Health Legislation Amendment (Quality and Safety ) Bill 2021
Assembly - second reading
Health Legislation Amendment (Quality and Safety) Bill 2021

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Health Legislation Amendment (Quality and Safety) Bill 2021

Introduction Print

EXPLANATORY MEMORANDUM

Clause Notes

Part 1—Preliminary

Clause 1 sets out the main purposes of the Bill, which are to—

• make amendments to the Health Services Act 1988 including—

• to provide for the appointment of the Chief Quality and Safety officer;

• to provide for quality and safety reviews of health service entities and to introduce protections for serious adverse patient safety event reviews conducted by health service entities;

• to create a new statutory duty of candour for health service entities;

• to extend protections for apologies offered by health service entities for harm suffered by patients; and

• to amend the Public Health and Wellbeing Act 2008 to confer additional functions on the Victorian Perioperative Consultative Council;

The Bill will also make consequential and miscellaneous amendments to the Ambulance Services Act 1986, the Mental Health Act 2014 and the Health Complaints Act 2016.

591197 BILL LA INTRODUCTION 30/11/2021

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Clause 2 provides for the Bill to come into operation on a day or days to be proclaimed.

Subclause (2) provides that if a provision of the Bill does not come into operation before 30 November 2022, it will come into operation on that day.

Clause 3 provides that in the Bill the Health Services Act 1988 is called the Principal Act.

Part 2—Amendment of Health Services Act 1988

Clause 4 amends section 3 of the Principal Act to include a number of defined terms. The definition of health service entity was previously included in section 134V of the Principal Act.

Clause 5 inserts a new Part 5A into the Principal Act to deal with quality and safety of health service entities.

New section 116 provides for the appointment of a Chief Quality and Safety Officer by the Secretary.

New section 116(3) provides that a person is eligible to be appointed as the Chief Quality and Safety Officer if the person is employed under Part 3 of the Public Administration Act 2004 and the Secretary is satisfied that the person has appropriate knowledge and experience. Providing that the Secretary is satisfied that a person has the appropriate knowledge and experience to perform the functions of the Chief Quality and Safety Officer, the person appointed as Chief Quality and Safety Officer may be employed under Part 3 of the Public Administration Act 2004 in a department or in an Administrative Office such as Safer Care Victoria or as an Administrative Office Head.

New section 117 sets out the functions of the Chief Quality and Safety Officer. These include the function of conducting quality and safety reviews of services provided in health service entities, or services provided by health service entities.

New section 118 provides that the Chief Quality and Safety Officer has broad powers to do all things necessary or convenient to be done, for in connection with, or incidental to, the performance of the Chief Quality and Safety Officer's functions under the Act and regulations.

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New section 119 provides that the Secretary may engage contractors to assist the Chief Quality and Safety Officer in the performance of their powers, duties and functions.

New section 120 provides that the Chief Quality and Safety Officer may delegate any power, duty or function of the Chief Quality and Safety Officer other than the power of delegation to any person employed under Part 3 of the Public Administration Act 2004 or any person engaged by the Secretary under section 119 to assist the Chief Quality and Safety Officer.

New section 121 provides that the Chief Quality and Safety Officer may appoint persons with appropriate knowledge and experience as authorised quality and safety officers for the purposes of new Part 5A. The appointed person may be a person employed under Part 3 of the Public Administration Act 2004 or a person engaged by the Secretary under section 119 to assist the Chief Quality and Safety Officer in the performance of the Chief Quality and Safety Officer's functions.

New section 122 provides that the Chief Quality and Safety Officer must provide an identity card to each authorised quality and safety officer.

New section 123 provides that an authorised quality and safety officer must produce their identity card before exercising a power under the Act or regulations, of if requested to do so by an occupier during the exercise of powers under the Act or regulations.

New sections 124(1) and (2) provides that the Chief Quality and Safety Officer may either on their own motion or at the request of the Secretary conduct a review of the quality and safety of services provided in or by one or more health service entities if either is of the view that one of the specified grounds are satisfied.

