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South Australia
Chiropractic and Osteopathy Practice Act 2005
An Act to protect the health and safety of the public by providing for the registration of chiropractors, osteopaths, chiropractic students and osteopathy students; to regulate the provision of chiropractic and osteopathy for the purpose of maintaining high standards of competence and conduct by those who provide it; and for other purposes.
Contents
Part 1—Preliminary
1 Short title
3 Interpretation
4 Medical fitness to provide chiropractic or osteopathy
Part 2—Chiropractic and Osteopathy Board of South Australia
Division 1—Establishment of Board
5 Establishment of Board
Division 2—Board's membership
6 Composition of Board
7 Elections and casual vacancies
8 Terms and conditions of membership
9 Presiding member and deputy
10 Vacancies or defects in appointment of members
11 Remuneration
Division 3—Registrar and staff of Board
12 Registrar of Board
13 Other staff of Board
Division 4—General functions and powers
14 Functions of Board
15 Committees
16 Delegations
Division 5—Board's procedures
17 Board's procedures
18 Conflict of interest etc under Public Sector Management Act
19 Powers of Board in relation to witnesses etc
20 Principles governing proceedings
21 Representation at proceedings before Board
22 Costs
Division 6—Accounts, audit and annual report
23 Accounts and audit
24 Annual report
Part 3—Registration and practice
Division 1—Registers
25 Registers
26 Authority conferred by registration
Division 2—Registration
27 Registration of natural persons as chiropractors or osteopaths
28 Registration of chiropractic and osteopathy students
29 Application for registration and provisional registration
30 Removal from register
31 Reinstatement on register
32 Fees and returns
Division 3—Special provisions relating to chiropractic or osteopathy services providers
33 Information to be given to Board by chiropractic or osteopathy services providers
Division 4—Restrictions relating to provision of chiropractic or osteopathy
34 Illegal holding out as registered person
35 Illegal holding out concerning limitations or conditions
36 Use of certain titles or descriptions prohibited
37 Restrictions on provision of chiropractic or osteopathy by unqualified persons
38 Board's approval required where chiropractor, osteopath, chiropractic student or osteopathy student has not practised for 5 years
Part 4—Investigations and proceedings
Division 1—Preliminary
39 Interpretation
40 Cause for disciplinary action
Division 2—Investigations
41 Powers of inspectors
42 Offence to hinder etc inspector
Division 3—Proceedings before Board
43 Obligation to report medical unfitness or unprofessional conduct of chiropractor, osteopath, chiropractic student or osteopathy student
44 Medical fitness of chiropractor, osteopath, chiropractic student or osteopathy student
45 Inquiries by Board as to matters constituting grounds for disciplinary action
46 Contravention of prohibition order
47 Register of prohibition orders
48 Variation or revocation of conditions of registration
49 Constitution of Board for purpose of proceedings
50 Provisions as to proceedings before Board
Part 5—Appeals
51 Right of appeal to District Court
52 Operation of order may be suspended
53 Variation or revocation of conditions imposed by Court
Part 6—Miscellaneous
54 Interpretation
55 Offence to contravene conditions of registration
56 Registered person etc must declare interest in prescribed business
57 Offence to give, offer or accept benefit for referral or recommendation
58 Improper directions to chiropractors, osteopaths, chiropractic students or osteopathy students
59 Procurement of registration by fraud
60 Statutory declarations
61 False or misleading statement
62 Registered person must report medical unfitness to Board
63 Report to Board of cessation of status as student
64 Registered persons and chiropractic or osteopathy services providers to be indemnified against loss
65 Information relating to claim against registered person or chiropractic or osteopathy services provider to be provided
66 Victimisation
67 Self-incrimination
68 Punishment of conduct that constitutes an offence
69 Vicarious liability for offences
70 Application of fines
71 Board may require medical examination or report
72 Ministerial review of decisions relating to courses
73 Confidentiality
74 Service
75 Evidentiary provision
76 Regulations
Schedule 1—Transitional provisions
Part 2—Transitional provisions
2 Transitional provisions relating to Board
3 Transitional provisions relating to registration
4 Regulations
Legislative history
The Parliament of South Australia enacts as follows:
This Act may be cited as the Chiropractic and Osteopathy Practice Act 2005.
