An Act to provide for the licensing and control of private hospitals and day procedure centres; to repeal the Private Health Establishments Act 1982; and for other purposes.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Private Hospitals and Day Procedure Centres Act 1988.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation.(2) Different days may be appointed for the commencement of section 56 for the purpose of repealing different Acts (or different provisions of the same Act), or different provisions of the Private Health Establishments (Private Hospitals and Nursing Homes) Regulation 1988, on different days.
3 Definitions
(1) In this Act:Advisory Committee means the Private Hospitals and Day Procedure Centres Advisory Committee established under this Act.application means:(a) an application for a licence under section 8, or(b) an application to transfer a licence under section 18, or(c) an application to alter or extend an establishment under section 19, or(d) an application for amendment of a licence under section 21.chief nurse means the chief nurse of an establishment as referred to in section 41.day procedure centre means premises at which any patient is admitted and discharged on the same day for such medical, surgical or other treatment, and in such circumstances, as may be prescribed by the regulations, but does not include:(a) any such premises conducted by or on behalf of the State, or(b) a public hospital or health service under the control of a public health organisation within the meaning of the Health Services Act 1997, or(c) (Repealed)(d) a private hospital licensed under this Act, or(e) a nursing home within the meaning of the Public Health Act 1991, or(f) a residential rehabilitation establishment licensed under the Drug and Alcohol Rehabilitation Establishments Act 1987.establishment means a private hospital or day procedure centre.licence means a licence issued under section 11 and in force under this Act, and includes a temporary licence.licensee means the holder, or any 1 or more of the holders, for the time being of a licence.licensing standards means the standards prescribed under section 7.patient:(a) in relation to a private hospital, means a person accommodated in the private hospital for treatment, or(b) in relation to a day procedure centre, means a person admitted to the day procedure centre for treatment.practitioner means a medical practitioner or a dentist.premises includes any land, building and part of any building.private hospital means premises at which any patient is provided with medical, surgical or other treatment, and with ancillary nursing care, for fee, gain or reward, but does not include:(a) an institution conducted by or on behalf of the State, or(b) a hospital or health service under the control of a public health organisation within the meaning of the Health Services Act 1997, or(c) (Repealed)(d) a nursing home within the meaning of the Public Health Act 1991, or(e) a residential rehabilitation establishment licensed under the Drug and Alcohol Rehabilitation Establishments Act 1987.register of patients means the register that is required by section 44 to be kept at an establishment.registered nurse means a nurse registered under the Nurses and Midwives Act 1991.Secretary means the Secretary of the Department of Health.temporary licence means a licence issued under section 12 and in force under this Act.ward means any room in a private hospital in which patients are accommodated, but does not include any labour room or operating theatre.(1A) A reference in this Act to medical, surgical or other treatment includes a reference to a diagnosis for the purposes of any such treatment.(2) A reference in this Act to the conduct of an establishment (however expressed) is a reference to the carrying on of the business of the establishment.(3) A reference in this Act to a person who conducts an establishment (however expressed) is a reference:(a) to a corporation which conducts the establishment, except where that corporation is acting only in its capacity as an agent, or(b) to a natural person who conducts the establishment (whether jointly with other persons or alone), except where that person is acting only in the person’s capacity as an employee or an agent.(4) For the purposes of this Act, a corporation is not a fit and proper person to be a licensee unless each director and each person concerned in the management of the corporation is a fit and proper person to be a licensee.(5) In this Act:(a) a reference to a function includes a reference to a power, authority and duty, and(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.s 3: Am 1997 No 87, Sch 5 [1]–[3]; 1997 No 154, Sch 6.36 [1] [2]; 2003 No 45, Sch 2.16; 2004 No 87, Sch 6.18 [1] [2].
Part 2 Private Hospitals and Day Procedure Centres Advisory Committee
4 Constitution of Advisory Committee
(1) There is established by this Act a Private Hospitals and Day Procedure Centres Advisory Committee.(2) The Advisory Committee shall consist of such number of members, not being less than 6, as the Minister may determine.(3) The members shall be appointed by the Minister.(4) Of the members:(a) at least one shall be an officer of the Department of Health, and(b) at least one shall be a person nominated by the Private Hospitals Association of New South Wales, and(c) at least one shall be a person nominated by the Australian Medical Association (NSW) Limited, and(d) at least one shall be a person nominated by the New South Wales College of Nursing, and(e) at least one shall be a person appointed to represent the interests of health insurance organisations, and(f) at least one shall be a person appointed to represent the interests of consumers.(5) Schedule 1 has effect with respect to the members and procedure of the Advisory Committee.s 4: Am 1999 No 85, Sch 2.49.
5 Functions of Advisory Committee
The principal function of the Advisory Committee is to provide advice to the Minister on the following matters:(a) the effective operation of this Act,(b) proposed regulations,(c) such other matters in respect of establishments as may be referred to it by the Minister.
6 Sub-committees of Advisory Committee
(1) The Advisory Committee may establish sub-committees to assist it in connection with the exercise of any of its functions.(2) It does not matter that any or all of the members of a sub-committee are not members of the Advisory Committee.(3) The procedure for the calling of meetings of a sub-committee and for the conduct of business at those meetings shall be as determined by the Advisory Committee or (subject to any determination of the Advisory Committee) by the sub-committee.
Part 3 Licensing of establishments
Division 1 Licensing standards
7 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 establishments, including the following matters:(a) design and construction of premises,(b) facilities and equipment,(c) clinical standards, including accreditation of practitioners to provide services at the establishment, delineation of clinical privileges of practitioners and quality assurance,(d) staffing, including qualifications of staff members, number of staff and duties,(e) operational matters, including administration and support services,(f) clinical records, including access by patients to, and confidentiality of, those records.
