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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Health Services Bill 2016 Contents Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 3. Act binds the State 2 4. Objects of this Act 2 5. Medicare principles 3 6. Terms used 3 7. Meaning of health service and public health service 8 8. Meaning of hospital and public hospital 9 9. Application of Act to hospital where mentally ill treated 10 Part 2 -- The Minister 10. Ministerial Body established 11 11. Purpose and nature of Ministerial Body 11 12. Execution of documents by Ministerial Body 11 13. Minister's general powers 13 14. Minister's powers in relation to business arrangements 14 15. Delegation by Minister 15 16. Power to delegate under Health Legislation Administration Act 1984 excluded 16 17. Role of Mental Health Minister not affected 16 Part 3 -- The Department CEO Division 1 -- Role of Department CEO 18. Administration of this Act 17 19. Management of the WA health system 17 20. Functions of Department CEO 17 175--1 page i Health Services Bill 2016 Contents 21. Powers of Department CEO 19 22. Staff who are not public servants 20 23. Department CEO may provide, or arrange for the provision of, certain services and facilities 20 24. Delegation by Department CEO 21 25. Power to delegate under Health Legislation Administration Act 1984 excluded 22 Division 2 -- Policy frameworks 26. Department CEO may issue policy frameworks 22 27. Policy framework is binding 24 Division 3 -- Department CEO directions 28. Department CEO may issue directions 24 29. Relationship between Department CEO direction and other instruments and directions 25 30. Department CEO direction is binding 25 31. Department CEO direction must be given to chief executive and to board 25 Part 4 -- Health service providers Division 1 -- Establishment 32. Establishment of health service provider 27 33. Status of health service provider 27 Division 2 -- Functions and powers 34. Functions 28 35. Commercial activities 30 36. General powers 30 37. Restrictions on power to dispose of land 32 38. Transactions that require agreement or approval 32 39. Exemptions from section 38 33 40. Delegation 33 41. Execution of documents by health service provider 34 42. Contract formalities 36 Part 5 -- Service agreements Division 1 -- Preliminary 43. Terms used 37 Division 2 -- Commission service agreements 44. Head agreement between Department CEO and Commission CEO 38 page ii Health Services Bill 2016 Contents 45. Commission CEO and health service provider may enter into service agreement 38 Division 3 -- Service agreements generally 46. Department CEO and health service provider must enter into service agreement 39 47. Department CEO may decide on terms of service agreement 40 48. General provisions about service agreements 41 49. Term of service agreement 42 50. Procedure to amend service agreement 42 51. Service agreement may provide for Department CEO to carry out specified functions 42 52. Review and report on service agreements 43 53. Other agreements for provision of services 43 Part 6 -- Fees and charges for health services and other matters 54. Effect of National Health Agreement 44 55. Fees and charges for the provision of health services 44 56. Minister may fix fees and charges 45 57. Liability of persons for health service fees and charges 46 58. Regulations about payment by compensable persons 46 59. Fees and charges for other services, goods and facilities 48 Part 7 -- Accountability and financial provisions Division 1 -- Accountability 60. Minister may give directions 49 61. Minister to have access to information 49 Division 2 -- Financial provisions 62. Application of Financial Management Act 2006 and Auditor General Act 2006 51 63. Health funding arrangements under the National Health Agreement 51 64. Health service provider account 51 page iii Health Services Bill 2016 Contents 65. Health service provider's funds 52 66. Notice of financial difficulty 52 67. Department CEO's power to require financial information 53 68. Various documents exempt from duty 53 69. Local governments may fund health services 54 Part 8 -- Administration of health service providers Division 1 -- Governance 70. Health service provider may be governed by board or chief executive 56 Division 2 -- Boards Subdivision 1 -- Constitution and procedures 71. Constitution of health service provider's board 56 72. Chairperson and deputy chairperson 58 73. Deputy chairperson acting as chairperson 59 74. Alternate members 59 75. Remuneration and allowances 60 76. Term of office 60 77. Casual vacancies 60 78. Leave of absence 61 Subdivision 2 -- Impartiality and disclosure of material personal interest 79. Members must act in public interest 61 80. Disclosure of material personal interest 62 81. Voting by interested member 62 82. Section 81 may be declared inapplicable 63 83. Quorum where section 81 applies 63 84. Minister may declare sections 81 and 83 inapplicable 63 Subdivision 3 -- Meetings 85. Holding meetings 64 86. Quorum 64 87. Procedure at meetings 64 88. Voting 64 89. Holding meetings remotely 64 90. Resolution without meeting 65 91. Minutes 65 page iv Health Services Bill 2016 Contents Subdivision 4 -- Committees 92. Committees 65 93. Remuneration and allowances 66 Division 3 -- Appointment of advisers to board, administrators, dismissal of board 94. Terms used 66 95. Minister may appoint advisers to boards 66 96. Terms and conditions of appointment as adviser 67 97. Functions of advisers 67 98. Obligations of board in relation to advisers 67 99. Minister may appoint administrator for health service provider 68 100. Terms and conditions of appointment as administrator 68 101. Role of administrator 69 102. Minister may dismiss all members of board 69 Part 9 -- Health service provider employment Division 1 -- Preliminary 103. Term used: employing authority 70 104. Application of PSM Act 70 Division 2 -- Health Executive Service Subdivision 1 -- Composition 105. Composition of Health Executive Service 71 Subdivision 2 -- Chief executives 106. Chief executive 71 107. Functions and powers of chief executive 71 108. Appointment of chief executive 73 109. Procedure for appointment of chief executive 73 110. Remuneration and leave entitlements 75 111. Contract of employment 75 112. Appointment of health service provider employee or public service officer 75 113. Reappointment of chief executive 76 114. Performance criteria for chief executive and review of performance 76 115. Removal from office 77 116. Transfer from office 77 page v Health Services Bill 2016 Contents 117. Acting chief executive 78 118. Employment of chief executive cannot be litigated and is not an industrial matter 79 119. Delegation 80 120. Modification of PSM Act delegation provision 81 Subdivision 3 -- Health executives 121. Appointment of health executives 81 122. Reappointment of health executive 82 123. Transfer of health executives 82 124. Performance assessment 83 125. Termination of contract of employment by employing authority 83 Subdivision 4 -- General provisions about chief executives and health executives 126. Terms used 84 127. Conditions of employment 84 128. Employment of chief executives and health executives governed by contract of employment 84 129. Content of contract of employment 85 130. Termination of contract of employment by executive 85 131. Notification or payment in lieu if executive is not reappointed 85 132. Right of return for certain executives 86 133. Compensation if executive has no right of return 88 134. Repayment of compensation 88 135. Election to take compensation instead of right of return 89 136. Secondment of executive 89 137. Vacation of office of executive 90 138. Operation of Division 91 Division 3 -- Other staff 139. Division does not apply to Health Executive Service 91 140. Employees of health service provider 91 141. Transfers between health service providers or between health services providers and the Department 92 142. Secondment of employee 93 143. Contracts for services 94 page vi Health Services Bill 2016 Contents Part 10 -- Criminal and misconduct matters concerning employees 144. Terms used 95 145. Duty of staff member to report certain criminal conduct and misconduct findings 95 146. Further reporting and notification 96 147. Suspending employee if health practitioner registration is suspended or becomes conditional 97 148. Suspending employee pending decision in relation to serious offence 98 149. Salary during suspension 98 150. Disciplinary or improvement action where registration suspended or conditional or in case of serious offence 99 151. Protection of patients to be paramount consideration 100 152. Power of employing authority to take improvement or other action not limited 100 153. Appeals and referrals 101 Part 11 -- Substandard performance and disciplinary matters Division 1 -- General 154. Application and effect of Part 102 155. Application of Part in respect of former employees 102 156. Power of employing authority to take improvement or other action not limited 103 157. Inconsistent provisions, instruments and contracts 103 Division 2 -- Substandard performance 158. What is substandard performance 103 159. Powers in relation to substandard performance 104 Division 3 -- Disciplinary matters 160. Term used: section 173(2) breach of discipline 105 161. What is a breach of discipline 105 162. Options in relation to suspected breach of discipline 105 163. Dealing with disciplinary matter 106 164. Action against employee pending decision on breach of discipline 107 page vii Health Services Bill 2016 Contents 165. Special disciplinary inquiries 108 166. Consequence of report of special disciplinary inquiry 109 167. Notification of outcome of disciplinary matter 110 168. Termination of other employment if employee is dismissed 110 169. Payment and recovery of fine 111 170. When disciplinary action can be taken 111 Division 4 -- Appeals and referrals 171. Terms used 111 172. Certain decisions and findings may be appealed or referred 111 173. Referrals in relation to directions that are lawful orders 113 Part 12 -- Redeployment and redundancy of employees 174. Application of PSM Act Part 6 and regulations made for the purposes of that Part 115 Part 13 -- Investigations, inspections and audits 175. Department CEO may investigate, inspect or audit health service provider 116 176. Procedures 116 177. Powers of Department CEO 116 178. Incriminating information or answers 118 179. Liability for complying with requirement 118 180. Failure to comply with requirement 119 181. False information 119 Part 14 -- Inquiries 182. Terms used 120 183. Department CEO may conduct inquiry 120 184. Preliminary matters 120 185. Procedure 121 186. Hearings 121 187. Inquirer's powers 122 188. Failure to comply with requirements of notice 122 189. Incriminating answers or documents 123 page viii Health Services Bill 2016 Contents 190. Disruption of inquiry 123 191. False information 124 192. Protection for certain purposes 124 193. Reports 124 Part 15 -- Changes to health service providers Division 1 -- Transfer of assets, rights and liabilities 194. Minister may order transfer of assets, rights or liabilities 126 Division 2 -- Changes to, or abolition of, health service provider 195. Amendment of order establishing health service provider 127 196. Abolition, amalgamation, merger or division of health service provider 128 197. Order may include savings and transitional provisions 128 198. Change of name 128 199. Board of health service provider 129 200. Transfer of assets, rights and liabilities 129 201. Former accounts 130 Division 3 -- General provisions 202. Term used: transfer order 132 203. Registration of documents 132 204. Exemption from State tax 132 205. Transitional regulations 133 206. Effect of other instruments, rights and obligations 135 Part 16 -- Control of conduct and traffic on health service provider land 207. Term used: health service provider land 136 208. Declaration of health service provider land 136 209. Regulations about conduct on, and use of, health service provider land 136 210. Regulations about management and control of traffic 137 page ix Health Services Bill 2016 Contents 211. Requirement to leave health service provider land 140 212. Proceedings and payment of penalties 141 Part 17 -- Information Division 1 -- General 213. Terms used 142 214. Health information management systems 142 215. Information held in health information management system 143 Division 2 -- Disclosure of information 216. Disclosure of information by Department CEO 144 217. Disclosure of information by health service provider 144 218. Requesting information 145 Division 3 -- Confidentiality 219. Confidentiality 146 220. Authorised collection, use or disclosure of information 147 221. Regulations relating to information 148 Part 18 -- Miscellaneous Division 1 -- Legal proceedings 222. Commencement of prosecutions 149 223. Appointments and signatures taken to be proved 149 224. Documentary evidence of certain matters 149 225. Evidence Act 1906 not affected 150 Division 2 -- Miscellaneous 226. Protection from liability for persons exercising functions 150 227. Minister and health service providers not required to be registered 151 228. Modifications for purposes of Workers' Compensation and Injury Management Act 1981 Part IV Division 2 151 229. Laying documents before House of Parliament not sitting 152 230. Regulations -- general power 153 231. Regulations may adopt codes or legislation 154 page x Health Services Bill 2016 Contents Division 3 -- Review of Act 232. Review of Act 155 Part 19 -- Transitional and savings matters Division 1 -- Interpretation 233. Terms used 156 Division 2 -- Boards and ministerial control 234. Boards abolished and Minister ceases to control hospitals 157 235. Immunity continues 157 Division 3 -- Hospital boards' assets, rights and liabilities 236. Division does not apply to land reserved under the Queen Elizabeth II Medical Centre Act 1966 158 237. Transfer to health service provider or Ministerial Body 158 238. Transfer orders 159 239. Correction of errors in transfer orders 161 240. Reserves 161 241. Registration of documents 162 242. Hospital boards to complete necessary transactions 163 243. Exemption from State tax 164 244. Operating accounts of hospital boards 164 Division 4 -- Staff 245. Employees of hospital boards 165 246. Preservation of rights 166 Division 5 -- Continuation of certain things 247. Completion of things done 167 248. Continuing effect of things done 167 249. Agreements, instruments, proceedings and remedies generally 167 Division 6 -- Quadriplegic Centre 250. Terms used 168 251. Quadriplegic Centre continued 168 252. Quadriplegic Centre board members 169 253. Staff members 169 254. Preservation of rights 170 255. Transfer of contracts for services 170 page xi Health Services Bill 2016 Contents Division 7 -- Other matters 256. Transitional regulations 170 257. Effect of other instruments, rights and obligations 172 258. Interpretation Act 1984 not affected 172 Part 20 -- Hospitals and Health Services legislation amended Division 1 -- Hospitals and Health Services Act 1927 amended 259. Act amended 173 260. Long title replaced 173 261. Section 1 replaced 173 1. Short title 173 262. Section 2 amended 173 263. Section 3 amended 175 264. Section 4 amended 175 265. Sections 5A and 7 deleted 176 266. Section 7A replaced 176 7A. Minister's powers 176 267. Sections 7B to 9 deleted 176 268. Section 10 replaced 176 10. Visiting and inspecting private hospitals 176 269. Section 11 amended 177 270. Sections 12 and 12A deleted 177 271. Part III deleted 177 272. Section 26P amended 178 273. Part IIIC heading replaced 178 Part IIIC -- Information 274. Section 26R amended 178 275. Section 26S amended 179 276. Section 26T replaced 179 26T. No liability for disclosure 179 277. Sections 27 to 35 deleted 179 278. Section 35A replaced 180 35A. Protection from personal liability 180 279. Sections 35B, 35C and 36 deleted 180 280. Section 37 amended 180 281. Section 38 amended 181 282. Schedule deleted 181 page xii Health Services Bill 2016 Contents Division 2 -- Hospitals and Health Services Amendment Act 2013 repealed 283. Hospitals and Health Services Act Amendment Act 2013 repealed 181 Part 21 -- Other Acts amended 284. Births, Deaths and Marriages Registration Act 1998 amended 182 285. Blood Donation (Limitation of Liability) Act 1985 amended 182 286. Carers Recognition Act 2004 amended 183 287. Charitable Trusts Act 1962 amended 183 288. Constitution Acts Amendment Act 1899 amended 184 289. Financial Management Act 2006 amended 184 290. Food Act 2008 amended 185 291. Health Act 1911 amended 185 292. Health and Disability Services (Complaints) Act 1995 amended 186 293. Health Legislation Administration Act 1984 amended 186 294. Human Tissue and Transplant Act 1982 amended 187 295. Industrial Relations Act 1979 amended 187 296. Mental Health Act 2014 amended 189 297. National Health Funding Pool Act 2012 amended 190 298. Pay-roll Tax Assessment Act 2002 190 299. Pharmacy Act 2010 amended 191 300. Public Works Act 1902 amended 191 301. Queen Elizabeth II Medical Centre Act 1966 amended 191 302. Rail Safety National Law (WA) Act 2015 amended 193 303. Spent Convictions Act 1988 amended 193 304. State Superannuation (Transitional and Consequential Provisions) Act 2000 194 305. University Medical School, Teaching Hospitals, Act 1955 194 306. Workers' Compensation and Injury Management Act 1981 amended 196 page xiii Health Services Bill 2016 Contents Part 22 -- By-laws, regulations and determinations repealed or revoked 307. By-laws and regulations repealed 197 308. Determinations revoked 197 Defined terms page xiv Western Australia LEGISLATIVE ASSEMBLY Health Services Bill 2016 A Bill for An Act to -- • provide for health services in Western Australia; • make consequential amendments to the Hospitals and Health Services Act 1927 and other Acts; • repeal various enactments. The Parliament of Western Australia enacts as follows: page 1 Health Services Bill 2016 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Health Services Act 2016. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) sections 1 and 2 -- on the day on which this Act 7 receives the Royal Assent; 8 (b) the rest of the Act -- on a day fixed by proclamation, 9 and different days may be fixed for different provisions. 10 3. Act binds the State 11 This Act binds the State and, so far as the legislative power of 12 the State permits, the Crown in all its other capacities. 13 4. Objects of this Act 14 The objects of this Act are as follows -- 15 (a) to promote and protect the health status of Western 16 Australians; 17 (b) to identify and respond to opportunities to reduce 18 inequities in health status in the Western Australian 19 community; 20 (c) to provide access to safe, high quality, evidence-based 21 health services; 22 (d) to promote a patient-centred continuum of care in the 23 provision of health services; 24 (e) to coordinate the provision of an integrated system of 25 health services and health policies in the WA health 26 system; 27 (f) to promote effectiveness, efficiency and innovation in 28 the provision of health services and teaching, training, page 2 Health Services Bill 2016 Preliminary Part 1 s. 5 1 research and other services within the available financial 2 and other resources; 3 (g) to engage and support the health workforce in the 4 planning and provision of health services and teaching, 5 training, research and other services. 6 5. Medicare principles 7 The provision of health services through the public hospital 8 system of the State is based on the Medicare principles set out 9 in the National Health Agreement. 10 6. Terms used 11 In this Act, unless the contrary intention appears -- 12 assets -- 13 (a) means any legal or equitable estates or interests 14 (whether present or future, whether vested or contingent 15 and whether personal or assignable) in property; and 16 (b) includes money, securities, choses in action and 17 documents; 18 board means a board constituted under section 71; 19 board governed provider means a health service provider 20 specified under section 32(1)(d) to be a board governed 21 provider; 22 breach of discipline means a breach of discipline referred to in 23 section 161; 24 chief executive, in relation to a health service provider, means 25 the person appointed as chief executive of the health service 26 provider under section 108(1); 27 chief executive governed provider means a health service 28 provider specified under section 32(1)(d) to be a chief executive 29 governed provider; 30 Commission CEO has the meaning given in section 43; 31 committee means a committee appointed under section 92(1); page 3 Health Services Bill 2016 Part 1 Preliminary s. 6 1 contracted health entity means a non-government entity that 2 provides health services under a contract or other agreement 3 entered into with the Department CEO on behalf of the State, a 4 health service provider or the Minister; 5 Department means the department of the Public Service 6 principally assisting the Minister in the administration of this 7 Act; 8 Department CEO means the chief executive officer of the 9 Department; 10 Department CEO direction means a direction issued by the 11 Department CEO under section 28; 12 disciplinary action, in relation to a breach of discipline by an 13 employee, means any one or more of the following -- 14 (a) a reprimand; 15 (b) the imposition of a fine not exceeding an amount equal 16 to the amount of remuneration received by the employee 17 in respect of the last 5 days during which the employee 18 was at work as an employee before the day on which the 19 finding of the breach of discipline was made; 20 (c) transferring the employee to another health service 21 provider with the consent of the employing authority of 22 that health service provider; 23 (d) if the employee is not a chief executive, transferring the 24 employee to another office in the health service provider 25 in which the employee is employed; 26 (e) reduction in the monetary remuneration of the 27 employee; 28 (f) reduction in the level of classification of the employee; 29 (g) alteration of the employee's scope of practice or duties, 30 or both; 31 (h) dismissal; page 4 Health Services Bill 2016 Preliminary Part 1 s. 6 1 employee means a person employed in a health service provider 2 and includes -- 3 (a) the chief executive of the health service provider; 4 (b) a health executive employed in the health service 5 provider; 6 (c) a person employed in the health service provider under 7 section 140; 8 (d) a person seconded to the health service provider under 9 section 136 or 142; 10 employing authority has the meaning given in section 103; 11 health executive means a person holding an office referred to in 12 section 105(1)(b) but does not include a chief executive; 13 Health Executive Service means the Health Executive Service 14 mentioned in section 105; 15 health professional means a person who is -- 16 (a) a health practitioner registered under the Health 17 Practitioner Regulation National Law (Western 18 Australia); or 19 (b) in a class of persons prescribed for the purposes of this 20 definition; 21 health service has the meaning given in section 7; 22 health service area means a health service area declared under 23 section 32(1)(a); 24 health service provider means a health service provider 25 established by an order made under section 32(1)(b); 26 hospital has the meaning given in section 8; 27 improvement action, in relation to an employee, means any one 28 or more of the following actions by the employing authority of 29 the employee for the purpose of improving the performance or 30 conduct of the employee -- 31 (a) counselling; 32 (b) training and development; page 5 Health Services Bill 2016 Part 1 Preliminary s. 6 1 (c) issuing a warning to the employee that certain conduct is 2 unacceptable or that the employee's performance is not 3 satisfactory; 4 (d) any other action of a similar nature; 5 liabilities means any liabilities, duties or obligations, whether 6 actual, contingent or prospective, liquidated or unliquidated or 7 whether owed alone or jointly or jointly and severally with any 8 other persons; 9 member, of a board, means a person appointed under 10 section 71(1); 11 Ministerial Body means the Health Ministerial Body established 12 by section 10; 13 National Health Agreement means -- 14 (a) the National Health Reform Agreement between the 15 Commonwealth and the States that was agreed to by the 16 Council of Australian Governments on 2 August 2011, 17 as amended from time to time; or 18 (b) any agreement that replaces or supersedes that 19 agreement; 20 patient means a person who has been, is being, or will or may 21 be provided with health treatment or care; 22 personal information has the meaning given in the Freedom of 23 Information Act 1992 in the Glossary clause 1; 24 policy framework means a policy framework issued under 25 section 26; 26 prescribed means prescribed by regulations made under this 27 Act; 28 property means property of every kind, whether real or 29 personal, tangible or intangible, corporeal or incorporeal, and 30 any interest in property; 31 provide includes supply or carry out; 32 PSM Act means the Public Sector Management Act 1994; page 6 Health Services Bill 2016 Preliminary Part 1 s. 6 1 public authority means any of these persons or bodies -- 2 (a) a department of the Public Service; 3 (b) a State agency or instrumentality; 4 (c) a local government or regional local government; 5 (d) a body (whether corporate or unincorporate), or the 6 holder of an office, post or position, established or 7 continued for a public purpose under a written law; 8 (e) a person or body, or a person or body within a class of 9 persons or bodies, prescribed for the purposes of this 10 paragraph; 11 public health service has the meaning given in section 7(3); 12 public health service facility means a facility at which public 13 health services are provided; 14 public hospital has the meaning given in section 8(6); 15 relevant lands official means -- 16 (a) the Minister for Lands; or 17 (b) the Registrar of Titles; or 18 (c) the Registrar of Deeds and Transfers; or 19 (d) any other person authorised by a written law to record 20 and give effect to the registration of documents relating 21 to transaction affecting any estate or interest in land; 22 rights means any rights, powers, privileges or immunities, 23 whether actual, contingent or prospective; 24 service agreement has the meaning given in section 43; 25 staff member, of a health service provider, means -- 26 (a) an employee in the health service provider; 27 (b) a person engaged under a contract for services by the 28 health service provider; 29 State tax includes -- 30 (a) duty chargeable under the Duties Act 2008; and page 7 Health Services Bill 2016 Part 1 Preliminary s. 7 1 (b) any other tax, duty, fee, levy or charge under a law of 2 the State; 3 WA health system has the meaning given in section 19(1); 4 WA health system-wide plan means a plan developed by the 5 Department CEO for the purposes of the WA health system. 6 7. Meaning of health service and public health service 7 (1) A health service is a service for maintaining, improving, 8 restoring or managing people's physical and mental health and 9 wellbeing. 10 (2) Without limiting subsection (1), a health service includes -- 11 (a) a service mentioned in subsection (1) that is provided to 12 a person at a hospital or any other place; 13 (b) a service dealing with public health, including a 14 programme or activity for -- 15 (i) the prevention and control of disease or sickness; 16 or 17 (ii) the prevention of injury; or 18 (iii) the protection and promotion of health; 19 (c) a support service for a service mentioned in 20 subsection (1); 21 (d) the provision of goods for a service mentioned in 22 subsection (1). 23 (3) A public health service is a health service provided by -- 24 (a) a health service provider; or 25 (b) the Department CEO; or 26 (c) a contracted health entity under a contract or other 27 agreement entered into with the Department CEO on 28 behalf of the State, a health service provider or the 29 Minister. page 8 Health Services Bill 2016 Preliminary Part 1 s. 8 1 (4) A public health service -- 2 (a) includes a health service declared under a regulation to 3 be a public health service; and 4 (b) does not include a health service declared under a 5 regulation not to be a public health service. 6 8. Meaning of hospital and public hospital 7 (1) In this section -- 8 day hospital facility means premises that are not attached to, or 9 are set apart from, premises mentioned in subsection (4)(a), 10 being premises at which -- 11 (a) persons are provided with a health service determined 12 by the Minister under subsection (2); and 13 (b) overnight accommodation is not provided; 14 nursing post means a place at which a nurse is stationed and at 15 which facilities exist for medical attention but which is not 16 normally used for overnight accommodation of patients. 17 (2) The Minister may by written notice determine any health 18 service for the purposes of the definition of day hospital facility 19 in subsection (1). 20 (3) A determination under subsection (2) may be made -- 21 (a) generally; or 22 (b) in relation to specified health services or health services 23 in a specified class; or 24 (c) by reference to a declaration or determination made 25 under any law of the State or the Commonwealth. 26 (4) Each of the following premises is a hospital for the purposes of 27 this Act -- 28 (a) premises where medical, surgical or dental treatment, or 29 nursing care, is provided for ill or injured persons and at 30 which overnight accommodation may be provided; and 31 (b) a day hospital facility; and page 9 Health Services Bill 2016 Part 1 Preliminary s. 9 1 (c) a nursing post. 2 (5) In subsection (4) an ill person includes a person who has a 3 mental illness (as defined in the Mental Health Act 2014 4 section 4) but this section does not affect any requirements 5 under that Act that a person be detained at an authorised 6 hospital (as defined in section 4 of that Act) or at another place. 7 (6) Subject to any order made under subsection (8), each of the 8 following premises is a public hospital for the purposes of this 9 Act -- 10 (a) a hospital controlled or managed by a health service 11 provider or the Department CEO; or 12 (b) a hospital declared to be a public hospital under 13 subsection (7). 14 (7) The Minister may by order published in the Gazette declare any 15 hospital to be a public hospital for the purposes of this Act. 16 (8) The Minister may by order published in the Gazette declare that 17 any hospital is not a public hospital for the purposes of this Act 18 or the Private Hospitals and Health Services Act 1927. 19 9. Application of Act to hospital where mentally ill treated 20 Where a public hospital or part of a public hospital is an 21 authorised hospital under the Mental Health Act 2014, this Act 22 has effect in relation to the hospital or part of the hospital, and 23 persons received or admitted into it, subject to the provisions of 24 that Act. page 10 Health Services Bill 2016 The Minister Part 2 s. 10 1 Part 2 -- The Minister 2 10. Ministerial Body established 3 (1) The Health Ministerial Body is established. 4 (2) The Ministerial Body is a body corporate with perpetual 5 succession. 6 (3) Proceedings may be taken by or against the Ministerial Body in 7 its corporate name. 8 (4) The Ministerial Body must be governed by the Minister. 9 (5) The Ministerial Body has the status, immunities and privileges 10 of the Crown. 11 11. Purpose and nature of Ministerial Body 12 (1) The Ministerial Body is established to provide a body corporate 13 through which the Minister can perform any of the Minister's 14 functions under this Act that can more conveniently be 15 performed by a body corporate than an individual. 16 (2) Any acts or things done through the Ministerial Body as 17 described in subsection (1) must be regarded as -- 18 (a) services under the control of the Department for the 19 purposes of the Financial Management Act 2006 20 section 52; and 21 (b) operations of the Department for the purposes of Part 5 22 of that Act. 23 (3) Despite the employment under the PSM Act of ministerial 24 officers for the purpose of assisting the Minister to perform 25 functions that the Minister performs through the Ministerial 26 Body, the Ministerial Body and those officers are not an 27 organisation for the purposes of that Act. 28 12. Execution of documents by Ministerial Body 29 (1) The Ministerial Body must have a common seal. page 11 Health Services Bill 2016 Part 2 The Minister s. 12 1 (2) A document is duly executed by the Ministerial Body if -- 2 (a) the common seal of the Ministerial Body is affixed to it 3 in accordance with subsections (3) and (4); or 4 (b) it is signed on behalf of the Ministerial Body by the 5 Minister; or 6 (c) it is signed on behalf of the Ministerial Body, as 7 authorised under subsection (5), by the Department CEO 8 or another person. 9 (3) The common seal of the Ministerial Body must not be affixed to 10 a document except as authorised by the Ministerial Body. 11 (4) The common seal of the Ministerial Body must be affixed to a 12 document in the presence of the Minister and the Minister must 13 sign the document to attest that the common seal was so affixed. 14 (5) The Ministerial Body may, by writing under its seal, authorise 15 the Department CEO or another person to execute deeds or 16 other documents on behalf of the Ministerial Body, either 17 generally or subject to any conditions or restrictions specified in 18 the authorisation. 19 (6) A document purporting to be executed in accordance with this 20 section must be presumed to be duly executed unless the 21 contrary is shown. 22 (7) A document executed by the Department CEO or another 23 person under this section without the common seal of the 24 Ministerial Body must not be regarded as a deed unless it is 25 executed as a deed as authorised under subsection (5). 26 (8) When a document is produced bearing a seal purporting to be 27 the common seal of the Ministerial Body, it must be presumed 28 that the seal is the common seal of the Ministerial Body unless 29 the contrary is shown. 30 (9) For the purposes of this Act, a facsimile of any of the following 31 may be used -- 32 (a) the Ministerial Body's common seal; page 12 Health Services Bill 2016 The Minister Part 2 s. 13 1 (b) the Minister's signature; 2 (c) the signature of a person authorised under subsection (5) 3 to execute deeds or other documents. 4 (10) A deed or other document purporting to be endorsed with such a 5 facsimile must be regarded as bearing the facsimile under 6 subsection (9) unless the contrary is shown. 7 13. Minister's general powers 8 (1) In this section -- 9 acquire includes taking on lease or licence or in any other 10 manner in which an interest in property may be acquired; 11 dispose of includes disposing of by way of lease or licence or in 12 any other manner in which an interest in property may be 13 disposed of; 14 joint arrangement means an arrangement entered into by the 15 Minister with a health service provider for the purposes of the 16 functions of the health service provider and which involves any 17 or all of the following -- 18 (a) enabling any property vested in the Ministerial Body to 19 be used for the purposes of the arrangement (joint use 20 property); 21 (b) controlling and managing the use of joint use property 22 for the purposes of the arrangement; 23 (c) sharing the use of joint use property for the purposes of 24 the arrangement. 25 (2) For the purposes of this Act, the Minister may -- 26 (a) acquire, hold, manage, improve, develop, dispose of and 27 otherwise deal in property; and 28 (b) enter into a contract or other arrangement, including a 29 contract or arrangement for the provision of services to 30 or by a health service provider; and 31 (c) do all things necessary or convenient for the purpose of 32 carrying out joint arrangements; and page 13 Health Services Bill 2016 Part 2 The Minister s. 14 1 (d) develop and turn to account any technology, software or 2 other intellectual property and apply for, hold, exploit 3 and dispose of any patent, patent rights, copyright or 4 similar rights; and 5 (e) provide and turn to account health education and 6 training services; and 7 (f) provide and turn to account advertising opportunities or 8 opportunities to participate in arrangements in the nature 9 of advertising or having a purpose similar to advertising; 10 and 11 (g) give effect to -- 12 (i) any agreement entered into by the 13 Commonwealth with the State under the Health 14 Insurance Act 1973 (Commonwealth); and 15 (ii) the relevant guidelines (if any) formulated under 16 that Act in relation to health services for the 17 purposes of the agreement. 18 (3) The power of the Minister to dispose of land does not extend to 19 the transfer of Crown land for an estate in fee simple. 20 (4) In exercising any power under this Part the Minister may act in 21 conjunction with -- 22 (a) any person, firm or public authority; or 23 (b) any department of the Public Service or any agency of 24 the State or the Commonwealth. 25 14. Minister's powers in relation to business arrangements 26 (1) In this section -- 27 business arrangement means a company, a partnership, a trust, 28 a joint venture, an arrangement or agreement for sharing profits 29 or an arrangement or agreement for sponsorship; 30 participate in a business arrangement includes form, promote, 31 establish, enter into, manage, dissolve, wind-up and do anything 32 incidental to the business arrangement. page 14 Health Services Bill 2016 The Minister Part 2 s. 15 1 (2) Subject to subsection (3), the Minister may, for the purposes of 2 this Act -- 3 (a) participate in a business arrangement; and 4 (b) acquire, hold and dispose of shares, units or other 5 interests in or relating to a business arrangement. 6 (3) Before the Minister exercises a power conferred by 7 subsection (2) in relation to a business arrangement the Minister 8 must -- 9 (a) notify the Treasurer of the proposal; and 10 (b) seek the Treasurer's approval to it. 11 (4) Subsection (3) does not apply if the terms and conditions of that 12 business arrangement are terms and conditions approved by the 13 Treasurer in respect of -- 14 (a) that business arrangement; or 15 (b) business arrangements of that class; or 16 (c) business arrangements generally. 17 (5) The Treasurer may, by written notice given to the Minister, 18 exempt any business arrangement or class of business 19 arrangement from the operation of subsection (3). 20 (6) An exemption may be unconditional or on specified conditions. 21 (7) A notice under subsection (5) may be revoked or amended by 22 the Treasurer by written notice given to the Minister. 23 15. Delegation by Minister 24 (1) The Minister may delegate to the Department CEO any function 25 of the Minister under another provision of this Act. 26 (2) Without limiting the functions that may be delegated under this 27 section, they include functions that are to be exercised or 28 performed in the course of governing the affairs of the 29 Ministerial Body under section 10(4). 30 (3) The delegation must be in writing signed by the Minister. page 15 Health Services Bill 2016 Part 2 The Minister s. 16 1 (4) The Department CEO cannot delegate a function that is 2 delegated to the Department CEO under this section. 3 (5) The exercise or performance by the Department CEO of a 4 function that has been delegated to the Department CEO under 5 this section is to be taken to be in accordance with the terms of 6 the delegation unless the contrary is shown. 7 (6) This section does not limit the ability of the Minister to perform 8 a function through an officer or agent. 9 16. Power to delegate under Health Legislation Administration 10 Act 1984 excluded 11 The Health Legislation Administration Act 1984 section 9 does 12 not apply to or in relation to any function of the Minister under 13 this Act. 14 17. Role of Mental Health Minister not affected 15 Nothing in this Act affects the role of the Minister responsible 16 for the administration of the Mental Health Act 2014 in the 17 administration of that Act. page 16 Health Services Bill 2016 The Department CEO Part 3 Role of Department CEO Division 1 s. 18 1 Part 3 -- The Department CEO 2 Division 1 -- Role of Department CEO 3 18. Administration of this Act 4 Subject to the general control of the Minister and any directions 5 or instructions given under the PSM Act section 32 by the 6 Minister to the Department CEO, the Department CEO must 7 carry out the administration of this Act. 8 19. Management of the WA health system 9 (1) The WA health system is comprised of -- 10 (a) the Department; and 11 (b) health service providers; and 12 (c) to the extent that contracted health entities provide 13 health services to the State, the contracted health 14 entities. 