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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Health and Community Services Complaints (Miscellaneous)
Amendment Bill 2010
A BILL FOR
An Act to amend the Health
and Community Services Complaints Act 2004.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Health and
Community Services Complaints Act 2004
4Amendment of
section 4—Interpretation
5Amendment of section
9—Functions
6Amendment of section 22—Content of
Charter
7Amendment of section
29—Assessment
8Amendment of section 55—Notice of action
to providers
9Insertion of Part 6 Division 5
Division 5—Action against unregistered
health practitioners
56ACodes of
conduct
56BInterim
action
56CCommissioner may take
action
56DCommissioner to provide
details
56EAppeal
56FRelated matters
10Amendment of
section 67—Establishment of Council
11Amendment of section
69—Functions of Council
12Substitution of section
74
74Protection of identity
of service user or complainant from service provider
13Amendment of section 76—Returns by
prescribed providers
14Insertion of section
86A
86AAssistance to other
agencies
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Health and Community Services Complaints
(Miscellaneous) Amendment Act 2010.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Health and Community Services Complaints
Act 2004
4—Amendment
of section 4—Interpretation
Section 4—before the definition of Charter
insert:
carer means a person who is a carer for the purposes of the
Carers
Recognition Act 2005;
5—Amendment
of section 9—Functions
Section 9(1)(l)(ii)—delete subparagraph (ii) and
substitute:
(ii) the Australian Human Rights Commission; and
6—Amendment
of section 22—Content of Charter
Section 22—after paragraph (f) insert:
(g) that a person should be entitled to be supported by a person of his or
her choice when making a complaint about the provision of health or community
services.
7—Amendment
of section 29—Assessment
Section 29(3)—delete subsection (3) and substitute:
(3) If a complaint is against or directly involves an approved provider
under the Aged Care Act 1997 of the Commonwealth—
(a) the Commissioner must consult with the relevant complaints resolution
bodies under that Act about the management of the complaint; and
(b) the Commissioner may refer the complaint to another authority for
investigation or resolution under that Act; and
(c) the Commissioner may provide information and assistance to another
authority concerned with the investigation or resolution of the complaint under
that Act.
8—Amendment
of section 55—Notice of action to providers
(1) Section 55—delete subsections (4) and (5) and
substitute:
(4) The Commissioner
may require the health or community service provider to, in connection with the
provision of a notice under subsection (1), outline to the Commissioner
what action (if any) the service provider has taken, or intends to take, in
response to the matters raised in the notice.
(5) The Commissioner must allow the service provider and, if relevant, a
registration authority, at least 28 days to make representations in
relation to the matter and, in the case of the service provider, to comply with
a requirement under
subsection (4).
(2) Section 55(6)—delete "that subsection" and substitute:
subsection (5)
9—Insertion
of Part 6 Division 5
Part 6—after Division 4 insert:
Division 5—Action against unregistered health
practitioners
56A—Codes of conduct
(1) The Governor may, by regulation, prescribe a code of conduct relating
to the provision of health services that fall outside the ambit of operation of
a registration authority.
(2) The Governor may—
(a) prescribe different codes of conduct for different classes of health
service; and
(b) make different provisions for different classes of health service
within a prescribed code of conduct.
(3) A person who
breaches a prescribed code of conduct is not, on account of the breach alone,
liable to any civil or criminal action.
(4) However, if a
person breaches a prescribed code of conduct, the Commissioner may enforce
compliance with the code in the circumstances contemplated by
section 56B and
56C.
(5)
Subsections (3)
and
(4) do not limit or
derogate from any other provision of this Act or any other law.
56B—Interim action
(1) The Commissioner may act under this section if—
(a) an investigation has been commenced under this Part, in relation to a
person who has provided a health service (a prescribed health service
provider); and
(b) the Commissioner has a reasonable belief that the prescribed health
service provider has—
(i) breached a prescribed code of conduct under
section 56A;
or
(ii) committed a prescribed offence; and
(c) in the opinion of the Commissioner action under this section is
necessary to protect the health or safety of members of the public.
(2) The Commissioner may, in acting under this section in relation to a
prescribed health service provider—
(a) make an order prohibiting the prescribed health service provider from
providing health services, or specified health services, for a period of
12 weeks or shorter period as may be specified in the order;
(b) make an order imposing such conditions as the Commissioner considers
appropriate on the provision of health services, or specified health services,
by the prescribed health service provider for a period of 12 weeks or
shorter period as may be specified in the order.
(3) The Commissioner may at any time vary or revoke an order made under
this section.
(4) The Commissioner
must, as soon as practicable after making an order under this section, notify
the prescribed health service provider in writing of the order and specify the
grounds on which the order is made.
(5) A person who contravenes an order made under this section is guilty of
an offence.
Maximum penalty: $10 000 or imprisonment for 2 years or
both.
56C—Commissioner may take
action
(1) The Commissioner may act under this section if—
(a) an investigation has been carried out under this Part in relation to a
person who has provided a health service (a prescribed health service
provider); and
(b) the Commissioner is satisfied that the prescribed health service
provider has—
(i) breached a prescribed code of conduct under
section 56A;
or
(ii) been found guilty of a prescribed offence; and
(c) in the opinion of the Commissioner the prescribed health service
provider poses an unacceptable risk to the health or safety of members of the
public.