New section 124(3) provides that in the case of any quality and safety review, the Chief Quality and Safety Officer must determine whether the review is to be conducted as a standard quality and safety review or a protected quality and safety review. The Chief Quality and Safety Officer may decide after a standard quality and safety review has commenced that it should be terminated and that a protected quality and safety review should be commenced instead. The Chief Quality and Safety Officer may only decide that a quality and safety review should

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be conducted as a protected quality and safety review if the Chief Quality and Safety Officer considers on reasonable grounds that the additional protections afforded to a protected quality and safety review are necessary for the open and honest engagement with the review process by relevant persons involved in the services being reviewed, having regard to the reputation, privacy, safety or wellbeing of such persons.

New section 124(5) sets out the purposes of a quality and safety review, including to provide a report to the Secretary. New section 124(6) sets out that the process for a quality and safety review is at the discretion of the Chief Quality and Safety Officer.

New section 125 sets out the principles that apply to the conduct of quality and safety reviews. These include that the review process should focus on systemic issues rather than individual fault.

New section 126 specifies the permitted scope of quality and safety reviews, which can range from the health services provided to a specified person to any aspect of health services provided by one or more health service entities.

New section 127 provides that the Chief Quality and Safety Officer must provide a written notice of a quality and safety review to any health service entity that the review is likely to relate to, and also sets out the requirements for the notice.

New section 127(3) provides that notice of a quality and safety review is not required to be given if the Chief Quality and Safety Officer is satisfied that the circumstances necessitate it.

New section 128 provides that the Chief Quality and Safety Officer or an authorised quality and safety officer may enter the premises of a health service entity at any time for the purposes of conducting a quality and safety review and specifies what they may do after entering the premises.

New section 128A provides the Chief Quality and Safety Officer with powers to give written directions for the purposes of a quality and safety review to a member of staff of a health service entity or a person who provides health service from a health service entity. The written direction may require the person to produce documents or answer written questions.

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New section 128B requires a member of staff of a health service entity or a person who provides health services from the health service entity to give the Chief Quality and Safety Officer or an authorised quality and safety officer any reasonable assistance required when they are performing duties or functions or exercising powers under the Act or regulations.

New section 128C provides that a natural person may rely on the privilege against self-incrimination when the person is required to give information or do anything under new Part 5A that may incriminate them.

New section 128D provides that the Chief Quality and Safety Officer must prepare a report after completing a quality and safety review and specifies the contents of the report.

New section 128D(3) requires the Chief Quality and Safety Officer to provide a copy of the report to any health service entity referred to in the report as soon as practicable after completing the report. The health service entity must provide a written response to the report within 10 business days of receiving the report.

New section 128E provides that the Chief Quality and Safety Officer must give the Secretary a copy of any report of a quality and safety review and any response of a health service entity to which the report relates. The Secretary may have regard to those documents for the performance of performing functions and exercising powers under the Principal Act or any other Act, including the Public Health and Wellbeing Act 2008, the Ambulance Services Act 1986 and the Mental Health Act 2014.

New section 128F provides that if the Secretary is of the opinion that it is in the public interest to do so, the Secretary may publish a copy of a quality and safety report and the relevant health service entity's response received from the Chief Quality and Safety Officer, provided that the report and the response do not identify any person without their consent. The report may still be published with identifying information if the only identifying information relates to role titles and specialist areas of practice. The reason for this exception is that often a role title or specialist area of practice is a necessary piece of information to be included in the report to give context to the findings and the recommendations.

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Section 128G provides that the Chief Quality and Safety Officer may prepare a summary of a completed quality and safety report, prepared under new section 128E. The Chief Quality and Safety Officer then has a discretion to either provide the full report to any of the persons listed in new section 128G(2), or to provide them with the summary report.

New section 128H provides that the Chief Quality and Safety Officer may make guidelines for the purposes of addressing any systemic issues that were identified during a quality and safety review or for the purposes of improving any services provided in or by health service entities. The guidelines are to be published on an appropriate Internet site, such as the internet site of the Department or Safer Care Victoria.

New section 128I specifies confidentiality obligations that apply to the Chief Quality and Safety Officer and authorised quality and safety officers in relation to information gained or conveyed during a protected quality and safety review that may identify a health service entity or any person.