15 (2) The overall management of the WA health system is the 16 responsibility of the Department CEO (the system manager 17 role). 18 (3) The relationship between the Department CEO and the health 19 service providers is also governed by the service agreements 20 between the Department CEO and each health service provider. 21 20. Functions of Department CEO 22 (1) The functions of the Department CEO include -- 23 (a) advising and assisting the Minister in the development 24 and implementation of WA health system-wide 25 planning; 26 (b) providing strategic leadership and direction for the 27 provision of public health services in the State; page 17 Health Services Bill 2016 Part 3 The Department CEO Division 1 Role of Department CEO s. 20 1 (c) recommending to the Minister the amounts that may be 2 allocated from the monies appropriated from the 3 Consolidated Account to health service providers; 4 (d) promoting the effective and efficient use of available 5 resources in the provision of public health services in 6 the State; 7 (e) carrying out certain functions of health service providers 8 as specified in service agreements pursuant to 9 section 51; 10 (f) managing WA health system-wide industrial relations 11 on behalf of the State, including the negotiation of 12 industrial agreements, and making applications to make 13 or vary awards; 14 (g) subject to subsection (3), commissioning and delivering 15 capital works and maintenance works for public health 16 service facilities; 17 (h) classifying, and determining the remuneration of, health 18 executives and their offices, and varying the 19 classification or remuneration; 20 (i) establishing the conditions of employment for 21 employees in health service providers in accordance 22 with the requirements of any binding award, order or 23 industrial agreement under the Industrial Relations 24 Act 1979; 25 (j) arranging for the provision of health services by 26 contracted health entities; 27 (k) providing support services to health service providers; 28 (l) overseeing, monitoring and promoting improvements in 29 the safety and quality of health services provided by 30 health service providers; 31 (m) monitoring the performance of health service providers, 32 and taking remedial action when performance does not 33 meet the expected standard; page 18 Health Services Bill 2016 The Department CEO Part 3 Role of Department CEO Division 1 s. 21 1 (n) receiving and validating performance data and other data 2 provided by service providers; 3 (o) other functions given to the Department CEO under this 4 or another Act. 5 (2) The conferral of a function on the Department CEO does not 6 override any other written law that relates to or affects the 7 function and in particular subsection (1)(g) has effect subject to 8 the provisions of the State Supply Commission Act 1991 and the 9 Public Works Act 1902. 10 (3) The Department CEO must have the written agreement of the 11 Minister for Works before commissioning and delivering a 12 capital work or maintenance work under subsection (1)(g). 13 (4) The Minister for Works may by order exempt a work, or class 14 of work, from the operation of subsection (3). 15 (5) An exemption may be unconditional or on specified conditions. 16 (6) An order under subsection (4) may be amended or revoked by 17 the Minister for Works. 18 (7) In this section -- 19 Minister for Works means -- 20 (a) the Minister administering the Public Works Act 1902; 21 or 22 (b) a person to whom the Minister has delegated any of the 23 Minister's powers or duties under the Public Works 24 Act 1902 section 5A. 25 21. Powers of Department CEO 26 The Department CEO may do anything necessary or convenient 27 for the performance of the Department CEO's functions under 28 this Act. page 19 Health Services Bill 2016 Part 3 The Department CEO Division 1 Role of Department CEO s. 22 1 22. Staff who are not public servants 2 (1) The Department CEO may, for and on behalf of the State, 3 employ and manage persons in the Department for the purposes 4 of this Act -- 5 (a) as wages staff; or 6 (b) as other staff. 7 (2) Subject to any relevant award or industrial agreement, the terms 8 and conditions of employment under subsection (1)(a) or (b) are 9 to be the terms and conditions that the Department CEO 10 determines. 11 (3) A person employed under subsection (1)(a) or (b) is not a 12 person appointed under the PSM Act Part 3. 13 (4) Nothing in this section limits -- 14 (a) the Department CEO's powers under the PSM Act; or 15 (b) health service providers' employment powers under this 16 Act. 17 23. Department CEO may provide, or arrange for the provision 18 of, certain services and facilities 19 (1) The Department CEO may, on behalf of the State, enter into a 20 written contract with a non-government entity for the provision 21 of health services -- 22 (a) to the entity by the State; or 23 (b) by the entity to the State. 24 (2) The Department CEO may provide health services, other 25 services or facilities for any or all of the following purposes -- 26 (a) to support the WA health system; 27 (b) to support a health service provider; 28 (c) to enable the co-ordinated provision of health services 29 involving more than one health service provider or on a 30 State-wide basis. page 20 Health Services Bill 2016 The Department CEO Part 3 Role of Department CEO Division 1 s. 24 1 (3) The Department CEO may determine the charges, if any, 2 payable for any service or facilities provided by the Department 3 CEO under subsection (2). 4 (4) The Department CEO may arrange for a health service provider 5 to use the services of any officer or employee (including by way 6 of secondment to the health service provider) -- 7 (a) in the Public Sector; or 8 (b) in a State agency or instrumentality; or 9 (c) otherwise in the service of the State. 10 (5) The Department CEO may arrange for a health service provider 11 to make use of the facilities of a department of the Public 12 Service or a State agency or instrumentality. 13 (6) An arrangement under subsection (4) or (5) must be made on 14 terms agreed to by the Department CEO, the relevant health 15 service provider and the party providing the services or 16 facilities. 17 (7) Nothing in this section limits the Department CEO's other 18 powers under this or any other written law. 19 24. Delegation by Department CEO 20 (1) The Department CEO may delegate any function of the 21 Department CEO under another provision of this Act to -- 22 (a) a person employed or engaged in the Department; or 23 (b) a staff member of a health service provider. 24 (2) The Department CEO may delegate the function of the 25 Department CEO under section 20(1)(g) to a health service 26 provider. 27 (3) The delegation must be in writing signed by the Department 28 CEO. 29 (4) A person to whom a function is delegated under this section 30 cannot delegate that function. page 21 Health Services Bill 2016 Part 3 The Department CEO Division 2 Policy frameworks s. 25 1 (5) A person exercising or performing a function that has been 2 delegated to the person under this section is to be taken to be in 3 accordance with the terms of the delegation unless the contrary 4 is shown. 5 (6) This section does not limit the ability of the Department CEO to 6 perform a function through an officer or agent. 7 25. Power to delegate under Health Legislation Administration 8 Act 1984 excluded 9 The Health Legislation Administration Act 1984 section 9 does 10 not apply to or in relation to any function of the Department 11 CEO under this Act. 12 Division 2 -- Policy frameworks 13 26. Department CEO may issue policy frameworks 14 (1) In this section -- 15 provision, of health services, includes the following -- 16 (a) matters that support the provision of health services, 17 including -- 18 (i) the engagement of contracted health 19 professionals; and 20 (ii) private practice arrangements for health 21 professionals; 22 (b) the provision of health services by contracted health 23 entities. 24 (2) The Department CEO may issue policy frameworks to ensure 25 consistent approaches to the following -- 26 (a) service coordination and integration, and efficiency and 27 effectiveness, in the provision of health services -- 28 (i) between health service providers; and 29 (ii) between health service providers, the Department 30 and other service providers; page 22 Health Services Bill 2016 The Department CEO Part 3 Policy frameworks Division 2 s. 26 1 (b) the making of service agreements, other than 2 Commission service agreements made under section 45; 3 (c) the provision of health services; 4 (d) the performance and exercise of functions by health 5 service providers; 6 (e) financial management of health service providers; 7 (f) employment, and termination of employment, in health 8 service providers; 9 (g) the movement of employees between health service 10 providers or between a health service provider and 11 another employer -- 12 (i) by transfer for temporary or permanent 13 employment; or 14 (ii) on secondment or temporary redeployment; or 15 (iii) for training; 16 (h) the management and administration of the Health 17 Executive Service; 18 (i) the engagement of health professionals by health service 19 providers and the conditions of engagement; 20 (j) investigations, inspections and audits under section 175; 21 (k) the management of information, including the way in 22 which information is collected, used and disclosed; 23 (l) any other matter in connection with the functions of the 24 Department CEO under this Act in respect of which the 25 Department CEO considers it necessary or desirable to 26 issue a policy framework. 27 (3) A policy framework may apply to any of the following -- 28 (a) the health service providers specified in the policy 29 framework; 30 (b) all health service providers; 31 (c) a type of public health service facility specified in the 32 policy framework; page 23 Health Services Bill 2016 Part 3 The Department CEO Division 3 Department CEO directions s. 27 1 (d) a type of public health service specified in the policy 2 framework; 3 (e) a type of staff member of a health service provider. 4 (4) The Department CEO may revoke or amend a policy 5 framework. 6 (5) The Department CEO must ensure that each policy framework 7 is publicly available. 8 27. Policy framework is binding 9 (1) A policy framework is binding on each health service provider 10 to which it applies or relates. 11 (2) A policy framework that applies to a staff member of a health 12 service provider is binding on the staff member and the health 13 service provider. 14 Division 3 -- Department CEO directions 15 28. Department CEO may issue directions 16 (1) The Department CEO may issue a direction requiring 17 compliance in relation to -- 18 (a) a matter set out in a policy framework; or 19 (b) any other matter in connection with the functions of the 20 Department CEO under this Act in respect of which the 21 Department CEO considers it necessary or desirable to 22 issue directions. 23 (2) A Department CEO direction under subsection (1)(a) may apply 24 to any person or body to which the policy framework applies. 25 (3) A Department CEO direction under subsection (1)(b) may apply 26 to any person or body in relation to which the Department CEO 27 performs or exercises functions. page 24 Health Services Bill 2016 The Department CEO Part 3 Department CEO directions Division 3 s. 29 1 29. Relationship between Department CEO direction and other 2 instruments and directions 3 (1) In this section -- 4 Department CEO direction includes a decision made in the 5 exercise of a discretion under the direction; 6 industrial instrument means an award, industrial agreement or 7 order made under the Industrial Relations Act 1979, including a 8 General Order made under section 50 of that Act. 9 (2) A Department CEO direction does not override -- 10 (a) an industrial instrument; or 11 (b) a Commissioner's instruction under the PSM Act; or 12 (c) a direction of the Minister under section 60; or 13 (d) any other prescribed instrument. 14 (3) If a Department CEO direction is inconsistent with a direction 15 of a responsible authority given to a chief executive under the 16 PSM Act section 32, the Department CEO direction prevails 17 over the responsible authority's direction. 18 30. Department CEO direction is binding 19 (1) A Department CEO direction is binding on each person or body 20 to which it applies. 21 (2) A Department CEO direction that applies to a staff member of a 22 health service provider is binding on the staff member and the 23 health service provider. 24 31. Department CEO direction must be given to chief executive 25 and to board 26 The Department CEO must give a Department CEO direction 27 to -- 28 (a) each person or body to which it applies; and 29 (b) the board of any board governed provider to which it 30 relates or applies; and page 25 Health Services Bill 2016 Part 3 The Department CEO Division 3 Department CEO directions s. 31 1 (c) the chief executive of any chief executive governed 2 provider to which it relates or applies. page 26 Health Services Bill 2016 Health service providers Part 4 Establishment Division 1 s. 32 1 Part 4 -- Health service providers 2 Division 1 -- Establishment 3 32. Establishment of health service provider 4 (1) The Minister may, by order published in the Gazette -- 5 (a) declare any one or more of the following to be a health 6 service area -- 7 (i) a part of the State; 8 (ii) a public hospital; 9 (iii) a public health service facility; 10 (iv) a public health service; 11 and 12 (b) establish a health service provider for the health service 13 area; and 14 (c) assign a corporate name to the health service provider; 15 and 16 (d) specify whether the health service provider is to be a 17 board governed provider or a chief executive governed 18 provider. 19 (2) A health service provider is a body corporate with perpetual 20 succession. 21 (3) Proceedings may be taken by or against a health service 22 provider in its corporate name. 23 33. Status of health service provider 24 A health service provider is an agent of the State and has the 25 status, immunities and privileges of the State. page 27 Health Services Bill 2016 Part 4 Health service providers Division 2 Functions and powers s. 34 1 Division 2 -- Functions and powers 2 34. Functions 3 (1) A health service provider's main function is to provide -- 4 (a) health services stated in the service agreements for the 5 health service provider; and 6 (b) teaching, training and research that supports the 7 provision of health services as agreed with the 8 Department CEO; and 9 (c) any other services agreed with the Department CEO. 10 (2) A health service provider also has the following functions -- 11 (a) to ensure the operations of the health service provider 12 are carried out efficiently, effectively and economically; 13 (b) to enter into, and comply with, service agreements with 14 the Department CEO and, if appropriate, with the 15 Commission CEO; 16 (c) to comply with the policy frameworks and Department 17 CEO directions that apply or relate to the health service 18 provider; 19 (d) to contribute to the development of, and implement, WA 20 health system-wide plans that apply to the health service 21 provider and undertake further service planning that 22 aligns with the WA health system-wide plans; 23 (e) to prepare and keep under review strategies -- 24 (i) for the provision of health services by the health 25 service provider; and 26 (ii) to promote consultation with health professionals 27 working in the health service provider; and 28 (iii) to promote consultation with health consumers 29 and community members about the provision of 30 health services by the health service provider; 31 (f) to report to the Department CEO on the provision of 32 health services by the health service provider; page 28 Health Services Bill 2016 Health service providers Part 4 Functions and powers Division 2 s. 34 1 (g) to monitor and improve the quality of health services 2 provided by the health service provider; 3 (h) to develop and implement corporate and clinical 4 governance arrangements for the health service 5 provider; 6 (i) to maintain land, buildings and other assets controlled 7 and managed by the health service provider; 8 (j) to cooperate with other providers of health services, 9 including providers of primary health care, in planning 10 for, and providing, health services; 11 (k) subject to any Department CEO direction and the State 12 Supply Commission Act 1991, to arrange for the 13 provision of health services by contracted health 14 entities; 15 (l) to manage the performance of the health service 16 provider against the performance measures and 17 operational targets stated in the service agreements; 18 (m) to provide performance data, other data and any other 19 information the Department CEO may require to the 20 Department CEO; 21 (n) other functions imposed under this Act or another 22 written law; 23 (o) other functions necessary or incidental to the functions 24 mentioned in paragraphs (a) to (n). 25 (3) In subsection (2)(h) -- 26 clinical governance arrangements means policies, processes 27 and systems for maintaining and improving -- 28 (a) patient safety, quality and care; and 29 (b) the effectiveness and dependability of services provided 30 by a health service provider. page 29 Health Services Bill 2016 Part 4 Health service providers Division 2 Functions and powers s. 35 1 35. Commercial activities 2 (1) A health service provider may earn revenue by engaging in 3 commercial activities that are not inconsistent with, and do not 4 have an adverse effect on, the performance of its other 5 functions. 6 (2) Without limiting subsection (1), a hospital service provider may 7 provide any facility under its control or management for the use 8 of a health professional to carry out a health service or other 9 service. 10 (3) The provision of a facility under subsection (2) may be on such 11 terms and conditions, including the payment of charges, as the 12 health service provider determines from time to time. 13 (4) When engaging, or proposing to engage, in a commercial 14 activity, a health service provider must ensure that -- 15 (a) the activity is consistent with its service agreements and 16 any relevant policy framework; and 17 (b) the activity is likely to be of benefit to the WA health 18 system. 19 (5) A health service provider may perform its functions under this 20 section in the State or elsewhere. 21 (6) A health service provider is taken to be expressly authorised by 22 Parliament for the purposes of the State Trading Concerns 23 Act 1916 section 4(2). 24 36. General powers 25 (1) In this section -- 26 acquire includes taking on lease or licence or in any other 27 manner in which an interest in property may be acquired; 28 business arrangement means a company, a partnership, a trust, 29 a joint venture or an arrangement or agreement for sharing 30 profits; page 30 Health Services Bill 2016 Health service providers Part 4 Functions and powers Division 2 s. 36 1 dispose of includes disposing of by way of a lease or licence or 2 in any other manner in which an interest in property may be 3 disposed of; 4 participate in a business arrangement includes form, promote, 5 establish, enter into, manage, dissolve, wind-up and do anything 6 incidental to the business arrangement. 7 (2) Subject to sections 37 and 38, a health service provider has all 8 the powers it needs to perform its functions. 9 (3) Subject to sections 37 and 38, a health service provider may, for 10 the purpose of performing any of its functions -- 11 (a) acquire, hold, manage, improve, develop or dispose of 12 and otherwise deal in property; 13 (b) enter into a contract or other arrangement, including a 14 contract or arrangement for the provision of services to 15 the health service provider; 16 (c) participate in any business arrangement and acquire, 17 hold and dispose of, shares, units, or other interests in, 18 or relating to a business arrangement; 19 (d) produce and publish information on matters relating to 20 its functions, including results for research and 21 development undertaken by the health service provider, 22 alone or collaboratively; 23 (e) produce and deal in any equipment, facilities or system 24 associated with the performance of its functions; 25 (f) develop and turn to account any technology, software or 26 other intellectual property that relates to its functions 27 and, for that purpose, apply for, hold, exploit and 28 dispose of any patent, patent rights, copyright or similar 29 rights; 30 (g) sell advertising opportunities and enter into 31 arrangements for sponsorship; 32 (h) use its expertise and resources to provide consultancy, 33 advisory or other services for profit. page 31 Health Services Bill 2016 Part 4 Health service providers Division 2 Functions and powers s. 37 1 (4) Subsection (3) does not limit subsection (2) or any of the health 2 service provider's other powers. 3 (5) The health service provider may -- 4 (a) make any gift for a charitable purpose or any other 5 purpose of benefit to the community or a section of the 6 community; or 7 (b) make any ex gratia payment that it considers to be in the 8 health service provider's interest; or 9 (c) accept any gift, bequest or other payment if it is 10 absolute, or subject to conditions that the health service 11 provider would be able to satisfy. 12 37. Restrictions on power to dispose of land 13 (1) In this section -- 14 health service land means -- 15 (a) land vested in a health service provider under this Act; 16 or 17 (b) land acquired by a health service provider. 18 (2) The power of a health service provider to dispose of land does 19 not extend to the transfer of Crown land for an estate in fee 20 simple. 21 (3) A health service provider must have the Minister's written 22 agreement before it disposes of health service land. 23 38. Transactions that require agreement or approval 24 (1) In this section -- 25 health service provider's liability means the amount or value of 26 the consideration or the amount to be paid or received by the 27 health service provider, ascertained as at the time when the 28 transaction is entered into; page 32 Health Services Bill 2016 Health service providers Part 4 Functions and powers Division 2 s. 39 1 transaction means -- 2 (a) the exercise of a power conferred by section 36(3)(c) in 3 relation to a business arrangement; or 4 (b) a transaction for which the health service provider's 5 liability exceeds the prescribed amount. 6 (2) An amount for the purpose of paragraph (b) of the definition of 7 transaction in subsection (1) may be prescribed by regulations 8 made on the recommendation of the Treasurer. 9 (3) Despite section 36, a health service provider must have the 10 Minister's written agreement before it enters into a transaction 11 that is not exempt under section 39. 12 (4) The Minister must obtain the Treasurer's approval before giving 13 a written agreement under subsection (3). 14 39. Exemptions from section 38 15 (1) The Minister, with the Treasurer's agreement, may by order 16 exempt a transaction or class of transaction from the operation 17 of section 38(3). 18 (2) An exemption may be unconditional or on specified conditions. 19 (3) An order under subsection (1) may be revoked or amended by 20 the Minister with the Treasurer's agreement. 21 (4) An order under subsection (1) or (3) must show sufficient 22 particulars of the transaction or class of transaction to which it 23 relates to enable the transaction or class to be identified. 24 40. Delegation 25 (1) A health service provider may delegate any function of the 26 health service provider under another provision of this Act to -- 27 (a) a member of the health service provider's board; or 28 (b) a committee; or 29 (c) a staff member of the health service provider. page 33 Health Services Bill 2016 Part 4 Health service providers Division 2 Functions and powers s. 41 1 (2) The delegation must be in writing executed by the health service 2 provider. 3 (3) A person or committee to whom a function is delegated under 4 this section cannot delegate that function. 5 (4) A person or committee exercising or performing a function that 6 has been delegated to the person or committee under this section 7 is to be taken to do so in accordance with the terms of the 8 delegation unless the contrary is shown. 9 (5) This section does not limit the ability of a health service 10 provider to perform a function through an officer or agent. 11 41. Execution of documents by health service provider 12 (1) A health service provider must have a common seal. 13 (2) A document is duly executed by a board governed provider if -- 14 (a) the common seal of the provider is affixed to it in 15 accordance with subsections (4) and (5); or 16 (b) it is signed on behalf of the provider by a person or 17 persons authorised to do so under subsection (7). 18 (3) A document is duly executed by a chief executive governed 19 provider if -- 20 (a) the common seal of the provider is affixed to it in 21 accordance with subsections (4) and (6); or 22 (b) it is signed on behalf of the provider by a person or 23 persons authorised to do so under subsection (8). 24 (4) The common seal of a health service provider must not be 25 affixed to any document except as authorised by the health 26 service provider. 27 (5) The common seal of a board governed provider must be affixed 28 to a document in the presence of the chairperson of the board 29 and another member of the board, or the chairperson and a 30 person employed in the provider, and each of them must sign 31 the document to attest that the common seal was so affixed. page 34 Health Services Bill 2016 Health service providers Part 4 Functions and powers Division 2 s. 41 1 (6) The common seal of a chief executive governed provider must 2 be affixed to a document in the presence of the chief executive, 3 and the chief executive must sign the document to attest that the 4 common seal was so affixed. 5 (7) A board governed provider may, by writing under its seal, 6 authorise a member or members of its board or an employee or 7 employees in the provider to execute deeds or other documents 8 on its behalf, either generally or subject to such conditions or 9 restrictions specified in the authorisation. 10 (8) A chief executive governed provider may, by writing under its 11 common seal, authorise an employee or employees in the 12 provider to execute deeds or other documents on its behalf, 13 either generally or subject to such conditions or restrictions 14 specified in the authorisation. 15 (9) A document purporting to be executed in accordance with this 16 section is to be presumed to be duly executed unless the 17 contrary is shown. 18 (10) A document executed by a person under this section without the 19 common seal of the health service provider is not to be regarded 20 as a deed unless it is executed as a deed as authorised under 21 subsection (7) or (8). 22 (11) When a document is produced bearing a seal purporting to be 23 the common seal of a health service provider, it must be 24 presumed that the seal is the common seal of the health service 25 provider unless the contrary is shown. 26 (12) For the purposes of this Act, a facsimile of any of the following 27 may be used -- 28 (a) a health service provider's common seal; 29 (b) the signature of a member of a health service provider; 30 (c) the signature of a person authorised under subsection (7) 31 or (8) to execute deeds or other documents. page 35 Health Services Bill 2016 Part 4 Health service providers Division 2 Functions and powers s. 42 1 (13) A deed or document purporting to be endorsed with a facsimile 2 mentioned in subsection (12) must be regarded as bearing the 3 facsimile under that subsection unless the contrary is shown. 4 42. Contract formalities 5 (1) Insofar as the formalities of making, varying or discharging a 6 contract are concerned, a person acting as authorised by a health 7 service provider may make, vary or discharge a contract in the 8 name of or on behalf of the health service provider in the same 9 manner as if that contract were made, varied or discharged by a 10 natural person. 11 (2) The making or variation of a contract in accordance with 12 subsection (1) is effectual in law and binds the health service 13 provider and other parties to the contract. 14 (3) Subsection (1) does not prevent a health service provider from 15 making, varying or discharging the contract under its common 16 seal. page 36 Health Services Bill 2016 Service agreements Part 5 Preliminary Division 1 s. 43 1 Part 5 -- Service agreements 2 Division 1 -- Preliminary 3 43. Terms used 4 In this Part -- 5 alcohol and drug health service means assessment, treatment, 6 management, care or rehabilitation of persons experiencing 7 alcohol or other drug use problems or co-occurring health 8 issues; 9 alcohol and drug health service provider means a health 10 service provider, but only to the extent that the health service 11 provider provides an alcohol and drug health service; 12 Commission CEO means the chief executive officer of the 13 department of the Public Service principally assisting the 14 Minister in the administration of the Mental Health Act 2014 15 and the Alcohol and Other Drugs Act 1974; 16 Commission health service means -- 17 (a) a mental health service; or 18 (b) an alcohol and drug health service; 19 Commission service agreement means an agreement entered 20 into under section 45(1) or (2); 21 mental health service means treatment or care provided to 22 people who have or may have a mental illness; 23 mental health service provider means a health service provider, 24 but only to the extent that the health service provider provides a 25 mental health service; 26 mental illness has the meaning given in the Mental Health 27 Act 2014 section 6; 28 service agreement means -- 29 (a) an agreement entered into under section 46(2); or 30 (b) a Commission service agreement. page 37 Health Services Bill 2016 Part 5 Service agreements Division 2 Commission service agreements s. 44 1 Division 2 -- Commission service agreements 2 44. Head agreement between Department CEO and 3 Commission CEO 4 (1) The Department CEO may enter into an agreement (a head 5 agreement) with the Commission CEO concerning the making 6 of Commission service agreements during the period to which 7 the head agreement relates. 8 (2) The head agreement must state -- 9 (a) the system-wide funding caps and performance 10 standards that apply to the provision of Commission 11 health services; and 12 (b) the role, responsibilities and accountability of the 13 Department CEO in relation to the provision of 14 Commission health services; and 15 (c) the role, responsibilities and accountability of the 16 Commission CEO as a purchaser of Commission health 17 services; and 18 (d) the action to be taken if the terms of a Commission 19 service agreement are not agreed. 20 (3) The Commission CEO and health service providers must give 21 effect to the head agreement when entering into or amending a 22 Commission service agreement. 23 45. Commission CEO and health service provider may enter 24 into service agreement 25 (1) The Commission CEO and a mental health service provider may 26 enter into a service agreement for the provision of mental health 27 services by the mental health service provider. 28 (2) The Commission CEO and an alcohol and drug health service 29 provider may enter into a service agreement for the provision of 30 alcohol and drug health services by the alcohol and drug health 31 service provider. page 38 Health Services Bill 2016 Service agreements Part 5 Service agreements generally Division 3 s. 46 1 (3) The service agreement must state the following -- 2 (a) the mental health services or alcohol and drug health 3 services (the services) to be provided to the State by the 4 mental health service provider or alcohol and drug 5 health service provider (the provider); 6 (b) the teaching, training and research in support of the 7 provision of the services to be provided by the provider; 8 (c) the funding to be provided to the provider for the 9 provision of the services, including the way in which the 10 funding is to be provided; 11 (d) the performance measures and operational targets for the 12 provision of the services by the provider; 13 (e) how the evaluation and review of results in relation to 14 the performance measures and operational targets is to 15 be carried out; 16 (f) the performance data and other data to be provided by 17 the provider to the Commission CEO and the 18 Department CEO, including how, and how often, the 19 data is to be provided; 20 (g) any other matter the Commission CEO considers 21 relevant to the provision of the services by the provider. 22 (4) A Commission service agreement is binding on the Commission 23 CEO and the provider. 24 Division 3 -- Service agreements generally 25 46. Department CEO and health service provider must enter 26 into service agreement 27 (1) This section does not apply in relation to the provision of 28 Commission health services by a health service provider to the 29 extent that a Commission service agreement is in effect in 30 respect of those services. page 39 Health Services Bill 2016 Part 5 Service agreements Division 3 Service agreements generally s. 47 1 (2) The Department CEO and a health service provider must enter 2 into a service agreement for the provision of health services by 3 the health service provider. 4 (3) The service agreement must state the following -- 5 (a) the health services to be provided to the State by the 6 health service provider; 7 (b) the teaching, training and research in support of the 8 provision of health services to be provided; 9 (c) the funding to be provided to the health service provider 10 for the provision of the services, including the way in 11 which the funding is to be provided; 12 (d) the performance measures and operational targets for the 13 provision of the services by the health service provider; 14 (e) how the evaluation and review of results in relation to 15 the performance measures and operational targets is to 16 be carried out; 17 (f) the performance data and other data to be provided by 18 the health service provider to the Department CEO, 19 including how, and how often, the data is to be 20 provided; 21 (g) any other matter the Department CEO considers relevant 22 to the provision of the services by the health service 23 provider. 24 (4) A service agreement entered into under subsection (2) is binding 25 on the Department CEO and the health service provider. 26 47. Department CEO may decide on terms of service agreement 27 (1) This section applies if the Department CEO and a health service 28 provider cannot agree on some or all of the terms of a service 29 agreement that is not a Commission service agreement -- 30 (a) for the first agreement after the health service provider is 31 established -- by a prescribed date; or page 40 Health Services Bill 2016 Service agreements Part 5 Service agreements generally Division 3 s. 48 1 (b) for a service agreement that is to replace an existing 2 service agreement -- at least one month before the 3 expiry of the existing agreement. 4 (2) If the Department CEO and the health service provider cannot 5 agree on a term of a service agreement, the Department CEO 6 must decide the term and advise the health service provider of 7 the decision. 8 (3) A term decided under this section by the Department CEO must 9 be included in the service agreement. 10 48. General provisions about service agreements 11 (1) Without limiting section 45(3) or 46(3), a service agreement 12 may -- 13 (a) deal with the matters stated in section 45(3) or 46(3) 14 relating to funding provided by the Commonwealth, 15 without the Commonwealth being a party to the 16 agreement; and 17 (b) state the circumstances in which the health service 18 provider (the first provider) may agree with another 19 health service provider to provide services for the first 20 provider. 21 (2) A health service provider is authorised to enter into an 22 agreement with the first provider to provide services to the first 23 provider in the circumstances stated in the relevant service 24 agreement. 25 (3) Negotiations for a service agreement that is not a Commission 26 service agreement must be conducted in accordance with the 27 relevant policy framework. 28 (4) Negotiations for a Commission service agreement must be 29 conducted in accordance with the head agreement referred to in 30 section 44. page 41 Health Services Bill 2016 Part 5 Service agreements Division 3 Service agreements generally s. 49 1 49. Term of service agreement 2 (1) A service agreement must be for a term of not longer than 3 one year. 4 (2) A service agreement that is not a Commission service 5 agreement must cover the forecast period set out in the relevant 6 policy framework. 7 50. Procedure to amend service agreement 8 (1) If a party to a service agreement wants to amend the terms of a 9 service agreement, the party that wants to amend the agreement 10 must give written notice of the proposed amendment to the 11 other party. 12 (2) If the parties cannot agree on a term of the amendment, the 13 Department CEO or Commission CEO, as the case requires, 14 must decide the term and advise the health service provider of 15 the decision. 16 (3) A term decided under this section by the Department CEO or 17 Commission CEO must be included in the service agreement. 18 51. Service agreement may provide for Department CEO to 19 carry out specified functions 20 (1) A service agreement may provide that the Department CEO, 21 through the Department, will perform functions of the health 22 service provider that are specified in the agreement for a period 23 specified in the agreement (the transfer period). 24 (2) Despite any other provision of this Act or any other written law, 25 during the transfer period -- 26 (a) the Department CEO may perform the functions 27 mentioned in subsection (1) as if the Department CEO 28 were the health service provider; and 29 (b) the health service provider is not required to perform the 30 functions mentioned in subsection (1). page 42 Health Services Bill 2016 Service agreements Part 5 Service agreements generally Division 3 s. 52 1 (3) The Department CEO has power to do all things that are 2 necessary or convenient to be done for or in connection with the 3 performance of the functions mentioned in subsection (1) during 4 the transfer period. 5 52. Review and report on service agreements 6 (1) A health service provider must report the results of the service 7 provider's performance under a service agreement during the 8 year covered by the service agreement within 3 months after the 9 end of that year. 10 (2) The report must be given to the Department CEO and, if the 11 report relates to a Commission service agreement, to the 12 Commission CEO. 13 (3) The Department CEO and Commission CEO, if the case 14 requires, must evaluate and review the results of the health 15 service provider's performance under a service agreement for 16 each year covered by a service agreement. 17 53. Other agreements for provision of services 18 Nothing in this Part limits the power of a health service provider 19 to enter into an agreement to provide services under section 35 20 or 36. page 43 Health Services Bill 2016 Part 6 Fees and charges for health services and other matters s. 54 1 Part 6 -- Fees and charges for health services and 2 other matters 3 54. Effect of National Health Agreement 4 In performing or exercising any function under this Part, the 5 Minister and health service providers must have regard to the 6 National Health Agreement. 7 55. Fees and charges for the provision of health services 8 (1) In this section -- 9 non-chargeable health service means -- 10 (a) a health service provided to a person in respect of which 11 it has been agreed under the National Health Agreement 12 that the person is not to be charged, but only if the 13 Agreement is in force at the time the service is provided; 14 and 15 (b) a health service in respect of which the Minister has 16 made an order under section 56(2)(b), but only if the 17 order is in force at the time the service is provided. 18 (2) Except as provided in subsection (5), a health service provider 19 may impose a fee or charge for the provision of a health service 20 by the health service provider. 21 (3) A health service provider may determine the amount of the fee 22 or charge for a health service it provides if -- 23 (a) a fee or charge for the provision of a health service has 24 not been fixed in a scale under section 56; and 25 (b) the health service is not a non-chargeable health service. 