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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Health Legislation Amendment Bill 2016
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Repeal 2
Schedule 1 Amendment of Health Administration Act 1982 No 135 3
Schedule 2 Amendment of Health Services Act 1997 No 154 4
Schedule 3 Amendment of Mental Health Act 2007 No 8 19
Schedule 4 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10 20
Schedule 5 Amendment of Health Services Regulation 2013 23
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2016
New South Wales
Health Legislation Amendment Bill 2016
Act No , 2016
An Act to make miscellaneous amendments to various Acts that relate to health and associated
matters; and to repeal the New South Wales Institute of Psychiatry Act 1964.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Health Legislation Amendment Bill 2016 [NSW]
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Health Legislation Amendment Act 2016.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as provided by
subsection (2).
(2) Section 3 commences on a day to be appointed by proclamation.
3 Repeal
The New South Wales Institute of Psychiatry Act 1964 No 44 is repealed.
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Health Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Health Administration Act 1982 No 135
Schedule 1 Amendment of Health Administration Act 1982
No 135
[1] The whole Act (except Schedule 2 and where otherwise amended by this Schedule)
Omit "Director-General" and "Director-General's" wherever occurring.
Insert instead "Health Secretary" and "Health Secretary's".
[2] Section 4 Definitions
Omit the definitions of Department and Director-General from section 4 (1).
Insert in alphabetical order:
Health Secretary means the Secretary of the Ministry.
Ministry means the Ministry of Health.
[3] Sections 4 (1A), 5 (1), 10 (1), 12 (1) (b), 13 (1), 17 (2) (b), 20C (1), 22, 25, 26 and 28 and
Schedule 3
Omit "Department" wherever occurring. Insert instead "Ministry".
[4] Section 29 Statute law revision (sec 6)
Omit the section.
[5] Schedule 4 Medical Services Committee
Omit "department" from clause 10 (2). Insert instead "Ministry".
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Health Legislation Amendment Bill 2016 [NSW]
Schedule 2 Amendment of Health Services Act 1997 No 154
Schedule 2 Amendment of Health Services Act 1997 No 154
[1] Section 26 Constitution of local health district boards
Omit "4 years" from section 26 (5). Insert instead "5 years".
[2] Section 26 (6)
Omit "8 years". Insert instead "10 years".
[3] Section 26 (7)
Omit "chairperson". Insert instead "Chairperson".
[4] Section 26 (9)
Omit the subsection. Insert instead:
(9) Schedule 4A includes further provisions with respect to the constitution and
procedure of local health district boards.
[5] Section 39
Omit the section. Insert instead:
39 Local health district by-laws
(1) Power to make model by-laws
The Health Secretary may make model by-laws, not inconsistent with this Act
or the regulations, for or with respect to the following:
(a) the management of any public hospital, health institution, health service
or health support service under the control of a local health district,
(b) the provision of hospital services and other health services to patients of
any public hospital or health institution under the control of a local
health district and to other persons,
(c) the appointment, control and governance of visiting practitioners in
connection with public hospitals, health institutions and health services
under the control of a local health district, including the conditions
subject to which visiting practitioners may perform work at or in
relation to any such hospital, institution or service,
(d) regulating or prohibiting smoking at any public hospital, health
institution or health service under the control of a local health district,
including by designating an area as a smoke-free area for the purposes
of section 6A (Smoke-free areas--outdoor public places) of the
Smoke-free Environment Act 2000,
(e) the custody and use of the seal of a local health district,
(f) the keeping of records concerning a local health district's acts and
decisions,
(g) the appointment and functions of the councils and committees of a local
health district.
(2) Publication of model by-laws
The Health Secretary may publish an order on the NSW legislation website
setting out the terms of model by-laws.
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Schedule 2 Amendment of Health Services Act 1997 No 154
(3) Adoption of model by-laws
A local health district may make by-laws that adopt the provisions of the
model by-laws as published on the NSW legislation website in respect of the
area in which the local health district is constituted with such additions,
omissions or other modifications (if any) as may be made by it in accordance
with this section.
(4) Modification to, and omission of, provisions of model by-laws
A local health district may make modifications to, or omit, a provision of the
model by-laws only with the approval of the Health Secretary.
(5) Additional by-laws
A local health district may make additional by-laws in relation to matters
specified in subsection (1) but not covered by the model by-laws provided the
additional by-laws are not inconsistent with the model by-laws. A copy of any
such additional by-laws are to be provided to the Health Secretary within
30 days of the making of the by-laws.
(6) Precondition for making of certain by-laws
A model by-law or by-law may not be made for or with respect to any matter
referred to in subsection (1) (c) unless the Health Secretary or local health
district (as the case requires) has received advice from the Medical Services
Committee in relation to the substance of the model by-law or by-law
proposed to be made.