The section prohibits the use of the information for any purpose other than for the functions of the Act relating to a protected quality and safety review. However, the Chief Quality and Safety Officer may use or disclose the information gained during a protected quality and safety review if the use or disclosure is for certain specified circumstances including to prevent serious harm to a person's health or safety. The prohibition on disclosure has effect despite the provisions of section 40 of the Audit Act 1994.

New section 128I further provides that the Chief Quality and Safety Officer and the authorised quality and safety officers must not be required to produce documents or disclose information obtained during a quality and safety review and are not required to provide access to such information or documents under the Health Records Act 2001 or the Freedom of Information Act 1982.

New section 128J provides for the confidentiality of documents related to protected quality and safety reviews. New section 128J(1) provides that a person cannot be required by a court, tribunal, board or any other person, to produce a copy of a document that was created solely for the purposes of a protected quality and safety review, or a document that was produced or

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provided in the course of conducting a protected quality and safety review.

New section 128J(2) provides that specified information or reports are not admissible in legal proceedings, (except in the case of information or reports published by the Secretary in accordance with new section 128G). The information that is not admissible includes evidence of any other information or reports obtained or in the possession of the Chief Quality and Safety Officer or authorised quality and safety officers for the purposes of a protected quality and safety review or a report or summary of a report provided to a person under new section 128G(2).

New sections 128J(3) and (4) provide that obligations to provide access to documents under the Freedom of Information Act 1982 and the Health Records Act 2001 do not apply to documents dealt with by new section 128J.

New section 128K clarifies that the provisions of the new Part 5A that protect protected quality and safety reviews and the information and documents obtained for the purposes of a protected quality and safety review do not prevent a person exercising their right to access their own medical file. However, any protected quality and safety review is not considered to be part of a patient's medical file for the purpose of this provision.

New section 128L provides that if during the course of conducting a quality and safety review, the Chief Quality and Safety Officer identifies a matter that the Chief Quality and Safety Officer reasonably believes is relevant to the statutory responsibilities of the Chief Health Officer or the chief psychiatrist, the Chief Quality and Safety Officer may refer that matter to them. It is a matter for the chief psychiatrist or the Chief Health Officer (as appropriate) and their authorising statutes as to what they do with the information provided to them and whether any confidentiality provisions apply to that information.

Section 128M provides a protection from liability for any person who give information in good faith to a quality and safety review reasonably believing that the information was for the purposes of that quality and safety review. Section 128M provides that any liability that would have attached to the person who gave the information will instead attach to the State.

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New section 128N provides that a SAPSE review may be conducted by a SAPSE review panel appointed in accordance with new Division 8 if a serious adverse patient safety event occurs. A serious adverse patient safety event which is an event that results in harm to one or more individuals, that falls within a class of such events prescribed in the regulations.

New section 128O specifies what a SAPSE review must do, including identifying any measures that should be taken in the future to improve the quality and safety of the health services provided by the relevant health service entities.

New section 128P provides for the appointment of the SAPSE review panel. Where a single health service entity is involved, the SAPSE review panel will be appointed by the CEO of the relevant health service entity. Where a serious adverse patient safety event involves 2 or more health service entities, the regulations will provide a process for the chief executive officers of the health service entities to agree on the appointment of a joint SAPSE review panel.

New section 128P(1)(b) provides that the chief executive officer of a health service entity must appoint a SAPSE review panel if directed to do so by the Secretary. New section 128P(1)(c) includes a similar obligation for the appointment of a joint SAPSE review panel. It is intended that the Secretary will only use such powers of direction in unusual cases.

New section 128Q specifies the requirements for the membership of a SAPSE review panel, and each member from the relevant category must have appropriate skills and experience to conduct a SAPSE review.

New section 128R provides an immunity from liability for a member of a SAPSE review panel in relation to acts or omissions done while exercising the functions as a member of the SAPSE review panel or in the reasonable belief that the person was exercising such functions. Any liability (including any liability for defamation) that would have otherwise attached to the person attaches to the health service entity or entities that appointed the SAPSE review panel, or a panel appointed in accordance with new section 128P(3) where there was a failure to agree on the appointment of the panel.

