Health Act 1997

Health Act 1997

An Act to make provision for quality assurance committees, for ensuring that certain Medicare principles are given effect to, and certain Medicare commitments are undertaken, in the provision of public hospital services and for other matters

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Health Act 1997 .

2.   Commencement

The provisions of this Act commence on a day or days to be proclaimed.

3.   Interpretation

In this Act, unless the contrary intention appears –

Board means the Hospitals and Ambulance Service Advisory Board established under section 6 ;

Commonwealth Act means the Health Insurance Act 1973 of the Commonwealth;

eligible person means an eligible person within the meaning of the Commonwealth Act;

health service establishment means a private medical establishment within the meaning of the Hospitals Act 1918 or a day hospital facility within the meaning of the National Health Act 1953 of the Commonwealth;

Medicare commitments means the commitments set out in section 26(2) of the Commonwealth Act and in Part 2 of Schedule 1;

Medicare principles means the principles set out in section 26(2) of the Commonwealth Act and in Part 1 of Schedule 1;

professional association means an association, society, college or other body of health professionals.

4.   Quality assurance committees

(1)  The Minister, by notice published in the Gazette, may declare that a specified committee established by the Secretary of the Department, the governing body of a health service establishment or a professional association is an approved quality assurance committee for the purposes of this Act and, by like notice, may revoke the declaration.

(2)  The Minister is not to make a declaration under subsection (1) unless satisfied –

(a) that the committee is established by the Secretary of the Department, by the governing body of a health service establishment or by a professional association; and

(b) that the committee's functions include the assessment and evaluation of the quality of health services provided by the State, a health service establishment or by members of a professional association including the review of the clinical practices or clinical competence of persons providing those services; and

(c) that the carrying out of the committee's functions and powers would be facilitated by the provision of immunities afforded by this section in respect of its proceedings; and

(d) that it is in the public interest that persons be prohibited from disclosing information given to the committee in the course of the performance of its functions.

(3)  A person who is or has been a member of a committee in respect of which a declaration under subsection (1) has been made must not either directly or indirectly –

(a) make a record of, or divulge or communicate to any person, any information gained by or conveyed to that person as such a member while the declaration was in force; or

(b) make use of any such information –

except to the extent necessary for the performance of the functions of that committee or of the person as such a member.

Penalty:  Fine not exceeding 50 penalty units.

(4)  A person who is or has been a member of a committee in respect of which a declaration under subsection (1) has been made is not required –

(a) to produce before any court, tribunal, board, agency or person any document in the person's possession or under the person's control as such a member while the declaration was in force; or

(b) to divulge or communicate to any court, tribunal, board, agency or person any matter or thing coming under the person's notice as such a member while the declaration was in force.

(5)  Subsections (3) and (4) apply to a person who prepares or has prepared information or documents concerning the proceedings, or for the purposes, of a committee in respect of which a declaration under subsection (1) has been made as if that person is or was a member of the committee.

(6)  Evidence of any information or document relating to the proceedings, or prepared for the purposes, of a committee at any time while a declaration under subsection (1) was in force in respect of it is not admissible in any action or proceedings before any court, tribunal, board, agency or person.

(7)  If there is an inconsistency between this section and a provision of any other Act or law, this section prevails to the extent of the inconsistency.

5.   Medicare principles and commitments

The Minister is to ensure that in providing public hospital services on behalf of the State to eligible persons –

(a) the Medicare principles are given effect to; and

(b) the Medicare commitments are undertaken –

in the manner required by the Commonwealth Act.

6.   Hospitals and Ambulance Service Advisory Board

(1)  The Minister shall establish a Hospitals and Ambulance Service Advisory Board for the purpose of –

(a) advising the Minister on –

(i) strategic issues relating to the major public hospitals in the State; and

(ii) the planning and provision of hospital and ambulance services in the State; and

(iii) the development of appropriate policies and strategies in relation to the provision of hospital and ambulance services in the State; and

(iv) issues relating to the quality of hospital and ambulance services provided in the State; and

(v) other matters referred to it by the Minister; and

(b) encouraging and facilitating –

(i) the coordination and integration of hospital and ambulance services to provide a system of care to all persons in the State; and

(ii) the Tasmanian community's understanding of the challenges and opportunities encountered by hospitals; and

(iii) cooperation between persons involved or interested in the provision of health and ambulance services in the State.

