Appendix 7:
The Victorian Health Practitioner Registration Model

This appendix sets out in detail the Victorian model of health practitioner registration that was adopted with the passage of the Victorian Medical Practice Act 1994, the Nurses Act 1993, the Chiropractors Registration Act 1996 and the Osteopaths Registration Act 1996.

Since the legislation relating to chiropractors and osteopaths is most the most recent and has been assessed under National Competition Policy, it should be considered the most suitable precedent for the current review. Those interested in these issues are encouraged to examine either the Osteopaths Registration Act or the Chiropractors Registration Act in detail.

1. Purpose of registration

The Victorian model of health practitioner registration make it clear that the purpose of registration is to protect the public rather than to protect or promote the interests of the professional group. Practitioners are required to be registered in those professions where the absence of statutory regulation would result in significant harm to individuals or endanger public health.

2. Composition and appointments to the board

As discussed in section 4.1, Victorian health practitioner registration boards have a maximum of twelve members, but may have around seven members for smaller professional groups. The members must comprise a majority of practitioners from the profession, plus a qualified lawyer, and two lay persons with no professional qualifications or pecuniary interest in the profession.

The Victorian model provides for the Minister for Health to recommend members to be appointed to the board to the Governor-in-Council, and for the Governor-in-Council to appoint them. The president and deputy president of the board are nominated by the Minister from among members of the board and appointed by the Governor-in-Council.

Appointments are generally made for terms of three years. Initial appointments would be for terms of one, two or three years to provide for staggered reappointments. A board member may resign or may be removed by the Governor-in-Council.

3. Relationship between the board and government

Victorian health practitioner registration boards are independent of government but are obliged to consult the Minister for Health and take notice of his/her views. Boards are incorporated so as to avoid any personal liability for board members. They are required to be self-funding, and are responsible for setting their own fees, and meeting all expenses such as renting premises, hiring staff, paying legal counsel etc.

Under the Victorian model, registration boards have the power to issue guidelines but not to make regulations under their respective Registration Acts. The power to make regulations rests with the Governor-in-Council.

4. Powers and functions of the board

Under the Victorian model, the main powers of registration boards are as follows:

• to regulate the standards of practice of the profession in the public interest;
• to register suitably qualified persons and/or persons meeting approved competency standards so that they may practice in Victoria;
• to accredit courses that provide qualifications for registration purposes;
• to establish standards for the conduct of examinations for the purposes of registration;
• to issue guidelines about appropriate standards of practice;
• to investigate complaints about, and inquire into, the conduct of persons registered under the Act; and
• to carry out such other functions as are vested in the board by or under its Act.

5. Registration

Subject to mutual recognition principles, Victorian registration boards have the power to register a practitioner if the practitioner:

• has successfully completed a course of study accredited by the board; or
• in the opinion of the board has a qualification that is substantially equivalent to or is based on similar competencies to an accredited course level of skill; or
• has passed an examination set by or on behalf of the board; or
• has a qualification that is recognised in another State or Territory of the Commonwealth for the purposes of undertaking work of a similar nature to that which a person, holding a qualification to which the above applies, is qualified to undertake.

Under the Victorian model, there are two forms of registration:

• General registration - outlined above.
• Specific registration - for those in teaching and research positions etc.

Boards have the power to register a practitioner temporarily, provisionally, or conditionally, or to grant a restricted registration. This allows additional flexibility in registration, for example with short-term registration of visiting overseas lecturers.

6. Fees

Registration is annual and is conditional on payment of a fee set by the respective board.

Registration boards do not have the power to recover the costs of a hearing from the practitioner found guilty of an offence under the relevant Act. Boards must finance these cost and any appeals that may arise, via registration fees.

7. Discipline, complaints handling and relationship with the Health Services Commissioner

The Victorian model is set out in Parts 3, 4, and 5 (Sections 22 - 64) of the Osteopaths Registration Act 1996.

7.1 Definition of 'unprofessional conduct'

The definition of 'unprofessional conduct' contained in the Osteopaths Registration Act has been adopted by the Victorian Parliament's Scrutiny of Acts Committee as the standard to be included in all Victorian health practitioner legislation. Unprofessional conduct is defined as any or all of the following:

1. professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered practitioner; or
2. professional conduct which is of a lesser standard than that which might reasonably be expected of a registered practitioner by his or her peers; or
3. professional misconduct; or
4. infamous conduct in a professional respect; or
5. providing a person with health services of a kind that is excessive, unnecessary or not reasonably required for that person's well-being; or
6. influencing or attempting to influence the conduct of a practice in such a way that patient care may be compromised; or
7. the failure to act as a practitioner when required under an Act or regulations to do so; or
8. a finding of guilt of:
1. an indictable offence in Victoria, or an equivalent offence in another jurisdiction; or
2. an offence where the practitioner's ability to continue to practise is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the practitioner to continue to practise because of the finding of guilt; or
3. an offence under this Act or the regulations; or
4. an offence as a practitioner under any other Act or regulations.

