Western Australia has now adopted the Health Practitioner Regulation National Law, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), as it stood on 10 October 2023 with modifications, as a law of Western Australia.
The modifications fall into three categories:
- modifications specified in Part 3 of the New Act which have come into force;
- amendments to the National Law contained in future amending Acts that are not disallowed by the Western Australian Parliament and that come into operation as a law of Western Australia under section 9 of the New Act; and
- amendments made by the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (Qld) which have not yet come into force but are expected to come into force by the latest, 21 October 2024.
The first two categories ensures the local needs of the Western Australian community are catered for.
The second category ensures a more timely response by, and greater flexibility is given to, the Western Australian Parliament to respond to local needs.
Whilst the Western Australian position is now more in step with many other Australian states which adopted the same Queensland Schedule for the purposes of their own jurisdiction, due to the modifications to the Schedule, Western Australia continues to differ in several respects from those other states. For example, the new Act retains:
- the position under the Previous Act whereby information obtained during the course of one health practitioner providing health services to another health practitioner or student that could otherwise trigger a mandatory reporting obligation relating to that patient, does not trigger such an obligation in Western Australia;
- protections for the title “physician” in Western Australia consistent with the Previous Act; and
- protections relating to birthing practices in Western Australia whereby the care of a person in labour is limited to certain specified people in line with the Previous Act.
However, there are some significant changes that are immediately in effect due to the operation of the New Act. For example:
- the newly adopted National Law contains guiding principles and objectives relating to the provision of cultural safe health practices to Aboriginal and Torres Strait Islander Peoples and the elimination of racism in the provision of health services;
- the title of “surgeon”, when used by medical practitioners, is protected;
- Ahpra and National Boards may issue a public statement warning the public about registered health practitioners or persons who do not hold registration but provide a health service in circumstances where the person poses a serious risk to others;
- the penalties relating to offences regarding the use of protected titles, restricted dental acts, restrictions on prescription of optical appliances and restrictions on spinal manipulation have significantly increased under the newly adopted National Law. Whereas previously the individual health practitioner was liable to a maximum $30,000 fine, the individual health practitioner now is liable to a maximum fine of $60,000 or 3 years imprisonment or both. However, these offences will still be tried as summary offences in the Magistrates Court of Western Australia and prosecuted by the Ahpra. There is no statute of limitations in regards to commencing prosecution proceedings for the offences previously mentioned;
- a health practitioner must notify the National Board in writing, within 7 days, of becoming aware that he or she is subject to a final determination under section 106TA of the Health Insurance Act 1973 (Cth) (HI Act) that contains a direction under section 106U(1)(g) or (h) of that Act that he or she be disqualified because of his or her conduct, professional performance or health, or is disqualified under an agreement under 92 of the HI Act because of the practitioner’s conduct, professional performance or health, thereby remedying a deficiency in the Previous Act which continued to refer to the Medicare Australia Act 1973 (Cth) instead of the HI Act.
The above summary should not be considered an exhaustive outline of the changes between the New Act and the Previous Act. We have provided a brief summary to draw attention to the fact of the new legislative regime governing Western Australian health practitioners and to highlight some differences.