(7) Exception to precondition
Subsection (6) does not apply to a model by-law or by-law if the Medical
Services Committee does not furnish advice to the Health Secretary or local
health district (as the case requires) in relation to the relevant model by-law or
by-law:
(a) within 30 days after a notice from the Health Secretary or local health
district requesting such advice has been served on the Committee, or
(b) within such further period as the Health Secretary or local health district
may specify in the notice or in another notice served on the Committee.
(8) What by-laws may provide for
A provision of a model by-law or by-law may do any one or any combination
of the following:
(a) apply generally or be limited in its application by reference to specified
exceptions or factors,
(b) apply differently according to different factors of a specified kind,
(c) authorise any matter or thing to be from time to time determined,
applied or regulated by any specified person or body.
(9) Power to amend or repeal by-laws
A power to make model by-laws or by-laws includes the power to amend or
repeal any model by-law or by-law made in the exercise of that power.
(10) Judicial notice
Judicial notice is to be taken of a by-law authenticated by the seal of the local
health district concerned or in accordance with section 135. It is to be
presumed, in the absence of evidence to the contrary, that all conditions and
preliminary steps precedent to the making of the by-law have been complied
with and performed.
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Schedule 2 Amendment of Health Services Act 1997 No 154
[6] Section 54
Insert after section 53:
54 Other committees and councils
The chief executive may establish such committees and councils as he or she
considers appropriate to assist the statutory health corporation in the exercise
of its functions.
[7] Section 60
Omit the section. Insert instead:
60 Statutory health corporation by-laws
(1) Power to make model by-laws
The relevant authority may make model by-laws, not inconsistent with this
Act or the regulations, for or with respect to the following:
(a) the management of any public hospital, health institution, health service
or health support service under the control of a statutory health
corporation,
(b) the provision of health services to patients of any public hospital or
health institution under the control of a statutory health corporation and
to other persons,
(c) the appointment, control and governance of visiting practitioners in
connection with public hospitals, health institutions and health services
under the control of a statutory health corporation, including the
conditions subject to which visiting practitioners may perform work at
or in relation to any such hospital, institution or service,
(d) regulating or prohibiting smoking at any public hospital, health
institution or health service under the control of a statutory health
corporation, including by designating an area as a smoke-free area for
the purposes of section 6A (Smoke-free areas--outdoor public places)
of the Smoke-free Environment Act 2000,
(e) the custody and use of the seal of a statutory health corporation,
(f) the keeping of records concerning the acts and decisions of a statutory
health corporation,
(g) in the case of a board governed health corporation:
(i) the keeping of records concerning the acts and decisions of the
board, and
(ii) the procedure for the calling of meetings of the board and for the
conduct of business at those meetings,
(h) the appointment and functions of the councils and committees of a
statutory health corporation.
(2) Publication of model by-laws
The relevant authority may publish an order on the NSW legislation website
setting out the terms of model by-laws.
(3) Adoption of model by-laws
A statutory health corporation may make by-laws that adopt the provisions of
the model by-laws as published on the NSW legislation website with such
additions, omissions or other modifications (if any) as may be made by it in
accordance with this section.
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Schedule 2 Amendment of Health Services Act 1997 No 154
(4) Modification to, and omission of, provisions of model by-laws
A statutory health corporation may make modifications to, or omit, a provision
of the model by-laws only with the approval of the relevant authority.
(5) Additional by-laws for specialty network governed health corporation
A statutory health corporation that is a specialty network governed health
corporation may make additional by-laws in relation to matters specified in
subsection (1) but not covered by the model by-laws provided the additional
by-laws are not inconsistent with the model by-laws. A copy of any such
additional by-laws are to be provided to the relevant authority within 30 days
of the making of the by-laws.
(6) Precondition for making of certain by-laws
A model by-law or by-law may not be made for or with respect to any matter
referred to in subsection (1) (c) unless the relevant authority or specialty
network governed health corporation (as the case requires) has received advice
from the Medical Services Committee in relation to the substance of the model
by-law or by-law proposed to be made.
(7) Exception to precondition
Subsection (6) does not apply to a model by-law or by-law if the Medical
Services Committee does not furnish advice to the relevant authority or
specialty network governed health corporation (as the case requires) in
relation to the relevant model by-law or by-law:
(a) within 30 days after a notice from the relevant authority or specialty
network governed health corporation requesting such advice has been
served on the Committee, or
(b) within such further period as the relevant authority or specialty network
governed health corporation may specify in the notice or in another
notice served on the Committee.
(8) What by-laws may provide for
A provision of a model by-law or by-law may do any one or any combination
of the following:
(a) apply generally or be limited in its application by reference to specified
exceptions or factors,
(b) apply differently according to different factors of a specified kind,
(c) authorise any matter or thing to be from time to time determined,
applied or regulated by any specified person or body.
(9) Power to amend or repeal by-laws
A power to make model by-laws or by-laws includes the power to amend or
repeal any model by-law or by-law made in the exercise of that power.