26 (4) If a fee or charge for the provision of a health service has been 27 fixed in a scale under section 56, the fee or charge imposed by 28 the health service provider must not exceed the fee or charge 29 fixed in the scale. page 44 Health Services Bill 2016 Fees and charges for health services and other matters Part 6 s. 56 1 (5) A health service provider does not have the authority to charge 2 fees for the provision of non-chargeable health services. 3 56. Minister may fix fees and charges 4 (1) In this section -- 5 specified means specified in the order. 6 (2) The Minister may, by order published in the Gazette -- 7 (a) fix a scale of fees and charges for the provision of health 8 services by health service providers; and 9 (b) provide that no fees or charges are payable in respect 10 of -- 11 (i) a specified health service or class of health 12 service; or 13 (ii) a health service rendered to a specified class of 14 patient; or 15 (iii) a health service in respect of any specified public 16 hospital or class of public hospital. 17 (3) The Minister may amend or revoke an order made under 18 subsection (2). 19 (4) The order may adopt by reference any scale of fees or charges 20 (as in force at a particular time or as in force from time to time) 21 fixed or determined by a Commonwealth authority or body. 22 (5) An adoption under subsection (4) may be wholly or in part and 23 with or without modification. 24 (6) The order may -- 25 (a) define classes of patient and classes of service; and 26 (b) adopt for the purposes of referring to a class of patient 27 or class of service any definition in any law of the 28 Commonwealth; and 29 (c) discriminate between classes of patient and classes of 30 service and according to the circumstances in which a page 45 Health Services Bill 2016 Part 6 Fees and charges for health services and other matters s. 57 1 service is provided and in respect of the class of patient 2 to whom it is provided; and 3 (d) fix different fees and charges according to the public 4 hospital or class of public hospital in which or on behalf 5 of which a service or class of service is provided; and 6 (e) provide that the charges for any health services provided 7 in respect of any specified class of patient at or by a 8 public hospital are to be of an amount determined by the 9 Minister or another specified person according to the 10 cost of providing the health service. 11 (7) An order made under subsection (2) is subsidiary legislation for 12 the purposes of the Interpretation Act 1984. 13 (8) The Interpretation Act 1984 section 42 applies to an order made 14 under subsection (2) as if the order were a regulation. 15 57. Liability of persons for health service fees and charges 16 (1) A fee or charge imposed under section 55 is payable by or on 17 behalf of the person who received the health service. 18 (2) A health service provider may waive, or refund, the whole or 19 any part of a fee or charge. 20 58. Regulations about payment by compensable persons 21 (1) In this section -- 22 claimant, in relation to compensation, means the person seeking 23 compensation either on the person's own behalf or on behalf of 24 another person; 25 compensable person means -- 26 (a) an individual who is entitled to receive or has received a 27 compensation payment in respect of an injury; or 28 (b) if the individual has died -- the individual's estate; 29 compensation has the meaning given by the regulations; 30 injury includes an illness or disease. page 46 Health Services Bill 2016 Fees and charges for health services and other matters Part 6 s. 58 1 (2) The regulations may -- 2 (a) specify the circumstances in which payment for the 3 provision of health services by a health service provider 4 may be recovered by the health service provider from 5 compensation paid or payable to a compensable person; 6 and 7 (b) specify the manner in which the payment is to be 8 apportioned if -- 9 (i) liability for the injury is apportioned in a 10 judgment or settlement; or 11 (ii) a component of the compensation is specified to 12 be for expenses that have already been incurred; 13 and 14 (c) require the chief executive of the health service provider 15 to give notice to prescribed persons of the intention to 16 recover the payment; and 17 (d) require prescribed persons to give information to the 18 chief executive of the health service provider about 19 matters related to the claim for compensation and the 20 health services that have been provided to the claimant; 21 and 22 (e) specify the manner in which it is to be determined 23 whether or not a health service was provided in the 24 course of treatment of, or as a result of, the injury the 25 claimant claims to have suffered; and 26 (f) provide for the recovery of the payment from the 27 claimant, or insurers or other compensation payers; and 28 (g) provide for the recovery of payments that are not made 29 in accordance with the regulations. 30 (3) The regulations may apply irrespective of whether the health 31 services were provided before or after it is determined that the 32 person to whom the health services were provided is a 33 compensable person. page 47 Health Services Bill 2016 Part 6 Fees and charges for health services and other matters s. 59 1 (4) A reference in this section, or regulations made under this 2 section, to a person receiving a compensation payment includes 3 a reference to another person receiving it on behalf of, or at the 4 direction of, the first person. 5 (5) If a claimant is seeking compensation on behalf of another 6 person -- 7 (a) references in this section, or regulations made under this 8 section, to health services provided to the claimant are 9 taken to be references to health services provided to the 10 individual who is claimed to have suffered the injury; 11 and 12 (b) references in this section, or regulations made under this 13 section, to the claimant's injury are taken to be 14 references to the injury in question. 15 59. Fees and charges for other services, goods and facilities 16 (1) Subject to subsection (2), a health service provider may 17 determine, impose and collect a fee or charge for -- 18 (a) the provision of services other than health services; 19 (b) the provision or use of goods and materials other than 20 goods and materials that are part of a health service; 21 (c) the use of facilities other than facilities that are part of a 22 health service. 23 (2) If a fee or charge is prescribed under section 230(2)(c) in 24 respect of a matter referred to in subsection (1)(a), (b) or (c) 25 (including in relation to a matter referred to in 26 section 210(3)(b)(i)), a health service provider cannot impose a 27 fee or charge that differs from the prescribed fee or charge. 28 (3) Nothing in this section limits the powers of a health service 29 provider to enter into an agreement to provide services, goods or 30 facilities under section 35 or 36. page 48 Health Services Bill 2016 Accountability and financial provisions Part 7 Accountability Division 1 s. 60 1 Part 7 -- Accountability and financial provisions 2 Division 1 -- Accountability 3 60. Minister may give directions 4 (1) Subject to subsection (2), the Minister may give written 5 directions to a health service provider with respect to the 6 performance or exercise of its functions, either generally or in 7 relation to a particular matter, and the health service provider 8 must give effect to the direction. 9 (2) A direction given under this section cannot be -- 10 (a) about the nature of a health service to be provided to a 11 particular person; or 12 (b) in any other way in respect of a particular person. 13 (3) The health service provider must comply with a direction given 14 under this section. 15 (4) The text of a direction given under subsection (1) must -- 16 (a) be laid before each House of Parliament, or dealt with 17 under section 229, within 14 days after the direction is 18 given; and 19 (b) be included in the annual report submitted by the 20 accountable authority in respect of the health service 21 provider under the Financial Management Act 2006 22 Part 5. 23 61. Minister to have access to information 24 (1) In this section -- 25 document includes any tape, disk or other device or medium on 26 which information is recorded or stored; 27 information means information specified, or of a description 28 specified, by the Minister that relates to the functions of a health 29 service provider. page 49 Health Services Bill 2016 Part 7 Accountability and financial provisions Division 1 Accountability s. 61 1 (2) The Minister is entitled -- 2 (a) to have information in the possession of a health service 3 provider; and 4 (b) if the information is in or on a document, to have, and 5 make and retain copies of, that document. 6 (3) For the purposes of subsection (2), the Minister may -- 7 (a) request the health service provider to furnish 8 information to the Minister; and 9 (b) request the health service provider to give the Minister 10 access to information; and 11 (c) for the purposes of paragraph (b) make use of the 12 employees in the health service provider to obtain the 13 information and furnish it to the Minister. 14 (4) The health service provider must comply with a request under 15 subsection (3) and make employees and facilities available to 16 the Minister for the purposes of subsection (3)(c). 17 (5) This section does not entitle the Minister to have personal 18 information unless -- 19 (a) disclosure of the information is required by some other 20 written law; or 21 (b) the information is about an individual who consents to 22 the Minister having the information; or 23 (c) the information is for the purpose of enabling or 24 assisting the Minister to respond to or deal with a 25 complaint or query made by the individual; or 26 (d) the information is for the purpose of enabling or 27 assisting the Minister to -- 28 (i) prepare for, answer, respond to or deal with a 29 question asked or matter raised by a member of 30 Parliament, whether in a House of Parliament or 31 otherwise; or page 50 Health Services Bill 2016 Accountability and financial provisions Part 7 Financial provisions Division 2 s. 62 1 (ii) comply with a written law, or an order or 2 resolution of a House of Parliament, that requires 3 information to be furnished to a House of 4 Parliament. 5 Division 2 -- Financial provisions 6 62. Application of Financial Management Act 2006 and Auditor 7 General Act 2006 8 (1) Except as provided in subsection (2), the provisions of the 9 Financial Management Act 2006 and the Auditor General 10 Act 2006 regulating the financial administration, audit and 11 reporting of statutory authorities apply to and in respect of 12 health service providers and their operations. 13 (2) The Financial Management Act 2006 section 36(3) does not 14 apply to money that comes into the possession of or under the 15 control of a person employed in a health service provider in 16 prescribed circumstances if the amount of the money is less than 17 the amount approved under subsection (3). 18 (3) The Minister may, with the consent of the Treasurer, approve an 19 amount for the purposes of subsection (2). 20 63. Health funding arrangements under the National Health 21 Agreement 22 The National Health Funding Pool Act 2012 contains 23 provisions relating to health funding arrangements. 24 64. Health service provider account 25 (1) An account called the (name of health service provider) 26 Account is to be established as an agency special purpose 27 account under the Financial Management Act 2006 section 16 28 for each health service provider. page 51 Health Services Bill 2016 Part 7 Accountability and financial provisions Division 2 Financial provisions s. 65 1 (2) Money received by the health service provider is to be credited 2 to, and money paid by the health service provider is to be 3 debited to, the Account. 4 (3) Subsection (2) does not apply in respect of money for specific 5 purposes or held on trust that the health service provider is 6 obliged to credit to a separate agency special purpose account 7 established under the Financial Management Act 2006 8 section 16. 9 65. Health service provider's funds 10 (1) Subject to subsection (2), the funds available for the purpose of 11 enabling a health service provider to perform or exercise its 12 functions under this or any other Act consist of money that is, 13 under this Act or any other Act, lawfully received by or made 14 available to, the health service provider. 15 (2) Where any money has been accepted by the health service 16 provider upon trust or lawful condition, the health service 17 provider must apply the money in accordance with the trust or 18 condition and is authorised by this section to do so. 19 66. Notice of financial difficulty 20 (1) If the board of a board governed provider or the chief executive 21 of a chief executive governed provider forms the opinion that 22 the health service provider is unable to, or will be unlikely to be 23 able to, satisfy any of its financial obligations from the financial 24 resources available or likely to be available to it at the time the 25 financial obligation is due, the board or chief executive must 26 notify the Department CEO. 27 (2) The notice must be in writing, giving reasons for the opinion of 28 the board or chief executive. 29 (3) The Department CEO must forward the notice to the Minister. page 52 Health Services Bill 2016 Accountability and financial provisions Part 7 Financial provisions Division 2 s. 67 1 (4) Within 7 days of receipt of the notice, the Minister must -- 2 (a) confer with the Treasurer and the health service provider 3 for the purpose of determining what action is required to 4 ensure that the health service provider is able to satisfy 5 the relevant financial obligation when it is due; and 6 (b) initiate such action as is required to ensure that the 7 health service provider is able to satisfy the relevant 8 financial obligation when it is due. 9 (5) For the purposes of subsection (4) the Minister may give the 10 health service provider a direction under section 60 requiring 11 the health service provider to cease or limit the performance or 12 exercise of any function. 13 67. Department CEO's power to require financial information 14 (1) The Department CEO may direct the accountable authority or 15 an employee in a health service provider to provide the 16 Department CEO with any information relating to the financial 17 management of the health service provider that the Department 18 CEO thinks necessary for the purposes of this Act. 19 (2) An accountable authority or employee given a direction under 20 subsection (1) must provide the information to the Department 21 CEO within the period and in the manner and form directed by 22 the Department CEO. 23 68. Various documents exempt from duty 24 The following documents are exempt from duty under the 25 Duties Act 2008 -- 26 (a) receipts given by and on behalf of the Department or a 27 health service provider in relation to a public hospital; 28 (b) declarations required or authorised under this Act in 29 relation to a public hospital; 30 (c) agreements entered into under this Act in relation to a 31 public hospital. page 53 Health Services Bill 2016 Part 7 Accountability and financial provisions Division 2 Financial provisions s. 69 1 69. Local governments may fund health services 2 (1) In this section -- 3 medical practitioner means a person registered under the 4 Health Practitioner Regulation National Law (Western 5 Australia) in the medical profession. 6 (2) A local government has power to expend and apply, or to enter 7 into an agreement to expend and apply, a portion of its general 8 rates for any of the following -- 9 (a) in subsidising health services; 10 (b) in or towards the construction or acquisition, 11 establishment, and maintenance of premises for the 12 provision of health services; 13 (c) in subsidising a district nursing scheme; 14 (d) in contributing towards a subsidy or providing a subsidy 15 to secure the services of a medical practitioner. 16 (3) Despite subsection (2) -- 17 (a) the maximum portion of the general rates to be 18 expended or applied under that subsection is 10% of the 19 average annual amount received by the local 20 government from general rates during the last 2 financial 21 years preceding the year in which the amount is 22 expended or applied; and 23 (b) an agreement under that subsection is not valid if it 24 purports to bind the local government to expend or 25 apply in any year a sum exceeding 10% of the average 26 annual amount received by it from general rates during 27 the last 2 financial years preceding the year in which the 28 undertaking was given. 29 (4) The term of an agreement entered into for the purposes of 30 subsection (2) must not exceed 5 years. page 54 Health Services Bill 2016 Accountability and financial provisions Part 7 Financial provisions Division 2 s. 69 1 (5) An agreement entered into for the purposes of subsection (2) 2 may be renewed during the last year of the agreement (with or 3 without modification) for a term not exceeding 5 years. 4 (6) A local government is authorised to borrow money for the 5 construction, enlargement, improvement, and equipment of a 6 hospital within the area of the local government. 7 (7) The provisions of the Local Government Act 1995 relating to 8 the borrowing of money apply to the borrowing of money under 9 subsection (6). 10 (8) This section does not prejudice any power vested in a local 11 government by or under any other Act. 12 (9) The powers of a local government vested in it by or under the 13 Local Government Act 1995 are to be taken to be extended to 14 give effect to this section. 15 (10) The local governments of 2 or more districts the boundaries of 16 which are adjacent, may enter into an agreement between 17 themselves and the Minister for the purposes of this section. 18 (11) This section does not apply to or in relation to a public hospital 19 or proposed public hospital unless the Minister has given -- 20 (a) prior approval in relation to the application of this 21 section to or in relation to the public hospital or 22 proposed public hospital; and 23 (b) a valid undertaking to provide at least one-half of the 24 capital costs involved. page 55 Health Services Bill 2016 Part 8 Administration of health service providers Division 1 Governance s. 70 1 Part 8 -- Administration of health service providers 2 Division 1 -- Governance 3 70. Health service provider may be governed by board or chief 4 executive 5 (1) If an order made under section 32(1)(d) specifies that a health 6 service provider is to be a board governed provider -- 7 (a) the health service provider must have a board; and 8 (b) the board -- 9 (i) is the governing body of the health service 10 provider; and 11 (ii) in the name of the health service provider, is to 12 perform or exercise the functions of the health 13 service provider under this Act or any other 14 written law. 15 (2) If an order made under section 32(1)(d) specifies that a health 16 service provider is to be a chief executive governed provider -- 17 (a) the health service provider must not have a board; and 18 (b) the chief executive -- 19 (i) is the governing body of the health service 20 provider; and 21 (ii) in the name of the health service provider, is to 22 perform or exercise the functions of the health 23 service provider under this Act or any other 24 written law. 25 Division 2 -- Boards 26 Subdivision 1 -- Constitution and procedures 27 71. Constitution of health service provider's board 28 (1) A health service provider's board consists of at least 6 but not 29 more than 10 persons appointed as members by the Minister. page 56 Health Services Bill 2016 Administration of health service providers Part 8 Boards Division 2 s. 71 1 (2) Before appointing a member the Minister must seek and have 2 regard to the recommendation of the Department CEO. 3 (3) The Minister must ensure that -- 4 (a) at least 3 members are health professionals, and at least 5 2 of them are practising health professionals; and 6 (b) each other member has a relevant qualification needed 7 to enable the health service provider's functions under 8 this Act to be effectively performed. 9 (4) In subsection (3)(a) -- 10 practising health professional means a person who -- 11 (a) is a health professional registered under the Health 12 Practitioner Regulation National Law (Western 13 Australia), other than as a student; and 14 (b) is currently directly or indirectly providing care or 15 treatment to persons. 16 (5) A relevant qualification for the purposes of subsection (3)(b) is 17 one or more of the following -- 18 (a) expertise and experience in health management, 19 business management, financial management or human 20 resource management; 21 (b) legal expertise; 22 (c) expertise and experience in the provision of clinical or 23 other health services; 24 (d) expertise and experience in primary health care; 25 (e) expertise in the education and training of health 26 professionals; 27 (f) knowledge and experience of the community serviced 28 by the health service provider; 29 (g) any other background, skills, expertise, knowledge or 30 experience that will enable the effective performance of 31 the health service provider's functions. page 57 Health Services Bill 2016 Part 8 Administration of health service providers Division 2 Boards s. 72 1 (6) The following persons are not eligible to be appointed as 2 members of a health service provider's board -- 3 (a) a staff member of the health service provider; 4 (b) an employee in the Department; 5 (c) an employee in the department of the Public Service 6 principally assisting in the administration of the Mental 7 Health Act 2014; 8 (d) an employee in the department of the Public Service 9 principally assisting in the administration of the Alcohol 10 and Other Drugs Act 1974. 11 72. Chairperson and deputy chairperson 12 (1) The Minister must designate -- 13 (a) a member of a board to be the chairperson of the board; 14 and 15 (b) another member to be deputy chairperson of the board. 16 (2) A member of a board may be designated as the chairperson or 17 deputy chairperson at the same time as the person is appointed 18 as a member or at any time after the person is appointed as a 19 member. 20 (3) Subject to this Subdivision, the chairperson or deputy 21 chairperson holds office for the term, ending not later than the 22 term of appointment as a member, stated in the instrument of 23 designation as chairperson or deputy chairperson. 24 (4) A vacancy arises in the office of chairperson or deputy 25 chairperson of a board if the person holding the office -- 26 (a) resigns office by written resignation given to the 27 Minister; or 28 (b) ceases to be a member of the board. 29 (5) A person resigning the office of chairperson or deputy 30 chairperson of a board may continue to be a member of the 31 board. page 58 Health Services Bill 2016 Administration of health service providers Part 8 Boards Division 2 s. 73 1 73. Deputy chairperson acting as chairperson 2 (1) The deputy chairperson of a board must act as chairperson of 3 the board -- 4 (a) during a vacancy in the office of chairperson; and 5 (b) during all periods when the chairperson is absent from 6 duty or for another reason cannot perform the duties of 7 the office. 8 (2) An act or omission of the deputy chairperson acting in the place 9 of the chairperson is not to be questioned on the ground that the 10 occasion for acting had not arisen or had ceased. 11 74. Alternate members 12 (1) In this section -- 13 cause includes -- 14 (a) illness; and 15 (b) absence; and 16 (c) the operation of section 81(1). 17 (2) If a member of a board other than the chairperson is unable for 18 any cause to act as a member, the Minister may appoint another 19 person as an alternate member to act temporarily in the 20 member's place. 21 (3) If the deputy chairperson of a board is unable for any cause to 22 act in the place of the chairperson at a meeting -- 23 (a) the members present may elect one of their number to 24 act as chairperson; and 25 (b) subsection (2) applies as if the member elected were 26 absent from the meeting. 27 (4) While acting in accordance with the appointment the alternate 28 member is to be taken to be, and to have any entitlement of, a 29 member. page 59 Health Services Bill 2016 Part 8 Administration of health service providers Division 2 Boards s. 75 1 (5) An act or omission of an alternate member cannot be questioned 2 on the ground that the occasion for the appointment or acting 3 had not arisen or had ceased. 4 75. Remuneration and allowances 5 A member of a board is entitled to be paid any remuneration 6 and allowances that the Minister may determine on the 7 recommendation of the Public Sector Commissioner. 8 76. Term of office 9 (1) Subject to section 77, a member of a board holds office for the 10 term, not exceeding 3 years, fixed in the member's instrument 11 of appointment. 12 (2) A member is eligible for reappointment but cannot hold office 13 for more than 9 consecutive years. 14 (3) A member of a board whose term of office expires without a 15 person having been appointed to fill the vacancy continues in 16 office until whichever of the following occurs first -- 17 (a) a person is appointed to fill the vacancy; 18 (b) a period of 3 months elapses after the expiry of the term 19 of office. 20 (4) Subsection (3) ceases to apply if the member resigns or is 21 removed from office. 22 77. Casual vacancies 23 (1) In this section -- 24 misconduct includes conduct that renders the member of a 25 board unfit to hold office as a member even though the conduct 26 does not relate to a duty of the office. 27 (2) The office of a member of a board becomes vacant if the 28 member -- 29 (a) dies, resigns or is removed from office under this 30 section; or page 60 Health Services Bill 2016 Administration of health service providers Part 8 Boards Division 2 s. 78 1 (b) is, according to the Interpretation Act 1984 section 13D, 2 a bankrupt or a person whose affairs are under 3 insolvency laws; or 4 (c) is convicted of an offence punishable by imprisonment 5 for more than 12 months; or 6 (d) is convicted of an offence under section 80(1). 7 (3) A member of a board may at any time resign from office by 8 written resignation given to the Minister. 9 (4) The Minister may remove a member of a board from office on 10 the grounds of -- 11 (a) neglect of duty; or 12 (b) misconduct or incompetence; or 13 (c) mental or physical incapacity, other than temporary 14 illness, impairing the performance of the member's 15 duties; or 16 (d) absence, without leave, from 3 consecutive board 17 meetings of which the member has had notice. 18 78. Leave of absence 19 A board may, on any terms and conditions it thinks fit, grant a 20 member of the board leave to be absent from office. 21 Subdivision 2 -- Impartiality and disclosure of material 22 personal interest 23 79. Members must act in public interest 24 (1) A member of a board or committee must act impartially and in 25 the public interest in the exercise of the member's functions as a 26 member. 27 (2) Accordingly a member must put the public interest before the 28 interest of the health service provider. page 61 Health Services Bill 2016 Part 8 Administration of health service providers Division 2 Boards s. 80 1 80. Disclosure of material personal interest 2 (1) A member of a board who has a material personal interest in a 3 matter being considered or about to be considered by the board 4 must, as soon as possible after the relevant facts have come to 5 the member's knowledge, disclose the nature of the interest at a 6 meeting of the board. 7 Penalty for this subsection: a fine of $25 000. 8 (2) A member of a committee who has a material personal interest 9 in a matter being considered or about to be considered by the 10 committee must, as soon as possible after the relevant facts have 11 come to the member's knowledge, disclose the nature of the 12 interest at a committee meeting. 13 Penalty for this subsection: a fine of $25 000. 14 (3) Subsection (2) applies to a person who is a member of the 15 committee and also a member of the board even though the 16 person has already disclosed the nature of the interest at a board 17 meeting. 18 (4) A disclosure under subsection (1) or (2) must be recorded in the 19 minutes of the meeting. 20 81. Voting by interested member 21 (1) A member of a board or a committee who has a material 22 personal interest in a matter being considered or about to be 23 considered by the board or the committee -- 24 (a) must not vote, whether at a meeting or otherwise, on the 25 matter; and 26 (b) must not be present while the matter is being considered 27 at the meeting. 28 (2) A reference in subsection (1)(a) or (b) to a matter includes a 29 reference to a proposed resolution under section 82 in respect of 30 the matter, whether relating to that member or a different 31 member. page 62 Health Services Bill 2016 Administration of health service providers Part 8 Boards Division 2 s. 82 1 82. Section 81 may be declared inapplicable 2 Section 81 does not apply if -- 3 (a) a member has disclosed under section 80 an interest in a 4 matter; and 5 (b) the board or committee, as the case requires, has at any 6 time passed a resolution that -- 7 (i) specifies the member, the interest and the matter; 8 and 9 (ii) states that the members voting for the resolution 10 are satisfied that the interest is so trivial or 11 insignificant as to be unlikely to influence the 12 disclosing member's conduct and should not 13 disqualify the member from considering or 14 voting on the matter. 15 83. Quorum where section 81 applies 16 (1) Despite section 86, if a member of a board is disqualified under 17 section 81 in relation to a matter, a quorum is present during the 18 consideration of the matter if at least half the number of 19 members who are entitled to vote on any motion that may be 20 moved at the meeting in relation to the matter are present. 21 (2) The Department CEO may deal with a matter insofar as the 22 Board cannot deal with it because of subsection (1). 23 84. Minister may declare sections 81 and 83 inapplicable 24 (1) The Minister may by writing declare that section 81 or 83 or 25 both of them do not apply in relation to a specified matter either 26 generally or in voting on particular resolutions. 27 (2) The Minister must cause a copy of the declaration to be laid 28 before each House of Parliament, or dealt with under 29 section 229, within 14 sitting days after the declaration is made. page 63 Health Services Bill 2016 Part 8 Administration of health service providers Division 2 Boards s. 85 1 Subdivision 3 -- Meetings 2 85. Holding meetings 3 (1) The first meeting of a board is to be convened by its chairperson 4 and subsequent meetings, unless convened under subsection (2), 5 are to be held at times and places determined by the board. 6 (2) A special meeting of a board may at any time be convened by 7 its chairperson. 8 86. Quorum 9 A number of members of a board equal to at least half the 10 number of members in office constitutes a quorum of the board. 11 87. Procedure at meetings 12 A board must determine its own meeting procedures to the 13 extent that they are not fixed by this Act. 14 88. Voting 15 (1) At a meeting of a board, each member present has a deliberative 16 vote unless section 81 prevents the member from voting. 17 (2) In the case of an equality of votes, the member presiding has a 18 casting vote in addition to a deliberative vote. 19 (3) A question is resolved according to how a majority of the votes 20 are cast. 21 89. Holding meetings remotely 22 The presence of a person at a meeting of a board need not be by 23 attendance in person but may be by that person and each other 24 person at the meeting being simultaneously in contact by 25 telephone or other means of instantaneous communication. page 64 Health Services Bill 2016 Administration of health service providers Part 8 Boards Division 2 s. 90 1 90. Resolution without meeting 2 A resolution in writing signed or assented to in writing by at 3 least half of the number of members of a board in office has the 4 same effect as if it had been passed at a meeting of the board. 5 91. Minutes 6 A board must cause accurate minutes to be kept of the 7 proceedings at each of its meetings. 8 Subdivision 4 -- Committees 9 92. Committees 10 (1) A board governed provider -- 11 (a) may appoint committees to assist it to perform its 12 functions; and 13 (b) may discharge or alter any committee it has appointed. 14 (2) A committee may include persons who are not members of the 15 board of the health service provider but must include at least 16 one member of the board. 17 (3) A person who is a staff member of a board governed provider is 18 not eligible to be a member of a committee of the board 19 governed provider. 20 (4) A board governed provider may give directions to a committee 21 on the following matters -- 22 (a) the functions to be performed by the committee; 23 (b) the committee's procedures; 24 (c) reporting by the committee on the performance of its 25 functions. 26 (5) A committee must comply with a direction of the board 27 governed provider. 28 (6) A committee may determine its own procedures but they must 29 be consistent with any directions of the board governed provider page 65 Health Services Bill 2016 Part 8 Administration of health service providers Division 3 Appointment of advisers to board, administrators, dismissal of board s. 93 1 and the terms of any delegation under which the committee is 2 acting. 3 93. Remuneration and allowances 4 A member of a committee is entitled to be paid any 5 remuneration and allowances that the Minister may determine 6 on the recommendation of the Public Sector Commissioner. 7 Division 3 -- Appointment of advisers to board, administrators, 8 dismissal of board 9 94. Terms used 10 In this Division -- 11 administrator means an administrator appointed under 12 section 99; 13 adviser means an adviser appointed under section 95. 14 95. Minister may appoint advisers to boards 15 (1) The Minister may appoint a person to be an adviser to a board if 16 the Minister considers that the adviser may assist the board to 17 improve the performance of -- 18 (a) the board; or 19 (b) the health service provider governed by the board. 20 (2) The Minister must not appoint more than 2 persons to be 21 advisers to a board at the same time. 22 (3) In deciding whether to appoint an adviser to a board, the 23 Minister may have regard to the performance of the board or the 24 health service provider governed by the board in relation to the 25 following -- 26 (a) the safety and quality of health services being provided 27 by the health service provider; page 66 Health Services Bill 2016 Administration of health service providers Part 8 Appointment of advisers to board, administrators, dismissal of Division 3 board s. 96 1 (b) the way in which the health service provider is 2 complying with a service agreement for the health 3 service provider; 4 (c) the financial management of the health service provider. 5 96. Terms and conditions of appointment as adviser 6 (1) An adviser holds office for the period (not exceeding one year) 7 specified in the adviser's instrument of appointment. 8 (2) An adviser is entitled to be paid remuneration and allowances 9 determined by the Minister on the recommendation of the 10 Public Sector Commissioner. 11 (3) An adviser may resign from office by written resignation given 12 to the Minister. 13 97. Functions of advisers 14 (1) The functions of an adviser to a board are -- 15 (a) to attend board meetings; and 16 (b) to provide information and advice to the board to assist 17 it in performing its functions under this Act; and 18 (c) to advise the Minister and the Department CEO on any 19 matter relating to the performance of the board or the 20 health service provider governed by the board. 21 (2) An advisor to a board is not a member of the board but 22 sections 80(1) and 81(1)(b) apply to an adviser as if the adviser 23 were a member of the board. 24 98. Obligations of board in relation to advisers 25 (1) While an adviser's appointment is in force, the board must 26 provide the adviser with all notices of board meetings, and all 27 documents and other information provided to board members. 28 (2) The board must permit the adviser -- 29 (a) to attend all meetings of the board; and page 67 Health Services Bill 2016 Part 8 Administration of health service providers Division 3 Appointment of advisers to board, administrators, dismissal of board s. 99 1 (b) to provide information and advice to the board during 2 meetings. 3 99. Minister may appoint administrator for health service 4 provider 5 (1) In this section -- 6 qualified person means a person the Minister considers has the 7 necessary qualifications and experience to administer a health 8 service provider. 9 (2) This section applies -- 10 (a) if the members of a health service provider's board are 11 dismissed under section 102; or 12 (b) if at any other time there are no members of a health 13 service provider's board; or 14 (c) if, in the case of a board governed provider, a board has 15 not been appointed. 16 (3) The Minister may appoint the Department CEO, the chief 17 executive of the health service provider or another qualified 18 person to administer the health service provider. 19 100. Terms and conditions of appointment as administrator 20 (1) An administrator is entitled to be paid remuneration and 21 allowances determined by the Minister on the recommendation 22 of the Public Sector Commissioner. 23 (2) The Minister may revoke the appointment of an administrator 24 for any reason before the term of appointment expires, either to 25 appoint a different person as administrator or to appoint new 26 members of a board of the health service provider. 27 (3) The regulations may make provision with respect to 28 administrators. page 68 Health Services Bill 2016 Administration of health service providers Part 8 Appointment of advisers to board, administrators, dismissal of Division 3 board s. 101 1 101. Role of administrator 2 (1) An administrator must administer the health service provider's 3 affairs for the term stated in the administrator's instrument of 4 appointment. 5 (2) The functions of an administrator are subject to any conditions 6 that may be specified in the administrator's instrument of 7 appointment. 8 (3) While the appointment continues, the administrator is to be 9 taken to constitute the board instead of the members. 10 102. Minister may dismiss all members of board 11 (1) The Minister may, at any time, dismiss all the members of the 12 board of a health service provider. 13 (2) If the Minister acts under subsection (1) all of the offices of the 14 members become vacant. 15 (3) The Minister may act under subsection (1) only if the Minister 16 is satisfied that -- 17 (a) the health service provider has failed to perform its 18 functions effectively; or 19 (b) the health service provider has negligently or wilfully 20 failed to comply with a service agreement; or 21 (c) the health service provider has failed to comply with a 22 direction given by the Minister under section 60. 23 (4) No compensation is payable to a member of the board in 24 relation to the dismissal of the member from the board under 25 this section. page 69 Health Services Bill 2016 Part 9 Health service provider employment Division 1 Preliminary s. 103 1 Part 9 -- Health service provider employment 2 Division 1 -- Preliminary 3 103. Term used: employing authority 4 (1) In this Part -- 5 employing authority means -- 6 (a) in relation to a chief executive -- the Department CEO; 7 (b) in relation to a health executive employed in a health 8 service provider -- 9 (i) if the health service provider is a board governed 10 provider -- the board; 11 (ii) if the health service provider is a chief executive 12 governed provider -- the chief executive; 13 (c) in relation to a health service provider or an employee 14 (other than a chief executive or a health executive) in the 15 health service provider, the chief executive or board on 16 whom the power to employ or engage employees is 17 conferred. 18 (2) For the purposes of paragraph (b) of the definition of employing 19 authority in the PSM Act section 5(1), the Department CEO is 20 the employer of the chief executive. 