Division 2 Applications for and issue of licences
8 Application for licence
(1) An application for a licence for an establishment may be made to the Secretary by the person who intends to conduct the establishment.(2) Any such application shall:(a) be in or to the effect of the form prescribed by the regulations, and(b) specify the class or classes of establishments in respect of which the licence is sought, and(c) in the case of a proposed private hospital, specify the maximum number of patients it is proposed to accommodate overnight at any one time at the hospital, and(d) in the case of a proposed day procedure centre, specify the number of procedure rooms proposed to be provided at the centre, and(e) be accompanied by such particulars or documents as may be required by the prescribed application form, and(f) be accompanied by such application fee as may be prescribed by the regulations.
9 Approval in principle or refusal of application
(1) The Secretary shall, after considering an application for a licence under section 8:(a) approve the application in principle, or(b) refuse the application.(2) The Secretary may impose conditions on an approval of an application in principle, including:(a) conditions relating to the design and construction of any building to be constructed, altered or extended for the purposes of the proposed establishment, and(b) the preparation and submission to the Secretary of a development timetable for any such building specifying the dates by which it is proposed that different stages in construction, alteration or extension will be completed.(3) The Secretary may refuse, under this section, an application for a licence only if:(a) the applicant, or any of the applicants, is not a fit and proper person to be a licensee, or(b) the Secretary is satisfied that the proposed establishment is not capable of being conducted in accordance with the licensing standards applicable to it, or(c) the Secretary is of the opinion that the application should be refused having regard to such development guidelines as may be prescribed by the regulations, or(d) in the case of a proposed private hospital, the Secretary is satisfied that the total number of patients who may be accommodated overnight at private hospitals in New South Wales will be increased.(4) If the Secretary approves an application in principle, the Secretary shall give the applicant written notice of that approval and any conditions to which the approval is subject.
10 Approval in principle to remain effective for 1 year
(1) An approval of an application for a licence in principle is effective for a period of 1 year from the date on which the applicant is given notice of that approval under section 9 (4) and for any such further period or periods as the Secretary may, at the request of the applicant, allow.(2) More than one request may be made by an applicant under subsection (1), but any such request must be made while the approval of the application in principle is effective.(3) If the Secretary has, as a condition of an approval of an application in principle, required the applicant to provide a development timetable, the Secretary may grant an extension of the period for which that approval is effective only if the Secretary is satisfied that the applicant has made a reasonable attempt to comply with that timetable.
11 Issue of licence approved in principle
(1) If the Secretary has approved an application for a licence in principle and the construction, alteration or extension of any building to which the application relates has been completed, the Secretary shall either:(a) grant the application and issue a licence to the applicant, or(b) refuse the application.(2) In any such case, the Secretary may not refuse the application for a licence unless:(a) the approval of the application in principle expired before the completion of the construction, alteration or extension of any building to which the application relates, or(b) any such building was not constructed, altered or extended in accordance with the approval in principle, or(c) any other condition to which the approval in principle was subject has not been complied with.
12 Temporary licences
(1) If an application is made for a licence in respect of an existing building, the Secretary may, pending the determination of the application, issue to the applicant a temporary licence.(2) A temporary licence remains in force until:(a) the date of expiry of the temporary licence, or(b) the application for the licence is granted, orwhichever first occurs.(c) the temporary licence is cancelled,(3) The date of expiry of a temporary licence is:(a) except as provided by paragraph (b)—such date (not exceeding 2 months after the date of issue of the temporary licence) as may be specified in the temporary licence, or(b) such later date as the Secretary may, by notice in writing served on the applicant, direct.
Division 3 Provisions relating to licences
13 Classes of private hospitals and day procedure centres
For the purposes of this Act, there shall be such classes of private hospitals and of day procedure centres as may be prescribed by the regulations.
14 Form of licence
Without limiting the particulars that may be included in a licence, a licence shall specify:(a) the person to whom it is issued, and(b) the address of the establishment for which it is issued, and(c) the class or classes of establishments in respect of which it is issued, and(d) in the case of a private hospital, the maximum number of patients who may be accommodated overnight at any one time in each ward of the hospital, as determined by the Secretary.
15 Conditions of licence
(1) The Secretary may issue a licence subject to such conditions as may be specified in the licence.(2) A licence is subject to the condition that the licensee must, in respect of the conduct of the establishment concerned, hold or otherwise be covered by such insurance or other liability cover as may be prescribed by the regulations.s 15: Am 2001 No 42, Sch 1 [1].
16 Duration of licence
A licence (other than a temporary licence) remains in force until cancelled under this Act.
17 Annual licence fees
The licensee of an establishment shall, on or before 31 December in each year, pay to the Secretary such annual licence fee as may be prescribed by the regulations in relation to the establishment.
18 Transfer of licence to another licensee
(1) The Secretary may, if application is made in accordance with this section, transfer the licence for an establishment to the person who intends to conduct the establishment:(a) by an appropriate endorsement on the licence, or(b) by cancelling the licence and issuing a substitute licence to that person.(2) An application under this section shall:(a) be in or to the effect of the form prescribed by the regulations, and(b) be accompanied by such particulars or documents as may be required by the prescribed form, and(c) be accompanied by such application fee as may be prescribed by the regulations.(3) The Secretary may refuse an application if the proposed licensee, or any of the proposed licensees, is not a fit and proper person to be a licensee.