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New section 128S provides an indemnity to any person who provides information to a SAPSE review panel in good faith in the reasonable belief that the information was necessary for the SAPSE review. Any liability (including any liability for defamation) that would have otherwise attached to the person attaches to the health service entity or entities that appointed the SAPSE review panel, or a panel appointed in accordance with new section 128P(3) where there was a failure to agree on the appointment of the panel. New section 128T provides that a SAPSE review panel must prepare a report after completing its investigation and specifies the matters to be included in the report. The report must not include any identifying information of a person who was involved in providing the relevant health service, the person who received the health service or a member of the SAPSE review panel.

New section 128U provides that a SAPSE review report and any documents created for the purposes of a SAPSE review or during the course of that review are not required to be produced in legal proceedings, and are not admissible in any court, tribunal or other legal proceedings. There is a limited exception providing that a SAPSE review report may, at the discretion of the relevant health service entity or health service entities, be provided to a coroner for the purpose of an investigation or an inquest in respect of a death.

New sections 128U(4) and (5) provide that obligations to provide access to documents under the Freedom of Information Act 1982 and the Health Records Act 2001 do not apply to the SAPSE review report and any documents created for the purposes of a SAPSE review or during the course of that review.

New section 128V provides that the health service entity is obliged to provide the SAPSE review report to the Secretary or another person specified in the regulations, if the Secretary or that person request a copy of the report. In addition, the health service entity must offer a copy of the SAPSE review report to the patient, or any other person connected to the patient that the chief executive officer of the health service entity reasonably believes has a sufficient personal or professional interest in the report.

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New section 128W provides that a person who was involved in a SAPSE review, including giving information to the review, must not be required to divulge any information relating to the SAPSE review in any legal process or under any Act (other than in prescribed circumstances).

New section 128X sets out the confidentiality obligations of a member of a SAPSE review panel.

New section 128X(2) create an offence for a person who is or has been a member of a SAPSE review panel to disclose any information acquired by the person in the performance of functions in relation to a SAPSE review except in circumstances specified in new section 128X(3). The penalty for contravention of the offence is a maximum of 10 penalty units.

New section 128Y creates an offence for a health service entity, or a member of staff of that entity, to disclose the identity of a member of a SAPSE review panel other than in a proceeding for an offence under the new Part 5A. The penalty for contravention of the offence is maximum of 10 penalty units in the case of an individual and a maximum of 50 penalty units in the case of a body corporate.

New section 128Z provides for a SAPSE review panel to suspend the review if the panel has a reason to believe that the subject matter of the review relates to matters that should be dealt with under other legislative schemes. These include suspected criminal offences or an incidence of suspected professional misconduct. The regulations will specify the procedures that must be complied with in these circumstances, including when the review may recommence.

Section 128Z(2) clarifies that SAPSE review panel members must still comply with any mandatory reporting obligations that apply to them, despite any provisions of the new Part 5A.

New section 128ZA clarifies that section 139 of the Principal Act does not apply to SAPSE reviews and SAPSE review reports. For example, a member of a committee declared by the Minister in accordance with section 139 cannot rely upon that membership to refuse to comply the obligations of the health service entity to disclose a SAPSE review report in accordance with new section 128W.

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New section 128ZB defines a number of terms for the purposes of the duty of candour provisions in new Division 9. This includes a definition of apology and a definition of patient. The definition of patient in circumstances where the patient lacks capacity or has died means that any obligation of a health service entity under this Division must be complied with in relation to the patient's immediate family, carer or next of kin, or a person nominated by the patient.

New section 128ZC sets out the steps that must be taken by a health service entity to comply with the duty of candour where a patient suffers a serious adverse patient safety event when receiving health services from the health service entity. The health service entity must provide the patient the information specified in new section 128ZC(1)(a), including an apology for the harm suffered by the patient. A patient can elect not to receive the information that must otherwise be provided to them under this Division, but they can later reverse that decision. Given that the patient can reverse the decision at any time, it is expected that the health service entity will prepare the material to comply with this Division even when the patient initially opts out of the scheme under new section 128ZC(2).

New section 128ZD provides that an apology made in accordance with new Division 9 does not constitute an admission of liability for death or injury of a person and is not relevant to the determination of fault or liability, in any civil proceedings where the death or injury of that person is in issue.