21 104. Application of PSM Act 22 (1) Unless otherwise specified in this Act or by the regulations, the 23 PSM Act applies to administration and management, human 24 resource management and conduct of health service providers 25 and employees under this Act. 26 (2) For the purposes of subsection (1) the PSM Act applies as if -- 27 (a) a reference in that Act to an employee were a reference 28 to an employee as defined in section 6; page 70 Health Services Bill 2016 Health service provider employment Part 9 Health Executive Service Division 2 s. 105 1 (b) a reference in that Act to an employing authority were a 2 reference to an employing authority as defined in 3 section 103. 4 (3) The PSM Act Part 3 does not apply to employees. 5 Division 2 -- Health Executive Service 6 Subdivision 1 -- Composition 7 105. Composition of Health Executive Service 8 (1) The Health Executive Service comprises -- 9 (a) the chief executives of health service providers; and 10 (b) the persons holding offices that are for the time being 11 the subject of a determination under subsection (2). 12 (2) The Department CEO may make a written determination that an 13 office in a health service provider is an executive office. 14 (3) The Department CEO may revoke or amend a determination 15 made under subsection (2). 16 Subdivision 2 -- Chief executives 17 106. Chief executive 18 (1) Each health service provider must have a chief executive. 19 (2) A chief executive of a health service provider is the chief 20 employee of the health service provider for the purposes of the 21 PSM Act. 22 107. Functions and powers of chief executive 23 (1) Subject to Department CEO directions and, in the case of a 24 board governed provider, the control of the board, a chief 25 executive has -- 26 (a) the functions and powers conferred on a chief employee 27 under the PSM Act; and page 71 Health Services Bill 2016 Part 9 Health service provider employment Division 2 Health Executive Service s. 107 1 (b) the functions and powers mentioned in subsections (2) 2 and (3). 3 (2) The chief executive of a health service provider has the 4 following functions -- 5 (a) to manage the day-to-day operations of the health 6 service provider; 7 (b) in the case of a board governed provider, to advise the 8 board in relation to the functions of the provider under 9 this Act and other written laws; 10 (c) to ensure that advice and information is available to the 11 health service provider so that informed decisions can be 12 made; 13 (d) to cause health service provider decisions to be 14 implemented; 15 (e) to be responsible for the employment, management, 16 supervision, transfer, direction and dismissal of other 17 employees of the health service provider; 18 (f) to perform any other function specified or delegated by 19 the health service provider or imposed under this Act or 20 any other written law as a function to be performed by 21 the chief executive. 22 (3) Subject to Department CEO directions and, in the case of a 23 board governed provider, to the control of the board, a chief 24 executive may do all things that are necessary or convenient to 25 be done for or in connection with the performance of the 26 functions of a chief executive. 27 (4) In performing the functions of a chief executive of a health 28 service provider, the chief executive must use best endeavours 29 to attain performance objectives agreed with the Department 30 CEO and, in the case of a board governed provider, the board. page 72 Health Services Bill 2016 Health service provider employment Part 9 Health Executive Service Division 2 s. 108 1 108. Appointment of chief executive 2 (1) Each chief executive is to be appointed by the Department CEO 3 for and on behalf of the State. 4 (2) The term for which a person is appointed to be the chief 5 executive of a health service provider must be fixed in the 6 instrument of appointment and must not be longer than 5 years. 7 (3) The appointment must be to the level of classification 8 determined by the Department CEO -- 9 (a) in accordance with the relevant policy framework; and 10 (b) as being appropriate to the functions to be performed by 11 the person appointed. 12 109. Procedure for appointment of chief executive 13 (1) If -- 14 (a) there is a vacancy or an impending vacancy in the office 15 of a chief executive of a health service provider; and 16 (b) it is not intended to fill the vacancy by transferring a 17 chief executive to that office under section 116, or 18 temporarily by directing an employee to act in the office 19 under section 117, 20 the Department CEO must act under this section to enable the 21 filling of the vacancy or impending vacancy. 22 (2) In the case of a vacancy or impending vacancy in the office of a 23 chief executive of a board governed provider, the Department 24 CEO must, for the purposes of subsection (1), invite the board 25 of the provider to inform the Department CEO of any matters 26 that it wishes the Department CEO to take into account in 27 recommending a person for appointment to the office referred to 28 in subsection (1). 29 (3) The Department CEO must give notice of the vacancy or 30 impending vacancy in the manner the Department CEO thinks page 73 Health Services Bill 2016 Part 9 Health service provider employment Division 2 Health Executive Service s. 109 1 sufficient to enable suitably qualified persons to apply for the 2 office. 3 (4) The Department CEO must cause applicants for the office to be 4 examined, but nothing in this section requires the examination 5 of all the applicants. 6 (5) The Department CEO -- 7 (a) may seek advice from such sources as the Department 8 CEO considers relevant; and 9 (b) if the appointment is to the office of chief executive of a 10 board governed provider, may invite the chairperson of 11 the board to assist the Department CEO to decide on the 12 person or persons suitable for appointment to the office; 13 and 14 (c) may invite any other persons the Department CEO 15 thinks fit to assist the Department CEO to decide on the 16 person or persons suitable for appointment to the office. 17 (6) Any person invited to assist the Department CEO may take part 18 in the examination of applicants or in the deliberations of the 19 Department CEO on the matter or in both. 20 (7) In deciding on a person to be appointed as a chief executive of a 21 health service provider, the Department CEO must have regard 22 to the need for the appointment of a person who -- 23 (a) is able to discharge the specific responsibilities placed 24 on the chief executive; and 25 (b) will foster a spirit of service to the community in staff 26 members of the health service provider; and 27 (c) will promote effectiveness and efficiency in the health 28 service provider; and 29 (d) will be a responsible manager of the health service 30 provider; and page 74 Health Services Bill 2016 Health service provider employment Part 9 Health Executive Service Division 2 s. 110 1 (e) will maintain appropriate standards of conduct and 2 integrity among staff members of the health service 3 provider. 4 110. Remuneration and leave entitlements 5 (1) The remuneration and allowances of a chief executive are to be 6 determined by the Department CEO on the recommendation of 7 the Public Sector Commissioner. 8 (2) Subsection (1) has effect subject to the Salaries and Allowances 9 Act 1975 if that Act applies to the chief executive. 10 111. Contract of employment 11 Subject to this Act, the employment of a chief executive 12 appointed under section 108 or reappointed under section 113 is 13 governed by a contract of employment referred to in 14 section 128. 15 112. Appointment of health service provider employee or public 16 service officer 17 (1) If a person was -- 18 (a) an employee in a health service provider; or 19 (b) a public service officer, 20 immediately before appointment as a chief executive, the person 21 retains all existing and accrued rights on appointment as if 22 service as the chief executive were a continuation of service as 23 that employee or officer. 24 (2) If a person was a chief executive immediately before 25 appointment as a public service officer, the person retains all 26 existing and accrued rights on appointment as if service as a 27 public service officer were a continuation of service as a chief 28 executive. page 75 Health Services Bill 2016 Part 9 Health service provider employment Division 2 Health Executive Service s. 113 1 113. Reappointment of chief executive 2 (1) If the contract of employment of a chief executive of a health 3 service provider is about to expire and the chief executive has 4 notified the Department CEO that the chief executive wishes to 5 be reappointed, the Department CEO must -- 6 (a) reappoint the chief executive to the relevant office for 7 and on behalf of the State; or 8 (b) notify the chief executive that the chief executive will 9 not be reappointed. 10 (2) Before making a decision under subsection (1) in relation to the 11 chief executive of a board governed provider, the Department 12 CEO must invite the board of the provider to inform the 13 Department CEO of any matters that it wishes the Department 14 CEO to take into account in making the decision. 15 (3) The term for which a person is reappointed to be the chief 16 executive of a health service provider must be fixed in the 17 instrument of appointment and must not be longer than 5 years. 18 (4) If the Department CEO notifies the chief executive that the 19 chief executive will not be reappointed, the vacancy or 20 impending vacancy must be filled in accordance with 21 section 108. 22 114. Performance criteria for chief executive and review of 23 performance 24 (1) The chief executive of a health service provider must enter into 25 an agreement with the Department CEO and, in the case of a 26 board governed provider, the chairperson of the board 27 concerning the performance criteria to be met by the chief 28 executive during the period to which the agreement relates. 29 (2) The agreement must be entered into -- 30 (a) on appointment under section 108(1); and 31 (b) at any time when required to do so under a Department 32 CEO direction. page 76 Health Services Bill 2016 Health service provider employment Part 9 Health Executive Service Division 2 s. 115 1 (3) The performance agreement is not legally enforceable. 2 (4) The performance of the chief executive of a health service 3 provider must be reviewed, at least annually, by the Department 4 CEO and, in the case of the chief executive of a board governed 5 provider, the chairperson of the board. 6 (5) The review must have regard to the agreed performance criteria 7 for the office and any other relevant matter. 8 115. Removal from office 9 (1) The Department CEO may at any time remove a chief executive 10 of a health service provider from the office of chief executive. 11 (2) If the health service provider is a board governed provider, the 12 Department CEO must consult with the board before acting 13 under subsection (1). 14 116. Transfer from office 15 (1) The Department CEO may at any time transfer a chief executive 16 from -- 17 (a) the office of chief executive to -- 18 (i) another office of chief executive that is vacant 19 and that is at the same level of classification as, 20 or at a lower level of classification than, the 21 first-mentioned office; or 22 (ii) the performance of other functions in a health 23 service provider; 24 or 25 (b) the performance of other functions in a health service 26 provider to an office of chief executive that is vacant 27 and that is at the same level of classification as, or at a 28 lower level of classification than, the office from which 29 the chief executive was transferred to the performance 30 of those functions. page 77 Health Services Bill 2016 Part 9 Health service provider employment Division 2 Health Executive Service s. 117 1 (2) Before transferring a chief executive the Department CEO must 2 consult -- 3 (a) if the chief executive to whom the proposed transfer 4 relates is located in a board governed provider -- with 5 the board; and 6 (b) if the provider of destination is a board governed 7 provider -- with the board; and 8 (c) with the chief executive to whom the proposed transfer 9 relates. 10 (3) In subsection (2)(b) -- 11 provider of destination means -- 12 (a) the health service provider to an office in which the 13 chief executive is proposed to be transferred; or 14 (b) the health service provider to the performance of other 15 functions in which the chief executive is proposed to be 16 transferred. 17 (4) Subject to the provisions of this Act relating to the management 18 of the redeployment and redundancy of employees, a chief 19 executive who is transferred under subsection (1) retains for the 20 remainder of the term of the chief executive's contract of 21 employment a level of classification equal to the highest level of 22 classification of any office previously occupied by the chief 23 executive during that period. 24 (5) The transfer of a chief executive under this section does not 25 affect the term of the chief executive's contract of employment. 26 117. Acting chief executive 27 (1) The Department CEO may direct an employee to act in the 28 office of a chief executive -- 29 (a) during a vacancy in the office; or 30 (b) during a period when the person holding the office is, or 31 is expected to be absent or for any reason unable to 32 perform the functions of the office. page 78 Health Services Bill 2016 Health service provider employment Part 9 Health Executive Service Division 2 s. 118 1 (2) The Department CEO must specify in the direction the period, 2 not exceeding 12 months, for which the employee can act. 3 (3) The Department CEO may cancel the direction at any time. 4 (4) Before giving a direction under subsection (1) in respect of the 5 office of a chief executive of a board governed provider, the 6 Department CEO must consult with the board. 7 (5) An employee directed under subsection (1) to act in an office -- 8 (a) must comply with the direction; and 9 (b) has, while acting in the office, all the powers and 10 functions of the office. 11 (6) The validity of anything done by or in relation to a person 12 purporting to act under this section cannot be called into 13 question on the ground that -- 14 (a) the occasion for the person to act had not arisen or had 15 ceased; or 16 (b) there is a defect or irregularity in the direction. 17 118. Employment of chief executive cannot be litigated and is not 18 an industrial matter 19 (1) In this section, a reference to the employment of a chief 20 executive is a reference to -- 21 (a) the appointment of, or failure to appoint, a person to a 22 vacant office of chief executive; or 23 (b) the removal, retirement, termination of employment or 24 other cessation of office of a chief executive; or 25 (c) any disciplinary proceedings or action taken under 26 Part 10 or 11 against a chief executive; or 27 (d) the remuneration or terms and conditions of 28 employment of a chief executive. 29 (2) The employment of a chief executive, or any matter, question or 30 dispute relating to any such employment, is not an industrial 31 matter for the purposes of the Industrial Relations Act 1979. page 79 Health Services Bill 2016 Part 9 Health service provider employment Division 2 Health Executive Service s. 119 1 (3) Subsection (2) applies whether or not any person has been 2 appointed to a vacant office of chief executive. 3 (4) An award, order or industrial agreement under the Industrial 4 Relations Act 1979, whether made or registered, as the case 5 requires, before or after the commencement of this section, does 6 not have effect insofar as it relates to the employment of a chief 7 executive. 8 (5) Subsection (4) does not prevent a contract of employment of a 9 chief executive from applying any provision of an award, order 10 or industrial agreement under the Industrial Relations Act 1979 11 to the employment of the chief executive. 12 (6) An appeal does not lie under the Industrial Relations Act 1979 13 in relation to the employment of a chief executive. 14 (7) No proceedings for an order in the nature of prohibition, 15 certiorari or mandamus or for a declaration or injunction or for 16 any other relief lie in respect of -- 17 (a) the appointment of, or failure to appoint, a person to a 18 vacant office of chief executive; or 19 (b) the reappointment of, or failure to reappoint, a chief 20 executive; or 21 (c) the entitlement or non-entitlement of a person to be so 22 appointed or reappointed. 23 (8) Nothing in this section prevents a person from raising with the 24 Department CEO a complaint concerning the employment of a 25 chief executive. 26 119. Delegation 27 (1) A chief executive of a health service provider may delegate any 28 function of the chief executive under another provision of this 29 Act to -- 30 (a) a staff member in the health service provider or another 31 health service provider; page 80 Health Services Bill 2016 Health service provider employment Part 9 Health Executive Service Division 2 s. 120 1 (b) an employee or person engaged in the Department. 2 (2) A delegation under this section must be in writing signed by the 3 chief executive. 4 (3) A person to whom a function is delegated under this section 5 cannot delegate that function. 6 (4) A person exercising or performing a function that has been 7 delegated to the person under this section is to be taken to do so 8 in accordance with the terms of the delegation unless the 9 contrary is shown. 10 (5) Nothing in this section limits the ability of the chief executive to 11 perform a function through an officer or agent. 12 120. Modification of PSM Act delegation provision 13 For the purpose of the exercise of a chief executive's powers 14 under the PSM Act section 33, that section is to be read as if any 15 reference in that section to the Commissioner were a reference 16 to the Department CEO. 17 Subdivision 3 -- Health executives 18 121. Appointment of health executives 19 (1) The employing authority of a health service provider may for 20 and on behalf of the State appoint a person to an office of health 21 executive in the health service provider. 22 (2) An appointment under subsection (1) is subject to any binding 23 award, order or industrial agreement under the Industrial 24 Relations Act 1979. 25 (3) The term for which a person is appointed to be a health 26 executive must be fixed in the instrument of appointment and 27 must not be longer than 5 years. 28 (4) The appointment must be governed by a contract of 29 employment referred to in section 128. page 81 Health Services Bill 2016 Part 9 Health service provider employment Division 2 Health Executive Service s. 122 1 (5) The appointment must be to the level of classification 2 determined by the employing authority of the health 3 executive -- 4 (a) in accordance with the relevant policy framework; and 5 (b) as being appropriate to the functions to be performed by 6 the person appointed. 7 122. Reappointment of health executive 8 On the expiry of the term of a health executive in a health 9 service provider, the health executive is eligible for 10 reappointment under section 121(1) on the basis of terms and 11 conditions agreed between the health executive and the health 12 executive's employing authority. 13 123. Transfer of health executives 14 (1) The employing authority of a health service provider may at any 15 time transfer a health executive of the health service provider 16 from the health executive's office, or the performance of any 17 functions in the Health Executive Service, to -- 18 (a) another office of health executive that is vacant; or 19 (b) the performance of other functions in a health service 20 provider. 21 (2) An employing authority must, before transferring a health 22 executive under subsection (1) from one health service provider 23 to another health service provider -- 24 (a) obtain the consent of the employing authority of the 25 health service provider to which the health executive is 26 proposed to be transferred; and 27 (b) consult with the health executive proposed to be 28 transferred. 29 (3) Subject to the provisions of this Act relating to the management 30 of the redeployment and redundancy of employees, a health 31 executive may only be transferred under subsection (1) at the page 82 Health Services Bill 2016 Health service provider employment Part 9 Health Executive Service Division 2 s. 124 1 level of classification which the health executive had 2 immediately before the transfer. 3 (4) If the office to which a health executive is transferred under 4 subsection (1)(a) is an office, or the functions to the 5 performance of which a health executive is transferred under 6 subsection (1)(b) are functions, in a different health service 7 provider, the employing authority of that health service provider 8 becomes the employing authority of the health executive. 9 (5) On the transfer of a health executive under subsection (1), the 10 employing authority of the health service provider to which that 11 transfer takes place is substituted for the employing authority of 12 the health service provider from which that transfer takes place 13 as a party to the contract of employment of the health executive. 14 (6) The transfer of a health executive under subsection (1) does not 15 affect the term of the health executive's contract of 16 employment. 17 124. Performance assessment 18 (1) The performance of a health executive must be reviewed, at 19 least annually, by the employing authority of the health 20 executive. 21 (2) The review must have regard to the agreed performance criteria 22 for the office and any other relevant matter. 23 125. Termination of contract of employment by employing 24 authority 25 (1) A health executive's contract of employment may be terminated 26 before its expiry on the expiry of not less than 4 weeks' notice 27 of termination given to the health executive by the health 28 executive's employing authority. 29 (2) An employing authority may, in lieu of 4 weeks' notice of 30 termination, pay the health executive a prescribed amount. page 83 Health Services Bill 2016 Part 9 Health service provider employment Division 2 Health Executive Service s. 126 1 Subdivision 4 -- General provisions about chief executives and 2 health executives 3 126. Terms used 4 In this Subdivision -- 5 department has the meaning given in the PSM Act section 3(1); 6 executive means a chief executive or a health executive; 7 organisation has the meaning given in the PSM Act 8 section 3(1) and includes a health service provider. 9 127. Conditions of employment 10 An executive's employment is governed by -- 11 (a) this Act and other applicable written laws; and 12 (b) the executive's contract of employment. 13 128. Employment of chief executives and health executives 14 governed by contract of employment 15 (1) The contract of employment of an executive must -- 16 (a) be in writing; and 17 (b) be signed by or on behalf of the parties to the contract. 18 (2) The contract of employment expires on the day on which the 19 term of appointment of the executive concerned expires or is 20 terminated. 21 (3) The contract of employment (the original contract) may be 22 varied at any time by a further contract between the parties but 23 the term of the original contract cannot be extended to a total 24 period of more than 5 years after the day on which the original 25 contract of employment came into force. 26 (4) The employing authority of an executive acts for and on behalf 27 of the State in any contract of employment between that 28 employing authority and the executive. page 84 Health Services Bill 2016 Health service provider employment Part 9 Health Executive Service Division 2 s. 129 1 129. Content of contract of employment 2 (1) The matters to be dealt with in a contract of employment 3 between an executive and the executive's employing authority 4 include -- 5 (a) the functions of the office of the executive, including 6 performance criteria for the purpose of reviews of the 7 member's performance; and 8 (b) the remuneration for the executive; and 9 (c) any election by the executive to retain a right of return 10 within the meaning of section 132. 11 (2) Subsection (1) has effect subject to the Salaries and Allowances 12 Act 1975, if that Act applies to the executive. 13 130. Termination of contract of employment by executive 14 (1) An executive's contract of employment may be terminated 15 before its expiry on the expiry of not less than 4 weeks' notice 16 of termination given to the executive's employing authority by 17 the executive. 18 (2) An employing authority may agree to an executive giving the 19 employing authority less than 4 weeks' notice of termination. 20 131. Notification or payment in lieu if executive is not 21 reappointed 22 If the employing authority of an executive does not propose to 23 reappoint the executive, the employing authority must -- 24 (a) notify the executive of that fact not less than 4 weeks 25 before the expiry of the executive's contract of 26 employment; or 27 (b) pay the executive in lieu of that period of notice an 28 amount -- 29 (i) not exceeding the maximum amount prescribed; 30 and page 85 Health Services Bill 2016 Part 9 Health service provider employment Division 2 Health Executive Service s. 132 1 (ii) not less than the minimum amount prescribed for 2 each day by which that period of notice falls 3 short of 4 weeks. 4 132. Right of return for certain executives 5 (1) In this section -- 6 right of return means the entitlement of an executive to 7 employment in a department or organisation in accordance with 8 this section; 9 statutory office means an office, post or position that is 10 established under an Act by which the right to appoint to that 11 office, post or position is vested in the Governor or a Minister. 12 (2) An executive may elect to retain a right of return if, for a 13 continuous period of not less than 6 months ending immediately 14 before the executive's first appointment as an executive, the 15 executive -- 16 (a) was employed for an indefinite period in a department 17 or organisation (the originating place of employment); 18 or 19 (b) held a statutory office or a series of statutory offices on 20 a full-time basis and, before holding the statutory office 21 or any of those statutory offices, was employed for an 22 indefinite period in a department or organisation (the 23 originating place of employment). 24 (3) An election referred to in subsection (2) -- 25 (a) may be made in the first contract of employment entered 26 into by the executive, but, unless made in that contract, 27 cannot be made in any subsequent contract of 28 employment for the same or another office in the Health 29 Executive Service; and 30 (b) is revoked if that election is not again made by the 31 executive in a subsequent contract of employment; and 32 (c) may be revoked by the executive by notice in writing 33 delivered to the executive's employing authority; and page 86 Health Services Bill 2016 Health service provider employment Part 9 Health Executive Service Division 2 s. 132 1 (d) if revoked, cannot be made again. 2 (4) An executive who has elected to retain a right of return is 3 entitled to employment in the executive's originating place of 4 employment at the same level of classification as the executive 5 held immediately before ceasing to be employed for an 6 indefinite period within the meaning of subsection (2)(a) or (b), 7 as the case requires, if the executive -- 8 (a) ceases to be an executive otherwise than by reason of 9 the revocation of a determination under section 105(3); 10 and 11 (b) in the case of -- 12 (i) a chief executive, is not reappointed to the same 13 or another office of chief executive or to the 14 performance of other functions in the Health 15 Executive Service; or 16 (ii) a health executive, is not reappointed to the same 17 or another office of health executive or to the 18 performance of other functions in a health 19 service provider. 20 (5) A person is not entitled to a right of return if the person's 21 employment in the Public Sector was terminated, or the person 22 was dismissed, under this Act for substandard performance or 23 breach of discipline. 24 (6) An employee dismissed under Part 10 is, for the purposes of 25 subsection (5), to be taken to have been dismissed for breach of 26 discipline. 27 (7) This section does not prevent the application of the provisions 28 of this Act relating to the management of the redeployment and 29 redundancy of employees to a person who is employed in a 30 health service provider, department or organisation under a right 31 of return. 32 (8) Nothing in this section affects the entitlement of any executive 33 under another written law to employment in a department or 34 organisation in accordance with that written law. page 87 Health Services Bill 2016 Part 9 Health service provider employment Division 2 Health Executive Service s. 133 1 133. Compensation if executive has no right of return 2 (1) This section applies to a person -- 3 (a) who ceases to be an executive, otherwise than by reason 4 of -- 5 (i) the revocation of a determination under 6 section 105(3); or 7 (ii) termination of employment in the Public Sector, 8 or dismissal, under this Act for substandard 9 performance or breach of discipline, 10 before the executive's contract of employment expires 11 by effluxion of time; and 12 (b) who does not have a right of return within the meaning 13 of section 132. 14 (2) An employee dismissed under Part 10 is, for the purposes of 15 subsection (1)(a)(ii), to be taken to have been dismissed for 16 breach of discipline. 17 (3) A person to whom this section applies is entitled to such 18 compensation, if any, as the Department CEO determines by 19 reference to the remuneration to which that person is entitled for 20 a particular period ending immediately before the day referred 21 to in subsection (4). 22 (4) The maximum compensation payable to a person under this 23 section is an amount equal to the remuneration to which the 24 person is entitled for the period of one year ending immediately 25 before the day on which the person ceased to be an executive in 26 the manner specified in subsection (1)(a). 27 134. Repayment of compensation 28 (1) In this section -- 29 prescribed period means a period prescribed for the purposes of 30 this section that commences on the payment of compensation to 31 a person under section 133. page 88 Health Services Bill 2016 Health service provider employment Part 9 Health Executive Service Division 2 s. 135 1 (2) This section applies to a person if the person -- 2 (a) is paid compensation under section 133; and 3 (b) is subsequently -- 4 (i) employed in a department or organisation; or 5 (ii) engaged by an employing authority within the 6 meaning of this Act or the PSM Act under a 7 contract for services. 8 (3) A person employed or engaged as mentioned in 9 subsection (2)(b) before the expiry of the prescribed period in 10 relation to that person must refund to the Treasurer an amount 11 that bears to the amount of the compensation the same 12 proportion as the unexpired portion of that period bears to that 13 period. 14 (4) If a person who is required to comply with subsection (3) does 15 not do so, the amount unrefunded may be recovered by the 16 Treasurer in a court of competent jurisdiction as a debt owed by 17 that person to the State. 18 135. Election to take compensation instead of right of return 19 (1) An executive who has an entitlement under section 132(4) to 20 employment may elect in writing to take compensation under 21 section 133 instead of exercising that entitlement. 22 (2) On an election under subsection (1) taking effect, the executive 23 concerned -- 24 (a) ceases to have an entitlement under section 132(4); and 25 (b) becomes entitled to compensation under section 133. 26 136. Secondment of executive 27 (1) In this section -- 28 relevant employer means -- 29 (a) the employing authority of a department or organisation; 30 or page 89 Health Services Bill 2016 Part 9 Health service provider employment Division 2 Health Executive Service s. 137 1 (b) an employer outside the Public Sector. 2 (2) The employing authority of an executive may enter into an 3 arrangement in writing with a relevant employer for the 4 secondment of the executive to perform functions or services 5 for, or duties in the service of, the relevant employer during the 6 period specified in the arrangement. 7 (3) An employing authority must not act under subsection (2) 8 unless -- 9 (a) the employing authority considers it to be in the public 10 interest to do so; and 11 (b) the executive concerned consents. 12 137. Vacation of office of executive 13 (1) The office of an executive becomes vacant if -- 14 (a) the executive dies; or 15 (b) in the case of a chief executive, the chief executive is 16 removed from the office under section 115; or 17 (c) the executive completes a term and is not reappointed; 18 or 19 (d) the executive is dismissed, or retires, under this Act; or 20 (e) the employment of the executive is terminated under this 21 Act; or 22 (f) the executive resigns by written resignation given -- 23 (i) in the case of a chief executive, to the 24 Department CEO; or 25 (ii) in the case of a health executive, to the 26 employing authority of the executive's health 27 service provider, 28 and the Department CEO or that employing authority, as 29 the case requires, accepts that resignation; or page 90 Health Services Bill 2016 Health service provider employment Part 9 Other staff Division 3 s. 138 1 (g) the executive is appointed or transferred under this Part 2 to another office (unless it is an appointment and the 3 Department CEO authorises the offices being held 4 concurrently by the executive). 5 (2) The vacation of an office under subsection (1)(a), (b), (c), (d), 6 (e) or (f) terminates the contract of employment of the executive 7 concerned. 8 138. Operation of Division 9 This Division prevails over any inconsistent provision of any 10 other written law or of the terms of appointment of or contract 11 with a person. 12 Division 3 -- Other staff 13 139. Division does not apply to Health Executive Service 14 This Division does not apply to employees employed in the 15 Health Executive Service. 16 140. Employees of health service provider 17 (1) A health service provider may employ and manage employees 18 for and on behalf of the State. 19 (2) Employees employed under subsection (1) are in addition to 20 employees employed as health executives in the Health 21 Executive Service. 22 (3) Subject to any relevant award, order or industrial agreement 23 under the Industrial Relations Act 1979, the terms and 24 conditions of employment of employees employed under 25 subsection (1) are the terms and conditions the health service 26 provider determines. page 91 Health Services Bill 2016 Part 9 Health service provider employment Division 3 Other staff s. 141 1 141. Transfers between health service providers or between 2 health services providers and the Department 3 (1) If the employing authority of a health service provider considers 4 it to be in the best interests of the health service provider or the 5 WA health system to do so, the employing authority may -- 6 (a) transfer an employee in the health service provider from 7 one office in the health service provider to another office 8 in that health service provider; or 9 (b) transfer an employee in the health service provider from 10 an office in the health service provider to an office in 11 another health service provider. 12 (2) If the employing authority of the Department and the employing 13 authority of a health service provider consider it to be in the best 14 interests of the WA health system to do so -- 15 (a) the employing authority of the Department may transfer 16 an employee in the Department from an office in the 17 Department to an office in the health service provider; 18 and 19 (b) the employing authority of the health service provider 20 may transfer an employee in the health service provider 21 from an office in the health service provider to an office 22 in the Department. 23 (3) A transfer under subsection (1) or (2) must be -- 24 (a) at the same or equivalent level of classification; and 25 (b) to an office -- 26 (i) for which the employee possesses requisite 27 qualifications; and 28 (ii) the functions of which are appropriate to the 29 employee's level of classification. page 92 Health Services Bill 2016 Health service provider employment Part 9 Other staff Division 3 s. 142 1 (4) An employing authority cannot transfer an employee under 2 subsection (1)(b) or (2) unless -- 3 (a) the transfer complies with the relevant policy 4 framework; and 5 (b) the employing authority of the health service provider to 6 which the employee is to be transferred or, if the 7 employee is to be transferred to the Department, the 8 Department CEO, has approved the transfer; and 9 (c) the employee to be transferred has been consulted. 10 (5) On the transfer of an employee under subsection (1)(b) or (2) -- 11 (a) the office from which the employee was transferred 12 becomes vacant; and 13 (b) the employing authority of the health service provider to 14 which the employee was transferred or, if the employee 15 was transferred to the Department, the Department 16 CEO -- 17 (i) becomes the employing authority of the 18 employee; and 19 (ii) is substituted for the employing authority of the 20 health service provider from which the employee 21 was transferred as a party to any contract of 22 employment of the employee. 23 (6) If the employee is employed on contract, the transfer has effect 24 despite anything in the contract under which the employee is 25 transferred. 26 142. Secondment of employee 27 (1) In subsection (3) -- 28 relevant employer means -- 29 (a) the employing authority of a department or organisation; 30 or 31 (b) an employer outside the Public Sector. page 93 Health Services Bill 2016 Part 9 Health service provider employment Division 3 Other staff s. 143 1 (2) A chief executive of a health service provider may arrange with 2 another employer for an employee of that other employer to 3 perform duties in the service of the health service provider for 4 the purposes of this Act. 5 (3) A chief executive of a health service provider may enter into an 6 arrangement with a relevant employer for the secondment of an 7 employee in the health service provider to perform functions or 8 services for, or duties in the service of, the relevant employer 9 during the period specified in the arrangement. 10 (4) A chief executive must not act under subsection (3) unless -- 11 (a) the chief executive considers it to be in the public 12 interest to do so; and 13 (b) the employee concerned consents. 14 143. Contracts for services 15 (1) The employing authority of a health service provider may, in 16 accordance with any relevant policy framework, engage a 17 person under a contract for services on the terms and conditions 18 (including as to remuneration) that the employing authority 19 determines. 20 (2) This section does not detract from the power that the PSM Act 21 section 100 gives the employing authority of a health service 22 provider to engage a person under a contract for services or 23 appoint a person on a casual employment basis. page 94 Health Services Bill 2016 Criminal and misconduct matters concerning employees Part 10 s. 144 1 Part 10 -- Criminal and misconduct matters 2 concerning employees 3 144. Terms used 4 In this Part -- 5 responsible authority means -- 6 (a) in relation to a chief executive -- the Department CEO; 7 (b) in relation to an employee (other than a chief executive) 8 in a health service provider -- the chief executive of the 9 health service provider; 10 (c) in relation to a staff member who is engaged under a 11 contract for services in a health service provider -- the 12 chief executive of the health service provider; 13 serious offence has the meaning given in the PSM Act 14 section 80A. 15 145. Duty of staff member to report certain criminal conduct and 16 misconduct findings 17 (1) A staff member who is charged with having committed, or is 18 convicted or found guilty of, a serious offence must, within 19 7 days of the charge being laid or the conviction, report that fact 20 in writing to the staff member's responsible authority. 21 (2) A staff member who has a misconduct finding made against 22 them under the Health Practitioner Regulation National Law 23 (Western Australia) must, within 7 days of receiving notice of 24 the finding -- 25 (a) report that fact to the staff member's responsible 26 authority; and 27 (b) provide the person to whom the report is made with a 28 copy of the finding. page 95 Health Services Bill 2016 Part 10 Criminal and misconduct matters concerning employees s. 146 1 (3) In subsection (2) -- 2 misconduct finding includes a finding of unsatisfactory 3 professional performance, unprofessional conduct or 4 professional misconduct. 