19 Alterations or extensions to licensed establishments
(1) The licensee of an establishment shall not cause or permit the establishment to be altered or extended unless:(a) the approval of the Secretary to the alteration or extension is first obtained, and(b) the establishment is altered or extended in accordance with plans and specifications approved by the Secretary.Maximum penalty: 20 penalty units.(2) An application for approval under this section shall:(a) be in or to the effect of the form prescribed by the regulations, and(b) be accompanied by such particulars or documents as may be required by the prescribed form.(3) The Secretary may refuse an application under this section for any reason the Secretary might refuse under Division 2 an application for a licence for the establishment as altered or extended.(4) The approval of the Secretary is not required under this section for any alteration or extension required to be carried out under section 20.
20 Provision for repairs etc
(1) The Secretary may, by notice in writing, require the licensee of an establishment to carry out such repairs, maintenance, alterations, extensions or improvements to the establishment as may be specified in the notice.(2) A licensee shall comply with the requirements of any such notice within the time specified in the notice or within such further time as the Secretary may allow.Maximum penalty: 20 penalty units.(3) Any such notice shall not take effect:(a) until the expiration of 14 days after the notice has been given to the licensee, or(b) if the licensee applies for a review of the Secretary’s decision under section 28 before the expiration of the period referred to in paragraph (a)—until the application for review is dealt with or withdrawn.
21 Amendment of licences
(1) The Secretary may amend a licence in 1 or more of the following ways:(a) by specifying in the licence additional classes of establishments,(b) by omitting any class of establishments specified in the licence,(c) in the case of a private hospital—by increasing or decreasing the number of patients specified in the licence as the number of patients who may be accommodated overnight at any one time in any ward of the hospital,(d) by amending or revoking any condition to which the licence is subject (other than the condition referred to in section 15 (2)) or attaching further conditions to the licence.(2) The Secretary may amend a licence under this section if:(a) the licensee applies in writing to the Secretary to make the amendment, or(b) the Secretary considers that the licence requires amendment.(3) A licence is amended under this section:(a) by an appropriate endorsement on the licence, or(b) by the cancellation of the licence and the issue of a substitute licence incorporating the amendment, or(c) by a notice in writing served on the licensee.(4) A licensee shall forward his or her licence to the Secretary if the Secretary, by notice in writing, requires the licensee to do so for the purposes of this section.Maximum penalty: 5 penalty units.(5) On the service of a notice referred to in subsection (3) (c), the licence to which the notice relates shall be taken to be amended according to the tenor of the notice.s 21: Am 2001 No 42, Sch 1 [2].
Division 4 General provisions relating to applications for licences etc
22 Additional information
(1) The Secretary may, by notice in writing served on an applicant, direct the applicant to provide such information to the Secretary as the Secretary may reasonably require for the purpose of determining the application.(2) The Secretary may refuse an application on the ground that the applicant has failed to comply with any such direction.
23 Notice of reasons for refusal of application
If the Secretary refuses an application, the Secretary shall immediately cause the applicant to be notified in writing:(a) that the Secretary has refused the application, and(b) of the grounds on which the Secretary has refused the application, and(c) if the Secretary refuses the application on the ground that the applicant is not a fit and proper person to be a licensee—of the reasons why the applicant is not a fit and proper person to be a licensee.
24 Advertising of applications
Before:(a) approving an application for a licence in principle, or refusing any such application, under section 11, orthe Secretary shall cause the application to be publicly advertised in such manner as the Secretary thinks fit and shall take into consideration any representations made in relation to the application within the time specified in the advertisement.(b) determining an application to transfer a licence,
25 Amendment of applications
An applicant may, with the approval of the Secretary, amend an application.
Division 5 Review of decisions of Secretary
26 Definition
In this Division, decision of the Secretary means:(a) a decision of the Secretary to refuse an application, or(b) a determination by the Secretary, when issuing a licence, of the class or classes of establishments for which the licence is issued, or(c) a determination by the Secretary, when issuing a licence for a private hospital, of the maximum number of patients who may be accommodated overnight at any one time in any ward of the hospital, or(d) a determination by the Secretary of the conditions subject to which a licence is issued, or(e) a decision of the Secretary to require the licensee of an establishment to carry out repairs, maintenance, alterations, extensions or improvements to the establishment, or(f) a decision of the Secretary to amend a licence (otherwise than on the application of the licensee).
27 Chairperson of Committees of Review
(1) The Minister may appoint a person to be Chairperson of Committees of Review.(2) Schedule 2 has effect with respect to the Chairperson of Committees of Review.
28 Application for review of Secretary’s decision
(1) A person aggrieved by a decision of the Secretary may apply, in or to the effect of the form prescribed by the regulations, to the Minister to review the decision of the Secretary.(2) On receipt of an application for review, the Minister shall forward the application to the Chairperson of Committees of Review, who shall establish a Committee of Review to advise the Minister on the application.
29 Constitution of Committee of Review
(1) A Committee of Review established under this Division shall comprise the Chairperson of Committees of Review and 3 other persons appointed by the Chairperson to represent, respectively, the interests of the private hospital industry, the health care professions and consumers.(2) The Chairperson may not appoint any such 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 3 has effect with respect to Committees of Review.
30 Committee of Review to make recommendation to Minister
(1) After such investigation as it considers necessary in relation to an application for review, a Committee of Review may, in a written report to the Minister:(a) recommend that the decision of the Secretary be confirmed, or that the decision be revoked and:(i) in the case of a decision to refuse an application, the application concerned be granted, or(ii) in any other case, the Secretary be directed to take such other action under this Act as the Committee considers appropriate, and(b) give the reasons for its recommendation.(2) 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 shall include the recommendation, and the reasons for the recommendation, of each member.