(2)  The Board is to consist of –

(a) the Director, Statewide Hospitals and Ambulance Service who is to be the chairperson of the Board; and

(b) a person appointed by the Minister on the nomination of the Vice-Chancellor of the University of Tasmania; and

(c) 2 members appointed by the Minister to represent members of the community in the northern region; and

(d) 2 members appointed by the Minister to represent members of the community in the north-western region; and

(e) 2 members appointed by the Minister to represent members of the community in the southern region; and

(f) a person appointed by the Minister to represent members of public hospital auxiliaries in the State.

(3)  Schedule 2 has effect with respect to the membership and meetings of the Board.

7.   Fees

(1)  If any hospital service is provided to any person by or on behalf of the State, a fee determined in accordance with this section or, if not so determined, prescribed in the regulations is payable by or on behalf of that person.

(2)  The Secretary may waive the payment of the whole or part of any fee payable by or on behalf of a person under this section in such circumstances as the Secretary considers appropriate.

(3)  The fee payable for hospital services provided to a person whose fees and charges are being funded by a licensed insurer, within the meaning of the Workers Rehabilitation and Compensation Act 1988 , is the amount agreed from time to time by the Minister and the relevant licensed insurer for the provision of those services.

(4)  The fee payable for hospital services provided to a person whose fees and charges are being funded by the Motor Accidents Insurance Board is the amount agreed from time to time by the Minister and the Motor Accidents Insurance Board for the provision of those services.

(5)  The fee payable for hospital services provided to a person whose fees and charges are being funded by a registered organisation, within the meaning of the National Health Act 1953 of the Commonwealth, is the amount agreed from time to time by the Minister and the registered organisation for the provision of those services.

(6)  The fee payable for hospital services provided to a person whose fees and charges are being funded by a prescribed department is the amount agreed from time to time by the Minister and the Commonwealth Minister for the provision of those services.

(7)  In this section –

Commonwealth Minister means the Minister responsible from time to time for the administration of the prescribed department;

prescribed department means the department or organ of government of the Commonwealth that is responsible for veteran's affairs or defence.

8.   Delegation

The Minister may delegate any of his or her functions or powers under this Act (other than this power of delegation).

9.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  The regulations may –

(a) be of general or limited application; and

(b) differ according to differences in place or circumstance; and

(c) authorise any matter or thing to be determined, applied or regulated by the Secretary of the Department.

(3)  The regulations may adopt, either wholly or in part and with or without modification and either specifically or by reference, any standard, rule, code, specification or method published or issued before or after the commencement of this Act.

(4)  A reference in subsection (3) to a standard, rule, code, specification or method includes a reference to an amendment of the standard, rule, code, specification or method, whether the amendment is published or issued before or after the commencement of this Act.

(5)  In subsection (4) ,

amendment includes –

(a) the omission of matter; and

(b) the insertion of additional matter; and

(c) the omission of matter and the substitution of other matter.

(6)  The regulations may –

(a) prescribe different rates of fees in respect of different hospitals, facilities or services maintained, operated or provided by or on behalf of the State or in relation to different classes of persons or different services; and

(b) prescribe the circumstances in which, or the persons by whom, a fee is not payable for any facility or service provided by or on behalf of the State.

(7)  The regulations may –

(a) provide that it is an offence, punishable on summary conviction, for a person to contravene or fail to comply with any of the regulations; and

(b) provide, in respect of any such offence, for the imposition of a fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding 2 penalty units for each day during which the offence continues.

(8)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.

(9)  A provision referred to in subsection (8) may, if the regulations so provide, take effect from the commencement of this Act or a later date.

10.   Repeals

The Health Regional Boards Act 1991 and the Health (Regional Boards) Amendment (Medicare Agreement) Act 1994 are repealed.

