AGY-71 | New South Wales Medical Board

Full description

The first New South Wales Medical Board was constituted by An Act to define the qualifications of Medical Witnesses at Coroner's Inquests and Inquiries held before Justices of the Peace in the Colony of New South Wales (2 Victoria, Act No.22). The Act authorised the Governor or Acting-Governor to appoint a committee consisting of not less than three members, being of the medical profession, one of whom was to be nominated President, together with a Secretary. (1) The Board was responsible for examining and approving of medical qualifications submitted to it by persons desirous of being declared legally qualified medical practitioners.(2) Qualifications acceptable were a medical degree, a licence as a physician or surgeon from a British or Irish college, membership of the Company of Apothecaries, London or an army or navy medical officer. (3) It had, further, to "cause the names of all 'legally qualified Medical Practitioners' to be registered in a book to be kept by the said board for that purpose," and to cause the names of those registered to be published annually in the Government Gazette for the information of the Coroners, Magistrates and the public. (4) The prime purpose for the establishment of the Board was to determine who should be deemed a legally qualified medical practitioner for the purposes of An Act to provide for the attendance of Medical Witnesses at Coroner's Inquests and Inquiries held by Justices of the Peace (1 Vic. Act No.3).

The 1838 Act was amended by An Act to amend the Medical Witnesses at Inquests Act, 1844 (8 Vic. no.8) which authorised the Superintendent of Port Phillip to appoint a Medical Board for the district of Port Phillip to consist of at least three qualified medical practitioners (5) with a similar role to the Medical Board. (6) Those registered by either Board were eligible to practice throughout the whole colony. A further amendment act An act to define the qualifications of Medical Witnesses at Coroners' Inquests, 1845 (9 Vic. no.12) enabled Members or Licentiates of the Apothecaries Hall, Dublin to be "legally qualified Medical Practitioners." (7)

These laws were amended by An Act to provide for the Registration of Legally Qualified Medical Practitioners, 1855 (19 Vic. Act No.17) which provided for some foreign qualifications to be acceptable to the Board. (8) The amending act also required that three members constitute a quorum of the Board (9) and authorised an acting president to be nominated in the absence of the President. (10) Forging of qualifications or giving false evidence to the Board became a crime under the new Act. A person found guilty of this offence could be imprisoned with hard labour for up to five years. (11)

This Act was consolidated by the Medical Practitioners Act 1898 (Act No.26, 1898) without significant amendment to the provisions relating to the constitution of the Board or the maintenance of its register, but Medical Practitioners (Amendment) Act, 1900 (Act No.33, 1900) imposed penalties for a person using titles including Surgeon or Physician if not appropriately registered. These offences could result in being fined or imprisoned for up to twelve months. (12) The amending Act also allowed for the removal from the Register of any member who ceased to be qualified or any practitioner who had committed a felony or misdemeanour. (13) The Board's register acquired the status of prima facie evidence in relation to the names recorded in it. (14) The Medical Practitioners Further Amendment Act, 1900 (Act No.70, 1900) authorised the Board to sit as an open court to hear cases of professional misconduct, and appeal was available to the Supreme Court. (15) The second amending Act of 1900 also ruled that a person who advertises that he can cure an illness must use his full name, and penalties were introduced for breach of this requirement as well to a person falsely claiming to be the person in the advertisement. (16) The Act also authorised the creation of a separate register of unqualified persons (17)

The Medical Practitioners Act 1912 (Act No.29, 1912) consolidated the existing legislation relating to the NSW Medical Board.

The Medical Practitioners Act 1938 (Act No.37, 1938) constituted a Board of between seven and than nine members (18), all of whom were registered medical practitioners. The Board was to include:
* a nominee of the Senate of the University of Sydney , and
* a general practitioner with at least five years' experience outside the County of Cumberland nominated by the NSW branch of the British Medical Association. (19)

Members of the Board were elected for seven years, but were eligible for re-election (20)

The Act established a disciplinary tribunal to consist of a judge of the District Court appointed by the Governor to be chairman of the tribunal (21) and four members. The tribunal sat in open court and both the person against whom the charge was made and the complainant were eligible for legal representation. (22) If found guilty the registered person could be reprimanded, suspended from practice for up to one year or removed from the register. (23)