New section 128ZD(3) provides that evidence of an apology made on behalf of a health service entity is not admissible in any civil or disciplinary proceedings as evidence of the fault or liability of a health service entity or person connected to the matter.

New section 128ZE provides that the Minister or the Secretary may take into account the failure of a health service entity to comply with the duty of candour when determining the following matters under the Principal Act—

• whether the entity provides safe, patient-centred and appropriate health services; and

• the quality and safety of health services provided by the entity.

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Some of the sections in the Principal Act where the Minister or Secretary may consider the failure to comply with the duty of candour in this context are sections 58(1), 63A, 64, 64A, 89 and 115Q.

New section 128ZF provides that the Minister may make guidelines to be known as the Victorian Duty of Candour Guidelines to set out the steps a health service entity must take to discharge the duty of candour.

New section 128ZG include a new definition of relevant health service entity, which includes all the entities about which the Minister may publish a statement in accordance with this new Division 10. It is a smaller group of entities than the definition of health service entity, and does not include, for example, Forensicare, ambulance services and non-emergency patient transport providers.

New section 128ZH provides the Minister may make a public statement on the Department's Internet Site naming a relevant health service entity where, in the Minister's opinion, there is evidence that the relevant health service entity has failed to comply with the duty of candour on 2 or more occasions and the failure to comply is of a serious nature.

New section 128ZI sets out the process that must be followed before the Minister can publish a statement in accordance with new section 128ZH. This is a show cause process that provides the relevant health service entity with a reasonable time to make submissions on the proposed publication of the statement.

Clause 6 amends section 40C(3)(b) to provide that when the Minister is considering whether to appoint a delegate to the board of a public hospital, the Minister must consider the public hospital's compliance with the duty of candour in the context of the safety and quality of the health services provided by the public hospital.

Clause 7 amends section 65ZAA(3)(ab) to provide that when the Minister is considering whether to appoint a delegate to the board of a public health service, the Minister must consider the public health service's compliance with the duty of candour in the context of the safety and quality of the health services provided by the public health service.

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Clause 8 amends section 115MB(3)(b) to provide that when the Minister is considering whether to appoint a delegate to the board of a multi purpose service, the Minister must consider the multi purpose service's compliance with the duty of candour in the context of the safety and quality of the health services provided by the multi purpose service.

Clause 9 repeals Part 6A of the Principal Act which provides for the Better Care Victoria Board. The Board currently has no members as the Minister has previously removed all members from the Board pursuant to section 134T.

Clause 10 repeals the definition of health service entity from section 134V as this definition is now included in section 3 of the Principal Act by clause 4 of this Bill.

Clause 11 amends section 158 to add additional matters about which regulations can be made addressing content being inserted into the Principal Act by the Bill.

Part 3—Amendment of the Public Health and Wellbeing Act 2008

Clause 12 inserts a new definition of Victorian Perioperative Consultative Council and amends the definition of Consultative Council to clarify that the Victorian Perioperative Consultative Council remains, for the purposes of the Public Health and Wellbeing Act 2008, a Consultative Council established or appointed under section 33.

Clause 13 inserts a new Division 4 into Part 4 of the Public Health and Wellbeing Act 2008.

New section 48C clarifies that this new Division applies to the Victorian Perioperative Consultative Council in addition to Division 2 of Part 4 of the Public Health and Wellbeing Act 2008.

New section 48D sets out the functions of the Victorian Perioperative Consultative Council. New section 48D(3) specifies a definition of perioperative mortality and morbidity to refer to adverse events (including death) that occur around the time of surgery.

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New section 48E provides that the Victorian Perioperative Consultative Council may make guidelines relevant to its functions and includes requirements for the making of such guidelines.

New section 48E(4) may monitor compliance with its guidelines by health services and report to the Secretary any cases where it has found that the health services have not complied with the guidelines. The matters that must be included in a report to the Secretary for the purposes for new section 48E(4) are set out in new section 48E(5).

New section 48F provides that the Chairperson of the Victorian Perioperative Consultative Council may request information by written notice from a person who provided care to a person before their death in order for the Council to perform its functions in section 48D(1)(a) in relation to the collection, study and analysis of the incidence and causes of perioperative mortality and morbidity, and such a person is authorised to provide the information.