11.   Savings and transitional provisions

The savings and transitional provisions set out in Schedule 3 have effect.

12.   Amendment of Acts

The Acts specified in Schedule 4 are amended in the manner set out in that Schedule.

13.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Community and Health Services; and

(b) the Department responsible to the Minister for Community and Health Services in relation to the administration of this Act is the Department of Community and Health Services.

SCHEDULE 1 - Medicare principles and commitments

Sections 3 and 5

PART 1 - Medicare principles

PART 2 - Commitments

SCHEDULE 2 - Provisions with respect to membership and meetings of the Hospitals and Ambulance Service Advisory Board

Section 6

1.   Terms and conditions of office of members of Board

(1) A member of the Board –

(a) is to be appointed for such period as the Minister thinks fit; and

(b) may be removed from office by the Minister by notice in writing addressed and delivered to that member; and

(c) may at any time resign his or her office by notice in writing addressed and delivered to the Minister.

(2) The terms and conditions of office of a member of the Board, with respect to matters not provided for in this Schedule, are as determined by the Minister.

2.   Appointment of substitute to act during absence of member of Board

If a member of the Board is unable for any reason to carry out his or her duties as such a member for any period, the Minister may appoint a person who, in the Minister's opinion, is suitably qualified to act in place of that member during that period, and that person is, for that period, taken to be a member of the Board to act in the place of that member during that period.

3.   Convening of meetings

Meetings of the Board may be convened by the Minister or by the chairperson of the Board.

4.   Quorum

Five members of the Board constitute a quorum of the Board.

5.   Presiding at meetings

(1) The chairperson of the Board is to preside at all meetings of the Board at which he or she is present.

(2) If the chairperson of the Board is not present at a meeting of the Board, a member of the Board elected by the members present is to preside at that meeting.

6.   Telephone conference, &c.

A telephone or video conference between members of the Board is a meeting of the Board at which the members participating in the conference are present.

7.   Decision of meeting

A decision carried by a majority of the votes of the members present at a meeting of the Board is to be a decision of the Board.

8.   Power of Board to regulate its own procedure

Subject to this Schedule, the procedure for the calling of, and for the conduct of business at, meetings of the Board is to be as determined by the Board.

SCHEDULE 3 - Savings and transitional provisions

Section 11

1.   Interpretation

In this Schedule –

Board means a Regional Health Board in existence immediately before the proclaimed day;

proclaimed day means the day proclaimed under section 2 .

2.   Assets and liabilities of Boards

(1) On the proclaimed day –

(a) the assets of a Board are, by virtue of this clause, vested in the Crown on the same terms and conditions as they were vested in the Board; and

(b) all rights, obligations and liabilities of a Board which are subsisting immediately before that day are transferred to the Crown.

(2) Any instrument made for the purposes of subclause (1) is exempt from stamp duty and may be filed, recorded or registered without payment of any fee.

(3) All money, land and other property which vests in the Crown as the successor of a Board remains subject to any trusts affecting that property at the time when it so vests and is to be appropriated and dealt with by the Minister for the purposes of those trusts and in accordance with the terms of those trusts.

3.   Contracts and agreements

On and from the proclaimed day any contract or agreement entered into by or on behalf of a Board before that day is to be treated for all purposes as a contract or agreement entered into by the Crown.

4.   References to Regional Health Board

On and from the proclaimed day a reference to a Regional Health Board in –

(a) a law; or

(b) a contract, award or other instrument to which a Board was a party –

is to be construed as a reference to the Crown.

5.   Legal proceedings

Any legal or other proceedings which may, before the proclaimed day, have been instituted or continued by or against a Board may, on and after that day, be instituted or continued by or against the Crown.

6.   Quality assurance committees

A committee declared by the Minister to be an approved quality assurance committee under the Health (Regional Boards) Act 1991 is taken to have been declared as an approved quality assurance committee under this Act.

7.   Employees

(1) A person who immediately before the proclaimed day holds office as a person appointed or employed pursuant to section 22 of the Health (Regional Boards) Act 1991 (as in force immediately before that day) continues, on that commencement, to hold office on the same terms and conditions as were applicable to that person immediately before that day.