31 Determination of application for review by Minister
(1) The Minister may, after such investigation as the Minister considers necessary in relation to an application for review, and after having regard to the report of the Committee of Review to which the application has been referred, either:(a) confirm the decision of the Secretary, or(b) revoke that decision and:(i) in the case of a decision to refuse an application, direct the Secretary to grant the application concerned, or(ii) in any other case, direct the Secretary to take such other action under this Act as the Minister considers appropriate.(2) The Secretary shall give effect to any such direction of the Minister.(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.
32 Applicant to provide information etc
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 Cancellation of licences
33 Cancellation of licence without notice
The Secretary may cancel the licence for an establishment without holding an inquiry or giving any notice to the licensee:(a) if the licensee requests the Secretary in writing to cancel the licence, or(b) if the premises to which the licence relates have ceased to be an establishment of a class in respect of which the licence was issued, or(c) in the case of a temporary licence—if the Secretary considers that it is appropriate to do so.
34 Cancellation of licence with notice
(1) The Secretary may cancel the licence for an establishment:(a) if the annual licence fee payable under section 17 in respect of the establishment has not been paid by the due date, or(b) if the licensee is no longer a fit and proper person to be a licensee, or(c) 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(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 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(e) if the licensee breaches any condition to which the licence is subject, 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 establishment has not been conducted in accordance with the licensing standards applicable to it, or(i) if the establishment is conducted in such a manner:(i) that reasonable standards of patient care have not been maintained, or(ii) that the cancellation of the licence is otherwise in the public interest.(2) The Secretary may, for the purpose of exercising any of the Secretary’s powers under subsection (1), cause an inquiry to be made by some person appointed by the Secretary for the purpose.(3) The Secretary shall not cancel a licence under this section unless, before cancelling the licence, the Secretary:(a) has given notice to the licensee that the Secretary intends to cancel the licence, and(b) has specified in that notice the reasons for the Secretary’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 Secretary 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 Secretary’s decision is given to 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.s 34: Am 1997 No 77, Sch 5.24 [1]; 1999 No 94, Sch 4.153.
35 Right to apply to Administrative Decisions Tribunal for review
The licensee of an establishment may apply to the Administrative Decisions Tribunal for a review of a decision of the Secretary to cancel the licence for the establishment (except under section 33).s 35: Subst 1997 No 77, Sch 5.24 [2].
Part 4 Conduct of establishments
36 Unlicensed private hospitals
(1) A person shall not conduct a private hospital unless:(a) the private hospital is licensed, and(b) the person is the licensee.Maximum penalty: 100 penalty units.(2) Evidence that, at any premises:(a) during any month—2 or more persons (not being members of the occupier’s family), orhave been accommodated in the premises shall, if the persons have been provided at the premises with medical, surgical or other treatment, and with ancillary nursing care, be evidence that the premises are a private hospital (whether or not there is any evidence that a charge was made for the treatment).(b) during any year—6 or more persons (not being members of the occupier’s family),
37 Unlicensed day procedure centres
(1) A person shall not conduct a day procedure centre unless:(a) the day procedure centre is licensed, and(b) the person is the licensee.Maximum penalty: 100 penalty units.(2) A day procedure centre is not required to be licensed if it is conducted in the same premises as a licensed private hospital and by the same person who conducts the private hospital.
38 Executor or administrator regarded as licensee
If a licensee of an establishment dies and he or she was the only licensee of the establishment, the executor of the will or administrator of the estate of the licensee shall be taken to be the licensee for a period not exceeding 2 months or such longer period as the Secretary may, in any particular case, approve.
39 Purposes for which establishments may be used
(1) The licensee of an establishment shall not cause or permit the licensed premises to be used for any purpose other than the following purposes:(a) the conduct of an establishment of the class or classes specified in the licence,(b) a purpose permitted by a condition to which the licence is subject,(c) a purpose which is prescribed by the regulations for the purposes of this paragraph.Maximum penalty: 20 penalty units.(2) A reference in subsection (l) (a) to the conduct of an establishment does not include a reference to the conduct of a pharmacist’s shop or dispensary in the establishment.
40 Overcrowding
(1) The licensee of a private hospital shall not cause or permit the number of patients accommodated overnight at any one time in any ward of the private hospital to exceed the number of patients specified in the licence in relation to that ward.Maximum penalty: 20 penalty units.(2) The licensee of a private hospital is not guilty of an offence under this section in respect of anything done in an emergency.
41 Chief nurse of establishment
(1) The licensee of an establishment shall not conduct the establishment unless:(a) there is a person who carries out the duties of chief nurse of the establishment and who is responsible for the care of the patients in the establishment, and(b) that person is a registered nurse and holds the prescribed qualifications that are applicable to a chief nurse of the establishment.Maximum penalty: 20 penalty units.(2) The licensee of an establishment is not guilty of an offence under subsection (l) merely because, from time to time (not exceeding at any one time the number of days prescribed for the purposes of this subsection), there is no person who is a registered nurse, who holds the prescribed qualifications that are applicable to the chief nurse of the establishment and who carries out the duties of chief nurse of the establishment.(3) Except as may be provided by the regulations, the licensee of an establishment shall notify the Secretary in writing of the full name and the qualifications of the person who carries out the duties of chief nurse of the establishment.Maximum penalty: 5 penalty units.(4) A notification under subsection (3):(a) shall be given before the person to whom it relates commences to carry out the duties of chief nurse or, if that is not practicable, immediately after that time, and(b) shall be accompanied by such particulars as may be prescribed.(5) Nothing in this Act prevents the licensee of an establishment (being a natural person) from carrying out the duties of chief nurse of the establishment if the licensee is qualified to carry out those duties.(6) It shall be a defence to a prosecution for an offence arising under this section if the person charged proves that the person took all such steps as are reasonable in the circumstances to avoid being guilty of the offence.
