or imposed on, or exercised by, an authorised person under this section.