7.2 Investigation of complaints

Registration boards are required to investigate all complaints that are not vexatious or frivolous. These provisions formalise procedures relating to the conduct of investigations and inquiries, and provide a broad range of determinations and findings.

The provisions also formalise the relationship between a registration board and the Health Services Commissioner (HSC) under the Victorian Health Services (Conciliation & Review) Act. Registration boards are required to forward a copy of any complaint to the HSC before dealing with it. Complaints that are suitable for conciliation are dealt with by the HSC, while others are referred back to the registration board.

Investigations are undertaken to determine whether or not an inquiry is needed, and if needed, what type of inquiry (formal or informal). The investigation is undertaken by the Registrar, the board, or the board's delegate, or may be referred to an investigator. If the investigator is a board member, that member must not later sit as an inquiry panel member.

Registration boards have the power to inquire into:

• the capacity of a person to carry out the functions of a practitioner;
  
  
• the professional conduct of a practitioner.

An inquiry may be held by the board at the request of the HSC or a complainant; or an applicant who is refused registration. It may also be held on the board's own motion. The board must appoint a panel to undertake the inquiry.

7.3 Formal and informal inquiries

Where an inquiry is informal:

1. a panel of up to three board members may be appointed;
2. there is no entitlement to representation but the practitioner may be accompanied by an adviser;
3. it is closed to the public;
4. there is a right of appeal to a formal inquiry.

Where an inquiry is formal:

• there is a panel of up to five board members, one of whom must be a lawyer;
• there is an entitlement to legal representation;
• the panel has all the power of a board of inquiry under the Evidence Act;
• it is open to the public but there is a power to embargo all or part of the hearing;
• the avenue of appeal is to the Administrative Appeals Tribunal.
• A decision of an inquiry panel is a decision of the board.

7.4 Warrant provisions

Under the model, a person appointed by the registration board may apply to a magistrate for the issue of a search warrant, in order to investigate complaints. A warrant issued in accordance with the Magistrates' Courts Act 1989 may give the power for an appointee of the board to:

1. enter the premises, or the part of the premises, named or described in the warrant; and
2. search for and seize a thing named or described in the warrant; and
3. bring the thing before the Court so that the matter may be dealt with according to law.

Copies or receipts for seized items must be provided to the occupier.

7.5 Penalties

Registration boards have the power to make various determinations as a result of a disciplinary or complaint proceedings including:

• Where an informal inquiry is conducted:

• require the practitioner to undertake
  counselling;
• caution the practitioner;
• reprimand the practitioner.
  
  
• Where a formal inquiry is conducted:

• require the practitioner to undertake
  counselling;
• caution the practitioner;
• reprimand the practitioner;
• order remedial education;
• impose a fine;
• impose restrictions on practice;
• suspend registration;
• cancel registration.

Within fourteen days of the lodgement of the complaint, the board must inform the complainant in writing of what action has been taken; and it must inform the complainant of the outcome of any inquiry within seven days.

8. Appeal against board decisions

Appeal against a registration board decision is to the Administrative Appeals Tribunal. This is designed to streamline the process of review and reduce the costs associated with such action.

9. Professional indemnity insurance

The Law Reform Committee of the Parliament of Victoria has recently published a report titled Legal Liability of Health Service Providers (31). Recommendation 5 of the report states:

Statutorily recognised health service providers should be required to obtain compulsory professional indemnity insurance cover with respect to privately funded patients, in order to become and remain registered. The minimum level of cover should be specified by the appropriate registration board, in consultation with relevant professional associations. Runoff cover should be provided for those who are currently insured on a different basis to the mandatory requirement.

The Victorian Minister for Health is currently considering any changes that should be made to the Victorian model of health practitioner registration to give effect to this recommendation.

10. Advertising

Under the Victorian model, there are prohibitions on advertising which:

• is false, misleading or deceptive advertising;
  
  
• offers a discount, gift or other inducements to attract patients unless the advertisement also set out the terms and conditions of the offer;
  
  
• refers to, uses or quotes from testimonials or purported testimonials;
  
  
• unfavourably contrasts medical or surgical services provided by one practitioner with service provided by another.
  
  
• Penalties vary depending on whether the practitioner is individual or part of a body corporate.

 

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