42 Title of “matron” and “director of nursing”
(1) The licensee of an establishment or a person employed at the establishment shall not use the title “matron” or “director of nursing” unless the licensee or person is the chief nurse of the establishment.(2) The licensee of an establishment shall not permit a person employed at the establishment to contravene this section.Maximum penalty: 20 penalty units.
43 Registered nurse to be on duty
The licensee of an establishment shall, at all times while the establishment is being conducted, cause a registered nurse to be on duty in the establishment.Maximum penalty: 20 penalty units.
44 Register of patients
(1) The licensee of an establishment shall cause a register of patients to be kept, in or to the effect of the prescribed form, at the establishment.(2) The following particulars shall be entered in the register of patients:(a) the name, age and residential address of each patient at the establishment,(b) the date when the patient was received at the establishment,(c) the date when the patient left the establishment or, in the event of the patient’s death, the date of death,(d) the name of the medical practitioner attending the patient,(e) such other particulars as may be prescribed.(3) The particulars referred to in subsection (2) shall be entered in the register of patients by the persons, at the time, and in the manner, prescribed for the purposes of this subsection.(4) A person shall not:(a) enter in the register of patients any particular that the person knows or has reason to believe to be false or misleading in a material particular, or(b) wilfully fail to enter in the register of patients any particular which the person is required by subsection (2) to enter.Maximum penalty: 20 penalty units.
45 Copy of Act and regulations to be available
The licensee of an establishment shall, at all times while the establishment is being conducted, cause a copy of this Act and the regulations to be readily available at the establishment for inspection by the chief nurse.Maximum penalty: 5 penalty units.
Part 5 Miscellaneous
46 Disclosure of pecuniary interests to patients
(1) If a practitioner has a pecuniary interest in an establishment, the practitioner shall not:(a) advise a person to be admitted to the establishment, or(b) arrange the admission of a person to the establishment, orunless, before so doing, the practitioner has notified the person or patient, in the prescribed manner, that the practitioner has a pecuniary interest in the establishment.(c) provide medical, surgical or other treatment to, or arrange the provision of any such treatment to, any patient in the establishment,Maximum penalty: 20 penalty units.(2) The regulations may prescribe, for the purposes of subsection (1), that the manner of notification shall be any 1 or more of the following:(a) a statement made by the practitioner,(b) a written notification given by the practitioner and, if required by the regulations, signed by the person to whom it is given,(b1) a notice displayed at the establishment,(c) a notice displayed in any surgery or other premises of the practitioner.(3) A person is not guilty of an offence under subsection (1) if the person proves that he or she:(a) contravened that subsection in the course of providing emergency medical, surgical or other treatment to a person, or(b) was not, at the time the contravention occurred, aware that he or she had a pecuniary interest in the establishment concerned.(4) For the purposes of this section, a practitioner has a pecuniary interest in an establishment only if the practitioner has an interest in the establishment which is prescribed by the regulations as a pecuniary interest in the establishment.(5) The regulations may prescribe an interest of a relative or associate of a practitioner as a pecuniary interest of the practitioner.s 46: Am 1993 No 46, Sch 1.
47 Power to enter and inspect establishments
(1) A person authorised by the Secretary to do so may, at any time, enter and inspect:(a) any licensed establishment, or(b) any premises which are the subject of an application for a licence.(2) Every person so authorised shall be provided by the Secretary with a certificate of authority, and on applying for admission to any premises which the person is empowered by this section to enter shall, if requested to do so, produce the certificate to the person apparently in charge of the premises.
48 Power to inspect registers and records
(1) In this section, prescribed records, in relation to an establishment, means the register of patients or any other records required by or under this Act to be kept at the establishment.(2) A person authorised by the Secretary under section 47:(a) may inspect and take copies of, or extracts from, any prescribed records of an establishment, or(b) may take and retain possession of any prescribed records of an establishment for such period as is necessary to enable those records to be inspected and copies of, or extracts from, those records to be taken.(3) Where a person retains possession of any prescribed records of an establishment pursuant to subsection (2) (b), the person shall, during the period for which the person retains possession of them:(a) permit a person who is entitled to inspect any one or more of those records to inspect at all reasonable times such of the records as that person is entitled to inspect, and(b) permit a person who is required by or under this Act to make an entry in those records to make the entry at any reasonable time.(4) Subsection (2) (b) does not authorise a person who takes possession of any prescribed records of an establishment to remove those records from the establishment if those records:(a) relate to a person who is then a patient of the establishment, and(b) may be required to be referred to for the purposes of providing the patient with nursing care or medical, surgical or other treatment.(5) Subject to subsections (6) and (7), in any legal proceedings (whether or not proceedings under this Act) a copy of or extract from a prescribed record is admissible in evidence as if it were the original record or the relevant part of the original record.(6) A copy of or extract from a prescribed record is not admissible in evidence under subsection (5) unless it is proved that the copy or extract is a true copy of the record or of the relevant part of the record.(7) For the purposes of subsection (6), evidence that a copy of or extract from a prescribed record is a true copy of the record or of a part of the record may be given by a person who has compared the copy or extract with the record or the relevant part of the record and may be given either orally or by an affidavit sworn, or by a declaration made, before a person authorised to take affidavits or statutory declarations.