(2) A person referred to in subclause (1) retains all rights, entitlements and privileges which accrued during that person's employment pursuant to section 22 of the Health (Regional Boards) Act 1991 .

8.   Acts, &c., done by or to Regional Health Board

All acts, matters and things done or omitted to be done by, or done or suffered in relation to, a Board before the proclaimed day have, on that day, the same force and effect as if they had been done or omitted to be done by, or done or suffered in relation to, the Crown.

9.   Unclaimed property

Any money or personal effects of a person who has died at a hospital or nursing home maintained and operated by a Board and which has not been dealt with before the proclaimed day in accordance with section 33 of the Health (Regional Boards) Act 1991 may, on or after that day, be dealt with as if section 33 had not been repealed.

SCHEDULE 4 - Consequential amendments

Section 12

Ambulance Service Act 1982

1.    Section 36(2) is amended by omitting paragraph (a) and substituting the following paragraph:

(a) a hospital maintained and operated by or on behalf of the State; or

Anatomy Act 1964

1.    Section 3(1) is amended by omitting the definition of public hospital and substituting the following definition:

public hospital means a hospital maintained and operated by or on behalf of the State;

Child Protection Act 1974

1.    Section 7 is amended as follows:

(a) by omitting paragraph (a) of subsection (1) and substituting the following paragraph:

(a) a hospital maintained and operated by or on behalf of the State; or

(b) by omitting subsection (3) and substituting the following subsection:

(3)  For the purposes of this Act, the responsible authority for an assessment centre that is a hospital maintained and operated by or on behalf of the State is the Secretary of the responsible Department in relation to the Health Act 1997 .

Child Welfare Act 1960

1.    Section 64(10) is amended by omitting paragraph (e) and substituting the following paragraph:

(e) in a hospital maintained and operated by or on behalf of the State or premises in respect of which a licence is in force under Part III of the Hospitals Act 1918 ; or

Cosgrove Park Act 1962

1.    Section 2 is amended by omitting the definition of board .

2.    Section 3 is amended as follows:

(a) by omitting from subsection (1) "the board has power and shall be deemed always to have had" and substituting "the Minister on behalf of the State has";

(b) by omitting subsection (2) and substituting the following subsection:

(2)  The Launceston Public Hospitals Board and the Northern Regional Health Board are taken always to have had power to do any of the things specified in subsection (1)(a) , (b) or (c) .

3.    Section 6 is amended by omitting "board may, with the approval of the Minister," and substituting "Minister may".

4.   Section 7 is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  The Minister is to maintain the Cosgrove Park Development Fund established by the former board.

(b) by inserting in subsection (2) "former" before "board" (wherever occurring);

(c) by omitting from subsection (3) "board" and substituting "Minister";

(d) by omitting from subsection (4) "board" and substituting "Minister";

(e) by omitting from subsection (4) ", apply with the approval of the Minister," and substituting " apply";

(f) by inserting after subsection (4) the following subsection:

(5)  In this section –

former board means the Launceston Public Hospitals Board in existence immediately before the commencement of the Health (Regional Boards) Act 1991 ;

fund means the Cosgrove Park Development Fund maintained by the Minister under this section.

Dental Act 1982

1.    Section 37(4) is amended as follows:

(a) by omitting paragraph (a) and substituting the following paragraph:

(a) a hospital maintained and operated by or on behalf of the State;

(b) by omitting from paragraph (b) "that Act" and substituting "the Hospitals Act 1918 ".

Health Complaints Act 1995

1.    Section 3 is amended as follows:

(a) by omitting " Health (Regional Boards) Act 1990 " from the definition of Health Department and substituting " Health Act 1997 ";

(b) by omitting " Health (Regional Boards) Act 1990 " from the definition of Health Minister and substituting " Health Act 1997 ".