New section 48G provides that, the Victorian Perioperative Consultative Council must report the details specified in new section 48G(3) to the Secretary if the Council determines that—

• a perioperative mortality or case of severe perioperative morbidity or a cluster (a number of episodes of either severe perioperative morbidity or mortality at the same health service) was likely to have been preventable; and

• there is a continuing risk to the health, safety or wellbeing to patients at the health service.

In addition to the reports of cases of perioperative mortality and severe perioperative morbidity of concern, new section 48G(4) requires the Chairperson of the Council to provide quarterly reports to the Secretary concerning themes and identified systemic issues and trends that have emerged from the data collected by the Council.

New section 48H specifies the conditions of confidentiality that apply to reports made in accordance with new section 48G. A person who receives such a report must not disclose the report to any other person, or a court or tribunal or board or agency unless the Secretary considers that the disclosure is in the public interest. The prohibition on disclosure has effect despite the

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provisions of section 40 of the Audit Act 1994 and the obligations to provide access to documents under the Freedom of Information Act 1982 and the Health Records Act 2001 do not apply to such a report. However, information may be included from the report in other documents provided it does not lead to the identification of any person.

Part 4–Consequential and other amendments

Division 1—Amendment of Ambulance Service Act 1986

Clause 14 includes definitions in section 3(1) of the Ambulance Services Act 1986 that are required for the application of the duty of candour to ambulance services.

Clause 15 inserts new sections 22I to 22K into the Ambulance Services Act 1986. These new sections require ambulance services to comply with the duty of candour that is identical to the duty of candour that health service entities are obliged to comply with under the amendments to the Principal Act made by new sections 128ZC to 128ZE in clause 5 of the Bill.

New section 22I sets out the steps that must be taken by an ambulance service to comply with the duty of candour where a patient suffers a serious adverse patient safety event in the course of receiving services from the ambulance service. The ambulance service must provide the patient the information specified in new section 22I(1)(a), including an apology for the harm suffered by the patient. A patient can elect not to receive the information that must otherwise be provided to them under new section 22I(1), but the patient can later reverse that decision. Given that the patient can reverse the decision at any time, it is expected that the ambulance service will prepare the material to comply with new section 22I even when the patient initially opts out of the scheme under new section 22I(2).

New section 22J provides that an apology made in accordance with new section 22I does not constitute an admission of liability for death or injury of a person and is not relevant to the determination of fault or liability, in any civil proceedings where the death or injury of that person is in issue.

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New section 22J(3) provides that evidence of an apology made on behalf of an ambulance service is not admissible in any civil or disciplinary proceedings as evidence of the fault or liability of an ambulance service or person connected to the matter.

New section 22K provides that the Minister or the Secretary may take into account the failure of an ambulance service to comply with the duty of candour when determining the following matters under the Ambulance Services Act 1986

• whether the ambulance service provides safe, patient- centred and appropriate services; and

• the quality and safety of health services provided by the ambulance service.

Clause 16 amends section 22B(3)(b)(ii) of the Ambulance Services Act 1986 to provide that when the Minister is considering whether to appoint a delegate to the board of a public hospital, the Minister must consider the public hospital's compliance with the duty of candour in the context of the safety and quality of the services provided by the ambulance service.

Clause 17 inserts a new paragraph (ia) after section 35(1)(e)(i) of the Ambulance Services Act 1986 which adds an additional ground for the appointment of an administrator to an ambulance service. This means that, if the Minister is satisfied that the ambulance service has failed to ensure that the ambulance service has complied with the duty of candour, the Minister can recommend to the Governor in Council that an administrator be appointed to the ambulance service.

Division 2—Amendment of Mental Health Act 2014

Clause 18 includes an additional definition in section 3(1) of the Mental Health Act 2014 that is required for the application of the duty of candour to mental health service providers and the Victorian Institute of Forensic Mental Health.

Clause 19 adds an additional function to the functions of the Mental Health Complaints Commissioner specified in section 228 of the Mental Health Act 2014 being that the Commissioner must report to the Secretary where the Commissioner becomes aware (other than through conciliation) that a mental health service provider or the

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Victorian Institute of Forensic Mental Health has failed to comply with the duty of candour.