5 146. Further reporting and notification 6 (1) A staff member's responsible authority must report any conduct 7 of the staff member that the responsible authority suspects on 8 reasonable grounds constitutes or may constitute professional 9 misconduct or unsatisfactory professional performance under 10 the Health Practitioner Regulation National Law (Western 11 Australia) to -- 12 (a) the professional board or authority that deals with the 13 registration of the staff member as a health practitioner; 14 and 15 (b) the Department CEO. 16 (2) A staff member's responsible authority must, on becoming 17 aware that the staff member has been charged with having 18 committed, or has been convicted or found guilty of, a serious 19 offence, report the staff member's charge, conviction or the 20 finding of guilt to the Department CEO. 21 (3) The Department CEO may, if the Department CEO considers it 22 appropriate to do so for the protection of a health service 23 provider's patients, notify a health service provider or any other 24 person or body of a report received under subsection (1) or (2). 25 (4) A notification under subsection (3) may be made in such form 26 as the Department CEO considers appropriate. 27 (5) The duty of a person to make a report under subsection (1) 28 or (2) must be complied with, and the Department CEO may 29 give a notification under subsection (3), despite -- 30 (a) the provisions of any other Act, whether enacted before 31 or after this Act; or page 96 Health Services Bill 2016 Criminal and misconduct matters concerning employees Part 10 s. 147 1 (b) any obligation the person has to maintain confidentiality 2 about a matter to which the report relates. 3 (6) Without limiting section 220, in complying with subsection (1) 4 or (2) or giving a notification under subsection (3) a person -- 5 (a) does not incur any civil or criminal liability; and 6 (b) is not to be taken to have breached any duty of 7 confidentiality or secrecy imposed by law; and 8 (c) is not to be taken to have breached any professional 9 ethics or standards or any principles of conduct 10 applicable to the person's employment or to have 11 engaged in unprofessional conduct. 12 (7) Subsection (1) does not affect an obligation under another 13 written law to report professional misconduct or unsatisfactory 14 professional performance. 15 147. Suspending employee if health practitioner registration is 16 suspended or becomes conditional 17 (1) An employee's employing authority may suspend the employee 18 from duty during any period for which -- 19 (a) the registration of an employee as a registered health 20 practitioner is suspended under the Health Practitioner 21 Regulation National Law (Western Australia); or 22 (b) conditions are imposed on the registration of an 23 employee as a registered health practitioner under the 24 Health Practitioner Regulation National Law (Western 25 Australia) that, in the opinion of the employee's 26 employing authority, are inconsistent with any of the 27 inherent requirements of the terms of employment of the 28 employee; or 29 (c) conditions are imposed on the registration of an 30 employee as a registered health practitioner under the 31 Health Practitioner Regulation National Law (Western 32 Australia) that, in the opinion of the employee's 33 employing authority, the health service provider in page 97 Health Services Bill 2016 Part 10 Criminal and misconduct matters concerning employees s. 148 1 which the health practitioner is employed will be unable 2 to accommodate for operational reasons. 3 (2) An employing authority who has suspended an employee from 4 duty under this section may at any time remove or vary the 5 terms of the suspension. 6 148. Suspending employee pending decision in relation to serious 7 offence 8 (1) If an employee is charged with having committed a serious 9 offence, the employing authority of the employee may suspend 10 the employee from duty. 11 (2) Subject to subsection (3), a suspension arising from a charge 12 referred to in subsection (1) has effect until the criminal charge 13 or any action that the employing authority is considering taking 14 under section 150 has been finalised. 15 (3) The employing authority may at any time remove or vary the 16 terms of the suspension. 17 149. Salary during suspension 18 (1) An employee may be suspended under section 147 or 148 on 19 full pay, partial pay or without pay. 20 (2) If -- 21 (a) an employee suspended under section 147 does not 22 successfully appeal under the Health Practitioner 23 Regulation National Law (Western Australia) against 24 the action taken under that Act as mentioned in 25 section 147(1)(a) or (b); or 26 (b) an employee suspended under section 148 is convicted 27 or found guilty of the offence concerned, 28 any salary withheld under subsection (1) is forfeited to the State 29 unless the employing authority otherwise directs. page 98 Health Services Bill 2016 Criminal and misconduct matters concerning employees Part 10 s. 150 1 (3) An employee is entitled to have any pay of the employee that is 2 withheld under subsection (1) and not forfeited under 3 subsection (2) restored to the employee. 4 150. Disciplinary or improvement action where registration 5 suspended or conditional or in case of serious offence 6 (1) If -- 7 (a) the registration of an employee as a registered health 8 practitioner is suspended under the Health Practitioner 9 Regulation National Law (Western Australia); or 10 (b) conditions are imposed on the registration of an 11 employee as a registered health practitioner under the 12 Health Practitioner Regulation National Law (Western 13 Australia) that, in the opinion of the employee's 14 employing authority, are inconsistent with any of the 15 inherent requirements of the terms of employment of the 16 employee; or 17 (c) conditions are imposed on the registration of an 18 employee as a registered health practitioner under the 19 Health Practitioner Regulation National Law (Western 20 Australia) that, in the opinion of the employee's 21 employing authority, the health service provider in 22 which the health practitioner is employed will be unable 23 to accommodate for operational reasons, 24 the employee's employing authority may take such disciplinary 25 action or improvement action, or both disciplinary action and 26 improvement action, as the employing authority considers 27 appropriate (having regard to section 151) with respect to the 28 employee. 29 (2) An employing authority cannot take action under 30 subsection (1) -- 31 (a) until all rights of appeal under the Health Practitioner 32 Regulation National Law (Western Australia) against page 99 Health Services Bill 2016 Part 10 Criminal and misconduct matters concerning employees s. 151 1 the action taken under that Act have lapsed or been 2 exhausted; or 3 (b) if the employee successfully appeals under the Health 4 Practitioner Regulation National Law (Western 5 Australia) against the action taken under that Act. 6 (3) Despite the Sentencing Act 1995 section 11, if an employee is 7 convicted or found guilty of a serious offence the employing 8 authority may take such disciplinary action or improvement 9 action, or both disciplinary action and improvement action, as 10 the employing authority considers appropriate (having regard to 11 section 151) with respect to the employee. 12 (4) Before any disciplinary action or improvement action is taken 13 with respect to an employee under this section, the employee 14 must be given an opportunity to make a submission in relation 15 to the action that the employing authority is considering taking. 16 (5) A decision of an employing authority to take disciplinary action 17 or improvement action with respect to an employee may be 18 carried into effect at any time. 19 151. Protection of patients to be paramount consideration 20 The protection of a health service provider's patients must be 21 the paramount consideration in relation to determining whether 22 to take disciplinary action against an employee under 23 section 150. 24 152. Power of employing authority to take improvement or other 25 action not limited 26 (1) Nothing in this Part limits the power of an employing authority 27 under other provisions of this Act or the PSM Act to take 28 improvement action in relation to an employee in circumstances 29 in which the employing authority considers it appropriate to do 30 so. page 100 Health Services Bill 2016 Criminal and misconduct matters concerning employees Part 10 s. 153 1 (2) Nothing in this Part limits the power of an employing authority 2 to take other action against an employee under Part 11 or under 3 any other law. 4 153. Appeals and referrals 5 (1) Section 172 applies to a decision to suspend an employee under 6 section 147 or 148 or to take disciplinary action under 7 section 150. 8 (2) In the exercise of jurisdiction under the Industrial Relations 9 Act 1979, regard must be had to section 151. page 101 Health Services Bill 2016 Part 11 Substandard performance and disciplinary matters Division 1 General s. 154 1 Part 11 -- Substandard performance and 2 disciplinary matters 3 Division 1 -- General 4 154. Application and effect of Part 5 (1) Subject to section 155, this Part applies to all employees. 6 (2) This Part prevails to the extent that it is inconsistent with any 7 enactment that applies to -- 8 (a) an employee; or 9 (b) a member of a class of employees. 10 155. Application of Part in respect of former employees 11 (1) A person who has ceased to be employed in a health service 12 provider (a former employee) is, in prescribed circumstances, to 13 be taken to be an employee for the purposes of this Part if the 14 person -- 15 (a) may have committed a breach of discipline; and 16 (b) was an employee at the time of the suspected breach. 17 (2) If the former employee is found to have committed a breach of 18 discipline, the disciplinary action that may be taken under this 19 Act in respect of a former employee is the disciplinary action 20 prescribed for the purposes of this subsection. 21 (3) A former employee's retirement or resignation, or the benefits, 22 rights and liabilities arising from the retirement or resignation, 23 are not affected by any disciplinary action taken in respect of 24 the former employee. 25 (4) For the purposes of this Part, a reference to an employing 26 authority is, in prescribed circumstances, to be taken to be a 27 reference to the employing authority of a former employee. page 102 Health Services Bill 2016 Substandard performance and disciplinary matters Part 11 Substandard performance Division 2 s. 156 1 156. Power of employing authority to take improvement or other 2 action not limited 3 (1) Nothing in this Part limits the power of an employing authority 4 under other provisions of this Act to take improvement action in 5 relation to an employee in circumstances in which the 6 employing authority considers it appropriate to do so. 7 (2) Nothing in this Part limits the power of an employing authority 8 to take other action against an employee under Part 10 or under 9 any other law. 10 157. Inconsistent provisions, instruments and contracts 11 (1) In this section -- 12 industrial instrument means an award, industrial agreement or 13 order made under the Industrial Relations Act 1979, including a 14 General Order made under section 50 of that Act, whether made 15 before, on or after the commencement of this section. 16 (2) The provisions of this Part prevail, to the extent of any 17 inconsistency, over any other provision of this Act. 18 (3) The provisions of this Part and any regulations made for the 19 purposes of this Part prevail, to the extent of any inconsistency, 20 over any industrial instrument. 21 (4) The provisions of this Part and any regulations made for the 22 purposes of this Part prevail, to the extent of any inconsistency, 23 over the terms and conditions applying to an employee's 24 employment under a contract of employment or agreement with 25 the employee, whether entered into or renewed before, on or 26 after the commencement of this section. 27 Division 2 -- Substandard performance 28 158. What is substandard performance 29 (1) For the purposes of this Division, the performance of an 30 employee is substandard if and only if the employee does not, in page 103 Health Services Bill 2016 Part 11 Substandard performance and disciplinary matters Division 2 Substandard performance s. 159 1 the performance of the functions that the employee is required 2 to perform, attain or sustain a standard that a person may 3 reasonably be expected to attain or sustain in the performance of 4 those functions. 5 (2) Without limiting the generality of the matters to which regard 6 may be had for the purpose of determining whether or not the 7 performance of an employee is substandard, regard -- 8 (a) must be had -- 9 (i) to any written selection criteria or job 10 specifications applicable to; and 11 (ii) to any duty statement describing; and 12 (iii) to any written work standards or instructions 13 relating to the manner of performance of, 14 the functions the employee is required to perform; and 15 (b) may be had -- 16 (i) to any written selection criteria or job 17 specifications applicable to; and 18 (ii) to any duty statement describing; and 19 (iii) to any written work standards or instructions 20 relating to the manner of performance of, 21 functions similar to those functions. 22 159. Powers in relation to substandard performance 23 (1) Subject to subsection (2), if an employee's employing authority 24 is of the opinion that the performance of the employee is 25 substandard, the employing authority may -- 26 (a) withhold for such period as the employing authority 27 thinks fit an increment of remuneration otherwise 28 payable to the employee; or 29 (b) reduce the level of classification of the employee; or 30 (c) terminate the employment in the health service provider 31 of the employee. page 104 Health Services Bill 2016 Substandard performance and disciplinary matters Part 11 Disciplinary matters Division 3 s. 160 1 (2) If an employee does not admit to the employee's employing 2 authority that the employee's performance is substandard, that 3 employing authority must, before forming the opinion that the 4 performance of the employee is substandard, cause an 5 investigation to be held into whether or not the performance of 6 the employee is substandard. 7 Division 3 -- Disciplinary matters 8 160. Term used: section 173(2) breach of discipline 9 In this Division -- 10 section 173(2) breach of discipline means a breach of discipline 11 arising out of disobedience to, or disregard of, a lawful order 12 referred to in section 173(2). 13 161. What is a breach of discipline 14 An employee commits a breach of discipline if the employee -- 15 (a) disobeys or disregards a lawful order; or 16 (b) contravenes -- 17 (i) any provision of this Act applicable to that 18 employee; or 19 (ii) any public sector standard or code of ethics; or 20 (iii) a policy framework; 21 or 22 (c) commits an act of misconduct; or 23 (d) is negligent or careless in the performance of the 24 employee's functions; or 25 (e) commits an act of victimisation within the meaning of 26 the Public Interest Disclosure Act 2003 section 15. 27 162. Options in relation to suspected breach of discipline 28 If an employing authority of an employee is made aware, or 29 becomes aware, by any means that the employee may have page 105 Health Services Bill 2016 Part 11 Substandard performance and disciplinary matters Division 3 Disciplinary matters s. 163 1 committed a breach of discipline, the employing authority 2 may -- 3 (a) decide to deal with the matter as a disciplinary matter 4 under this Division in accordance with the relevant 5 regulations; or 6 (b) decide that it is appropriate -- 7 (i) to take improvement action with respect to the 8 employee; or 9 (ii) to take no action. 10 163. Dealing with disciplinary matter 11 (1) In dealing with a disciplinary matter under this Division an 12 employing authority -- 13 (a) must proceed with as little formality and technicality as 14 this Division, the relevant regulations and the 15 circumstances of the matter permit; and 16 (b) is not bound by the rules of evidence; and 17 (c) may, subject to this Division and the relevant 18 regulations, determine the procedure to be followed. 19 (2) Even though an employing authority decides to act under 20 section 162(a), the employing authority may, at any stage of the 21 process, decide instead that it is appropriate -- 22 (a) to take improvement action with respect to the 23 employee; or 24 (b) that no further action be taken. 25 (3) After dealing with a matter as a disciplinary matter under this 26 Division -- 27 (a) if the employing authority finds that the employee has 28 committed a section 173(2) breach of discipline, the 29 employing authority must take disciplinary action by 30 dismissing the employee; and page 106 Health Services Bill 2016 Substandard performance and disciplinary matters Part 11 Disciplinary matters Division 3 s. 164 1 (b) if the employing authority finds that the employee has 2 committed a breach of discipline that is not a 3 section 173(2) breach of discipline, the employing 4 authority must decide -- 5 (i) to take disciplinary action, or both disciplinary 6 action and improvement action, with respect to 7 the employee; or 8 (ii) to take improvement action with respect to the 9 employee; or 10 (iii) that no further action is to be taken. 11 164. Action against employee pending decision on breach of 12 discipline 13 (1) If an employing authority has decided to act under 14 section 162(a) in relation to an employee, the employing 15 authority may, in accordance with the relevant regulations -- 16 (a) suspend the employee on full pay, partial pay or without 17 pay; or 18 (b) alter the employee's scope of practice or duties. 19 (2) Subject to subsection (3) a suspension or alteration arising from 20 a decision referred to in subsection (1) has effect until a decision 21 is made under section 163(2) or (3) or 166 in respect of the 22 suspected breach. 23 (3) The employing authority may at any time remove, or vary the 24 terms of, the suspension or alteration. 25 (4) Unless the employing authority otherwise directs, any pay 26 withheld under subsection (1) is forfeited to the State if it is 27 decided to take disciplinary action with respect to the employee 28 for the breach of discipline. 29 (5) An employee is entitled to have any pay of the employee that is 30 withheld under subsection (1) and not forfeited under 31 subsection (4) restored to the employee. page 107 Health Services Bill 2016 Part 11 Substandard performance and disciplinary matters Division 3 Disciplinary matters s. 165 1 165. Special disciplinary inquiries 2 (1) The Department CEO may at any time before a decision is made 3 under section 162(b) or 163(2) or (3) in respect of a suspected 4 breach of discipline direct that a special disciplinary inquiry be 5 held into the suspected breach. 6 (2) A direction under subsection (1) may be made on the request of 7 the employing authority of the employee suspected to have 8 committed the breach of discipline or on the initiative of the 9 Department CEO. 10 (3) Sections 185 to 192 apply to and in relation to a person holding 11 a special disciplinary inquiry and to a special disciplinary 12 inquiry as if references in those sections to an inquirer and to an 13 inquiry were references to the person holding the special 14 disciplinary inquiry and to the special disciplinary inquiry, 15 respectively. 16 (4) Without limiting subsection (1), a person holding a special 17 disciplinary inquiry may have regard to any information 18 elicited, or findings made, in another special disciplinary 19 inquiry, or in an investigation, inspection or audit under Part 13 20 or an inquiry under Part 14. 21 (5) A person who holds a special disciplinary inquiry must, at the 22 conclusion of the inquiry -- 23 (a) make a finding that the employee -- 24 (i) has committed a section 173(2) breach of 25 discipline; or 26 (ii) has committed a breach of discipline other than a 27 section 173(2) breach of discipline; or 28 (iii) has not committed a breach of discipline; 29 and 30 (b) prepare a report on the conduct and finding of the 31 special disciplinary inquiry; and page 108 Health Services Bill 2016 Substandard performance and disciplinary matters Part 11 Disciplinary matters Division 3 s. 166 1 (c) if the finding is that the employee has committed a 2 breach of discipline other than a section 173(2) breach 3 of discipline, include in the report a recommendation as 4 to any disciplinary action and improvement action that 5 should be taken by the employing authority; and 6 (d) provide the employing authority and the Department 7 CEO with a copy of the report. 8 166. Consequence of report of special disciplinary inquiry 9 On receiving a report under section 165(5), the employing 10 authority must accept the finding in the report and -- 11 (a) in the case of a finding that the employee has committed 12 a section 173(2) breach of discipline, take disciplinary 13 action by dismissing the employee; or 14 (b) in the case of a finding that the employee has committed 15 a breach of discipline other than a section 173(2) breach 16 of discipline -- 17 (i) decide to take disciplinary action or 18 improvement action, or both disciplinary action 19 and improvement action, in relation to the 20 employee in accordance with the 21 recommendation in the report; or 22 (ii) decline to accept the recommendation in the 23 report and decide to take such other disciplinary 24 action or improvement action, or both 25 disciplinary action and improvement action, in 26 relation to the employee as could have been 27 recommended in the report; 28 or 29 (c) in the case of a finding that no breach of discipline was 30 committed by the employee, notify the employee of that 31 finding and that no further action will be taken in the 32 matter. page 109 Health Services Bill 2016 Part 11 Substandard performance and disciplinary matters Division 3 Disciplinary matters s. 167 1 167. Notification of outcome of disciplinary matter 2 (1) The employing authority of an employee must notify the 3 employee -- 4 (a) whether or not the employee has been found under this 5 Division to have committed any breach of discipline 6 alleged against the employee; and 7 (b) if such a finding has been made against the employee, 8 what action has been taken under this Division in 9 relation to the employee. 10 (2) The employing authority of an employee must notify the 11 Department CEO if -- 12 (a) the employee has been found under this Division to have 13 committed any breach of discipline alleged against the 14 employee; and 15 (b) the disciplinary action ordered was dismissal, or the 16 employing authority is of the opinion that the breach of 17 discipline could result in a serious risk to the safety of 18 patients. 19 (3) A notification under subsection (1) or (2) must be given in 20 writing within 30 days of the finding being made. 21 (4) The Department CEO may notify any employing authority of 22 the employee of the matters notified under subsection (2). 23 168. Termination of other employment if employee is dismissed 24 (1) Any employing authority of an employee may, after receiving 25 notification under section 167(4) that the employee has been 26 dismissed by disciplinary action under this Part by another 27 employing authority of the employee, terminate the employment 28 of the employee. 29 (2) An employing authority -- 30 (a) must not terminate the employment of an employee 31 under subsection (1) earlier than the prescribed period page 110 Health Services Bill 2016 Substandard performance and disciplinary matters Part 11 Appeals and referrals Division 4 s. 169 1 after receiving notification under section 167(4) in 2 respect of the employee; and 3 (b) must comply with the relevant policy framework when 4 acting under subsection (1). 5 (3) If the employment of an employee is terminated under 6 subsection (1), the contract of employment of the employee is 7 terminated. 8 169. Payment and recovery of fine 9 If a fine is imposed on an employee under this Division, the 10 employee must pay the amount of the fine to the Treasurer and, 11 if the employee does not do so, that amount may be recovered in 12 a court of competent jurisdiction as a debt owing to the State. 13 170. When disciplinary action can be taken 14 A decision of an employing authority to take disciplinary action 15 or improvement action with respect to an employee may be 16 carried into effect at any time. 17 Division 4 -- Appeals and referrals 18 171. Terms used 19 In this section -- 20 government officer has the meaning given in the Industrial 21 Relations Act 1979 section 80C; 22 Industrial Commission has the meaning given to Commission 23 in the Industrial Relations Act 1979 section 7(1). 24 172. Certain decisions and findings may be appealed or referred 25 (1) In this section -- 26 disciplinary decision or finding means -- 27 (a) a decision made under section 159(1)(b) or (c); or page 111 Health Services Bill 2016 Part 11 Substandard performance and disciplinary matters Division 4 Appeals and referrals s. 172 1 (b) a finding made in the exercise of a power under 2 section 165(5)(a)(ii); or 3 (c) a decision made under section 147, 148 or 164 to 4 suspend a government officer or other employee on 5 partial pay or without pay; or 6 (d) a decision to take disciplinary action made under 7 section 150(1), 163(3)(b) or 166(b); or 8 (e) a decision to terminate the employment of a government 9 officer or other employee under section 168(1). 10 (2) Subject to sections 118 and 173, an employee or former 11 employee who -- 12 (a) is, or was, a government officer; and 13 (b) is aggrieved by a disciplinary decision or finding made 14 in respect of the government officer, 15 may appeal against that decision or finding to the Industrial 16 Commission constituted by a Public Service Appeal Board 17 appointed under the Industrial Relations Act 1979 Part IIA 18 Division 2. 19 (3) A Public Service Appeal Board has jurisdiction to hear and 20 determine an appeal under subsection (2) in accordance with the 21 Industrial Relations Act 1979 Part IIA Division 2. 22 (4) Despite the Industrial Relations Act 1979 section 29, but subject 23 to section 173, an employee or former employee who -- 24 (a) is not a government officer; and 25 (b) is aggrieved by a disciplinary decision or finding made 26 in respect of the employee, 27 may refer the decision or finding to the Industrial Commission 28 as if the decision or finding were an industrial matter that could 29 be so referred under the Industrial Relations Act 1979, and that 30 Act applies to and in relation to that decision accordingly. 31 (5) A referral under subsection (4) must be made within the 32 prescribed period after the making of the decision or finding. page 112 Health Services Bill 2016 Substandard performance and disciplinary matters Part 11 Appeals and referrals Division 4 s. 173 1 (6) If it appears to the Industrial Commission or the Public Service 2 Appeal Board that the employing authority failed to comply 3 with the relevant policy framework or the rules of procedural 4 fairness in making the decision or finding the subject of a 5 referral or appealed against, the Industrial Commission or 6 Public Service Appeal Board -- 7 (a) is not required to determine the reference or allow the 8 appeal solely on that basis and may proceed to decide 9 the reference or appeal on its merits; or 10 (b) may quash the decision or finding and remit the matter 11 back to the employing authority with directions as to the 12 stage at which the disciplinary process in relation to the 13 matter is to be recommenced by the employing authority 14 if the employing authority continues the disciplinary 15 process. 16 173. Referrals in relation to directions that are lawful orders 17 (1) A reference in this section to an applied section is a reference to 18 that section of the PSM Act as applied under Part 12. 19 (2) A direction referred to in applied section 94(2)(b) or (3)(c)(i) is 20 a lawful order for the purposes of section 161(a) if -- 21 (a) the direction is given to the employee concerned in 22 accordance with the relevant regulations referred to in 23 applied section 94; and 24 (b) the direction is upheld by the Industrial Commission on 25 a referral under applied section 95(2), or if the period 26 referred to in applied section 95(3) has expired without 27 that direction having been so referred. 28 (3) Nothing in subsection (2) limits the meaning of lawful order in 29 section 161(a). 30 (4) Despite the Industrial Relations Act 1979 section 29(1), but 31 subject to section 118, an employee or former employee -- 32 (a) against whom proceedings have been taken under this 33 Part for a suspected breach of discipline arising out of page 113 Health Services Bill 2016 Part 11 Substandard performance and disciplinary matters Division 4 Appeals and referrals s. 173 1 alleged disobedience to, or disregard of, a direction 2 which is by virtue of subsection (2) a lawful order for 3 the purposes of section 161(a); and 4 (b) who is aggrieved by -- 5 (i) a decision made under section 164 to suspend the 6 employee on partial pay or without pay; or 7 (ii) a finding made in respect of the person referred 8 to in section 163(3)(a), 165(5)(a)(i) or 166(a), 9 may refer the decision or finding referred to in paragraph (b) to 10 the Industrial Commission as if that decision or finding were an 11 industrial matter that could be so referred under that Act. 12 (5) The Industrial Relations Act 1979 applies to and in relation to 13 that decision or finding referred under subsection (4) as if the 14 decision were an industrial matter referred to the Industrial 15 Commission in accordance with that Act. 16 (6) In exercising its jurisdiction under this section in relation to a 17 direction consisting of a lawful order referred to in 18 subsection (2), the Industrial Commission must confine itself to 19 determining whether or not that direction has been, or is capable 20 of having been, complied with. page 114 Health Services Bill 2016 Redeployment and redundancy of employees Part 12 s. 174 1 Part 12 -- Redeployment and redundancy 2 of employees 3 174. Application of PSM Act Part 6 and regulations made for the 4 purposes of that Part 5 (1) The PSM Act Part 6 applies, with the changes set out in 6 subsection (2) and any other necessary changes, to and in 7 respect of health service providers and employees in health 8 service providers. 9 (2) For the purposes of subsection (1) the following changes 10 apply -- 11 (a) section 173(2) of this Act applies in the place of the 12 PSM Act section 94(4); 13 (b) the reference in the PSM Act section 95(1) definition of 14 section 94 decision to "a lawful order by virtue of 15 section 94(4)" is to be read as "a lawful order by virtue 16 of the Health Services Act 2016 section 173(2)". 17 (3) The regulations may modify the operation of regulations made 18 for the purposes of the PSM Act Part 6 in relation to their 19 application to and in respect of health service providers and 20 employees in health service providers. page 115 Health Services Bill 2016 Part 13 Investigations, inspections and audits s. 175 1 Part 13 -- Investigations, inspections and audits 2 175. Department CEO may investigate, inspect or audit health 3 service provider 4 The Department CEO may, for the purpose of assessing 5 compliance with this Act -- 6 (a) investigate the management, administration and 7 operations of, and health services provided by, a health 8 service provider; and 9 (b) inspect public health service facilities and other 10 premises of a health service provider; and 11 (c) audit health service providers. 12 176. Procedures 13 Subject to the policy framework mentioned in section 26(2)(j) 14 and this Part, the Department CEO may determine the 15 procedures to be followed in connection with investigations, 16 inspections and audits under this Part. 17 177. Powers of Department CEO 18 (1) In this section -- 19 confidential information means any information that -- 20 (a) is about a person who is receiving or has received a 21 health service; and 22 (b) could identify the person; 23 record includes any record of information, irrespective of how 24 the information is recorded or stored or able to be recovered and 25 includes -- 26 (a) anything from which images, sounds or writings can be 27 reproduced, with or without the aid of anything else; and 28 (b) anything on which information is recorded or stored, 29 whether electronically, magnetically, mechanically or by 30 some other means. page 116 Health Services Bill 2016 Investigations, inspections and audits Part 13 s. 177 1 (2) For the purposes of section 175, the Department CEO may enter 2 the premises of a health service provider (including any hospital 3 or other facility controlled or managed by the health service 4 provider) to investigate any matters relating to the operation or 5 administration of the health service provider. 6 (3) On entering premises under this section the Department CEO 7 may do any one or more of the following -- 8 (a) inspect the premises; 9 (b) generally make any investigation or inquiry that is 10 relevant to the operation or administration of the health 11 service provider; 12 (c) examine any records of the health service provider, 13 including records containing confidential information, 14 that are relevant to the Department CEO's functions; 15 (d) make copies of records referred to in paragraph (c) or 16 any part of them and, for that purpose, take away and 17 retain any of those records or any part of them for any 18 time that may be reasonably necessary; 19 (e) require a person in or about the premises to provide 20 information or answer questions in connection with the 21 Department CEO's functions; 22 (f) require any person to produce any record or other thing 23 in the possession or under the control of the person that 24 relates to, or that the Department CEO believes on 25 reasonable grounds relates to, the operation or 26 administration of the health service provider; 27 (g) require the owner or occupier of the premises to provide 28 the Department CEO with such assistance and facilities 29 as is or are reasonably necessary to enable the 30 Department CEO to exercise functions under this 31 section. page 117 Health Services Bill 2016 Part 13 Investigations, inspections and audits s. 178 1 178. Incriminating information or answers 2 (1) An individual is not excused from complying with a 3 requirement under section 177(3) to provide information or 4 answer questions, or to produce any document or thing, on the 5 ground that the information, answer, document or thing might 6 tend to incriminate the individual or make the individual liable 7 to a penalty. 8 (2) However, any information or answer provided, or document or 9 thing produced, by an individual in compliance with a 10 requirement under section 177(3) is not admissible in evidence 11 in any criminal proceedings against the individual, other than 12 proceedings for an offence under section 181. 13 179. Liability for complying with requirement 14 (1) A person must comply with a requirement under section 177(3) 15 to provide information or answer questions, or to produce any 16 document or thing, despite the provisions of any other written 17 law. 18 (2) No civil or criminal liability is incurred as a result of 19 compliance with a requirement under section 177(3). 20 (3) Compliance with a requirement under section 177(3) is not to be 21 regarded as -- 22 (a) a breach of any duty of confidentiality or secrecy 23 imposed by law; or 24 (b) a breach of professional ethics or standards or any 25 principles of conduct applicable to the person's 26 employment; or 27 (c) unprofessional conduct. page 118 Health Services Bill 2016 Investigations, inspections and audits Part 13 s. 180 1 180. Failure to comply with requirement 2 (1) A person must not, without reasonable excuse, fail to comply 3 with a requirement of the Department CEO under 4 section 177(3). 5 Penalty for this subsection: a fine of $10 000. 6 (2) Subsection (1) does not apply unless, when the Department 7 CEO makes the requirement, the Department CEO informs the 8 person that a failure to comply with the requirement may 9 constitute an offence. 10 181. False information 11 A person must not, in connection with a requirement made by 12 the Department CEO under section 177(3), provide any 13 information or produce any document that the person knows is 14 false or misleading in a material particular. 15 Penalty: a fine of $10 000. page 119 Health Services Bill 2016 Part 14 Inquiries s. 182 1 Part 14 -- Inquiries 2 182. Terms used 3 In this Division -- 4 inquirer means a person conducting an inquiry; 5 inquiry means an inquiry conducted under section 183. 6 183. Department CEO may conduct inquiry 7 (1) The Department CEO may, on the Department CEO's own 8 initiative or on the direction of the Minister, conduct an inquiry 9 in respect of part or all of the functions, management or 10 operations of one or more health service providers. 11 (2) An inquiry may be conducted by the Department CEO 12 personally, or by a person appointed in writing by the 13 Department CEO for the purpose. 14 (3) A person appointed by the Department CEO to conduct an 15 inquiry -- 16 (a) is to be paid the remuneration and allowances (if any) 17 that are determined by the Department CEO on the 18 recommendation of the Public Sector Commissioner; 19 and 20 (b) must conduct the inquiry in accordance with any 21 directions given in writing by the Department CEO. 22 184. Preliminary matters 23 (1) Before an inquiry is conducted, the Department CEO must -- 24 (a) inform the Minister in writing of the Department CEO's 25 intention to do so; and 26 (b) state in writing the terms of reference of the inquiry; and 27 (c) if the inquiry is to be conducted by someone other than 28 the Department CEO, state in writing which (if any) of 29 the powers set out in section 187 the inquirer is to have 30 for the purposes of the inquiry. page 120 Health Services Bill 2016 Inquiries Part 14 s. 185 1 (2) The Department CEO may at any time, in writing -- 2 (a) amend the terms of reference of an inquiry; or 3 (b) amend the statement of powers required by 4 subsection (1)(c). 5 (3) If the Department CEO does either of the things mentioned in 6 subsection (2), the Department CEO must inform the Minister 7 in writing what the Department CEO has done. 8 185. Procedure 9 (1) In conducting an inquiry the inquirer -- 10 (a) must act with as little formality as possible; and 11 (b) is not bound by the rules of evidence and may inform 12 themself on any matter in any manner the inquirer 13 considers appropriate; and 14 (c) may receive written or oral submissions; and 15 (d) may consult with any person the inquirer considers 16 appropriate. 17 (2) Subject to this Part and the regulations, the inquirer may 18 determine the procedure to be followed at, or in connection 19 with, an inquiry. 20 186. Hearings 21 (1) The inquirer may hold hearings for the purposes of an inquiry. 22 (2) Hearings must be held in public. 23 (3) However, the inquirer may direct that a hearing, or any part of a 24 hearing, be held in private if the inquirer is satisfied that it is 25 desirable to do so because of the confidential nature of any 26 evidence or matter or for any other reason. 27 (4) The inquirer has a discretion as to whether any person may 28 appear at a hearing in person or be represented by another 29 person. page 121 Health Services Bill 2016 Part 14 Inquiries s. 187 1 187. Inquirer's powers 2 (1) For the purposes of an inquiry, the inquirer (if the Department 3 CEO) -- 4 (a) may, by written notice, require the attendance of a 5 person at a place and time specified in the notice; and 6 (b) may, by written notice, require a person to produce at a 7 place and time specified in the notice a document that is 8 in the possession or under the control of that person; and 9 (c) may inspect any document produced and retain it for 10 any reasonable period that the inquirer thinks fit, and 11 may make copies of it or any of its contents; and 12 (d) may require a person to take an oath or make an 13 affirmation and may administer an oath or affirmation to 14 a person; and 15 (e) may require a person to answer any question put to that 16 person. 17 (2) For the purposes of an inquiry, the inquirer (if not the 18 Department CEO) has whichever of the powers set out in 19 subsection (1) that the statement in writing required by 20 section 184(1)(c) states that the inquirer is to have for that 21 purpose. 22 (3) A person required by a notice under this section to attend or to 23 produce a document is entitled to be paid the prescribed 24 allowances (if any) for the person's travelling and other 25 expenses. 