(10) Judicial notice
Judicial notice is to be taken of a by-law authenticated by the seal of the
statutory health corporation concerned or in accordance with section 135. It is
to be presumed, in the absence of evidence to the contrary, that all conditions
and preliminary steps precedent to the making of the by-law have been
complied with and performed.
(11) In this section, relevant authority means:
(a) in relation to a board governed health corporation, the Minister, and
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Schedule 2 Amendment of Health Services Act 1997 No 154
(b) in relation to a chief executive governed health corporation or specialty
network governed health corporation, the Health Secretary.
[8] Section 116H
Insert after section 116G:
116H Role of Health Secretary in industrial proceedings
(1) The Health Secretary is, for the purposes of any proceedings relating to a
member of the NSW Health Service held before a competent tribunal having
jurisdiction to deal with industrial matters, taken to be the employer of that
member.
(2) In this section, industrial matters has the same meaning as in the Industrial
Relations Act 1996.
[9] Section 139 Liability of persons conducting performance reviews etc
Omit section 139 (1). Insert instead:
(1) This section applies with respect to the provision of expert advice or assistance
by a person, for or on behalf of a public health organisation or the Health
Secretary and in the person's professional capacity, in connection with:
(a) a review of the performance or conduct of any visiting practitioner or
relevant employee, or
(b) a review to determine whether to take disciplinary action in relation to
any visiting practitioner or relevant employee, or
(c) a review or inquiry conducted in relation to the operation of the public
health system or any part of that system.
[10] Section 139A
Insert after section 139:
139A Liability of certain persons assisting in the exercise of functions under
Guardianship Act 1987 and Children and Young Persons (Care and Protection)
Act 1998
(1) Any person who is a member of staff of the NSW Health Service who, in good
faith, assists a registered health practitioner who is exercising a function that
is conferred or imposed on the practitioner by or under Part 5 of the
Guardianship Act 1987 or Part 1 of Chapter 9 of the Children and Young
Persons (Care and Protection) Act 1998 is not personally liable for any injury
or damage caused in assisting the practitioner in exercising any such function.
(2) If subsection (1) prevents liability attaching to a person, the liability attaches
instead to the local health district, or statutory health corporation, in which the
member of the NSW Health Service was employed at the time the assistance
was rendered.
(3) Nothing in this section, or any other provision of this Act, the Guardianship
Act 1987, the Children and Young Persons (Care and Protection) Act 1998 or
the regulations relieves a registered health practitioner or other person from
liability in respect of carrying out treatment on a patient or other person to
which the registered health practitioner or person would have been subject had
the treatment been carried out with the patient's or other person's consent.
(4) Nothing in this section affects any exclusion from liability provided by another
provision of this Act, the Guardianship Act 1987, the Children and Young
Persons (Care and Protection) Act 1998 or any other law.
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(5) In this section, registered health practitioner has the same meaning as in the
Health Practitioner Regulation National Law (NSW).
[11] Schedule 4A
Insert after Schedule 4:
Schedule 4A Constitution and procedure of local health
district boards
(Section 26)
Part 1 Preliminary
1 Definitions
In this Schedule:
Board means the local health district board for a local health district.
Chairperson means the Chairperson of a Board.
Chief Executive means the chief executive of a local health district.
Deputy Chairperson means the Deputy Chairperson of a Board.
medical staff council means the medical staff council of a local health district
appointed under the district's by-laws.
medical staff executive council means the medical staff executive council of
a local health district appointed under the district's by-laws.
member means a member of a Board.
Part 2 Constitution
2 Chairperson and Deputy Chairperson
(1) The Minister may, from time to time, appoint a member (other than the
Chairperson), by the instrument of appointment of the member or a subsequent
instrument signed by the Minister, as the Deputy Chairperson of a Board.
(2) The Minister may at any time remove the Chairperson or Deputy Chairperson
from office as Chairperson or Deputy Chairperson of a Board.
(3) A person who is Chairperson or Deputy Chairperson of a Board is taken to
have vacated office as Chairperson or Deputy Chairperson if the person:
(a) is removed from that office by the Minister under subclause (2), or
(b) resigns that office by instrument in writing addressed to the Minister, or
(c) ceases to be a member.
(4) The Deputy Chairperson may act in the office of Chairperson during the
illness or absence of the Chairperson, and while so acting has and may exercise
all the functions of the Chairperson and is taken to be the Chairperson.
(5) For the purposes of this clause, a vacancy in the office of the Chairperson or
Deputy Chairperson is taken to be an absence from office of the Chairperson
or Deputy Chairperson.
Note. A Chairperson is appointed in accordance with section 26 (7).
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3 Acting members and acting Chairperson
(1) The Minister may, from time to time, appoint a person to act in the office of a
member during the illness or absence of the member, and the person, while so
acting, has and may exercise all the functions of the member and is taken to be
a member.