Clause 20 amends section 233 of the Mental Health Act 2014 to provide that the Secretary may refer a complaint to the Mental Health Complaints Commissioner if the complaint concerns a failure to comply with the duty of candour.

Clause 21 amends section 265(1A) of the Mental Health Act 2014 to allow the Mental Health Complaints Commissioner or other person to whom section 265(1) applies to disclose protected information to the Secretary if the information is relevant to determining if a mental health service provider or the Victorian Institute of Forensic Mental health has complied with the duty of candour.

Clause 22 inserts a new section 331(4) into the Mental Health Act 2014 to provide that the Victorian Institute of Forensic Mental Health must comply with the duty of candour in Division 4 inserted in Part 14 of the Mental Health Act 2014 by clause 24.

Clause 23 amends section 339B(3)(b) of the Mental Health Act 2014 to provide that when the Minister, in considering factors relevant to the appointment of a delegate to the Board of the Institute, is considering the quality and safety of the mental health services provided by the Institute, the Minister should also consider whether the Institute has complied with the duty of candour.

Clause 24 inserts a new Division 4 into Part 14 of the Mental Health Act 2014 that specifies the duty of candour applies to the Victorian Institute of Forensic Mental Health. These new sections require the Institute to comply with the duty of candour that is identical to the duty of candour that health service entities are obliged to comply with under the amendments to the Principal Act made by new sections 128ZC to 128ZE in clause 5 of the Bill.

New section 345A includes definitions that are required for the application of the duty of candour to the Institute.

New section 345B sets out the steps that must be taken by the Institute to comply with the duty of candour where a patient suffers a serious adverse patient safety event in the course of receiving mental health services from the Institute. The Institute must provide the patient the information specified in new section 345B(1)(a), including an apology for the harm suffered

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by the patient. A patient can elect not to receive the information that must otherwise be provided to them under new section 345B(1), but they can later reverse that decision. Given that the patient can reverse the decision at any time, it is expected that the Institute will prepare the material to comply with new section 345B even when the patient initially opts out of the scheme under new section 345B(2).

New section 345C provides that an apology made in accordance with new section 345B does not constitute an admission of liability for death or injury of a person and is not relevant to the determination of fault or liability, in any civil proceedings where the death or injury of that person is in issue.

New section 345C(3) provides that evidence of an apology made on behalf of the Institute is not admissible in any civil or disciplinary proceedings as evidence of the fault or liability of the Institute or person connected to the matter.

New section 345D provides that the Minister or the Secretary may take into account the failure of the Institute to comply with the duty of candour when determining the following matters under the Mental Health Act 2014

• whether the Institute provides safe, patient-centred and appropriate mental health services; and

• the quality and safety of mental health services provided by the Institute.

Division 3—Amendment of Health Complaints Act 2016

Clause 25 amends section 5(1) of the Health Complaints Act 2016 to add an additional ground about which a person may make a complaint to a health service provider being any failure by the health service provider to comply with the duty of candour.

Clause 26 amends section 6(1) of the Health Complaints Act 2016 to add an additional matter about which a person can make a complaint to a health service provider being any failure by the health service provider to comply with the duty of candour in respect of another person.

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Clause 27 amends section 7(1) of the Health Complaints Act 2016 to add an additional matter about which a carer can make a complaint to a health service provider about the unreasonable treatment of the carer in the course of failing to comply with the duty of candour in respect of the person being cared for by the carer.

Clause 28 amends section 118(1)(l) to add to the function of the Health Complaints Commission to report findings to the Secretary. The function now includes the reporting of findings in relation to the compliance of health service providers with the duty of candour.

Clause 29 amends section 150(2)(b) of the Health Complaints Act 2016 to allow the Health Complaints Commissioner or other person to whom section 150(2) applies to disclose protected information to the Secretary if the information is relevant to determining if a health service provider has complied with the duty of candour.

Division 4—Statute law revision amendments Clauses 30 to 32 make various statute law revision amendments to the Principal Act.

Part 4—Repeal of amending Act

Clause 33 provides that this Bill is repealed on the first anniversary of the first day on which all of its provisions are in operation. The repeal of the Bill does not affect the continuing operation of amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).