26 188. Failure to comply with requirements of notice 27 (1) A person must not, without lawful excuse, refuse or fail to 28 attend as required by a notice under section 187(1)(a). 29 Penalty for this subsection: a fine of $10 000. page 122 Health Services Bill 2016 Inquiries Part 14 s. 189 1 (2) A person must not, without lawful excuse, refuse or fail to 2 produce a document as required by a notice under 3 section 187(1)(b). 4 Penalty for this subsection: a fine of $10 000. 5 (3) A person must not, without lawful excuse, refuse or fail to be 6 sworn or make an affirmation when required to do so under 7 section 187(1)(d). 8 Penalty for this subsection: a fine of $10 000. 9 (4) A person must not, without lawful excuse, refuse or fail to 10 answer a question when required to do so under 11 section 187(1)(e). 12 Penalty for this subsection: a fine of $10 000. 13 189. Incriminating answers or documents 14 (1) It is not a lawful excuse for the purposes of section 188 for an 15 individual to refuse to answer a question or produce a document 16 on the ground that the answer or the document might tend to 17 incriminate the individual or make the individual liable to a 18 penalty. 19 (2) However, an answer given or a document produced by an 20 individual in compliance with a requirement under section 187 21 is not admissible in evidence in any criminal proceedings 22 against the individual, other than proceedings for an offence 23 under section 191. 24 190. Disruption of inquiry 25 (1) A person must not wilfully insult an inquirer when the inquirer 26 is conducting an inquiry. 27 Penalty for this subsection: a fine of $10 000. 28 (2) A person must not wilfully interrupt or wilfully obstruct the 29 conduct of an inquiry. 30 Penalty for this subsection: a fine of $10 000. page 123 Health Services Bill 2016 Part 14 Inquiries s. 191 1 191. False information 2 During an inquiry a person must not give an answer or other 3 information to the inquirer if the person knows that the answer 4 or information is false or misleading in a material particular. 5 Penalty: a fine of $10 000. 6 192. Protection for certain purposes 7 (1) A person (the informant) is not liable in any way for any loss or 8 damage suffered by another person because the informant has 9 given information or produced a document, in good faith, to an 10 inquirer for the purposes of an inquiry. 11 (2) An action in tort does not lie against an inquirer, or any person 12 acting under the direction of an inquirer, for anything the 13 inquirer or person has done or omitted to do, in good faith, for 14 the purposes of an inquiry or an inquirer's report under 15 section 193. 16 (3) Nothing in this section limits section 220 or 226. 17 193. Reports 18 (1) As soon as is practicable after completing an inquiry, the 19 inquirer must -- 20 (a) prepare a written report relating to the inquiry; and 21 (b) give the report to each health service provider to which 22 the inquiry relates; and 23 (c) notify the health service provider that the health service 24 provider may provide comments on the report to the 25 inquirer with 28 days after receiving the report. 26 (2) The report must include -- 27 (a) the inquirer's findings and conclusions from conducting 28 the inquiry; and page 124 Health Services Bill 2016 Inquiries Part 14 s. 193 1 (b) any recommendations that the inquirer wishes to make 2 arising from the inquiry and the reasons for those 3 recommendations; and 4 (c) any comments on the report received by the inquirer 5 under subsection (1)(c); and 6 (d) any other prescribed matters. 7 (3) The Minister must cause a copy of the report to be laid before 8 each House of Parliament, or dealt with under section 229, 9 within 14 sitting days after the report is given. page 125 Health Services Bill 2016 Part 15 Changes to health service providers Division 1 Transfer of assets, rights and liabilities s. 194 1 Part 15 -- Changes to health service providers 2 Division 1 -- Transfer of assets, rights and liabilities 3 194. Minister may order transfer of assets, rights or liabilities 4 (1) In this section -- 5 associated interest means a lease, easement, occupancy right, 6 contract, agreement, asset, liability, licence, instrument or other 7 right, function or obligation associated with an interest in land 8 transferred under subsection (2)(a) or (b); 9 earlier transfer order includes an earlier transfer order under 10 section 238. 11 (2) The Minister may, by order published in the Gazette (a transfer 12 order) -- 13 (a) transfer an interest in land, or any other asset, right or 14 liability, held by the State or the Ministerial Body to a 15 health service provider; 16 (b) transfer an interest in land, or any other asset, right or 17 liability, held by a health service provider to the State, 18 the Ministerial Body or another health service provider; 19 (c) transfer or grant, to the State, the Ministerial Body or a 20 health service provider, an associated interest; 21 (d) vary an associated interest held by the State, the 22 Ministerial Body or a health service provider. 23 (3) A transfer order may specify things by reference to one or more 24 schedules that -- 25 (a) need not be published in the Gazette; but 26 (b) must be available for public inspection. 27 (4) Anything specified in a schedule for a transfer order is to be 28 taken to be specified in the transfer order. 29 (5) A thing may be specified in a transfer order by describing the 30 class to which it belongs. page 126 Health Services Bill 2016 Changes to health service providers Part 15 Changes to, or abolition of, health service provider Division 2 s. 195 1 (6) Before a transfer order relating to an interest in land or an 2 associated interest is made specifying anything by reference to a 3 schedule, the Minister must consult with each relevant lands 4 official about the form and content of the schedule. 5 (7) To the extent to which a schedule for a transfer order relates to 6 the functions of the Registrar of Titles, the schedule must be in a 7 form that meets the requirements of the Registrar. 8 (8) A transfer order may amend an earlier transfer order or a 9 schedule for a transfer order, or a further transfer order may be 10 made, to correct an error in an earlier transfer order or schedule 11 for a transfer order. 12 (9) A transfer order may contain provisions of a savings or 13 transitional nature consequent on the making of the order. 14 (10) A thing done by, under or for the purposes of this Division is 15 not invalid merely because subsection (6) or (7) was not 16 complied with. 17 Division 2 -- Changes to, or abolition of, health 18 service provider 19 195. Amendment of order establishing health service provider 20 The Minister may, by order published in the Gazette, amend an 21 order made under section 32(1) by -- 22 (a) altering the name of the health service provider 23 established by the order; or 24 (b) altering the area in respect of which a health service 25 provider is established; or 26 (c) changing the nature of governance of a health service 27 provider. page 127 Health Services Bill 2016 Part 15 Changes to health service providers Division 2 Changes to, or abolition of, health service provider s. 196 1 196. Abolition, amalgamation, merger or division of health 2 service provider 3 The Minister may, by order published in the Gazette -- 4 (a) abolish a health service provider; or 5 (b) amalgamate 2 or more existing health service providers 6 and establish a new health service provider under 7 section 32(1)(b); or 8 (c) merge 2 or more existing health service providers; or 9 (d) divide a health service provider and establish 2 or more 10 new health service providers under section 32(1)(b). 11 197. Order may include savings and transitional provisions 12 An order under section 195 or 196 may contain provisions, not 13 inconsistent with this Part or regulations made under 14 section 205(2), of a savings or transitional nature consequent on 15 the making of the order, including provisions with respect to the 16 following -- 17 (a) the rights, obligations and liabilities of a health service 18 provider; 19 (b) the rights and interests of persons employed by a health 20 service provider; 21 (c) the continuation of legal proceedings pending by or 22 against a health service provider. 23 198. Change of name 24 (1) The change of name of a health service provider by order under 25 section 195(a) does not operate -- 26 (a) to create a new legal entity; or 27 (b) to prejudice or affect the identity of the body corporate 28 constituted as a health service provider or its continuity 29 as a health service provider; or 30 (c) to affect the property, or the rights or obligations, of the 31 health service provider; or page 128 Health Services Bill 2016 Changes to health service providers Part 15 Changes to, or abolition of, health service provider Division 2 s. 199 1 (d) to render defective any legal proceedings by or against 2 the health service provider. 3 (2) Any legal proceedings that could have been continued or 4 commenced by or against the health service provider by its 5 former name may be continued or commenced by or against it 6 by its new name. 7 199. Board of health service provider 8 (1) On the day on which the nature of the governance of a health 9 service provider is changed by order under section 195(c) from 10 board governed provider to chief executive governed provider, 11 the members of the board cease to hold office. 12 (2) On the day on which a board governed provider is abolished by 13 order under section 196(a), amalgamated by order under 14 section 196(b) or divided by order under section 196(d), the 15 members of the board cease to hold office. 16 (3) On the day on which 2 or more health service providers are 17 merged by order under section 196(c), the members of the board 18 of any board governed provider specified in the order as a health 19 service provider to be abolished cease to hold office. 20 200. Transfer of assets, rights and liabilities 21 (1) In this section -- 22 assets does not include moneys standing to the credit of an 23 account established under section 64 for a health service 24 provider. 25 (2) On the day on which a health service provider is abolished by 26 order under section 196(a), each asset, right and liability of the 27 health service provider is transferred -- 28 (a) if a transfer order made under section 194 applies to the 29 asset, right or liability -- to the State, the Ministerial 30 Body or the health service provider as specified in the 31 transfer order; and page 129 Health Services Bill 2016 Part 15 Changes to health service providers Division 2 Changes to, or abolition of, health service provider s. 201 1 (b) otherwise -- to the Ministerial Body. 2 (3) On the day on which 2 or more health service providers are 3 amalgamated by order under section 196(b) -- 4 (a) each health service provider amalgamated by the order 5 is abolished; and 6 (b) the assets, rights and liabilities of each amalgamating 7 health service provider are transferred to the new health 8 service provider. 9 (4) On the day on which 2 or more health service providers are 10 merged by order under section 196(c) -- 11 (a) each health service provider specified in the order as a 12 health service provider to be abolished is abolished; and 13 (b) the assets, rights and liabilities of each of those health 14 service providers are transferred to the health service 15 provider that is specified in the order as the health 16 service provider that is to continue. 17 (5) On the day on which a health service provider is divided by 18 order under section 196(d), each asset, right and liability of the 19 health service provider is transferred -- 20 (a) if a transfer order made under section 194 applies to the 21 asset, right or liability -- to the State, the Ministerial 22 Body or the health service provider as specified in the 23 transfer order; and 24 (b) otherwise -- to the Ministerial Body. 25 201. Former accounts 26 (1) In this section -- 27 former account, in relation to a health service provider that has 28 been abolished, divided or merged with another health service 29 provider, means the account established under section 64 for the 30 health service provider; page 130 Health Services Bill 2016 Changes to health service providers Part 15 Changes to, or abolition of, health service provider Division 2 s. 201 1 operating account means an agency special purpose account 2 established under the Financial Management Act 2006 3 section 16. 4 (2) On the day on which a health service provider is abolished by 5 order under section 196(a) -- 6 (a) any moneys standing to the credit of the health service 7 provider's former account are to be credited to an 8 operating account of the Department; and 9 (b) the former account is then to be closed. 10 (3) On the day on which 2 or more health service providers are 11 abolished under section 200(3)(a) as a consequence of an order 12 under section 196(b) -- 13 (a) any moneys standing to the credit of the health service 14 providers' former accounts are to be credited to the 15 operating account of the new health service provider 16 established by the order; and 17 (b) the former accounts are then to be closed. 18 (4) On the day on which 2 or more health service providers are 19 merged by order under section 196(c) -- 20 (a) any moneys standing to the credit of the former account 21 of a health service provider that is specified in the order 22 as a health service provider to be abolished are to be 23 credited to the operating account of the health service 24 provider that is specified in the order as the service 25 provider that is to continue; and 26 (b) the former accounts are then to be closed. 27 (5) On the day on which a health service provider is divided by 28 order under section 196(d) -- 29 (a) any moneys standing to the credit of the health service 30 provider's former account are to be credited to the 31 operating accounts of the new health service providers 32 as determined by the Department CEO; and page 131 Health Services Bill 2016 Part 15 Changes to health service providers Division 3 General provisions s. 202 1 (b) the former account is then to be closed. 2 Division 3 -- General provisions 3 202. Term used: transfer order 4 In this Division -- 5 transfer order has the meaning given in section 194(2). 6 203. Registration of documents 7 (1) The relevant lands officials -- 8 (a) must take notice of this Part and any transfer order, 9 including any schedule for the transfer order; and 10 (b) must record and register in the appropriate manner the 11 documents necessary to show the effect of this Part and 12 any transfer order. 13 (2) The Minister must give a copy of each transfer order and any 14 schedule for it, and any amendment to a transfer order or to a 15 schedule for a transfer order, to each relevant lands official. 16 204. Exemption from State tax 17 (1) State tax is not payable in relation to -- 18 (a) anything that occurs by operation of this Part; or 19 (b) anything done (including a transaction entered into or an 20 instrument or document of any kind made, executed, 21 lodged or given) under this Part, or to give effect to this 22 Part, or for a purpose connected with or arising out of 23 giving effect to this Part. 24 (2) The Minister may certify in writing that -- 25 (a) a specified thing occurred by operation of this Part; or 26 (b) a specified thing was done under this Part, or to give 27 effect to this Part, or for a purpose connected with or 28 arising out of giving effect to this Part. page 132 Health Services Bill 2016 Changes to health service providers Part 15 General provisions Division 3 s. 205 1 (3) For all purposes and in all proceedings, a certificate under 2 subsection (2) is sufficient evidence of the matters it certifies 3 unless the contrary is shown. 4 205. Transitional regulations 5 (1) In this section -- 6 publication day, for regulations made under subsection (3), 7 means the day on which the regulations are published in the 8 Gazette; 9 specified means specified or described in regulations made 10 under subsection (3); 11 transitional matter -- 12 (a) means a matter that needs to be dealt with for the 13 purpose of effecting a transition under this Part; and 14 (b) includes a saving or application matter. 15 (2) The Governor may make regulations about the following -- 16 (a) the abolition, amalgamation, merger or division of 17 health service providers; 18 (b) changing the services to be provided by a health service 19 provider as a consequence of the making of an order 20 under section 195 or 196, including by transferring the 21 services to be provided from one health service provider 22 to another health service provider; 23 (c) any matter or thing necessary or convenient to facilitate 24 or support a thing mentioned in paragraph (a) or (b) 25 including -- 26 (i) the transfer of staff; 27 (ii) staff entitlements; 28 (iii) matters relating to contracts, agreements or other 29 documents entered into by a health service 30 provider, the Department CEO or the State; page 133 Health Services Bill 2016 Part 15 Changes to health service providers Division 3 General provisions s. 205 1 (iv) the continuation of proceedings involving a 2 health service provider, the Department or the 3 State. 4 (3) Without limiting subsection (2), if there is no sufficient 5 provision in this Part or in a transfer order for dealing with a 6 transitional matter, the Governor may make regulations 7 prescribing matters -- 8 (a) required to be prescribed for the purpose of dealing with 9 the transitional matter; or 10 (b) necessary or convenient to be prescribed for the purpose 11 of dealing with the transitional matter. 12 (4) Without limiting subsection (3), regulations made under that 13 subsection may provide -- 14 (a) for or with respect to the legal consequences of the 15 differential transfer of rights, obligations or other 16 liabilities under the same contract or other agreement to 17 more than one transferee; 18 (b) that specified provisions of this Act -- 19 (i) do not apply to or in relation to a specified 20 matter; or 21 (ii) apply with specified modifications to or in 22 relation to a specified matter. 23 (5) If regulations made under subsection (3) provide that a specified 24 state of affairs is to be taken to have existed, or not to have 25 existed, on and after a day that is earlier than publication day 26 but not earlier than transition day, the regulations have effect 27 according to their terms. 28 (6) If regulations contain a provision referred to in subsection (5), 29 the provision does not operate so as -- 30 (a) to affect in a manner prejudicial to any person (other 31 than the State or an authority of the State) the rights of 32 that person existing before publication day for those 33 regulations; or page 134 Health Services Bill 2016 Changes to health service providers Part 15 General provisions Division 3 s. 206 1 (b) to impose liabilities on a person (other than the State or 2 an authority of the State) in respect of an act done or 3 omission made before publication day for those 4 regulations. 5 (7) A regulation referred to in this section has, if the regulations so 6 provide, effect despite any other provision of this Part. 7 (8) Regulations can only be made under subsection (3) within 8 36 months after the making of the relevant order under 9 section 195 or 196. 10 206. Effect of other instruments, rights and obligations 11 The operation of this Part, regulations made under this Part or a 12 transfer order must not be regarded -- 13 (a) as a breach of contract or confidence or otherwise as a 14 civil wrong; or 15 (b) as a breach of any contractual provision prohibiting, 16 restricting or regulating the assignment or transfer of 17 assets, rights or liabilities or the disclosure of 18 information; or 19 (c) as giving rise to any remedy by a party to an instrument, 20 or as causing or permitting the termination of any 21 instrument, because of a change in the beneficial or legal 22 ownership of any assets, rights or liabilities; or 23 (d) as causing any contract or instrument to be void or 24 otherwise unenforceable; or 25 (e) as releasing or allowing the release of any surety. page 135 Health Services Bill 2016 Part 16 Control of conduct and traffic on health service provider land s. 207 1 Part 16 -- Control of conduct and traffic on health 2 service provider land 3 207. Term used: health service provider land 4 In this Part -- 5 health service provider land means land declared under 6 section 208(1) to be health service provider land. 7 208. Declaration of health service provider land 8 (1) For the purposes of this Part and regulations made under this 9 Act, the Minister may, by order published in the Gazette, 10 declare any land vested in, or under the care, control and 11 management of, a health service provider to be health service 12 provider land. 13 (2) The Minister may revoke or amend an order made under 14 subsection (1). 15 (3) In proceedings for a contravention of a regulation an allegation 16 in the prosecution notice that any place was within the 17 boundaries of health service provider land to which the 18 regulations applied is sufficient evidence of the fact alleged in 19 the absence of proof to the contrary. 20 209. Regulations about conduct on, and use of, health service 21 provider land 22 Without limiting section 230, the regulations may provide for, 23 authorise, prescribe, require, prohibit, restrict or otherwise 24 regulate the following -- 25 (a) the maintenance of good order on health service 26 provider land; 27 (b) conduct of persons on health service provider land; 28 (c) the prohibition, restriction or regulation of the admission 29 of persons, vehicles and animals to health service 30 provider land; page 136 Health Services Bill 2016 Control of conduct and traffic on health service provider land Part 16 s. 210 1 (d) what may be brought on to health service provider land; 2 (e) the appointment of authorised persons and their powers 3 in connection with the operation and enforcement of the 4 regulations; 5 (f) the conferral on persons specified in the regulations of 6 powers -- 7 (i) to remove property from health service provider 8 land, move property within the land, and recover 9 attendant costs and expenses; and 10 (ii) to take possession of property on health service 11 provider land that appears to be lost, discarded or 12 disused and, subject to any prescribed 13 requirements for notice to be given, to dispose of 14 the property as if it were property of the health 15 service provider; 16 (g) the method of notifying a person alleged to have 17 committed an offence against a regulation of the alleged 18 offence and how it may or will be dealt with. 19 210. Regulations about management and control of traffic 20 (1) In this section -- 21 specified means specified in the regulations. 22 (2) Without limiting section 209 or 230, the regulations may 23 provide for, authorise, prescribe, require, prohibit, restrict or 24 otherwise regulate the following -- 25 (a) the use of vehicles on health service provider land; and 26 (b) the control, supervision and management of parking or 27 standing areas on health service provider land. 28 (3) The regulations may -- 29 (a) include provisions as to speed, manner of driving, class 30 of vehicles, routes, entrances and exits, one-way traffic, 31 noise, parking and standing and the control of traffic 32 generally; page 137 Health Services Bill 2016 Part 16 Control of conduct and traffic on health service provider land s. 210 1 (b) prescribe -- 2 (i) fees and charges payable to a health service 3 provider by a person using, or in respect of a 4 vehicle occupying, a parking or standing area 5 and exempting any person or vehicle or class of 6 person or class of vehicle from paying all or any 7 of those fees; and 8 (ii) the method and means by which the fees may or 9 must be paid and collected and recovered; 10 (c) provide for -- 11 (i) the issue of permits, whether on application to a 12 specified person or otherwise, entitling the 13 holders of those permits to park vehicles in 14 parking areas or elsewhere in health service 15 provider land for periods and on other terms and 16 conditions specified in the permits; and 17 (ii) the circumstances in which permits may be 18 amended, suspended or revoked by a specified 19 person; 20 (d) provide for the protection of parking and standing areas 21 and all equipment pertaining to them against misuse, 22 damage, interference or attempted interference by any 23 person; 24 (e) regulate the parking and standing of vehicles in any 25 parking or standing area and prohibit any person from 26 parking or standing any vehicle in a parking area or 27 standing area otherwise than in accordance with the 28 regulations; 29 (f) require persons in charge of vehicles within health 30 service provider land to obey the orders and directions 31 of specified persons or members of specified classes of 32 persons given for the purpose of controlling traffic; 33 (g) provide for the display, erection or marking of signs for 34 the purposes of the regulations; page 138 Health Services Bill 2016 Control of conduct and traffic on health service provider land Part 16 s. 210 1 (h) prohibit, or empower a specified person by the display, 2 erection or marking of a sign referred to in paragraph (g) 3 to prohibit -- 4 (i) the use of a parking area for a purpose other than 5 a specified purpose; or 6 (ii) the parking of a vehicle in a parking area by a 7 person other than a specified person or a member 8 of a specified class of persons; 9 (i) exempt, or empower a specified person to exempt, any 10 person or vehicle or class of person or class of vehicle 11 from complying with any regulation prohibiting or 12 restricting the parking or standing of vehicles generally 13 or otherwise; 14 (j) prescribe the following -- 15 (i) the circumstances under which a staff member of 16 a health service provider may remove a vehicle 17 or cause it to be removed from a parking or 18 standing area or from any other area within 19 health service provider land to a specified place, 20 whether within health service provider land or 21 not; 22 (ii) any further powers in relation to the removal; 23 (iii) the scale of fees to be paid to the health service 24 provider to recover the vehicle from that place; 25 (iv) the circumstances in which the health service 26 provider may hold the vehicle until the 27 prescribed fees are paid to the health service 28 provider; 29 (k) prohibit the driving of vehicles in any part of health 30 service provider land at a speed in excess of that 31 specified in respect of that part by a regulation or by any 32 sign referred to in paragraph (g); 33 (l) prescribe evidentiary provisions in relation to speed 34 measuring equipment and the use of that equipment; page 139 Health Services Bill 2016 Part 16 Control of conduct and traffic on health service provider land s. 211 1 (m) prohibit the removal by any person other than the driver 2 of a vehicle in respect of which an offence against a 3 regulation is alleged to have been committed of any 4 notice relating to that offence affixed to the vehicle or 5 left in or on the vehicle by a person authorised under the 6 regulations to leave the notice. 7 211. Requirement to leave health service provider land 8 (1) In this section -- 9 authorised person means a person appointed under regulations 10 mentioned in section 209(e); 11 reasonably suspects has the meaning given in the Criminal 12 Investigation Act 2006 section 4. 13 (2) This section applies if an authorised person -- 14 (a) finds a person being disorderly or creating a disturbance; 15 or 16 (b) reasonably suspects that a person has just been 17 disorderly or created a disturbance; or 18 (c) reasonably suspects that a person's presence may pose a 19 threat to the safety of anyone else on or leaving health 20 service provider land; or 21 (d) reasonably suspects that a person is on health service 22 provider land without lawful justification or excuse; or 23 (e) reasonably suspects that a person is on health service 24 provider land in contravention of a regulation or is 25 otherwise contravening a regulation. 26 (3) The authorised person may direct the person to leave the health 27 service provider land or part of the health service provider land. 28 (4) A person given a direction under subsection (3) must comply 29 with the direction. 30 Penalty for this subsection: a fine of $5 000. page 140 Health Services Bill 2016 Control of conduct and traffic on health service provider land Part 16 s. 212 1 212. Proceedings and payment of penalties 2 (1) In this section -- 3 provider offence means an offence under section 211(4) or 4 regulations mentioned in section 209 or 210; 5 responsible provider, in relation to a provider offence, means 6 the health service provider in which the land on which the 7 offence occurred is vested or that has care, control and 8 management of the land. 9 (2) Proceedings for a provider offence may be commenced in the 10 name of the responsible provider by the chief executive of the 11 responsible provider or a person authorised to do so by the chief 12 executive. 13 (3) In any proceedings no proof is required of the authorisation of a 14 person under subsection (2), but an averment in a prosecution 15 notice that the person is so authorised is to be taken to be proved 16 in the absence of proof to the contrary. 17 (4) Subsection (2) does not limit the ability of a person to 18 commence or conduct the prosecution of an offence if the 19 person has authority at law to do so. 20 (5) A pecuniary penalty recovered in respect of a provider offence 21 must be paid to the responsible provider. page 141 Health Services Bill 2016 Part 17 Information Division 1 General s. 213 1 Part 17 -- Information 2 Division 1 -- General 3 213. Terms used 4 In this Part -- 5 disability has the meaning given in the Disability Services 6 Act 1993 section 3; 7 health information means -- 8 (a) information, or an opinion, that is also personal 9 information, about -- 10 (i) the health (at any time) of an individual; or 11 (ii) a disability (at any time) of an individual; or 12 (iii) an individual's expressed wishes about the future 13 provision of health services to the individual; or 14 (iv) a health service provided, or to be provided, to 15 an individual; 16 or 17 (b) other personal information collected to provide, or in 18 providing, a health service; 19 health information management system means a system 20 referred to in section 214(1); 21 information policy framework means a policy framework 22 issued under section 26(2)(k). 23 214. Health information management systems 24 (1) The Department CEO is to establish and maintain systems for 25 the collection, receipt, storage and disclosure of, and access to, 26 health information. 27 (2) A health information management system is to be controlled 28 and maintained in accordance with an information policy 29 framework. page 142 Health Services Bill 2016 Information Part 17 General Division 1 s. 215 1 (3) Information in a health information management system is held 2 on behalf of the State. 3 (4) An information policy framework may provide for the 4 following -- 5 (a) the receipt and storage of health information collected 6 by a health service provider, the Department CEO or 7 contracted health entity; 8 (b) access to that health information; 9 (c) circumstances in which that health information may be 10 used. 11 215. Information held in health information management system 12 (1) The following health information must be held in a health 13 information management system -- 14 (a) health information collected by a health service provider 15 or the Department CEO; 16 (b) health information collected by a contracted health 17 entity to the extent that the health information -- 18 (i) relates to the provision of a public health service; 19 and 20 (ii) is provided to the health service provider or the 21 Department CEO in connection with the 22 provision of that service; 23 (c) health information provided in response to a request 24 made under section 218(2). 25 (2) The Department CEO may, for purposes relating to the 26 provision of public health services and in accordance with the 27 information policy framework, permit any of the following to 28 have access to any health information that is held in a health 29 information management system -- 30 (a) an employee in the Department; 31 (b) a staff member of a health service provider; page 143 Health Services Bill 2016 Part 17 Information Division 2 Disclosure of information s. 216 1 (c) a staff member of a contracted health entity. 2 Division 2 -- Disclosure of information 3 216. Disclosure of information by Department CEO 4 The Department CEO may, in accordance with the regulations, 5 disclose health information for any of these purposes -- 6 (a) the administration or enforcement of this Act; 7 (b) the management of health service providers; 8 (c) the planning for, provision, monitoring and evaluation 9 of public health services; 10 (d) health related research, whether that research is 11 conducted by persons who are staff members of a health 12 service provider or persons employed or engaged in the 13 Department or other persons. 14 217. Disclosure of information by health service provider 15 (1) In this section -- 16 relevant information means health information that, in the 17 opinion of the chief executive of a health service provider, is or 18 is likely to be relevant to any of the following -- 19 (a) the treatment or care of a patient who has been, is being, 20 or will or may be, provided with a health service by the 21 health service provider; 22 (b) the health, safety or wellbeing of a patient who has been, 23 is being, or will or may be, provided with a health 24 service by the health service provider. 25 (2) The chief executive of a health service provider may, in 26 accordance with the regulations, disclose relevant information 27 about a patient of the health service provider to any person who, 28 in the opinion of the chief executive, has a sufficient interest in 29 the treatment, care, health, safety or wellbeing of the patient. page 144 Health Services Bill 2016 Information Part 17 Disclosure of information Division 2 s. 218 1 218. Requesting information 2 (1) In this section -- 3 external provider -- 4 (a) includes -- 5 (i) a contracted health entity; 6 (ii) an individual, a group of individuals or a body 7 (whether corporate or unincorporate) that 8 provides a service specifically for people who 9 have or may have an illness or disability, wholly 10 or partly from funds paid to the individual, group 11 or body by or on behalf of the State; 12 but 13 (b) does not include a person who is the carer under the 14 Carers Recognition Act 2004 section 5 of a person who 15 has or may have an illness or disability; 16 interstate authority means -- 17 (a) a department of the Public Service of the 18 Commonwealth, another State or a Territory; or 19 (b) an agency or instrumentality of the Commonwealth, 20 another State or a Territory; or 21 (c) a body (whether corporate or unincorporate), or the 22 holder of an office, post or position, established or 23 continued in existence for a public purpose under a law 24 of the Commonwealth, another State or a Territory; 25 relevant information means information (including personal 26 information) that, in the opinion of the Department CEO, is or is 27 likely to be relevant to any of the following -- 28 (a) the administration or enforcement of this Act; 29 (b) the management of health service providers; 30 (c) the planning for, provision, monitoring and evaluation 31 of public health services; page 145 Health Services Bill 2016 Part 17 Information Division 3 Confidentiality s. 219 1 (d) health related research, whether that research is 2 conducted by persons who are staff members of a health 3 service provider or persons employed or engaged in the 4 Department or other persons. 5 (2) The Department CEO may request any of these persons or 6 bodies to disclose relevant information to the Department 7 CEO -- 8 (a) a public authority; 9 (b) an interstate authority; 10 (c) an external provider. 11 Division 3 -- Confidentiality 12 219. Confidentiality 13 (1) A person must not (whether directly or indirectly) collect, use or 14 disclose any information obtained by the person because of -- 15 (a) the person's office, position, employment or 16 engagement under or for the purposes of this Act; or 17 (b) any disclosure made to the person under this Act, 18 including in response to a request made under 19 section 218(2). 20 Penalty for this subsection: a fine of $5 000. 21 (2) Subsection (1) does not apply in relation to the collection, use or 22 disclosure of statistical or other information that is not personal 23 information. 24 (3) A person does not commit an offence under subsection (1) if the 25 collection, use or disclosure of the information is authorised 26 under section 220(1). page 146 Health Services Bill 2016 Information Part 17 Confidentiality Division 3 s. 220 1 220. Authorised collection, use or disclosure of information 2 (1) For the purposes of this Act, the collection, use or disclosure of 3 information is authorised if the information is collected, used or 4 disclosed in good faith in any of these circumstances -- 5 (a) for the purpose of, or in connection with, performing a 6 function under this Act or another written law; 7 (b) for the purposes of section 215 or Division 2; 8 (c) otherwise under this Act, including in response to a 9 request made under section 61 or 218(2); 10 (d) under another law; 11 (e) to a court or other person or body acting judicially in the 12 course of proceedings before the court or other person or 13 body; 14 (f) under an order of a court or other person or body acting 15 judicially; 16 (g) for the purposes of the investigation of a suspected 17 offence or disciplinary matter or the conduct of 18 proceedings against a person for an offence or 19 disciplinary matter; 20 (h) if the information collected, used or disclosed is 21 personal information -- with the consent of the 22 individual, or each individual, to whom the personal 23 information relates; 24 (i) any other circumstances prescribed for this subsection. 25 (2) Subsection (1)(e) and (f) apply subject to section 178(2). 26 (3) If the collection, use or disclosure of information is authorised 27 under subsection (1) -- 28 (a) no civil or criminal liability is incurred in respect of the 29 collection, use or disclosure; and page 147 Health Services Bill 2016 Part 17 Information Division 3 Confidentiality s. 221 1 (b) the collection, use or disclosure is not to be regarded 2 as -- 3 (i) a breach of any duty of confidentiality or secrecy 4 imposed by law; or 5 (ii) a breach of professional ethics or standards or 6 any principles of conduct applicable to a 7 person's employment; or 8 (iii) unprofessional conduct. 9 221. Regulations relating to information 10 The regulations may include provisions about the following -- 11 (a) the circumstances in which information may be 12 disclosed under this Part; 13 (b) the conditions subject to which information may be 14 disclosed under this Part; 15 (c) the receipt, use and storage of information disclosed 16 under this Part; 17 (d) the restriction of access to information disclosed under 18 this Part; 19 (e) the maximum period for which information disclosed 20 under this Part may be retained; 21 (f) the circumstances in which information disclosed under 22 this Part must be destroyed. page 148 Health Services Bill 2016 Miscellaneous Part 18 Legal proceedings Division 1 s. 222 1 Part 18 -- Miscellaneous 2 Division 1 -- Legal proceedings 3 222. Commencement of prosecutions 4 (1) Except as provided in section 212(2), proceedings for an 5 offence under this Act may be commenced in the name of the 6 Department CEO by the Department CEO or a person 7 authorised to do so by the CEO. 8 (2) In any proceedings no proof is required of the authorisation of a 9 person under subsection (1), but an averment in a prosecution 10 notice that the person is so authorised is to be taken to be proved 11 in the absence of proof to the contrary. 12 (3) Subsection (1) does not limit the ability of a person to 13 commence or conduct the prosecution of an offence if the 14 person has authority at law to do so. 15 223. Appointments and signatures taken to be proved 16 (1) In any proceedings the appointments of the following are, 17 unless the contrary is shown, to be taken to be proved -- 18 (a) the Department CEO; 19 (b) a chief executive; 20 (c) a member of the board of a health service provider; 21 (d) the chairperson of a health service provider; 22 (e) a member of a committee. 23 (2) In any proceedings, the signatures of the persons mentioned in 24 subsection (1) are, in the absence of proof to the contrary, to be 25 taken to be proved. 