(2) The Commissioner may, in acting under this section in relation to a
prescribed health service provider—
(a) make an order prohibiting the prescribed health service provider from
providing health services, or specified health services, for a period specified
in the order, or indefinitely;
(b) make an order imposing such conditions as the Commissioner considers
appropriate on the provision of health services, or specified health services,
by the prescribed health service provider for a specified period, or
indefinitely;
(c) publish a public statement, in a manner determined by the
Commissioner, identifying the prescribed health service provider and giving
warnings or such other information as the Commissioner considers appropriate in
relation to the health services, or specified health services, provided by the
prescribed health service provider.
(3) The Commissioner may at any time vary or revoke an order or public
statement made under this section.
(4) A person who contravenes an order made under this section is guilty of
an offence.
Maximum penalty: $10 000 or imprisonment for 2 years or
both.
56D—Commissioner to provide
details
(1) If the
Commissioner takes any action under
section 56C the
Commissioner must, as soon as practicable, provide the prescribed health service
provider with a written statement (the statement) in relation to
the action that includes the following:
(a) the Commissioner's findings on significant questions of
fact;
(b) any evidence or other material on which the findings of fact were
based;
(c) the reason, or reasons, for the action.
(2) The Commissioner—
(a) if action taken under this Division relates to a complaint—must
provide a copy of the statement to the complainant; and
(b) must provide a copy of the statement to any professional body or
association that the Commissioner considers relevant to the prescribed health
service provider or to the area of practice to which the action under this
Division relates; and
(c) may publish the statement, or parts of the statement, in a manner that
the Commissioner considers appropriate.
56E—Appeal
(1) A person in relation to who the Commissioner makes an order or
publishes a statement under
section 56B or
56C may appeal the decision
to make the order or publish the statement to the Administrative and
Disciplinary Division of the District Court (the Court).
(2) An appeal under this section must be commenced within 1 month
after notification under
section 56B(4) or
service of a statement under
section 56D, or such
extended period as may be allowed by the Court.
(3) On an appeal under this section the Court may confirm, vary or revoke
an order or publication the subject of the appeal.
56F—Related matters
(1) The Governor may, by regulation, exclude a specified person, or
persons of a specified class, from the application of this Division.
(2) To avoid doubt, action may not be taken under this Division in
relation to conduct that falls within the ambit of Part 7.
10—Amendment
of section 67—Establishment of Council
Section 67(2)—after paragraph (e) insert:
and
(f) 1 person who, in the opinion of the Minister, is qualified, by
reason of his or her experience and expertise, to represent the interests of
carers; and
(g) 1 person who, in the opinion of the Minister, has appropriate
experience and expertise in relation to the quality and safety standards of
health services.
11—Amendment
of section 69—Functions of Council
Section 69(1)—delete subsection (1) and substitute:
(1) The functions of the Council are to advise the Minister and the
Commissioner in relation to—
(a) the means of educating and informing users, providers and the public
on the availability of means for making health or community service complaints
or expressing grievances in relation to health or community services or their
provision; and
(b) key strategic issues that arise in relation to the resolution of
complaints made in relation to the provision of health or community services;
and
(c) the operation of this Act; and
(d) any other matter on which the Minister or Commissioner requests the
advice of the Council.
Section 74—delete the section and substitute:
74—Protection of identity of service user or
complainant from service provider
Despite any other provision of this Act, the Commissioner may determine not
to disclose to a health or community service provider information that would
enable a health or community service user or a complainant to be identified
if—
(a) the Commissioner believes, on reasonable grounds, that the disclosure
would, directly or indirectly—
(i) put at risk the health or safety of a person; or
(ii) result in a person receiving a health or community service of a lower
standard than would otherwise have been provided; or
(iii) prejudice the fair assessment of a complaint or an investigation
under this Act; or
(b) in the Commissioner's opinion—
(i) the complaint—
(A) raises a significant issue of public safety, public interest or public
importance; or
(B) raises a significant question as to the practice of a health or
community service provider; and
(ii) non-disclosure is in the public interest.
13—Amendment
of section 76—Returns by prescribed providers
(1) Section 76(1)(a)—delete paragraph (a) and substitute:
(a) prescribed classes of complaints received by the health or community
service provider during a period determined by the Commissioner relating
to—
(i) matters of public safety, interest or importance; and
(ii) matters arising under the Charter; and
(2) Section 76—after subsection 3 insert:
(3a) The Commissioner may publish any return received under this section,
or a summary of information contained in such a return, in such manner as the
Commissioner thinks fit.
After section 86 insert:
86A—Assistance to other
agencies
Without limiting any other provision, the Commissioner may assist, and
provide information to, a person concerned in the administration or enforcement
of a law of the State, or a law of the Commonwealth or another State or a
Territory of the Commonwealth, for purposes related to the administration or
operation of that other law.