It might not feel like it, but compared to some other industries such as financial services or telecommunications, allied health is not (yet) heavily regulated in Australia.
Most of the laws that apply to allied health businesses apply generally to small and medium-sized businesses in Australia. For example:
- incorporated allied health businesses are regulated by the Corporations Act 2001 (Cth);
- allied health business partnerships are regulated by the Partnerships Acts of the relevant States or Territories, e.g. the Partnership Act (1892) (NSW);
- allied health company and business names are governed by the Corporations Act 2001 (Cth) and Business Names Registrations Regulations 2011 (Cth), respectively;
- trade marks and designs are regulated by the Trade Marks Act 1995 (Cth) and Designs Act 2003 (Cth). Other intellectual property (e.g. patents and copyright) is regulated by other legislation and the common law;
- generally, employment arrangements are governed by the Fair Work Act 2009 (Cth) and the common law;
- company and income tax requirements prescribed by the Income Tax Assessment Act 1936 (Cth) and Income Tax Assessment Act 1997 (Cth), and the common law that has developed out of its interpretation; and
- some general consumer protections, including rules about advertising health services are set out in the Australian Consumer Law (ACL), contained in the Competition and Consumer Act 2010 (Cth).
Special laws applying to some types of allied health businesses and professionals
In 2008, the Australian State, Territory and Federal Governments decided to establish a single National Registration and Accreditation Scheme (National Scheme) for “registered health practitioners”.
The National Scheme’s stated objectives are to:
- help keep the public safe by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered;
- facilitate workforce mobility for health practitioners;
- facilitate provision of high quality education and training for practitioners;
- facilitate the assessment of overseas qualified practitioners; and
- enable the continuous development of a flexible Australian health workforce.
For constitutional reasons, the key legislation establishing the scheme is not a Commonwealth law. Instead, each State and Territory passed a Health Practitioner Regulation National Law based on a common model law, e.g. in NSW, the Health Practitioner Regulation National Law NSW. These laws are referred to, collectively, as the “National Law”, which are overseen by National Boards (as described below) with the support of the Australian Health Practitioner Regulation Agency.
Which professions are subject to the National Law?
In 2010, the following professions joined the scheme:
- dental practitioners (including dentists, dental hygienists, dental prosthestists & dental therapists);
- medical practitioners;
- nurses and midwives;
- podiatrists; and
In 2012, four additional professions joined scheme:
- Aboriginal and Torres Strait Islander health practitioners;
- Chinese medicine practitioners (including acupuncturists, Chinese herbal medicine practitioners and Chinese herbal dispensers);
- medical radiation practitioners (including diagnostic radiographers, radiation therapists and nuclear medicine technologists); and
- occupational therapists.
Each of these professions is represented by a National Board, responsible for registering practitioners and students and providing other regulatory services for their profession, e.g. producing guidelines and interpretations of the National Law.
A number of professions are not registered or subject to the National Law, including speech pathologists, audiologists, dieticians and exercise physiologists. These professions are effectively self-regulated. The peak bodies of these and some other self-regulated bodies have created a National Alliance of Self-Regulating Professions (NASRP). In 2012, the NASRP called for a single regulatory system based on a model of authorised self regulation. To date, these efforts have not been successful, leaving important gaps in the regulations, e.g. around the enforceability of disciplinary processes.
However, self-regulation doesn’t mean that these these allied health professionals are completely unregulated. State Governments play an important role in protecting public health and safety. For example, in NSW, health practitioners who are not subject to the National Law (e.g. including speech pathologists, audiologists and dieticians) are subject to the Code of Conduct for Unregistered Health Practitioners, a Code made under the Public Health Regulation 2012 (NSW). This Code mandates, among other things, that unregistered health practitioners:
- must provide services in a safe and ethical manner;
- must not make claims they can cure cancer or other terminal illnesses;
- must adopt infection control precautions;
- must communicate and cooperate with other health professionals in the best interests of their clients;
- must not misinform or financially exploit clients;
- must have a clinical basis for treatments;
- must comply with privacy laws, including the Privacy Act 1988 (Cth) and the Health Records and Information Privacy Act 2002 (NSW); and
- must display the Code of Conduct and information about how to make complaints at their premises.
If a client thinks their health practitioner has breached the Code and the health practitioner does not resolve the problem to the client’s satisfaction, the client can lodge a complaint with the Health Care Complaints Commission. More information about the Commission’s powers and the complaints process can be found here.
Disclaimer: This blog provides a general outline of some common legal issues associated with starting up and managing an allied health business in Australia. This article is current as at the date of its publication (23 May 2017). This article does not constitute any kind of legal advice, opinion or recommendation about rights, obligations, remedies, defences, options, or strategies. You should obtain legal advice specific to your circumstances.