49 Obstruction of officers
A person shall not wilfully hinder, obstruct or delay any person in the exercise of any function under this Act.Maximum penalty: 20 penalty units.
50 False or misleading statements etc
A person shall not, in any application under this Act (including an application for review under section 28), or in support of any such application, or for the purposes of any inquiry under this Act:(a) make a statement, orwhich the person knows, or has reason to believe, to be false or misleading in a material particular.(b) provide any information,Maximum penalty: 20 penalty units.
51 Evidentiary certificates
A certificate which purports to be signed by the Secretary or a prescribed officer and which states that, on a date specified in the certificate:(a) a person so specified was or was not the licensee of an establishment so specified, or(b) any premises so specified were or were not licensed, or(c) the licence for an establishment so specified was cancelled, or(d) any particulars so specified were the particulars specified in the licence for an establishment so specified, oris, without proof of signature, admissible in evidence in any legal proceedings (whether proceedings under this Act or otherwise) and is evidence of the matters stated in the certificate.(e) the licence for an establishment so specified was subject to any condition so specified,
52 Service of notices by Secretary
(1) If, by or under this Act, a notice or other document is required to be or may be given or served by the Secretary, that notice may be given to or served on:(a) a natural person:(i) by delivering it to the person personally, or(ii) by leaving it at his or her place of residence last known to the Secretary with a person who apparently resides there or, if the person is a licensee, by leaving it at the establishment to which the licence relates with a person apparently employed at the establishment (being in either case a person who is apparently 16 years of age or more), or(iii) by sending it by post addressed to the person at that place of residence or that establishment, or(b) a corporation:(i) by delivering it to a person who is apparently engaged in the control or management of the corporation, or(ii) by leaving it at the registered office of the corporation with a person who is apparently employed at that office or, if the corporation is a licensee, by leaving it at the establishment to which the licence relates with a person who is apparently employed at the establishment (being in either case a person who is apparently 16 years of age or more), or(iii) by sending it by post addressed to the corporation at that registered office or that establishment.(2) A notice or other document that is sent by post in accordance with subsection (1) shall, in the absence of evidence to the contrary, be taken to have been given or served when it would have been delivered in the ordinary course of post.
53 Offences by corporations
(1) If a corporation contravenes any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation shall be taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
54 Proceedings for offences
Proceedings for offences against this Act or the regulations shall be dealt with summarily before the Local Court.s 54: Am 2007 No 94, Sch 4.
55 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) In particular, the regulations may make provision for or with respect to the following:(a) the display of licences at establishments,(b) the supply by the licensee of an establishment to the Secretary of information relating to:(i) any particulars that are required to be provided when an application for a licence is made, and(ii) the number of patients, and the length of stay of patients, at the establishment and the provision of health services to those patients, and(iii) staffing at the establishment,(c) the supply by the licensee of an establishment to the Secretary of a copy of the register of patients for the establishment or a copy of a part of the register.(3) A regulation (including a regulation prescribing a licensing standard) may create an offence punishable by a penalty not exceeding 5 penalty units.
56 Repeals
(1) The following Acts are repealed:(2) The Private Health Establishments (Private Hospitals and Nursing Homes) Regulation 1988 is repealed.
57 Savings and transitional provisions
Schedule 4 has effect.
Schedule 1 Provisions relating to members and procedure of the Private Hospitals and Day Procedure Centres Advisory Committee
(Section 4 (5))
1 Chairperson of Advisory Committee
(1) Of the members, one shall (in and by the member’s instrument of appointment or a subsequent instrument executed by the Minister) be appointed as Chairperson of the Advisory Committee.(2) The Minister may remove a member from the office of Chairperson.(3) A person who is a member and Chairperson shall be taken to have vacated office as Chairperson if the person:(a) is removed from that office by the Minister under this clause, or(b) resigns that office by instrument in writing addressed to the Minister, or(c) ceases to be a member.
2 Deputies for members
(1) The Minister may, from time to time, appoint a person to be the deputy of a member of the Advisory Committee (including the Chairperson).(2) A person shall not be appointed as a deputy of any member unless the person has the same qualifications as that member for appointment.(3) A deputy may act in the office of the member for whom he or she is the deputy during the illness or absence of that member and, while so acting, has all the functions of the member.(4) The Minister may remove at any time a deputy from any office to which the deputy was appointed under this clause.(5) A deputy while acting in the office of a member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the deputy.(6) For the purposes of this clause, a vacancy in the office of a member shall be taken to be an absence of the member.
3 Term of office
A member shall, subject to this Schedule, hold office for such term, not exceeding 3 years, as is specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
4 Remuneration
A member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.
5 Vacation of office
(1) A member shall be taken to have vacated office if the member:(a) dies, or(b) absents himself or herself from 4 consecutive meetings of the Committee of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the Committee or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the Committee for being absent from those meetings, or(c) 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(d) becomes a temporary patient or a continued treatment patient within the meaning of the Mental Health Act 1958, a forensic patient within the meaning of the Mental Health Act 1983 or a protected person within the meaning of the Protected Estates Act 1983, or(e) is convicted in New South Wales of an offence which is punishable by imprisonment for 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) resigns the office by instrument in writing addressed to the Minister, or(g) is removed from office by the Minister under subclause (2).(2) The Minister may remove a member from office at any time.
6 Filling of vacancy in office of member
If the office of any member becomes vacant, a person shall, subject to this Act, be appointed to fill the vacancy.
