Code of Conduct for Certain Health Care Workers

Certain health practitioner who are not otherwise regulated are bound by a Code of Conduct, which is contained in the Health and Community Services Complaints Regulations 2019 (SA).

The Code covers health practitioners who are not required to be registered under the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA), and to registered health practitioners who provide health services unrelated to their registration [see Health and Community Services Complaints Act 2004 (SA) s 56A(1); Health and Community Services Complaints Regulations 2019 (SA) reg 2]. The health practitioners covered by the Code can include, for example, counsellors, social workers, speech pathologists, disability support workers, audiologists, sonographers, naturopaths and homeopaths.

The Code has been implemented as part of the National Code of Conduct Regime whereby each State and Territory has enacted, or will enact, the Code (or a variation of the Code) in their own state-based legislation or regulations in order to enable a nationally consistent approach.

The Code allows for certain interstate orders to be recognised and enforceable in South Australia [s 56EA]. It is an offence for a person to engage in conduct in South Australia that would constitute a contravention of any corresponding interstate order that they are subject to [see Health and Community Services Complaints Act 2004 (SA) s 56EA]. See Regulation 9 of the Health and Community Services Complaint Regulations 2019 (SA) for a list of interstate orders that are covered by section 56EA of the Act.

Maximum penalty: a fine of up to $10 000, or two years imprisonment, or both [s 56EA].

What can the HCSCC do if the Code is breached?

Complaints about unregistered health practitioners and breaches of the Code are made to the Health and Community Services Complaints Commissioner (SA), who has investigative powers and the ability to impose conditions on the person's provision of service [s 56B].

The Commissioner can commence an investigation upon receipt of a complaint or on their own motion [s 43].

The Commissioner has the ability to take interim action (in the form of an interim prohibition order) against a person once an investigation has been commenced, and to make final orders once an investigation has been completed.

An interim prohibition order can be made for a period of up to 12 weeks and may impose certain conditions on the person [see s 56B]. At the conclusion of an investigation, a final order can be made which can apply for an indefinite period of time and which can impose similar conditions on the person [see s 56C].

To impose either an interim or final order, the Commissioner must have a reasonable belief that the person has breached the Code and that action is necessary to protect the health or safety of members of the public [see ss 56B(1) and 56C(1)].

The Commissioner has the power to impose conditions (whether interim or final) on a person that prohibits them from:

See ss 56B(2) and 56C(2).

It is an offence to contravene an interim order or final order.

Maximum penalty: a fine of up to $10 000, or two years imprisonment, or both [ss 56B(5), 56C(4)].

In addition to issuing interim or final orders, the Commissioner also has the power to publish a public statement identifying the person and giving warnings and other information to the public that the Commissioner considers appropriate [see ss 56B(2)(c) and 56C(2)(c)].

Where prohibition orders are made, the Commissioner must provide the person (and any complainant) with a written statement outlining the Commissioner's findings, any material on which the findings were based, and the reasons for the action [s 56D].

The Commissioner may at any time vary or revoke the orders made and/or statement published [s 56C(3)].

Can an order of the Commissioner be appealed?

A person may appeal an order to the South Australian Civil and Administrative Tribunal SACAT. A time limit applies and legal advice should be sought before commencing any appeal.

Are volunteers covered by the Act?

Volunteers are generally excluded from the general complaints provisions of the Health and Community Services Complaints Act 2004 (SA). However, if a code of conduct applies in respect of the volunteer and the conduct of a volunteer has posed a risk to the health or safety of members of the public then they can be subject to an investigation by the Commissioner [see s 25(6)].