26 224. Documentary evidence of certain matters 27 (1) In this section -- 28 specified means specified in the relevant certificate. page 149 Health Services Bill 2016 Part 18 Miscellaneous Division 2 Miscellaneous s. 225 1 (2) A certificate purporting to be signed by the Department CEO or 2 a chief executive and stating any of the following matters is, 3 unless the contrary is shown, proof of the matter -- 4 (a) a specified document is one of the following things 5 made, given, issued or kept under this Act -- 6 (i) a policy framework, direction or requirement; 7 (ii) an appointment, notice or decision; 8 (iii) a record or report, or an extract from a record or 9 report; 10 (b) a specified document is a copy of a thing mentioned in 11 paragraph (a); 12 (c) on a specified day, or during a specified period, an 13 appointment as an authorised person under regulations 14 mentioned in section 209(e) was, or was not, in force for 15 a specified person; 16 (d) on a specified day a specified person was given a 17 specified document under this Act; 18 (e) on a specified day a specified requirement was made of, 19 or a specified direction was given to, a specified person; 20 (f) a specified amount is payable by a specified person 21 under this Act and has not been paid. 22 225. Evidence Act 1906 not affected 23 This Division is in addition to and does not affect the operation 24 of the Evidence Act 1906. 25 Division 2 -- Miscellaneous 26 226. Protection from liability for persons exercising functions 27 (1) An action in tort does not lie against a person other than a health 28 service provider for any thing that the person has done, in good 29 faith, in the performance or purported performance of a function 30 under this Act. page 150 Health Services Bill 2016 Miscellaneous Part 18 Miscellaneous Division 2 s. 227 1 (2) The protection given by subsection (1) applies even though the 2 thing done as described in that subsection may have been 3 capable of being done whether or not this Act had been enacted. 4 (3) Despite subsection (1), neither a health service provider nor the 5 State is relieved of any liability that it might have for another 6 person having done any thing as described in that subsection. 7 (4) In this section, a reference to the doing of any thing includes a 8 reference to the omission to do any thing. 9 227. Minister and health service providers not required to be 10 registered 11 Despite any written law requiring the registration of a person 12 who provides a health service, the Minister or a health service 13 provider -- 14 (a) may provide the health service even though the Minister 15 or health service provider is not registered under that 16 written law; and 17 (b) does not commit an offence by providing the health 18 service. 19 228. Modifications for purposes of Workers' Compensation and 20 Injury Management Act 1981 Part IV Division 2 21 (1) In this section -- 22 health service employee has the same meaning as employee has 23 in section 6; 24 injury or hearing loss means -- 25 (a) an injury suffered by a health service employee; or 26 (b) a noise induced hearing loss suffered by a health service 27 employee that is not an injury, 28 in respect of which compensation has been paid or is payable 29 under the WCIM Act by or on behalf of the State, or would 30 have been so payable but for section 22 of that Act; page 151 Health Services Bill 2016 Part 18 Miscellaneous Division 2 Miscellaneous s. 229 1 WCIM Act means the Workers' Compensation and Injury 2 Management Act 1981. 3 (2) For the purposes of the application of the WCIM Act Part IV 4 Division 2 -- 5 (a) the awarding of damages against a health service 6 provider independently of the WCIM Act in respect of 7 an injury or hearing loss suffered by a health service 8 employee is to be taken to be the awarding of damages 9 against the State; and 10 (b) any negligence or other tort by the health service 11 provider that caused the injury or hearing loss is to be 12 taken to be the negligence or other tort of the State; and 13 (c) any prohibition under that Division against the awarding 14 of damages in respect of the injury or hearing loss is to 15 be taken to be a prohibition against the awarding of the 16 damages against either or both of the State and the 17 health service provider; and 18 (d) any conditions or limitations that apply under that 19 Division in relation to the awarding of damages in 20 respect of the injury or hearing loss, or to the amount of 21 the damages, are to be taken to be conditions or 22 limitations that apply to the awarding of the damages 23 against either or both of the State and the health service 24 provider or to the amount of the damages. 25 229. Laying documents before House of Parliament not sitting 26 (1) If a provision of this Act requires the Minister to cause a 27 document to be laid before each House of Parliament, or be 28 dealt with under this section, within a period and -- 29 (a) when the Minister is ready to act, a House of Parliament 30 is not sitting; and page 152 Health Services Bill 2016 Miscellaneous Part 18 Miscellaneous Division 2 s. 230 1 (b) the Minister is of the opinion that the House will not sit 2 during that period, 3 the Minister must transmit a copy of the document to the Clerk 4 of that House. 5 (2) A copy of a document transmitted to the Clerk of a House is to 6 be regarded as having been laid before that House. 7 (3) The laying of a copy of a document that is regarded as having 8 occurred under subsection (2) is to be recorded in the Minutes, 9 or Votes and Proceedings, of the House on the first sitting day 10 of the House after the Clerk received the copy. 11 230. Regulations -- general power 12 (1) The Governor may make regulations prescribing matters -- 13 (a) required or permitted by this Act to be prescribed: or 14 (b) necessary or convenient to be prescribed for giving 15 effect to this Act. 16 (2) Without limiting subsection (1), the regulations may provide 17 for, authorise, prescribe, require, prohibit, restrict or otherwise 18 regulate the following -- 19 (a) the procedure to be followed at, or in connection with, 20 an inquiry under Part 14; 21 (b) the seizure or forfeiture of items under this Act; 22 (c) fees and charges payable under this Act and the recovery 23 of those fees and charges; 24 (d) the verification by statutory declaration of information 25 or documents given under this Act; 26 (e) the review by the State Administrative Tribunal of a 27 decision made under this Act. 28 (3) The regulations may provide that contravention of a regulation 29 is an offence and may provide for the offence to be punishable 30 on conviction by a penalty not exceeding a fine of $10 000. page 153 Health Services Bill 2016 Part 18 Miscellaneous Division 2 Miscellaneous s. 231 1 (4) A regulation may specify the method and the means by which 2 any fines imposed are to be paid and collected, or recovered. 3 231. Regulations may adopt codes or legislation 4 (1) In this section -- 5 code means a code, standard, rule, specification or other 6 document, published in or outside Australia, that does not by 7 itself have legislative effect in this State; 8 subsidiary legislation includes rules, regulations, instructions, 9 local laws and by-laws. 10 (2) Regulations may adopt, either wholly or in part or with 11 modifications -- 12 (a) any code; or 13 (b) any subsidiary legislation made, determined or issued 14 under any other Act or under any Act of the 15 Commonwealth, another State or a Territory. 16 (3) The adoption may be by -- 17 (a) incorporating the code or subsidiary legislation in the 18 regulations; or 19 (b) incorporating the code or subsidiary legislation by 20 reference. 21 (4) If regulations adopt a code or subsidiary legislation by 22 reference, then, unless the regulations specify that a particular 23 text is adopted -- 24 (a) the code or subsidiary legislation is adopted as existing 25 or in force when the regulations are made; and 26 (b) any amendments made to the code or subsidiary 27 legislation after the regulations are made have no legal 28 effect as part of the regulations unless they are 29 specifically adopted by later regulations or a later 30 amendment to the regulations. page 154 Health Services Bill 2016 Miscellaneous Part 18 Review of Act Division 3 s. 232 1 (5) If regulations adopt a code or subsidiary legislation by 2 reference, the Department CEO must -- 3 (a) ensure that a copy of the code or subsidiary legislation, 4 including any amendments made to it from time to time 5 that have been adopted, is available, without charge, for 6 public inspection; and 7 (b) publish a notice in the Gazette giving details of where 8 those documents may be inspected or obtained. 9 Division 3 -- Review of Act 10 232. Review of Act 11 (1) The Minister must carry out a review of the operation and 12 effectiveness of this Act -- 13 (a) as soon as is practicable after the expiry of the period of 14 5 years beginning on the day on which this section 15 comes into operation; and 16 (b) after that, at intervals of not more than 5 years. 17 (2) The Minister must -- 18 (a) prepare a report based on each review; and 19 (b) cause it to be laid before each House of Parliament, or 20 dealt with under section 229, within 14 days after it is 21 prepared. page 155 Health Services Bill 2016 Part 19 Transitional and savings matters Division 1 Interpretation s. 233 1 Part 19 -- Transitional and savings matters 2 Division 1 -- Interpretation 3 233. Terms used 4 In this Part unless the contrary intention appears -- 5 hospital board -- 6 (a) means a board constituted under the HHS Act 7 section 15; and 8 (b) except in Division 2, includes the Minister in relation to 9 any public hospital controlled by the Minister under the 10 HHS Act section 7; 11 HHS Act means the Hospitals and Health Services Act 1927 as 12 in force immediately before transition day; 13 LA Act means the Land Administration Act 1997; 14 Minister for Lands means the Minister as defined in the LA Act 15 section 3(1); 16 operating account means an agency special purpose account 17 established under the Financial Management Act 2006 18 section 16; 19 relevant successor means -- 20 (a) in relation to a function of a hospital board that becomes 21 a function of a health service provider on transition 22 day -- the health service provider; 23 (b) in relation to a function of a hospital board that becomes 24 a function of the Department CEO on transition day -- 25 the Department CEO; 26 (c) in relation to assets and liabilities assigned to a health 27 service provider by section 237 -- the health service 28 provider; 29 (d) in relation to assets and liabilities assigned to the 30 Ministerial Body by section 237 -- the Ministerial 31 Body; page 156 Health Services Bill 2016 Transitional and savings matters Part 19 Boards and ministerial control Division 2 s. 234 1 statutory transition -- 2 (a) means the transition from the provisions of the HHS Act 3 to this Act; and 4 (b) includes the transition from hospital boards to a relevant 5 successor; 6 this Part includes regulations made under section 256; 7 transfer order means an order made under section 238; 8 transition day means the day on which section 234 comes into 9 operation. 10 Division 2 -- Boards and ministerial control 11 234. Boards abolished and Minister ceases to control hospitals 12 On transition day -- 13 (a) each hospital board constituted under the HHS Act 14 section 15 is abolished and the members of each hospital 15 board go out of office; and 16 (b) the Minister ceases to have management and control of 17 any hospital under the HHS Act section 7. 18 235. Immunity continues 19 Despite the abolition of the hospital boards, and removal of 20 ministerial control and management, by section 234, if a 21 hospital board or the Minister had the benefit of any immunity 22 in respect of an act, matter or thing done or omitted before 23 transition day, that immunity continues on and after transition 24 day in that respect for the benefit of a relevant successor so far 25 as the act, matter or thing is within the relevant successor's 26 functions. page 157 Health Services Bill 2016 Part 19 Transitional and savings matters Division 3 Hospital boards' assets, rights and liabilities s. 236 1 Division 3 -- Hospital boards' assets, rights and liabilities 2 236. Division does not apply to land reserved under the Queen 3 Elizabeth II Medical Centre Act 1966 4 Nothing in this Division applies to land that forms part of the 5 reserve under the Queen Elizabeth II Medical Centre Act 1966. 6 237. Transfer to health service provider or Ministerial Body 7 (1) On transition day -- 8 (a) the assets of a hospital board specified in a transfer order 9 are assigned to and become assets of the health service 10 provider specified in the order; and 11 (b) the rest of the assets of each hospital board are assigned 12 to and become assets of the Ministerial Body. 13 (2) On transition day -- 14 (a) the liabilities of a hospital board specified in a transfer 15 order are assigned to and become liabilities of the health 16 service provider specified in the order; and 17 (b) the rest of the liabilities of each hospital board are 18 assigned to and become liabilities of the Ministerial 19 Body. 20 (3) On transition day the Ministerial Body is substituted for the 21 hospital board as a party to any proceedings specified in a 22 transfer order. 23 (4) On and after transition day, any agreement or instrument 24 specified in a transfer order has effect as if references to the 25 Ministerial Body were substituted, in accordance with the order, 26 for references to a hospital board. 27 (5) On and after transition day, any proceedings or remedy that 28 might have been commenced by or against, or might have been 29 available to or against, a hospital board in relation to the assets page 158 Health Services Bill 2016 Transitional and savings matters Part 19 Hospital boards' assets, rights and liabilities Division 3 s. 238 1 and liabilities assigned by subsections (1) and (2) may be 2 commenced by or against, or are available to or against -- 3 (a) a health service provider in the case of assets and 4 liabilities assigned to the health service provider by 5 subsections (1)(a) and (2)(a); and 6 (b) the Ministerial Body in the case of assets and liabilities 7 assigned by subsections (1)(b) and (2)(b). 8 (6) On and after transition day, an act or omission done or omitted 9 in relation to the assets and liabilities assigned by 10 subsections (1) and (2) before the assignment by, to or in 11 respect of a hospital board is, to the extent that the act or 12 omission has any effect, to be taken to have been done or 13 omitted by, to or in respect of -- 14 (a) the health service provider in the case of the assets and 15 liabilities assigned to the health service provider by 16 subsections (1)(a) and (2)(a); and 17 (b) the Ministerial Body in the case of assets and liabilities 18 assigned by subsections (1)(b) and (2)(b). 19 (7) This section does not apply to -- 20 (a) moneys standing to the credit of an operating account of 21 a hospital board; or 22 (b) Crown land to which section 240 applies. 23 238. Transfer orders 24 (1) To facilitate the statutory transition, the Minister may, by order 25 published in the Gazette (a transfer order), specify all or any of 26 the following -- 27 (a) assets and liabilities of a hospital board that are to be 28 assigned to a health service provider by operation of 29 section 237; 30 (b) proceedings in which the Ministerial Body is to be 31 substituted for a hospital board as a party by operation 32 of section 237; page 159 Health Services Bill 2016 Part 19 Transitional and savings matters Division 3 Hospital boards' assets, rights and liabilities s. 238 1 (c) agreements and instruments that, by operation of 2 section 237, are to have effect as if references to the 3 Ministerial Body were substituted, in accordance with 4 the order, for references in the agreements and 5 instruments to a hospital board. 6 (2) A transfer order may also deal with any matter that is incidental 7 or supplementary to a matter to which subsection (1) relates and 8 the transfer order has effect accordingly. 9 (3) A transfer order may specify things by reference to one or more 10 schedules that -- 11 (a) need not be published in the Gazette; but 12 (b) must be available for public inspection. 13 (4) Anything specified in a schedule for a transfer order is to be 14 taken to be specified in the transfer order. 15 (5) A thing may be specified in a transfer order by describing the 16 class to which it belongs. 17 (6) Before a transfer order is made specifying anything by reference 18 to a schedule, the Minister must consult with each relevant lands 19 official about the form and content of the schedule. 20 (7) To the extent to which a schedule for a transfer order relates to 21 the functions of the Registrar of Titles, the schedule must be in a 22 form that meets the requirements of the Registrar. 23 (8) A thing done by, under or for the purposes of this Part is not 24 invalid merely because subsection (6) or (7) was not complied 25 with. 26 (9) The fact that a previous transfer order has been made does not 27 prevent a further transfer order from being made. 28 (10) The Minister may, by order published in the Gazette, amend a 29 transfer order or a schedule for a transfer order. page 160 Health Services Bill 2016 Transitional and savings matters Part 19 Hospital boards' assets, rights and liabilities Division 3 s. 239 1 (11) A transfer order, or an amendment to a transfer order or to a 2 schedule for a transfer order, can only be made before transition 3 day. 4 239. Correction of errors in transfer orders 5 (1) The Minister may, by order published in the Gazette, make any 6 provision that is necessary to correct any error in a transfer 7 order or a schedule for a transfer order. 8 (2) An order made under subsection (1) may have effect on and 9 after transition day. 10 (3) To the extent that an order made under subsection (1) has effect 11 before the day of its publication in the Gazette, section 237 does 12 not operate as a result of the order so as -- 13 (a) to affect in a manner prejudicial to any person (other 14 than the State or an authority of the State) the rights of 15 that person existing before the day of its publication; or 16 (b) to impose liabilities on any person (other than the State 17 or an authority of the State) in respect of anything done 18 or omitted before the day of its publication. 19 240. Reserves 20 (1) This section applies to -- 21 (a) any Crown land that, immediately before transition day, 22 was a reserve under the LA Act section 41 for which a 23 hospital board was the management body under the 24 LA Act section 46(1); and 25 (b) any Crown land that, immediately before transition day 26 was a reserve for the endowment of a public hospital 27 under the HHS Act section 12. 28 (2) On transition day -- 29 (a) Crown land to which this section applies is to be taken 30 to be a reserve under the LA Act section 41 for the 31 purposes of this Act; and page 161 Health Services Bill 2016 Part 19 Transitional and savings matters Division 3 Hospital boards' assets, rights and liabilities s. 241 1 (b) the Ministerial Body is to be taken to be the 2 management body of the reserve under the LA Act 3 section 46(1). 4 (3) For the purposes of section 241 and the purposes of the 5 LA Act -- 6 (a) subsection (2)(a) must be treated as if it were an order 7 made under the LA Act section 51 changing the purpose 8 of the reserve; and 9 (b) subsection (2)(b) must be treated as if it were -- 10 (i) an order made under the LA Act section 50(1)(a) 11 revoking the management order placing the care, 12 control and management of the reserve with the 13 hospital board and specifying that any interests 14 that existed in, or any caveats that existed in 15 respect of, the reserve immediately before 16 transition day continue to exist in respect of the 17 reserve on and after transition day; and 18 (ii) a management order made under the LA Act 19 section 46(1) placing the care, control and 20 management of the reserve with the Ministerial 21 Body subject to any conditions (with the changes 22 necessary to take account of differences as to the 23 purpose and management body) to which the 24 management order referred to in subparagraph (i) 25 was subject immediately before transition day. 26 241. Registration of documents 27 (1) The relevant lands officials -- 28 (a) must take notice of this Part and any transfer order, 29 including any schedule for the transfer order; and 30 (b) must record and register in the appropriate manner the 31 documents necessary to show the effect of this Part and 32 any transfer order. page 162 Health Services Bill 2016 Transitional and savings matters Part 19 Hospital boards' assets, rights and liabilities Division 3 s. 242 1 (2) The Minister must give a copy of each transfer order and any 2 schedule for it, and any amendment to a transfer order or to a 3 schedule for a transfer order, to each relevant lands official. 4 242. Hospital boards to complete necessary transactions 5 (1) If an asset or liability of a hospital board cannot be properly 6 assigned to a health service provider or the Ministerial Body by 7 the operation of this Division (whether because the matter is 8 governed otherwise than by the law of the State or for any other 9 reason) -- 10 (a) the hospital board is to be taken to continue to hold that 11 asset or be liable for that liability until it is effectively 12 assigned to a health service provider or the Ministerial 13 Body in accordance with this Division; and 14 (b) the hospital board must take all practicable steps for the 15 purpose of ensuring that the asset or liability is 16 effectively assigned to a health service provider or the 17 Ministerial Body in accordance with this Division. 18 (2) The fact that subsection (1)(a) applies to an asset or liability that 19 is to be assigned to a health service provider or the Ministerial 20 Body under this Division does not affect the duty of the 21 accountable authority of the hospital board under the Financial 22 Management Act 2006. 23 (3) Despite section 234, a hospital board continues in existence as a 24 corporate body for the purpose of performing the functions 25 described in subsection (1). 26 (4) The hospital board must perform those functions through a 27 person appointed by the Minister. 28 (5) The person holds office at the pleasure of the Minister and on 29 such terms and conditions as the Minister determines. 30 (6) The hospital boards as continued by this section have the 31 powers that are necessary or convenient for the purposes of this 32 section. page 163 Health Services Bill 2016 Part 19 Transitional and savings matters Division 3 Hospital boards' assets, rights and liabilities s. 243 1 243. Exemption from State tax 2 (1) State tax is not payable in relation to -- 3 (a) anything that occurs by operation of this Part; or 4 (b) anything done (including a transaction entered into or an 5 instrument or document of any kind made, executed, 6 lodged or given) under this Part, or to give effect to this 7 Part, or for a purpose connected with or arising out of 8 giving effect to this Part. 9 (2) The Minister may certify in writing that -- 10 (a) a specified thing occurred by operation of this Part; or 11 (b) a specified thing was done under this Part, or to give 12 effect to this Part, or for a purpose connected with or 13 arising out of giving effect to this Part. 14 (3) For all purposes and in all proceedings, a certificate under 15 subsection (2) is sufficient evidence of the matters it certifies 16 unless the contrary is shown. 17 244. Operating accounts of hospital boards 18 (1) In this section -- 19 former account means the operating account of a hospital 20 board. 21 (2) On transition day, moneys standing to the credit of a former 22 account must be credited in amounts determined in writing by 23 the Minister to either or both of the following accounts -- 24 (a) an operating account of a specified health service 25 provider; 26 (b) an operating account of the Department. 27 (3) The former account must be closed after moneys are credited 28 under subsection (2). page 164 Health Services Bill 2016 Transitional and savings matters Part 19 Staff Division 4 s. 245 1 (4) Moneys referred to in subsection (2) may be applied -- 2 (a) in the payment of any liabilities of the former account 3 arising before transition day; and 4 (b) for the purposes of the health service provider or the 5 Department, as the case requires. 6 (5) An operating account to which moneys are credited under 7 subsection (2) must be credited as directed in writing by the 8 Minister with any money payable to the former accounts before 9 transition day that is paid on or after that day. 10 (6) On and after transition day, any agreement, instrument or other 11 document that contains a reference to any of the former 12 accounts has effect as if the reference were to the relevant 13 operating account to which moneys are credited under 14 subsection (2). 15 (7) If there is any doubt as to which is the relevant operating 16 account for the purposes of subsection (6), the Minister will 17 determine the relevant operating account. 18 Division 4 -- Staff 19 245. Employees of hospital boards 20 (1) In this section -- 21 existing employee means a person employed by a hospital board 22 immediately before transition day. 23 (2) The Department CEO must, before transition day -- 24 (a) determine that an existing employee is to be employed 25 in a specified health service provider on and from 26 transition day; or 27 (b) determine that an existing employee is to be employed 28 in the Department on and from transition day. 29 (3) The Department CEO must notify each existing employee of the 30 determination made in respect of the employee. page 165 Health Services Bill 2016 Part 19 Transitional and savings matters Division 4 Staff s. 246 1 (4) A notification under subsection (3) -- 2 (a) if the determination changes the employment location or 3 status of the existing employee -- must be given in 4 writing to the existing employee; or 5 (b) otherwise -- may be given by notice in writing 6 addressed to a class of existing employees. 7 (5) An existing employee given a notice under subsection (3) is, on 8 and after transition day, to be taken to be employed under this 9 Act as an employee in the health service provider or employed 10 under the PSM Act or under section 22 as an employee in the 11 Department, as is specified in the notice. 12 246. Preservation of rights 13 (1) This section applies in relation to an existing employee to whom 14 section 245 applies. 15 (2) Except as otherwise agreed by an employee, the change from 16 employment by a hospital board to employment in a health 17 service provider or the Department does not -- 18 (a) affect the employee's pay as defined in the Public 19 Sector Management (Redeployment and Redundancy) 20 Regulations 2014 regulation 3(1); or 21 (b) affect the employee's existing or accrued rights in 22 respect of annual leave, long service leave, sick leave or 23 any other leave; or 24 (c) affect any rights under a superannuation scheme; or 25 (d) interrupt the continuity of the employee's service. 26 (3) For the purposes of subsection (2)(d), the person's service with 27 the hospital board is to be taken to have been service in the 28 health service provider or Department, as the case requires. page 166 Health Services Bill 2016 Transitional and savings matters Part 19 Continuation of certain things Division 5 s. 247 1 Division 5 -- Continuation of certain things 2 247. Completion of things done 3 Anything commenced to be done by a hospital board before 4 transition day may be continued on and after transition day by a 5 relevant successor so far as the doing of the thing is within the 6 relevant successor's functions. 7 248. Continuing effect of things done 8 (1) This section applies in relation to an act or omission done or 9 omitted before transition day by, to or in respect of a hospital 10 board to the extent that the act or omission -- 11 (a) has force or significance; and 12 (b) is not governed by another provision of this Part. 13 (2) On and after transition day, the act or omission is to be taken to 14 have been done or omitted by, to or in respect of a relevant 15 successor so far as the act or omission relates to the relevant 16 successor's functions. 17 249. Agreements, instruments, proceedings and remedies 18 generally 19 (1) Subsection (2) applies to any agreement or instrument to which 20 section 237 does not apply. 21 (2) On and after transition day, any agreement or instrument that 22 contains a reference to a hospital board has effect as if the 23 reference were to a relevant successor so far as the reference 24 relates to the relevant successor's functions, unless the context 25 otherwise requires. 26 (3) Subsection (4) applies in relation to any proceedings or remedy 27 to which section 237 does not apply. 28 (4) On and after transition day, any proceedings or remedy that 29 might have been commenced or continued by or against, or 30 might have been available to or against, a hospital board may be page 167 Health Services Bill 2016 Part 19 Transitional and savings matters Division 6 Quadriplegic Centre s. 250 1 commenced or continued by or against, or is available to or 2 against, a relevant successor so far as the proceedings or remedy 3 are in respect of an act, matter or thing that is within the 4 relevant successor's functions. 5 Division 6 -- Quadriplegic Centre 6 250. Terms used 7 In this section -- 8 new body corporate means the body corporate mentioned in 9 section 251(2); 10 old body corporate means the body corporate established by the 11 corporate name the Quadriplegic Centre Board under the 12 HHS Act section 15. 13 251. Quadriplegic Centre continued 14 (1) The public hospital known as the Quadriplegic Centre is to be 15 taken to have been declared by order under section 32(1) to be a 16 health service area. 17 (2) A body corporate is to be taken to have been established by 18 order under section 32(1) as a board governed provider for the 19 Quadriplegic Centre and to have been assigned the corporate 20 name Quadriplegic Centre. 21 (3) The new body corporate is a continuation of, and the same legal 22 entity as, the old body corporate. 23 (4) Subsections (1) and (2) have effect and may be treated as if they 24 were orders under section 32(1). 25 (5) The assets, rights and liabilities of or in relation to the old body 26 corporate continue as assets, rights and liabilities of or in 27 relation to the new body corporate. 28 (6) If in a written law or other document or instrument there is -- 29 (a) a reference to the old body corporate; or page 168 Health Services Bill 2016 Transitional and savings matters Part 19 Quadriplegic Centre Division 6 s. 252 1 (b) a reference that is read and construed as a reference to 2 the old body corporate, 3 the reference may, where the context so requires, be read as if it 4 had been amended to be a reference to the new body corporate. 5 252. Quadriplegic Centre board members 6 On and after transition day a person who was a member of the 7 Quadriplegic Centre board, as constituted under the HHS Act 8 section 15 immediately before transition day -- 9 (a) is to be taken to have been appointed as a member of the 10 board of the Quadriplegic Centre under section 71(1); 11 and 12 (b) subject to this Act, holds that office for the remainder of 13 the period for which the person was appointed to the 14 Quadriplegic Centre board constituted under the 15 HHS Act. 16 253. Staff members 17 (1) In this section -- 18 existing employee means a person employed under the HHS Act 19 section 19 by the old body corporate immediately before 20 transition day. 21 (2) An existing employee is, on and after transition day, to be taken 22 to be employed under this Act as an employee in the new body 23 corporate. 24 (3) A person who was engaged under the HHS Act section 19 by 25 the old body corporate immediately before transition day is to 26 be taken to be engaged by the new body corporate under this 27 Act. page 169 Health Services Bill 2016 Part 19 Transitional and savings matters Division 7 Other matters s. 254 1 254. Preservation of rights 2 (1) Except as otherwise agreed by an employee, the change from 3 employment by the old body corporate to employment in the 4 new body corporate does not -- 5 (a) affect the employee's pay as defined in the Public 6 Sector Management (Redeployment and Redundancy) 7 Regulations 2014 regulation 3(1); or 8 (b) affect the employee's existing or accrued rights in 9 respect of annual leave, long service leave, sick leave or 10 any other leave; or 11 (c) affect any rights under a superannuation scheme; or 12 (d) interrupt the continuity of the employee's service. 13 (2) For the purposes of subsection (1)(d), the person's service with 14 the old body corporate is to be taken to have been service in the 15 new body corporate. 16 255. Transfer of contracts for services 17 A person engaged by the old body corporate under a contract for 18 services that is in force immediately before transition day, is to 19 be taken to have been engaged, on and from transition day, by 20 the new body corporate on the same terms and conditions, for 21 the remainder of the duration of the contract. 22 Division 7 -- Other matters 23 256. Transitional regulations 24 (1) In this section -- 25 publication day, for regulations made under subsection (2), 26 means the day on which those regulations are published in the 27 Gazette; 28 specified means specified or described in regulations made 29 under subsection (2); page 170 Health Services Bill 2016 Transitional and savings matters Part 19 Other matters Division 7 s. 256 1 transitional matter -- 2 (a) means a matter that needs to be dealt with for the 3 purpose of effecting the statutory transition; and 4 (b) includes a saving or application matter. 5 (2) If there is no sufficient provision in this Part or in a transfer 6 order for dealing with a transitional matter, the Governor may 7 make regulations prescribing matters -- 8 (a) required to be prescribed for the purpose of dealing with 9 the transitional matter; or 10 (b) necessary or convenient to be prescribed for the purpose 11 of dealing with the transitional matter. 12 (3) Regulations made under subsection (2) may provide that 13 specified provisions of this Act -- 14 (a) do not apply to or in relation to a specified matter; or 15 (b) apply with specified modifications to or in relation to a 16 specified matter. 17 (4) If regulations made under subsection (2) provide that a specified 18 state of affairs is to be taken to have existed, or not to have 19 existed, on and after a day that is earlier than publication day 20 but not earlier than transition day, the regulations have effect 21 according to their terms. 22 (5) If regulations contain a provision referred to in subsection (4), 23 the provision does not operate so as -- 24 (a) to affect in a manner prejudicial to any person (other 25 than the State or an authority of the State) the rights of 26 that person existing before publication day for those 27 regulations; or 28 (b) to impose liabilities on a person (other than the State or 29 an authority of the State) in respect of an act done or 30 omission made before publication day for those 31 regulations. page 171 Health Services Bill 2016 Part 19 Transitional and savings matters Division 7 Other matters s. 257 1 (6) Regulations can only be made under subsection (2) within 2 36 months after the day on which this Act receives the Royal 3 Assent. 4 257. Effect of other instruments, rights and obligations 5 The operation of this Part or a transfer order must not be 6 regarded -- 7 (a) as a breach of contract or confidence or otherwise as a 8 civil wrong; or 9 (b) as a breach of any contractual provision prohibiting, 10 restricting or regulating the assignment or transfer of 11 assets, rights or liabilities or the disclosure of 12 information; or 13 (c) as giving rise to any remedy by a party to an instrument, 14 or as causing or permitting the termination of any 15 instrument, because of a change in the beneficial or legal 16 ownership of any assets, rights or liabilities; or 17 (d) as causing any contract or instrument to be void or 18 otherwise unenforceable; or 19 (e) as releasing or allowing the release of any surety. 20 258. Interpretation Act 1984 not affected 21 Except to the extent this Part expressly provides differently, the 22 Interpretation Act 1984 applies in relation to the repeal of an 23 enactment by Part 20, 21 or 22. page 172 Health Services Bill 2016 Hospitals and Health Services legislation amended Part 20 Hospitals and Health Services Act 1927 amended Division 1 s. 259 1 Part 20 -- Hospitals and Health Services 2 legislation amended 3 Division 1 -- Hospitals and Health Services Act 1927 amended 4 259. Act amended 5 This Division amends the Hospitals and Health Services 6 Act 1927. 7 260. Long title replaced 8 Delete the long title and insert: 9 10 An Act to provide for the control and regulation of private 11 hospitals and private psychiatric hostels and for related 12 purposes. 13 14 261. Section 1 replaced 15 Delete section 1 and insert: 16 17 1. Short title 18 This is the Private Hospitals and Health Services 19 Act 1927. 20 21 262. Section 2 amended 22 (1) In section 2(1) delete the definitions of: 23 agency 24 agency board 25 board 26 Commonwealth Act 27 day hospital facility page 173 Health Services Bill 2016 Part 20 Hospitals and Health Services legislation amended Division 1 Hospitals and Health Services Act 1927 amended s. 262 1 Executive Director 2 hospital 3 hospital service 4 hospital service provider 5 nursing post 6 practitioner 7 public hospital 8 teaching hospital 9 (2) In section 2(1) insert in alphabetical order: 10 11 health service has the meaning given in the Health 12 Services Act 2016 section 7; 13 hospital has the meaning given in the Health Services 14 Act 2016 section 8; 15 medical practitioner means a person registered under 16 the Health Practitioner Regulation National Law 17 (Western Australia) in the medical profession; 18 mental illness has the meaning given in the Mental 19 Health Act 2014 section 4; 20 private hospital service provider means the holder of a 21 licence granted under this Act to conduct a private 22 hospital or a private psychiatric hostel; 23 private psychiatric hostel means private premises in 24 which 3 or more persons who -- 25 (a) are socially dependent because of mental 26 illness; and 27 (b) are not members of the family of the proprietor 28 of the premises, 29 reside and are treated or cared for; page 174 Health Services Bill 2016 Hospitals and Health Services legislation amended Part 20 Hospitals and Health Services Act 1927 amended Division 1 s. 263 1 public hospital has the meaning given in the Health 2 Services Act 2016 section 8(6) and -- 3 (a) includes a hospital declared to be a public 4 hospital under the Health Services Act 2016 5 section 8(7); and 6 (b) does not include a hospital declared not to be a 7 public hospital under the Health Services 8 Act 2016 section 8(8). 9 10 (3) In section 2(1) in the definition of private non-profit hospital 11 delete "a hospital" and insert: 12 13 a private hospital 14 15 (4) Delete section 2(1A). 16 (5) Delete section 2(3) and (4). 17 263. Section 3 amended 18 (1) In section 3(1) delete "and any public hospital". 19 (2) Delete section 3(2). 20 (3) In section 3(3) delete "a public hospital, or is not a nursing 21 home, as the case may be, for" and insert: 22 23 a nursing home for 24 25 (4) Delete section 3(4) and (5). 26 264. Section 4 amended 27 In section 4 delete "a hospital or part of a hospital" and insert: 28 29 a private hospital or part of a private hospital 30 page 175 Health Services Bill 2016 Part 20 Hospitals and Health Services legislation amended Division 1 Hospitals and Health Services Act 1927 amended s. 265 1 265. Sections 5A and 7 deleted 2 Delete sections 5A and 7. 3 266. Section 7A replaced 4 Delete section 7A and insert: 5 6 7A. Minister's powers 7 The Minister has power -- 8 (a) with the approval of the Treasurer, to make 9 payments to or on behalf of any religious or 10 charitable organisation for the purpose of 11 defraying the interest on moneys borrowed by 12 that organisation and expended or intended to 13 be expended by that organisation on a project 14 approved by the Minister in connection with a 15 private non-profit hospital or nursing home 16 maintained by that organisation; and 17 (b) to make payments by way of subsidy in respect 18 of patients who are unable to afford the 19 payment of reasonable fees. 20 21 267. Sections 7B to 9 deleted 22 Delete sections 7B to 9. 