The Medical Practitioners (Amendment) Act 1939 (Act No.5, 1939) permitted the regional registration of medical practitioners to ensure the availability of medical services in areas otherwise deficient. (24)

The Board was reconstituted by the Medical Practitioners (Amendment) Act, 1963 (Act No.22, 1963). The new Board was to consist of 13 members viz.
* the Under Secretary, Department of Public Health or his nominee
* a barrister or solicitor nominated by the Minister
* A medical practitioner nominated by the minister
* Three medical practitioners nominated by the NSW Branch of the Australian Medical Association
and one medical nominated by each of the following:
* the Senate of the University of Sydney
* the Council of the University of New South Wales
* The Royal Australasian College of Physicians
* Royal Australasian College of Physicians, NSW Committee
* Royal Australasian College of Surgeons
* Royal Australasian College of Surgeons, NSW Committee
* The Australian College of General Practitioners, NSW Faculty. (25)

The Medical Practitioners (Amendment) Act, 1972 (Act No.52, 1972) established a separate register of specialists. (26)

The Medical Practitioners (Amendment) Act, 1982 (Act No.51, 1982) amended the disciplinary procedures established by the Medical Practitioners Act, 1938. The Chairman (27) and one or two deputy chairmen (28) were to be Judges of the District Court and either the full Board or the President appointed two Board members to complete the tribunal. (29)

The Medical Board was further reconstituted by the Medical Practitioners (Further Amendment) Act, 1983 (Act No.177, 1983) The new Board of 11 members was to be comprised as follows:
* An officer of the Department of Health
* A barrister or solicitor appointed by the Minister
* A registered medical practitioner selected by the Minister from a panel of three nominated by the New South Wales Branch of the Australian Medical Association
* A registered medical practitioner selected by the Minister from a panel of 3 nominated by the Ethnic Affairs Commission of New South Wales
* A registered medical practitioner selected by the Minister from panels of three nominated by
(i) Senate of the University of Sydney
(ii) Council of the University of New South Wales
(iii) Council of the University of Newcastle
* Three registered medical practitioners selected by the Minister from panels of three nominated by
(i) The Royal Australasian College of Physicians, NSW Committee
(ii) The Australia College of Obstetricians and Gynaecologists, NSW Committee
(iii) Royal Australasian College of Surgeons, NSW Committee
(iv) Royal Australian College of General Practitioners, NSW Faculty
(v) Royal Australian College of Medical Administrators, NSW Committee
(vi) Royal Australian and New Zealand College of Psychiatrists, NSW Branch
(vii) Royal College of Pathologists of Australasia
(viii) Royal Australasian College of Radiologists
* A registered general practitioner nominated by the Minister
* Two persons nominated by the Minister to represent the interests of consumers of medical services. (30)

The Medical Practitioners (Amendment) Act 1987 (Act No.127, 1987) reconstituted the New South Wales Medical Board as an independent self-funding corporation from 1 October 1987. The new Board of 18 members was to be composed as follows:
* A medical practitioner who is an officer of the Department of Health
* A barrister or solicitor appointed by the Minister
* Two registered medical practitioners nominated by the NSW Branch of the Australian Medical Association
* A medical practitioner nominated by the Ethnic Affairs Commission of NSW
* A registered medical practitioner selected from a list of one nominee each from (i) the Senate of the University of Sydney, (ii) the Council of the University of NSW and (iii) the Council of the University of Newcastle.
One nominee from each of the following
(i) The Royal Australasian College of Physicians, NSW Committee
(ii) The Royal Australia College of Obstetricians and Gynaecologists, NSW Committee
(iii) Royal Australasian College of Surgeons, NSW Committee
(iv) Royal Australian College of General Practitioners, NSW Faculty
(v) Royal Australian College of Medical Administrators, NSW Committee
(vi) Royal Australian and New Zealand College of Psychiatrists, NSW Branch
(vii) Royal College of Pathologists of Australasia
(viii) Royal Australasian College of Radiologists
Four other persons nominated by the Minister at least two of whom represent the interests of the consumers of medical services. (31)