7 Effect of certain other Acts
(1) The Public Sector Management Act 1988 does not apply to or in respect of the appointment of a member and a member is not, as a member, subject to that Act (except Part 8).(2) If by or under any other Act provision is made:(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, orthat provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member.(b) prohibiting the person from engaging in employment outside the duties of that office,(3) The office of a member shall for the purposes of any Act be taken not to be an office or place of profit under the Crown.
8 Liability of members etc
No matter or thing done by the Advisory Committee, any member or any person acting under the direction of the Advisory Committee shall, if the matter or thing was done in good faith for the purpose of executing this or any other Act, subject a member or a person so acting personally to any action, liability, claim or demand.
9 General procedure
The procedure for the calling of meetings of the Advisory Committee and for the conduct of business at those meetings shall, subject to this Act, be as determined by the Advisory Committee.
10 Quorum
The quorum for a meeting of the Advisory Committee is a majority of the members for the time being appointed by the Minister.
11 Presiding member
(1) The Chairperson or, in the absence of the Chairperson, another member elected to chair the meeting by the members present shall preside at a meeting of the Advisory Committee.(2) The person presiding at any meeting of the Advisory Committee has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
12 Voting
A decision supported by a majority of the votes cast at a meeting of the Advisory Committee at which a quorum is present shall be the decision of the Advisory Committee.
13 First meeting of Committee
The Minister shall call the first meeting of the Advisory Committee in such manner as the Minister thinks fit.
sch 1: Am 1999 No 94, Sch 4.153.
Schedule 2 Provisions relating to Chairperson of Committees of Review
(Section 27 (2))
1 Deputy for Chairperson
(1) The Minister may, from time to time, appoint a person to be the deputy of the Chairperson.(2) The deputy of the Chairperson may act in the office of the Chairperson during the illness or absence of the Chairperson and, while so acting, has all the functions of the Chairperson.(3) The Minister may remove a person from the office of deputy of the Chairperson at any time.(4) The deputy while so acting in the office of Chairperson is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the deputy.(5) For the purposes of this clause, a vacancy in the office of Chairperson shall be taken to be an absence of the Chairperson.
2 Term of office
A person shall, subject to this Schedule, hold office as Chairperson for such term, not exceeding 3 years, as is specified in the person’s instrument of appointment, but is eligible for re-appointment.
3 Remuneration
The Chairperson is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the Chairperson.
4 Vacation of office
(1) A person shall be taken to have vacated office as Chairperson if the person:(a) dies, or(b) 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(c) becomes a temporary patient or a continued treatment patient within the meaning of the Mental Health Act 1958, a forensic patient within the meaning of the Mental Health Act 1983 or a protected person within the meaning of the Protected Estates Act 1983, or(d) is convicted in New South Wales of an offence which is punishable by imprisonment for 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(e) resigns the office by instrument in writing addressed to the Minister, or(f) is removed from office by the Minister under subclause (2).(2) The Minister may remove a person from the office of Chairperson at any time.
5 Filling of vacancy in office of Chairperson
If the office of Chairperson becomes vacant, a person shall, subject to this Act, be appointed to fill the vacancy.
6 Effect of certain other Acts
(1) The Public Sector Management Act 1988 does not apply to or in respect of the appointment of a person to the office of Chairperson and a person is not, as Chairperson, subject to that Act (except Part 8).(2) If by or under any other Act provision is made:(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, orthat provision does not operate to disqualify the person from holding that office and also the office of Chairperson or from accepting and retaining any remuneration payable to the person under this Act as Chairperson.(b) prohibiting the person from engaging in employment outside the duties of that office,
sch 2: Am 1999 No 94, Sch 4.153.
Schedule 3 Provisions relating to Committees of Review
(Section 29 (3))
1 Disclosure of pecuniary interests
(1) If the Chairperson or any other member of a Committee of Review has a direct or indirect pecuniary interest in the subject-matter of an application for review, the Chairperson or other member shall, as soon as possible after the relevant facts have come to his or her knowledge, disclose the nature of the interest to the Minister.(2) After the Chairperson has disclosed the nature of an interest in the subject-matter of an application for review:(a) the Chairperson shall not, unless the Minister otherwise determines, act as Chairperson of the Committee of Review to which that application is referred, and(b) the deputy of the Chairperson shall act as Chairperson of that Committee.(3) The deputy of the Chairperson, while acting as Chairperson under subclause (2), has all the functions of the Chairperson and shall be taken to be the Chairperson.(4) After a member of a Committee of Review (other than the Chairperson) has disclosed the nature of an interest in the subject-matter of an application for review:(a) the member shall not, unless the Minister otherwise determines, act as a member of the Committee of Review, and(b) the Chairperson shall appoint another person to be a member of that Committee.(5) Notwithstanding that the Chairperson or other member of a Committee of Review contravenes the provisions of this clause, that contravention does not invalidate any recommendation of the Committee of Review or any recommendation of the Chairperson or the member (as the case may require).
2 Liability of members etc
No matter or thing done by a Committee of Review, the Chairperson or any member, or any person acting under the direction, of a Committee of Review shall, if the matter or thing was done in good faith for the purpose of executing this or any other Act, subject the Chairperson, the member or the person so acting personally to any action, liability, claim or demand.
3 General procedure
The procedure for the calling of meetings of a Committee of Review and for the conduct of business at those meetings shall, subject to this Act, be as determined by the Chairperson of the Committee.
4 Presiding member
The Chairperson shall preside at a meeting of the Committee.