23 268. Section 10 replaced 24 Delete section 10 and insert: 25 26 10. Visiting and inspecting private hospitals 27 (1) Any person authorised by the CEO for that purpose 28 may -- 29 (a) visit any private hospital; and page 176 Health Services Bill 2016 Hospitals and Health Services legislation amended Part 20 Hospitals and Health Services Act 1927 amended Division 1 s. 269 1 (b) inspect every part of any private hospital, 2 including any outbuildings or premises attached 3 to the private hospital; and 4 (c) subject to subsection (2) if the person is a 5 medical practitioner, medically examine any 6 patient in any hospital. 7 (2) Where a patient is a patient in a private hospital the 8 following provisions apply in respect of an 9 examination under subsection (1)(c) -- 10 (a) an examination must not be made except on 11 complaint to the CEO; and 12 (b) the patient's medical practitioner must be 13 notified of the intention of the authorised 14 person to examine the patient and given an 15 opportunity to be present at the examination; 16 and 17 (c) the person who is the licence holder under 18 Part IIIA in relation to the hospital in which the 19 patient is accommodated must be notified of the 20 intention to conduct the examination. 21 22 269. Section 11 amended 23 In section 11(a) delete "duties, or the visitation or inspection of 24 any public hospital; or" and insert: 25 26 duties; or 27 28 270. Sections 12 and 12A deleted 29 Delete sections 12 and 12A. 30 271. Part III deleted 31 Delete Part III. page 177 Health Services Bill 2016 Part 20 Hospitals and Health Services legislation amended Division 1 Hospitals and Health Services Act 1927 amended s. 272 1 272. Section 26P amended 2 In section 26P delete the definitions of: 3 mental illness 4 private psychiatric hostel 5 273. Part IIIC heading replaced 6 Delete the heading to Part IIIC and insert: 7 8 Part IIIC -- Information 9 10 274. Section 26R amended 11 In section 26R: 12 (a) delete "collect" and insert: 13 14 collect, use or disclose 15 16 (b) delete paragraphs (a) and (c); 17 (c) delete paragraph (d) and insert: 18 19 (d) health related research, whether that research is 20 conducted by persons employed or engaged in 21 the Department or other persons. 22 23 Note: The heading to amended section 26R is to read: 24 Purpose for collecting, using or disclosing information page 178 Health Services Bill 2016 Hospitals and Health Services legislation amended Part 20 Hospitals and Health Services Act 1927 amended Division 1 s. 275 1 275. Section 26S amended 2 In section 26S(1), (3)(a), (5), (6) and (7) before "hospital 3 service" (each occurrence) insert: 4 5 private 6 7 Note: The heading to amended section 26S is to read: 8 CEO may direct private hospital service provider to give 9 information 10 276. Section 26T replaced 11 Delete section 26T and insert: 12 13 26T. No liability for disclosure 14 If a private hospital service provider discloses 15 information in compliance with a direction under 16 section 26S -- 17 (a) no civil or criminal liability is incurred in 18 respect of the disclosure; and 19 (b) the disclosure is not to be regarded as -- 20 (i) a breach of any duty of confidentiality 21 or secrecy imposed by law; or 22 (ii) a breach of professional ethics or 23 standards or any principles of conduct 24 applicable to a person's employment; or 25 (iii) unprofessional conduct. 26 27 277. Sections 27 to 35 deleted 28 Delete sections 27 to 35. page 179 Health Services Bill 2016 Part 20 Hospitals and Health Services legislation amended Division 1 Hospitals and Health Services Act 1927 amended s. 278 1 278. Section 35A replaced 2 Delete section 35A and insert: 3 4 35A. Protection from personal liability 5 (1) An action in tort does not lie against a person for 6 anything that the person has done, in good faith, in the 7 performance or purported performance of a function 8 under this Act. 9 (2) The protection given by this section applies even 10 though the thing done as described in subsection (1) 11 may have been capable of being done whether or not 12 this Act had been enacted. 13 (3) Despite subsection (1), the State is not relieved of any 14 liability that it might have for another person having 15 done any thing as described in that subsection. 16 (4) In this section, a reference to the doing of anything 17 includes a reference to an omission to do anything. 18 19 279. Sections 35B, 35C and 36 deleted 20 Delete sections 35B, 35C and 36. 21 280. Section 37 amended 22 (1) Delete section 37(2) to (2g). 23 (2) Delete section 37(3)(aa) to (af). 24 Note: The heading to amended section 37 is to read: 25 Regulations page 180 Health Services Bill 2016 Hospitals and Health Services legislation amended Part 20 Hospitals and Health Services Amendment Act 2013 repealed Division 2 s. 281 1 281. Section 38 amended 2 Delete section 38(1)(c) and (d) and insert: 3 4 (c) the effectiveness of the operations of the 5 Minister, the Department, the CEO and 6 authorised persons under this Act; 7 8 282. Schedule deleted 9 Delete the Schedule. 10 Division 2 -- Hospitals and Health Services Amendment 11 Act 2013 repealed 12 283. Hospitals and Health Services Act Amendment Act 2013 13 repealed 14 The Hospitals and Health Services Amendment Act 2013 is 15 repealed. page 181 Health Services Bill 2016 Part 21 Other Acts amended s. 284 1 Part 21 -- Other Acts amended 2 284. Births, Deaths and Marriages Registration Act 1998 amended 3 (1) This section amends the Births, Deaths and Marriages 4 Registration Act 1998. 5 (2) In section 12(1) in the definition of responsible person 6 paragraph (a) delete "means the chief executive officer or 7 general manager of the hospital; or" and insert: 8 9 means -- 10 (i) in the case of a public hospital as 11 defined in the Health Services Act 2016 12 section 6 -- the chief executive of the 13 health service provider for that hospital; 14 or 15 (ii) in the case of a private hospital as 16 defined in the Private Hospitals and 17 Health Services Act 1927 18 section 2(1) -- the chief executive 19 officer or general manager of the 20 hospital; 21 or 22 23 285. Blood Donation (Limitation of Liability) Act 1985 amended 24 (1) This section amends the Blood Donation (Limitation of 25 Liability) Act 1985. 26 (2) In section 3 in the definition of hospital delete paragraph (a) and 27 insert: 28 29 (a) a public hospital as defined in the Health 30 Services Act 2016 section 6, means the health 31 service provider for that hospital; 32 page 182 Health Services Bill 2016 Other Acts amended Part 21 s. 286 1 (3) In section 3A(1) after "employed by" insert: 2 3 or in 4 5 (4) In section 9(1)(a)(ii) delete "employee of," and insert: 6 7 employee of or in, 8 9 286. Carers Recognition Act 2004 amended 10 (1) This section amends the Carers Recognition Act 2004. 11 (2) In section 8(3)(b) delete "Hospitals and Health Services 12 Act 1927." and insert: 13 14 Health Services Act 2016. 15 16 (3) Delete Schedule 2 Division 1 item 3 and insert: 17 18 3. A health service provider as defined in the Health Services 19 Act 2016 section 6. 20 3A. The chief executive officer of the department principally 21 assisting in the administration of the Health Services 22 Act 2016 in relation to any health services provided by the 23 chief executive officer under the Health Services Act 2016. 24 25 287. Charitable Trusts Act 1962 amended 26 (1) This section amends the Charitable Trusts Act 1962. page 183 Health Services Bill 2016 Part 21 Other Acts amended s. 288 1 (2) Delete section 13(b) and insert: 2 3 (b) any health service provider as defined in the 4 Health Services Act 2016 section 6; or 5 6 288. Constitution Acts Amendment Act 1899 amended 7 (1) This section amends the Constitution Acts Amendment Act 1899. 8 (2) In Schedule V Part 3 delete the items: 9 10 Agency established under section 7B of the Hospitals and Health 11 Services Act 1927. 12 Any hospital board constituted under the Hospitals and Health 13 Services Act 1927. 14 15 (3) In Schedule V Part 3 after the item relating to the Health 16 Education Council of Western Australia insert: 17 18 Any health service provider established by order under the Health 19 Services Act 2016. 20 21 289. Financial Management Act 2006 amended 22 (1) This section amends the Financial Management Act 2006. 23 (2) In Schedule 1 delete the items: 24 25 Agencies established under the Hospitals and Health Services 26 Act 1927 section 7B 27 Hospital boards constituted under the Hospitals and Health Services 28 Act 1927 section 15 and the Minister in relation to any 29 public hospital controlled by the Minister under section 7 of 30 that Act 31 page 184 Health Services Bill 2016 Other Acts amended Part 21 s. 290 1 (3) In Schedule 1 after the item relating to the Health and Disability 2 Services Complaints Office insert: 3 4 Health service providers established by order under the Health 5 Services Act 2016 section 32(1) 6 7 290. Food Act 2008 amended 8 (1) This section amends the Food Act 2008. 9 (2) In section 8 in the definition of public institution delete 10 "Hospitals and Health Services Act 1927; or" and insert: 11 12 Health Services Act 2016 section 6; or 13 14 (3) In section 8 in the definition of public institution after each of 15 paragraphs (a) and (b) insert: 16 17 or 18 19 291. Health Act 1911 amended 20 (1) This section amends the Health Act 1911. 21 (2) In section 290 in the definition of hospital delete "under the 22 Hospitals and Health Services Act 1927;" and insert: 23 24 as defined in the Health Services Act 2016 section 6; 25 page 185 Health Services Bill 2016 Part 21 Other Acts amended s. 292 1 (3) In section 340AB(3)(c) and (d) delete "the Hospital Board of 2 that hospital; and" and insert: 3 4 the chief executive of the health service provider for that 5 hospital under the Health Services Act 2016; and 6 7 292. Health and Disability Services (Complaints) Act 1995 8 amended 9 (1) This section amends the Health and Disability Services 10 (Complaints) Act 1995. 11 (2) In section 3(1) in the definition of provider paragraph (c) delete 12 "under the Hospitals and Health Services Act 1927;" and insert: 13 14 as defined in the Health Services Act 2016 section 6; 15 16 293. Health Legislation Administration Act 1984 amended 17 (1) This section amends the Health Legislation Administration 18 Act 1984. 19 (2) Delete section 6(2) and insert: 20 21 (2) The Minister may for the purposes of the Acts to which 22 this Act applies, other than the Health Services 23 Act 2016 -- 24 (a) appoint persons, other than public service 25 officers, as employees on a full-time, part-time 26 or casual basis or for a specified period; and 27 (b) engage persons, other than public service 28 officers, under contract for services. 29 page 186 Health Services Bill 2016 Other Acts amended Part 21 s. 294 1 294. Human Tissue and Transplant Act 1982 amended 2 (1) This section amends the Human Tissue and Transplant 3 Act 1982. 4 (2) Delete section 3(2) and insert: 5 6 (2) For the purposes of this Act -- 7 hospital includes a health service provider as defined 8 in the Health Services Act 2016 section 6 that has the 9 conduct of pathological examinations as an area for 10 which it is established. 11 12 295. Industrial Relations Act 1979 amended 13 (1) This section amends the Industrial Relations Act 1979. 14 (2) In section 7(1) in the definition of public hospital delete 15 "Hospitals and Health Services Act 1927" and insert: 16 17 Health Services Act 2016 section 6; 18 19 (3) In section 80C(1) delete the definition of employing authority 20 and insert: 21 22 employing authority means -- 23 (a) in relation to a government officer who is an 24 employee within the meaning of the Health 25 Services Act 2016 section 6, an employing 26 authority within the meaning of section 103 of 27 that Act; 28 (b) in relation to any other government officer, an 29 employing authority within the meaning of the 30 Public Sector Management Act 1994 section 5; 31 page 187 Health Services Bill 2016 Part 21 Other Acts amended s. 295 1 (4) In section 80C(1) in the definition of employer after 2 paragraph (a) insert: 3 4 (aa) in relation to a government officer who is an 5 employee within the meaning of the Health 6 Services Act 2016 section 6, means the 7 employing authority of the employee; 8 9 (5) In section 80C(2) delete "1994." and insert: 10 11 1994 and the Health Services Act 2016. 12 13 (6) Delete section 80I(1) and (2) and insert: 14 15 (1) Subject to the Public Sector Management Act 1994 16 section 52, the Health Services Act 2016 section 118 17 and subsection (3) of this section, a Board has 18 jurisdiction to hear and determine -- 19 (a) an appeal by any public service officer against 20 any decision of an employing authority in 21 relation to an interpretation of any provision of 22 the Public Sector Management Act 1994, and 23 any provision of the regulations made under 24 that Act, concerning the conditions of service 25 (other than salaries and allowances) of public 26 service officers; 27 (b) an appeal by a government officer under the 28 Public Sector Management Act 1994 section 78 29 against a decision or finding referred to in 30 subsection (1)(b) of that section; 31 (c) an appeal by a government officer under the 32 Health Services Act 2016 section 172 against a 33 decision or finding referred to in 34 subsection (1)(b) of that section; page 188 Health Services Bill 2016 Other Acts amended Part 21 s. 296 1 (d) an appeal, other than an appeal under the Public 2 Sector Management Act 1994 section 78(1) or 3 the Health Services Act 2016 section 172(2), by 4 a government officer that the government 5 officer be dismissed, 6 and to adjust all such matters as are referred to in 7 paragraphs (a), (b), (c) and (d). 8 9 296. Mental Health Act 2014 amended 10 (1) This section amends the Mental Health Act 2014. 11 (2) In section 4 in the definition of general hospital delete 12 "Hospitals and Health Services Act 1927 section 2(1))" and 13 insert: 14 15 Health Services Act 2016 section 6) 16 17 (3) In section 4 in the definition of private hospital delete 18 "Hospitals and Health Services Act 1927" and insert: 19 20 Private Hospitals and Health Services Act 1927 21 22 (4) In section 4 in the definition of public hospital delete 23 "Hospitals and Health Services Act 1927 section 2(1);" and 24 insert: 25 26 Health Services Act 2016 section 6; 27 page 189 Health Services Bill 2016 Part 21 Other Acts amended s. 297 1 (5) In section 348 in the definition of identified person 2 paragraph (h) delete "Hospitals and Health Services Act 1927" 3 and insert: 4 5 Private Hospitals and Health Services Act 1927 6 7 297. National Health Funding Pool Act 2012 amended 8 (1) This section amends the National Health Funding Pool 9 Act 2012. 10 (2) In section 16(1)(a) delete "Hospitals and Health Services 11 Act 1927; and" and insert: 12 13 Health Services Act 2016; and 14 15 298. Pay-roll Tax Assessment Act 2002 16 (1) This section amends the Pay-roll Tax Assessment Act 2002. 17 (2) Delete section 40(2)(d) and insert: 18 19 (d) to a person who is staff member as defined in 20 the Health Services Act 2016 section 6 of a 21 health service provider, in connection with that 22 person's employment in, or engagement under 23 a contract for services by, the health service 24 provider under that Act; or 25 26 (3) After section 40(2) insert: 27 28 (2A) The exemption provided for by subsection (2)(d) does 29 not apply to wages that are paid or payable to a staff 30 member to the extent that the person's employment or 31 engagement is in connection with a commercial page 190 Health Services Bill 2016 Other Acts amended Part 21 s. 299 1 activity referred to in the Health Services Act 2016 2 section 35 unless the commercial activity is, or is in a 3 class of commercial activity, prescribed in the 4 regulations for the purposes of this subsection. 5 6 299. Pharmacy Act 2010 amended 7 (1) This section amends the Pharmacy Act 2010. 8 (2) In section 3(1) in the definition of pharmacy business 9 paragraph (c) delete "Hospitals and Health Services Act 1927 10 section 2(1); or" and insert: 11 12 Health Services Act 2016 section 6; or 13 14 300. Public Works Act 1902 amended 15 (1) This section amends the Public Works Act 1902. 16 (2) In section 2 insert in alphabetical order: 17 18 hospital has the meaning given in the Health Services 19 Act 2016 section 6; 20 21 (3) In section 2 in the definition of public work paragraph (f) delete 22 "hospitals within the meaning given to that term by section 2 of 23 the Hospitals and Health Services Act 1927," and insert: 24 25 hospitals, 26 27 301. Queen Elizabeth II Medical Centre Act 1966 amended 28 (1) This section amends the Queen Elizabeth II Medical Centre 29 Act 1966. page 191 Health Services Bill 2016 Part 21 Other Acts amended s. 301 1 (2) Delete section 13(2e) and insert: 2 3 (2e) While a setting aside and delegation under 4 subsection (2a) are in force, the delegate, for the 5 purposes for which the site was set aside, has all the 6 powers delegated to the delegate under subsection (2a) 7 in respect of the site as if those powers had been 8 conferred on the delegate by this Act. 9 10 (3) Delete section 13(2g)(b)(i) and insert: 11 12 (i) to the delegate under the regulations; or 13 14 (4) Delete section 16. 15 (5) In section 19(1) delete "Hospitals and Health Services 16 Act 1927," and insert: 17 18 Private Hospitals and Health Services Act 1927, the Health 19 Services Act 2016, 20 21 (6) In section 20(1) and (1a) delete "Trust may, with the approval 22 of the Governor, make by-laws" and insert: 23 24 Governor may make regulations 25 26 (7) In the provisions listed in the Table: 27 (a) delete "by-laws" (each occurrence) and insert: 28 29 regulations 30 page 192 Health Services Bill 2016 Other Acts amended Part 21 s. 302 1 (b) delete "by-law" (each occurrence) and insert: 2 3 regulation 4 5 Table s. 20(1a)(i), (k), (m), (n), (p), s. 20(1b) def. of specified (q), (r), (s) and (t) s. 20(1c) s. 20(1d) s. 20(1e) s. 20(2) s. 20(3) s. 20(4) 6 Note: The heading to amended section 20 is to read: 7 Regulations 8 302. Rail Safety National Law (WA) Act 2015 amended 9 (1) This section amends the Rail Safety National Law (WA) 10 Act 2015. 11 (2) In section 23 in the definition of hospital delete "Hospitals and 12 Health Services Act 1927 section 2(1)." and insert: 13 14 Health Services Act 2016 section 6. 15 16 303. Spent Convictions Act 1988 amended 17 (1) This section amends the Spent Convictions Act 1988. page 193 Health Services Bill 2016 Part 21 Other Acts amended s. 304 1 (2) In Schedule 3 clause 1(7) delete the Table and insert: 2 3 Table 1. A person who is employed in or seconded to, or who is being considered for employment in or secondment to, the Department of Health or the Mental Health Commission under any of the following -- (a) the Health Act 1911; (b) the Health Services Act 2016; (c) the Mental Health Act 2014; (d) the Alcohol and Other Drugs Act 1974. 2. A person who is employed in or seconded to, or who is being considered for employment in or secondment to, a health service provider under the Health Services Act 2016. 3. A person who is placed, or who is being considered for placement, as a student undertaking a practicum or in an unpaid capacity in the Department of Health, the Mental Health Commission or a health service provider as defined in the Health Services Act 2016 section 6. 4 5 304. State Superannuation (Transitional and Consequential 6 Provisions) Act 2000 7 (1) This section amends the State Superannuation (Transitional and 8 Consequential Provisions) Act 2000. 9 (2) Delete section 48(2). 10 305. University Medical School, Teaching Hospitals, Act 1955 11 (1) This section amends the University Medical School, Teaching 12 Hospitals, Act 1955. page 194 Health Services Bill 2016 Other Acts amended Part 21 s. 305 1 (2) In section 2 delete the definition of managing body and insert: 2 3 managing body, in relation to a hospital, means the 4 health service provider that has control or management 5 of the hospital; 6 7 (3) In section 2 insert in alphabetical order: 8 9 health service provider has the meaning given in the 10 Health Services Act 2016 section 6; 11 12 (4) In section 2 in the definition of public hospital delete "same 13 meaning as in section 2 of the Hospitals and Health Services 14 Act 1927," and insert: 15 16 meaning given in the Health Services Act 2016 section 6, 17 18 (5) Delete section 4(1) and insert: 19 20 (1) Subject to subsection (2) and section 5, a health service 21 provider that has control or management of a teaching 22 hospital may enter into an agreement with the State in 23 relation to -- 24 (a) the provision in the teaching hospital of 25 facilities for research and for the teaching of 26 medicine, including the use of land under the 27 control of the teaching hospital and the erection 28 of buildings thereon; and 29 (b) the admission of medical students to the 30 practice, referred to in that agreement, of the 31 teaching hospital; and 32 (c) except in the case of a teaching hospital which 33 is on the reserve within the meaning of the page 195 Health Services Bill 2016 Part 21 Other Acts amended s. 306 1 Queen Elizabeth II Medical Centre Act 1966, 2 the formation of an electoral committee for the 3 teaching hospital charged with the 4 responsibility of making recommendations to 5 the managing body of the teaching hospital or 6 the Minister, as the case requires, concerning 7 the appointment of persons who are concerned 8 with teaching duties to the consultant clinical 9 staff of the teaching hospital. 10 11 (6) Delete sections 5 and 6. 12 306. Workers' Compensation and Injury Management Act 1981 13 amended 14 (1) This section amends the Workers' Compensation and Injury 15 Management Act 1981. 16 (2) In Schedule 1 clause 18(1) delete "Hospitals and Health Services 17 Act 1927" and insert: 18 19 Health Services Act 2016 20 page 196 Health Services Bill 2016 By-laws, regulations and determinations repealed or revoked Part 22 s. 307 1 Part 22 -- By-laws, regulations and determinations 2 repealed or revoked 3 307. By-laws and regulations repealed 4 These by-laws and regulations are repealed: 5 (a) Armadale Kelmscott District Memorial Hospital 6 By-laws 2002; 7 (b) Bentley Hospital By-laws 2001; 8 (c) Fiona Stanley Hospital By-laws 2014; 9 (d) Fremantle Hospital By-laws 1992; 10 (e) Hospitals (Administration of Public Hospitals) 11 Regulations 1940; 12 (f) Hospitals and Health Services (Pathology) 13 Regulations 2005; 14 (g) Hospitals (Services Charges) Regulations 1984; 15 (h) Metropolitan Health Service By-laws 2008; 16 (i) Osborne Park Hospital By-laws 2007; 17 (j) Queen Elizabeth II Medical Centre (Delegated Site) 18 By-laws 1986; 19 (k) Royal Perth Hospital By-laws 2009; 20 (l) WA Country Health Service By-laws 2007; 21 (m) Women's and Children's Hospitals By-laws 2005. 22 308. Determinations revoked 23 These determinations are revoked: 24 (a) Hospitals and Health Services (Day Hospital Facility) 25 Determination 2005; 26 (b) Hospitals and Health Services (Day Hospital Facility) 27 Determination (No. 2) 2005; 28 (c) Hospitals (Services Charges for Compensable Patients) 29 Determination 2005; page 197 Health Services Bill 2016 Part 22 By-laws, regulations and determinations repealed or revoked s. 308 1 (d) Hospitals (Services Charges for Magnetic Resonance 2 Imaging) Determination 2004; 3 (e) Hospitals (Services Charges for Pathology Services) 4 Determination 2012; 5 (f) Hospitals (Services Charges for Specialised Orthoses) 6 Determination 2015; 7 (g) Hospitals (Services Charges for the Supply of Surgically 8 Implanted Prostheses) Determination 2013. 9 page 198 Health Services Bill 2016 Defined terms Defined terms [This is a list of terms defined and the provisions where they are defined. The list is not part of the law.] Defined term Provision(s) assets ........................................................................................................ 6, 200(1) acquire................................................................................................. 13(1), 36(1) administrator ....................................................................................................... 94 adviser ................................................................................................................. 94 alcohol and drug health service........................................................................... 43 alcohol and drug health service provider ............................................................ 43 associated interest ........................................................................................ 194(1) authorised person ......................................................................................... 211(1) board ..................................................................................................................... 6 board governed provider ....................................................................................... 6 breach of discipline ............................................................................................... 6 business arrangement .......................................................................... 14(1), 36(1) cause .............................................................................................................. 74(1) chief executive ...................................................................................................... 6 chief executive governed provider ........................................................................ 6 claimant.......................................................................................................... 58(1) clinical governance arrangements .................................................................. 34(3) code .............................................................................................................. 231(1) Commission CEO ................................................................................................ 6 Commission CEO ............................................................................................... 43 Commission health service ................................................................................. 43 Commission service agreement .......................................................................... 43 committee ............................................................................................................. 6 compensable person ....................................................................................... 58(1) compensation ................................................................................................. 58(1) confidential information............................................................................... 177(1) contracted health entity ......................................................................................... 6 day hospital facility ................................................................................. 8(1), 8(2) Department ........................................................................................................... 6 department ........................................................................................................ 126 Department CEO................................................................................................... 6 Department CEO direction ........................................................................ 6, 29(1) disability ........................................................................................................... 213 disciplinary action ................................................................................................. 6 disciplinary decision or finding ................................................................... 172(1) dispose of ............................................................................................ 13(1), 36(1) document........................................................................................................ 61(1) earlier transfer order..................................................................................... 194(1) employee ............................................................................................................... 6 employing authority ................................................................................. 6, 103(1) page 199 Health Services Bill 2016 Defined terms executive ........................................................................................................... 126 existing employee ............................................................................245(1), 253(1) external provider .......................................................................................... 218(1) first provider .................................................................................................. 48(1) former account .................................................................................201(1), 244(1) former employee .......................................................................................... 155(1) government officer ............................................................................................ 171 head agreement .............................................................................................. 44(1) health executive .................................................................................................... 6 Health Executive Service ...................................................................................... 6 health information ............................................................................................. 213 health information management system ........................................................... 213 health professional ................................................................................................ 6 health service ............................................................................................... 6, 7(1) health service area ................................................................................................. 6 health service employee ............................................................................... 228(1) health service land ......................................................................................... 37(1) health service provider .......................................................................................... 6 health service provider land .............................................................................. 207 health service provider's liability ................................................................... 38(1) HHS Act............................................................................................................ 233 hospital .............................................................................................6, 8(4), 285(2) hospital board.................................................................................................... 233 improvement action .............................................................................................. 6 Industrial Commission ...................................................................................... 171 industrial instrument ..........................................................................29(1), 157(1) informant...................................................................................................... 192(1) information .................................................................................................... 61(1) information policy framework .......................................................................... 213 injury .............................................................................................................. 58(1) injury or hearing loss ................................................................................... 228(1) inquirer .............................................................................................................. 182 inquiry ............................................................................................................... 182 interstate authority ....................................................................................... 218(1) joint arrangement ........................................................................................... 13(1) joint use property ........................................................................................... 13(1) LA Act .............................................................................................................. 233 liabilities ............................................................................................................... 6 medical practitioner ....................................................................................... 69(1) member ................................................................................................................. 6 mental health service .......................................................................................... 43 mental health service provider ............................................................................ 43 mental illness ...................................................................................................... 43 Minister for Lands ............................................................................................ 233 Minister for Works......................................................................................... 20(7) page 200 Health Services Bill 2016 Defined terms Ministerial Body ................................................................................................... 6 misconduct ..................................................................................................... 77(1) misconduct finding ...................................................................................... 145(3) National Health Agreement .................................................................................. 6 new body corporate ........................................................................................... 250 non-chargeable health service ........................................................................ 55(1) nursing post ...................................................................................................... 8(1) old body corporate ............................................................................................ 250 operating account ................................................................................. 201(1), 233 organisation....................................................................................................... 126 original contract ........................................................................................... 128(3) originating place of employment ................................................................. 132(2) participate ........................................................................................... 14(1), 36(1) patient ................................................................................................................... 6 personal information ............................................................................................. 6 policy framework .................................................................................................. 6 practising health professional ........................................................................ 71(4) prescribed.............................................................................................................. 6 prescribed period.......................................................................................... 134(1) property ................................................................................................................. 6 provide .................................................................................................................. 6 provider .......................................................................................................... 45(3) provider of destination ................................................................................. 116(3) provider offence ........................................................................................... 212(1) provision ........................................................................................................ 26(1) PSM Act................................................................................................................ 6 public authority ..................................................................................................... 6 public health service .................................................................................... 6, 7(3) public health service facility ................................................................................. 6 public hospital ....................................................................................................... 6 publication day .................................................................................205(1), 256(1) qualified person.............................................................................................. 99(1) reasonably suspects ...................................................................................... 211(1) record ........................................................................................................... 177(1) relevant employer ............................................................................136(1), 142(1) relevant information .........................................................................217(1), 218(1) relevant lands official............................................................................................ 6 relevant successor ............................................................................................. 233 responsible authority ........................................................................................ 144 responsible provider ..................................................................................... 212(1) right of return ............................................................................................... 132(1) rights ..................................................................................................................... 6 section 173(2) breach of discipline ................................................................... 160 serious offence .................................................................................................. 144 service agreement ........................................................................................... 6, 43 page 201 Health Services Bill 2016 Defined terms services .......................................................................................................... 45(3) specified ....................................................... 56(1), 205(1), 210(1), 224(1), 256(1) staff member ......................................................................................................... 6 State tax ................................................................................................................ 6 statutory office ............................................................................................. 132(1) statutory transition ............................................................................................ 233 subsidiary legislation ................................................................................... 231(1) system manager role ...................................................................................... 19(2) this Part ............................................................................................................. 233 transaction ...................................................................................................... 38(1) transfer order .................................................................... 194(2), 202, 233, 238(1) transfer period ................................................................................................ 51(1) transition day .................................................................................................... 233 transitional matter ............................................................................205(1), 256(1) WA health system ................................................................................................. 6 WA health system-wide plan ................................................................................ 6 WCIM Act ................................................................................................... 228(1)
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