The amending Act provided for the appointment of staff including a Registrar who was the Chief Executive Officer of the Board. (32) The functions of the Board were
(a) the promotion and maintenance of high standards of medical practice within the state
(b) provision of advice to the Minister on the registration of medical practitioners, standards of medical practice and other matters arising from the Medical Practitioners Act or regulations under the Act
(c) publication of information regarding the Act to medical practitioners and other interested parties. (33)
The Act included provisions relating to Board members and procedures of the Board in addition to amended procedures for complaints and disciplinary hearings. (34)

The Medical Practice Act, 1992 (Act No. 94, 1992) repealed the 1938 Act and its amendments. The Act constituted the New South Wales Medical Board of 18 members 'as a continuation of and the same legal entity as' the Board established by the repealed Act. (35) The Act established the Medical Tribunal consisting of the Chairperson (or Deputy Chair) appointed by the Governor and two medical practitioners and one lay person appointed by the Board. (36) The Chairperson and Deputy Chair were District Court Judges.(37) Other disciplinary and review bodies established by the Act were:
(a) Professional Standards Committees to investigate complaints or the determination of applications, (38) and (b) Impaired Registrants Panels of two persons at least one of whom was a medical practitioner were to be formed as necessary to deal with matters referred by the Board. (39)
The Act regulated for the continuation of the Medical Education and Research Account which had been established by the Amendment Act of 1987. A portion of registration fees was to be diverted to this fund which was to be used for education, research, publication and information purposes if approved by at least ten members of the Board. (40)

The Medical Council of New South Wales was set up on 1 July 2010 (41) under the Health Practitioner Regulation National Law (NSW) No 86a of 2009 (42). These National Boards were supported by the Australian Health Practitioner Regulation Agency (AHPRA) which has an office in each State and Territory, including New South Wales (NSW). NSW did not adopt the regulatory part of the Scheme which handles complaints and notifications about practitioners. Instead, the co-regulatory environment in NSW was maintained and the NSW Medical Board was replaced by the Council. (43)

Endnotes
1. Medical Witnesses at Inquests Act, 1838 s.2.
2. Ibid.
3. Ibid. s.1.
4. Ibid. s.3.
5. Medical Witnesses at Inquests Amendment Act, 1844 s.1.
6. Ibid. ss.2-3.
7. Medical Witnesses at Coroners' Inquests Amendment Act, 1845 s.1.
8. Registration of Legally Qualified Practitioners Act, 1855 s.1.
9. Ibid. s.2.
10. Ibid.
11. Ibid. ss.3-4.
12. Medical Practitioners Amendment Act, 1900 s.1.
13. Ibid. s.2.
14. Ibid. s.3.
15. Medical Practitioners Further Amendment Act, 1900 s.1.
16. Ibid. s.2.
17. Ibid. s.3.
18. Medical Practitioners Act, 1938 s.5.
19. Ibid. s.2(3).
20. Ibid. s.2(6).
21. Ibid. s.28(2).
22. Ibid. s.28(6).
23. Ibid. s.29.
24. Medical Practitioners (Amendment) Act, 1939 s.3 which inserted a new section 21A into the principal Act.
25. Medical Practitioners (Amendment) Act, 1963 s.2(4)(a)(ii).
26. Medical Practitioners (Amendment) Act, 1972 s.32(b).
27. Medical Practitioners (Amendment) Act, 1982 s.28(2).
28. Ibid. s.28(2C).
29. Ibid. s.28(2A).
30. Medical Practitioners (Further Amendment) Act, 1983 Schedule 1.
31. Medical Practitioners (Amendment) Act, 1987 s.5.
32. Ibid ss.6-7.
33. Ibid. s.9.
34. Ibid. Schedule 2.
35. Medical Practice Act, 1992 s.130.
36. Ibid s.147(3).
37. Ibid. s.148.
38. Ibid. ss.167-168.
39. Ibid. ss.182-183.
40. Ibid. s.145.
41. The Medical Council of New South Wales website, About the Council, https://www.mcnsw.org.au/ (accessed 7 November 2022).
42. Health Practitioner Regulation National Law (NSW) No 86a of 2009, NSW Legislation Website, 1 July 2010.
43. The Medical Council of New South Wales website, About the Council, https://www.mcnsw.org.au/ (accessed 10 November 2022).