(1) In this Act, unless the contrary intention appears—
appropriate register means—
(a) the chiropractic student register; or
(b) the osteopathy student register; or
(c) the register of chiropractors; or
(d) the register of osteopaths,
as the case may require;
beneficiary includes an object of a discretionary trust;
Board means the Chiropractic and Osteopathy Board of South Australia;
chiropractic means—
(a) restricted therapy; and
(b) all diagnostic, therapeutic, health or other services or advice not referred to in paragraph (a) provided in the course of practice by a chiropractor or a person who holds himself or herself out, or is held out by another, as a chiropractor;
chiropractic or osteopathy services provider means a person (not being a chiropractor or osteopath) who provides chiropractic or osteopathy through the instrumentality of a chiropractor, osteopath, chiropractic student or osteopathy student but does not include an exempt provider;
chiropractic student means a person who is registered on the chiropractic student register;
chiropractic student register—see Part 3 Division 1;
chiropractor means a person who is registered on the register of chiropractors;
corporate or trustee chiropractic or osteopathy services provider—see subsection (5);
director of a body corporate means a member of the board or committee of management of the body corporate, whether validly appointed or not;
District Court means the Administrative and Disciplinary Division of the District Court;
equipment includes appliances, instruments, dressings or substances used for the purposes of chiropractic or osteopathy;
exempt provider means—
(a) a recognised hospital, incorporated health centre or private hospital within the meaning of the South Australian Health Commission Act 1976; or
(b) any other person declared by the regulations to be an exempt provider for the purposes of this Act;
inspector means a person authorised by the Board to exercise the powers of an inspector under this Act;
legal practitioner means a person admitted and enrolled as a practitioner of the Supreme Court of South Australia;
medical practitioner means a person who is registered on the general register or on both the general register and the specialist register under the Medical Practice Act 2004;
nominated contact address of a registered person means an address nominated by the person for the purpose of service of notices and documents under this Act;
osteopath means a person who is registered on the register of osteopaths;
osteopathy means—
(a) restricted therapy; and
(b) all diagnostic, therapeutic, health or other services or advice not referred to in paragraph (a) provided in the course of practice by an osteopath or a person who holds himself or herself out, or is held out by another, as an osteopath;
osteopathy student means a person who is registered on the osteopathy student register;
osteopathy student register—see Part 3 Division 1;
physical therapy means physical treatment applied to the human body for the purpose of preventing, curing or alleviating any abnormality of movement or posture or any other sign associated with physical disability;
provide, in relation to chiropractic or osteopathy, means provide chiropractic or osteopathy personally or through the instrumentality of another, and includes offer to provide;
psychologist means a person who is registered as a psychologist under the Psychological Practices Act 1973;
record means—
(a) a documentary record; or
(b) a record made by an electronic, electromagnetic, photographic or optical process; or
(c) any other kind of record;
register means a register kept under this Act;
registered person means a person who is registered on a register kept under this Act;
register of chiropractors—see Part 3 Division 1;
register of osteopaths—see Part 3 Division 1;
Registrar means the person holding or acting in the office of Registrar of the Board;
repealed Act means the Chiropractors Act 1991;
representative body means a body that is declared by the regulations to be a representative body for the purposes of this Act;
restricted therapy means physical therapy consisting of or involving—
(a) the manipulation or adjustment of the spinal column or joints of the human body involving a manoeuvre during which a joint is carried beyond its normal physiological range of motion; or
(b) any other therapy declared by the regulations to be restricted therapy;
unprofessional conduct includes—
(a) improper or unethical conduct in relation to professional practice; and
(b) incompetence or negligence in relation to the provision of chiropractic or osteopathy; and
(c) a contravention of or failure to comply with—
(i) a provision of this Act; or
(ii) a code of conduct or professional standard prepared or endorsed by the Board under this Act; and
(d) conduct that constitutes an offence punishable by imprisonment for 1 year or more under some other Act or law.
(2) A reference in this Act to unprofessional conduct extends to—
(a) unprofessional conduct committed before the commencement of this Act; and
(b) unprofessional conduct committed within or outside South Australia or the Commonwealth.
(3) A reference in this Act to engaging in conduct includes a reference to failing or refusing to engage in conduct.
(4) Without limiting the generality of the expression, a person who is not a chiropractor or osteopath will, unless exempted by the regulations, be taken to provide chiropractic or osteopathy through the instrumentality of a chiropractor or osteopath if the person, in the course of carrying on a business, provides services to the chiropractor or osteopath for which the person is entitled to receive a share in the profits or income of the chiropractor's or osteopath's practice of chiropractic or osteopathy.