(2) The Minister may, from time to time, appoint a member to act in the office of
Chairperson during the illness or absence of both the Chairperson and Deputy
Chairperson, and the member, while so acting, has and may exercise all the
functions of the Chairperson and is taken to be the Chairperson.
(3) The Minister may remove any person from any office to which the person was
appointed under this clause.
(4) A person who is acting as a member is entitled to be paid such remuneration
(including travelling and subsistence allowances) as the Minister may from
time to time determine in respect of the person.
(5) For the purposes of this clause, a vacancy in the office of a member or the
Chairperson or Deputy Chairperson is taken to be an absence from office of
the member, Chairperson or Deputy Chairperson (as the case may be).
4 Filling of vacancy in office of member
If the office of any member becomes vacant, a person is, subject to this Act, to
be appointed to fill the vacancy.
5 Vacancy in office of Chairperson or Deputy Chairperson
The office of Chairperson or Deputy Chairperson becomes vacant if the person
holding that office:
(a) ceases to be a member, or
(b) is removed from office under clause 2 (2).
6 Vacancy in office of member
The office of a member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Minister, or
(d) is absent from 4 consecutive meetings of the Board of which reasonable
notice has been given to the member personally or in the ordinary
course of post, except on leave granted by the Board or unless, before
the expiration of 4 weeks after the last of those meetings, the member is
excused by the Board for being absent from those meetings, or
(e) becomes bankrupt, applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounds with his or her creditors or
makes an assignment of his or her remuneration for their benefit, or
(f) becomes a mentally incapacitated person, or
(g) is convicted in New South Wales of an offence which is punishable by
imprisonment for 12 months or more or is convicted elsewhere than in
New South Wales of an offence that, if committed in New South Wales,
would be an offence so punishable, or
(h) is removed from office by the Minister under section 29.
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7 Disclosure of pecuniary interests
(1) If:
(a) a member has a direct or indirect pecuniary interest in a matter being
considered or about to be considered at a meeting of the Board, and
(b) the interest appears to raise a conflict with the proper performance of the
member's duties in relation to the consideration of the matter,
the member must, as soon as possible after the relevant facts have come to the
member's knowledge, disclose the nature of the interest at a meeting of the
Board.
(2) A disclosure by a member at a meeting of the Board that the member:
(a) is a member, or is in the employment, of a specified company or other
body, or
(b) is a partner, or is in the employment, of a specified person, or
(c) has some other specified interest relating to a specified company or
other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter relating to
that company or other body or to that person which may arise after the date of
the disclosure and which is required to be disclosed under subclause (1).
(3) Particulars of any disclosure made under this clause must be recorded by the
Board in a book kept for the purpose and that book must be open at all
reasonable hours for inspection by any person on payment of the fee
determined by the Board.
(4) After a member has disclosed the nature of an interest in any matter, the
member must not, unless the Board otherwise determines:
(a) be present during any deliberation of the Board with respect to the
matter, or
(b) take part in any decision of the Board with respect to the matter.
(5) For the purposes of the making of a determination by the Board under
subclause (4), a member who has a direct or indirect pecuniary interest in a
matter to which the disclosure relates must not:
(a) be present during any deliberation of the Board for the purpose of
making the determination, or
(b) take part in the making by the Board of the determination.
(6) A member does not have a pecuniary interest for the purposes of this clause in
relation to a matter merely because the member is employed or otherwise
holds an appointment at a hospital or health service that is or may be affected
by the matter.
(7) A contravention of this clause does not invalidate any decision of the Board.
(8) The provisions of this clause extend to meetings of a committee of the Board.
8 Avoidance of conflicts when Board exercising employer functions
(1) Any member of a Board who is employed by, or otherwise holds a clinical
appointment or other type of appointment prescribed by the regulation with,
the local health district for which the Board was established must not:
(a) be present during any deliberation of the Board relating to the Board's
employer functions in respect of the employment (including
appointment and removal) of the Chief Executive, or
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(b) take part in any decision of the Board with respect to the matter.
(2) A contravention of this clause does not invalidate any decision of the Board.
(3) This clause does not prevent a person specified in subclause (1) from
providing advice to the Board relating to the Board's employer functions in
respect of the Chief Executive.
9 Effect of certain other Acts
(1) The provisions of the Government Sector Employment Act 2013 relating to the
employment of Public Service employees do not apply to a member.
(2) If, by or under any Act, provision is made:
(a) requiring a person who is the holder of a specified office to devote the
whole of his or her time to the duties of that office, or
(b) prohibiting the person from engaging in employment outside the duties
of that office,
the provision does not operate to disqualify the person from holding that office
and also the office of a member or from accepting and retaining any
remuneration payable to the person under this Act as a member.
10 No compensation for removal from office or failure to re-appoint
A member who is removed from office or not re-appointed at the end of his or
her term of office is not entitled to be paid any compensation by reason of
ceasing to hold office.
