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NSW introduces negative licensing regulatory model for unregistered and deregistered practitioners.

On 1 August 2008, the NSW Department of Health introduced a negative licensing regulatory model. Negative licensing is a light-handed form of occupational regulation, and differs from the traditional forms of occupational regulation in that it does not involve the establishment of an accreditation process. A key feature is that any individual may practise an occupation without first being accredited.

Negative licensing involves a statutory requirement that provides for anyone to practise a particular occupation, as long as that person does not breach legislative requirements that relate to unacceptable or unsatisfactory conduct. The negative licensing model provides sanctions for unsatisfactory conduct.


On 7 December 2005, the Joint Parliamentary Committee on the Health Care Complaints Commission announced that it was conducting a review of the December 1998 report on Unregistered Health Practitioners: The Adequacy and Appropriateness of Current Mechanisms for Resolving Complaints.

The seven recommendations of the December 1998 report were:

1) That the Health Care Complaints Commission (HCCC) take a greater role in educating consumers about the Commission's ability to investigate complaints about unregistered health practitioners through the production and dissemination of pamphlets and other information.

2) That the Department of Health and the Colleges support this initiative by encouraging the dissemination of such information through hospitals and Area Health Services.

3) That the Minister for Health consider providing the Health Care Complaints Commission with legislative power to refer matters which concern possible breaches of the Minister's Acts to the Director General of Health.

4) That the Health Care Complaints Act 1993 be amended to create a power which allows the Health Care Complaints Commission to require health professional associations to establish uniform complaints handling and disciplinary mechanisms and grants the Commission power to monitor this function.

5) That the Minister for Health examine the feasibility of establishing umbrella legislation to cover unregistered health care practitioners which establishes a generic form of registration, generic complaint and disciplinary mechanisms, a uniform code of conduct, entry criteria agreed amongst the relevant professions and an Advisory Board to the Minister.

6) That the Minister for Health consider providing the Health Care Complaints Commission with a naming power similar to the one available to the Department of Fair Trading by s86A of the Fair Trading Act 1987.

7) That the Minister for Health consider either establishing or nominating a body with the power to issue court enforceable orders to allow health consumers to obtain refunds through the Small Claims Tribunal from unregistered practitioners.

As a result of this Inquiry, NSW Health introduced legislation to amend the Public Health Act 1991 and Health Care Complaints Act 1993. On 21 September 2006, the NSW Parliament introduced the Health Legislation Amendment (Unregistered Health Practitioners) Bill, which was passed in November 2006.

On 4 December 2006, the amendments to the Health Care Complaints Act 1993 commenced. On 27 June 2008, the Public Health (General) Amendment Regulation 2008 was gazetted, and commenced on 1 August 2008.

The Code Of Conduct

The Code of Conduct is underpinned by section 25A of the Public Health (General) Regulation 2002, which was made under section 10 AM of the Public Health Act 1991. The Code of Conduct is found in Schedule 3 of the Regulation. The Code of Conduct is applicable to three groups of NSW healthcare practitioners:

1) healthcare practitioners who are not required to be registered under an act of parliament eg massage therapists, herbalists, naturopaths etc

2) healthcare practitioners who have been de-registered eg a de-registered medical practitioner

3) healthcare practitioners who are registered under an act of parliament, but who provide a healthcare service which is unrelated to their registration eg a medical practitioner who practises herbal medicine.

In the past, the HCCC could investigate complaints made against unregistered or deregistered practitioners, but was limited in any action it could take. However, amendments to the Health Care Complaints Act 1993 now give the HCCC the legislative authority to administer the Code of Conduct.

Division 6A of the Health Care Complaints Act 1993 gives the HCCC the authority to investigate and take disciplinary action against an unregistered or deregistered healthcare professional, issue an order prohibiting the practitioner from providing health services for a period of time, issue an order placing conditions on the provision of health services or provide a warning to the public about the practitioner ie to name and shame the practitioner.

The intention of the Code is to establish the minimum practice and ethical standards with which unregistered and deregistered healthcare practitioners are required to comply with. The Code informs health consumers of the standards of conduct they should expect from practitioners, and the mechanisms by which they may complain. A health consumer may either complain to the practitioner's association or to the Health Care Complaints Commission.

The Code is divided into 15 main sections:

* Health practitioners to provide services in safe and ethical manner

* Health practitioners diagnosed with infectious medical condition

* Health practitioners not to make claims to cure certain serious illnesses

* Health practitioners to adopt standard precautions for infection control

* Appropriate conduct in relation to treatment advice

* Health practitioners not to practise under influence of alcohol or drugs

* Health practitioners not to practise with certain physical or mental conditions

* Health practitioners not to financially exploit clients

* Health practitioners required to have clinical basis for treatments

* Health practitioners not to misinform their clients

* Health practitioners not to engage in sexual or improper personal relationship with client

* Health practitioners to comply with relevant privacy laws

* Health practitioners to keep appropriate records

* Health practitioners to keep appropriate insurance

* Health practitioners to display code and other information.
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Title Annotation:New South Wales
Author:Khoury, Raymond
Publication:Journal of the Australian Traditional-Medicine Society
Geographic Code:8AUST
Date:Sep 1, 2008
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