(5) For the purposes of this Act—
(a) a corporate chiropractic or osteopathy services provider is a chiropractic or osteopathy services provider that is a body corporate and a person occupies a position of authority in such a provider if the person—
(i) is a director of the body corporate; or
(ii) exercises, or is in a position to exercise, control or substantial influence over the body corporate in the conduct of its affairs; or
(iii) manages, or is to manage, the business of the body corporate that consists of the provision of chiropractic or osteopathy; or
(iv) where the body corporate is a proprietary company—is a shareholder in the body corporate; and
(b) a trustee chiropractic or osteopathy services provider is a person acting as a chiropractic or osteopathy services provider in the capacity of trustee of a trust and a person occupies a position of authority in such a provider if the person is a trustee or beneficiary of the trust.
(6) For the purposes of this Act, a person occupies a position of authority in a body corporate other than a corporate chiropractic or osteopathy services provider if the person—
(a) is a director of the body corporate; or
(b) exercises, or is in a position to exercise, control or substantial influence over the body corporate in the conduct of its affairs; or
(c) where the body corporate is a proprietary company—is a shareholder in the body corporate.
(7) However—
(a) a minor who is a shareholder in a proprietary company, or a beneficiary under a trust, is not, for that reason, to be regarded as a person occupying a position of authority; and
(b) a charitable organisation that is a beneficiary of a trust is not, for that reason, to be regarded as occupying a position of authority.
(8) For the purposes of this Act, a person who holds more than 10 per cent of the issued share capital of a public company will be regarded as a person occupying a position of authority in that company.
4—Medical fitness to provide chiropractic or osteopathy
A person or body must, in making a determination under this Act as to a person's medical fitness to provide chiropractic or osteopathy, have regard to the question of whether the person is able to provide chiropractic or osteopathy personally to a patient without endangering the patient's health or safety.
Part 2—Chiropractic and Osteopathy Board of South Australia
Division 1—Establishment of Board
(1) The Chiropractic and Osteopathy Board of South Australia is established.
(2) The Board—
(a) is a body corporate; and
(b) has perpetual succession and a common seal; and
(c) is capable of suing and being sued in its corporate name; and
(d) has all the powers of a natural person that are capable of being exercised by a body corporate; and
(e) has the functions and powers assigned or conferred by or under this Act.
(3) If a document appears to bear the common seal of the Board, it will be presumed, in the absence of proof to the contrary, that the common seal of the Board was duly affixed to the document.
(1) The Board consists of 9 members appointed by the Governor of whom—
(a) 4 must be chiropractors chosen at an election (see section 7); and
(b) 1 must be an osteopath chosen at an election (see section 7); and
(c) 1 must be a legal practitioner nominated by the Minister; and
(d) 1 must be a medical practitioner nominated by the Minister; and
(e) 2 must be persons nominated by the Minister who are not eligible for appointment under a preceding provision of this subsection.
(2) At least 1 of the members of the Board must be a woman and 1 must be a man.
(3) The Governor may appoint a person to be a deputy of a member and a person so appointed may act as a member of the Board in the absence of the member.
(4) The requirements of qualification and nomination (if applicable) made by this section in relation to the appointment of a member extend to the appointment of a deputy of that member.
7—Elections and casual vacancies
(1) An election conducted to choose chiropractors or an osteopath for appointment to the Board must be conducted under the regulations in accordance with principles of proportional representation.
(2) A person who is a chiropractor at the time the voters roll is prepared in accordance with the regulations for an election to choose chiropractors is entitled to vote at the election.
(3) A person who is an osteopath at the time the voters roll is prepared in accordance with the regulations for an election to choose an osteopath is entitled to vote at the election.
(4) If an election of a member fails for any reason, the Governor may appoint a chiropractor or osteopath (as the case requires) and the person so appointed will be taken to have been appointed after due election under this section.
(5) If a casual vacancy occurs in the office of a member chosen at an election, the following rules govern the appointment of a person to fill the vacancy:
(a) if the vacancy occurs within 12 months after the member's election and at that election a candidate or candidates were excluded, the Governor must appoint the person who was the last excluded candidate at that election;
(b) if that person is no longer qualified for appointment or is unavailable or unwilling to be appointed or if the vacancy occurs later than 12 months after the member's election, the Governor may appoint a chiropractor or osteopath (as the case requires) nominated by the Minister;
(c) before nominating a chiropractor or osteopath for appointment the Minister must consult the representative bodies;
(d) the person appointed holds office for the balance of the term of that person's predecessor.
8—Terms and conditions of membership
(1) A member of the Board will be appointed on conditions determined by the Governo and for a term, not exceeding 3 years, specified in the instrument of appointment and, at the expiration of a term of appointment, is eligible for reappointment.
(2) However, a member of the Board may not hold office for consecutive terms that exceed 9 years in total.