Part 3 Procedure
11 General procedure
The procedure for the calling of meetings of a Board and for the conduct of
business at those meetings is, subject to this Act, the regulations and any
by-laws relating to that Board, to be as determined by that Board.
12 Quorum
The quorum for a meeting of a Board is a majority of its members.
13 Presiding member
(1) The presiding member for a meeting of a Board is:
(a) the Chairperson, or
(b) in the absence of the Chairperson, the Deputy Chairperson, or
(c) in the absence of both the Chairperson and Deputy Chairperson, another
member elected to preside at the meeting.
(2) The presiding member has a deliberative vote and, in the event of an equality
of votes, has a second or casting vote.
14 Voting
(1) Only a member of the Board may vote at a meeting of the Board.
(2) Subject to clause 23, any matter put to the vote at any meeting of the Board is
to be decided by a show of hands or by secret ballot if requested by a member
attending the meeting.
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(3) A decision supported by a majority of the votes cast at a meeting of the Board
at which a quorum is present is the decision of the Board.
(4) If any members present at the meeting are excluded from taking part in the
decision by clause 8, the decision is a decision of the Board only if the number
of members present and entitled to vote on the decision is not less than the
majority of the number of members (whether or not present) entitled to vote
on the decision.
15 First meeting of Board
The Chairperson may call the first meeting of a Board in such manner as the
Chairperson thinks fit.
16 Ordinary meetings of Board
(1) A Board is to hold ordinary meetings at such times and places as may be
determined by the Board.
(2) At least 6 ordinary meetings are to be held in any 12-month period with such
meetings being held at regular intervals.
(3) Written notice of an ordinary meeting (whether delivered by ordinary post or
electronic means) is to be given by the Chief Executive, or by another person
authorised by the Board to give notice, to each member and each person
invited by the Board to attend the meeting, at least 7 days before the meeting.
(4) The written notice of the meeting given to a member is to be accompanied by
the following:
(a) a copy of the agenda for the meeting,
(b) except in the case of the first meeting of the Board, a copy of the
minutes of the previous meeting of the Board,
(c) a copy of the minutes of any special meeting of the Board held since the
last ordinary meeting,
(d) a copy of the minutes of any meeting of a committee held since the
Board's last ordinary meeting.
(5) A person invited to the meeting by the Board may be provided with such of the
information listed in subclause (4) as the Chairperson considers appropriate.
17 Special meetings of Board
(1) A special meeting of the Board is to be called by the Chief Executive:
(a) at the direction of the Chairperson, or
(b) within 48 hours of receipt by the Chief Executive of a written request
for a special meeting signed by at least 3 members of the Board.
(2) A special meeting is to be held not later than 7 days after receipt by the Chief
Executive of a request referred to in subclause (1) (b).
(3) The Chief Executive is to give at least 24 hours written notice, and such of the
material referred to in clause 16 (4) as the Chief Executive considers
appropriate, to each member of and to each person invited to attend the
meeting by the Board.
(4) Notice of a special meeting is to specify the business to be considered at that
meeting.
(5) Only business specified in the notice of a special meeting is to be considered
at the special meeting.
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18 Attendance at Board meetings
(1) The Board is to invite the following people to attend its meetings:
(a) the Chief Executive or his or her nominee,
(b) the Chair of the medical staff executive council for the local health
district or, if there is only one medical staff council for the district, the
Chair of that medical staff council,
(c) at least one representative of the executive staff (being the persons
appointed by the local health district to its management structure and
any persons appointed to act for the time being in those positions).
(2) A medical staff executive council or medical staff council (as the case
requires) may nominate an alternate to attend meetings of the Board in the
event that the Chair of the medical staff executive council or medical staff
council is unable to attend a meeting. Any such alternate may attend a meeting
to which the Chair is invited in the event that the Chair is unable to attend.
(3) If a local health district has more than one medical staff council, the Board
may invite a representative for such of the councils as the Board considers
appropriate.
(4) The Board may invite any other person to attend any meeting of the Board
(including both ordinary and special meetings).
(5) The Board may exclude any person (other than a member or the Chief
Executive or his or her nominee) from attending any meeting or part of a
meeting.
(6) The Board may exclude the Chief Executive, or his or her nominee, from
attending any ordinary or special meeting, or part of a meeting, where the
business under consideration relates to the conduct or performance of the
Chief Executive.
19 Annual public meeting
(1) An annual public meeting of the Board is to be held between 1 July and
31 December each calendar year.
(2) The Board is to prepare and present at each annual public meeting a report on
the affairs of the local health district since the last annual public meeting,
including audited financial statements for the local health district.
(3) The presiding member is to determine the procedure for the conduct of
business at the annual public meeting. The procedure adopted is to be
consistent with the requirements of this Act.
(4) Any person is entitled to attend the annual public meeting and seek leave to
address the meeting.
(5) The holding of the annual public meeting is to be advertised in at least one
newspaper circulating generally in the area of the local health district and by
such other means (including on the Internet) as the Board determines.