Industrial Relations Act 1984

1.    Section 66 is amended as follows:

(a) by omitting from subsection (3) " Health (Regional Boards) Act 1991 concerning the provision of services for a hospitals board by health practitioners visiting a hospital the maintenance, management, and regulation of which the board is charged pursuant to that Act" and substituting " Health Act 1997 concerning the provision of services for a hospital maintained and operated by or on behalf of the State by health practitioners visiting such a hospital";

(b) by omitting the definition of hospitals board from subsection (5) .

Land and Income Taxation Act 1910

1.   Section 10 is amended as follows:

(a) by omitting from subsection (1)(e) "a hospitals board or";

(b) by omitting from subsection (3A) the definition of "hospitals board".

Mental Health Act 1963

1.    Section 3(1) is amended as follows:

(a) by omitting paragraph (b) of the definition of "hospital authority" and substituting the following paragraph:

(b) when used in relation to a public hospital, the Secretary; and

(b) by omitting the definition of public hospital and substituting the following definition:

public hospital means a hospital maintained and operated by or on behalf of the State;

Mental Health Act 1996

1.   Section 3 is amended by omitting paragraph (a) of the definition of "controlling authority" and substituting the following paragraph:

(a) in the case of a hospital or an assessment centre maintained and operated by or on behalf of the State, the Secretary of the Department; or

Motor Vehicles Taxation Act 1981

1.    Section 8(1)(b) is amended as follows:

(a) by omitting from subparagraph (iii) "authority;" and substituting "authority; or";

(b) by omitting from subparagraph (iv) "or" second occurring;

(c) by omitting subparagraph (v) .

Ombudsman Act 1978

1.    Schedule 1 is amended by omitting item 26 .

Perinatal Registry Act 1994

1.    Section 16 is amended as follows:

(a) by omitting from paragraph (b) of the definition of "attendant" in subsection (1) "Regional Health Board which maintains and operates that hospital or, where the Board has delegated its" and substituting "Secretary or, where the Secretary has delegated his or her";

(b) by omitting paragraph (b) of subsection (3).

Pharmacy Act 1908

1.    Section 21(3) is amended by omitting the definition of public hospital and substituting the following definition:

public hospital means a hospital maintained and operated by or on behalf of the State.

2.    Section 30B(6) is amended by omitting "a board under the Health (Regional Boards) Act 1991 or" and substituting "or on behalf of the State or by a".

3.    Section 30C(2) is amended by omitting "a board under the Health (Regional Boards) Act 1991 or" and substituting "or on behalf of the State or by a".

Poisons Act 1971

1.    Section 3(1) is amended by omitting the definition of public hospital and substituting the following definition:

public hospital means a hospital maintained and operated by or on behalf of the State;

Public Health Act 1962

1.    Section 20(2) is amended by omitting "A Regional Health Board established under the Health (Regional Boards) Act 1991 " and substituting "The Secretary of the Department".

2.   Section 29 is amended as follows:

(a) by omitting from subsection (1) "hospitals board" and substituting "Secretary of the Department";

(b) by omitting from subsection (9) the definitions of "hospitals board" and "public hospital" and substituting the following definition:

3.    Section 54(4) is amended by omitting paragraph (c) and substituting the following paragraph:

(c) hospital maintained and operated by or on behalf of the State;

Public Trustee Act 1930

1.   Section 61(2) is amended by omitting "a Board under the Health (Regional Boards) Act 1991" and substituting "or on behalf of the State".

Stamp Duties Act 1931

1.   Section 3(1) is amended by omitting "a board under the Health (Regional Boards) Act 1991" from the definition of "private hospital" and substituting "or on behalf of the State".

2.    Schedule 3 is amended by omitting from paragraph (b)(iii) of item 31 in Part I "a Board within the meaning of the Health (Regional Boards) Act 1991 , or by".

Therapeutic Goods and Cosmetics Act 1976

1.   Section 2(1) is amended by omitting paragraph (b) of the definition of "public institution" and substituting the following paragraph:

(b) a hospital maintained and operated by or on behalf of the State;

[Second reading presentation speech made in:

House of Assembly on 1 MAY 1997

Legislative Council on 26 MARCH 1997]