(3) The Governor may remove a member of the Board from office—
(a) for breach of, or non-compliance with, a condition of appointment; or
(b) for misconduct; or
(c) for failure or incapacity to carry out official duties satisfactorily.
(4) The office of a member of the Board becomes vacant if the member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) ceases to satisfy the qualification by virtue of which the member was eligible for appointment to the Board; or
(da) is disqualified from managing corporations under Chapter 2D Part 2D.6 of the Corporations Act 2001 of the Commonwealth; or
(e) is removed from office under subsection (3).
(5) If a member of the Board is a member constituting the Board for the purposes of any proceedings under Part 4 and the member's term of office expires, or the member resigns, before those proceedings are completed, the member may, for the purpose of continuing and completing those proceedings, continue to act as a member of the Board.
The Minister must, after consultation with the Board, appoint a member who is a chiropractor or osteopath (the presiding member) to preside at meetings of the Board and another member who is a chiropractor or osteopath (the deputy presiding member) to preside at meetings of the Board in the absence of the presiding member.
10—Vacancies or defects in appointment of members
An act or proceeding of the Board is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.
A member of the Board is entitled to remuneration, allowances and expenses determined by the Governor.
Division 3—Registrar and staff of Board
(1) There will be a Registrar of the Board.
(2) The Registrar will be appointed by the Board on terms and conditions determined by the Board.
(1) There will be such other staff of the Board as the Board thinks necessary for the proper performance of its functions.
(2) A member of the staff of the Board is not, as such, a member of the Public Service, but the Board may employ a person who is on leave from employment in the Public Service or with an instrumentality or agency of the Crown.
(3) The Board may, with the approval of the Minister administering an administrative unit of the Public Service, make use of the services, facilities or officers of that unit.
Division 4—General functions and powers
(1) The functions of the Board are as follows:
(a) to oversee the practice of chiropractic and osteopathy in the public interest;
(b) to approve, after consultation with authorities considered appropriate by the Board, courses of education or training that provide qualifications for registration under this Act;
(c) to determine, after consultation with authorities considered appropriate by the Board, the requirements necessary for registration under this Act;
(d) to establish and maintain the registers contemplated by this Act;
(e) to prepare or endorse, subject to the approval of the Minister, codes of conduct or professional standards for registered persons or codes of conduct for chiropractic or osteopathy services providers;
(f) to prepare or endorse guidelines on continuing chiropractic or osteopathy education for chiropractors and osteopaths;
(g) to establish administrative processes for handling complaints received against registered persons, chiropractic or osteopathy services providers or persons who occupy positions of authority in corporate or trustee chiropractic or osteopathy services providers (which may include processes under which the registered person, provider or person who occupies the position voluntarily enters into an undertaking);
(h) to provide advice to the Minister as the Board considers appropriate;
(i) to carry out other functions assigned to the Board by or under this Act, or by the Minister.
(2) The Board must perform its functions under this Act with the object of protecting the health and safety of the public by achieving and maintaining high professional standards both of competence and conduct in the provision of chiropractic and osteopathy in this State.
(3) If—
(a) a code of conduct or professional standard prepared or endorsed by the Board is approved by the Minister; or
(b) guidelines are prepared or endorsed by the Board,
the Board must—
(c) cause a copy of the code, standard or guidelines to be published in the Gazette; and
(d) take reasonable steps to send a copy of the code, standard or guidelines to each registered person or chiropractic or osteopathy services provider to whom it applies; and
(e) ensure that a copy of the code, standard or guidelines is published on the internet and kept available for public inspection without charge during normal office hours at the principal office of the Board,
(although proof of compliance with paragraphs (c), (d) and (e) is not necessary for the purposes of any proceedings that involve an alleged contravention of or failure to comply with a code of conduct or professional standard).
(4) The administrative processes established by the Board for handling complaints received against registered persons, chiropractic or osteopathy services providers or persons who occupy positions of authority in corporate or trustee chiropractic or osteopathy services providers must be designed—
(a) to be fair to both the aggrieved person and the respondent; and
(b) to keep both the aggrieved person and the respondent properly informed about the steps taken by the Board in response to the complaint; and
(c) to provide, where appropriate, opportunities for the clarification of any misapprehension or misunderstanding between the aggrieved person and the respondent; and
(d) to keep both the aggrieved person and the respondent properly informed about the outcome of the processes; and
(e) to take into account the needs of particular classes of persons who may otherwise suffer disadvantage in the conduct of those processes.
(1) The Board may establish committees—
(a) to advise the Board or the Registrar on any matter; or
(b) to carry out functions on behalf of the Board.