(6) The provisions of this Schedule relating to the calling and conduct of ordinary
and special meetings of the Board do not apply to the calling and conduct of
the annual public meeting.
20 Minutes
(1) The Chief Executive is to ensure that minutes are kept of all meetings of the
Board.
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(2) A motion for the confirmation of minutes of a meeting is to be put to the next
ordinary meeting.
(3) No business is to be transacted until the minutes of the previous meeting have
been confirmed or otherwise disposed of.
21 Decisions of the Board to be made available
(1) The Board is to make available to staff of the local health district information
concerning its decisions except where the Board determines that it is
inappropriate to disclose that information.
(2) The Board may make available to the public information concerning its
decisions.
22 Rescission
(1) The Board may, at any ordinary or special meeting, vary or rescind any
resolution carried at any previous meeting of the Board, but only if the motion
to vary or rescind the resolution has been included in or with the notice of the
meeting.
(2) If a motion to vary or rescind a resolution is considered at a meeting of the
Board and is not carried, the motion is not to be reconsidered by the Board
during the period of 3 months from the date of that meeting.
23 Transaction of business outside meetings or by telephone
(1) A Board may, if it thinks fit, transact any of its business by the circulation of
papers among all the members of the Board for the time being, and a resolution
in writing approved in writing by a majority of those members is taken to be a
decision of the Board.
(2) A Board may, if it thinks fit, transact any of its business at a meeting at which
members (or some members) participate by telephone, closed-circuit
television or other means, but only if any member who speaks on a matter
before the meeting can be heard by the other members.
(3) For the purposes of:
(a) the approval of a resolution under subclause (1), or
(b) a meeting held in accordance with subclause (2),
the Chairperson and each member have the same voting rights as they have at
an ordinary meeting of the Board.
(4) A resolution approved under subclause (1) is, subject to the regulations, to be
recorded in the minutes of the meetings of the Board.
(5) Papers may be circulated among the members for the purposes of
subclause (1) by facsimile or other transmission of the information in the
papers concerned.
[12] Schedule 5 Provisions relating to members and procedure of health corporation
boards
Insert after clause 3:
3A Deputy Chairperson
(1) The Minister may, from time to time, appoint an appointed member (other
than the Chairperson), by the instrument of appointment of the member or a
subsequent instrument signed by the Minister, as the Deputy Chairperson of a
Board.
Page 15
Health Legislation Amendment Bill 2016 [NSW]
Schedule 2 Amendment of Health Services Act 1997 No 154
(2) The Minister may at any time remove the Deputy Chairperson from office as
Deputy Chairperson of a Board.
(3) The Deputy Chairperson may act in the office of Chairperson during the
illness or absence of the Chairperson, and while so acting has and may exercise
all the functions of the Chairperson and is taken to be the Chairperson.
(4) A person who is an appointed member and Deputy Chairperson of a Board is
taken to have vacated office as Deputy Chairperson if the person:
(a) is removed from that office by the Minister under subclause (2), or
(b) resigns that office by instrument in writing addressed to the Minister, or
(c) ceases to be an appointed member.
[13] Schedule 5, clause 4 (2)
Omit the subclause. Insert instead:
(2) The Minister may, from time to time, appoint an appointed member of a Board
to act in the office of Chairperson of that Board during the illness or absence
of both the Chairperson and Deputy Chairperson, and the appointed member,
while so acting, has and may exercise all the functions of the Chairperson and
is taken to be the Chairperson.
[14] Schedule 5, clause 4 (4) (a)
Omit the paragraph. Insert instead:
(a) a vacancy in the office of an appointed member or the Chairperson or
Deputy Chairperson is taken to be an absence from office of the
member, Chairperson or Deputy Chairperson (as the case may be), and
[15] Schedule 5, clause 8 (5A)
Insert after clause 8 (5):
(5A) A member does not have a pecuniary interest for the purposes of this clause in
relation to a matter merely because the member is employed or otherwise
holds an appointment at a hospital or health service that is or may be affected
by the matter.
[16] Schedule 5, clause 8 (7)
Insert after clause 8 (6):
(7) The provisions of this clause extend to meetings of a committee of the Board.
[17] Schedule 5, clause 15 (1)
Omit the subclause. Insert instead:
(1) The presiding member for a meeting of a Board is:
(a) the Chairperson, or
(b) in the absence of the Chairperson, the Deputy Chairperson, or
(c) in the absence of both the Chairperson and Deputy Chairperson, another
member elected to preside at the meeting.
Page 16
Health Legislation Amendment Bill 2016 [NSW]
Schedule 2 Amendment of Health Services Act 1997 No 154
[18] Schedule 5, clauses 16A and 16B
Insert after clause 16:
16A Minutes
(1) The chief executive is to ensure that minutes are kept of all meetings of the
Board.