Schedule 4 Savings and transitional provisions
(Section 57)
Part 1 General
1 Definitions
(1) In this Schedule:former Act means the Private Health Establishments Act 1982.new Committee means the Private Hospitals and Day Procedure Centres Advisory Committee as established by this Act.old Committee means the Private Hospitals and Day Procedure Centres Advisory Committee as established by the former Act.(2) In this Schedule, establishment means a private hospital or day procedure centre within the meaning of the former Act, but does not include a nursing home within the meaning of that Act.
2 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:this Act(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.(4) If this Act (or any of the provisions of this Act) commences before the repeal of the Private Health Establishments Act 1982, the regulations may provide that the Private Health Establishments Act 1982 (or any specified provision of that Act) is not to apply to private hospitals or day procedure centres within the meaning of that Act.
Part 2 Provisions consequent on enactment of this Act
3 Abolition of the old Committee
The old Committee is abolished.
4 Members of the old Committee
(1) A person who, immediately before the repeal of section 4A of the former Act, held office as a member of the old Committee:(a) ceases to hold office as such on that day, and(b) is eligible (if otherwise qualified) to hold office as a member of the new Committee.(2) A person who ceases to hold office as a member of the old Committee because of the operation of this Act is not entitled to be paid any remuneration or compensation because of ceasing to hold that office.
5 Existing licences
(1) A licence for an establishment that was in force under the former Act immediately before the commencement of section 11 shall be taken to have been issued under that section.(2) A temporary licence for an establishment that was in force under the former Act immediately before the commencement of section 12 shall be taken to have been issued under that section.(3) Such a licence or temporary licence shall be taken to be subject to the conditions specified in the licence immediately before the commencement of section 11 or section 12 (as the case may require).(4) Nothing in subclause (3) affects the operation of section 21 (amendment of licences).
6 Pending applications for licences
(1) An application for a licence for an establishment made under the former Act that has not been determined before the repeal of section 10 of the former Act shall be taken to be an application for a licence under section 8.(2) If the Secretary has, under section 9 of the former Act, approved (whether or not subject to conditions) the plans and specifications relating to any building to be constructed, altered or extended that accompany an application for a licence for an establishment, the Secretary:(a) may not, under section 9 of this Act, impose a condition relating to the construction or design of the building on an approval of the application in principle, and(b) may, without limiting the operation of Division 2 of Part 3, refuse an application if the building is not constructed, altered or extended in accordance with those plans and specifications or if a condition to which the approval of the plans and specifications was subject has not been complied with.
7 Pending applications to transfer licences
An application to transfer a licence for an establishment made under section 16 of the former Act that has not been determined before the repeal of that section shall be taken to have been made under this Act and shall be dealt with in accordance with the provisions of this Act.
8 Pending applications to alter establishments
An application to alter or extend an establishment under section 17 of the former Act that has not been determined before the repeal of that section shall be taken to have been made under this Act and shall be dealt with in accordance with the provisions of this Act.
9 Notice to effect repairs
(1) A notice given to a licensee of an establishment under section 34 of the former Act and in force immediately before the repeal of that section shall be taken to have been given under section 20 and shall have effect according to its tenor.(2) If notice was given to a licensee of an establishment under section 34 of the former Act less than 14 days before the repeal of that section:(a) the licensee has a right to apply to the Minister for a review of the decision of the Secretary to issue the notice, and(b) the notice shall not take effect:(i) until the expiration of 14 days after notice has been given to the licensee, or(ii) if the licensee applies for a review of the Secretary’s decision under section 28 before the expiration of the period referred to in subparagraph (i)—until the application for review is dealt with or withdrawn.
10 Pending applications to amend licences
An application for amendment of a licence for an establishment under section 18 of the former Act that has not been determined before the repeal of that section shall be taken to have been made under this Act and shall be dealt with in accordance with the provisions of this Act.
11 Requests for review
A request for review of a decision of the Secretary relating to an establishment that was made under section 19 of the former Act and that has not been determined by the Minister immediately before the repeal of that section shall be taken to be an application for review made under this Act and shall be dealt with in accordance with the provisions of this Act.
12 Inquiry
Where, immediately before the repeal of section 21 (3) of the former Act, an inquiry relating to the cancellation of a licence for an establishment is being made (or continued by the former Act) under that subsection, the inquiry may continue as if it were being made under section 34.
13 Cancellation
A cancellation of a licence for an establishment under section 21 (2) of the former Act that has not taken effect immediately before the repeal of that subsection shall be taken to be a cancellation of a licence under section 34 (1) and any notice of the cancellation given under section 21 (4) of the former Act shall be taken to be a notice given under section 34 (3).
14 Appeal
Any appeal against a decision of the Secretary to cancel the licence for an establishment pending under section 22 of the former Act immediately before the repeal of that section shall be taken to be pending under section 35, and may be heard and determined accordingly.
15 Register of patients
A register of patients kept at an establishment pursuant to section 32 of the former Act immediately before the repeal of that section shall be taken to be kept pursuant to section 44.
16 Authority to enter and inspect premises
(1) Any person who, immediately before the repeal of section 42 of the former Act, is authorised under that section to exercise the functions specified in that section (in relation to any licensed establishment or any premises of a proposed establishment) shall be taken to be a person authorised under section 47.(2) A certificate of authority provided by the Secretary under section 42 of the former Act to such a person and in force immediately before the repeal of that section shall be taken to be a certificate of authority provided under section 47.
17 References to former Act
A reference in any other Act, in any instrument made under any Act or in any other instrument of any kind to, or required (immediately before the repeal of clause 11 of Schedule 3 to the former Act) to be construed as a reference to, the Private Health Establishments Act 1982 shall, in so far as the reference relates to private hospitals or day procedure centres, be read as a reference to this Act.