(2) The membership of a committee will be determined by the Board and may, but need not, consist of, or include, members of the Board.
(3) The Board will determine who will be the presiding member of a committee.
(4) The procedures to be observed in relation to the conduct of the business of a committee will be—
(a) as determined by the Board; and
(b) insofar as a procedure is not determined under paragraph (a)—as determined by the committee.
(1) The Board may delegate any of its functions or powers under this Act other than—
(a) this power of delegation; and
(b) the power to hear and determine proceedings under Part 4.
(2) A delegation—
(a) may be made—
(i) to a member of the Board, the Registrar or an employee of the Board; or
(ii) to a committee established by the Board; and
(b) may be made subject to conditions and limitations specified in the instrument of delegation; and
(c) is revocable at will and does not derogate from the power of the Board to act in a matter.
(1) Subject to this Act, 5 members constitute a quorum of the Board.
(2) A meeting of the Board (other than for the purposes of hearing and determining proceedings under Part 4) will be chaired by the presiding member or, in his or her absence, by the deputy presiding member and, in the absence of both the presiding member and the deputy presiding member, the members present at a meeting of the Board must choose 1 of their number to preside at the meeting.
(3) A decision carried by a majority of the votes cast by members of the Board at a meeting is a decision of the Board.
(4) Each member present at a meeting of the Board has 1 vote on any question arising for decision and, except in hearing and determining proceedings under Part 4, the member presiding at the meeting may exercise a casting vote if the votes are equal.
(5) A conference by telephone or other electronic means between the members of the Board will, for the purposes of this section, be taken to be a meeting of the Board at which the participating members are present if—
(a) notice of the conference is given to all members in the manner determined by the Board for the purpose; and
(b) each participating member is capable of communicating with every other participating member during the conference.
(6) A proposed resolution of the Board becomes a valid decision of the Board despite the fact that it is not voted on at a meeting of the Board if—
(a) notice of the proposed resolution is given to all members of the Board in accordance with procedures determined by the Board; and
(b) a majority of the members express concurrence in the proposed resolution by letter, telegram, telex, facsimile transmission, electronic mail or other written communication setting out the terms of the resolution.
(7) However, subsections (5) and (6) do not apply in relation to the hearing and determination of proceedings under Part 4 by the Board as constituted for the purposes of proceedings under that Part.
(8) The Board must have accurate minutes kept of its meetings.
(9) Subject to this Act, the Board may determine its own procedures.
18—Conflict of interest etc under Public Sector Management Act
A member of the Board will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector Management Act 1995 by reason only of the fact that the member has an interest in the matter that is shared in common with chiropractors or osteopaths generally or a substantial section of chiropractors or osteopaths in this State.
19—Powers of Board in relation to witnesses etc
(1) For the purposes of proceedings before the Board (including an application for registration or reinstatement of registration), the Board may—
(a) by summons signed on behalf of the Board by a member of the Board or the Registrar, require the attendance before the Board of a person whom the Board thinks fit to call before it; or
(b) by summons signed on behalf of the Board by a member of the Board or the Registrar, require the production of relevant documents, records or equipment and, in the case of a document or record that is not in the English language, require the production of—
(i) a written translation of the document or record into English; and
(ii) a certificate signed by a translator approved by the Board certifying that the translation accurately reproduces in English the contents of the document or record; or
(c) inspect documents, records or equipment produced before it, and retain them for such reasonable period as it thinks fit, and make copies of the documents or records or their contents; or
(d) require a person to make an oath or affirmation (which may be administered by a member of the Board) to answer truthfully questions put by a member of the Board or a person appearing before the Board; or
(e) require a person appearing before the Board (whether summoned to appear or not) to answer questions put by a member of the Board or by a person appearing before the Board.
(2) On the receipt of an application for the issue of a summons under this section, a member or the Registrar may, without referring the matter to the Board, issue a summons on behalf of the Board.
(3) A person who—
(a) fails without reasonable excuse to comply with a summons issued to attend, or to produce documents, records or equipment, before the Board; or
(b) having been served with a summons to produce—
(i) a written translation of the document or record into English; and
(ii) a certificate signed by a translator approved by the Board certifying that the translation accurately reproduces in English the contents of the document or record,
fails, without reasonable excuse, to comply with the summons; or
(c) misbehaves before the Board, wilfully insults the Board or 1 or more of the members in the exercise of the member's official duties, or wilfully interrupts the proceedings of the Board; or
(d) refuses to be sworn or to affirm, or refuses or fails to answer truthfully a relevant question when required to do so by the Board,
is guilty of an offence.
Maximum penalty: $10 000 or im