(2) A motion for the confirmation of minutes of a meeting is to be put to the next
ordinary meeting.
(3) No business is to be transacted until the minutes of the previous meeting have
been confirmed or otherwise disposed of.
16B Rescission
(1) The Board may, at any ordinary or special meeting, vary or rescind any
resolution carried at any previous meeting of the Board, but only if the motion
to vary or rescind the resolution has been included in or with the notice of the
meeting.
(2) If a motion to vary or rescind a resolution is considered at a meeting of the
Board and is not carried, the motion is not to be reconsidered by the Board
during the period of 3 months from the date of that meeting.
[19] Schedule 7 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Provisions consequent on enactment of Health
Legislation Amendment Act 2016
Definition
In this Part, amending Act means the Health Legislation Amendment Act
2016.
Extension of terms of office of members of local health district boards
The amendments to section 26 by Schedule 2 [1] and [2] to the amending Act
extend to persons holding office at the commencement of those amendments.
Repeal of New South Wales Institute of Psychiatry Act 1964
(1) On the repeal of the New South Wales Institute of Psychiatry Act 1964 by the
amending Act:
(a) the body corporate known as "The New South Wales Institute of
Psychiatry" is dissolved, and
(b) each person appointed as a member of that body corporate ceases to
hold office as such a member, and
(c) any assets, rights and liabilities (if any) of that body corporate become
the assets, rights and liabilities of the Health Education and Training
Institute, and
(d) the accounts called "The New South Wales Institute of Psychiatry
Account" and the "House Account" are abolished, and
(e) any balance standing to the credit of those accounts is transferred to the
Health Education and Training Institute.
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Health Legislation Amendment Bill 2016 [NSW]
Schedule 2 Amendment of Health Services Act 1997 No 154
(2) A person who ceases to hold office as a member of the New South Wales
Institute of Psychiatry is not entitled to any remuneration or compensation
because of the loss of that office.
(3) Subject to this Schedule and the regulations, a reference in any Act or
instrument to the New South Wales Institute of Psychiatry is taken to be a
reference to the Health Education and Training Institute.
(4) In this clause:
assets means any legal or equitable estate or interest (whether present or
future, whether vested or contingent and whether personal or assignable) in
real or personal property of any description (including money), and includes
securities, choses in action and documents.
liabilities means all liabilities, debts and obligations (whether present or
future, whether vested or contingent and whether personal or assignable).
rights means all rights, powers, privileges and immunities (whether present or
future and whether vested or contingent and whether personal or assignable).
Changes to by-law provisions
The substitution of sections 39 and 60 by the amending Act does not affect the
validity of any by-laws made before that substitution.
Page 18
Health Legislation Amendment Bill 2016 [NSW]
Schedule 3 Amendment of Mental Health Act 2007 No 8
Schedule 3 Amendment of Mental Health Act 2007 No 8
[1] Schedule 5 Provisions relating to members of Tribunal
Insert after clause 5 (1):
(1A) However, a President who is a full-time member of the Tribunal and a judge
(other than an acting judge) is not, while receiving a salary or allowance as a
judge, entitled to remuneration under this Act.
[2] Schedule 5
Insert after clause 5:
5A Appointment of judge as President not to affect tenure etc
(1) The appointment of a person who is the holder of a judicial office as a
President, or service by a person who is the holder of a judicial office as a
President, does not affect the person's tenure of that judicial office or the
person's rank, title, status, precedence, salary, allowances or other rights or
privileges as the holder of that judicial office.
(2) For all purposes, the person's service as a President is to be taken to be service
as the holder of that judicial office.
(3) This clause extends to any person who, at the commencement of this clause, is
a current President and the holder of a judicial office.
(4) In this clause, judicial office means an office of judge but does not include an
office of acting judge.
Page 19
Health Legislation Amendment Bill 2016 [NSW]
Schedule 4 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10
Schedule 4 Amendment of Mental Health (Forensic
Provisions) Act 1990 No 10
[1] Sections 32A (1) (b), 33 (5A) (a), 35 (2) (c), 58 (note), 76D (2), 76E (4), 76J (1) and
76K (1)
Omit "Department of Human Services" wherever occurring.
Insert instead "Department of Justice".
[2] Sections 33 (1C), 35 (2) (b) and (c) and 41 (3) (a), Part 5, Divisions 2-8 and Schedule 1,
clause 7 (2) (f)
Omit "Director-General" and "Director-General's" wherever occurring.
Insert instead "Secretary" and "Secretary's", respectively.
[3] Sections 33 (1C), 35 (2) (b), 76J (1) and 76K (1)
Omit "Department of Health" wherever occurring.
Insert instead "Ministry of Health".
[4] Section 41 Definitions
Omit the definition of Director-General from section 41 (1). Insert in alphabetical order:
Secretary means the Secretary of the Ministry of Health.
[5] Sections 41 (3) (a) and 76C
Omit "Department of Attorney General and Justice" wherever occurring.
Insert instead "Department of Justice".
[6] Sections 44 and 47
Insert at the end of the sections:
Note. See section 43 for matters of which the Tribunal must be satisfied before it
makes an order for the release of a forensic patient.
[7] Section 53 Classification as involuntary patient
Insert after section 53 (1):
(1A) The Tribunal is not to classify the patient as an involuntary patient unless:
(a) each Minister entitled to apply for an extension of the patient's forensic
status under Schedule 1 has notified the Tribunal that an application for
an extension is not proposed to be made, or
(b) the Supreme Court has dismissed an application for extension of the
patient's forensic status under Schedule 1.
(1B) A Minister entitled to apply for an extension of a patient's forensic status
under Schedule 1 is to notify the Tribunal as soon as practicable of a decision
to apply for, or not to apply for, the extension.
(1C) The Tribunal may ask a Minister to provide advice about whether the Minister
proposes to make an application under Schedule 1.
Page 20
Health Legislation Amendment Bill 2016 [NSW]
Schedule 4 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10
[8] Section 76A Other matters relating to Tribunal functions
Omit section 76A (2). Insert instead:
(2) The Minister for Health and the Attorney General may appear before the
Tribunal, or make submissions to the Tribunal, in relation to any of the
following:
(a) the possible release or grant of leave of absence to a forensic patient,
(b) the recommendation to revoke an extension order in respect of a
forensic patient,
(c) the review of a patient under section 68 (2).
[9] Section 77A Appeals against Tribunal decisions
Omit section 77A (7) (b). Insert instead:
(b) in the case of an appeal by the Minister for Health or the Attorney
General, of written notification to the Minister or Attorney General by
the Tribunal of the reasons for an order determining proceedings,
[10] Section 77C Orders for transfer of forensic patients
Omit "Director-General" where firstly occurring.
Insert instead "Secretary of the Ministry of Health".
[11] Section 77C
Omit "Director-General of the Department of Human Services".
Insert instead "Secretary of the Department of Justice".
[12] Section 77D
Insert after section 77C:
77D Delegation
(1) A Minister administering this Act may, by instrument in writing, delegate the
exercise of any function of the Minister under this Act (other than this power
of delegation):
(a) to any person employed in a Department responsible to the Minister, or
(b) to any person, or any class of persons, authorised for the purposes of this
section by the regulations.
(2) The Secretary of the Department of Justice may delegate the exercise of any
function of the Secretary under this Act (other than this power of delegation):
(a) to any person employed in the Department of Justice, or
(b) to any person, or any class of persons, authorised for the purposes of this
section by the regulations.
(3) Nothing in this section limits the operation of section 21 of the Health
Administration Act 1982.
[13] Schedule 1 Extension of status as forensic patient
Omit "(including classification as an involuntary patient under section 53)" from
clause 2 (1) (b).
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Health Legislation Amendment Bill 2016 [NSW]
Schedule 4 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10
[14] Schedule 1, clause 2
Insert at the end of the clause:
Note. Less restrictive means of managing a risk includes, but is not limited to, a patient
being involuntarily detained or treated under the Mental Health Act 2007.
[15] Schedule 1, clause 11A
Insert after clause 11:
11A Interim extension order to continue in force for 24 hours in certain
circumstances
(1) If the Supreme Court dismisses an application for an extension order in respect
of a forensic patient who is detained only as a result of an interim extension
order, the Court may (on its own motion or on application) order that the
patient be detained for a further period of up to 24 hours to enable a medical
practitioner or accredited person to assess whether a mental health certificate
should be given in respect of the patient under section 19 of the Mental Health
Act 2007.
(2) The order ceases to authorise the detention of the person if the medical
practitioner or accredited person making the assessment decides not to give
that mental health certificate about the person.
[16] Schedule 1, clause 17 (4)
Insert "(whether admission is sought by the Minister to whom the document or report was
provided or by another Minister administering this Act)" after "under this Act".
[17] Schedule 1, clause 17A
Insert after clause 17:
17A Information sharing
(1) A Minister administering this Act may disclose forensic patient information
obtained under this Act to any other Minister administering this Act:
(a) for the purpose of enabling or assisting either Minister to exercise
functions under this Act, or
(b) for the purpose of the administration or execution of this Act.
(2) In this clause:
forensic patient information means any document, report or other
information that relates to a forensic patient, including any such information
that is:
(a) personal information within the meaning of the Privacy and Personal
Information Protection Act 1998 or Health Records and Information
Privacy Act 2002, or
(b) health information within the meaning of the Health Records and
Information Privacy Act 2002.
Page 22
Health Legislation Amendment Bill 2016 [NSW]
Schedule 5 Amendment of Health Services Regulation 2013
Schedule 5 Amendment of Health Services Regulation 2013
Schedule 1 Constitution and procedure of local health district boards
Omit the Schedule.
Page 23
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